E PL UR UM IB N U U S Congressional Record th of America PROCEEDINGS AND DEBATES OF THE 107 CONGRESS, SECOND SESSION

Vol. 148 WASHINGTON, THURSDAY, MAY 9, 2002 No. 58 Senate The Senate met at 10 a.m. and was to the Senate from the President pro know she is Senator BYRD’s grand- called to order by the Honorable HIL- tempore (Mr. BYRD). daughter. We are excited for him and LARY RODHAM CLINTON, a Senator from The assistant legislative clerk read the entire family. the State of New York. the following letter: f U.S. SENATE, PRAYER PRESIDENT PRO TEMPORE, MEASURE PLACED ON THE The guest Chaplain, Commissioner Washington, DC, May 9, 2002. CALENDAR—S. 2485 John Busby, of the Salvation Army, of- To the Senate: Mr. REID. Madam President, I under- fered the following prayer: Under the provisions of rule I, paragraph 3, of the Standing Rules of the Senate, I hereby stand S. 2485 is at the desk and is due Almighty God, we thank You for for a second reading. being the refuge and strength of our appoint the Honorable HILLARY RODHAM CLINTON, a Senator from the State of New The ACTING PRESIDENT pro tem- Nation during these last painful York, to perform the duties of the Chair. pore. That is correct. months. We praise You for the comfort ROBERT C. BYRD, Mr. REID. I ask that the bill be read You have given during our time of President pro tempore. for a second time, and I will then ob- deepest need. Mrs. CLINTON thereupon assumed ject to any further proceedings at this Faithful God, we ask Your blessing the chair as Acting President pro tem- time. upon our Senators. Give them wisdom pore. The ACTING PRESIDENT pro tem- and compassion as they lead our coun- pore. The clerk will read the bill by try. Give them wisdom to see the deep f title. physical and spiritual needs of many RECOGNITION OF THE ACTING The assistant legislative clerk read Americans. Give them courage to af- MAJORITY LEADER as follows: firm that faith in You gives meaning to human life and that service to human- The ACTING PRESIDENT pro tem- A bill (S. 2485) entitled the ‘‘Andean Trade Promotion and Drug Eradication Act.’’ ity is the best work we can do. pore. The acting majority leader is rec- We humbly ask You to help the Mem- ognized. The ACTING PRESIDENT pro tem- bers of the Senate make this great Na- f pore. Objection having been heard, the tion greater. May we all realize that bill will be placed on the calendar. the prosperity we enjoy in the United SCHEDULE Mr. REID. When the Chair turns to a States of America has come only by Mr. REID. Madam President, this period for morning business, I ask Your grace. Make us worthy stewards morning the Senate will be in a period unanimous consent the Senator from of that grace. Help us all to put into of morning business until 10:30 a.m., West Virginia, Mr. ROCKEFELLER, be action Your greatest commandment to with the time under the control of Sen- recognized for up to 7 minutes. That love God with all our heart, mind, ator STABENOW or her designee. will be out of Senator STABENOW’s strength and our neighbor as ourselves. At 10:30 a.m. the Senate will proceed time. This we pray in the name of Jesus to executive session to consider four The ACTING PRESIDENT pro tem- who set for us the example of service judicial nominations. At approxi- pore. Without objection, it is so or- above self. Amen. mately 11:30 a.m. the Senate will pro- dered. f ceed to vote on these nominations. f Following disposition of these nomi- PLEDGE OF ALLEGIANCE nations, the Senate will resume consid- RESERVATION OF LEADER TIME The Honorable HILLARY RODMAN eration of the trade bill. The ACTING PRESIDENT pro tem- CLINTON led the Pledge of Allegiance, f pore. Under the previous order, leader- as follows: ship time is reserved. I pledge allegiance to the Flag of the MARY ANNE MOORE CLARKSON f United States of America, and to the Repub- GIVES BIRTH lic for which it stands, one nation under God, MORNING BUSINESS indivisible, with liberty and justice for all. Mr. REID. Madam President, for all f of us who work here on a daily basis, The ACTING PRESIDENT pro tem- we congratulate Mary Anne Moore pore. Under the previous order, there APPOINTMENT OF ACTING Clarkson who, last night had a baby will now be a period for the transaction PRESIDENT PRO TEMPORE weighing more than 10 pounds. Mary of morning business not to extend be- The PRESIDING OFFICER. The Anne is here every day. We are excited yond the hour of 10:30 a.m., with Sen- clerk will please read a communication for her and her husband. Some of us ators permitted to speak for up to 10

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

S4085

. S4086 CONGRESSIONAL RECORD — SENATE May 9, 2002 minutes each and with the time to be istration then says: No, steelworkers countries out of section 201 that had to under the control of the Senator from cannot have health care benefits. pay tariffs because they were illegally Michigan, Ms. STABENOW, or her des- I do not understand how people come dumping steel in the United States and ignee. to think that way, what their value putting our workers out of work. He Under the previous order, the Sen- system is. But it is very clear in steel started to exempt different countries. ator from West Virginia is recognized. country that the President of the He has different requirements for f United States has abandoned the steel- that—again, I think in violation of the workers of America and that he has spirit, if not the letter, of the 1974 STEEL abandoned people who have been al- Trade Act. Mr. ROCKEFELLER. Madam Presi- ready thrown out of work and who have All of us have asked him to stop that. dent, yesterday the President made no health care benefits, and have chil- Again, he has washed his hands of very clear what we have all known for dren to feed, even as he contemplates steel. He has washed his hands, more a long time in steel country, and that reluctantly the idea of doing health importantly, of the steelworkers who is that he basically does not care care benefits for other eligible active can also be called human beings with whether the American steel industry workers. families—people. It doesn’t have to be goes to Japan, Korea, Brazil, Russia, or Let me say this. The President got a an industry. They are called human some other place; that he is willing to lot of credit in steel country for doing beings. They are Americans. They pay see it go as an industry but, much something called section 201. It was taxes. They do things right. They work more importantly in terms of my com- taking the dumping crisis, the illegal in a very dangerous industry. So do ments, that he is willing to consider dumping crisis, before the Inter- farmers. Is a farmer more vulnerable perhaps TAA health care benefits for national Trade Commission. He got a than a steelworker? I do not know. workers who have been destroyed by il- lot of credit for that. He pretty much Maybe a farmer is, but not where I legal importing problems. But steel- had to do that, I would say—on polit- come from. workers do not count. He specifically, ical grounds, No. 1. But more impor- I very much regret this action on his in his statement of administration pol- tantly, the Finance Committee had al- part. Let me conclude by saying this: icy, said: I don’t want steelworkers to ready voted to do it. The Finance Com- We now know that the President have any health care retirement—re- mittee has the same standing legally doesn’t have a commitment to steel- tirement in the sense they do not have under the law as does the President, so workers and to the steel industry. We any more health benefits. I don’t care it was going to happen anyway. So the know he has no regard for how people’s about them. I want the RECORD to be result would have been the same. The lives and entire communities are going crystal clear on that. International Trade Commission would to be affected. I have believed that for It is a sad position. It is a terrible have voted unanimously the steel in- a long time. Now it is proven. It is day for steel. Somebody is going to get dustry was grievously injured by im- clear. He is moving aggressively with up today, they are going to make a mo- ports and people were hurting badly. the help of some of our colleagues, un- He did that knowing that it would tion, and it is going to be a point of fortunately—most of them on the other make him somewhat popular in steel order probably. I don’t know when it side but a couple on this side—to sim- will happen, who will do it, or how it country because people were saying: Gee, we just solved the problem. It is ply walk away from steelworkers. will happen, but I want my colleagues I think that is a kind of betrayal by not even the beginning of the problem. to be aware of the situation. somebody who claimed to be a friend of Abandoning steelworkers, not allow- All that did was buy us time. We have three steps we have to ac- the steel industry. The President and ing them to have health care cov- complish. One is we have to do section the Vice President were in steel coun- erage—we are only talking about 201, which buys us time to consider try in my part of the world a number of 125,000 people as we start the process, health care costs, which we have to times saying how important steel was none of whom, incidentally, is from the consider if we are going to have con- to the national defense, how it is basic State I represent, the State of West solidation in the steel industry to pre- to Americans, and how they were not Virginia. But they are just being ex- serve an American steel industry. It is going to let them down. When push cluded from the process. sort of one of the great basic industries came to shove, they let them down. TAA is a wonderful program. We rec- of this country. They made it very clear. ognize when people are thrown out of We just passed a farm bill yesterday I want to be incisively precise about work due to imports, they need certain dumping billions and billions of dollars that as we start this Thursday so that protections. Health care certainly on farms for the hundredth consecutive the people of America understand that. needs to be one of those protections. year. Yet there was no consideration I don’t understand sometimes how Unfortunately, TAA does not cover, whatsoever for steelworkers. I find people make decisions and what their under its definition, retirees. It only that very odd, even as my colleagues value systems are, and what kind of covers active workers, not retirees. make these kinds of judgments. fairness is within the fair trade or free You say retirees, that must be some- So, No. 1, he did section 2101. He had trade system. But I do know this: The body who is in their seventies or to do that. He had no choice politically administration has abandoned any eighties, and we should not be doing or procedurally. It just bought us some semblance of fairness toward some very that here. But it is a very different sit- time. But we have to go on to retire- decent people in this country called uation in steel. A retiree in steel might ment health care costs. He has washed steelworkers. be 35 years old, but the company went his hands of that. He says: I want noth- I thank the Presiding Officer. I yield chapter 7. That means they turned out ing to do with it. He actually writes in the floor. the lights, closed the door, pink slips, the statement of administrative— The ACTING PRESIDENT pro tem- no health benefits, everything shut whatever the word is—practice that he pore. The Senator from Michigan. down—no bankruptcy problems, just no particularly opposes the majority lead- Ms. STABENOW. Madam President, I more existence. er’s amendment which would include commend my colleague from West Vir- The steelworkers go. They are called retired steelworkers. He makes that ginia for his diligence and compas- retirees, but in fact they are people, very clear. He wants them cut out of sionate concern for our steelworkers. younger than average age, but out of the deal. He wants them excluded. Coming from Michigan, I share his health care. That is only 125,000 and would prob- deep disappointment and concern about I think it is outrageous. The steel- ably cost $200 million or $300 million. the administration’s position. workers in fact were subjected to im- I think the farm bill we passed yes- I know the Senator from West Vir- port surges which broke American Fed- terday was $100 billion over 10 years. ginia has been in the Chamber over and eral law, the 1974 Trade Act. Other The proportion in sort of the human di- over again speaking up for our steel- countries did it at will. Our adminis- mension of this is rather extraor- workers. I thank him on behalf of the tration has refused to enforce that. So dinary. steelworkers in Michigan—those in the we have dumped steel, which has The President has also done a lot of Upper Peninsula, those downriver in thrown people out of work. The admin- tariff exclusions. He has taken a lot of communities near Detroit, and those May 9, 2002 CONGRESSIONAL RECORD — SENATE S4087 who were laid off for several months I am deeply concerned today as we expensive open-heart surgery and al- over the Christmas holidays as a result look at what has been proposed by our lows this person to be able to continue of the mines having to shut down be- colleagues on the other side of the Con- living and enjoying a wonderful quality cause of the unfair dumping from other gress, our Republican colleagues in the of life with his wife and family. countries. Our steelworkers and mills House have said that they wish to If he went in for that surgery, Medi- have been affected. lower the cost of prescription drugs care would cover it. They don’t cover I can’t think of a more passionate ad- now. Yet at the same time we see old the pill. So that is what we are talking vocate, and I am so proud to join with proposals to do minimal kinds of dis- about. But we need this to be com- him in his continuing fight. I will be counts through discount cards and so prehensive. here with him in the Chamber as we do on—things that are already available When our colleagues come forward, everything possible to make sure we which folks want to take political cred- and their second principle is guaran- remember the steelworkers, who have it for, maybe change the name or teeing all senior citizens prescription been the backbone of building this maybe put it under Medicare. But it drug coverage, we say: Yes, come join country, to make sure their health doesn’t do anything to actually lower with us. Let’s make it real. But, unfor- care costs are covered and they are rec- the prices and make prescription drugs tunately, when we run the numbers on ognized as we look at how we make more available. what is being talked about—and the trade fair in this country. I am very concerned when we come bill has not been introduced yet, but I thank the Senator. forward with proposals that will, in we have all kinds of information about f fact, lower prices that we are not yet what appears to be coming. From what seeing the support. we know, let me share with you some PRESCRIPTION DRUGS We want that support to be there to of the numbers. Ms. STABENOW. Madam President, I be able to use more generic drugs when If you are a senior or if you are dis- want to speak to an issue that relates they are available after the patent has abled and you have a $300-a-month pre- to health care. I am so honored to join run out—the same drug and the same scription drug bill, which is not uncom- with our colleagues, particularly on formulation—and at a lower price. mon, when you get all done with the this side of the aisle in the Democratic We want to have the ability to open copays and the premiums and the caucus, who continue to work very our borders so we can get the best price deductibles that they are talking hard to bring a sense of urgency to the of American-made drugs regardless of about, you would end up, out of $3,600 question of health care for our fami- where they are sold around the world. worth of prescriptions, paying, out of lies, to health care insurance, and to In Michigan, simply crossing the pocket, $2,920. So less than 20 percent affordability for our small businesses bridge to Canada, which is a 5-minute of your bill would be covered under and family farmers and the larger busi- drive, cuts the price in half on Amer- Medicare. ness community. ican-made drugs. It is not right. We That is not what we are talking We know today that one of the major think when we are talking about fair about. That is not comprehensive cov- costs economically and from a business trade we should open the border to the erage under Medicare. That is really a standpoint—and certainly for families, one thing that we don’t have fair and hoax. That is a proposal being put for- and particularly for our seniors—is the open trade on; that is, prescription ward to guarantee all seniors prescrip- whole question of being able to provide drugs. tion drug coverage that is words, not health care and being able to afford We also know the fastest growing actions. Again, words will not pay the health care for our families. part of the cost of that prescription bills. Words will not guarantee that We also know the major reason we bottle is advertising costs, and that the seniors get one more prescription cov- are seeing health care costs rise relates top 11 Fortune 500 companies, last ered, that they will get that blood pres- to the uncontrollable increase in pre- year, spent 21⁄2 times more on adver- sure medicine, that they will get that scription drug coverage. tising than research. cholesterol medicine, or make sure Today, I once again come to the floor I was pleased to join with my col- they have that pill that stops them to speak about the need for real action leagues earlier this week in intro- from having to have that open-heart now. ducing legislation to simply say: If you surgery. I challenge and invite our colleagues are doing more advertising than re- So we come today to this Chamber to on the other side of the aisle and those search, taxpayers are not going to sub- say: Yes, guarantee all seniors pre- in the other Chamber who have come sidize it. We will allow you to deduct scription drug coverage. But the pro- forward with principles—the Speaker the amount of advertising and mar- posal coming forward by the Speaker of of the House and those who will be keting that you do up to the level that the House, and those on the other side speaking today about a plan—to join you spend in research. We want more of this building, will not do it. Unfortu- with us in something that is real and research. We want more innovative nately, what is being talked about will tangible. drugs. We do not want more market re- add insult to injury because they are Words are not going to buy prescrip- search; we want more medical re- talking about paying for their less- tions for seniors. We know there are search. So we propose items to lower than-20-percent coverage by another seniors watching right now who are de- costs to help everyone, right now, to cut to hospitals. ciding today whether to pay that util- lower those prices. I know the Presiding Officer from ity bill or eat supper tonight or do they We also come forward saying it is New York shares the same concern I do those other things which they need time to update Medicare for today’s have because I know hospitals in New to do in order to have the quality of health care system. When Medicare York have been cut, hospitals in Michi- life we want for our parents and grand- was set up in 1965, it covered the way gan have been cut. My colleague from parents and older Americans of this health care was provided in 1965. If you Florida is in the Chamber. I know he country—or do they put all of their went into the hospital, maybe you had has the same stories—and our leader money into paying for lifesaving medi- a little penicillin, or maybe you had an from Nevada. We know that whether it cations? That is not a good choice. operation in the hospital, and Medicare is rural hospitals or urban hospitals or Shame on us for having a situation covered it. suburban hospitals, they have had where seniors have to make that Medicare is a great American success enough cuts under Medicare. It is unbe- choice. Yet when we come to the floor, story. But health care treatments have lievable we would be talking about an- we talk about the need for a real Medi- changed. I have a constituent who other cut for hospitals while they are care prescription drug benefit. And showed me a pill he takes once a proposing this minimal prescription when we talk about the need to lower month that has stopped him from hav- drug benefit. prices for all of our families and lower ing to have open-heart surgery. It is a The other thing I find incredible is prices for everyone so we have health great thing: One pill a month. The pill that they are talking about a copay of care available for everyone in this costs $400. I said: I want to take a close $50 for home health visits. We already country, we get more words than we look at that pill. I hope it is gold plat- have seen dramatic cuts. We have had get actions. ed. But the reality is, that pill stops over 2,500 home health agencies close S4088 CONGRESSIONAL RECORD — SENATE May 9, 2002 across this country because of the ex- care, because they are surrounded by that now has no surplus—we had about cessive cuts in home health care pay- family in their home. 14 months ago an ample surplus for the ments since 1997. Many of us have been The Bush administration now wants next decade—it is going to be very dif- saying: Enough is enough. to propose a new copayment. There- ficult. But we are going to have to face We cannot say that the home health fore, for senior citizens who are having that fact. And don’t talk about window help you need will cost more when we difficulty paying medical bills as it is, dressing of $190 billion over a decade are trying to give a little bit of help because Medicare does not cover every- because that is not going to cut it. For with prescription drugs because it is thing, now the Bush administration example, why don’t we step up to the the combination of home health care wants, in fact, them to pay more in plate on Medicare reimbursement? and prescription drugs that allows peo- order to be eligible for home health Look at the doctors and the hospitals ple to live at home when they have care? Have they taken leave of their that are having difficulty making it be- health care needs. It allows families to senses? cause Medicare is not reimbursing on a take care of mom or dad or grandpa or Take, for example, what the Senator realistic payment schedule. We are grandma, to make sure if someone is mentioned on prescription drugs. The going to have to address that. disabled and needs care at home, that Bush administration is saying: Oh, we I say to my colleague from the great they are not inappropriately placed want a prescription drug benefit. Well, State of Michigan, the fact is, eventu- into a nursing home or out-of-home certainly all of us do. Why? Because ally this country is going to have to care. The combination of home health Medicare was set up in 1965 when face the fact of health care reform in a care and affordable prescription medi- health care was organized around acute comprehensive way. What are we going cations will help our families care for care in hospitals. But 37 years later, to do about 44 million people in this their loved ones and help people to live health care is a lot different. Thank country who don’t have health insur- in dignity at home. the Good Lord for the miracles of mod- ance? The fact is, they don’t have So I find it incredible that you would ern medicine. health insurance, but they get health have, first of all, a minimal proposal on So to provide those miracles of mod- care. They get it at the most expensive prescription drugs coming forward, and ern medicine—otherwise known as pre- place, at the most expensive time; that then it would be coupled with the fact scription drugs—to our senior citizens, is, when they get sick. They end up in they are talking about cutting hos- we ought to be modernizing Medicare the emergency room, which is the most pitals and copays for home health care by adding a prescription drug benefit. expensive place at the most expensive to pay for it. This is an amazing situa- The administration says: Yes, we time because without preventative tion to me. want it. But they are saying, $190 bil- care, when the sniffles have turned into We need to be strengthening Medi- lion over 10 years. That is a drop in the pneumonia, the consequence is that the care, not undermining it. Many of the bucket. costs are so much higher. other parts of this proposal would turn The ACTING PRESIDENT pro tem- Ms. STABENOW. Will my colleague Medicare over to private insurance pore. Time for morning business has be willing to yield for a moment? companies. It would basically create a expired. Mr. NELSON of Florida. Certainly. situation where the drug companies or Mr. NELSON of Florida. Madam Ms. STABENOW. He raises such an insurance companies may believe they President, I ask unanimous consent important point about prevention. benefit but at the expense of our sen- that I may proceed for 5 additional That is why I know we care so much iors. minutes. about the issue of prescription drugs. I am going to yield a moment to my The ACTING PRESIDENT pro tem- By making prescription drugs available colleague from Florida, who I know pore. Is there objection? on the front end, that is part of that cares deeply about this subject. I thank Mr. REID. Madam President, that prevention, along with comprehensive him for coming to the floor today to would be fine. It may necessitate hav- care, making sure that people are able join me, as we rise to say to our Repub- ing the vote at 5 after rather than on to receive the medicine they need be- lican colleagues in the House of Rep- the hour. fore they get deathly sick and need to resentatives: Come join with us. Come Mr. LEAHY. I have no objection, pro- go into a hospital or need an operation. join with us to make sure we can, in vided we then still keep the period of fact, put the words into action. Words time prior to the next vote the same My colleague raises such an impor- are not enough. We need comprehen- amount of time and the vote will have tant point, and it is one of the reasons sive Medicare prescription drug cov- to slip 5 minutes. we are working so hard to make Medi- erage. We need to lower prices now. Mr. REID. I say to my friend from care available with prescription drugs I yield time to my colleague from Florida, I also got a nod from the mi- and to also lower the prices for every- Florida. nority that that is fine. We will ask one. Part of that prevention is making The ACTING PRESIDENT pro tem- that the vote be scheduled for 5 after 11 sure that seniors have access to the pore. The Senator from Florida. and that the Senator from Florida be medicine they need to prevent more se- Mr. NELSON of Florida. I thank the recognized for an additional 5 min- rious injuries and illnesses from hap- Senator from Michigan for yielding. I utes—I am sorry, 11:35. pening. want to underscore a number of the re- The ACTING PRESIDENT pro tem- Mr. NELSON of Florida. And com- marks the Senator from Michigan pore. Without objection, it is so or- prehensive health care reform has to made—this issue of health care, home dered. deal with the 40-plus million who don’t health care, and prescription drugs. The Senator from Florida. have health insurance by creating a I start my comments by saying, has Mr. NELSON of Florida. I thank my system whereby they are covered. That the Bush administration taken leave of colleagues. They are very generous then allows the principle of insurance its senses with regard to a number of with the time. I thank the Chair. to work for you because the principle these proposals? What the Senator I was talking about prescription of insurance is that you take the larg- from Michigan has just said in relation drugs and providing a realistic pre- est possible group to spread the health to copayments for home health care, scription drug benefit by modernizing risk, and when you do that, you bring home health care is something we want Medicare. We talked about a level in down the per-unit cost. Thus, any com- to encourage. Home health care is cer- the last campaign. This was a primary prehensive plan is going to have to tainly an alternative to being in a topic of concern. In every television de- have pooling of larger groups. It is nursing home from a cost standpoint. bate I had, this issue came up. The going to have to have consumer choice. It is certainly a cost incentive as an al- level we were talking about was in the It is going to have to have free market ternative to being in a hospital. But range of $300 to $350 billion for a pre- competition to get the most efficiency, home health care, if it is the right kind scription drug benefit over a 10-year and it is going to have to have uni- of medical care, is also a lot better period. versal coverage. quality of life for the patient than hav- The fact is, the escalating cost of I thank the Chair for the opportunity ing to be in a nursing home or a hos- prescription drugs is going to be more to join the debate on prescription pital, if that is the appropriate medical than that. Of course, with a budget drugs. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4089 CONCLUSION OF MORNING war on terrorism, support for strong other important matters. It was bad BUSINESS and effective law enforcement, or our enough when they utilized secret holds The ACTING PRESIDENT pro tem- effort to work collaboratively to lower and stalling tactics in considering pore. Morning business is closed. judicial vacancies. President Clinton’s moderate judicial For a bit of history, when the Demo- nominees, but now they bemoan the ju- f crats took over the full Judiciary Com- dicial vacancies that were created and EXECUTIVE SESSION mittee in July of last year, there were take no responsibility for creating 110 vacancies. My Republican col- these vacancies. They seek to blame leagues had not held any judicial con- others. It is really too bad that the NOMINATIONS OF LEONARD E. firmation hearings at all prior to the White House now appears to be reject- DAVIS TO BE U.S. DISTRICT time we took over, despite the fact ing all of our efforts—and they have JUDGE FOR THE EASTERN DIS- that there were a number of pending been significant—at reconciliation and TRICT OF TEXAS; ANDREW S. nominations when they first came into problem solving. Instead, the White HANEN TO BE U.S. DISTRICT power. Then there were, of course, House has joined the partisan attack. JUDGE FOR THE SOUTHERN DIS- nominations that President Bush sent The fact is, since last July, when we TRICT OF TEXAS; SAMUEL H. to the Senate in May. But as of July, took over the majority, we have been MAYS, JR. TO BE U.S. DISTRICT when we took over, the Republican- working hard to fill judicial vacancies. JUDGE FOR THE WESTERN DIS- controlled committee had not held any We have had more hearings on more ju- TRICT OF TENNESSEE; THOMAS hearings. Ten minutes after we took dicial nominees and confirmed more M. ROSE TO BE U.S. DISTRICT over the committee and I became judges than our Republican prede- JUDGE FOR THE SOUTHERN DIS- chairman, we announced hearings on a cessors ever did over any similar period TRICT OF OHIO number of the President’s nominees. of time. Actually, it is hard to know The ACTING PRESIDENT pro tem- I mention this to put in perspective when there was a similar period in pore. Under the previous order, the that we have tried to move quickly. We time. The Senate and the Judiciary hour of 10:35 having arrived, the Senate inherited 110 vacancies. Interestingly Committee had to work in the after- will now go into executive session and enough, most of the vacancies occurred math of the attacks of September 11 proceed to the consideration en bloc of while the Republicans were in control and we kept on meeting. We were in Executive Calendar Nos. 811, 812, 813, of the Senate, notwithstanding the fact this Chamber on September 12. We had and 814, which the clerk will report. that former President Clinton had the anthrax attacks on the Senate, on The assistant legislative clerk read nominated people to fill most of those Majority Leader DASCHLE and, I hate the nominations of Leonard E. Davis, vacancies. But those nominees were to say, one on me, as chairman of the of Texas, to be U.S. District Judge for never given a hearing. They were never Senate Judiciary Committee. The New the Eastern District of Texas; allowed, under Republican leadership, York Times reported it as the most Andrew S. Hanen, of Texas, to be U.S. to go forward. deadly of all. While working to fill ju- District Judge for the Southern Dis- Last Friday, when the Democratic dicial vacancies, we were also approv- trict of Texas; Senators were out of town on a long ing executive branch nominees—Attor- Samuel H. Mays, Jr., of Tennessee, to planned meeting, President Bush spoke ney General Ashcroft and others—and be U.S. District Judge for the Western about what he now calls the ‘‘judicial we were considering the Antiterrorism District of Tennessee; vacancy crisis.’’ I was disappointed Act. In my 28 years here, I have never Thomas M. Rose, of Ohio, to be U.S. that the White House speech writers known a time when the Judiciary Com- District Judge for the Southern Dis- chose a confrontational tone and tried mittee, or any committee, was hit with trict of Ohio. to blame the Democratic Senate ma- so many things that it had to do in The ACTING PRESIDENT pro tem- jority, which has actually been the ma- such a short period of time and under pore. Under the previous order, there jority in the Judiciary Committee for so much pressure. The Hart Building, will be 1 hour of debate on the nomina- only about 10 months. housing half of the Senators, was tions, to be equally divided between The fact is, we inherited 110 judicial closed down. At times, this building the chairman and ranking member of vacancies on July 10, 2001. The fact is, was closed down. Senator DASCHLE and the Judiciary Committee or their des- the increase in vacancies had not oc- I and our staffs were under actual ignees. curred on the watch of the Democratic physical attacks with the anthrax let- The Senator from Vermont. Senate majority but in the period be- ters. I mention that because this after- Mr. LEAHY. Madam President, today tween January 1995 and July 2001, when noon we are going to hold our 18th the Senate is considering, as the Chair the Republican majority on the com- hearing for judicial nominees within 10 has reported, four more of President mittee stalled President Clinton’s mod- months—unless, of course, the other Bush’s judicial nominees. We will begin erate nominees and overall vacancies side objects to our proceeding. voting on those nominees in about an rose by almost 75 percent—from 63 to By the end of today, the Senate will hour. 110. That is what we inherited because have confirmed 56 new judges, includ- I rarely predict the outcome of votes the other side would not hold hearings. ing 9 to the courts of appeals, within in the Senate. Having been here 28 Vacancies on the courts of appeals rose the last 10 tumultuous months—an all- years, I have had enough chances to be even more. They more than doubled, time record. wrong in my predictions, but I will pre- from 16 to 33. I am sorry that the White House and dict, with a degree of certitude, that I don’t expect President Bush to our Republican colleagues do not ac- these will be another four of President know these numbers or to be that in- knowledge our achievements but Bush’s judicial nominees that we will volved with them. But his staff does, choose, instead, to only criticize. I re- confirm. and when they write his speeches, they gret that the White House and our Re- These confirmations demonstrate, as ought to do him the favor of being publican colleagues will not acknowl- has been demonstrated with each of the truthful. They ought to know that the edge that the obstructionism of the Re- judges we have confirmed in the past Federal judiciary is supposed to be publican Senate majority between 1996 ten months, with the exception of one, independent and outside of partisan po- and 2001 is what created what they now that we have taken up nominees in the litical battles, and they should not term a ‘‘vacancy crisis.’’ Senate Judiciary Committee, that they have drawn him into one, which makes When they were engaged in those tac- have gone through the committee and, it even worse. tics, some Republicans defended their when they have reached the floor, have It is bad enough when Republicans in record then by arguing that 103 vacan- been confirmed. the Senate threaten and seek to in- cies was not a crisis. They actually did Democrats have demonstrated over timidate on this issue, but we are now that. They said in an op-ed piece that and over again that we are working being threatened with a shutdown of having 103 vacancies was not a crisis. with the President on fundamental the Senate’s business, a shutdown of They let it go to 110. issues that are important to this coun- committee hearings, a refusal to work The Democratic majority has cut try, whether it is our support for the together on unemployment, trade, and back those vacancies. We have not only S4090 CONGRESSIONAL RECORD — SENATE May 9, 2002 kept up with attrition, we have cut right-to-life issues than I and who have arose during the Clinton administra- them back. Under a Democratic Presi- taken different positions on the death tion and are a prime and unfortunate dent, some Republicans said 103 vacan- penalty. But I knew they would be fair legacy of recent Republican obstruc- cies was not a crisis, but now, with a judges. I will continue to do that. That tionist practices. Republican President, they say that 84 is our responsibility as Senators to our The confirmations of Justice Davis vacancies is a crisis—even as we con- country, to the judiciary, and to his- and Mr. Hanen will make the third and firm judges at a record pace. tory. fourth district court judgeships we I have been here with six Presi- With today’s votes, the number of have filled in Texas and the eighth and dents—Republican and Democrat. I Federal judges confirmed since the ninth judgeships we have filled overall have never seen a time when any White change in Senate majority 10 months in the Fifth Circuit since I became House has made the issue of the make- ago now totals 56. Under Democratic chairman last summer. Included among up of the Federal judiciary such a par- leadership, the Senate has confirmed those confirmations is the first new tisan issue. I am a lawyer, as is the dis- more judges in 10 months than were judge for the Fifth Circuit in 7 years. tinguished Presiding Officer. I have ar- confirmed by the Republican-con- On February 5, the Senate confirmed, gued cases before Federal courts, both trolled Senate in the 1996 and 1997 ses- by a vote of 93 to 0, Judge Philip Mar- at the district level and at the appel- sions combined. We have accomplished tinez of Texas to fill a judicial emer- late level. in less than 1 year what our prede- gency vacancy on the District Court One thing I have always known when cessors and critics took 2 years to do. for the Western District of Texas. On I walked into a Federal court in Amer- It took a staunchly Republican major- March 18, the Senate confirmed, by a ica is that it is an impartial court, ity 15 months working closely with the vote of 91 to 0, Robert (Randy) Crane to where you are not looked at as a Re- Reagan administration to reach this fill a judicial emergency vacancy on publican or a Democrat, whether you number of confirmations, confirma- the District Court for the Southern are rich or poor, whether you are white tions we have achieved in just 10 District of Texas. The Senate has con- or black, plaintiff or defendant, or lib- months. firmed Judge Kurt Engelhardt and eral, conservative or moderate. You Of course the ‘‘anniversary’’ of the Judge Jay Zainey to fill vacancies on can always go into a Federal court here reorganization of the Judiciary Com- the District Court for the Eastern Dis- and think that you will be treated on mittee after the shift in majority last trict of Louisiana. The Senate has con- the merits of your case. That is why I year is not until July 10, more than 2 firmed Judge Michael Mills to fill a va- regret the lack of balance and the bi- months from now. On July 10 last year cancy on the District Court for the partisan perspective that was lacking we inherited 110 judicial vacancies, in- Northern District of Mississippi. De- in the President’s speech and in the cluding 33 on the courts of appeals. spite the unfounded claim of some Re- comments of some of my colleagues. Since then, 30 additional vacancies, in- publicans that the Senate will not con- The Senate would do a disservice to cluding 5 on the courts of appeals have firm conservative Republicans, these the country if we allowed ideological arisen. This is an unusually large num- nominees were all confirmed and treat- court packing of the left or the right, if ber. Nonetheless, through hard work ed more fairly and expeditiously than we were to put a stamp on Federal and great effort, the Democratic ma- many of President Clinton’s nominees courts and say: ‘‘He who enters here, if jority in the Senate has proceeded with for the Federal Bench. you do not fit the ideological rubber 17 hearings involving 61 judicial nomi- Mr. Hanen was nominated to fill the stamp of this court, if you cannot re- nees, the committee has voted on 59 vacancy created by the retirement of spond and say you fit in a certain nominees, and, today, the Senate is set Judge Filemon B. Vela in May 2000. I mold, according to the speeches of the to hold its 18th hearing involving four recall just 2 years ago when Ricardo President’s advisers—a very narrow more judges and to approve four more Morado, who served as mayor of San ideological spectrum—forget about it new judges—bringing the working total Benito, TX, was nominated to fill this when you come in here.’’ If anybody to 56 confirmations in just 10 months. vacancy in the Southern District of would take time to read a history The number of judicial confirmations Texas and never received a hearing book, they would understand that it is over these past 10 months, 56, exceeds from the Republican-controlled Senate. the Senate’s role to ensure that the the number confirmed in 4 out of 6 full President Clinton nominated Ricardo judges it confirms meet the standards years under recent Republican leader- Morado on May 11, 2000, and his nomi- for impartiality and fairness. ship, during all 12 months of 2000, 1999, nation was returned to President Clin- A very popular President, a wartime 1997, and 1996. And we have confirmed ton without any action on December President, Franklin Delano Roosevelt, more judges at a faster pace than for 15, 2000. In filling a judicial emergency a revered President, tried to pack the all the years of Republican control. vacancy that has been pending for courts, and the Senate said: no, you Fifty-six confirmations exceeds the more than 700 days, Mr. Hanen will be cannot do that. Every historian will number of confirmations in the first the 17th judicial emergency vacancy tell you today: Thank goodness the year of the Reagan administration by a that we have filled since July and the Senate has stood up to a popular war- Republican Senate majority. It is al- 10th since the beginning of this session. time President and said you cannot most double the number of confirma- With the confirmation of Mr. Hansen, pack the courts because it would de- tions in the first year of the Clinton there will no longer be any vacancies stroy the independence of the Federal administration by a Democratic Senate on the District Court for the Southern judiciary. majority. And it is more than triple District of Texas, a Court which has I say this because sometimes we sit the number of judges confirmed for the faced an extraordinary caseload and here and think we have to decide on George H.W. Bush administration by a has the third highest number of filings issues just for today. We have a respon- Senate of the other party. In fact, with of criminal cases in the country. With sibility in the Senate to decide issues 56 confirmations for President George Judge Crane and Judge Hanen, we have for history’s sake and for the good of W. Bush, the Democratic-led Senate provided much needed help to this this country. I want to know that each has confirmed more judges than were court. one of us can go back to our constitu- confirmed in 7 of the 8 whole years of It was not long ago when the Senate ents and say that we have preserved an the Reagan administration, that Sen- was under Republican control, that it independent judiciary. That does not ator HATCH acknowledges as the all- took 943 days to confirm Judge Hilda mean just all one party. I have voted time leader in judicial appointments. Tagle to the United States District for hundreds upon hundreds of judges The confirmations of Justice Leonard Court for the Southern District of who stated that they were Republicans. Davis, Andrew Hanen, Samuel Mays, Texas. She was first nominated in Au- I have voted for hundreds of judges and Judge Thomas Rose today illus- gust 1995, but not confirmed until nominated by Republican Presidents. trate the progress being made under March 1998. When the final vote came, But I will not allow an ideological shift Democratic leadership, and the fair and she was confirmed by unanimous con- one way or the other on the courts. expeditious way in which we have con- sent and without a single negative I have voted for judges whom I know sidered nominees. Many of the vacan- vote, after having been stalled for al- have a different personal view on the cies that will be filled by today’s votes most 3 years. I recall the nomination of May 9, 2002 CONGRESSIONAL RECORD — SENATE S4091 Michael Schattman to a vacancy on Clinton. Judge of the sixth circuit, we held the first hearing the Northern District of Texas. He Michigan Court of Appeals was nomi- on a sixth circuit nomination in almost never got a hearing and was never nated in January 1997 and did not re- 5 years. And, with the confirmations of acted upon, while his nomination lan- ceive a hearing on her nomination dur- Judge Rose and Mr. Mays, we have now guished for over two years. These are ing the more than 1,500 days before her confirmed all the nominees to the dis- district court nominations that could nomination was withdrawn by Presi- trict courts in the sixth circuit for have helped respond to increased fil- dent Bush in March of last year. Kath- whom we have received nominations. I ings in the trial courts if acted upon by leen McCree Lewis, a distinguished note that the White House has still not the Senate over the last several years. lawyer from a prestigious Michigan law sent nominees for the six remaining va- In addition to these nominees, the Re- firm, also did not receive a hearing on cancies that exist on the district publican-led Senate failed to provide her 1999 nomination to the sixth circuit courts in the sixth circuit. any hearings on nominees to the Court during the years it was pending before As our action today demonstrates, of Appeals for the Fifth Circuit, which it was withdrawn by President Bush in again, we are moving at a fast pace to includes Texas, during the entire 6 March 2001. Professor Kent Markus, an- fill judicial vacancies with nominees years of their majority in the Clinton other outstanding nominee to a va- who have strong bipartisan support. administration. cancy on the sixth circuit that arose in Partisan critics of these accomplish- Many of the vacancies in the Fifth 1999, never received a hearing on his ments ignore the facts. The facts are that we are confirming President Circuit are longstanding. For example, nomination before his nomination was Bush’s nominees at a faster pace than despite the fact that President Clinton returned to President Clinton without the nominees of prior presidents, in- nominated Jorge Rangel, a distin- action in December 2000. cluding those who worked closely with guished Hispanic attorney, to fill a Some on the other side of the aisle fifth circuit vacancy in July 1997, Mr. a Senate majority of the same political held these seats open for years for an- party. Rangel never received a hearing and other President to fill, instead of pro- his nomination was returned to the The rate of confirmation in the past ceeding fairly on consensus nominees. President without Senate action at the 10 months actually exceeds the rates of Some were unwilling to move forward end of 1998. On September 16, 1999, confirmation in the past three presi- knowing that retirements and attrition President Clinton nominated Enrique dencies. For example, in the first 15 would create four additional seats that Moreno, another outstanding Hispanic months of the Clinton administration, would arise naturally for the next attorney, to fill a vacancy on the fifth 46 judicial nominees were confirmed, a President. That is why there are now circuit but that nominee never re- pace on average of 3.1 per month. In eight vacancies on the sixth circuit. ceived a hearing either. When Presi- the first 15 months of the first Bush ad- That is why it is half empty or half dent Bush took office last January, he ministration, judges were confirmed at full. withdrew the nomination of Enrique a pace of 1.8 judges per month. Even in Moreno to the fifth circuit. Long before some of the recent voices the first 15 months of the Reagan ad- The surge of vacancies created on the of concern were raised about the vacan- ministration, when a staunchly Repub- Republicans’ watch is being cleaned up cies on that court, Democratic Sen- lican majority in the Senate was work- under Democratic leadership in the ators in 1997, 1998, 1999, and 2000 im- ing closely with a Republican Presi- Senate. The Senate received Justice plored the Republican majority to give dent, 54 judges were confirmed, a pace Davis’s and Mr. Hanen’s nominations the sixth circuit nominees hearings. of 3.6 per month. In fewer than 10 the last week in January. Their ABA Those requests, not just for the sake of months since the shift to a Democratic peer reviews were not received by the the nominees but for the sake of the majority in the Senate, President committee until late March and early public’s business before the court, were George W. Bush’s judicial nominees April. Both participated in a confirma- ignored. Numerous articles and edi- have been confirmed at a rate of 5.6 tion hearing on April 25, were consid- torials urged the Republican leadership judges per month, a faster pace than ered and reported by the committee to act on those nominations. Fourteen for any of the past three Presidents. last week and are being considered and former presidents of the Michigan During the 61⁄2 years of Republican confirmed by the Senate today. State Bar pleaded for hearings on those control of the Senate, judicial con- Justice Davis has been serving as nominations. firmations averaged 38 per year—a pace Chief Justice of the Court of Appeals in The former chief judge of the sixth of consideration and confirmation that Tyler, TX, since 2000 and has extensive circuit, Judge Gilbert Merritt, wrote to we have already exceeded under Demo- experience practicing as a litigator be- the Judiciary Committee chairman cratic leadership over these past 10 fore State and Federal courts. Mr. years ago to ask that the nominees get months in spite of all of the challenges Hanen has legal experience working as hearings and that the vacancies be facing Congress and the Nation during a civil trial attorney and in private filled. The chief judge noted that, with this period and all of the obstacles Re- practice for over 20 years, and has been four vacancies—the four vacancies that publicans have placed in our path. As a leader in establishing programs to arose in the Clinton administration— of today, we have confirmed 56 judicial serve the needs of the disadvantaged. the sixth circuit ‘‘is hurting badly and nominees in fewer than 10 months. This The confirmations of Mr. Mays of will not be able to keep up with its is more than twice as many confirma- Tennessee and Judge Rose of Ohio, will work load due to the fact that the Sen- tions as George W. Bush’s father had fill two judgeships in the sixth circuit. ate Judiciary Committee has acted on over a longer period—27 nominees in 15 They will make the fourth and fifth none of the nominations to our Court.’’ months—than the period we have been district court judgeships we have filled He predicted: in the majority in the Senate. overall in the sixth circuit since I be- By the time the next President is inaugu- The Republican critics typically came chairman last summer, including rated, there will be six vacancies on the compare apples to oranges to the three earlier confirmations from court of appeals. Almost half of the court mischaracterize the achievements of Kentucky. will be vacant and will remain so for most of the last 10 months. They complain that The Sixth Circuit Court of Appeals 2001 due to the exigencies of the nomination we have not done 24 months of work in currently has eight vacancies, many of process. Although the President has nomi- the 10 months we have been in the ma- which are longstanding. Six of those nated candidates, the Senate has refused to jority. Ironically, with today’s con- vacancies arose before the Judiciary take a vote on any of them. firmations, we even meet that unfair Committee was permitted to reorga- Nonetheless, no sixth circuit hear- standard: Within the last 10 months we nize after the change in majority last ings were held in the last 3 years of the have confirmed more judges than were summer. None, zero, not one of the Clinton administration, despite these confirmed by the Republican majority Clinton nominees to those vacancies on pleas. Not one. Since the shift in ma- in the entire 1996 congressional session the sixth circuit received a hearing by jority the situation has been exacer- and in all of 1997 combined—we have the Judiciary Committee under Repub- bated as two additional vacancies have now exceeded their 2-year figure in 10 lican leadership. arisen. months. One of those seats has been vacant With our April 25 hearing on the A fair examination of the rate of con- since 1995, the first term of President nomination of Judge Gibbons to the firmation shows that Democrats are S4092 CONGRESSIONAL RECORD — SENATE May 9, 2002 working harder and faster on judicial utes of the reorganization of the Sen- and balances of our system of govern- nominees, confirming judges at a faster ate and held that hearing on the day ment that does not give the power to pace than the rates of the past 20 years. after the committee was assigned new make lifetime appointments to one The double standards asserted by Re- members. person alone to remake the courts publican critics are just plain wrong That initial hearing included two dis- along narrow ideological lines, to pack and unfair, but that does not seem to trict court nominees and a court of ap- the courts with judges whose views are matter to Republicans intent on criti- peal nominee on whom the Republican outside of the mainstream of legal cizing and belittling every achieve- majority had refused to hold a hearing thought, and whose decisions would ment of the Senate under a Democratic the year before. Within 2 weeks of the further divide our nation. The Senate majority. first hearing, we held a second hearing should not and will not rubber stamp The Republican attack is based on on judicial nominations that included nominees who would undermine the the unfounded notion that the Senate another court of appeals nominee. I did independence and fairness of our Fed- has not kept up with attrition on the try to schedule some district court eral courts. It is our responsibility to district courts and the courts of ap- nominees for that hearing, but none of preserve a fair, impartial and inde- peals. Well, the Democratic majority the files of the seven district court pendent judiciary for all Americans, of in the Senate has not only been keep- nominees pending before the com- all races, all religions, whether rich or ing up with attrition but outpacing it, mittee was complete. Similarly, in the poor, whether Democrat or Republican. and we have started to move the vacan- unprecedented hearings we held for ju- Some on the other side of the aisle cies numbers in the right direction— dicial nominees during the August re- have falsely charged that if a nominee down. By contrast, from January 1995 cess, we attempted to schedule addi- has a record as a conservative Repub- when the Republican majority took tional district court nominees but we lican, he will not be considered by the over control of the Senate until July could not do so if their paperwork was committee. That is simply untrue. 2001, when the new Democratic major- not complete. Had we had cooperation Take, for example, the nomination of ity was allowed to reorganize, Federal from the Republican majority and the Mr. Mays. Mr. Mays has been involved judicial vacancies rose by almost 75 White House in our efforts, we could in more than 50 political campaigns on percent, from 63 to 110. When Members have held even more hearings for more behalf of Republican candidates for were finally allowed to be assigned to district court nominees. Nevertheless, President, Senate, Governor, and local committees on July 10, we began with including our hearing scheduled for offices. He is a member of the Repub- 110 judicial vacancies. this week, in 10 tumultuous months, lican National Lawyers Association. He With today’s confirmations of Jus- the committee will have held 18 hear- was a delegate to the Republican Na- tice Davis, Mr. Hanen, Judge Rose, and ings involving 65 judicial nominations. tional Convention in 2000, and he was Mr. Mays, we have reduced the overall The Senate Judiciary Committee is on the Executive Committee of the number of judicial vacancies to 84. Al- holding regular hearings on judicial Tennessee Republican Party from 1986 ready, in fewer than 10 months in the nominees and giving nominees a vote through 1990. Thus, it would be wrong majority, we more than kept up with in committee, in contrast to the prac- to claim that we will not consider attrition and begun to close the judi- tice of anonymous holds and other ob- President George W. Bush’s nominees cial vacancies gap that grew so enor- structionist tactics employed by some with conservative credentials. We have mous under the Republican majority. during the period of Republican con- done so repeatedly. Under Democratic leadership, we have trol. The Democratic majority has re- The next time Republican critics are reduced the number of district court formed the process and practices used bandying around charges that the vacancies by nearly 30 percent and the in the past to deny committee Democratic majority has failed to con- overall number of judicial vacancies by consideraiton of judicial nominees. We sider conservative judicial nominees, I nearly 25 percent. are moving away from the anonymous hope someone will ask those critics Overall, in 10 months, the Senate Ju- holds that so dominated the process about Mr. Mays, or all the Federalist diciary Committee has held 17 hearings from 1996 through 2000. We have made Society members and Republican Party involving 61 judicial nominations and home State Senators’ blue slips public activists this Senate has already con- is scheduled this afternoon to hold its for the first time. firmed. I certainly do not believe that 18th hearing today involving four more I do not mean by my comments to President Bush has appointed 56 liberal judicial nominees. That is more hear- appear critical of Senator HATCH. Many judges and neither does the White ings on judges than the Republican ma- times during the 61⁄2 years he chaired House. jority held in any year of its control of the Judiciary Committee, I observed The committee continues to try to the Senate—twice as many as they that, were the matter left up to us, we accommodate Senators from both sides held during some full years. Recall would have made more progress on of the aisle. The court of appeals nomi- that one-sixth of President Clinton’s more judicial nominees. I thanked him nees included at hearings so far this judicial nominees—more than 50— during those years for his efforts. I year have been at the request of Sen- never got a committee hearing and know that he would have liked to have ators GRASSLEY, LOTT, SPECTER, ENZI, committee vote from the Republican been able to do more and not have to SMITH, and THOMPSON, six Republican majority, which perpetuated long- leave so many vacancies and so many Senators who each sought a prompt standing vacancies into this year. nominees without action. hearing on a court of appeals nominee Despite the new-found concern from I hope to hold additional hearings who was not among those initially sent across the aisle about the number of and make additional progress on judi- to the Senate in May 2001. judicial vacancies, no nominations cial nominees. In our efforts to address The whipsawing by the other side is hearings were held while the Repub- the number of vacancies on the circuit truly remarkable. When we proceed on licans controlled the Senate during the courts we inherited from the Repub- nominees that they support and on first half of last year. No judges were licans and to respond to what the whom they seek action, we are criti- confirmed during that time from President, Vice President CHENEY and cized for not acting on others. When we among the many qualified circuit court Senator HATCH now call a vacancy cri- direct our effort to trying to solve nominees received by the Senate on sis, the committee has focused on con- problems in one circuit, they complain January 3, 2001, or from among the sensus nominees. This will help end the that we are not acting in another. nominations received by the Senate on crisis caused by Republican delay and Since these multiple problems arose on May 9, 2001. obstruction by confirming as many of their watch while they were in the ma- The Democratic leadership acted the President’s judicial nominees as jority, it is a bit like the arsonist who promptly to address the number of dis- quickly as possible. complains that the local fire depart- trict and circuit vacancies that had Most Senators understand that the ment is not responding fast enough to been allowed to grow when the Senate more controversial nominees require all of his destructive antics. was in Republican control. The Judici- greater review. This process of careful I imagine that today we will be hear- ary Committee noticed the fist hearing review is part of our democratic proc- ing a refrain about the most controver- on judicial nominations within 10 min- ess. It is a critical part of the checks sial of President Bush’s nominees who May 9, 2002 CONGRESSIONAL RECORD — SENATE S4093 have not yet participated in a hearing. have seen the light of day in past dis- Court of Appeals. We confirmed Ninth Some of them do not have the nec- cussions of confirmations. Circuit nominees such as Judge Marcia essary home-State Senate support First, there is a seemingly immortal Berzon, Judge , Judge needed to proceed. Some will take a myth around here that it was the Re- Margaret Morrow, and Judge Willie great deal of time and effort for the publicans who created the current va- Fletcher, and I could go on down the committee to consider. In spite of all cancy crisis by stalling President Clin- line. These nominees were confirmed we have done and all we are doing, our ton’s nominees. That is purely and un- with my support as chairman. I can partisan critics will act as if we have mistakably false. The fact is, the num- tell you not a single one of these would not held a single hearing on a single ju- ber of judicial vacancies decreased by 3 be characterized, by any measure of dicial nominee. They will not acknowl- during the 6 years of Republican lead- the imagination, as nominees with po- edge their role in creating what they ership while I was chairman over what litical ideology within the moderate now call a judicial vacancies crisis. it was when the Democrats controlled. mainstream. I have personal political They will not apologize for their harsh There were 70 vacancies when I be- views almost completely opposite tactics in the 61⁄2 years that preceded came chairman of the Judiciary Com- them, but they were confirmed. the shift in majority. They will not ac- mittee in January of 1995 and President I applied no litmus test to them. I re- knowledge that the Democratic major- Clinton was in office, and there were 67 viewed them on their legal capabilities ity has moved faster on more judges at the close of the 106th Congress in and qualifications to be a judge, and than they ever did. They will not ac- December 2000 and the end of President that is all I am asking from the Demo- knowledge that we have been working Clinton’s Presidency. The Republicans crat majority. That is not what is hap- at a record pace to seek to solve the did not create or even add to the cur- pening. It is clear there is this whole- problems they created. rent vacancy crisis. sale, calculated, slow-walking of Presi- Each of the 56 nominees confirmed by Each Member of this Senate is enti- dent Bush’s nominees and particularly the Senate has received the unani- tled to his or her opinion on what hap- for the circuit court nominees. mous, bipartisan backing of the com- pened, but not to his or her own set of Last year on this very day, May 9, we mittee. Today’s confirmations make facts. Enron-type accounting should had 31 vacancies in the circuit courts the 53rd through 56th judicial nominees not be employed regardless of which of appeals. Today there are 29—2 fewer. to be confirmed since I became chair- liberal interest group is insisting on it We are not making a lot of headway on man last July. I would like to com- when we are talking about something these very important circuit court mend the members of the Judiciary as serious as our independent judiciary. nominations. Committee and our Majority Leader Second, there has been considerable I might add, yes, it took a lengthy Senator DASCHLE and Assistant Major- sleight of hand when it comes to the period to go through some of these ity Leader Senator REID for all of their true overall record of President Clin- nominees. Sometimes it was because hard work in getting us to this point. ton’s nominations. I worked well with objections were made; sometimes it The confirmation of the 56th judge in President Clinton. I did everything in was because of further investigation 10 months, especially these last 10 my power to help him with his nomina- that had to occur; sometimes it was months, in spite of the unfair and per- tions. One person does not control ev- just because I had to fight with my sonal criticism to which they have erything, but I did everything I knew own caucus to get them through. But each been subjected, is an extraor- how. they did get through. dinary achievement and a real example The undisputed fact is that Repub- The third point I wish to make is of Democratic Senators acting in a bi- licans treated a Democratic President that an illusion has been created out of partisan way even when some on the equally as well as they did a Repub- thin air that the Republicans left an other side have continued to make our lican. We did not use any litmus tests, undue number of nominees pending in a efforts toward progress as difficult as regardless of our personal views, committee without votes at the end of possible. whether it was abortion, religion, race, the Clinton administration. Again, I again invite the President to join or personal ideology. I am disappointed more Arthur Andersen accountings. with us to fill the remaining judicial to note that seems to be precisely what Get ready for the truth. vacancies as quickly as possible with is happening with the Democrat-con- There were 41 such nominees—I re- qualified, consensus nominees, nomi- trolled Senate now. peat, 41—which is 13 fewer than the 54 nees chosen from the mainstream and Let’s be honest and look at the facts. whom Democrats who controlled the not for their ideological orientation, During President Clinton’s 8 years in Senate in 1992 left at the end of the nominees who will be fair and impar- office, the Senate confirmed 377 judges, first Bush administration. That is 41 tial judges and will ensure that an essentially the same as, only 5 fewer under my chairmanship and 54 under independent judiciary is the people’s than, the all-time confirmation cham- the Democrat-controlled Senate in bulwark against a loss of their free- pion, , who had 382. 1992, at the end of the first Bush ad- doms and rights. President Reagan enjoyed 6 years of his ministration. The PRESIDING OFFICER. The Sen- own party controlling the Senate, My fourth point is, as you can see ator from Utah is recognized. while President Clinton had only 2. from this particular chart, I believe Mr. HATCH. Mr. President, I am President Clinton had to put up with 6 President Bush is being treated very grateful for this opportunity to talk years of a Republican-controlled Sen- unfairly. I will try to point this out. about some of the things that are going ate. President Reagan and the first Presi- on with regard to judges. This proves that the Republicans did dent Bush got all of their first 11 cir- I believe that my chairmanship of not let partisanship get in the way of cuit court nominees confirmed. All 11 the Senate Judiciary Committee and principle when it came to judicial were confirmed well within one year of the record we established during the nominations. True, there were indi- their nominations. This is a stark con- Clinton administration have been vi- vidual instances where a handful of trast to today: 8 of current President ciously attacked through the last num- nominees did not move, but it was Bush’s first 11 nominations are still ber of months. There seem to be a num- nothing like the systematic and cal- pending without a hearing, despite ber of illusions floating around Capitol culated stalling tactics being employed being here for a whole year at the end Hill relating to this committee’s han- by this Democratic Senate to stop of yesterday. All have their ABA rat- dling of judges during my tenure. President Bush’s highly qualified nomi- ings. All are rated either well qualified, I am here to set the record straight. nees. the highest rating possible, or quali- I am here to help everybody else know At this point, I should also add the fied, a high rating, and all but one have what that record is. Clinton nominees we confirmed were their home State Senators’ support, The Democrats are in power. They no mainstream moderates as some of and that one is a nomi- set the pace and agenda for such nomi- us have been led to believe. We con- nee for whom Senator EDWARDS has yet nation hearings, and they have a right firmed nominees—and I am going to to return a blue slip. to do so. I want to shine a candle mention four—in one circuit; all four I might add that the North Carolina through five points that never seem to were moved up to the Ninth Circuit nominee was nominated in the first S4094 CONGRESSIONAL RECORD — SENATE May 9, 2002 Bush administration. So he has been take on a life of their own and how nominees who might be in the same pending for over 10 years. John Rob- they can take away the life from their circumstance. erts—who is considered one of the two victims. I urge and call upon the Democratic or three greatest appellate lawyers in By the time I became chairman, I majority to show some leadership and this country by everybody who knows was determined to change the process put partisanship and the politics of intimately what he has done, both that had gotten so vicious. I worked to personal destruction behind. Give fair Democrats and Republicans—has been restore dignity back to the nomina- hearings and confirmations of qualified sitting here for 1 solid year. tions process both in the Committee nominees and keep the judiciary inde- My fifth point, shown in this chart, is and the Senate. I championed the cause pendent, as our forefathers intended. that President Clinton had the privi- of President Clinton’s Supreme Court Keep the left-wing interest groups out lege of seeing 97 of his first judicial nominee Ruth Bader Ginsburg, even of the nominations process. Do not let nominees confirmed. The average time though she was criticized by many as a them smear our people. from nomination to confirmation was liberal activist and was a former gen- I will introduce some of the nominees 93 days. Such a record was par for the eral counsel of the ACLU, nothing that that have been held hostage in the Ju- course until the current Senate leader- bothered me. I used my influence to diciary Committee this whole year. ship took over last year. President quiet her detractors. I helped secure , who is one of the most Reagan got 97 of his first 100 judicial her vote of 96 to 3. qualified and respected appellate law- nominations confirmed in an average Under my chairmanship, I ended the yers in this country, has argued 37 of 36 days. Again, he had 6 years of a practice of inviting witnesses to come cases before the Supreme Court. He Republican Senate to help him. Presi- into hearings to disparage the district just won a Supreme Court case 2 weeks dent H.W. Bush saw 95 of his first 100 court and circuit court nominees. In ago for environmentalists. That was a confirmed in an average of 78 days, and other words, I would not allow an out- historic property rights case. Miguel for most of his tenure he had a Demo- side group to come in. And there were Estrada, who is a true American suc- crat-controlled Senate. plenty of them that wanted to. I dealt cess story, arrived in this country from The ground rules obviously have been with the FBI background issues in pri- Honduras as a teenager, taught himself changed as the extreme interest groups vate conference with Senators, never English, graduated with high honors have reportedly instructed my Demo- mentioning them in public hearings. from both Columbia and Harvard Law cratic colleagues. As we sit here today, Now that is a practice I am concerned School, and has argued 15 cases before the Senate has confirmed only 52—only has not been followed. the U.S. Supreme Court—an excep- 52—not the 97 President Clinton got, It is a matter of great concern be- tional Hispanic young man. but only 52 of President Bush’s first 100 cause sometimes we do have to delay a Professor Michael McConnell, from nominees, and the average number of hearing. We may have to put off some my State of Utah, one of the greatest days to confirm these nominees is over things because of further investigation, legal minds of our generation, is sup- 150 and increasing every day. which may turn out be innocuous, or ported by top liberal legal scholars The reason I mention these five because of some serious charges that Laurence Tribe of Harvard, Cass points is that there are some people were raised, or because of something Sunstein of Chicago Law School, and who read the title of what we are doing that has arisen that needs to be dis- many others. He is widely known to today, and they hear what my col- cussed. Anytime somebody indicates possess all the intelligence, tempera- leagues have to say, and ignore the fact we have to put off a hearing because of ment, and personal qualities that can that, of President Bush’s first 11 nomi- an FBI report—that essentially comes make for an outstanding judge. nations, only 3 of them have gotten down to telling everybody in the world. , a top legal advocate through. Those 11 were made on May 9 At the very least, it makes the public who graduated first in his class at the of last year. There is no historical jus- draw the conclusion that there must be Ohio State College of Law, served as a tification for blocking President Bush’s something wrong with this nominee. Of law clerk to the U.S. Supreme Court. choices for the Federal judiciary. First, course, in most cases there is not. There they are: John Roberts, Miguel I do not want to accuse my colleagues Now I told interest groups, even the Estrada, Michael McConnell, and Jef- on the other side of doing that. ones with which I agree and whose frey Sutton on the top of this chart. Second, there simply is no historic work I like in other areas, that they I will go a little bit further. Then justification for blocking President were not welcome to come in and there is Deborah Cook at the Sixth Cir- Bush’s first 11 or first 100 judicial smear Clinton nominees. I refused to cuit, who has overcome formidable ob- nominees. Nor is there any truth to the alter the 200-year tradition of deference stacles in her personal life and legal myth that the vacancies we have today to Presidents by shifting the burden career, including breaking a glass ceil- were caused by the Republican Senate. onto nominees, and I informed the ing when she became the first female They were caused by retiring judges. In White House of problems that could, if attorney in her law firm. She has other words, anything conjured up made public, lead a nominee to a served with distinction on the Ohio from the past and dressed up as a rea- humiliating vote so that the nominee State Supreme Court. son to thwart the requests of President could withdraw rather than face that Then there is Judge . Bush should be dismissed. fate. These are the reasons we were He has a long and admirable record in Now I want to switch gears a little able to confirm 377 Clinton nominees. public service. He was chief of staff of bit and say something I consider to be Anybody who thinks they were with- the Senate Judiciary Committee, and personal, even though it has had—and in the mainstream did not look at he is now a judge on the Federal dis- still could have—a lot of bearing on those nominees. We included some trict court. He already knows his way this process. Back before I became pretty contentious ones, such as the around the Fourth Circuit Court of Ap- chairman of the Judiciary Committee ones I have mentioned earlier in my re- peals where he has been nominated to in 1995, I was personally affected by marks, and I only mentioned four be- serve because he has already been des- several events that occurred under the cause they were from the one circuit. I ignated by that court to hear over 30 of auspices of advise and consent. These could mention many. If we had applied their cases and write a number of opin- events included the mistreatment of the same litmus tests as our colleagues ions. I should also note that Judge nominees including Sessions, Bork, are applying to President Bush’s Shedd has the bipartisan support of Thomas, Ryskamp, Rehnquist, and oth- judges, very few of President Clinton’s both home State Senators. ers. In fact, even Justice Souter was nominees would have gotten through. Then there is of not treated really well when he came I worked to get them confirmed. I Texas, who is a litigator with 17 years’ before the committee, and the main stuck my neck out for them, and I still experience and currently serving her reason was they thought he might be believe to this day I did the right 7th year as a justice on the Texas Su- anti-abortion. thing, even though I am increasingly preme Court. She is only the second I saw how politics can affect the pessimistic that someone on the other woman even to sit on that bench. She human spirit both in success and de- side of the aisle will step up to the has been sitting, as have all these oth- feat. I saw how baseless allegations can plate and reciprocate for any Bush ers, for over a year now. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4095 Last but certainly not least, there is mittee, has been here for almost a year Baker, Donelson, Bearman & Caldwell. Judge Terrence Boyle, a judge with 14 and will not get a vote today; and Mr. Mays became a partner in 1979. His years’ experience, who is a thoughtful, Judge Michael McConnell, who some law practice ranged from trial work— fair, and nonpartisan jurist who has say is probably one of the two or three where he represented clients such as been waiting for a hearing for 11 years, greatest legal geniuses in the country, small, family-owned businesses in liti- ever since the first President Bush is still without a hearing—and I am gation matters—to banking and health nominated him in 1991, and who has ranking member. care transactions. been designated to sit with the Fourth This is bothering me to a large de- In 1995 Mr. Mays entered government Circuit Court during 12 terms and has gree because I do not treat my col- service as Tennessee Governor written more than 20 circuit court leagues on the other side the way they Sunquist’s legal counsel. Here his re- opinions. That is how much they have are treating our nominees. I believe it sponsibilities included reviewing all honored him. He was nominated, as I has to change. I will do everything in legislation requiring the Governor’s ap- say, over 10 years ago and still has not my power to change it. Should we get proval; reviewing all clemency matters had a hearing. back in the majority, I will move to do and extraditions; advising the Gov- These are all superbly qualified, a lot better job than has ever been done ernor on matters of judicial adminis- mainstream jurists who are committed before and, hopefully, we can correct tration; reviewing and recommending to the principle that judges should fol- some of the ills that we have all com- all judicial appointments; and super- low the law and not make it up from plained about in the past. vising, on behalf of the Governor, all the bench. They are also President We have a 100-person body and it is litigation to which the State of Ten- Bush’s selections. They enjoy bipar- not easy sometimes to get people nessee was a party. tisan support. They are not ideologues. through. I have to say, in comparison, In 1997, recognizing Mr. Mays’ hard The Senate Democrats who are block- we treated President Clinton’s nomi- work and legal talents, Governor ing them from having hearings should nees fairly. There are some excep- Sunquist promoted him to Deputy to treat these nominees and the President tions—I have to admit; there always the Governor and Chief of Staff. As who nominated them with fairness. I are—whether the Democrats or Repub- Chief of Staff, Mr. Mays became, in ef- do not think the process is fair now licans are in control of the committee. fect, the Chief Operating Officer of a and have to speak out. Look at the figures and facts. They State with approximately $19 billion in It is time for this Senate to examine were treated very fairly. annual revenue. After leaving govern- the real situation in the Judiciary It is interesting to note how much ment service in 2000, he rejoined his old Committee rather than to listen to the my colleagues have changed their tune firm of Baker, Donelson. more inventive ways of spinning. We in the last year or so. Moments ago, No description of Mr. Mays’ life have lots of work to do. Let us put the my colleague criticized our President, would be complete without mentioning statistics judo game behind us and get President Bush, for using the phrase his active membership on numerous to work. We have been elected to do a ‘‘judicial vacancy crisis.’’ My colleague committees and boards, whose purpose is to enrich the lives of the people of job and let’s do it instead of making up called this ‘‘confrontational.’’ Yet in Memphis. excuses for why we are not doing it. June of 1998, the Democrat leader of Mr. Mays is eminently qualified to be If we look at these eight nominees, the Senate said that the ‘‘vacancy cri- a member of the Federal bench. I com- John Roberts, unanimously well quali- sis is the most serious problem.’’ Has ment President Bush for another ex- fied by the gold standard according to the phrase ‘‘judicial crisis’’ taken on a traordinary judicial nominee, and I sin- our colleagues on the other side, the new connotation, or is this simply an- cerely hope that the Senate will begin American Bar Association; Miguel other example of the shoe being put on to deal with the growing judicial crisis Estrada, unanimously well qualified by the other foot? I don’t think we should that this Nation is facing. the American Bar Association; Michael be tit for tat in this body. Yes, we can Madam President, I support the nom- McConnell, unanimously well qualified always point to some nominees you ination of Andrew Hanen to be U.S. by the American Bar Association; Jef- wish could have gotten through, District Judge for the Southern Dis- frey Sutton, a majority qualified, a mi- whether JOE BIDEN was chairman or trict of Texas. nority well qualified; Deborah Cook, whether ORRIN HATCH was chairman. I It should be noted that in 1992 Mr. unanimously qualified; Priscilla Owen, know we both worked very hard to get Hanen was nominated to the same posi- unanimously well qualified; Dennis them through. tion by the first President Bush, but, Shedd, a majority of the ABA com- I am concerned. I don’t think Presi- regrettably, he was not given a hearing mittee found him well qualified; Ter- dent Bush is being treated fairly. I by the Democratic Senate. Still, as was rence Boyle, unanimously qualified. don’t think the courts are being treat- the case 10 years ago, I am confident he There is no reason why they should ed fairly. I don’t think litigants are will serve with distinction on the Fed- have sat there for 1 solid year. being treated fairly when half of a cir- eral district court. I think the American people are dis- cuit in the Sixth Circuit is without Following graduation from Baylor appointed; they want the Senate to judges. That means the civil cases vir- University School of Law, where he fin- help, not hinder, President Bush. I urge tually cannot be heard because they ished first in his class, Mr. Hanen my friend across the aisle to focus on have to go to the criminal cases first, clerked for a year with Chief Justice this situation and step up the pace of and many of those cannot be heard. Joe Greenhill of the Texas Supreme hearings and votes and do what is right Justice delayed is justice denied. Court. In 1979 Mr. Hanen joined the for the country. That is happening all over our country. firm of Andrews & Kurth, handling Having said that, I understand there I believe we have to change that. medical malpractice defense cases, are only four of the six judges pending Madam President, I support the con- commercial litigation, products liabil- on the floor that will be voted on firmation of Samuel ‘‘Hardy’’ Mays, ity, and legal malpractice defense today. Unfortunately, one of them who Jr., to the United States District Court cases. In addition, he represented cli- will not be voted on is a judge we rec- for the Western District of Tennessee. ents in cases in the areas of FELA, ommended from Utah who is truly be- I have had the pleasure of reviewing ERISA, lender liability, civil rights, loved out there and by many through- Mr. Mays’ distinguished career, and I and antitrust. out the country. He is one of the finest can say without hesitation that he will Following his unsuccessful nomina- law professors in the country. He came be an excellent addition to the Federal tion to the Federal bench in 1992, Mr. out of the committee with a vote of judiciary. Hanen, along with two others, opened only four of our committee voting Mr. Mays graduated in 1961 from Am- his own law firm, which is now com- against him. Whenever members of the herst College and attended Yale Law posed of 17 employees. Mr. Hanen has committee had judges, I did everything School, where he served on the edi- represented clients in contract, patent in my power to put them to the head of torial board of the law journal. After litigation, toxic tort, mass tort, and the line and to get them through. receiving his Juris Doctorate, Mr. personal injury matters. These two judges, Judge Paul Cassell, Mays began an over-20-year association Mr. Hanen is a leader in the Houston who is already approved by the com- with the law firm presently known as Volunteer Lawyers Program. While S4096 CONGRESSIONAL RECORD — SENATE May 9, 2002 serving as president of the Houston Bar this period, my colleague and good administration. In those six years, the Association, Mr. Hanen has led effort friend, Senator DEWINE, was also a number of vacancies in the Federal ap- to raise funds for additional pro bono prosecutor for Greene County. Senator peals courts more than doubled, from work. Mr. Hanen has also been active DEWINE discovered that one of his su- 16 to 33. Today, that vacancy level is in promoting and instituting pro bono periors had bugged his office. Senator down from 33 to 29. legal services for AIDS and HIV-af- DEWINE took the only honorable action To sum up, I believe that when it fected individuals. He volunteers with available and resigned in protest. comes to judges, we are doing our job Habitat for Humanity, ADR programs, Judge Rose also resigned because he carefully, and we are doing our job and various nonprofit groups. felt the office’s integrity had been vio- well. I am very proud of this nominee and lated. Clearly, this shows that Judge Mr. THOMPSON. Madam President, I I know he will make a great judge. Rose, who was not involved in this in- am very pleased that the Senate is con- Madam President, I support the nom- cident in any manner, is a man who sidering the nomination of Samuel ination of Leonard E. Davis to be will put the interests of justice and Mays, whom everybody in Tennessee United States District Judge for the fairness above his own personal gain. knows as ‘‘Hardy,’’ to be a U.S. District Eastern District of Texas. Judge Rose is also a man deeply de- Judge for the Western District of Ten- I have had the pleasure of reviewing voted to his community. After leaving nessee. Judge Davis’ distinguished legal ca- the prosecutor’s office, he became I am grateful to Chairman LEAHY and reer, and I have concluded, as did Chief Juvenile Court Referee for the the Judiciary Committee and its staff President Bush, that he is a fine jurist Greene County Court of Common for moving Mr. Mays’s nomination so who will add a great deal to the Fed- Pleas. In this position, he was respon- quickly. The need is quite urgent. The eral bench in Texas. sible for working with delinquent, ne- Western District of Tennessee typically Upon graduation from Baylor Univer- glected and abused children. Currently, has four judges assigned to hear cases sity School of Law, where he finished he is a Board Member of the Xenia Ro- in Memphis, along with a fifth who first in his class, Leonard Davis joined tary Club and a member of three local hears cases in Jackson. Only two of the Tyler, TX, law firm of Potter, Chambers of Commerce. those four seats are currently filled Guinn, Minton & Roberts. He became a Later, under a new Greene County with judges hearing cases, and the partner in 1979 and was managing part- Prosecutor, Judge Rose became Chief nomination of one of those two judges ner from 1983 to 1990. Assistant Prosecutor in Charge of the to the Court of Appeals is now pending At the outset of his legal career, Civil Division. In 1991, he rose to the before the Senate. A third seat, the one Judge Davis concentrated on insurance bench as a Judge for the Greene Coun- to which Mr. Mays has been nomi- defense work. He also handled a diverse ty Common Pleas Court, General Divi- nated, is vacant. The fourth judge is caseload including cases involving sion. Currently, Judge Rose handles ap- currently on disability leave. So mov- worker’s compensation, section 1983, proximately 400 civil and 400 felony ing Mr. Mays’s nomination so promptly automobile accidents, deceptive trade criminal cases annually. is imperative for litigants with cases practices, products liability, and mal- Judge Rose’s nomination is yet an- pending in the Western District. practice. Later, as his practice devel- other example of the quality of judicial Hardy Mays is very well known to oped, he focused primarily on commer- nominations that President Bush is the bar of the Western District of Ten- cial litigation. In addition, Judge Davis making. I believe that we should all nessee. He was born and raised in Mem- was appointed to defend several follow the example set by the President phis. He graduated from Amherst Col- indigents in Federal and State crimi- when he said that it is time to provide lege in 1970 and in 1973 from Yale Law nal cases involving murder, aggravated fair hearings and prompt votes to all School, where he served as an editor of assault, interstate transportation of nominees, no matter who controls the the law journal. stolen cattle, and tax evasion. Senate or the White House. This is He returned home to Memphis, where Judge Davis served on the Texas what I tried to do when I was chair- he joined the law firm that is today State Ethics Advisory Commission man, and it is a standard to which we known as Baker, Donelson, Bearman & from 1983–88 and on the State Judicial should now aspire. Caldwell, at which he practiced law for Districts Board from 1988–92. Judge Mr. EDWARDS. Madam President, I over 20 years, and which was also the Davis was appointed by then-Governor wanted to say just a few words on this firm of our former colleague, Senator George W. Bush as Chief Justice of the subject of judicial nominations. Howard Baker, now U.S. Ambassador Twelfth Court of Appeals in Tyler, TX, Not everyone realizes how important to Japan. Although Mr. Mays started where he has served since 2000. the Federal courts are. They are ex- his practice as a tax and banking law- I have every confidence that Judge traordinarily important. Once judges yer, he soon shifted his focus to litiga- Leonard E. Davis will serve with dis- are confirmed by the Senate, they hold tion. He represented clients before the tinction on the Federal district court lifetime appointments. Although the local, State, and Federal courts in west for the Eastern District of Texas. focus tends to be on the Supreme Tennessee in a wide variety of civil Madam President, I rise in support of Court, the reality is that well over 99 cases. While his practice continued to the confirmation of Judge Thomas percent of all cases never reach that evolve into one primarily concentrated Rose to the U.S. District Court for the court. These cases are decided by dis- on banking law issues, Mr. Mays con- Southern District of Ohio. trict judges and circuit judges who tinued to try cases until 1985. During After reviewing Judge Rose’s distin- most Americans have never heard of. his time as a litigator, Mr. Mays tried guished legal career, I can state with- The final decisions made by these over 25 cases to judgment. Many of out reservation that he is a man of in- judges resolve the most fundamental these cases were in Federal court. His tegrity and honesty and will be a wel- questions about our civil rights and in- peers recognized his standing at the come addition to an already taxed judi- dividual rights. Every single day, these bar and selected him as a member of ciary. judges make decisions that literally the board of directors of the Memphis Judge Rose graduated from Ohio Uni- make and break people’s lives. Bar Association, a position he held versity in 1970 with a Bachelors of So it is critical that we examine from 1985 to 1987. Science in Education. He then went on nominations to the Federal bench very In 1987, he became managing partner to receive this Juris Doctorate from carefully, particularly when those of his firm, a move that forced him to the University of Cincinnati College of nominations raise serious questions. give up litigation. He helped turn the Law in 1973. Of course, being deliberate does not firm into a regional law firm, opening After graduating law school, Judge mean being dilatory. But Madam Presi- offices in Nashville and Chattanooga. Rose worked as a Greene County As- dent, the truth is that the Senate is He gave up his position as managing sistant Prosecutor while maintaining a confirming large numbers of nominees. partner of the firm in 1988 and returned private practice. As a prosecutor, his As of today, the Senate will have con- to the full-time practice of law. By responsibilities included addressing a firmed 56 judges, including 9 to the then, his practice had again evolved wide range of issues from juvenile mat- courts of appeals. That is a faster pace into one focused on health law and re- ters to capital murder cases. During than in the last 6 years of the Clinton lated practice areas. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4097 In 1995, Mr. Mays joined the adminis- nees including one for the Ninth Cir- tailing programs promoting racial and tration of Governor Don Sundquist as cuit Court of Appeals. Our record on ethnic diversity in our schools and his legal counsel. Two years later, he confirmations is good. workplaces; and overturned laws pro- became the Governor’s chief of staff. In So it has been a continual surprise to tecting workers. Balance in each of the these positions, he served the people of me that my colleagues on the other branches of our government is a key Tennessee ably and tirelessly. He was side of the aisle have complained day precept of our democracy, and balance highly regarded during his tenure with after day, that the Senate was not con- in the Federal judiciary is, in my opin- Governor Sundquist. firming judges. This is particularly ion, crucial to ensure that the Amer- In 2000, he returned to his former law surprising as those doing the com- ican public maintains its unquestioned firm, where he has continued to prac- plaining sit beside me week after week respect for and deference to the rulings tice law focused on representing health as we continue to hold hearings and of our Federal judiciary. care providers. vote these nominees out of the Com- Americans in huge numbers favor re- Mr. Mays is highly regarded by the mittee. productive choice, and the right to bar for his intellect, legal ability, fair- The problem is not that the Senate work in a safe workplace free from in- ness, and his unfailing good humor. I has not been confirming judges. Any jury and regardless of physical dis- am confident that he has the ideal tem- reasonable examination of the record ability. They believe in the need for perament to serve in the stressful posi- makes clear that the Committee is government to take steps to protect tion of a trial judge. Mr. Mays enjoys working hard to confirm more judges our environment for future genera- broad, bipartisan support. I know the than in past years. We have confirmed tions, and to protect consumers from Judiciary Committee has heard from a many strong Republican judges who unfair and deceitful business practices. number of prominent Democrats, in- are impartial, ethical, and who bring to These are the values that are placed in cluding Memphis Mayor Willie their decision making an open minded- jeopardy by extreme nominees. It is Herenton; President Clinton’s U.S. At- ness to the arguments presented. My the responsibility of the Senate and of torney in Memphis, Veronica Coleman- own experience in reviewing the record the members of the Judiciary Com- Davis; former Tennessee Governor Ned of nominees who have come before me mittee to ensure that the people we McWherter; and our former colleague, makes clear that judges who are quali- seat on the Federal bench share the Senator Harlan Matthews, in support fied, moderate candidates, who are held same respect for these rights. of the nomination of Mr. Mays. in high esteem by lawyers in their The reality is appointments to the In addition to his record of profes- community, and who have a record of judiciary have become more politicized sional accomplishments, no recitation fair-minded decision making will be over the past 20 years. If the Senate is of Mr. Mays’s career would be complete promptly confirmed. truly interested in filling all the out- without reference to his extraordinary The problem is that a few controver- standing vacancies as quickly as pos- commitment to his community. While sial nominees have not yet received sible, we must work together to find I will not take the time to detail the hearings. President Bush last year nominees who can help to correct the full scope of his community involve- nominated individuals to the Circuit current imbalance on the courts. We ment, including his significant polit- Court of Appeals who are among the need to see more cooperation and con- ical activities, I do want to focus on most conservative the Senate has ever sultation between the White House and one aspect of his involvement with his considered. Many of these nominees the members of the Senate, and a will- neighbors: the arts in Memphis would have long records of decisions and ingness to compromise on nominees be far poorer without his contribu- writings that are far outside main- who do not present a threat to values tions. He serves or has served as a di- stream thinking. They have records and rights that mainstream Americans rector of the Memphis Orchestra, Opera that call into question their commit- accept and welcome. We have an amaz- Memphis, the Memphis Ballet, the ment to upholding precedent, and to ing pool of talent in our legal commu- Playhouse on the Square, the Decora- respecting individual rights. When nity, and it would be a simple matter tive Arts Trust, and the Memphis questions like these are raised about a to nominate more mainstream nomi- Brooks Museum, and the Memphis Bo- nominee, the Committee must under- nees. tanic Garden. take a thorough examination of the It is my hope that as we continue to Hardy Mays is an excellent choice to nominee, and that takes time. work to fill existing vacancies, that it serve as Federal district judge in Mem- The Supreme Court hears fewer than will become more possible to work to- phis. I appreciate the President’s deci- 100 cases per year and circuit court gether to find candidates for nomina- sion to nominate him, and I am grate- judges make the final decisions in hun- tion who unite, not who seek to divide. ful to the Judiciary Committee for dreds of cases a year that set precedent Mr. VOINOVICH. Madam President, considering his nomination so prompt- for thousands of additional cases. Sen- today, May 9, 2002, marks one year to ly. I urge my colleagues to support his ate confirmation is the only check the date that I was at the White House nomination. upon federal judges appointed for life. I when President Bush announced the Ms. CANTWELL. Madam President, take seriously the responsibility to nominations of Deborah Cook and Jef- the Senate and the Judiciary Com- carefully review these nominees and to frey Sutton for the Sixth Circuit Court mittee have been under Democratic reflect upon the power they will hold of Appeals. However, one year later, no leadership for 10 months. During that to affect the lives of ordinary Ameri- action has been taken on these Ohio- 10 months, Chairman LEAHY and the cans in the workplace, the voting ans, as well as five other nominees to Judiciary Committee staff have booth, and in the privacy of their the Sixth Circuit. In fact, the entire ju- worked overtime to establish a steady home. dicial nominee process has been egre- process to fill judicial vacancies. In the When the Senate confirms nominees giously delayed over this past year. 10 months, each one of my Democratic to fill the remaining existing vacan- There are currently over 96 vacancies colleagues has taken time from their cies, as I am confident that it will, 11 in the Federal courts, enough that the busy schedules to chair multiple nomi- of the 13 Circuit Courts will be domi- Chief Justice of the Supreme Court, nations hearings. nated by conservative jurists. These William Rehnquist, referred to the va- Hearings on nominees began less same courts have increasingly issued cancy crisis is ‘‘alarming.’’ It certainly than a week after the Senate reorga- rulings that have curtailed the power is alarming to note that these vacan- nized, and have continued on a month- of Congress to enact laws to protect cies exist despite the fact that Presi- ly, or twice monthly basis, right up to women from domestic violence, pre- dent Bush has nominated nearly 100 this afternoon. As you have heard re- vent discrimination based on disabil- judges in his first year of office, more peatedly today, in 10 months we have ities, and to protect the environment. judges than any President in history. confirmed 52 judges, and have 4 more Rulings have increasingly limited the At the same point in his administra- awaiting confirmation today. We have ability and the opportunity for women tion, President Clinton had nominated held hearings on 13 Court of Appeals to exercise their right to reproductive only 74 judges. In addition, former nominees. This afternoon, I will con- freedom; limited the opportunity for President Bush had nominated 46 and vene a hearing on four additional nomi- education and advancement by cur- President Reagan had nominated 59. S4098 CONGRESSIONAL RECORD — SENATE May 9, 2002 Despite this overwhelming number of gation. Jeffrey Sutton graduated first to the Federal bench. But unfortu- nominees, as of April 12, 2002, the Sen- in his law school class, followed by two nately, many of these outstanding indi- ate has only confirmed 42 of President clerkships with the United States Su- viduals are still waiting for a hearing Bush’s 98 nominees. More egregious is preme Court, as well as the Second Cir- by the Senate Judiciary Committee, I the fact that only 7 of President Bush’s cuit. As he was the State Solicitor of believe 47 nominees are still pending. 29 nominees to the circuit courts have Ohio when I was Governor, I worked We need to move these judicial nomi- been confirmed. No circuit has felt this with him extensively when he rep- nations quickly, because they are all delay more powerfully than the Sixth. resented the Governor’s office, and in good men and women. Since 1998, the number of vacant my judgment, he never exhibited any I want to talk about a few facts and judgeship months in the Sixth Circuit predisposition with regard to an issue. figures. We’ve heard a lot of numbers has increased from 13.7 to 60.9 and is He has contributed so much and his being thrown around by both the currently the highest in the Nation. compassion for people and the law is so Democrats and the Republicans about The median time from the filing of a evident. In my opinion, Jeffrey Sutton who delayed who the longest, who de- notice of appeal to disposition of the is exactly what the federal bench nied hearings to whom, and on and on, case in the Sixth Circuit was 15.3 needs: a fresh, objective perspective. so we are left in a numbers daze. I get months in 2001, well above the 10.9 Jeffrey Sutton’s qualifications for dizzy from all the numbers. But this months national average, and second in this judgeship are best evidenced what I think is the bottom line. When the Nation only to the Ninth Circuit. through his experience. He has argued President Bush Sr., left office, he had Clearly the Sixth Circuit is in crisis nine cases before the United States Su- 54 nominees pending with a Democratic and the reason is the inaction of the preme Court, including Hohn v. United Senate. The vacancy rate was 11.5 per- Senate Judiciary Committee. States, in which the Court invited Mr. cent. When President Clinton left of- When I talk to Ohio practitioners, I Sutton’s participation, and Becker v. fice, he had 41 nominees pending with a hear many complaints about the over- Montgomery, in which he represented a Republican Senate. The vacancy rate use of visiting judges throughout the prisoner’s interests pro bono. He has was 7.9 percent. So the way I see it, Sixth Circuit. One lawyer told me that also argued twelve cases in the Ohio Senate Republicans gave the Demo- one of the visiting judges on his panel Supreme Court and six cases in the cratic President a better deal. The was from as far away as the Western Sixth Circuit. While his participation other bottom line is that a year, 365 District of Louisiana. In fact, the Sixth in controversial cases has, in some in- days, after President Bush nominated Circuit has the highest number of vis- stances, led to a clouding of his quali- his first 11 circuit court nominees, only iting judges providing service: 59 vis- fications and accomplishments, what 3 have been confirmed. By contrast, iting judges participated in the disposi- his detractors fail to mention is how he each of the 3 previous Presidents en- tion of 1,626 cases for the 12-month pe- argued pro bono on behalf of a blind joyed a 100 percent confirmation rate riod ending September 30, 2001. student seeking admission to medical on their first 11 circuit nominees, and It is time to put a stop to this logjam school or how he filed an amicus curiae they were all confirmed within a year. of Sixth Circuit nominees and allow brief with the Ohio Supreme Court in The way I see it, President Bush is get- our overburdened appeals courts to op- support of Ohio’s Hate Crimes law on ting the short end of the stick with his erate free of partisan wrangling. In behalf of the Anti-Defamation League, nominees. particular, it is time to give Justice the NAACP and the Ohio Human I’d like to talk about some of Presi- Deborah Cook and Jeffrey Sutton a Rights Bar Association. Jeffrey Sutton dent Bush’s nominees, specifically the hearing, and allow their nominations should not be criticized on assumptions 8 nominees of the 11 original circuit to be considered by the full Senate. that past legal positions reflect his per- court nominees sent up last May who In all candor, I can not think of two sonal views. Instead, he should be are still pending without action. Today individuals more qualified or better lauded for always zealously advocating a full year has gone by, 365 days, with prepared to assume the solemn respon- his client’s interests, no matter the only 3 of President Bush’s first 11 sibilities of the Sixth Circuit bench issue. I know Jeff. He is a man of ex- nominees having seen any action at all. than Deborah Cook and Jeffrey Sutton. ceptional character and compassion. And of those 3, I understand 2 were I have had the privilege of knowing For these and many other reasons, Jef- judges previously nominated by Presi- Deborah Cook for over 25 years. frey Sutton will be an unquestioned dent Clinton. The Senate needs to do Throughout, I have found her to be a asset to the Federal Bench. better than that. These individuals of woman of exceptional character and in- As you may know, the Sixth Circuit exceptional experience, intellect and tegrity. Her professional demeanor and is in desperate need of judicial appoint- character deserve to be treated fairly thorough knowledge combine to make ments. Fourteen judicial vacancies now and considered by the Senate prompt- her truly an excellent candidate for an exist, one of which has been vacant ly. appointment to the Sixth Circuit. since 1995. Furthermore, the Adminis- Let me say a few words about each of Deborah Cook has served with distinc- trative Office of the U.S. Courts has de- these nominees. I know that some of tion on Ohio’s Supreme Court since her clared five of these vacancies to be ju- my colleagues may have already given election in 1994 and reelection in 2000. dicial emergencies within the U.S. fed- many details about these individuals, My only regret is that with her con- eral court system. but I think that it is important that firmation to the Sixth Circuit, we will Given the crisis in the Sixth Circuit Americans see what quality individuals lose her on the Supreme Court of Ohio. and the exemplary records of Justice President Bush has sent up to the Sen- With a combined 10 years of appellate Cook and Jeffrey Sutton, I respectfully ate. These individuals have all excelled judicial experience on the Ohio Court urge the Judiciary Committee to hold in their legal careers and I’m sure, if of Appeals and the Ohio Supreme hearings on their nominations as soon confirmed, they will all make excellent Court, Deborah Cook uniquely com- as possible, and expeditiously move judges. bines keen intellect, legal scholarship them to the floor of the Senate. Judge Terrence Boyle is President and consistency in her opinions. She is Mr. GRASSLEY. Madam President, I Bush’s nominee for the Fourth Circuit a strong advocate of applying the law rise today to speak in support of Presi- Court of Appeals. He is currently the without fear or favor and not making dent Bush’s judicial nominees. Presi- Chief Judge of the U.S. District Court policy towards a particular constitu- dent Bush says that we need to move for the Eastern District of North Caro- ency. Deborah Cook is a committed in- these nominees swiftly and fairly. He lina, appointed by President Reagan in dividual and a trusted leader, and it is wants our support for his nominees. I 1984. He has served in this post with my pleasure to give her my highest agree. The Senate needs to act to fill distinction. He was nominated to the recommendation. these vacancies and ensure that the Fourth Circuit in 1991 by President I am also very pleased to speak on Federal courts are operating at full Bush Sr., but he did not receive a hear- behalf of Jeffrey Sutton, a man of un- strength. ing from the Democrat-controlled Ju- questioned intelligence and qualifica- Right now, President Bush has sent a diciary Committee. tions, with vast experience in commer- number of extremely qualified men and Justice Deborah Cook is President cial, constitutional and appellate liti- women to the Senate for consideration Bush’s nominee to the Sixth Circuit May 9, 2002 CONGRESSIONAL RECORD — SENATE S4099 Court of Appeals. After graduation in the legislature and in the Federal equitable solutions to virtually any from law school, Justice Cook became courts, as well as in private practice challenge. His personal and profes- the first female attorney hired at the and academia. Judge Shedd worked as sional integrity are above reproach, oldest law firm in Akron, OH, and just the Chief Counsel and Staff Director and his even temperament is ideally 5 years later, she was named a partner. for the Senate Judiciary Committee suited for the federal bench. She then served on the Ohio Court of under then-Chairman STROM THUR- Many outstanding Tennesseans have Appeals for 4 years, and in 1994 she be- MOND. He was appointed a district added their support to Hardy’s nomina- came a justice on the Ohio Supreme court judge for the District of South tion. They most often have mentioned Court. Her pro bono work is laudable: Carolina in 1990, where he has served to me his brilliant mind, sense of fair Judge Cook is a founder and trustee of with distinction. play and lack of personal bias, good a mentored college scholarship pro- Jeffrey Sutton is President Bush’s wit, and respect for other’s views and gram in Akron, and I understand she nominee to the Sixth Circuit Court of opinions. and her husband personally fund efforts Appeals. Mr. Sutton clerked for Jus- Thomas Jefferson wrote in 1776 that to help inner-city children go to col- tices Scalia and Powell on the U.S. Su- our judges ‘‘should always be men of lege. preme Court, then spent three distin- learning and experience in the laws, of Miguel Estrada is one of President guished years as Solicitor for the State exemplary morals, great patience, Bush’s nominees to the D.C. Circuit of Ohio. Since that time, Jeffrey Sut- calmness and attention.’’ Samuel Court of Appeals. He has an incredible ton has worked in private practice and Hardwicke Mays, Jr., certainly fits story, having immigrated to the United served as an adjunct professor of law at President Jefferson’s description. He States when he was young without the Ohio State University College of will serve our country with distinction, even speaking English, to then grad- Law. and his talent, experience and energy uate with honors from Columbia Col- These eight outstanding nominees will be an asset to our Federal judicial lege and Harvard Law School. He are still waiting for a hearing, even system. clerked for the Second Circuit and the though they are some of the most re- I ask unanimous consent after Sen- U.S. Supreme Court, then served as an spected judges and lawyers and profes- ator FEINGOLD speaks that Senator Assistant U.S. Attorney in the South- sors in the country. They have excel- HUTCHINSON be permitted to speak for ern District of New York, where he be- lent qualifications, are of high moral up to 5 minutes. came Deputy Chief of the Appellate character, and will serve our country Mr. LEAHY. Reserving the right to Section in the Office. Mr. Estrada well. They all have ratings of ‘‘well object, does the Senator have the time? acted as Assistant to the Solicitor Gen- qualified’’ or ‘‘qualified’’ by the Amer- How much time is remaining on both eral for 5 years in both the Bush and ican Bar Association, the so-called sides? I don’t want to object, but I Clinton administrations. If he is con- ‘‘gold standard’’ by the Democrats on know the Republican and Democrat firmed, Mr. Estrada would be the first the Judiciary Committee. It’s clear leader have 11:35 for the vote. Hispanic judge on the D.C. Circuit that the Senate Judiciary Committee The PRESIDING OFFICER. The Sen- Court of Appeals. needs to do its job and schedule them ator from Utah has 5 minutes 41 sec- Michael McConnell is President for a hearing and markup. onds. Bush’s nominee to the Tenth Circuit Let’s give these good men and women Mr. LEAHY. OK. Court of Appeals. He graduated from what they deserve, to be treated with The PRESIDING OFFICER (Mrs. the University of Chicago Law School respect. They need a prompt hearing CARNAHAN). Without objection, it is so and then clerked for Judge Skelly and markup. They have waited too ordered. Wright on the D.C. Circuit, and Justice long. The Senate has to act. Like the The Senator from Wisconsin. William J. Brennan on the U.S. Su- President said, the American people Mr. FEINGOLD: Madam President, preme Court. Professor McConnell was deserve better. today the Senate is going to confirm a tenured professor at the University of Mr. FRIST. Madam President, I rise four more of President Bush’s nomi- Chicago Law School for more than a today to thank my colleagues for the nees to the Federal bench. While there decade before accepting the Presi- confirmation of Samuel Hardwicke is no controversy about these par- dential Professorship at the University Mays, Jr., of Memphis TN, as U.S. Dis- ticular nominees, there has been much of Utah College of Law in 1997. He has trict Judge for the Western District of debate here on the floor about the pace earned the reputation of being one of Tennessee. I am also grateful to Presi- of confirmations. And today, because the top constitutional scholars in the dent Bush for his nomination of an in- this is the anniversary of President country. dividual who I know will act with fair- Bush’s announcement of his first batch Justice Priscilla Owen is President ness to all in a way which will make all of judicial nominations, we have been Bush’s nominee to the Fifth Circuit of us proud. told to expect a series of events de- Court of Appeals. Justice Owen spent Hardy Mays is a Memphis institu- signed to criticize the majority leader 17 years as a litigator with a top Hous- tion. No one lives life more to the full- and the chairman of the Judiciary ton law firm. Currently, Ms. Owen is est than Hardy whose passion for the Committee for their conduct of the serving her 7th year as Associate Jus- arts, a good book, the law and public confirmation process and to pressure tice on the Texas Supreme Court, she service is known to all. them to move this process along faster. is only the second woman ever to sit on As have so many others, I first I am pleased to join my colleagues on that bench. She has great professional sought his counsel when I decided to the floor this morning to make a few credentials, and has demonstrated a run for the . Since points about this. strong commitment to her community. then, I have turned to Hardy for advice First, though I am sure the com- John Roberts is President Bush’s on a variety of occasions, and I value plaints will never stop, on the basis of other outstanding nominee to the D.C. the thoughtful, balanced approach he the numbers alone, it is awfully hard Circuit Court of Appeals. He is one of can bring to any issue. And I am proud to find fault with the pace of judicial the most qualified and respected appel- to call him my friend. confirmations. Since the Democrats late lawyers in the country. Mr. Rob- More importantly, he is an out- took control of the Senate last June, erts has had a distinguished record in standing lawyer with a keen intellect. we have confirmed 52 judges, not in- private practice, and he has performed He is fair and impartial, and has enor- cluding the four whom we will vote on a significant amount of pro bono legal mous compassion for his fellow man. today, which will bring the total to 56. service. He also served as Deputy Solic- Hardy has demonstrated, both in his In under a year, that is more judges itor General of the United States. Mr. distinguished legal career with the than were confirmed in four out of the Roberts’ background in public office Baker, Donelson firm in Memphis, and six years of Republican control of the and private office are outstanding. his life in public service as Legal Coun- Senate under President Clinton. Judge Dennis Shedd is President sel and Chief of Staff to Governor Don Judiciary Committee Chairman PAT- Bush’s nominee to the Fourth Circuit Sundquist, his unique ability to hear RICK LEAHY has vowed not to treat Court of Appeals. He has a long and ad- all sides of an issue, to work with peo- President Bush’s nominees as badly as mirable record of public service, both ple from all walks of life, and to find our predecessors treated President S4100 CONGRESSIONAL RECORD — SENATE May 9, 2002 Clinton’s nominees. I believe he is ful- But we all know that not all of Presi- They are the law. They are the judge’s filling that pledge, but frankly, he dent Clinton’s nominees were con- decisions. And we who are charged with doesn’t have to work all that hard to firmed. Far from it. In fact, 38 judicial evaluating the fitness of a sitting judge do that. nominees never even got a hearing in for a higher court have every right to For example, our friends on the Re- the last Congress, including 15 court of examine those decisions—before mak- publican side are complaining that appeals nominees. Three other nomi- ing our decision. some of President Bush’s nominees nees received hearings but never made I commend Chairman LEAHY on his from last May 9 have not yet been con- it out of committee. The nominations work on nominations thus far. Fifty- firmed. On today’s anniversary of those of eight court of appeals nominees who six confirmations in less than a year as nominations, I’m sure we’ll hear a lot never got a hearing and one who got a chairman is an admirable record. I am about that. So let’s just put that in hearing but no committee vote, were sure he won’t keep any nominee wait- perspective. pending for more than a year at the ing for 4 years before getting a con- Let’s assume for the sake of argu- end of the 106th Congress. In all, more firmation vote. I am sure we won’t fin- ment that these individuals have actu- than half of President Clinton’s nomi- ish this Congress having held hearings ally waited 365 days, a full year. We all nees to the circuit courts in 1999 and for fewer than half of the President’s know that at this time, that’s not real- 2000 never received a hearing. circuit court nominees. Most of all, I’m ly accurate. First, Democrats took Those who are concerned about cir- sure he will continue to treat this con- control of the Senate in June 2001. Our cuit court vacancies, if they are being firmation process with the dignity and committee was not organized so that honest, must lay the problem directly respect and care it deserves. The nominations hearings could be held at the feet of the majority in the Sen- courts, our system of justice, and the until July 10, 2001. So it’s really been ate during President Clinton’s last American people deserve no less. only 10 months that we have been in a term. Many of those who are now loud- I reserve the remainder of our time position to confirm any of the May 9 ly criticizing Chairman LEAHY refused and yield the floor. nominees. to recognize the results of the 1996 elec- Mr. HATCH. I yield time to the dis- Second, and just as significantly, tion and dragged their feet for 4 years tinguished Senator from Texas. under this administration, the Amer- on judicial nominations. Some of the The PRESIDING OFFICER. Under ican Bar Association can’t start its re- vacancies that President Bush is now the previous order, the distinguished view of a nomination until after the trying to fill actually date back to 1996 Senator from Texas is recognized. nomination is formally announced. or even 1994. Mrs. HUTCHISON. Madam President, During the Clinton administration, as So what are we to do about this? One I have been listening to the debate under all previous administrations, Re- alternative is to simply rubber stamp today. I certainly want to say I have a publican and Democrat, dating back to the President’s nominees. That is what very good friend who is a nominee for President Eisenhower, the ABA con- some would have us do. I, for one, am the Fifth Circuit, who was nominated 1 ducted its reviews of nominations be- thankful that that is not the approach year ago today, Priscilla Owen, who I fore they were sent to the Senate. of Chairman LEAHY or Majority Leader hope will get a fair hearing because she President Bush’s unfortunate decision DASHCLE. We have a solemn constitu- is one of the most qualified people who to change the way the White House tional obligation to advise and consent has ever been nominated for the Fifth handles the ABA review has added 30–60 on nominations to these positions on Circuit. days to the process as compared to the bench that carry with them a life- But I want to use my time this morn- prior years. That has to be factored time term. We must closely scrutinize ing to give the due accolades to two into any claims. They are the result of the records of the nominees to these judges on whom we will vote who are the President’s own choice of cutting positions. It is our duty as Senators. district judges. The circuit court the ABA out of the process. That duty is enhanced by the history judges are the ones about whom every- Assume for the sake of argument I have just discussed. If we confirm the one has been talking and about whom that all these nominees have been President’s nominees without close people are very concerned. But we have waiting 365 days to be considered by scrutiny, we would simply be reward- two very qualified district judges who the Senate. That is still 140 days shy of ing the obstructionism that the Presi- are going to be confirmed today. I want the 505 days that Richard Lazarra wait- dent’s party engaged in over the last to speak for them. ed between his nomination by Presi- six years by allowing him to fill with The first nominee is Andy Hanen. dent Clinton and his confirmation by his choices seats that his party held Andy Hanen was nominated in June of the Senate. And Judge Lazarra, now open for years, even when qualified 2001 to serve as Federal judge for the serving on the district court of Florida, nominees were advanced by President Southern District of Texas. He was also didn’t wait the longest. No, the period Clinton. nominated for this judgeship 10 years between his nomination and confirma- The most important part of the scru- ago by former President Bush. His tion is only the 15th longest of the tiny we must do is to look at the nomination expired at the end of the Clinton appointed judges. So when records of these nominees. Many of congressional session and was not re- nominees of President Bush have been them are already judges, at the State newed by President Clinton. waiting a year, however that is cal- level or on a lower court. There is Andy is a 1975 cum laude graduate of culated, they won’t even crack the top nothing wrong with examining their Denison University in Ohio, where he 15 of the Clinton judges who waited the work product; indeed, that is the best studied economics and political longest to be confirmed. indicator of how they will perform in science. In 1978 he earned his law de- Actually, the longest wait during the the positions to which they have been gree from Baylor University School of Clinton administration was endured by nominated. Law. He ranked first in his class and Judge Richard Paez, now on the Ninth Some have complained that it is im- was president of the Student Bar Asso- Circuit—1,520 days—over four years. proper for the committee to ask to see ciation and a member of the Baylor That’s in another league altogether copies of the unpublished opinions of Law Review. from the delay, if you can call it that judges nominated for the Circuit Court As a founding partner of the Houston at this point, on some of President who are currently serving as District law firm Hanen, Alexander, Johnson & Bush’s May 9 nominees. Nine Clinton judges. I disagree. Let me be clear that Spalding, he has gained extensive civil judges waited more than 2 years before we have not, as the Wall Street Jour- trial experience, half of which was in they were confirmed. If all of the May nal editorial page recently stated, Federal court. He went on to win a 9 judges still awaiting confirmation are asked judges to go back and write rul- number of accolades, including Out- still pending in the committee on May ing in cases where they have ruled standing Young Lawyer of Texas, 9, 2003, then maybe we should talk orally from the bench. That is laugh- awarded by the State bar. He was elect- about a delay. I am absolutely certain able. No, we simply asked for the ed president of the Houston Bar Asso- that will not be the case. judge’s work product—the judge’s writ- ciation in 1998 and is currently a direc- Now so far, I have been talking about ten rulings. Unpublished opinions are tor of the State Bar of Texas. He has judges who were ultimately confirmed. binding on the parties in the case. distinguished himself throughout his May 9, 2002 CONGRESSIONAL RECORD — SENATE S4101 career through civic and volunteer The PRESIDING OFFICER. The Sen- with the fairness, integrity, sound committees. He is an active member of ator from Vermont has 8 minutes 20 judgment, and energy that the people the community and contributes his seconds. of Ohio and this Nation deserve. I time to charities such as Habitat for Mr. LEAHY. And the Senator from whole-heartedly support his confirma- Humanity, Sunshine Kids, and the Red Utah? tion, and I encourage my colleagues to Cross. The PRESIDING OFFICER. The Sen- do the same. The Southern District of Texas is one ator has 30 seconds. The PRESIDING OFFICER. The Sen- of those that are in dire need of all the Mr. LEAHY. Madam President, the ator from Vermont. judicial vacancies being filled. I am Senator from Ohio has asked for time Mr. LEAHY. Madam President, I very pleased to support Andy Hanen. to make a statement. I yield that time truly believe, as I said in the debate, Leonard Davis has been nominated to to him. Democrats have been and will continue serve on the Eastern District of Texas. The PRESIDING OFFICER. The Sen- to be more fair than the Republicans He is a judge on the Circuit Court of ator from Ohio. were to President Clinton’s judicial Appeals for Texas, with an outstanding Mr. DEWINE. Madam President, I nominees. The fact is that more than record. He, too, was nominated by rise today in support of the confirma- 50 of President Clinton’s nominees former President Bush, but the nomi- tion of Judge Thomas M. Rose, whom never got a vote. Many languished for nation expired and was not renewed by the President has nominated for the years before they were returned with- President Clinton. post of U.S. District Judge for the out even having a hearing. Others wait- He earned a mathematics degree Southern District of Ohio, Western Di- ed for years, up to even 4 years to be from UT Arlington and a master’s de- vision. I first met Tom Rose 29 years confirmed. gree in management from Texas Chris- ago when we were both serving as as- We are moving through, as we have tian University. He earned his law de- sistant county prosecuting attorneys these last 10 months, in filling vacan- gree from Baylor University School of in Greene County, OH. I can tell you cies with consensus nominees. Law, where he graduated first in his without reservation that he is a man of I voted for the vast majority of these class. He went on to practice civil and great integrity, honor, and intel- nominees. I voted for all but one of criminal law for 23 years and handled ligence. I do not know a more qualified, these nominees. They are going to be Republicans. We hundreds of cases in State and Federal more experienced candidate for this know they are going to be conserv- courts. He was appointed to his current judgeship. position as Chief Justice of the 12th Tom, who comes from Laurelville, atives. That is fine. But I am not going to vote for some- Circuit Court of Appeals of the State of OH, graduated from Ohio University in body who will put a sign up over the Texas by then-President George W. 1970, and received his law degree from Federal court saying this is no longer Bush and has enjoyed strong bipartisan the University of Cincinnati’s College support and no opposition to his reelec- an independent court. of Law in 1973. Also in 1973, he was ap- If the White House would only work tion in November of 2000. pointed as Assistant County Pros- He has served on numerous boards with us instead of working against us, ecutor in Greene County; he became we could end the vacancy crisis by the and commissions, including the State the first Magistrate in the Greene Ethics Advisory Commission, the State end of next year. County Juvenile Court in 1976; and he Many partisans in the other party Bar of Texas’s Legal Publications Com- became the Chief Assistant Prosecutor mittee, and the American Heart Asso- appear, unfortunately, to have decided in charge of the Civil Division in 1978. to make judges a domestic agenda item ciation’s Board of Directors. In 1991, he became the Judge of the Judge Leonard Davis is a long-time on which this administration is intent Court of Common Pleas in Greene friend of mine. I believe he, too, will on winning partisan, political, and ide- County. serve our country well. ological victories. Given the closely di- During these last 11 years on the I urge my colleagues to support both vided Senate—and the Congress—and Common Pleas Court bench, Ohio’s of these Texas nominees for district the narrow electoral victory of the highest trial court, Judge Rose has pre- court benches—Andy Hanen and Leon- President, the better course would sided over a wide range of cases from ard Davis. have been to work together on vacan- Madam President, I also would like criminal cases to civil cases to admin- cies that we inherited from the Repub- to say one more thing about Judge istrative appeals. He has faced a tre- lican Senate. Priscilla Owen, a justice of the su- mendous volume of cases, many of Republicans held court of appeals preme court, and ask that she be con- which have been of unprecedented com- judgeships open for years. Now they see sidered for her Fifth Circuit nomina- plexity. For example, Judge Rose re- their chance to pack the courts and tion. cently presided over Ohio’s first pro se stack the deck with conservative judi- Every newspaper in Texas endorsed murder case in which the defendant cial activists in order to tilt the out- Justice Owen for her reelection bid in could have received the maximum sen- comes on these courts. 2000 for the Supreme Court of Texas. tence of death. The American people do not want— On February 10 of this year, a Dallas In addition, he has heard hundreds of and our justice system does not need— Morning News editorial said: the kinds of civil cases and administra- a finger on the scales of justice. It is up Justice Owen’s lifelong record is one of ac- tive appeals that dominate a common to the Senate to maintain the inde- complishment and integrity. pleas docket, tax appeals, annexation pendence of the courts and the balance During her reelection campaign, the questions, school districting disputes, on them. That means resisting the ap- Houston Chronicle said, in a September and insurance issues. In a particularly pointment of ends-oriented and ideo- 24, 2000, editorial: complex civil case, Judge Rose ruled on logically-driven nominees. Do not be A conservative, Owen has the proper bal- a case of first impression involving an fooled about what the fight over circuit ance of judicial experience, solid legal schol- ordinance enacted by a local Ohio city court nominations is about. arship, and real world know-how to continue to put impact fees on developers. Republicans, perhaps brilliantly from to be an asset on the high court. In both criminal and civil cases, he a political point of view, but disastrous I do hope Justice Owen will receive has ruled on hundreds of motions to from the point of view of the independ- due consideration for her nomination suppress and other constitutional ence of the courts, kept vacancies on to the Fifth Circuit, and certainly I issues, such as search and seizure and the Fifth, Sixth, and D.C. Circuits open hope the Senate will act on these cir- Miranda rights. for the last 5 years. Now they have a cuit court judge nominees. We have All of this demonstrates, that with- President with a list of what he views many vacancies that need to be filled. out question, Judge Rose is right for as ‘‘reliable nominees.’’ They are try- I urge the Senate to take action. this job. His background and the depth ing to get these ideological nominees The PRESIDING OFFICER. The time of his wide-ranging experience on the through. of the Senator has expired. bench, the experience that makes him This is not a political fight that we The Senator from Vermont. so well qualified for the Ohio district in my party have chosen. Indeed, the Mr. LEAHY. How much time is re- judgeship. I am confident that he will President’s recent fundraising cam- maining? discharge his duties of Federal judge paign swing through the South and the S4102 CONGRESSIONAL RECORD — SENATE May 9, 2002 antagonistic efforts of his political ad- Democrats are imposing on judicial So I am protecting the Senator’s viser, Karl Rove, make clear that the nominees would have the same effect right to free religion, not disparaging Republicans have chosen this fight be- as a religious test. Let me explain how. his religion. This is nothing like the cause they think it serves their polit- Most people who are pro-choice hold often-used and offensive race-card that ical advantage. their position as a matter of ideology. the Democrats often used. They are deadly serious about their Some even allow their chosen ideology The PRESIDING OFFICER. Who efforts to gain control of the District of to trump the tenets of their religion. yields time? Columbia Circuit, the Sixth, and the They do so in good conscience no Mr. LEAHY. Madam President, I urge Fifth Circuits, and others—even to the doubt, and I respect that and would not my colleagues to vote in favor of each point of questioning the religious back- judge them for that. of the four nominees. But the great majority of people who ground of members of the Senate Judi- I also urge the Senate and the admin- are pro-life come to their positions as a ciary Committee, something I have istration to work at keeping the impar- never seen in 28 years in the Senate. It result of their personal religious con- victions. We view unborn life as sacred. tiality of the Federal judiciary. is one of the most reprehensible tactics I urge those on the other side of that I have seen in my time in the Sen- Many Americans hold this view as a re- ligious tenet, but this view does not af- Pennsylvania Avenue to stop making ate. I respect the religious background this a political partisan game but to do of every Member. I do not know the fect their ability to interpret the law and precedent, just as skin color does what is best for the country. background of most; it is none of my I yield any time remaining that I business. I would never question the re- not. In effect, what is ideology to my may have. ligious background of any nominee. Democrat friends is a matter of reli- I resent greatly people on the other Mr. HATCH. I yield whatever time I gious conviction to a large portion of side of the aisle questioning my reli- may have remaining. the American people, regardless of gion or the religion of members of the VOTE ON NOMINATION OF LEONARD E. DAVIS their position on abortion. But many Senate Judiciary Committee. The PRESIDING OFFICER. The rightly fear that a judge with private This battle is over whether the cir- question is, Will the Senate advise and pro-life views, which often derives from cuit courts have judges who will follow consent to the nomination of Leonard religious conviction, will ever again be precedent, respect congressional ac- E. Davis, of Texas, to be United States confirmed in a Democrat-led Senate. District Judge for the Eastern District tion, and act to protect individual To impose an abortion litmus test on rights of Americans, or become domi- private views, call it ideological if you of Texas? nated by ideologically-driven activists. want to, is to exclude from our judici- The yeas and nays have been ordered, I will continue to evaluate all of ary a large number of people of reli- and the clerk will call the roll. President Bush’s nominees fairly, and gious conviction, who are perfectly pre- The legislative clerk called the roll. to work in spite of the obstructionism pared to follow the law. I fear this is Mr. REID. I announce that the Sen- and unfair criticism coming from the the door this Democrat-led Senate ator from (Mr. CORZINE) is Republican side. could be opening. If a nominee who was necessarily absent. In the weeks and months to come we personally pro-life came before the Mr. NICKLES. I announce that the will be called upon to vote on some committee and said they could not fol- Senator from North Carolina (Mr. very controversial activist nominees. low Supreme Court precedent because HELMS) and the Senator from Wyoming The rights of all Americans are at of their pro-life views, then I would (Mr. THOMAS) are necessarily absent. stake. have a problem with that nominee too. I further announce that if present We have to ask whether a fair-mind- But to simply discriminate against and voting the Senator from North ed, independent judiciary will survive them and say that we can not trust Carolina (Mr. HELMS) would vote to protect our fundamental civil lib- you, despite your assurances to the ‘‘yea.’’ erties and constitutional rights, and Senate, to follow precedent, because The result was announced—yeas 97, whether our children and grand- you hold certain personal view, is pure nays 0, as follows: children will be able to look to the and simple religious discrimination. [Rollcall Vote No. 104 Ex.] Federal judiciary for even-handed jus- I can understand why people would tice and protection. believe that a religious test is being YEAS—97 That is what hangs in the balance. imposed. They fear as I do that the re- Akaka Durbin McCain Allard Edwards McConnell I again invite the President and all sult would be a federal judiciary that Republicans to join with us in working Allen Ensign Mikulski neither looks like America nor speaks Baucus Enzi Miller to fill the remaining judicial vacancies to America. Bayh Feingold Murkowski with qualified, consensus nominees I am afraid that what is now occur- Bennett Feinstein Murray chosen from the mainstream, and not Biden Fitzgerald Nelson (FL) ring is far beyond the mere tug-of-war Bingaman Frist Nelson (NE) chosen for their ideological orienta- politics that unfortunately surrounds Bond Graham Nickles tion—nominees who will be fair and Senate judicial confirmation since Boxer Gramm Reed impartial judges, and who will ensure Robert Bork. Some of my colleagues Breaux Grassley Reid that an independent judiciary will be Brownback Gregg Roberts are out to effect a fundamental change Bunning Hagel Rockefeller the bulwark against the loss of our in our constitutional system, as they Burns Harkin Santorum freedoms and rights. were reportedly instructed to do by Byrd Hatch Sarbanes I reserve the remainder of my time. Campbell Hollings Schumer noted liberal law professors at a re- Cantwell Hutchinson Sessions Mr. HATCH. Mr. President, the treat early last year. Carnahan Hutchison Shelby American people are right to ask why Rather than seeking to determine Carper Inhofe Smith (NH) this unprecedented departure from the the judiciousness of a nominee and Chafee Inouye Smith (OR) past is happening. My colleague just Cleland Jeffords Snowe whether a nominee will be able to rule Clinton Johnson Specter accused me of accusing him of religious on the law or the Constitution without Cochran Kennedy Stabenow discrimination. He has mischar- personal bias, they want to guarantee Collins Kerry Stevens acterized my pleas for civility and fair- that our judges all think in the same Conrad Kohl Thompson Craig Kyl Thurmond ness. way, a way that is much further to the Crapo Landrieu Torricelli Some of my Democrat colleagues left of mainstream than most Ameri- Daschle Leahy Voinovich have made no bones about the fact that cans. Dayton Levin Warner they are slowing down the President’s The legitimacy of our courts, and es- DeWine Lieberman Wellstone Dodd Lincoln Wyden nominees because they are imposing, pecially the Supreme Court, comes Domenici Lott for the first time, an ideological litmus from much more than black robes and Dorgan Lugar test. This is something I can not ac- a high bench. It comes from the peo- NOT VOTING—3 cept. ple’s belief that judges and justices will Many Americans are concerned that apply a judicial philosophy without re- Corzine Helms Thomas the abortion litmus test that some gard to personal politics or bias. The nomination was confirmed. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4103 Mr. REID. Madam President, I ask VOTE ON NOMINATION OF SAMUEL H. MAYS, JR. VOTE ON NOMINATION OF THOMAS M. ROSE unanimous consent that the three re- The PRESIDING OFFICER. Under The PRESIDING OFFICER. Under maining votes be 10 minutes in dura- the previous order, the question is, Will the previous order, the question is, Will tion. the Senate advise and consent to the the Senate advise and consent to the The PRESIDING OFFICER. Is there nomination of Samuel H. Mays, Jr., of nomination of Thomas M. Rose, of objection? Tennessee, to be U.S. District Judge Ohio, to be a United States District Without objection, it is so ordered. for the Western District of Tennessee. Judge for the Southern District of The PRESIDING OFFICER. Under On this question, the yeas and nays Ohio? the previous order, the motion to re- have been ordered. The clerk will call On this question, the yeas and nays consider is laid on the table, and the the roll. have been ordered. The clerk will call President shall be immediately noti- The legislative clerk called the roll. the roll. fied of the Senate’s action. Mr. REID. I announce that the Sen- The assistant legislative clerk called ator from New Jersey (Mr. CORZINE) is VOTE ON NOMINATION OF ANDREW S. HANEN the roll. necessarily absent. Mr. REID. I announce that the Sen- The PRESIDING OFFICER. Under Mr. NICKLES. I announce that the the previous order, the question is, Will ator from New Jersey (Mr. CORZINE), Senator from North Carolina (Mr. the Senator from Vermont (Mr. JEF- the Senate advise and consent to the HELMS) and the Senator from Wyoming nomination of Andrew S. Hanen, of FORDS), and the Senator from Lou- (Mr. THOMAS) are necessarily absent. isiana (Ms. LANDRIEU) are necessarily Texas, to be United States District I further announce that if present Judge for the Southern District of absent. and voting the Senator from North Mr. NICKLES. I announce that the Texas. Carolina (Mr. HELMS) would vote The yeas and nays have been ordered, Senator from North Carolina (Mr. ‘‘yea.’’ HELMS) and the Senator from Wyoming and the clerk will call the roll. The PRESIDING OFFICER. Are there The senior assistant bill clerk called (Mr. THOMAS) are necessarily absent. any other Senators in the Chamber de- I further announce that if present the roll. siring to vote? and voting the Senator from North Mr. REID. I announce that the Sen- The result was announced—yeas 97, Carolina (Mr. HELMS) would vote ator from New Jersey (Mr. CORZINE) is nays 0, as follows: ‘‘yea.’’ necessarily absent. [Rollcall Vote No. 106 Ex.] The PRESIDING OFFICER. Are there Mr. NICKLES. I announce that the YEAS—97 any other Senators in the Chamber de- Senator from North Carolina (Mr. Akaka Durbin McCain siring to vote? HELMS) and the Senator from Wyoming Allard Edwards McConnell The result was announced—yeas 95, (Mr. THOMAS) are necessarily absent. Allen Ensign Mikulski Baucus Enzi Miller nays 0, as follows: I further announce that if present Bayh Feingold Murkowski [Rollcall Vote No. 107 Ex.] and voting the Senator from North Bennett Feinstein Murray Carolina (Mr. HELMS) would vote Biden Fitzgerald Nelson (FL) YEAS—95 ‘‘yea.’’ Bingaman Frist Nelson (NE) Akaka Dorgan McCain Bond Graham Nickles Allard Durbin McConnell The PRESIDING OFFICER (Mr. Boxer Gramm Reed Allen Edwards Mikulski REED). Are there any other Senators in Breaux Grassley Reid Baucus Ensign Miller the Chamber desiring to vote? Brownback Gregg Roberts Bayh Enzi Murkowski Bunning Hagel Rockefeller The result was announced—yeas 97, Bennett Feingold Murray Burns Harkin Santorum Biden Feinstein Nelson (FL) nays 0, as follows: Byrd Hatch Sarbanes Bingaman Fitzgerald Nelson (NE) [Rollcall Vote No. 105 Ex.] Campbell Hollings Schumer Bond Frist Nickles Cantwell Hutchinson Sessions Boxer Graham Reed YEAS—97 Carnahan Hutchison Shelby Breaux Gramm Reid Akaka Durbin McCain Carper Inhofe Smith (NH) Brownback Grassley Roberts Allard Edwards McConnell Chafee Inouye Smith (OR) Bunning Gregg Rockefeller Allen Ensign Mikulski Cleland Jeffords Snowe Burns Hagel Santorum Baucus Enzi Miller Clinton Johnson Specter Byrd Harkin Sarbanes Bayh Feingold Murkowski Cochran Kennedy Stabenow Campbell Hatch Schumer Bennett Feinstein Murray Collins Kerry Stevens Cantwell Hollings Sessions Biden Fitzgerald Nelson (FL) Conrad Kohl Thompson Carnahan Hutchinson Shelby Bingaman Frist Nelson (NE) Craig Kyl Thurmond Carper Hutchison Smith (NH) Bond Graham Nickles Crapo Landrieu Torricelli Chafee Inhofe Smith (OR) Boxer Gramm Reed Daschle Leahy Voinovich Cleland Inouye Snowe Breaux Grassley Reid Dayton Levin Warner Clinton Johnson Specter Brownback Gregg Roberts DeWine Lieberman Wellstone Cochran Kennedy Stabenow Bunning Hagel Rockefeller Dodd Lincoln Wyden Collins Kerry Stevens Burns Harkin Santorum Domenici Lott Conrad Kohl Thompson Byrd Hatch Sarbanes Dorgan Lugar Craig Kyl Thurmond Campbell Hollings Schumer NOT VOTING—3 Crapo Leahy Torricelli Cantwell Hutchinson Sessions Daschle Levin Voinovich Carnahan Hutchison Shelby Corzine Helms Thomas Dayton Lieberman Warner Carper Inhofe Smith (NH) The nomination was confirmed. DeWine Lincoln Wellstone Chafee Inouye Smith (OR) Mr. LEAHY. Mr. President, I move to Dodd Lott Wyden Cleland Jeffords Snowe Domenici Lugar Clinton Johnson Specter reconsider the vote. Cochran Kennedy Stabenow Mr. BREAUX. I move to lay that mo- NOT VOTING—5 Collins Kerry Stevens tion on the table. Corzine Jeffords Thomas Conrad Kohl Thompson The motion to lay on the table was Helms Landrieu Craig Kyl Thurmond Crapo Landrieu Torricelli agreed to. The nomination was confirmed. Daschle Leahy Voinovich The PRESIDING OFFICER. The Sen- f Dayton Levin Warner ator from Nevada. DeWine Lieberman Wellstone Mr. REID. The majority leader has LEGISLATIVE SESSION Dodd Lincoln Wyden Domenici Lott asked me to notify everyone that fol- The PRESIDING OFFICER. Under Dorgan Lugar lowing this vote we are going to a pe- the previous order, the Senate will now NOT VOTING—3 riod of morning business until about return to legislative session. 2:30 today. I so ask unanimous consent. The majority leader. Corzine Helms Thomas The PRESIDING OFFICER. Is there f The nomination was confirmed. objection? The Senator from Okla- The PRESIDING OFFICER. Under homa. MORNING BUSINESS the previous order, the motion to re- Mr. NICKLES. Reserving the right to Mr. DASCHLE. Mr. President, I have consider is laid upon the table and the object, I would like to discuss this for been in consultation with the distin- President shall be immediately noti- a moment with my friend and col- guished Republican leader. We are con- fied of the Senate’s action. league. tinuing to discuss matters pertaining S4104 CONGRESSIONAL RECORD — SENATE May 9, 2002 to the trade package currently under consolidate their loans when variable inter- And this is my question to the lead- consideration on the Senate floor. est rates are high; and, can have a desta- er: Doesn’t the leader believe that we In order to accommodate additional bilizing effect in the guaranteed loan pro- have a real responsibility to do every- discussion, I ask unanimous consent gram. thing we possibly can to make sure col- that we proceed in morning business The proposal that the administration lege is going to be more affordable for until 2:30, with the time equally di- made through the OMB would cost the working families and for the middle in- vided between the two leaders or their typical student borrower $2,800, and the come, and that we are also going to designees. typical Pell grant recipient, who bor- stand to make sure we meet our com- The PRESIDING OFFICER. Is there rows, $3,100 over the life of their loans. mitment we made to the American peo- So in order to raise that $1.3 billion objection? ple and to the schoolchildren with re- for which they are proposing to offset, Without objection, it is so ordered. gard to the early education bill, that in part, the costs of the supplemental, we are going to try to meet our com- f what they want to do is charge the typ- mitment to those students, to the fam- ical borrower an additional $2,800 and STUDENT LOANS ilies, to the parents, and to the local the typical Pell grant recipient $3,100 Mr. DASCHLE. Mr. President, I want communities as well? over the life of the loan. to talk briefly this afternoon in morn- I am interested in hearing, as the Senator KENNEDY has held a hearing ing business about a matter that I this morning. We were very pleased majority leader of the Senate, how im- know is of great importance to a num- that the administration appears now to portant you think it is that we con- ber of people across the country, an have had a change of heart, for they tinue the effort to ensure we are going issue that was the subject of some dis- have announced they are reversing to make the dreams of our young peo- cussion in the health committee just their position. They now recognize that ple attainable—through quality edu- this morning. this was a major error and that they cation in K–12, and through higher edu- Students are borrowing too much, will now no longer adhere to that offset cation—and how strongly the leader is and students are working too much in as they look to ways in which to find committed to doing that, after thank- order to finance rising college costs. the money to pay for the supplemental. ing the administration for changing Sixty-four percent of all students We are very pleased with the admin- their position. borrow Federal student loans to fi- istration’s announcement that they Mr. DASCHLE. Mr. President, no one nance a college education today. The will not advocate this additional bur- knows more about the commitment we typical undergraduate student grad- den on students, both for student loans have made to the students who want to uates with about $17,000 in Federal loan as well as Pell grants. be involved in higher education than debt. But I must say, I thank the distin- the distinguished Senator from Massa- Student debt is skyrocketing. As a guished chair of the HELP Committee chusetts. He can probably tell us the result, many students find themselves for calling this to the attention of our very day it was done. But in recent saddled with unimaginable levels of colleagues, for calling it to the atten- times, we have increased the cap, the student loan debt and experience dif- tion, really, of the educational commu- availability of resources through both ficulty in repaying their loans. An esti- nity. Because of his stalwart advocacy, loans as well as the Pell grants to stu- mated 39 percent of all student bor- and the extraordinary attention that dents in order to accommodate their rowers today graduate with unimagi- this issue has generated over the last additional costs. nable student loan debt. couple of weeks, I am not surprised We have recognized that their costs The administration, in late April, that the administration has now had a continue to go up. We have recognized proposed to exacerbate the current cir- change of heart. how serious the financial problems are cumstances in ways that were inex- This was not a good idea. And, obvi- that many of these students have expe- plicable to many of us. They proposed ously, they have now come to that con- rienced. As a result, we have increased to raise student loan interest rates for clusion as well. the caps. That is why the original OMB consolidated loans by changing the So it is good news for students. It is decision is so mystifying. Because as consolidation loan interest rate from a good news for education. And it is espe- we raise the caps, if we raise the cost, fixed to variable rates. This proposal cially good news for those advocates, then we have not done anything to help has come along, as I noted, when mil- as Senator KENNEDY has personified, the students, so we have made this lions of students are struggling to pay who have called for this change of raise in eligibility for additional assist- for college. heart from the day it was announced. ance virtually meaningless. According to the Department of Edu- Mr. KENNEDY. Will the Senator I might say, there is a trend here be- cation, the typical borrower now grad- yield? cause that is basically what we did uates with almost $17,000 in Federal Mr. DASCHLE. I am happy to yield with the No Child Left Behind Act as student loan debt, as I noted a moment to the Senator from Massachusetts. well. We provided more opportunities ago. And more than half of all Pell Mr. KENNEDY. Mr. President, I for students in many respects, but then grant recipients graduate with student would like to preface my question with we underfund by more than $1 billion loan debt as well. The typical Pell this observation: Under the leadership the resources we should be providing to grant recipient who borrows graduates of Senator DASCHLE, there were 46 ensure that act is fully funded. with almost $19,000 in loan debt. Members of the Senate—under his lead- So there appears to be rhetoric, and The Office of Management and Budg- ership and Senator REID’s, and others— then there is the reality. There is the et, on April 25, released a third ‘‘Offset who wrote a letter to the President rhetoric, and then there is the re- Options for the Supplemental’’ appro- some 10 days ago, recognizing that if sources. The rhetoric is: We want to priations bill that is currently pending this policy of the administration went help all these students. The rhetoric is: in the House. Many of us were in- ahead, it would be like increasing taxes We don’t want to leave any child be- trigued with the offset option that for the average working family by hind. The reality is, we do not provide they chose to use involving student $3,700. That would be the average in- the resources to see that it happens— loan consolidation. I will quote from crease if they did not consolidate. It whether it is an OMB decision on stu- the document. It is under the category could go as high as $10,000. dent loans or the decision that the ‘‘For $1.3 billion for the Pell Grant I am wondering, I did not hear that budget implies on the part of the ad- shortfall, Student loan consolidation we ever received a response to that let- ministration to fund the No Child Left proposal.’’ And they stipulate that ter requesting the deferral of that ac- Behind Act. would raise $1.3 billion. Now I am tion. Ms. STABENOW. Will the Senator quoting from the OMB document: As Senator pointed out, I think all of yield? us in this body want to, first, give the Changing the interest rate formula from Mr. DASCHLE. I am happy to yield fixed to variable is a good thing as fixed rate assurances to young people in college to the Senator from Michigan. consolidation loans: can result in significant that we are going to do everything we Ms. STABENOW. I would like to Federal costs; have higher average costs to possibly can to make college afford- thank the leader personally on behalf borrowers; needlessly penalize borrows who able. of hundreds of thousands of students May 9, 2002 CONGRESSIONAL RECORD — SENATE S4105 and their families in Michigan for his sources. I appreciate her comment in list the issues seniors are interested in, leadership on this issue. And I also that regard. including Social Security—he is always thank the Senator from Massachusetts Mr. DAYTON. Will the majority lead- leading the charge in that regard. for his leadership. er yield for a question? If you talk about the poor, bank- When I first heard about what the ad- Mr. DASCHLE. I am happy to yield ruptcy, food stamps, he is always out ministration was proposing, I was as- to the Senator from Minnesota. in front, as well as on the minimum tounded. I received calls from so many Mr. DAYTON. I had been traveling wage, Medicaid. And then when you students and families in Michigan. around Minnesota a couple years ago talk about education, of course, his We all know, as you indicated, that while seeking this office, and I was committee has written legislation, not Pell grants are important, particularly stunned by the increasing number of the least of which is the work that was to lower income students. But so many students who were relying on loans and done in leaving no child behind, which middle-income families rely on the by the increased amount of money that is a great piece of legislation. We need loan program, and rely on the ability undergraduates and graduates were to make sure there is money there. The to receive the lowest possible interest building up in debt before they even environment, hate crimes, nuclear vic- rate in order to be able to send their got their first job in the workplace. It tims, I am so impressed with the work children to college. is $25,000 for somebody attending a 4- the Senator from Massachusetts does. I have to say, on a personal note, year public institution in Minnesota; And while people come to us all the having had a son go through college $50,000, even in a couple cases over time—you certainly more than I, de- and a daughter who is now in college, $100,000, for people who have come out servedly—about the things we have for myself with loans, I certainly ap- of graduate programs. Have you had done, we usually, on many of the issues preciate what families feel. that same experience in South Dakota I have mentioned, take the lead from When we saw the proposal to in- in the last few years? the Senator from Massachusetts. crease, essentially, the interest rates, Mr. DASCHLE. The Senator from Would the Senator agree with me it was nothing more than a tax on the Minnesota is exactly right. I don’t that, in the history of the Senate, ability of young people to be able to go know what the amount is in South Da- there have been very few Ted Kennedys to college and pursue the American kota for the typical student, but the who have been able to do things such dream. And we all certainly have a typical student nationally now grad- as this, and every college student and stake in making sure we do that. uates with about $17,000 in Federal loan parent who is paying off a loan I am So I thank the majority leader for debt. My guess is, it is somewhat lower sure can understand what I am saying. his leadership. I know that the Senator in South Dakota. I have talked to a lot Would the Senator agree? from Massachusetts, as well, has been of students who are very concerned Mr. DASCHLE. In the history of the vigilant. about paying off that debt, very con- Senate, I would say there has only been It is good news that they have ap- cerned about the debt service they one TED KENNEDY. But the point is so peared to change their minds, but we have to pay on a regular basis when well taken. For 35 years, this giant of certainly know that minds can be they graduate. This is something about the Senate has done remarkable changed again. As we go through this which they are very concerned. Thirty- things, probably has more legislation process, I know we will all stand to- nine percent of all student borrowers attributable to his contribution in this gether to make sure that this is an graduate today with what is termed an body than anybody in recent times. We area we do not touch. I cannot imagine unmanageable student loan debt. certainly recognize his many accom- something more important than mak- There is no question, this is a matter plishments. It is not only the level of ing sure the young people, the adults, that is of increased concern to students accomplishment and achievement but and families of this country have the all over the country, especially those the manner in which he accomplishes opportunity to get the skills they need in the Upper Midwest such as Min- them that is noteworthy. I appreciate to be successful in our economy. I am nesota and South Dakota. This is why very much his calling attention to this proud to stand with the majority lead- we were so mystified when they said, issue as well. er in support of this goal. we are going to ask students, on top of This is another example. This became Mr. DASCHLE. I thank the Senator all the debt they currently have, to pay an issue when the country, through his from Michigan. She has been a tremen- an additional $2,800 for a typical loan committee and his leadership, was put dous advocate for education ever since or $3,100 for a Pell grant recipient. I on notice about the implications of the day she was sworn. I am grateful to can’t imagine how we would want to this $1.3 billion offset. We are very her for her engagement and her will- exacerbate their problems by adding grateful to him for his work in this re- ingness to continue to work with us. even further cost on to the over- gard. She was one of the signatories on the whelming loan debt that many of them Mr. KENNEDY. If the Senator will letter the Senator from Massachusetts already have. yield, I am grateful to both of my col- has referenced. I thank her very much. Mr. REID. Will the Senator yield for leagues for their kind and overly gen- She made an interesting point. She a question? erous remarks. I plan to be here for a said, what the administration has de- Mr. DASCHLE. I am happy to yield while longer. cided could be decided in another direc- to the Senator from Nevada. Let me just carry on and ask the ma- tion at some later date, and we might Mr. REID. I wanted the leader to be jority leader, the President, with whom find ourselves in yet another set of cir- here because he mentioned it briefly. I we worked on education, was in south- cumstances involving the very same wanted to pick up on the fact that we ern Wisconsin earlier this week talking problem; that is, the rhetoric versus have all joined in the letter sent to the about the Federal Government having the reality, the rhetoric versus the re- President. I say ‘‘joined’’ because we a responsibility. He said: Generally sources. We will be going into appro- depend on the Senator from Massachu- that responsibility is to write a priations. I worry about the rhetoric setts for so many things. I want to see healthy check. We did so in 2002; $22 versus the resources once again. Are we if the leader will agree—and I know he billion for secondary, elementary edu- going to be able to ensure that we can does—the Senator, as we know, has a cation, a 25-percent increase. We have provide the commitment to students at great pedigree, but there is no one who increased money 35 percent for teacher all levels, that the resources will be serves in the Senate—I am not too sure recruitment, teacher retention, and there to match the rhetoric that we has ever served in the United States— teacher pay. hear coming from the administration who has been more interested and more Does the Senator not find it some- with regard to their commitment on concerned about the people who have what perplexing that we see in this education? I have my doubts. no one here to represent them. chart the Bush proposed increase for We have at least two instances now I made a couple of notes. On seniors, 2002 is 3.5 percent? It increased in 2002 so far—the student loan issue as well we have had no leader in the Senate as a result of the leadership of the Sen- as the no child left behind question— such as the senior Senator from Massa- ators from South Dakota and Nevada where the rhetoric has far exceeded the chusetts, whether it is Medicare, and the Democrats. We got it up to 20 results and the reality and the re- whether it is prescription drugs—you percent. The President is taking credit S4106 CONGRESSIONAL RECORD — SENATE May 9, 2002 for it out here in the Midwest. And now there are Massachusetts children left ment guarantees. And the people of the we have this year 12.8 percent. Do we behind, and Nevada and Minnesota United States wait for the Senate to find that somewhat perplexing when we children are left behind. I think that is fulfill its constitutional duties. have the President saying we have our the question we are going to continue The events of the past year clearly responsibilities to write a healthy to face throughout the remainder of demonstrate an active effort by the en- check? Well, the check was written and the year: Will we leave these children emies of the United States to destroy we increased it, but the Bush proposal behind because this administration re- the liberties and freedom of our great is at 2.8 percent. fuses to provide the resources? I hope Nation. The most basic of our coun- I wanted to mention, in the area not. try’s values and traditions are under which is of such central importance to Today, we got a good indication that, attack. Congress has responded by en- educational reform, that is, having a at least in one instance, they have acting new laws and by providing fi- quality teacher in every classroom, of changed their minds. When it comes to nancial assistance to businesses and all the educational issues, and there students, they will provide the re- families and defense. We acted swiftly are many—afterschool programs, the sources that match the initial reality. to suffocate terrorists and destroy the construction issues, smaller class We have a lot more of these instances hateful organizations that work to un- sizes—having a well-trained teacher in in store, but I think we have made the dermine our society. every classroom was key. first downpayment in the effort. I Yet the instruments through which The President was out in the Mid- thank and applaud the Senator from justice is served are being denied their west another day talking about all the Massachusetts for doing so. chance to serve by ugly, partisan poli- work they have done, increasing teach- I yield the floor. tics. For a year, Mr. Tymkovich’s nom- er recruitment, retention, and pay, 35 The PRESIDING OFFICER (Mr. ED- ination has languished in the com- percent. That is represented in this WARDS). The Senator from is mittee without action. Today, once $742 million. We supported every penny recognized. again, I urge you to move forward with of it. Mr. ALLARD. Mr. President, I under- his confirmation. Mr. Tim Tymkovich Well, now, look at this fiscal year’s stand we are in morning business. is highly qualified and will serve his proposed budget for the very same The PRESIDING OFFICER. The Sen- country with the utmost of patriotism function. Zero. Not even the cost of liv- ator is correct. and respect for adherence to constitu- ing. Zero. I am just wondering; when f tional principles. The committee must the Senator talks about the difference provide a hearing for the Tenth Circuit JUDICIAL NOMINATIONS between rhetoric and reality, there seat because the seat has remained va- must be people in the Senator’s own Mr. ALLARD. Mr. President, last cant entirely too long. State who have to wonder about that week Senator CAMPBELL and I sent a A necessary component of providing as well. I am just, again, wondering letter to the chairman of the Senate justice is an efficient court system—a whether it isn’t important for us, as we Judiciary Committee expressing our system equipped with the personnel are coming into the debate and na- concern about the state of the judicial and resources that enable it to fulfill tional elections in 2002—money doesn’t confirmation process. We shared with its role as a pillar of our constitutional solve everything, but money is a pretty the chairman our thoughts on the seri- system of government. clear indication of a nation’s priorities. ous injustice being served on the Amer- The current state of judicial nomina- I know the leader reached his hand out ican people by the committee’s failure tions is simply unacceptable. It has to the Republican leader and we passed to provide hearings for the President’s evolved into a petty game of entrench- a strong bipartisan bill that had re- judicial nominations. ment, creating a vacancy crisis that form. I think most of us thought we It is unfortunate that the citizens of prevents the service of the very justice needed reform and resources. the United States must bear the con- upon which our great Nation depends. This is enormously troublesome to sequences of the Judiciary Commit- The simple fact remains: Justice can- me in terms of the K through 12, as the tee’s delaying tactics. It is unfortunate not be delivered when one of every six efforts by the administration are to that the citizens must bear the burden judgeships on the appellate level re- prohibit consolidation. I wonder wheth- of delayed justice. One year ago, Presi- mains vacant. I will repeat that: One er the leader agrees with me that edu- dent Bush forwarded his first 11 judi- out of every six judgeships on the ap- cation is a key priority and that we are cial circuit court nominees to the Judi- pellate level remains vacant. going to have to watch every aspect of ciary Committee. Every person in this It is unfortunate—perhaps even it as we continue through this legisla- group of nominees received a ‘‘quali- shameful—that the confirmation stale- tive session so that we are going to fied’’ or ‘‘well-qualified’’ rating from mate continues. How much longer will meet our responsibilities to families the American Bar Association. Now, the American people have to wait? How across the country and sharing quality 365 days later, 8 of the original 11 nomi- much longer? Many people across the education, K through 12, and even ear- nees are yet to receive a hearing. One country are asking this same question lier education and college education. year later, we are still waiting to have and responding by urging the chairman Mr. DASCHLE. Mr. President, I a hearing for 8 of those 11 nominees. to act quickly and provide hearings for heard someone say the other day: You This weekend also marks the 1-year qualified judges. The sentiment is can’t fool all the people all the time, anniversary since the President nomi- being echoed across the pages of every but why not give it a try. nated Tim Tymkovich for the Tenth major newspaper in the Nation and the I think that is, in essence, what we Circuit Court of Appeals. So, today, 1 State of Colorado. They all agree that find the administration attempting to year since he was nominated by the the Senate must act to fill judicial va- do when it comes to education—simply President, I stand before you still hop- cancies and end this vacancy crisis. assert that they are for it and try to ing Mr. Tymkovich will have a hearing, Mr. President, I wish to share with fool all the people all the time. But the still hoping to fill the 3-year vacancy you some of the statements made in Senator from Massachusetts points out in the Tenth Circuit, and still hoping the editorial pages of these papers. the problems with that strategy. You that the people of Colorado, Utah, New They all recognize that the treatment can’t fool all the people all the time, Mexico, Oklahoma, and Nebraska will of certain Bush nominees has estab- when the resources simply don’t speak no longer be victimized by a vacant lished a pattern of political partisan- to the reality. bench—a bench paralyzed by a lack of ship. I ask that these editorials be That is exactly the problem the ad- personnel to move quickly through an printed in the RECORD upon completion ministration continues to face. The re- overwhelming caseload. of my statement. sources don’t speak to the reality. The So now Mr. Tymkovich, the former The PRESIDING OFFICER. Without resources fall far short of the reality. solicitor general of Colorado, waits in- objection, it is so ordered. We can all assert we are for education definitely for the opportunity to serve (See exhibit 1.) and that we are not going to leave any his country. He waits indefinitely for Mr. ALLARD. The first article is by child behind. But I can tell you, there his opportunity to help administer the the Denver Post, dated Monday, May 6, are South Dakota children left behind, justice that our constitutional Govern- 2002. The other article I ask to be May 9, 2002 CONGRESSIONAL RECORD — SENATE S4107 printed is an editorial by the Rocky nation enjoys broad bipartisan support [From the Rocky Mountain News, May 8, Mountain News from May 8, 2002. Next and the support of our State’s legal 2002] is an editorial by the Colorado Springs community. BUSH NOMINEES TO DENVER-BASED COURT Gazette, dated May 8, 2002. Next is an He has also passed the litmus test of STILL WAITING FOR HEARINGS editorial by the Rocky Mountain News, the chairman of the Judiciary Com- (By Robert Gehrke) dated May 9, 2002. mittee, Senator LEAHY, and is deemed WASHINGTON.—A year ago, it looked like Mr. President, the Denver Post edi- qualified by the American Bar Associa- smooth sailing for Michael McConnell. torial states: tion. The committee must move to end President Bush had made the conservative The U.S. Constitution grants to the presi- the confirmation stalemate and restore University of Utah law professor one of his dent the power to appoint judges with the the people’s faith that our judicial sys- first appeals court nominees, naming him to ‘‘advice and consent’’ of the Senate. There is tem is, indeed, built to provide all the the 10 Circuit Court of Appeals in Denver. nothing in that provision that anticipates a judicial resources that are needed to Approval by the Senate Judiciary Com- process in which a president nominates re- provide access to the courts of law. mittee, then chaired by Sen. Orrin Hatch, R– Utah, seemed certain. placements to the federal bench and the Sen- It must diligently perform its duty to ate acts as if it has no responsibility to co- Bush also nominated Colorado attorney operate. provide hearings so that the vacancies Tim Tymkovich to the 10th Circuit. that plague our courts may be filled. The Post continues in its editorial: A year later, Democrats control the Sen- The President has asked for the forging ate, and McConnell, Tymkovich and five . . . it is difficult to think of a single rea- of a bipartisan consensus in favor of other judges Bush nominated last spring are son why [Mr. Tim Tymkovich] has been de- fair and efficient consideration of all still awaiting a hearing. nied a confirmation hearing and an up-or- Hatch, McConnell’s leading backer, has down vote in the full Senate. Such a vote is judicial nominations—I do not think criticized Judiciary Chairman Patrick the prescribed solution for cases where there that is an unreasonable request—re- Leahy, D–Vt., for moving too slow on judi- is disagreement between the Senate and the gardless of the pattern of party control cial nominees, and frequently cites McCon- president. of the political branches of Govern- nell’s case as an example. The Post also expresses the frustra- ment. I urge the committee to answer ‘‘They know that Mike McConnell is one of tion that the American people are feel- this call and move forward with the ju- the truly great Constitutional scholars. ing: dicial nomination process and prove to They know he’s on the fast rack to the Su- Unless the Democrat leadership abandons the American people that the com- preme Court, so they’re going to delay this its delay tactics, we think the treatment of mittee is, indeed, interested in serving as long as they can,’’ said Hatch. judicial nominees ought to be a front-and- justice. Keeping McConnell off the bench, Hatch center issue in the upcoming elections. I thank the Chair. I yield the floor. said, keeps him from compiling the type of If the Senate won’t vote to end the judicial judicial experience he would need before EXHIBIT 1 logjam, maybe the citizens should. moving up to the Supreme Court. [From the Denver Post, May 6, 2002] The Rocky Mountain News notes Sens. Wayne Allard and Ben Nighthorse that Mr. Tim Tymkovich is not the POLITICS AND THE BENCH Campbell, both R–Colo., urged Leahy last only Tenth Circuit nominee awaiting a There is a fresh reminder of how political month to hold a hearing for Tymkovich. the judicial selection process has become. hearing, there are two vacancies, both ‘‘The current state of judicial nominations Colorado’s two senators, Ben Nighthorse is unacceptable,’’ they wrote in a letter to of whom were appointed 1 year ago. Campbell and Wayne Allard, both Repub- Leahy. ‘‘It has devolved into a petty game of This means the committee is depriving licans, have written a letter to Senate Judi- entrenchment, creating a vacancy crisis that the court of two qualified judges. Un- ciary Committee Chairman Patrick Leahy, prevents the service of the very justice upon fortunately, it is the people of the D–Vermont, pointing out that it was a full which our great nation depends.’’ United States who suffer, the people year ago that President Bush nominated McConnell and Tymkovich would fill the who turn to the courts to address their Denver attorney to a only two vacancies on the 10th Circuit, grievances. The committee does not seat on the 10th Circuit Court of Appeals. which handles appeals from U.S. district The two senators complained, and we courts in Utah, New Mexico, Colorado, Okla- face the daily injustice served on the agree, that ‘‘the current state of judicial people, nor does it face the costly court homa and Nebraska. Other circuits have nominations . . . devolved into a petty game more vacancies. delays caused by an overwhelming of entrenchment’’ that has created a vacancy Leahy spokesman David Carle defended the docket. The committee does not face crisis. pace of nominations, saying Democrats con- the frustration of citizens as they pur- The recent treatment of a Charles Pick- firmed 16 more justices in their first 10 sue justice in front of an empty bench. ering, a Bush nominee to the Fifth Circuit months in control than the Republicans did The Rocky Mountain News reveals Court of Appeals, consumed a great deal of in their first 10 months in 1995. that the chairman is blaming the the committee’s time and established a pat- Women’s groups, gay-rights advocates and tern of political partisanship. church-state separationists have all voiced President for the delay. According to The issue for the committee and the nation the chairman, ‘‘Controversial nomina- concerns about McConnell and Tymkovich’s is whether such treatment—and ultimate re- records. tions take longer.’’ But as the paper jection on a straight party-line vote in com- McConnell, 46, has represented several mittee—is a pattern the Democratic leaders points out, there is little controversy groups that have claimed government dis- of the Senate want to repeat. It will be no regarding the nomination of Tim crimination because of their religious be- bargain for the country if the Senate com- Tymkovich. Yet he still has not re- liefs. He has argued against a secular govern- mittee adopts a strategy of simply delaying ceived a hearing. ment in favor of an arrangement that ac- all Bush judicial nominations. cepts all religious on an equal footing. Outside the city of Denver, news- The U.S. Constitution grants to the presi- paper headlines herald the same mes- dent the power to appoint judges with the He opposes abortion and co-wrote a law re- sage, citing the stalemate as ‘‘justice ‘‘advice and consent’’ of the Senate. There is view article challenging the constitutionally delayed’’ and calling for action. The nothing in that provision that anticipates a of legislation that prohibited protests block- Colorado Springs Gazette states: process in which a president nominates re- ing abortion clinics. He represented the Boy Scouts of America There is a slate of looming vacancies on placements to the federal bench and the Sen- ate acts as if it has no responsibility to co- when they argued they should not be forced the federal bench across the country thanks to accept homosexual leaders. in large part to backlogged nominations, and operate. As Colorado’s solicitor general, Tymkovich its risks paralyzing the courts. Because Tymkovich is well-known in Colo- rado, having served as the state’s solicitor defended a state constitutional amendment The Gazette concludes by adding that general, it is difficult to think of a single prohibiting municipalities from adopting or- swift justice is supposed to be a hall- reason why he has been denied a confirma- dinances outlawing discrimination against mark of our system; its prospects do tion hearing and an up-or down vote in the homosexuals. not look good while policymakers are full Senate. Such a vote is the prescribed so- He also defended a Colorado law prohib- making it harder to get before a judge lution for cases where there is disagreement iting state financing of abortions in cases of at all. between the Senate and the president. rape or incest. Mr. Tymkovich is an outstanding Unless the Democratic leadership abandons Adam Shah of the Alliance For Justice, its delay tactics, we think the treatment of which helped defeat the nomination of Judge choice for the Tenth Circuit Court of judicial nominees ought to be a front-and- Charles Pickering to the Fifth U.S. Circuit Appeals, and he will serve this Nation center issue in the upcoming elections. of Appeals in New Orleans, said the group well, but he must be given the oppor- If the Senate won’t vote to end the judicial has not worked against McConnell or tunity to do so. In Colorado, his nomi- logjam, maybe the citizens should. Tymkovich but is examining their records. S4108 CONGRESSIONAL RECORD — SENATE May 9, 2002 ‘‘We understand that the president has the [From the Rocky Mountain News, May 9, Child Behind legislation which reau- right to name nominees that he chooses,’’ 2002] thorized the Elementary and Sec- Shah said recently. ‘‘We are willing to look GOP MAY PROTEST DELAY ON HEARINGS ondary Education Act and which was at the record and their political views and COLORADAN IS AMONG BUSH JUDICIAL NOMINEES see if they will make good judges . . . and signed into law in January. I saw for not turn back the clock on civil rights, wom- (By M.E. Sprengelmeyer) more than a year the President’s and en’s rights and environmental protections.’’ WASHINGTON.—Republicans might slow ac- this administration’s deep commit- tion in the U.S. Senate today to protest a ment and involvement to reforming [From the Colorado Springs Gazette, May 8, yearlong delay in confirming President and fully funding our education legisla- 2002] Bush’s judicial nominees, including one from tion and our commitment to our ele- JUSTICE DELAYED Colorado. mentary and secondary education, spe- BLOCKING NOMINEES IS AN OLD POLITICAL Saturday will be the one-year anniversary cial education under IDEA, and the bi- of Bush’s nomination of Tim Tymkovich to GAME—AND IT’S UNDERMINING OUR COURTS lingual and other programs that were Let’s not be naive about how presidential the 10th Circuit Court of Appeals in Denver. But he’s still waiting for a confirmation reauthorized in this legislation. picks, especially for the judiciary, quickly We have incredible leadership in the can become political pawns for members of hearing, as are eight of the first 11 judicial Congress. Holding up a nominee to the bench nominees Bush made a year ago today. White House, and that is why this bi- or to any other office requiring the Senate’s Republican Senators will call attention to partisan legislation passed by over 80 advice and consent has become nothing less the issue in a morning press conference, and votes in the Senate. It disappoints me than a venerated tradition. And it’s a bipar- then they are expected to invoke procedural and hurts me to hear my colleagues on maneuvers to slow the Senate’s work tisan affair even as each side howls with in- the other side of the aisle attack this dignation when the other does it. throughout the day. ‘‘It will be a slowdown in order to make administration and question its com- Sometimes it’s indulged for philosophical mitment to education. We saw in 30 reasons—a judicial nominee’s stance on abor- their point,’’ said Sean Conway, spokesman tion or capital punishment, for example. for Sen. Wayne Allard, R–Loveland. years under Democrat control an edu- Other times the stonewalling is mundanely Last week, President Bush called the situ- cation policy that got us nowhere, in political—perhaps some senators want a ation a ‘‘vacancy crisis,’’ especially in the 12 which the learning gap between high- president to back off of a threatened veto of regional Courts of Appeals, where one in six achieving and low-achieving students major legislation. A pending nomination can judgeships remains vacant. The Denver- never narrowed, in which test scores, based 10th Circuit is still waiting for nomi- prove a useful bargaining chip. It all makes instead of rising, continued to fall. for a very old game, and it has been that way nees Tymkovich and Michael McConnell of Utah to get hearings. Now we have a President who has almost every time the White House has said: Let’s try something different; changed tenants over the years. In response, Senate Judiciary Committee But that doesn’t make it right. More to the Chairman Sen. Pat Leahy, D–Vermont, let’s put real accountability into edu- point, the inclination of senators to make ju- pointed out that the Senate had confirmed 52 cation; yes, let’s increase funding, with dicial appointees cool their heels interferes of Bush’s nominees since Democrats took dramatic increases in title I, dramatic with the administration of justice. The lat- control 10 months ago. He said Bush should increases in IDEA, special education, est joust between the Senate and the presi- share the blame for other delays. and dramatic reforms and increases in ‘‘Controversial nominations take longer, dency is no exception. bilingual education; but let’s accom- To their credit, Colorado Republican U.S. and the President can help by choosing Sens. Ben Nighthorse Campbell and Wayne nominees primarily for their ability instead pany spending increases with account- Allard have written a letter to the Chairman of for their ideology,’’ Leahy said in a re- ability; let’s not just spend more, let’s of the Senate Judiciary Committee, Patrick lease. spend smarter. Leahy, D-Vt., making just that point. Some groups have questioned McConnell’s I, for one, stand and applaud the ‘‘The current state of judicial nominations nomination, claiming that the University of President for his leadership. I can only is unacceptable. It has devolved into a petty Utah professor would weaken the separation say as the President’s poll numbers game of entrenchment, creating a vacancy of church and state. They also question his views because he once represented the Boy soar on leadership in education and Re- crisis that prevents the service of the very publicans in general score better on justice upon which our nation depends,’’ Scouts of America in its bid to exclude ho- they wrote. mosexuals. McConnell backers say the fears education than ever before, that is the Of particular concern to the Colorado dele- are based on misunderstandings and that he only explanation for the misguided at- gation is the status of Colorado’s former so- has been endorsed by several Democratic tack on the President on the education licitor general, Tim Tymkovich, who was academics. issue which we just heard today. nominated by President Bush in 2001 to fill But there is little controversy over the Colorado vacancy on the 10th Circuit Tymkovich, Colorado’s former solicitor gen- f Court of Appeals. Saturday will mark the eral. one-year anniversary since Tymkovich’s Last month, Allard and Sen. Ben JUDICIAL NOMINATIONS nomination was sent to the Judiciary Com- Nighthorse Campbell, R–Ignacio, wrote Mr. HUTCHINSON. Mr. President, I mittee. Leahy, demanding that Tymkovich get a wish to speak about the tragic hold up It’s not as if there are some glaring blem- hearing. ishes on the man’s resume. On the contrary, ‘‘It has devolved into a petty game of en- of our circuit court nominees to the his nomination enjoys the broad support of trenchment, creating a vacancy crisis that Federal bench. It takes only a few our state’s legal community, and he was prevents the service of the very justice upon numbers to show the dramatic vacancy deemed qualified when rated by the Amer- which our nation depends,’’ they wrote. crisis we are facing in the Federal ican Bar Association. and still he remains in The PRESIDING OFFICER. The Sen- court system: 10 percent of Federal limbo. ator from . judgeships are vacant right now, 85; 20 To reiterate, we’re not being naive here. percent of judicial seats at the Federal This is an old syndrome that conforms to no Mr. HUTCHINSON. I thank the political boundaries. Indeed, a couple of Chair. courts of appeals are vacant. With years ago, it was Allard who for a time I congratulate Senator ALLARD for an eight openings, half of the entire Sixth helped delay the nomination of a Clinton ad- excellent statement. I have a similar Circuit is now vacant. It is operating ministration pick for the 10th Circuit bench. story to tell of one of our nominees at half strength. But the underlying point the Senators from the State of Arkansas. The Judiciary Committee has held a make in their letter to Leahy is well taken. f hearing on only one of President Quite simply, there’s a slate of looming va- Bush’s seven nominees for the Sixth cancies on the federal bench across the coun- THE PRESIDENT’S COMMITMENT Circuit, and that hearing was held just try thanks in large part to backlogged nomi- TO EDUCATION nations, and it risks paralyzing the courts. a week and a half ago after pending for Whatever reservations members of either Mr. HUTCHINSON. Mr. President, be- over 6 months. Two of the Sixth Cir- party might harbor about any given nomi- fore I begin discussing the judicial cuit nominees, Jeffrey Sutton and nee, and however substantive those concerns nomination, I wish to respond to the Deborah Cook, were nominated a year may actually be on occasion, at some point colloquy that took place on the other ago today but have not yet had a hear- they pale next to the need for any judge at side of the aisle regarding our Presi- ing. all to attend to the logjam in federal courts. Swift justice is supposed to be a hallmark dent’s commitment to education. Do they question their ability? The of our system; its prospects don’t look good I serve on the Education Committee, ABA rated both nominees as unani- while the likes of Leahy are making it hard- and I was privileged to serve on the mously qualified, but they have lan- er to get before a judge at all. conference committee on the Leave No guished for a year. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4109 The numbers simply do not lie: 44 of Appeals, had languished for almost a this letter some time back. He wrote nominations are currently pending be- year without even a hearing. more recently on April 8 a specific let- fore the Judiciary Committee. Unfortu- Ever since this nomination, I have ter to Chairman LEAHY, and I ask nately, 22 of those unconfirmed nomi- looked forward to the day when I could unanimous consent that this letter be nees are for circuit courts, the court of sit next to Judge Smith in the Senate printed in the RECORD. last resort for most cases. Judiciary Committee and I could give a There being no objection, the letter In 1996, the current Judiciary Com- glowing introduction of my friend at was ordered to be printed in the mittee chairman called a vacancy rate that hearing. I have been waiting, I RECORD, as follows: of only two-thirds as high as the one have been waiting, and I have been NATIONAL ASSOCIATION FOR THE we face today a judicial emergency. It waiting. I have written Senator LEAHY ADVANCEMENT OF COLORED PEOPLE, is even more so today, and we are doing over and over, and I have talked to Little Rock, AR, April 8, 2002. even less about it. Senator LEAHY. Others have written Senator PATRICK LEAHY, Of the current 85 vacancies, 37 are and pleaded for a hearing, and yet U.S. Senate, Chairman, Judiciary Committee, Russell Senate Office Building, Washington, considered judicial emergencies by the nothing has happened. DC. Administrative Office of the U.S. I would like to tell my colleagues DEAR CHAIRMAN LEAHY: As the President of Courts. This is calculated based on the about my friend. the Arkansas State Conference of Branches number of years the judgeship has been earned both his bachelor’s degree and NAACP, I am writing to express our concern open and the size of the court’s case- his law degree from the University of that Attorney Lavenski Smith, who is from load. Arkansas. Following law school and 3 Arkansas, has not been given a confirmation Perhaps the most staggering fact is years working in private practice, hearing. President Bush nominated Mr. Smith approximately a year ago for the this: Of the President’s first 11 circuit Judge Smith served the poorest and Eighth Circuit Court, however, he has not court nominees submitted to the Sen- the neediest citizens of Arkansas as the been given a hearing before the Judiciary ate on May 9, 2001, only 3—Mr. Presi- staff attorney for Ozark Legal Serv- Committee. dent, only 3—have even received hear- ices. At Ozark Legal Services, he rep- While I understand there are some partisan ings by the Senate Judiciary Com- resented abused and neglected chil- issues involved, I am asking you as Chair- mittee. dren. These were children whose own man of the Judiciary Committee to, imme- This is a crisis by any definition, by diately, schedule a hearing on behalf of the parents were unwilling or unable to act confirmation of Mr. Smith for the Eighth any measure, and it is inexcusable. in their best interest, putting the chil- Circuit Court. It is my opinion that Mr. One of the nominees who has been dren in danger. So Judge Smith Smith is a fine individual and has served the waiting almost a year is from my home stepped in. people of Arkansas well in his capacity as a State of Arkansas. Judge Smith helped these children. public official. He is a very distinguished, very He represented them in our complex For additional information, you may con- qualified jurist named Lavenski Smith. legal system and navigated the foster tact me at (501) 227–7231 or by e-mail at [email protected]. This is my friend Lavenski Smith. care system for them. He helped find It is very easy to talk numbers. Num- Sincerely, the safest place for these children to DALE CHARLES, bers come and go. People come to the grow and to thrive. So he is committed President. Chamber and argue numbers and sta- to the needy. He is committed to the Mr. HUTCHINSON. I would like to tistics, but I want to put a face on poorest, and he has demonstrated that share with my colleagues what the what we are really talking about. with his life, not just with his rhetoric. President of the Arkansas chapter of Judge Smith was nominated for the In addition to this public service, the NAACP wrote concerning my Eighth Circuit Court of Appeals almost Lavenski Smith has volunteered his friend Lavenski Smith: a year ago, on May 22, 2001. I brought spare time to charitable endeavors Dear Chairman Leahy, as the President of this picture of Lavenski Smith in the such as raising funds for the School of the Arkansas State Conference Branch of the hopes this might put a human face on Hope, a school for handicapped children NAACP, I am writing to express our concern at least one of the people we are hurt- in his hometown of Hope, Arkansas. that attorney Lavenski Smith, who is from ing by these unjust and inexcusable After Judge Smith spent years working Arkansas, has not been given a confirmation delays. Judge Smith has received broad at Ozark Legal Services, Judge Smith hearing. President Bush nominated Mr. support from both of his home State opened the first minority-owned law Smith approximately a year ago for the Senators, from colleagues on the bench Eighth Circuit Court of Appeals. However, he firm in Springdale, AR, handling pri- has not been given a hearing before the Judi- in Arkansas, from colleagues from his marily civil cases. He then taught busi- ciary Committee. While I understand there days of practicing law. He has received ness law at John Brown University and are some partisan issues involved— the support of the American Bar Asso- took several positions in public serv- That is the greatest understatement ciation. He has received the support of ice, including working as the regu- ever made— the president of the Arkansas NAACP. latory liaison for Governor Mike I am asking you, as chairman of the Judi- He has received the support of editorial Huckabee in the Governor’s office. He ciary Committee, to immediately schedule a boards of both the left and the right currently serves as a commissioner on hearing on behalf of the confirmation of Mr. ends of the political spectrum in the our Public Service Commission. Smith for the Eighth Circuit Court of Ap- State of Arkansas. Now I mentioned he has this very peals. It is my opinion that Mr. Smith is a That is broad support. That is sup- broad support, and indeed he has. So fine individual and has served the people of port from the left and the right. There Arkansas well in his capacity as a public of- let me share some of the statements of ficial. Sincerely, Dale Charles, NAACP. is support from every colleague who support for Judge Lavenski Smith, What kind of support does one have has ever worked for him. There is sup- former Arkansas Supreme Court Jus- to have to get a hearing? How long port from his colleagues on the Arkan- tice, who was nominated almost a year sas Supreme Court. There is support does one have to wait to get a hearing? ago to the Eighth Circuit Court of Ap- In June of 2001, the American Bar As- from the American Bar Association. peals and has not been granted even There is support across the board. sociation, which has been called the the courtesy of a hearing before our gold standard of qualifications, agreed The NAACP president has written Judiciary Committee. asking for a hearing. Yet Judge and made a unanimous qualified deter- Dale Charles, the president of the Ar- mination. Chief Justice of the Arkan- Smith’s nomination languishes. Why? kansas NAACP, President Charles If he is confirmed, Judge Smith will be sas Supreme Court, W.H. ‘‘Dub’’ Ar- wrote: nold, well-respected jurist in the State the first African-American Arkansan He’s a fine person individually and in his on the Eighth Circuit. I wonder what of Arkansas, wrote on behalf of time on the Supreme Court he represented Lavenski Smith: the ladies and gentlemen of the press himself and the court well. I encourage them He is a great man. He is very intelligent. would be saying about this nomination to question him and let his record speak for He did a great job for us on the Arkansas Su- itself. I do not foresee his confirmation being were the tables reversed, were Repub- preme Court. I think he’ll make a great Fed- in jeopardy. licans in control and a Democrat nomi- eral judge. I think President Bush made the nee, an African American, who would This is Dale Charles, president of the best possible nomination he could have be the first on the Eighth Circuit Court Arkansas NAACP. Dale Charles wrote made. S4110 CONGRESSIONAL RECORD — SENATE May 9, 2002 Now, Justice Arnold is a Democrat, Holding up judicial nominees is not Mr. REID. Mr. President, there have but he is a fair-minded Democrat and just a political game. The confirmation been a couple of speeches on judges. I he is a distinguished jurist and he process is not a payback opportunity will say a few things pertinent to the weighs in and says President Bush for perceived wrongs of the past, nor discussion regarding judges. made the best possible nomination he should it be viewed as a chance to There is no better place to start than could have made. throw a roadblock before a new Presi- a few statements made by the Repub- We put in a call to Judge Smith to dent’s administration. The American licans in recent days. In 1999, the Re- let him know I would be making these people are watching the Senate’s fail- publican leader, Senator LOTT, said: remarks on his behalf in this Chamber. ure to fulfill its constitutional duty, I am saying to you, I am trying to help Judge Smith said: Well, go ahead. I do and they are wondering if we under- move this thing along, but getting more Fed- not think it will make much dif- stand what our role is. eral judges is not what I came here to do. ference, but go ahead. Last week, I received a call from a That is the Republican leader. I was so crushed that he is so cynical constituent in Arkansas. She had pre- The Senator from Pennsylvania, Sen- about the process that has already de- viously written to me asking me why ator SANTORUM, said on November 11 of layed this nomination for a year and the President’s very well-qualified 2001: not even given him a hearing, that his nominee to the Eighth Circuit Court of The delays are a result of ‘‘rank partisan- attitude about pushing hard for it real- Appeals, Lavenski Smith, has been ship by Tom Daschle.’’ ly will not accrue to any results. waiting for close to a year without the But this is what he said on the 18th , Governor of the courtesy of a hearing. I responded the day of August the year 2000: State of Arkansas stated: way I am sure many Members do, by A number of my Republican colleagues are He just has all the equipment to be an out- pointing out the letters I have written not likely to rush President Clinton’s life- standing jurist. I’ll be the first to predict supporting Judge Smith’s nomination, time judicial nominees through the con- that his next stop will be the United States urging quick attention by the Judici- firmation process when they think there is a Supreme Court. ary Committee. I told her I was work- chance another party could occupy the Governor Huckabee is a Republican. ing hard to convince the committee to White House in January. So we have Dub Arnold, a Democrat, examine his qualifications, as I knew My friend, Senator CRAIG of Idaho, and we have Mike Huckabee, a Repub- they would find his stellar record more said in June of 1996: lican. We have the NAACP. We have than adequate for the job. I wrote to There is a general feeling . . . that no more the American Bar Association in June this lady, my constituent, that Senate nominations should move. I think you’ll see of 2001 saying that a unanimous quali- procedure required the nominations to a progressive shutdown. fied determination has been made re- be reported out of the Judiciary Com- Now what he is saying: garding Judge Smith’s nomination. Yet mittee. There seems to be a concerted effort to op- he waits. It has now been almost 1 year She received my letter and called me erate very slowly around here. since he was nominated. last week. She said she had looked My friend, ORRIN HATCH, the chair- I have thought and thought, why? I through her Constitution and wanted man of the committee, talked about understand a nomination that is con- to read to me article II, section 2.2, his ideology. He said, when chairman of troversial, a nomination that has se- which states that the President shall the committee a couple years ago: vere opposition within the State of Ar- appoint justices with the advice and kansas—perhaps if the letter from the I led the fight to oppose the confirmation consent of the Senate—not the Judici- of these two judges because their judicial president of the NAACP had been a ary Committee. She wanted to know records indicated they would be activists critical letter or perhaps if his col- why the Senate was allowing a par- who would legislate from the bench. leagues on the Arkansas Supreme tisan hijacking of Senate procedure to A couple of months ago he said: Court had come out publicly and said prevent fulfillment of our constitu- I would like to address some recent at- they question his qualifications, per- tional duty. tempt to reinvent history by repeating this haps then there would be some way to I tell this story to illustrate that the convenient myth that I, as chairman, understand why there has not even vacancy crisis in the judiciary is hav- blocked President Clinton’s nominations on been a hearing for Judge Smith. ing affects beyond the administration the basis of political ideology. So I have thought about why, and the of justice. Our failure does not just cre- That is what he said. only opposition I can find, I say to my ate backlogs that allow dangerous Again, my friend, the Republican distinguished colleagues and to our criminals on the street longer, leaves leader said: Presiding Officer today, to Judge the innocent waiting longer for vindi- The reason for the lack of action on the Smith’s nomination is found on two cation and slow victims access to jus- backlog of Clinton nominations was his Web sites. One is NOW, the National tice. When we leave half of the bench of steadily ringing office phone saying ‘‘no Organization for Women, and the other a court of appeals empty and another more Clinton Federal judges.’’ is NARAL. one only two-thirds full, the American Senator LOTT said he received a lot Judge Smith, for all of his qualifica- people start to doubt our ability and of phone calls saying ‘‘No more Clinton tions, all of his distinguished service, our will to carry out our constitutional judges.’’ So that is what he did. all of his commitment to the poor, duties. He said to the Bulletin’s needy, and handicapped in our society, I know my colleagues on both sides Frontrunner, a newspaper: has one grave shortcoming: He is pro- of the aisle share my reverence and re- Until we get 12 appropriations bills done, life. There are those on the Judiciary spect for the Constitution. I hope we there is no way any judge, of any kind, or Committee who have said: Don’t send will move forward and confirm, or at a any stripe, will be confirmed. us a pro-life nominee. They are dead on very minimum, have hearings and Senator HATCH said: arrival. That is tragic. votes on the 44 nominees still pending, The claim that there is a vacancy crisis in To those who for years have de- including my very qualified and very the Federal courts is simply wrong. Using nounced the idea of a litmus test to the dear friend, Lavenski Smith, who the Clinton administration’s own standard, Federal bench, that we only look at would be a very able jurist and judge the Federal Judiciary currently has virtual full employment. whether one is qualified or not, no one on the Eighth Circuit Court of Appeals. raised the issue of whether Judge This will set an important precedent We have established the vacancies in Smith is qualified. Yet the only opposi- for this circuit court of appeals by the Federal judiciary created by Re- tion has been NARAL and the National serving as the first African American publicans. Senator HATCH said don’t Organization of Women, and they say on the Eighth Circuit Court of Appeals. worry. he is pro-life; he has a record of being I ask once again, after nearly a year, Although just a short time ago he pro-life. How can we possibly consider for a hearing for my friend and for said: him for the Eighth Circuit Court of Ap- movement on these very important ju- If we don’t have the third branch of gov- peals? That is a litmus test if there dicial nominations. ernment staffed, we’re all in trouble. ever was one, and they are blatant I yield the floor. The Republicans say they want hear- about it. So we wait. And Judge Smith The PRESIDING OFFICER. The Sen- ings. I heard my friend from Arkansas waits. ator from Nevada. say they want hearings. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4111 These are people President Clinton How much time is remaining on this Though Baseball Commissioner Bud nominated who never ever got a hear- side of the aisle? Selig sought to fix some of the prob- ing—not 2 days later, 2 weeks later, 2 The PRESIDING OFFICER. Fourteen lems of the past when, a few years ago, months later, 2 years later. They never minutes. he awarded an annual $10,000 pension got a hearing. Fine people. In Illinois, Mr. LOTT. On each side? benefit to some of the Negro Leaguers, Wenona Whitfield; in Missouri, Leland The PRESIDING OFFICER. Yes. he left out those who played solely in Shurin; in Pennsylvania, John Bingler; Mr. LOTT. Mr. President, the major- the Negro Leagues from 1948 to 1960. in South Dakota, Bruce Greer; in Cali- ity leader took some time at the begin- Major League Baseball contends they fornia, Sue Ellen Myerscough; Texas, ning of this debate. Was that out of were left out because the sport was in- Cheryl Wattley; in Texas, Michael leader time? tegrated during that time. But an ac- Schaffman. Mr. REID. It was not out of leader curate reading of history shows it took Circuit judges in the Fourth Circuit, time. the Big Leagues many years to inte- James Beaty; Richard Leonard, never Mr. LOTT. It was not out of leader grate following Jackie Robinson’s got hearings; Annabelle Rodriquez. In time? debut. In fact, the Boston Red Sox the 105th Congress, Helene White, Ohio; The PRESIDING OFFICER. It came didn’t have a single black on its team Jorge Rangel in Texas; Jeffrey Cole- out of morning business time. until 1959—more than a decade after The Senator from Florida. man, North Dakota; James Klein, Dis- Robinson’s move to the Majors. Mr. NELSON of Florida. I ask, of the trict of Columbia; Robert Freedberg, The players still seeking a small re- remaining 14 minutes, that I have con- Pennsylvania; Cheryl Wattley, Texas; tirement have been reaching out to sent to have 5 minutes and the remain- Lynette Norton, Pennsylvania; Robert Commissioner Selig now for 5 long ing time for my colleague from Min- Raymar, Third Circuit; Legrome Davis, years now. But their requests have nesota, to be followed by me. been ignored. I joined them last year in Pennsylvania; Lynne Lasry, California; Mr. LOTT. I reserve the right to ob- trying to find some resolution to this Barry Goode, California. No hearings. ject, Mr. President. I believe the agree- dispute, but my efforts to meet with In the 106th Congress, 33 never get a ment was we would have it equally di- Commissioner Selig also have been ig- hearing: H. Alston Johnson, Louisiana; vided; we could go back and forth. So nored. James Duffy, Hawaii; Elana Kagan, after 5 minutes I would like to then Meantime, these ex-players are get- District of Columbia; James Wynn, have an opportunity to speak out of ting old. Three of them died late last North Carolina; Kathleen McCree- our time on this side. month—two on the same day. Lewis, Ohio; Enrique Moreno, Texas; Mr. NELSON of Florida. Then, Mr. On April 23, we lost James ‘‘Pee Wee’’ James Lyons, Colorado; Kent Markus, President, I will yield to the Senator Jenkins, a native of Virginia. Jenkins Ohio; Robert Cindeich, Pennsylvania; from Minnesota. He has a time prob- pitched for the New York Black Cu- Stephen Orlofsky, New Jersey; Roger lem. bans. Gregory, Virginia; , Mr. WELLSTONE. Mr. President, Just last year, Jenkins threw out the Colorado; Elizabeth Gibson, North that is very gracious. The Senator first pitch at Shea stadium, as the 2001 Carolina; J. Rich Leonard, District of from Florida will go now followed by Mets—dressed in Black Cuban uni- Columbia; Patricia Coan, Colorado; the minority leader and then I will fol- forms—paid tribute to Jenkins and the Dolly Gee, California; Steve Bell, Ohio; low the minority leader. rest of his fellow 1947 Negro League Rhonda Fields, District of Columbia; S. The PRESIDING OFFICER. The Sen- World Series champions. David Fineman, Pennsylvania; Linda ator from Florida. Riegle, Nevada; Ricardo Morado, James Cohen, Sr., of Washington DC, f Texas; Gary Sebelius, Kansas; Ken also died on April 23. A World War II Simon, Hawaii; David Cercone, Penn- THE NEGRO LEAGUES veteran, he pitched for the Indianapolis sylvania; Harry Litman, Oklahoma; Mr. NELSON of Florida. Mr. Presi- Clowns from 1946 to 1952, earning the Valerie Couch, Oklahoma; Marion dent, last week I learned of the death nickname ‘‘Fireball.’’ Johnston, California; Steve Achelphol, of three men. They lived apart from In his last year with the Clowns, he Nebraska; Richard Anderson, Montana; each other—one in Florida, one in Vir- played with the great, legendary Hank Stephen Liberman, Pennsylvania; Mel- ginia, and one in Maryland—but they Aaron. Mr. Cohen went on to be a post- vin Hall, Oklahoma. shared a special past. al clerk for 35 years. And in 1994, he Before I sit down, they talk about All three played in baseball’s Negro was honored at the White House by Hispanic nominees. There is a Hispanic Leagues. They did not receive million- Vice President Al Gore. Mr. Cohen was nominee they say has not moved quick- dollar contracts. They did not get en- survived by two sons, seven grand- ly enough. dorsement deals. They just played children and five great-grandchildren. Jorge Rangel, who was nominated in baseball. Back in Florida, we lost Eugene July of 1997, never got anything. Sadly, these three men were part of a White, of Jacksonville, on April 26. He Enrique Moreno, Fifth Circuit, nomi- group of about 165 players who never was an infielder for the Chicago Amer- nated in 1999, didn’t get anything. received a pension for their time in the ican Giants and the Kansas City Mon- Christine Arguello, July of 2000—noth- leagues. archs. As a retiree, he coached little ing happened. Ricardo Morado, south The Negro League was founded in league. On the playing field, he taught Texas—nothing happened. Anabelle 1920 by Andrew ‘‘Rube’’ Foster. With 72 more than baseball. Rodriguez—these are just some of the teams and more than 4,000 players, the Rob Stafford, one of Mr. White’s names. Negro Leagues lasted until 1960, when former players, recently recalled some I suggest before the tears run too its last team folded. of the lessons Mr. White taught the heavily down the cheeks of my Repub- For half a century, most of the Negro kids. lican friends, they should go back and League players were denied the oppor- Said Mr. Stafford: read their own statements given by tunity to play in the Majors. He taught me a lesson that I only learned their own Senators, and find out the Even though Jackie Robinson broke to appreciate as a man—the lesson of toler- the color barrier in 1947, it took an- ance. States where people who were nomi- He taught to never prejudge, minimalize or nated by President Clinton never got a other decade for Major League Baseball marginalize a person. He taught me that hearing. to really become integrated. All the every person deserves a chance to partici- The PRESIDING OFFICER (Mr. CAR- while, baseball had its antitrust ex- pate, to be included. . . . PER). The Senator from Florida. emption to unfairly compete against He is now a star on God’s level playing Mr. NELSON of Florida. Mr. Presi- the Negro Leagues, and systemically field. dent, how much time do we have re- discriminated against most Negro Mr. White, Mr. Jenkins and Mr. maining on this side? League players for many years after Cohen were some of baseball’s living The PRESIDING OFFICER. The Sen- 1947. legends. But these legends are dying. ator has 14 minutes. That is the crux of the argument And so today, to Mr. Selig and to Mr. LOTT. Mr. President, parliamen- many of these old-timers have about Major League Baseball, I say this: time tary inquiry, if the Senator will yield: not getting even a small pension. is running short for you to do the right S4112 CONGRESSIONAL RECORD — SENATE May 9, 2002 thing. Major League Baseball can about all of these people. Gosh. You This is outrageous—these are hard- choose to resolve this issue and, can talk about what we say we believe in— working, decent, compassionate men give these players a small token for people who have just worked their and women who have devoted their their achievements. heads off all of their lives, taconite lives to the steel industry—an industry I sincerely hope Major League Base- workers, helping to produce steel, that is essential to our national secu- ball will. which is so critical to our national se- rity—and now they find themselves The PRESIDING OFFICER. The Sen- curity, and a part of all of our military without health insurance they were ator from Minnesota. efforts. People are really proud and are promised in their retirement because Mr. WELLSTONE. I thank my col- proud of their families. They are proud their companies have gone bankrupt, league from Florida for his very elo- of the range. Through no fault of their they’re out in the cold without the re- quent statement. Second, I thank the own, 32 steel companies have declared sources to pay for health insurance, minority leader, Senator LOTT from bankruptcy, and then they walk away and the President says, oh, no, they Mississippi, for his graciousness in let- from these people. don’t need the 1-year lifeline this bill ting me proceed. I will try to be brief. They say they can no longer cover offers. f their health care benefits, nor their re- Frankly, President Bush talks about tiree benefits. Many people are afraid what he’s done for the steel industry HEALTH INSURANCE ASSISTANCE of no longer having prescription drug and for steel workers. But there is not Mr. WELLSTONE. Mr. President, coverage. a lot of substance there. last week I said to people in northern People were really hopeful, and I was First, we had a section 201 decision Minnesota—specifically northeast Min- able to report last week, and I was that is looking more and more cos- nesota on the Iron Range—that I proud. I thank Senators ROCKEFELLER, metic. It may have brought relief to thought we had a real breakthrough. I MIKULSKI, STABENOW, LEVIN, and cer- some sections of the steel industry, ex- thought it was part of fast track on tainly my colleague MARK DAYTON. We cept that now the administration is en- trade adjustment authority, including worked hard to have iron ore and taco- tertaining all sorts of exceptions— legacy costs, and a 1-year bridge where nite included. there are over 1,000 exceptions to the health care costs would be covered. This was a pragmatic part of the President’s section 201 decision and Through no fault of any of the retirees, trade adjustment assistance—only a 1- Secretary O’Neill is reported as saying a lot of these companies, including year bridge, but it was a start. It would that ‘‘a significant portion of them will LTV, declared bankruptcy and walked give people some security, and it was be favorably decided.’’ away from health care benefits, which the right thing to do. Then there is the fact that the deci- is terrifying to people in their older The President has talked about his sion did nothing to help Minnesota’s age. concern for steelworkers. Over and Iron Range—nor the iron industry as a Yesterday, the administration came over again, he professed his concern for whole—deal with import surges of out with a statement about this trade steelworkers. Then, specifically, the semi-finished slab steel. While the administration opposes the Daschle adjustment assistance package: President imposed tariffs on every substitute last-minute addition of other product category for which the Specifically, the administration opposes health insurance assistance for steel the Daschle substitute last-minute addition International Trade Commission had retirees. of health insurance assistance for steel retir- found injury, for steel slab he decided ees. We know there is going to be a point of order and a budget challenge on this to impose ‘‘tariff rate quotas.’’ This There is a nightmare. I say to my amendment. I believe what the White brings us virtually no relief. Nearly 7 colleague from Mississippi that this is House has now done is basically sealed million tons of steel slab can continue an absolute nightmare for people on its fate. We are not going to be able to to be dumped on our shores before any the range. have this bridge. We are not going to tariff is assessed. For folks on the Iron The President talked about how con- be able to have this assistance for peo- Range, the injury will continue. Then, the President in his section 201 cerned he is. But this is just a 1-year ple. bridge to help pay for these retirees’ I question this fast track for a lot of decision—and subsequently—has to- health care costs until we put together reasons, but, at the very minimum, tally ducked the serious legacy cost a package that deals with the legacy when people are out of work through problem that is suffocating the domes- costs for the future. no fault of their own—or people work tic steel industry. In the last 2 years, 32 The President crushed the hopes of for an industry that has been besieged U.S. steel companies have filed for people with this position that the with unfair trade—the only thing they bankruptcy, and these companies rep- White House has now taken. are asking for is a bridge to make sure resent nearly 30 percent of our domes- The President says: Look what I have retirees don’t lose their benefits. tic steel making capacity. These fail- done for the steel industry. He talks All of us have worked so hard to- ures weren’t the fault of the workers at about section 201, but now there are gether—Senator SPECTER and Senator these companies. These failures re- 1,000 exceptions to the kind of trade re- DEWINE—to get this done. Now the ad- sulted from unfair and predatory prac- lief we thought we were going to get ministration comes out yesterday and tices of our trading partners over an through section 201. torpedoes the whole thing. extended period. Yet despite the moral In Minnesota, we were concerned Mr. President, are you for the taco- and economic imperative to do some- about what was happening to the taco- nite workers on the Iron Range? Are thing about this legacy cost problem so nite industry. We were talking about you for the steelworkers? You say you that the steel industry, so essential to the unfair competition from semi- are. our national security, can rebuild and finished slab steel. We will be back on this over and over revitalize itself, the President has Basically, the administration came again. But this is a huge blow for the washed his hands of the matter. It is up with a tariff quota, and it was 7 mil- Iron Range in Minnesota and for me as somebody else’s problem he says. lion tons of slab steel a year, which is a Senator from Minnesota trying to do And now there is the current bill. what is being dumped right now on the my best to represent people. Those of us who are serious about this range. It didn’t give us any relief what- Yesterday the President made it very legacy cost problem, and it is a bipar- soever. clear that all of his talk about helping tisan group, have introduced S. 2189, But, most important of all, what is the hard-working men and women of the Steel Industry Retiree Benefits happening now with this statement of the U.S. steel industry is just that— Protection Act of 2002, to address the position by the administration is they talk. His latest pronouncement is that legacy cost question in a comprehen- are just walking away from dealing steelworker retirees don’t need the as- sive way. In the meantime, however, with the legacy costs. sistance this bill would have provided recognizing that every day steelworker Jerry Fowler, who testified before to help them for 1 year to pay for retirees whose companies are going the HELP committee a couple of weeks health insurance they are losing be- bankrupt are losing their heath insur- ago, president of Local 4108, talked cause their company has gone bank- ance, Senator DASCHLE introduced pro- about the pain on the range, and talked rupt. visions to provide stop gap assistance— May 9, 2002 CONGRESSIONAL RECORD — SENATE S4113 1 year of health insurance to retirees JUDICIAL NOMINATIONS including serving as Assistant U.S. So- who right now are losing their bene- Mr. LOTT. Mr. President, I have been licitor General under President Clin- fits—to tide folks over while we work wanting to speak about the situation ton, a Supreme Court law clerk, argu- on the larger problem. with regard to the President’s judicial ing 15 cases before the Supreme Court, And that, incredibly, is what Presi- nominations. I have a number of points and working as a Federal prosecutor. dent Bush yesterday announced his op- I wish to make. He also graduated magna cum laude position to. It is now abundantly clear, I know there were some discussions from Harvard Law School—not an in- if there had been any doubt, that this about the nominations earlier this stitution known for turning out con- President is not interested in health morning and even this afternoon. The servative lawyers, or judges—but cer- and well-being of our steelworker fami- major point we are trying to make tainly an eminently respected institu- lies. today is that today is the 1-year anni- tion as far as quality, high standards, In Minnesota, on the Iron Range, versary of eight of the President’s and academic rigor are concerned. Yet there are several thousand retirees who nominations to serve on circuit courts. Estrada has been denied a fair hearing. find themselves in desperate need of as- These minorities, men and women, Why? Noone has suggested he is not sistance and this administration is have not even had the courtesy of a qualified by education, by experience, turning its back on them. hearing, let alone a vote in the Judici- or by professional or personal integ- Earlier this year, the HELP Com- rity. mittee held hearings on the need for ary Committee. I have learned over the years that Does he have a conservative philos- legacy cost legislation both for retirees when you are talking about judges and ophy? Does he believe in strict con- and for the industry. The testimony judicial nominations each side will struction of the Founder’s intent in in- was riveting. The need compelling. My have their statistics about what hap- terpreting the Constitution? Yes. Does good friend, Jerry Fallos, president of pened in the Clinton years, what hap- that disqualify him? It should not. Local 4108 of the United Steelworkers pened in the Reagan years, and what I voted for Justice Ginsburg when she of America, testified at those hearings. came before the Senate. I did not agree The stories he had to tell were grim in- happens right now. But the fact is, these eight nominees have not even with her judicial or legal philosophy. I deed. knew she would rule quite often in As Jerry said, the people of the Iron had a hearing; they have been pending for a full year. ways with which I would not agree. Range are used to hard times. They While most justices exercise discretion, have weathered any number of chal- There are actually 11 nominees who were sent forward in a group—the first you can’t always count on how they lenges over the years. They are good may rule. But she was qualified by ex- people, proud, hard working—the best nominations of President Bush. Three perience, by education, and by personal you can find anywhere. They are sur- of those have been confirmed. Two of integrity and demeanor and I voted for vivors—and they will get through these those, I might add, were recycled, in ef- her regardless of the fact that her phi- difficult times as well. They have given fect, because they were Democrats, or losophy was contrary to my own. much to their country, and now they were selected by Democrats, and they were qualified. The President resub- Unfortunately, I cannot think of any need our help. other reason than ideological prejudice The good people of the range have re- mitted their names. They got through for why Miguel Estrada has not had a sponded to their country in its times of the process. But these eight have not hearing and an opportunity to be voted needs. Over the years our Nation’s had any further consideration for a full economy flourished and our manufac- year. on—despite the fact that he was unani- turing industries boomed from the iron You can argue statistics. But usually mously given the ABA’s highest rating, ore produced through the labors of Presidents get their circuit nomina- ‘‘well qualified’’ by the American Bar steelworkers on the range. tions confirmed within a year of having Association which is supposed to be the Yesterday, when President Bush an- them sent forward. Democrat’s Gold Standard for evalu- nounced his opposition to helping these The President sought men and ating nominees judicial qualifications. steelworker retirees he said it would women of great experience and who Yet, Miguel Estrada has not even had a cost too much. We think his $800 mil- meet the highest standards of legal hearing. lion estimate is way off, but even if training, temperament, and judg- Another example, which is clearly you accept it at face value, it pales in ment—for all of his nominations, but one that is hard to understand, is the comparison to the billions and billions particularly for this first group of cir- delay in considering Justice Priscilla of dollars of tax giveaways this admin- cuit court nominees. Owen, a nominee to the Fifth Circuit istration is happy to make available to He sought out nominees who respect Court of Appeals. I have a special feel- multinational corporations and the the powers given to them by the Con- ing in my heart about this circuit be- wealthy. stitution and who will interpret the cause it does include my State of Mis- We are talking about $120 billion over law—not make the law. He sought out sissippi. Judge Owen has served on the 10 years to make the estate tax perma- nominees who have reputations as law- Texas Supreme Court since 1994. She nent, and $400 billion over 10 years to yers of skill, discernment, and high has been involved in business in the make all of the tax cuts permanent. character. He even sought out nomi- private sector. She is an outstanding Are these our priorities—$400 billion to nees who had a great deal of experience graduate of Baylor Law School in multinational corporations and in arguing cases before the Supreme Texas. wealthy individuals as opposed to $400 Court. In this group of eight nominees, Again, by education, by experience, million to help steelworker retirees they have collectively appeared before and by personal integrity, this is a lady keep their health insurance for 1 year? the Supreme Court over 60 times. One who should have been accorded a hear- I have asked many time before: of the nominees has alone argued be- ing and a vote by now in the Judiciary Where are our priorities; where are our fore the Supreme Court 30 times. In Committee and on the floor of the Sen- values? How can we tolerate such terms of their education, their experi- ate. choices—tax breaks to help multi- ence, and their integrity, this group is Mr. President, why do we need an- nationals over health insurance for unimpeachable and quite remarkable. other pound of flesh concerning the steelworker retirees? Here are these individuals’ pictures. I Fifth Circuit Court of Appeals? Is These families need our help. I urge think a picture helps inform our de- Judge Charles Pickering who has al- my colleagues not to turn our backs on bate, because it takes the debate away ready been voted down in the Judiciary these men and women who have served from the realm of just statistics or Committee not enough. If we are look- their country so well. mere names. ing for tit for tat, how about just say- The PRESIDING OFFICER. The Re- Mr. President, when we are talking ing: OK, good, take that, Mr. Presi- publican leader. about judges who have been delayed, dent, TRENT LOTT, Republicans, we re- Mr. LOTT. Mr. President, how much we are talking about Miguel Estrada, paid you what you deserved from the time do we have remaining? who was born in Honduras, and has past? But how does all of that apply to The PRESIDING OFFICER. Fourteen lived the American dream. He has tre- Priscilla Owen? Why has this lady not minutes. mendous experience in his profession, been accorded a hearing? Remember, S4114 CONGRESSIONAL RECORD — SENATE May 9, 2002 once again, that she has been pending School. This is one of the two nomi- garding judges. We had six judges on for a full year. nees, the other being John Roberts, the calendar ready to be voted on; but One interesting thing of note, Mr. who was first nominated to be a circuit only four were moved, the other two President, is that two of these nomi- court judge back during the first Presi- were not. One of the two nominees has nees, were actually nominated by the dent Bush’s administration. He was a very close association with Senator first President Bush. So they in a sense younger and well experienced then, and HATCH. The other one is the lone cir- have been waiting over 10 years to get he now has another decade of experi- cuit judge on the calendar. So, once a fair hearing and be confirmed to the ence as a Federal district court judge again, it appears circuit judges are re- circuit courts. to his credit. And here he is back ceiving worse treatment by the Judici- John Roberts is one of those two, and again, only to be denied a fair hearing ary Committee than are the Federal has again been nominated to the DC by the Democrats. district court nominees. Circuit Court of Appeals. He is one of So, in each and every one of these I realize around here we get to think- the Nation’s leading appellate lawyers, cases, there is no explanation for the ing: Well, wait a minute, circuit courts having argued 36 cases before the U.S. year-long delay in giving President are more involved in the interpretation Supreme Court, and serving as a Dep- Bush’s first group of nominees prompt of the law. Maybe they are more impor- uty Solicitor General for our Nation. and fair treatment. tant. But I will tell you what, if you He also graduated magna cum laude Michael McConnell has been nomi- ever practiced a day of law, the ones from Harvard. So again, by education, nated to the Tenth Circuit Court of Ap- you see who really are dealing with the by incredible experience, and by per- peals and again he is an eminently law every day are the Federal district sonal integrity, he has stellar quali- qualified legal scholar. He is one of the judges. I do not understand the big di- fications to serve as a circuit court Nation’s leading constitutional schol- chotomy here and why the circuit judge. Yet, he too has been denied a ars, the author of legal books, and a judges are being delayed and treated so fair hearing and an opportunity to be prolific contributor to law journals. He unfairly. considered by the Senate by the major- has argued 11 cases before the Supreme I want to point out what is happening ity of Democrats on the Judiciary Court. His reputation for fairness and in terms of these circuit judges nomi- Committee. integrity has generated support from nated by President Bush as compared Mr. President, our Nation’s fourth numerous law professors. He is a grad- to the treatment that was afforded cir- President, James Madison, was cer- uate of the University of Chicago Law cuit court nominees during President tainly correct when he said that the School. Again, on what possible Clinton’s first two years in office. courts exist to ‘‘exercise not the will of grounds is such an extraordinarily First off, I should note that while men, but the judgment of law.’’ This qualified individual denied a hearing President Bush sent his first nomina- President has gone to great lengths to for over a year? tions up on May 9, 2001, a year ago, Judge Dennis Shedd, a nominee to nominate the kind of men and women President Clinton did not send up his the Fourth Circuit Court of Appeals, who will do that once they are con- first batch of nominations to the Sen- was another nominee unanimously con- ate until August of his first year in of- firmed. Another nominee who has been de- firmed to be a Federal district judge in fice. 1990—yet another sitting Federal dis- So, there was actually less time to layed for over a year without cause or trict judge, Mr. President. He is strong- actually get President Clinton’s nomi- justification, is Justice Deborah Cook, ly supported in his home State by both nees confirmed than there has been to nominated to the Sixth Circuit Court Senators—Senator FRITZ HOLLINGS and get George Bush’s out. of Appeals. She has served as a justice Senator —and served Yet you can see from the chart what on the Ohio Supreme Court since 1994. in the past as chief counsel to the Sen- is actually happening with Bush’s Before becoming a judge, she was the ate Judiciary Committee. He is one of nominees, particularly with respect to first woman partner at Akron’s oldest ours no less. Yet, he has been waiting the circuit judges. President Clinton, law firm. She is a graduate of the Uni- unjustifiably for over a year for a fair in the 14 months after his first nominee versity of Akron Law School. hearing and a vote. was sent up, got 86 percent of them This is the circuit where half of the Mr. President, I believe I have talked confirmed by the time Congress ad- judicial seats are vacant. There is a about each one of the nominee’s per- journed. Ultimately, over the course of long history on why that is, but the sonal qualifications to serve on the cir- the following Congress, Clinton ended fact is that again the nominee is an cuit courts of America. I should note up getting almost all of the judges he eminently qualified nominee. And she that, back in January, the chairman of nominated during his first Congres- has been waiting 52 weeks for a hearing the Judiciary Committee indicated sional term. Again, I am not going to even though the ABA voted unani- there would be a hearing for Justice get into great arguments over the mously that she was qualified. Priscilla Owen, Michael McConnell, exact percentages or numbers, but So what is the problem, Mr. Presi- and Miguel Estrada—and that they there is clearly a problem here. While dent? There are no allegations of im- would have hearings this year. Now, I Clinton got 86 percent of his circuit proper conduct. There are no allega- guess we have 4 more months that have judges by the time his first Congress tions that she is not qualified by expe- expired, another 4 months in which adjourned, President Bush only has 30 rience, by education, or by demeanor, they have not been given a hearing percent so far. And at the current pace yet she is still waiting on a hearing. much less a vote. the judiciary is considering Bush’s Yet another nominee unjustifiably I hope they will given more than the nominees, it looks like Bush is not delayed is Judge Terrence Boyle, a courtesy of a hearing, which seems the going to break 50% by the end of this nominee to the Fourth Circuit Court of minimum they should have. They Congress. Appeals. He was unanimously con- should have a vote in the Judiciary It looks as if we might get two or firmed to be a Federal district judge in Committee and then a vote here in the three more circuit judges by the end of 1984. full Senate. the year, but it surely is moving delib- Mr. President, one of the things that Mr. President, the delay in con- erately slowly. The American people struck me as very interesting about firming such well qualified nominees to recognize this is a problem for the Judge Pickering’s treatment by the be judges has had an adverse impact on country. When you have a circuit like Democrats was that he has been a sit- the judicial system itself. The number the 6th circuit that has a 50-percent va- ting federal district court judge since of vacancies has gone up over the past cancy rate, then you begin to wonder, 1990, over 12 years. And now we have a year—there are now almost 100 judge- do we have enough judges to cover all nominee who has been a Federal dis- ships vacant—while 44 nominations the cases, even the truly important trict judge for almost two decades, who languish in the Senate. As a result, jus- ones? was unanimously confirmed in 1984. tice is being delayed as the caseload This is a question of law and order, The former chairman of the State burden increases for almost every cur- Mr. President, drug cases, terrorist Democratic Party in North Carolina rent judge in the nation. cases. even supports his nomination. He is a I would take a moment to note one Justice Rehnquist, the Chief Justice, graduate of ’s Law curious thing about today’s efforts re- has decried the vacancy crisis as May 9, 2002 CONGRESSIONAL RECORD — SENATE S4115 ‘‘alarming.’’ More than 10 percent of posts. And the Senate has a responsi- was about. He wants to see more hap- Federal judgeships are currently va- bility to give those choices every pos- pening and more of them occurring, cant. So this problem for our nation sible consideration and, barring some and we need to do so. People have been that is very serious, particularly after glaring defect, confirm them quickly. pretty clear on the information of what the terrorist attacks in New York and Yet the backstabbing and stalling on technically and specifically has hap- here in Washington. judicial confirmations has escalated to pened. I have talked to Senator DASCHLE the point of obstructing justice. It Since May 9 of last year, we have had about it. Senator NICKLES and I, along needs to stop.’’ 11 judicial nominees for the U.S. cir- with Senator HATCH, have talked to This President’s nominees are men cuit courts of appeal. Those eleven Senator LEAHY and Senator REID. I and women of distinction and great ac- were nominated 1 year ago. Since that know, having been majority leader, complishment. They are solidly within time, only 3—including 2 Democrats— that sometimes these problems are the mainstream of American legal have been confirmed. Of the remaining hard to resolve. The Judiciary Com- opinion, and they share a principled 8, not one has even been scheduled for mittee doesn’t always follow instruc- commitment to follow the law, not leg- a hearing. We have not held hearings tions even from the elected leaders. islate it from the bench. on these individuals. We need to get But this creates a problem. We have Mr. President, President Bush’ nomi- this done and start to move them for- been trying to resist slowing down or nees should be given fair hearings, ward. It is an issue that is engaging the blocking meetings or progress on the voted on, and confirmed by the Senate country, and I think increasingly so, as legislative process because we want to as soon as possible. we move into the fall. We have a num- move forward on these important bills. I suggest the absence of a quorum. ber of pieces of legislation that I think, But we have to point out that there is The PRESIDING OFFICER. The in the post 9–11 environment, will be a blatant unfairness here, to the coun- clerk will call the roll. considered and looked at by the courts try and to the nominees. I can’t help The senior assistant bill clerk pro- and need to be reviewed. We need to but think of the cliche that justice de- ceeded to call the roll. have a fully staffed court. Right now layed is justice denied. That is what is Mr. DASCHLE. Mr. President, I ask we have a 20-percent vacancy on the happening here. unanimous consent that the order for circuit court; and within some of the I know my time is running out. I the quorum call be rescinded. circuits, it is even a much larger one. probably will come back and talk more The PRESIDING OFFICER. Without In the Sixth Circuit there are 16 posi- about this later. I ask for fairness, fair- objection, it is so ordered. tions and only half of those are filled. What is even more troubling is that ness for these eight circuit judges. We Mr. DASCHLE. Mr. President, the we have had a long and established tra- can argue about the others later, the people who have been discussing and dition of giving the President—regard- other circuit nominees, other district negotiating the trade matter have less of his political affiliation—a good judges, but after an entire year Presi- asked for a little additional time. In deal of deference on his nominees who dent Bush’s first eight nominees should order to accommodate their discus- might be unfairly targeted as being ex- have a hearing. They should have a sions, I ask unanimous consent that tremists. vote on the Senate floor. No criticisms the period for morning business be ex- However, as we found out during the have been raised against them other tended until 3:45. Charles Pickering nomination and sub- than un-attributed hints that they are Mr. LOTT. Mr. President, at this sequent hearings, the real extremism is conservative, and the current majority point I would have to object. I don’t being employed by those people who in the Senate is looking for some sort know that I would want to. I just have are artfully using the terms ‘‘balance’’ of a litmus test or conformance, I not had a chance to discuss this with and ‘‘moderation’’ to set the stage for guess, based on philosophy and ide- Senator DASCHLE. ending deference to the President and ology. I don’t think that either fair or The PRESIDING OFFICER. The Sen- excluding perfectly qualified judges. appropriate. It is not what is called for ator from Georgia. Judge Pickering was an individual under the Constitution. I hope that the (The remarks of Mr. CLELAND per- nominated to go on the circuit court. Senate will ultimately find a way to taining to the introduction of S. 1492 He served on the Federal bench for over make progress in this area and give are located in today’s RECORD under 10 years. these nominees the opportunity to be ‘‘Statements on Introduced Bills and This practice does not bode well for fairly considered based upon their tem- Joint Resolutions.’’) the future of this committee when it perament, professional and educational The PRESIDING OFFICER. The Sen- may have to deal with Supreme Court qualifications, and their personal in- ator from Nevada is recognized. nominees in the near future. To high- tegrity. f light just how bad it can be, it might As President Bush has noted in mak- be helpful to see how many Supreme ing the case for getting his nominees EXTENSION OF MORNING BUSINESS Court Justices of the past would fare confirmed, Federal judges are key to under the ideological litmus test that making sure America functions well. Mr. REID. Mr. President, I ask unan- is now plainly evident and used on the Every day they uphold the rights of an imous consent that the time for morn- committee. individual, they protect the innocent, ing business expire at 3:45 today. Would some of our great Justices of they punish the guilty. Their rulings The PRESIDING OFFICER. Without the past survive the litmus test being are essential to the rule of law in our objection, it is so ordered. put forward by the committee now? nation. To discharge their responsibil- The Senator from Kansas is recog- John Marshall, the first Chief Justice ities the federal courts must have nized. of the Supreme Court and author of judges.’’ f some of the most important legal deci- Because of the number of vacancies sions for this Nation, would likely be JUDICIAL NOMINATIONS in our nation’s courts, Americans are rejected today by the Judiciary Com- being forced to wait for justice, and the Mr. BROWNBACK. Mr. President, I mittee because his view on interstate burden on federal judges is growing rise to speak about the past year’s ju- commerce in the Gibbons v. Odgen heavier. dicial nominations, which is something would be seen as too pro-federalism. Mr. President, one newspaper, the on which several people have spoken Oliver Wendell Holmes, perhaps the Wichita Eagle, got it exactly right on today. I just came from a meeting with greatest Supreme Court justice, would the judges issue back in March in part the President where he was talking have trouble because he affirmed a I think because it is located in the about his frustration in getting judi- state law providing for the sterilization heart of America when it said: ‘‘But cial nominees considered. He was quite of the mentally ill in Buck v. Bell. just as presidents have an obligation animated and discouraged that we have Felix Frankfurter, an ACLU member not to nominate the incompetent or not been getting more judicial nomi- and a ‘‘liberal’’ Roosevelt appointee, unqualified to the federal bench, presi- nees through the system—particularly would be rejected because he did not dents deserve the broad authority in circuit court judges. That is what he believe that the fourth amendment re- making their choices for such judicial was stating. That is what the meeting quired the exclusion of evidence seized S4116 CONGRESSIONAL RECORD — SENATE May 9, 2002 by State police officers without a war- vacancies on the Federal bench, and people who take a moderate point of rant in the 1961 Mapp v. Ohio case. Nor the first Bush administration—Presi- view. would his argument in West Virginia dent George W. Bush—and his efforts There are lawyers who I have met Board of Education v. Barnette that to fill vacancies on the Federal bench. that have extreme positions on the the first amendment prohibited schools I find it extremely interesting that right and the left. The Republicans on from requiring students to salute the today appears to be the national day the Senate Judiciary Committee sent American flag pass muster with the for members of the Republican Party word to the Clinton White House: Do committee today. to complain about the pace of approval not send us any left-wing judges be- Even Earl Warren, the most liberal of President Bush’s judicial nominees. cause they are going nowhere. True to chief justice ever and author of Brown What I find interesting about that their word, anyone who looked like v. Board of Education, would have a complaint is that, just on its face, it they were liberal did not have a chance tough confirmation battle under the makes no sense because we just ap- when it came to the Senate Judiciary committee’s new standard. After all, he proved four more Federal nominees Committee in the Clinton years. took the reactionary position of not who were brought to us by President Interestingly enough, it appears the supporting extension of the first Bush, bringing the total to 56. Bush White House believes they are not amendment protection to flag burning. Now, 56 Federal judges—to put it into burdened by the same restriction. They Louis Brandeis, the great liberal historic context—is more than the Re- are sending nominees for the Senate craftsman, would no doubt be rejected publicans, in any similar period of Judiciary Committee to consider who, because he supported federalism time, approved while President Clinton frankly, are out of the mainstream, against New Deal legislation and voted was in the White House during his en- much more extreme in their points of to strike down legislation in the tire tenure. In any given year, the Re- view on the right than anyone ever Schecter case as being beyond the publicans failed to approve as many nominated by President Clinton on the power of Congress. judges for President Clinton as the left. Byron White, President Kennedy’s Democrats have already approved for When they send these controversial nominee, whose recent passing was President Bush. Today, the total num- nominees to us, then we run into a po- mourned and elegantly eulogized ber came to 56. sition where it takes longer. We have around the Nation, would of course be Now, I understand where the Repub- to delve into their backgrounds, we rejected today because he committed licans are coming from on this. They have to establish their record, we have the unpardonable sin of disagreeing want them all. They want to fill every to answer the criticisms that have been with Roe v. Wade. vacancy with a proposed nominee from raised within and without the com- The question facing the President on President Bush, and they want this to mittee about whether this person this anniversary date is what he can do happen immediately. It is more than should be given a lifetime appointment to move judges to the floor for swift just rewarding their friends and giving to a critical Federal position. This morning my colleague on the confirmation. Given the extremist tac- them lifetime appointments to the Senate Judiciary Committee, Senator tics of outside interest groups and Federal bench. What is at issue here, SCHUMER of New York, held an inter- their influence over committee mem- even more importantly, is putting peo- esting subcommittee hearing. His hear- bers, the President could consider com- ple with a certain philosophy on these ing related to what he calls the ghost promising on his philosophy of nomi- Federal courts. Of course, their deci- of the nomination process from the nating judges, men and women of expe- sions as Federal judges are going to be Clinton years. I was glad Senator SCHU- rience who meet the highest standards meaningful to the Nation for genera- MER did that because on this day of na- of legal training, temperament, and tions to come—whether we are talking tional complaint by the Republicans, judgement. As history has shown, how- about rights of privacy or the environ- we brought to Washington four Clinton ment, all of these things decided by ever, it would mean overlooking the nominees who were not approved by kind of judges who have made our judi- judges. that same Senate Judiciary Committee Historically, we think, when we talk ciary a model for the world. Unlike when Republicans controlled it. We did about courts and their impact, that we some issues, the integrity of the law this so people who are following this should focus on the Supreme Court. Of and the qualifications of judges who debate could get an idea of the nomi- course, we should. It is the highest will interpret and uphold them cannot nees rejected by the Republican Senate court in the land. But just consider for be compromised. Judiciary Committee when President a moment this statistic: Last year, the I join my colleagues in urging Chair- Clinton nominated them. man LEAHY of the Judiciary Com- Supreme Court of the United States de- Frankly, as I look at the people who mittee and Majority Leader DASCHLE cided approximately 80 cases. The were brought before us, they are amaz- in scheduling hearings and floor votes courts of appeal, circuit courts, decided ing in terms of their records and their as soon as possible. I believe we have over 57,000 cases. backgrounds and what they brought to had ample time to make our points. For most people looking for justice the job. It’s now time to act. through the Federal court system, the Let me speak for a moment about the I think if we do not act, this is going court of appeals for their region is the Fifth Circuit which has become a focal to continue to fester across the coun- last stop, the final word. These courts point of discussion. Senator LOTT a few try, and that will embroil us even make binding decisions relative to minutes ago was talking about the greater this fall, with the President statutes that have been passed by Con- Fifth Circuit which, if I remember, in- leading the charge on this issue of why gress and issues that are important to cludes the States of Texas, Louisiana, the Senate isn’t acting. Why isn’t the the American people on a regular basis, and Mississippi. This circuit has the Senate moving these judges through— on a daily basis. highest minority population of any particularly circuit court judges? It So when we consider nominees by the Federal circuit in America. The popu- will be a much more engaged and ani- Bush White House for lifetime appoint- lation of African Americans, Hispanics, mated issue this fall, with the Presi- ments to these important appellate and Asian Americans is larger in that dent leading the charge. level courts, I hope you can understand circuit than any other circuit. I yield the floor. that those of us on the Democratic side Naturally, when President Clinton The PRESIDING OFFICER. The Sen- feel a responsibility to know something was in office, he tried to address this ator from Illinois is recognized. about the nominees, and, more impor- by appointing people to the circuit Mr. DURBIN. Mr. President, I rise to tantly, to make certain those nominees court who represented the diversity of speak in morning business on the topic come close to meeting several basic the circuit in which they would serve. that has been the issue du jour—the standards. One of those standards, of Two of his nominees came before us question of Federal judges. It is my course, is legal skill. We insist on that. today. great honor to serve on the Senate Ju- I hope that is something that is not de- Jorge Rangel, 54 years of age, is cur- diciary Committee. I have witnessed batable. Second is integrity, which is rently an attorney in private practice and experienced personally the Clinton certainly not debatable. Third, and in Corpus Christi, TX. He was nomi- administration and their efforts to fill most important, we are looking for nated to the U.S. Court of Appeals for May 9, 2002 CONGRESSIONAL RECORD — SENATE S4117 the Fifth Circuit by President Clinton nated by President Clinton in Sep- Bush did not do the same. Her nomina- in 1997. Mr. Rangel was never granted a tember of 1999 to serve on the Fifth tion died. hearing by the Republican-controlled Circuit Court of Appeals. He was give Consider those four people and what Judiciary Committee. Never. He grad- the highest rating by the American Bar they went through at the hands of the uated from the University of Houston Association—‘‘well qualified.’’ He re- Republican Senate Judiciary Com- and Harvard Law School. He went on to ceived significant support from com- mittee and then put that in context of a distinguished career of 20 years in munity groups. He waited 15 months the Republican complaints which we private practice with a Corpus Christi and, as had Mr. Rangel, he was never hear today, when we have already, law firm where he had a mix of Federal even given the courtesy of a hearing under Democratic control, approved 56 and State work. before the Senate Judiciary Com- nominees. I think it really makes the In 1983, he was appointed to a judge- mittee. case. ship on the Texas State district court, Excuse me. When I hear my col- Judicial nominees have a right, and then was elected to serve for 2 leagues on the other side come to this whether the Judiciary Committee is years before returning to private prac- Chamber and complain that we are not controlled by Democrats or Repub- tice. Jorge Rangel has also been very moving fast enough in approving the licans, to expect fair and impartial active in legal and community organi- Bush nominees, consider what hap- treatment. But, equally, the American zations, including time as an officer of pened to Mr. Rangel and Mr. Moreno. people have a right to expect fair and the board of governors of the bar asso- What happened to them was sad, it was impartial judges. ciation of the Fifth Circuit and the wrong, and it is unforgivable. Now let us get down to the bottom American Board of Trial Advocates. He I could go through the long list of ac- line. The President will find that this volunteered for many legal organiza- complishments of Mr. Moreno. Trust Senate Judiciary Committee, under the tions, community organizations, and me, it is a long page of extraordinary control of Democrats, will provide charitable organizations. He has writ- accomplishments, and yet, when it more approvals of his judicial nomi- ten no controversial opinions or came right down to it, Republicans on nees than Republican Judiciary Com- writings. He was affiliated with no lib- the Senate Judiciary Committee were mittees have done for Democrat Presi- eral groups and gave no one any reason determined he would never even re- dents in the past. I think that is a whatsoever to question his credentials ceive a hearing, and he did not. standard we can live up to. We have al- and fitness for the Federal bench. Let me refer to Kent Markus. Kent ready lived up to it. The American Bar Association took a Markus was before our subcommittee We are going to treat people fairly. look at Jorge Rangel and concluded he today. He is 46 years old. He was nomi- We are going to give them a chance. was ‘‘well qualified’’ to serve as a Fed- nated by President Clinton in February Does that mean President Bush will eral appellate court judge. Yet, for 2000 to serve on the U.S. Court of Ap- get every name he sends before the Ju- purely political reasons, Jorge Rangel’s peals for the Sixth Circuit. The inter- diciary Committee approved? No. That nomination was held up more than a esting thing about Mr. Markus is he is not going to happen because if the year from July 1997 until the end of had the approval of both his home President sends people who, frankly, do 1998, a total of 15 months, with no ex- State Senators, two Republicans: Sen- not meet the test of moderation, legal planation or hint of opposition to him. ator MIKE DEWINE and Senator GEORGE skill and integrity, there is going to be, Consider that for a minute. When you VOINOVICH. Despite bipartisan support, of course, an investigation, as there is listen to this man’s background, his despite being qualified by the Amer- with every nominee. There will be rating of ‘‘well qualified’’ from the ican Bar Association and his excellent hearings in many cases, and some will American Bar Association, why in the record of achievement and service, he not survive that. world would he be held up? It turns out was never, ever given the courtesy of a The message to the President is very that the two Senators from his home hearing before the Republican-con- clear: As long as he will send us people State opposed him, and because they trolled Senate Judiciary Committee. who are moderate and not too extreme, were of opposite political faith with Finally, at the end of the 106th Con- he will be very successful. He already the President of the United States, gress, his nomination was returned to has 56 judicial nominees approved. they made certain he did not get a the White House. I think the single best thing this chance for even a hearing before the Again, I will make it a matter of my White House could take from this all- committee. official record in my statement, but day debate about judicial nominees is When you watch that happening, and trust me, his biography, his resume, this: If the President decided and said, when you listen to his testimony, you are impeccable. We are going to take these four nomi- have to wonder: Where is the fairness? A final nominee I will mention today nees—Bonnie Campbell, Jorge Rangel, When you listen to the complaints who testified before us is Bonnie Camp- Enrique Moreno, and Kent Markus—all today, even though the Senate Judici- bell. She was nominated by President nominees under the Clinton White ary Committee under Democrat con- Clinton in 2000 to serve on the U.S. House, and we are going to send them trol has approved 56 nominees, many of Court of Appeals for the Eighth Cir- to Capitol Hill in a show of bipartisan whom are Hispanic and racial minori- cuit. She was supported by both of her good faith, I think we could start to ties, and rejected only 1, when you look Senators, Democrat TOM HARKIN of make progress. I think we could start at this you wonder: Why would we Iowa and Republican CHUCK GRASSLEY having some balance in terms of the apply a different standard when it of Iowa. She was given a qualified rat- people who will be appointed to these comes to Clinton nominees than we do ing by the American Bar Association. critical positions. But if this is going to Bush nominees? That really has cre- She was given a hearing before the Ju- to be confrontation after confronta- ated the problem we face. diciary Committee a few months after tion, then I am sorry to say it is going The simple fact is this: The nominees she was nominated and given a chance to continue almost indefinitely. I hope President Clinton sent to the Senate at her hearing to answer any questions it does not. Judiciary Committee were held to a about her work. There were no objec- Let me give a list of those who never higher professional, political, and per- tions voiced at all during her hearing received a hearing before Congress dur- sonal standard than the nominees before the Senate Judiciary Com- ing the Clinton years, judicial nomi- being sent by the Bush White House, mittee. No opposition surfaced in any nees sent to Capitol Hill by President and many of them, even when they met quarter. Clinton while there were Republicans those standards, were never given the However, despite a noncontroversial, in charge of the Senate Judiciary Com- courtesy of a hearing. really unremarkable hearing, Ms. mittee: Wenona Whitfield of Illinois, In that same Fifth Circuit was Campbell was never scheduled for a Leland Shurin of Missouri, Bruce Greer Enrique Moreno, 47 years old, an attor- committee vote. No explanation was of Florida—none of these received a ney in private practice in El Paso, a ever given to her. Her nomination lan- hearing before the Republican-con- native of Mexico. Mr. Moreno grad- guished until the end of the 106th Con- trolled Senate Judiciary Committee. uated from Harvard University and gress, and despite President Clinton’s Sue Ellen Myerscough of Illinois; Harvard Law School. He was nomi- attempt to renominate her, President Cheryl Wattley of Texas; Michael S4118 CONGRESSIONAL RECORD — SENATE May 9, 2002 Schattman of Texas; James Beaty and I submit to them the four names of sions which have an impact on families Rich Leonard of the Fourth Circuit, the nominees from the Clinton White with children with disabilities. That is North Carolina; Annabelle Rodriguez of House which we considered today, peo- just part of their responsibility, but it Texas—none of those received a hear- ple who came before the Judiciary tells us about the gravity and serious- ing. Their names were sent to Capitol Committee today. Earlier, the minor- ness of this decisionmaking process. Hill, to the Republican-controlled Sen- ity leader spoke of a nominee for the Rose Townsend and Bonnie Sanders ate Judiciary Committee; no hearings. D.C. Circuit Court of Appeals who is are residents of South Camden, NJ. Then in the next Congress, there Hispanic, and I certainly think we need They live in a small neighborhood were 10: Helene White of Michigan; more Hispanic Americans on the bench. called Waterfront South. It contains 20 Jorge Rangel I mentioned earlier, of President Bush should have a chance. percent of the city’s contaminated Texas; Jeffrey Coleman of Illinois; Jorge Rangel is prepared to serve on waste sites. The residents of this neigh- James Klein of the District of Colum- the Fifth Circuit. Enrique Moreno is borhood suffer from a disproportion- bia; Robert Freedberg of Pennsylvania; also prepared to serve on the Fifth Cir- ately high rate of asthma and other Cheryl Wattley of Texas; Lynette Nor- cuit. These are Hispanic Americans respiratory ailments. Last year, these ton of Pennsylvania; Robert Raymar who should be renominated and given a two people joined with other residents for the Third Circuit; Legrome Davis, chance to serve. to block the placement of a cement Pennsylvania; Lynne Lasry of Cali- At the current time, we have looked processing facility in their neighbor- fornia; Barry Goode of the Ninth Cir- at Hispanic nominees and President hood. In December, the Third Circuit cuit, California—all of those names, ju- Bush has sent us five nominees of His- Court of Appeals ruled they could not dicial nominees, sent to Capitol Hill by panic origin. Of those, three have al- compel the State to comply with Fed- President Clinton never even received ready been confirmed by the Senate eral environmental regulations that the courtesy of a hearing before the under Democratic control. Two are implement the 1964 Civil Rights Act. Republican-controlled Senate Judici- pending: Miguel Estrada in D.C. and Whether it is a matter of public ary Committee. Jose Martinez in Florida. health, or environmental safety, these In the 106th Congress, 33 names sent Under President Clinton, Hispanic judges make critical decisions. These by the President who were not given nominees who were not confirmed by are just some of the people who were the courtesy of a hearing: Alston John- the Republican-controlled Senate Judi- impacted by judges put on the Federal son of Louisiana; James Duffy of Ha- ciary Committee include: Jorge Rangel courts. These are important decisions. waii; Elana Kagan of the D.C. Circuit; of the Fifth Circuit; Enrique Moreno of They should be handed out fairly and James Wynn of North Carolina; Kath- the Fifth Circuit; Christine Arguello of evenly, with some balance. The Judici- leen McCree-Lewis of Michigan; the Tenth Circuit; Ricardo Morado of ary Committee has met that standard. Enrique Moreno of Texas; James Lyons Texas; Anabelle Rodriguez, Puerto I yield the floor. of Colorado; Kent Markus of Ohio; Rob- Rico. The PRESIDING OFFICER (Ms. ert Cindrich of Pennsylvania; Stephen I think that takes us to the point STABENOW). The Senator from Ken- Orlofsky of New Jersey; Robert Greg- where we have to ask ourselves if our tucky. ory of Virginia; Christine Arguello of friends on the Republican side really do Mr. MCCONNELL. Madam President, Colorado; Elizabeth Gibson, North want to see balance and want to see I listened with interest to comments of Carolina; Rich Leonard of North Caro- fair treatment, whether they will give the Senator from Illinois, looking at lina; Patricia Coan of Colorado; Dolly that same fair treatment to people who the whole 8 years of the Clinton admin- Gee, California; Steve Bell, Ohio; were summarily rejected when the Re- istration. It is important to reiterate Rhonda Fields, District of Columbia; publicans controlled the Senate Judici- the only clear way to look at the 8 David Fineman, Pennsylvania; Linda ary Committee. I think we have a years of the Clinton administration is Riegle, Nevada; Ricardo Morado, chance to be very careful in our selec- to compare them to the 8 years of the Texas; Gary Sebelius, Kansas; Ken tion, but also to meet our national Reagan administration. President Simon, Hawaii; David Cercone, Penn- needs and obligations. Reagan got more judges confirmed sylvania; Harry Litman, Oklahoma; Today, incidentally, during the than any other President, 382. He had a Valerie Couch, Oklahoma; Marion course of a press conference on this distinct advantage because 6 of the 8 Johnston, California; Steve Achelphol subject, we brought in a number of peo- years he was President his party con- of Nebraska; Richard Anderson of Mon- ple who have had bad experiences in trolled the Senate. President Clinton tana; Stephen Liberman of Pennsyl- court to dramatize what is at stake. came in a close second, 377 judges con- vania; and Melvin Hall of Oklahoma. This debate is not a matter of reward- firmed, 5 fewer, but he was in a dis- These 52 names of judicial nominees I ing an attorney, who has skills, with a advantage because his party only con- have read were sent to the Republican- new title and an opportunity to serve trolled the Senate for 2 of his 8 years. controlled Senate Judiciary Com- on the bench. It is also to create an op- It is hard to make the case that Presi- mittee under President Clinton and portunity for public service where peo- dent Clinton was treated unfairly by they were never even given the oppor- ple can make decisions that really the Republican Congress. tunity for a public hearing, never given have an impact on families’ lives What we want to talk about today is a chance for a vote. I knew some of across America. the first 2 years of any President’s them personally, and I can say it is a Today, Denise Mercado came to see term—how were they treated at the be- great hardship on a professional like an us. She is the mother of three from ginning of their 8 years. Particularly, attorney, where their name is pending Fayetteville, NC. She is the legal we focus on the circuit judge nomina- before a committee and there is uncer- guardian of her son, Danny, who has tions. tainty about their future. cerebral palsy and severe mental retar- During the first 2 years of President Some of these went on for literally dation. Due to his disabilities, Danny Clinton’s term, when his party con- years. Some of them were never given is eligible for Medicaid funding. Jane trolled the Senate, he got 86 percent of a hearing, and during that period of un- Perkins is an attorney at the National his nominees confirmed for the circuit certainty their family suffered, their Health Law Program in Chapel Hill, courts. During the first President law practice suffered, their efforts to NC. Jane has represented Denise and Bush’s first 2 years, when his party did be part of public service were never re- many other clients in efforts to compel not control the Senate, he got 95 per- alized. I think that is unfortunate. States to fulfill their legal obligations cent of his circuit court nominees con- That is why we are back to the point under Medicaid, to cover children like firmed in his first 2 years. President I made earlier. President Bush and Danny. Currently, four Federal courts Reagan, in his first 2 years, got 95 per- those working for him and with him in of appeals are considering whether cent, as well, 19 out of 20. the White House want to break States have sovereign immunity from Let’s focus on the first 2 years, the through this situation and want to see such lawsuits, as at least one district beginning of what I certainly hope will more cooperation and want to find court has ruled. be an 8-year period of the Presidency of more balance, as we do, in terms of the So the men and women appointed to George W. Bush. George W. Bush has judiciary. these court positions will make deci- gotten a mere 30 percent of his circuit May 9, 2002 CONGRESSIONAL RECORD — SENATE S4119 court nominees confirmed, compared That is exactly what happened to split rating. The minority gave him to 86 percent for President Clinton, 95 Miguel Estrada. He came from Hon- ‘‘well qualified’’; the majority gave percent for the first President Bush, duras, emigrated to the United States him ‘‘qualified’’—a very good rating. and 95 percent for President Reagan. as a teenager, speaking virtually no Mr. Sutton graduated first in his I call attention, since this is the 1- English. Yet he graduated phi beta class from Ohio State University Col- year anniversary of the first 11 nomi- kappa from Columbia in New York and lege of Law. He has argued nine cases nations of President George W. Bush to was editor of the Harvard Law Review. before the U.S. Supreme Court, both as the circuit courts. Only three have Miguel Estrada came to this country, a private attorney and as solicitor for been confirmed, eight languish 1 year not speaking a word of English, an the State of Ohio. He has taught con- later without so much as a hearing to honor student at Columbia, elected to stitutional law at Ohio State for the get a chance to explain their creden- the Law Review at Harvard, unani- last 8 years. tials to the Senate Judiciary Com- mously ‘‘well qualified’’ by the Amer- Has anyone seen Jeffrey Sutton? mittee and to the larger Senate as ican Bar Association, an inspiration to Does anybody know what he looks well. Eleven distinguished and diverse immigrants all across America and like? He hasn’t had an opportunity to men and women were nominated by particularly to Hispanic immigrants. be seen in public. Maybe he, too, should President George W. Bush a year ago He has argued 15 civil and criminal be put on a milk carton so somebody today. Only three have been confirmed. cases before the U.S. Supreme Court. could recognize this guy and maybe re- Of the remaining eight, none, not a sin- But Americans do not know what he port to the Senate Judiciary Com- gle one, has even been afforded the looks like. He has never had a hearing. mittee that they have seen him. He courtesy of a hearing, not to mention a He has never been able to show up in really does exist. Maybe he ought to vote—a hearing by the Judiciary Com- public and make his case that maybe get an opportunity to be heard. mittee. this immigrant success story, an exam- Jeffrey is a nominee for the Sixth Everyone in America is entitled to Circuit, and I want to dwell on that for have their day in court. Even a judge is ple to look up to by everyone in Amer- just a moment. Kentucky happens to entitled to have their day in court. Our ica, but particularly our immigrant be one of the States in the Sixth Cir- colleagues on the other side contin- population who came here and had to cuit: Michigan, Ohio, Kentucky, and ually assure this side they are pushing deal not only with learning the lan- Tennessee. It is 50 percent vacant. That fast to consider the President’s judicial guage but learning a new culture, this is not because the President has not nominees, but my Republican col- hero of the immigrant community has sent up nominations. There are seven leagues and I have seen neither hide been languishing in the Judiciary Com- nominations up here. But not a single nor hair of these nominations in the mittee for 365 days. There is no indica- nominee from the Sixth Circuit has Judiciary Committee. Frankly, some tion in sight that he will be given a been confirmed. We have a judicial in the committee are worried about hearing. what might have happened to them. To anyone who may be looking, if emergency. The Sixth Circuit is dys- Where could they possibly be? A few you have seen this man, you might functional, not because the President people may recognize these individuals want to report it to the Judiciary Com- has not made nominations. I mentioned Miguel Estrada’s success by sight. After all, none of them have mittee so he can get a hearing. story. Here is a nominee from Michigan even had a hearing. All most people Another nominee from a year ago, ar- who, if confirmed, would become the know is a name attached to the nomi- guably pending for a decade, John Rob- nation. No one knows what they look erts has been waiting over 10 years for first Arab American on a circuit court like; their whereabouts are a mystery. a hearing. He was nominated by the in American history, a nominee from It is my hope citizens around the world first President Bush over a decade ago the State of Michigan who, if con- would notify the Judiciary Committee to the D.C. Circuit Court and back then firmed, would become the first Arab if they spot these missing nominees was pending for over a year without American on a circuit court in the Na- somewhere out in America so maybe a ever receiving a hearing. The current tion’s history. He has not yet had a hearing can be quickly scheduled on President Bush renominated Mr. Rob- hearing. their behalf. erts 365 days ago, a year ago today, to Jeffrey Sutton has been sitting there We have become accustomed to see- the same court, the D.C. Circuit Court. for 365 days, also for the Sixth Circuit. ing missing children’s pictures on milk Again, he has not had a hearing. This He is from the State of Ohio. If any- cartons around America. We thought it outstanding lawyer, again, unani- body sees Jeffrey Sutton, I want you might be appropriate to put the names mously rated ‘‘well qualified’’ by the know what he looks like. This is what of some of the nominees on milk car- ABA—and it is very tough to get a rat- he looks like. Send his picture in to the tons, so if any of our people across the ing such as that—has actually been Judiciary Committee. Maybe he could country have seen any of them, maybe waiting for 2 years, 2 years just to get at least get a hearing and an oppor- they could report them to the Judici- a hearing, an opportunity to tell his tunity to state his qualifications for ary Committee and the missing people story. So we thought maybe he ought the court. could actually be given an opportunity to be on the milk carton, too. Deborah Cook: She has been a justice to be heard. This unanimously well-qualified on the Ohio Supreme Court for the last A good first person to put on the nominee has a long and distinguished 8 years—again, a Sixth Circuit nomi- milk carton is Miguel Estrada, nomi- career in public service, including serv- nee. This is the circuit that is 50 per- nated 365 days ago, this very day last ing as principal deputy to the Solicitor cent vacant—not because the President year, to the D.C. Circuit Court. The General from 1989 to 1993, and associate has not sent up nominations but be- ABA gave Miguel Estrada a unanimous counsel to President Reagan from 1982 cause they have not been acted upon. well qualified. That is very hard to do. to 1986. The previous nominees had 15 Deborah Cook has been sitting there It is very tough to even get a partial arguments before the U.S. Supreme for 365 days. She was nominated a year well-qualified rating from the ABA but Court; this nominee has argued 36 cases ago today in the first batch sent up by to get a unanimous rating of well before the U.S. Supreme Court and 20 President Bush. qualified is truly extraordinary. cases in the U.S. appeals court across Prior to her service on the Ohio Su- Miguel Estrada’s life and his career is the country. preme Court, she was an appellate a great American success story. I am Has anyone seen John Roberts? Does court judge for 4 years. She has been married to one of those immigrants anyone even know what he looks like? unanimously rated ‘‘qualified’’ by the who came to this country and didn’t Has he been dropped into a black hole? American Bar Association. Has any- speak a word of English at 8, so I am Another great nominee of a year ago body seen Justice Cook? I wanted to very familiar with these wonderful sto- missing in action, not even given a make sure we could get a sense of what ries of coming to America, particularly hearing. she looked like. This is a picture of those who have been thrown into our Also nominated a year ago today was Deborah Cook. If anyone wants to call public schools at an early age, not Jeffrey Sutton. The ABA gave him—a her qualifications to the attention of speaking English and coming to grips majority—‘‘qualified,’’ and the rest the Judiciary Committee, they might with that. gave him ‘‘well qualified.’’ So it was a take this opportunity to do that. S4120 CONGRESSIONAL RECORD — SENATE May 9, 2002 Terence Boyle is another nominee years. Now she is being nominated for the Senate, and no matter who has who arguably has been waiting 10 years the Fifth Circuit. The ABA has unani- been in the White House in the first 2 for a hearing. He was nominated a dec- mously rated her well qualified. years, these games have not been ade ago by the first President Bush and This is a situation where we have a played in the past. This is unprece- waited for over a year without receiv- judicial emergency. A judicial emer- dented. You can throw the statistics ing a hearing at that time. He was gency has been declared here. Yet we around as much as you want, but we nominated again 365 days ago, a year have a nominee who has been lan- are talking about the first 2 years of a ago today, to the Fourth Circuit. The guishing for a year with not even so President’s administration. It has ABA unanimously rated him well much as a hearing. never been done before. qualified, just like Miguel Estrada— So, this is what Justice Priscilla The good news is it is not too late. unanimously ‘‘well qualified.’’ That is Owen looks like. She is an attractive, This is May 9. There is a month left. It as good as it gets. That means the com- nice looking woman, smart lawyer. is never too late for salvation. If anybody sees her here in the hall, mittee of the ABA unanimously found It is my hope that these outstanding they might direct her down to the Sen- this nomination to be of the highest nominees missing in action and who ate Judiciary Committee. Maybe she order. have seemingly dropped down a black could ask somebody for a hearing. This nominee currently serves as the hole will get an opportunity to be Dennis Shedd was nominated 365 days chief judge of the U.S. District Court heard as a matter of fundamental fair- ago—1 year ago today—to the Fourth for the Eastern District of North Caro- ness. lina and has been on that court since Circuit Court of Appeals. He served as I had an opportunity, along with oth- 1984 when his nomination to that court a sitting Federal judge for the U.S. Dis- ers, to meet with the President earlier was unanimously confirmed by the trict Court for since today on this issue. I heard some sug- Senate. 1990. The ABA rated him ‘‘well quali- Has anyone seen Judge Boyle? We fied.’’ He taught at the University of gestions made on the other side of the know he exists. We have seen his name South Carolina from 1989 to 1992 and aisle that this is really all about in ef- on paper. This is what he looks like. If has been chief counsel to the Senate fect telling the President who to send anybody sees Judge Boyle, they might Judiciary Committee right here in the up. In other words, Mr. President, send call the Judiciary Committee and say Senate. up a certain kind of nominee or you maybe this unanimously well qualified I am sure there are people over in the won’t get action. I can’t speak for the nominee ought at least to get an oppor- Senate Judiciary Committee who know President, but I have the clear impres- tunity to be heard, a chance to be ques- what Dennis Shedd looks like because sion that this President believes, as all tioned by the members of the com- he used to run that committee staff. other President’s believe, that the mittee, so we can make a determina- Maybe we don’t need to send them a business of selecting nominees to the tion as to whether or not he deserves a picture of Dennis Shedd. Maybe some circuit court level and to the Supreme chance to be voted upon. of them actually remember him. You Court level are Presidential preroga- Michael McConnell—I wish this fel- would think Dennis Shedd, as a matter tives. I don’t think this President is low were related to me, but he is not. of common courtesy, having formally going to operate any differently on In fact, I found out after he was nomi- been staff director over at the Judici- that issue than President Clinton or nated that he is from my hometown. I ary Committee, could at least get a President Carter or President Roo- went to high school in Louisville, KY. hearing so he could state his qualifica- sevelt. We all know that Senators have I never knew him. I am not related to tions and have a chance to make his an opportunity to make suggestions on him or his parents, but I wish I were. case. district court nominees. That has not What an outstanding nominee. The message for today is that it has changed. But circuit court nominees He was nominated for the Tenth Cir- been a year since the President sent up and Supreme Court nominees have his- cuit 365 days ago, a year ago today. his first 11 nominations for the circuit torically and will be forever the pre- Again, the ABA found him, unani- courts. Eight of them have dropped rogative of the President. mously, ‘‘well qualified.’’ Like Miguel into a black hole and have literally dis- The thought that any of us are going Estrada, like several of the other nomi- appeared. to be able to dictate to this President nees I have mentioned, that is as good That is why we thought it might be a or any other President who those as it gets—unanimously well qualified. good idea to have a picture of some of nominees might be is absurd. It is not Mr. McConnell is a distinguished law them in case it might help in recog- going to happen tomorrow. It is not professor at the University of Utah nizing them and giving them an oppor- going to happen a month from now. It College of Law and has served as an As- tunity for fundamental fairness. We are is not going to happen ever. No Presi- sistant Solicitor at the U.S. Depart- in the first 2 years of George W. Bush’s dent—Republican or Democrat—is ment of Justice. He is widely regarded Presidency—not the last 2 years, not going to allow the Senate, no matter as an authority on constitutional law, the last year, not the last 6 months. I which party controls the Senate, to in particularly issues involving the first think we can all concede that toward effect tell him or her who they are amendment and religious clauses. the end of a President’s term, nomina- going to pick for the circuit courts. Mr. McConnell has received the sup- tions frequently don’t move. But there It is time for a fair hearing. And it is port of over 300 college law professors, is no precedent—none—for this kind of time to vote. If the members of the Ju- including the noted liberal professors slow walking and stonewalling in the diciary Committee want to vote down Cass Sunstein and Sanford Levinson. beginning of a President’s term. Presi- these nominees, that is certainly their Support for Mr. McConnell is across dent Clinton got 86 percent of his cir- prerogative. They have done that al- the ideological spectrum from the peo- cuit court nominees in the first 2 ready once this year. But it is time to ple who know him best, law professors years. His party controlled the Senate. quit hiding out. It is time to stand up around America. I am, frankly, surprised that it wasn’t and be counted. It is time to allow Has anybody seen Michael McCon- 100 percent because his party con- these missing people to be seen and nell? I want you to be able to recognize trolled the Senate in the first 4 years heard, and to vote. him. This is his picture. This nominee, of his term. But he got 86 percent. I suggest the absence of a quorum. unanimously ‘‘well qualified’’ by the The first President Bush got 95 per- The PRESIDING OFFICER. The ABA, surely could at least be given a cent of his nominees in his first 2 years clerk will call the roll. hearing before the committee to have and his party did not control the Sen- an opportunity to state his qualifica- ate. The legislative clerk proceeded to tions and be asked questions. President Reagan got 95 percent of call the roll. Justice Priscilla Owen is on the his circuit court nominees in his first 2 Mr. REID. Madam President, I ask Texas Supreme Court. She was nomi- years and his party did control the unanimous consent the order for the nated 365 days ago, a year ago today. Senate. quorum call be rescinded. She has served with distinction on the As you can see the pattern here, no The PRESIDING OFFICER. Without Texas Supreme Court for the past 8 matter who has been in the majority of objection, it is so ordered. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4121 ORDER OF PROCEDURE nominated confirmed in his first 2 Priscilla Owen was nominated to the Mr. REID. Madam President, I have years. And President Clinton had more Fifth Circuit Court. She has served on spoken to my counterpart, Senator judges confirmed than either of the two the Texas Supreme Court since 1994. She was unanimously rated ‘‘well NICKLES. He wishes to speak for 15 min- by a considerable amount; he had 129 utes. That would go past the time set judges confirmed in his first 2 years, qualified’’ by the ABA. She is a Baylor aside for morning business. I ask unan- which is 90 percent. Law School graduate, with honors, and imous consent that the Senator from For the current President Bush, we a member of the Baylor Law Review. Oklahoma be recognized for whatever have now done 56 percent. We are mov- She had the highest score on her Texas time is left, plus enough time to make ing along, at least now, at 60-some odd bar exam, and 17 years of prior experi- it 15 minutes. percent for district court judges. But ence as a commercial litigator. Just another example. Why is she not The PRESIDING OFFICER. Without the big discrepancy is, we are way be- entitled to have a hearing? I think objection, it is so ordered. hind in circuit court appellate judges— when these individuals have hearings, The Senator from Oklahoma. way behind—and these individuals are not being treated fairly. They are emi- it is going to be obvious they are well- f nently qualified. And to think that qualified. There will be no reason what- NOMINATIONS eight were nominated a year ago. soever to attack them or to vote no. So Somebody said: Why are you making people do not want to have a hearing Mr. NICKLES. Madam President, I such a fuss now? Because enough is because they know if they have a hear- rise today to join my colleagues in ex- enough. Eight of these outstanding, ing, they are going to be confirmed. pressing real disappointment in the qualified individuals were nominated a Terrence Boyle was nominated to the fact that we have eight nominees to year ago today, and they have not had Fourth Circuit. He is presently the the U.S. circuit courts of appeals, who a hearing. Why? Are they not quali- chief judge in the U.S. District Court were nominated a year ago, who have fied? Well, let me just look at some of in the Eastern District for North Caro- yet to have a hearing before the Senate their qualifications. lina, and has been since 1997. He was Judiciary Committee. John Roberts was nominated to the unanimously rated ‘‘well qualified’’ by Nineteen of 30 circuit court nominees DC Circuit Court of Appeals. He has ar- the ABA. He is a graduate from Amer- have yet to have a hearing—19 out of gued 37 cases before the U.S. Supreme ican University, Washington College of 30. I have stated to my colleagues—and Court. Evidently, the private sector Law. He also served as minority coun- I state this on the floor of the Senate, thinks he is eminently qualified. He sel for the House Subcommittee on just as sincerely as possible—we should was unanimously rated ‘‘well quali- Housing, Banking, and Currency from treat all judicial nominees fairly. fied’’ by the ABA. He is a Harvard Law 1970 to 1973, and legislative assistant to Some people say: Well, we are having School graduate, magnum cum laude. Senator HELMS. a little retribution because you didn’t He was managing editor of the Harvard We usually treat former Senate staff- treat people well in President Clinton’s Law Review. He was a law clerk to Su- ers with a little courtesy. We usually last year. preme Court Justice Rehnquist. And he give them a hearing. This is a person The tradition of the Senate has al- also was the Principal Deputy Solicitor who has had a little experience in the ways been to give a President his or General for the United States from 1989 Senate working on the Judiciary Com- her nominees pretty good access to the to 1993. mittee, in addition to serving as a dis- Senate for confirmation purposes in You will be hard-pressed to find any- trict court judge from 1984 to 1997. We the first 2 or 3 years of their Presi- body more qualified than John Roberts can’t even give him a hearing? I don’t dency. The tradition of the Senate, anywhere in the country to sit on any think that is right. Michael McConnell is nominated to also, is to kind of slow it down in a bench. Yet, he cannot get a hearing, the Tenth Circuit Court of Appeals. He President’s last year. and he was nominated a year ago. I am is presently a Presidential professor of Certainly, if you look at what hap- embarrassed we have not been able to law at the University of Utah. He was pened in the last three Presidencies, schedule a hearing for John Roberts. that is what has happened. Unfortu- I hope, in the course of this dialog, unanimously rated ‘‘well qualified’’ by the ABA. He is a renowned constitu- nately, the current President Bush has Senator LEAHY or Senator DASCHLE tional law expert. He has argued 11 not had fair treatment for his judicial will join me. I would like to ask the cases before the U.S. Supreme Court. nominees, especially circuit court question, why can’t we get a hearing He graduated at the top of his class nominees, in his first 2 years. That is for him? just a fact. Miguel Estrada is also nominated to from the Chicago Law School. He was a law clerk for Justice Brennan, and also The chart I have shows that we have the DC Circuit, a partner of the DC served as a prior Assistant Solicitor only confirmed 9 out of 30. That is 30 firm of Gibson, Dunn & Crutcher. He General. Michael McConnell was nomi- percent. There is another nominee who has argued 15 cases before the U.S. Su- nated a year ago and has yet to even is pending on the calendar. Hopefully, preme Court. He was unanimously that will be cleared fairly quickly. have a hearing. rated ‘‘well qualified’’ by the ABA. He Deborah Cook is nominated to the That would be 10 out of 30. That is one immigrated to the United States as a Sixth Circuit Court of Appeals. She is out of three nominated judges con- teenager from Honduras and, at the presently serving as a justice on the firmed. time, hardly even spoke English. Yet, Supreme Court of Ohio, and has since If you look at President Clinton’s he graduated from Harvard Law School 1994. She was unanimously rated ‘‘well first 2 years, he got 19 out of 22. If you magnum cum laude. He was an editor qualified’’ by the ABA. She is an Akron look at President Bush I, he got 22 out of their Harvard Law Review. He was a School of Law graduate, and practiced of 23. President Reagan got 19 out of 20. law clerk to Justice Kennedy. And he with Akron’s oldest law firm. She sat So President Reagan and President is a former Assistant Solicitor General on the Ohio District Court of Appeals Bush I got 95 percent of their circuit and Assistant U.S. Attorney. He has from 1991 to 1995. She also chaired the court nominees confirmed in their first been a prosecutor. He worked as a law Commission on Public Legal Edu- 2 years. President Clinton got 19 out of clerk for a Supreme Court Justice. He cation, and has also been a member of 22. That is 86 percent. argued 15 cases before the Supreme the Ohio Commission on Dispute Reso- We should always be confirming Court. He is eminently qualified. He is lution. She is more than qualified. those kinds of percentages unless they Hispanic. And we can’t get a hearing? Jeffrey Sutton is also nominated to nominate people who are totally un- The District of Columbia Circuit the Sixth Circuit Court. qualified and are undeserving of the po- Court of Appeals has four vacancies. A On the Sixth Circuit, there are 8 va- sition. But we are not doing that. year ago, they were saying they really cancies out of the 16. One-half of the Also, if you look at the total num- needed at least three judges. And we circuit court of appeals is vacant, des- bers, President Reagan got 98 percent can’t get a hearing for two of the most perately needing some assistance. of all the judges that he nominated qualified people anywhere in the coun- Mr. Sutton a partner in the law firm confirmed in his first 2 years. President try for these two positions. This is un- of Jones, Day. He is rated well quali- Bush I got 93 percent of the judges he believable. fied by the ABA minority and qualified S4122 CONGRESSIONAL RECORD — SENATE May 9, 2002 by the ABA majority. He graduated get fair consideration. My hope and de- JUDICIAL PROCEDURES first in his class from Ohio University sire is to give them fair consideration Mr. SPECTER. Madam President, I College of Law. He is a former law without exhibiting a pattern of ‘‘we thank the Senator from Nevada for clerk to Supreme Court Justices Pow- will hold this up and hold this up; you working this out for morning business. ell and Scalia. He has argued 9 cases will not be able to mark this up; not be I have sought recognition to comment and over 50 merits and amicus briefs able to get a quorum; you will not be about two matters. before the U.S. Supreme Court, and he able to do business.’’ I hope we don’t First, I compliment my colleague is a prior State solicitor in the State of have to resort to that. from Oklahoma for the comments he Ohio. Senator REID is one of my very dear has made about the need to move Dennis Shedd, nominated to the friends, Senator DASCHLE, Senator ahead with nominees. It would be my Fourth Circuit Court, is a U.S. district LEAHY. I urge them, give these people a hope that from the current disagree- court judge in South Carolina and has chance. Give these eight people who ment we might work out a permanent been since 1991. He is rated well quali- were nominated to the appellate level a protocol to solve the problem which ex- fied by the ABA and had 20 years of pri- year ago, give them a hearing, and let’s ists when the White House is controlled vate practice and public service prior vote. There is no question they are by one party and the Senate by another to becoming a district judge. His law eminently qualified. We should be vot- party. The delays in taking up judges degree is from the University of South ing. That is our constitutional respon- has been excessive. Carolina, and he has a master of law sibility. Let’s do it. I will commit we This is the 1-year anniversary where degree from Georgetown. He is a will do it in the future as well. some nine circuit judges, well quali- former chief counsel and staff director I hope people will hear these com- fied, have not even had hearings. But of the Senate Judiciary Committee and ments made by myself and others and in all candor, a similar problem existed counsel to the President pro tempore listen to us. Let’s work together and when President Clinton, a Democrat, from 1978 to 1988. He is supported by treat judicial nominees fairly so we was in the White House and we Repub- both of South Carolina’s Senators. don’t have to resort to various types of licans controlled the Senate. Again, he is a former staffer. threats and intimidation and lack of I have advocated a protocol. Within a The Senator from Nevada knows, as I cooperation to make our point to get certain number of days after a nomina- mentioned this before—we used to have these individuals consideration on the tion, the hearing would be held; within a tradition that we would give former floor of the Senate. a certain number of additional days, staffers an expeditious hearing. But I yield the floor. there would be action by the Judiciary Dennis Shedd was nominated a year Mr. REID. Madam President, I sug- Committee on a vote; and within an- ago. gest the absence of a quorum. other specified time, there would be These are eight of the most qualified The PRESIDING OFFICER. The floor action, all of which could be ex- individuals you will find anywhere in clerk will call the roll. panded for cause. And an additional the country for any such position. The The legislative clerk proceeded to provision, not indispensable, is that if fact that they have not had a hearing call the roll. there were a strict party-line vote in when they were nominated a year ago Mr. REID. Madam President, I ask committee, the matter would auto- brings real disrespect and disrepute on unanimous consent that the order for matically go to the floor. this body. Shame on us. Shame on the the quorum call be rescinded. I thank the Chair. Senate. We have only confirmed one- The PRESIDING OFFICER. Without I yield back the remainder of that third of the district court of appeals objection, it is so ordered. time, and I yield the floor. judges nominated by President Bush. f The PRESIDING OFFICER. Under Eight people have to wait a year for a ORDER OF PROCEDURE the previous order, the Senator from hearing? We are making these nomi- Arizona is recognized. Mr. REID. Madam President, I was nees wait around while their friends f and associates are asking: When will waiting to hear from the two leaders. you be confirmed? I understand you Senator LOTT and Senator DASCHLE UNANIMOUS CONSENT REQUEST— were nominated. You were nominated a have spoken on a number of occasions. H.R. 3529 and S. 2485 year ago. You haven’t even had a hear- Senator DASCHLE is extremely anxious Mr. MCCAIN. Mr. President, I intend ing. to get on with some substantive legis- to propose a unanimous consent re- How disrespectful of the judicial lation in the Senate. The trade bill is quest that we take up the Andean process can we be? I am ashamed of pending. We virtually have been wait- Trade Promotion and Drug Eradication this record. I will state for the record ing all day for some Senators to come Act. now that I believe at various points we up with a proposal. It is vital that we address this issue. may well be back in the majority. I I have been told by the Republican ATPA expired on December 4 because have been in the Senate—majority, mi- leader that that answer will come at Congress had not taken action on the nority, majority, minority. I think we 4:15 today. I hope that is the case. I legislation. The House of Representa- will be back in the majority. I am com- would therefore ask unanimous con- tives passed an extension on November mitted to making sure that all judicial sent that the Senator from Pennsyl- 16, and the Senate has failed to do its nominees are treated fairly regardless vania, Mr. SPECTER, be recognized to work on this issue. of who is in the White House and re- speak as in morning business for up to These countries need our help. It is gardless of who runs the Senate. I 10 minutes, and then the Senator from in the United States’ national interest think we owe it to the nominees. I Arizona, Mr. MCCAIN, although I think not to see these countries degenerate think we owe it to the process. We owe Senator MCCAIN may have been here into economic, political and, in the it to the division of power between the first. case of Colombia, armed chaos. We executive branch, the judicial branch, Mr. MCCAIN. I don’t wish to speak as need to act on this issue. Why it has and the legislative branch. in morning business. been tied to TPA and TAA is some- The legislative branch is wrecking Mr. REID. It is my understanding the thing I do not understand. this balance of power by not staffing Senator from Arizona wishes to be rec- Perhaps the Trade Promotion Act and not allowing judicial nominations ognized for purposes of a unanimous and the Trade Adjustment Assistant to be heard, to be voted on, to be con- consent request. I ask that he be recog- Act are important. I think they are of firmed. We have checks and balances. I nized for up to 5 minutes to make the highest priority, but the Andean believe the forefathers would be rolling whatever statement he wishes in re- Trade Preferences Act—referred to as over if they realized how slowly we gard to that unanimous consent re- ATPA—is of time criticality. It ex- were going on certain judges, circuit quest and that, after that time, morn- pired. There are tariffs that these court appellate judges especially. ing business be concluded. countries will have to pay. With all sincerity, there are ways we The PRESIDING OFFICER. Without These are poor countries. They have can go in this body to get people’s at- objection, it is so ordered. unemployment rates of 30, 40, 50 per- tention to make sure these individuals The Senator from Pennsylvania. cent. Colombia is degenerating into May 9, 2002 CONGRESSIONAL RECORD — SENATE S4123 chaos. Peru is in a situation—if I might Mr. NICKLES. Mr. President, I com- to choose the members of the Judici- quote from the Christian Science Mon- pliment my colleague from Arizona. I ary. Others thought that both the itor: hope we can do this and pass an Andean House of Representatives and the Sen- Rebel groups’ presence growing near Peru’s trade bill. I believe the vote on it will ate should be involved in providing capital. The Shining Path wants to show be 90-plus votes in favor of it. If we are ‘‘advice and consent.’’ that democracy is weak, it can’t handle successful in passing this, then we can Ultimately, a compromise plan, put problems with crime and corruption, and the continue to wrestle with and hopefully forth by James Madison, won the day— government’s inability to improve the coun- pass trade promotion authority and where the President would nominate try’s economy. trade adjustment assistance. Correct judges and only the Senate would Andres Pastrana wrote in the Wash- me if I am wrong, this in no way would render ‘‘advice and consent.’’ ington Post on April 15: keep us from passing trade promotion Such a process is entirely consistent Finally, continued U.S. support for and trade adjustment assistance in the with the system of checks and balances planned Colombia and final Congressional future. that the Framers carefully placed passage of the Andean Trade Preferences Act Mr. MCCAIN. It would have no im- throughout the Constitution. Presi- will strengthen Colombia’s economic secu- pact. dents select those who should serve on rity. The trade act will have a minuscule im- the Judiciary, thereby providing a phil- pact in the United States but will create The PRESIDING OFFICER. Is there tens of thousands of jobs in Colombia and objection? osophical composition in the judicial across the Andean region. Enhanced ATPA Mr. REID. Reserving the right to ob- branch. However, the Senate has a now being considered in Congress will foster ject. ‘‘check’’ on the President because it is new business investment in Colombia. The PRESIDING OFFICER. The Sen- the final arbiter with respect to a These countries are in trouble. If ator from Nevada. nominee. these countries are not allowed to en- Mr. REID. Mr. President, I under- Throughout the debates of the Con- gage in economic development, are not stand the frustration of the Senator stitutional Convention, there appears given our assistance, with which we from Arizona. Magnify that 1,000 per- to have been little debate on what fac- have provided them since 1991—this cent for the majority leader. We have a tors the Senate should actually use Trade Preference Act—then we are bill on the floor—— when evaluating presidential nomi- going to pay a very heavy penalty. We Mr. LOTT. Regular order, Mr. Presi- nees. It is likely that this silence was have already had to allocate a billion dent. intentional. The first test case arose with our dollars to Colombia to help them mili- Mr. REID. The underlying vehicle is First President! Soon after the Con- tarily. Situations now are arguably the Andean trade bill. I think we stitution was ratified it became clear worse than 2 years ago when we first should move on to the trade bill. that the Senate did not take its ‘‘ad- began this matter. Every objective ob- The PRESIDING OFFICER. Is there vice and consent’’ role as one of simply objection? server will tell you Colombia is in ter- rubber-stamping judicial nominees. Mr. REID. I object. rible shape. In Peru, people are losing This became evident when the Senate The PRESIDING OFFICER. Objec- confidence in democracy. In Ecuador— rejected a nomination put forward by tion is heard. I have read stories about Hezbollah and our first President and a founding fa- other terrorist entities locating in f ther, President George Washington. these countries. CONSTITUTIONAL RESPONSIBIL- President Washington nominated We don’t have the time to waste fool- ITIES OWED TO THE JUDICIAL John Rutledge to serve on the U.S. Su- ing around with aid to steelworkers, or BRANCH preme Court. And, even though Mr. adjustments to health care, which are Rutledge had previously served as a Mr. WARNER. Mr. President, Article directly related to the Trade Pro- delegate to the Constitutional Conven- II, Section 2 of the Constitution pro- motion Act, not to the Andean Trade tion, the Senate rejected his nomina- vides that the President ‘‘shall nomi- Promotion and Drug Eradication Act. I tion. It is interesting to note that nate, and by and with the Advice and hope we can have some debate and dis- many of those Senators who voted Consent of the Senate, shall appoint cussion about that. against the Rutledge nomination were . . . Judges of the supreme Court, and I ask unanimous consent that the Fi- also delegates to the Constitutional all other Officers of the United States nance Committee be discharged from Convention. further consideration of H.R. 3529; fur- ....’’ From the earliest days of our Repub- ther, I ask unanimous consent that the The debate before us today involves lic, the nomination process has Senate immediately proceed to its con- this clause of the Constitution, and worked. We must now reconcile and sideration, all after the enacting clause this debate is a very important one. We make sure it continues to work. be stricken, and the text of S. 2485, the should put aside partisanship and ex- Based on history, it is clear to me Andean Trade Promotion and Drug amine the very roots of our Republic to that the Senate’s role in the confirma- Eradication Act, be inserted in lieu determine the respective responsibil- tion process is more than just a mere thereof. I further ask consent that the ities of the three branches of our gov- rubber-stamp of a President’s nomina- bill be read the third time and the Sen- ernment. tion; but it is the Senate’s Constitu- ate proceed to a vote on passage of the The magnificence of the ‘‘Great Ex- tional responsibility to render ‘‘advice bill, with no other intervening action periment,’’ a term used by the skeptics and consent’’ after a fair process of or debate. of the work of our founding fathers, is evaluating a President’s nominee. Mr. NICKLES. Mr. President, reserv- what has enabled our Republic to stand This process illustrates well how our ing the right to object, I want to clar- today, after over 200 years, as the long- three branches of government are ify the request that my colleague from est surviving democratic form of gov- interconnected yet independent. Arizona made. ernment still in existence. Thomas Jefferson remarked on the The request is we would move imme- But, the survival of that ‘‘Great Ex- independence of our three branches of diately to the Andean Trade Preference periment’’ is dependent upon the con- government by stating, ‘‘The leading Act, which is a continuation of the cur- tinuous fulfillment of the balanced, in- principle of our Constitution is the rent law going back to 1991 which dividual responsibilities of the three independence of the Legislature, Exec- would assist four countries—the Sen- branches of our government. utive, and Judiciary of Each other.’’ ator mentioned the four countries: Co- Let’s reflect on the historical roots But, I would add that each branch of lombia, Peru, Ecuador and Bolivia, all of the ‘‘advice and consent’’ clause. government must perform its respec- of which desperately need our help. During the Constitutional Conven- tive responsibilities in a fair and time- The Senator’s intention is to con- tion, the Framers labored extensively ly manner to ensure that the three tinue to assist those countries so we do over this clause, deferring a final deci- branches remain independent. not have punitive tariffs hit, I believe, sion on how to select federal judges for In my view, we must ask ourselves, is by the 15th of this month, next week; is several months. the current Senate posture of the nom- that correct? Some of the Framers argued that the ination and ‘‘advice and consent’’ proc- Mr. MCCAIN. That is correct. President should have total authority ess during the early days of the Bush S4124 CONGRESSIONAL RECORD — SENATE May 9, 2002 Administration consistent with our Circuit court vacancies more than tion men and women with whom he is country’s experience over the last 200 doubled—from 16 to 33. personally and ideologically com- plus years since our Constitution was As the vacancy rate was sky- fortable. ratified? That is for each Senator to rocketing, more than half—56 percent— But Federal judges and Supreme decide. of President Clinton’s circuit nominees Court justices do not serve at the Currently, more than 10 percent of in 1999 and 2000 never received a hear- pleasure of the President. Their term Federal judgeships are vacant. And, for ing or a vote. does not end when the President leaves the 12 Circuit Court of Appeals, nearly Second, Democrats have reduced the office. These are lifetime positions. 20 percent of the seats are vacant. Is number of vacancies. Their decisions will have profound con- our federal Judiciary able to fulfill its The judicial nominations process has sequences for years, possible decades, obligations? That is for each Senator significantly improved under Demo- to come. For that reason, they deserve to decide. cratic leadership. special scrutiny. The Constitution re- In day to day court workloads, judi- As of this afternoon, in only 10 quires the Senate to evaluate the cial vacancies result in each of the ac- months, the Democratically controlled President’s judicial nominees, nomi- tive and senior status judges having a Senate has confirmed 56 nominees— nees, offer advice, and grant—or with- greater caseload. This, in turn, often more judicial nominees than the Re- hold—its consent. results in a longer time period for cases publican-controlled Senate confirmed Fourth, I’m concerned that the real to be decided. for President Reagan in his first 12 issue isn’t numbers, but using Judici- The ultimate effect is that Ameri- months in office. ary to achieve a political agenda. cans who have turned to the court sys- Our 10-month number is also greater Appointing judges that are out of the tem seeking justice in both civil and than the number of judicial nomina- mainstream is a way that the right- criminal matters are left waiting for a tions confirmed in four of the 6 years wing can achieve through the judiciary resolution of their case. And, all too Republicans controlled the Senate dur- what they can’t get through Congress, often, justice delayed is justice denied. ing the Clinton administration. the President, or any other office rep- Our current Chief Justice of the Su- It also exceeds the average number of resented by those who reflect the will preme Court, Judge William Rehnquist, judicial nominees the Republicans con- of the people, and need to stand for has expressed his views on this subject firmed during the time they controlled election before them. several times during both the Clinton the Senate—when, from 1995–2001, con- Most Americans simply don’t want to and Bush Administrations. Judge firmations averaged only 38 per year. see a judiciary that will turn back the Rehnquist recently reiterated remarks But Democrats aren’t just improving clock on decades of progress for civil he made first in 1997 when he stated, the numbers, we’re improving the nom- rights, women’s rights, workers rights, ‘‘the President should nominate can- ination process. Under Senator LEAHY’s and the environment. Most of us don’t didates with reasonable promptness, stewardship, the process is now faster, either. and the Senate should act within a rea- fairer—and more productive. Senator LOTT and Senator NICKLES Senator LEAHY has restored a steady sonable time to confirm or reject them. both hinted after Judge Pickering’s pace to the judicial nominations proc- Some current nominees have been nomination was defeated in committee ess by holding regular hearings and waiting a considerable time for a Sen- that they would find ways to retaliate. giving nominees a vote in committee. ate Judiciary Committee vote or a The irony is: By shutting down the Despite the chaos of September 11 and final floor vote.’’ Senate today, they are preventing the the disruption caused by anthrax, the I am in complete agreement with the Senate from doing the very thing they Judiciary Committee has held 15 hear- Chief Judge. We must act in a timely claim to want. fashion to fill judicial vacancies. ings involving 48 judicial nominations Right now, their tactics are pre- Mr. DASCHLE. Mr. President, our in the past 10 months, and is planning venting the Judiciary Committee from friends on the other side of the aisle an additional hearing this week to con- holding hearings on 4 of the President’s are right about one thing: it is impor- sider another 7 nominations. nominees. And last August they tant to fill vacancies on the Federal In addition to increasing the total wouldn’t give us consent to carry pend- bench in a timely manner. number of hearings, Senator LEAHY is ing nominees over the recess—further In his remarks last week, President reducing the amount of time it takes slowing the process. Amazingly, their Bush cited Chief Justice Rehnquist’s to confirm a nomination. The Judici- judges are falling victim to their own report about the alarming number of ary Committee has been able to con- tactics. vacancies in the federal courts. firm nominations, on average, within He’s right. Let me read some of Chief 86 days after a nominee was eligible for There are 77 days left in this Con- Justice Rehnquist’s report: ‘‘vacancies a hearing. This is more than twice as gress—only 46 days if you don’t include cannot remain at such high levels in- fast as the confirmation process under Mondays and Fridays. definitely without eroding the quality the most recent Republican-controlled Shutting down the Senate at a time of justice.’’ Senate. when there are so many major ques- Except that’s from the report he Senator LEAHY has also made the tions facing our nation, and so few wrote in 1997. process more fair. working days left in this Congress—is Democrats, independent-minded ob- Unlike our Republican colleagues, not the way to achieve their stated servers, and the Chief Justice of the who would sit on nominations for goal of confirming judges. United States Supreme Court have all years—many never receiving a hearing, When all the facts are thoroughly ex- raised concerns about the judicial va- Senator LEAHY has ensured that Presi- amined and honest comparisons are cancy crisis for years. dent Bush’s judicial nominees are made, it is clear that the judicial But our Republican colleagues never treated evenhandedly. Senator LEAHY nominations process has significantly seemed to hear those concerns when has also eliminated the practice of se- improved under Senator LEAHY’S stew- they ran the Senate. The fact that they cret holds within the judiciary, that ardship, and Democratic leadership. now recognize the seriousness of the were often used to delay and defeat There are real differences between situation is—I suppose—progress. nominees for political reasons. our parties on many issues. It appears, however, that there are Third, the confirmation of judges is We have shown time and time again, some facts on which they are still un- part of a constitutional obligation we on issue after issue, that we can work clear. I’d like to take a few minutes to take very seriously. through those differences for the good set the record straight: Democrats have been clear: We will of the nation. First, the judicial crisis developed make the process move more fairly, Today, I ask our Republican friends when Republicans ran the Senate. and more quickly—but we will not ab- to join with us in helping—and not ob- Under Republicans, total court va- dicate our constitutional responsibility structing—the Senate as we work to cancies rose by 75 percent—from 63 at to advise and consent. meet the needs of the American people, the beginning of 1995 to 110 by the time I believe the President has a right to and perform our constitutional obliga- Democrats took control of the Senate. appoint to his cabinet and administra- tion regarding federal judges. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4125 CONCLUSION OF MORNING deal with the very important issues MORNING BUSINESS BUSINESS pending before the Senate: trade pro- Mr. DASCHLE. Mr. President, I The PRESIDING OFFICER. Morning motion authority, the Andean Trade thank the distinguished Republican business is closed. Preservation Act, the GSP, as well as leader for his understanding and his the trade adjustment assistance. These f willingness to act in good faith. I ap- are four very big issues, very impor- preciate very much the explanation ANDEAN TRADE PREFERENCE tant for our country and other coun- that he has made. I know it was not his EXPANSION ACT—Resumed tries—in the case of the Andean area— intention and he was not aware of the Mr. LOTT. What is the pending busi- and for the workers of this country. circumstances that had been agreed to ness? The way it has been put together, it prior to the time he came to the floor. The PRESIDING OFFICER. The is very difficult to work through all of We certainly know how these things clerk will report. these issues and get a result. Serious work and appreciate his willingness to The legislative clerk read as follows: efforts are underway to see if we can rescind his actions. A bill (H.R. 3009) to extend the Andean achieve an agreement that produces a There are a number of Senators who Trade Preference Act, to grant additional result. would want to be heard on issues that trade benefits under that Act, and for other We also have to deal with a process are important to them. As we continue purposes. issue, how to make that happen. A few to await further word about the Pending: moments ago, I filed a first-degree progress of the discussions and negotia- Daschle amendment No. 3386, in the nature amendment to the Andean Trade Pref- tions underway, I see no reason we can- of a substitute. erence Act and filed cloture. I think not continue to allow the Senate to The PRESIDING OFFICER. The Re- that is the way to proceed. I think we proceed as if in morning business. publican leader need a showing of who wants to get I ask unanimous consent the Senate AMENDMENT NO. 3399 trade promotion authority and how we proceed as in morning business under Mr. LOTT. Mr. President, I send an will move this to a conclusion. I want the arrangements previously author- amendment to the desk. to do that and I know Senator DASCHLE ized in the Senate for a period not to The PRESIDING OFFICER. The wants to do that, too—find a way to exceed 90 minutes. clerk will report. get to conclusion and produce a result. Mr. MCCAIN. Reserving the right to The assistant legislative clerk read I was within my rights to seek that object, I will not object. as follows: recognition and offer that amendment. The PRESIDING OFFICER. The Sen- The Senator from Mississippi [Mr. LOTT] I did so in good faith with the recogni- ator from Arizona. proposes an amendment numbered 3399. tion that if I didn’t, some further mo- Mr. MCCAIN. The majority leader un- Mr. LOTT. Mr. President, I ask unanimous tion or procedure might have been of- derstands the point I was trying to consent that the reading of the amendment fered by Senator DASCHLE or Senator make. Next week at this time, the An- be dispensed with. REID. dean Trade Preference Act expires and The PRESIDING OFFICER. Without Having said that, Senator REID and back tariffs will be levied on four im- objection, it is so ordered. Senator NICKLES and others were in the poverished countries, one which is ex- (The amendment is printed in today’s Chamber. They had an agreement on periencing a revolution. The majority RECORD under ‘‘Text of Amendments.’’) how to proceed, and they felt this was leader does understand the reason for CLOTURE MOTION not fair under the understanding that the cloture motion, but I understand Mr. LOTT. I send a cloture motion to had been worked out. I always try to there will be an objection if we wanted the desk. make sure we play above board and fair to move to ATPA, and that is why the The PRESIDING OFFICER. The clo- with everybody. Senator REID has al- Republican leader filed the cloture mo- ture motion having been presented ways been fair with both sides, and he tion. under rule XXII, the Chair directs the felt this was not the right way to pro- I hope the majority leader under- clerk to read the motion. ceed at this point. stands this is an issue that is pressing The legislative clerk read as follows: After a lot of discussion, I will move in time. We need to move forward with CLOTURE MOTION to vitiate that action. But I do want to it. That may require a cloture motion We the undersigned Senators, in accord- emphasize—and then I presume Sen- either by the majority leader or the ance with the provisions of rule XXII of the ator DASCHLE may announce we would Republican leader. Standing Rules of the Senate, do hereby have a period of further discussion as I do not object. move to bring to a close debate on the pend- we continue to work on this issue—I do Mr. REID. Reserving the right to ob- ing Lott amendment: ject. Trent Lott, Don Nickles, Phil Gramm, think this is the correct way to pro- ceed. We should not get off the trade The PRESIDING OFFICER. The Sen- Chuck Grassley, Rick Santorum, Mitch ator from Nevada. McConnell, , Craig Thomas, legislation and go to any other issue. Judd Gregg, Frank H. Murkowski, Jon We are on the verge of beginning to Mr. REID. I ask for 2 minutes prior Kyl, Michael D. Crapo, James M. make progress. If we let up, I think the to Senator BYRD. Inhofe, Thad Cochran, Chuck Hagel, momentum will stop. Mr. DASCHLE. I ask unanimous con- Pat Roberts. I had to explain what happened and sent my consent request be amended in Mr. LOTT. Mr. President, the why I am doing this. I have heard sto- that fashion. Daschle amendment—— ries from the past of how Senators The PRESIDING OFFICER. Without Mr. DASCHLE addressed the Chair. have come to the aid of Senators on objection, it is so ordered. The PRESIDING OFFICER. The ma- the other side of the aisle saying, no, Mr. DASCHLE. Mr. President, again I jority leader. this was not the fair way to do it, even ask unanimous consent the Senate be Mr. DASCHLE. Mr. President, I sug- if it might have appeared to be fair. We in morning business for 90 minutes and gest the absence of a quorum. want to always try to do that with accommodate Senator REID’s request The PRESIDING OFFICER. The each other. for 2 minutes prior to the time Senator clerk will call the roll. BYRD is recognized. AMENDMENT NO. 3399 WITHDRAWN The legislative clerk proceeded to The PRESIDING OFFICER. Without call the roll. Therefore, I ask to vitiate the cloture objection, it is so ordered. motion I filed and withdraw the Mr. LOTT. I ask unanimous consent f that the order for the quorum call be amendment I filed. rescinded. The PRESIDING OFFICER. Without ATPA The PRESIDING OFFICER. Without objection, it is so ordered. Mr. DASCHLE. Let me respond brief- objection, it is so ordered. The amendment (No. 3399) was with- ly to the Senator from Arizona. No- Mr. LOTT. Mr. President, our goal drawn. body wants ATPA passed more than I this afternoon is to get to a process or The PRESIDING OFFICER. The ma- do. I have attempted in many different an agreement that allows the Senate to jority leader. ways over the last several weeks to S4126 CONGRESSIONAL RECORD — SENATE May 9, 2002 find the right formula to bring this pansion Act. Would you consider that Instead of doing three sequential fili- about. I have talked about it, literally, as we proceed this afternoon? buster-cloture, filibuster-cloture, fili- for months. I will work with the Sen- Mr. DASCHLE. Mr. President, we are buster-cloture motions, we thought it ator from Arizona and others. We are trying to make the most of what few might be better to do one and accom- very aware of the May 16 deadline. I am days we have before the Memorial Day modate all the procedural impediments very hopeful we can find a way with recess. That is an option. We have en- at once. which to accommodate that deadline tertained it in the past. We have talked That may or may not prove to have and make sure this job can be done. about it in the past. That would mean, been the right strategy. But, clearly, We are sensitive to the tremendous of course, that TAA and TPA would we know it will take a long time. If it economic repercussions that will result fall if cloture is invoked, and I am not is the case, we will have to take these if we are not successful. The stakes get sure we would be able to get to it again bills up sequentially, as I am told is higher with each passing hour, which is prior to the Memorial Day recess, the case right now. Maybe time will why I have been frustrated in my effort given all the other things we have to prove Senators will reconsider and be to move the process along all week. do. But that is an option. So we will willing to move into a time agreement, We spent a lot of time on the farm weigh that carefully and consider what at least on ATPA. bill. We spent a lot of time waiting for other choices we have, subject to some We will try to vet that and perhaps some sort of negotiation when I think report from our colleagues. We will we can move that. I think we ought to sometimes the best thing to do is just continue to negotiate. explore that possibility. But a sequen- offer amendments. That is what we do Mr. NICKLES. If my colleague will tial effort on each one of these will in the Senate if there is a disagree- yield, I think Senator LOTT and Sen- take us well into the middle of June, ment: At some point you offer an ator MCCAIN have a good idea. I urge and I am not sure we have that kind of amendment, have a vote, and move on you to seriously consider that. I hope time. to the next amendment. it will not take cloture to pass any of I appreciate the Senator’s interest in There are those in the Senate who the three bills. I likewise tell the ma- working with us. want the package to be just so, prior to jority leader, I think you will find Mr. NICKLES. If the Senator will the time they even allow us to move Members on this side of the aisle—I yield a little further, I will be happy to forward on a package. think the majority leader has com- shop it on our side. I do happen to We will continue to work with those plicated his process by trying to put think there are overwhelming majori- who have been in negotiation. I hope three bills together. ties—probably on both sides of the we can resolve this matter soon. Historically, we have passed Andean aisle. We passed TPA out of the Fi- Mr. LOTT. Will the Senator yield? trade, passed trade promotion or fast nance Committee 18 to 3. Andean trade Mr. DASCHLE. I yield. track, and we passed trade adjustment passed unanimously, I believe, in the Mr. LOTT. We did vitiate the cloture, assistance—independently and over- Finance Committee. Trade adjustment withdraw the first-degree amendment, whelmingly, usually with 70-some assistance was considered and, frankly, but I ask that we consider filing clo- votes. I believe there are still 70-some the trade adjustment assistance that is ture on the underlying amendment, votes. The Senate historically has pret- in this bill never passed committee and just ATPA. ty much favored free trade. some of us object to that. We are will- My cloture and amendment had been I think we would be happy to assist ing to have amendments to it. We are both trade promotion and Andean the majority leader to pass all three. willing to find out where the votes are, trade. If we file cloture on just the An- We may have some differences, particu- if that is the way we have to go. Hope- dean Trade Preservation Act, that larly on trade adjustment assistance. fully, some of the negotiations that are would ripen Monday night or Tuesday Maybe we will have to have a few taking place today can help solve some if we got an agreement, and it would at amendments on each side. We will help of those problems. But we all know we least guarantee we would be able to get you get a time agreement where we can need to move forward on all three that issue resolved and hopefully sent pass all three bills by the Memorial pieces of legislation. I urge our col- to the President by Tuesday or Day recess. Maybe by separating the leagues, let’s do it. Wednesday, thus dealing with this three bills we can accommodate the I do question the wisdom of putting problem that Senator MCCAIN address- Andean countries that are in desperate es. If we don’t, we are going to have shape. It would be a shame if we im- all three together. Historically—I re- this deadline that we are facing. posed tariffs on those poor countries, a member Senator BYRD and I having a I say this in a bipartisan, non- tariff increase that they have not had big debate on line-item veto and I used partisan spirit. It would be one way to for 10 years, if we do not get our work to say we should have a bill veto. Is it make sure we get a vote on that. We done on that bill by next week, by the fair to the President of the United could still get an agreement and viti- 15th or 16th. States to submit all three bills, each ate if we had to and get the trade pro- Likewise, it would be a real mistake different, and say take it all or leave it motion authority and trade assistance if this Senate doesn’t pass trade pro- all? He loses his Executive power or also. motion and trade adjustment assist- ability to sign or veto individual pieces I might say that I understand we ance, however this Senate defines it. of legislation. need to try to make progress. But we I tell the majority leader, I think if I hope we will consider trying to ex- have only spent about 12 hours on this he breaks the three up, we could come pedite this, come up with time agree- bill and really only one serious amend- up with time agreements and a limita- ments, pass all three bills, and let’s see ment has been offered. tion of amendments to finish all three if we can get all three done by the Me- I know you, Senator DASCHLE, would bills. morial Day break. have liked to have had more amend- Mr. DASCHLE. I thank the Senator Mr. DASCHLE. If the distinguished ments offered. Certainly we assume from Oklahoma for his generous offer Senator from Oklahoma will be pre- that will occur, perhaps even still. But of assistance. I would love nothing pared to work with us on his side, we we have not spent much time on the more than to get time agreements. will see what prospects there are for trade bill itself. I would address the I am told there is opposition to time doing something like that on one or question—urge you to consider, even agreements on both sides on each bill. more of the bills in the Senate in the today, within the next hour, filing clo- As we know, given the time it takes to next day. ture on the underlying ATPA. We could get through a motion to proceed if I am happy to yield to the Senator still get progress on these other bills there is a filibuster, given the time it from North Dakota. without prejudicing this particular takes to get through a bill itself, proce- Mr. DORGAN. Mr. President, I think provision. durally, if there is a filibuster—each it sounds good to have some coopera- That is the kind of thing I think Sen- bill will take over a week if you did tion with respect to time. But there is ator MCCAIN would like to see us do. He nothing more than move as expedi- frustration on all sides with respect to is pressing me to file cloture on the un- tiously as you can given our Senate this legislation. The issue of trade pro- derlying Andean Trade Preference Ex- rules. motion authority, for example, came to May 9, 2002 CONGRESSIONAL RECORD — SENATE S4127 the floor. Then we had to go off, I be- he did following, to vitiate his request, We haven’t had any discussion, to my lieve for 12 hours, debating the Agri- is not in the rules of the Senate. He did knowledge, on the floor or in the press culture conference report, which took that because of the goodness of his as to the specific reason any one of the better part of 2 full days. heart, and I appreciate that very much. these nominees has been held back. We have now, I believe, voted on only We have to work here, recognizing that There is no cloud that I am aware of. It one amendment on trade promotion au- no matter in what situation you may is simply stopping the President’s judi- thority. That was the amendment I of- find yourself, it may not be one of total cial nominees, and stopping qualified fered. And that was held over. We understanding at the time you do it. I jurists from serving. couldn’t clear it after we had a tabling appreciate very much Senator LOTT These are people who have been nom- amendment. That was held over several withdrawing the cloture motion. I also inated, and when you are nominated days in order to clear that. appreciate his withdrawing the amend- for a position such as this—the Pre- Senator DAYTON has an amendment. I ment. He did not have to do that. No siding Officer knows; he was Gov- have two additional amendments. I one could have forced him to do that. ernor—in State office or Federal office, know other colleagues have amend- We could have gotten into a procedural they have to begin to sort of unwind ments to trade promotion authority, situation where we would move to their affairs. They have to begin the but we have not been able to get at table his amendment and things of that process of setting themselves up, be- that, and my understanding was we had nature, but that would not have gotten cause who knows how quickly they people on the floor on the other side us to the goal we wanted. could be considered and moved through saying they were not going to let us do I also express my appreciation to my the Senate? anything until all of this gets nego- friend from Oklahoma who expressed to In the case of Nebraska, I guess there tiated to some successful conclusion. the Republican leader what the ar- is one house in which they go through I think the way to legislate, I say to rangement was he and I had. in the process. the majority leader, would be to allow Of course, I appreciate very much the We have eight people of impeccable us to proceed with the amendments. If majority leader working his way integrity who began that process a there are those on the floor who are through this. I think it will be better year ago. Where are they? They are blocking it, perhaps the Senator from for us all that we approach it in this hanging out there. Their lives are in Oklahoma and the Senator from Mis- manner. limbo. That is not fair to them. It is sissippi, if it is on your side, might The PRESIDING OFFICER. The Sen- not fair to the people who are not get- help us remove that block and let us ator from Pennsylvania. ting justice and not having their cases get to the amendments and have votes f heard on appeal, or are having long on the amendments. delays in getting the resolution of JUDICIAL NOMINATIONS Trade promotion authority is a rea- their cases. sonably controversial measure. People Mr. SANTORUM. Mr. President, I That is not fair either. That impacts will have a fair number of amend- thank Senator BYRD. He came over to the administration of justice, particu- ments, but we have had one so far. It me a few minutes ago. He was in line to larly on the civil side, which tends to seems to me we ought to get at them take the next slot, and I appreciate his suffer. We are getting criminal cases and have votes on them. willingness to give me the opportunity through because they are a high pri- Mr. LOTT addressed the Chair. to speak. ority. But you have people whose lives The PRESIDING OFFICER. The ma- I am here on the anniversary of the are almost in limbo because they are jority leader has the floor. President’s first nominations to the not getting the quickest administra- Mr. DASCHLE. I am happy to yield circuit court to, once again, focus the tion of justice that they deserve in our to the Senator. Senate on what really is a great ob- court system. Mr. LOTT. I will respond to that. I struction of justice that is occurring as I want to talk about one particular think that is what we should do. That a result of the actions within the Judi- nominee. He is from Pennsylvania. I is what I just did; I offered an amend- ciary Committee. will give you sort of the rundown of ment. But because of concern about the We have seen the first 11 nominees where we are in Pennsylvania. fact we were in morning business, I the President put up for the circuit We had 11 openings on the district withdrew it. court—which is the appellate court in court level in Pennsylvania. We have I think that is the way to go. Hope- this country at the Federal level, and two circuit nominees who are Third fully, maybe we will come to an agree- then you have the Supreme Court, ob- Circuit nominees—who are sort of ment this afternoon that will allow us viously. We have 11 nominees the Pennsylvanian, assigned to Pennsyl- to move forward on all three bills. If we President put forward. Three were vania in this informal agreement we do not, then what I urge we do is stay moved. But they were three holdovers have across the country. One of the on the trade bill, have amendments, from the prior administration. The nominees for the circuit court—the and go forward. first original, if you will, Bush nomi- only nominee so far, because the other I thank the Senator for yielding. nees have not even had a hearing. If circuit vacancy just occurred a few The PRESIDING OFFICER. The Sen- they were eight people who had very weeks ago—is Judge D. Brookes Smith. ator from Nevada. little to account for, if they were peo- Judge Smith is the present judge of the Mr. DASCHLE. Senator BYRD in- ple who were not considered well quali- Western District in Pennsylvania. He is formed me, while he intended to speak fied, if they were people who had clouds a very distinguished jurist. He has been as in morning business today, he is hanging over their nominations, that on the court for over 10 years and has going to postpone his speech on Moth- would be one thing. But not one of served on the Common Pleas Court in er’s Day until tomorrow. So the floor is them has received anything but well Blair County and Altoona. But he is open, I notify all Senators. qualified, and the vast majority were from Altoona. He is from just an im- The PRESIDING OFFICER. The Sen- well qualified by Senator LEAHY’s and peccable law firm and practiced before ator from Nevada. the Judiciary Committee’s standard, he was judge. He has great reputation Mr. REID. While the leaders are still which is the American Bar Association, as a common pleas court judge in on the floor, especially the Republican which is not necessarily friendly to Re- Pennsylvania, and now as a district leader, I want everyone to know that publican nominees for the court. court judge. what he did was entirely within his We have a situation where we have Again, he has a flawless reputation. rights. What he did not know when he preeminent jurists and litigators who He is a man of highest integrity. He is came on the floor is my counterpart, are being held in committee for a year rated well qualified unanimously by Senator NICKLES, and I had an agree- without a hearing, and without expla- the ABA. Thankfully, we had a hearing ment. The majority leader had asked I nation. That is sort of the remarkable on Judge Smith. But that hearing was keep us in a quorum call. That is what thing throughout this entire discus- roughly 3 months ago. Judge Smith I intended to do. sion. There is no explanation as to why continues to be held in committee. What Senator LOTT did was in keep- any one of these nominees is being held Again, if you look at what I said before ing with the rules of the Senate. What up. about your life being held in limbo, S4128 CONGRESSIONAL RECORD — SENATE May 9, 2002 here is someone who has already had a to change it. He tried I think four or after lawyer after lawyer from the hearing and is being held for months five times. When he felt that he could Western District come here, the Wom- without being moved through the proc- no longer stay in the club because he en’s Bar Association, supporting Judge ess. didn’t see any hope that in fact they Smith. We have not heard anybody Are there serious allegations about would change that policy, he left. from the Western District, who has ap- any actions Judge Smith has taken I will make the argument against peared before Judge Smith, who is a while he has been a member of the NOW’s position—that he stayed there woman saying anything negative. It is Western District of Pennsylvania? Are after he had been made aware of that just the opposite. I received letter after there any decisions out there that have and he should have left right away. letter in support of Judge Smith. been seriously attacked? The answer is Had he left right away, there would So you say: Well, that seems unfair. no. There is no ‘‘gotcha’’ case, or line have been no chance that the club Yes, it is. If you were Judge Smith, of cases, or opinions Judge Smith has would have changed. Judge Smith did imagine how you would be dealing with offered that has caused any problems. stay in there to fight to change it. this. This is a human being. I know we The only issue I am aware of with re- If you wanted to argue anything, you all put these charts up in the Chamber, spect to Judge Smith is that he be- could argue that Judge Smith should and we show the numbers—such and longed to a rod and gun club in Penn- be faulted for not still being in the club such percent get through, and such and sylvania. We are very proud of our trying to change it. By walking away such do not—but we are talking about sportsmen activities in Pennsylvania. from the club, you could make the ar- a human being who has dedicated his We are a great hunting and fishing gument that he walked away from a life to serve, with a particular empha- State. He belonged to the Spruce Creek fight he shouldn’t have walked away sis on the inclusion of women in the Rod and Gun Club. from. That is not their argument. The legal profession. Some of you who can think 20-odd argument is he shouldn’t have fought I have to tell you, I come from west- years ago and of Spruce Creek, you in the first place, he should have just ern Pennsylvania. At times, I have to think of Jimmy Carter. That is where gotten up and left. say that our area of the country has Jimmy Carter used to go. You may re- That is not how we change things in not always been the most progressive member the incident about the rabbit America. We change things by standing when it comes to promoting women to on the boat. That was in Spruce Creek. up for principles and fighting for them. the bench. He has bucked a lot of the Judge Smith was an avid fisherman And Judge Smith fought for women ‘‘Old Boy’’ network in doing what he’s and someone who belonged to this club membership. And now, because he did, done for women. And this is what he for years, and belonged to it when he he is not qualified to be a Federal ap- gets rewarded with, these kinds of out- was confirmed as a judge in the first peals court judge? rageous charges which are not based on Bush administration. He has been a judge for over 15 years. fact. It is based on the fact that Judge Comments were made that this club They have looked at all his cases. Smith happens to be moderate to con- did not allow women members. They There are no complaints about any of servative. allow women to go to the club and par- the cases. The reason they oppose him You see, if you are anywhere right of ticipate in activities, but they don’t is because he stayed in a gun club too center here, and if you are looking at allow them to be voting members of long, fighting for allowing women to the third circuit or you are looking at the club. When asked about that, Judge become members. That is the great sin. the sixth circuit or you are looking at Smith said he would try to change that That is the reason why. Although we any other circuit, you need not apply policy. will have no admission of this, so far, because we will find some reason— There is a woman who is a county publicly, I am told the reason Judge some outrageous, silly reason—that commissioner who served with him Smith is still in committee is because has nothing to do with the incredible when he was a common pleas judge in of that—a man who has incredible cre- track record that you put together Blair County who is a member of NOW, dentials, a man who has been a fighter through your career; we will find some a Democrat, who came out and said she for women in the legal profession, a bogus reason to hold you up and tar knew of nobody who had done more to man who has fought in the ‘‘Old Boys you—the politics of personal destruc- help women and to promote women in Club’’ to admit women as members. tion on decent people who are working the legal profession than Judge We are saying now that he should not hard to make this country better, all Smith—he has an impeccable record on be elevated to the third circuit because for this agenda that no one will talk women’s issues—and the promotion of he fought for women. How remarkable about. No excuse will be given. women within the legal system and the a place this can be sometimes. How re- This is one example. I am sure you court system. markable a place this can be. I would heard earlier today about others. We We had five litigators come to Wash- suspect that maybe had he quit, they have eight people nominated for the ington, DC, most of whom were Demo- would have come back and argued: See, circuits that have been sitting out here crats, and all of them practiced in he quit. He should have stayed and for a year and, unlike Judge Smith, front of Judge Smith. They went fought. And they would oppose him for have not even been given a hearing, through story after story about how that reason. have not even been given the decency he, unlike, unfortunately, some other This is wrong. This is a man of in- of presenting their credentials to the members of the bench, treated women credible integrity, terrific credentials, committee and saying: Evaluate me with particular dignity and respect and great judicial temperament, who is based on me, my merits, my record, my was very accommodating to some of scholarly, gentlemanly, and he is being temperament, and my ability. The their concerns. One of them happened subjected to being called anti-women. committee has said: No, we are not to be pregnant during the trial. He was Even though he has staked out, in his going to give you the opportunity. The very accommodating to her particular judgeship in the Common Pleas in President has selected you, we under- needs. Blair County, in his judgeship in the stand. But we don’t even believe you So he has a great record. Western District, and now as one of the deserve the opportunity to convince us. What is NOW saying? They opposed President’s nominees, that one of his Why? That is the question I keep Judge Smith because he belonged to a highest priorities has always been the asking. Why? Don’t we have to ask our- gun club that didn’t permit women promotion of women in the court, he selves why the chairman of the Judici- members. It permitted women on the has been targeted as anti-women. ary Committee and the committee premises. It permitted women to par- This is wrong. This is wrong. This is have decided not to even give these ticipate in their activities. But it did what is going on here. These are the at- people the opportunity to present not permit them to be members. tacks that are leveled at people who themselves to the committee? What Judge Smith during his initial con- want to serve. are they afraid of? firmation said he would go back and His nomination is being held in com- Let’s be very honest about this. If try to change that. He did. Every time mittee, and has been for months. It is these eight people are that bad, if they there was a meeting and the bylaws wrong. This is a man who has worked are that ‘‘out there,’’ if they are that were reviewed, Judge Smith attempted diligently for women. We had lawyer dangerous, if they are that destructive May 9, 2002 CONGRESSIONAL RECORD — SENATE S4129 to the judicial system, then it would be the road. I don’t know which party it mittee involved here. The Republican in your favor to bring them up here will be. It may be our party; it may be members of the Judiciary Committee, and show how bad they are, how sub- your party. The point is, it is not good of which I am one, would very much versive they would be to the laws of for this institution, and it is horrible like to move forward on Judge Smith the country, how dangerous they would for the country. and other nominees. be to the litigants who would come to I understand the partisan advantage. We were called by the President their court—but nothing. I understand you don’t like the philos- today to join him at the White House What are you afraid of? Are you ophy of some of these people the Presi- because today is an anniversary of afraid if you put Miguel Estrada up dent nominated. I have voted for judges sorts. There are three anniversaries there, and you listen to this articulate, whose philosophy I hated. But the today that mean something to me per- brilliant, competent, well-tempered President won the election. He has the sonally. It is my father’s birthday; he man, that this charade that you have right to nominate good, decent people is 83 years old today. It is the Attorney been putting on will come collapsing with whom you disagree on philosophy. General’s birthday, John Ashcroft, who down upon you? Is that what you are He has that right. If they were good, is 60 years old today. And, unfortu- afraid of? That is a legitimate fear. decent people who were qualified and nately, the other reason it has meaning But what you are doing to these peo- had the proper temperament, I ap- is, as the President reminded us, it has ple, what you are doing to the litigants proved them, whether I agreed with been exactly 1 year since he nominated in this country, what you are doing to their philosophy or not. some very fine individuals to serve on the President is wrong, it is unfair, it That is the role of the Senate. What the circuit courts of appeals—1 year is unjust. If you have a case against is going on here may fundamentally and not a single hearing on eight of them, present the case. Bring them be- change the role of the Senate for the these nominees, all very fine individ- fore the committee. Present the case. worse. You can’t think about the next uals. If you don’t have a case against them, election or the partisan advantage or There has been no hearing scheduled, then treat them justly. even the set of issues we are dealing no hearing held, let alone moving the These are outstanding men and with today in America. Those sets of process forward so that they could be women who deserve their day in court, issues 40 years from now will be dif- confirmed. who deserve the opportunity to present ferent. The precedent you set now will I don’t know of any reason any of themselves to the committee and the have a huge impact on those issues. these judges or lawyers nominated to Senate. They have earned it because Don’t do it. Don’t do it. Don’t open up the circuit courts should be held up. As they have earned the trust of the Presi- a hole in the precedents of the Senate a matter of fact, they have all been dent of the United States, who has that somewhere down the road will rated by the American Bar Association nominated them for these positions. drive a truck over something you may as ‘‘qualified’’ or ‘‘well qualified’’ to What are you afraid of? Or is it some- care very deeply about. It is not the serve on the circuit court. That was, thing even more sinister than that? I right thing to do. according to our Democratic col- hope not. You still have a chance to change it. leagues, the so-called gold standard by It has been a year. It has been a year I pray that you do. which these candidates would be in the lives of these people that I am The PRESIDING OFFICER (Ms. judged. So if it is to apply in these sure they will never forget. It has not CANTWELL). The Senator from Arizona. cases, then all of these individuals been a year that has reflected particu- Mr. KYL. Madam President, I com- should be confirmed, and at a min- larly well on the Judiciary Committee pliment the Senator from Pennsyl- imum, of course, the committee should or this Senate. vania for the remarks he has just begin to hold hearings on them. We have an opportunity, on this an- made, especially in relationship to a Why aren’t the hearings being held? niversary, to begin to start anew. We judge that means a lot to him, Brooks It could be one of two different reasons. saw, just a few minutes ago, the two Smith, who has been nominated by the The first has to do with an attempt to leaders have a little bump in the road. President to serve on one of our Na- change the standard by which we his- When we have bumps in the road here tion’s highest courts. There is no rea- torically have judged judicial nomi- in the Senate—we often do—we always son, as Senator SANTORUM has said, for nees. sort of step back and say: OK, for the this fine individual to be held up. It This morning, the Senator from New good of the Senate, for the long-term may be that for purely partisan rea- York, who chairs a subcommittee of health of the Senate, can’t we put some sons, someone will try to find a pretext the Judiciary Committee, held a hear- of these partisan one-upmanships aside such as the business about the club. I ing in which he was very clear about and do what is right for the Senate? have heard that, too. But I can’t be- his belief that ideology should play a Because this place will be here, God lieve at the end of the day anybody role in the Senate’s confirmation of the willing, much longer than we will be. would actually use that, at least pub- President’s nominees. He expressed a What we do here does set precedent. licly, as a reason to oppose the nomina- view that nominees of President Clin- And the precedent the Senate Judici- tion. There is nothing to it. ton were all mainstream or mostly ary Committee is setting right now is When people get so caught up in the mainstream; whereas President Bush dangerous to this country, because now politics of it, as the Senator from keeps on nominating ideological con- there will always be this precedent Pennsylvania has said, they begin to do servatives, people who, in his view, are that we will be able to look back to things that in cool, collected thought out of the mainstream. and say: See, they did it. The precedent maybe they would not ordinarily do. The Senator from New York is cer- has been set. When you set a precedent, They get carried away and even refuse tainly entitled to his views. He noted, particularly a precedent that is dam- to consider a judge based upon a pre- and I agreed, that he and I probably aging to the rights of Presidential text such as this. When that kind of would disagree philosophically on a lot nominees to be considered, you lower precedent is set, it does begin to not of things. He probably would call him- that bar, you harm the entire judicial only demean this institution but de- self a liberal Democrat. I would proud- system in the future. grade the court system and fundamen- ly call myself a conservative Repub- We have a chance yet, before the end tally alter the relationship between the lican. We respect each other’s rights to of this session, to fix this. Senate and the President and our re- believe in what we believe and to pur- We have a chance to get a proper, a sponsibility of advise and consent to sue those positions. But I don’t think sufficient number of circuit court the nominees. either one of us should therefore sug- nominees approved by the Senate that The Senator has made a very good gest that we are the best ones to judge comports with the historical precedent. general point; unfortunately, a point what a balance on the court would be. It is still possible to do that. It is also well taken with respect to a nominee We probably would both want to shade possible that we won’t do that. That pending before the committee, Judge it a little bit toward our particular will set a precedent here, a precedent Smith. point of view. that, unfortunately, once set will be re- I want to make the clarifying point The Senator from New York says he visited by somebody somewhere down that it is not just the Judiciary Com- believes it is our job as the Senate to S4130 CONGRESSIONAL RECORD — SENATE May 9, 2002 restore balance to the courts. I pointed In fact, I don’t think even most of He told us he thought it was very un- out that, of course, balance is all in the them could be fairly characterized as fair to the fine people he had nomi- eye of the beholder; that probably the somehow ideologically way out of the nated that their lives, in effect, are in President of the United States, elected American mainstream. The other thing limbo at the moment because they by all of the people of the country, was that might be offered as an excuse not don’t know whether they are going to a better judge of the mood of the coun- to hold hearings is—and I have heard get a hearing, whether they are going try, especially a President who, by the this often from my Democratic col- to be confirmed. In the meantime, way, has an approval rating of well leagues—they believe that some of the their law practices are suffering, if over 70 percent. Clinton nominees for courts were not they are still in the practice of law. When he ran for President, it was treated fairly because they were not Their reputations are hanging in the clear that if he won, he would be the given hearings. It is true there were a balance. person nominating the judges. As a few that, for one reason or another, did Let me tell you a little bit about a matter of fact, Vice President Gore not get a hearing. Of course, in the couple of them. Of these eight nomi- made a point during his campaign to case of those nominated at the end of nees who have languished before the warn voters that if they elected Presi- the last year of the Presidency, there is committee and have not had a hearing, dent Bush, then-Governor Bush, he good reason for that because there is one is John Roberts, a nominee to the would be making the nominees to the no time to do it. But there were still DC Circuit Court of Appeals. He is one court. He was right about that. When probably some who could have had a of the country’s leading appellate law- President Bush was declared the win- hearing and did not. yers. He has argued 36 cases before the ner, he had every right to make these A hearing was held this morning by Supreme Court. He served as Deputy nominations. the Senator from New York in which Solicitor General. He has a great track If the people are not well qualified, four of those individuals were called to record. There is nothing wrong with then the Senate should vote them testify. And each one of them made the this nominee. He is one of the smartest down. On occasion that has happened, point that they were disappointed—ac- people and one of the most experienced but it is quite rare. As the Senator tually, one had gotten a hearing but people we could put on the DC Circuit from Pennsylvania pointed out, the had not been confirmed. They all made Court. Nobody denies that. So why test has been, for most of us over the the point they were disappointed and hasn’t he had a hearing? Why? years, even if you don’t like the person they didn’t think it was fair. Two of You can cite all kinds of statistics ideologically, if that is the President’s them, particularly, I thought, made a about how many Clinton nominees choice and the individual is otherwise very good point that when you get were approved and this and that. But well qualified, then you really ought to right down to it, it is very unfair for a when you get right down to it, there is vote to confirm. nominee not to have a hearing. They absolutely no reason this fine man All of us have done that. I have swal- believe that all nominees should have a hasn’t had a hearing now in a year. lowed hard and voted for people I didn’t hearing. That, of course, applies today Miguel Estrada has been nominated particularly care for and whose ide- as much as it applied to them. If it was to the DC Circuit and he has a great ology I very definitely didn’t care for. wrong for them to be denied a hearing, story to tell. He would be the first His- I voted for them nonetheless because I it is just as wrong for President Bush’s panic ever to serve on the DC Circuit. couldn’t find anything wrong with nominees to be denied a hearing. He has argued 15 cases before the U.S. them. They graduated high from their The second reason that sometimes is Supreme Court. By the way, this is a law schools. They had done a good job offered up to me why President Bush’s big deal for a lawyer to argue before in a law practice or on some other nominees are not being given a hearing the Supreme Court. I have had three bench. Even though I figured they or moved forward through the process cases there in my law career, and it is would probably be quite ideologically for confirmation, it seems to me, is a great honor for a lawyer. When you liberal—and by the way, some have based upon a false premise; that is, in can say you have argued 15 cases—and turned out to be ideologically liberal— effect, saying two wrongs make a right. I argued 1—and when you can say you I felt it was my obligation, since that It is wrong not to give somebody a argued 36 cases, that is something very was the President’s choice, and there hearing. Some of President Clinton’s few lawyers have ever had the oppor- was no question about qualification, nominees were not given a hearing, so tunity to do. It shows that you are an that we should approve them. That I we are not going to give President extraordinary lawyer. So why isn’t did. Bush’s nominees a hearing. If it is Miguel Estrada even getting a hearing? That has been the tradition in this wrong, it is wrong. If it is wrong, it He would be the first Hispanic to serve body for a very long time. I don’t think should stop. on this court. He was an Assistant U.S. it is appropriate for us to try to define I heard one colleague say, but we Solicitor General. He was a Supreme what a proper balance of ideology is need to go back and fix the wrong. To Court law clerk. He has been a Federal and to turn down the President’s nomi- my knowledge, there is only one Presi- prosecutor. No one can say he is not nee because of that. dent who has gone back and nominated qualified. I especially think it is wrong not to people his predecessor of another party In fact, the Bar Association unani- give them a hearing and find out. had nominated who were not con- mously recognized both of these indi- These eight nominees to the circuit firmed. President Bush has actually viduals are well qualified, with their court the President made exactly a gone the extra step and renominated highest rating. year ago have never had an oppor- two of the Clinton nominees who have Justice Pricilla Owen, a nominee to tunity to come before the committee been confirmed already by this body. the Fifth Circuit, has served on the and answer any questions about their To my knowledge, President Clinton Texas Supreme Court since 1994. Every ideology. didn’t renominate any of the 40-some— newspaper in Texas endorsed her in her There is a presumption that has not I believe that is the correct number— last run for reelection. So why isn’t necessarily been backed up by reality nominees pending at the end of the Justice Pricilla Owen even receiving a or by facts. Bush 41 administration. President Bush hearing? There is no reason she should I would think that, as the Senator 43 has done that. not receive a hearing—or at least no from Pennsylvania said, if there is no So I think it is wrong to say we are fair reason. reason to be afraid of these judges, not going to have a hearing on these I am told Michael McConnell is one then we ought to have a hearing. And if individuals because some other can- of the most intelligent people ever to there is, I would think people would didates didn’t get a hearing and that be nominated to a circuit court. He is want to bring those reasons out to was wrong. Again, two wrongs don’t nominated to the Tenth Circuit, and he demonstrate why they are not qualified make a right. is one of the country’s leading con- to sit on the bench. But, in fact, there Today, President Bush told us that stitutional scholars and lawyers. He has been no suggestion that there is a he called upon the Senate, and specifi- has an incredible reputation for fair- reason why any of these eight can- cally the Senate Judiciary Committee, ness, as has been illustrated by the didates are not qualified. to move forward with these nominees. support he has received from literally May 9, 2002 CONGRESSIONAL RECORD — SENATE S4131 hundreds of Democrat and Republican cancy crisis.’’ Those were his words. circuit court nominees confirmed by law professors around the country. He Today, there are 89 vacancies. We are this same date in his term. is clearly one of the outstanding jurists getting close to twice as many. It is a I know we can quote statistics, and in the country. He hasn’t even gotten a 10-percent vacancy rate. The Judicial that is not really the most important hearing. Why? Conference of the United States classi- issue. I quote from the Washington Jeffrey Sutton is another of the fied 38 of these court vacancies as judi- Post editorial of November 30 of last country’s leading appellate lawyers. He cial emergencies. year: has been nominated to the Sixth Cir- The President has 18 individuals The Judiciary Committee chairman, cuit. He graduated from Ohio State nominated to fill a seat designated as a Democratic Senator Patrick Leahy, has of- Law School and was first in his class. judicial emergency. What that means fered no reasonable justification for stalling He has argued over 20 cases before the is that litigants cannot get to court. on these nominations. U.S. Supreme Court and State supreme There are delays of 6 and 8 years of The point is, anybody can cite statis- courts, and he served as solicitor of the people not being able to get to court or tics, and most of us are pretty good State of Ohio. have their cases resolved—in the case lawyers and can argue the case, but at Justice Deborah Cook, a nominee to of some criminal cases. This is unfair the end of the day, there is no reason- the Sixth Circuit, has served as a jus- to litigants, and it has been said many able justification for stalling on these tice on the Ohio Supreme Court since times that justice delayed is justice de- nominations. There is no reasonable 1994, a State supreme court justice. She nied. There are many situations in justification for stalling, unless—I was the first woman partner in Akron’s which that is true, but that is what is think the Post might have gone on to oldest law firm. This is another ex- happening as a result of not being able say—you are trying to get even be- traordinarily qualified individual. to fill these positions, especially with cause of some perceived slight. That is There is no reason for her not to have regard to those denominated as judicial beneath the Senate of the United a hearing. Why hasn’t this nominee emergencies. States of America, and it should not be even had a hearing? The 12 regional circuit courts of ap- the motive of anyone, and I cannot be- Judge Dennis Shedd has been nomi- peals are the last resort, other than the lieve it would be. This is no reason why nated to the Fourth Circuit. He was Supreme Court. There are 30 vacancies, these nominees should be denied a unanimously confirmed by the Senate which is a 19-percent vacancy rate. Fil- hearing. Lloyd Cutler, who was President’s as a Federal district judge in 1990. He is ings in the 12 regional courts of appeals Clinton’s White House counsel, and strongly supported by both home State reached an all-time high last year. former Congressman Mickey Edwards Senators—one a Democrat and the They have increased 22 percent since recently wrote an op-ed in the Wash- other a Republican. In fact, he is past 1992, and I could quote from former ington Post. They said: chief counsel to the Senate Judiciary presidents of the American Bar Asso- Committee. He, too, has a great num- ciation and others who have expressed Delay in confirming judges means justice delayed for individuals and businesses, and ber of friends on both sides of the aisle. grave concern about the ability to do combined with the bitter nature of some con- He would be a great judge on the cir- justice when these kinds of vacancies firmation battles, it may deter many quali- cuit court. Why hasn’t he even received exist. fied candidates from seeking Federal judge- a hearing? Is there anything wrong I will read one quotation from one ships. with him? letter: That is the unfortunate additional Judge Terrence Boyle, also nomi- I urge you to heed President Bush’s call result of what is happening here. More nated to the Fourth Circuit, was unani- and not as Republicans and Democrats, but and more good candidates are going to mously confirmed to be a Federal dis- as Americans. It’s time for the Senate to act say: Why should I put myself and my for the good of our judicial system. trict judge in 1984. He has served all of family through all of this? And that is this time, and I haven’t seen anybody In the Sixth Circuit Court of Appeals, going to be a real shame. come forward with anything that half of the court is vacant. Of the 16 Historically, Presidents were able to would suggest he is not qualified. As a authorized judges, 8 stand vacant get their nominees, especially their matter of fact, the State Democratic today. At a time when there were only first nominees, confirmed. President Party chairman supports Judge Boyle’s four vacancies on that court, Chief Reagan, President Bush 1, and Presi- nomination. He says that he gives ev- Judge Merritt of that court wrote to dent Clinton all enjoyed a 100-percent eryone a fair trial. the Senate Judiciary Committee and confirmation rate on their first 11 cir- If the former chairman of the Demo- said this: cuit court nominees—100 percent. All cratic Party in the State can endorse a The court is hurting badly and will not be were confirmed within a year of their Republican President’s nominee to the able to keep up with its workload. Our court nomination. Remember, these eight we circuit court, that is a pretty good should not be treated in this fashion. The public’s business should not be treated this are talking about have not even had a thing. You would think partisan con- way. The litigants in the Federal courts hearing within a year. sideration could be laid aside. Why should not be treated this way. The situation The broader picture is no different. hasn’t this individual even received a in our court is rapidly deteriorating due to The history of the last three Presi- hearing? the fact that 25 percent of our judgeships are dents’ first 100 nominations shows that, It is not too much to ask that, after vacant. one, President Reagan got 97 of his 365 days, the first step in the confirma- Now it is 50 percent. The caseloads in first 100 judicial nominations con- tion process be taken. A year ago, Federal court can be expected to in- firmed in an average of 36 days; Presi- President Bush said: There are over 100 crease because of the war on terrorism dent George Herbert Walker Bush saw vacancies on the Federal courts caus- and in my area because of the extraor- 95 of his first 100 confirmed in an aver- ing backlogs, frustration, and delay of dinary amount of illegal contraband age of 78 days; and President Clinton justice. and illegal immigration coming across saw 97 of his first 100 confirmed in an Today, a year later, he is asking us the border. average of 93 days. But to date, this to begin the process of clearing up this It is sad that the Senate cannot bring Senate has confirmed only 52 of Presi- backlog. He has done his part. Chief itself to even hold hearings on people dent Bush’s first 100 nominees, and the Justice Rehnquist recently stated that who have now been sitting for a year average number of days to confirm has the present judicial vacancy crisis is since their nomination, individuals exploded to 150. ‘‘alarming,’’ and on behalf of the judi- who by any measure are extraor- It is not possible to say that nothing ciary, he implored the Senate to grant dinarily well qualified, are among the is happening, that nothing is different, prompt hearings and have up-or-down most qualified in the country. There is that this is no different than in pre- votes on these individuals. nothing wrong with them, and yet no vious administrations, that President I noted that the chairman of the Sen- hearing. Bush’s nominees are being treated the ate Judiciary Committee, Senator As of this date, the Senate has con- same as any others. It is just not true. LEAHY, in 1998, at a time when there firmed only 9 of the President’s 30 cir- The statistics belie that. were 50 vacancies, said that number of cuit court nominees. By contrast, Madam President, even if you do not vacancies represented a ‘‘judicial va- President Clinton had 42 percent of his want to talk about the statistics, I just S4132 CONGRESSIONAL RECORD — SENATE May 9, 2002 ask you to focus on what President world—grain traders, commodity trad- with all different perspectives and phi- Bush focused on today. He said: I nomi- ers, those who provide that transpor- losophies, says to me they have had nated 11 good people a year ago today, tation, those who finance the busi- this same experience in their own and only 3 of them have even had the nesses engaged in all of this. There are States with their own constituents, courtesy of a hearing. Would you a lot of winners in Minnesota, a lot of that they too have recognized that please go back to your colleagues and beneficiaries through jobs, through ex- these trade policies have very mixed implore them to treat these people panding businesses, through rising results in their States, and particu- fairly? He said: It is not for me; it is for stock portfolios, who say, hey, more larly those who are not the bene- the American people. He made that trade is better for us, who frankly can- ficiaries, who are going to be the cas- point a couple times. And it is for jus- not even imagine why I am torn on this ualties of expanded trade, the increased tice and for the American people. I also subject. imports which have been, I think, real- think that it is going to say something I find in the presentations and the ly tilting our trade policies out of bal- about the Senate. discussions about trade authority, ance in a way that is detrimental to The PRESIDING OFFICER. The time there is very seldom a recognition, this country. controlled by the minority in morning even an acknowledgment, of the thou- Last year, the trade imbalance, the business has expired. sands of men and women whose jobs, deficit in our trade, was $436 billion. Mr. KYL. Madam President, if we do whose farms, whose businesses, have We owed other nations $436 billion not move on these nominations, it is been lost. And lost is not even the more from their imports than we re- going to cause a significant decline in right word; they have really been ceived from our exports. In agriculture, the reputation of the Senate. taken away from them because of the well, there is still a positive trade bal- The PRESIDING OFFICER. The Sen- impact of these trade policies. ance, but that positive balance has ator from Minnesota. So recognizing that this legislation, been reduced. We have seen from f the so-called trade promotion author- NAFTA a flood of imports of food, of ity, is a high priority for the adminis- automobiles, of other manufactured IMPORTS OF FOREIGN LUMBER tration, that was passed by the House goods, and our trade imbalance with AND WOOD PRODUCTS of Representatives, that, as the Sen- Mexico has gone from being a slight Mr. DAYTON. I thank the Chair. ator from Oklahoma said earlier, the positive in 1993 to a negative balance in Madam President, I rise in morning tradition of the Senate has been to sup- the year 2000. Our trade balance with business to discuss an amendment port free trade in anticipation of the Canada has gone from being slightly in which Senator CRAIG from Idaho and I probability that final legislation will the negative to seriously in the nega- are going to offer when we resume con- pass the Senate if we get to that point, tive in those 7 years. sideration of the trade bill. I wish to I think this amendment is a crucial ad- Again, I have seen in Minnesota men take a few minutes in morning busi- dition to standing beside and with and women, farmers, workers, business ness now to talk about it. those men and women in my State any- owners, who have lost all of that, lost It is an amendment that I believe way, and I think elsewhere across the their hopes, lost their livelihoods, lost will complement the intent of TPA. country, who are being harmed by their homes, lost their pensions, lost Others may view it differently. It is these policies or who will be in the fu- their health care as a result of this. To one Senator CRAIG and I developed out ture. me, it would be unconscionable to hand of our shared experiences working with This amendment says if an agree- that over to an unelected representa- and representing members of our re- ment comes back that has been nego- tive of any President, any administra- spective States, Idaho and Minnesota, tiated by trade representatives, acting tion—previous administration, this ad- who have lost jobs, farms, and farm in- at the behest of the President but not ministration, a future administration— come because of trade policies. elected by the people of this country— and allow that situation to develop I first had the opportunity to work comes back with changes in the trade where that agreement would come with the Senator from Idaho when Min- remedy laws, which change—in most back and we would be told, take it or nesota loggers and small business own- cases weaken—these laws that have leave it, up or down; either make that ers running sawmills were being been passed by the Congress, signed decision that is going to benefit people harmed seriously—some put out of into law by the President of the United but disregard those who are going to be business, some losing their jobs—as the States, for the purpose of protecting most harmed. result of imports of foreign lumber and those who will be harmed by these I see the Senator from Nevada has re- wood products coming into this coun- trade agreements, by illegal dumping turned, hopefully with some illumina- try and to our State. I found that Sen- of products—it has certainly been dev- tion for us. We have taken this oppor- ator CRAIG had been working on these astating to northeastern Minnesota, to tunity to talk about the amendment. problems for years before I arrived. the steelworkers there and across this Mr. REID. If the Senator will yield, I actually took his lead. He spear- country—that before those laws and the majority leader is on his way. headed a group of us working on the their provisions can be altered or Mr. DAYTON. I will yield even more impact of sugar coming into this coun- weakened or negotiated away or used so when the majority leader arrives. try on sugar beet growers in Minnesota as bargaining chips to get some other I thank the Senator from Idaho for and Idaho. I know he is someone who purpose achieved, the Congress has the his work on this. I think he has heard has a deep and abiding commitment to authority—it is not required but it has more about it from other parties than do what is right for the citizens of his the option—to remove those sections of I have. State, as I hope I can demonstrate for the bill and put the rest of the agree- I yield the floor. The PRESIDING OFFICER. The Sen- the people of Minnesota. ment through the fast track, so-called, Madam President, you probably had ator from Idaho. the procedures that will have been en- Mr. CRAIG. Madam President, we are this experience in your State as well. acted into law, but to reserve the pre- in morning business, are we not? The trade policies of this country rogative to review these changes, these The PRESIDING OFFICER. That is which have been in effect over the last measures, that are going to affect the correct. couple of decades from one Republican kind of protection, the kind of safety Mr. CRAIG. I ask unanimous consent administration to a Democratic admin- net, the kind of assistance that Ameri- that I be allowed to speak for 15 min- istration and now to a Republican ad- cans think they can depend on, cannot utes. ministration have relatively consist- be taken away, cannot be altered, ex- The PRESIDING OFFICER. Without ently encouraged the expansion of cept by more careful consideration by objection, it is so ordered. trade, the expansion of exports upon the Senate and Congress. f which a lot of jobs in Minnesota depend The fact that we have 26 Members of and on which a lot of businesses in the Senate who are cosponsors and are TRADE MUST BE BALANCED AND Minnesota, large and small, have suc- in support of this legislation, 13 Repub- FAIR cessfully and profitably expanded mar- licans, 13 Democrats, men and women Mr. CRAIG. Madam President, I am kets across this country and the from all different parts of the country pleased my colleague from Minnesota, May 9, 2002 CONGRESSIONAL RECORD — SENATE S4133 Senator DAYTON, would speak to an trade laws including antidumping law, coun- then we support it. If they cannot, then amendment he and I have coauthored tervailing duty law. Section 201 and section a point of order rests against it. Why? that has gained some concern in a vari- 301 are critical elements in U.S. trade policy. Because we are the ones who craft pub- ety of quarters as to the impact it A wide range of agricultural and industrial lic policy. We will not deny or walk sectors have successfully employed these might have on a trade promotion au- statutes to address trade problems. Unfortu- away from our constitutional right to thority we might be able to pass out of nately, experience suggests that many other do so. At the same time, we are fully the Senate. I think the Senator from industries are likely to have occasion to rely willing to allow our negotiators to en- Minnesota has spoken very clearly and upon them in future years. Each of these gage all of the rest of the trading coun- articulately about the problems he and laws is fully consistent with U.S. obligations tries of the world to bring any trade I and all States face—the frustration under the World Trade Organization and agreement with any proposed changes we have with blending domestic mar- other trade agreements. Moreover, these in it because ultimately it is our job in kets and international markets. laws actually promote free trade by coun- the Senate under our constitutional tering practices that both distort trade and I certainly am a strong advocate of are condemned by international trading form of government to accept or deny trade. I always have been. At the same rules. U.S. trade law provides American that by ratification or by voting it time, I want it to be balanced and I workers and industries the guarantee that if down. want it to be fair. When there are dis- the United States pursues trade liberaliza- Mr. DAYTON. Will the Senator yield? advantages—and we have just seen one tion, it will also protect them against unfair Mr. CRAIG. I am happy to yield. that this administration has spoken to foreign trade practices and allow time for Mr. DAYTON. There have been cer- in an area that is of great concern to them to address serious import surges. They tain characterizations made about the Senator from Minnesota and my- are part of a political bargain struck with those who are advocates for this Congress and the American people under amendment. I ask the Senator if he be- self, and that is in timber, where Cana- which the United States has pursued market dians had a unique advantage and were opening agreements in the past. lieves these characterizations apply to himself: That those who support the dumping in our market, and we finally What does the Craig-Dayton/Dayton- amendment are against trade of almost spoke up, stepped up, put a duty on, Craig amendment do? It guarantees we any kind, that we are against the ad- and said back off, let us see if we can can speak to that if those kinds of re- ministration, we want to be obstruc- find an agreement. It is only with the laxations or changes in the laws come tionists to the administration’s trade use of the tool of trade remedy that we back to the Senate. And we can speak policies, and that we are xenophobic, are now able to get the Canadians to to it without dumping the entire trade against the rest of the world. Does the blink and to think about possibly com- agreement. Senator consider himself as fitting in ing to the table to craft a fair and equi- I don’t think we want to do that. any of those categories? I don’t con- table agreement. That is exactly what Ours is to promote an ever-expanding, sider myself to fit into those cat- our amendment would do. freer trading world market. At the egories. Some would suggest, at least by rhet- same time, we do not want to disadvan- Mr. CRAIG. I don’t know how anyone oric, it is a very damaging amendment tage our own economy, destroy our serving the Senate, which is for an ex- to trade promotion authority. What I own producers’ capability, damage the panding economy, for greater revenues, thought I would do is read a letter that workhorses of this country, all in pur- for workers and for producers—and of 62 Members of the Senate signed and suit of the idealism or the goal. course we will tax a little of that— sent to the President on May 7 of last We went on to say: year, when in fact our trade represent- would be against trade. Congress has made it clear its position on Clearly, the future of our economy is atives have been in Doha, Qatar, nego- this matter. In draft fast-track consideration tiating new trade agreements and the considered in 1997, both the House and Sen- trading in a world market. I have rest of the world said: You have to put ate have included strong provisions directing watched my State of Idaho grow from your remedies on the table, you have trade negotiators not to weaken U.S. trade an agrarian economy of agriculture, to negotiate them down or away or we laws. Congress has restated this position in timber and mining, to a very diverse are not going to deal with you. resolutions, letters, and through other mat- economy today of electronics, the high- What we are saying is bring it all to ters. Unfortunately, some of our trading tech industry, and food processing. Al- the table, talk about it. We believe partners, many of which maintain serious most half of everything an Idaho work- unfair trade practices, continue to seek to er produces has to sell on the world that as the legislative branch of Gov- weaken these laws. ernment that crafts public policy, we market to be profitable, to allow that Why? They want access to the larg- ought to have a right at some point to person his or her job and to continue est, richest consumer market in the be able to speak to it, instead of taking the success of that company. That is world. They don’t want us to force it all or take none of it, which is, of also true in Minnesota. It is also true them to be fair, for them to be bal- course, what happens under TPA or everywhere else in the country. anced, and for them to come in in a fast-track authority. What the Senator is saying and what Once a trade agreement is negotiated transparent negotiated environment. I am saying is, in the case of Canada and if the executive branch of govern- That is what we are asking. That is and softwood lumber—and they have a ment in some way has negotiated down what this amendment requires. distinct advantage and dump in our We went on to say: or altered trade remedy authority, and markets, putting our people out of the package comes to the floor, then This may simply be postponing by those work—we say, wait a minute, stop; bal- who oppose further market opening. But ance this field out a little bit and cre- the pressure of the world is upon the whatever the motive, the United States Senate. Take it all or take none of it. should no longer use its trade laws as bar- ate fair trade by that kind of balance. Those are the only two options. Of gaining chips in trade negotiations nor agree That is what our amendment allows—a course, the pressure is to take all of it to any provision that weakens or undermines balancing of the process. What is most because it is believed the advantages U.S. trade laws. important that our amendment allows gained by these trade agreements are Now, that is May 7, 2001; 62 Senators us, as policymakers, is a right to have so powerful to the American econ- signed, Republican and Democrat. a voice in that process. Not the take-it- omy—and in many instances they are— The amendment we bring to the or-leave-it strategy that doesn’t work that we cannot deny it. Ultimately floor, or hope we have the opportunity in the end. they pass, even though the administra- to bring to the floor, is supported equi- I wanted to vote for NAFTA. I voted tion, Democrat or Republican, may tably. We have 26 cosponsors, 13 Demo- against NAFTA. Why? Extraneous en- well have negotiated away some of our crats and 13 Republicans. vironmental, extraneous labor agree- authority and our ability under the What do we do? We simply create a ments that should not have been part law. point of order that says if the adminis- of a trade agreement. It had no choice. This is what we said to the President tration changes trade remedy laws, There was no flexibility. Take it or May 7: they, by the current proposal, must no- leave it. We are writing to state our strong opposi- tice us that they have done so, and in Instead of working to create a bal- tion to any international trade agreement so doing they have to come back and anced economic environment that that would weaken U.S. trade laws, key U.S. fully defend it. If they can convince us, would have allowed freer but fair and S4134 CONGRESSIONAL RECORD — SENATE May 9, 2002 balanced trade across the Mexican and we debate trade and people say: Well, I ing work in the hot mills and the cold Canadian border, we did not have that am for fair trade. I don’t know when mills; and families that now need our opening. That is an opening we ought trade gets fair. I just never know when help. to have. trade is going to get fair. I have been a America’s steel industry is in crisis. What I do not want to deny, and I Member of the U.S. Congress for 25 American steel companies are filing for think the Senator from Minnesota years and I have never seen a trade bankruptcy protection—31 since 1997, agrees, I don’t want to deny our nego- deal that came out fair yet. including 17 in the last year alone. tiators from going to the table and What are the consequences of that? Steel mills are shutting down. In the being able to negotiate any agreement. People losing their pensions, people last year, at least 40 mills and related They ought to have the full freedom losing their health care, and people los- facilities have been shut down or idled. and flexibility to put anything and ev- ing their jobs—this is unfair trade. The closed mills represent nearly one- erything on the table and to bring any- People have been injured by these prac- fifth of America’s steelmaking capac- thing and everything back to us. In the tices and I want to help them. ity. end, under our constitutional form of I heard the stories of my steel- Steelworkers are losing their jobs. government, we are the ones who have workers and the retirees. I have been Nearly 47,000 steelworkers have lost to make the decision. They are the to the rallies. I have been to the meet- their jobs since 1998, including about ones who negotiate. That is the kind of ings. I have been down to the union 30,000 in the last year alone. We now balance that I think is important. halls. I even held a hearing on this have less than half as many steel- The PRESIDING OFFICER. The Sen- topic. I heard their stories about their workers as we did in 1980. Most of these ator from Maryland. fear of losing their health care and jobs are gone for good. The cause of this crisis is well- f their pensions. I met, at my hearing, Gertrude known. Unfair foreign competition has STEEL TRADE POLICY Misterka. She is a woman my own age, brought American steel to its knees. Ms. MIKULSKI. Madam President, I from my own hometown of Baltimore, Foreign steel companies are subsidized am very concerned about some actions who is terrified she is going to lose her by their governments, and they dump that were taken yesterday. Guess what. health care. Her husband Charlie died 5 excess steel into America’s open mar- On May 8, the administration issued its years ago. He worked at Bethlehem ket at fire sale prices. statement of administration policy on Steel for 35 years. He was loved by his This isn’t rhetoric. This is fact. Last year, the International Trade the trade bill. I was looking forward to wife, a friend to his fellow steel- Commission unanimously found that that because I thought George Bush workers. He is greatly missed. ‘‘a substantial part of the industry is was a friend of the American steel in- The Misterkas thought that after 35 being injured by increased imports’’ dustry. I was absolutely shocked to years of working at Bethlehem Steel, under section 201 of the Trade Act. read that policy and find out the ad- they would have a secure future. Char- As Commerce Secretary Evans said ministration opposes the provision to lie thought his wife would be taken last June: provide a safety net for American steel care of even after his death. He was a retirees. I was shocked because just a For over 50 years, foreign governments good, kind guy. have distorted the market through subsidies few months ago, President Bush stood Let me tell you about her. She has of their steel industries. up for steel when he issued those tem- diabetes, high blood pressure, and asth- The Russian Government keeps porary steel tariffs, and I thought we ma. She pays $78 a month for her about 1,000 unprofitable steel plants could count on him now as we were health care premium. Even with this open through subsidies. South Korea working our way through the Trade coverage she pays $100 monthly for her has nearly doubled its production ca- Adjustment Act. prescriptions. pacity since 1990 without the domestic I was taken aback to hear the opposi- But let me tell you, because of being demand to support the increase. tion to the amendment that Senator a diabetic, because of having complica- Millions of tons of foreign steel are ROCKEFELLER and I have, that provides tions around diabetes, guess what her sold in the United States every year a very modest temporary bridge to help prescription drug bill is every year: below the cost of production to keep steel retirees keep their health benefits $6,716.16. You tell me what is going to these subsidized foreign mills in busi- until we can work out a larger com- happen to her if she loses her health in- ness. promise. surance. America’s steel industry is under This statement is terrible. It aban- Oh, yes, let’s give somebody a tax siege and has been under siege for dec- dons the steelworkers. It abandons credit or a voucher to go into the pri- ades. They’ve been fighting an uphill steel retirees. It is just plain wrong. We vate market. You tell me how Ger- battle against competitors that don’t do need steel and we do need steel- trude, at age 65, with diabetes and all play by the rules. workers. They are suffering at the the complications, is going to go shop- The true cost of foreign steel sold at hands of unfair trade competition, and ping. Medicare Choice has already col- ‘‘bargain’’ prices is lost American jobs, George Bush’s own administration lapsed. HMOs are not of any value to is broken promises to American work- helped us document that. That is what her. Nobody will take her because of ers, and threats to American security. is so breathtaking. her preexisting condition. Why is steel important? On one hand we have done it, and Listen, we have to do something to Steel built America, the railroads then on the other hand we said even help her and to help all others like her. and bridges that keep our country con- though steel companies are in bank- I promised that I would fight to help nected, the cars and trucks and buses ruptcy because of unfair trade prac- her keep her health care. Families who and trains that make our Nation move, tices, we will not help the steelworker worked hard for America and spent all the buildings where we live and work retirees keep their health benefits. those years at backbreaking work and shop and worship, and the ships, I am fighting for American steel, should be able to count on us. tanks and weapons that we need during those steelworkers and those retired These costs will only go up as pre- times of war. Yet saving steel is not an steelworkers who, after years of hard scription drug costs continue to sky- exercise in nostalgia. work, believed that by working down rocket. President Bush said: in the mills they would have security I listened to Mrs. Misterka that day, Steel is an important jobs issue, it is also for their families in retirement. Those and my heart went out to her and all an important national security issue. widows who sent their husband off to the women like her. I promised her I couldn’t agree more. the mills every day, like Bethlehem that I would fight to help current and The distinguished ranking member of Steel in my own hometown, with pride retired steelworkers and their fami- the Appropriations Committee and of and love and a lunch bucket thought lies—families that need a safety net so its Defense subcommittee, Senator that they could count on their pension they don’t lose their healthcare over- STEVENS, recently made this point elo- and their health care. night if their companies go under; fam- quently here on the Senate floor: These are the true victims of years of ilies who worked hard for America, During World War II, he said, ‘we produced unfair trade practices. Year after year, some for nearly 50 years of back-break- steel for the world. We produced the steel for May 9, 2002 CONGRESSIONAL RECORD — SENATE S4135 the allies. We rebuilt Europe. We built the in emergency appropriations for our stand up for steelworkers and help tanks in the United States, and the planes farmers, and it looks like these sub- them in their time of need just like and the ships that saved the world.’ Could we sidies are increasing. they helped America every step of the do it again? Congress passed a $100 billion farm way. That is a serious question. bill. The President said he will sign it. This is not the end of the story. I will Bethlehem Steel’s Sparrows Point It calls for a $73 billion increase in continue to fight for America’s steel plant near Baltimore recently pro- farm subsidies over the next 6 years. workers. duced the steel plate to repair the USS This farm bill includes a $3 billion Mr. DASCHLE. Mr. President, I Cole. It is the only mill in America subsidy for peanuts, up to $30,000 per thank the Senator from Maryland for that still produces the armor plate for farmer for livestock subsidies, and a $3 accommodating both Senator LOTT and Navy ships. billion subsidy for cotton. me as we talk about the current cir- America must never become depend- Since 1996, we have provided over $5 cumstances involving the pending leg- ent on foreign suppliers—like Russia billion for cotton producers—three- islation. and China—for the steel we need to de- quarters of those funds went to just Let me also say how much I share fend our nation and freedom around 18,000 farmers. I love cotton. It is the her point of view. Maybe I am not able the world. But we are headed in that fabric of our lives. But cotton is not to demonstrate the same passion as direction. Already, the United States is more important than steel. Senator MIKULSKI has indicated, the one of the few steel-producing coun- I have supported aid to farmers. So strength of feeling that she has about tries that is a net importer of steel. have most of the opponents of steel. I the issue involving her steelworker re- America imported more than 30 mil- would ask them why. Why do farmers tirees—but I certainly share her con- lion tons of steel last year. get bail-out after bail-out, yet our steel viction. President Bush took an important workers can’t get this modest help? f first step to help America’s steel indus- Farmers work hard, but no harder try by imposing broad temporary tar- than steelworkers. Farmers provide TRADE ADJUSTMENT ASSISTANCE iffs on imported steel. vital commodities. So do steelworkers. AGREEMENT I was disappointed that the tariffs Our Nation must never be dependent on Mr. DASCHLE. Mr. President, as we are 30 percent or less—phased out over foreign food, and it must never be de- have been noting throughout the last the 3 years they are in effect rather pendent on foreign steel. several hours, a number of our col- than 40 percent tariffs for 4 years the It is not just farmers. Congress gave leagues have been in discussion and ne- steel industry and steelworkers sought. the airlines $15 billion after September gotiation involving the trade adjust- I was disappointed that the tariffs 11 because of a national emergency. ment assistance part of the package don’t cover slab steel. But I appreciate That was the right thing to do. Now, that is pending before us. I am very the President’s action under section we need to stand up for steel. pleased to announce that an agreement 201. Make no mistake, this is a national has been reached. The agreement is one Tariffs are an important step to give emergency for steel. Standing up for that involved the administration, Re- America’s steel industry a chance to steel is in the national interest just publicans, and Democrats who have restructure and recover with some pro- like farmers, just like airlines. been involved in this issue for some tection from the deluge of below-cost I was moved by the stories of Mrs. time now. foreign steel, but they are not the only Misterka and others at the hearing a I might just briefly outline it. I will step needed to help American steel. few weeks ago as was everyone in the leave to the manager of the bill and the The tariffs help the industry. Now it hearing room. I feel very close to these ranking member to discuss the matter is time to help the workers and retirees workers and retirees. I grew up down in greater detail tomorrow morning. who will lose their healthcare if their the road from the Beth Steel mill in As I understand it, they intend to lay companies go under. Baltimore. My dad had a grocery store down the amendment tomorrow. It will The Daschle amendment provided a that he opened extra early so the steel- be, then, the pending business. temporary 1-year extension of health workers on the morning shift could I also encourage Senators to offer benefits to qualified steel retirees. come in and buy their lunch. The work- amendments tomorrow and Monday. The health care extensions for steel ers at Beth Steel weren’t units of pro- Senator LOTT and I have discussed the retirees are similar to TAA health care duction, they were our neighbors. They schedule. I am prepared to say as a re- benefits for workers who lose their jobs are our neighbors. sult of this agreement that there will as a result of trade agreements. Work- And what did we know about the be no votes tomorrow, but I encourage ers could have 2 years of health care Bethlehem Steel Plant? It was a union Senators to avail themselves of the op- benefits. Retirees would only have 1 job with good wages and good benefits portunity they now have, tonight or to- year of benefits. so our neighbors could go to work, put morrow or Monday, to offer amend- Just like the temporary tariffs give in an honest day, and get fair pay back ments. the companies breathing room to re- to raise their families and pursue the We will consider votes for those cover, a temporary extension of bene- American dream. amendments on Monday night. We fits give workers and retirees breathing We were all proud of our workers at have already announced there will be a room to find a long-term plan. It gives Bethlehem Steel. In World War II and vote on a judge at 6 o’clock on Monday. them time to plan—time that the Vietnam they rolled gun barrels, made We can accommodate additional votes workers and retirees of LTV didn’t steel for grenades, provided steel for immediately following that vote, have. They lost their benefits over- the shipyards that turned out Liberty should amendments be offered and night. ships very 3 weeks. Today, Beth Steel should we be in a position, then, to dis- Supporting producers is in the na- made the steel plates to repair the USS pose of them by Monday afternoon. tional interest. The policy of our Gov- Cole after the terrorist bombing dam- But the agreement has a number of ernment is to support producers when aged the ship. components. The trade adjustment as- it is in the national interest. National Most of Beth Steel workers are Beth sistance for more workers—that will interest means national responsibility. Steel workers for their entire careers— provide at least 65,500 new workers It is important to support farmers to 30, 40, 50 years on the job, every day de- with trade adjustment assistance, ac- make sure we have the producers to be spite the aches and pains, the bad back, cording to the reports that I have just food-independent. the varicose veins that age steel- been given, unprecedented health care I am happy to stand up for our farm- workers beyond their years. Their com- coverage for harmed workers, a 70-per- ers whether they are chicken producers mitment to Beth Steel is a commit- cent COBRA subsidy for tax credit for on the Eastern Shore or corn growers ment to America doing the work that employers and other institutions, and in the Midwest. needs to get done for fair pay and a se- benefits that match the 2-year training We spend about $19 billion a year on cure future. The futures that once period. Workers would receive income farmers—$656 billion over the past 10 looked secure are now at risk through assistance for at least 18 months while years. This does not include $17 billion no fault of their own. It is time we they were retraining for up to 2 years. S4136 CONGRESSIONAL RECORD — SENATE May 9, 2002 Then there also would be wage insur- Senator DASCHLE said. But I believe But part of the conversation was that a ance for older workers as well. the negotiators are prepared to defend steel retiree amendment would be in There are a number of components. I the agreement and oppose amendments order. I believe we will have the sup- will not speak at length about the spe- that would change that. port and votes. Senator ROCKEFELLER cifics of the package until the agree- I want to state very firmly that it and I intend to offer an amendment at ment is ready to be presented tomor- would be my intent to do the same an appropriate time. row morning. But I hope the final for- thing. If we don’t do that, we begin to I also support the majority leader mulation of the language to accommo- pick apart the agreement, and then when he said he would not ask for a date this agreement can be prepared so there is no agreement. rollcall vote on the point of order. that the amendment will be provided But I believe good work has been As of yesterday, I wanted a rollcall for all colleagues tomorrow, will be of- done. All parties have made some con- vote, to drag it out, and raise the roof. fered, and will be part of the pending cessions. I think, though, that it is But then it would be parliamentary business as we consider amendments to going to have significant assistance for tactics. this, and other amendments. those who need this transition assist- I think this topic is so serious that Senator LOTT and I have agreed that ance, and this will set a process up that for the good of the Nation, and for the there would be an understanding that can get us a bill. way I feel about my steelworkers and as this package is agreed to as it re- I hope Senator DASCHLE will join me those who have been hurt, I don’t want lates to those issues involving TAA, we in opposing amendments that could un- to engage in a time-consuming and dil- would entertain it. dermine the agreement which we have. atory practice. There is also an understanding that Further, I observe that I am glad we I will not ask for a rollcall vote now an amendment that would allow for will be having votes on Monday. I that we have an assurance that we will consideration of assistance for retired think we are going to have to do seri- be able to offer our amendment. I steelworkers for health purposes would ous work. I understand Senators have thank the leader for his advocacy on be entertained. And we will have that amendments on both sides that will be that. debate, and an amendment will be of- offered. But we do need to try to finish I wanted to be clear that I will not fered. A point of order, of course, will the bill next week. I think we are going ask for a rollcall on the point of order, be made against my language. And we to have to look at how we are guaran- so that we can get to the compromise understand that. Once that point of teed that is done while Senators have a and get to the amendments, and maybe order has been made, this compromise chance to make their case. That is a get to really helping those people who package will be offered. delicate balance, as is everything in have been injured by trade. I am appreciative of the work that the Senate. It always takes under- I have other comments I want to has gone into reaching this agreement. standing and cooperation, and we are make about steel. I think I will save I am disappointed, obviously, that we going to do that. those for my statement later on about couldn’t do more. But I am also appre- Senator DASCHLE and I both are why they are in this crisis, why this is ciative of the fact that we have to going to have to provide leadership a national security issue, and why it is move on and that Senators who wish to with which our entire caucuses won’t an economic security issue. offer other legislation are entitled to always agree. But that is how business I think we are going to have a frame- do so. is done. I think we have done the right work for proceeding on an amendment. I thank all of my colleagues for the thing here. I intend to support this Senator ROCKEFELLER and I will be effort that has been made. I hope this agreement and work on getting this able to offer that, if not tomorrow, will now accelerate our prospects for very important legislation completed. over the next coming days. completing this bill and allowing us to I yield the floor. I yield the floor. address the deadline that exists for the Mr. DASCHLE. Mr. President, I wish Mr. LOTT. Mr. President, I don’t Andean Trade Preference Act espe- to make one clarification which Sen- want to dice and slice there too close- cially. ator LOTT and I have already made. I I yield. said this privately, but I want to say ly, but I want to clarify that the nego- Mr. LOTT. Mr. President, just a cou- for the record that I will oppose an tiators and I believe Senator DASCHLE ple of clarifications, and a statement of amendment to improve this package or and I are prepared to support the com- what I believe our understanding is: to detract from this package on trade ponents of this compromise agreement First of all, I believe—we talked adjustment assistance. even though not all of it was in the about this earlier—there still needs to Obviously, we are open to consider TAA area. Obviously, other amend- be a point of order made against the amendments on other matters relating ments may be offered on trade pro- package that was filed, and there to the bill. But on this particular pack- motion assistance, and we will have an would be enough votes to sustain that age, the one additional part of the opportunity to offer those. But we will point of order. agreement that I stated—and I want to defend the components of the com- Mr. DASCHLE. Mr. President, in re- reiterate again—is there is an under- promise. sponse to the Republican leader, it standing that Senators would be free to Mr. DASCHLE. Mr. President, that is would not be my desire to challenge offer amendments having to do with true. I said a moment ago that it is my the point of order. steelworkers. I intend to support that intention to oppose amendments—with Mr. LOTT. When the point of order is amendment. I have indicated that to the clarification I made on the steel made, at that point we will move for- Senator LOTT. But that is outside of issue—that would alter this agreement ward with the agreement we have in re- this agreement. That was part of the with all of its components. I think Sen- gard to TAA. Amendments would be in understanding we had as this negotia- ator LOTT and I are in agreement on order on the rest of the underlying tion was completed. that. That is the intention of leader- package, TPA, trade promotion author- I wanted to make that clarification. ship as amendments are offered. ity, and the Andean Trade Preference I will say for the record what I said Mr. President, I yield the floor and Act. Is that the Senator’s under- privately to Senator LOTT. That suggest the absence of a quorum. standing? amendment will be part of the overall The PRESIDING OFFICER. The Mr. DASCHLE. Mr. President, the debate on the bill, and I do intend to clerk will call the roll. Senator is correct. support it. The assistant legislative clerk pro- Mr. LOTT. We have had an oppor- I yield to the Senator from Mary- ceeded to call the roll. tunity to quickly review the compo- land. Mr. DASCHLE. Mr. President, I ask nents of this compromise agreement. It Ms. MIKULSKI. Mr. President, I unanimous consent the order for the has been a bipartisan effort. The ad- think the majority leader stated or quorum call be rescinded. ministration has had input. I believe clarified what my questions were. The PRESIDING OFFICER. Without all parties are agreed to support it. As I understand it, there is a com- objection, it is so ordered. There could still be amendments that promise but the compromise does not Mr. LOTT. Mr. President, what is the would be offered, or entertained, as include a bridge to help steel retirees. pending business? May 9, 2002 CONGRESSIONAL RECORD — SENATE S4137 CONCLUSION OF MORNING Projecting the costs of this farm bill, 84,000 guns were diverted to the illegal BUSINESS it may be necessary to invade the So- market and were often later used by The PRESIDING OFFICER. Morning cial Security trust fund, probably criminals to commit violent crimes. In business is closed. abandon plans for adequate prescrip- addition this report showed that inves- tion drugs for senior citizens and en- tigations involving gun shows and cor- f croach on necessary appropriations for rupt gun dealers involved the highest ANDEAN TRADE PREFERENCE many priority items, including defense, numbers of trafficked guns. However, EXPANSION ACT—Continued education and health care. When I some good news did come out of this Mr. LOTT. Now, Mr. President, the chaired the Appropriations Sub- report. At the time of its publication, pending business will be the trade bill? committee for Labor, Health & Human the report concluded that ATF gun The PRESIDING OFFICER. The Sen- Services and Education, and now in my trafficking investigations led to the ator is correct. The pending business is capacity as ranking member, I have prosecutions of more than 1,700 defend- the trade bill. seen the great need for funding for the ants. Of these cases, 812 defendants National Institutes of Health and other were sentenced in federal court to a AMENDMENT NO. 3386 health programs as well as education total of 7,420 years in prison, with an Mr. LOTT. Mr. President, the and worker safety. Without enumer- average sentence of nine years. Daschle amendment No. 3386 exceeds ating many other programs, there are Gun trafficking has also been a prob- the Finance Committee’s allocation of obviously high priorities which will be lem in my home state of Michigan. Ac- budget authority and outlays for fiscal impacted by the costs of this Farm cording to Americans for Gun Safety’s year 2002 and breaches the revenue Bill. analysis of ATF Trace Data from 1996— floor for fiscal year 2002, fiscal years I am especially concerned about pay- 1999, over 40 percent of the guns traced 2002 through 2006, and fiscal years 2002 ments to large corporate farmers. The to crimes committed in Michigan in through 2011. I raise points of order distinguished ranking member of the 1998 and 1999 originated in other states, against this amendment under sections Agriculture Committee, Senator a much higher rate than the national 302(f) and 311(a)(2)(b) of the Congres- LUGAR, has stated that more than $100 average. The largest number of out of sional Budget Act of 1974. billion will go to farm subsidy pay- state suppliers of guns to Michigan The PRESIDING OFFICER. The ments over the next 10 years, with two- during the same period were from Ohio, point of order is well taken, and the thirds of payments going to just 10 per- Kentucky, Georgia and Alabama. amendment falls. cent of the largest farmers who grow The ATF’s report and these statistics Mr. DASCHLE. Mr. President, I sug- primarily corn, soybean, wheat, rice demonstrate that criminals are not gest the absence of a quorum. and cotton. This policy will likely en- only gaining access to guns, but are The PRESIDING OFFICER. The courage further market concentration. able to smuggle them into the hands of clerk will call the roll. This bill encourages over-production other criminals who use them to com- The assistant legislative clerk pro- with the resultant consequence of yet mit violent crimes. This kind of activ- ceeded to call the roll. lower prices leading to more subsidies. ity can be stopped by vigorously en- Mr. REID. Mr. President, I ask unan- This Bill will further have an adverse forcing our gun laws, providing law en- imous consent the order for the impact on international trade by pro- forcement with more tools to crack quorum call be rescinded. viding expanded and unpredictable lev- down on gun trafficking, corrupt gun The PRESIDING OFFICER. Without els of support, which increase the like- dealers and other armed criminals, and objection, it is so ordered. lihood that the United States might by passing sensible gun safety legisla- f breech the farm subsidy limitations it tion. MORNING BUSINESS agreed to in the 1994 world trade agree- f ments. Further, the bill’s expanded FARM SECURITY AND RURAL Mr. REID. Mr. President, I ask unan- supports have caused our trading part- INVESTMENT ACT OF 2002 imous consent that the Senate now ners to question our sincerity on future proceed to a period of morning business reductions in farm spending. Ms. SNOWE. Mr. President, I rise with Senators allowed to speak therein There are some portions of the bill today in support of the Farm Security for a period not to exceed 10 minutes which I favor, such as the new national and Rural Development Act of 2002. each. dairy program, expanded Food Stamp While previous farm bills have provided The PRESIDING OFFICER. Without Program, including providing food very little for the State of Maine and objection, it is so ordered. stamps to legal immigrants, and the the New England region, I am pleased f many positive environmental and con- that the conference report before us, servation measures that are very effec- while by no means perfect, provides for FARM BILL tive in Pennsylvania. I am pleased to a more equitable treatment for the Mr. SPECTER. Mr. President, once see the new national dairy program, farmers in Maine and the Northeast. I again, the principal reason I have but it falls short of the proper legisla- have been in touch with the farmers sought recognition has been to com- tion which is embodied in my bill, S. and growers in Maine throughout the ment on my ‘‘no’’ vote on the farm bill, 1157, which would create permanent development of the 2002 Farm bill, and which was passed yesterday. Even dairy compacts in the Northeast, as they, like I, believe the Northeast has though there are some parts of the well as the South, Northwest and Inter- been shortchanged in past Farm bills. farm bill which I liked, I have, on bal- Mountain regions. While the dairy pro- The State groups, such as the Maine ance, decided to vote ‘‘No’’ because of visions will be of help, Congress is Potato Board, the Maine Wild Blue- the excessive cost which favors big cor- missing an opportunity to create a berry Commission, the Maine Farm Bu- porate farmers and provides unreason- long-term dairy policy through the reau, the Maine Apple Growers, the able subsidies to cotton, soybean, compacts which would have no cost to Northeast Dairy Coalition, the Direc- wheat, rice and corn. the taxpayers. tors of the State’s Farm Service Agen- When I voted for the farm bill in the f cy and Maine Rural Development, and Senate, the cost was $73.5 billion over the State Conservationist at the Na- current spending for farm programs. GUN TRAFFICKING IN AMERICA tional Resource Conservation Service, However, the conference report came in Mr. LEVIN. Mr. President, I have believe that this conference report at $82.8 billion for a total of approxi- spoken previously about the problem of starts us down a path toward regional mately $190 billion total over 10 years gun trafficking. In June of 2000, the Bu- equity from which I would hope we will which is, simply stated, far too expen- reau of Alcohol, Tobacco and Firearms not stray in the future development of sive. The United States no longer en- released ‘‘Following the Gun: Enforc- farm policies. joys a projected surplus of $5.6 trillion ing Federal Laws Against Firearms In addition, on May 6, Commissioner over the next 10 years. In fact, there is Traffickers.’’ This report examined Robert Spear of the Maine Department a deficit of $130 billion expected by the 1,500 ATF gun trafficking investiga- of Agriculture wrote me similar end of this fiscal year. tions documenting that more than thoughts, stating that, ‘‘I believe it is S4138 CONGRESSIONAL RECORD — SENATE May 9, 2002 a good improvement over the so-called worked with, such as Environmental to assist small communities in Maine Freedom to Farm. The bill strengthens Defense and the Environmental Work- with homeland security issues, to sup- the safety net for all farmers, it more ing Group, I am disappointed that the port the rural business investment pro- equitably distributes Federal farm dol- conferees did not keep the Senate’s gram, and $80 million for loan guaran- lars and it provides strong incentives higher funding numbers for funding to tees to provide local TV signals to to improve stewardship’’. I would like farmers to promote conservation in rural areas. to submit Commissioner Spears’ entire each of our States. But, I am pleased In regard to the Rural Empowerment letter for the RECORD. that there is still an 80-percent in- Zones, Rural Enterprise Communities, First and foremost, this past year, I crease overall for conservation funding and Champion Communities for Direct made a pledge to the dairy farmers of in this conference report. and Guaranteed Loans for Essential Maine that I was committed to see The funds going to Maine will at the Community facilities, the city of that the safety net they had through very least be quadrupled, estimated to Lewiston, ME, will now be eligible to the now expired Northeast Interstate be close to $23 million by 2005. This is take advantage of the benefits of Com- Dairy Compact would not be pulled out very important funding for a State munity Facility Direct and Guaranteed from under them. This has been my top that is facing pressures from the envi- Loan Programs. Lewiston was one of priority for maintaining a way of life ronmental impacts of growth and only two communities nationwide spe- in our rural communities, and I am sprawl and pressures to preserve open cifically named in the Farm Bill Con- pleased that the Farm bill provides for spaces, and also the need to conserve ference Report. a dairy program modeled on our Dairy our water resources, in some cases to For agricultural research, the con- Compact. restore the habitats of the now endan- ference report expands the Initiative I have stated numerous times on this gered Atlantic salmon in eight for Future Agriculture and Foods Sys- floor that I would have much preferred Downeast rivers, a few which flow tems, important to the University of that the Northeast Interstate Dairy through the heart of our Maine Wild Maine as a real new source of research Compact be reauthorized along with Blueberry fields where water is impor- and development funding. The Univer- the inclusion of those Northeast States tant to both. sity has competed successfully for that surround New England that want The conference report also provides these grants in the past and currently to join the compact to ensure that peo- $1.03 billion in mandatory funding for has a $2 million IFAFS grant for look- ple in the region can get fresh, low- rural development programs. Under the ing at small integrated farm systems, priced fluid milk in their grocery Rural Development Community Water along with being cooperators of several stores. In contrast to the provisions Assistance Grant Program, for in- other IFAFS grants around the coun- contained in the conference report, the stance, Maine will receive $3 million of try. beauty of the Northeast Dairy Compact the $30 million in mandatory funding For the promotion of Maine value- was that it required no Federal fund- through 2011 to address drought condi- added agricultural products around the ing. tions by making rural areas and small world, the Market Access Program will Under the conference report, dairy communities eligible for grant funding be increased to $200 million annually farmers will get monthly payments where there is a significant decline in by 2006, which is up from the current over the next 31⁄2 years when the price quantity and quality of water. funding of $90 million. The MAP has of fluid milk drops, not yearly as other This funding is particularly critical been invaluable in helping to advertise commodity programs, but monthly when considering that, like many the quality of our Maine potatoes and checks that come only when prices are States on the East Coast, Maine has wild blueberries, helping growers to low, and at the very time the producers been experiencing an extended period market their products abroad. Another need a better cash flow to keep the of drought, so the funding that helps $20 million is provided to help growers farm and their dairy herds going, as residents deal with drought conditions of fruits and vegetables and other spe- the Northeast Dairy Compact provided. is of great importance. There are, ac- cialty crops combat trade barriers. In I am very pleased that the dairy cording to the Maine Emergency Man- addition, $200 million is provided to funding provided is retroactive to De- agement Agency, 1,700 wells that have purchase agriculture products for the cember 1, 2001, as it corresponds with now gone dry in the State. Total pre- School Lunch Program, and products the time when milk prices started to cipitation for 2001 was the driest in 108 listed as eligible for the program are drop in New England and continue to years of precipitation monitoring in potatoes, blueberries, and cranberries, remain low. The dairy farmers in my the State. Precipitation has actually all grown in the State. State will be able to count on approxi- been below average for 22 of the last 24 Funding for 15 underserved States, of mately $3.2 million in added income months, and while we have been helped which Maine is one, is doubled, now set from last December through this com- somewhat by recent snow and rain, at $20 million annually for fiscal years ing July, when it is predicted that NOAA’s National Weather Service cli- 2003–2007 for marketing assistance, or- prices may start to climb. These pay- mate forecasters see limited relief from ganic farming, pesticide reduction ments may literally save some of our the drought in the months to come. projects, and conservation assistance small family farms as the Northeast Also, the Rural Water and Waste Fa- to help farmers sustain their working Compact has done in past years, and I cility Grants will provide Maine with lands. urge the USDA to get these retroactive up to $90 million over 10 years of addi- Somewhat overlooked in the con- payments out to the dairy farmers just tional resources to assist small rural ference report is a newly created title as soon as possible. communities with their drinking water that was included in the Senate-passed In the future, when the price of fresh and wastewater needs. Reauthorization bill for energy efficiency and conserva- fluid milk drops below $16.94 per hun- of Rural Development Programs tion, providing $450 million for re- dredweight, our dairy farmers will re- through 2011 will provide Maine with at search on bio-based fuels, a Federal ceive 45 percent of the difference of least $1.5 million over 10 years for re- biofuels purchasing program and effi- that price and the current price of the gional planning activities and tech- ciency measures that can make renew- fluid milk. This will apply to the first nical assistance to small businesses. able energy the cash crop for the 21st 2.4 million pounds of production of Grants to non-profit organizations Century. fluid milk or for a dairy herd of around will be provided to finance the con- To help decrease the country’s reli- 135–140 cows, a small family farm that struction, refurbishing, and servicing ance on foreign oil imports, a competi- has forged a way of life in New England of individually-owned household water tive grant program will support devel- for three and four generations. well systems in rural areas for low or opment of biorefineries for conversion Not only has the dairy safety net moderate income individuals by pro- of biomass into fuels, chemicals and been an important provision for me, viding resources to community based electricity. A biodiesel fuel education but a substantial increase in funding organizations to help families with se- program will be funded at $1 million a for voluntary agriculture conservation vere drinking water problems. year. The conference report will also programs has been a priority as well. There are provisions to train rural establish a competitive grants program Like the environmental groups I have firefighters and emergency personnel for energy audits and renewable energy May 9, 2002 CONGRESSIONAL RECORD — SENATE S4139 development assessments for farmers the Senate farm bill that capped farm- a benefit to the Maine potato industry and and rural small businesses. ers’ payment limitations on com- Maine agriculture. To remain competitive in In addition, $23 million a year from modity crops at $275,000 over the House a world market place, we must continue to 2003 to 2007 is provided for a loan, loan- version that had payments capped at develop products that meet the consumer’s guarantee and grant program to help demands. The Value-Added Agriculture Mar- $550,000, and I am not pleased that the ket Development Program will do just that. farmers, ranchers and rural small busi- limitation was raised in conference to It will allow Maine producers access to funds nesses purchase renewable energy sys- $360,000 and the language was weakened to develop value-added agriculture products tems and make energy efficiency im- on eligibility. I do not represent a to meet these demands. provements. Also authorized is the con- State that raises an appreciable Again, I hope you will support the bill; it tinuation of the Commodity Credit amount of commodity crops, so I can- will have a positive impact on Maine agri- Corporation bioenergy program and in- not speak to the funding importance culture. If you should have any questions or cludes animal byproducts and fat, oils if I can provide any additional information, for those in the heartland of the Nation please contact me at 207–769–5061. and greases as eligible commodities. and in the South, but I do know what A competitive grant program is es- Sincerely, is important for my State and every- DONALD E. FLANNERY, tablished to support development of where I look in this Farm Bill Con- Executive Director. biorefineries for conversion of biomass ference Report in the non-commodity into fuels, chemicals and electricity. A titles, I see funding provisions that will DEPARTMENT OF AGRICULTURE, biodiesel fuel education program would bring opportunities to every corner of FOOD & RURAL RESOURCES, be funded at $1 million a year. the State of Maine. Augusta, ME, May 6, 2002. Of great interest to many small for- Specifically, I ask unanimous con- Senator OLYMPIA J. SNOWE, est landowners in Maine is a provision Russell Senate Office Building, sent that a letter of support from the Washington, DC. in the conference report’s forestry title Maine Potato Board be printed in the for $100 million in obligated funds for DEAR OLYMPIA: I want to thank you for the RECORD, that expresses my feelings time and effort you and your staff spend en- the Forest Lands Enhancement Pro- well about how important the in- suring the Federal programs and laws work gram, which will provide financial and creased funding for conservation, rural for Maine farmers. This has been especially technical assistance to small, private, development, and the Market Access true over the past year as Congress worked non-industrial forest landowners for a Program are to Maine. Part of what on the Farm Bill. variety of good management practices. The Farm Security and Rural Investment The conference report also includes Don Flannery, executive director said Act of 2002 has some flaws, primarily the critical increases and updates to the was ‘‘ . . there are concerns that we all lack of payment caps and the bias toward nutritional safety net for America’s have with the bill but we also believe growers in the south. However the legisla- families. The food stamp program ful- there are many direct benefits to tion provides many benefits to Maine agri- culture. fills an important need for millions of Maine potato growers and Maine agri- culture.’’ Whatever disappointment Maine dairy people nationwide and, thanks to the farmers may have over losing the Compact $6.3 billion in new dollars over the next On balance, I would be remiss to the agricultural and conservation commu- has to be tempered by the provisions estab- 10 years for this program that is in- lishing the National Dairy Program. Farm- cluded in the conference report, count- nities in Maine to dismiss this bill or ers receive a monthly payment of 45 percent less additional needy families in Maine to dismiss President Bush’s commit- of the difference whenever the Class 1 price will be served by this program. ment to U.S. agriculture to sign the falls below $16.94. It is retroactive to Decem- I am certain that I am not alone 2002 farm bill into law. I am casting a ber 2001. Our calculations show the retro- when I hear complaints from my State yes vote for the rural communities and active clause alone will provide our farmers for the farmers of Maine who are the payments totaling about $3 million. about the administrative difficulties The bill spends $15 million annually on the and barriers inherent in Federal pro- backbone of the State’s economy. There being no objection, the letters Senior Farmers’ Market Nutrition Program. grams, and the food stamp program is Implemented in Maine through our Senior certainly one that has been in need of was ordered to be printed in the FarmShare it has proven wildly successful simplification. The conference report RECORD, as follows: with both farmers and seniors. This year, allows States to simplify and reduce MAINE POTATO BOARD, with funds from a combination of sources, their reporting requirements, and al- Presque Isle, ME, May 8, 2002. including U.S. Department of Agriculture, lows States to use a common definition Hon. OLYMPIA J. SNOWE, we are providing nearly $1 million worth of Russell Senate Office Building, locally grown fresh fruit and vegetables to of what counts as income similar to Washington, DC. low-income elderly in Maine. other public assistance programs, and DEAR SENATOR SNOWE: I would like to take Another program with direct benefits to are two essential components for the opportunity to express our support for Maine is one I know you have worked on in streamlining the administrative bur- the Farm Security Act of 2002 ‘‘Farm Bill’’. the past, financial assistance for apple pro- den associated with these benefits. While we understand that there are issues ducers who have suffered from low market Through the last farm bill estab- that remain contentious and it does not in- prices. The bill provides $94 million for losses lished in 1996, which is better known as clude some of the programs we had hoped in the 2000 crop year. the Freedom to Farm Act, Congress for, the Farms Savings Account to name one, The $17.1 billion in conservation funds con- tried to establish a new system of price we encourage support of the bill and vote for tained in the bill represents a dramatically passage. increased commitment to the environment. and income supports for commodities As I stated, there are concerns that we all Among the highlights for Maine are $985 that would lead to a shift toward a have with the bill, but we also believe there million for the Farmland Protection Pro- more market-oriented agricultural pol- are many direct benefits to Maine potato gram, a 20-fold increase. Maine leverages icy by gradually reducing financial growers and Maine agriculture. If we are to state money with funds from this Federal support. Unfortunately, we had no develop new markets for potatoes and pota- pot through the Land for Maine’s Future crystal ball to tell us that export mar- toes products, export markets will need to be Program to preserve open space and keep kets and farm prices would decline. a major area of development. The increased families on working farms. The bill sets aside $50 million, to continue This precipitous situation had Con- funding in the Market Access Program is a step in the right direction and potentially conservation and risk management programs gress enacting four different supple- will benefit the potato industry in Maine. authorized in the Agricultural Risk Protec- mental measures from 1998 through Another element of the bill that will help de- tion Act of 2000. These programs have al- 2001 that provided an additional $23 bil- velop export markets is the Technical As- ready provided money to farmers in Maine lion in non-disaster related farm in- sistance for Specialty Crops (TASC). for irrigation projects and organic certifi- come commodity assistance. We simply Conservation is an area that is of the cation. Maine is one of the 15 underserved are not being fiscally responsible by greatest concern for all of agriculture, and states eligible for these funds. continuing to do commodity farm bills this bill will provide an increase in funding For Maine farmers raising specialty crops, on an ad hoc basis, and the conference to help producers in Maine continue to im- almost all the growers in the state, the bill plement sound conservation practices. The has a couple of benefits. It substantially in- report will hopefully prevent the need Water Conservation Program will aid agri- creases funding for the Market Access Pro- for ad hoc non-disaster supplementals culture in dealing with an ever increasing gram, which subsidizes efforts to increase in the future. demand for water to produce quality crops. non-branded export promotion. The bill also For the 2002 farm bill, I strongly sup- The Rural Development Title includes continues the restrictions on planting fruits ported the amendment that passed in funding under existing programs that will be and vegetables on program acres, a critical S4140 CONGRESSIONAL RECORD — SENATE May 9, 2002 restriction for our potato farmers. They face The Bush administration has devoted and a list of impediments to the effi- unfair competition from Canadian growers; considerable time and effort to in- cient and effective implementation of they don’t need it from western growers who crease cooperation between the United these programs. also raise program crops. I could continue. The list I have provided States and Russia on these matters, as Second, this bill addresses the short- you are just the highlights of the reasons I exemplified by U.S.-Russia cooperation comings in the Russian system in ac- support the Farm Bill. I believe it is a good in the war against terrorism, the Bush- counting for nuclear warheads and improvement over the so-called Freedom to Putin summit in November 2001, and weapons-grade material: The NTTRA Farm. The bill strengthens the safety net for the May 2002 U.S.-Russia summit in states that it is the policy of the all farmers, it more equitably distributes Russia. Also, late last year, the admin- United States to establish with Russia federal farm dollars and it provides strong istration completed a thorough review comprehensive inventories and data ex- incentives to improve stewardship. Thank you and I look forward to continue of U.S. efforts to help Russia secure its changes of Russian and U.S. weapons- working with you on issues of importance to nuclear and other WMD arsenal. The grade material and assembled warheads Maine farmers. review concluded that, ‘‘most U.S. pro- with particular attention to tactical, Sincerely, grams to assist Russia in threat reduc- or ‘‘non-strategic,’’ warheads—one of ROBERT W. SPEAR, tion and nonproliferation work well, the most likely weapons a terrorist or- Commissioner. are focused on priority tasks, and are ganization or state would attempt to f well managed.’’ At the time, the White acquire—and weapons which have been NUCLEAR AND TERRORISM House also noted: ‘‘The President has removed from deployment. Only THREAT REDUCTION ACT OF 2002 made clear repeatedly that his admin- through such an accounting system istration is committed to strong, effec- will we be able to reliably say that Mr. SMITH of Oregon. Mr. President, tive cooperation with Russia and the Russian warheads and materials are I am pleased to introduce this week, other states of the Former Soviet sufficiently secure. with Senator MARY LANDRIEU, the Nu- Union to reduce weapons of mass de- Third, the NTTRA calls for the estab- clear and Terrorism Threat Reduction struction and prevent their prolifera- lishment of a joint U.S.-Russia Com- Act of 2002 NTTRA. The NTTRA ad- tion.’’ The President wisely realizes mission on the Transition from Mutu- dresses one of the most serious secu- that only through greater cooperation ally Assured Destruction to Mutually rity challenges facing the United Assured Security. The U.S. side of the States today: the possibility that a with Russia can we deal effectively Commission would be composed of pri- portion of the Russian nuclear weapons with this problem. The NTTRA sup- arsenal and other weapons of mass de- ports the President’s desire to vate citizens who are experts in the struction (WMD) will fall into the strengthen U.S.-Russia cooperative ef- field of U.S.-Russia strategic stability. hands of terrorists or terrorist states. forts. The NTTRA also calls upon the Presi- Over a decade after the end of the Senator LANDRIEU and I are carrying dent to make every effort to encourage cold war, Russian still possesses about on the tradition of Senators like Sam the Russian Government to establish a 95 percent of the world’s nuclear weap- Nunn and RICHARD LUGAR, who along complementary Commission that ons and materials outside of the United with other of our colleagues were re- would jointly meet and discuss how to States. These weapons and materials sponsible for the U.S. effort to help the preserve strategic stability during this are stored in over 400 locations across Russians secure, account for, and, time of rapid and positive change in Russia and many are not fully secure. where possible, dispose of their nuclear the U.S.-Russia relationship. To understand the need to help the weapons and other WMD. The United The United States and Russia have Russians on this front, one fact bears States must make every effort to de- made great strides to reshape our coun- noting: Each year, the Russians spend feat global terrorism. One of the most tries’ relationship since the end of the approximately 2 percent of the amount important actions we can take is to cold war. I am encouraged by the work that we spend to operate and secure deny terrorists the means to kill tens of President Bush and President Putin our nuclear weapons arsenal. of thousands, if not hundreds of thou- regarding the reduction of U.S. and The members of this body know that sands, of people. Russian nuclear arsenals and I have addressing this challenge is not a par- The NTTRA will address this serious been pleased to see Russia’s under- tisan issue. It is an issue of deep con- national security challenge in the fol- standing and support of our war on ter- cern to all Americans. Early last year, lowing ways: rorism. I hope that this bill will sup- a bipartisan task force led by former First, the NTTRA states that it is port our countries’ working relation- Sentate majority leader and current the policy of the United States to work ship by encouraging further movement U.S. Ambassador to Japan, Howard cooperatively with the Russian Federa- towards arms reductions and helping Baker, and former White House Coun- tion in order to prevent the diversion build trust and expand dialogue and co- sel Lloyd Cutler reached three primary of weapons of mass destruction and operation between our nations. This re- conclusions: First, the most urgent material, including nuclear, biological lationship is critical to protecting both unmet national security threat to the and chemical weapons, as well as sci- Russia and the United States from nu- United States today is the danger that entific and technical expertise nec- clear terrorism. weapons of mass destruction or weap- essary to design and build weapons of I call upon the members of this body ons-usable material in Russia can be mass destruction. As I noted earlier, to join Senator LANDRIEU and me as we stolen and sold to terrorists or hostile the administration’s recent review of work against nuclear terrorism by sup- nation States and used against Amer- U.S.-Russia programs concluded: ‘‘most porting the Nuclear and Terrorism ican troops abroad or citizens at home; U.S. programs to assist Russia in Threat Reduction Act of 2002. second, current nonproliferation pro- threat reduction and nonproliferation f grams in the Department of Defense, work well, are focused on priority LOCAL LAW ENFORCEMENT ACT Department of Energy, and related tasks, and are well managed.’’ The OF 2001 agencies have achieved impressive re- NTTRA proposals complement the in- sults thus far, but their limited man- creases and proposed organizational Mr. SMITH of Oregon. Mr. President, date and funding fall short of what is changes that the Bush administration I rise today to speak about hate crimes required to address adequately the has proposed for these programs. legislation I introduced with Senator threat; and third, the President and The NTTRA also calls for the Presi- KENNEDY in March of last year. The the leaders of the 107th Congress face dent to deliver to Congress, no later Local Law Enforcement Act of 2001 the urgent national security challenge than 6 months after the enactment of would add new categories to current of devising an enhanced response pro- the NTTRA, a series of recommenda- hate crimes legislation sending a sig- portionate to the threat. tions on how to enhance the implemen- nal that violence of any kind is unac- It bears repeating that these conclu- tation of U.S.-Russia non-proliferation ceptable in our society. sions were reached months in advance and threat reduction programs, includ- I would like to describe a terrible of the September 11 attacks. This legis- ing suggestions on how to improve and crime that occurred in May 1996 in lation will address each of the Baker- streamline the contracting and pro- Lake Charles, LA. A gay man was Cutler Task Force conclusions. curement practices of these programs robbed and beaten to death after being May 9, 2002 CONGRESSIONAL RECORD — SENATE S4141 abducted from a rest stop. The ADDITIONAL STATEMENTS HONORING DR. GEORGE RUPP, attackers, four men, said that they had PRESIDENT OF COLUMBIA UNI- gone to the rest area to ‘‘roll a queer.’’ VERSITY I believe that government’s first duty ∑ Mr. GREGG. Mr. President, I rise THE 60TH ANNIVERSARY OF THE is to defend its citizens, to defend them today to honor Dr. George Rupp, a man BATTLESHIP MASSACHUSETTS against the harms that come out of who has served higher education and hate. The Local Law Enforcement En- ∑ Mr. KERRY. Mr. President, I rise the city of New York well over his 9 hancement Act of 2001 is now a symbol today to join the people of Massachu- years as President of Columbia Univer- that can become substance. I believe setts and Navy veterans across the sity. that by passing this legislation and country in celebrating the 60th anni- As a proud alumnus of Columbia Uni- changing current law, we can change versary of the Battleship Massachu- versity, I wanted to share with Mem- hearts and minds as well. setts’ commission. This historic ship, bers of Congress some of the accom- the heaviest craft ever launched from plishments of this fine leader, and to f Quincy’s Fore River Shipyard, served take this opportunity to salute Dr. with distinction in theaters ranging Rupp. Columbia is one of the nation’s DEATH OF NORMAN JOHNSON from North Africa to the Marshall Is- most prestigious universities, and lands, and I join its crew in celebrating under Dr. Rupp’s leadership it has only Mr. HATCH. Mr. President, one of the anniversary of this storied vessel. grown more so. In every area of the the finest attorneys in the country, The Battleship Massachusetts entered university’s existence, from academic Norman Johnson, one of the great at- combat on November 8, 1942 in Oper- to administrative, fundraising and torneys and leaders from my home ation Torch on the shores of North Af- quality of life, Dr. Rupp has made a state of Utah, died last Saturday. rica and saw its first action on the major impact. The legacy he has cre- The loss of Norm is a personal loss to shores off Casablanca, Morocco. In that ated sets a new standard in university me. He has been one of my best friends. first engagement, the 16’’ shells from administration. Norm was not only a fine lawyer, a fine the Massachusetts helped sink two de- When he joined the administration in businessman, a fine husband and fa- stroyers, two merchant ships, visit 1993, Dr. Rupp promised to put under- ther, a fine Christian, and a wonderful heavy damage to buildings along the graduate education at the center of the friend. coast, and render a dry dock inoper- institution. He committed his energies Norm was a partner in one of Utah’s able. One year later the ship came back and the university’s resources to doing most prestigious law firms. He was one to Boston for refitting before heading precisely that, and Columbia College is of the most informed authorities in the off to a new assignment in the Pacific, in a much stronger position as a con- field of securities law and nationally where she would remain for the dura- sequence of his efforts. High school stu- recognized both before and after ap- tion of the war. During its Pacific serv- dents are applying to Columbia in pointment as one of the five commis- ice, the Massachusetts engaged the record numbers and undergraduate ad- sioners on the United States Security enemy in the New Guinea-Solomons in missions have more than doubled since and Exchange Commission. As S.E.C. the southwest, raided Japanese bases 1993. Dr. Rupp introduced fellowships to Commissioner, Norm held one of the in the west, and helped invade the Mar- attract professors to teach its cele- most prestigious and high-level posi- shall Islands. brated core curriculum for undergradu- tions in the Federal Government. Norm As the war built to a bloody cre- served well and was highly respected. I ates, anchored by contemporary civili- scendo the Massachusetts proved itself zation and humanities literature. Co- know. I watched his service and was so repeatedly. Carrying its nickname of proud of him. lumbia’s graduate programs in law, ‘‘Big Mamie,’’ the Massachusetts took business, medicine, journalism, and the Norm loved his wife Carol and his center stage in the preliminary actions children, all of whom are beautiful and liberal arts have grown more competi- against Okinawa and Iwo Jima, shell- tive and are among the best in the exemplary in their own lives. I’m sure ing each island in preparation for the they are very grieved at his death. He world. Over the past nine years, four decisive land combat that began the Columbia faculty members have been was so proud of them. final chapters of the long struggle. To- Norm was one of the most soft-spo- Nobel prize winners. gether with the Third Fleet, the Massa- Columbia has raised its profile in ken people I ever knew. He was kind, chusetts approached Japan in the sum- New York City and significantly im- generous to a fault, and a friend to all. mer of 1945. Its engagements at proved relations with the surrounding We lived in the same neighborhood in Kamaishi and Hamamatsu helped crip- communities of Morningside Heights, Salt Lake City, when I was Bishop of ple the country’s infrastructure and ex- Harlem, and Washington Heights. Dr. the Salt Lake Mt. Olympus 10th Ward. pedite the war’s conclusion. Rupp has striven to make Columbia a We became instant friends and our After de-activation in 1946, the bat- good neighbor and involves community friendship has endured over thirty tleship remained in the Reserve Fleet leadership in major construction years. until being struck from the Navy projects. He also established a housing Norm courageously battled esopha- record in 1962. Despite being ordered to assistance program to encourage Co- geal cancer for a lengthy time. I re- be sold for scrap, her wartime crew lob- lumbia staff to purchase homes in member visiting him in the hospital bied to save the ship as a memorial. these neighborhoods, which are part of many times. He beat one of the worst Schoolchildren around Massachusetts the Upper Manhattan Empowerment of all cancers and then went on to his rallied for the ship named for their Zone. exceptional government service. I state, and ‘‘Big Mamie,’’ was brought Under Dr. Rupp’s leadership, the uni- never heard him complain and he bore to Fall River in 1965 as a result of these versity has added an architecturally his difficulties with grace and humor, tireless civic efforts. It now serves as distinguished student center, expanded but the suffering took its toll. the central attraction in Fall River’s student housing and built world-class I loved Norm as a brother and have thriving waterfront; standing as a re- research facilities. Columbia has also always and will always be a friend of minder of its service and inspiring taken over the management of the Bio- his family. young people to find their own ways to sphere 2 Center in Oracle, AZ to expand His funeral is today and I deeply re- serve. the science of its Earth Institute. In gret that, because of pressing Senate Through it all, the ship beared the addition, he has established the Inter- business and an important meeting name of our Commonwealth with a national Research Institute for Cli- with the President of the United States pride that we match today, and I am mate Prediction, a facility to direct at the White House, I have not been honored to join the Navy, the citizens advances in climate sciences to the able to attend. My beloved wife, Elaine, of Fall River, and people across our benefit of societies around the world. will be in attendance. She left for Utah State in celebrating the 60th anniver- Dr. Rupp, an ordained Presbyterian this morning. As usual, Elaine will rep- sary of the Massachusetts’ receiving its minister and a religious scholar, be- resent me well. commission.∑ came Dean of Harvard Divinity School S4142 CONGRESSIONAL RECORD — SENATE May 9, 2002 at age 37, and then president of Rice perhaps even more important a posi- Muise, Eyal Zimet, Vernon Podlewski, Jef- University and president of Columbia tive attitude that kept his constituents frey Gleason, Costas Theocharidis, Jose University. He is a man of many tal- in economic distress from giving up Delgado, Kyle Denitz, Marvin Yamada, John ents and interests. hope. Bender, Ryan Woodward, Tony Ching, Brian Nordberg, Delano Thomas, and Daniel Rasay. For all these and many more reasons, Government employees are often ac- Coaches: Mike Wilton, Tino Reyes, Aaron I stand now to applaud his leadership cused of being process oriented rather Wilton, and Marlo Torres.∑ than results oriented. Mr. Ames, with at Columbia University, his dedication f to this great institution, and to wish his single-minded focus on results, is him great luck in the future. Columbia an excellent example of the kind of IN RECOGNITION THE RETIRE- today embodies substantial forward Federal employee of whom we should MENT OF INSPECTOR FREDERICH momentum and is poised to achieve all be proud. A. GREENSLATE further advances in the years ahead.∑ As he is about to retire, I congratu- ∑ Mr. LEVIN. Mr. President, I ask that late Mr. Ames on his outstanding f the Senate join me today in acknowl- record of accomplishment and wish edging the retirement of Inspector TRIBUTE TO RICHARD M. him every success in his future endeav- Frederich A Greenslate of West Bloom- SCULLION ors.∑ field, MI, who retired on April 27th of ∑ Mr. FEINGOLD. Mr. President, f this year after serving in the Michigan today, I would like to honor the life of TRIBUTE TO THE UNIVERSITY OF State Police for 41 years. Mr. a dedicated public servant, Richard M. HAWAII MEN’S VOLLEYBALL TEAM Greenslate is one of the longest serving Scullion. Dick passed away at the end officers in departmental history and ∑ Mr. INOUYE. Mr. President, I am of April following a brief illness. people will be gathering on May 17th to proud to rise and pay tribute to the Dick started out as a farmer near celebrate his distinguished career. University of Hawaii men’s volleyball Highland, WI. He married his wife, I cannot overstate the debt we owe team for winning the 2002 National Col- Marian, in 1945, and worked to raise our men and women in uniform for put- legiate Athletic Association, NCAA, their family. In the 1950s, during a typ- ting their lives on the line as guardians Championship this past weekend in ical Wisconsin blizzard, friends of of peace. Every day they protect the Pennsylvania. The Warrior Volleyball Dick’s nominated him to serve on the people of our great Nation and keep squad made history by winning the Iowa County Board and in 1965, he be- our cities safe. Frederich Greenslate came the chair of the board, a seat he first National Championship for any men’s athletic program at the Univer- has been part of this great tradition of would hold until 2000. At that time, he service, dedication and honor. was the longest serving County Chair sity of Hawaii. I salute all of the athletes and coach- Mr. Greenslate joined the Michigan in Wisconsin history. Dick simulta- es of the NCAA Championship tour- State Police in 1961 after receiving an neously served as the Highland town- nament. I commend them for their sac- Associate’s Degree in Criminal Justice ship chairman and as a member of the rifice and determination; they should from Macomb Community College. Memorial Hospital of Iowa County all be proud of their achievements as Originally posted as a Trooper at the Board. student-athletes. Newaygo Post, he moved up the ranks In addition to his over 40 years of I also commend the people of Hawaii and concluded his career as an Assist- service to Iowa County, Dick dem- for their support of the University’s ant District Commander in the 2nd Dis- onstrated a strong commitment to his athletic programs. Indeed, they are the trict Headquarters. Over this period, he home state. He was a member of the greatest volleyball fans in the nation. received four Meritorious Citations for Wisconsin State Soil and Water Con- The success of the men’s volleyball service above the call of duty as well as servation Board, Committee Land team is indicative of the depth of the an Unit Citation. He also assisted with Preservation Board, Water Resources community’s support, and the caliber several events of national and inter- Committee, Wisconsin River Rail Tran- of students, faculty, and staff at the national significance including the sit Commission, Farmland Preserva- University. As our nation’s only public visit of Pope John Paul II to Detroit, tion Board, and was the chairman of institution of higher learning in the Super Bowl XVI, United States Cup the Southwest Regional Planning Com- Pacific, the University of Hawaii has Soccer, World Cup Soccer, The Detroit mission. many unique strengths and compara- Grand Prix, and the National Gov- His work made him an invaluable cit- tive advantages. It offers premiere ernors’ Conference. izen of the State of Wisconsin; he was science, math, business, art, social Despite the long hours and stressful recognized for his achievements in 1995, science, and, as it has now dem- atmosphere associated with being a po- when the Iowa County Courthouse ad- onstrated irrefutably, athletic pro- lice officer, Mr. Greenslate has been de- dition was named in his honor. Dick grams. The people of Hawaii should be voted husband to his wife Susan and fa- was also named the Soil Conserva- proud of their University. ther of six children: Adam, Bethany, tionist of the Year in 1976 and received I applaud Head Coach Mike Wilton Douglas, Jason, Jeffrey, and Melanie. the Wisconsin Master Agriculturist who, for the past decade, has worked In addition, his children have blessed Award in 1979. In 1983, the University of tirelessly to successfully build and him with three grandchildren, Jack, Wisconsin College of Agriculture and strengthen the men’s volleyball pro- Joe, and Connor. He is also a member Life Sciences awarded him an honorary gram, and I commend the members of of the South-East, Oakland County, degree. his coaching staff for their commit- Macomb County, Wayne County, and Dick Scullion was an important part ment to preparing the athletes for suc- St. Clair County Police Chief’s Asso- of Iowa County, and the State of Wis- cess both on and off the court. ciations. consin, and will hold a special place in Finally, I extend my sincerest con- Our Nation’s public servants play a our State’s history. He will be dearly gratulations to the Warrior Volleyball vital role in preserving the public good. missed.∑ players for capturing the national However, few public servants do more f title. I am pleased to note that the to ensure our Nation’s peace and sta- team is comprised of young men from bility than our police officers. I know RETIREMENT OF ALDRED AMES Hawaii, Arizona, California, Oregon, my Senate Colleagues will join me in ∑ Mr. CRAPO. Mr. President, I rise Guam, Canada, Cuba, Israel, Puerto thanking Mr. Greenslate for his distin- today to commend one of the key fig- Rico, and Serbia. Despite their cultural guished career as a Michigan State ures in Idaho’s economic development differences and language barriers, they Trooper and wish him well in the years efforts, Aldred Ames. For over two dec- remained unified in their mission and ahead.∑ ades Mr. Ames has made a positive im- goal. The team has proven that all f pact in virtually every one of Idaho’s things are possible through hard work. 201 incorporated communities, 44 coun- I submit the team’s roster of players HONORING THE GIRL SCOUTS OF ties, and 5 tribal nations. He has and coaches for the RECORD: RHODE ISLAND brought not only technical expertise Players: Dejan Miladinovic, Geronimo ∑ Mr. REED. Mr. President, I rise in and access to financial resources, but Chala, Robert Drew, Kimo Tuyay, Jake recognition of the 90th Anniversary of May 9, 2002 CONGRESSIONAL RECORD — SENATE S4143 the Girl Scouts of America. The Girl issued the attached proclamation re- ‘‘Richard S. Arnold United States Court- Scout tradition began on March 12, storing NTR tariff treatment to the house’’; to the Committee on Environment 1912, when founder Juliette Gordon products of Afghanistan. The Procla- and Public Works. Low assembled 18 girls in Savannah, mation shall take effect 30 days after it The following bill was read the first GA for the first-ever Girl Scout meet- is published in the Federal Register . and the second times by unanimous ing. Today, the organization offers GEORGE W. BUSH. consent, and referred as indicated: girls of all races, ages, ethnicities, so- THE WHITE HOUSE, May 3, 2002. H.R. 3801. An act to provide for improve- cioeconomic backgrounds, and abilities f ment of Federal education research, statis- the chance to thrive by building the tics, evaluation, information, and dissemina- REPORT RELATIVE TO TWO DE- real-life skills they will need as adults. tion, and for other purposes; to the com- FERRALS OF BUDGET AUTHOR- I am especially honored to acknowl- mittee on Health, Education, Labor, and ITY, TOTALING $2 BILLION—PM Pensions. edge the activities of the Girl Scouts of 84 Rhode Island, which currently serves f over 13,700 girls in my home State and Under the authority of the order of MEASURES PLACED ON THE several bordering towns of Massachu- the Senate of January 3, 2001, the Sec- CALENDAR setts and Connecticut. The Girl Scouts retary of the Senate, on May 3, 2002, during the recess of the Senate, re- The following bill was read the sec- of Rhode Island has created several en- ond time, and placed on the calendar: riching programs and activities over ceived the following message from the the years that truly help girls grow President of the United States, to- S. 2485. A bill entitled the ‘‘Andean Trade Promotion and Drug Eradication Act.’’ strong. One such programs is Girls on gether with an accompanying report; the Go, which serves low-income girls which was referred jointly, pursuant to The following joint resolution was at free lunch sites throughout the the order of January 30, 1975 as modi- read the first and second times by State during the summer months, al- fied by the order of April 11, 1986; to the unanimous consent, and placed on the lowing them to participate in Girl Committee on Appropriations; the calendar pursuant to 42 U.S.C. Scout activities. Other examples in- Budget; and Foreign Relations: 10135(d)(5)(A): clude the City Summer Camps program H. J. Res. 87. Joint resolution approving To the Congress of the United States: the site at Yucca Mountain, Nevada, for the in both Providence and Central Falls In accordance with the Congressional which provides 6 weeks of training and development of a repository for the disposal Budget and Impoundment Control Act of high-level radioactive waste and spent nu- recreational activities, and the Girls at of 1974, I herewith report two deferrals clear fuel, pursuant to the Nuclear Waste the Center program which has provided of budget authority, totaling $2 billion. Policy Act of 1982. numerous scouts and adults with op- The proposed deferrals affect the De- f portunities to explore science and tech- partment of State and International nology. Assistance Programs. MEASURES READ THE FIRST TIME I am truly proud of the achievements GEORGE BUSH. The following bill was read the first of the Rhode Island Girl Scouts and THE WHITE HOUSE, May 3, 2002. time: their mission to help young women f H.R. 4560. An act to eliminate the dead- achieve high ideals of character, con- lines for spectrum auctions of spectrum pre- duct, patriotism and service. I wish MESSAGES FROM THE HOUSE viously allocated to television broadcasting. ∑ them continued success in the future. At 12:59 p.m., a message from the f f House of Representatives, delivered by Ms. Niland, one of its reading clerks, EXECUTIVE AND OTHER REPORT TO RESTORE NON- announced that the House has passed COMMUNICATIONS DISCRIMINATORY TRADE TREAT- the following joint resolution, in which The following communications were MENT (NORMAL TRADE RELA- it requests the concurrence of the Sen- laid before the Senate, together with TIONS TREATMENT) TO THE ate: accompanying papers, reports, and doc- PRODUCTS OF AFGHANISTAN— H.J. Res. 87. A joint resolution approving uments, which were referred as indi- PM 83 the site at Yucca Mountain, Nevada, for the cated: Under the authority of the order of development of a repository for the disposal EC–6801. A communication from the Execu- the Senate of January 3, 2001, the Sec- of high-level radioactive waste and spent nu- tive Vice President of Communications and retary of the Senate, on May 3, 2002, clear fuel, pursuant to the Nuclear Waste Government Relations, Tennessee Valley Au- during the recess of the Senate, re- Policy Act of 1982. thority, transmitting, pursuant to law, the report of a vacancy in the position of Inspec- ceived the following message from the At 4:03 p.m., a message from the President of the United States, to- tor General, receive on May 1, 2002; referred House of Representatives, delivered by jointly, pursuant to the order of January 30, gether with an accompanying report; M. Niland, one of its reading clerks, an- 1975 as modified by the order of April 11, 1986; which was referred to the Committee nounced that the House has passed the to the Committees on Environment and Pub- on Finance: following bill, in which it requests the lic Works; and Governmental Affairs. To the Congress of the United States: concurrence of the Senate: EC–6802. A communication from the Gen- eral Counsel, Department of Housing and Public Law 99–190, 99 Stat. 1319, H.R. 3801. An act to provide for improve- Urban Development, transmitting, pursuant which took effect on December 19, 1985, ment of Federal education research, statis- to law, the report of a nomination confirmed authorized the President to deny nor- tics, evaluation, information, and dissemina- for the position of Inspector General, re- mal trade relations (NTR) tariff treat- tion, and for other purposes. ceived on May 1, 2002; referred jointly, pursu- ment to the products of Afghanistan. f ant to the order of January 30, 1975 as modi- fied by the order of April 11, 1986; to the On January 31, 1986, President Reagan MEASURES REFERRED issued a proclamation denying NTR Committees on Banking, Housing, and Urban treatment to Afghanistan. The following bills, previously re- Affairs; and Governmental Affairs. EC–6803. A communication from the Under I have determined that it is appro- ceived from the House of Representa- tives for concurrence, were read the Secretary of Defense, Comptroller, transmit- priate to restore NTR treatment to the ting, pursuant to law, the report of a viola- products of Afghanistan. Restoration first and second times by unanimous tion of the Antideficiency Act, case number of NTR treatment will support U.S. ef- consent, and referred as indicated: 01–03; to the Committee on Appropriations. forts to normalize relations with Af- H.R. 4486. An act to designate the facility EC–6804. A communication from the Direc- ghanistan and facilitate increased of the United States Postal Service located tor, Office of Congressional Affairs, Office of trade with the United States, which at 1590 East Joyce Boulevard in Fayetteville, Nuclear Material Safety and Safeguards, Nu- could contribute to economic growth Arkansas, as the ‘‘Clarence B. Craft Post Of- clear Regulatory Commission, transmitting, fice Building’’; to the Committee on Govern- pursuant to law, the report of a rule entitled and assist Afghanistan in rebuilding its mental Affairs. ‘‘10 CFR Part 63: Disposal of High-Level Ra- economy. Therefore, in accordance H.R. 4028. An act to designate the United dioactive Wastes in a Proposed Geological with section 118 of Public Law 99–190, I States courthouse located at 600 West Cap- Repository at Yucca Mountain, Nevada’’ hereby provide notice that I have itol Avenue in Little Rock, Arkansas, as the (RIN3150–AG04) received on April 30, 2002; to S4144 CONGRESSIONAL RECORD — SENATE May 9, 2002 the Committee on Environment and Public Indexes for Department Stores—December EC–6826. A communication from the Para- Works. 2001’’ (Rev. Rul. 2002–7) received on April 30, legal Specialist, Federal Aviation Adminis- EC–6805. A communication from the Chair- 2002; to the Committee on Finance. tration, Department of Transportation, man of the Federal Financial Institutions EC–6817. A communication from the Chief transmitting, pursuant to law, the report of Examination Council, transmitting, pursu- of the Regulations Unit, Internal Revenue a rule entitled ‘‘Airspace Actions Admt. to ant to law, the Council’s Annual Report for Service, Department of the Treasury, trans- Caruthersville, MO Class E Airspace Area’’ 2001; to the Committee on Banking, Housing, mitting, pursuant to law, the report of a rule ((2120–AA66)(2002–0064)) received on April 30, and Urban Affairs. entitled ‘‘Definition of Disqualified Person’’ 2002; to the Committee on Commerce, EC–6806. A communication from the Attor- ((RIN1545–AY19)(TD8982)) received on April Science, and Transportation. ney General, transmitting, pursuant to law, 30, 2002; to the Committee on Finance. EC–6827. A communication from the Para- a report on the Plan for the Transfer of EC–6818. A communication from the Sec- legal Specialist, Federal Aviation Adminis- Functions of the United States Parole Com- retary of Health and Human Services, trans- tration, Department of Transportation, mission; to the Committee on the Judiciary. mitting, a report concerning the level of cov- transmitting, pursuant to law, the report of EC–6807. A communication from the Assist- erage and expenditures for religious nonmed- a rule entitled ‘‘Airworthiness Directives: ant Attorney General, Office of Legislative ical health care institutions (RNHCIs) under Fairchild Aircraft, Inc. SA226 and SA227 Se- Affairs, Department of Justice, transmit- both Medicare and Medicaid for the previous ries Airplanes’’ ((RIN2120–AA64)(2002–0204)) ting, a draft of proposed legislation entitled fiscal year (FY); estimated levels of expendi- received on April 30, 2002; to the Committee ‘‘The Child Obscenity and Pornography Pre- ture for the current FY; and, trends in those on Commerce, Science, and Transportation. vention Act of 2002’’; to the Committee on expenditure levels including an explanation EC–6828. A communication from the Para- the Judiciary. of any significant changes in expenditure legal Specialist, Federal Aviation Adminis- EC–6808. A communication from the Assist- levels from previous years; to the Committee tration, Department of Transportation, ant Secretary of Legislative Affairs, Depart- on Finance. transmitting, pursuant to law, the report of ment of State, transmitting, pursuant to EC–6819. A communication from the Attor- a rule entitled ‘‘Airworthiness Directives: law, a report on the intent to obligate funds ney-Advisor, National Highway Traffic Safe- Bombardier Model DHC–8–400, 401, and 402 for purposes of Nonproliferation and Disar- ty Administration, Department of Transpor- Series Airplanes’’ ((RIN2120–AA64)(2002–0205)) mament Fund (NDF) activities; to the Com- tation, transmitting, pursuant to law, the re- received on April 30, 2002; to the Committee mittee on Foreign Relations. port of a rule entitled ‘‘Interior Trunk Re- on Commerce, Science, and Transportation. EC–6809. A communication from the Assist- lease; Petition for Reconsideration’’ EC–6829. A communication from the Para- ant Secretary of Legislative Affairs, Depart- (RIN2127–AI69) received on April 30, 2002; to legal Specialist, Federal Aviation Adminis- ment of State, transmitting, the report of a the Committee on Commerce, Science, and tration, Department of Transportation, delay of the Department’s annual report on Transportation. transmitting, pursuant to law, the report of terrorism; to the Committee on Foreign Re- EC–6820. A communication from the Para- a rule entitled ‘‘Airworthiness Directives: lations. legal Specialist, Federal Aviation Adminis- Boeing Model 777–200 and 300 Series Air- EC–6810. A communication from the Man- tration, Department of Transportation, planes’’ ((RIN2120–AA64)(2002–0206)) received aging Director, Federal Housing Finance transmitting, pursuant to law, the report of on April 30, 2002; to the Committee on Com- Board, transmitting, pursuant to law, the re- a rule entitled ‘‘Airspace Actions Revision of merce, Science, and Transportation. port of a rule entitled ‘‘Rules of Practice and VOR Federal Airway 105 and Jet Route 86, EC–6830. A communication from the Para- Procedure’’ (RIN3069–AB03) received on April AZ and the establishment of Jet Routes 614 legal Specialist, Federal Aviation Adminis- 30, 2002; to the Committee on Banking, Hous- and 616’’ ((RIN2120–AA66)(2002–0066)) received tration, Department of Transportation, ing, and Urban Affairs. on April 30, 2002; to the Committee on Com- transmitting, pursuant to law, the report of EC–6811. A communication from the Man- merce, Science, and Transportation. a rule entitled ‘‘Airworthiness Directives: aging Director, Federal Housing Finance EC–6821. A communication from the Para- Boeing Model 767–200, 300, and 300F Series Board, transmitting, pursuant to law, the re- legal Specialist, Federal Aviation Adminis- Airplanes’’ ((RIN2120–AA64)(2002–0207)) re- port of a rule entitled ‘‘Technical Amend- tration, Department of Transportation, ceived on April 30, 2002; to the Committee on ments to Federal Housing Finance Board transmitting, pursuant to law, the report of Commerce, Science, and Transportation. Regulations’’ (RIN3069–AB05) received on a rule entitled ‘‘Airspace Action Establish- EC–6831. A communication from the Para- May 1, 2002; to the Committee on Banking, ment of Class E Airspace; Elkton, MD’’ legal Specialist, Federal Aviation Adminis- Housing, and Urban Affairs. ((RIN2120–AA66)(2002–0067)) received on April tration, Department of Transportation, EC–6812. A communication from the Sec- 30, 2002; to the Committee on Commerce, transmitting, pursuant to law, the report of retary of Energy, transmitting, pursuant to Science, and Transportation. a rule entitled ‘‘Airworthiness Directives: Section 3134 of the Fiscal Year 2002 Defense EC–6822. A communication from the Para- Boeing Model 737–200, 200C, 300, 400 and 500 Authorization Act, a report detailing the legal Specialist, Federal Aviation Adminis- Series Airplanes’’ ((RIN2120–AA64)(2002–0200)) purposes for which the Department of En- tration, Department of Transportation, received on April 30, 2002; to the Committee ergy plans to execute the National Security transmitting, pursuant to law, the report of on Commerce, Science, and Transportation. Programs Administrative Support funding in a rule entitled ‘‘Airspace Actions Modifica- EC–6832. A communication from the Para- Fiscal Year 2002, and a report on the feasi- tion of Santa Ana Class C Airspace Area, legal Specialist, Federal Aviation Adminis- bility of using an energy savings perform- CA’’ ((RIN2120–AA66)(2002–0065)) received on tration, Department of Transportation, ance contract for a new office building at the April 30, 2002; to the Committee on Com- transmitting, pursuant to law, the report of Albuquerque Operations Office; to the Com- merce, Science, and Transportation. a rule entitled ‘‘Airworthiness Directives: mittee on Armed Services. EC–6823. A communication from the Para- Boeing Model 727, 727C, 727–100, 727–100C, 727– EC–6813. A communication from the Direc- legal Specialist, Federal Aviation Adminis- 200 and 727–200F Series Airplanes’’ ((RIN2120– tor, Office of Management and Budget, Exec- tration, Department of Transportation, AA64) (2002–0201)) received on April 30, 2002; utive Office of the President, transmitting, transmitting, pursuant to law, the report of to the Committee on Commerce, Science, pursuant to P.L. 107–117, a report on ter- a rule entitled ‘‘Airworthiness Directives and Transportation. rorism response funding that is of an ongo- Fairchild Aircraft, Inc. Models SA226 and EC–6833. A communication from the Para- ing and recurring nature; to the Committee SA227 Series Airplanes’’ ((RIN2120– legal Specialist, Federal Aviation Adminis- on Armed Services. AA64)(2002–0208)) received on April 30, 2002; to tration, Department of Transportation, EC–6814. A communication from the Chief the Committee on Commerce, Science, and transmitting, pursuant to law, the report of of the Regulations Unit, Internal Revenue Transportation. a rule entitled ‘‘Airworthiness Directives: Service, Department of the Treasury, trans- EC–6824. A communication from the Para- Boeing Model 737–200, 200C, 300, 400, and 500 mitting, pursuant to law, the report of a rule legal Specialist, Federal Aviation Adminis- Series Airplanes’’ ((RIN2120–AA64) (2002– entitled ‘‘Corrections to Rev. Proc. 2002–9 tration, Department of Transportation, 0202)) received on April 30, 2002; to the Com- (Automatic consent to change a method of transmitting, pursuant to law, the report of mittee on Commerce, Science, and Transpor- accounting)’’ (Ann. 2002–17) received on April a rule entitled ‘‘Airspace Actions Establish- tation. 30, 2002; to the Committee on Finance. ment of Class E Airspace; EWT 4 Heliport, EC–6834. A communication from the Para- EC–6815. A communication from the Chief Honey Grove, PA’’ ((RIN2120–AA66)(2002– legal Specialist, Federal Aviation Adminis- of the Regulations Unit, Internal Revenue 0061)) received on April 30, 2002; to the Com- tration, Department of Transportation, Service, Department of the Treasury, trans- mittee on Commerce, Science, and Transpor- transmitting, pursuant to law, the report of mitting, pursuant to law, the report of a rule tation. a rule entitled ‘‘Airworthiness Directives: entitled ‘‘Dealers in Securities Futures Con- EC–6825. A communication from the Para- Boeing Model 737–200 and 200C Series Air- tracts’’ (Rev. Proc. 2002–11, 2002–7) received legal Specialist, Federal Aviation Adminis- planes’’ ((RIN2120–AA64) (2002–0203)) received on April 30, 2002; to the Committee on Fi- tration, Department of Transportation, on April 30, 2002; to the Committee on Com- nance. transmitting, pursuant to law, the report of merce, Science, and Transportation. EC–6816. A communication from the Chief a rule entitled ‘‘Airspace Revision to Class E EC–6835. A communication from the Para- of the Regulations Unit, Internal Revenue Surface Area at Marysville Yuba County Air- legal Specialist, Federal Aviation Adminis- Service, Department of the Treasury, trans- port, CA’’ ((RIN2120–AA66)(2002–0062)) re- tration, Department of Transportation, mitting, pursuant to law, the report of a rule ceived on April 30, 2002; to the Committee on transmitting, pursuant to law, the report of entitled ‘‘Bureau of Labor Statistics Price Commerce, Science, and Transportation. a rule entitled ‘‘Airworthiness Directives: May 9, 2002 CONGRESSIONAL RECORD — SENATE S4145

Pratt and Whitney JT9D–7R4 Series Tur- EC–6847. A communication from the Direc- SHELBY, Mr. REID, Mr. NICKLES, Mr. bofan Engines’’ ((RIN2120–AA64) (2002–0196)) tor, National Science Foundation, transmit- TORRICELLI, Mr. BURNS, Mr. SCHU- received on April 30, 2002; to the Committee ting, pursuant to law, the Foundation’s Per- MER, Mr. GREGG, Mrs. CLINTON, Mr. on Commerce, Science, and Transportation. formance Report for Fiscal Year 2001; to the DEWINE, Mr. MCCAIN, Mr. MCCON- EC–6836. A communication from the Para- Committee on Governmental Affairs. NELL, Mr. CHAFEE, Mr. ALLARD, Mr. legal Specialist, Federal Aviation Adminis- f BROWNBACK, Mr. CRAPO, Mr. tration, Department of Transportation, SANTORUM, Mr. COCHRAN, Mr. BOND, transmitting, pursuant to law, the report of REPORTS OF COMMITTEES Mrs. HUTCHISON, Mr. THOMPSON, Ms. a rule entitled ‘‘Airworthiness Directives: COLLINS, Mr. CRAIG, Mr. KYL, Mr. EN- The following reports of committees Boeing Model 777–200 Series Airplanes SIGN, Mr. INHOFE, Mr. ALLEN, Mr. Equipped with General Electric GE90 Series were submitted: HAGEL, Mr. VOINOVICH, Mr. STEVENS, Engines’’ ((RIN2120–AA64) (2002–0197)) re- By Mr. LEAHY, from the Committee on Mr. WARNER, Mr. SPECTER, Mr. SMITH ceived on April 30, 2002; to the Committee on the Judiciary: of Oregon, Mr. BUNNING, Mr. SMITH of Commerce, Science, and Transportation. Report to accompany S. 625, a bill to pro- New Hampshire, and Mr. INOUYE): EC–6837. A communication from the Para- vide Federal assistance to States and local S. 2495. A bill to designate the United legal Specialist, Federal Aviation Adminis- jurisdictions to prosecute hate crimes, and States courthouse located at 100 Federal tration, Department of Transportation, for other purposes. (Rept. No. 107–147). Plaza in Central Islip, New York, as the transmitting, pursuant to law, the report of ‘‘Alfonse M. D’Amato United States Court- f a rule entitled ‘‘Airworthiness Directives: house’’; to the Committee on Environment McDonnell Douglas Model DC–9–10, 20, 30, 40 INTRODUCTION OF BILLS AND and Public Works. and 50 Series Airplanes and C–9 Airplanes’’ JOINT RESOLUTIONS By Mrs. CLINTON (for herself, Mr. ((RIN2120–AA64) (2002–0198)) received on April SCHUMER, and Mr. LIEBERMAN): 30, 2002; to the Committee on Commerce, The following bills and joint resolu- S. 2496. A bill to provide for the establish- Science, and Transportation. tions were introduced, read the first ment of investigative teams to assess build- EC–6838. A communication from the Para- and second times by unanimous con- ing performance and emergency response and legal Specialist, Federal Aviation Adminis- sent, and referred as indicated: evacuation procedures in the wake of any tration, Department of Transportation, building failure that has resulted in substan- By Mr. BIDEN (for himself, Mr. HELMS, transmitting, pursuant to law, the report of tial loss of life or that posed significant po- Mr. KENNEDY, and Mr. FRIST): a rule entitled ‘‘Airworthiness Directives: S. 2487. A bill to provide for global patho- tential of substantial loss of life, and for Airbus Model A300 B2, A300 B4, A300 B4–600 gen surveillance and response; to the Com- other purposes; to the Committee on Com- and A300 B4–600R Series Airplanes, and mittee on Foreign Relations. merce, Science, and Transportation. Model A300 F4–605R Airplanes’’ ((RIN2120– By Mr. BROWNBACK (for himself, Mr. By Mr. HOLLINGS: AA64) (2002–0199)) received on April 30, 2002; S. 2497. A bill to prohibit the opening of MILLER, Mr. FITZGERALD, Mr. SMITH to the Committee on Commerce, Science, cockpit doors in flight; to the Committee on of New Hampshire, Mr. INHOFE, Mr. and Transportation. Commerce, Science, and Transportation. HELMS, Mr. SESSIONS, and Mr. ENZI): EC–6839. A communication from the Dep- By Mr. BAUCUS (for himself and Mr. S. 2488. A bill to establish a commission to uty Assistant Administrator for Regulatory GRASSLEY): conduct a comprehensive review of Federal Programs, National Marine Fisheries Serv- S. 2498. A bill to amend the Internal Rev- agencies and programs and to recommend ice, Department of Commerce, transmitting, enue Code of 1986 to require adequate disclo- the elimination or realignment of duplica- pursuant to law, the report of a rule entitled sure of transactions which have a potential tive, wasteful, or outdated functions, and for ‘‘Notice of Solicitation for Applications; Re- for tax avoidance or evasion, and for other other purposes; to the Committee on Govern- quest for Research Proposals’’ (RIN0648– purposes; to the Committee on Finance. mental Affairs. ZB14) received on May 1, 2002; to the Com- By Mr. KENNEDY (for himself and By Mrs. CLINTON (for herself, Ms. mittee on Commerce, Science, and Transpor- Mrs. CLINTON): SNOWE, Ms. MIKULSKI, and Mr. tation. S. 2499. A Bill to amend the Federal Food, EC–6840. A communication from the Direc- BREAUX): Drug, and Cosmetic Act to establish labeling tor, Office of Federal Housing Enterprise S. 2489. A bill to amend the Public Health requirements regarding allergenic sub- Oversight, transmitting, pursuant to law, Service Act to establish a program to assist stances in food, and for other purposes; to the Office’s Fiscal Year 2001 Performance Re- family caregivers in accessing affordable and the Committee on Health, Education, Labor, port; to the Committee on Governmental Af- high-quality respite care, and for other pur- and Pensions. fairs. poses; to the Committee on Health, Edu- By Mr. SCHUMER (for himself and cation, Labor, and Pensions. EC–6841. A communication from the Chair- Mrs. CLINTON): man, Federal Maritime Commission, trans- By Mr. TORRICELLI (for himself and S. 2500. A bill to authorize the use of cer- mitting, pursuant to law, the Commission’s Mr. SMITH of Oregon): tain funds to compensate New York City Annual Program Performance Report for S. 2490. A bill to amend title XVIII of the public schools for operating and education- Fiscal Year 2001; to the Committee on Gov- Social Security Act to ensure the quality of, related expenses (including expenses relating ernmental Affairs. and access to, skilled nursing facility serv- to the provision of mental health and trau- EC–6842. A communication from the Sec- ices under the medicare program; to the ma counseling and other appropriate support retary of Labor and Chairman of the Board, Committee on Finance. services) resulting from the terrorist attack with the Executive Director of the Pension By Mr. INHOFE: on that city on September 11, 2001; to the Benefit Guaranty Corporation, transmitting S. 2491. A bill to authorize the President to Committee on Environment and Public jointly, pursuant to law, the Corporation’s award a gold medal on behalf of Congress to Works. Financial Statements and Performance Re- the Choctaw and Comanche code talkers in By Mr. ALLARD (for himself, Mr. SES- port for Fiscal Year 2001; to the Committee recognition of the contributions provided by SIONS, and Mrs. HUTCHISON): on Governmental Affairs. those individuals to the United States; to S. 2501. A bill to establish requirements EC–6843. A communication from the Acting the Committee on Banking, Housing, and arising from the delay or restriction on the Chairman of the National Endowment for Urban Affairs. shipment of special nuclear materials to the The Arts, transmitting, the National Endow- By Mr. CLELAND: Savannah River Site, Aiken, South Carolina; ment for the Arts Performance Reports for S. 2492. A bill to amend title 5, United to the Committee on Armed Services. Fiscal Years 1999, 2000, 2001, and 2003; to the States Code, to require that agencies, in pro- By Mr. GRASSLEY: Committee on Governmental Affairs. mulgating rules, take into consideration the S. 2502. A bill to improve the provision of EC–6844. A communication from the Assist- impact of such rules on the privacy of indi- health care in all areas of the United States; ant Administrator, Bureau for Legislative viduals, and for other purposes; to the Com- to the Committee on Finance. mittee on Governmental Affairs. and Public Affairs, Agency for International f Development, transmitting, the Agency’s By Mr. DASCHLE (for himself, Mr. Accountability Report for Fiscal Year 2001; KENNEDY, and Mr. DODD): SUBMISSION OF CONCURRENT AND to the Committee on Governmental Affairs. S. 2493. A bill to amend the Immigration SENATE RESOLUTIONS and Nationality Act to provide a limited ex- EC–6845. A communication from the Sec- The following concurrent resolutions retary of Agriculture, transmitting, pursu- tension of the program under section 245(i) of ant to law, the Office of the Inspector Gen- that Act; to the Committee on the Judiciary. and Senate resolutions were read, and eral Financial and IT Operations Audit Re- By Mr. McCAIN: referred (or acted upon), as indicated: port for Fiscal Year 2001; to the Committee S. 2494. A bill to revise the boundary of the By Mr. CHAFEE (for himself and Mr. on Governmental Affairs. Petrified Forest National Park in the State FEINGOLD): EC–6846. A communication from the Direc- of Arizona, and for other purposes; to the S. Con. Res. 109. A concurrent resolution tor of Selective Service, transmitting, pursu- Committee on Energy and Natural Re- commemorating the independence of East ant to law, the Service’s Performance Report sources. Timor and expressing the sense of Congress for Fiscal Year 2001; to the Committee on By Mr. DOMENICI (for himself, Mr. that the President should establish diplo- Governmental Affairs. BIDEN, Mr. LOTT, Mr. DASCHLE, Mr. matic relations with East Timor, and for S4146 CONGRESSIONAL RECORD — SENATE May 9, 2002 other purposes; to the Committee on Foreign S. 999 dian Financing Act of 1974 to improve Relations. At the request of Mr. BINGAMAN, the the effectiveness of the Indian loan f name of the Senator from Idaho (Mr. guarantee and insurance program. ADDITIONAL COSPONSORS CRAPO) was added as a cosponsor of S. S. 2070 999, a bill to amend title 10, United At the request of Mr. BINGAMAN, the S. 77 States Code, to provide for a Korea De- names of the Senator from South Da- At the request of Mr. DASCHLE, the fense Service Medal to be issued to name of the Senator from North Caro- kota (Mr. DASCHLE) and the Senator members of the Armed Forces who par- from New York (Mrs. CLINTON) were lina (Mr. EDWARDS) was added as a co- ticipated in operations in Korea after sponsor of S. 77, a bill to amend the added as cosponsors of S. 2070, a bill to the end of the Korean War. Fair Labor Standards Act of 1938 to amend part A of title IV to exclude provide more effective remedies to vic- S. 1152 child care from the determination of tims of discrimination in the payment At the request of Mr. DURBIN, the the 5-year limit on assistance under of wages on the basis of sex, and for name of the Senator from Georgia (Mr. the temporary assistance to needy fam- other purposes. CLELAND) was added as a cosponsor of ilies program, and for other purposes. S. 264 S. 1152, a bill to ensure that the busi- S. 2079 At the request of Ms. SNOWE, the ness of the Federal Government is con- At the request of Mr. ROCKEFELLER, name of the Senator from Washington ducted in the public interest and in a the name of the Senator from South (Ms. CANTWELL) was added as a cospon- manner that provides for public ac- Dakota (Mr. JOHNSON) was added as a sor of S. 264, a bill to amend title XVIII countability, efficient delivery of serv- cosponsor of S. 2079, a bill to amend of the Social Security Act to expand ices, reasonable cost savings, and pre- title 38, United States Code, to facili- coverage of bone mass measurements vention of unwarranted Government tate and enhance judicial review of cer- under part B of the medicare program expenses, and for other purposes. tain matters regarding veteran’s bene- to all individuals at clinical risk for S. 1370 fits, and for other purposes. osteoporosis. At the request of Mr. MCCONNELL, S. 2117 S. 326 the name of the Senator from Ken- At the request of Mr. DODD, the name At the request of Ms. COLLINS, the tucky (Mr. BUNNING) was added as a co- of the Senator from Iowa (Mr. HARKIN) name of the Senator from Washington sponsor of S. 1370, a bill to reform the was added as a cosponsor of S. 2117, a (Ms. CANTWELL) was added as a cospon- health care liability system. bill to amend the Child Care and Devel- sor of S. 326, a bill to amend title XVIII S. 1394 opment Block Grant Act of 1990 to re- of the Social Security Act to eliminate At the request of Mr. ENSIGN, the authorize the Act, and for other pur- the 15 percent reduction in payment name of the Senator from South Caro- poses. rates under the prospective payment lina (Mr. HOLLINGS) was added as a co- S. 2200 system for home health services and to sponsor of S. 1394, a bill to amend title At the request of Mr. BAUCUS, the permanently increase payments for XVIII of the Social Security Act to re- name of the Senator from Virginia (Mr. such services that are furnished in peal the medicare outpatient rehabili- ALLEN) was added as a cosponsor of S. rural areas. tation therapy caps. 2200, a bill to amend the Ineternal Rev- S. 454 S. 1711 enue Code of 1986 to clarify that the At the request of Mr. BINGAMAN, the At the request of Mr. CAMPBELL, the parsonage allowance exclusion is lim- name of the Senator from South Da- name of the Senator from Colorado ited to the fair rental value of the kota (Mr. JOHNSON) was added as a co- (Mr. ALLARD) was added as a cosponsor property. sponsor of S. 454, a bill to provide per- of S. 1711, a bill to designate the James S. 2210 manent funding for the Bureau of Land Peak Wilderness and the James Peak At the request of Mr. BIDEN, the Management Payment in Lieu of Taxes Protection Area in the State of Colo- name of the Senator from Connecticut program and for other purposes. rado, and for other purposes. (Mr. LIEBERMAN) was added as a co- S. 603 S. 1792 sponsor of S. 2210, a bill to amend the At the request of Mr. LIEBERMAN, the At the request of Mr. BAYH, the name International Financial Institutions name of the Senator from Vermont of the Senator from South Dakota (Mr. Act to provide for modification of the (Mr. LEAHY) was added as a cosponsor JOHNSON) was added as a cosponsor of Enhanced Heavily Indebted Poor Coun- of S. 603, a bill to provide for full vot- S. 1792, a bill to further facilitate serv- tries (HIPC) Initiative. ing representation in the Congress for ice for the United States, and for other the citizens of the District of Columbia S. 2221 purposes. to amend the Internal Revenue Code of At the request of Mr. ROCKEFELLER, 1986 to provide that individuals who are S. 1864 the name of the Senator from Cali- residents of the District of Columbia At the request of Mr. BIDEN, his name fornia (Mrs. FEINSTEIN) was added as a shall be exempt from Federal income was added as a cosponsor of S. 1864, a cosponsor of S. 2221, a bill to tempo- taxation until such full voting rep- bill to amend the Public Health Serv- rarily increase the Federal medical as- resentation takes effect , and for other ice Act to establish a Nurse Corps and sistance percentage for the medicaid purposes. recruitment and retention strategies to program. S. 830 address the nursing shortage, and for S. 2246 At the request of Mr. CHAFEE, the other purposes. At the request of Mr. DODD, the name name of the Senator from Iowa (Mr. S. 1992 of the Senator from Louisiana (Ms. GRASSLEY) was added as a cosponsor of At the request of Mr. KENNEDY, the LANDRIEU) was added as a cosponsor of S. 830, a bill to amend the Public name of the Senator from West Vir- S. 2246, a bill to improve access to Health Service Act to authorize the Di- ginia (Mr. ROCKEFELLER) was added as printed instructional materials used by rector of the National Institute of En- a cosponsor of S. 1992, a bill to amend blind or other persons with print dis- vironmental Health Sciences to make the Employee Retirement Income Se- abilities in elementary and secondary grants for the development and oper- curity Act of 1974 to improve diver- schools, and for other purposes. ation of research centers regarding en- sification of plan assets for partici- S. 2328 vironmental factors that may be re- pants in individual account plans, to At the request of Mr. HARKIN, the lated to the etiology of breast cancer. improve disclosure, account access, and names of the Senator from North Caro- S. 969 accountability under individual ac- lina (Mr. EDWARDS) and the Senator At the request of Mr. DODD, the name count plans, and for other purposes. from Washington (Mrs. MURRAY) were of the Senator from Massachusetts S. 2017 added as cosponsors of S. 2328, a bill to (Mr. KENNEDY) was added as a cospon- At the request of Mr. CAMPBELL, the amend the Public Health Service Act sor of S. 969, a bill to establish a Tick- name of the Senator from New Mexico and the Federal Food, Drug, and Cos- Borne Disorders Advisory Committee, (Mr. DOMENICI) was added as a cospon- metic Act to ensure a safe pregnancy and for other purposes. sor of S. 2017, a bill to amend the In- for all women in the United States, to May 9, 2002 CONGRESSIONAL RECORD — SENATE S4147 reduce the rate of maternal morbidity we are doing so once again. I am also gen released on another continent can and mortality, to eliminate racial and especially pleased that Senators KEN- quickly spread to the United States in ethnic disparities in maternal health NEDY and FRIST, the chairman and a matter of days, if not hours. This is outcomes, to reduce pre-term, labor, to ranking member of the Public Health the dark side of globalization. Inter- examine the impact of pregnancy on Subcommittee of the Senate Health, national trade, travel, and migration the short and long term health of Education, Labor, and Pensions Com- patterns offer unlimited opportunities women, to expand knowledge about the mittee, have also agreed to be original for pathogens to spread across national safety and dosing of drugs to treat cosponsors of this bill. borders and to move from one con- pregnant women with chronic condi- This bill authorizes $150 million over tinent to another. Moreover, an over- tions and women who become sick dur- the next 2 years to provide assistance seas epidemic could give us our first ing pregnancy, to expand public health to developing nations to improve glob- warning of a new disease strain that prevention, education and outreach, al disease surveillance to help prevent was developed by a country or by ter- and to develop improved and more ac- and contain both biological weapons rorists for use as a biological weapon, curate data collection related to ma- attacks and naturally occurring infec- or that could be used by others for that ternal morbidity and mortality. tious disease outbreaks around the purpose. We should make no mistake: in to- S. 2448 world. As the ranking member and day’s world, all infectious disease At the request of Mr. HOLLINGS, the chairman of the Foreign Relations Committee, respectively, Senator epidemics, wherever they occur and names of the Senator from Georgia whether they are deliberately engi- (Mr. CLELAND) and the Senator from HELMS and I recognize all too well that biological weapons are a global threat neered or are naturally occurring, are a Montana (Mr. BURNS) were added as co- potential threat to all nations, includ- sponsors of S. 2448, a bill to improve with no respect for borders. A terrorist group could launch a biological weap- ing the United States. nationwide access to broadband serv- How does disease surveillance fit into ons attack in Mexico in the expecta- ices. all of this? A biological weapons attack tion that the epidemic would quickly S. 2458 succeeds partly through the element of spread to the United States. A rogue At the request of Mrs. HUTCHISON, the surprise. As Dr. Alan P. Zelicoff of the name of the Senator from Vermont state might experiment with new dis- Sandia National Laboratory testified ease strains in another country, in- (Mr. LEAHY) was added as a cosponsor before the Foreign Relations Com- of S. 2458, a bill to enhance United tending later to release them here. A mittee in March, early warning of a bi- States diplomacy, and for other pur- biological weapons threat need not ological weapons attact can prevent poses. begin in the United States to reach our illness and death in all but a small shores. S. 2461 fraction of those infected. A cluster of For that reason, our response to the flu-like symptoms in a city or region At the request of Mr. FEINGOLD, the biological weapons threat cannot be name of the Senator from Wisconsin may be dismissed by individual physi- limited to the United States alone. cians as just the flu when in fact it (Mr. KOHL) was added as a cosponsor of Global disease surveillance, a system- S. 2461, a bill to terminate the Crusader may be anthrax, plague, or another bi- atic approach to tracking disease out- ological weapon. Armed with the artillery system program of the Army, breaks as they occur and evolve around and for other purposes. knowledge, however, that a biological the world, is essential to any real weapons attack has in fact occurred, S. 2484 international response. doctors and nurses can examine their At the request of Mr. BAUCUS, the This country is making enormous ad- patients in a different light and, in name of the Senator from New Mexico vances on the domestic front in bioter- many cases, effectively treat infected (Mr. BINGAMAN) was added as a cospon- rorism defense. $3 billion has been ap- individuals. sor of S. 2484, a bill to amend part A of propriated for this purpose in FY 2002, Disease surveillance, a comprehen- title IV of the Social Security Act to including $1.1 billion to improve State sive reporting system to quickly iden- reauthorize and improve the operation and local public health infrastructure. tify and communicate abnormal pat- of temporary assistance to needy fami- Delaware’s share will include $6.7 mil- terns of symptoms and illnesses, can lies programs operated by Indian lion from the Centers for Disease Con- quickly alert doctors across a region tribes, and for other purposes. trol and Prevention to improve the that a suspicious disease outbreak has S. RES. 253 public health infrastructure and occurred. Epidemiological specialists At the request of Mr. SMITH of Or- $548,000 to improve hospital readiness can then investigate and combat the egon, the name of the Senator from in my State. outbreak. And if it’s a new disease or Wisconsin (Mr. KOHL) was added as a The House and Senate are currently strain, we can begin to develop treat- cosponsor of S. Res. 253, a resolution in conference to reconcile competing ments that much earlier. reiterating the sense of the Senate re- versions of a comprehensive bioter- A good surveillance system requires garding Anti-Semitism and religious rorism bill drafted last fall following trained epidemiological personnel, ade- tolerance in Europe. the anthrax attacks via the U.S. postal quate laboratory tools for quick diag- f system. Those attacks, which killed nosis, and communications equipment five individuals and infected more than to circulate information. Even in the STATEMENTS ON INTRODUCED twenty people, highlighted our domes- United States today, many States and BILLS AND JOINT RESOLUTIONS tic vulnerabilities to a biological weap- localities rely on old-fashioned pencil By Mr. BIDEN (for himself, Mr. ons attack. We need to further and paper methods of tracking disease HELMS, Mr. KENNEDY, and Mr. strengthen our Nation’s public health patterns. Thankfully, we are address- FRIST): system, improve Federal public health ing those domestic deficiencies S. 2487. A bill to provide for global laboratories, and fund the necessary re- through the bioterrorism bill in con- pathogen surveillance and response; to search and procurement for vaccines ference. the Committee on Foreign Relations. and treatments to respond better to fu- For example, in Delaware, we are de- Mr. BIDEN. Mr. President, Senator ture bioterrorist attacks. As an origi- veloping the first, comprehensive, HELMS and I are proud to introduce nal co-sponsor of the Senate bill, I state-wide electronic reporting system today the Global Pathogen Surveil- know the final package taking shape in for infectious diseases. This system lance Act of 2002. Senator HELMS is re- conference will achieve those goals and will be used as a prototype for other covering from his heart surgery and is I look forward to its enactment into states, and will enable much earlier de- unable to be here today, but let me law. tection of infectious disease outbreaks, note our joint efforts in recognizing Nevertheless, any effective response both natural and bioterrorist. I and my the importance of disease surveillance to the challenge of biological weapons congressional colleagues in the delega- and preparing this bill for introduc- must also have an international com- tion have been working for over two tion. In recent years, we have joined ponent. Limiting our response to U.S. years to get this project up and run- forces on a number of sensible foreign territory would be shortsighted and ning, and we were successful in obtain- policy initiatives and I am proud that doomed to failure. A dangerous patho- ing $2.6 million in funding for this S4148 CONGRESSIONAL RECORD — SENATE May 9, 2002 project over the past 2 years. I and my economically disastrous embargoes on paredness in the Department of Health colleagues have requested $1.4 million trade and travel. An outbreak of pneu- and Human Services. In that position, for additional funding in FY 2003, and monic plague in India this February he was vested with the responsibility we are extremely optimistic that this was detected more quickly and con- for helping organize the U.S. govern- funding will be forthcoming. tained with only a few deaths, and no ment’s response to future bioterrorist It is vitally important that we ex- costly panic. attacks. Dr. Henderson, who at the tend these initiatives into the inter- Developing nations are the weak time of the hearing was the head of the national arena. However, as many de- links in any comprehensive global dis- Johns Hopkins University Center for veloping countries are way behind us in ease surveillance network. Unless we Civilian Biodefense Strategies, was terms of public health resources, lab- take action to shore up their capabili- very clear on the value of global dis- oratories, personnel, and communica- ties to detect and contain disease out- ease surveillance: tions, these countries will need help breaks, we leave the entire world vul- In cooperation with the WHO and other just to get to the starting point we nerable to a deliberate biological weap- countries, we need to strengthen greatly our have already reached in this country. ons attack or a virulent natural epi- intelligence gathering capability. A focus on An effective disease surveillance sys- demic. international surveillance and on scientist- tem is beneficial even in the absence of It is for these reasons that Senator to-scientist communication will be nec- biological weapons attacks. Bubonic HELMS and I have worked together in essary if we are to have an early warning plague is bubonic plague, whether it is recent months to craft the Global about the possible development and produc- Pathogen Surveillance Act of 2002. This tion of biological weapons by rogue nations deliberately engineered or naturally or groups. occurring. Just as disease surveillance bill will authorize $150 million in FY can help contain a biological weapons 2003 and FY 2004 to strengthen the dis- Dr. Henderson is exactly right. We attack, it can also help contain a natu- ease surveillance capabilities of devel- cannot leave the rest of the world to rally occurring outbreak of infectious oping nations. First, the bill seeks to fend for itself in combating biological disease. According to the World Health ensure in developing nations a greater weapons and infectious diseases if we Organization, 30 new infectious dis- number of personnel trained in basic are to ensure America’s security. eases have emerged over the past thir- epidemiological techniques. It offers I ask unanimous consent that the ty years; between 1996 and 2001 alone, enhanced in-country training for med- text of the Global Pathogen Surveil- more than 800 infectious disease out- ical and laboratory personnel and the lance Act of 2002 be printed in the the breaks occurred around the world, on opportunity for select personnel to RECORD. every continent. With better surveil- come to the United States to receive There being no objection, the bill was lance, we can do a better job of miti- training in our Centers for Disease ordered to be printed in the RECORD, as gating the consequences of these dis- Control laboratories and Master of follows: ease outbreaks. Public Health programs in American S. 2487 In 2000, the World Health Organiza- universities. Second, the bill provides Be it enacted by the Senate and House of Rep- tion established the first truly global assistance to developing nations to ac- resentatives of the United States of America in disease surveillance system, the Global quire basic laboratory equipment, in- Congress assembled, Alert and Response Network, to mon- cluding items as mundane as micro- SECTION 1. SHORT TITLE. itor and track infectious disease out- scopes, to facilitate the quick diag- This Act may be cited as the ‘‘Global Pathogen Surveillance Act of 2002’’. breaks in every region of the world. nosis of pathogens. Third, the bill en- The WHO has done an impressive job so ables developing nations to obtain SEC. 2. FINDINGS; PURPOSE. (a) FINDINGS.—Congress makes the fol- far with this initiative, working on a communications equipment to quickly lowing findings: shoestring budget. But this global net- transmit data on disease patterns and (1) Bioterrorism poses a grave national se- work is only as good as its components, pathogen diagnoses, both inside a na- curity threat to the United States. The in- individual nations. Unfortunately, de- tion and to regional organizations and sidious nature of the threat, the likely de- veloping nations, those nations most the WHO. Again, we’re not talking layed recognition in the event of an attack, likely to experience rapid disease out- about fancy high-tech equipment, but and the underpreparedness of the domestic breaks, simply do not possess the basics like fax machines and Internet- public health infrastructure may produce trained personnel, the laboratory equipped computers. Finally, the bill catastrophic consequences following a bio- logical weapons attack upon the United equipment, or the public health infra- gives preference to countries that States. structure to track evolving disease pat- agree to let experts from the United (2) A contagious pathogen engineered as a terns and detect emerging pathogens. States or international organizations biological weapon and developed, tested, pro- According to a report by the Na- investigate any suspicious disease out- duced, or released in another country can tional Intelligence Council, developing breaks. quickly spread to the United States. Given nations in Africa and Asia have estab- If passed, the Global Pathogen Sur- the realities of international travel, trade, lished only rudimentary systems, if veillance Act of 2002 will go a long way and migration patterns, a dangerous patho- any at all, for disease surveillance, re- in ensuring that developing nations ac- gen released anywhere in the world can sponse, and prevention. The World quire the basic disease surveillance ca- spread to United States territory in a matter of days, before any effective quarantine or Health Organization reports that more pabilities to link up effectively with isolation measures can be implemented. than sixty percent of laboratory equip- the WHO’s global network. This bill of- (3) To effectively combat bioterrorism and ment in developing countries is either fers an inexpensive and common sense ensure that the United States is fully pre- outdated or non-functioning. solution to a problem of global propor- pared to prevent, diagnose, and contain a bi- This lack of preparedness can lead to tions, the dual threat of biological ological weapons attack, measures to tragic results. In August 1994 in Surat, weapons and naturally occurring infec- strengthen the domestic public health infra- a city in western India, a surge of com- tious diseases. The funding authorized structure and improve domestic surveillance plaints on flea infestation and a grow- is only a tiny fraction of what we will and monitoring, while absolutely essential, ing rat population was followed by a are not sufficient. spend domestically on bioterrorism de- (4) The United States should enhance co- cluster of reports on patients exhib- fenses, but this investment will pay operation with the World Health Organiza- iting the symptoms of pneumonic enormous dividends in terms of our na- tion, regional health organizations, and indi- plague. However, authorities were un- tional security. vidual countries to help detect and quickly able to connect the dots until the Let me close with an excerpt of testi- contain infectious disease outbreaks or bio- plague had spread to seven states mony from the Foreign Relations Com- terrorism agents before they can spread. across India, ultimately killing 56 peo- mittee hearing last September on bio- (5) The World Health Organization (WHO) ple and costing the Indian economy terrorism. Dr. D.A. Henderson, the man has done an impressive job in monitoring in- $600 million. Had the Indian authorities who spearheaded the successful inter- fectious disease outbreaks around the world, particularly with the establishment in April employed better surveillance tools, national campaign to eradicate small- 2000 of the Global Outbreak Alert and Re- they may well have contained the epi- pox in the 1970’s, recently stepped down sponse network. demic, limited the loss of life, and from a short-term position as the di- (6) The capabilities of the World Health Or- surely avoided the panic that led to rector of the Office of Emergency Pre- ganization are inherently limited in that its May 9, 2002 CONGRESSIONAL RECORD — SENATE S4149 disease surveillance and monitoring is only (6) To establish ‘‘lab-to-lab’’ cooperative have access, during the course of such par- as good as the data and information the relationships between United States public ticipation, to select agents that may be used World Health Organization receives from health laboratories and established foreign as, or in, a biological weapon, except in a su- member countries and are further limited by counterparts. pervised and controlled setting. the narrow range of diseases (plague, chol- (7) To expand the training and outreach ac- SEC. 6. FELLOWSHIP PROGRAM. era, and yellow fever) upon which its disease tivities of overseas United States labora- (a) ESTABLISHMENT.—There is established a surveillance and monitoring is based, and tories, including Centers for Disease Control fellowship program (in this section referred the consensus process used by the World and Prevention and Department of Defense to as the ‘‘program’’) under which the Sec- Health Organization to add new diseases to entities, to enhance the public health capa- retary, in consultation with the Secretary of the list. Developing countries in particular bilities of developing countries. Health and Human Services, and, subject to often cannot devote the necessary resources (8) To provide appropriate technical assist- the availability of appropriations, award fel- to build and maintain public health infra- ance to existing regional health networks lowships to eligible nationals of developing structures. and, where appropriate, seed money for new countries to pursue public health education (7) In particular, developing countries regional networks. or training, as follows: could benefit from— SEC. 3. DEFINITIONS. (1) MASTER OF PUBLIC HEALTH DEGREE.— (A) better trained public health profes- In this Act: Graduate courses of study leading to a mas- sionals and epidemiologists to recognize dis- (1) ELIGIBLE DEVELOPING COUNTRY.—The ter of public health degree with a concentra- ease patterns; term ‘‘eligible developing country’’ means tion in epidemiology from an institution of (B) appropriate laboratory equipment for any developing country that— higher education in the United States with a diagnosis of pathogens; (A) has agreed to the objective of fully Center for Public Health Preparedness, as de- (C) disease reporting that is based on complying with requirements of the World termined by the Centers for Disease Control symptoms and signs (known as ‘‘syndrome Health Organization on reporting public and Prevention. surveillance’’) enabling the earliest possible health information on outbreaks of infec- (2) ADVANCED PUBLIC HEALTH EPIDEMIOLOGY opportunity to conduct an effective response; tious diseases; TRAINING.—Advanced public health training (D) a narrowing of the existing technology (B) has not been determined by the Sec- in epidemiology for public health profes- gap in syndrome surveillance capabilities, retary, for purposes of section 40 of the Arms based on reported symptoms, and real-time sionals from eligible developing countries to Export Control Act (22 U.S.C. 2780), section be carried out at the Centers for Disease information dissemination to public health 620A of the Foreign Assistance Act of 1961 (22 officials; and Control and Prevention (or equivalent State U.S.C. 2371), or section 6(j) of the Export Ad- facility), or other Federal facility (excluding (E) appropriate communications equip- ministration Act of 1979 (50 U.S.C. App. 2405), ment and information technology to effi- the Department of Defense or United States to have repeatedly provided support for acts ciently transmit information and data with- National Laboratories), for a period of not of international terrorism, unless the Sec- in national and regional health networks, in- less than 6 months or more than 12 months. retary exercises a waiver certifying that it is cluding inexpensive, Internet-based Geo- (b) SPECIALIZATION IN BIOTERRORISM.—In in the national interest of the United States graphic Information Systems (GIS) for early addition to the education or training speci- to provide assistance under the provisions of recognition and diagnosis of diseases. fied in subsection (a), each recipient of a fel- this Act; and (8) An effective international capability to lowship under this section (in this section re- (C) is a state party to the Biological Weap- monitor and quickly diagnose infectious dis- ferred to as a ‘‘fellow’’) may take courses of ons Convention. ease outbreaks will offer dividends not only study at the Centers for Disease Control and (2) ELIGIBLE NATIONAL.—The term ‘‘eligible in the event of biological weapons develop- Prevention or at an equivalent facility on di- ment, testing, production, and attack, but national’’ means any citizen or national of agnosis and containment of likely bioter- also in the more likely cases of naturally oc- an eligible developing country who does not rorism agents. curring infectious disease outbreaks that have a criminal background, who is not on (c) FELLOWSHIP AGREEMENT.— could threaten the United States. Further- any immigration or other United States (1) IN GENERAL.—In awarding a fellowship more, a robust surveillance system will serve watch list, and who is not affiliated with any under the program, the Secretary, in con- to deter terrorist use of biological weapons, foreign terrorist organization. sultation with the Secretary of Health and as early detection will help mitigate the in- (3) INTERNATIONAL HEALTH ORGANIZATION.— Human Services, shall require the recipient tended effects of such malevolent uses. The term ‘‘international health organiza- to enter into an agreement under which, in (b) PURPOSE.—The purposes of this Act are tion’’ includes the World Health Organiza- exchange for such assistance, the recipient— as follows: tion and the Pan American Health Organiza- (A) will maintain satisfactory academic (1) To enhance the capability of the inter- tion. progress (as determined in accordance with national community, through the World (4) LABORATORY.—The term ‘‘laboratory’’ regulations issued by the Secretary and con- Health Organization and individual coun- means a facility for the biological, micro- firmed in regularly scheduled updates to the tries, to detect, identify, and contain infec- biological, serological, chemical, immuno- Secretary from the institution providing the tious disease outbreaks, whether the cause of hematological, hematological, biophysical, education or training on the progress of the those outbreaks is intentional human action cytological, pathological, or other examina- recipient’s education or training); or natural in origin. tion of materials derived from the human (B) will, upon completion of such education (2) To enhance the training of public body for the purpose of providing informa- or training, return to the recipient’s country health professionals and epidemiologists tion for the diagnosis, prevention, or treat- of nationality or last habitual residence (so from eligible developing countries in ad- ment of any disease or impairment of, or the long as it is an eligible developing country) vanced Internet-based syndrome surveillance assessment of the health of, human beings. and complete at least four years of employ- systems, in addition to traditional epidemi- (5) SECRETARY.—Unless otherwise provided, ment in a public health position in the gov- ology methods, so that they may better de- the term ‘‘Secretary’’ means the Secretary ernment or a nongovernmental, not-for-prof- tect, diagnose, and contain infectious disease of State. it entity in that country or, with the ap- outbreaks, especially those due to pathogens (6) SELECT AGENT.—The term ‘‘select proval of the Secretary and the government most likely to be used in a biological weap- agent’’ has the meaning given such term for concerned, in an international health organi- ons attack. purposes of section 72.6 of title 42, Code of zation; and (3) To provide assistance to developing Federal Regulations. (C) agrees that, if the recipient is unable to countries to purchase appropriate public (7) SYNDROME SURVEILLANCE.—The term meet the requirements described in subpara- health laboratory equipment necessary for ‘‘syndrome surveillance’’ means the record- graph (A) or (B), the recipient will reimburse infectious disease surveillance and diagnosis. ing of symptoms (patient complaints) and the United States for the value of the assist- (4) To provide assistance to developing signs (derived from physical examination) ance provided to the recipient under the fel- countries to purchase appropriate commu- combined with simple geographic locators to lowship, together with interest at a rate de- nications equipment and information tech- track the emergence of a disease in a popu- termined in accordance with regulations nology, including appropriate computer lation. issued by the Secretary but not higher than equipment and Internet connectivity mecha- SEC. 4. PRIORITY FOR CERTAIN COUNTRIES. the rate generally applied in connection with nisms, to facilitate the exchange of Geo- Priority in the provision of United States other Federal loans. graphic Information Systems-based syn- assistance for eligible developing countries (2) WAIVERS.—The Secretary may waive drome surveillance information and to effec- under all the provisions of this Act shall be the application of paragraph (1)(B) and (1)(C) tively gather, analyze, and transmit public given to those countries that permit per- if the Secretary determines that it is in the health information for infectious disease sonnel from the World Health Organization national interest of the United States to do surveillance and diagnosis. and the Centers for Disease Control and Pre- so. (5) To make available greater numbers of vention to investigate outbreaks of infec- (d) IMPLEMENTATION.—The Secretary, in United States Government public health pro- tious diseases on their territories. consultation with the Secretary of Health fessionals to international health organiza- SEC. 5. RESTRICTION. and Human Services, is authorized to enter tions, regional health networks, and United Notwithstanding any other provision of into an agreement with any eligible devel- States diplomatic missions where appro- this Act, no foreign nationals participating oping country under which the developing priate. in programs authorized under this Act shall country agrees— S4150 CONGRESSIONAL RECORD — SENATE May 9, 2002

(1) to establish a procedure for the nomina- as appropriate, the Centers for Disease Con- (f) ASSISTANCE FOR STANDARDIZATION OF tion of eligible nationals for fellowships trol and Prevention, to ensure interoper- REPORTING.—The President is authorized to under this section; ability with regional and international pub- provide, on such terms and conditions as the (2) to guarantee that a fellow will be of- lic health networks; and President may determine, technical assist- fered a professional public health position (4) not defense articles, defense services, or ance and grant assistance to international within the developing country upon comple- training as defined under the Arms Export health organizations (including regional tion of his studies; and Control Act. international health organizations) to facili- (3) to certify to the Secretary when a fel- (c) RULE OF CONSTRUCTION.—Nothing in tate standardization in the reporting of pub- low has concluded the minimum period of this section shall be construed to exempt the lic health information between and among employment in a public health position re- exporting of goods and technology from com- developing countries and international quired by the fellowship agreement, with an pliance with applicable provisions of the Ex- health organizations. explanation of how the requirement was met. port Administration Act of 1979 (or successor (g) HOST COUNTRY’S COMMITMENTS.—The (e) PARTICIPATION OF UNITED STATES CITI- statutes). assistance provided under this section shall ZENS.—On a case-by-case basis, the Secretary (d) LIMITATION.—Amounts appropriated to be contingent upon the host country’s com- may provide for the participation of United carry out this section shall not be made mitment to provide the resources, infra- States citizens under the provisions of this available for the purchase from a foreign structure, and other assets required to section if the Secretary determines that it is country of equipment that, if made in the house, support, maintain, secure, and maxi- in the national interest of the United States United States, would be subject to the Arms mize use of this equipment and appropriate to do so. Upon completion of such education Export Control Act or likely be barred or technical personnel. or training, a United States recipient shall subject to special conditions under the Ex- SEC. 10. ASSIGNMENT OF PUBLIC HEALTH PER- complete at least five years of employment port Administration Act of 1979 (or successor SONNEL TO UNITED STATES MIS- in a public health position in an eligible de- statutes). SIONS AND INTERNATIONAL ORGA- NIZATIONS. veloping country or the World Health Orga- (e) PROCUREMENT PREFERENCE.—In the use (a) IN GENERAL.—Upon the request of a of grant funds authorized under subsection nization. United States chief of diplomatic mission or (a), preference should be given to the pur- SEC. 7. IN-COUNTRY TRAINING IN LABORATORY an international health organization, and TECHNIQUES AND SYNDROME SUR- chase of equipment of United States manu- with the concurrence of the Secretary of VEILLANCE. facture. The use of amounts appropriated to State, the head of a Federal agency may as- (a) IN GENERAL.—In conjunction with the carry out this section shall be subject to sec- sign to the respective United States mission Centers for Disease Control and Prevention tion 604 of the Foreign Assistance Act of and the Department of Defense, the Sec- or organization any officer or employee of 1961. the agency occupying a public health posi- retary shall, subject to the availability of (f) HOST COUNTRY’S COMMITMENTS.—The as- tion within the agency for the purpose of en- appropriations, support short training sistance provided under this section shall be hancing disease and pathogen surveillance courses in-country (not in the United States) contingent upon the host country’s commit- efforts in developing countries. to laboratory technicians and other public ment to provide the resources, infrastruc- (b) REIMBURSEMENT.—The costs incurred by health personnel (who are eligible persons) ture, and other assets required to house, a Federal agency by reason of the detail of from developing countries in laboratory maintain, support, secure, and maximize use personnel under subsection (a) may be reim- techniques relating to the identification, di- of this equipment and appropriate technical bursed to that agency out of the applicable agnosis, and tracking of pathogens respon- personnel. appropriations account of the Department of sible for possible infectious disease out- SEC. 9. ASSISTANCE FOR IMPROVED COMMU- State if the Secretary determines that the breaks. Training under this section may be NICATION OF PUBLIC HEALTH IN- relevant agency may otherwise be unable to conducted in overseas facilities of the Cen- FORMATION. assign such personnel on a non-reimbursable ters for Disease Control and Prevention or in (a) ASSISTANCE FOR PURCHASE OF COMMU- basis. NICATION EQUIPMENT AND INFORMATION TECH- Overseas Medical Research Units of the De- SEC. 11. LABORATORY-TO-LABORATORY EX- partment of Defense, as appropriate. The NOLOGY.—The President is authorized to pro- CHANGE PROGRAM. Secretary shall coordinate such training vide, on such terms and conditions as the (a) AUTHORITY.—The head of a Federal courses, where appropriate, with the existing President may determine, assistance to eli- agency, with the concurrence of the Sec- programs and activities of the World Health gible developing countries for the purchase retary, is authorized to provide by grant, Organization. and maintenance of communications equip- contract, or otherwise for educational ex- (b) TRAINING IN SYNDROME SURVEILLANCE.— ment and information technology described changes by financing educational In conjunction with the Centers for Disease in subsection (b), and supporting equipment, activities— Control and Prevention and the Department necessary to effectively collect, analyze, and (1) of United States public health personnel of Defense, the Secretary shall, subject to transmit public health information. in approved public health and research lab- the availability of appropriations, establish (b) COVERED EQUIPMENT.—Equipment de- oratories in eligible developing countries; and support short training courses in-coun- scribed in this subsection is equipment and try (not in the United States) for health care that— (2) of public health personnel of eligible de- providers and other public health personnel (1) is suitable for use under the particular veloping countries in United States public from eligible developing countries in tech- conditions of the area of intended use; health and research laboratories. niques of syndrome surveillance reporting (2) meets appropriate World Health Organi- (b) APPROVED PUBLIC HEALTH LABORA- and rapid analysis of syndrome information zation standards to ensure interoperability TORIES DEFINED.—In this section, the term using Geographic Information System (GIS) with like equipment of other countries and ‘‘approved public health and research labora- tools. Training under this subsection may be international organizations; and tories’’ means non-United States Govern- conducted via the Internet or in appropriate (3) is not defense articles, defense services, ment affiliated public health laboratories facilities as determined by the Secretary. or training as defined under the Arms Export that the Secretary determines are well-es- The Secretary shall coordinate such training Control Act. tablished and have a demonstrated record of courses, where appropriate, with the existing (c) RULE OF CONSTRUCTION.—Nothing in excellence. programs and activities of the World Health this section shall be construed to exempt the SEC. 12. EXPANSION OF CERTAIN UNITED STATES Organization. exporting of goods and technology from com- GOVERNMENT LABORATORIES SEC. 8. ASSISTANCE FOR THE PURCHASE AND pliance with applicable provisions of the Ex- ABROAD. MAINTENANCE OF PUBLIC HEALTH port Administration Act of 1979 (or successor (a) IN GENERAL.—Subject to the avail- LABORATORY EQUIPMENT. statutes). ability of appropriations, the Centers for (a) AUTHORIZATION.—The President is au- (d) LIMITATION.—Amounts appropriated to Disease Control and Prevention and the De- thorized, on such terms and conditions as carry out this section shall not be made partment of Defense shall each— the President may determine, to furnish as- available for the purchase from a foreign (1) increase the number of personnel as- sistance to eligible developing countries to country of equipment that, if made in the signed to laboratories of the Centers or the purchase and maintain public health labora- United States, would be subject to the Arms Department, as appropriate, located in eligi- tory equipment described in subsection (b). Export Control Act or likely be barred or ble developing countries that conduct re- (b) EQUIPMENT COVERED.—Equipment de- subject to special conditions under the Ex- search and other activities with respect to scribed in this subsection is equipment that port Administration Act of 1979 (or successor infectious diseases; and is— statutes). (2) expand the operations of those labora- (1) appropriate, where possible, for use in (e) PROCUREMENT PREFERENCE.—In the use tories, especially with respect to the imple- the intended geographic area; of grant funds under subsection (a), pref- mentation of on-site training of foreign na- (2) necessary to collect, analyze, and iden- erence should be given to the purchase of tionals and activities affecting neighboring tify expeditiously a broad array of patho- communications (and information tech- countries. gens, including mutant strains, which may nology) equipment of United States manu- (b) COOPERATION AND COORDINATION BE- cause disease outbreaks or may be used as a facture. The use of amounts appropriated to TWEEN LABORATORIES.—Subsection (a) shall biological weapon; carry out this section shall be subject to sec- be carried out in such a manner as to foster (3) compatible with general standards set tion 604 of the Foreign Assistance Act of cooperation and avoid duplication between forth by the World Health Organization and, 1961. and among laboratories. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4151 (c) RELATION TO CORE MISSIONS AND SECU- BIDEN, HELMS, and KENNEDY in intro- ‘‘(1) an estimated 26,000,000 individuals in RITY.—The expansion of the operations of ducing the Global Pathogen Surveil- the United States care each year for 1 or overseas laboratories of the Centers or the lance Act of 2002. This bipartisan legis- more adult family members or friends who Department under this section shall not— lation will help ensure that we are bet- are chronically ill, disabled, or terminally (1) detract from the established core mis- ill; sions of the laboratories; or ter prepared globally to deal with bio- ‘‘(2) an estimated 18,000,000 children in the (2) compromise the security of those lab- logical threats and attacks. United States have chronic physical, devel- oratories, as well as their research, equip- The Global Pathogen Surveillance opmental, behavioral, or emotional condi- ment, expertise, and materials. Act of 2002 authorizes enhanced bilat- tions that demand caregiver monitoring, SEC. 13. ASSISTANCE FOR REGIONAL HEALTH eral and multilateral activities to im- management, supervision, or treatment be- NETWORKS AND EXPANSION OF prove the capacity of the United States yond that required of children generally; FOREIGN EPIDEMIOLOGY TRAINING ‘‘(3) approximately 6,000,000 children in the PROGRAMS. and our partners in the international community to detect and contain in- United States live with a grandparent or (a) AUTHORITY.—The President is author- other relative because their parents are un- ized, on such terms and conditions as the fectious diseases and biological weap- able or unwilling to care for them; President may determine, to provide assist- ons. The Global Pathogen Surveillance ‘‘(4) an estimated 165,000 children with dis- ance for the purposes of— Act will enhance the training, upgrade abilities in the United States live with a fos- (1) enhancing the surveillance and report- equipment and communications sys- ter care parent; ing capabilities for the World Health Organi- tems, and provide additional American ‘‘(5) nearly 4,000,000 individuals in the zation and existing regional health net- expertise and assistance in inter- United States of all ages who have mental works; and retardation or another developmental dis- (2) developing new regional health net- national surveillance. To better prepare our nation to meet ability live with their families; works. ‘‘(6) almost 25 percent of the Nation’s el- (b) EXPANSION OF FOREIGN EPIDEMIOLOGY the growing threat of bioterrorism, we ders experience multiple chronic disabling TRAINING PROGRAMS.—The Secretary of must put in place and maintain a com- conditions that make it necessary to rely on Health and Human Services is authorized to prehensive framework including pre- others for help in meeting their daily needs; establish new country or regional Foreign vention, preparedness and consequence ‘‘(7) every year, approximately 600,000 Epidemiology Training Programs in eligible management. To accomplish this goal, Americans die at home and many of these in- developing countries. we not only need to strengthen our dividuals rely on extensive family caregiving SEC. 14. AUTHORIZATION OF APPROPRIATIONS. local public health infrastructure do- before their death; (a) AUTHORIZATION OF APPROPRIATIONS.— mestically, but to work with our ‘‘(8) of all individuals in the United States (1) IN GENERAL.—Subject to subsection (c), needing assistance in daily living, 42 percent there are authorized to be appropriated friends and neighbors in the global are under age 65; $70,000,000 for the fiscal year 2003 and community to prevent, detect, and ap- ‘‘(9) there are insufficient resources to re- $80,000,000 for fiscal year 2004, to carry out propriately contain and respond to bio- place family caregivers with paid workers; this Act. terrorist activities outside our borders. ‘‘(10) if services provided by family care- (2) ALLOCATION OF FUNDS.—Of the amounts This is truly a global responsibility. In- givers had to be replaced with paid services, made available under paragraph (1)— fectious diseases, such as smallpox, do it would cost approximately $200,000,000,000 (A) $50,000,000 for the fiscal year 2003 and not respect borders. If we can prevent annually; $50,000,000 for the fiscal year 2004 are author- their spread in other countries around ‘‘(11) the family caregiver role is person- ized to be available to carry out sections 6, ally rewarding but can result in substantial 7, 8, and 9; the world, we can better protect our emotional, physical, and financial hardship; (B) not more than $2,000,000 shall be avail- citizens here at home. ‘‘(12) approximately 75 percent of family able for each of the fiscal years 2003 and 2004 I applaud Senators HELMS and BIDEN caregivers are women; for the specific training programs authorized for their leadership in this area. I look ‘‘(13) family caregivers often do not know in section 6, of which not more than $500,000 forward to working with them, and all where to find information about available shall be available to carry out subsection of my colleagues to ensure that we pro- respite care or how to access it; (a)(1) of such section and not more than vide appropriate authorities and fund- ‘‘(14) available respite care programs are $1,500,000 shall be available to carry out sub- ing to improve our international ef- insufficient to meet the need and are di- section (a)(2) of such section; rected at primarily lower income popu- (C) $5,000,000 for the fiscal year 2003 and forts to detect and contain infectious lations and family caregivers of the elderly, $5,000,000 for the fiscal year 2004 are author- diseases and offensive biological leaving large numbers of family caregivers ized to be available to carry out section 10; threats. without adequate support; and (D) $2,000,000 for the fiscal year 2003 and ‘‘(15) the limited number of available res- $2,000,000 for the fiscal year 2004 are author- By Mrs. CLINTON (for herself, pite care programs find it difficult to recruit ized to be available to carry out section 11; Ms. SNOWE, Ms. MIKULSKI, and appropriately trained respite workers. (E) $8,000,000 for the fiscal year 2003 and Mr. BREAUX): ‘‘(b) PURPOSES.—The purposes of this title $18,000,000 for the fiscal year 2004 are author- S. 2489. A bill to amend the Public are— ized to be available to carry out section 12; Health Service Act to establish a pro- ‘‘(1) to encourage States to establish State and gram to assist family caregivers in ac- and local lifespan respite care programs; (F) $5,000,000 for the fiscal year 2003 and ‘‘(2) to improve and coordinate the dissemi- $5,000,000 for the fiscal year 2004 are author- cessing affordable and high-quality res- pite care, and for other purposes; to the nation of respite care information and re- ized to be available to carry out section 13. sources to family caregivers; (b) AVAILABILITY OF FUNDS.—The amount Committee on Health, Education, ‘‘(3) to provide, supplement, or improve appropriated pursuant to subsection (a) is Labor, and Pensions. respite care services to family caregivers; authorized to remain available until ex- Mrs. CLINTON. Mr. President, I ask ‘‘(4) to promote innovative, flexible, and pended. unanimous consent that the text of the comprehensive approaches to— (c) REPORTING REQUIREMENT.— bill be printed in the RECORD. ‘‘(A) the delivery of respite care; (1) REPORT.—Not later than 90 days after ‘‘(B) respite care worker and volunteer re- the date of enactment of this Act, the Sec- There being no objection, the bill was cruitment and training programs; and retary shall submit a report, in conjunction ordered to be printed in the RECORD, as ‘‘(C) training programs for family care- with the Secretary of Health and Human follows: givers to assist such family caregivers in Services and the Secretary of Defense, S. 2489 making informed decisions about respite containing— Be it enacted by the Senate and House of Rep- care services; (A) a description of the implementation of resentatives of the United States of America in ‘‘(5) to support evaluative research to iden- programs under this Act; and Congress assembled, tify effective respite care services that al- (B) an estimate of the level of funding re- leviate, reduce, or minimize any negative quired to carry out those programs at a suf- SECTION 1. SHORT TITLE. consequences of caregiving; and ficient level. This Act may be cited as the ‘‘Lifespan Respite Care Act of 2002’’. ‘‘(6) to promote the dissemination of re- (2) LIMITATION ON OBLIGATION OF FUNDS.— sults, findings, and information from pro- Not more than 10 percent of the amount ap- SEC. 2. LIFESPAN RESPITE CARE. grams and research projects relating to res- propriated pursuant to subsection (a) may be The Public Health Service Act (42 U.S.C. pite care delivery, family caregiver strain, obligated before the date on which a report 201 et seq.) is amended by adding at the end respite care worker and volunteer recruit- is submitted, or required to be submitted, the following: ment and training, and training programs whichever first occurs, under paragraph (1). ‘‘TITLE XXVIII—LIFESPAN RESPITE CARE for family caregivers that assist such family Mr. FRIST. Mr. President, I rise to ‘‘SEC. 2801. FINDINGS AND PURPOSES. caregivers in making informed decisions join with my colleagues Senators ‘‘(a) FINDINGS.—Congress finds that— about respite care services. S4152 CONGRESSIONAL RECORD — SENATE May 9, 2002

‘‘SEC. 2802. DEFINITIONS. ‘‘(c) FEDERAL LIFESPAN APPROACH.—In car- ent in the absence of the family caregiver; ‘‘In this title: rying out this section, the Associate Admin- and ‘‘(1) ASSOCIATE ADMINISTRATOR.—The term istrator shall work in cooperation with the ‘‘(xii) the results expected from proposed ‘Associate Administrator’ means the Asso- National Family Caregiver Support Program respite care activities and the procedures to ciate Administrator of the Maternal and Officer of the Administration on Aging, and be used for evaluating those results; and Child Health Bureau of the Health Resources respite care program officers in the Adminis- ‘‘(C) assurances that, where appropriate, and Services Administration. tration for Children and Families, the Ad- the applicant shall have a system for main- ‘‘(2) CONDITION.—The term ‘condition’ ministration on Developmental Disabilities, taining the confidentiality of care recipient includes— and the Substance Abuse and Mental Health and family caregiver records. ‘‘(A) Alzheimer’s disease and related dis- Services Administration, to ensure coordina- ‘‘(e) REVIEW OF APPLICATIONS.— orders; tion of respite care services for family care- ‘‘(1) ESTABLISHMENT OF REVIEW PANEL.— ‘‘(B) developmental disabilities; givers of individuals of all ages with special The Associate Administrator shall establish ‘‘(C) mental retardation; needs. a panel to review applications submitted ‘‘(D) physical disabilities; ‘‘(d) APPLICATION.— under this section. ‘‘(E) chronic illness, including cancer; ‘‘(1) SUBMISSION.—Each eligible recipient ‘‘(2) MEETINGS.—The panel shall meet as ‘‘(F) behavioral, mental, and emotional desiring to receive a grant or cooperative often as may be necessary to facilitate the conditions; agreement under this section shall submit an expeditious review of applications. ‘‘(G) cognitive impairments; application to the Associate Administrator ‘‘(3) FUNCTION OF PANEL.—The panel shall— ‘‘(H) situations in which there exists a high at such time, in such manner, and con- ‘‘(A) review and evaluate each application risk of abuse or neglect or of being placed in taining such information as the Associate submitted under this section; and the foster care system due to abuse and ne- Administrator shall require. ‘‘(B) make recommendations to the Asso- glect; ‘‘(2) CONTENTS.—Each application sub- ciate Administrator concerning whether the ‘‘(I) situations in which a child’s parent is mitted under this section shall include— application should be approved. unavailable due to the parent’s death, inca- ‘‘(A) a description of the applicant’s— ‘‘(f) AWARDING OF GRANTS OR COOPERATIVE pacitation, or incarceration; or ‘‘(i) understanding of respite care and fam- AGREEMENTS.— ‘‘(J) any other conditions as the Associate ily caregiver issues; ‘‘(1) IN GENERAL.—The Associate Adminis- Administrator may establish by regulation. ‘‘(ii) capacity to ensure meaningful in- trator shall award grants or cooperative ‘‘(3) ELIGIBLE RECIPIENT.—The term ‘eligi- volvement of family members, family care- agreements from among the applications ap- ble recipient’ means— givers, and care recipients; and proved by the panel under subsection (e)(3). ‘‘(iii) collaboration with other State and ‘‘(A) a State agency; ‘‘(2) PRIORITY.—When awarding grants or ‘‘(B) any other public entity that is capa- community-based public, nonprofit, or pri- cooperative agreements under this sub- ble of operating on a statewide basis; vate agencies; section, the Associate Administrator shall ‘‘(C) a private, nonprofit organization that ‘‘(B) with respect to the population of fam- give priority to applicants that show the is capable of operating on a statewide basis; ily caregivers to whom respite care informa- greatest likelihood of implementing or en- ‘‘(D) a political subdivision of a State that tion or services will be provided or for whom hancing lifespan respite care statewide. has a population of not less than 3,000,000 in- respite care workers and volunteers will be ‘‘(g) USE OF GRANT OR COOPERATIVE AGREE- dividuals; or recruited and trained, a description of— MENT FUNDS.— ‘‘(E) any recognized State respite coordi- ‘‘(i) the population; ‘‘(1) IN GENERAL.— nating agency that has— ‘‘(ii) the extent and nature of the respite ‘‘(A) MANDATORY USES OF FUNDS.—Each eli- ‘‘(i) a demonstrated ability to work with care needs of the population; gible recipient that is awarded a grant or co- other State and community-based agencies; ‘‘(iii) existing respite care services for the operative agreement under this section shall ‘‘(ii) an understanding of respite care and population, including numbers of family use the funds for, unless such a program is in family caregiver issues; and caregivers being served and extent of unmet existence— ‘‘(iii) the capacity to ensure meaningful in- need; ‘‘(i) the development of lifespan respite volvement of family members, family care- ‘‘(iv) existing methods or systems to co- care at the State and local levels; and givers, and care recipients. ordinate respite care information and serv- ‘‘(ii) an evaluation of the effectiveness of ‘‘(4) FAMILY CAREGIVER.—The term ‘family ices to the population at the State and local such care. level and extent of unmet need; caregiver’ means an unpaid family member, ‘‘(B) DISCRETIONARY USES OF FUNDS.—Each a foster parent, or another unpaid adult, who ‘‘(v) how respite care information dissemi- eligible recipient that is awarded a grant or provides in-home monitoring, management, nation and coordination, respite care serv- cooperative agreement under this section supervision, or treatment of a child or adult ices, respite care worker and volunteer re- may use the funds for— with a special need. cruitment and training programs, or train- ‘‘(i) respite care services; ‘‘(5) LIFESPAN RESPITE CARE.—The term ing programs for family caregivers that as- ‘‘(ii) respite care worker and volunteer ‘lifespan respite care’ means a coordinated sist such family caregivers in making in- training programs; or system of accessible, community-based res- formed decisions about respite care services ‘‘(iii) training programs for family care- pite care services for family caregivers of in- will be provided using grant or cooperative givers to assist such family caregivers in dividuals regardless of the individual’s age, agreement funds; making informed decisions about respite race, ethnicity, or special need. ‘‘(vi) a plan for collaboration and coordina- care services. tion of the proposed respite care activities ‘‘(6) RESPITE CARE.—The term ‘respite care’ ‘‘(C) EVALUATION.—If an eligible recipient means planned or emergency care provided with other related services or programs of- uses funds awarded under this section for an to an individual with a special need— fered by public or private, nonprofit entities, activity described in subparagraph (B), the ‘‘(A) in order to provide temporary relief to including area agencies on aging; eligible recipient shall use funds for an eval- the family caregiver of that individual; or ‘‘(vii) how the population, including family uation of the effectiveness of the activity. caregivers, care recipients, and relevant pub- ‘‘(B) when the family caregiver of that in- ‘‘(2) SUBCONTRACTS.—Each eligible recipi- dividual is unable to provide care. lic or private agencies, will participate in ent that is awarded a grant or cooperative ‘‘(7) SPECIAL NEED.—The term ‘special the planning and implementation of the pro- agreement under this section may use the need’ means the particular needs of an indi- posed respite care activities; funds to subcontract with a public or non- vidual of any age who requires care or super- ‘‘(viii) how the proposed respite care ac- profit agency to carry out the activities de- vision because of a condition in order to tivities will make use, to the maximum ex- scribed in paragraph (1). meet the individual’s basic needs or to pre- tent feasible, of other Federal, State, and ‘‘(h) TERM OF GRANTS OR COOPERATIVE vent harm to the individual. local funds, programs, contributions, other AGREEMENTS.— ‘‘SEC. 2803. LIFESPAN RESPITE CARE GRANTS forms of reimbursements, personnel, and fa- ‘‘(1) IN GENERAL.—The Associate Adminis- AND COOPERATIVE AGREEMENTS. cilities; trator shall award grants or cooperative ‘‘(a) PURPOSES.—The purposes of this sec- ‘‘(ix) respite care services available to fam- agreements under this section for terms that tion are— ily caregivers in the applicant’s State or lo- do not exceed 5 years. ‘‘(1) to expand and enhance respite care cality, including unmet needs and how the ‘‘(2) RENEWAL.—The Associate Adminis- services to family caregivers; applicant’s plan for use of funds will improve trator may renew a grant or cooperative ‘‘(2) to improve the statewide dissemina- the coordination and distribution of respite agreement under this section at the end of tion and coordination of respite care; and care services for family caregivers of individ- the term of the grant or cooperative agree- ‘‘(3) to provide, supplement, or improve ac- uals of all ages with special needs; ment determined under paragraph (1). cess and quality of respite care services to ‘‘(x) the criteria used to identify family ‘‘(i) SUPPLEMENT, NOT SUPPLANT.—Funds family caregivers, thereby reducing family caregivers eligible for respite care services; made available under this section shall be caregiver strain. ‘‘(xi) how the quality and safety of any res- used to supplement and not supplant other ‘‘(b) AUTHORIZATION.—Subject to sub- pite care services provided will be mon- Federal, State, and local funds available for section (f), the Associate Administrator is itored, including methods to ensure that res- respite care services. authorized to award grants or cooperative pite care workers and volunteers are appro- ‘‘(j) AUTHORIZATION OF APPROPRIATIONS.— agreements to eligible recipients who submit priately screened and possess the necessary There are authorized to be appropriated to an application pursuant to subsection (d). skills to care for the needs of the care recipi- carry out this section— May 9, 2002 CONGRESSIONAL RECORD — SENATE S4153 ‘‘(1) $90,500,000 for fiscal year 2003; per patient per day, and it is difficult ond Lieutenant Hugh Foster worked ‘‘(2) $118,000,000 for fiscal year 2004; to offer high quality services under with them to develop their own unique ‘‘(3) $145,500,000 for fiscal year 2005; those circumstances. We must work to- code for military words. He gave the ‘‘(4) $173,000,000 for fiscal year 2006; and gether to pass this important legisla- Indians a list of military words and ‘‘(5) $200,000,000 for fiscal year 2007. tion to protect our seniors, and to en- then worked with them to develop a ‘‘SEC. 2804. NATIONAL LIFESPAN RESPITE RE- SOURCE CENTER. sure that skilled nursing facilities will Comanche word or phrase for those ‘‘(a) ESTABLISHMENT.—From funds appro- still be there when the rest of us need words. priated under subsection (c), the Associate them in only a few short years. On June 6, 1944, just after landing in Administrator shall award a grant or cooper- Normandy, a Comanche trained by Lt. ative agreement to a public or private non- By Mr. INHOFE: Foster and serving as a driver and profit entity to establish a National Re- S. 2491. A bill to authorize the Presi- radio operator under Brigadier General source Center on Lifespan Respite Care (re- dent to award a gold medal on behalf of Theodore Roosevelt, Jr, sent one of the ferred to in this section as the ‘center’). Congress to the Choctaw and Coman- first messages from Utah Beach. These ‘‘(b) PURPOSES OF THE CENTER.—The center che code talkers in recognition of the communications efforts, by the Coman- shall— ‘‘(1) maintain a national database on life- contributions provided by those indi- ches, helped the Allies win the war in span respite care; viduals to the United States; to the Europe. ‘‘(2) provide training and technical assist- Committee on Banking, Housing, and It is time Congress officially recog- ance to State, community, and nonprofit res- Urban Affairs. nizes these men. My bill directs the pite care programs; and Mr. INHOFE. Mr. President, today I Secretary of the Treasury to award the ‘‘(3) provide information, referral, and edu- rise to introduce a bill to honor a Choctaw and Comanche Code Talkers a cational programs to the public on lifespan group of men who bravely served this gold medal as a result of their great respite care. country. I am proud to recognize the commitment and service on behalf of ‘‘(c) AUTHORIZATION OF APPROPRIATIONS.— the United States during World Wars I There are authorized to be appropriated to Choctaw and Comanche Code Talkers carry out this section $500,000 for each of fis- who joined the United States Armed and II. I welcome my colleagues to join cal years 2003 through 2007.’’. Forces on foreign soil in the fight for me in saluting this group of heroes for freedom in two world wars. contributing to the fight for freedom By Mr. TORRICELLI (for himself During World War I, the Germans for our country and around the world. and Mr. SMITH of Oregon): began tapping American lines, creating S. 2490. A bill to amend title XVIII of the need to provide secure communica- By Mr. CLELAND: S. 2492. A bill to amend title 5, the Social Security Act to ensure the tions. Despite the fact that American United States Code, to require that quality of, and access to, skilled nurs- Indians were not citizens, 18 members agencies, in promulgating rules, take ing facility services under the Medi- of the Choctaw Nation enlisted to be- into consideration the impact of such care Program; to the Committee on Fi- come the first American Indian sol- rules on the privacy of individuals, and nance. diers to use their native language to for other purposes; to the Committee Mr. SMITH of Oregon. Mr. President, transmit messages between the Allied on Governmental Affairs. I rise today to join my colleague, Sen- forces. Mr. CLELAND. Mr. President, I rise ator TORRICELLI, in introducing the At least one Choctaw man was placed today to introduce legislation, the Fed- Medicare Skilled Nursing Beneficiary in each field company headquarters. He eral Agency Protection of Privacy Act, Protection Act of 2002, a bill that will would translate radio messages into that will require Federal agencies to bring better care to thousands of Or- the Choctaw language and then write carefully consider the impact of pro- egon seniors. field orders to be carried by messengers posed regulations on individual pri- Nursing homes across America are in between different companies on the vacy. In the aftermath of the terrorist trouble, and it’s not just Wall Street battle line. Fortunately, because Choc- attacks of September 11, we are being analysts who will tell you that. The taw was an unwritten language only forced to fight a new kind of war; a war people who rely on nursing home serv- understood by those who spoke it, the in which we have not only physical ices the most can share with you their Germans were never able to break the battlefields, but battlefields of prin- concerns about the future of skilled code. ciple. nursing care. Impending cuts to Medi- The 18 Choctaw Code Talkers who Not only must we have troops on the care benefits for skilled nursing facili- served in the 142nd Infantry Company ground protecting our physical well- ties will jeopardize the health and safe- of the 36th Division were: Albert Billy, being, but we must also insure that we ty of some of our most vulnerable sen- Victor Brown, Mitchell Bobb, Ben protect the American way of life. Ours iors and people with disabilities, and Carterby, George Davenport, Joe Dav- is a country based on individual we cannot in good conscience allow enport, James Edwards, Tobias Frazier, rights—rights to pursue life, liberty, these cuts to occur. The Medicare Ben Hampton, Noel Johnson, Otis and happiness, as Thomas Jefferson Skilled Nursing Beneficiary Protection Leader, Soloman Louis, Pete mentioned in the manner in which each Act of 2002 will prevent cuts to Medi- Maytubby, Jeff Nelson, Joseph of us sees fit. care funding for nursing homes and Oklahombi, Robert Taylor, Walter While we are obligated, as a Govern- will ensure that Medicare pays for the Veach, and Calvin Wilson. ment, to protect the physical safety of full cost of care rather than short- Similarly, the Comanche Code Talk- the American people, we also are obli- changing nursing facilities. ers played an important role during gated to remember our history, our This bill will be particularly impor- World War II. Once again, the enemy struggles, and the principles for which tant for Oregon. My State of Oregon is began tapping American lines. In order our great Nation stands. While we en- home to an ever growing population of to establish the secure transmission of hance and strengthen our investigatory senior citizens, and we are predicted to messages, the United States enlisted tools and physical arsenal, we cannot be the 4th oldest State in the union by fourteen Comanche Code Talkers who allow the terrorists to prevail in under- the year 2020. As our citizens age, and served overseas in the 4th Signal Com- mining our civil liberties. I am among that aging group, it will be pany of the 4th Infantry Division. They Therefore, today, I am introducing essential that we have the capacity to were: Charles Chibitty, Haddon the Federal Agency Protection of Pri- care for our most needy seniors. Unfor- Codynah, Robert Holder, Forrest vacy Act in the Senate as companion tunately, instead of increasing capac- Kassanavoid, Wellington Mihecoby, Al- legislation to H.R. 4561, which was in- ity we are seeing skilled nursing facili- bert Nahquaddy, Jr., Clifford Ototivo, troduced by Representative BOB BARR, ties close all over the country. This Simmons Parker, Melvin Permansu, a long-time champion of civil liberties could have disastrous consequences for Elgin Red Elk, Roderick Red Elk, in the U.S. Congress. It will impose a an already over-taxed health care sys- Larry Saupitty, Morris Tabbyetchy, mandate that when Federal agencies tem. and Willis Yackeshi. are required to publish a general notice Without the Medicare Skilled Nurs- The Army chose the Comanches be- of proposed rulemaking, they must ing Beneficiary Protection Act, Or- cause their language was thought to be publish an accompanying ‘‘privacy im- egon’s nursing homes will lose $37.58 the least known to the Germans. Sec- pact statement.’’ This initial privacy S4154 CONGRESSIONAL RECORD — SENATE May 9, 2002 impact statement, written in terms SEC. 2. REQUIREMENT THAT AGENCY RULE- ‘‘(iv) provides security for such informa- which all of us can understand, would MAKING TAKE INTO CONSIDER- tion. ATION IMPACTS ON INDIVIDUAL PRI- ‘‘(B) A summary of the significant issues be subject to public notice and com- VACY. ment. After receiving and evaluating raised by the public comments in response to (a) IN GENERAL.—Title 5, United States the initial privacy impact analysis, a sum- any comments, the agency would then Code, is amended by adding after section 553 mary of the assessment of the agency of such be required to include a final privacy the following: issues, and a statement of any changes made impact statement with the regulation. ‘‘§ 553a. Privacy impact analysis in rule- in the proposed rule as a result of such These initial and final privacy im- making issues. pact statements would include: the ‘‘(a) INITIAL PRIVACY IMPACT ANALYSIS.— ‘‘(C) A description of the steps the agency type of information to be collected and ‘‘(1) IN GENERAL.—Whenever an agency is has taken to minimize the significant pri- how it would be used; mechanisms required by section 553 of this title, or any vacy impact on individuals consistent with other law, to publish a general notice of pro- the stated objectives of applicable statutes, through which individuals could cor- including a statement of the factual, policy, rect inaccuracies in the collected infor- posed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking and legal reasons for selecting the alter- mation; assurances that the informa- for an interpretative rule involving the in- native adopted in the final rule and why each tion would not be used for a purpose ternal revenue laws of the United States, the one of the other significant alternatives to other than initially specified; and a de- agency shall prepare and make available for the rule considered by the agency which af- scription of how the information will public comment an initial privacy impact fect the privacy interests of individuals was be secured by the agency. For example, analysis. Such analysis shall describe the rejected. the Financial Crime Enforcement Net- impact of the proposed rule on the privacy of ‘‘(3) AVAILABILITY TO PUBLIC.—The agency individuals. The initial privacy impact anal- shall make copies of the final privacy impact work of the Department of the Treas- analysis available to members of the public ury has proposed a rule implementing ysis or a summary shall be signed by the sen- ior agency official with primary responsi- and shall publish in the Federal Register provisions of the USA PATRIOT Act of bility for privacy policy and be published in such analysis or a summary thereof. 2001 which would encourage financial the Federal Register at the time of the publi- ‘‘(c) PROCEDURE FOR WAIVER OR DELAY OF institutions and Federal law enforce- cation of a general notice of proposed rule- COMPLETION.—An agency head may waive or ment agencies to share information in making for the rule. delay the completion of some or all of the re- order to identify and deter money laun- ‘‘(2) CONTENTS.—Each initial privacy im- quirements of subsections (a) and (b) to the dering and terrorist activity. While I pact analysis required under this subsection same extent as the agency head may, under fully support the Patriot Act and rec- shall contain the following: section 608, waive or delay the completion of some or all of the requirements of sections ognize the benefits of such a rule, the ‘‘(A) A description and assessment of the extent to which the proposed rule will im- 603 and 604, respectively. sensitivity of such information neces- pact the privacy interests of individuals, in- ‘‘(d) PROCEDURES FOR GATHERING COM- sitates that we insure that the agency cluding the extent to which the proposed MENTS.—When any rule is promulgated which consider the ramifications of such an rule— may have a significant privacy impact on in- invasion on an individual’s privacy. ‘‘(i) provides notice of the collection of per- dividuals, or a privacy impact on a substan- The American people must know spe- sonally identifiable information, and speci- tial number of individuals, the head of the cifically how this financial information fies what personally identifiable information agency promulgating the rule or the official would be used and how it would be pro- is to be collected and how it is to be col- of the agency with statutory responsibility for the promulgation of the rule shall assure tected. The purpose, importance, and lected, maintained, used, and disclosed; ‘‘(ii) allows access to such information by that individuals have been given an oppor- timeliness of this legislation have the person to whom the personally identifi- tunity to participate in the rulemaking for brought together a wide variety of sup- able information pertains and provides an the rule through techniques such as— porting organizations, ranging from opportunity to correct inaccuracies; ‘‘(1) the inclusion in an advance notice of the American Civil Liberties Union to ‘‘(iii) prevents such information, which is proposed rulemaking, if issued, of a state- the National Rifle Association to Pub- collected for one purpose, from being used ment that the proposed rule may have a sig- lic Citizen. for another purpose; and nificant privacy impact on individuals, or a While I have been and continue to be ‘‘(iv) provides security for such informa- privacy impact on a substantial number of tion. individuals; a strong supporter of the war on ter- ‘‘(B) A description of any significant alter- ‘‘(2) the publication of a general notice of rorism, I am also well aware that we natives to the proposed rule which accom- proposed rulemaking in publications of na- face a multi-faceted enemy. My experi- plish the stated objectives of applicable stat- tional circulation likely to be obtained by ence has taught me that diverse utes and which minimize any significant pri- individuals; threats necessitate diverse responses. vacy impact of the proposed rule on individ- ‘‘(3) the direct notification of interested in- We have planned for our offensives on uals. dividuals; the ground and in the air, and we have ‘‘(b) FINAL PRIVACY IMPACT ANALYSIS.— ‘‘(4) the conduct of open conferences or begun to mount a stronger homeland ‘‘(1) IN GENERAL.—Whenever an agency pro- public hearings concerning the rule for indi- mulgates a final rule under section 553 of viduals, including soliciting and receiving defense. But our efforts will be incom- this title, after being required by that sec- comments over computer networks; and plete and will indeed run the risk of tion or any other law to publish a general ‘‘(5) the adoption or modification of agency undermining all else we may accom- notice of proposed rulemaking, or promul- procedural rules to reduce the cost or com- plish in the fight against terrorism if gates a final interpretative rule involving plexity of participation in the rulemaking by we neglect to mount a successful de- the internal revenue laws of the United individuals. fense of the American way. I believe States, the agency shall prepare a final pri- ‘‘(e) PERIODIC REVIEW OF RULES.— that this legislation is necessary to vacy impact analysis, signed by the senior ‘‘(1) IN GENERAL.—Each agency shall carry protect the American people from at- agency official with primary responsibility out a periodic review of the rules promul- for privacy policy. gated by the agency that have a significant tacks seen and unseen, and I encourage ‘‘(2) CONTENTS.—Each final privacy impact privacy impact on individuals, or a privacy other Senators to join me in protecting analysis required under this subsection shall impact on a substantial number of individ- the liberties for which I know we all contain the following: uals. Under such periodic review, the agency stand. ‘‘(A) A description and assessment of the shall determine, for each such rule, whether I ask unanimous consent that the extent to which the final rule will impact the rule can be amended or rescinded in a text of the bill be printed in the the privacy interests of individuals, includ- manner that minimizes any such impact ing the extent to which the proposed rule— while remaining in accordance with applica- RECORD. ‘‘(i) provides notice of the collection of per- ble statutes. For each such determination, There being no objection, the bill was sonally identifiable information, and speci- the agency shall consider the following fac- ordered to be printed in the RECORD, as fies what personally identifiable information tors: follows: is to be collected and how it is to be col- ‘‘(A) The continued need for the rule. S. 2492 lected, maintained, used, and disclosed; ‘‘(B) The nature of complaints or com- ‘‘(ii) allows access to such information by ments received from the public concerning Be it enacted by the Senate and House of Rep- the person to whom the personally identifi- the rule. resentatives of the United States of America in able information pertains and provides an ‘‘(C) The complexity of the rule. Congress assembled, opportunity to correct inaccuracies; ‘‘(D) The extent to which the rule overlaps, SECTION 1. SHORT TITLE. ‘‘(iii) prevents such information, which is duplicates, or conflicts with other Federal This Act may be cited as the ‘‘Federal collected for one purpose, from being used rules, and, to the extent feasible, with State Agency Protection of Privacy Act’’. for another purpose; and and local governmental rules. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4155 ‘‘(E) The length of time since the rule was under any other provision of law or to grant was one of the Democratic Principles last reviewed under this subsection. any other relief in addition to the require- that Representative GEPHARDT and I ‘‘(F) The degree to which technology, eco- ments of this subsection. introduced last fall. nomic conditions, or other factors have ‘‘(6) RECORD OF AGENCY ACTION.—In an ac- Unfortunately, another important changed in the area affected by the rule tion for the judicial review of a rule, the pri- since the rule was last reviewed under this vacy impact analysis for such rule, including provision was not included in the bor- subsection. an analysis prepared or corrected pursuant der security legislation, the extension ‘‘(2) PLAN REQUIRED.—Each agency shall to paragraph (4), shall constitute part of the of section 245(i). It would allow fami- carry out the periodic review required by entire record of agency action in connection lies to stay together in this country paragraph (1) in accordance with a plan pub- with such review. while waiting to become permanent lished by such agency in the Federal Reg- ‘‘(7) EXCLUSIVITY.—Compliance or non- residents. ister. Each such plan shall provide for the re- compliance by an agency with the provisions As I have said on many occasions, I view under this subsection of each rule pro- of this section shall be subject to judicial re- mulgated by the agency not later than 10 view only in accordance with this sub- am strongly committed to a meaning- years after the date on which such rule was section. ful 245(i) extension. Regrettably, the published as the final rule and, thereafter, ‘‘(8) SAVINGS CLAUSE.—Nothing in this sub- House waited 6 months to act on 245(i) not later than 10 years after the date on section bars judicial review of any other im- legislation that the Senate passed last which such rule was last reviewed under this pact statement or similar analysis required September. This delay meant that key subsection. The agency may amend such by any other law if judicial review of such provisions in the bill became unwork- plan at any time by publishing the revision statement or analysis is otherwise permitted in the Federal Register. able. The House-passed version con- by law. tained hard deadlines that would have ‘‘(3) ANNUAL PUBLICATION.—Each year, each ‘‘(g) DEFINITION.—In this section, the term agency shall publish in the Federal Register ‘personally identifiable information’— required applicants to have established a list of the rules to be reviewed by such ‘‘(1) means information that can be used to familial or employment relationships agency under this subsection during the fol- identify an individual, including such indi- before August 2001. These deadlines lowing year. The list shall include a brief de- vidual’s name, address, telephone number, would have imposed impractical hur- scription of each such rule and the need for photograph, social security number or other dles for immigrant families to over- and legal basis of such rule and shall invite identifying information; and public comment upon the determination to come. ‘‘(2) includes information about such indi- Today, I am pleased to announce that be made under this subsection with respect vidual’s medical or financial condition.’’. to such rule. (b) PERIODIC REVIEW TRANSITION PROVI- I am introducing a new 245(i) extension ‘‘(f) JUDICIAL REVIEW.— SIONS.— bill that would remove these hard ‘‘(1) IN GENERAL.—For any rule subject to (1) INITIAL PLAN.—For each agency, the deadlines. My bill would move the ap- this section, an individual who is adversely plan required by subsection (e) of section plication deadline to April 30, 2003, and affected or aggrieved by final agency action 553a of title 5, United States Code (as added maintain current prohibitions against is entitled to judicial review of agency com- by subsection (a)), shall be published not pliance with the requirements of subsections fraudulent marriages and national se- later than 180 days after the date of enact- curity protections. (b) and (c) in accordance with chapter 7. ment of this Act. Agency compliance with subsection (d) shall This bill mirrors the version that was (2) PRIOR RULES.—In the case of a rule pro- be judicially reviewable in connection with mulgated by an agency before the date of the introduced by Senators HAGEL and judicial review of subsection (b). enactment of this Act, such plan shall pro- KENNEDY last spring, and it should re- ‘‘(2) JURISDICTION.—Each court having ju- vide for the periodic review of such rule be- ceive strong bipartisan support. I know risdiction to review such rule for compliance fore the expiration of the 10-year period be- both the President and Senator LOTT with section 553, or under any other provi- ginning on the date of the enactment of this sion of law, shall have jurisdiction to review have repeatedly expressed their desire Act. For any such rule, the head of the agen- any claims of noncompliance with sub- to pass 245(i) legislation. It is my hope cy may provide for a 1-year extension of such sections (b) and (c) in accordance with chap- that they will work with me to help period if the head of the agency, before the ter 7. Agency compliance with subsection (d) expiration of the period, certifies in a state- get it passed very soon. shall be judicially reviewable in connection ment published in the Federal Register that I ask unanimous consent that the with judicial review of subsection (b). reviewing such rule before the expiration of text of the bill be printed in the ‘‘(3) LIMITATIONS.— the period is not feasible. The head of the RECORD. ‘‘(A) An individual may seek such review during the period beginning on the date of agency may provide for additional 1-year ex- There being no objection, the bill was final agency action and ending 1 year later, tensions of the period pursuant to the pre- ordered to be printed in the RECORD, as except that where a provision of law requires ceding sentence, but in no event may the pe- follows: that an action challenging a final agency ac- riod exceed 15 years. (c) CONGRESSIONAL REVIEW.—Section S. 2493 tion be commenced before the expiration of 1 801(a)(1)(B) of title 5, United States Code, is Be it enacted by the Senate and House of Rep- year, such lesser period shall apply to an ac- amended— resentatives of the United States of America in tion for judicial review under this sub- (1) by redesignating clauses (iii) and (iv) as Congress assembled, section. clauses (iv) and (v), respectively; and ‘‘(B) In the case where an agency delays SECTION 1. SHORT TITLE. (2) by inserting after clause (ii) the fol- the issuance of a final privacy impact anal- This Act may be cited as the ‘‘Uniting lowing new clause: ysis pursuant to subsection (c), an action for Families Act of 2002’’. ‘‘(iii) the agency’s actions relevant to sec- judicial review under this section shall be SEC. 2. LIMITED EXTENSION OF SECTION 245(i) tion 553a;’’. filed not later than— PROGRAM. (d) CLERICAL AMENDMENT.—The table of (a) EXTENSION OF FILING DEADLINE.—Sec- ‘‘(i) 1 year after the date the analysis is sections at the beginning of chapter 5 of title tion 245(i)(1)(B)(i) of the Immigration and made available to the public; or 5, United States Code, is amended by adding Nationality Act (8 U.S.C. 1255(i)(1)(B)(i)) is ‘‘(ii) where a provision of law requires that after the item relating to section 553 the fol- amended by striking ‘‘on or before April 30, an action challenging a final agency regula- lowing: tion be commenced before the expiration of 2001’’ and inserting ‘‘on or before April 30, ‘‘553a. Privacy impact analysis in rule- the 1-year period, the number of days speci- 2003’’. making.’’. fied in such provision of law that is after the (b) EXCLUSION OF CERTAIN INADMISSIBLE AND DEPORTABLE ALIENS.—The amendment date the analysis is made available to the By Mr. DASCHLE (for himself, public. made by subsection (a) shall not apply to ‘‘(4) RELIEF.—In granting any relief in an Mr. KENNEDY, and Mr. DODD): any alien who is— action under this subsection, the court shall S. 2493. A bill to amend the immigra- (1) inadmissible under section 212(a)(3), or order the agency to take corrective action tion and Nationality Act to provide a deportable under section 237(a)(4), of the Im- consistent with this section and chapter 7, limited extension of the program under migration and Nationality Act (relating to including, but not limited to— section 245(i) of that Act; to the Com- security and related grounds); or ‘‘(A) remanding the rule to the agency; and mittee on the Judiciary. (2) deportable under section 237(a)(1)(G) of ‘‘(B) deferring the enforcement of the rule Mr. DASCHLE. Mr. President, yester- such Act (relating to marriage fraud). against individuals, unless the court finds day, the House passed the border secu- (c) EFFECTIVE DATE.—The amendment that continued enforcement of the rule is in rity legislation, and I expect it will be- made by subsection (a) shall apply to appli- the public interest. cants for adjustment of status who are ‘‘(5) RULE OF CONSTRUCTION.—Nothing in come law very soon. Passage of the beneficaries of petitions for classification or this subsection shall be construed to limit border security bill was an important applications for labor certifications filed be- the authority of any court to stay the effec- first step in moving forward with com- fore, on, or after the date of enactment of tive date of any rule or provision thereof prehensive immigration reform, and it this Act. S4156 CONGRESSIONAL RECORD — SENATE May 9, 2002 Mr. KENNEDY. Mr. President, since Mr. MCCAIN. Mr. President, I rise to from the City of Holbrook and a letter September 11, Congress has taken sig- introduce legislation to authorize ex- of support from NPCA be printed in the nificant steps to strengthen the secu- pansion of the Petrified Forest Na- RECORD. rity of our borders and improve our im- tional Park in Arizona. There being no objection, the mate- migration system. Last month, the The Petrified Forest National Park is rial was ordered to be printed in the Senate passed important legislation to a national treasure among the Nation’s RECORD, as follows: strengthen border security, improve parks, renowned for its large con- RESOLUTION NO. 00–15 our ability to screen foreign nationals, centration of highly colored petrified A RESOLUTION OF THE CITY OF HOLBROOK, ARI- and enhance our ability to deter poten- wood, fossilized remains, and spectac- ZONA ENDORSING THE EXPANSION OF PET- tial terrorists. In addition, Senator ular landscapes. However, it is much RIFIED FOREST NATIONAL PARK BROWNBACK and I recently introduced more than a colorful, scenic vista, for Whereas, Petrified Forest National Park, legislation to restructure the Immigra- the Petrified Forest has been referred first established in 1906, is a priceless and ir- tion and Naturalization Service so that to as ‘‘one of the world’s greatest replaceable part of America’s heritage; and Whereas, Petrified Forest National Park the agency is better prepared to ad- storehouses of knowledge about life on contains a variety of significant natural and dress security concerns. earth when the Age of the Dinosaurs cultural resources, including portions of the As we work to respond to the secu- was just beginning.’’ Painted Desert and some of the most valu- rity issues before us, we can’t lose For anyone who has ever visited this able paleontological resources in the world; sight of the other immigration issues Park, one is quick to recognize the and that are still a priority. I’m pleased to wealth of scenic, scientific, and histor- Whereas, Petrified Forest National Park join Senator DASCHLE in moving for- ical values of this Park. Preserved de- has inspired and educated millions of visitors ward with one of those issues today by posits of petrified wood and related fos- from all over the world, and is cherished as introducing the Uniting Families Act a national treasure to be protected for the sils are among the most valuable rep- benefit and enjoyment of present and future of 2002. This legislation extends section resentations of Triassic-period terres- generations; and 245(i), a vital provision of U.S. immi- trial ecosystems in the world. These Whereas, the Chinle Formation which cre- gration law which allows individuals natural formations were deposited ates the spectacularly beautiful landscapes who already legally qualify for perma- more than 220 million years ago. Scenic of the Painted Desert, Blue Mesas, and other nent residency to process their applica- vistas, designated wilderness areas, and park features, is probably the best place in tions in the United States, without re- other historically significant sites of the world for studying the Triassic period of the earth’s history; and turning to their homes countries. pictographs and Native American ruins Without 245(i), immigrants are forced Whereas, globally and nationally signifi- are added dimensions to the Park. cant paleontological, archaeological, and to leave their families here in the U.S. The Petrified Forest was originally scenic resources directly related to the re- and risk separation from them for up designated as a National Monument by source values of Petrified Forest National to 10 years. Seventy-five percent of the former President Theodore Roosevelt Park, including approximately 70 percent of people who have used 245(i) are the in 1906 to protect the important nat- the Chinle Formation, are not included with- spouses and children of U.S. citizens ural and cultural resources of the in the current boundary; and Whereas, the newly approved General Man- and permanent residents. Extending Park, and later re-designated as a Na- this critical provision will help keep agement Plan for the park, prepared by the tional Park in 1962. While several National Park Service with broad public families together and help businesses boundary adjustments were made to retain critical workers. In addition, the input, has identified about 97,000 acres of the Park, a significant portion of un- land that, if included as part of the park, INS will receive millions of dollars in protected resources remain in outlying would lead to protection of the remainder of additional revenues, at no cost to tax- areas adjacent to the Park. this globally significant Chinle Formation, payers. A proposal to expand the Park’s along with highly significant archaeological Extending 245(i) does not provide any boundaries was recommended in the resources, and would protect the beautiful, loopholes for potential terrorists. In- Park’s General Management Plan in expansive vistas seen from the park; and stead, it will improve the monitoring Whereas, land use patterns in the area of 1992, in response to concerns about the the park are beginning to change, poten- of immigrants already residing in this long-term protection needs of globally country. Individuals who qualify for tially threatening the protection of the park significant resources and the Park’s and the broader setting in which it is placed; permanent residency and process their viewshed in nearby areas. For example, and applications in the U.S. are subject to one of the most concentrated deposits Whereas, implementing the General Man- rigorous background checks and inter- of petrified wood is found within the agement Plan is essential to carry out a vi- views. This process provides the gov- Chinle encarpment, of which only thir- sion for Petrified Forest National Park that ernment a good opportunity to inves- will better protect park resources, enhance ty percent is included within the cur- tigate individuals who are in this coun- research opportunities, broaden and diversify rent Park boundaries. try and determine whether they should visitor experiences, improve visitor service, Increasing reports of theft and van- be allowed to remain here. and help contribute to the sustainability of dalism around the Park have activated Section 245(i) does not provide am- the regional economy into the 21st century; the Park, local communities, and other and nesty to immigrants or any benefits to interested entities to seek additional Whereas, an excellent opportunity now ex- anyone suspected of marriage fraud. protections through a proposed bound- ists to include adjacent areas of significant The provision provides no protection ary expansion. It has been estimated resources inside the park boundary because from deportation if someone is here il- other landowners in the region, including the that visitors to the Park steal about 12 legally and no right to surpass other State of Arizona, and the Bureau of Land tons of petrified wood every year. immigrants waiting for visas. Management, and other private landowners The House passed legislation recently Other reports of destruction to archae- recognize the significance of the resources on to extend section 245(i), but it was too ological sites and gravesites have also their lands and have expressed interest in been documented. Based on these con- seeing them preserved in perpetuity for the restrictive to provide any meaningful benefit and inspiration of this and future assistance. The Uniting Families Act tinuing threats to resources intrinsic to the Park, the National Parks Con- generations: Now, therefore, be it will extend the filing deadline to April Resolved, That the City of Holbrook, Ari- 30, 2003, and provide needed and well- servation Association listed the Pet- zona, hereby recommends and supports the deserved relief to members of our im- rified Forest National Park on its list inclusion within Petrified Forest National migrant communities. of Top Ten Most Endangered Parks in Park of all lands identified in the park’s I urge my colleagues to join us in 2000. General Management Plan as desirable supporting this needed extension. Support for this proposed boundary boundary additions, and supports all con- expansion is extraordinary, from the tinuing efforts to enact legislation to accom- By Mr. MCCAIN: local community of Holbrook, sci- plish this task and to complete the federal S. 2494. A bill to revise the boundary entific and research institutions, state acquisition of this land. Be it further Resolved, That the Clerk of the City of Hol- of the Petrified Forest National Park tourism agencies, and environmental brook is directed to immediately transmit in the State of Arizona and for other groups, such as the National Park Con- this Resolution to the Governor of the State purposes; to the Committee on Energy servation Association, NPCA. I ask of Arizona, Arizona’s Congressional delega- and Natural Resources. unanimous consent that a resolution tion, and the Director of the National Park May 9, 2002 CONGRESSIONAL RECORD — SENATE S4157 Service, together with a letter requesting Last year, we urged Congress to approve areas, and it is my hope that necessary steps prompt and ongoing support for completing the park expansion. Since then, looters have will be taken to accomplish this program. the park expansion. wrecked about 400 gravesites near the park’s We have been fortunate to have foresighted eastern boundary. people in the past who have maintained this NATIONAL PARKS Congress has been understandably pre- wonderful place for us, and we must be CONSERVATION ASSOCIATION, occupied with other issues. But a critical equally diligent now to see that our children Washington, DC, May 9, 2002. window of opportunity is about to close. and grandchildren will have it to enjoy for Hon. JOHN MCCAIN, Elections are coming up, and Arizona’s years in the future. U.S. Senate, Russell Senate Office Bldg., Wash- new, larger delegation could take time to ington, DC. come together on this issue. Landowners Mr. MCCAIN. The legislation I am in- DEAR SENATOR MCCAIN: The National around Petrified Forest are tired of waiting troducing today is intended to serve as Parks Conservation Association (NPCA) to sell to the government and are beginning a placeholder bill for further develop- commends you for your leadership and vision to subdivide their land. The National Parks ment of a boundary expansion pro- in introducing the Petrified Forest National Conservation Association, and Albuquerque- posal. Several key issues remain that Park Expansion Act of 2002. Ever since NPCA based non-profit group, is running out of re- published a Park Boundary Study for various sources to push for the expansion. require resolution, including the exact national parks in 1988, we have been advo- And the destruction, of course, continues definition of the expanded boundary cating the need for this expansion. With pri- unabated. acreage, and the disposition, and pos- vate landowners anxious to sell their land, BOUNDARIES MISJUDGED sible acquisition, of private, Federal, we believe the time is ripe for this expan- When Petrified Forest was protected al- and State lands within the proposed ex- sion. most a century ago, originally as a national pansion area. It is hard to imagine a better example of monument, the goal was simple: Save some an outdoor classroom than Petrified Forest It’s encouraging to note that the four pretty fossilized wood. And that’s how the major landowners within the proposed National Park. This boundary expansion will boundaries were picked. ensure long-term protection of globally sig- Now we realize that area in northeastern boundary expansion area have ex- nificant paleontological resources, poten- Arizona is a treasure chest, with world-class pressed interest in the Park expansion. tially nationally significant archaeological paleontology, pueblo ruins, striking Other public landowners, primarily the resources where there is substantial evidence petroglyphs and, of course, the marvelous State of Arizona and the Bureau of of early habitation, and the park’s viewshed. trees that turned to stone millions of years Land Management, have recognized the It will also alleviate the threat of encroach- ago. significance of the paleontological re- ing incompatible development and will But without a park expansion, many of greatly enhance the National Park Service’s these treasures will remain outside the pro- sources on its lands adjacent to the capability to protect the resources from van- tection of federal law. Among them: Park. The Arizona State Trust Land dalism and illegal pothunting. The Chinle Escarpment, now only partially Department closed nearby State trust Just as Theodore Roosevelt recognized the within the park, has the world’s best terres- lands to both surface and subsurface importance of preserving this land when he trial fossils of plants and animals from the applications. Additionally, the Bureau proclaimed Petrified Forest a national late Triassic period, including early di- of Land Management has identified its monument in 1906, your legislation would en- nosaurs. The escarpment has yielded the ear- land-holdings within the proposed ex- sure that future generations can learn even liest known sample of amber. more from this amazing landscape that cap- Rainbow Forest Badlands are rich in fossils pansion area for disposal and possible ture’s the world’s best record of Triassic-pe- and include grazing land for the national transfer to the Park. riod terrestrial ecosystems and prehistoric park’s herd of pronghorn antelope Other issues involving additional pri- human occupation through an array of arti- Dead Wash Petroglyphs has panels of rock vate landholders and State trust lands facts and ‘‘trees turned to stone.’’ art and pueblo sites of prehistoric people. NPCA looks forward to working with you Canyon Butte, a dramatic landmark, in- must still be resolved. In particular, and your staff to advance this legislation. cludes pueblo ruins with signs of warfare. the State of Arizona has specific con- Sincerely, Expanding the park’s boundaries appears cerns which must be addressed as the THOMAS C. KIERNAN. unlikely to stir controversy in Congress. legislation moves through the process, Mr. MCCAIN. Mr. President, edi- Sen. Jon Kyl, R–Ariz., previously landed $2 particularly with regard to compensa- million in federal funding for land purchases. tion to the State for any acquisitions torials from Arizona State newspapers But we all know that the best ideas can get also encourage a boundary expansion lost in the blizzard of bills in Congress. of State trust lands by the Secretary of for the Park. I ask unanimous consent We applaud Hayworth and McCain for Interior, in keeping with the require- that articles from the Arizona Republic pressing forward with the park expansion. ments of State law. and the Holbrook Tribune News regard- While there’s still something left to save. I fully intend to address these issues ing the park expansion proposal be in consultation with affected entities [From the Holbrook (AZ) Tribune-News, Oct. printed in the RECORD. 27, 2000] and resolve any additional questions There being no objection, the edi- within a reasonable time-frame. A his- torials were ordered to be printed in PARK’S PROPOSED EXPANSION Now under study is a plan to expand the toric opportunity exists to alleviate the RECORD, as follows: Petrified Forest National Park’s boundaries major threats to these nationally sig- [From the Arizona Republic, May 3, 2002] by about 97,000 acres to afford protection to nificant resources and preserve them EXPANDING PETRIFIED FOREST CAN SAVE this priceless natural treasure. It deserves for our posterity. TREASURES—POTHUNTERS, LOOTERS RAV- our interest and support. I look forward to working with my AGING PARK AREA Thanks to the efforts of President Theo- colleagues on both sides of the aisle to Looters and pothunters are ravaging the dore Roosevelt and others back in 1906, the land around Petrified Forest National Park. park has been preserved for us to enjoy near- ensure swift consideration and enact- The property should be inside the park. A ly a century later. Now it is time to take the ment of this proposal. Time is of the decade ago, the Park Service decided Pet- necessary steps to protect the park for our essence to ensure the long-term protec- rified Forest’s boundaries should be ex- posterity. tion of these rare and important re- panded to include the priceless paleontology, The land involved surrounds the existing sources for the enjoyment and edu- archaeology and other resources in adjoining park. Some of it is publicly owned, and some cational value for future generations. areas. is privately owned. But the proposal has rarely gotten off the Presumably the public agencies owning I ask unanimous consent that the congressional back burner. property adjacent to the park understand text of the bill be printed in the Until now. Arizona Republicans Rep. J.D. Hayworth how important it is to enlarge the park and RECORD. and Sen. John McCain are preparing bills to offer protection to its resources. It is my un- There being no objection, the bill was expand Petrified Forest. The plan is to add derstanding that most, if not all, of the ordered to be printed in the RECORD, as 140,000 acres, more than doubling the 93,500- major private property owners also support follows: acre park. this expansion plan. They can’t move too fast. The problem is that as these privately S. 2494 The assets they’re trying to protect are owned parcels are subdivided, it makes it Be it enacted by the Senate and House of Rep- under heavy assault. more and more difficult to acquire the prop- resentatives of the United States of America in A pothunter recently smashed through an erty for the expansion. And each year, the Congress assembled, 800-year-old prehistoric Indian site while issue will become more difficult, with more searching for booty. Someone else unearthed owners to deal with. SECTION 1. SHORT TITLE. a massive petrified tree, nearly 5 feet in di- The addition of this acreage to the Pet- This Act may be cited as the ‘‘Petrified ameter, and prepared to hack it into market- rified Forest National Park will help pre- Forest National Park Expansion Act of able chunks. serve these natural and cultural heritage 2002’’. S4158 CONGRESSIONAL RECORD — SENATE May 9, 2002 SEC. 2. FINDINGS AND PURPOSE. Service administrative jurisdiction over any ing similar legislation through their (a) FINDINGS.—Congress finds that— land under the jurisdiction of the Secretary body. (1) the Petrified Forest National Park was that— I ask unanimous consent that the established— (1) is depicted on the map as being within text of the bill be printed in the (A) to preserve and interpret the globally the boundaries of the Park; and significant paleontological resources of the (2) is not under the administrative jurisdic- RECORD. Park that are generally regarded as the most tion of the National Park Service on the There being no objection, the bill was important record of the Triassic period in date of enactment of this Act. ordered to be printed in the RECORD, as natural history; and (c) GRAZING.— follows: (B) to manage those resources to retain (1) IN GENERAL.—The Secretary shall per- S. 2495 significant cultural, natural, and scenic val- mit the continuation of grazing on land Be it enacted by the Senate and House of Rep- ues; transferred to the Secretary under this Act, resentatives of the United States of America in (2) significant paleontological, archae- subject to applicable laws (including regula- Congress assembled, ological, and scenic resources directly re- tions) and Executive orders. SECTION 1. DESIGNATION. lated to the resource values of the Park are (2) TERMINATION OF LEASES OR PERMITS.— located in land areas adjacent to the bound- Nothing in this subsection prohibits the Sec- The United States courthouse located at aries of the Park; retary from accepting the voluntary termi- 100 Federal Plaza in Central Islip, New York, (3) those resources not included within the nation of a grazing permit or grazing lease shall be known and designated as the boundaries of the Park— within the Park. ‘‘Alfonse M. D’Amato United States Court- (A) are vulnerable to theft and desecration; (d) AMENDMENT TO GENERAL MANAGEMENT house’’. and PLAN.—Not later than 1 year after the date SEC. 2. REFERENCES. (B) are disappearing at an alarming rate; of enactment of this Act, the Secretary shall Any reference in a law, map, regulation, (4) the general management plan for the amend the general management plan for the document, paper, or other record of the Park includes a recommendation to expand Park to address the use and management of United States to the United States court- the boundaries of the Park and incorporate any additional land acquired under this Act. house referred to in section 1 shall be deemed additional globally significant paleontolog- SEC. 7. AUTHORIZATION OF APPROPRIATIONS. to be a reference to the ‘‘Alfonse M. D’Amato ical deposits in areas adjacent to the Park— There are authorized to be appropriated United States Courthouse’’. (A) to further protect nationally signifi- such sums as are necessary to carry out this cant archaeological sites; and Act. By Mr. BAUCUS (for himself and (B) to protect the scenic integrity of the Mr. GRASSLEY): landscape and viewshed of the Park; and By Mr. DOMENICI (for himself, S. 2498. A bill to amend the Internal (5) a boundary adjustment at the Park will Mr. BIDEN, Mr. LOTT, Mr. Revenue Code of 1986 to require ade- alleviate major threats to those nationally DASCHLE, Mr. SHELBY, Mr. REID, quate disclosure of transactions which significant resources. (b) PURPOSE.—The purpose of this Act is to Mr. NICKLES, Mr. TORRICELLI, have a potential for tax avoidance or authorize the Secretary of the Interior to ac- Mr. BURNS, Mr. SCHUMER, Mr. evasion, and for other purposes; to the quire 1 or more parcels of land— GREGG, Mrs. CLINTON, Mr. Committee on Finance. (1) to expand the boundaries of the Park; DEWINE, Mr. MCCAIN, Mr. Mr. BAUCUS. Mr. President, Garri- and MCCONNELL, Mr. CHAFEE, Mr. son Keillor is quoted as saying, ‘‘I be- (2) to protect the rare paleontological and ALLARD, Mr. BROWNBACK, Mr. lieve in looking reality straight in the archaeological resources of the Park. CRAPO, Mr. SANTORUM, Mr. eye and denying it.’’ That approach is SEC. 3. DEFINITIONS. In this Act: COCHRAN, Mr. BOND, Mrs. perhaps what some would like us to do (1) MAP.—The term ‘‘map’’ means the map HUTCHISON, Mr. THOMPSON, Ms. with respect to the increasing problem entitled ‘‘Proposed Boundary Adjustments, COLLINS, Mr. CRAIG, Mr. KYL, of the use of abusive tax shelters to Petrified Forest National Park’’, numbered Mr. ENSIGN, Mr. INHOFE, Mr. avoid or evade taxes. But I do not ll, and dated llll. ALLEN, Mr. HAGEL, Mr. agree. (2) PARK.—The term ‘‘Park’’ means the VOINOVICH, Mr. STEVENS, Mr. The Tax Shelter Transparency Act Petrified Forest National Park in the State. WARNER, Mr. SPECTER, Mr. that I introduce today doesn’t deny re- (3) SECRETARY.—The term ‘‘Secretary’’ SMITH of Oregon, Mr. BUNNING, ality, rather, it shines some trans- means the Secretary of the Interior. MITH parency on reality so that we have a (4) STATE.—The term ‘‘State’’ means the Mr. S of New Hampshire, State of Arizona. and Mr. INOUYE): better understanding of what is going SEC. 4. BOUNDARY REVISION. S. 2495. A bill to designate the United on out there. Following Enron’s bank- (a) IN GENERAL.—The boundary of the Park States courthouse located at 100 Fed- ruptcy, I think that all Americans is revised to include approximately lll eral Plaza in Central Islip, New York, have a greater appreciation for the acres, as generally depicted on the map. as the ‘‘Alfonse M. D’Amato United need for greater transparency in com- (b) AVAILABILITY OF MAP.—The map shall States Courthouse’’; to the Committee plex tax transactions. be on file and available for public inspection in the appropriate offices of the National on Environment and Public Works. The legislation is the product of over Park Service. Mr. DOMENICI. Mr. President, I rise 2 years of review and public comment. SEC. 5. ACQUISITION OF ADDITIONAL LAND. today to introduce a bill in honor of The Tax Shelter Transparency Act also (a) PRIVATE LAND.—The Secretary may ac- former Senator Alfonse M. D’Amato on incorporates tax shelter proposals re- quire from a willing seller, by purchase, ex- behalf of myself and 40 of my col- leased by the Department of the Treas- change, or by donation, any private land or leagues thus far. I am sure there will ury the day before the Senate Finance interests in private land within the revised be more. Committee’s March 21, 2002 hearing on boundary of the Park. It recently came to my attention (b) STATE LAND.— the subject. (1) IN GENERAL.—The Secretary may, with that the Federal courthouse in Central As I stated at the hearing, ‘‘the Fi- the consent of the State and in accordance Islip, Long Island, did not have a name nance Committee is committed to with State law, acquire from the State any so I thought to myself: What a shame. helping combat these carefully engi- State land or interests in State land within This beautiful new courthouse does not neered transactions. These trans- the revised boundary of the Park by pur- even have a name, and I concluded that actions have little or no economic sub- chase or exchange. it was time to rectify the oversight. stance, are designed to achieve unwar- (2) PLAN.—Not later than 2 years after the Who better than Alfonse D’Amato, a ranted tax benefits rather than busi- date of enactment of this Act, the Secretary shall, in coordination with the State, de- great Senator from New York, who had ness profit, and place honest corporate velop a plan for acquisition of State land or more than a little bit to do with pro- competitors at a disadvantage.’’ interests in State land identified for inclu- viding the people of the Empire State The proliferation of tax shelters has sion within the revised boundary of the with public buildings to conduct the been called ‘‘the most significant com- Park. business of government and justice. pliance problem currently confronting SEC. 6. ADMINISTRATION. Forty of my colleagues concur that we our system of self-assessment.’’ Less (a) IN GENERAL.—Subject to applicable ought to name this U.S. courthouse the than 2 years ago, there was a more laws, all land and interests in land acquired ‘‘Alfonse M. D’Amato United States positive outlook regarding the Govern- under this Act shall be administered by the Secretary as part of the Park. Courthouse.’’ I believe that is the right ment’s ability to curb the promotion (b) TRANSFER OF JURISDICTION.—The Sec- thing to do. I understand the U.S. Rep- and use of abusive tax shelters. The De- retary shall transfer to the National Park resentatives from New York are mov- partment of the Treasury and the IRS May 9, 2002 CONGRESSIONAL RECORD — SENATE S4159 issued regulations requiring disclosure posals to discourage their participation subject to a penalty of $10,000 for each of certain transactions and requiring in abusive tax transactions. additional business day that the re- developers and promoters of tax-engi- Reportable Listed Transactions are quested information is not provided. neered transactions to maintain cus- transactions specifically identified by The legislation adds a provision au- tomer lists. Also, the IRS had prevailed the Department of the Treasury as thorizing the Treasury Department to in several court cases against the use ‘‘tax avoidance transactions.’’ These censure tax advisors or impose mone- of transactions lacking in economic are transactions specifically classified tary sanctions against tax advisors and substance. by Treasury as bad transactions, essen- firms that participate in tax shelter ac- Unfortunately, the honesty and in- tially the worst of the worst. Failure tivities and practice before the IRS. tegrity of our tax system has suffered by the taxpayer to disclose the trans- I am pleased that this legislation is significant blows over the past 2 years. action results in a separate strict li- the product of working closely with my Court decisions have shifted from deci- ability, nonwaivable flat dollar penalty good friend, and the ranking member of sions tough on tax avoidance and eva- of $200,000 for large taxpayers and the Finance Committee, Senator sion to court defeats for the IRS. Also, $100,000 for small taxpayers. GRASSLEY. I appreciate Senator GRASS- there appears to be a lack of compli- Additionally, if the taxpayer is re- LEY’s cosponsorship of the Tax Shelter ance with the disclosure legislation quired to file with the Securities and Transparency Act and his commitment passed in 1997 and the subsequent regu- Exchange Commission, the penalty to work as a bipartisan front to shine lations. must be reported to the SEC. If the some light on these abusive tax shelter The corporate tax returns filed in taxpayer discloses the questionable transactions. 2001 are the first returns filed under transaction, they are not subject to the I ask unanimous consent that the the new tax shelter disclosure require- flat dollar penalty or the SEC report- text of the bill be printed in the ments. The administration provided ing. The SEC reporting requirement is RECORD. the Finance Committee with the re- a critical element to improving the dis- There being no objection, the bill was sults of their analysis of the disclosure closure of transactions. The amount of ordered to be printed in the RECORD, as data, including their analysis of what tax penalty is relatively insignificant follows: was not disclosed. to the tax benefits generated by abu- S. 2498 Only 272 transactions were disclosed sive tax shelter transactions. Corpora- Be it enacted by the Senate and House of Rep- by 99 corporate taxpayers. There are tions, however, have a strong incentive resentatives of the United States of America in approximately 100,000 corporate tax- not to trigger a penalty that must be Congress assembled, payers under the Large and Midsize SECTION 1. SHORT TITLE; AMENDMENT OF 1986 reported to the SEC. CODE; TABLE OF CONTENTS. Business Division at the IRS yet only Failure to disclose a reportable listed (a) SHORT TITLE.—This Act may be cited as 99 of them made a disclosure under the transaction that results in a tax under- the ‘‘Tax Shelter Transparency Act’’. current regime. Based on the Finance statement will be subject to a higher, (b) AMENDMENT OF 1986 CODE.—Except as Committee hearing, it is safe to say 30 percent, strict liability, nonwaivable otherwise expressly provided, whenever in that the administration, as did Con- accuracy-related penalty which must this Act an amendment or repeal is ex- gress, thought the number of disclo- be reported to the SEC. pressed in terms of an amendment to, or re- Reportable Avoidance Transactions peal of, a section or other provision, the ref- sures would be much greater. erence shall be considered to be made to a Clearly, the past method of reactive, are transactions that fall into one of section or other provision of the Internal ad-hoc closing down of abusive trans- the several objective criteria estab- Revenue Code of 1986. actions does little to discourage the lished by the Department of the Treas- (c) TABLE OF CONTENTS.— creation and exploitation of many shel- ury which have a potential for tax Sec. 1. Short title; amendment of 1986 code; ters. avoidance or evasion. Based on current table of contents. These transactions may be good for a regulations and the proposals put for- TITLE I—TAXPAYER-RELATED corporation’s bottom line, but they are ward by the administration, we antici- PROVISIONS bad for the economy. Here’s why: abu- pate these transactions would include Sec. 101. Penalty for failing to disclose re- sive corporate tax shelters create a tax but would not be limited to: significant portable transaction. benefit without any corresponding eco- loss transactions; transactions with Sec. 102. Increase in accuracy-related pen- nomic benefit. There’s no new product. alties for listed transactions brief asset holding periods; trans- and other reportable trans- No technological innovation. Just a actions marketed under conditions of actions having a tax avoidance tax break. confidentiality; transactions subject to purpose. As with the Senate Finance Com- indemnification agreements; and trans- Sec. 103. Modifications of substantial under- mittee draft legislation released last actions with a certain amount of book- statement penalty for non- August, the Tax Shelter Transparency tax difference. reportable transactions. Act emphasizes disclosure. Disclosure Failure by the taxpayer to disclose Sec. 104. Tax shelter exception to confiden- is critical to the Government’s ability the questionable reportable avoidance tiality privileges relating to taxpayer communications. to identify and address abusive tax transaction results in a separate strict TITLE II—PROMOTER AND PREPARER avoidance and evasion arrangements. liability, nonwaivable flat dollar pen- RELATED PROVISIONS Under the bill, if the taxpayer has en- alty of $100,000 for large taxpayers and Subtitle A—Provisions Relating To tered into a questionable transaction $50,000 for small taxpayers. Reportable Transactions and fails to disclose the transaction, Reportable Avoidance Transactions Sec. 201. Disclosure of reportable trans- then the taxpayer is subject to tough are then subject to a filter to deter- actions. penalties for not disclosing and higher mine whether there is a significant Sec. 202. Modifications to penalty for failure penalties if an understatement results. purpose of tax avoidance. Transactions to register tax shelters. The legislation separates trans- entered into with a significant purpose Sec. 203. Modification of penalty for failure actions into one of three types of of tax avoidance are subject to harsher to maintain lists of investors. Sec. 204. Modification of actions to enjoin transactions for purposes of disclosure treatment in the form of higher pen- specified conduct related to tax and penalties: Reportable Listed Trans- alties. shelters and reportable trans- actions, Reportable Avoidance Trans- The legislation enhances the Govern- actions. actions, and a catch-all category for ment’s ability to enjoin promoters. Subtitle B—Other Provisions Other Transactions. The legislation Most significantly, the legislation in- Sec. 211. Understatement of taxpayer’s li- also addresses the role of each of the creases the penalty imposed on tax ability by income tax return players involved in abusive tax shel- shelter promoters who refuse to main- preparer. ters: including the taxpayer who buys, tain lists of their tax shelter investors. Sec. 212. Report on effectiveness of penalty the promoter who markets, and the tax If a promoter fails to provide the IRS on failure to report interests in advisor who provides an opinion ‘‘en- with a list of investors in a reportable foreign financial accounts. Sec. 213. Frivolous tax submissions. dorsing’’ the tax-engineered arrange- transaction within 20 days after receipt Sec. 214. Regulation of individuals prac- ment. The legislation focuses on each of a written request by the IRS to pro- ticing before the Department of of these participants and contains pro- vide such a list, the promoter would be Treasury. S4160 CONGRESSIONAL RECORD — SENATE May 9, 2002 Sec. 215. Penalty on promoters of tax shel- transaction at a rate prescribed under sec- capital losses which would (without regard ters. tion 6662(i)(3), to section 1211) be allowed for such year, TITLE I—TAXPAYER-RELATED the requirement to pay such penalty shall be shall be treated as an increase in taxable in- PROVISIONS disclosed in such reports filed by such person come. ‘‘(2) ITEMS TO WHICH SUBSECTION APPLIES.— SEC. 101. PENALTY FOR FAILING TO DISCLOSE for such periods as the Secretary shall speci- REPORTABLE TRANSACTION. fy. Failure to make a disclosure in accord- This subsection shall apply to any item (a) IN GENERAL.—Part I of subchapter B of ance with the preceding sentence shall be which is attributable to— chapter 68 (relating to assessable penalties) treated as a failure to which the penalty ‘‘(A) any listed transaction, or is amended by inserting after section 6707 under subsection (b)(2) applies. ‘‘(B) any reportable transaction (other the following new section: ‘‘(e) COORDINATION WITH OTHER PEN- than a listed transaction) if a significant ALTIES purpose of such transaction is the avoidance ‘‘SEC. 6707A. PENALTY FOR FAILURE TO INCLUDE .—The penalty imposed by this section REPORTABLE TRANSACTION INFOR- is in addition to any penalty imposed under or evasion of Federal income tax. MATION WITH RETURN OR STATE- section 6662.’’ ‘‘(3) HIGHER PENALTY FOR NONDISCLOSED MENT. (b) CONFORMING AMENDMENT.—The table of LISTED AND OTHER AVOIDANCE TRANS- ‘‘(a) IMPOSITION OF PENALTY.—Any person sections for part I of subchapter B of chapter ACTIONS.—In the case of any portion of a re- who fails to include with any return or state- 68 is amended by inserting after the item re- portable transaction income tax understate- ment any information required to be in- lating to section 6707 the following: ment attributable to a transaction to which cluded under subchapter A of chapter 61 with ‘‘Sec. 6707A. Penalty for failure to include re- section 6664(c)(1) does not apply by reason of respect to a reportable transaction shall pay portable transaction informa- section 6664(c)(2)(A), the rate of tax under a penalty in the amount determined under tion with return or statement.’’ subsection (a)(2) shall be increased by 5 per- subsection (b). cent (10 percent in the case of a listed trans- (c) EFFECTIVE DATE.—The amendments ‘‘(b) AMOUNT OF PENALTY.— action). made by this section shall apply to trans- ‘‘(1) IN GENERAL.—Except as provided in ‘‘(4) DEFINITIONS AND SPECIAL RULES.—For paragraphs (2) and (3), the amount of the actions entered into after the date of the en- purposes of this subsection— penalty under subsection (a) shall be $50,000. actment of this Act. ‘‘(A) REPORTABLE AND LISTED TRANS- ‘‘(2) LISTED TRANSACTION.—The amount of SEC. 102. INCREASE IN ACCURACY-RELATED PEN- ACTIONS.—The terms ‘reportable transaction’ the penalty under subsection (a) with respect ALTIES FOR LISTED TRANSACTIONS and ‘listed transaction’ have the respective AND OTHER REPORTABLE TRANS- to a listed transaction shall be $100,000. ACTIONS HAVING A TAX AVOIDANCE meanings given to such terms by section ‘‘(3) INCREASE IN PENALTY FOR LARGE ENTI- PURPOSE. 6707A(c). TIES AND HIGH NET WORTH INDIVIDUALS.— (a) INCREASE IN PENALTY.—Subsection (a) ‘‘(B) COORDINATION WITH DETERMINATIONS ‘‘(A) IN GENERAL.—In the case of a failure of section 6662 (relating to imposition of pen- OF WHETHER OTHER UNDERSTATEMENTS ARE under subsection (a) by— alty) is amended to read as follows: SUBSTANTIAL.—Reportable transaction in- ‘‘(i) a large entity, or ‘‘(a) IMPOSITION OF PENALTY.— come tax understatements shall be taken ‘‘(ii) a high net worth individual, ‘‘(1) IN GENERAL.—If this section applies to into account under subsection (d)(1) in deter- the penalty under paragraph (1) or (2) shall any portion of an underpayment of tax re- mining whether any understatement (which be twice the amount determined without re- quired to be shown on a return, there shall is not a reportable transaction income tax gard to this paragraph. be added to the tax an amount equal to 20 understatement) is a substantial understate- ‘‘(B) LARGE ENTITY.—For purposes of sub- percent of the portion of the underpayment ment. paragraph (A), the term ‘large entity’ means, to which this section applies. ‘‘(C) SPECIAL RULE FOR AMENDED RE- with respect to any taxable year, a person ‘‘(2) UNDERSTATEMENT OF INCOME TAX AT- TURNS.—Except as provided in regulations, in (other than a natural person) with gross re- TRIBUTABLE TO LISTED TRANSACTIONS OR no event shall any tax treatment included ceipts for the taxable year or the preceding OTHER REPORTABLE TRANSACTIONS HAVING A with an amendment or supplement to a re- taxable year in excess of $10,000,000. Rules SIGNIFICANT TAX AVOIDANCE PURPOSE.—If a turn of tax be taken into account in deter- similar to the rules of paragraph (2) and sub- taxpayer has a reportable transaction in- mining the amount of any reportable trans- paragraphs (B), (C), and (D) of paragraph (3) come tax understatement (as defined in sub- action income tax understatement if the of section 448(c) shall apply for purposes of section (i)) for any taxable year, there shall amendment or supplement is filed after the this subparagraph. be added to the tax an amount equal to 20 earlier of the date the taxpayer is first con- ‘‘(C) HIGH NET WORTH INDIVIDUAL.—The percent of the amount of the understate- tacted by the Secretary regarding the exam- term ‘high net worth individual’ means a ment. Except as provided in subsection ination of the return or such other date as is natural person whose net worth exceeds (i)(4)(B), such understatement shall not be specified by the Secretary.’’ $2,000,000. taken into account for purposes of paragraph (c) REASONABLE CAUSE EXCEPTION.—Sub- ‘‘(c) DEFINITIONS.—For purposes of this (1).’’ section (c) of section 6664 (relating to reason- section— (b) REPORTABLE TRANSACTION INCOME TAX able cause exception) is amended by redesig- ‘‘(1) REPORTABLE TRANSACTION.—The term UNDERSTATEMENT.—Section 6662 (relating to nating paragraphs (2) and (3) as paragraphs ‘reportable transaction’ means any trans- imposition of accuracy-related penalty) is (4) and (5), respectively, and by inserting action with respect to which information is amended by adding at the end the following after paragraph (1) the following new para- required under subchapter A of chapter 61 to new subsection: graphs: be included with a taxpayer’s return or ‘‘(i) UNDERSTATEMENT OF INCOME TAX AT- ‘‘(2) SPECIAL RULES FOR UNDERSTATEMENTS statement because, as determined under reg- TRIBUTABLE TO LISTED TRANSACTIONS AND ATTRIBUTABLE TO LISTED AND CERTAIN OTHER ulations prescribed under section 6011, such OTHER REPORTABLE TRANSACTIONS HAVING A TAX AVOIDANCE TRANSACTIONS.—Paragraph (1) transaction is of a type which the Secretary SIGNIFICANT TAX AVOIDANCE PURPOSE.— shall not apply to the portion of any report- determines as having a potential for tax ‘‘(1) REPORTABLE TRANSACTION INCOME TAX able transaction income tax understatement avoidance or evasion. UNDERSTATEMENT.—For purposes of sub- attributable to an item referred to in section ‘‘(2) LISTED TRANSACTION.—Except as pro- section (a)(2), the term ‘reportable trans- 6662(i)(2) unless— vided in regulations, the term ‘listed trans- action income tax understatement’ means ‘‘(A) the relevant facts affecting the tax action’ means a reportable transaction— the sum of— treatment of such item are adequately dis- ‘‘(A) which is the same as, or similar to, a ‘‘(A) the product of— closed in accordance with the regulations transaction specifically identified by the ‘‘(i) the amount of the increase (if any) in prescribed under section 6011, Secretary as a tax avoidance transaction for taxable income which results from a dif- ‘‘(B) there is or was substantial authority purposes of section 6011, or ference between the taxpayer’s treatment of for such treatment, and ‘‘(B) which is expected to produce a tax re- items to which this subsection applies (as ‘‘(C) the taxpayer reasonably believed that sult which is the same as, or similar to, the shown on the taxpayer’s return of tax) and such treatment was more likely than not the tax result in a transaction which is so speci- the proper tax treatment of such items, and proper treatment. fied. ‘‘(ii) the highest rate of tax imposed by ‘‘(3) RULES RELATING TO REASONABLE BE- ‘‘(d) PENALTY REPORTED TO SEC.—In the section 1 (section 11 in the case of a taxpayer LIEF.—For purposes of paragraph (2)(C)— case of a person— which is a corporation), and ‘‘(A) IN GENERAL.—A taxpayer shall be ‘‘(1) which is required to file periodic re- ‘‘(B) the amount of the decrease (if any) in treated as having a reasonable belief with re- ports under section 13 or 15(d) of the Securi- the credits allowed against the tax imposed spect to the tax treatment of an item only if ties Exchange Act of 1934 or is required to be by subtitle A which results from a difference such belief— consolidated with another person for pur- between the taxpayer’s treatment of items ‘‘(i) is based on the facts and law that exist poses of such reports, and to which this subsection applies (as shown on at the time the return of tax which includes ‘‘(2) which— the taxpayer’s return of tax) and the proper such tax treatment is filed, and ‘‘(A) is required to pay a penalty with re- tax treatment of such items. ‘‘(ii) relates solely to the taxpayer’s spect to a listed transaction under this sec- For purposes of subparagraph (A), any reduc- chances of success on the merits of such tion, or tion of the excess of deductions allowed for treatment and does not take into account ‘‘(B) is required to pay a penalty under sec- the taxable year over gross income for such the possibility that a return will not be au- tion 6662(a)(2) with respect to any reportable year, and any reduction in the amount of dited, such treatment will not be raised on May 9, 2002 CONGRESSIONAL RECORD — SENATE S4161

audit, or such treatment will be resolved (b) REDUCTION FOR UNDERSTATEMENT OF carrying out the transaction (or such later through settlement if it is raised. TAXPAYER DUE TO POSITION OF TAXPAYER OR date as the Secretary may prescribe). ‘‘(B) CERTAIN OPINIONS MAY NOT BE RELIED DISCLOSED ITEM.— ‘‘(b) DEFINITIONS.—For purposes of this UPON.— (1) IN GENERAL.—Section 6662(d)(2)(B)(i) (re- section— ‘‘(i) IN GENERAL.—An opinion of a tax advi- lating to substantial authority) is amended ‘‘(1) MATERIAL ADVISOR.—The term ‘mate- sor may not be relied upon to establish the to read as follows: rial advisor’ means any person— reasonable belief of a taxpayer if— ‘‘(i) the tax treatment of any item by the ‘‘(A) who provides any material aid, assist- ‘‘(I) the tax advisor is described in clause taxpayer if the taxpayer had reasonable be- ance, or advice with respect to organizing, (ii), or lief that the tax treatment was more likely promoting, selling, implementing, or car- ‘‘(II) the opinion is described in clause (iii). than not the proper treatment, or’’. rying out any reportable transaction, and ‘‘(ii) DISQUALIFIED TAX ADVISORS.—A tax (2) CONFORMING AMENDMENT.—Section ‘‘(B) who directly or indirectly derives advisor is described in this clause if the tax 6662(d) is amended by adding at the end the gross income from such advice or assistance. advisor is a material advisor (within the following new paragraph: ‘‘(2) REPORTABLE TRANSACTION.—The term meaning of section 6111(b)(1)) who— ‘‘(3) SECRETARIAL LIST.—For purposes of ‘reportable transaction’ has the meaning ‘‘(I) is compensated directly or indirectly this subsection, section 6664(c)(2), and sec- given to such term by section 6707A(c). by another material advisor with respect to tion 6694(a)(1), the Secretary may prescribe a the transaction, list of positions— ‘‘(c) REGULATIONS.—The Secretary may ‘‘(II) has a contingent fee arrangement ‘‘(A) for which the Secretary believes there prescribe regulations which provide— with respect to the transaction, is not substantial authority or there is no ‘‘(1) that only 1 person shall be required to ‘‘(III) has any type of referral agreement or reasonable belief that the tax treatment is meet the requirements of subsection (a) in other similar agreement or understanding more likely than not the proper tax treat- cases in which 2 or more persons would oth- with another material advisor which relates ment, and erwise be required to meet such require- to the transaction, or ‘‘(B) which affect a significant number of ments, ‘‘(IV) has any other characteristic which, taxpayers. ‘‘(2) exemptions from the requirements of as determined under regulations prescribed this section, and Such list (and any revisions thereof) shall be ‘‘(3) such rules as may be necessary or ap- by the Secretary, is indicative of a potential published in the Federal Register or the In- conflict of interest or compromise of inde- propriate to carry out the purposes of this ternal Revenue Bulletin.’’ section.’’ pendence. (c) EFFECTIVE DATE.—The amendments ‘‘(iii) DISQUALIFIED OPINIONS.—An opinion made by this section shall apply to taxable (b) CONFORMING AMENDMENTS.— is described in this clause if the opinion— years beginning after the date of the enact- (1) The item relating to section 6111 in the ‘‘(I) is based on unreasonable factual or ment of this Act. table of sections for subchapter B of chapter legal assumptions (including assumptions as 61 is amended to read as follows: SEC. 104. TAX SHELTER EXCEPTION TO CON- to future events), FIDENTIALITY PRIVILEGES RELAT- ‘‘Sec. 6111. Disclosure of reportable trans- ‘‘(II) unreasonably relies on representa- ING TO TAXPAYER COMMUNICA- tions, statements, findings, or agreements of TIONS. actions.’’ the taxpayer or any other person, (a) IN GENERAL.—Section 7525(b) (relating (2)(A) So much of section 6112 as precedes ‘‘(III) does not identify and consider all rel- to section not to apply to communications subsection (c) thereof is amended to read as evant facts, or regarding corporate tax shelters) is amended follows: ‘‘(IV) fails to meet any other requirement to read as follows: as the Secretary may prescribe.’’ ‘‘SEC. 6112. MATERIAL ADVISORS OF REPORT- ‘‘(b) SECTION NOT TO APPLY TO COMMUNICA- ABLE TRANSACTIONS MUST KEEP (d) CONFORMING AMENDMENTS.— TIONS REGARDING TAX SHELTERS.—The privi- LISTS OF ADVISEES. (1) Subparagraph (C) of section 461(i)(3) is lege under subsection (a) shall not apply to ‘‘(a) IN GENERAL.—Each material advisor amended by striking ‘‘section any written communication which is— (as defined in section 6111) with respect to 6662(d)(2)(C)(iii)’’ and inserting ‘‘section ‘‘(1) between a federally authorized tax any reportable transaction (as defined in sec- 1274(b)(3)(C)’’. practitioner and— tion 6707A(c)) shall maintain (in such man- (2) Paragraph (3) of section 1274(b) is ‘‘(A) any person, ner as the Secretary may by regulations pre- amended— ‘‘(B) any director, officer, employee, agent, scribe) a list— (A) by striking ‘‘(as defined in section or representative of the person, or ‘‘(1) identifying each person with respect to 6662(d)(2)(C)(iii))’’ in subparagraph (B)(i), and ‘‘(C) any other person holding a capital or whom such advisor acted as such a material (B) by adding at the end the following new profits interest in the person, and advisor with respect to such transaction, and subparagraph: ‘‘(2) in connection with the promotion of ‘‘(2) containing such other information as ‘‘(C) TAX SHELTER.—For purposes of sub- the direct or indirect participation of the the Secretary may by regulations require.’’ paragraph (B), the term ‘tax shelter’ means— person in any tax shelter (as defined in sec- (B) Section 6112 is amended by redesig- ‘‘(i) a partnership or other entity, tion 1274(b)(3)(C)).’’ nating subsection (c) as subsection (b). ‘‘(ii) any investment plan or arrangement, (b) EFFECTIVE DATE.—The amendment (C) Section 6112(b)(1)(A), as redesignated by or made by this section shall apply to commu- subparagraph (B), is amending by inserting ‘‘(iii) any other plan or arrangement, nications made on or after the date of the ‘‘written’’ before ‘‘request’’. enactment of this Act. if a significant purpose of such partnership, (D) The item relating to section 6112 in the entity, plan, or arrangement is the avoid- TITLE II—PROMOTER AND PREPARER table of sections for subchapter B of chapter ance or evasion of Federal income tax.’’ RELATED PROVISIONS 61 is amended to read as follows: (3) Section 6662(d)(2) is amended by strik- Subtitle A—Provisions Relating To ing subparagraphs (C) and (D). Reportable Transactions ‘‘Sec. 6112. Material advisors of reportable (4) Subsection (b) of section 7525 is amend- transactions must keep lists of SEC. 201. DISCLOSURE OF REPORTABLE TRANS- ed by striking ‘‘section 6662(d)(2)(C)(iii)’’ and advisees.’’ inserting ‘‘section 1274(b)(3)(C)’’. ACTIONS. (a) IN GENERAL.—Section 6111 (relating to (3)(A) The heading for section 6708 is (e) EFFECTIVE DATE.—The amendments made by this section shall apply to taxable registration of tax shelters) is amended to amended to read as follows: years ending after the date of the enactment read as follows: ‘‘SEC. 6708. FAILURE TO MAINTAIN LISTS OF of this Act. ‘‘SEC. 6111. DISCLOSURE OF REPORTABLE TRANS- ADVISEES WITH RESPECT TO RE- ACTIONS. PORTABLE TRANSACTIONS.’’ SEC. 103. MODIFICATIONS OF SUBSTANTIAL UN- DERSTATEMENT PENALTY FOR NON- ‘‘(a) IN GENERAL.—Each material advisor (B) The item relating to section 6708 in the REPORTABLE TRANSACTIONS. with respect to any reportable transaction table of sections for part I of subchapter B of (a) SUBSTANTIAL UNDERSTATEMENT OF COR- shall make a return (in such form as the Sec- chapter 68 is amended to read as follows: PORATIONS.—Section 6662(d)(1)(B) (relating to retary may prescribe) setting forth— special rule for corporations) is amended to ‘‘(1) information identifying and describing ‘‘Sec. 6708. Failure to maintain lists of read as follows: the transaction, advisees with respect to report- ‘‘(B) SPECIAL RULE FOR CORPORATIONS.—In ‘‘(2) information describing the advice pro- able transactions.’’ vided by such advisor, including any poten- the case of a corporation other than an S (c) EFFECTIVE DATE.—The amendments tial tax benefits represented to result from corporation or a personal holding company made by this section shall apply to trans- the transaction, and (as defined in section 542), there is a substan- actions entered into after the date of the en- ‘‘(3) such other information as the Sec- tial understatement of income tax for any actment of this Act. taxable year if the amount of the understate- retary may prescribe. ment for the taxable year exceeds the lesser Such return shall be filed on the first busi- SEC. 202. MODIFICATIONS TO PENALTY FOR FAIL- of— ness day following the earliest date on which URE TO REGISTER TAX SHELTERS. ‘‘(i) 10 percent of the tax required to be such advisor provides any material aid, as- (a) IN GENERAL.—Section 6707 (relating to shown on the return for the taxable year, or sistance, or advice with respect to orga- failure to furnish information regarding tax ‘‘(ii) $10,000,000.’’ nizing, promoting, selling, implementing, or shelters) is amended to read as follows: S4162 CONGRESSIONAL RECORD — SENATE May 9, 2002 ‘‘SEC. 6707. FAILURE TO FURNISH INFORMATION specified conduct. The court may exercise its to improve such requirements and the en- REGARDING REPORTABLE TRANS- jurisdiction over such action (as provided in forcement of such requirements. ACTIONS. section 7402(a)) separate and apart from any SEC. 213. FRIVOLOUS TAX SUBMISSIONS. ‘‘(a) IN GENERAL.—If a person who is re- other action brought by the United States quired to file a return under section 6111(a) (a) CIVIL PENALTIES.—Section 6702 is against such person. amended to read as follows: with respect to any reportable transaction— ‘‘(b) ADJUDICATION AND DECREE.—In any ac- ‘‘(1) fails to file such return on or before tion under subsection (a), if the court finds— ‘‘SEC. 6702. FRIVOLOUS TAX SUBMISSIONS. the date prescribed therefor, or ‘‘(1) that the person has engaged in any ‘‘(a) CIVIL PENALTY FOR FRIVOLOUS TAX RE- ‘‘(2) files false or incomplete information specified conduct, and TURNS.—A person shall pay a penalty of with the Secretary with respect to such ‘‘(2) that injunctive relief is appropriate to $5,000 if— transaction, prevent recurrence of such conduct, ‘‘(1) such person files what purports to be a such person shall pay a penalty with respect the court may enjoin such person from en- return of a tax imposed by this title but to such return in the amount determined gaging in such conduct or in any other activ- which— under subsection (b). ity subject to penalty under this title. ‘‘(A) does not contain information on ‘‘(b) AMOUNT OF PENALTY.— ‘‘(c) SPECIFIED CONDUCT.—For purposes of which the substantial correctness of the self- ‘‘(1) IN GENERAL.—Except as provided in this section, the term ‘specified conduct’ assessment may be judged, or paragraph (2), the penalty imposed under means any action, or failure to take action, ‘‘(B) contains information that on its face subsection (a) with respect to any failure subject to penalty under section 6700, 6701, indicates that the self-assessment is substan- shall be $50,000. 6707, or 6708.’’ tially incorrect; and ‘‘(2) LISTED TRANSACTIONS.—The penalty (b) CONFORMING AMENDMENTS.— ‘‘(2) the conduct referred to in paragraph imposed under subsection (a) with respect to (1) The heading for section 7408 is amended (1)— any listed transaction shall be an amount to read as follows: ‘‘(A) is based on a position which the Sec- equal to the greater of— ‘‘SEC. 7408. ACTIONS TO ENJOIN SPECIFIED CON- retary has identified as frivolous under sub- ‘‘(A) $200,000, or DUCT RELATED TO TAX SHELTERS section (c), or ‘‘(B) 50 percent of the fees paid to such per- AND REPORTABLE TRANSACTIONS.’’ ‘‘(B) reflects a desire to delay or impede son with respect to aid, assistance, or advice (2) The table of sections for subchapter A the administration of Federal tax laws. which is provided with respect to the report- of chapter 67 is amended by striking the item ‘‘(b) CIVIL PENALTY FOR SPECIFIED FRIVO- able transaction before the date the return is relating to section 7408 and inserting the fol- LOUS SUBMISSIONS.— filed under section 6111. lowing new item: ‘‘(1) IMPOSITION OF PENALTY.—Except as Subparagraph (B) shall be applied by sub- ‘‘Sec. 7408. Actions to enjoin specified provided in paragraph (3), any person who stituting ‘75 percent’ for ‘50 percent’ in the conduct related to tax shelters submits a specified frivolous submission case of an intentional failure or act de- and reportable transactions.’’ shall pay a penalty of $5,000. scribed in subsection (a). (c) EFFECTIVE DATE.—The amendment ‘‘(2) SPECIFIED FRIVOLOUS SUBMISSION.—For ‘‘(c) REPORTABLE AND LISTED TRANS- made by this section shall take effect on the purposes of this section— ACTIONS.—The terms ‘reportable transaction’ day after the date of the enactment of this ‘‘(A) SPECIFIED FRIVOLOUS SUBMISSION.— and ‘listed transaction’ have the respective Act. The term ‘specified frivolous submission’ meanings given to such terms by section means a specified submission if any portion Subtitle B—Other Provisions 6707A(c).’’ of such submission— (b) CLERICAL AMENDMENT.—The item relat- SEC. 211. UNDERSTATEMENT OF TAXPAYER’S LI- ‘‘(i) is based on a position which the Sec- ing to section 6707 in the table of sections for ABILITY BY INCOME TAX RETURN retary has identified as frivolous under sub- PREPARER. part I of subchapter B of chapter 68 is section (c), or (a) STANDARDS CONFORMED TO TAXPAYER amended by striking ‘‘tax shelters’’ and in- ‘‘(ii) reflects a desire to delay or impede serting ‘‘reportable transactions’’. STANDARDS.—Section 6694(a) (relating to un- derstatements due to unrealistic positions) the administration of Federal tax laws. (c) EFFECTIVE DATE.—The amendments PECIFIED SUBMISSION.—The term is amended— ‘‘(B) S made by this section shall apply to failures ‘specified submission’ means— (1) by striking ‘‘realistic possibility of occurring after the date of the enactment of ‘‘(i) a request for a hearing under— being sustained on its merits’’ in paragraph this Act. ‘‘(I) section 6320 (relating to notice and op- (1) and inserting ‘‘reasonable belief that the SEC. 203. MODIFICATION OF PENALTY FOR FAIL- portunity for hearing upon filing of notice of tax treatment in such position was more URE TO MAINTAIN LISTS OF INVES- lien), or likely than not the proper treatment’’, TORS. ‘‘(II) section 6330 (relating to notice and (2) by striking ‘‘or was frivolous’’ in para- (a) IN GENERAL.—Subsection (a) of section opportunity for hearing before levy), and graph (3) and inserting ‘‘or there was no rea- 6708 is amended to read as follows: ‘‘(ii) an application under— sonable basis for the tax treatment of such ‘‘(a) IMPOSITION OF PENALTY.— ‘‘(I) section 7811 (relating to taxpayer as- position’’, and ‘‘(1) IN GENERAL.—If any person who is re- sistance orders), (3) by striking ‘‘UNREALISTIC’’ in the head- quired to maintain a list under section ‘‘(II) section 6159 (relating to agreements ing and inserting ‘‘IMPROPER’’. 6112(a) fails to make such list available to for payment of tax liability in installments), (b) AMOUNT OF PENALTY.—Section 6694 is the Secretary in accordance with section or 6112(b)(1)(A) within 20 days after the date of amended— (1) by striking ‘‘$250’’ in subsection (a) and ‘‘(III) section 7122 (relating to com- the Secretary’s request, such person shall promises). pay a penalty of $10,000 for each day of such inserting ‘‘$1,000’’, and ‘‘(3) OPPORTUNITY TO WITHDRAW SUBMIS- failure after such 20th day. (2) by striking ‘‘$1,000’’ in subsection (b) SION.—If the Secretary provides a person ‘‘(2) REASONABLE CAUSE EXCEPTION.—No and inserting ‘‘$5,000’’. (c) EFFECTIVE DATE.—The amendments with notice that a submission is a specified penalty shall be imposed by paragraph (1) frivolous submission and such person with- with respect to the failure on any day if such made by this section shall apply to docu- ments prepared after the date of the enact- draws such submission promptly after such failure is due to reasonable cause.’’ notice, the penalty imposed under paragraph (b) EFFECTIVE DATE.—The amendment ment of this Act. (1) shall not apply with respect to such sub- made by this section shall apply to failures SEC. 212. REPORT ON EFFECTIVENESS OF PEN- mission. occurring after the date of the enactment of ALTY ON FAILURE TO REPORT IN- ‘‘(c) LISTING OF FRIVOLOUS POSITIONS.—The this Act. TERESTS IN FOREIGN FINANCIAL ACCOUNTS. Secretary shall prescribe (and periodically SEC. 204. MODIFICATION OF ACTIONS TO ENJOIN The Secretary of the Treasury or his dele- revise) a list of positions which the Sec- SPECIFIED CONDUCT RELATED TO TAX SHELTERS AND REPORTABLE gate shall report each year to the Committee retary has identified as being frivolous for TRANSACTIONS. on Ways and Means of the House of Rep- purposes of this subsection. The Secretary (a) IN GENERAL.—Section 7408 (relating to resentatives and the Committee on Finance shall not include in such list any position action to enjoin promoters of abusive tax of the Senate on— that the Secretary determines meets the re- shelters, etc.) is amended by redesignating (1) the number of civil and criminal pen- quirement of section 6662(d)(2)(B)(ii)(II). subsection (c) as subsection (d) and by strik- alties imposed on failures to meet the re- ‘‘(d) REDUCTION OF PENALTY.—The Sec- ing subsections (a) and (b) and inserting the porting and recordkeeping requirements of retary may reduce the amount of any pen- following new subsections: section 5314 of title 31, United States Code, alty imposed under this section if the Sec- ‘‘(a) AUTHORITY TO SEEK INJUNCTION.—A with respect to interests held in foreign fi- retary determines that such reduction would civil action in the name of the United States nancial accounts, and promote compliance with and administra- to enjoin any person from further engaging (2) the average amount of monetary pen- tion of the Federal tax laws. in specified conduct may be commenced at alties so imposed. ‘‘(e) PENALTIES IN ADDITION TO OTHER PEN- the request of the Secretary. Any action The Secretary shall include with such report ALTIES.—The penalties imposed by this sec- under this section shall be brought in the an analysis of the effectiveness of such re- tion shall be in addition to any other penalty district court of the United States for the porting and recordkeeping requirements in provided by law.’’ district in which such person resides, has his preventing the avoidance or evasion of Fed- (b) TREATMENT OF FRIVOLOUS REQUESTS principal place of business, or has engaged in eral income taxes and any recommendations FOR HEARINGS BEFORE LEVY.— May 9, 2002 CONGRESSIONAL RECORD — SENATE S4163 (1) FRIVOLOUS REQUESTS DISREGARDED.— reasonably should have known, of such con- of transactions requiring such disclo- Section 6330 (relating to notice and oppor- duct. Such penalty shall not exceed the gross sure. The Tax Shelter Transparency tunity for hearing before levy) is amended by income derived (or to be derived) from the Act will curb non-compliance by pro- adding at the end the following new sub- conduct giving rise to the penalty and may viding clearer and more objective rules section: be in addition to, or in lieu of, any suspen- ‘‘(g) FRIVOLOUS REQUESTS FOR HEARING, sion, disbarment, or censure.’’ for the reporting of potential tax shel- ETC.—Notwithstanding any other provision (2) EFFECTIVE DATE.—The amendments ters and by providing strong penalties of this section, if the Secretary determines made by this subsection shall apply to ac- for anyone who refuses to comply with that any portion of a request for a hearing tions taken after the date of the enactment the revised disclosure requirements. under this section or section 6320 meets the of this Act. The legislation has been carefully requirement of clause (i) or (ii) of section (b) TAX SHELTER OPINIONS, ETC.—Section structured to reward those who are 6702(b)(2)(A), then the Secretary may treat 330 of such title 31 is amended by adding at forthcoming with disclosure. I whole- such portion as if it were never submitted the end the following new subsection: heartedly agree with the remarks of- and such portion shall not be subject to any ‘‘(d) Nothing in this section or in any other fered by the recent Treasury Assistant further administrative or judicial review.’’ provision of law shall be construed to limit Secretary for Tax Policy, that ‘‘if a (2) PRECLUSION FROM RAISING FRIVOLOUS the authority of the Secretary of the Treas- ISSUES AT HEARING.—Section 6330(c)(4) is ury to impose standards applicable to the taxpayer is comfortable entering into a amended— rendering of written advice with respect to transaction, a promoter is comfortable (A) by striking ‘‘(A)’’ and inserting any entity, transaction plan or arrangement, selling it, and an advisor is com- ‘‘(A)(i)’’; or other plan or arrangement, which is of a fortable blessing it, they all should be (B) by striking ‘‘(B)’’ and inserting ‘‘(ii)’’; type which the Secretary determines as hav- comfortable disclosing it to the IRS.’’ (C) by striking the period at the end of the ing a potential for tax avoidance or eva- Transparency is essential to an evalua- first sentence and inserting ‘‘; or’’; and sion.’’ tion by the IRS and ultimately by the (D) by inserting after subparagraph (A)(ii) SEC. 215. PENALTY ON PROMOTERS OF TAX Congress of the United States as to (as so redesignated) the following: SHELTERS. ‘‘(B) the issue meets the requirement of (a) PENALTY ON PROMOTING ABUSIVE TAX whether the tax benefits generated by clause (i) or (ii) of section 6702(b)(2)(A).’’ SHELTERS.—Section 6700(a) is amended by complex business transactions are ap- (3) STATEMENT OF GROUNDS.—Section adding at the end the following new sen- propriate interpretations of existing 6330(b)(1) is amended by striking ‘‘under sub- tence: ‘‘Notwithstanding the first sentence, tax law. To the extent such interpreta- section (a)(3)(B)’’ and inserting ‘‘in writing if an activity with respect to which a pen- tions were unintended, the bill allows under subsection (a)(3)(B) and states the alty imposed under this subsection involves Congress to amend or clarify existing grounds for the requested hearing’’. a statement described in paragraph (2)(A), tax law. To the extent such interpreta- (c) TREATMENT OF FRIVOLOUS REQUESTS the amount of the penalty shall be equal to tions are appropriate, all taxpayers, FOR HEARINGS UPON FILING OF NOTICE OF 50 percent of the gross income derived (or to from the largest U.S. multinational LIEN.—Section 6320 is amended— be derived) from such activity by the person (1) in subsection (b)(1), by striking ‘‘under on which the penalty is imposed.’’ conglomerate to the smallest local subsection (a)(3)(B)’’ and inserting ‘‘in writ- (b) EFFECTIVE DATE.—The amendment feedstore owner in Iowa, will benefit ing under subsection (a)(3)(B) and states the made by this section shall apply to activities when transactions are publicly sanc- grounds for the requested hearing’’, and after the date of the enactment of this Act. tioned in the form of an ‘‘angel list’’ of (2) in subsection (c), by striking ‘‘and (e)’’ Mr. GRASSLEY. Mr. President, I rise good transactions. This legislation ac- and inserting ‘‘(e), and (g)’’. today to co-sponsor legislation, the complishes both of these objectives. (d) TREATMENT OF FRIVOLOUS APPLICATIONS ‘‘Tax Shelter Transparency Act’’ which FOR OFFERS-IN-COMPROMISE AND INSTALL- By Mr. KENNEDY (for himself MENT AGREEMENTS.—Section 7122 is amended will arrest the proliferation of tax shel- ters. and Mrs. CLINTON): by adding at the end the following new sub- S. 2499. A bill to amend the Federal section: We have known for many years that Food, Drug, and Cosmetic Act to estab- ‘‘(e) FRIVOLOUS SUBMISSIONS, ETC.—Not- abusive tax shelters, which are struc- lish labeling requirements regarding withstanding any other provision of this sec- tured to exploit unintended con- allergenic substances in food, and for tion, if the Secretary determines that any sequences of our complicated Federal portion of an application for an offer-in-com- other purposes; to the Committee on income tax system, erode the Federal promise or installment agreement submitted Health, Education, Labor, and Pen- tax base and the public’s confidence in under this section or section 6159 meets the sions. requirement of clause (i) or (ii) of section the tax system. Such transactions are Mr. KENNEDY. Mr. President, I am 6702(b)(2)(A), then the Secretary may treat patently unfair to the vast majority of pleased today to join my colleagues such portion as if it were never submitted taxpayers who do their best to comply Senator CLINTON and Congresswoman and such portion shall not be subject to any with the letter and spirit of the tax further administrative or judicial review.’’ NITA LOWEY in introducing legislation law. As a result, the Finance Com- to improve the labeling of allergens in (e) CLERICAL AMENDMENT.—The table of mittee has worked exceedingly hard sections for part I of subchapter B of chapter food. 68 is amended by striking the item relating over the past several years to develop American families deserve to feel to section 6702 and inserting the following three legislative discussion drafts for confident about the safety of the food new item: public review and comment. Thought- on their tables. The Food Allergen Con- ‘‘Sec. 6702. Frivolous tax submissions.’’ ful and well-considered comments on sumer Protection Act will allow the these drafts have been greatly appre- (f) EFFECTIVE DATE.—The amendments seven million Americans with food al- made by this section shall apply to submis- ciated by the staff and members of the lergies to identify more easily a prod- sions made and issues raised after the date Finance Committee. The collaborative uct’s ingredients, avoid foods that may on which the Secretary first prescribes a list efforts of those involved in the discus- harm them, and stay healthy. We an- under section 6702(c) of the Internal Revenue sion drafts combined with the recent ticipate that this legislation will re- Code of 1986, as amended by subsection (a). request for legislative assistance from duce the number, currently estimated SEC. 214. REGULATION OF INDIVIDUALS PRAC- the Treasury Department and IRS pro- to be 150 yearly, of Americans who die TICING BEFORE THE DEPARTMENT duced today’s revised approach for OF TREASURY. due to the ingestion of allergenic foods. dealing with abusive tax avoidance (a) CENSURE; IMPOSITION OF PENALTY.— The Food Allergen Consumer Produc- (1) IN GENERAL.—Section 330(b) of title 31, transactions. tion Act will require that food ingre- United States Code, is amended— Above all, the Tax Shelter Trans- dient statements on food packages (A) by inserting ‘‘, or censure,’’ after ‘‘De- parency Act encourages taxpayer dis- identify in common language when an partment’’, and closure of potentially abusive tax ingredient, including a flavoring, color- (B) by adding at the end the following new avoidance transactions. It is surprising ing, or other additive, is itself, or is de- flush sentence: and unfortunate that taxpayers, rived from, one of the eight main food ‘‘The Secretary may impose a monetary pen- though required to disclose tax shelter allergens, or from grains containing alty on any representative described in the transactions under present law, have gluten. This legislation will also make preceding sentence. If the representative was refused to comply. The Treasury De- the ingredient label on foods easier to acting on behalf of an employer or any firm or other entity in connection with the con- partment and IRS report that the 2001 read, and require it to include a work- duct giving rise to such penalty, the Sec- tax filing season produced a mere 272 ing telephone number, including one retary may impose a monetary penalty on tax shelter return disclosures from for telecommunication devices for deaf such employer, firm, or entity if it knew, or only 99 corporate taxpayers, a fraction persons. S4164 CONGRESSIONAL RECORD — SENATE May 9, 2002 The Food Allergen Consumer Protec- (6) Individuals who have food allergies may ‘‘(w) If the labeling required under para- tion Act will require food manufactur- outgrow their allergy if they strictly avoid graphs (g), (i), (k), (t), (u), or (v)— ers to minimize cross-contamination consuming the allergen. However, some sci- ‘‘(1) does not use a single, easy-to-read with food allergens between foods pro- entists believe that because low levels of al- type style that is black on a white back- lergens are unintentionally present in foods, ground, using upper and lower case letters duced in the same facility or on the those with an allergy are unable to keep and with no letters touching; same production line. It will require from being repeatedly exposed to the very ‘‘(2) does not use at least 8 point type with the use of ‘‘may contain’’ or other ad- foods they are allergic to. Good manufac- at least one point leading (i.e., space between visory language in food labeling when turing practices can minimize the uninten- two lines of text), provided the total surface steps to reduce such cross-contamina- tional presence of food allergens. In addition, area of the food package available to bear la- tion will not eliminate it. This legisla- when good manufacturing practices cannot beling exceeds 12 square inches; or tion also preserves the Food and Drug eliminate the potential for cross-contamina- ‘‘(3) does not comply with regulations tion, an advisory label on the product can Administration’s current authority to issued by the Secretary to make it easy for provide additional consumer protection. consumers to read and use such labeling by regulate the safety of certain products (7) The Food and Drug Administration is requiring a format that is comparable to the that are bioengineered to contain pro- the Nation’s principal consumer protection format required for the disclosure of nutri- teins that cause allergic reactions. agency, charged with protecting and pro- tion information in the food label under sec- The Food Allergen Consumer Protec- moting public health through premarket and tion 101.9(d)(1) of title 21, Code of Federal tion Act will also require the Centers postmarket regulation of food. The agency Regulations.’’. for Disease Control and Prevention to must have both the necessary authority to (b) CIVIL PENALTIES.—Section 303(g)(2) of track deaths related to food allergies, ensure that foods are properly labeled and the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 333(g)(2)) is amended— and it will direct the National Insti- produced using good manufacturing prac- tices and the ability to penalize manufactur- (1) in subparagraph (A), by striking ‘‘sec- tutes of Health to develop a plan for re- ers who violate our food safety laws. tion 402(a)(2)(B) shall be subject’’ and insert- search activities concerning food aller- (8) Americans deserve to have confidence ing the following: ‘‘section 402(a)(2)(B) or gies. in the safety and labeling of the food on regulations under this chapter to minimize I urge my colleagues in the Senate to their tables. the unintended presence of allergens in food, support this legislation that will do so SEC. 3. FOOD LABELING; REQUIREMENT OF IN- or that is misbranded within the meaning of much to improve the lives of those FORMATION REGARDING ALLER- section 403(t), 403(u), 403(v), or 403(w), shall with food allergies. I ask unanimous GENIC SUBSTANCES. be subject’’; and (a) IN GENERAL.—Section 403 of the Federal consent that the text of the bill be (2) in subparagraph (B), by inserting ‘‘or Food, Drug, and Cosmetic Act (21 U.S.C. 343) misbranded’’ after ‘‘adulterated’’ each place printed in the RECORD. is amended by adding at the end the fol- such term appears. There being no objection, the bill was lowing: (c) CONFORMING AMENDMENT.—Section 201 ordered to be printed in the RECORD, as ‘‘(t)(1) If it is not a raw agricultural com- of the Federal Food, Drug, and Cosmetic Act follows: modity and it is, or it intentionally bears or (21 U.S.C. 321) is amended by adding at the S. 2499 contains, a known food allergen, unless its end the following: label bears, in bold face type, the common or ‘‘(ll) The term ‘known food allergen’ has Be it enacted by the Senate and House of Rep- usual name of the known food allergen and the meaning given such term in section resentatives of the United States of America in the common or usual name of the food 403(t)(3).’’. Congress assembled, source described in subparagraph (3)(A) from (d) EFFECTIVE DATE.—The amendments SECTION 1. SHORT TITLE. which the known food allergen is derived, ex- made by this section take effect upon the ex- This Act may be cited as the ‘‘Food Aller- cept that the name of the food source is not piration of the 180-day period beginning on gen Consumer Protection Act’’. required when the common or usual name of the date of the enactment of this Act. SEC. 2. FINDINGS. the known food allergen plainly identifies SEC. 4. UNINTENTIONAL PRESENCE OF KNOWN The Congress finds as follows: the food source. FOOD ALLERGENS. (1) Approximately 7,000,000 Americans suf- ‘‘(2) The information required under this (a) FOOD LABELING OF SUCH FOOD ALLER- fer from food allergies. Every year roughly paragraph may appear in labeling other than GENS.—Section 403 of the Federal Food, 30,000 people receive emergency room treat- the label only if the Secretary finds that Drug, and Cosmetic Act, as amended by sec- ment due to the ingestion of allergenic foods, such other labeling is sufficient to protect tion 3(a) of this Act, is amended by inserting and an estimated 150 Americans die from the public health. A finding by the Secretary after paragraph (u) the following: anaphylactic shock caused by a food allergy. under this subparagraph is effective upon ‘‘(v) If the presence of a known food aller- (2) Eight major foods—milk, egg, fish, publication in the Federal Register as a no- gen in the food is unintentional and its label- Crustacea, tree nuts, wheat, peanuts, and tice (including any change in an earlier find- ing bears a statement that the food may bear soybeans—cause 90 percent of allergic reac- ing under this subparagraph). or contain the known food allergen, or any tions. At present, there is no cure for food al- ‘‘(3) For purposes of this Act, the term similar statement, unless the statement is lergies. A food allergic consumer depends on ‘known food allergen’ means any of the fol- made in compliance with regulations issued lowing: a product’s label to obtain accurate and reli- by the Secretary to provide for advisory la- ‘‘(A) Milk, egg, fish, Crustacea, tree nuts, able ingredient information so as to avoid beling of the known food allergen.’’. wheat, peanuts, and soybeans. food allergens. (b) EFFECTIVE DATE.—The amendment (3) Current Food and Drug Administration ‘‘(B) A proteinaceous substance derived made by subsection (a) takes effect upon the regulations exempt spices, flavorings, and from a food specified in clause (A), unless the expiration of the four-year period beginning certain colorings and additives from ingre- Secretary determines that the substance on the date of the enactment of this Act, ex- dient labeling requirements that would allow does not cause an allergic response that cept with respect to the authority of the consumers to avoid those to which they are poses a risk to human health. Secretary of Health and Human Services to allergic. Such unlabeled food allergens may ‘‘(C) Other grains containing gluten (rye, engage in rulemaking in accordance with pose a serious health threat to those suscep- barley, oats, and triticale). section 5. ‘‘(D) In addition, any food that the Sec- tible to food allergies. SEC. 5. REGULATIONS. retary by regulation determines causes an (4) A recent Food and Drug Administration (a) IN GENERAL.— allergic or other adverse response that poses study found that 25 percent of bakery prod- (1) REGULATIONS.—Not later than one year ucts, ice creams, and candies that were in- a risk to human health. after the date of the enactment of this Act, ‘‘(4) Notwithstanding paragraph (g), (i), or spected failed to list peanuts and eggs, which the Secretary of Health and Human Services (k), or any other law, the labeling require- can cause potentially fatal allergic reac- (in this section referred to as the ‘‘Sec- ment under this paragraph applies to spices, tions. The mislabeling of foods puts those flavorings, colorings, or incidental additives retary’’) shall issue a proposed rule under with a food allergy at constant risk. that are, or that bear or contain, a known sections 402, 403, and 701(a) of the Federal (5) In that study, the Food and Drug Ad- food allergen. Food, Drug, and Cosmetic Act to implement ministration found that only slightly more ‘‘(u) If it is a raw agricultural commodity the amendments made by this Act. Not later than half of inspected manufacturers that is, or bears or contains, a known food than two years after such date of enactment, checked their products to ensure that all in- allergen, unless it has a label or other label- the Secretary shall promulgate a final rule gredients were accurately reflected on the ing that bears in bold face type the common under such sections. labels. Furthermore, the number of recalls or usual name of the known food allergen (2) EFFECTIVE DATE.—The final rule pro- because of unlabeled allergens rose to 121 in and the Secretary has found that the label or mulgated under paragraph (1) takes effect 2000 from about 35 a decade earlier. In part, other labeling is sufficient to protect the upon the expiration of the four-year period mislabeling occurs because potentially fatal public health. A finding by the Secretary beginning on the date of the enactment of allergens are introduced into the manufac- under this paragraph is effective upon publi- this Act. If a final rule under such paragraph turing process when production lines and cation in the Federal Register as a notice has not been promulgated as of the expira- cooking utensils are shared or used to (including any change in an earlier finding tion of such period, then upon such expira- produce multiple products. under this paragraph). tion the proposed rule under such paragraph May 9, 2002 CONGRESSIONAL RECORD — SENATE S4165 takes effect as if the proposed rule were a collection of, and (beginning 18 months after (1) reopen the Record of Decision (ROD) on final rule. the date of the enactment of this Act) annu- the mixed oxide fuel fabrication facility for (b) UNINTENTIONAL PRESENCE OF KNOWN ally publish, national data on— purposes of identifying and evaluating alter- FOOD ALLERGENS.— (1) the prevalence of food allergies, and native locations for the mixed oxide fuel fab- (1) GOOD MANUFACTURING PRACTICES; (2) the incidence of deaths, injuries, includ- rication facility; and RECORDS.—Regulations under subsection (a) ing anaphylactic shock, hospitalizations, and (2) conduct a study of the costs and impli- shall require the use of good manufacturing physician visits, and the utilization of drugs, cations for the national security of the practices to minimize, to the extent prac- associated with allergic responses to foods. United States of— ticable, the unintentional presence of aller- (b) STUDY.—Not later than one year after (A) converting the Savannah River site to gens in food. Such regulations shall include the date of the enactment of this Act, the an environmental management (EM) closure appropriate record keeping and record in- Secretary, in consultation with consumers, site; and spection requirements. providers, State governments, and other rel- (B) transferring all current and proposed (2) ADVISORY LABELING.—In the regulations evant parties, shall complete a study for the national security activities at the Savannah under subsection (a), the Secretary shall au- purposes of— River Site from the Savannah River Site to thorize the use of advisory labeling for a (1) determining whether existing systems other facilities of the National Nuclear Secu- known food allergen when the Secretary has for the reporting, collection and analysis of rity Administration or the Department of determined that good manufacturing prac- national data accurately capture informa- Energy, as appropriate. tices required under the regulations will not tion on the subjects specified in subsection (b) REPORT ON STUDY.—If the Secretary eliminate the unintentional presence of the (a); and conducts a study under subsection (a)(2), the known food allergen and its presence in the (2) identifying new or alternative systems, Secretary shall submit to the congressional food poses a risk to human health, and the or enhancements to existing systems, for the defense committees a report on the study regulations shall otherwise prohibit the use reporting collection and analysis of national not later than six months after the com- of such labeling. data necessary to fulfill the purpose of sub- mencement of the study. (c) INGREDIENT LABELING GENERALLY.—In section (a). (c) CONTINGENT SUSPENSION OF APPLICA- regulations under subsection (a), the Sec- (c) PUBLIC AND PROVIDER EDUCATION.—The BILITY OF REQUIREMENTS.—If at any time be- retary shall prescribe a format for labeling, Secretary shall, directly or through con- fore the requirements in subsection (a) oth- as provided for under section 403(w)(3) of the tracts with public or private entities, edu- erwise go into effect, the Secretary and the Federal, Food, Drug, and Cosmetic Act. cate physicians and other health providers to State of South Carolina enter into an agree- (d) REVIEW BY OFFICE OF MANAGEMENT AND improve the reporting, collection, and anal- ment regarding the shipment of special nu- BUDGET.—If the Office of Management and ysis of data on the subjects specified in sub- clear materials to the Savannah River Site Budget (in this section referred to as section (a). for processing by the proposed mixed oxide (d) CHILD FATALITY REVIEW TEAMS.—Inso- ‘‘OMB’’) is to review proposed or final rules fuel fabrication facility at the Savannah far as is practicable, activities developed or under this Act, OMB shall complete its re- River Site, the requirements in subsection expanded under this section shall include view in 10 working days, after which the rule (a) shall not go into effect as long, as deter- utilization of child fatality review teams in shall be published immediately in the Fed- mined by the Secretary, as the Secretary identifying and assessing child deaths associ- eral Register. If OMB fails to complete its and the State of South Carolina comply with ated with allergic responses to foods. review of either the proposed rule or the the agreement. (e) REPORTS TO CONGRESS.—Not later than final rule in 10 working days, the Secretary (d) SPECIAL NUCLEAR MATERIALS.—In this 18 months after the date of the enactment of shall provide the rule to the Office of the section, the term ‘‘special nuclear mate- this Act, the Secretary shall submit to the Federal Register, which shall publish the rials’’ includes weapons grade plutonium. Congress a report on the progress made with rule, and it shall have full effect (subject to respect to subsections (a) through (d). f applicable effective dates specified in this (f) AUTHORIZATION OF APPROPRIATIONS.— SUBMITTED RESOLUTIONS Act) without review by OMB. If the Sec- For the purpose of carrying out this section, retary does not complete the proposed or there are authorized to be appropriated final rule so as to provide OMB with 10 work- $10,000,000 for fiscal year 2003, and such sums SENATE CONCURRENT RESOLU- ing days to review the rule and have it pub- as may be necessary for each subsequent fis- lished in the Federal Register within the cal year. TION 109—COMMEMORATING THE time frames for publication of the rule speci- (g) EFFECTIVE DATE.—This section takes INDEPENDENCE OF EAST TIMOR fied in this section, the rule shall be pub- effect on the date of the enactment of this AND EXPRESSING THE SENSE OF lished without review by OMB. Act. CONGRESS THAT THE PRESI- SEC. 6. FOOD LABELING; INCLUSION OF TELE- DENT SHOULD ESTABLISH DIP- PHONE NUMBER. By Mr. ALLARD (for himself, Mr. LOMATIC RELATIONS WITH EAST (a) IN GENERAL.—Section 403(e) of the Fed- SESSIONS, and Mrs. HUTCHISON): eral Food, Drug, and Cosmetic Act (21 U.S.C. TIMOR, AND FOR OTHER PUR- S. 2501. A bill to establish require- POSES 343(e)) is amended— ments arising from the delay or re- (1) by striking ‘‘and (2)’’ and inserting the striction on the shipment of special nu- Mr. CHAFEE (for himself and Mr. following: ‘‘(2) in the case of a manufacturer, FEINGOLD) submitted the following con- packer, or distributor whose annual gross clear materials to the Savannah River Site, Aiken, South Carolina; to the current resolution; which was referred sales made or business done in sales to con- to the Committee on Foreign Rela- sumers equals or exceeds $500,000, a toll-free Committee on Armed Services. telephone number (staffed during reasonable Mr. ALLARD. Mr. President, I ask tions: business hours) for the manufacturer, pack- unanimous consent that the text of the S. CON. RES. 109 er, or distributor (including one to accom- bill be printed in the RECORD. Whereas on May 20, 2002, East Timor will modate telecommunications devices for deaf There being no objection, the bill was become the first new country of the millen- persons, commonly known as TDDs); or in ordered to be printed in the RECORD, as nium; the case of a manufacturer, packer, or dis- follows: Whereas the perseverance and strength of tributor whose annual gross sales made or S. 2501 the East Timorese people in the face of business done in sales are less than $500,000, daunting challenges has inspired the people the mailing address or the address of the Be it enacted by the Senate and House of Rep- of the United States and around the world; Internet site for the manufacturer, packer, resentatives of the United States of America in Whereas in 1974 Portugal acknowledged the or distributor; and (3)’’; and Congress assembled, right of its colonies, including East Timor, (2) by striking ‘‘clause (2)’’ and inserting SECTION 1. REQUIREMENTS RELATING TO to self-determination, including independ- ‘‘clause (3)’’. DELAY, RESTRICTION, OR PROHIBI- TION ON SHIPMENT OF SPECIAL NU- ence; FFECTIVE ATE (b) E D .—The amendments CLEAR MATERIALS TO SAVANNAH Whereas East Timor has been under United made by subsection (a) take effect upon the RIVER SITE, AIKEN, SOUTH CARO- Nations administration since October, 1999, expiration of the 180-day period beginning on LINA. during which time international peace-keep- the date of the enactment of this Act. (a) REQUIREMENTS.—Subject to subsection ing forces, supplemented by forces of the SEC. 7. DATA ON FOOD-RELATED ALLERGIC RE- (c), if as of the date of the enactment of this United States Group for East Timor SPONSES. Act, or at any time after that date, the State (USGET), have worked to stabilize East (a) IN GENERAL.—Consistent with the find- of South Carolina acts to delay or restrict, Timor and provide for its national security; ings of the study conducted under subsection or seeks or enforces a judgment to prohibit, Whereas the people of East Timor exer- (b), the Secretary of Health and Human the shipment of special nuclear materials cised their long-sought right of self-deter- Services (in this section referred to as the (SNM) to the Savannah River Site, Aiken, mination on August 30, 1999, when 98.6 per- ‘‘Secretary’’), acting through the Director of South Carolina, for processing by the pro- cent of the eligible population voted, and 78.5 the Centers for Disease Control and Preven- posed mixed oxide (MOX) fuel fabrication fa- percent chose independence, in a United Na- tion and in consultation with the Commis- cility at the Savannah River Site, the Sec- tions-administered popular consultation, de- sioner of Foods and Drugs, shall improve the retary of Energy shall— spite systematic terror and intimidation; S4166 CONGRESSIONAL RECORD — SENATE May 9, 2002 Whereas a constitution for East Timor was children separated from their parents On page 244, line 23, strike all through adopted in March, 2002; through coercion or force; ‘‘United States,’’ on line 25, and insert the Whereas East Timor is emerging from (7) expresses a commitment to maintaining following: ‘‘foreign investors in the United more than 400 years of colonization and oc- appropriate restrictions and prohibitions in States are not accorded greater rights than cupation; law on military assistance, training, rela- United States investors in the United Whereas the East Timorese people again tions, and technical support to the Indo- States,’’. demonstrated their strong commitment to nesian Armed Forces; and democracy when 91.3 percent of eligible vot- (8) acknowledges that a United Nations SA 3399. Mr. LOTT proposed an ers peacefully participated in East Timor’s International Commission of Inquiry found amendment to the bill H.R. 3009, to ex- first democratic, multiparty election for a in January 2000 that justice is ‘‘fundamental tend the Andean Trade Preference Act, Constituent Assembly on August 30, 2001, and for the future social and political stability of to grant additional trade benefits when 86.3 percent of those eligible partici- East Timor’’, and remains deeply concerned under that Act, and for other purposes; pated in the first presidential election on about the lack of justice in the region. as follows: April 14, 2002, electing Xanana Gusamo as (b) It is the sense of Congress that the their first President; President should— Strike all after the first word in the bill Whereas, as the people of East Timor move (1) immediately extend to East Timor the and add the following: proudly toward independence, many still diplomatic relations afforded to other sov- DIVISION A—BIPARTISAN TRADE struggle to recover from the scars of the ereign nations, including the establishment PROMOTION AUTHORITY military occupation and 1999 anti-independ- of an embassy in East Timor; TITLE I—TRADE PROMOTION AUTHORITY (2) maintain a robust level of United States ence violence that resulted in displacement SEC. 1101. SHORT TITLE; FINDINGS. which, according to United Nations and assistance for East Timor commensurate (a) SHORT TITLE.—This division may be with the challenges this new nation faces other independent reports, exceed 500,000 in cited as the ‘‘Bipartisan Trade Promotion after independence; number, and widespread death, rape and Authority Act of 2002’’. (3) work to fund in a generous and respon- other mistreatment of women, family sepa- (b) FINDINGS.—The Congress makes the fol- sible way East Timor’s financing gap in its ration, large refugee populations, and the de- lowing findings: recurrent and development budgets, and co- struction of 70 percent of the country’s infra- (1) The expansion of international trade is ordinate with other donors to ensure the structure; vital to the national security of the United budget gap is addressed; Whereas efforts are ongoing by East States. Trade is critical to the economic (4) focus bilateral assistance on the areas Timorese officials and others to seek justice growth and strength of the United States of employment creation, job training, rural for the crimes against humanity and war and to its leadership in the world. Stable reconstruction, micro-enterprise, environ- crimes that have been perpetrated in recent trading relationships promote security and mental protection, health care, education, years, efforts that include the work of the prosperity. Trade agreements today serve refugee resettlement, reconciliation and con- Serious Crimes Investigation Unit of the the same purposes that security pacts played flict resolution, and strengthening the role United Nations and the East Timorese Com- during the Cold War, binding nations to- of women in society; mission for Reception, Truth, and Reconcili- gether through a series of mutual rights and (5) strongly urge the Government of Indo- ation to document and assess responsibility; obligations. Leadership by the United States nesia to step up efforts to disarm and dis- Whereas Indonesian National Human in international trade fosters open markets, band all militia, hold them accountable to Rights Commission and United Nations Se- democracy, and peace throughout the world. the rule of law, ensure stability along the curity Council recommendations to inves- (2) The national security of the United border, and promptly reunite East Timorese tigate and prosecute senior Indonesian mili- States depends on its economic security, children separated from their parents tary and civilian officials for their roles in which in turn is founded upon a vibrant and through coercion or force; and promoting the 1999 anti-independence vio- growing industrial base. Trade expansion has (6) review thoroughly information from the lence in East Timor have not yet been fully been the engine of economic growth. Trade East Timorese Commission for Reception, implemented; agreements maximize opportunities for the Truth, and Reconciliation, and use all diplo- Whereas, although the people of East critical sectors and building blocks of the matic resources at the disposal of the Presi- Timor are working toward a plan for vig- economy of the United States, such as infor- dent to ensure that— orous economic growth and development, the mation technology, telecommunications and (A) those officials responsible for crimes Government of East Timor will face a sub- other leading technologies, basic industries, against humanity and war crimes against stantial shortfall in its recurrent and devel- capital equipment, medical equipment, serv- the East Timorese people are held account- opment budgets over the first 3 years of inde- ices, agriculture, environmental technology, able; and pendence, and is seeking to fill the gap en- and intellectual property. Trade will create (B) the Government of Indonesia fully co- tirely with grants from donor countries; and new opportunities for the United States and operates with the East Timorese judicial sys- Whereas a large percentage of the popu- preserve the unparalleled strength of the tem. lation of East Timor lives below the poverty United States in economic, political, and line, with inadequate access to health care f military affairs. The United States, secured and education, the unemployment rate is es- AMENDMENTS SUBMITTED AND by expanding trade and economic opportuni- timated at 80 percent, and the life expect- PROPOSED ties, will meet the challenges of the twenty- ancy is only 57 years: Now, therefore, be it first century. SA 3398. Mr. BAUCUS (for himself and Mr. Resolved by the Senate (the House of Rep- (3) Support for continued trade expansion GRASSLEY) submitted an amendment in- resentatives concurring), That (a) Congress— requires that dispute settlement procedures tended to be proposed to amendment SA 3386 (1) congratulates and honors the coura- under international trade agreements not proposed by Mr. DASCHLE to the bill (H.R. geous people of East Timor and their leaders; add to or diminish the rights and obligations 3009) to extend the Andean Trade Preference (2) welcomes East Timor into the commu- Act, to grant additional trade benefits under provided in such agreements. Nevertheless, nity of nations as a sovereign state and that Act, and for other purposes; which was in several cases, dispute settlement panels looks forward to working with East Timor as ordered to lie on the table. and the WTO Appellate Body have added to an equal partner; SA 3399. Mr. LOTT proposed an amendment obligations and diminished rights of the (3) supports United Nations and other mul- to the bill H.R. 3009, supra. United States under WTO Agreements. In tilateral efforts to support reconstruction SA 3400. Mr. BAYH (for himself, Mr. DUR- particular, dispute settlement panels and the and development in East Timor, and United BIN, Mr. DAYTON, Ms. MIKULSKI, and Mr. Appellate Body have— Nations and other multilateral peacekeeping ROCKEFELLER) submitted an amendment in- (A) given insufficient deference to the ex- forces to safeguard East Timor’s security, in- tended to be proposed to amendment SA 3386 pertise and fact-finding of the Department of cluding continuing the periodic visits by proposed by Mr. DASCHLE to the bill (H.R. Commerce and the United States Inter- United States military forces; 3009) supra; which was ordered to lie on the national Trade Commission; (4) remains committed to working toward table. (B) imposed an obligation concerning the a debt-free start to East Timor and just, sus- f causal relationship between increased im- tainable, and secure development programs ports into the United States and serious in- as well as adequate resources for the judicial TEXT OF AMENDMENTS jury to domestic industry necessary to sup- system for East Timor for the foreseeable fu- SA 3398. Mr. BAUCUS (for himself port a safeguard measure that is different ture beyond independence; and Mr. GRASSLEY) submitted an from the obligation set forth in the applica- (5) expresses continued concern over de- amendment intended to be proposed to ble WTO Agreements; plorable humanitarian conditions and an en- amendment SA 3386 proposed by Mr. (C) imposed an obligation concerning the vironment of intimidation among the East exclusion from safeguards measures of prod- DASCHLE to the bill (H.R. 3009) to ex- Timorese refugees living in West Timor; ucts imported from countries party to a free (6) strongly supports the prompt, safe, and tend the Andean Trade Preference Act, trade agreement that is different from the voluntary repatriation and reintegration of to grant additional trade benefits obligation set forth in the applicable WTO East Timorese refugees, in particular those under that Act, and for other purposes; Agreements; East Timorese still held in militia-controlled which was ordered to lie on the table; (D) imposed obligations on the Department refugee camps in West Timor, especially as follows: of Commerce with respect to the use of facts May 9, 2002 CONGRESSIONAL RECORD — SENATE S4167 available in antidumping investigations that garding foreign investment are to reduce or nance, use, and enforcement of intellectual are different from the obligations set forth eliminate artificial or trade-distorting bar- property rights; in the applicable WTO Agreements; and riers to trade-related foreign investment, (iv) ensuring that standards of protection (E) accorded insufficient deference to the while ensuring that United States investors and enforcement keep pace with techno- Department of Commerce’s methodology for in the United States are not accorded lesser logical developments, and in particular en- adjusting countervailing duties following the rights than foreign investors in the United suring that rightholders have the legal and privatization of a subsidized foreign pro- States, and to secure for investors important technological means to control the use of ducer. rights comparable to those that would be their works through the Internet and other SEC. 1102. TRADE NEGOTIATING OBJECTIVES. available under United States legal prin- global communication media, and to prevent (a) OVERALL TRADE NEGOTIATING OBJEC- ciples and practice, by— the unauthorized use of their works; and (A) reducing or eliminating exceptions to (v) providing strong enforcement of intel- TIVES.—The overall trade negotiating objec- tives of the United States for agreements the principle of national treatment; lectual property rights, including through subject to the provisions of section 1103 are— (B) freeing the transfer of funds relating to accessible, expeditious, and effective civil, (1) to obtain more open, equitable, and re- investments; administrative, and criminal enforcement ciprocal market access; (C) reducing or eliminating performance mechanisms; and (2) to obtain the reduction or elimination requirements, forced technology transfers, (B) to secure fair, equitable, and non- and other unreasonable barriers to the estab- discriminatory market access opportunities of barriers and distortions that are directly lishment and operation of investments; for United States persons that rely upon in- related to trade and that decrease market (D) seeking to establish standards for ex- tellectual property protection. opportunities for United States exports or propriation and compensation for expropria- (5) TRANSPARENCY.—The principal negoti- otherwise distort United States trade; tion, consistent with United States legal ating objective of the United States with re- (3) to further strengthen the system of principles and practice; spect to transparency is to obtain wider and international trading disciplines and proce- (E) seeking to establish standards for fair broader application of the principle of trans- dures, including dispute settlement; and equitable treatment consistent with parency through— (4) to foster economic growth, raise living United States legal principles and practice, (A) increased and more timely public ac- standards, and promote full employment in including the principle of due process; cess to information regarding trade issues the United States and to enhance the global (F) providing meaningful procedures for re- and the activities of international trade in- economy; solving investment disputes; stitutions; (5) to ensure that trade and environmental (G) seeking to improve mechanisms used to (B) increased openness at the WTO and policies are mutually supportive and to seek resolve disputes between an investor and a other international trade fora by increasing to protect and preserve the environment and government through— public access to appropriate meetings, pro- enhance the international means of doing so, (i) mechanisms to eliminate frivolous ceedings, and submissions, including with re- while optimizing the use of the world’s re- claims and to deter the filing of frivolous gard to dispute settlement and investment; sources; claims; and (6) to promote respect for worker rights (ii) procedures to ensure the efficient selec- (C) increased and more timely public ac- and the rights of children consistent with tion of arbitrators and the expeditious dis- cess to all notifications and supporting docu- core labor standards of the International position of claims; mentation submitted by parties to the WTO. Labor Organization (as defined in section (iii) procedures to enhance opportunities (6) ANTI-CORRUPTION.—The principal nego- 1113(2)) and an understanding of the relation- for public input into the formulation of gov- tiating objectives of the United States with ship between trade and worker rights; ernment positions; and respect to the use of money or other things (7) to seek provisions in trade agreements (iv) establishment of a single appellate of value to influence acts, decisions, or omis- under which parties to those agreements body to review decisions in investor-to-gov- sions of foreign governments or officials or strive to ensure that they do not weaken or ernment disputes and thereby provide coher- to secure any improper advantage in a man- reduce the protections afforded in domestic ence to the interpretations of investment ner affecting trade are— environmental and labor laws as an encour- provisions in trade agreements; and (A) to obtain high standards and appro- agement for trade; and (H) ensuring the fullest measure of trans- priate domestic enforcement mechanisms ap- (8) to ensure that trade agreements afford parency in the dispute settlement mecha- plicable to persons from all countries par- small businesses equal access to inter- nism, to the extent consistent with the need ticipating in the applicable trade agreement national markets, equitable trade benefits, to protect information that is classified or that prohibit such attempts to influence expanded export market opportunities, and business confidential, by— acts, decisions, or omissions of foreign gov- provide for the reduction or elimination of (i) ensuring that all requests for dispute ernments; and trade barriers that disproportionately im- settlement are promptly made public; (B) to ensure that such standards do not pact small business. (ii) ensuring that— place United States persons at a competitive (b) PRINCIPAL TRADE NEGOTIATING OBJEC- (I) all proceedings, submissions, findings, disadvantage in international trade. TIVES.— and decisions are promptly made public; (7) IMPROVEMENT OF THE WTO AND MULTI- (1) TRADE BARRIERS AND DISTORTIONS.—The (II) all hearings are open to the public; and LATERAL TRADE AGREEMENTS.—The principal principal negotiating objectives of the (iii) establishing a mechanism for accept- negotiating objectives of the United States United States regarding trade barriers and ance of amicus curiae submissions from busi- regarding the improvement of the World other trade distortions are— nesses, unions, and nongovernmental organi- Trade Organization, the Uruguay Round (A) to expand competitive market opportu- zations. Agreements, and other multilateral and bi- nities for United States exports and to ob- (4) INTELLECTUAL PROPERTY.—The principal lateral trade agreements are— tain fairer and more open conditions of trade negotiating objectives of the United States (A) to achieve full implementation and ex- by reducing or eliminating tariff and non- regarding trade-related intellectual property tend the coverage of the World Trade Organi- tariff barriers and policies and practices of are— zation and such agreements to products, sec- foreign governments directly related to (A) to further promote adequate and effec- tors, and conditions of trade not adequately trade that decrease market opportunities for tive protection of intellectual property covered; and United States exports or otherwise distort rights, including through— (B) to expand country participation in and United States trade; and (i)(I) ensuring accelerated and full imple- enhancement of the Information Technology (B) to obtain reciprocal tariff and nontariff mentation of the Agreement on Trade-Re- Agreement and other trade agreements. barrier elimination agreements, with par- lated Aspects of Intellectual Property Rights (8) REGULATORY PRACTICES.—The principal ticular attention to those tariff categories referred to in section 101(d)(1 5) of the Uru- negotiating objectives of the United States covered in section 111(b) of the Uruguay guay Round Agreements Act (19 U.S.C. regarding the use of government regulation Round Agreements Act (19 U.S.C. 3521(b)). 3511(d)(15)), particularly with respect to or other practices by foreign governments to (2) TRADE IN SERVICES.—The principal ne- meeting enforcement obligations under that provide a competitive advantage to their do- gotiating objective of the United States re- agreement; and mestic producers, service providers, or inves- garding trade in services is to reduce or (II) ensuring that the provisions of any tors and thereby reduce market access for eliminate barriers to international trade in multilateral or bilateral trade agreement United States goods, services, and invest- services, including regulatory and other bar- governing intellectual property rights that ments are— riers that deny national treatment and mar- is entered into by the United States reflect a (A) to achieve increased transparency and ket access or unreasonably restrict the es- standard of protection similar to that found opportunity for the participation of affected tablishment or operations of service sup- in United States law; parties in the development of regulations; pliers. (ii) providing strong protection for new and (B) to require that proposed regulations be (3) FOREIGN INVESTMENT.—Recognizing that emerging technologies and new methods of based on sound science, cost-benefit analysis, United States law on the whole provides a transmitting and distributing products em- risk assessment, or other objective evidence; high level of protection for investment, con- bodying intellectual property; (C) to establish consultative mechanisms sistent with or greater than the level re- (iii) preventing or eliminating discrimina- among parties to trade agreements to pro- quired by international law, the principal ne- tion with respect to matters affecting the mote increased transparency in developing gotiating objectives of the United States re- availability, acquisition, scope, mainte- guidelines, rules, regulations, and laws for S4168 CONGRESSIONAL RECORD — SENATE May 9, 2002

government procurement and other regu- (I) unfair or trade-distorting activities of (iii) SCOPE OF OBJECTIVE.—The negotiating latory regimes; and state trading enterprises and other adminis- objective provided in subparagraph (A) ap- (D) to achieve the elimination of govern- trative mechanisms, with emphasis on re- plies with respect to agricultural matters to ment measures such as price controls and quiring price transparency in the operation be addressed in any trade agreement entered reference pricing which deny full market ac- of state trading enterprises and such other into under section 1103 (a) or (b), including cess for United States products. mechanisms in order to end cross subsidiza- any trade agreement entered into under sec- (9) ELECTRONIC COMMERCE.—The principal tion, price discrimination, and price under- tion 1103 (a) or (b) that provides for accession negotiating objectives of the United States cutting; to a trade agreement to which the United with respect to electronic commerce are— (II) unjustified trade restrictions or com- States is already a party, such as the North (A) to ensure that current obligations, mercial requirements, such as labeling, that American Free Trade Agreement and the rules, disciplines, and commitments under affect new technologies, including bio- United States-Canada Free Trade Agree- the World Trade Organization apply to elec- technology; ment. tronic commerce; (III) unjustified sanitary or phytosanitary (11) LABOR AND THE ENVIRONMENT.—The (B) to ensure that— restrictions, including those not based on principal negotiating objectives of the (i) electronically delivered goods and serv- scientific principles in contravention of the United States with respect to labor and the ices receive no less favorable treatment Uruguay Round Agreements; environment are— under trade rules and commitments than (IV) other unjustified technical barriers to (A) to ensure that a party to a trade agree- like products delivered in physical form; and trade; and ment with the United States does not fail to (ii) the classification of such goods and (V) restrictive rules in the administration effectively enforce its environmental or services ensures the most liberal trade treat- of tariff rate quotas; labor laws, through a sustained or recurring ment possible; (ix) eliminating practices that adversely course of action or inaction, in a manner af- (C) to ensure that governments refrain affect trade in perishable or cyclical prod- fecting trade between the United States and from implementing trade-related measures ucts, while improving import relief mecha- that party after entry into force of a trade that impede electronic commerce; nisms to recognize the unique characteris- agreement between those countries; (D) where legitimate policy objectives re- tics of perishable and cyclical agriculture; (B) to recognize that parties to a trade quire domestic regulations that affect elec- (x) ensuring that the use of import relief tronic commerce, to obtain commitments mechanisms for perishable and cyclical agri- agreement retain the right to exercise dis- that any such regulations are the least re- culture are as accessible and timely to grow- cretion with respect to investigatory, pros- strictive on trade, nondiscriminatory, and ers in the United States as those mecha- ecutorial, regulatory, and compliance mat- transparent, and promote an open market nisms that are used by other countries; ters and to make decisions regarding the al- environment; and (xi) taking into account whether a party to location of resources to enforcement with re- (E) to extend the moratorium of the World the negotiations has failed to adhere to the spect to other labor or environmental mat- Trade Organization on duties on electronic provisions of already existing trade agree- ters determined to have higher priorities, transmissions. ments with the United States or has cir- and to recognize that a country is effectively (10) RECIPROCAL TRADE IN AGRICULTURE.— cumvented obligations under those agree- enforcing its laws if a course of action or in- (A) IN GENERAL.—The principal negotiating ments; action reflects a reasonable exercise of such objective of the United States with respect (xii) taking into account whether a prod- discretion, or results from a bona fide deci- to agriculture is to obtain competitive op- uct is subject to market distortions by rea- sion regarding the allocation of resources portunities for United States exports of agri- son of a failure of a major producing country and no retaliation may be authorized based cultural commodities in foreign markets to adhere to the provisions of already exist- on the exercise of these rights or the right to substantially equivalent to the competitive ing trade agreements with the United States establish domestic labor standards and levels opportunities afforded foreign exports in or by the circumvention by that country of of environmental protection; United States markets and to achieve fairer its obligations under those agreements; (C) to strengthen the capacity of United and more open conditions of trade in bulk, (xiii) otherwise ensuring that countries States trading partners to promote respect specialty crop, and value-added commodities that accede to the World Trade Organization for core labor standards (as defined in sec- by— have made meaningful market liberalization tion 1113(2)); (i) reducing or eliminating, by a date cer- commitments in agriculture; (D) to strengthen the capacity of United tain, tariffs or other charges that decrease (xiv) taking into account the impact that States trading partners to protect the envi- market opportunities for United States agreements covering agriculture to which ronment through the promotion of sustain- exports— the United States is a party, including the able development; (I) giving priority to those products that North American Free Trade Agreement, have (E) to reduce or eliminate government are subject to significantly higher tariffs or on the United States agricultural industry; practices or policies that unduly threaten subsidy regimes of major producing coun- (xv) maintaining bona fide food assistance sustainable development; tries; and programs and preserving United States mar- (F) to seek market access, through the (II) providing reasonable adjustment peri- ket development and export credit programs; elimination of tariffs and nontariff barriers, ods for United States import-sensitive prod- and for United States environmental tech- ucts, in close consultation with the Congress (xvi) strive to complete a general multilat- nologies, goods, and services; and on such products before initiating tariff re- eral round in the World Trade Organization (G) to ensure that labor, environmental, duction negotiations; by January 1, 2005, and seek the broadest health, or safety policies and practices of the (ii) reducing tariffs to levels that are the market access possible in multilateral, re- parties to trade agreements with the United same as or lower than those in the United gional, and bilateral negotiations, recog- States do not arbitrarily or unjustifiably dis- States; nizing the effect that simultaneous sets of criminate against United States exports or (iii) seeking to eliminate all export sub- negotiations may have on United States im- serve as disguised barriers to trade. sidies on agricultural commodities while port-sensitive commodities (including those (12) DISPUTE SETTLEMENT AND ENFORCE- maintaining bona fide food aid and pre- subject to tariff-rate quotas). MENT.—The principal negotiating objectives serving United States agricultural market (B) CONSULTATION.— of the United States with respect to dispute development and export credit programs (i) BEFORE COMMENCING NEGOTIATIONS.—Be- settlement and enforcement of trade agree- that allow the United States to compete fore commencing negotiations with respect ments are— with other foreign export promotion efforts; to agriculture, the United States Trade Rep- (A) to seek provisions in trade agreements (iv) allowing the preservation of programs resentative, in consultation with the Con- providing for resolution of disputes between that support family farms and rural commu- gress, shall seek to develop a position on the governments under those trade agreements nities but do not distort trade; treatment of seasonal and perishable agri- in an effective, timely, transparent, equi- (v) developing disciplines for domestic sup- cultural products to be employed in the ne- table, and reasoned manner, requiring deter- port programs, so that production that is in gotiations in order to develop an inter- minations based on facts and the principles excess of domestic food security needs is sold national consensus on the treatment of sea- of the agreements, with the goal of increas- at world prices; sonal or perishable agricultural products in ing compliance with the agreements; (vi) eliminating Government policies that investigations relating to dumping and safe- (B) to seek to strengthen the capacity of create price-depressing surpluses; guards and in any other relevant area. the Trade Policy Review Mechanism of the (vii) eliminating state trading enterprises (ii) DURING NEGOTIATIONS.—During any ne- World Trade Organization to review compli- whenever possible; gotiations on agricultural subsidies, the ance with commitments; (viii) developing, strengthening, and clari- United States Trade Representative shall (C) to seek improved adherence by panels fying rules and effective dispute settlement seek to establish the common base year for convened under the WTO Understanding on mechanisms to eliminate practices that un- calculating the Aggregated Measurement of Rules and Procedures Governing the Settle- fairly decrease United States market access Support (as defined in the Agreement on Ag- ment of Disputes and by the WTO Appellate opportunities or distort agricultural mar- riculture) as the end of each country’s Uru- Body to the standard of review applicable kets to the detriment of the United States, guay Round implementation period, as re- under the WTO Agreement involved in the particularly with respect to import-sensitive ported in each country’s Uruguay Round dispute, including greater deference, where products, including— market access schedule. appropriate, to the fact finding and technical May 9, 2002 CONGRESSIONAL RECORD — SENATE S4169 expertise of national investigating authori- (6) take into account other legitimate agreement) with, and keep fully apprised of ties; United States domestic objectives including, the negotiations, the congressional advisers (D) to seek provisions encouraging the but not limited to, the protection of legiti- for trade policy and negotiations appointed early identification and settlement of dis- mate health or safety, essential security, under section 161 of the Trade Act of 1974 (19 putes through consultation; and consumer interests and the law and reg- U.S.C. 2211), the Committee on Ways and (E) to seek provisions to encourage the ulations related thereto; Means of the House of Representatives, the provision of trade-expanding compensation if (7) have the Secretary of Labor consult Committee on Finance of the Senate, and a party to a dispute under the agreement with any country seeking a trade agreement the Congressional Oversight Group convened does not come into compliance with its obli- with the United States concerning that under section 1107; and gations under the agreement; country’s labor laws and provide technical (B) with regard to any negotiations and (F) to seek provisions to impose a penalty assistance to that country if needed; agreement relating to agricultural trade, upon a party to a dispute under the agree- (8) in connection with any trade negotia- also consult closely and on a timely basis ment that— tions entered into under this division, the (including immediately before initialing an (i) encourages compliance with the obliga- President shall submit to the Committee on agreement) with, and keep fully apprised of tions of the agreement; Ways and Means of the House of Representa- the negotiations, the Committee on Agri- (ii) is appropriate to the parties, nature, tives and the Committee on Finance of the culture of the House of Representatives and subject matter, and scope of the violation; Senate a meaningful labor rights report of the Committee on Agriculture, Nutrition, and the country, or countries, with respect to and Forestry of the Senate. (iii) has the aim of not adversely affecting which the President is negotiating, on a time parties or interests not party to the dispute frame determined in accordance with section (e) ADHERENCE TO OBLIGATIONS UNDER URU- while maintaining the effectiveness of the 1107(b)(2)(E); GUAY ROUND AGREEMENTS.—In determining enforcement mechanism; and (9)(A) preserve the ability of the United whether to enter into negotiations with a (G) to seek provisions that treat United States to enforce rigorously its trade laws, particular country, the President shall take States principal negotiating objectives including the antidumping, countervailing into account the extent to which that coun- equally with respect to— duty, and safeguard laws, and avoid agree- try has implemented, or has accelerated the (i) the ability to resort to dispute settle- ments that lessen the effectiveness of domes- implementation of, its obligations under the ment under the applicable agreement; tic and international disciplines on unfair (ii) the availability of equivalent dispute trade, especially dumping and subsidies, or Uruguay Round Agreements. settlement procedures; and that lessen the effectiveness of domestic and SEC. 1103. TRADE AGREEMENTS AUTHORITY. (iii) the availability of equivalent rem- international safeguard provisions, in order edies. to ensure that United States workers, agri- (a) AGREEMENTS REGARDING TARIFF BAR- (13) BORDER TAXES.—The principal negoti- cultural producers, and firms can compete RIERS.— ating objective of the United States regard- fully on fair terms and enjoy the benefits of (1) IN GENERAL.—Whenever the President ing border taxes is to obtain a revision of the reciprocal trade concessions; and determines that one or more existing duties WTO rules with respect to the treatment of (B) address and remedy market distortions or other import restrictions of any foreign border adjustments for internal taxes to re- that lead to dumping and subsidization, in- country or the United States are unduly bur- dress the disadvantage to countries relying cluding overcapacity, cartelization, and mar- dening and restricting the foreign trade of primarily on direct taxes for revenue rather ket-access barriers. the United States and that the purposes, than indirect taxes. (10) continue to promote consideration of policies, priorities, and objectives of this di- (14) WTO EXTENDED NEGOTIATIONS.—The multilateral environmental agreements and vision will be promoted thereby, the principal negotiating objectives of the consult with parties to such agreements re- President— United States regarding trade in civil air- garding the consistency of any such agree- (A) may enter into trade agreements with craft are those set forth in section 135(c) of ment that includes trade measures with ex- foreign countries before— the Uruguay Round Agreements Act (19 isting environmental exceptions under Arti- (i) June 1, 2005; or U.S.C. 3355(c)) and regarding rules of origin cle XX of the GATT 1994; (ii) June 1, 2007, if trade authorities proce- are the conclusion of an agreement described (11) report to the Committee on Ways and dures are extended under subsection (c); and in section 132 of that Act (19 U.S.C. 3552). Means of the House of Representatives and (B) may, subject to paragraphs (2) and (3), (c) PROMOTION OF CERTAIN PRIORITIES.—In the Committee on Finance of the Senate, not proclaim— order to address and maintain United States later than 12 months after the imposition of (i) such modification or continuance of any competitiveness in the global economy, the a penalty or remedy by the United States existing duty, President shall— permitted by a trade agreement to which (ii) such continuance of existing duty-free (1) seek greater cooperation between the this division applies, on the effectiveness of or excise treatment, or WTO and the ILO; the penalty or remedy applied under United (iii) such additional duties, (2) seek to establish consultative mecha- States law in enforcing United States rights as the President determines to be required or nisms among parties to trade agreements to under the trade agreement; and strengthen the capacity of United States appropriate to carry out any such trade (12) seek to establish consultative mecha- agreement. trading partners to promote respect for core nisms among parties to trade agreements to labor standards (as defined in section examine the trade consequences of signifi- The President shall notify the Congress of 1113(2)), and report to the Committee on cant and unanticipated currency movements the President’s intention to enter into an Ways and Means of the House of Representa- and to scrutinize whether a foreign govern- agreement under this subsection. tives and the Committee on Finance of the ment engaged in a pattern of manipulating (2) LIMITATIONS.—No proclamation may be Senate on the content and operation of such its currency to promote a competitive ad- made under paragraph (1) that— mechanisms; vantage in international trade. (A) reduces any rate of duty (other than a (3) seek to establish consultative mecha- The report required under paragraph (11) rate of duty that does not exceed 5 percent nisms among parties to trade agreements to shall address whether the penalty or remedy ad valorem on the date of the enactment of strengthen the capacity of United States was effective in changing the behavior of the this Act) to a rate of duty which is less than trading partners to develop and implement targeted party and whether the penalty or 50 percent of the rate of such duty that ap- standards for the protection of the environ- remedy had any adverse impact on parties or plies on such date of enactment; ment and human health based on sound interests not party to the dispute. (B) reduces the rate of duty below that ap- science, and report to the Committee on (d) CONSULTATIONS.— plicable under the Uruguay Round Agree- Ways and Means of the House of Representa- (1) CONSULTATIONS WITH CONGRESSIONAL AD- ments, on any agricultural product which tives and the Committee on Finance of the VISERS.—In the course of negotiations con- was the subject of tariff reductions by the Senate on the content and operation of such ducted under this division, the United States United States as a result of the Uruguay mechanisms; Trade Representative shall consult closely Round Agreements, for which the rate of (4) conduct environmental reviews of fu- and on a timely basis with, and keep fully duty, pursuant to such Agreements, was re- ture trade and investment agreements, con- apprised of the negotiations, the Congres- duced on January 1, 1995, to a rate which was sistent with Executive Order 13141 of Novem- sional Oversight Group convened under sec- not less than 97.5 percent of the rate of duty ber 16, 1999 and the relevant guidelines, and tion 1107 and all committees of the House of that applied to such article on December 31, report to the Committee on Ways and Means Representatives and the Senate with juris- 1994; or of the House of Representatives and the diction over laws that would be affected by a (C) increases any rate of duty above the Committee on Finance of the Senate on such trade agreement resulting from the negotia- rate that applied on the date of the enact- reviews; tions. ment of this Act. (5) review the impact of future trade agree- (2) CONSULTATION BEFORE AGREEMENT INI- (3) AGGREGATE REDUCTION; EXEMPTION FROM ments on United States employment, mod- TIALED.—In the course of negotiations con- STAGING.— eled after Executive Order 13141, and report ducted under this division, the United States (A) AGGREGATE REDUCTION.—Except as pro- to the Committee on Ways and Means of the Trade Representative shall— vided in subparagraph (B), the aggregate re- House of Representatives and the Committee (A) consult closely and on a timely basis duction in the rate of duty on any article on Finance of the Senate on such review; (including immediately before initialing an which is in effect on any day pursuant to a S4170 CONGRESSIONAL RECORD — SENATE May 9, 2002

trade agreement entered into under para- (i) the reduction or elimination of a duty, (A) REPORT BY THE ADVISORY COMMITTEE.— graph (1) shall not exceed the aggregate re- restriction, barrier, or other distortion de- The President shall promptly inform the Ad- duction which would have been in effect on scribed in subparagraph (A), or visory Committee for Trade Policy and Ne- such day if— (ii) the prohibition of, or limitation on the gotiations established under section 135 of (i) a reduction of 3 percent ad valorem or a imposition of, such barrier or other distor- the Trade Act of 1974 (19 U.S.C. 2155) of the reduction of one-tenth of the total reduction, tion. President’s decision to submit a report to whichever is greater, had taken effect on the (C) TIME PERIOD.—The President may enter the Congress under paragraph (2). The Advi- effective date of the first reduction pro- into a trade agreement under this paragraph sory Committee shall submit to the Congress claimed under paragraph (1) to carry out before— as soon as practicable, but not later than such agreement with respect to such article; (i) June 1, 2005; or May 1, 2005, a written report that contains— and (ii) June 1, 2007, if trade authorities proce- (i) its views regarding the progress that (ii) a reduction equal to the amount appli- dures are extended under subsection (c). has been made in negotiations to achieve the cable under clause (i) had taken effect at 1- (2) CONDITIONS.—A trade agreement may be purposes, policies, priorities, and objectives year intervals after the effective date of such entered into under this subsection only if of this division; and first reduction. such agreement makes progress in meeting (ii) a statement of its views, and the rea- (B) EXEMPTION FROM STAGING.—No staging the applicable objectives described in section sons therefor, regarding whether the exten- is required under subparagraph (A) with re- 1102 (a) and (b) and the President satisfies sion requested under paragraph (2) should be spect to a duty reduction that is proclaimed the conditions set forth in section 1104. approved or disapproved. under paragraph (1) for an article of a kind (3) BILLS QUALIFYING FOR TRADE AUTHORI- (B) REPORT BY ITC.—The President shall that is not produced in the United States. TIES PROCEDURES.— promptly inform the International Trade The United States International Trade Com- (A) APPLICATION OF EXPEDITED PROCE- Commission of the President’s decision to mission shall advise the President of the DURES.—The provisions of section 151 of the submit a report to the Congress under para- identity of articles that may be exempted Trade Act of 1974 (in this division referred to graph (2). The International Trade Commis- from staging under this subparagraph. as ‘‘trade authorities procedures’’) apply to a sion shall submit to the Congress as soon as (4) ROUNDING.—If the President determines bill of either House of Congress which con- practicable, but not later than May 1, 2005, a that such action will simplify the computa- tains provisions described in subparagraph written report that contains a review and tion of reductions under paragraph (3), the (B) to the same extent as such section 151 ap- analysis of the economic impact on the President may round an annual reduction by plies to implementing bills under that sec- United States of all trade agreements imple- an amount equal to the lesser of— tion. A bill to which this paragraph applies mented between the date of enactment of (A) the difference between the reduction shall hereafter in this division be referred to this Act and the date on which the President without regard to this paragraph and the as an ‘‘implementing bill’’. decides to seek an extension requested under next lower whole number; or (B) PROVISIONS DESCRIBED.—The provisions paragraph (2). (B) one-half of 1 percent ad valorem. referred to in subparagraph (A) are— (4) STATUS OF REPORTS.—The reports sub- (i) a provision approving a trade agreement mitted to the Congress under paragraphs (2) (5) OTHER LIMITATIONS.—A rate of duty re- duction that may not be proclaimed by rea- entered into under this subsection and ap- and (3), or any portion of such reports, may son of paragraph (2) may take effect only if proving the statement of administrative ac- be classified to the extent the President de- tion, if any, proposed to implement such termines appropriate. a provision authorizing such reduction is in- trade agreement; and (5) EXTENSION DISAPPROVAL RESOLUTIONS.— cluded within an implementing bill provided (ii) if changes in existing laws or new stat- (A) DEFINITION.—For purposes of paragraph for under section 1105 and that bill is enacted utory authority are required to implement (1), the term ‘‘extension disapproval resolu- into law. such trade agreement or agreements, provi- tion’’ means a resolution of either House of (6) OTHER TARIFF MODIFICATIONS.—Notwith- sions, necessary or appropriate to implement the Congress, the sole matter after the re- standing paragraphs (1)(B), (2)(A), (2)(C), and such trade agreement or agreements, either solving clause of which is as follows: ‘‘That (3) through (5), and subject to the consulta- repealing or amending existing laws or pro- the ll disapproves the request of the Presi- tion and layover requirements of section 115 viding new statutory authority. dent for the extension, under section of the Uruguay Round Agreements Act, the 1103(c)(1)(B)(i) of the Bipartisan Trade Pro- President may proclaim the modification of (c) EXTENSION DISAPPROVAL PROCESS FOR motion Authority Act of 2002, of the trade any duty or staged rate reduction of any CONGRESSIONAL TRADE AUTHORITIES PROCE- authorities procedures under that Act to any duty set forth in Schedule XX, as defined in DURES.— implementing bill submitted with respect to section 2(5) of that Act, if the United States (1) IN GENERAL.—Except as provided in sec- any trade agreement entered into under sec- agrees to such modification or staged rate tion 1105(b)— tion 1103(b) of that Act after June 30, 2005.’’, reduction in a negotiation for the reciprocal (A) the trade authorities procedures apply with the blank space being filled with the elimination or harmonization of duties under to implementing bills submitted with re- name of the resolving House of the Congress. the auspices of the World Trade Organiza- spect to trade agreements entered into under (B) INTRODUCTION.—Extension disapproval tion. subsection (b) before July 1, 2005; and resolutions— (7) AUTHORITY UNDER URUGUAY ROUND (B) the trade authorities procedures shall (i) may be introduced in either House of AGREEMENTS ACT NOT AFFECTED.—Nothing in be extended to implementing bills submitted the Congress by any member of such House; this subsection shall limit the authority pro- with respect to trade agreements entered and vided to the President under section 111(b) of into under subsection (b) after June 30, 2005, (ii) shall be referred, in the House of Rep- the Uruguay Round Agreements Act (19 and before July 1, 2007, if (and only if)— resentatives, to the Committee on Ways and U.S.C. 3521(b)). (i) the President requests such extension under paragraph (2); and Means and, in addition, to the Committee on (b) AGREEMENTS REGARDING TARIFF AND (ii) neither House of the Congress adopts Rules. NONTARIFF BARRIERS.— an extension disapproval resolution under (C) APPLICATION OF SECTION 152 OF THE (1) IN GENERAL.— paragraph (5) before June 1, 2005. TRADE ACT OF 1974.—The provisions of section (A) DETERMINATION BY PRESIDENT.—When- (2) REPORT TO CONGRESS BY THE PRESI- 152 (d) and (e) of the Trade Act of 1974 (19 ever the President determines that— DENT.—If the President is of the opinion that U.S.C. 2192 (d) and (e)) (relating to the floor (i) one or more existing duties or any other the trade authorities procedures should be consideration of certain resolutions in the import restriction of any foreign country or extended to implementing bills described in House and Senate) apply to extension dis- the United States or any other barrier to, or paragraph (1)(B), the President shall submit approval resolutions. other distortion of, international trade un- to the Congress, not later than March 1, 2005, (D) LIMITATIONS.—It is not in order for— duly burdens or restricts the foreign trade of a written report that contains a request for (i) the Senate to consider any extension the United States or adversely affects the such extension, together with— disapproval resolution not reported by the United States economy; or (A) a description of all trade agreements Committee on Finance; (ii) the imposition of any such barrier or that have been negotiated under subsection (ii) the House of Representatives to con- distortion is likely to result in such a bur- (b) and the anticipated schedule for submit- sider any extension disapproval resolution den, restriction, or effect; ting such agreements to the Congress for ap- not reported by the Committee on Ways and and that the purposes, policies, priorities, proval; Means and, in addition, by the Committee on and objectives of this division will be pro- (B) a description of the progress that has Rules; or moted thereby, the President may enter into been made in negotiations to achieve the (iii) either House of the Congress to con- a trade agreement described in subparagraph purposes, policies, priorities, and objectives sider an extension disapproval resolution (B) during the period described in subpara- of this division, and a statement that such after June 30, 2005. graph (C). progress justifies the continuation of nego- (d) COMMENCEMENT OF NEGOTIATIONS.—In (B) AGREEMENT TO REDUCE OR ELIMINATE tiations; and order to contribute to the continued eco- CERTAIN DISTORTION.—The President may (C) a statement of the reasons why the ex- nomic expansion of the United States, the enter into a trade agreement under subpara- tension is needed to complete the negotia- President shall commence negotiations cov- graph (A) with foreign countries providing tions. ering tariff and nontariff barriers affecting for— (3) OTHER REPORTS TO CONGRESS.— any industry, product, or service sector, and May 9, 2002 CONGRESSIONAL RECORD — SENATE S4171 expand existing sectoral agreements to coun- ucts subject to tariff reductions by the er the negotiation provides an opportunity tries that are not parties to those agree- United States as a result of the Uruguay to address any such disparity. The President ments, in cases where the President deter- Round Agreements, for which the rate of shall consult with the Committee on Ways mines that such negotiations are feasible duty was reduced on January 1, 1995, to a and Means of the House of Representatives and timely and would benefit the United rate which was not less than 97.5 percent of and the Committee on Finance of the Senate States. Such sectors include agriculture, the rate of duty that applied to such article concerning the results of the assessment, commercial services, intellectual property on December 31, 1994; whether it is appropriate for the United rights, industrial and capital goods, govern- (ii) consult with the Committee on Ways States to agree to further tariff reductions ment procurement, information technology and Means and the Committee on Agri- based on the conclusions reached in the as- products, environmental technology and culture of the House of Representatives and sessment, and how all applicable negotiating services, medical equipment and services, the Committee on Finance and the Com- objectives will be met. civil aircraft, and infrastructure products. In mittee on Agriculture, Nutrition, and For- (d) CONSULTATION WITH CONGRESS BEFORE so doing, the President shall take into ac- estry of the Senate concerning— AGREEMENTS ENTERED INTO.— count all of the principal negotiating objec- (I) whether any further tariff reductions on (1) CONSULTATION.—Before entering into tives set forth in section 1102(b). the products identified under clause (i) any trade agreement under section 1103(b), the President shall consult with— SEC. 1104. CONSULTATIONS AND ASSESSMENT. should be appropriate, taking into account the impact of any such tariff reduction on (A) the Committee on Ways and Means of (a) NOTICE AND CONSULTATION BEFORE NE- the House of Representatives and the Com- the United States industry producing the GOTIATION.—The President, with respect to mittee on Finance of the Senate; product concerned; any agreement that is subject to the provi- (B) each other committee of the House and (II) whether the products so identified face sions of section 1103(b), shall— the Senate, and each joint committee of the unjustified sanitary or phytosanitary re- (1) provide, at least 90 calendar days before Congress, which has jurisdiction over legisla- strictions, including those not based on sci- initiating negotiations, written notice to the tion involving subject matters which would entific principles in contravention of the Congress of the President’s intention to be affected by the trade agreement; and Uruguay Round Agreements; and enter into the negotiations and set forth (C) the Congressional Oversight Group con- (III) whether the countries participating in therein the date the President intends to ini- vened under section 1107. the negotiations maintain export subsidies tiate such negotiations, the specific United (2) SCOPE.—The consultation described in States objectives for the negotiations, and or other programs, policies, or practices that paragraph (1) shall include consultation with whether the President intends to seek an distort world trade in such products and the respect to— agreement, or changes to an existing agree- impact of such programs, policies, and prac- (A) the nature of the agreement; ment; tices on United States producers of the prod- (B) how and to what extent the agreement (2) before and after submission of the no- ucts; will achieve the applicable purposes, poli- tice, consult regarding the negotiations with (iii) request that the International Trade cies, priorities, and objectives of this divi- the Committee on Finance of the Senate and Commission prepare an assessment of the sion; and the Committee on Ways and Means of the probable economic effects of any such tariff (C) the implementation of the agreement House of Representatives, such other com- reduction on the United States industry pro- under section 1105, including the general ef- mittees of the House and Senate as the ducing the product concerned and on the fect of the agreement on existing laws. President deems appropriate, and the Con- United States economy as a whole; and (3) REPORT REGARDING UNITED STATES gressional Oversight group convened under (iv) upon complying with clauses (i), (ii), TRADE REMEDY LAWS.— section 1107; and and (iii), notify the Committee on Ways and (A) CHANGES IN CERTAIN TRADE LAWS.—The (3) upon the request of a majority of the Means and the Committee on Agriculture of President, at least 90 calendar days before members of the Congressional Oversight the House of Representatives and the Com- the day on which the President enters into a Group under section 1107(c), meet with the mittee on Finance and the Committee on Ag- trade agreement, shall notify the Committee Congressional Oversight Group before initi- riculture, Nutrition, and Forestry of the on Ways and Means of the House of Rep- ating the negotiations or at any other time Senate of those products identified under resentatives and the Committee on Finance concerning the negotiations. clause (i) for which the Trade Representative of the Senate in writing of any amendments (b) NEGOTIATIONS REGARDING AGRICULTURE intends to seek tariff liberalization in the to title VII of the Tariff Act of 1930 or chap- AND FISHING INDUSTRY.— negotiations and the reasons for seeking ter 1 of title II of the Trade Act of 1974 that (1) IN GENERAL.—Before initiating or con- such tariff liberalization. the President proposes to include in a bill tinuing negotiations the subject matter of (B) IDENTIFICATION OF ADDITIONAL AGRICUL- implementing such trade agreement. which is directly related to the subject mat- TURAL PRODUCTS.—If, after negotiations de- (B) EXPLANATION.—On the date that the ter under section 1102(b)(10)(A)(i) with any scribed in subparagraph (A) are President transmits the notification, the country, the President shall assess whether commenced— President also shall transmit to the Commit- United States tariffs on agricultural prod- (i) the United States Trade Representative tees a report explaining— ucts that were bound under the Uruguay identifies any additional agricultural prod- (i) the President’s reasons for believing Round Agreements are lower than the tariffs uct described in subparagraph (A)(i) for tariff that amendments to title VII of the Tariff bound by that country. In addition, the reductions which were not the subject of a Act of 1930 or to chapter 1 of title II of the President shall consider whether the tariff notification under subparagraph (A)(iv), or Trade Act of 1974 are necessary to implement levels bound and applied throughout the (ii) any additional agricultural product de- the trade agreement; and world with respect to imports from the scribed in subparagraph (A)(i) is the subject (ii) the President’s reasons for believing United States are higher than United States of a request for tariff reductions by a party that such amendments are consistent with tariffs and whether the negotiation provides to the negotiations, the purposes, policies, and objectives de- an opportunity to address any such dis- the Trade Representative shall, as soon as scribed in section 1102(c)(9). parity. The President shall consult with the practicable, notify the committees referred (C) REPORT TO HOUSE.—Not later than 60 Committee on Ways and Means and the Com- to in subparagraph (A)(iv) of those products calendar days after the date on which the mittee on Agriculture of the House of Rep- and the reasons for seeking such tariff reduc- President transmits the notification de- resentatives and the Committee on Finance tions. scribed in subparagraph (A), the Chairman and the Committee on Agriculture, Nutri- (3) NEGOTIATIONS REGARDING THE FISHING and ranking member of the Ways and Means tion, and Forestry of the Senate concerning INDUSTRY.—Before initiating, or continuing, Committee of the House of Representatives, the results of the assessment, whether it is negotiations which directly relate to fish or based on consultations with the members of appropriate for the United States to agree to shellfish trade with any country, the Presi- that Committee, shall issue to the House of further tariff reductions based on the conclu- dent shall consult with the Committee on Representatives a report stating whether the sions reached in the assessment, and how all Ways and Means and the Committee on Re- proposed amendments described in the Presi- applicable negotiating objectives will be sources of the House of Representatives, and dent’s notification are consistent with the met. the Committee on Finance and the Com- purposes, policies, and objectives described (2) SPECIAL CONSULTATIONS ON IMPORT SEN- mittee on Commerce, Science, and Transpor- in section 1102(c)(9). In the event that the SITIVE PRODUCTS.— tation of the Senate, and shall keep the Chairman and ranking member disagree with (A) IN GENERAL.—Before initiating negotia- Committees apprised of negotiations on an respect to one or more conclusions, the re- tions with regard to agriculture, and, with ongoing and timely basis. port shall contain the separate views of the respect to the Free Trade Area for the Amer- (c) NEGOTIATIONS REGARDING TEXTILES.— Chairman and ranking member. icas and negotiations with regard to agri- Before initiating or continuing negotiations (D) REPORT TO SENATE.—Not later than 60 culture under the auspices of the World the subject matter of which is directly re- calendar days after the date on which the Trade Organization, as soon as practicable lated to textiles and apparel products with President transmits the notification de- after the date of enactment of this Act, the any country, the President shall assess scribed in subparagraph (A), the Chairman United States Trade Representative shall— whether United States tariffs on textile and and ranking member of the Finance Com- (i) identify those agricultural products apparel products that were bound under the mittee of the Senate, based on consultations subject to tariff-rate quotas on the date of Uruguay Round Agreements are lower than with the members of that Committee, shall enactment of this Act, and agricultural prod- the tariffs bound by that country and wheth- issue to the Senate a report stating whether S4172 CONGRESSIONAL RECORD — SENATE May 9, 2002

the proposed amendments described in the United States into compliance with the (A) IN GENERAL.—The trade authorities President’s report are consistent with the agreement; procedures shall not apply to any imple- purposes, policies, and objectives described (C) after entering into the agreement, the menting bill submitted with respect to a in section 1102(c)(9). In the event that the President submits to the Congress, on a day trade agreement or trade agreements entered Chairman and ranking member disagree with on which both Houses of Congress are in ses- into under section 1103(b) if during the 60-day respect to one or more conclusions, the re- sion, a copy of the final legal text of the period beginning on the date that one House port shall contain the separate views of the agreement, together with— of Congress agrees to a procedural dis- Chairman and ranking member. (i) a draft of an implementing bill de- approval resolution for lack of notice or con- (e) ADVISORY COMMITTEE REPORTS.—The re- scribed in section 1103(b)(3); sultations with respect to such trade agree- port required under section 135(e)(1) of the (ii) a statement of any administrative ac- ment or agreements, the other House sepa- Trade Act of 1974 regarding any trade agree- tion proposed to implement the trade agree- rately agrees to a procedural disapproval res- ment entered into under section 1103 (a) or ment; and olution with respect to such trade agreement (b) of this division shall be provided to the (iii) the supporting information described or agreements. President, the Congress, and the United in paragraph (2); and (B) PROCEDURAL DISAPPROVAL RESOLU- States Trade Representative not later than (D) the implementing bill is enacted into TION.—(i) For purposes of this paragraph, the 30 days after the date on which the President law. term ‘‘procedural disapproval resolution’’ notifies the Congress under section 1103(a)(1) (2) SUPPORTING INFORMATION.—The sup- means a resolution of either House of Con- or 1105(a)(1)(A) of the President’s intention porting information required under para- gress, the sole matter after the resolving graph (1)(C)(iii) consists of— to enter into the agreement. clause of which is as follows: ‘‘That the (A) an explanation as to how the imple- (f) ITC ASSESSMENT.— President has failed or refused to notify or menting bill and proposed administrative ac- (1) IN GENERAL.—The President, at least 90 consult in accordance with the Bipartisan tion will change or affect existing law; and calendar days before the day on which the Trade Promotion Authority Act of 2002 on (B) a statement— President enters into a trade agreement negotiations with respect to and, (i) asserting that the agreement makes llllll under section 1103(b), shall provide the Inter- therefore, the trade authorities procedures progress in achieving the applicable pur- national Trade Commission (referred to in under that Act shall not apply to any imple- poses, policies, priorities, and objectives of this subsection as ‘‘the Commission’’) with menting bill submitted with respect to such the details of the agreement as it exists at this division; and (ii) setting forth the reasons of the Presi- trade agreement or agreements.’’, with the that time and request the Commission to blank space being filled with a description of prepare and submit an assessment of the dent regarding— (I) how and to what extent the agreement the trade agreement or agreements with re- agreement as described in paragraph (2). Be- makes progress in achieving the applicable spect to which the President is considered to tween the time the President makes the re- purposes, policies, and objectives referred to have failed or refused to notify or consult. quest under this paragraph and the time the in clause (i); (ii) For purposes of clause (i), the President Commission submits the assessment, the (II) whether and how the agreement has ‘‘failed or refused to notify or consult in President shall keep the Commission current changes provisions of an agreement pre- accordance with the Bipartisan Trade Pro- with respect to the details of the agreement. viously negotiated; motion Authority Act of 2002’’ on negotia- (2) ITC ASSESSMENT.—Not later than 90 cal- (III) how the agreement serves the inter- tions with respect to a trade agreement or endar days after the President enters into ests of United States commerce; trade agreements if— the agreement, the Commission shall submit (IV) how the implementing bill meets the (I) the President has failed or refused to to the President and the Congress a report standards set forth in section 1103(b)(3); consult (as the case may be) in accordance assessing the likely impact of the agreement (V) how and to what extent the agreement with section 1104 or 1105 with respect to the on the United States economy as a whole makes progress in achieving the applicable negotiations, agreement, or agreements; and on specific industry sectors, including purposes, policies, and objectives referred to (II) guidelines under section 1107(b) have the impact the agreement will have on the in section 1102(c) regarding the promotion of not been developed or met with respect to gross domestic product, exports and imports, certain priorities; and the negotiations, agreement, or agreements; aggregate employment and employment op- (VI) in the event that the reports described (III) the President has not met with the portunities, the production, employment, in section 1104(b)(3) (C) and (D) contain any Congressional Oversight Group pursuant to a and competitive position of industries likely findings that the proposed amendments are request made under section 1107(c) with re- to be significantly affected by the agree- inconsistent with the purposes, policies, and spect to the negotiations, agreement, or ment, and the interests of United States con- objectives described in section 1102(c)(9), an agreements; or sumers. explanation as to why the President believes (IV) the agreement or agreements fail to (3) REVIEW OF EMPIRICAL LITERATURE.—In such findings to be incorrect. make progress in achieving the purposes, preparing the assessment, the Commission (3) RECIPROCAL BENEFITS.—In order to en- policies, priorities, and objectives of this di- shall review available economic assessments sure that a foreign country that is not a vision. regarding the agreement, including lit- party to a trade agreement entered into (C) PROCEDURES FOR CONSIDERING RESOLU- erature regarding any substantially equiva- under section 1103(b) does not receive bene- TIONS.—(i) Procedural disapproval lent proposed agreement, and shall provide fits under the agreement unless the country resolutions— in its assessment a description of the anal- is also subject to the obligations under the (I) in the House of Representatives— yses used and conclusions drawn in such lit- agreement, the implementing bill submitted (aa) may be introduced by any Member of erature, and a discussion of areas of con- with respect to the agreement shall provide the House; sensus and divergence between the various that the benefits and obligations under the (bb) shall be referred to the Committee on analyses and conclusions, including those of agreement apply only to the parties to the Ways and Means and, in addition, to the the Commission regarding the agreement. agreement, if such application is consistent Committee on Rules; and SEC. 1105. IMPLEMENTATION OF TRADE AGREE- with the terms of the agreement. The imple- (cc) may not be amended by either Com- MENTS. menting bill may also provide that the bene- mittee; and (a) IN GENERAL.— fits and obligations under the agreement do (II) in the Senate— (1) NOTIFICATION AND SUBMISSION.—Any not apply uniformly to all parties to the (aa) may be introduced by any Member of agreement entered into under section 1103(b) agreement, if such application is consistent the Senate. shall enter into force with respect to the with the terms of the agreement. (bb) shall be referred to the Committee on United States if (and only if)— (4) DISCLOSURE OF COMMITMENTS.—Any Finance; and (A) the President, at least 90 calendar days agreement or other understanding with a (cc) may not be amended. before the day on which the President enters foreign government or governments (whether (ii) The provisions of section 152(d) and (e) into an agreement— oral or in writing) that— of the Trade Act of 1974 (19 U.S.C. 2192(d) and (i) notifies the House of Representatives (A) relates to a trade agreement with re- (e)) (relating to the floor consideration of and the Senate of the President’s intention spect to which Congress enacts imple- certain resolutions in the House and Senate) to enter into the agreement, and promptly menting legislation under trade authorities apply to a procedural disapproval resolution thereafter publishes notice of such intention procedures, and introduced with respect to a trade agreement in the Federal Register; and (B) is not disclosed to Congress before leg- if no other procedural disapproval resolution (ii) transmits to the Committee on Ways islation implementing that agreement is in- with respect to that trade agreement has and Means of the House of Representatives troduced in either House of Congress, previously been considered under such provi- and the Committee on Finance of the Senate shall not be considered to be part of the sions of section 152 of the Trade Act of 1974 the notification and report described in sec- agreement approved by Congress and shall in that House of Congress during that Con- tion 1104(d)(3) (A) and (B); have no force and effect under United States gress. (B) within 60 days after entering into the law or in any dispute settlement body. (iii) It is not in order for the House of Rep- agreement, the President submits to the (b) LIMITATIONS ON TRADE AUTHORITIES resentatives to consider any procedural dis- Congress a description of those changes to PROCEDURES.— approval resolution not reported by the Com- existing laws that the President considers (1) FOR LACK OF NOTICE OR CONSULTA- mittee on Ways and Means and, in addition, would be required in order to bring the TIONS.— by the Committee on Rules. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4173

(iv) It is not in order for the Senate to con- (2) MEMBERSHIP FROM THE HOUSE.—In each practicable after the Congressional Over- sider any procedural disapproval resolution Congress, the Congressional Oversight Group sight Group is convened, with more frequent not reported by the Committee on Finance. shall be comprised of the following Members briefings as trade negotiations enter the (2) FOR FAILURE TO MEET OTHER REQUIRE- of the House of Representatives: final stage; MENTS.—Prior to December 31, 2002, the Sec- (A) The chairman and ranking member of (B) access by members of the Congressional retary of Commerce shall transmit to Con- the Committee on Ways and Means, and 3 ad- Oversight Group, and staff with proper secu- gress a report setting forth the strategy of ditional members of such Committee (not rity clearances, to pertinent documents re- the United States for correcting instances in more than 2 of whom are members of the lating to the negotiations, including classi- which dispute settlement panels and the Ap- same political party). fied materials; pellate Body of the WTO have added to obli- (B) The chairman and ranking member, or (C) the closest practicable coordination be- gations or diminished rights of the United their designees, of the committees of the tween the Trade Representative and the Con- States, as described in section 1101(b)(3). House of Representatives which would have, gressional Oversight Group at all critical pe- Trade authorities procedures shall not apply under the Rules of the House of Representa- riods during the negotiations, including at to any implementing bill with respect to an tives, jurisdiction over provisions of law af- negotiation sites; agreement negotiated under the auspices of fected by a trade agreement negotiations for (D) after the applicable trade agreement is the WTO, unless the Secretary of Commerce which are conducted at any time during that concluded, consultation regarding ongoing has issued such report in a timely manner. Congress and to which this division would compliance and enforcement of negotiated (c) RULES OF HOUSE OF REPRESENTATIVES apply. commitments under the trade agreement; AND SENATE.—Subsection (b) of this section (3) MEMBERSHIP FROM THE SENATE.—In each and and section 1103(c) are enacted by the Congress, the Congressional Oversight Group (E) the time frame for submitting the re- Congress— shall also be comprised of the following port required under section 1102(c)(8). (1) as an exercise of the rulemaking power members of the Senate: (c) REQUEST FOR MEETING.—Upon the re- of the House of Representatives and the Sen- (A) The chairman and ranking Member of quest of a majority of the Congressional ate, respectively, and as such are deemed a the Committee on Finance and 3 additional Oversight Group, the President shall meet part of the rules of each House, respectively, members of such Committee (not more than with the Congressional Oversight Group be- and such procedures supersede other rules 2 of whom are members of the same political fore initiating negotiations with respect to a only to the extent that they are inconsistent party). trade agreement, or at any other time con- with such other rules; and (B) The chairman and ranking member, or cerning the negotiations. their designees, of the committees of the (2) with the full recognition of the con- SEC. 1108. ADDITIONAL IMPLEMENTATION AND stitutional right of either House to change Senate which would have, under the Rules of ENFORCEMENT REQUIREMENTS. the Senate, jurisdiction over provisions of the rules (so far as relating to the procedures (a) IN GENERAL.—At the time the President of that House) at any time, in the same man- law affected by a trade agreement negotia- submits to the Congress the final text of an tions for which are conducted at any time ner, and to the same extent as any other rule agreement pursuant to section 1105(a)(1)(C), during that Congress and to which this divi- of that House. the President shall also submit a plan for sion would apply. SEC. 1106. TREATMENT OF CERTAIN TRADE implementing and enforcing the agreement. (4) ACCREDITATION.—Each member of the AGREEMENTS FOR WHICH NEGOTIA- The implementation and enforcement plan Congressional Oversight Group described in TIONS HAVE ALREADY BEGUN. shall include the following: paragraph (2)(A) and (3)(A) shall be accred- (a) CERTAIN AGREEMENTS.—Notwith- (1) BORDER PERSONNEL REQUIREMENTS.—A ited by the United States Trade Representa- standing the prenegotiation notification and description of additional personnel required tive on behalf of the President as official ad- consultation requirement described in sec- at border entry points, including a list of ad- visers to the United States delegation in ne- tion 1104(a), if an agreement to which section ditional customs and agricultural inspectors. 1103(b) applies— gotiations for any trade agreement to which this division applies. Each member of the (2) AGENCY STAFFING REQUIREMENTS.—A de- (1) is entered into under the auspices of the scription of additional personnel required by World Trade Organization, Congressional Oversight Group described in paragraph (2)(B) and (3)(B) shall be accred- Federal agencies responsible for monitoring (2) is entered into with Chile, ited by the United States Trade Representa- and implementing the trade agreement, in- (3) is entered into with Singapore, or tive on behalf of the President as official ad- cluding personnel required by the Office of (4) establishes a Free Trade Area for the visers to the United States delegation in the the United States Trade Representative, the Americas, negotiations by reason of which the member Department of Commerce, the Department and results from negotiations that were com- is in the Congressional Oversight Group. The of Agriculture (including additional per- menced before the date of the enactment of Congressional Oversight Group shall consult sonnel required to implement sanitary and this Act, subsection (b) shall apply. with and provide advice to the Trade Rep- phytosanitary measures in order to obtain (b) TREATMENT OF AGREEMENTS.—In the resentative regarding the formulation of spe- market access for United States exports), case of any agreement to which subsection cific objectives, negotiating strategies and the Department of the Treasury, and such (a) applies— positions, the development of the applicable other agencies as may be necessary. (1) the applicability of the trade authori- trade agreement, and compliance and en- (3) CUSTOMS INFRASTRUCTURE REQUIRE- ties procedures to implementing bills shall forcement of the negotiated commitments MENTS.—A description of the additional be determined without regard to the require- under the trade agreement. equipment and facilities needed by the ments of section 1104(a) (relating only to 90 (5) CHAIR.—The Congressional Oversight United States Customs Service. days notice prior to initiating negotiations), Group shall be chaired by the Chairman of (4) IMPACT ON STATE AND LOCAL GOVERN- and any procedural disapproval resolution the Committee on Ways and Means of the MENTS.—A description of the impact the under section 1105(b)(1)(B) shall not be in House of Representatives and the Chairman trade agreement will have on State and local order on the basis of a failure or refusal to of the Committee on Finance of the Senate. governments as a result of increases in comply with the provisions of section 1104(a); (b) GUIDELINES.— trade. and (1) PURPOSE AND REVISION.—The United (5) COST ANALYSIS.—An analysis of the (2) the President shall, as soon as feasible States Trade Representative, in consultation costs associated with each of the items listed after the date of enactment of this Act— with the chairmen and ranking minority in paragraphs (1) through (4). (A) notify the Congress of the negotiations members of the Committee on Ways and (b) BUDGET SUBMISSION.—The President described in subsection (a), the specific Means of the House of Representatives and shall include a request for the resources nec- United States objectives in the negotiations, the Committee on Finance of the Senate— essary to support the plan described in sub- and whether the President is seeking a new (A) shall, within 120 days after the date of section (a) in the first budget that the Presi- agreement or changes to an existing agree- the enactment of this Act, develop written dent submits to the Congress after the sub- ment; and guidelines to facilitate the useful and timely mission of the plan. (B) before and after submission of the no- exchange of information between the Trade SEC. 1109. COMMITTEE STAFF. tice, consult regarding the negotiations with Representative and the Congressional Over- The grant of trade promotion authority the committees referred to in section sight Group established under this section; under this division is likely to increase the 1104(a)(2) and the Congressional Oversight and activities of the primary committees of ju- Group. (B) may make such revisions to the guide- risdiction in the area of international trade. SEC. 1107. CONGRESSIONAL OVERSIGHT GROUP. lines as may be necessary from time to time. In addition, the creation of the Congres- (a) MEMBERS AND FUNCTIONS.— (2) CONTENT.—The guidelines developed sional Oversight Group under section 1107 (1) IN GENERAL.—By not later than 60 days under paragraph (1) shall provide for, among will increase the participation of a broader after the date of the enactment of this Act, other things— number of Members of Congress in the for- and not later than 30 days after the con- (A) regular, detailed briefings of the Con- mulation of United States trade policy and vening of each Congress, the chairman of the gressional Oversight Group regarding negoti- oversight of the international trade agenda Committee on Ways and Means of the House ating objectives, including the promotion of for the United States. The primary commit- of Representatives and the chairman of the certain priorities referred to in section tees of jurisdiction should have adequate Committee on Finance of the Senate shall 1102(c), and positions and the status of the staff to accommodate these increases in ac- convene the Congressional Oversight Group. applicable negotiations, beginning as soon as tivities. S4174 CONGRESSIONAL RECORD — SENATE May 9, 2002

SEC. 1110. CONFORMING AMENDMENTS. (6) TRANSMISSION OF AGREEMENTS TO CON- (A) the right of association; (a) IN GENERAL.—Title I of the Trade Act of GRESS.—Section 162(a) (19 U.S.C. 2212(a)) is (B) the right to organize and bargain col- 1974 (19 U.S.C. 2111 et seq.) is amended as fol- amended by striking ‘‘or under section 1102 lectively; lows: of the Omnibus Trade and Competitiveness (C) a prohibition on the use of any form of (1) IMPLEMENTING BILL.— Act of 1988’’ and inserting ‘‘or under section forced or compulsory labor; (A) Section 151(b)(1) (19 U.S.C. 2191(b)(1)) is 1103 of the Bipartisan Trade Promotion Au- (D) a minimum age for the employment of amended by striking ‘‘section 1103(a)(1) of thority Act of 2002’’. children; and the Omnibus Trade and Competitiveness Act (b) APPLICATION OF CERTAIN PROVISIONS.— (E) acceptable conditions of work with re- of 1988, or section 282 of the Uruguay Round For purposes of applying sections 125, 126, spect to minimum wages, hours of work, and Agreements Act’’ and inserting ‘‘section 282 and 127 of the Trade Act of 1974 (19 U.S.C. occupational safety and health. of the Uruguay Round Agreements Act, or 2135, 2136(a), and 2137)— (3) GATT 1994.—The term ‘‘GATT 1994’’ has section 1105(a)(1) of the Bipartisan Trade (1) any trade agreement entered into under the meaning given that term in section 2 of Promotion Authority Act of 2002’’. section 1103 shall be treated as an agreement the Uruguay Round Agreements Act (19 (B) Section 151(c)(1) (19 U.S.C. 2191(c)(1)) is entered into under section 101 or 102, as ap- U.S.C. 3501). amended by striking ‘‘or section 282 of the propriate, of the Trade Act of 1974 (19 U.S.C. (4) ILO.—The term ‘‘ILO’’ means the Inter- Uruguay Round Agreements Act’’ and insert- 2111 or 2112); and national Labor Organization. ing ‘‘, section 282 of the Uruguay Round (2) any proclamation or Executive order (5) UNITED STATES PERSON.—The term Agreements Act, or section 1105(a)(1) of the issued pursuant to a trade agreement en- ‘‘United States person’’ means— Bipartisan Trade Promotion Authority Act tered into under section 1103 shall be treated (A) a United States citizen; of 2002’’. as a proclamation or Executive order issued (B) a partnership, corporation, or other (2) ADVICE FROM INTERNATIONAL TRADE COM- pursuant to a trade agreement entered into legal entity organized under the laws of the MISSION.—Section 131 (19 U.S.C. 2151) is under section 102 of the Trade Act of 1974. United States; and amended— SEC. 1111. REPORT ON IMPACT OF TRADE PRO- (C) a partnership, corporation, or other (A) in subsection (a)— MOTION AUTHORITY. legal entity that is organized under the laws (i) in paragraph (1), by striking ‘‘section (a) IN GENERAL.—Not later than 1 year of a foreign country and is controlled by en- 123 of this Act or section 1102 (a) or (c) of the after the date of enactment of this Act, the tities described in subparagraph (B) or Omnibus Trade and Competitiveness Act of International Trade Commission shall report United States citizens, or both. 1988,’’ and inserting ‘‘section 123 of this Act to the Committee on Finance of the Senate (6) URUGUAY ROUND AGREEMENTS.—The or section 1103 (a) or (b) of the Bipartisan and the Committee on Ways and Means of term ‘‘Uruguay Round Agreements’’ has the Trade Promotion Authority Act of 2002,’’; the House of Representatives regarding the meaning given that term in section 2(7) of and economic impact on the United States of the the Uruguay Round Agreements Act (19 (ii) in paragraph (2), by striking ‘‘section trade agreements described in subsection (b). U.S.C. 3501(7)). 1102 (b) or (c) of the Omnibus Trade and Com- (b) AGREEMENTS.—The trade agreements (7) WORLD TRADE ORGANIZATION; WTO.—The petitiveness Act of 1988’’ and inserting ‘‘sec- described in this subsection are: terms ‘‘World Trade Organization’’ and tion 1103(b) of the Bipartisan Trade Pro- (1) The United States-Israel Free Trade ‘‘WTO’’ mean the organization established motion Authority Act of 2002’’; Agreement. pursuant to the WTO Agreement. (B) in subsection (b), by striking ‘‘section (2) The United States-Canada Free Trade (8) WTO AGREEMENT.—The term ‘‘WTO 1102(a)(3)(A)’’ and inserting ‘‘section Agreement. Agreement’’ means the Agreement Estab- 1103(a)(3)(A) of the Bipartisan Trade Pro- (3) The North American Free Trade Agree- lishing the World Trade Organization en- motion Authority Act of 2002’’; and ment. tered into on April 15, 1994. (C) in subsection (c), by striking ‘‘section (4) The Uruguay Round Agreements. 1102 of the Omnibus Trade and Competitive- DIVISION B—ANDEAN TRADE (5) The Tokyo Round of Multilateral Trade PREFERENCE ness Act of 1988,’’ and inserting ‘‘section 1103 Negotiations. TITLE XXI—ANDEAN TRADE PREFERENCE of the Bipartisan Trade Promotion Author- SEC. 1112. IDENTIFICATION OF SMALL BUSINESS ity Act of 2002,’’. ADVOCATE AT WTO. SEC. 2101. SHORT TITLE. (3) HEARINGS AND ADVICE.—Sections 132, (a) IN GENERAL.—The United States Trade This division may be cited as the ‘‘Andean 133(a), and 134(a) (19 U.S.C. 2152, 2153(a), and Representative shall pursue the identifica- Trade Preference Expansion Act’’. 2154(a)) are each amended by striking ‘‘sec- tion of a small business advocate at the SEC. 2102. FINDINGS. tion 1102 of the Omnibus Trade and Competi- World Trade Organization Secretariat to ex- Congress makes the following findings: tiveness Act of 1988,’’ each place it appears amine the impact of WTO agreements on the (1) Since the Andean Trade Preference Act and inserting ‘‘section 1103 of the Bipartisan interests of small- and medium-sized enter- was enacted in 1991, it has had a positive im- Trade Promotion Authority Act of 2002,’’. prises, address the concerns of small- and pact on United States trade with Bolivia, Co- (4) PREREQUISITES FOR OFFERS.—Section medium-sized enterprises, and recommend lombia, Ecuador, and Peru. Two-way trade 134(b) (19 U.S.C. 2154(b)) is amended by strik- ways to address those interests in trade ne- has doubled, with the United States serving ing ‘‘section 1102 of the Omnibus Trade and gotiations involving the World Trade Organi- as the leading source of imports and leading Competitiveness Act of 1988’’ and inserting zation. export market for each of the Andean bene- ‘‘section 1103 of the Bipartisan Trade Pro- (b) ASSISTANT TRADE REPRESENTATIVE.— ficiary countries. This has resulted in in- motion Authority Act of 2002’’. The Assistant United States Trade Rep- creased jobs and expanded export opportuni- (5) ADVICE FROM PRIVATE AND PUBLIC SEC- resentative for Industry and Telecommuni- ties in both the United States and the Ande- TORS.—Section 135 (19 U.S.C. 2155) is cations shall be responsible for ensuring that an region. amended— the interests of small business are considered (2) The Andean Trade Preference Act has (A) in subsection (a)(1)(A), by striking in all trade negotiations in accordance with been a key element in the United States ‘‘section 1102 of the Omnibus Trade and Com- the objective described in section 1102(a)(8). counternarcotics strategy in the Andean re- petitiveness Act of 1988’’ and inserting ‘‘sec- It is the sense of Congress that the small gion, promoting export diversification and tion 1103 of the Bipartisan Trade Promotion business functions should be reflected in the broad-based economic development that pro- Authority Act of 2002’’; title of the Assistant United States Trade vides sustainable economic alternatives to (B) in subsection (e)(1)— Representative assigned the responsibility drug-crop production, strengthening the le- (i) by striking ‘‘section 1102 of the Omnibus for small business. gitimate economies of Andean countries and Trade and Competitiveness Act of 1988’’ each (c) REPORT.—Not later than 1 year after creating viable alternatives to illicit trade place it appears and inserting ‘‘section 1103 the date of enactment of this Act, and annu- in coca. of the Bipartisan Trade Promotion Author- ally thereafter, the United States Trade Rep- (3) Notwithstanding the success of the An- ity Act of 2002’’; and resentative shall prepare and submit a report dean Trade Preference Act, the Andean re- (ii) by striking ‘‘not later than the date on to the Committee on Finance of the Senate gion remains threatened by political and which the President notifies the Congress and the Committee on Ways and Means of economic instability and fragility, vulner- under section 1103(a)(1)(A) of such Act of 1988 the House of Representatives on the steps able to the consequences of the drug war and of his intention to enter into that agree- taken by the United States Trade Represent- fierce global competition for its legitimate ment’’ and inserting ‘‘not later than the date ative to pursue the identification of a small trade. that is 30 days after the date on which the business advocate at the World Trade Orga- (4) The continuing instability in the Ande- President notifies the Congress under section nization. an region poses a threat to the security in- 1105(a)(1)(A) of the Bipartisan Trade Pro- SEC. 1113. DEFINITIONS. terests of the United States and the world. motion Authority Act of 2002 of the Presi- In this division: This problem has been partially addressed dent’s intention to enter into that agree- (1) AGREEMENT ON AGRICULTURE.—The term through foreign aid, such as Plan Colombia, ment’’; and ‘‘Agreement on Agriculture’’ means the enacted by Congress in 2000. However, for- (C) in subsection (e)(2), by striking ‘‘sec- agreement referred to in section 101(d)(2) of eign aid alone is not sufficient. Enhance- tion 1101 of the Omnibus Trade and Competi- the Uruguay Round Agreements Act (19 ment of legitimate trade with the United tiveness Act of 1988’’ and inserting ‘‘section U.S.C. 3511(d)(2)). States provides an alternative means for re- 1102 of the Bipartisan Trade Promotion Au- (2) CORE LABOR STANDARDS.—The term viving and stabilizing the economies in the thority Act of 2002’’. ‘‘core labor standards’’ means— Andean region. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4175 (5) The Andean Trade Preference Act con- in the United States and fabric components are entered during the preceding 1-year pe- stitutes a tangible commitment by the knit-to-shape in 1 or more ATPEA bene- riod. United States to the promotion of pros- ficiary countries from yarns wholly formed ‘‘(v) APPAREL ARTICLES ASSEMBLED FROM perity, stability, and democracy in the bene- in the United States. FABRICS OR YARN NOT WIDELY AVAILABLE IN ficiary countries. ‘‘(III) Fabrics or fabric components formed COMMERCIAL QUANTITIES.—At the request of (6) Renewal and enhancement of the Ande- or components knit-to-shape, in 1 or more any interested party, the President is au- an Trade Preference Act will bolster the con- ATPEA beneficiary countries, from yarns thorized to proclaim additional fabrics and fidence of domestic private enterprise and wholly formed in 1 or more ATPEA bene- yarn as eligible for preferential treatment foreign investors in the economic prospects ficiary countries, if such fabrics (including under clause (i)(IV) if— of the region, ensuring that legitimate pri- fabrics not formed from yarns, if such fabrics ‘‘(I) the President determines that such vate enterprise can be the engine of eco- are classifiable under heading 5602 or 5603 of fabrics or yarn cannot be supplied by the do- nomic development and political stability in the HTS and are formed in 1 or more ATPEA mestic industry in commercial quantities in the region. beneficiary countries) or components are in a timely manner; (7) Each of the Andean beneficiary coun- chief weight of llama, alpaca, or vicuna. ‘‘(II) the President has obtained advice re- tries is committed to conclude negotiation ‘‘(IV) Fabrics or yarns that are not formed garding the proposed action from the appro- of a Free Trade Area of the Americas by the in the United States or in 1 or more ATPEA priate advisory committee established under year 2005, as a means of enhancing the eco- beneficiary countries, to the extent that ap- section 135 of the Trade Act of 1974 (19 U.S.C. nomic security of the region. parel articles of such fabrics or yarns would 2155) and the United States International Trade Commission; (8) Temporarily enhancing trade benefits be eligible for preferential treatment, with- ‘‘(III) within 60 days after the request, the for Andean beneficiaries countries will pro- out regard to the source of the fabrics or President has submitted a report to the mote the growth of free enterprise and eco- yarns, under Annex 401 of the NAFTA. Committee on Ways and Means of the House nomic opportunity in these countries and ‘‘(ii) KNIT-TO-SHAPE APPAREL ARTICLES.— of Representatives and the Committee on Fi- serve the security interests of the United Apparel articles knit-to-shape (other than nance of the Senate that sets forth the ac- States, the region, and the world. socks provided for in heading 6115 of the tion proposed to be proclaimed and the rea- SEC. 2103. TEMPORARY PROVISIONS. HTS) in 1 or more ATPEA beneficiary coun- sons for such actions, and the advice ob- (a) IN GENERAL.—Section 204(b) of the An- tries from yarns wholly formed in the United tained under subclause (II); dean Trade Preference Act (19 U.S.C. 3203(b)) States. ‘‘(IV) a period of 60 calendar days, begin- is amended to read as follows: ‘‘(iii) REGIONAL FABRIC.— ning with the first day on which the Presi- ‘‘(b) IMPORT-SENSITIVE ARTICLES.— ‘‘(I) GENERAL RULE.—Knit apparel articles dent has met the requirements of subclause ‘‘(1) IN GENERAL.—Subject to paragraphs (2) wholly assembled in 1 or more ATPEA bene- (III), has expired; and through (5), the duty-free treatment pro- ficiary countries exclusively from fabric ‘‘(V) the President has consulted with such vided under this title does not apply to— formed, or fabric components formed, or committees regarding the proposed action ‘‘(A) textile and apparel articles which components knit-to-shape, or any combina- during the period referred to in subclause were not eligible articles for purposes of this tion thereof, in 1 or more ATPEA beneficiary (III). title on January 1, 1994, as this title was in countries from yarns wholly formed in the ‘‘(vi) HANDLOOMED, HANDMADE, AND FOLK- effect on that date; United States, in an amount not exceeding LORE ARTICLES.—A handloomed, handmade, ‘‘(B) footwear not designated at the time of the amount set forth in subclause (II). or folklore article of an ATPEA beneficiary the effective date of this title as eligible ar- ‘‘(II) LIMITATION.—The amount referred to country identified under subparagraph (C) ticles for the purpose of the generalized sys- in subclause (I) is 70,000,000 square meter that is certified as such by the competent tem of preferences under title V of the Trade equivalents during the 1-year period begin- authority of such beneficiary country. Act of 1974; ning on March 1, 2002, increased by 16 per- ‘‘(vii) SPECIAL RULES.— ‘‘(C) tuna, prepared or preserved in any cent, compounded annually, in each suc- ‘‘(I) EXCEPTION FOR FINDINGS AND TRIM- manner, in airtight containers; ceeding 1-year period through February 28, MINGS.—(aa) An article otherwise eligible for ‘‘(D) petroleum, or any product derived 2006. preferential treatment under this paragraph from petroleum, provided for in headings 2709 ‘‘(iv) CERTAIN OTHER APPAREL ARTICLES.— shall not be ineligible for such treatment be- and 2710 of the HTS; ‘‘(I) GENERAL RULE.—Subject to subclause cause the article contains findings or trim- ‘‘(E) watches and watch parts (including (II), any apparel article classifiable under mings of foreign origin, if such findings and cases, bracelets, and straps), of whatever subheading 6212.10 of the HTS, if the article trimmings do not exceed 25 percent of the type including, but not limited to, mechan- is both cut and sewn or otherwise assembled cost of the components of the assembled ical, quartz digital, or quartz analog, if such in the United States, or one or more of the product. Examples of findings and trimmings watches or watch parts contain any material ATPEA beneficiary countries, or both. are sewing thread, hooks and eyes, snaps, which is the product of any country with re- ‘‘(II) LIMITATION.—During the 1-year period buttons, ‘bow buds’, decorative lace, trim, spect to which HTS column 2 rates of duty beginning on March 1, 2003, and during each elastic strips, zippers, including zipper tapes apply; of the 2 succeeding 1-year periods, apparel and labels, and other similar products. Elas- ‘‘(F) articles to which reduced rates of articles described in subclause (I) of a pro- tic strips are considered findings or trim- duty apply under subsection (c); ducer or an entity controlling production mings only if they are each less than 1 inch ‘‘(G) sugars, syrups, and sugar containing shall be eligible for preferential treatment in width and are used in the production of products subject to tariff-rate quotas; or under subparagraph (B) only if the aggregate brassieres. ‘‘(H) rum and tafia classified in subheading cost of fabric components formed in the ‘‘(bb) In the case of an article described in 2208.40 of the HTS. United States that are used in the produc- clause (i)(I) of this subparagraph, sewing ‘‘(2) TRANSITION PERIOD TREATMENT OF CER- tion of all such articles of that producer or thread shall not be treated as findings or TAIN TEXTILE AND APPAREL ARTICLES.— entity that are entered during the preceding trimmings under this subclause. ‘‘(A) ARTICLES COVERED.—During the tran- 1-year period is at least 75 percent of the ag- ‘‘(II) CERTAIN INTERLININGS.—(aa) An arti- sition period, the preferential treatment de- gregate declared customs value of the fabric cle otherwise eligible for preferential treat- scribed in subparagraph (B) shall apply to contained in all such articles of that pro- ment under this paragraph shall not be ineli- the following articles: ducer or entity that are entered during the gible for such treatment because the article ‘‘(i) APPAREL ARTICLES ASSEMBLED FROM preceding 1-year period. contains certain interlinings of foreign ori- PRODUCTS OF THE UNITED STATES AND ATPEA ‘‘(III) DEVELOPMENT OF PROCEDURE TO EN- gin, if the value of such interlinings (and any BENEFICIARY COUNTRIES OR PRODUCTS NOT SURE COMPLIANCE.—The United States Cus- findings and trimmings) does not exceed 25 AVAILABLE IN COMMERCIAL QUANTITIES.—Ap- toms Service shall develop and implement percent of the cost of the components of the parel articles sewn or otherwise assembled in methods and procedures to ensure ongoing assembled article. 1 or more ATPEA beneficiary countries, or compliance with the requirement set forth in ‘‘(bb) Interlinings eligible for the treat- the United States, or both, exclusively from subclause (II). If the Customs Service finds ment described in division (aa) include only any one or any combination of the following: that a producer or an entity controlling pro- a chest type plate, ‘hymo’ piece, or ‘sleeve ‘‘(I) Fabrics or fabric components formed, duction has not satisfied such requirement header’, of woven or weft-inserted warp knit or components knit-to-shape, in the United in a 1-year period, then apparel articles de- construction and of coarse animal hair or States, from yarns wholly formed in the scribed in subclause (I) of that producer or man-made filaments. United States (including fabrics not formed entity shall be ineligible for preferential ‘‘(cc) The treatment described in this sub- from yarns, if such fabrics are classifiable treatment under subparagraph (B) during clause shall terminate if the President under heading 5602 or 5603 of the HTS and are any succeeding 1-year period until the aggre- makes a determination that United States formed in the United States), provided that gate cost of fabric components formed in the manufacturers are producing such inter- apparel articles sewn or otherwise assembled United States used in the production of such linings in the United States in commercial from materials described in this subclause articles of that producer or entity that are quantities. are assembled with thread formed in the entered during the preceding 1-year period is ‘‘(III) DE MINIMIS RULE.—An article that United States. at least 85 percent of the aggregate declared would otherwise be ineligible for preferential ‘‘(II) Fabric components knit-to-shape in customs value of the fabric contained in all treatment under this paragraph because the the United States from yarns wholly formed such articles of that producer or entity that article contains yarns not wholly formed in S4176 CONGRESSIONAL RECORD — SENATE May 9, 2002

the United States or in 1 or more ATPEA ‘‘(iii) TRANSSHIPMENT DESCRIBED.—Trans- treatment under this Act shall not be ex- beneficiary countries shall not be ineligible shipment within the meaning of this sub- tended to sugars, syrups, and sugar-con- for such treatment if the total weight of all paragraph has occurred when preferential taining products subject to over-quota duty such yarns is not more than 7 percent of the treatment under subparagraph (B) has been rates under applicable tariff-rate quotas. total weight of the good. Notwithstanding claimed for a textile or apparel article on ‘‘(D) SPECIAL RULE FOR CERTAIN TUNA PROD- the preceding sentence, an apparel article the basis of material false information con- UCTS.— containing elastomeric yarns shall be eligi- cerning the country of origin, manufacture, ‘‘(i) IN GENERAL.—The President may pro- ble for preferential treatment under this processing, or assembly of the article or any claim duty-free treatment under this Act for paragraph only if such yarns are wholly of its components. For purposes of this tuna that is harvested by United States ves- formed in the United States. clause, false information is material if dis- sels or ATPEA beneficiary country vessels, ‘‘(IV) SPECIAL ORIGIN RULE.—An article closure of the true information would mean and is prepared or preserved in any manner, otherwise eligible for preferential treatment or would have meant that the article is or in airtight containers in an ATPEA bene- under clause (i) of this subparagraph shall was ineligible for preferential treatment ficiary country. Such duty-free treatment not be ineligible for such treatment because under subparagraph (B). may be proclaimed in any calendar year for the article contains nylon filament yarn ‘‘(E) BILATERAL EMERGENCY ACTIONS.— a quantity of such tuna that does not exceed (other than elastomeric yarn) that is classi- ‘‘(i) IN GENERAL.—The President may take 20 percent of the domestic United States fiable under subheading 5402.10.30, 5402.10.60, bilateral emergency tariff actions of a kind tuna pack in the preceding calendar year. As 5402.31.30, 5402.31.60, 5402.32.30, 5402.32.60, described in section 4 of the Annex with re- used in the preceding sentence, the term spect to any apparel article imported from ‘tuna pack’ means tuna pack as defined by 5402.41.10, 5402.41.90, 5402.51.00, or 5402.61.00 of an ATPEA beneficiary country if the appli- the National Marine Fisheries Service of the the HTS duty-free from a country that is a cation of tariff treatment under subpara- United States Department of Commerce for party to an agreement with the United graph (B) to such article results in condi- purposes of subheading 1604.14.20 of the HTS States establishing a free trade area, which tions that would be cause for the taking of as in effect on the date of enactment of the entered into force before January 1, 1995. such actions under such section 4 with re- Andean Trade Preference Expansion Act. ‘‘(V) CLARIFICATION OF CERTAIN KNIT AP- spect to a like article described in the same ‘‘(ii) UNITED STATES VESSEL.—For purposes PAREL ARTICLES.—Notwithstanding any other 8-digit subheading of the HTS that is im- of this subparagraph, a ‘United States vessel’ provision of law, an article otherwise eligible ported from Mexico. is a vessel having a certificate of documenta- for preferential treatment under clause ‘‘(ii) RULES RELATING TO BILATERAL EMER- tion with a fishery endorsement under chap- (iii)(I) of this subparagraph, shall not be in- GENCY ACTION.—For purposes of applying bi- ter 121 of title 46, United States Code. eligible for such treatment because the arti- lateral emergency action under this ‘‘(iii) ATPEA VESSEL.—For purposes of this cle, or a component thereof, contains fabric subparagraph— subparagraph, an ‘ATPEA vessel’ is a formed in the United States from yarns ‘‘(I) the requirements of paragraph (5) of vessel— wholly formed in the United States. section 4 of the Annex (relating to providing ‘‘(I) which is registered or recorded in an ‘‘(viii) TEXTILE LUGGAGE.—Textile compensation) shall not apply; ATPEA beneficiary country; luggage— ‘‘(II) the term ‘transition period’ in section ‘‘(II) which sails under the flag of an ‘‘(I) assembled in an ATPEA beneficiary 4 of the Annex shall have the meaning given ATPEA beneficiary country; country from fabric wholly formed and cut that term in paragraph (5)(D) of this sub- ‘‘(III) which is at least 75 percent owned by in the United States, from yarns wholly section; and nationals of an ATPEA beneficiary country formed in the United States, that is entered ‘‘(III) the requirements to consult specified or by a company having its principal place of under subheading 9802.00.80 of the HTS; or in section 4 of the Annex shall be treated as business in an ATPEA beneficiary country, ‘‘(II) assembled from fabric cut in an satisfied if the President requests consulta- of which the manager or managers, chairman ATPEA beneficiary country from fabric tions with the ATPEA beneficiary country in of the board of directors or of the super- wholly formed in the United States from question and the country does not agree to visory board, and the majority of the mem- yarns wholly formed in the United States. consult within the time period specified bers of such boards are nationals of an ‘‘(B) PREFERENTIAL TREATMENT.—Except as under section 4. ATPEA beneficiary country and of which, in provided in subparagraph (E), during the ‘‘(3) TRANSITION PERIOD TREATMENT OF CER- the case of a company, at least 50 percent of transition period, the articles to which sub- TAIN OTHER ARTICLES ORIGINATING IN BENE- the capital is owned by an ATPEA bene- paragraph (A) applies shall enter the United FICIARY COUNTRIES.— ficiary country or by public bodies or nation- States free of duty and free of any quan- ‘‘(A) EQUIVALENT TARIFF TREATMENT.— als of an ATPEA beneficiary country; titative restrictions, limitations, or con- ‘‘(i) IN GENERAL.—Subject to clause (ii), the ‘‘(IV) of which the master and officers are sultation levels. tariff treatment accorded at any time during nationals of an ATPEA beneficiary country; ‘‘(C) HANDLOOMED, HANDMADE, AND FOLK- the transition period to any article referred and LORE ARTICLES.—For purposes of subpara- to in any of subparagraphs (B), (D) through ‘‘(V) of which at least 75 percent of the graph (A)(vi), the President shall consult (F), or (H) of paragraph (1) that is an ATPEA crew are nationals of an ATPEA beneficiary with representatives of the ATPEA bene- originating good, imported directly into the country. ficiary countries concerned for the purpose customs territory of the United States from ‘‘(4) CUSTOMS PROCEDURES.— of identifying particular textile and apparel an ATPEA beneficiary country, shall be ‘‘(A) IN GENERAL.— goods that are mutually agreed upon as identical to the tariff treatment that is ac- ‘‘(i) REGULATIONS.—Any importer that being handloomed, handmade, or folklore corded at such time under Annex 302.2 of the claims preferential treatment under para- goods of a kind described in section 2.3(a), NAFTA to an article described in the same 8- graph (2) or (3) shall comply with customs (b), or (c) of the Annex or Appendix 3.1.B.11 digit subheading of the HTS that is a good of procedures similar in all material respects to of the Annex. Mexico and is imported into the United the requirements of Article 502(1) of the ‘‘(D) PENALTIES FOR TRANSSHIPMENTS.— States. NAFTA as implemented pursuant to United ‘‘(i) PENALTIES FOR EXPORTERS.—If the ‘‘(ii) EXCEPTION.—Clause (i) does not apply States law, in accordance with regulations President determines, based on sufficient to— promulgated by the Secretary of the Treas- evidence, that an exporter has engaged in ‘‘(I) any article accorded duty-free treat- ury. transshipment with respect to textile or ap- ment under U.S. Note 2(b) to subchapter II of ‘‘(ii) DETERMINATION.— parel articles from an ATPEA beneficiary chapter 98 of the HTS; or ‘‘(I) IN GENERAL.—In order to qualify for country, then the President shall deny all ‘‘(II) any article described in subheading the preferential treatment under paragraph benefits under this title to such exporter, 6401.10.00, 6401.91.00, 6401.92.90, 6401.99.30, (2) or (3) and for a Certificate of Origin to be and any successor of such exporter, for a pe- 6401.99.60, 6401.99.90, 6402.30.50, 6402.30.70, valid with respect to any article for which riod of 2 years. 6402.30.80, 6402.91.50, 6402.91.80, 6402.91.90, such treatment is claimed, there shall be in ‘‘(ii) PENALTIES FOR COUNTRIES.—Whenever 6402.99.20, 6402.99.30, 6402.99.80, 6402.99.90, effect a determination by the President that the President finds, based on sufficient evi- 6403.91.60, 6404.11.50, 6404.11.60, 6404.11.70, each country described in subclause (II)— dence, that transshipment has occurred, the 6404.11.80, 6404.11.90, 6404.19.20, 6404.19.35, ‘‘(aa) has implemented and follows; or President shall request that the ATPEA ben- 6404.19.50, or 6404.19.70 of the HTS. ‘‘(bb) is making substantial progress to- eficiary country or countries through whose ‘‘(B) RELATIONSHIP TO SUBSECTION (C) DUTY ward implementing and following, proce- territory the transshipment has occurred REDUCTIONS.—If at any time during the tran- dures and requirements similar in all mate- take all necessary and appropriate actions to sition period the rate of duty that would (but rial respects to the relevant procedures and prevent such transshipment. If the President for action taken under subparagraph (A)(i) in requirements under chapter 5 of the NAFTA. determines that a country is not taking such regard to such period) apply with respect to ‘‘(II) COUNTRY DESCRIBED.—A country is de- actions, the President shall reduce the quan- any article under subsection (c) is a rate of scribed in this subclause if it is an ATPEA tities of textile and apparel articles that duty that is lower than the rate of duty re- beneficiary country— may be imported into the United States from sulting from such action, then such lower ‘‘(aa) from which the article is exported; or such country by the quantity of the trans- rate of duty shall be applied for the purposes ‘‘(bb) in which materials used in the pro- shipped articles multiplied by 3, to the ex- of implementing such action. duction of the article originate or in which tent consistent with the obligations of the ‘‘(C) SPECIAL RULE FOR SUGARS, SYRUPS, the article or such materials undergo pro- United States under the WTO. AND SUGAR CONTAINING PRODUCTS.—Duty-free duction that contributes to a claim that the May 9, 2002 CONGRESSIONAL RECORD — SENATE S4177 article is eligible for preferential treatment ‘‘(V) acceptable conditions of work with re- tion 204(b) (2) and (3) to any article of any under paragraph (2) or (3). spect to minimum wages, hours of work, and country, ‘‘(B) CERTIFICATE OF ORIGIN.—The Certifi- occupational safety and health; if, after such designation, the President de- cate of Origin that otherwise would be re- ‘‘(iv) Whether the country has imple- termines that, as a result of changed cir- quired pursuant to the provisions of subpara- mented its commitments to eliminate the cumstances, the performance of such coun- graph (A) shall not be required in the case of worst forms of child labor, as defined in sec- try is not satisfactory under the criteria set an article imported under paragraph (2) or (3) tion 507(6) of the Trade Act of 1974. forth in section 204(b)(5)(B).’’; and if such Certificate of Origin would not be re- ‘‘(v) The extent to which the country has (2) by adding after paragraph (2) the fol- quired under Article 503 of the NAFTA (as met the counter-narcotics certification cri- lowing new paragraph: implemented pursuant to United States law), teria set forth in section 490 of the Foreign ‘‘(3) If preferential treatment under section if the article were imported from Mexico. Assistance Act of 1961 (22 U.S.C. 2291j) for eli- 204(b) (2) and (3) is withdrawn, suspended, or ‘‘(C) REPORT BY USTR ON COOPERATION OF gibility for United States assistance. limited with respect to an ATPEA bene- OTHER COUNTRIES CONCERNING CIRCUMVEN- ‘‘(vi) The extent to which the country has ficiary country, such country shall not be TION.—The United States Commissioner of taken steps to become a party to and imple- deemed to be a ‘party’ for the purposes of ap- Customs shall conduct a study analyzing the ments the Inter-American Convention plying section 204(b)(5)(C) to imports of arti- extent to which each ATPEA beneficiary Against Corruption. cles for which preferential treatment has country— ‘‘(vii) The extent to which the country— been withdrawn, suspended, or limited with ‘‘(i) has cooperated fully with the United ‘‘(I) applies transparent, nondiscrim- respect to such country.’’. States, consistent with its domestic laws and inatory, and competitive procedures in gov- (c) REPORTING REQUIREMENTS.—Section procedures, in instances of circumvention or ernment procurement equivalent to those 203(f ) of the Andean Trade Preference Act (19 alleged circumvention of existing quotas on contained in the Agreement on Government U.S.C. 3202(f )) is amended to read as follows: imports of textile and apparel goods, to es- Procurement described in section 101(d)(17) ‘‘(f ) REPORTING REQUIREMENTS.— tablish necessary relevant facts in the places of the Uruguay Round Agreements Act; and ‘‘(1) IN GENERAL.—Not later than December of import, export, and, where applicable, ‘‘(II) contributes to efforts in international 31, 2002, and every 2 years thereafter during transshipment, including investigation of fora to develop and implement international the period this title is in effect, the United circumvention practices, exchanges of docu- rules in transparency in government pro- States Trade Representative shall submit to ments, correspondence, reports, and other curement. Congress a report regarding the operation of relevant information, to the extent such in- ‘‘(C) ATPEA ORIGINATING GOOD.— this title, including— formation is available; ‘‘(i) IN GENERAL.—The term ‘ATPEA origi- ‘‘(A) with respect to subsections (c) and (d), ‘‘(ii) has taken appropriate measures, con- nating good’ means a good that meets the the results of a general review of beneficiary sistent with its domestic laws and proce- rules of origin for a good set forth in chapter countries based on the considerations de- dures, against exporters and importers in- 4 of the NAFTA as implemented pursuant to scribed in such subsections; and volved in instances of false declaration con- United States law. ‘‘(B) the performance of each beneficiary cerning fiber content, quantities, descrip- ‘‘(ii) APPLICATION OF CHAPTER 4.—In apply- country or ATPEA beneficiary country, as tion, classification, or origin of textile and ing chapter 4 of the NAFTA with respect to the case may be, under the criteria set forth apparel goods; and an ATPEA beneficiary country for purposes in section 204(b)(5)(B). of this subsection— ‘‘(iii) has penalized the individuals and en- ‘‘(2) PUBLIC COMMENT.—Before submitting ‘‘(I) no country other than the United tities involved in any such circumvention, the report described in paragraph (1), the States and an ATPEA beneficiary country consistent with its domestic laws and proce- United States Trade Representative shall may be treated as being a party to the dures, and has worked closely to seek the co- publish a notice in the Federal Register re- NAFTA; operation of any third country to prevent questing public comments on whether bene- ‘‘(II) any reference to trade between the such circumvention from taking place in ficiary countries are meeting the criteria United States and Mexico shall be deemed to that third country. listed in section 204(b)(5)(B).’’. refer to trade between the United States and (d) CONFORMING AMENDMENTS.— The Trade Representative shall submit to an ATPEA beneficiary country; (1) IN GENERAL.— Congress, not later than October 1, 2002, a re- ‘‘(III) any reference to a party shall be (A) Section 202 of the Andean Trade Pref- port on the study conducted under this sub- deemed to refer to an ATPEA beneficiary erence Act (19 U.S.C. 3201) is amended by in- paragraph. country or the United States; and serting ‘‘(or other preferential treatment)’’ ‘‘(5) DEFINITIONS AND SPECIAL RULES.—For ‘‘(IV) any reference to parties shall be after ‘‘treatment’’. purposes of this subsection— deemed to refer to any combination of (B) Section 204(a)(1) of the Andean Trade ‘‘(A) ANNEX.—The term ‘the Annex’ means ATPEA beneficiary countries or to the Preference Act (19 U.S.C. 3203(a)(1)) is Annex 300–B of the NAFTA. United States and one or more ATPEA bene- amended by inserting ‘‘(or otherwise pro- ‘‘(B) ATPEA BENEFICIARY COUNTRY.—The ficiary countries (or any combination there- vided for)’’ after ‘‘eligibility’’. term ‘ATPEA beneficiary country’ means of ). (C) Section 204(a)(1) of the Andean Trade any ‘beneficiary country’, as defined in sec- ‘‘(D) TRANSITION PERIOD.—The term ‘transi- Preference Act (19 U.S.C. 3203(a)(1)) is tion 203(a)(1) of this title, which the Presi- tion period’ means, with respect to an amended by inserting ‘‘(or preferential treat- dent designates as an ATPEA beneficiary ATPEA beneficiary country, the period that ment)’’ after ‘‘duty-free treatment’’. country, taking into account the criteria begins on the date of enactment, and ends on (2) DEFINITIONS.—Section 203(a) of the An- contained in subsections (c) and (d) of sec- the earlier of— dean Trade Preference Act (19 U.S.C. 3202(a)) tion 203 and other appropriate criteria, in- ‘‘(i) February 28, 2006; or is amended by adding at the end the fol- cluding the following: ‘‘(ii) the date on which the FTAA or an- lowing new paragraphs: ‘‘(i) Whether the beneficiary country has other free trade agreement that makes sub- ‘‘(4) The term ‘‘NAFTA’’ means the North demonstrated a commitment to— stantial progress in achieving the negoti- American Free Trade Agreement entered ‘‘(I) undertake its obligations under the ating objectives set forth in section 108(b)(5) into between the United States, Mexico, and WTO, including those agreements listed in of Public Law 103–182 (19 U.S.C. 3317(b)(5)) en- Canada on December 17, 1992. section 101(d) of the Uruguay Round Agree- ters into force with respect to the United ‘‘(5) The terms ‘WTO’ and ‘WTO member’ ments Act, on or ahead of schedule; and States and the ATPEA beneficiary country. have the meanings given those terms in sec- ‘‘(II) participate in negotiations toward the ‘‘(E) ATPEA.—The term ‘ATPEA’ means tion 2 of the Uruguay Round Agreements Act completion of the FTAA or another free the Andean Trade Preference Expansion Act. (19 U.S.C. 3501).’’. trade agreement. ‘‘(F) FTAA.—The term ‘FTAA’ means the SEC. 2104. TERMINATION. ‘‘(ii) The extent to which the country pro- Free Trade Area of the Americas.’’. (a) IN GENERAL.—Section 208(b) of the An- vides protection of intellectual property (b) DETERMINATION REGARDING RETENTION dean Trade Preference Act (19 U.S.C. 3206(b)) rights consistent with or greater than the OF DESIGNATION.—Section 203(e) of the Ande- is amended to read as follows: protection afforded under the Agreement on an Trade Preference Act (19 U.S.C. 3202(e)) is ‘‘(b) TERMINATION OF PREFERENTIAL TREAT- Trade-Related Aspects of Intellectual Prop- amended— MENT.—No preferential duty treatment ex- erty Rights described in section 101(d)(15) of (1) in paragraph (1)— tended to beneficiary countries under this the Uruguay Round Agreements Act. (A) by redesignating subparagraphs (A) and Act shall remain in effect after February 28, ‘‘(iii) The extent to which the country pro- (B) as clauses (i) and (ii), respectively; 2006.’’. vides internationally recognized worker (B) by inserting ‘‘(A)’’ after ‘‘(1)’’; and (b) RETROACTIVE APPLICATION FOR CERTAIN rights, including— (C) by adding at the end the following: LIQUIDATIONS AND RELIQUIDATIONS.— ‘‘(I) the right of association; ‘‘(B) The President may, after the require- (1) IN GENERAL.—Notwithstanding section ‘‘(II) the right to organize and bargain col- ments of paragraph (2) have been met— 514 of the Tariff Act of 1930 or any other pro- lectively; ‘‘(i) withdraw or suspend the designation of vision of law, and subject to paragraph (3), ‘‘(III) a prohibition on the use of any form any country as an ATPEA beneficiary coun- the entry— of forced or compulsory labor; try; or (A) of any article to which duty-free treat- ‘‘(IV) a minimum age for the employment ‘‘(ii) withdraw, suspend, or limit the appli- ment (or preferential treatment) under the of children; and cation of preferential treatment under sec- Andean Trade Preference Act (19 U.S.C. 3201 S4178 CONGRESSIONAL RECORD — SENATE May 9, 2002

et seq.) would have applied if the entry had ‘‘(2) NONIMPORTING MANUFACTURERS.—For ‘‘(3) MANUFACTURERS OF WOOL YARN OR been made on December 4, 2001, each of the calendar years 2001 and 2002, any WOOL FABRIC OF IMPORTED WOOL FIBER OR (B) that was made after December 4, 2001, other manufacturer of wool yarn or wool fab- WOOL TOP.— and before the date of the enactment of this ric of imported wool fiber or wool top of the ‘‘(A) IMPORTING MANUFACTURERS.—Each an- Act, and kind described in heading 9902.51.14 of the nual payment to an importing manufacturer (C) to which duty-free treatment (or pref- Harmonized Tariff Schedule of the United described in subsection (c)(1) shall be in an erential treatment) under the Andean Trade States shall be eligible for a payment equal amount equal to one-third of the amount de- Preference Act did not apply, to an amount determined pursuant to sub- termined by multiplying $1,522,000 by a shall be liquidated or reliquidated as if such section (d)(3).’’. fraction— duty-free treatment (or preferential treat- (D) Section 505 is further amended by ‘‘(i) the numerator of which is the amount ment) applied, and the Secretary of the striking subsection (d) and inserting the fol- attributable to the duties paid on eligible Treasury shall refund any duty paid with re- lowing new subsections: wool products imported in calendar year 1999 ‘‘(d) AMOUNT OF ANNUAL PAYMENTS TO spect to such entry. by the importing manufacturer making the MANUFACTURERS.— claim, and (2) ENTRY.—As used in this subsection, the ‘‘(1) MANUFACTURERS OF MEN’S SUITS, ETC. term ‘‘entry’’ includes a withdrawal from ‘‘(ii) the denominator of which is the total OF IMPORTED WORSTED WOOL FABRICS.— warehouse for consumption. amount attributable to the duties paid on el- ‘‘(A) ELIGIBLE TO RECEIVE MORE THAN igible wool products imported in calendar (3) REQUESTS.—Liquidation or reliquida- $5,000.—Each annual payment to manufactur- year 1999 by all the importing manufacturers tion may be made under paragraph (1) with ers described in subsection (a) who, accord- described in subsection (c)(1). respect to an entry only if a request therefor ing to the records of the Customs Service as ‘‘(B) ELIGIBLE WOOL PRODUCTS.—For pur- is filed with the Customs Service, within 180 of September 11, 2001, are eligible to receive poses of subparagraph (A), the term ‘eligible days after the date of the enactment of this more than $5,000 for each of the calendar wool products’ refers to imported wool fiber Act, that contains sufficient information to years 2000, 2001, and 2002, shall be in an or wool top described in subsection (c)(1). enable the Customs Service— amount equal to one-third of the amount de- ‘‘(C) NONIMPORTING MANUFACTURERS.—Each (A) to locate the entry; or termined by multiplying $30,124,000 by a annual payment to a nonimporting manufac- (B) to reconstruct the entry if it cannot be fraction— turer described in subsection (c)(2) shall be located. ‘‘(i) the numerator of which is the amount in an amount equal to one-half of the (4) PAYMENT.—No more than 75 percent of attributable to the duties paid on eligible amount determined by multiplying $597,000 the amount due as a result of a liquidation wool products imported in calendar year 1999 by a fraction— or reliquidation filed under this subsection by the manufacturer making the claim, and ‘‘(i) the numerator of which is the amount shall be paid in fiscal year 2002. ‘‘(ii) the denominator of which is the total attributable to the purchases of imported el- TITLE XXII—MISCELLANEOUS TRADE amount attributable to the duties paid on el- igible wool products in calendar year 1999 by PROVISIONS igible wool products imported in calendar the nonimporting manufacturer making the SEC. 2201. WOOL PROVISIONS. year 1999 by all the manufacturers described claim, and (a) SHORT TITLE.—This section may be in subsection (a) who, according to the ‘‘(ii) the denominator of which is the cited as the ‘‘Wool Manufacturer Payment records of the Customs Service as of Sep- amount attributable to the purchases of im- Clarification and Technical Corrections tember 11, 2001, are eligible to receive more ported eligible wool products in calendar Act’’. than $5,000 for each such calendar year under year 1999 by all the nonimporting manufac- (b) CLARIFICATION OF TEMPORARY DUTY this section as it was in effect on that date. turers described in subsection (c)(2). SUSPENSION.—Heading 9902.51.13 of the Har- ‘‘(B) ELIGIBLE WOOL PRODUCTS.—For pur- ‘‘(4) LETTERS OF INTENT.—Except for the monized Tariff Schedule of the United States poses of subparagraph (A), the term ‘eligible nonimporting manufacturers described in is amended by inserting ‘‘average’’ before wool products’ refers to imported worsted subsections (b)(2) and (c)(2) who may make ‘‘diameters’’. wool fabrics described in subsection (a). claims under this section by virtue of the en- (c) PAYMENTS TO MANUFACTURERS OF CER- ‘‘(C) OTHERS.—All manufacturers described actment of the Wool Manufacturer Payment TAIN WOOL PRODUCTS.— in subsection (a), other than the manufactur- Clarification and Technical Corrections Act, (1) PAYMENTS.—Section 505 of the Trade er’s to which subparagraph (A) applies, shall only manufacturers who, according to the and Development Act of 2000 (Public Law each receive an annual payment in an records of the Customs Service, filed with 106–200; 114 Stat. 303) is amended as follows: amount equal to one-third of the amount de- the Customs Service before September 11, (A) Subsection (a) is amended— termined by dividing $1,665,000 by the num- 2001, letters of intent to establish eligibility (i) by striking ‘‘In each of the calendar ber of all such other manufacturers. to be claimants are eligible to make a claim years’’ and inserting ‘‘For each of the cal- ‘‘(2) MANUFACTURERS OF WORSTED WOOL for a payment under this section. endar years’’; and FABRICS OF IMPORTED WOOL YARN.— ‘‘(5) AMOUNT ATTRIBUTABLE TO PURCHASES (ii) by striking ‘‘for a refund of duties’’ and ‘‘(A) IMPORTING MANUFACTURERS.—Each an- BY NONIMPORTING MANUFACTURERS.— all that follows through the end of the sub- nual payment to an importing manufacturer ‘‘(A) AMOUNT ATTRIBUTABLE.—For purposes section and inserting ‘‘for a payment equal described in subsection (b)(1) shall be in an of paragraphs (2)(C) and (3)(C), the amount to an amount determined pursuant to sub- amount equal to one-third of the amount de- attributable to the purchases of imported el- section (d)(1).’’. termined by multiplying $2,202,000 by a igible wool products in calendar year 1999 by (B) Subsection (b) is amended to read as fraction— a nonimporting manufacturer shall be the follows: ‘‘(i) the numerator of which is the amount amount the nonimporting manufacturer paid ‘‘(b) WOOL YARN.— attributable to the duties paid on eligible for eligible wool products in calendar year ‘‘(1) IMPORTING MANUFACTURERS.—For each wool products imported in calendar year 1999 1999, as evidenced by invoices. The non- of the calendar years 2000, 2001, and 2002, a by the importing manufacturer making the importing manufacturer shall make such manufacturer of worsted wool fabrics who claim, and calculation and submit the resulting amount imports wool yarn of the kind described in ‘‘(ii) the denominator of which is the total to the Customs Service, within 45 days after heading 9902.51.13 of the Harmonized Tariff amount attributable to the duties paid on el- the date of enactment of the Wool Manufac- Schedule of the United States shall be eligi- igible wool products imported in calendar turer Payment Clarification and Technical ble for a payment equal to an amount deter- year 1999 by all the importing manufacturers Corrections Act, in a signed affidavit that mined pursuant to subsection (d)(2). described in subsection (b)(1). attests that the information contained ‘‘(2) NONIMPORTING MANUFACTURERS.—For ‘‘(B) ELIGIBLE WOOL PRODUCTS.—For pur- therein is true and accurate to the best of each of the calendar years 2001 and 2002, any poses of subparagraph (A), the term ‘eligible the affiant’s belief and knowledge. The non- other manufacturer of worsted wool fabrics wool products’ refers to imported wool yarn importing manufacturer shall retain the of imported wool yarn of the kind described described in subsection (b)(1). records upon which the calculation is based in heading 9902.51.13 of the Harmonized Tariff ‘‘(C) NONIMPORTING MANUFACTURERS.—Each for a period of five years beginning on the Schedule of the United States shall be eligi- annual payment to a nonimporting manufac- date the affidavit is submitted to the Cus- ble for a payment equal to an amount deter- turer described in subsection (b)(2) shall be toms Service. mined pursuant to subsection (d)(2).’’. in an amount equal to one-half of the ‘‘(B) ELIGIBLE WOOL PRODUCT.—For pur- (C) Subsection (c) is amended to read as amount determined by multiplying $141,000 poses of subparagraph (A)— follows: by a fraction— ‘‘(i) the eligible wool product for non- ‘‘(c) WOOL FIBER AND WOOL TOP.— ‘‘(i) the numerator of which is the amount importing manufacturers of worsted wool ‘‘(1) IMPORTING MANUFACTURERS.—For each attributable to the purchases of imported el- fabrics is wool yarn of the kind described in of the calendar years 2000, 2001, and 2002, a igible wool products in calendar year 1999 by heading 9902.51.13 of the Harmonized Tariff manufacturer of wool yarn or wool fabric the nonimporting manufacturer making the Schedule of the United States purchased in who imports wool fiber or wool top of the claim, and calendar year 1999; and kind described in heading 9902.51.14 of the ‘‘(ii) the denominator of which is the total ‘‘(ii) the eligible wool products for non- Harmonized Tariff Schedule of the United amount attributable to the purchases of im- importing manufacturers of wool yarn or States shall be eligible for a payment equal ported eligible wool products in calendar wool fabric are wool fiber or wool top of the to an amount determined pursuant to sub- year 1999 by all the nonimporting manufac- kind described in heading 9902.51.14 of such section (d)(3). turers described in subsection (b)(2). Schedule purchased in calendar year 1999. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4179

‘‘(6) AMOUNT ATTRIBUTABLE TO DUTIES ‘‘(3) imported wool fiber or wool top, of the amount of tax specified at the time of the de- PAID.—For purposes of paragraphs (1), (2)(A), kind described in heading 9902.51.14 of such posit as the taxpayer’s reasonable estimate and (3)(A), the amount attributable to the Schedule, at the time the wool fiber or wool of the maximum amount of any tax attrib- duties paid by a manufacturer shall be the top is processed in the United States into utable to disputable items. amount shown on the records of the Customs wool yarn.’’. ‘‘(B) SAFE HARBOR BASED ON 30-DAY LET- Service as of September 11, 2001, under this (2) FUNDING.—There is authorized to be ap- TER.—In the case of a taxpayer who has been section as then in effect. propriated such sums as are necessary to issued a 30-day letter, the maximum amount ‘‘(7) SCHEDULE OF PAYMENTS; REALLOCA- carry out the amendments made by para- of tax under subparagraph (A) shall not be TIONS.— graph (1). less than the amount of the proposed defi- ‘‘(A) SCHEDULE.—Of the payments de- SEC. 2202. CEILING FANS. ciency specified in such letter. scribed in paragraphs (1), (2)(A), and (3)(A), (a) IN GENERAL.—Notwithstanding any ‘‘(3) OTHER DEFINITIONS.—For purposes of the Customs Service shall make the first in- other provision of law, ceiling fans classified paragraph (2)— stallment on or before December 31, 2001, the under subheading 8414.51.00 of the Har- ‘‘(A) DISPUTABLE ITEM.—The term ‘disput- second installment on or before April 15, monized Tariff Schedule of the United States able item’ means any item of income, gain, 2002, and the third installment on or before imported from Thailand shall enter duty-free loss, deduction, or credit if the taxpayer— April 15, 2003. Of the payments described in and without any quantitative limitations, if ‘‘(i) has a reasonable basis for its treat- paragraphs (2)(C) and (3)(C), the Customs duty-free treatment under title V of the ment of such item, and Service shall make the first installment on Trade Act of 1974 (19 U.S.C. 2461 et seq.) ‘‘(ii) reasonably believes that the Sec- or before April 15, 2002, and the second in- would have applied to such entry had the retary also has a reasonable basis for dis- stallment on or before April 15, 2003. competitive need limitation been waived allowing the taxpayer’s treatment of such ‘‘(B) REALLOCATIONS.—In the event that a under section 503(d) of such Act. item. manufacturer that would have received pay- (b) APPLICABILITY.—The provisions of this ‘‘(B) 30-DAY LETTER.—The term ‘30-day let- ment under subparagraph (A) or (C) of para- section shall apply to ceiling fans described ter’ means the first letter of proposed defi- graph (1), (2), or (3) ceases to be qualified for in subsection (a) that are entered, or with- ciency which allows the taxpayer an oppor- such payment as such a manufacturer, the drawn from warehouse for consumption— tunity for administrative review in the In- amounts otherwise payable to the remaining (1) on or after the date that is 15 days after ternal Revenue Service Office of Appeals. manufacturers under such subparagraph the date of enactment of this Act; and ‘‘(4) RATE OF INTEREST.—The rate of inter- shall be increased on a pro rata basis by the (2) before July 30, 2002. est allowable under this subsection shall be amount of the payment such manufacturer SEC. 2203. CERTAIN STEAM OR OTHER VAPOR the Federal short-term rate determined would have received. GENERATING BOILERS USED IN NU- under section 6621(b), compounded daily. ‘‘(8) REFERENCE.—For purposes of para- CLEAR FACILITIES. ‘‘(e) USE OF DEPOSITS.— graphs (1)(A) and (6), the ‘records of the Cus- (a) IN GENERAL.—Subheading 9902.84.02 of ‘‘(1) PAYMENT OF TAX.—Except as otherwise toms Service as of September 11, 2001’ are the Harmonized Tariff Schedule of the provided by the taxpayer, deposits shall be the records of the Wool Duty Unit of the Cus- United States is amended— treated as used for the payment of tax in the toms Service on September 11, 2001, as ad- (1) by striking ‘‘4.9%’’ and inserting order deposited. justed by the Customs Service to the extent ‘‘Free’’; and ‘‘(B) RETURNS OF DEPOSITS.—Deposits shall necessary to carry out this section. The (2) by striking ‘‘12/31/2003’’ and inserting be treated as returned to the taxpayer on a amounts so adjusted are not subject to ad- ‘‘12/31/2006’’. last-in, first-out basis.’’. ministrative or judicial review. (b) EFFECTIVE DATE.—The amendments (2) CLERICAL AMENDMENT.—The table of ‘‘(e) AFFIDAVITS BY MANUFACTURERS.— made by subsection (a) shall apply to goods sections for subchapter A of chapter 67 of ‘‘(1) AFFIDAVIT REQUIRED.—A manufacturer entered, or withdrawn from warehouse for such Code is amended by adding at the end may not receive a payment under this sec- consumption, on or after January 1, 2002. the following new item: tion for calendar year 2000, 2001, or 2002, as SEC. 2204. REVENUE PROVISIONS. ‘‘Sec. 6603. Deposits made to suspend running the case may be, unless that manufacturer (a) DEPOSITS MADE TO SUSPEND RUNNING OF of interest on potential under- has submitted to the Customs Service for INTEREST ON POTENTIAL UNDERPAYMENTS.— payments, etc.’’. that calendar year a signed affidavit that at- (1) IN GENERAL.—Subchapter A of chapter (3) EFFECTIVE DATE.— tests that, during that calendar year, the af- 67 of the Internal Revenue Code of 1986 (re- (A) IN GENERAL.—The amendments made fiant was a manufacturer in the United lating to interest on underpayments) is by this subsection shall apply to deposits States described in subsection (a), (b), or (c). amended by adding at the end the following made after the date of the enactment of this ‘‘(2) TIMING.—An affidavit under paragraph new section: Act. (1) shall be valid— ‘‘SEC. 6603. DEPOSITS MADE TO SUSPEND RUN- (B) COORDINATION WITH DEPOSITS MADE ‘‘(A) in the case of a manufacturer de- NING OF INTEREST ON POTENTIAL UNDER REVENUE PROCEDURE 84–58.—In the case scribed in paragraph (1), (2)(A), or (3)(A) of UNDERPAYMENTS, ETC. of an amount held by the Secretary of the subsection (d) filing a claim for a payment ‘‘(a) AUTHORITY TO MAKE DEPOSITS OTHER Treasury or his delegate on the date of the for calendar year 2000, only if the affidavit is THAN AS PAYMENT OF TAX.—A taxpayer may enactment of this Act as a deposit in the na- postmarked no later than 15 days after the make a cash deposit with the Secretary ture of a cash bond deposit pursuant to Rev- date of enactment of the Wool Manufacturer which may be used by the Secretary to pay enue Procedure 84–58, the date that the tax- Payment Clarification and Technical Correc- any tax imposed under subtitle A or B or payer identifies such amount as a deposit tions Act; and chapter 41, 42, 43, or 44 which has not been made pursuant to section 6603 of the Internal ‘‘(B) in the case of a claim for a payment assessed at the time of the deposit. Such a Revenue Code (as added by this Act) shall be for calendar year 2001 or 2002, only if the affi- deposit shall be made in such manner as the treated as the date such amount is deposited davit is postmarked no later than March 1, Secretary shall prescribe. for purposes of such section 6603. 2002, or March 1, 2003, respectively. ‘‘(b) NO INTEREST IMPOSED.—To the extent (b) PARTIAL PAYMENT OF TAX LIABILITY IN ‘‘(f) OFFSETS.—Notwithstanding any other that such deposit is used by the Secretary to INSTALLMENT AGREEMENTS.— provision of this section, any amount other- pay tax, for purposes of section 6601 (relating (1) IN GENERAL.— wise payable under subsection (d) to a manu- to interest on underpayments), the tax shall (A) Section 6159(a) of the Internal Revenue facturer in calendar year 2001 and, where ap- be treated as paid when the deposit is made. Code of 1986 (relating to authorization of plicable, in calendar years 2002 and 2003, ‘‘(c) RETURN OF DEPOSIT.—Except in a case agreements) is amended— shall be reduced by the amount of any pay- where the Secretary determines that collec- (i) by striking ‘‘satisfy liability for pay- ment received by that manufacturer under tion of tax is in jeopardy, the Secretary shall ment of’’ and inserting ‘‘make payment on’’, this section before the enactment of the return to the taxpayer any amount of the de- and Wool Manufacturer Payment Clarification posit (to the extent not used for a payment (ii) by inserting ‘‘full or partial’’ after ‘‘fa- and Technical Corrections Act. of tax) which the taxpayer requests in writ- cilitate’’. ‘‘(g) DEFINITION.—For purposes of this sec- ing. (B) Section 6159(c) of such Code (relating to tion, the manufacturer is the party that ‘‘(d) PAYMENT OF INTEREST.— Secretary required to enter into installment owns— ‘‘(1) IN GENERAL.—For purposes of section agreements in certain cases) is amended in ‘‘(1) imported worsted wool fabric, of the 6611 (relating to interest on overpayments), a the matter preceding paragraph (1) by insert- kind described in heading 9902.51.11 or deposit which is returned to a taxpayer shall ing ‘‘full’’ before ‘‘payment’’. 9902.51.12 of the Harmonized Tariff Schedule be treated as a payment of tax for any period (2) REQUIREMENT TO REVIEW PARTIAL PAY- of the United States, at the time the fabric to the extent (and only to the extent) attrib- MENT AGREEMENTS EVERY TWO YEARS.—Sec- is cut and sewn in the United States into utable to a disputable tax for such period. tion 6159 of such Code is amended by redesig- men’s or boys’ suits, suit-type jackets, or Under regulations prescribed by the Sec- nating subsections (d) and (e) as subsections trousers; retary, rules similar to the rules of section (e) and (f), respectively, and inserting after ‘‘(2) imported wool yarn, of the kind de- 6611(b)(2) shall apply. subsection (c) the following new subsection: scribed in heading 9902.51.13 of such Sched- ‘‘(2) DISPUTABLE TAX.— ‘‘(d) SECRETARY REQUIRED TO REVIEW IN- ule, at the time the yarn is processed in the ‘‘(A) IN GENERAL.—For purposes of this sec- STALLMENT AGREEMENTS FOR PARTIAL COL- United States into worsted wool fabric; or tion, the term ‘disputable tax’ means the LECTION EVERY TWO YEARS.—In the case of S4180 CONGRESSIONAL RECORD — SENATE May 9, 2002 an agreement entered into by the Secretary ‘‘SEC. 225. NOTIFICATION BY INTERNATIONAL ‘‘SEC. 294. NOTIFICATION BY INTERNATIONAL under subsection (a) for partial collection of TRADE COMMISSION. TRADE COMMISSION. a tax liability, the Secretary shall review ‘‘(a) NOTIFICATION OF INVESTIGATION.— ‘‘(a) NOTIFICATION OF INVESTIGATION.— the agreement at least once every 2 years.’’. Whenever the International Trade Commis- Whenever the International Trade Commis- (3) EFFECTIVE DATE.—The amendments sion begins an investigation under section sion (in this chapter referred to as the ‘Com- made by this subsection shall apply to agree- 202 with respect to an industry, the Commis- mission’) begins an investigation under sec- ments entered into on or after the date of sion shall immediately notify the Secretary tion 202 with respect to an agricultural com- the enactment of this Act. of that investigation. modity, the Commission shall immediately (c) EXTENSION OF INTERNAL REVENUE SERV- ‘‘(b) NOTIFICATION OF AFFIRMATIVE FIND- notify the Secretary of the investigation. ICE USER FEES.— ING.—Whenever the International Trade ‘‘(b) NOTIFICATION OF AFFIRMATIVE DETER- (1) IN GENERAL.—Chapter 77 of the Internal Commission makes a report under section MINATION.—Whenever the Commission makes Revenue Code of 1986 (relating to miscella- 202(f) containing an affirmative finding re- a report under section 202(f) containing an neous provisions) is amended by adding at garding serious injury, or the threat thereof, affirmative finding regarding serious injury, the end the following new section: to a domestic industry, the Commission or the threat thereof, to a domestic industry ‘‘SEC. 7527. INTERNAL REVENUE SERVICE USER shall immediately notify the Secretary of producing an agricultural commodity, the FEES. that finding. Commission shall immediately notify the ‘‘(a) GENERAL RULE.—The Secretary shall On page A–45, between lines 16 and 17, in- Secretary of that finding. establish a program requiring the payment Beginning on page A–136, line 3, strike all of user fees for— sert the following: ‘‘(2) INDUSTRY-WIDE CERTIFICATION.—If the through page A–137, line 2, and insert the fol- ‘‘(1) requests to the Internal Revenue Serv- lowing: ice for ruling letters, opinion letters, and de- Secretary receives a petition under sub- section (b)(2)(E) on behalf of all workers in a ‘‘SEC. 299C. NOTIFICATION BY INTERNATIONAL termination letters, and TRADE COMMISSION. ‘‘(2) other similar requests. domestic industry producing an article or re- ‘‘(a) NOTIFICATION OF INVESTIGATION.— ‘‘(b) PROGRAM CRITERIA.— ceives 3 or more petitions under subsection Whenever the International Trade Commis- ‘‘(1) IN GENERAL.—The fees charged under (b)(2) within a 180-day period on behalf of the program required by subsection (a)— groups of workers producing the same arti- sion (in this chapter referred to as the ‘Com- ‘‘(A) shall vary according to categories (or cle, the Secretary shall make a determina- mission’) begins an investigation under sec- subcategories) established by the Secretary, tion under subsections (a)(1) and (c)(1) of this tion 202 with respect to fish or a class of fish, ‘‘(B) shall be determined after taking into section with respect to the domestic indus- the Commission shall immediately notify account the average time for (and difficulty try as a whole in which the workers are or the Secretary of the investigation. of) complying with requests in each category were employed. ‘‘(b) NOTIFICATION OF AFFIRMATIVE DETER- (and subcategory), and On page A–45, line 15, strike ‘‘(2)’’ and in- MINATION.—Whenever the Commission makes ‘‘(C) shall be payable in advance. sert ‘‘(3)’’. a report under section 202(f) containing an ‘‘(2) EXEMPTIONS, ETC.— On page A–45, line 20, strike ‘‘(3)’’ and in- affirmative finding regarding serious injury, ‘‘(A) IN GENERAL.—The Secretary shall pro- sert ‘‘(4)’’. or the threat thereof, to a domestic industry producing fish or a class of fish, the Commis- vide for such exemptions (and reduced fees) On page A–46, line 1, strike ‘‘(4)’’ and insert sion shall immediately notify the Secretary under such program as the Secretary deter- ‘‘(5)’’. of that finding. mines to be appropriate. On page A–95, between lines 5 and 6, insert ‘‘(B) EXEMPTION FOR CERTAIN REQUESTS RE- the following: f GARDING PENSION PLANS.—No fee shall be im- posed under this section for any request to SEC. 113. COORDINATION WITH OTHER TRADE AUTHORITY FOR COMMITTEES TO PROVISIONS. which section 620(a) of the Economic Growth MEET and Tax Relief Reconciliation Act of 2001 ap- (a) RECOMMENDATIONS BY ITC.— plies. (1) Section 202(e)(2)(D) of the Trade Act of COMMITTEE ON ARMED SERVICES ‘‘(3) AVERAGE FEE REQUIREMENT.—The aver- 1974 (19 U.S.C. 2252(e)(2)(D)) is amended by Mr. REID. Mr. President, I ask unan- age fee charged under the program required striking ‘‘, including the provision of trade imous consent that the Committee on by subsection (a) shall not be less than the adjustment assistance under chapter 2’’. Armed Services be authorized to meet (2) Section 203(a)(3)(D) of the Trade Act of amount determined under the following during the session of the Senate on table: 1974 (19 U.S.C. 2252(a)(3)(D)) is amended by striking ‘‘, including the provision of trade Thursday, May 9, 2002, at 9:30 a.m., in Average closed session to mark up the Depart- ‘‘Category Fee adjustment assistance under chapter 2’’. Employee plan ruling and opinion .. $250 (b) ASSISTANCE FOR WORKERS.—Section ment of Defense Authorization Act for Exempt organization ruling ...... $350 203(a)(1)(A) of the Trade Act of 1974 (19 U.S.C. Fiscal Year 2003. Employee plan determination ...... $300 2252(a)(1)(A)) is amended to read as follows: The PRESIDING OFFICER. Without Exempt organization determina- $275 ‘‘(A) After receiving a report under section objection, it is so ordered. tion. 202(f) containing an affirmative finding re- COMMITTEE ON FINANCE Chief counsel ruling ...... $200. garding serious injury, or the threat thereof, ‘‘(c) TERMINATION.—No fee shall be imposed to a domestic industry— Mr. REID. Mr. President, I ask unan- under this section with respect to requests ‘‘(i) the President shall take all appro- imous consent that the Committee on made after September 30, 2005.’’ priate and feasible action within his power; Finance be authorized to meet during (2) CONFORMING AMENDMENTS.— and (A) The table of sections for chapter 77 of the session of the Senate on Thursday, ‘‘(ii) the Secretary of Labor, the Secretary such Code is amended by adding at the end May 9, 2002, at 9:30 a.m., to hear testi- of Agriculture, or the Secretary of Com- the following new item: mony on revenue issues related to the merce, as appropriate, shall certify as eligi- Highway Trust Fund. ‘‘Sec. 7527. Internal Revenue Service user ble for trade adjustment assistance under fees.’’ section 231(a), 292, or 299B, workers, farmers, The PRESIDING OFFICER. Without objection, it is so ordered. (B) Section 10511 of the Revenue Act of 1987 or fishermen who are or were employed in is repealed. the domestic industry defined by the Com- COMMITTEE ON THE JUDICIARY (3) EFFECTIVE DATE.—The amendments mission if such workers, farmers, or fisher- Mr. REID. Mr. President, I ask unan- made by this subsection shall apply to re- men become totally or partially separated, imous consent that the Committee on quests made after the date of the enactment or are threatened to become totally or par- the Judiciary be authorized to meet to of this Act. tially separated not more than 1 year before or not more than 1 year after the date on conduct a hearing on ‘‘judicial nomina- SA 3400. Mr. BAYH (for himself, Mr. which the Commission made its report to the tions’’ on Thursday, May 9, 2002, in the DURBIN, Mr. DAYTON, Ms. MIKULSKI, President under section 202(f).’’. Dirksen Room 226 at 2 p.m. and Mr. ROCKEFELLER) submitted an (c) SPECIAL LOOK-BACK RULE.—Section Witness List amendment intended to be proposed to 203(a)(1)(A) of the Trade Act of 1974 shall amendment SA 3386 proposed by Mr. apply to a worker, farmer, or fisherman if Panel I: The Honorable Daniel K. not more than 1 year before the date of en- DASCHLE to the bill (H.R. 3009) to ex- Inouye; the Honorable Arlen Specter; actment of the Trade Adjustment Assistance the Honorable Daniel Akaka; the Hon- tend the Andean Trade Preference Act, Reform Act of 2002 the Commission notified to grant additional trade benefits orable Rick Santorum; the Honorable the President of an affirmative determina- Christopher Cox; the Honorable Tim under that Act, and for other purposes; tion under section 202(f) of such Act with re- which was ordered to lie on the table; spect the domestic industry in which such Holden; and the Honorable Melissa as follows: worker, farmer, or fisherman was employed. Hart. Beginning on page A–35, line 1, strike all Beginning on page A–120, line 7, strike all Panel II: Richard R. Clifton to be a through page A–36, line 3, and insert the fol- through page A–121, line 9, and insert the fol- U.S. Circuit Court Judge for the 9th lowing: lowing: Circuit. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4181 Panel III: Christopher C. Conner to EXPORT-IMPORT BANK SEC. 4. ADMINISTRATIVE EXPENSES. be a U.S. District Court Judge for the REAUTHORIZATION ACT OF 2002 (a) LIMITATIONS ON AUTHORIZATION OF AP- PROPRIATIONS.—Section 3 of the Export-Import Middle District of Pennsylvania; Joy Mr. REID. Mr. President, I ask the Flowers Conti to be a U.S. District Bank Act of 1945 (12 U.S.C. 635a) is amended by Chair to lay before the Senate a mes- adding at the end the following: Court Judge for the Western District of sage from the House of Representatives ‘‘(f) LIMITATIONS ON AUTHORIZATION OF AP- Pennsylvania; and John E. Jones, III to with respect to S. 1372. PROPRIATIONS FOR ADMINISTRATIVE EXPENSES.— be a U.S. District Court Judge for the The Presiding Officer laid before the ‘‘(1) IN GENERAL.—For administrative expenses Middle District of Pennsylvania. Senate a message from the House, as incurred by the Bank, including technology-re- lated expenses to carry out section 2(b)(1)(E)(x), The PRESIDING OFFICER. Without follows: objection, it is so ordered. there are authorized to be appropriated to the Resolved, That the bill from the Senate (S. Bank not more than— SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 1372) entitled ‘‘An Act to reauthorize the Ex- ‘‘(A) for fiscal year 2002, $80,000,000; and AND THE COURTS port-Import Bank of the United States’’, do ‘‘(B) for each of fiscal years 2003 through Mr. REID. Mr. President, I ask unan- pass with the following amendment: 2005, the amount authorized by this paragraph imous consent that the Committee on Strike out all after the enacting clause and to be appropriated for the then preceding fiscal the Judiciary Subcommittee on Ad- insert: year, increased by the inflation percentage (as ministrative Oversight and the Courts SECTION 1. SHORT TITLE; TABLE OF CONTENTS. defined in section 6(a)(2)(B)) applicable to the be authorized to meet to conduct a (a) SHORT TITLE.—This Act may be cited as then current fiscal year. ‘‘(2) OUTREACH TO SMALL BUSINESSES WITH hearing on ‘‘Ghosts of Nominations the ‘‘Export-Import Bank Reauthorization Act of 2002’’. FEWER THAN 100 EMPLOYEES.—Of the amount ap- Past: Setting the Record Straight’’ on (b) TABLE OF CONTENTS.—The table of con- propriated pursuant to paragraph (1), there Thursday, May 9, 2002, at 10 a.m., in tents of this Act is as follows: shall be available for outreach to small business Dirksen 226. Sec. 1. Short title; table of contents. concerns (as defined under section 3 of the Small Business Act) employing fewer than 100 Witness List Sec. 2. Clarification that purposes include United States employment. employees, not more than— Panel I: The Honorable Jorge Rangel, Sec. 3. Extension of authority. ‘‘(A) $2,000,000 for fiscal year 2002; and the Rangel Law Firm, Corpus Christi, Sec. 4. Administrative expenses. ‘‘(B) for each of fiscal years 2003 through 2005, the amount required by this paragraph to Texas; Kent Markus, Esq., Director, Sec. 5. Increase in aggregate loan, guarantee, and insurance authority. be made available for the then preceding fiscal Dave Thomas Center for Adoption Law, year, increased by the inflation percentage (as Capital University Law School, Colum- Sec. 6. Activities relating to Africa. Sec. 7. Small business. defined in section 6(a)(2)(B)) applicable to the bus, Ohio; Enrique Moreno, Esq., Law Sec. 8. Technology. then current fiscal year.’’. Offices of Enrique Moreno, EL Paso, Sec. 9. Tied Aid Credit Fund. (b) REQUIRED BUDGET SUBCATEGORIES.—Sec- Texas; and Bonnie Campbell, Esq., Sec. 10. Expansion of authority to use Tied Aid tion 1105(a) of title 31, United States Code, is Former Attorney General of Iowa, Credit Fund. amended by adding at the end the following: Washington, DC. Sec. 11. Renaming of Tied Aid Credit Program ‘‘(34) with respect to the amount of appropria- tions requested for use by the Export-Import Panel II: The Honorable C. Boyden and Fund as Export Competitive- ness Program and Fund. Bank of the United States, a separate statement Gray, Former White House Counsel, of the amount requested for its program budget, Washington, DC, and the Honorable Sec. 12. Annual competitiveness report. Sec. 13. Renewable energy sources. the amount requested for its administrative ex- , Superior Court, San Fran- Sec. 14. GAO reports. penses, and of the amount requested for its ad- cisco, CA. Sec. 15. Human rights. ministrative expenses, the amount requested for The PRESIDING OFFICER. Without Sec. 16. Steel. technology expenses and the amount requested objection, it is so ordered. Sec. 17. Correction of references. for expenses for outreach to small business con- cerns (as defined under section 3 of the Small SUBCOMMITTE ON OCEANS, ATMOSPHERE, AND Sec. 18. Authority to deny application for as- sistance based on fraud or corrup- Business Act) employing fewer than 100 employ- FISHERIES ees.’’. Mr. REID. Mr. President, I ask unan- tion by the applicant. Sec. 19. Consideration of foreign country help- (c) SENSE OF THE CONGRESS ON THE IMPOR- imous consent that the Subcommittee fulness in efforts to eradicate ter- TANCE OF TECHNOLOGY IMPROVEMENTS.— (1) FINDINGS.—The Congress finds that— on Oceans, Atmosphere and Fisheries rorism. (A) the Export-Import Bank of the United be authorized to meet on Thursday, Sec. 20. Outstanding orders and preliminary in- States is in great need of technology improve- May 9, 2002, at 9:30 a.m., on oversight of jury determinations. ments; Sec. 21. Sense of the Congress relating to re- management issues at the National (B) part of the amount budgeted for adminis- newable energy targets. Marine Fisheries Service. trative expenses of the Export-Import Bank is Sec. 22. Requirement that applicants for assist- The PRESIDING OFFICER. Without used for technology initiatives and systems up- ance disclose whether they have objection, it is so ordered. grades for computer hardware and software violated the Foreign Corrupt purchases; f Practices Act; maintenance of list (C) the Export-Import Bank is falling behind of violators. its foreign competitor export credit agencies’ UNANIMOUS CONSENT AGREE- Sec. 23. Sense of the Congress. proactive technology improvements; MENT—EXECUTIVE CALENDAR SEC. 2. CLARIFICATION THAT PURPOSES IN- (D) small businesses disproportionately benefit Mr. REID. Mr. President, I ask unan- CLUDE UNITED STATES EMPLOY- from improvements in technology; MENT. (E) small businesses need Export-Import Bank imous consent that on Monday, May 13, Section 2(a)(1) of the Export-Import Bank Act at 4 p.m., the Senate proceed to execu- technology improvements in order to export of 1945 (12 U.S.C. 635(a)(1)) is amended by strik- transactions quickly, with as great paper ease tive session to consider the following ing the 2nd sentence and inserting the fol- as possible, and with a quick Bank turn-around nomination: Calendar No. 815, Paul lowing: ‘‘The objects and purposes of the Bank time that does not overstrain the tight resources Cassell, to be a United States District shall be to aid in financing and to facilitate ex- of such businesses; Judge; that there be 2 hours for debate ports of goods and services, imports, and the ex- (F) the Export-Import Bank intends to de- on the nomination equally divided be- change of commodities and services between the velop a number of e-commerce initiatives aimed United States or any of its territories or insular at improving customer service, including web- tween the chairman and the ranking possessions and any foreign country or the member of the Judiciary Committee or based application and claim filing procedures agencies or nationals of any such country, and which would reduce processing time, speed pay- their designees; that at 6 p.m., on Mon- in so doing to contribute to the employment of ment of claims, and increase staff efficiency; day, the Senate vote on confirmation United States workers. To further meet the ob- (G) the Export-Import Bank is beginning the of the nomination; the motion to re- jective set forth in the preceding sentence, the process of moving insurance applications from consider be laid upon the table; the Bank shall ensure that its loans, guarantees, in- an outdated mainframe system to a modern, President be immediately notified of surance, and credits are contributing to main- web-enabled database, with new functionality the Senate’s action; any statements taining or increasing employment of United including credit scoring, portfolio management, States workers.’’. thereon be printed in the RECORD; and work flow and e-commerce features to be added; the Senate return to legislative ses- SEC. 3. EXTENSION OF AUTHORITY. and Section 7 of the Export-Import Bank Act of (H) the Export-Import Bank wants to con- sion, without any intervening action or 1945 (12 U.S.C. 635f) and section 1(c) of Public tinue its e-commerce strategy, including web site debate. Law 103–428 (12 U.S.C. 635 note; 108 Stat. 4376) development, expanding online applications and The PRESIDING OFFICER. Without are each amended by striking ‘‘2001’’ and insert- establishing a public/private sector technology objection, it is so ordered. ing ‘‘2005’’. partnership. S4182 CONGRESSIONAL RECORD — SENATE May 9, 2002

(2) SENSE OF THE CONGRESS.—The Congress made available for small business concerns em- ‘‘(A) IN GENERAL.—The Secretary and the emphasizes the importance of technology im- ploying fewer than 100 employees’’ before the Bank jointly shall develop a process for, and the provements for the Export-Import Bank of the period. principles and standards to be used in, deter- United States, which are of particular impor- (b) OUTREACH TO BUSINESSES OWNED BY SO- mining how the amounts in the Tied Aid Credit tance for small businesses. CIALLY DISADVANTAGED INDIVIDUALS OR Fund could be used most effectively and effi- SEC. 5. INCREASE IN AGGREGATE LOAN, GUAR- WOMEN.—Section 2(b)(1)(E)(iii)(II) of such Act ciently to carry out the purposes of subsection ANTEE, AND INSURANCE AUTHOR- (12 U.S.C. 635(b)(1)(E)(iii)(II)) is amended by in- (a)(6). ITY. serting after ‘‘Bank’’ the following: ‘‘, with par- ‘‘(B) CONTENT OF PRINCIPLES, PROCESS, AND Section 6(a) of the Export-Import Bank Act of ticular emphasis on conducting outreach and STANDARDS.— 1945 (12 U.S.C. 635e(a)) is amended to read as increasing loans to businesses not less than 51 ‘‘(i) CONSIDERATION OF CERTAIN PRINCIPLES follows: percent of which are directly and uncondition- AND STANDARDS.—In developing the principles ‘‘(a) LIMITATION ON OUTSTANDING AMOUNTS.— ally owned by 1 or more socially disadvantaged and standards referred to in subparagraph (A), ‘‘(1) IN GENERAL.—The Export-Import Bank of individuals (as defined in section 8(a)(5) of the the Secretary and the Bank shall consider ad- the United States shall not have outstanding at Small Business Act) or women,’’. ministering the Tied Aid Credit Fund in accord- any one time loans, guarantees, and insurance (c) OFFICE FOR SMALL BUSINESS EXPORTERS.— ance with the following principles and stand- in an aggregate amount in excess of the applica- Section 3 of such Act (12 U.S.C. 635a) is further ards: ble amount. amended by adding at the end the following: ‘‘(I) The Tied Aid Credit Fund should be used ‘‘(2) APPLICABLE AMOUNT.— ‘‘(h) OFFICE FOR SMALL BUSINESS EXPORT- to leverage multilateral negotiations to restrict ‘‘(A) IN GENERAL.—In paragraph (1), the term ERS.— the scope for aid-financed trade distortions ‘applicable amount’ means— ‘‘(1) ESTABLISHMENT.—There is established in through new multilateral rules, and to police ex- ‘‘(i) during fiscal year 2002, $100,000,000,000, the Bank an Office for Small Business Export- isting rules. increased by the inflation percentage applicable ers. ‘‘(II) The Tied Aid Credit Fund will be used to to fiscal year 2002; ‘‘(2) FUNCTION.—The Office for Small Busi- counter a foreign tied aid credit confronted by a ‘‘(ii) during fiscal year 2003, $110,000,000,000, ness Exporters shall focus on increasing Bank United States exporter when bidding for a cap- increased by the inflation percentage applicable activities to enhance small business exports and ital project. to fiscal year 2003; to meet the unique trade finance needs of small ‘‘(III) Credible information about an offer of ‘‘(iii) during fiscal year 2004, $120,000,000,000, business exporters. foreign tied aid will be required before the Tied increased by the inflation percentage applicable ‘‘(3) REPORTS.—The Office for Small Business Aid Credit Fund is used to offer specific terms to to fiscal year 2004; and Exporters shall, from time to time not less than match such an offer. ‘‘(iv) during fiscal year 2005, $130,000,000,000, annually, report to the Board on the how the ‘‘(IV) The Tied Aid Credit Fund will be used increased by the inflation percentage applicable Office for Small Business Exporters is achieving to enable a competitive United States exporter to to fiscal year 2005. the goals as described in paragraph (2). pursue further market opportunities on commer- ‘‘(B) INFLATION PERCENTAGE.—For purposes of ‘‘(4) SENSE OF CONGRESS.—It is the sense of cial terms made possible by the use of the Fund. subparagraph (A) of this paragraph, the infla- the Congress that the Bank should redirect and ‘‘(V) Each use of the Tied Aid Credit Fund tion percentage applicable to any fiscal year is prioritize existing resources and personnel to es- will be in accordance with the Arrangement un- the percentage (if any) by which— tablish the Office for Small Business Export- less a breach of the Arrangement has been com- ‘‘(i) the average of the Consumer Price Index ers.’’. mitted by a foreign export credit agency. (as defined in section 1(f)(5) of the Internal Rev- ‘‘(VI) The Tied Aid Credit Fund may only be SEC. 8. TECHNOLOGY. enue Code of 1986) for the 12-month period end- used to defend potential sales by United States (a) SMALL BUSINESS.—Section 2(b)(1)(E) of the ing on December 31 of the immediately preceding companies to a project that is environmentally Export-Import Bank Act of 1945 (12 U.S.C. fiscal year; exceeds sound. ‘‘(ii) the average of the Consumer Price Index 635(b)(1)(E)) is amended by adding at the end ‘‘(VII) The Tied Aid Credit Fund may be used (as so defined) for the 12-month period ending the following: to preemptively counter potential foreign tied on December 31 of the 2nd preceding fiscal year. ‘‘(x) The Bank shall implement technology im- aid offers without triggering foreign tied aid ‘‘(3) SUBJECT TO APPROPRIATIONS.—All spend- provements which are designed to improve small use. ing and credit authority provided under this Act business outreach, including allowing customers ‘‘(ii) LIMITATION.—The principles, process and shall be effective for any fiscal year only to to use the Internet to apply for all Bank pro- standards referred to in subparagraph (A) shall such extent or in such amounts as are provided grams.’’. not result in the Secretary having the authority in appropriation Acts.’’. (b) ELECTRONIC TRACKING OF PENDING TRANS- to veto a specific deal. SEC. 6. ACTIVITIES RELATING TO AFRICA. ACTIONS.—Section 2(b)(1) of such Act (12 U.S.C. ‘‘(C) INITIAL PRINCIPLES, PROCESS, AND STAND- (a) EXTENSION OF ADVISORY COMMITTEE FOR 635(b)(1)) is amended by adding at the end the ARDS.—As soon as is practicable but not later SUB-SAHARAN AFRICA.—Section 2(b)(9)(B)(iii) of following: than 6 months after the date of the enactment the Export-Import Bank Act of 1945 (12 U.S.C. ‘‘(J) The Bank shall implement an electronic of this paragraph, the Secretary and the Bank 635(b)(9)(B)(iii)) is amended by striking ‘‘4 years system designed to track all pending trans- shall submit to the Committee on Financial after the date of enactment of this subpara- actions of the Bank.’’. Services of the House of Representatives and the graph’’ and inserting ‘‘on September 30, 2005’’. (c) REPORTS.— Committee on Banking, Housing, and Urban Af- (b) COORDINATION OF AFRICA ACTIVITIES.— (1) IN GENERAL.—During each of fiscal years fairs of the Senate a copy of the principles, Section 2(b)(9)(A) of the Export-Import Bank 2002 through 2005, the Export-Import Bank of process, and standards developed pursuant to Act of 1945 (12 U.S.C. 635(b)(9)(A)) is amended the United States shall submit to the Committees subparagraph (A). by inserting ‘‘, in consultation with the Depart- on Financial Services and on Appropriations of ‘‘(D) TRANSITIONAL PRINCIPLES AND STAND- ment of Commerce and the Trade Promotion Co- the House of Representatives and the Commit- ARDS.—The principles and standards set forth in ordinating Council,’’ after ‘‘shall’’. tees on Banking, Housing, and Urban Affairs subparagraph (B)(i) shall govern the use of the (c) CONTINUED REPORTS TO THE CONGRESS.— and on Appropriations of the Senate an interim Tied Aid Credit Fund until the principles, proc- Section 7(b) of the Export-Import Bank Reau- report and a final report on the efforts made by ess, and standards required by subparagraph thorization Act of 1997 (12 U.S.C. 635 note) is the Bank to carry out subsections (E)(x) and (J) (C) are submitted. amended by striking ‘‘4’’ and inserting ‘‘8’’. of section 2(b)(1) of the Export-Import Bank Act ‘‘(E) UPDATE AND REVISION.—The Secretary (d) CREATION OF OFFICE ON AFRICA.—Section of 1945, and on how the efforts are assisting and the bank jointly should update and revise, 3 of the Export-Import Bank Act of 1945 (12 small businesses. as needed, the principles, process, and stand- U.S.C. 635a) is further amended by adding at (2) TIMING.—The interim report required by ards developed pursuant to subparagraph (A), the end the following: paragraph (1) for a fiscal year shall be sub- and, on doing so, shall submit to the Committee ‘‘(g) OFFICE ON AFRICA.— mitted April 30 of the fiscal year, and the final on Financial Services of the House of Represent- ‘‘(1) ESTABLISHMENT.—There is established in report so required for a fiscal year shall be sub- atives and the Committee on Banking, Housing, the Bank an Office on Africa. mitted on November 1 of the succeeding fiscal and Urban Affairs of the Senate a copy of the ‘‘(2) FUNCTION.—The Office on Africa shall year. principles, process, and standards so updated focus on increasing Bank activities in Africa SEC. 9. TIED AID CREDIT FUND. and revised.’’. and increasing visibility among United States (a) PRINCIPLES, PROCESS, AND STANDARDS.— (b) RECONSIDERATION OF BOARD DECISIONS ON companies of African markets for exports. Section 10(b) of the Export-Import Bank Act of USE OF FUND.—Section 10(b) of such Act (12 ‘‘(3) REPORTS.—The Office on Africa shall, 1945 (12 U.S.C. 635i–3(b)) is amended— U.S.C. 635i–3(b)) is further amended by adding from time to time not less than annually, report (1) in paragraph (2), by striking subparagraph at the end the following: to the Board on the matters described in para- (A) and inserting the following: ‘‘(6) RECONSIDERATION OF DECISIONS.— graph (2).’’. ‘‘(A) in consultation with the Secretary and ‘‘(A) IN GENERAL.—Taking into consideration SEC. 7. SMALL BUSINESS. in accordance with the principles, process, and the time sensitivity of transactions, the Board of (a) IN GENERAL.—Section 2(b)(1)(E)(v) of the standards developed pursuant to paragraph (5) Directors of the Bank shall expeditiously pursu- Export-Import Bank Act of 1945 (12 U.S.C. of this subsection and the purposes described in ant to paragraph (2) reconsider a decision of the 635(b)(1)(E)(v)) is amended— subsection (a)(5);’’; and Board to deny an application of the use of the (1) by striking ‘‘10’’ and inserting ‘‘20’’; and (2) by adding at the end the following: Tied Aid Credit Fund if the applicant submits (2) by inserting ‘‘, and from such amount, not ‘‘(5) PRINCIPLES, PROCESS, AND STANDARDS the request for reconsideration within 3 months less than 8 percent of such authority shall be GOVERNING USE OF THE FUND.— of the denial. May 9, 2002 CONGRESSIONAL RECORD — SENATE S4183

‘‘(B) PROCEDURAL RULES.—In any such recon- tion) that claims to operate on a commercial U.S.C. 635(b)(1)(A)) is further amended by add- sideration, the applicant may be required to, basis while benefiting directly or indirectly from ing at the end the following: ‘‘The Bank shall provide new information on the application.’’. some level of government support.’’. include in the annual report a description of SEC. 10. EXPANSION OF AUTHORITY TO USE TIED SEC. 11. RENAMING OF TIED AID CREDIT PRO- outreach efforts made by the Bank to any busi- AID CREDIT FUND. GRAM AND FUND AS EXPORT COM- ness not less than 51 percent of which is directly (a) UNTIED AID.— PETITIVENESS PROGRAM AND FUND. and unconditionally owned by 1 or more so- (1) NEGOTIATIONS.—The Secretary of the Section 10 of the Export-Import Bank Act of cially disadvantaged individuals (as defined in Treasury shall seek to negotiate an OECD Ar- 1945 (12 U.S.C. 635i–3) is further amended— section 8(a)(5) of the Small Business Act) or rangement on Untied Aid. In the negotiations, (1) by striking all that precedes paragraph (1) women, and any data on the results of such ef- the Secretary should seek agreement on sub- of subsection (a) and inserting the following: forts.’’. jecting untied aid to the rules governing the Ar- ‘‘SEC. 10. EXPORT COMPETITIVENESS FUND. SEC. 13. RENEWABLE ENERGY SOURCES. rangement, including the rules governing disclo- ‘‘(a) FINDINGS.—The Congress finds that—’’; (a) PROMOTION.—Section 2(b)(1) of the Ex- sure. (2) in subsection (a)(6) (as so redesignated by port-Import Bank Act of 1945 (12 U.S.C. (2) REPORT TO THE CONGRESS.—Within 1 year section 9(c)(1)(D) of this Act), by striking ‘‘tied 635(b)(1)), as amended by section 8(b) of this after the date of the enactment of this Act, the aid program’’ and inserting ‘‘export competitive- Act, is amended by adding at the end the fol- Secretary of the Treasury shall submit to the ness program’’; lowing: Committee on Financial Services of the House of (3) in the heading of subsection (b), by strik- ‘‘(K) The Bank shall promote the export of Representatives and the Committee on Banking, ing ‘‘TIED AID CREDIT’’ and inserting ‘‘EXPORT goods and services related to renewable energy Housing, and Urban Affairs of the Senate a re- COMPETITIVENESS’’; sources.’’. port on the successes, failures, and obstacles in (4) in subsection (b)(1)— (b) DESCRIPTION OF EFFORTS TO BE INCLUDED initiating negotiations, and if negotiations were (A) by striking ‘‘tied aid credit program’’ and IN ANNUAL COMPETITIVENESS REPORT.—Section initiated, in reaching the agreement described in inserting ‘‘export competitiveness program’’; and 2(b)(1)(A) of such Act (12 U.S.C. 635(b)(1)(A)) is paragraph (1). (B) by striking ‘‘Tied Aid Credit fund’’ and further amended by adding at the end the fol- (b) MARKET WINDOWS.— inserting ‘‘Export Competitiveness Fund’’; lowing: ‘‘The Bank shall include in the annual (1) NEGOTIATIONS.—The Secretary of the (5) in subsection (b)(2), by striking ‘‘tied aid report a description of the efforts undertaken Treasury shall seek to negotiate an OECD Ar- credit program’’ and inserting ‘‘export competi- under subparagraph (K).’’. rangement on Market Windows. In the negotia- tiveness program’’; SEC. 14. GAO REPORTS. tions, the Secretary should seek agreement on (6) in subsection (b)(3)— (a) POTENTIAL OF WTO TO REMEDY UNTIED subjecting market windows to the rules gov- (A) by striking ‘‘tied aid credit program’’ and AID AND MARKET WINDOWS.—Within 1 year erning the Arrangement, including the rules inserting ‘‘export competitiveness program’’; and after the date of the enactment of this Act, the governing disclosure. (B) by striking ‘‘Tied Aid Credit Fund’’ and Comptroller General of the United States shall (2) REPORT TO THE CONGRESS.—Within 2 years inserting ‘‘Export Competitiveness Fund’’; submit to the Committee on Financial Services after the date of the enactment of this Act, the (7) in subsection (b)(5) (as added by section of the House of Representatives and the Com- Secretary of the Treasury shall submit to the 9(a)(2) of this Act), by striking ‘‘Tied Aid Credit mittee on Banking, Housing, and Urban Affairs Committee on Financial Services of the House of Fund’’ each place it appears and inserting ‘‘Ex- of the Senate a report that examines— Representatives and the Committee on Banking, port Competitiveness Fund’’; (1) whether a case could be brought by the Housing, and Urban Affairs of the Senate a re- (8) in subsection (b)(6) (as added by section United States in the World Trade Organization port on the successes, failures, and obstacles in 9(b) of this Act), by striking ‘‘Tied Aid Credit seeking relief against untied aid and market initiating negotiations, and if negotiations were Fund’’ and inserting ‘‘Export Competitiveness windows, and if so, the kinds of relief that initiated, in reaching the agreement described in Fund’’; would be available if the United States were to paragraph (1). (9) in subsection (c)— prevail in such a case; and (c) USE OF TIED AID CREDIT FUND TO COMBAT (A) in the subsection heading, by striking (2) the scope of penalty tariffs that the United UNTIED AID.—Section 10 of the Export-Import ‘‘TIED AID CREDIT’’ and inserting ‘‘EXPORT States could impose against imports from a Bank Act of 1945 (12 U.S.C. 635i–3) is amended COMPETITIVENESS’’; and country that uses untied aid or market win- in subsection (a)— (B) in paragraph (1), by striking ‘‘Tied Aid dows. (A) in paragraph (4), by striking ‘‘and’’ at the Credit’’ and inserting ‘‘Export Competitive- (b) COMPARATIVE RESERVE PRACTICES OF EX- end; ness’’; PORT CREDIT AGENCIES AND PRIVATE BANKS.— (B) in paragraph (5), by inserting ‘‘, or untied (10) in subsection (d), by striking ‘‘tied aid Within 1 year after the date of the enactment of aid,’’ before ‘‘for commercial’’ the 1st and 3rd credit’’ and inserting ‘‘export competitiveness’’; this Act, the Comptroller General of the United places it appears; and and States shall submit to the Committee on Finan- (C) by redesignating paragraph (5) as para- (11) in subsection (g)(2)(C), by striking ‘‘Tied cial Services of the House of Representatives graph (6) and inserting after paragraph (4) the Aid Credit’’ and inserting ‘‘Export Competitive- and the Committee on Banking, Housing, and following: ness’’. Urban Affairs of the Senate a report that exam- ‘‘(5) the Bank has, at a minimum, the fol- SEC. 12. ANNUAL COMPETITIVENESS REPORT. ines the reserve ratios of the Export-Import lowing two tasks: Bank of the United States as compared with the ‘‘(A)(i) First, the Bank should match, and (a) TIMING.— reserve practices of private banks and foreign even overmatch, foreign export credit agencies (1) IN GENERAL.—Section 2(b)(1)(A) of the Ex- export credit agencies. and aid agencies when they engage in tied aid port-Import Bank Act of 1945 (12 U.S.C. outside the confines of the Arrangement and 635(b)(1)(A)) is amended in the 4th sentence by SEC. 15. HUMAN RIGHTS. when they exploit loopholes, such as untied aid; striking ‘‘on an annual basis’’ and inserting Section 2(b)(1)(B) of the Export-Import Bank ‘‘(ii) such matching and overmatching is need- ‘‘on June 30 of each year’’. Act of 1945 (12 U.S.C. 635(b)(1)(B)) is amended ed to provide the United States with leverage in (2) APPLICABILITY.—The amendment made by by inserting ‘‘(as provided in the Universal Dec- efforts at the OECD to reduce the overall level paragraph (1) shall apply to reports for cal- laration of Human Rights adopted by the of export subsidies; endar years after calendar year 2000. United Nations General Assembly on December ‘‘(iii) only through matching or bettering for- (b) ADDITIONAL MATTERS TO BE AD- 10, 1948)’’ after ‘‘human rights’’. eign export credit offers can the Bank buttress DRESSED.—Section 2(b)(1)(A) of such Act (12 SEC. 16. STEEL. United States negotiators in their efforts to U.S.C. 635(b)(1)(A)) is amended by adding at the (a) REEVALUATION.—The Export-Import Bank bring these loopholes within the disciplines of end the following: ‘‘The Bank shall include in of the United States shall re-assess the effects of the Arrangement; and the annual report a description of the volume of the approval by the Bank of an $18,000,000 me- ‘‘(iv) in order to bring untied aid within the financing provided by each foreign export credit dium-term guarantee to support the sale of com- discipline of the Arrangement, the Bank should agency, and a description of all Bank trans- puter software, control systems, and main drive sometimes initiate highly competitive financial actions which shall be classified according to power supplies to Benxi Iron & Steel Company, support when the Bank learns that foreign un- their principal purpose, such as to correct a in Benxi, Liaoning, China, for the purpose of tied aid offers will be made; and market failure or to provide matching support.’’. evaluating whether the adverse impact test of ‘‘(B) Second, the Bank should support United (c) NUMBER OF SMALL BUSINESS SUPPLIERS OF the Bank sufficiently takes account of the inter- States exporters when the exporters face foreign BANK USERS.—Section 2(b)(1)(A) of such Act (12 ests of United States industries. competition that is consistent with the letter U.S.C. 635(b)(1)(A)) is further amended by add- (b) REPORT TO THE CONGRESS.—Within 1 year and spirit of the Arrangement and the Subsidies ing at the end the following: ‘‘The Bank shall after the date of the enactment of this Act, the Code of the World Trade Organization, but estimate on the basis of an annual survey or Export-Import Bank of the United States shall which nonetheless is more generous than the tabulation the number of entities that are sup- submit to the Committee on Financial Services terms available from the private financial mar- pliers of users of the Bank and that are small of the House of Representatives and the Com- ket; and’’. business concerns (as defined under section 3 of mittee on Banking, Housing, and Urban Affairs (d) DEFINITION OF MARKET WINDOW.—Section the Small Business Act) located in the United of the Senate a report on the re-assessment re- 10(h) of such Act (12 U.S.C. 635i–3(h)) is amend- States, and shall include the estimate in the an- quired by subsection (a). ed by adding at the end the following: nual report.’’. SEC. 17. CORRECTION OF REFERENCES. ‘‘(7) MARKET WINDOW.—The term ‘market win- (d) OUTREACH TO BUSINESSES OWNED BY SO- (a) Section 2(b)(1)(B) of the Export-Import dow’ means the provision of export financing CIALLY DISADVANTAGED INDIVIDUALS OR BY Bank Act of 1945 (12 U.S.C. 635(b)(1)(B)) is through an institution (or a part of an institu- WOMEN.—Section 2(b)(1)(A) of such Act (12 amended by striking ‘‘Banking and’’. S4184 CONGRESSIONAL RECORD — SENATE May 9, 2002 (b) Each of the following provisions of the Ex- sult in a significant increase in imports of sub- The PRESIDING OFFICER. Without port-Import Bank Act of 1945 is amended by stantially the same product covered by the pre- objection, it is so ordered. striking ‘‘Banking, Finance and Urban Affairs’’ liminary determination and are likely to not and inserting ‘‘Financial Services’’: have a significant adverse impact on the domes- f (1) Section 2(b)(6)(D)(i)(III) (12 U.S.C. tic industry. The Bank shall report to the Com- 635(b)(6)(D)(i)(III)). mittee on Financial Services of the House of MEASURE READ THE FIRST (2) Section 2(b)(6)(H) (12 U.S.C. 635(b)(6)(H)). Representatives and the Committee on Banking, TIME—H.R. 4560 (3) Section 2(b)(6)(I)(i)(II) (12 U.S.C. Housing, and Urban Affairs of the Senate on Mr. REID. Mr. President, it is my un- 635(b)(6)(I)(i)(II)). the implementation of these procedures. derstanding that H.R. 4560 has been re- (4) Section 2(b)(6)(I)(iiii) (12 U.S.C. ‘‘(C) COMMENT PERIOD.—The Bank shall es- ceived from the House and is at the 635(b)(6)(I)(iii)). tablish procedures under which the Bank shall (5) Section 10(g)(1) (12 U.S.C. 635i–3(g)(1)). notify interested parties and provide a comment desk. I ask for its first reading. The PRESIDING OFFICER. The SEC. 18. AUTHORITY TO DENY APPLICATION FOR period with regard to loans or guarantees re- ASSISTANCE BASED ON FRAUD OR viewed pursuant to subparagraph (B).’’. clerk will report the bill by title. CORRUPTION BY THE APPLICANT. SEC. 21. SENSE OF THE CONGRESS RELATING TO The senior assistant bill clerk read as Section 2 of the Export-Import Bank Act of RENEWABLE ENERGY TARGETS. follows: 1945 (12 U.S.C. 635) is amended by adding at the (a) ALLOCATION OF ASSISTANCE AMONG EN- A bill (H.R. 4560) to eliminate the deadlines end the following: ERGY PROJECTS.—It is the sense of the Congress for spectrum auctions of spectrum pre- ‘‘(f) AUTHORITY TO DENY APPLICATION FOR that, of the total amount available to the Ex- viously allocated to television broadcasting. ASSISTANCE BASED ON FRAUD OR CORRUPTION BY port-Import Bank of the United States for the PARTY TO THE TRANSACTION.—In addition to extension of credit for transactions related to Mr. REID. Mr. President, I now ask any other authority of the Bank, the Bank may energy projects, the Bank should, not later than for its second reading and object to my deny an application for assistance with respect the beginning of fiscal year 2006, use— own request. to a transaction if the Bank has substantial (1) not more than 95 percent for transactions The PRESIDING OFFICER. Objec- credible evidence that any party to the trans- related to fossil fuel projects; and tion is heard. action has committed an act of fraud or corrup- (2) not less than 5 percent for transactions re- The bill will receive its second read- tion in connection with a transaction involving lated to renewable energy and energy efficiency ing on the next legislative day. a good or service that is the same as, or substan- projects. tially similar to, a good or service the export of (b) DEFINITION OF RENEWABLE ENERGY.—In f which is the subject of the application.’’. this section, the term ‘‘renewable energy’’ means SEC. 19. CONSIDERATION OF FOREIGN COUNTRY projects related to solar, wind, biomass, fuel ORDERS FOR FRIDAY, MAY 10, 2002 HELPFULNESS IN EFFORTS TO cell, landfill gas, or geothermal energy sources. Mr. REID. Mr. President, I ask unan- ERADICATE TERRORISM. SEC. 22. REQUIREMENT THAT APPLICANTS FOR imous consent that when the Senate Section 2(b)(1) of the Export-Import Bank Act ASSISTANCE DISCLOSE WHETHER completes its business today, it recess of 1945 (12 U.S.C. 635(b)(1)) is further amended THEY HAVE VIOLATED THE FOREIGN by adding at the end the following: CORRUPT PRACTICES ACT; MAINTE- until 10 a.m., Friday, May 10; that fol- ‘‘(L) It is further the policy of the United NANCE OF LIST OF VIOLATORS. lowing the prayer and the pledge, the States that, in considering whether to guar- Section 2(b)(1) of the Export-Import Bank Act time for the two leaders be reserved for antee, insure, or extend credit, or participate in of 1945 (12 U.S.C. 635(b)(1)) is further amended their use later in the day, and the Sen- the extension of credit in connection with the by adding at the end the following: ate be in a period of morning business purchase of any product, technical data, or in- ‘‘(M) The Bank shall require an applicant for until 11 a.m., with Senators permitted formation by a national or agency of any na- assistance from the Bank to disclose whether to speak for up to 10 minutes each, the applicant has been found by a court of the tion, the Bank shall take into account the ex- with the time equally divided between tent to which the nation has been helpful or United States to have violated the Foreign Cor- unhelpful in efforts to eradicate terrorism. The rupt Practices Act, and shall maintain a list of the majority leader and the Republican Bank shall consult with the Department of persons so found to have violated such Act.’’. leader or their designees; further, at 11 State to determine the degreee to which each rel- SEC. 23. SENSE OF THE CONGRESS. a.m., the Senate resume consideration evant nation has been helpful or unhelpful in It is the sense of the Congress that, when con- of the trade bill. efforts to eradicate terrorism.’’. sidering a proposal for assistance for a project The PRESIDING OFFICER. Without SEC. 20. OUTSTANDING ORDERS AND PRELIMI- that is worth $10,000,000 or more, the manage- objection, it is so ordered. NARY INJURY DETERMINATIONS. ment of the Export-Import Bank of the United Section 2(e) of the Export-Import Bank Act of States should have available for review a de- f 1945 (12 U.S.C. 635(e)) is amended— tailed assessment of the potential human rights RECESS UNTIL 10 A.M. TOMORROW (1) in paragraph (2), by striking ‘‘Paragraph impact of the proposed project. (1)’’ and inserting ‘‘Paragraphs (1) and (2)’’; Mr. REID. Mr. President, I ask unan- Mr. REID. Mr. President, if there is and imous consent that the Senate disagree no further business to come before the (2) by redesignating paragraphs (2) and (3) as Senate, I ask unanimous consent the paragraphs (3) and (4) and by inserting after to the House amendment, agree to the request for a conference on the dis- Senate stand in recess under the pre- paragraph (1) the following: vious order. ‘‘(2) OUTSTANDING ORDERS AND PRELIMINARY agreeing votes of the two Houses, and There being no objection, the Senate, INJURY DETERMINATIONS.— that the Chair be authorized to appoint at 6:28 p.m., recessed until Friday, May ‘‘(A) ORDERS.—The Bank shall not provide conferees on the part of the Senate, any loan or guarantee to an entity for the re- without intervening action or debate. 10, 2002, at 10 a.m. sulting production of substantially the same The PRESIDING OFFICER. Without f product that is the subject of— objection, it is so ordered. ‘‘(i) a countervailing duty or antidumping CONFIRMATIONS order under title VII of the Tariff Act of 1930; or The PRESIDING OFFICER (Mr. ‘‘(ii) a determination under title II of the WELLSTONE) appointed Mr. SARBANES, Executive nominations confirmed by Trade Act of 1974. Mr. DODD, Mr. JOHNSON, Mr. BAYH, Mr. the Senate May 9, 2002: ‘‘(B) AFFIRMATIVE DETERMINATION.—Within GRAMM, Mr. SHELBY, and Mr. HAGEL THE JUDICIARY 60 days after the date of the enactment of this conferees on the part of the Senate. LEONARD E. DAVIS, OF TEXAS, TO BE UNITED STATES Act, the Bank shall establish procedures regard- DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS. ing loans or guarantees provided to any entity f ANDREW S. HANEN, OF TEXAS, TO BE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF that is subject to a preliminary determination of STAR PRINT—S. 2430 TEXAS. a reasonable indication of material injury to an SAMUEL H. MAYS, JR., OF TENNESSEE, TO BE UNITED industry under title VII of the Tariff Act of Mr. REID. Mr. President, I ask unan- STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT imous consent that S. 2430 be star OF TENNESSEE. 1930. The procedures shall help to ensure that THOMAS M. ROSE, OF OHIO, TO BE UNITED STATES DIS- these loans and guarantees are likely to not re- printed with the changes at the desk. TRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO.