E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 110 CONGRESS, SECOND SESSION

Vol. 154 WASHINGTON, TUESDAY, JUNE 24, 2008 No. 105 Senate (Legislative day of Monday, June 23, 2008)

The Senate met at 10 a.m., on the ex- U.S. SENATE, number of judges this afternoon, the piration of the recess, and was called to PRESIDENT PRO TEMPORE, exact number of which we don’t have order by the Honorable JON TESTER, a Washington, DC, June 24, 2008. worked out just yet, but we are going Senator from the State of Montana. To the Senate: to do three circuit court judges and Under the provisions of rule I, paragraph 3, of the Standing Rules of the Senate, I hereby some district court judges. I have to PRAYER appoint the Honorable JON TESTER, a Sen- confer with Senator LEAHY on the The Chaplain, Dr. Barry C. Black, of- ator from the State of Montana, to perform number of district court judges. fered the following prayer: the duties of the Chair. I would also say to my friend the dis- Let us pray. ROBERT C. BYRD, tinguished Republican leader that I Grant, O God, that our lawmakers President pro tempore. spoke to Senator FEINGOLD this morn- may move forward today as those who Mr. TESTER thereupon assumed the ing regarding the FEC nominations, are heirs of eternal life. Give them the chair as Acting President pro tempore. and it appears very clear we should be wisdom to learn contentment with f able to do them today. In regard to Your purposes, enabling them to expe- that, I wish to underscore my desire— RECOGNITION OF THE MAJORITY our desire—to constitute the Federal rience the eternal here and now. As LEADER they move through this day with its Election Commission so it is working. Just a brief history, Mr. President. shades and shadows, give them free- The ACTING PRESIDENT pro tem- Before Memorial Day, there were four dom—not from difficulties but strength pore. The majority leader is recog- FEC nominations pending—two Repub- for the challenges that greet them. As nized. licans, two Democrats. At that time, they encounter setbacks, may they f we offered to confirm those nominees trust the unfolding of Your loving PROGRAM by unanimous consent. The Repub- providence. In the face of misfortunes, Mr. REID. Mr. President, we have a licans did not take me up on that offer. empower them to surrender to Your very busy schedule this week. We have There would have been five FEC Com- will. Lord, give them the humility to some work we need to complete. We missioners today had that been done. be more concerned about being on Your have, of course, FISA, the Foreign In- In fact, it would have been prior to side than recruiting You to be on their telligence Surveillance Act; we have that recess. There would have been side. the supplemental appropriations bill; enough to conduct all official business. We pray in Your sovereign Name. we have the tax extenders; we have There was a thought, I assume, on the Amen. Medicare we need to complete; and, of part of the Republicans that they f course, we are on housing today. Re- wanted a full six, and I understand garding that, following any remarks I that. So they rejected the offer I made. PLEDGE OF ALLEGIANCE make and those of the Republican lead- They wanted to wait until a replace- The Honorable JON TESTER led the er, we will return to the House message ment for the failed nomination of Hans Pledge of Allegiance, as follows: to accompany H.R. 3221, the housing re- von Spakovsky was received in the form legislation. There will be up to an Senate. I told the Republicans in De- I pledge allegiance to the Flag of the United States of America, and to the Repub- hour of debate equally divided and con- cember that von Spakovsky would not lic for which it stands, one nation under God, trolled between the two leaders or be approved by this body. Someone indivisible, with liberty and justice for all. their designees prior to a vote on the should have been cleared to replace motion to invoke cloture on the Dodd- him long before now. Nonetheless, I f Shelby substitute with respect to the pledged to swiftly move that new nomi- housing reform bill. Senators have nee, and we have done that. I implored APPOINTMENT OF ACTING until 10:30 a.m. today to file amend- my Republican colleagues to confirm PRESIDENT PRO TEMPORE ments to the Dodd-Shelby substitute. the four who were ready to go so there The PRESIDING OFFICER. The By virtue of the previous order, the would be five to restore the agency so clerk will please read a communication Senate will be in recess from 12:30 until it would be workable. That offer was to the Senate from the President pro 2:15 today for our weekly business not accepted. The new nominee has tempore (Mr. BYRD). luncheons. now been nominated, and we have The assistant legislative clerk read Mr. President, let me say a couple of waived both the hearing and the mark- the following letter: other things. We are going to do a up to speed this up. That makes good

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

S5973

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VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5974 CONGRESSIONAL RECORD — SENATE June 24, 2008 on the pledge we made to swiftly re- ator KYL on behalf of Senator DEMINT. Calendar No. 624, Cynthia L. Bauerly; view the nominee, and we did that, I hope we can get that done. The House Calendar No. 625, Caroline C. Hunter; again without a hearing and without a is going to pass that today as a tem- and Calendar No. 626, Donald F. markup. porary extension. McGahn; and the nomination of Mat- As I discussed on Friday, Senator We also are going to bring before the thew S. Petersen, which is to be dis- FEINGOLD—I didn’t mention his name body, within the next 24 hours, the charged from the Rules Committee. at the time, but it is out in the press PEPFAR legislation. What is that? It I would further ask unanimous con- since then—would like to meet with is the AIDS legislation that the Presi- sent that the nominations be con- each of the nominees. That will be dent is in favor of and which we have firmed en bloc, the motions to recon- completed today. These meetings are been trying to move. It has been held sider be laid upon the table, the Presi- important to the Senator. He has the up on the other side by a Senator or dent be immediately notified of the right to do that. I certainly com- two, and we hope we can complete Senate’s action, and finally, the Senate pliment him for caring so much. Four that. Again, I will ask unanimous con- return to legislative session. of the five FEC nominations now pend- sent that be passed today. It is my un- The ACTING PRESIDENT pro tem- ing are relatively new to the Senate, derstanding, having spoken with Sen- pore. Is there objection? and it is certainly within Senator ator ENZI, that he and Senator BIDEN Mr. REID. Mr. President, reserving FEINGOLD’s right to speak with them have worked something out on that, the right to object, I hope in a matter prior to their confirmation. This is not and hopefully the Senator on the other of hours that we can agree to the con- unusual. So I look forward to com- side who is objecting to this will no sent request proposed by my friend, the pleting that, unless something comes longer object to it. distinguished Republican leader. I don’t know what time the last meeting up that I don’t understand, and we f should be able to do that today. It is is that Senator FEINGOLD has with the very important. RECOGNITION OF THE MINORITY last individual, but as soon as I get There has been some concern raised LEADER word on that, I will immediately come by my colleagues on the other side of The ACTING PRESIDENT pro tem- to the floor and accept the offer of the the aisle that the Democrats have set pore. The Republican leader is recog- distinguished Republican leader. So I out to delay this FEC being reconsti- nized. object. tuted so that the Democratic National The ACTING PRESIDENT pro tem- f pore. Objection is heard. Committee’s lawsuit against Senator FEC NOMINATIONS Mr. MCCONNELL. Mr. President, I MCCAIN may be heard in the court. The appreciate the comments of my good DNC sued MCCAIN, alleging that he vio- Mr. MCCONNELL. Mr. President, with regard to the Federal Election friend the majority leader, and I hope lated campaign finance laws in the we will be able to confirm these nomi- treatment of his primary campaign Commission, let me first say that my good friend the majority leader is cor- nees today. Also, hopefully the lawsuit funding. The court dismissed that suit by the DNC will not be filed today, fur- without prejudice, saying the DNC rect that I was not inclined to reconsti- tute the FEC with a three-to-two ther raising the suspicion that the needed to give the FEC 120 days to act delays of the majority were related to on its complaint before coming to Democratic majority, and that would have been, of course, the case had we facilitating that legal action. court. The 120 days expires today, June Mr. President, let me say with regard gone forward on some but not all of the 24. to this week that this is a week when FEC nominations back before Memo- There is simply no truth to the argu- the Senate, hopefully, can make sig- ment that we are playing this game rial Day. So it is a fact that, in addi- nificant progress. There are three very with the FEC. Democrats have been tion to objecting to Republican nomi- significant pieces of legislation we trying to get the FEC running since it nees of the FEC, which has become hope to deal with this week, as the ma- went dark in December. Repeatedly, something of a tradition around here, jority leader indicated. the Republicans have objected to con- there was an additional attempt to After a failed attempt to address the sent request after consent request. gain a majority on the FEC by acting housing crisis without Republican This lawsuit of the DNC’s has been out prematurely, before we could confirm a input, Democrats finally agreed last there many months. The decision for full complement. week to allow our input. As a result, setting the deadline for FEC action was Now we have the opportunity to con- we now have a bipartisan housing bill made prior to our Memorial Day re- firm a full complement, and there have that addresses many of our concerns. I cess, and the offer to confirm the pend- been various efforts, it appears, to think it could be made even better ing nominations was made before that delay in order to give the DNC an op- with some further amendments, which time. portunity to file a lawsuit today. I am hopeful we will have an oppor- What this means is that Democrats Maybe I will be proven wrong today. tunity to offer, even if cloture is in- offered to confirm the four pending Maybe they won’t file that lawsuit, and voked, because as much as I would like FEC nominees—which would have then I will feel comforted that the ef- to see this bill move forward, there are stopped the DNC suit—before Memorial fort to delay confirming all six—or the some housing-related amendments that Day. If we were trying to help the four additional FEC members whom we have been shut out of the process so DNC’s suit, would we have made that are confirming—was not somehow re- far, and I am hoping the majority lead- offer? I don’t think so. Would we offer lated to litigation being proposed by er and I can discuss how we might be to waive the hearing and the markup the DNC. So I hope they will not file able to dispose of those expeditiously for both Republican nominees so it that lawsuit, and I guess that will be before we clear that bill here in the would be moved quickly? The answer the best evidence of whether there was Senate this week. would be no. Of course we wouldn’t an effort underway here to delay it. We must also complete two impor- have done that, Mr. President. As I I am encouraged by the fact that the tant and long overdue national secu- have told my colleagues, Democrats majority leader indicates we can con- rity measures—the supplemental troop want a functional agency as soon as firm these nominees today, and I have funding bill that the President first re- possible. That could have happened in given him advance notice that I would quested more than 500 days ago and an May. It could happen today. We want like to propound a unanimous consent updated terrorist surveillance bill that to do everything we can to reconstitute agreement that we do just that. the Senate first approved last August the FEC. It is extremely important to Mr. President, I ask unanimous con- but which expired more than 4 months do that. sent that the Senate proceed, at some ago, after House Democratic inaction. I have mentioned the matters we point today mutually agreeable to the It is worth noting that on both na- need to complete, and, of course, the majority leader and the Republican tional security measures, Democrats one thing I didn’t mention was the leader, to executive session for the con- will be approving something Repub- FAA extension. I asked unanimous sideration of the following Federal licans have supported all along. consent to do that, and that was ob- Election Commission nominations: Regarding the supplemental, Repub- jected to yesterday by my friend Sen- Calendar No. 306, Steven T. Walther; licans have argued for the past year

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5975 and a half that Congress has a solemn designees prior to the vote on the mo- electronic payment organization must duty to fund our troops while they are tion to invoke cloture. validate the taxpayer identification on the field of battle. Regarding FISA, Who yields time? number—TIN—of the participating Republicans have argued for more than Mr. SHELBY. I yield the Senator merchant. If the number does not a year that the intelligence community from Idaho 10 minutes. match, then the payment facilitator or should have the tools it needs to listen The ACTING PRESIDENT pro tem- the electronic payment organization in on conversations between terrorists pore. The Senator from Idaho is recog- must withhold 28-percent from the overseas and that companies that may nized. merchant. have allowed them to do so should not Mr. CRAPO. Mr. President, I ask This unprecedented level of reporting be punished for helping. unanimous consent to set aside tempo- to the Federal Government will likely I remain hopeful the Senate will be rarily the pending amendment and call impose substantial implementation able to get these important issues ac- up amendment No. 5009 to delay for 1 costs that will be passed on to many complished this week, and maybe a bi- year the merchant card reporting re- compliant small business taxpayers. partisan Medicare agreement as well, quirement. Small business owners will also have to and other matters that can be dealt Mr. REID. I object. ensure that their records conform with with. It is interesting how quickly the The ACTING PRESIDENT pro tem- the additional information reported by Senate can move when there is a broad pore. Objection is heard. the merchant card processor. This is an bipartisan consensus behind measures. Mr. CRAPO. Mr. President, I ask additional compliance step, which will add to the already high cost of tax It may have taken a while for our unanimous consent to set aside tempo- compliance for small business owners, friends on the other side to come rarily the pending amendment and call who currently spend on average over around to our view and the view of up amendment No. 5010, my amend- $74 per hour to meet tax paperwork and most Americans on these issues, but ment to strike the merchant card re- compliance burdens that already exist. for the sake of our troops, our families, porting requirement. Mr. REID. I object. The structure of the merchant card and our security, we are glad they fi- system does not make complying with nally did. I hope the majority leader The ACTING PRESIDENT pro tem- pore. Objection is heard. the proposal feasible in a couple of and I, working together, can figure a years. Merchants are not currently way through this massive amount of Mr. CRAPO. Mr. President, I ask unanimous consent to set aside tempo- identified in systems by social security legislation in a very few days that al- numbers or taxpayer identification lows us to reach a successful conclu- rarily the pending amendment and call up amendment No. 5002. numbers. Instead, merchants are gen- sion on many legislative fronts that erally assigned a merchant identifica- will give both sides an opportunity to Mr. REID. I object. The ACTING PRESIDENT pro tem- tion number. If implemented, this pro- leave here at the end of the week be- posal would require institutions to lieving this was a week of significant pore. Objection is heard. Mr. CRAPO. Mr. President, I ask spend several years trying to match accomplishment for the Senate and for merchants to social security numbers the American people. unanimous consent to set aside tempo- rarily the pending amendment and call of taxpayer identification numbers. f I appreciate the fact that the under- up amendment No. 5003, my amend- lying legislation extends the effective AMERICAN HOUSING RESCUE AND ment to eliminate the FHA reverse date for reporting to December 31, 2011, FORECLOSURE PREVENTION ACT mortgage cap. and the effective date for backup with- OF 2008 Mr. REID. I object. holding to December 31, 2012. However, The ACTING PRESIDENT pro tem- The ACTING PRESIDENT pro tem- I do not believe this provides enough pore. Objection is heard. pore. Under the previous order, the time to make the changes to existing Mr. CRAPO. Mr. President, like Senate will resume consideration of systems and processes, build and test many of my colleagues, I am frustrated the House message to accompany H.R. new reporting systems, perform tax- that we have not been allowed to call 3221, which the clerk will report. payer identification number matching, up germane amendments for the past The assistant legislative clerk read and hire and train the personnel needed few days. This is a substantial piece of as follows: to implement and comply with the new A message from the House of Representa- legislation and Senators should have reporting requirements. tives to accompany H.R. 3221, an act to pro- had the opportunity to have up and In addition, a higher dollar reporting vide needed housing reform and for other down votes. I have filed four amend- threshold is necessary to eliminate re- purposes. ments and I would like to talk briefly porting on casual sellers rather than Pending: about two of them that deal with the persons engaged in business, and it Reid (for Dodd/Shelby) amendment No. 4983 merchant card reporting requirement. should be granted to all payment set- (to the House amendment striking section 1 In an effort to find revenue offsets, I tlement entities. through title V and inserting certain lan- am concerned that Congress is rushing My preference would be that we guage to the Senate amendment to the bill), to adopt a flawed merchant card re- strike this section until we identify the of a perfecting nature. porting proposal that establishes a new costs to business, the total costs of im- Bond amendment No. 4987 (to amendment tax compliance burden on small busi- plementing the new reporting regime No. 4983), to enhance mortgage loan disclo- ness and does not provide enough time with the IRS, and the ability of the sure requirements with additional safeguards to develop and implement this new sys- for adjustable rate mortgages with an initial IRS to use the information in a mean- fixed rate and loans that contain prepay- tem. Little is really known about the ingful way to close the tax gap. If that ment penalty. true costs of this proposal and the Fi- amendment is defeated, then the Sen- Dole amendment No. 4984 (to amendment nance Committee hasn’t had an oppor- ate should provide an additional year No. 4983), to improve the regulation of ap- tunity to have the IRS demonstrate in to implement this system. But as I in- praisal standards. a hearing that the information col- dicated, we will not have an oppor- Sununu amendment No. 4999 (to amend- lected could be used in a meaningful tunity to vote on these amendments or ment No. 4983), to amend the United States way to drive tax compliance. other amendments that other Senators Housing Act of 1937 to exempt qualified pub- The merchant card reporting pro- lic housing agencies from the requirement of want to bring because we have been preparing an annual public housing agency posal would require that the institu- stopped from calling up germane plan. tion that makes the payment to the amendments as we move forward on Kohl amendment No. 4988 (to amendment merchant—payment facilitator—for a this legislation. No. 4983), to protect the property and secu- payment card—both credit cards and As I indicated, I also tried to bring rity of homeowners who are subject to fore- debit cards—report annually to the In- up several other amendments—an closure proceedings. ternal Revenue Service—IRS—the amendment to reduce the $300 billion The ACTING PRESIDENT pro tem- name, address, and aggregate amounts loan authority to $68 billion, which is pore. Under the previous order, there of payments for the calendar year of the number that CBO expects the FHA will now be 1 hour of debate equally di- each participating merchant. Addition- refinancing program to actually uti- vided between the two leaders or their ally, the payment facilitator or the lize, and the number that was used to

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5976 CONGRESSIONAL RECORD — SENATE June 24, 2008 calculate the score of the new program. Senate, one of the few bipartisan ac- their homes, and it can result in more Yet we will not be allowed to match tions we have taken for a long time than a 20-percent savings in their heat- the projections to the reality of the around here, that there would be objec- ing bills this winter. Those are im- legislation. tion to adding it onto this bill. provements, I guarantee you, we need I also asked permission to bring up So over the next couple of days, I to be making because many people in my amendment, No. 5003, to eliminate want to let the managers of this bill the Northeast are not going to be able the FHA reverse mortgage cap, some- know that there are some procedural to afford the high energy costs they are thing which this Senate floor has al- things that can go on so it is going to going to be seeing. ready voted to do and which was in the take them a little more time to get In addition, it puts additional FHA modernization legislation that this bill done than they would other- megawatts onto the grid, not just in this Senate has already passed. Yet it wise have liked to have done. 2008, 2009, but for many decades to is now not included in this legislation, I alert them this Senator will be ex- come. We need to diversify off the high and we are not going to be given an op- ercising his full rights to try to get costs of natural gas. The point is that portunity, once again, to include it. this renewable energy tax credit put on natural gas costs are continuing to rise There is important material in this this bill. with other pressures. We need to diver- legislation that needs to move forward, So it is a critical piece of legislation. sify off of natural gas and coal as the but the legislation also contains seri- It is not only critical to get it done, it primary source for our electricity grid. ous flaws. I am concerned that the is critical to get it done soon, because The fact is this produces and saves process we are following has not al- a lot of jobs in the United States are about $20 billion in natural gas because lowed this Senate to truly work its will going to be lost if these contracts can- of the production we would get onto on this legislation as it moves forward. not be let out for a lot of the projects the electricity grid. We need to be I yield the remainder of my time. in renewable energy across the coun- doing this now. The ACTING PRESIDENT pro tem- try. There are a lot of people out there We already know the result of our pore. Who yields time? right now, whether they get their fi- delay, that we have cost jobs in Amer- Mr. SHELBY. Mr. President, I will nancing put together or not, who are ica, projects have been canceled, people suggest the absence of a quorum. looking to see if the Senate will extend have been laid off. We already know it The ACTING PRESIDENT pro tem- the renewable energy tax credits. is costing us in lost time and invest- pore. The clerk will call the roll. This is an amendment Senator CANT- ment to stimulate our economy, and The assistant legislative clerk pro- WELL and I have worked on together. now we know it is also going to cost us ceeded to call the roll. We are pushing this any way we can to in higher energy rates to our con- Mr. SHELBY. Mr. President, I ask get this thing done. I applaud her for sumers. So I am for any plan that will unanimous consent the order for the her efforts. But it is absolutely critical get this energy legislation untangled quorum call be rescinded. that this body act at a time when we from other bills and actually approved The ACTING PRESIDENT pro tem- can create jobs, we can produce more by the House and the Senate. My col- pore. Without objection, it is so or- green energy for the United States, and league and I are willing to work across dered. we can become less dependent on for- the aisle and across the Rotunda with Mr. SHELBY. I ask unanimous con- eign sources of energy. people who have any ideas how to get sent that the time be equally divided, This is a small part of the energy this done—either paid for or not paid charged against each side equally. package but an important part of the for. The ACTING PRESIDENT pro tem- energy package that we need to put to- But we simply cannot stand here pore. Without objection, it is so or- gether. We are going to continue to today and say this is a vehicle that dered. work on this. should move without trying to put this Mr. SHELBY. Mr. President, I sug- I see my colleague from the State of housing and energy package together, gest the absence of a quorum. Washington, Senator CANTWELL, is on since it is the underlying bill, and we The ACTING PRESIDENT pro tem- the floor. I will yield the floor so she do think it is stimulative to the econ- pore. The clerk will call the roll. can make some comments. omy. The assistant legislative clerk pro- The ACTING PRESIDENT pro tem- I say to my colleagues that the re- ceeded to call the roll. pore. The Senator from Washington is turn on investment of this investment Mr. ENSIGN. Mr. President, I ask recognized. in energy is a far greater ROI than unanimous consent the order for the Ms. CANTWELL. Mr. President, I ac- some of the other stimulative activi- quorum call be rescinded. tually applaud the Senator from Ne- ties we have done. So if we want to be The ACTING PRESIDENT pro tem- vada in trying to move this amend- true to our consumers’ anxiety about pore. Without objection, it is so or- ment onto this bill. I say that knowing the high cost of energy they are seeing, dered. some of my colleagues on this side of not only in gasoline but what they Mr. ENSIGN. Mr. President, I ask the aisle are frustrated, but the Amer- think is coming ahead, then we need to unanimous consent to temporarily set ican people are frustrated with the move. We need to stop holding up good aside the pending amendment so I may high costs of energy. They want us to energy legislation while we are trying offer amendment No. 5020. be doing all we can to try to help al- to use it to get other legislation. Mr. SHELBY. Mr. President, I object. leviate those energy bills that are I hope we can pass this bill out of the The ACTING PRESIDENT pro tem- going to be affecting them not just this Senate before we leave for the July re- pore. Objection is heard. summer but next winter as they see cess. AMENDMENT NO. 5020 higher home heating bills. I yield the floor and I suggest the ab- Mr. ENSIGN. Mr. President, I am The Senator from Nevada and I are sence of a quorum. sorry to see objection has been raised. trying to say to our colleagues, it is The ACTING PRESIDENT pro tem- This is the amendment that we are try- important not to have this energy leg- pore. The clerk will call the roll. ing to get brought up on the housing islation tied up in a larger bill that is The assistant legislative clerk pro- bill that passed with an 88-to-8 vote in not currently moving before we ad- ceeded to call the roll. the Senate the last time we were con- journ for the July recess. Mr. SANDERS. Mr. President, I ask sidering the housing bill. This is the We are already seeing jobs being can- unanimous consent that the order for tax bill that will extend the renewable celed, projects being canceled, people the quorum call be rescinded. energy tax credits for the United laid off, and generation not being ready The ACTING PRESIDENT pro tem- States. It includes solar, wind, geo- to be put onto the grid to help assist pore. Without objection, it is so or- thermal, and many other forms of re- with high energy costs, particularly in dered. newable energy that are so important the area of natural gas. Mr. SANDERS. Mr. President, for a at this time of high energy prices in The underlying amendment Senator number of months now I have been try- the United States. It seems absolutely ENSIGN and I are talking about giving ing, with the help of both Democrats ridiculous to this Senator that with an tax credits to individual homeowners and Republicans, to bring a LIHEAP amendment that passed 88 to 8 in the so they can make improvements to bill onto the floor. The reason for that

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5977 is, with the energy crisis we are now Mr. DODD. Mr. President, I under- families who have had their children facing and the cost of home heating stand I have 6 minutes; is that correct? going to four and five and eight dif- fuel and electricity escalating, there is The ACTING PRESIDENT pro tem- ferent schools in a school year in some no doubt in my mind that both in pore. The Senator is correct. cases because they have had to move warm-weather States this summer and Mr. DODD. I thank the Chair. out of rental properties as the costs cold-weather States next winter, there Mr. President, let me make a couple have moved up. So the affordable hous- are going to be people struggling for observations. ing issue, while it is not directly re- their lives. First of all, I see my colleague from lated to the foreclosure crisis, does Without air-conditioning, people—old Vermont in the Chamber. I, once again, deal with the issue of affordable, de- people, frail people, sick people—are commend him for his strong interest— cent shelter in this country. The fact going to have a hard time when the a shared interest I have—in the Low- that families are having to move as fre- temperature gets above 100 degrees. Income Home Energy Assistance Pro- quently as they do and their children What we are seeing all over this coun- gram, and our effort to, one way or an- are having to go to as many different try are unprecedented numbers of other, get to this matter, given the im- schools in a year as they do because of homes being shut off from electricity portance of this issue to all of us. the cost of housing is a problem we ad- because people cannot pay their bills. Let me, if I can, review the bidding a dress with this legislation as well. We remember some years back, in little bit as to where we are. This There is nothing that is as important Chicago, hundreds and hundreds of el- morning, there are two new reports out as this bill for the country at this mo- derly people died from heat exhaustion that relate directly to the subject mat- ment. That is not to say there are not because of the heat in their apart- ter that is before the Senate: the hous- other issues we ought to be grappling ments. We must not allow that to hap- ing crisis, which is at the heart of the with. But there is a great danger we pen again. economic crisis; the foreclosure issue will miss the opportunity of doing LIHEAP, of course, pays electric bills is, of course, the heart of the housing something about housing in this coun- to help people keep their air-condi- issue. try. tioning on when the temperature be- As I pointed out over the last number The Case-Shiller index now indi- comes very high. Clearly, in my State of days, we now have a staggering num- cates—and I quote them this morning: of Vermont and throughout the whole ber of foreclosure filings on a daily The S&P/Case-Shiller home-price indexes, northern tier of this country, there is basis in the country. The latest report a closely watched gauge of U.S. home prices, great fear right now—I should tell you shows that 8,427, on average, filings for show price declines continued to get steeper that—not just about $4.10-a-gallon gas foreclosure are occurring on a daily in April, with prices in every region surveyed prices today—people worry about that, basis—not on a weekly or monthly now showing year-over-year drops. but they worry about what is going to basis. But every single day in this Those predictions indicate we may happen next winter when the price of country between 8,000 and 9,000 people have as much as a 30-percent decline in home heating fuel is soaring. are filing for foreclosure on their home values. That is evaporating the So I have tried, and will continue to homes. This is obviously a statistic long built-up equity people have ac- try, working with people in a bipar- that is deeply troubling and an indica- quired as a result of purchasing their tisan manner to get a vote on the floor. tion of broader problems in our econ- homes and holding on to them. The simple truth is, we have a lot of omy. So that idea of selling your home one support from Republicans and Demo- In fact, this morning, one report has day after your children are grown to crats, progressives and conservatives. the consumer confidence levels at the provide for your long-term security, to People understand the significance of lowest since they have been recorded in deal with the cost of higher education, this issue. We are going to do our best 1967—40 years. People’s anticipation to deal with an unpredictable health to get a vote on the floor as soon as we about the future, about the well-being care crisis that could emerge—today possibly can. of their children or their grand- we have almost 15 million homes in In the last couple months, we have children, their ability to own a home, this country where debt exceeds eq- had large numbers of Republicans and to raise a family, to be able to meet uity, and those numbers are predicted Democrats coming together on bipar- their obligations, to be able to retire to grow steeper and steeper, as the tisan legislation. We are going to keep with dignity, to be able to afford high- Case-Shiller report this morning indi- up that effort. So I wished to mention to my friends er education—all these things working cates. So the level of optimism, the declin- this is an issue of great importance, I families in this country historically, ing value of homes, and the serious believe, to the American people all for the most part, have been optimistic problems in rental housing—all this is over this country. People are fearful and confident about, today, are show- contributing to the most serious eco- about what happens when the weather ing the lowest level in 40 years. nomic crisis we have had in decades. goes down below zero, and people are So the issue we are grappling with is What Senator SHELBY and I and the worried about what happens when the not one that is necessarily going to other 19 members of our committee temperature goes up over 100 degrees. guarantee we are going to right the In this country, we do not want to problems overnight, but it is a reflec- have tried to do is to put together, on see people dying of heat exhaustion and tion that this body—made up of Demo- a bipartisan basis, with a 19-to-2 vote we do not want to see people freezing crats, Republicans, and Independents— out of our committee—not a highly di- to death. With the cost of home heat- can, in fact, come together and do vided committee, having held almost 50 ing fuel soaring, electricity soaring, we something constructive and positive at different hearings over the last year as have a moral obligation to signifi- the epicenter of our economic prob- to what we ought to do to get our cantly expand LIHEAP funding. I will lems. hands around this issue—our best rec- continue to do my best to make sure, That is the opportunity we are going ommendation to the Members of this finally, we get a vote on the floor of to have in a few short moments, to de- body. Those of us on the committee, the Senate to do that. cide whether to go forward and adopt working together—all 21 of us on this Thank you, Mr. President. I suggest legislation that would allow us to committee—have tried to fashion and the absence of a quorum. begin to put a tourniquet on the hem- cobble together a proposal that deals The ACTING PRESIDENT pro tem- orrhaging of foreclosures in this coun- with the heart of this issue. pore. The clerk will call the roll. try with the adoption of the HOPE for So with the remaining minutes we The bill clerk proceeded to call the Homeowners Act, to be able to do have to debate this subject matter be- roll. something about the government-spon- fore the vote at around 11:15—in the Mr. DODD. Mr. President, I ask unan- sored enterprises and to see to it we next 5, 6 or 7 minutes—I urge my col- imous consent that the order for the have a strong regulator, and to estab- leagues to join with us. We are not tell- quorum call be rescinded. lish, for the first time ever, a perma- ing you what we have written is per- The ACTING PRESIDENT pro tem- nent affordable housing program. fect. We are not telling you it is going pore. Without objection, it is so or- There is a lead story in the New York to solve all the problems. If it does dered. Times this morning that talks about nothing more than to restore some

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5978 CONGRESSIONAL RECORD — SENATE June 24, 2008 confidence the American people ought datory quorum call is waived. The Mr. REID. Mr. President, for the to have in their Congress, that in itself question is, Is it the sense of the Sen- knowledge of all the Senators here, we will be an achievement. ate that debate on the motion to con- are trying to wrap up a number of Beyond that confidence and opti- cur in the House amendment striking items today. Today is Tuesday. We mism, we think we have recommended section 1 and all that follows through have to get out of here by Friday or some specific ideas that can very well the end of title V, and inserting certain Saturday, we would hope, at least. We begin to treat the problem of growing language to the Senate amendment to have a lot to do. We need to complete foreclosures, declining values in our H.R. 3221, the Foreclosure Prevention what we are working on now, the hous- homes, and the spread and contagion Act, with amendment No. 4983, shall be ing legislation. We have a number of effect this is having on student loans, brought to a close? issues we are trying to work out on municipal finance, corporate finance, The yeas and nays are mandatory judges. We also have to confirm the and the rest, in our Nation and around under the rule. The clerk will call the FEC nominees. We hope to do that the world as well. This issue is going roll. later today. We have FISA that we beyond our own shores. The legislative clerk called the roll. have to work out. We have a supple- So we urge our colleagues to join Mr. DURBIN. I announce that the mental appropriations bill. We have with us, and over the remainder of Senator from New York (Mrs. CLIN- the doctors fix on Medicare. We have today, as these various amendments TON), the Senator from Massachusetts the tax extenders. We are working on are offered, to keep our eye on the ball. (Mr. KENNEDY), and the Senator from all these things, so a lot of balls are in The idea is to get a bill done, to work Illinois (Mr. OBAMA) are necessarily ab- the air. I hope Members would be coop- out our differences with the other sent. erative and try to work through this. body, and then to give a bill to the Mr. KYL. The following Senators are The Republican leader talked to me President of the United States, I would necessarily absent: the Senator from today, I have spoken to the manager on hope, by the Fourth of July, by Inde- Colorado (Mr. ALLARD), the Senator our side on the housing legislation, and pendence Day. What better gift on from Kansas (Mr. BROWNBACK), the he has spoken to the other manager, independence could we give the Amer- Senator from Oklahoma (Mr. COBURN), Senator SHELBY—I haven’t had that op- ican people than a sense that this, the Senator from Oklahoma (Mr. portunity—and what we are trying to their Congress of the United States, INHOFE), and the Senator from Arizona work out on that is, apparently, there can come together, despite political (Mr. MCCAIN). are a number of Senators who asked differences, and craft legislation to The ACTING PRESIDENT pro tem- that consideration be given by the make a difference for our country. pore. Are there any other Senators in managers to having a finite number of I urge the adoption of the motion the Chamber desiring to vote? housing-related matters, reviewed by when the question is asked. The yeas and nays resulted—yeas 83, the two managers. That is something With that, Mr. President, I yield the nays 9, as follows: we are trying to do to see if we can floor. [Rollcall Vote No. 155 Leg.] work out something to speed up the The ACTING PRESIDENT pro tem- YEAS—83 work we are doing on the housing bill. pore. The Senator from Alabama con- Akaka Feingold Murray I hope we can do that. If we have the trols the remaining time. Alexander Feinstein Nelson (FL) cooperation of Members, we can do Baucus Graham Nelson (NE) Mr. DODD. Mr. President, I suggest that. If people dig in their heels and the absence of a quorum. Bayh Grassley Pryor Bennett Gregg Reed say we are not going to do that, we The ACTING PRESIDENT pro tem- Biden Hagel Reid might be in a situation where we don’t pore. Without objection, the clerk will Bingaman Harkin Roberts finish the housing legislation. That call the roll. Boxer Hatch Rockefeller Brown Hutchison would be a shame, but that is certainly The bill clerk proceeded to call the Salazar Burr Inouye Sanders possible. There is the potential to still roll. Byrd Isakson Schumer Cantwell Johnson have a number of other cloture votes Mr. DODD. Mr. President, I ask unan- Sessions Cardin Kerry on the housing legislation. So we are imous consent that the order for the Shelby Carper Klobuchar quorum call be rescinded. Smith trying to work that out. I hope we can Casey Kohl do that. The two managers I talked The ACTING PRESIDENT pro tem- Chambliss Landrieu Snowe pore. Without objection, it is so or- Cochran Lautenberg Specter about before have experience and un- Stabenow dered. Coleman Leahy derstand what we are trying to do. Collins Levin Stevens Mr. President, I suggest the absence Mr. DODD. Mr. President, I believe Sununu Conrad Lieberman of a quorum. all time has been yielded back. We are Corker Lincoln Tester prepared to move forward. Cornyn Lugar Thune The ACTING PRESIDENT pro tem- Craig Martinez Voinovich pore. The clerk will call the roll. CLOTURE MOTION Dodd McCaskill Warner The legislative clerk proceeded to The ACTING PRESIDENT pro tem- Webb Dole McConnell call the roll. Domenici Menendez Whitehouse pore. Under the previous order, pursu- Mr. DOMENICI. Mr. President, I ask ant to rule XXII, the clerk will report Dorgan Mikulski Wicker Durbin Murkowski Wyden unanimous consent that the order for the motion to invoke cloture. NAYS—9 the quorum call be rescinded. The bill clerk read as follows: The ACTING PRESIDENT pro tem- CLOTURE MOTION Barrasso Crapo Enzi Bond DeMint Kyl pore. Without objection, it is so or- We, the undersigned Senators, in accord- Bunning Ensign Vitter dered. ance with the provisions of rule XXII of the NOT VOTING—8 Mr. DOMENICI. Mr. President, I ask Standing Rules of the Senate, hereby move unanimous consent to speak for 15 min- to bring to a close debate on the motion to Allard Coburn McCain concur in the amendment of the House, Brownback Inhofe Obama utes as in morning business. striking section 1 and all that follows Clinton Kennedy The ACTING PRESIDENT pro tem- through the end of title V, and inserting cer- The ACTING PRESIDENT pro tem- pore. Without objection, it is so or- tain language, to the amendment of the Sen- pore. On this vote, the yeas are 83, the dered. ate to H.R. 3221, the Foreclosure Prevention nays are 9. Three-fifths of the Senators OIL EXPLORATION Act, with amendment No. 4983. duly chosen and sworn having voted in Mr. DOMENICI. Mr. President, fellow Harry Reid, Christopher J. Dodd, Daniel Senators, I have spoken extensively K. Inouye, Jeff Bingaman, Max Baucus, the affirmative, the motion is agreed Patty Murray, Mark L. Pryor, Barbara to. over the past several months about the Boxer, Benjamin L. Cardin, Sherrod Mr. REID. Mr. President, I move to growing threat of our dependence on Brown, Jon Tester, Bill Nelson, Ber- reconsider the vote by which the mo- foreign oil. Two weeks ago, we were re- nard Sanders, Maria Cantwell, Tom tion was agreed to. minded of the threat by new trade def- Harkin, Frank R. Lautenberg, Charles Mr. DODD. I move to lay that motion icit numbers showing a $4.4 billion def- E. Schumer. on the table. icit increase in just 1 month as a result The ACTING PRESIDENT pro tem- The motion to lay on the table was of growing oil prices and growing oil pore. By unanimous consent, the man- agreed to. imports. Last week, the Wall Street

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5979 Journal reported that six Arab econo- First, let’s consider the logic. Compa- can’t tax our way out of the problem mies took in $400 billion in oil and gas nies are paying a lot of money for the either, and that is exactly what they revenues last year alone. The Journal right to explore on a lease and are keep proposing to do. also reported that petroleum-producing given a short period of time to produce Second, there are many up-front states are investing more of their oil oil. With the cost of oil now at $135 a costs that leaseholders take on to ac- wealth at home, triggering an invest- barrel, why on Earth would a lessee in- quire an oil and gas lease. Bonus pay- ment and spending boom in the Middle tentionally sit on a lease and choose ments and pre-production rental pay- East. not to make money on it? Why would a ments often cost millions of dollars But as our reliance on foreign oil company pay money essentially to rent and these capital investments are only grows, 85 percent of our offshore acre- a tract of land and then not use it? being made for the ultimate develop- age in the continental United States is I have heard the claim that 41 mil- ment and production of oil to return a still off limits for leasing, as are 62 per- lion acres are leased on the Outer Con- profit on investment. Simply put, if oil cent of onshore oil reserves. Let no one tinental Shelf and of that acreage, 33 is not produced from a lease, compa- tell you that we have plenty of Amer- million acres are not being produced. nies lose money on it. ican acreage leased for energy develop- The use of this statistic shows a funda- Third, using these acreage numbers ment because compared to the rest of mental lack of understanding of the to claim that companies are ‘‘sitting the world, we are falling behind, and it long, risky procedure and process that on’’ $135 oil simply ignores the histor- is making us poor and poorer and poor- begins even before bidding on a lease ical fact that simply because you lease er. Since the Senate last voted on my and hopefully ends with production. lands does of necessarily mean that proposal to increase production, it was The other side is saying that unless oil you are able technically or economi- estimated that America likely sent is literally coming out of the ground on cally to produce on them—or even that about $50 billion overseas to import oil. an acre, it doesn’t count, even if that there is oil under your lease. Hence the What is particularly troubling to me acre is being explored or is in the proc- term: ‘‘exploratory well.’’ is that after rejecting a proposal I sub- ess of getting environmental permits Ironically, some of the very same mitted on behalf of myself and 20 other or in any other part of a process that is people who are arguing that these Senators to open new areas for produc- very long and tedious. Additionally, leases are not being developed also op- tion, the majority has come up with the use of this argument by groups who posed an inventory of new areas that excuse after excuse for not taking any consistently go to court to prevent de- would clearly speed the development action. veloping on existing lease areas speaks process when they are opened. First, without any evidence to back volumes about the intent here. To suggest that companies are not them up, they claimed that price Congress currently restricts access to diligently developing their leases on gouging was the reason for high prices. 574.2 million acres of OCS. In actuality, the American deep sea is to simply ig- At the same time, they said high prices it is clear by any measurable assess- nore the facts. Over the past decade, were not caused by supply-and-demand ment that the majority in Congress is more than 100 new discoveries have issues, they told America that we must sitting on far more oil than the oil been announced and since the passage stop filling the Strategic Petroleum companies themselves. Let me repeat of the Deepwater Royalty Relief Act 13 Reserve because the 70,000 barrels a day that. It is clear by any measurable as- years ago, offshore oil production has that went into it were raising the price sessment that the majority in Congress increased by 535 percent. Over the past of gas. Suspending the SPR fill is is sitting on far more oil than the oil months, three major sales for OCS oil something I have supported, but I also companies themselves. and gas leases have taken place and to- said we need to do much more. It alone Let’s focus on offshore Federal leases gether raised more than $9 billion in is practically nothing. Unfortunately, for a moment. Simply examining the federal revenues. Under the oppositions advocates of this SPR suspension in number of acres leased and the number argument—that is a lot of money com- the majority rejected a proposal to of acres producing during a snapshot of panies are paying to sit on leases. open areas of production that would time is deceptive. There are many dif- I have had the opportunity to review bring online more than 2 million bar- ferent steps for producing oil and gas. the data provided by one company that rels of oil a day. At any given moment, a lease may not holds leases—BP. BP has 124 leases Now the other side has apparently be producing, but it is active and under that are actively producing. Those are settled on an argument that first origi- development. In the 5, 8, or 10 years the only ones that the majority is nated with the Wilderness Society. that a company holds a lease—and they counting when they give you their sta- They claim oil companies are sitting are given a specific period of time—en- tistics of producing leases. But BP also on their leases and that if those compa- vironmental assessments could be un- has 459 leases that are in the explo- nies just developed in those areas, we derway, lessees could be trying to se- ration phase, So 65 percent of BP’s would not need to open new areas. If cure permits, the leasing agency could leases are under exploration so that BP only that were true, Mr. President. The be challenged in litigation, and the les- can produce from them in the future, other side is now saying the oil compa- see could be reviewing seismic data. In yet the majority would have you be- nies must use it or lose it when it fact, any number of preproduction lieve that BP is ‘‘sitting on’’ those comes to their leases. They propose processes could be underway. These leases instead of actively working to- adding a tax on companies to punish take time. These require experts. These ward producing on them. This is about them for not producing fast enough. cost money. as deceptive an argument as I have This Wilderness Society argument I do not hear critics suggest that we ever heard. It is either totally decep- demonstrates a fundamental lack of speed this up or that we waive or short- tive or it is absent knowledge and in- understanding of how we explore for oil en environmental requirements—and I formation—which is impossible. This and gas in this country, and the fact am not suggesting that either. But information is readily available. that this argument originates with a critics do want to impose new costs on We have severely limited our access group that has led four major lawsuits U.S. producers under the guise of to the American deepwater, and the in the last 4 years to prevent develop- ‘‘speeding up leases.’’ This tax and situation is only getting worse. In 1982, ment in the very same area speaks to spend solution to a supply and demand nearly 160 million acres of land were how disingenuous it really is. Part of problem makes no sense. And, once being leased for exploration. Today, its the reason it takes so long for compa- again, the other side proposes a solu- less than 40 million. Why? Because we nies to produce is because groups such tion that threatens our competitive- are running out of available land and as the Wilderness Society keep throw- ness with nationalized oil companies we are restricting access to our own re- ing up roadblocks. They know it; we who are after the same commodity sources in favor of foreign oil. Accord- know it. around the world. My friends on the ing to the MMS, only 2.4 percent of the Today, I am going to tackle this idea other side of the aisle are fond of say- total offshore acreage is currently that companies are choosing to sit on ing that we can’t drill our way out of being leased and about 85 percent of their leases, and I will debunk that the problem—and they are right. But our continental offshore is under mora- once and for all. my message back to them is that we torium. As we debate about the use of

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5980 CONGRESSIONAL RECORD — SENATE June 24, 2008 43 million acres available for develop- enormous, transportation-based U.S. econ- produce results for years. But if this level of ment, we must recognize that Congress omy to a standstill. passion and debate continues through the has placed 574.2 million acres under The U.S. trade deficit jumped to its worst fall election and is followed up by action, the moratorium—and the majority has level in more than a year in April, driven nation will be better off. primarily by oil imports. Not only does this Mr. McCain, the presumptive Republican supported continuing to do so. Only 6 empower anti-American regimes, it siphons Party nominee for president, kicked things percent of total lower—48 OCS is cur- off money consumers could be spending or off last Tuesday when he reversed himself in rently leased. This does not dem- saving or investing. a speech to a Houston audience and an- onstrate a lack of progress in the deep- ‘‘I have never been more frightened for nounced that the moratorium on drilling on water, it demonstrates a lack of America’s future than I am right now;’’ Sen. the Outer Continental Shelf that has been in progress on energy policy in Congress. Pete Domenici said last week, urging Con- effect since 1981 should be lifted. He got a The American people have had gress to remove the ban on off-shore drilling Rose Garden assist the next day from Mr. enough with excuses and they are look- and open the Arctic National Wildlife Refuge Bush, who called on Congress to allow states to oil companies. the option of drilling off their coasts to tap ing for leadership. Two-third of Ameri- President Bush—in a speech laced with the estimated 18 billion barrels of oil under- cans are asking us to produce Amer- counter-productive partisan rhetoric—called neath. On Wednesday, Mr. McCain said that ican oil, but the majority in the Senate on Congress last week to open up several do- if elected president he wanted 45 nuclear re- is blocking it. I urge my colleagues to mestic oil fields that have been off-limits actors built by 2030 ‘‘with the ultimate goal look at the facts and take action. since the 1980s. ANWR could yield 27 billion of 100 new plants to power the homes and There is no question in my mind that barrels; the Atlantic and Pacific coasts con- factories and cities of America.’’ the excuse that is being used is that we tain 17 billion barrels, and the Gulf Coast The mantra from the Democratic Party— cannot drill our way out of the crisis. I could produce another 72 billion. There is from the presumptive presidential nominee, strong evidence this can be done in an envi- submit that is not the issue, whether Sen. Barack Obama (Ill.), on down—has been ronmentally responsible way. a variation on ‘‘We cannot drill our way out we can drill our way out of the crisis. Democratic presidential candidate Barack of this energy crisis.’’ Considering that the The issue is whether we can produce Obama has so far ignored polls that show a U.S. is estimated to have 3 percent of the more American oil or oil alternatives majority of Americans rallying around calls world’s oil reserves, that’s certainly true. so we spend less overseas and keep for domestic drilling. He continues to argue But it if is acceptable to drill in the Caspian more of our money at home. We are that the answer to foreign oil dependence Sea and in developing countries such as Ni- spending ourselves broke. We are lies in wind, solar and nuclear technologies. geria, where environmental concerns are spending ourselves into economic ob- The inconvenient truth, however, is that cli- equally important, it’s hard to explain why mate-friendly technologies will take decades livion by sending so much of our re- the United States should rule out careful, to develop. We look forward to the day when environmentally sound drilling off its own sources overseas every day, every we can all plug our green cars into an elec- coasts. Like Mr. McCain, we do not support month, every year, for the acquisition trical grid powered by something other than drilling in the Arctic National Wildlife Ref- of crude oil from foreign countries. coal. uge, which Mr. Bush advocated Wednesday. I have an editorial from the Albu- Until then, we’re going to have keep buy- That pristine area, with its varied and sen- querque Journal of Sunday past called ing gas. Even if we achieve a dramatic 20 per- sitive ecosystems, should be preserved. ‘‘It Takes Black Gold To Get to Green cent reduction in oil consumption, some ex- Washington has done a poor job of telling Future.’’ It states: perts estimate that oil will still cost $200 a the public that energy security will be barrel by 2012. So here’s another inconven- achieved not from one source overnight but With all due respect to Al Gore, there is an ient truth: New drilling isn’t about returning from many over years and that there are no urgent, new ‘‘inconvenient truth.’’ Unless to cheap gas. It’s about economic survival. easy solutions and no cheap ways to break Congress acts quickly to expand domestic oil The United States needs to organize a this nation’s dependence on oil. There will be supplies, the nation could face economic de- Manhattan Project for alternative energy, trade-offs and sacrifices that have yet to be struction long before it sees the environ- addressing the threats from both global considered. So far, the focus has been on mental fallout of global warming. warming and foreign dependence. We need to biofuels, solar power and wind energy. But For decades it has been easy for most vigorously pursue those, along with a crash all this talk of drilling, squeezing oil out of Americans to dodge the truth about our for- course in conservation. shale, as Mr. Bush proposed, and pushing for eign oil dependence and to just keep driv- These are monumental undertakings, and more nuclear power is a welcome widening of ing—but $4-a-gallon gas has finally snapped to succeed they must transcend party lines a larger and necessary discussion. the trance. Reality is sobering. The United or individual egos. Sen. Jeff Bingaman was States has put its economic survival in the on-target Wednesday when he faulted Presi- I yield the floor. hands of unstable foreign powers and volatile dent Bush for injecting ‘‘election-year poli- The ACTING PRESIDENT pro tem- commodities markets. At any time, a major tics’’ into the Rose Garden speech. As chair- pore. The Senator from Wyoming is disruption in foreign supply could bring the man of the Senate energy committee, Binga- recognized. enormous, transportation based U.S. econ- man will be a key player on both fronts of Mr. ENZI. Mr. President, I will re- omy to a standstill. the effort to chip away at America’s-dan- turn the discussion to housing. I do The ACTING PRESIDENT pro tem- gerous level of dependence on foreign oil. thank the Senator from New Mexico pore. The Senator’s time has expired. The way ahead is not easy. Fuel costs are for his comments on energy. I know Mr. DOMENICI. I ask unanimous impacting food and retail prices. Truckers are parking their rigs. School bus operators from traveling around Wyoming last consent the editorial and a Washington weekend, the biggest thing on Post editorial called ‘‘Drill Deeper’’ be and closing up shop. Airlines are laying off thousands and perhaps are heading for prices everybody’s mind is $4-plus gas. I got a printed in the RECORD. that will put air travel out of reach for the lot of comments on ways it could be There being no objection, the mate- middle class. The idea of the family flying to fixed. What we are working on right rial was ordered to be printed in the Disneyland, for example, would be out of the now, of course, is fixing housing. RECORD, as follows: question. Even a family vacation by car I am going to discuss the Federal [From the Albuquerque Journal, June 22, could look like a luxury. Housing Finance Regulatory Reform of 2008] Americans have never backed down from a challenge, however. Once we know the truth, 2008. That is what we just had the vote IT TAKES BLACK GOLD TO GET TO GREEN on. I do not support this legislation. FUTURE no matter how inconvenient it may be, we like to get to work. In this case, the work in- I opposed this legislation in the Sen- With all due respect to Al Gore, there is an volves a drilling rig, and the self-confidence ate Banking Committee and I continue urgent new ‘‘inconvenient truth.’’ Unless to use it. Congress acts quickly to expand domestic oil to oppose it today. As the national supplies, the nation could face economic de- housing market continues to suffer [From the Washington Post, June 22, 2008] struction long before it sees the environ- from falling home sales, housing starts, mental fallout of global warming. DRILL DEEPER and skyrocketing foreclosure rates in For decades it has been easy for most If there is a silver lining in the price of some parts of the country, the Senate Americans to dodge the truth about our for- gasoline shooting past $4 a gallon, it’s that it has an opportunity today to restore eign oil dependence and just keep driving— has sparked an intense debate in the United confidence in the principles of good but $4-a-gallon gas has finally snapped the States about its energy security—or lack government to our economy. These trance. Reality is sobering: The United thereof. President Bush and Sen. John States has put its economic survival in the McCain (R–Ariz.) have given the impression principles include limiting taxpayer li- hands of unstable foreign powers and volatile that relief for drivers lies in off-shore drill- ability, ensuring a sustainable housing commodities markets. At any time, a major ing and the construction of nuclear power market in the future, and preventing a disruption in foreign supply could bring the plants. In fact, those solutions wouldn’t Federal Government bailout of big

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5981 banks that made unaffordable loans or decline with bad loans and bad invest- I would remind my colleagues, going investors who made bad investments. ments. This bill is a Federal Govern- back a little bit to the end of last year Unfortunately, the bill ignores these ment bailout and that is why I oppose on the FHA modernization bill, the principles and ignores irresponsible ac- it. Senate voted 94 to 2, in December of tions at the expense of responsible I will also note there are separate 2007 on the Foreclosure Prevention Act homeowners and hard-working tax- provisions of the legislation I do sup- in April, we voted 84 to 12; then the payers. port. A separate title of this bill would government-sponsored enterprises, This bill contains a title called ‘‘The create a new regulator for the govern- HOPE for Homeowners vote out of HOPE for Homeowners Act.’’ The pro- ment-sponsored enterprises, Fannie committee, which included the afford- gram included in this title would cre- Mae and Freddie Mac, and the Federal able housing program, as well as the ate a $300 billion taxpayer loan guar- Home Loan Banks. This world-class GSE reform and the HOPE for Home- antee program. regulator will have the authority nec- owners, passed 19 to 2 in our com- Let me repeat that. It would create a essary to ensure that these entities are mittee, an overwhelming vote on a con- $300 billion taxpayer loan guarantee adequately capitalized and are oper- troversial bill involving substantial re- program—taxpayer guarantee pro- ating safely within the secondary sources and ideas to deal with the gram—doubling the size of the Federal mortgage market. housing problem. Housing Administration. This expan- The GSEs, government-sponsored en- Then late last week, we had amend- sion will be accomplished by taking terprises, are the most important fac- ments to strike the affordable housing the worst performing and the most tors in our mortgage market and play program. That was defeated 77 to 11. An risky loans made by banks, shifting 100 an increasingly influential role in our amendment basically to stop or cut out percent of the liability of foreclosure global credit markets. the HOPE for Homeowners Act was de- onto the American taxpayer. The loans The regulators created by this legis- feated 69 to 12. I am talking about have made a lot of lation must support the housing mar- The point I make with these votes is press in the past few months—adjust- ket by allowing Freddie and Fannie to it is quite clear that this body, both able rate, interest only, low docu- buy and securitize mortgages, thereby Democrats and Republicans, believes it mentation or no documentation; loans increasing credit at lower rates and re- is important that we craft and move that in many cases the lender made storing investor confidence. While I forward with a major housing bill. I with no regard for the borrower’s abil- continue to oppose the affordable hous- cited earlier this morning in the dis- ity to repay. ing trust fund included in the bill, I cussion the two recent reports dealing The Congressional Budget Office esti- support a strong regulator that will with consumer confidence and the mates that 35 percent of these loans allow the secondary mortgage market value of homes in America. will default, placing a huge liability on to operate more effectively, to the ben- The value of homes in America re- the FHA and ultimately the taxpayer efit of our economy. ported by the Case-Shiller Index, which for guaranteeing these loans. Even I support the deliberate and safe con- is the most respected index on home FHA Commissioner Brian Montgomery version of the GSEs into the jurisdic- values in our country, has reported yet believes this is a dangerous propo- tion of the new agency included in this further decline in housing values. In fact, Professor Shiller has predicted we sition. On June 9 he stated: legislation. It is past due. As these massive entities are brought under new may have as much as a 30-percent de- The FHA is not designed to become Fed- eral lender of last resort, a mega-agency to supervision, I trust the transition will cline in home values. That would be subsidize bad loans. be done in a way that ensures that no the most significant drop nationally But that is exactly what this bill disruptions occur in our housing and since the Great Depression, to the does. In past years, banks continued to our credit markets. point where now we have millions of There are also several tax provisions homes where the equity in the homes is make record profits by pushing these that are important to Wyoming and exceeded by the debt. Of course, for unaffordable mortgages. Investors, the Nation. Currently, Wyoming re- families, that home ownership has not homeowners, bankers, and realtors bet ceives approximately $2 million per only been a stable environment for heavily on the tidal wave of ever in- year in low-income housing tax credits them and their families, but it has also creasing home prices. If a rate adjust- to encourage developers and contrac- been a source of wealth creation; that ment made monthly mortgage pay- tors to develop affordable rental hous- is, building up the equity in that home ments unaffordable, homeowners and ing projects. This bill will provide a to provide for the retirement years, mortgage investors could count on temporary 2-year increase of approxi- where that home can be sold and the home equity to bail them out. In other mately $50,500, a 2.5-percent increase to value, the increased equity, can be a words, the value of the price of the the Wyoming Community Development source for financial support. home would go up sufficiently to cover Authority. It will also increase access For many families that has been one the costs homeowners could not. As the to the Mortgage Revenue Bond Pro- source of additional income for middle- Senate’s only accountant, I can tell gram, another helpful tool for Wyo- income families to provide that higher you this practice does not make good ming housing infrastructure develop- education they promised their children financial sense. It is completely ment. since the day they were born. If you unsustainable. However, most of indus- Unfortunately, the good provisions of work hard, do the right things, your try ignored the warning signs and con- this legislation are not enough to out- family is going to stick with you. When tinued to make record profits from weigh the bad ones. Pushing liability that cost of education comes up, for unaffordable loans. onto the Federal Government by bail- college or community college or a Now these same banks and investors ing out irresponsible lenders and inves- technical school, we are going to be are in trouble. They have discovered tors is not good government. I cannot there to help you because the equity in that unaffordable mortgages can be, support a bill that puts reckless inves- our home is going to give us some addi- shockingly, unaffordable. Complicating tors and lenders ahead of hard-working tional cash to make that possible. this matter is that the housing market Wyoming taxpayers. Let me tell you what it is like for cycle is now on a downswing and people I yield the floor. that family today, those 15 million can no longer rely on home equity The ACTING PRESIDENT pro tem- homes across our country where that loans to bail them out of a mortgage pore. The Senator from Connecticut is debt exceeds equity. They turn to that rate hike. Banks and speculators now recognized. child and say: We can no longer do it expect Congress to reward this irre- Mr. DODD. Mr. President, I want to because our financial obligations ex- sponsible behavior with a taxpayer take a couple of minutes, if I can. We ceed the value of our house because it bailout. They expect the Federal Gov- had a very strong vote again this has declined because of the foreclosure ernment to turn its back on respon- morning on the housing proposal. I crisis, where more than 8,400 homes are sible lenders and borrowers and renters thank my colleagues. This morning I filing for foreclosure every single day waiting to become first-time home- believe that vote was 83 to 9 to invoke in the country. owners, and support those groups that cloture, to begin the 30 hours of debate So we have done what we can in our have pushed our housing market into on this aspect of the bill. committee, and our colleagues have

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5982 CONGRESSIONAL RECORD — SENATE June 24, 2008 supported these ideas. The HOPE for 100 days, there were a lot of ideas that The ACTING PRESIDENT pro tem- Homeowners Act, the GSE reform, the were posed to get us back on our feet pore. Without objection, it is so or- affordable housing ideas have been em- again. Many of them never went any- dered. braced by overwhelming majorities. So where; some did. Mr. DODD. With that, we have had a what we need to do today, if we can, is The most important thing, more strong vote. I say this to my colleague to come over. The amendments have than anything else that the Congress from Alabama, through the chair, that been suggested. I want to work out as or the President achieved in those 100 83-to-9 vote, not to mention 94 to 2 on many amendments on housing as I can. days, was the American people saw a modernization; 84 to 12, the various There are some we can work out and government that had rolled up its votes on other matters late last week— accept. Some I will not be able to ac- sleeves and gone to work on their be- all indicate the strong willingness on cept, obviously, working with Senator half. That, more than anything else, the part of our colleagues, the over- SHELBY and others who are involved. was what was needed in those days to whelming majority here, to get some- But we need to get this done. give people a sense of hope and opti- thing done on this issue. That is the If we go again into the middle of mism and confidence that their Gov- best news of all. Now we need to come July—and just remember that if we ernment, their President, their Con- to closure. take next week off, which we do, we gress was going to work on their prob- I yield the floor. will go back to our respective States. lems and give them a chance to have a The ACTING PRESIDENT pro tem- While we are back there walking in our better day. And that is as much as pore. The Senator from Alabama. parades and celebrating Independence what is needed today. Mr. SHELBY. Mr. President, I want Day, every day we are there, some- We need to demonstrate to the people to pick up on a few things that the where between 8,000 and 9,000 of our fel- of this country who have lost an awful Senator from Connecticut has been low citizens, on Independence Day, will lot of faith in almost everything but talking about. We got a vote a few min- be filing foreclosure on their homes. So certainly in ourselves here, that we can utes ago, I believe 83 to 9, on cloture on we may leave here Friday or Saturday get something done, that we can put this bill. without having gotten this done, but as aside differences and make a difference Last week we had three or four well- you are flying back home and visiting in their lives. That is the opportunity debated amendments offered by various Senators, and they were overwhelm- your States and celebrating Independ- that Senator SHELBY and I are offering ence Day, remember if we did not get to our colleagues in the remaining ingly rejected, huge votes. Where are we now? We have worked this done many more Americans are hours of this debate. on this a long time. We have GSE re- going to be paying an awful price. So we need your help to come over So I urge my colleagues with amend- form in here, which I have worked on and bring people together so we can ments, give us a chance to work these for 5 years on the Banking Committee, wrap this up and send a bill to the out. For those who want to offer as Senator DODD recalled, and the Pre- House which, hopefully, they can ac- amendments that are not directly re- siding Officer, a member of the Bank- cept. I am confident they will. Not that lated to this but are terribly impor- ing Committee and very involved in they are going to agree with every- tant, I do not minimize it. I beg your the Banking Committee. thing that we have done, but I believe indulgence to spare us the opportunity This is a very complicated piece of BARNEY FRANK, the Congressman from of having to engage in that debate on legislation in this title dealing with Massachusetts, the chairman of the Fi- this bill. That does not minimize the GSEs, which we have come a long way nancial Services Committee; NANCY importance of your idea. But if you put with. Everybody here knows, I believe PELOSI, the distinguished Speaker of it on this bill and it is not paid for, the on both sides of the aisle, that the the House—they get this, they under- House will reject it, and you will lose GSEs provide a lot of the mortgage stand this. They understand the dif- both ideas—both your idea and this funds, most of them today. But they do ficulties we have over here proce- idea that we are trying to move for- need to be well regulated. They also durally to deal with things, to deal ward. So some discipline is needed, need to be well capitalized, considering with matters that are different from some understanding is needed. This is the risk and so forth, the implicit guar- the House of Representatives. the issue of the hour. This is the prob- antee of the Federal Government. lem that is causing so much depression But they also understand we basi- I have been told recently that their in terms of people’s aspects of their fu- cally embrace three of the major con- debt, that Freddie Mac and Fannie Mae ture. cepts: HOPE for Homeowners, afford- debt, exceeds the debt of the United That report this morning about con- able housing, GSE reform. That is the Kingdom and France together. I do not sumer confidence is so alarming. That, centerpiece of what we are trying to know if that is exactly right. But if it more than anything else, is what I achieve. The Presiding Officer, as a is, that is over $5 trillion. worry about: the optimism and con- member of the Banking Committee, So we need to get this done. We need fidence of our fellow citizens. It is at has been tremendously helpful, and I to make sure the GSEs survive. We the lowest since data has been col- thank him for it, as well as other mem- want to make sure GSEs are properly lected on consumer confidence. It is at bers of the committee, putting aside regulated, and we can do it here. An- a 40-year low; 40 years have transpired our own specific ideas of how we would other part of the title of this bill is since the confidence and optimism of do this to come up with a product that dealing with housing, as the Presiding our fellow citizens have been as low as could be embraced by 19 of our 21 mem- Officer knows. This is going to give a it is today. bers of that committee to bring the bill lot of people in America an oppor- We bear responsibility more than forward as we have today, with the tunity to refinance some mortgages. It anything else to offer a future, some added provisions that have been in- will not save everybody. It should not hope for our fellow citizens and people cluded in this bill. save everybody. who count on us. I think this housing So we urge our colleagues to come But there is no specific bailout for proposal gives us a chance to do that. over. Senator SHELBY and I are more any specific mortgage company or It is not going to solve everyone’s prob- than happy to entertain ideas. Where banks, as somebody alluded to last lems, but it can make a difference in we can accommodate them, we will do week—none of that. The chairman of saying to the American people: We so. If we cannot, we will be candid and the committee, the Presiding Officer, hear what you are saying, and we are tell them that we cannot. There is al- as a member of the committee, and I, doing something about it. ways another day, but we cannot deal as a Senator, we would not have that. I have often cited historically those with every bill and every idea that peo- We would not vote our support for any- first 100 days from March of 1933 to ple have been waiting for on this bill. thing like this. But we will create con- June of 1933, the beginning of the We urge our colleagues to do that. ditions to let people refinance their Franklin Roosevelt administration I ask unanimous consent that the mortgages, assuming they can work when the country was in a deep depres- time while the Senate is in recess for this out, assuming the lender would sion, millions had lost their jobs, the conference lunches count under the rather take a haircut—you know, less homes were being foreclosed. In that time postcloture. money than a foreclosure.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5983 The last thing a lender as a rule (The remarks of Mr. DORGAN per- existing agencies are combined and be- wants is a foreclosure because the taining to the introduction of S. 3183 fore expert personnel can be trans- house is vacant in the neighborhood. are printed in today’s RECORD under ferred and this new agency staffed is Senator DODD was talking about that. ‘‘Statements on Introduced Bills and putting the cart before the horse. At a We do not need four or five vacancies Joint Resolutions.’’) time of great instability in the mort- in the neighborhood and the house run Mr. DORGAN. Mr. President, I yield gage and housing markets, we should down, weeds growing instead of the the floor. use care to preserve consumer and mar- lawn trimmed. The PRESIDING OFFICER. The Sen- ket confidence by ensuring a smooth Everybody knows what that does to ator from Louisiana. transition and regulatory stability. the value of their neighbors’ property. Mr. VITTER. Mr. President, I rise to That is why I am strongly urging the Housing is important. What we are speak on the housing bill before this adoption of the House approach with trying to do—and one can see the votes body now and to speak about an impor- regard to this specific issue. It would we have been getting—is fashion some- tant omission from the managers’ ensure a gradual transition of no less thing that will give a lot of people a amendment that is before the Senate. than 6 months, allowing for careful and better opportunity to finance their This is just one piece, one narrow efficient consolidation. In our push to home, as well as to regulate the GSEs issue, but it is an important one that make the housing and mortgage mar- in a meaningful way. Most of the Mem- will affect many folks in the housing kets stronger and more responsive to bers of the Senate know that. market and throughout America. I am the American people, let’s also make If somebody has an amendment, they talking about the need to provide a certain we don’t break what we didn’t ought to come down here. I know we transition period for the implementa- need to fix in the first place. can debate this for 30 hours under the tion of the new GSE regulatory struc- I urge my colleagues in the Senate to rules—I believe that is right—after clo- ture in the bill. adopt this commonsense, reasonable, ture. A large part of this legislation on balanced House approach with regard The ACTING PRESIDENT pro tem- housing recovery is devoted to GSE to a 6-month transition. pore. The Senator is correct. regulatory reform. GSE means ‘‘gov- With that, I yield the floor. Mr. SHELBY. We are that close to ernment-sponsored enterprises’’—regu- The PRESIDING OFFICER. The Sen- passing a meaningful piece of legisla- latory reform regarding those entities. ator from California is recognized. tion. We would like to pass it. We This is a huge undertaking, with wide- Mrs. BOXER. Mr. President, is it nec- would like the House to pick it up reaching consequences for the mort- essary that I ask to speak as in morn- quickly—either agree to it, amend it, gage and housing industries and our ing business? I am taking time off my or whatever, and get it to the Presi- economy generally. postcloture time. dent. The sooner, the better. This GSE reform title would combine The PRESIDING OFFICER. The Sen- This is not a perfect piece of legisla- the regulatory authority and personnel ator may be recognized under cloture. tion, but overall it has a lot of good of three distinct agencies—HUD, the Mrs. BOXER. I thank the Chair. things in it. I certainly urge my col- FHLB, and the OFHEO—to create an DRILLING IN PRISTINE AREAS leagues to support it. entirely new GSE supervisor with Mr. President, I am going to discuss, I yield the floor. broad, far-reaching powers over this $3 in about a 20-minute timeframe, a cou- f trillion part of our economy, the hous- ple issues that are swirling around this RECESS ing finance system. The effects of new country and the Senate, and I wish to regulatory powers would not be limited go on record on both of them. One has The ACTING PRESIDENT pro tem- even to the housing industry, as big as to do with President Bush and Senator pore. Under the previous order, the it is. The vast global investment in MCCAIN’s proposal to open pristine Senate stands in recess until 2:15 p.m. GSE securities and the 8,000 member areas off America’s coastline to off- Thereupon, at 12:30 p.m., the Senate banks that obtain liquidity and other shore oil drilling as an answer, they recessed until 2:15 p.m. and reassem- services from our Federal Home Loan say, to high gas prices. I am going to, bled when called to order by the Pre- Bank system would also be signifi- hopefully, debunk that argument, and I siding Officer (Mr. CARPER). cantly affected. hope I can do it convincingly. f Given the far-reaching and very sig- The second area is going to be my AMERICAN HOUSING RESCUE AND nificant impact of this part of the feeling on the FISA bill, which is com- FORECLOSURE PREVENTION ACT bill—this very significant consolida- ing to us tomorrow—the Foreign Intel- OF 2008—Continued tion of three separate agencies—I think ligence Surveillance Act bill. I think I can start off where Senator The PRESIDING OFFICER. The Sen- simple common sense would dictate DORGAN ended. He has been brilliant on ator from North Dakota. that implementing that sort of meas- Mr. DORGAN. Mr. President, the ured change should be done with great the point that speculation in oil fu- Senate is not in a quorum call, I ex- care and over some reasonable time pe- tures is what is responsible for a good pect. riod. That is why the House in its legis- deal of this horrific runup in the price The PRESIDING OFFICER. The Sen- lation recognized the need for an or- of gas at the pump. We need to do ate is not in a quorum call. derly transition. Their bill included a something about these speculators. We The Senator from North Dakota is uniform effective date of 6 months have been blocked from doing that by recognized. after enactment to allow the President the Republican leadership. I wish to Mr. DORGAN. Mr. President, I ask to begin the appointment process im- quote Michael Greenberg, a former di- unanimous consent to speak for 10 min- mediately but to give that 6-month rector of trading and markets for the utes and that 10 minutes be applied to transition to a very new regulatory Commodity Futures Trading Commis- the 30 hours postcloture. structure. sion, who testified before the Senate The PRESIDING OFFICER. Is there Unfortunately, the bill before us in Commerce Committee. He said: objection? the Senate today does not include this Going after the speculators will bring down Mrs. BOXER. Mr. President, reserv- transition period in this language. the price of crude oil to get at least a 25 per- ing the right to object, and I will not Under the Senate substitute amend- cent drop in the cost of oil and a cor- object, I ask unanimous consent that ment, the powers of the new agency responding drop in the cost of gasoline. following Senator VITTER—he is going would be effective immediately, poten- Testifying Monday before a House to speak next for approximately 5 min- tially destabilizing our housing mar- Energy and Commerce Committee sub- utes—I then be recognized to speak for ket, causing real concerns among many committee, Michael Masters, of Mas- up to 20 minutes. in that important market. ters Capital, said: The PRESIDING OFFICER. Is there I am very concerned about this. I The price of crude oil would drop to a mar- objection? think it is a significant omission, a sig- ginal cost of $65 to $75 a barrel, about half of Hearing none, it is so ordered. nificant problem, a significant issue. the current $135. The Senator from North Dakota is Making the powers of a new agency ef- Imagine, the experts are telling us recognized. fective immediately, before the three speculation is responsible for about 25

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5984 CONGRESSIONAL RECORD — SENATE June 24, 2008 to 50 percent of the cost runup of gaso- Let’s look at the offshore leases. enough funds to add more buses and to line. We are trying desperately to close Look at this. These are the offshore add more ferry boats. We could be that Enron loophole, to ensure that the leases that the oil companies hold. doing these things now. speculators are once again regulated. They are not using them. Yet, still, What is their answer? Drill, drill, There is a Bill Nelson bill, S. 3134, President Bush and Senator MCCAIN— drill, drill, drill. Where? The most pris- which would say all energy future con- and this is a flip-flop by Senator tine areas of our coasts—these areas tracts will fall within the regulatory MCCAIN; he has always supported pro- that are a gift from God. Millions of format they were at before. So we can tecting the beautiful areas, but they dollars have gone into setting aside do this. are now saying it is necessary now to marine sanctuaries. We will put it all Where are President Bush and Sen- sell off the family jewels. at risk because oil companies see it as ator MCCAIN on going after the specu- I have to tell you, coming from a an opportunity to get more leases, in- lators? I don’t hear them suggesting State—and the Senator in the chair crease their portfolio, and increase the that. I don’t see my Republican friends does as well—where an unspoiled coast- assets on their books. embracing this. They have already line is our ticket to a tourist industry, I have to say I hope the American stopped us a couple times from doing a fishing industry, a recreation indus- it. If we want to do something about people will look at this proposal the try, an industry in America that pro- same way they looked at the gas tax the price of gas, let’s go after the spec- vides, today, $70 billion in a coastal ulators, and it will result in a very holiday. When that first came up, hav- economy—$70 billion and millions of ing a gas tax holiday, JOHN MCCAIN quick reduction in these outrageous jobs. In my State, it is about $11 billion price increases. We have the Strategic recommended it, saying this is going to or $12 billion and a quarter of a million mean good news at the pump. The Petroleum Reserve which is 97 percent jobs. full. George Bush’s father took some truth is it threatens the highway trust So you have to ask this question to fund because those are the funds that oil out of there after the first gulf war. the President and Senator MCCAIN: We President Clinton also took some out go into the highway trust funds so we all want to help our middle class and can take care of our highways. There of there, and it had the impact of low- our working poor pay for the price of ering the price. In other words, they was nothing in the proposal that would gas. We want to bring down the price of have led to a lowering of the price of are adding a supply from the Strategic gas, or we want to give them alter- Petroleum Reserve. Again, it is 97 per- gasoline. Other costs could have been natives to having to fill their cars; we passed right on to the consumer. cent full. This is the moment when we all want to do that. Let’s give real an- So it is amazing to me that we now could tap it. It will make a difference, swers. Let’s not give an answer that have another proposal that is basically and it will get to the people, within a could threaten a huge coastal econ- the same kind of proposal: Drill, drill, few short days. Thirteen days from a omy. Our families are having a very drill, and put at risk a $70 billion coast- Presidential decision, we could have hard time paying for gas. Imagine what al economy. First, the gas tax holiday more oil on the market. happens when they lose their jobs be- Our colleagues agreed with us to stop put at risk the highway trust funds. cause the coastal economy is now filling SPR, but we don’t have their This proposal puts at risk a $70 billion going to go. What good is that? Mil- support for taking some out—and, of coastal economy and millions of jobs lions of jobs are at stake. course, you would return it at another So rather than go after the specu- that go with it, and it doesn’t even ac- time. lators, rather than look at the Stra- count for the fact that there are so Here is a big one, and I will show you tegic Petroleum Reserve, rather than many acres—68 million acres—leased to this chart. Remember, the President tell the oil companies, look, you can oil companies that they have not pro- and Senator MCCAIN said open all the double production and you are not duced. coastal areas to drilling—these pristine doing it, rather than ask the Federal It seems to me the American people areas. So you have to ask yourself: will understand that this so-called so- Well, have we run out of places to drill Trade Commission to investigate sup- ply manipulation—and I can give you lution to high gas prices, which the offshore? The answer is no. What about President’s own Energy Department onshore? No. Oil companies hold leases story after story of supply manipula- tion. In my own State, we had a large says will not save a penny, is another to nearly 68 million acres of Federal phony solution. It is not real. When we lands that are not producing oil. This company—Shell Oil—try to close down a refinery. They said it wasn’t making look at the long term, what we know is land could produce 4.8 million barrels we have to pass global warming legisla- of oil each day—six times the peak pro- money and there were no buyers. Un- true. We called our State attorney gen- tion. When we do that, when the pri- duction from drilling in the Arctic— vate sector puts a price on carbon, we and it would double total U.S. oil pro- eral. He got involved. We found out they were making money and that are going to see technologies erupt duction. Let me say that again—68 mil- from America that are going to make lion acres of oil leases are being held there were buyers. They just want to manipulate the supply. Because of our us competitive. We will export those today by the oil companies. I say they technologies. should use it or lose it. Here we have involvement, and especially the attor- We know when we take care of our people saying: Oh, give them more. ney general, that refinery was sold. environment, in the long run, our econ- That is akin to saying to a kid, whom That was 2 percent of our State’s sup- omy gets stronger. We need to invest in you are trying to get to do something, ply at the pump. transportation. We need to go after I will buy you an ice cream cone if you So these oil companies do not come OPEC. We have to go after the specu- do XYZ; but they are holding two ice to this with clean hands. We know it. lators. We know we will see, with glob- cream cones in their hands now. This administration gives them a pass, Let me show you what 68 million saying let the speculation fly, and let al warming legislation, investments in acres looks like. First, I will show you the oil companies sit on these leases; cellulosic ethanol, which is going to the onshore, which is about half of forget about using the CFTC, forget compete with fossil fuel, and we know that. Look at the red areas on the map. about going to the World Trade Organi- it is going to work. This is onshore, 34.5 million acres that zation and lodging a complaint against So there are short-term answers to are unused by the oil companies. They OPEC because they are anticompeti- these gas prices, and I laid them out, will not drill there, but now they want tive. They don’t do that. They are not and there are long-term answers, and I more leases in the most beautiful parts doing anything to extend the tax credit laid those out. I am not the only per- of America. for the most fuel-efficient vehicles. son in the Senate who has these ideas. This is ridiculous. It is a phony idea. That expired because they put a cap on But to put out a phony solution to a It is not going to bring down gas prices it, on how many cars would have to be real problem does not help us and it 1 cent, according to the Bush Energy sold before you no longer get this tax jeopardizes a lot of jobs and a coastal Department. It will have no impact— credit. They don’t do any of the things economy. maybe by 2030. I am looking at some of that would help us now. I don’t see I look forward to working with my the Senate pages, and they will be them saying: Let’s make sure our colleagues on going after the specu- moms and dads by then. transportation districts locally have lators and doing all I need to do.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5985 I ask unanimous consent that I be Suddenly, in late 2005, we learned BOXER, we have a provision in there given an additional 10 minutes on my that the U.S. Government—our Gov- that says the telecom companies have time. ernment, the Bush administration— to prove they were asked by the Gov- The PRESIDING OFFICER. Without had violated the trust of the American ernment to do this activity. We know objection, it is so ordered. people again when the New York Times they were asked by them. That is why Mrs. BOXER. Mr. President, this de- published a story exposing a I don’t want to punish the telecom bate over gas prices and the long-term warrantless surveillance program au- companies. and short-term solutions is going to go thorized by President Bush shortly Mr. President, I tell you what I do on for a while. I look forward to ad- after 9/11. Since that time, Congress want to do: find out the truth. That, dressing them, both in my committees and the American people have been the truth, I want to find out. I have to of jurisdiction and on the floor. grappling with the disclosure and believe that if we don’t change Title II FOREIGN INTELLIGENCE SURVEILLANCE ACT working, with no help from this admin- of this bill, we are perpetuating a Mr. President, we are about to get a istration, to find out what happened. coverup. I use that word advisedly be- Foreign Intelligence Surveillance Act We cannot find out exactly what hap- cause I don’t think we will ever get to bill that is going to come to the Senate pened, who was spied upon. Was I spied the truth of what happened here. probably tomorrow. I know that a lot upon? Were you spied upon? How many I support giving our country every of my colleagues worked very hard and people were spied upon? What informa- tool necessary to track down the ter- very long to try to get a compromise tion was gained? rorists. I voted to go to war against bin on this bill. I have to say that there is In putting together the FISA bill, I Laden, and I am disgusted that he is a portion of this bill that I believe is do believe House and Senate members still out there taunting us, all these egregious and will prevent me from tried hard to find a balance and figure days, all these years, despite George voting for this bill. It is because I be- out a way to get to the truth, but I feel Bush. Dead or alive, we will get him. lieve one of the most basic tenets of they have fallen short because what we Where is he? I want to go after al- our freedom is justice. Looking at jus- will have before us when this bill Qaida. I want to go after bin Laden. I tice, we have to see what lies at the comes before us is not only a bill that think we do have to provide all the heart of justice. And what lies at the will deny the court the ability to make tools that are necessary, but we also heart of justice is the search for the a judicial determination as to the le- must uphold the Constitution and the truth. If you block the truth from com- gality of the spying program, but it rights of our citizens. ing out, if you don’t allow a search for will effectively guarantee immunity This granting of immunity will block the truth, you don’t find justice. I for the telecommunications companies the courts from moving forward and worry very much about that. that cooperated with the administra- learning whose privacy was violated. I Throughout our history, whenever tion and violated the privacy of their want to be able to look in the eyes of the U.S. Government has violated the customers. my constituents in California, 38 mil- trust of the American people, we have You have to know that we had laws lion people, and say: I know you were worked to regain that trust by seeking in place that specifically said to tele- in that group of people, and I feel ter- the truth and allowing for a full exam- phone companies: You cannot invade rible, and we are going to make it right ination of the abuses of Government the privacy of your customers. What for you; or, I know you were not in- power. We can see that in the history apparently happened was the Govern- volved in being caught up in this net. of America. Sometimes these egregious ment went to them and said: We are These are extraordinary and difficult acts take many years to uncover. I am asking you to disregard the law. times. Our sons and daughters were thinking of the Tuskegee experiments. I understand the predicament of the sent to Iraq to fight for our freedoms. Of course, we have to go back to the companies, although there was one We have to listen to what former Jus- days of slavery. Go back to the Jim company that refused to cooperate. tice Marshall says: Crow laws. Go back to the era of the One company refused to cooperate. History teaches us that grave threats to Vietnam war and the tenure of J. They said: No, we are not going to do liberty often come in times of urgency, when Edgar Hoover, who headed the FBI. We it. But all the others cooperated. And constitutional rights seem too extravagant knew in that particular case that the now we have a situation where we to endure. CIA and the FBI, under J. Edgar Hoo- know the telephone companies re- Our Constitution is not an extrava- ver—he headed the FBI—he engaged in sponded to the Government and said: gance. It is the centerpiece, the very spying on the political activities of OK, we will disregard that law on your essence of a democracy. It is what our American citizens. He was spying on say-so. sons and daughters are fighting for famous, important people, such as Mar- I would support granting the telecom abroad. How could we say on the one tin Luther King. He was spying on peo- companies indemnification—in other hand to our soldiers: Go fight for our ple at the highest levels of Govern- words, having the Government step in freedoms, go fight for the freedoms in ment. He was also spying on the Amer- and be the party that has to pay the our Constitution, while at home we are ican people. Pictures were taken at ral- price—but this immunity provision covering up the erosion of those free- lies where people were trying to argue that is in the bill blocks us from find- doms? for an end to the Vietnam war. ing the truth. Remember what I said The bill was improved upon, and I am In 1975, the Church Committee, which when I started: The essence of justice glad Title I improved the way we go would later become the Senate Com- is to get to the truth, and we are not about protecting the rights of our citi- mittee on Intelligence, looked into al- going to be able to get to the truth. We zens and balances it with the need to legations of covert and illegal spying are not going to know exactly how this get this information. I am very pleased by the Federal Government on Ameri- program ran. We don’t know enough. with that. But it seems to me, if you cans. What did the committee find? The Bush administration, in my view, believe in the truth, then I don’t see The committee found that, indeed, trampled on the Constitution, and we how you grant this type of immunity. there had been spying on Americans by are not doing anything in this bill to Again, I would substitute the Gov- the FBI and the CIA. provide accountability. Frankly, if we ernment, I would indemnify these com- Here is what is interesting. What did just left out this provision and passed panies. I am not interested in hurting the Congress do when they found out, the rest of the bill, we would let the them. But I want to get to the truth. in horror, that the Government was courts do their job. Fine. But, no, no, We have a really good way to do that, spying on the people? They passed the we have to add this provision and es- which is to strip this part from the bill. Foreign Intelligence Surveillance Act sentially set up kind of a new law now We will have our rights protected then. in 1978. It set up a new court with au- to deal with this spying operation. We will have the tools we need to fight thority to approve electronic surveil- I don’t think we can hold up the Con- terrorism. We must do better than this. lance but only on a case-by-case basis. stitution when it suits us and set it So unless there is some miracle that Since that time, we have updated FISA aside when it hinders us. That is not happens overnight and we see some to reflect the changes in the threat we what the Constitution is. changes, I will be forced to oppose this face in America and to reflect the new The supporters of this compromise bill. I am hoping we will have an oppor- technologies. will say: Wait a minute, Senator tunity to vote on a substitute that will

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5986 CONGRESSIONAL RECORD — SENATE June 24, 2008 keep the rest of the bill intact but MISSOURI FLOODING I come here today to report, regret- eliminate this egregious provision But I come to the floor today to tably, that despite national news cov- which really is very troubling. Anyone share some observations with my col- erage day after day of the destruction who lived through the days of J. Edgar leagues, and anyone else who may hap- in Missouri, FEMA has still not de- Hoover and the kind of spying that pen to be watching, about the natural clared Missouri a Federal disaster area. went on, who understands FISA was disaster that is going on right now in Our families and communities along passed to protect Americans has to be my State of Missouri. the Mississippi River are investing alarmed. If you turn on the television, you will every resource they have to mitigate I yield the floor. probably see the flooding that is ex- the disaster while FEMA figures out The PRESIDING OFFICER (Mr. panding over an area west of St. Louis the extent of the disaster. SANDERS). The Senator from Missouri. County and St. Charles County. The Not only has this flood destroyed Mr. BOND. Mr. President, I came to Eagle Point levee breached last night, homes, but it is currently saturating the floor for another subject, but I do and that is only the latest example. tens of thousands of acres of some of wish to tell my friend from California Many other levees have also been our State’s most productive farmland. that we will have an opportunity to breached. In addition to waiting for the waters to talk about the FISA bill that was This past weekend, I went to visit recede, farmers will have to remove the the people on the front lines. I met passed. The bill we passed in the Sen- debris the Mississippi River leaves be- with State and local officials, who are ate with an overwhelming bipartisan hind before they can plant their crops. prepared and are responding extremely majority protected civil liberties of I don’t know if you have ever been to a well, given the prolonged damages, the American citizens much further than flood scene, but it isn’t just a whole challenges, and the extensive duration they have ever been protected even bunch of land getting wet; it brings in of the flood. This effort, I am proud to under existing criminal law, we pro- everything you don’t want to have on say, is a good testament to how bad vided more protection. your land, and you can’t plow it, you disasters can be mitigated from becom- The Senate committee looked at the can’t even mow it because of all the de- ing worse disasters when competent essence of the terrorist surveillance bris left. local and State leaders and volunteers program for which we recommended Many have heard the saying ‘‘knee proactively take steps at the imme- that retroactive immune liability pro- high by Fourth of July.’’ That used to tection be provided for those who co- diate scene of the disaster. At Winfield, MO, on Friday after- be a reference to corn height in Mis- operated. They cooperated in good noon, right along the Mississippi River, souri, if you wanted a good crop. Now, faith on the basis of the representation I met with volunteers from the Salva- in a good year, if it isn’t six feet tall, by the intelligence community that tion Army, the Red Cross, Missouri then you are way behind. But this year, there was a Presidential directive au- Civil Air Patrol, local law enforce- regrettably, in talking about the thorized by the Attorney General. It ment’s emergency planning officials, height of corn, there is a lot of land was authorized under the clear con- the Missouri National Guard, and local where we are going to be talking about stitutional authority of article II of and surrounding community volun- the height of water. the U.S. Constitution, supported by the teers. It was inspiring to see how peo- USDA, FEMA, and other Government MOFA that was passed by Congress. We ple came together to help protect lives agencies, I hope and I expect, will pro- determined that they were entitled to and property. Over 1,000 volunteers— vide emergency funds to clean up the protection. some of my staff members joined with disaster. I am pleased I have been As a lawyer, I have read all of the them—filled sandbags and built the joined by my other colleagues from the documents. I am convinced that the levees. They were joining neighbors, Midwest to fund these programs in sup- bill we passed does not in any way give church groups, civic groups, and other plemental appropriations bills that away any rights or protections. people coming in to help. By that after- will ensure disaster victims receive Anybody who objects to the granting noon, they said they were going to much needed aid. We have to continue of this liability protection should know have to call and say: We don’t have to do our part in the Senate to make that we do not protect Government of- need for more volunteers now, so wait sure these flood victims will be able to ficials or the Government itself from until there is a problem elsewhere. get their feet back on the ground. I lawsuits. If one wants to challenge it, As always, the National Guard acted have joined with eight of my col- file suit against the Government, file valiantly. Their work has given busi- leagues in cosponsoring Senator suit against Government officials, but nesses and families the critical time GRASSLEY’s disaster tax package, don’t ruin the business reputation of they need to get important assets out which will also help. those who, in good faith, as good citi- of harm’s way where levees are in dan- But, I repeat, none of these actions zens, provided the intelligence that was ger of failing. And so far—knock on will provide any relief until Missouri needed to keep our country safe and to wood—we have come through with gets a disaster declaration. And with keep our soldiers and marines, such as minimal personal damage. People from everyone in Missouri doing their part— my son, on the field safe from battle- all walks of life across Missouri and his and her part—acting responsibly field attacks. They provided that infor- across the heartland—neighbors came and responding locally, I urge FEMA to mation, and we owe them better than in from Illinois—have pitched in to do its part and approve the predisaster to haul them before a court to have help. It has truly been an all-hands-on- declarations they asked our State offi- them exposed to the vengeance of ter- deck effort, and I couldn’t be more cials to make. We know there is going rorists or people who didn’t like what proud of them. I thanked them in per- to be more work in finding out the they did. We owe our security in the son, and I come here on the floor to ex- total extent, but anybody who looks at United States better than to lay out in press my thanks to them. the pictures on the television and who an open court proceeding all of the Missourians and our midwestern doesn’t believe this is a major disaster, things our intelligence community can neighbors have pulled together and, as is saying, I am not believing my own do to stop terrorist attacks—terrorist it turns out, they may be doing too lying eyes, because it is right there for attacks which have not occurred in great a job of fighting the floods. Local them to see. I wish FEMA would start this country since September 11, 2001, communities have been burdened with the mechanism rolling. which were certainly planned and un- the financial strain that comes with We know we have a lot of work to do, derway before they were interrupted. any disaster. Communities along the we have a lot of disaster, but we are I can’t go into any more on the floor. Mississippi have invested hundreds of thankful in our hearts for minimal Any Member of the Senate is entitled thousands of dollars in pumps and human damage and the tremendous to have that information in confiden- sandbags, and untold tens of thousands human outreach. It is time for the Fed- tial SCIFs where we discuss classified of volunteer efforts in trying to protect eral Government’s emergency manage- information. I invite them to be property and lives. While these current ment agency to get off the dime and briefed, and I will have much more to investments made are small compared move. say about the FISA law when we get on to cleanup costs, our small towns, our I thank the Chair, and I yield the the debate. communities, still need Federal help. floor.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5987 The PRESIDING OFFICER. The Sen- I thank Senator DODD and Senator Fannie Mae, Freddie Mac, and the Fed- ator from Maryland. SHELBY for bringing forward a bipar- eral Home Loan—and the reforms in Mr. CARDIN. Mr. President, first, let tisan bill, a bill that now stands an ex- the FHA—raising the loan limits and me say to my friend from Missouri, we cellent chance of being enacted, and a by changing some of the under- do see the videos of what is happening bill that the people of this Nation des- writing—they will provide more mort- in his State with the devastating perately need. It would do something gages to modest-income families in floods, and the people of Maryland about the housing problems in this America, so those who are in the mar- agree with the Senator’s statements. country, so I do thank them for their ket to buy homes and who want to be We want to make sure FEMA does the patience and their work. in the market to buy homes will have right thing. I see Senator DODD is on the floor, a much easier time finding an afford- Certainly the Senator is very con- and I personally thank him for the able mortgage in order to move for- cerned about the circumstances, and work he has done. We are now on the ward. That will be good for home own- we want to do everything we can to verge, I hope, of passing this very badly ership, which is good for our neighbors, help the people of Missouri and the needed legislation, the key features of and it is going to be good for our econ- other States that have been devastated which are going to help the people of omy. by these floods. It has obviously had a Maryland and around the Nation. I also thank Senator BAUCUS of the dramatic impact on many lives, and This bill deals with properties that Senate Finance Committee for bring- this is when our Nation needs to come are in danger of being foreclosed by ing forward some changes, some together to help those who have been trying to prevent foreclosure. I think amendments to this legislation, which devastated. So the Senator will have that is one of the things we should be I think are very important. I had a our support, and I wanted him to know doing here. The HOPE for Homeowners meeting in Baltimore and met with the that. Act will help up to 400,000 or 500,000 Mr. President, the bill we are consid- real estate community, and they told homeowners on a voluntary basis get me several months ago we needed to do ering now in postcloture is the bill the their mortgages refinanced, at no cost House sent over to us to deal with the something to try to get first-time to the Government, using FHA, in home buyers into the market. If the housing crisis. I was very encouraged order to make it affordable and to pre- with the vote earlier today, and I hope Federal Government could offer some vent foreclosure. That, to me, is smart. incentives, it would help in freeing up we are on the verge of passing this It is good for the homeowner, it is good much needed legislation so we can the market, which is going to be good for our economy, and it is a great in- for our economy. At that time, I filed work out our differences between the vestment for taxpayers because it will an amendment that would have pro- House and the Senate. I know we still save them money by having less fore- vided a first-time homeowner’s tax have some procedural hurdles we have closures in their communities. to overcome, but I hope my colleagues The legislation also helps commu- credit. I thank Senator BAUCUS for will act quickly so we can complete our nities in desperate need. The CDBG bringing out a similar proposal in the work on this very important housing funds are increased to help the commu- bill that is before us for first-time bill. nities that have been hardest hit home buyers. The Federal Government The people of Maryland, the people through the numbers of foreclosures, will help participate in their buying a around the Nation, are hurting today but then, moving forward, we do some- home and will offer them a credit of up because of what is happening in the thing about the housing crisis in this to 10 percent of the cost of the home, housing market. We know it was the country. We provide affordable housing up to $8,000, which will ultimately be housing market that triggered our cur- funds, which we desperately need in an interest-free loan that the Federal rent economic problems. We know Maryland and throughout the Nation. Government will invest in an indi- throughout the country there has been We also provide more money for vidual buying their first home, for a large number of these so-called counseling. I say to Senator DODD that modest-income families. subprime adjustable rate mortgages I had a meeting in Baltimore with To me, that makes sense. We want to that were issued over the last several housing counselors who are over- encourage young people who can afford years, and as a result of the declining whelmed. They cannot handle the num- to own homes to buy homes, but they housing market and the adjustable rate ber of people seeking their help, so the are reluctant to get into the market mortgages and subprime mortgages, we funds provided in this legislation will today because they do not know what have record numbers of foreclosures help them help people who want to get is going to happen with the property around the Nation, including my own counseling, but the services are not values. When the Federal Government State of Maryland. available in so many communities helps them buy that home, they are We are not only seeing a record num- around the country. going to be more confident this is the ber of foreclosures, we are also seeing The new disclosure requirements will right time to come into the market circumstances where homeowners’ eq- also help people who will be moving and to buy that home. uity in their property is actually nega- forward because they will know what I think this provision can make a tive. That means the money they owe they are doing and have less chance of huge difference, and I appreciate the on their mortgage is exceeding the ending up in trouble in the future. Senate Finance Committee adding it to value of their property. And with de- I also want to comment on the provi- the good work of the Banking Com- clining markets, it is becoming more sions in this legislation that ease the mittee. and more difficult for individuals to be credit crunch. Today, it is very dif- As I said earlier, this is an important able to sell their homes, so we antici- ficult to find affordable mortgages. Ob- bill. Today’s vote was an important pate there could be continued problems viously, lenders are being much more vote. We are on the path to getting it of more foreclosures. That means it is cautious and it is difficult today, if you enacted. I urge my colleagues, let’s very important that this Congress act. live in a minority community or you work out our last differences, and let’s We also know it not only affects the live in a modest-income neighborhood, get the votes we need to get on the individual whose home is at jeopardy, to be able to get a mortgage. Yet banks floor of the Senate. Let’s move this bill but it affects the entire neighborhood. are willing to write mortgages. In the forward. Let’s reconcile the differences When there is a foreclosure in a com- subprime mortgage industry, there with the House. Let’s get it to the munity, the value of all the homes in were so many people, particularly from President. Let’s get it into law so we that community declines. Local gov- minority communities, who were can help the housing situation around ernments are also seeing a dramatic re- steered into subprime loans. These in- the Nation. duction in property tax revenues as a dividuals could have had traditional I yield the floor. result of the decline of property values. mortgages and they wouldn’t have been The PRESIDING OFFICER. The Sen- Just at the time we need local govern- in trouble today. Now there are many ator from Michigan is recognized. ment being more active in helping peo- people who need help in finding an af- Ms. STABENOW. Mr. President, first, ple who are going through tough eco- fordable mortgage. I commend Senator DODD and Senator nomic times, they are finding it more In this legislation, with the GSEs, SHELBY for working so hard to bring difficult to act. the government-sponsored entities— this bill to the floor—Senator CHRIS

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5988 CONGRESSIONAL RECORD — SENATE June 24, 2008 DODD for his wonderful leadership on when Ford Motor Company first made We are past time to get this done. It the House bill. the Ford Escape Hybrid—and I am very should not be treated as something I ask unanimous consent to speak as proud they did—they looked around that is trite but as something that is in morning business for 10 minutes and and couldn’t find the advanced battery very serious and very doable if we are the time be charged postcloture. in America. They got it in Japan. willing to step up and partner and The PRESIDING OFFICER. Without We cannot afford to be on a road to make the investments that need to be objection, it is so ordered. dependency on foreign technology as made, as every other country is doing. CREATING AMERICAN JOBS we are trying to get off of dependence Our companies today are not com- Ms. STABENOW. Mr. President, I on foreign oil. This needs more than peting with other companies around have to say that I was quite amazed proposals that feel like game show the world. They are competing with and shocked yesterday to hear the pro- prizes down at the end of a road, a road other countries around the world, posal that certainly flies in the face of we may not be able to get to if we are other countries that understand that what I believe needs to be happening not serious as a country about what we whoever gets to advanced battery tech- for Michigan and other States that need to do in making investments right nology first will have the edge. Who- have been the backbone of the manu- now. ever is getting the hydrogen fuel cell facturing economy in our country, the Germany has announced a great bat- technology first will have the edge. backbone of the middle class. It was a tery alliance which will invest over Whoever gets to that next technology proposal to turn our way of handling $650 million in advanced lithium-ion will find themselves in the position to American jobs and the economy into a batteries. It is specifically aimed at be the leaders in a global economy. We game show. We do not need a game helping German auto companies. need to understand that and take that show. We do not need prizes down at South Korea, by 2010, will have spent seriously. I am proud to be part of a the end of some long line for doing $700 million on advanced batteries and majority that does, and we are working what needs to be done in order to cre- developing hybrid vehicles. very hard. ate innovation and be able to focus us China has invested over $100 million We have moved the ball down the on the next generation of advanced in advanced battery research and de- road and have more to do, but I am battery technology or any other tech- velopment. amazed to hear the kinds of discussions nologies. What we need is something Over the next 5 years, Japan will that have gone on in the last 24 hours thoughtful and sustained, ongoing in- spend $230 million on advanced battery as it relates to jobs and the economy vestments to create jobs in the United research. It is spending $278 million a and prizes. The prize for us is a good- States. year on hydrogen research for zero paying job and a strong middle class The last 8 years we have not seen emission fuel cell vehicles. and keeping advanced manufacturing that. We have not seen a willingness to These countries understand they in this country. We do that by being se- step up and aggressively invest in ad- need to step up to compete in a global rious and sustained and thoughtful, by vanced battery technology research or economy and partnering with their providing dollars on the front end, by any other areas where we would be able automobile industry. We need to do no making sure we understand the seri- to get the kind of jobs and production less. ousness of the competition around the we need in the United States. I remind We have picked one segment of the world, and having a sense of urgency the Chair that, as he knows so well, economy, the automobile industry, in about American jobs. just since January we have lost 325,000 which we have placed a major new I suggest the absence of a quorum. good-paying jobs in America. As the mandate—an $80 billion mandate on The PRESIDING OFFICER. The distinguished Presiding Officer and I fuel efficiency. We need to do every- clerk will call the roll. have both come to the floor to speak thing we can to help them achieve The legislative clerk proceeded to about good-paying American jobs, mid- that. But they will not get there unless call the roll. dle-class jobs for middle-class families, now—this year, next year, the year Mr. NELSON of Florida. Mr. Presi- we continue to lose jobs. after—we are supporting and dent, I ask unanimous consent that the I am very proud to be a part of a ma- partnering on efforts for advanced bat- order for the quorum call be rescinded. jority that is tackling that, focusing tery technology research and develop- The PRESIDING OFFICER. Without on investments, on jobs rebuilding ment. Not the basic research, the basic objection, it is so ordered. America, on investments in the future. research is being done. Now we are at a Mr. NELSON of Florida. Mr. Presi- We passed a budget resolution a little point where we need to have the tech- dent, we are on the bill having to do earlier this year that included a green- nology developed to deal with issues with homes and foreclosures. I want to collar jobs initiatives, which I was around the size and the weight of the speak on the bill, and then I would ask proud to offer. It had strong support vehicle and the reliability of the bat- unanimous consent that I be allowed to from our Presiding Officer. Among teries and all of the issues that bring it speak thereafter as in morning busi- things that we listed and we put into to the point for marketing and sales. ness. the budget resolution was advanced We are very close. But our country The PRESIDING OFFICER. Without battery funding. This is something I needs to be taking this very seriously objection, it is so ordered. know our appropriators are taking se- right now if we are going to have good- Mr. NELSON of Florida. I will be of- riously. I also know my colleague, Sen- paying manufacturing jobs, high-tech fering an amendment which I think ator LEVIN, is focusing on this in the manufacturing jobs in this country, will be adopted or embraced, approved, Department of Defense authorization. I particularly in the automobile indus- cleared by both sides. It is a bipartisan know we are serious about investing in try. amendment with Senator COLEMAN. It the future now, today—putting dollars I thank our majority leader and our is to give some commonsense relief to in to partner with the private sector to chairman of the Budget Committee homeowners who are trying to stay in get us to that next generation of vehi- who placed dollars into the budget. I their home while their home is under cle that is so critical. thank all of those who will be involved foreclosure. One of the things about which I am as we move forward to implement our If a homeowner is there and doesn’t extremely concerned is that other efforts to invest in advanced battery have any cash, the homeowner has countries have been investing for technology research. I only wish the fewer options of what to do if the bank years, and we have not seen the same passion that was shown yesterday is foreclosing on the home. But suppose kind of investments proposed year would be shown on the Senate floor, the homeowner has a retirement fund, after year in the President’s budget or would be shown in votes for the budget a private retirement fund, a 401(k) re- supported by our colleagues on the resolution, would be shown in votes for tirement fund. We have allowed, under other side of the aisle. appropriations, would be shown in current law, for the ability of a home- When Toyota first made the Prius, votes and leadership speaking up as the owner to take money out of that re- we heard a lot about it. They made this President, year after year, has woefully tirement fund, without paying the 10 with advanced batteries made in underfunded his requests for advanced percent penalty, to take it out of the Japan. What is more concerning is battery technology research. retirement fund before retirement for

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5989 the purpose of purchasing a home. But within their power to stay in that What is regulating? That Commis- if it is a homeowner with a home that home and not have it foreclosed. That sion would decide, for example, that is under foreclosure and they need is the amendment I will be offering at they are going to require that if you cash, under current law, if their only an appropriate time. I believe we have are going to bid on these future con- source of cash is that retirement fund, received clearance from Senator tracts for oil, you are going to have to in order to pull it out, they have to pay GRASSLEY. I am trying to get clearance use that oil. It is people now who don’t a 10-percent penalty. It seems it is from Senator BAUCUS, then the two have any intention of using oil who go common sense and the kind of public managers of the bill, and the Banking into these markets and speculate and policy that we would want to adopt to Committee, to get clearance from bid up the price. It is believed that if give the homeowner the means of them. we plugged this loophole, the price of avoiding foreclosure by being able to OIL FUTURES gasoline will drop by half. That is pret- tap into some of their cash in their re- Why has oil hit, last week, $140 a bar- ty dramatic. Yesterday, the House of tirement fund in order to save their rel, and why is it, within the last cou- Representatives had testimony that home. ple days, somewhere in the high 130s? the price of oil per barrel would drop That is what the amendment is all We have had testimony now from the by over half. That is pretty dramatic. about. It is simple. It waives the 10-per- president of Shell Oil Company. We People are hurting. Every Senator cent penalty for folks wishing to make have had testimony from an executive knows that. Our people are hurting. an early withdrawal from their retire- of ExxonMobil. The two respective tes- This $4 gas is hurting our people finan- ment fund in order to avoid fore- timonies say that under the normal cially. They are not able to make fi- closure. marketplace for oil, a world market- nancial ends meet. So if we want to do We put some parameters, some place of supply and demand, one of something, we have to get to where we boundaries around it so it cannot be them testified oil ought to be at $55 a can do something about it. abused. We say homeowners have to barrel, not $140, and the other one tes- Why did the price of oil futures jump show they are participating in a tified it ought to be somewhere be- $11 in 1 day? Do you know what the air- government- or industry-sponsored tween $35 and $65 a barrel, not $140. So line industry has told us? That 1-day foreclosure prevention program, such why is it at $140? jump of $11 a barrel cost the airline in- as the ones we are setting up in this It is true that little ‘‘jitterations’’ in dustry $4 billion extra. They can’t sur- bill, the HOPE NOW or the HOPE for the marketplace, any little minicrisis vive like that. This is an entity we Homeowners programs. Both of those in any part of the world is going to want to survive. They transport us are established in the bill before us send jitters into the financial market- about the country and the world. We today. That is one parameter. Another place. That is going to cause upward can do something about it, if we have parameter is, we make this thing lim- pressure. The fact is that China and the political will. ited for 2 years so it will not go on and India, of course, having so much con- This Senator is going to continue to on. The foreclosure crisis is right now. sumption of oil, makes it tighter. But pound on this issue to try to get the at- We want to help homeowners stay in even so, with all that, they said it tention, and we are getting some heft, when DORGAN and OBAMA and BOXER all their homes. We limit it for 2 years. ought to be in the range of somewhere start signing up. It is a very elegant, The third parameter, we put a limit between $35 and $65 a barrel. of $25,000 on what they can take out of The reason it isn’t is because 8 years very simple thing. You go back and their retirement fund. We are going to ago, in the dead of night just before plug the loophole that was unplugged give that homeowner, once they take Christmas in the year 2000, the Senate, back in December of 2000 and allow the the money out and they save their adjourning to go home, a provision was Government to do what it ought to do home, the ability to put that money slipped into an unrelated bill that de- by saying that the commodity ex- back into their retirement fund within regulated energy futures contracts. It changes have to regulate the trading of oil futures contracts. a 3-year period and not have to pay in- was called the Enron loophole because I yield the floor and suggest the ab- come tax on that money. A normal re- it benefited Enron. We saw that a cou- sence of a quorum. tirement fund, you take money out of ple years thereafter in electricity con- The PRESIDING OFFICER. The the fund, you will have to pay income tracts in California having been bid up clerk will call the roll. tax on it. If the purpose is to get a and bid up and bid up, and that caused The legislative clerk proceeded to ready source of cash to help them stay a great crisis that ultimately caused call the roll. in their home under foreclosure, we blackouts in California. Then, when Mr. DODD. Madam President, I ask want to give them that opportunity to Enron unraveled financially, we found unanimous consent that the order for get it back in their retirement fund out about that. But nothing was done the quorum call be rescinded. and not have to pay income tax. They to reregulate the agency, the Com- The PRESIDING OFFICER (Mrs. have to do that—another one of those modity Futures Trading Commission, MCCASKILL). Without objection, it is parameters—within 3 years. the CFTC. so ordered. The cost is fully offset. I want to give A lot of our colleagues here think we Mr. DODD. Madam President, to in- an example. We all, from our States, just reregulated them last Thursday form my colleagues and others inter- get horror stories. I got one from a re- night in the farm bill. But we only par- ested, we are making progress on var- tired Air Force sergeant who lives in tially reregulated them when we passed ious amendments that people are pro- Stuart, FL. He recently lost his job the farm bill over the President’s veto. posing to the housing bill. As the ma- and, in order to stay in his home, pay What that was, was new power of the jority leader has indicated, the only his mortgage, he liquidated his 401(k) CFTC to go in on an ad hoc basis on an amendments we are going to consider savings and paid the 10-percent pen- individual oil contract, with certain are housing amendments. This is a alty. The bill we are considering today other limitations, to examine it and housing debate. These are the issues on gives, in another provision, a tax credit then determine if it wants to regulate which people are anxious to see resolu- for first-time homeowners to buy their it. I don’t want to do that. tion so we can begin to make some se- first home. But unless we do it with The bill I have filed—and I have Sen- rious movement on the foreclosure cri- this provision, we are going to penalize ator DORGAN, Senator OBAMA, and Sen- sis in our country. folks such as Wayne who didn’t have ator BOXER as cosponsors—takes us I have a long list of potential amend- any source of cash except his 401(k) in back to the status quo before the ments, some 44 of them. I am not sure order to try to do his best to save his Enron loophole was passed, which is all are going to be offered. Some, be- own home using his own money. the trading mechanisms attached to cause we are in a postcloture environ- It is true that for most people, a the United States have to be regulated ment, might fall. But I strongly urge home is the greatest single source of if it is energy futures contracts. It is those who have amendments, Demo- wealth. It seems to me it is common very simple. As a matter of fact, my crats and Republicans, to come to the sense that we would have this narrowly bill is only two words. It inserts the floor to meet with staff to try to re- defined, limited exception to allow words ‘‘or energy’’ in there to reregu- solve their amendments if at all pos- homeowners to use every tool available late energy futures contracts. sible, to reach some compromise on

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5990 CONGRESSIONAL RECORD — SENATE June 24, 2008 them so they can be agreed to or in agree to them or inform the authors is just not true. First, the tax on some cases clarity as to how to proceed that they will probably fail in a Fannie Mae and Freddie Mac will be so we can begin to organize how these postcloture environment. paid by ordinary Americans, either amendments can be handled. I am grateful to all of our colleagues through higher costs for future mort- It is my intention shortly on a couple for their support this morning on in- gages or through lower share prices in of amendments—a Democratic amend- voking cloture and getting us close to their retirement accounts. Is that fair? ment and a Republican amendment— adoption of this complicated housing No. proposal. We had very strong votes be- where we have reached agreement and Second, taxpayers are on the hook ginning in December with the FHA compromise, to propose those, as my for any losses beyond what is being modernization bill, in April with the colleague from Alabama will, and to taken from the GSEs. Supporters of foreclosure proposals, and most re- agree to those amendments, and then this legislation say that will not hap- cently 19 to 2 out of our committee on at some point my hope is to try to pro- pen, but even their own numbers show pose a unanimous consent proposal to this particular proposal, and, of course, the vote this morning on cloture, 83 to just how likely it is for this program to accommodate those who insist on floor be bankrupt in a few years. The CBO votes, to accommodate those with time 9. So there is a strong indication that I take from our colleagues’ actions score for losses only fits within the agreements so we can have some clar- GSE tax set aside for the program be- ity as to how the rest of this bill will that there is a desire to get this bill done. We have the opportunity to do cause they assume less than a third of unfold. the refinancing authority is used. I There are complicated procedural that in the next few hours, a day or so, think time will prove all those assump- hurdles we have to weave our way to complete this process before the tions wrong. The real question in my through, but I think, given the over- Independence Day recess. mind is when will we have to bail out whelming vote of 83 to 9 on cloture, The ideas I just suggested, the pro- FHA and who is going to pay for it? there is a strong bipartisan desire to posals we are making, will help us complete this housing measure. We come closer to that reality if people This bill not only creates a dan- have the opportunity to do that. I need will take advantage of them. gerous new tax, but also uses that rev- Members or staff, whomever they des- Mr. BUNNING. Madam President, I enue to fund housing initiatives off the ignate, to come over with their amend- want to speak directly to the folks at books of the Federal Government. home right now. In the last few days, ments to give Senator SHELBY and I an Under this bill, Fannie Mae and opportunity to try to resolve them, to we have heard Senators say that we are Freddie Mac will be assessed $500–800 declare whether they are going to qual- in a historical crisis that requires ac- million annually by the Federal Gov- tion by the Federal Government. Sup- ify for working out some agreement. ernment. At least for the first year, porters of this bill say it directs relief That would be a great help. There are that money will be used to cover the to homeowners who desperately need some, I know, to which we can agree. inevitable losses to the FHA from a it, and deserve it. But they are trying There are other matters that Members bailout program for irresponsible and to sell you on the cover of a book with- want to bring up on this bill, but I undeserving lenders and borrowers. The out letting you see what is inside. I know there is going to be strong resist- balance of that money will pay for a like to know what kind of product I am ance—and properly so—by the majority permanent slush fund for housing buying before I open my wallet. As U.S. leader to entertain ideas that are not causes that will end up benefitting par- Senators, we have a responsibility to pertaining to housing. There will be tisan groups, some of whom have re- dig through any piece of legislation be- other opportunities, and there have cently had workers indicted for voter fore we open up your pocketbook. fraud. Additionally, there is an extra been other opportunities, for the con- This bill is over 600 pages long. I have sideration of such ideas, but they are $150 million in counseling funds for seen portions of it in the Banking Com- these partisan groups, with even less not going to be a part of this bill, mittee and the Finance Committee, accountability attached to those funds. knowing that when we go to the other but for the first time we are seeing the body with provisions that will not be whole package here on the Senate Another provision that has received accepted by the other body, they will floor. I am not buying it, and I do not little attention is $4 billion in emer- kill those ideas, as well as this one, the think you, your children, and your gency spending to buy foreclosed housing bill. grandchildren should have to either. homes. That is nothing more than a So for reasons that are very prac- Let me tell you why. gift to the banks, who by definition are tical, not political, we have to stay on This bill puts you, the taxpayer, at the ones who have foreclosed homes to the theme we are dealing with, hous- risk. It creates a new, permanent tax sell. These funds will have the perverse ing, foreclosures, and what we can do on mortgage business done by Fannie effect of increasing foreclosures be- to put our housing situation on a far Mae and Freddie Mac. That tax threat- cause banks know there is going to be better footing and give the institutions ens the solvency of those institutions a willing buyer. and the regulatory bodies the nec- and permanently punishes the share- And if these tax and spend policies essary reforms and tools that allow holders, many of which are institu- weren’t enough, this bill vastly in- them to do their jobs. That is fun- tional investors such as pension funds. creases an already overreaching Fed- damentally what is at the heart of this The tax also reduces the amount of eral bureaucracy. It nearly doubles the legislation. capital these GSEs can provide to the The other body has completed their size of the FHA. It assigns important mortgage lending system in a moment decisionmaking responsibilities with proposals, and we are talking with of serious liquidity issues in the mar- them in productive meetings, with regard to this program to a board cre- ket. ated of various agency heads, not Con- Congressman FRANK, chairman of the Furthermore, the FHA is already gress. It creates a new trust fund for House Financial Services Committee, projecting losses of over $4.6 billion ‘‘affordable housing’’ that is permanent along with JACK REED, our colleague from existing loans, which will wipe and mandatory, outside the normal ap- from Rhode Island, talking about how out 22 percent of its capital reserves. propriations process. It requires loan we might resolve some of these dif- The Congressional Budget Office has originators to participate in a National ferences on these two bills. estimated that participants in the FHA Mortgage Licensing System and Reg- There are a number of efforts ongo- refinancing program will re-default at istry. If you are a fan of big govern- ing. Even though we have not been en- a rate of 35 percent. That is more than ment, this bill definitely delivers. gaged in a public debate in this Cham- one out of every three loans refinanced ber over the last several hours, there is through the program. We are putting But I am only skimming the surface. movement. more bad loans on an already broken Unfortunately, it gets much worse. Those who have amendments, I program that can’t handle the risks it Make no mistake—this bill is a huge strongly urge them to come to the currently has. Is that a good idea? Of bailout for our Nation’s lenders. The floor, bring their ideas, and see if we course not. bill’s author has said this bill is going can’t resolve how we are going to han- The author of this bill says it does to help the everyday man. Let’s take a dle them, either a vote up or down to not put the taxpayer on the hook. That closer look and see what you think.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5991 The FHA program created by this bill The tax division of this bill also is the world, I think we can do better. In refinances borrowers who have de- flawed in several respects. In par- fact, we owe it to our grandchildren to faulted on their mortgages into govern- ticular, it includes a $9.8 billion tax in- do better. Who is going to bail them ment-insured loans. Just how much of crease on small businesses that the out when FHA is left with $300 billion those loans does the government in- Senate Finance Committee has never in bad debt? On behalf of the people of sure? One hundred percent. By creating held hearings to review. This credit Kentucky, this Senator is not buying this program, this bill limits how much card reporting provision will result in a this bailout bill. lenders can possibly lose through mort- vast increase in paperwork for credit Mr. BROWN. Madam President, I am gage transactions. When you invest in card companies and in millions of con- pleased the Senate has turned to the a business venture or in the stock mar- fusing and possibly misleading notices Housing and Economic Recovery Act, ket does the Federal Government cap sent to the IRS and taxpayers. which in large part was the responsi- your losses? No. But when it comes to Another provision that needs more bility of three of my colleagues, Sen- big banks this bill willingly transfers work is the new limitation on the gain ator DODD, Senator REED from Rhode downside risk of future losses right to exclusion for the sale of a second home. Island, and Senator SHELBY, which will the FHA and you, the American tax- This provision applies to any second provide much needed relief to our coun- payer. property owned by the taxpayer, in- try’s homeowners and the communities As I said before, CBO estimates at cluding an investment home. That they live in. least one in three mortgages refinanced means that taxpayers who lose their Ohio has been at the center of this under this bill will default again. principal residence and move into a va- storm for a number of years, and after Therefore, we have put in motion a sce- cation home or investment property years of neglect from the Federal Gov- nario where taxpayers take the hit will also lose the benefit of gain exclu- ernment, I am pleased that we are fi- rather than the lenders who made that sion. Is that the drafter’s intent? This nally about to act. Congress needs to loan to a risky buyer who bought a legislation has not been well thought help and it needs to act quickly. house he could not afford, with a mort- out. That scenario should be excluded, I understand we have an agreement gage he could not afford. That is a bail- and I have no doubt it would have been that limited amendments today to out for the lender any way you slice it. those that are relevant. This agree- Probably the most glaring flaw is if this bill had followed the normal ment I hope remains in effect through that the bill offers no way to keep out course through the Senate Finance irresponsible and undeserving bor- Committee. the consideration of the legislation. Ohio set a record for foreclosures last rowers. In fact, borrowers are not re- There are a few provisions in this bill year, some 83,000 foreclosures. That is quired to show that they did not lie on which are worthwhile and needed. Most more than 1,000 a week. That is close to their original mortgage application. To importantly, the bill creates a strong 200 a day. More precisely, every week qualify for the bailout, borrowers get new regulator for Fannie Mae and to sign a piece of paper saying they did Freddie Mac. Congress has been trying about 1,500 families have lost their not lie the last time they signed for a to pass such a bill for years, and it is homes. The end is nowhere in sight. mortgage. This bill subjects the FHA sorely needed and worth passing on its These families need our help now. They to another wave of fraud that these no- own. But the proponents of the bailout do not need political posturing on un- documentation loans experienced in are holding those needed reforms hos- related issues. We have seen too much the primary market. tage to get their bailout. of that. That can wait until we are Borrowers who have not dem- I and many others hoped to offer done with this bill. onstrated an ability to pay can get a amendments to try to mitigate the This fall, by some estimates, we will bailout because there is no require- damage this bill could do. Unfortu- see the peak of the subprime mortgage ment that borrowers have made any nately we have been blocked from resets. One research firm predicts half timely payments on their original doing so. On a bill of this magnitude the subprime loans made in the fourth mortgage. There is no income cap on that is irresponsible and unacceptable. quarter of 2006 will fail. That is not eligibility for the program. As written, One of my amendments would have lending; that is gambling with someone this bill would allow homeowners with made refinancing more affordable for else’s house. houses valued at up to $550,000 to qual- the vast majority of homeowners by al- The people who were sold these loans, ify for a bailout. In my county in Ken- lowing them to write off interest and the neighborhoods they live in, tucky, which is one of the most expen- points paid on a home mortgage in the must be among our highest priorities. sive in the whole State, the median year paid. For no good reason, the Tax The needs of communities are critical home price is $270,000. So this bill Code requires homeowners to treat because this crisis has an impact far would give a bailout to people with points differently, depending on when beyond the people who lose their homes valued at twice the median they are incurred. If they are incurred homes. Whenever a home goes in fore- price. The American people are com- in an original purchase financing, the closure, the value of neighboring passionate and often willing to help points are deductible, just as they homes drops by about 1 percent. Crime those in need. But I do not think giving would be under my amendment. If they goes up. Just when property tax reve- a bailout to anyone who owns such an are incurred in a refinancing, the nues are plunging and the resources of expensive home is fair to the average points can only be deducted ratably, a city or town are stretched to the American. If you recall from the eco- over the life of the loan. The difference limit, more resources are needed, and nomic stimulus debate, my colleagues is so significant that it will affect the there is less ability to deliver to help on the other side of the aisle vehe- ability of millions of homeowners to people. mently opposed rebates for ‘‘rich’’ tax- afford refinancing. The Foreclosure Prevention Act payers. Now when it comes to bailing The whole idea of bailing out people which we passed in April has been in- out banks that made risky loans, all who took a gamble and lost is an irre- corporated in this legislation before us. income classes of borrowers can qual- sponsible way to spend the taxpayers’ It will provide close to $4 billion in aid ify. money. I do not think the people back to communities so they can rehabili- The list of problems goes on and on. in Kentucky sent me to Washington to tate or in some cases knock down Mortgage professionals, people who by bailout speculators, Wall Street execu- abandoned homes in neighborhoods. definition should have known better, tives, and people who drained the eq- The bill will fund more counseling to can qualify for the bailout. People who uity in their homes to buy flat screen help people rework unfair loans. Yes- defaulted on government loans before televisions and new cars. terday in Columbus I visited a neigh- can come back to the trough. People This bill is simply the wrong kind of borhood on East 21st Street where the who drained all the equity in their housing policy for Congress to be en- Columbus Housing Partnership has homes to buy flat screen TVs and new gaging in and is fatally flawed. Even been so helpful in counseling many cars can qualify. This seems to me like the sponsor of the bill has admitted on people. More than 100 people, they say, a surefire way to set a program up for the Senate floor that he is not even have had their homes saved because of failure at a time when the FHA is re- sure it is going to work, but he hopes it this counseling. Two of them were with porting record losses. will. As the most deliberative body in me on East 21st Street yesterday.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5992 CONGRESSIONAL RECORD — SENATE June 24, 2008 This is no easy task. Once upon a gible for a credit of $8,000 in the form of to the nominations covered under this time you took out a loan with your a 15-year interest-free loan. This credit agreement today, with the time equal- local bank to buy a home, you knew is phased out for higher income tax- ly divided and controlled between the people at the bank, they knew you, and payers, and it will last 1 year. But it leaders or their designees; that upon the bank had a stake, as much stake in should provide help not only to home the use or yielding back of time, the your success as you did. buyers but help to stabilize markets Senate proceed to vote on confirmation Today, especially for subprime loans, around the country. of Calendar No. 630; that if the nominee that is seldom the case. The voice on The bill includes several other no- is confirmed, the motion to reconsider the phone and the owner of the loan ticeable tax provisions. It provides an be laid upon the table and that Presi- could be anywhere in the world. Help in additional $11 billion of mortgage rev- dent Bush be immediately notified of navigating the mortgage maze is essen- enue bonds, so that State housing the Senate’s action; that upon con- tial. But the problem is too big for one- agencies can respond to the housing firmation of Calendar No. 630, the Sen- by-one approaches. No matter how crisis in a way that best suits their sit- ate then proceed to the consideration hard counselors and servicers work— uation. It provides a measure of prop- and vote on confirmation of the fol- and they are doing yeoman work all erty tax relief to people who do not lowing nominations in the order listed, over the country, Toledo, Cleveland, itemize on their taxes, an estimated 28 Calendar Nos. 631 and 632; that with re- Dayton, and Springfield, all over my million taxpayers. spect to any vote sequence, there be 2 State and all over the country. No This legislation provides a needed minutes of debate between votes and matter how hard they work, we need a overhaul to the regulation of Fannie that any succeeding votes be limited to more comprehensive approach to help Mae and Freddie Mac and the Federal 10 minutes each; that upon confirma- homeowners who could afford to stay Home Loan Banks. This is an issue tion, the motions to reconsider be laid in their homes if they had a fair mort- that has been debated for years. We upon the table, en bloc, the President gage. have now reached a point where we can be immediately notified of the Senate’s The bill before us establishes a tem- move forward. The bill creates a new action, provided that no further mo- porary program within the Federal independent regulator with broad au- tions be in order, and the Senate then Housing Administration that, on a vol- thority equivalent to that of other resume legislative session; further, untary basis, would allow lenders and Federal financial regulators. The new that on Thursday June 26—this coming borrowers to refinance their mortgages regulator will be able to establish cap- Thursday—notwithstanding rule XXII, into a more affordable and stable prod- ital standards, management standards, if it is applicable at all, at a time to be uct. and review and approve new products. determined by the majority leader, fol- The HOPE for Homeowners Act It will have teeth too, as it will be able lowing consultation with the Repub- would help perhaps half a million fami- to enforce its orders through various lican leader, the Senate proceed to ex- lies. But the impact is far wider, as means. ecutive session to consider Calendar their neighbors and communities will This new regulator will draw from Nos. 627 and 628; that they be debated be helped as well if we can avoid fore- various agencies already in place, and concurrently for 1 hour, with the time closure for these homes in the neigh- it will be required to undertake rule- borhoods. making in several areas. I hope my col- equally divided and controlled between These provisions are not a bailout for leagues will give some attention to the the leaders or their designees; that borrowers or lenders. Borrowers get no transition from the current regulatory upon the use or yielding back of time, subsidy from the Federal Government. regime to the new one. It has taken us the Senate proceed to vote on con- They will have to pay a mortgage on years to get to this point in the legisla- firmation of the nominations in the their property like everybody else. The tive process. It is unlikely that a new order listed, with 2 minutes of debate difference is they will now have a regulator can be created to do a com- time equally divided and controlled in standard 30-year fixed rate loan based petent job overnight. the usual form between the votes, and on the true value of the property, rath- Let me conclude by commending the second vote in the sequence be 10 er than an exploding adjustable rate Chairman DODD and Ranking Member minutes in duration; that upon con- mortgage based on an inflated ap- SHELBY for bringing us to this point firmation, the motion to reconsider be praisal. Lenders, meanwhile, will have today, and especially to the majority laid upon the table, en bloc, the Presi- to take a loss by writing down the leader for his work in getting there. No dent be immediately notified of the mortgage below the actual value of the one in the Senate wants to help people Senate’s action; further, that if Cal- property if they choose to participate. who engaged in fraud or speculation. endar No. 630 is not confirmed, then all In many cases it will be in their in- But hundreds of thousands of people aspects of this agreement are null and terest to do so. With bank-owned were sold mortgages designed to fail. void, with no further intervening ac- homes selling at a fraction of the out- These people can stay in their homes tion or debate, and the Senate then re- standing mortgages on them, many with a fair mortgage but will be on the sume legislative session; that any time will want to accept a smaller loss. If street without our assistance. They de- consumed under this agreement count the program works as we hope, it serve our help. They deserve it now. postcloture, if applicable, provided should provide liquidity to the mort- I yield the floor and suggest the ab- that no further motions be in order. gage market so that lenders will be sence of a quorum. The PRESIDING OFFICER. Without able to again make prudent loans. The PRESIDING OFFICER. The objection, it is so ordered. The legislation also creates an af- clerk will call the roll. fordable housing fund. With our stock The assistant legislative clerk pro- Mr. REID. Madam President, I ask of affordable housing both aging and ceeded to call the roll. unanimous consent that in the consent shrinking, this fund will be vital to the Mr. REID. Madam President, I ask request I initiated, where I read the many families who are struggling to unanimous consent that the order for words ‘‘then all aspect of this agree- keep a roof over their children’s heads. the quorum call be rescinded. ment are null and void, with no further Families who are ready to buy a The PRESIDING OFFICER. Without intervening action or debate,’’ the home will be helped in several ways by objection, it is so ordered. words ‘‘no intervening action or de- this legislation. First, it includes a UNANIMOUS CONSENT AGREEMENT—EXECUTIVE bate,’’ which I read into the RECORD, be modernization of the FHA program. CALENDAR deleted. What we saw over the past several Mr. REID. Madam President, I ask The PRESIDING OFFICER. ‘‘No fur- years was an incredible shrinking of unanimous consent that notwith- ther intervening action or debate’’ the market share for FHA loans as bor- standing rule XXII, the Senate now shall be deleted from the request. rowers opted for riskier loans instead. proceed to executive session to con- The legislation would update the FHA sider Calendar No. 630, the nomination Mr. REID. That is correct, Madam program, increasing limits for high- of Helene White to be a United States President. cost areas and streamlining its oper- circuit judge for the Sixth Circuit; that The PRESIDING OFFICER. Without ation. Second, home buyers will be eli- there be 4 hours for debate with respect objection, it is so ordered.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5993 EXECUTIVE SESSION our committee. After I expedited a rocketed as the dollar has collapsed in hearing on the Michigan nominees, fig- value worldwide because of the huge uring that 10 years of waiting might debt caused by the Iraq war. They do NOMINATION OF HELENE N. have been enough, Republicans ob- not seem to realize that some of the WHITE, OF MICHIGAN, TO BE jected that we were moving too fast. typical Americans in my State of UNITED STATES CIRCUIT JUDGE They peppered her with more questions FOR THE SIXTH CIRCUIT Vermont and, I suspect, the Presiding than any nominee of President Bush Officer’s State of New Jersey, are find- The PRESIDING OFFICER. Under that I can recall. At our committee ing it very hard to buy gas to go to the previous order, the Senate will pro- markup, Republicans made the wildly work or pick up their children after ceed to executive session to consider dumbfounding claims that she is not school or do their grocery shopping or the nomination, which the clerk will experienced. But after more than 25 visit an ailing parent. You would not report. years as a Michigan State court judge, think these were important matters The assistant legislative clerk read including 15 as a State appellate court when you hear of the priorities on the the nomination of Helene N. White, of judge, she is a more experienced judi- Michigan, to be United States Circuit other side. You would not be aware cial nominee than many of those they there is a huge crisis in the housing in- Judge for the Sixth Circuit. previously supported. Mr. ISAKSON. Madam President, I It is interesting that Republicans did dustry, where people are losing houses ask unanimous consent that the time not raise this concern when they were all over this country, hard-working during the quorum be equally divided supporting far less experienced nomi- Americans who finally had the Amer- between the parties, and I suggest the nees such as Jennifer Elrod and ican dream of owning their own home absence of a quorum. Catharina Haynes of Texas to fill cir- and are now losing it. You would think The PRESIDING OFFICER. Without cuit court vacancies. In fact, Judge that was not happening by what we objection, it is so ordered. White has been on the appellate bench hear from the other side. The clerk will call the roll. longer than Mr. Kethledge, the other Republicans are now regularly ob- The bill clerk proceeded to call the Sixth Circuit nominee, has been out of jecting to hearings before the Judici- roll. law school. Mr. LEAHY. Mr. President, I ask ary Committee. They seem dis- It is ironic that last week several Re- appointed when we conclude hearings unanimous consent that the order for publican Senators held a press con- the quorum call be rescinded. within the first 2 hours of the Senate’s ference with representatives from right day and they cannot disrupt them. The PRESIDING OFFICER (Mr. LAU- wing groups organized by a group call- TENBERG). Without objection, it is so ing itself Concerned Women for Amer- They objected to Senator FEINSTEIN ordered. ica. It is Republican opposition to a completing an important hearing on Mr. LEAHY. Mr. President, what is woman nominee that has been holding interrogation techniques used against the parliamentary situation? detainees. It is almost as if, if we can The PRESIDING OFFICER. The Sen- up the progress of filling judicial va- cancies. Now this woman nominee they block that hearing from happening, ate is presently in executive session. these terrible things never would have Mr. LEAHY. Am I correct that we are seemed concerned about is described on President Bush’s White House Web site happened because Republicans fore- now on a judicial nomination? closed the ability of Americans to hear The PRESIDING OFFICER. The Sen- as ‘‘an experienced and highly qualified what went on in those hearings. ator is correct. judge, who is known for her intellect, Mr. LEAHY. Is there a time agree- work ethic, and demeanor.’’ She has They objected to a hearing high- ment? been given the highest rating for the lighting the impact of Supreme Court The PRESIDING OFFICER. There is position by the ABA. Yet her extensive decisions on the daily lives of all 4 hours equally divided. But the Senate experience, which is far more than the Americans even though that meant has used some of that time in the experience of many supported by my cutting short the testimony of two quorum call. friends on the other side of the aisle, brave women victimized by such a deci- Mr. LEAHY. I yield myself such time does not seem to meet the sudden last- sion, Pennsylvanians who came to as I may need in the time allotted to minute standards set by Republican Washington to tell how badly they had the Senator from Vermont. members of the committee. been hurt by these decisions. The Re- Today, the Senate is turning to a As a state judge, she has not been publicans effectively silenced them to package of three nominations for life- called upon to consider and apply cer- make sure they could not speak and time appointments to the Federal tain Federal statutes. That would be could not testify because they said we bench in Michigan, including President the same with thousands of state should not have these Judiciary Com- Bush’s nominations of Judge Helene judges all over the country. It is under- mittee meetings. So these two Penn- White and Raymond Kethledge to fill standable. But if you characterize her sylvanians had to go back home unable the final two vacancies of the Sixth because of that as unqualified, that to finish telling their story. Circuit Court of Appeals. would turn back the clock to before the These nominations are the result of confirmation of Justice Sandra Day And a few days ago, the Republican the hard work of Senators LEVIN and O’Connor, who had been a State legis- minority objected to a hearing that STABENOW, who consulted with Presi- lator and a State judge. Justice O’Con- had been requested by Judiciary Com- dent Bush to end a decade-long impasse nor was not experienced in deciding mittee Republicans to examine the in filling vacancies on the Sixth Cir- Federal law issues before confirmation need for additional Federal judgeships cuit. During that time, Senate Repub- as the first woman on the U.S. Su- throughout the country. This now all licans had blocked President Clinton’s preme Court. I think we should all too familiar pattern is childish and nominees to that circuit, leaving open agree she nonetheless served the Na- serves no good purpose. four vacancies. tion well in that capacity. And I agreed We will see later this week whether I am worried that some on the other with her chief sponsor in this body, my they allow Senator BIDEN to proceed to side seem intent on preventing us from friend and former colleague, Barry chair a hearing before the Sub- making this progress. Judge White’s Goldwater of Arizona, and I was proud committee on Crime and Drugs con- nomination should be a consensus nom- to join with him in voting for Sandra cerning fugitives from justice. ination. Judge White was nominated by Day O’Connor. Regrettably, these obstructionist a Democratic President and by a Re- It is also ironic that week after week, publican President. When the most par- as the Senate continues to make tactics from the other side of the aisle tisan President in modern history, one progress in filling judicial vacancies, are likely to continue without regard responsible for sending us so many di- we hear a steady stream of grumbling to the real priorities of the struggling visive nominations, renominates a from Republicans whose main prior- Americans I spoke about, the voters Clinton judicial nominee, it actually ities now seem to be to prevent the who have elected every Senator to should send a signal. Senate and the Judiciary Committee serve. Their priorities are being pushed Nevertheless, her nomination drew from addressing the priorities of ordi- aside. criticism from the Republican leader nary Americans. You would almost We read last week another story and opposition from Republicans on think that gasoline has not sky- about the dissatisfaction of right wing

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5994 CONGRESSIONAL RECORD — SENATE June 24, 2008 activists and their pressuring of the including 4 circuit court judges, so far the door on a sorry chapter. I commend Republican leadership in the Senate. this Presidential election year, com- the President for doing it and for what We witnessed their response this pared to 1996, when none had been con- he has said on his White House Web month as they forced a reading of a firmed at this point. site about Judge White’s nomination. I substitute amendment to critical cli- In addition to today’s three nomi- hope the Senate will follow the exam- mate change legislation. They did this nees, two more judicial nominees al- ple of President Bush and confirm for hours and hours, thereby shutting ready reported by the Senate Judiciary Judge White to one of the last two va- down the work of the Senate. Committee are pending on the Senate’s cancies on the Sixth Circuit. Two weeks ago, we saw a story in executive calendar. I have placed four The Michigan vacancies on the Sixth Roll Call that included the headline more on the Judiciary Committee busi- Circuit have proven a great challenge. ‘‘Divided GOP Settles on a Fight Over ness agenda for later this week. I commend the senior Senator from Judges.’’ That headline reminded me of It is perhaps the ultimate irony that Michigan, chairman of the Senate the famous Wolfowitz quote about why here, as the Democratic leadership of Armed Services Committee, Senator the Bush administration settled on the Senate takes the extraordinary LEVIN, and his outstanding colleague, supposed weapons of mass destruction step of proceeding to two more of Senator STABENOW, for working to end as the justification for attacking Iraq President Bush’s circuit court nomi- years of impasse. I had urged the Presi- even though they knew there were no nees in June of a Presidential election dent to work with the Michigan Sen- weapons of mass destruction—it was year, I am being criticized by Repub- ators. After 7 years, he now has. the rationale they could agree on. They licans for, of all things, moving too We have come a long way since I be- all knew they wanted to attack Iraq, quickly. I had hoped, in light of the came chairman in 2001 when the Sixth they knew they did not have the facts discussion between the majority leader Circuit was in turmoil because Repub- to attack Iraq, so they found a cover and the Republican leader earlier this licans had blocked nominations for story they could use. And thousands of spring, to have concluded Senate ac- many years. Today we complete that lives and $1 trillion later they say: tion on this package of Michigan nomi- progress by confirming Judge White Oops, sorry, no weapons of mass de- nees more quickly. I tried to have and Raymond Kethledge. struction, but, boy, we all agreed on these votes in May before the Memo- I yield the floor and retain the re- the rationale. rial Day recess, but we were thwarted mainder of my time. How much time The report in Roll Call included dis- in that effort by Republican concerns remains to the Senator from Vermont? cussion by Republican Senators of the about expediting consideration of these The PRESIDING OFFICER. There is politics that fuels their efforts to ap- Bush nominees. So what we might have 1 hour 32 minutes. peal to ‘‘conservative activists’’ and done in May, we are now having to do Mr. LEAHY. I thank the Chair. ‘‘ignite base voters’’ and find an issue in June. The PRESIDING OFFICER. The Sen- that ‘‘serves as a rare unifier for Sen- It reminds me a little bit of the Re- ator from Pennsylvania. ate Republicans’’ and their Presi- publican antics and shenanigans earlier Mr. SPECTER. Mr. President, we are dential nominee. That piece mirrored this year that cost us progress in Feb- moving forward today on the votes for an earlier article in the Washington ruary. Rather than making progress, confirmation of three Federal judges. Times, reporting how this is all part of Republicans refused to make a quorum Among the many very heavy respon- an effort to bolster Senator MCCAIN’s in the Judiciary Committee that entire sibilities of the Senate, the confirma- standing among conservatives. month so no judicial nominees would tion process ranks very high. Under This political song-and-dance would come out in March, and then in March, our system of government, we give to not be so bad if it were not impacting they could give speeches. the judicial branch the responsibility the integrity and the independence of So let there be no mistake. If Judge of interpreting the Constitution and es- the Federal judiciary, something that White is confirmed, we will have bro- tablishing the rule of law. That has in the past both Republicans and ken a 10-year impasse on the Sixth Cir- broad implications. It means the courts Democrats tried to protect. cuit. By contrast, the Republican Sen- render decisions where one citizen has I had suspected that much of this ate majority during the Clinton years a claim against another, which goes to complaining was because Republican refused to consider President Clinton’s court. It means a claim when the gov- partisans were looking for an issue to Sixth Circuit nominees for 3 years and ernment and a citizen have a con- energize their political base during an left four vacancies on that court. troversy which is to be settled by an election year. The reports from the When, as chairman, I scheduled a impartial judicial arbitrator. It also in- media outlets have confirmed my sus- hearing and vote for Judge Julia Smith volves some of the historic constitu- picions. I wonder if they realize that Gibbons of Tennessee and Judge John tional confrontations, one of which we liberals, conservatives, Republicans, Marshall Rogers of Kentucky, we were will have later this week on the For- and Democrats are suffering from hav- able to confirm the first new judges to eign Intelligence Surveillance Act. ing to pay these outrageous gas prices. the Sixth Circuit in 5 years. The others Where does the Article II power of the Wouldn’t it be better if they worked on had been pocket-filibustered by Repub- President end as Commander in Chief, that? licans. I said we would not do the same and where does the Article I power of Americans, Republicans and Demo- thing to them, and we did not. We the Congress of the United States es- crats, in all parts of this country, are moved quickly on President Bush’s tablish itself under Article I? seeing their houses disappear and the nominees to that circuit. The con- It is a very, very high calling. When value they had hoped for their retire- firmations of Judge White and Mr. the framers adopted the Constitution, ment gone. Wouldn’t addressing that Kethledge of Michigan would complete Article I was given to the Congress. Ar- be something better on which to unite the process by filling the two remain- ticle II to the executive branch and Ar- America? ing vacancies on the Sixth Circuit. ticle III to the judicial branch. Later, On this date in the 1996 session, an- Judge White was first nominated by Chief Justice Marshall, in effect, re- other Presidential election year but President Clinton to a vacancy on the wrote the order of priority. I think if one in which a Republican Senate ma- Sixth Circuit more than 11 years ago, the Constitution were to be rewritten jority was considering judicial nomi- but the Republican-led Senate refused today, the judicial branch would be No. nees of a Democratic President, do you to act on her nomination. She waited 1, because the judicial branch has know how many judicial nominees had in vain for 1,454 days for a hearing be- taken over the responsibility, for a va- been confirmed? The answer is easy: fore President Bush withdrew her nom- riety of reasons, for deciding all of the None, not a single one. That was a ses- ination in March 2001. Hers was 1 of cutting edge questions. sion that ended without a single circuit more than 60 qualified judicial nomi- We have had a great deal of focus of court judge being confirmed. nees pocket-filibustered by Repub- attention on the confirmation process. By contrast, if Republicans will allow licans. This year, President Bush re- This attention usually happens when the confirmation of Judge White to the considered and renominated her, and I Supreme Court nominations are in- Sixth Circuit, we will have today com- applaud President Bush for doing so. volved. Then, in the major committee pleted the confirmations for 12 judges, He deserves credit for trying to close hearing rooms, Senators are all at

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But, Sen- take up the nomination of appellate One case which illustrates the impor- ator LAUTENBERG from New Jersey court Judge Helene White to be a judge tance of the circuit court, and espe- looks comfortable in the position. We of the Sixth Circuit. cially the Court of Appeals for the have had, during the confirmation I will ask unanimous consent that Sixth Circuit, was the decision on the process of Chief Justice Roberts and the full text of my statement on Judge constitutionality of the Terrorist Sur- Associate Justice Alito, seen the Sen- White’s nomination be printed in the veillance Program, the program put ate at its best—avoiding the con- RECORD at the conclusion of my re- into effect by the President on troversy, avoiding the partisanship, marks. warrantless wiretaps. These wiretaps and moving forward in dignified hear- By including my statement, I can ab- went on for a long time before they ings. breviate my comments now. In my were disclosed—a violation of the Na- As I have said before—and it is worth statement, I note that there were only tional Security Act of 1947, which re- repeating—I compliment the distin- 22 days between Judge White’s nomina- quires the President to inform the In- guished chairman of the Judiciary tion and hearing, and there was not an telligence Committees of such pro- Committee for his courageous stand in opportunity to get into the details of ceedings, and a violation of the Foreign voting for Chief Justice Roberts. Chief her record, which is a matter not just Intelligence Surveillance Act of 1978. Justice Roberts was confirmed by a of procedure, not just of form, but of The President has responded to the vote of 78 to 22. Counting the Inde- real substance in terms of the commit- law that Article II powers are not af- pendent vote with the Democrats, a tee’s ability to evaluate Judge White. I fected by statute, but that is a matter majority of the Democrats voted in shall talk about that specifically, in for judicial decision. A Federal court in favor of Chief Justice Roberts, and it terms of her qualifications and in Detroit declared the Terrorist Surveil- was a good, unifying symbol. We moved terms of specific cases which she has lance Program unconstitutional. The through that process where there had decided. The context of the mere 22 case was appealed to the Sixth Circuit, been some doubt as to how the Senate days to evaluate her nomination is fur- and on a two-to-one decision, the Sixth would perform, a doubt which was oc- ther illuminated by the fact that there Circuit decided the plaintiffs did not casioned by the very bitter infighting, were so many other nominees who had have standing. That is a complicated which characterized the Senate in 2003, been on the agenda for much longer. A legal procedure, which I will not take 2004, and 2005, when we had the con- very distinguished lawyer, Peter time to discuss today, but, in short, troversy with the filibuster by one side Keisler, a man who has been praised on they do not have a right to challenge it and the threat to invoke a new rule of the editorial pages, had been waiting because they are not sufficiently af- cloture with the so-called constitu- for 726 days for a committee vote on fected by it. tional or nuclear option. his nomination to Circuit Court for the There was a dissent in that Sixth Cir- I have the pleasure of having my 14- District of Columbia. It is not too often cuit decision. Then, the Supreme Court year-old granddaughter with me this that judicial nominees are praised on of the United States denied certiorari— week. She just graduated from the the editorial pages, but Peter Keisler a decision which I thought was unfor- eighth grade and is spending a week as has been. A judge in North Carolina, tunate. When you have a major con- an intern in the Senate. It may be a District Court Judge Robert Conrad, stitutional confrontation between the little early for the job. Her father spent who is up for a seat on the Fourth Cir- Congress and the President—the most 6 weeks with Senator Hugh Scott many cuit, has been waiting for a hearing for dominant confrontation of this era—it years ago when he was 17. But, in going 343 days. A man named Steve Mat- seems to me the Supreme Court of the over the day’s itinerary, I sought to ex- thews, also for a seat on the Fourth United States ought to decide the issue plain to my granddaughter, Silvia Circuit, has been waiting for a hearing and, candidly, not look for a way to Specter, what a confirmation is. She is for 292 days. duck it. watching, with more interest, the ac- It seemed to my Republican col- The doctrine of standing has suffi- tivities of the Senate today because leagues and me that where you had a cient flexibility, as illustrated by the she is onboard. It is my hope, with commitment for confirmations by Me- dissent in the Sixth Circuit, that the agreements which have been reached morial Day, and you had people who Court could have taken the case. There here today to move ahead with the con- had been waiting around for this length is a lot of flexibility when the court firmation of three Federal judges today of time and we were in a position to deals with issues such as standing. and two more on Thursday, that per- evaluate them, that they should have Coming back to the point, one judge of haps we will see a return to at least been the ones to be considered. But, the Sixth Circuit made the difference. some basic level of comity in the Sen- the majority leader chose otherwise, So, when you have a nominee to the ate. We have moved a considerable dis- and now we have before us the nomina- Sixth Circuit Court of Appeals, or any tance from the tradition of confirma- tion of Judge White for a position on court of appeals, it is an important de- tion of Federal judges where, in times the Sixth Circuit. cision. gone by, there was merely a review of The status of a circuit judge is ex- Going back to the topic at hand, we academic standing, professional stand- tremely important in our judicial hier- had the hearing on Judge Helene ing, and trial practice; now, we go into archy because the circuit court—for White, and we had it in a very hurried much more detail of the ideology and those who are not familiar with the de- fashion. We did not have the rating of philosophy of the nominees. That tails of Federal procedure—is the ap- the American Bar Association, and, re- change has led to some deep concerns pellate court right above the U.S. Dis- grettably, we did not have all the ma- over the so-called cultural wars which trict Court, which is the federal trial terials that should have been available have, candidly, muddied the waters. court. When appeals are taken, or, to the committee. When judges write However, it is my hope that in the time more specifically, a petition for a writ opinions, a good many of them are that remains in the 110th Congress, we of certiorari is applied for to the Su- what are called unpublished. For those will move ahead with the confirmation preme Court of the United States, it is who do not know the legal procedures, of judges on up-and-down votes. a discretionary matter whether the Su- there are published opinions, which are The three nominees we are consid- preme Court takes the case. Most of bound in volumes that are used for ering today have come to the floor as a those applications are not heard—the precedents. But, the courts make a dis- result of an arrangement worked out U.S. Supreme Court takes very few tinction on what is published and what by the leadership on both sides. Origi- cases from the court of appeals. So, is unpublished, and a good many of nally, there had been a commitment to when a three-judge panel sits in a cir- Judge White’s opinions were unpub- have these confirmations occur before cuit court, that is it. Now, sometimes lished and reversed, and we never were Memorial Day. When I say ‘‘commit- there will be a decision by the circuit able to get them.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S5996 CONGRESSIONAL RECORD — SENATE June 24, 2008 I asked Judge White at the hearing but was charged and convicted in a Judge White was wrong, as determined about a number of her cases because state court. The defendant argued that by the appellate court. my own sense is to get involved in the the decision to pursue a state prosecu- There is one other case on which I specifics. In evaluating judges and tion rather than a federal prosecution wish to comment. There is a case evaluating lawyers on their legal was vindictive. The panel on which called People v. Thomas, which is in skills, it is very revealing to see what Judge White sat found that the trial the RECORD and which I will incor- they have decided. Perhaps even more court’s determination that there was porate by reference to save some time; revealing than what they have decided vindictive conduct was not clearly er- however, I do want to specify the case is the way they have reasoned through roneous. The Supreme Court reversed of People v. Hansford, which was an the decision. My questions about her stating: opinion reversed on appeal by the cases were not designed to be so-called The mere threat to refer the case for State Michigan Supreme Court and was a ‘‘gotcha’’ questions. All the cases I prosecution does not amount to objective third case she had summarized in her used for questioning were specifically evidence of hostile motive. questionnaire prior to her hearing. listed on Judge White’s Senate ques- The Supreme Court reversed the deci- After reading to Judge White in the hearing the defendant’s extensive tionnaire that she provided to the com- sion to which Judge White had been a criminal record, which included several mittee on April 25, just 12 days prior to party. counts of larceny and attempted lar- her hearing. I thought she would at I am sorry for the interruption. Any- ceny, receiving and concealing stolen least be familiar with these cases. one watching this debate on C–SPAN property, fleeing and alluding, and vio- One of the cases I questioned Judge just saw a congenial exchange between lations of probation, I noted that ha- White on was captioned People v. the distinguished chairman and the bitual offender statutes are designed to Santiago. In that case, Judge White ranking member of the Judiciary Com- take habitual offenders off the streets. dissented from her colleagues’ opinion, mittee. As a matter of fact, we have I asked what her reasoning was for de- quite a few such exchanges. The where her colleagues—two other termining that a man with an exten- judges—upheld a jury conviction of a evening is getting late and a lot of col- sive criminal record such as the de- defendant for first-degree felony mur- leagues have a lot of commitments, fendant did not deserve to be off the der and armed robbery. Judge White and there has been a request by the streets for life. would have reversed the sentence. majority that I abbreviate my com- Once again, her response to my ques- In this case, the defendant had driven ments. I think I can do that sensibly tion was that she was not familiar with the other two defendants to the house and will be delighted to do so. the case. She further stated that she where the robbery and murder were Mr. LEAHY. Mr. President, if the ‘‘accept[ed] the Supreme Court’s deci- committed, knowing that the defend- Senator will yield without losing the sion . . . and accept[ed] that the sen- ants intended to rob and likely kill the floor? tence was appropriate . . . because the victim—a classic example of aiding and Mr. SPECTER. No, Mr. President, I Supreme Court has said it is appro- abetting. It is a basic, fundamental already have yielded. priate.’’ rule of criminal law that an accomplice Mr. LEAHY. Mr. President, I appre- I again asked her whether she in a getaway car is a part of the con- ciate what the Senator said. I hope thought her decision was correct in spiracy to rob and is responsible for the people understand who are listening. I light of the Michigan Supreme Court’s consequences of a felony murder which know the two Senators from Michigan reversal, and she said: follows—very basic fundamental law. are going to speak very briefly. But if I have to have been wrong . . . The Su- I asked Judge White why she did not we wrapped up the comments in, say, preme Court reversed. I was wrong. The Su- agree with her colleagues that the de- the next 15, 20 minutes, we could then preme Court reversed. fendant was guilty of aiding and abet- go to a rollcall vote on Helene White. I Well, that is, in my legal opinion, to- ting. She could not explain why her de- would agree, then, to a voice vote on tally insufficient for a nominee to re- cision deviated from the legal stand- the other two judges, provided the spond in that way to a very important ards. I asked her specifically if it was ranking member had no objection to question such as that. You have habit- ‘‘standard, clear-cut law that when that, which would probably bring about ual offender statutes which are de- somebody drives a codefendant to a a huge sigh of relief from Senators on signed to take career criminals off the place where there is a robbery and a both sides of the aisle that we would streets. When you have three or more murder, that kind of assistance con- not be stuck here with three votes. convictions for violent offenses, it has stitutes guilt on the part of the cocon- Mr. SPECTER. Mr. President, I been determined that the criminals spirator, accessory before the fact?’’ thank the distinguished chairman for ought to have life sentences. Based on She commented, unresponsively, that his suggestion. It is almost 6 o’clock— the experience I had as district attor- she ‘‘went to law school in Pennsyl- a few minutes before—and I know peo- ney dealing with these cases, I au- vania,’’ but then continued that ‘‘in ple have a lot of engagements. I think thored the Armed Career Criminal bill, Michigan, to be responsible for the the course he outlines is a solid one. I which created a federal life sentence principal offense, one has to either think we can handle the Senate’s busi- for serious repeat offenders convicted share the intent to commit the prin- ness in that way. As I said earlier, I of three or more major felonies. The cipal offense or provide aid and support will expedite my presentation and rely fundamental part of the criminal law is with knowledge that the principal of- more on what I have in my statement to protect society. Recidivists commit fense was going to be committed.’’ for the RECORD. I do not think I am 70 percent of the crimes so if there is a Given that acknowledgment, I again going to change a whole lot of votes in habitual offender who commits repeat asked her why she came to a contrary what I say, but I do think it is impor- crimes, they ought to be taken off the conclusion. I asked her if she stood by tant for the Senate to understand that streets. Here there was one, and the her decision, even though her two col- voting against Judge Helene White is Supreme Court of Michigan said the leagues who participated in the case not a matter that is done lightly or treatment should have been for a ha- with her on the Michigan Court of Ap- without cause. There ought to be a bitual offender. Judge White didn’t peals disagreed and the Supreme Court statement as to why. treat it that way, and she didn’t have had denied appeal, and she responded Well, back to the case of People v. any justification for why she didn’t that she stood by her original judg- Ryan. Quite frequently there is a Fed- treat it that way, and she didn’t ex- ment, without providing any legal rea- eral investigation and a State prosecu- plain the logic of her reasoning. soning to justify that conclusion. tion. It happens all the time. It was As delineated in the very extensive I asked Judge White about another very commonplace when I was district floor statement, which I have already case, captioned People v. Ryan. She attorney of Philadelphia. That scenario had printed in the RECORD, we were not participated in the decision affirming is certainly not the basis for saying it given a great many of Judge White’s the dismissal of a drug dealer’s convic- is vindictive or out of order. For one opinions. It was very difficult—really tion. The conviction had been reversed. reason or another, it is better suited to impossible—to calculate her reversal The circumstances were that the de- pursue the State court. If a State law rate when we didn’t have those opin- fendant was arrested by Federal agents is violated, you can do it that way. ions. Based on the opinions we have,

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5997 her reversal rate was in excess of 6 per- We have had some very troubled ‘‘Senator Leahy and I are going to do every- cent, much higher than Judge Robert times on this Senate floor, and that thing we can to approve three circuit court Conrad’s reversal rate—2 cases out of kind of infighting and partisanship is judges by Memorial Day. . . . Who knows, we 175, or about 1 percent. The national may even get lucky and get more than that. something which does not add to the We have a number of people from whom to average is at 8.6 percent; however, luster of the Senate as the world’s choose.’’ Judge Boyle from North Carolina, who greatest deliberative body. We have The same day as the Majority’s commit- was rejected by the Democrats based seen very bitter disputes on this Sen- ment, the White House reached an agree- on his high reversal rate, had a rever- ate floor. The Republican majority, in ment with the Senators from Michigan on sal rate which was lower than Judge my opinion, did not act properly on nominations to the Sixth Circuit, which White’s. And I repeat, we still don’t President Clinton’s nominees when the broke a decade-long impasse. The impasse began in 1997, when President Clinton first know what her reversal rate is. We Republicans controlled the Senate and don’t know what her reversal rate is nominated Judge Helene White to a seat on the President was a Democrat. I said so the Sixth Circuit. The Senate did not act on because we had a great many unpub- on the floor at that time and voted for Judge White’s nomination prior the end of lished opinions that were reversed on President Clinton’s qualified nominees. the Clinton Administration, and as a result, appeal that we did not have an oppor- When we had the battle over fili- there has been an ongoing feud between the tunity to examine because they were buster versus the so-called nuclear con- Michigan Senators and the White House, not provided to us. stitutional option, the tradition of this which led to numerous filibusters of Sixth Just a couple of comments in conclu- body was strained to the utmost, and Circuit nominees in 2003 and 2004, and left sion. It is my hope that we will yet re- the Sixth Circuit with an understaffed court we dodged that bullet or cannon or nu- for over ten years. The April 15th agreement turn to some basic comity and have a clear bomb. So, it is my hope that Sen- respectable number of confirmations of between the White House and the Michigan ator LEAHY and I can take the lead, as Federal judges this year. The statistics Senators specified that the White House we have in the past. He is the chair- would withdraw the nomination of Mr. Ste- show that President Clinton had a sig- man; I am the ranking member. The phen Murphy to the Sixth Circuit and would nificantly larger number of circuit roles have been reversed. We have a lot instead nominate Judge White to that seat. judges and district court judges con- of role reversals around here. When In return, the Michigan Senators would re- firmed than President Bush has had in turn their blue slips on Mr. Raymond the last 2 years. Further, President PAT LEAHY and ARLEN SPECTER passed Kethledge, another Sixth Circuit nominee Clinton’s overall confirmation numbers the gavel, it was a seamless passing of who has been blocked for over 700 days, and are higher than President Bush’s. the gavel. We are not going to fili- Judge White. Mr. Murphy was nominated to President Clinton had 65 circuit judges buster Judge White. I am going to vote a Michigan district court seat instead, and and 305 district court judges confirmed, against her for the reasons I have given the Michigan Senators agreed to return blue slips on his nomination. while President Bush has had only 59 here, and more detailed in my state- ment. I have not campaigned against On April 29th, when it became clear that circuit judges and 244 district judges the Majority intended to include the recent confirmed. We have heard several dis- her. I think the matter is up for every nomination of Judge White in the promised cussions about the so-called ‘‘Thur- individual Senator to judge. My expec- ‘‘three circuit court nominees confirmed by mond rule’’—that is a rule which has tation is that she will be confirmed. I Memorial Day deal,’’ Senator McConnell and been commented upon which, when think there may well be a fair number I sent a letter to Senators Reid and Leahy analyzed, has no real substance. During of votes against her, but I haven’t advising them of the logistical impossibility President Clinton’s Administration, counted the votes. But, I think the im- of confirming Judge White by Memorial Day. In the letter, we noted the numerous ‘‘time- Chairman LEAHY commented that the portant thing is that we have an up- and-down vote, and that we not have a consuming steps in the judicial confirmation so-called ‘‘Thurmond rule’’ was a process’’ and expressed our concern that ‘‘myth,’’ and then he proceeded to filibuster. We have waiting in the ‘‘[g]iven these standard prerequisites and specify a great many judges who had wings the judge from North Carolina, Judge Helene White’s recent nomination been confirmed late in past Presidents’ Judge Conrad, and the man from South date of April 15, 2008, we do not believe reg- terms. Carolina, also nominated to the Fourth ular order and process will allow for her con- Upon examination, we find that the Circuit. I hope we move on these nomi- firmation prior to May 23, 2008.’’ We further facts are that in the last 2 years of nees. observed the ABA rating for Judge White Presidents’ terms, there have been I also have written to my colleagues was not likely to be completed in time, given many judicial confirmations. In 1988, who are not returning blue slips on the ABA’s standard timeframe for com- pleting ratings, and noted that the ‘‘Demo- President Reagan’s last year in office, nominees from New Jersey and from cratic Majority has placed particular impor- the Senate confirmed 7 circuit nomi- Maryland and from Rhode Island. I tance [on the ABA rating] over the years.’’ nees and 33 district court nominees. In have talked to them and urged them to In fact, the Judiciary Committee has never 1992, President George H.W. Bush’s last return their blue slips, urging that we held a hearing for a circuit court nominee year, the Senate confirmed 11 circuit not maintain vacancies in anticipation prior to receiving his or her ABA rating. nominees and 53 district court nomi- of the election results. But, essentially, On May 7th, a mere 22 days after her nomi- nees. In 2000, President Clinton’s last it is my hope that we can move ahead nation, the Committee held a hearing on year in office, the Senate confirmed 8 in a way that is in the tradition of the Judge White. Twenty-two days is a very short period of time to evaluate any circuit circuit nominees and 31 district court Senate and to discharge our constitu- court nominee’s record, but this expedited nominees. tional responsibilities with up-or-down confirmation process was even more trou- The Thurmond rule allegedly arose votes. bling in the case of Judge White. Judge when the issue about the confirmation Mr. President, I now ask unanimous White has been a state court judge her entire of judicial nominees came up near the consent that my full statement be career and has participated in over 4500 cases end of President Carter’s term in of- printed in the RECORD. on the Michigan Court of Appeals alone. It fice. But, an examination of the facts There being no objection, the mate- has been eight years since her last nomina- shows that nominations were not being rial was ordered to be printed in the tion was pending, and in that time period, blocked. In fact, by today’s standards, she likely participated in over 2000 cases in RECORD, as follows: addition to the 2500 she participated in be- the end of President Carter’s term was SENATOR ARLEN SPECTER, FLOOR STATEMENT, fore 1997. That is quite a record to go a rather remarkable situation. Presi- NOMINATION OF JUDGE HELENE WHITE TO through in just 22 days. dent Carter nominated Steven Breyer THE SIXTH CIRCUIT COURT OF APPEALS As is standard Committee procedure, ques- to be a court of appeals judge for the I have sought recognition to discuss the tions were submitted to both Judge White First Circuit on November 13, 1980, nomination of Judge Helene White to the and Mr. Kethledge after their hearing. Re- after President Carter had lost the United States Court of Appeals for the Sixth publicans were criticized for submitting election to President Reagan. We talk Circuit, but before I discuss the merits of her these initial questions even though they sub- about the fights over circuit judges nomination, I’d like to remind the members mitted a total of only 73 questions to Judge White, which is no more than other circuit now. The election was gone. We had a of this Committee of the history behind this nomination. court nominees have received from Demo- new President. But, the Senate con- On April 15, 2008, Majority Leader Reid and crats. In fact, several recent Bush appellate firmed Steven Breyer to the First Cir- Chairman Leahy committed to confirming at nominees and a Department of Justice nomi- cuit, and history shows that he later least three more circuit court nominees by nee have received more questions from became a U.S. Supreme Court Justice. the Memorial Day recess. Senator Reid said: Democrats than Judge White received from

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In addition, the Committee had qualifications. Providing advice and consent knowledgement, I again asked her why she more time to evaluate these other nominees’ on judicial nominees is one of the most im- came to the conclusion that the defendant records prior to their hearings. Contrasted portant duties of a United States Senator. I was not guilty of aiding and abetting. Again, with the mere 22 days the Committee had to take my role in the confirmation process she could not explain her legal reasoning in evaluate Judge White’s record, the Com- very seriously, and I have serious concerns the case. I asked her if she stood by her deci- mittee had 112 days to evaluate Judge about Judge White’s qualifications to be a sion even though her two colleagues who Elrod’s record between her nomination and judge on the Sixth Circuit Court of Appeals. participated in the case and heard the same her hearing, 121 days for Judge Southwick, Except for the two years she spent clerking set of facts disagreed with her and the Su- and 117 days for Ms. Becker. I believe these for a Michigan State Supreme Court judge, preme Court had denied appeal, and she re- questions for Judge White were particularly Judge White has been a state court judge her sponded that she did. warranted given the expedited hearing sched- entire career. She has never litigated a case, In another case, People v. Ryan, Judge ule for her nomination. Both nominees’ re- she has never handled clients, and she has White participated in a decision affirming turned their answers by Wednesday, May had extremely limited experience with fed- the dismissal of a drug dealer’s conviction, 21st, three days before the end of the session, eral law as a state court judge. and the Supreme Court reversed that deci- negating the proposition that Republicans’ While this lack of certain legal experience sion and reinstated the conviction. In this questions slowed these nominations. by a circuit court nominee certainly would case, the defendant was arrested by federal As Senator McConnell and I predicted, the not immediately disqualify the candidate agents, but was charged and convicted in ABA did not issue its rating for Judge White from holding a federal appellate position, State court. The defendant argued that the prior to the Memorial Day recess, and the given the short time frame the Senate has decision to pursue a State prosecution rather Committee was unable to complete its work had to consider Judge White’s record, these than a federal prosecution was vindictive. on her nomination prior to the recess. factors are significant in her case. She had a The panel on which Judge White sat found The Majority did not fulfill its commit- very limited opportunity to demonstrate her that the trial court’s determination that ment to confirm three more circuit court ability to handle her docket and the com- there was vindictive conduct was not clearly nominees by Memorial Day because they plicated legal issues that face a federal ap- erroneous. The Supreme Court reversed stat- chose to expedite the confirmation of a re- pellate court judge. ing: ‘‘The mere threat to refer the case for cently submitted circuit court nominee rath- Given her lack of experience with federal State prosecution does not amount to objec- er than acting on any of the other out- law, Judge White was questioned about the tive evidence of hostile motive.’’ After recit- standing circuit court nominees currently types of federal issues that she has handled ing these facts to her, I asked Judge White if pending in Committee whose paperwork has and was asked to articulate her under- she stood by her opinion given that the only been complete for months or even years standing of some common federal legal prin- evidence of vindictiveness was that Federal longer than Judge White’s. ciples. She repeatedly responded that she DEA authorities turned the matter over to The failed Memorial Day commitment is had not dealt with these issues and was un- State prosecutors, which is a very common not the first time the Majority has not ful- able even to discuss some common federal practice. In response Judge White cited her filled expectations. At the beginning of this legal issues and the cases addressing them. unfamiliarity with the case and deferred to Congress in February 2007, Senator Reid At her hearing, I also asked Judge White the Supreme Court’s holding rather than an- stated: ‘‘[W]e are going to do our very best to several questions about decisions that she swering my question. She stated that ‘‘be- make sure this is not our last circuit court had participated in on the Michigan Court of cause the Supreme Court reversed, it meant judge [confirmation] but the first of a sig- Appeals that were reversed by the Michigan that I among others, got it wrong. . . . I nificant number who can at least meet the Supreme Court. She repeatedly stated that stand by the Supreme Court.’’ I was con- standards of Congresses similarly situated as she was unfamiliar with the cases and did cerned by her stated unfamiliarity with the ours.’’ During the last 20 years, on average, not recall the factual scenarios or her legal case because this was a case Judge White had the Senate has confirmed 17 circuit court reasoning. Even after I had given her the rel- cited in her questionnaire for which she had nominees in the final two years of a presi- evant facts of the cases, she was unable even provided a summary. I was equally con- dent’s term, and in President Clinton’s final to articulate her legal analysis or reasoning cerned that she deflected my question about two years in office, the Senate confirmed 15 process. My questions about her cases were whether she stood by her opinion. circuit court nominees. Since Senator Reid not designed to be ‘‘gotcha’’ questions; the I next turned to another case Judge White made that statement in February of last cases I mentioned were all specifically listed had summarized in her questionnaire cap- year, this Senate has confirmed only 8 cir- in Judge White’s Senate questionnaire that tioned People v. Thomas. I detailed the facts cuit court nominees, less than half of the she provided the Committee on April 25, just of the case to Judge White, which included historical average, and the Majority has inti- 12 days prior to her hearing. Further, for the conviction of a drug dealer who was mated that they may not process any more three of the cases, she had provided the Com- charged with second-degree murder and was circuit court nominees this year. Hence, Sen- mittee with short summaries of the facts and found guilty by a jury of voluntary man- ator Reid’s February statement was the first holdings in her questionnaire. At the very slaughter, carrying a concealed weapon, and of many unfulfilled commitments. least, I thought she would be familiar with felony firearm. I asked her whether she stood Second, in his announcement of the deal, the cases she apparently had reviewed re- by her decision to reverse the conviction of Senator Reid acknowledged the fundamental cently in order to provide the Committee this gang member when the Michigan Su- unfairness of discriminating against circuit with those summaries. preme Court had subsequently overturned court nominees from states with two Repub- In one case upon which I questioned Judge her panel’s opinion. Once again she deferred lican Senators in favor of nominees from White, People v. Santiago, she dissented to the opinion of the Supreme Court and states with Democratic delegations or mixed from her colleagues’ opinion upholding a stated ‘‘I stand by the judgment of the Su- delegations. He stated: ‘‘[W]e have a number jury conviction of a defendant for first de- preme Court.’’ I told her I knew the Supreme of places from which the Judiciary Com- gree felony murder and armed robbery. In Court had the final word, but I wanted to mittee can move matters to the floor. We this case, the defendant had driven the two know whether she thought the Supreme have North Carolina, South Carolina, Rhode other defendants to the house where the rob- Court’s decision was right. She again stated Island, Maryland . . . Pennsylvania. . . . Vir- bery and murder were committed, knowing that she ‘‘accept[ed] the conclusion of the ginia. . . . Maryland. We have a wide range that the defendants intended to rob and like- Supreme Court.’’ She did not answer my to choose from. . . . [N]o, it should not be be- ly kill the victim—a classic example of aid- question. I wanted to evaluate her judgment, cause you have two from the same party ing and abetting. When I asked her about her but she would not answer whether she from one State and they are not our party; dissent which held that the defendant was thought her opinion was right or wrong. that should not cause them not to have their not guilty of aiding and abetting, she could I also asked her about a Court of Appeals’ nominee approved. . . . I think if you have not explain why her decision deviated from opinion in which she participated that re- two Senators from the same party, they the legal standards for aiding and abetting, versed a sentence for a defendant who was a should not be discriminated against. I men- as enunciated by the majority opinion and as habitual criminal offender, People v. tioned their names. Their names are Mat- affirmed by the Michigan Supreme Court Hansford. Again, this was an opinion that thews and Conrad.’’ Notwithstanding this ac- when they denied appeal. I specifically asked was reversed on appeal by the Michigan Su- knowledgment, the Majority insisted on pro- her if it was ‘‘standard, clear-cut law that preme Court and was a third case she had ceeding with Judge White and Mr. Kethledge when somebody drives a co-defendant to a summarized in her questionnaire. After read- rather than moving to other exceptional cir- place where there is a robbery and a murder, ing her the defendant’s extensive criminal cuit court nominees from states with Repub- that kind of assistance constitutes guilt on record, which included several counts of lar- lican Senators such as Steve Matthews of the part of the co-conspirator, accessory be- ceny and attempted larceny, receiving and South Carolina and Robert Conrad of North fore the fact?’’ She responded first that she concealing stolen property, fleeing and al- Carolina who had been ready and waiting for ‘‘went to law school in Pennsylvania,’’ but luding, and violations of probation, I noted

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S5999 that habitual offender statutes are designed relatively high reversal rate. A review of submitted 80 questions for Judge Leslie to take habitual offenders off the streets, Judge White’s opinions that are available Southwick, 5th Circuit. and I asked her what her reasoning was for publicly reveals that 6.7% of her cases have And, the Committee had more time to determining that a man with an extensive been reversed by the Michigan Supreme evaluate these other nominees’ records prior criminal record such as the defendant did Court. That is a pretty high percentage of to their hearings. Days from nomination to not deserve to be off the streets for life. Once cases. Further, Judge White’s reversal rate hearing: White: 22 days; Elrod: 112 days; and again, she claimed not to be familiar with may be much higher, but we cannot deter- Southwick: 121 days. the case. She further stated that she mine her actual reversal rate because Judge Judge White has already submitted her an- ‘‘accept[ed] the Supreme Court’s decision White still has not provided the Committee swers to the Committee, proving that no ...’’ and ‘‘accept[ed] that the sentence was with all of her unpublished opinions that delay by Republicans occurred. The delay is appropriate . . . because the Supreme Court were reversed on appeal. As comparison, due to the importance Democrats’ have has said it is appropriate.’’ I again asked her Democrats objected to the nomination of placed on the ABA rating. In 2001, Senator whether or not she thought her decision was Judge Terrence Boyle to the Fourth Circuit Leahy stated: ‘‘Here is the bottom line. correct in light of the Michigan Supreme when his reversal rate was 6.2%. There will be an ABA background check be- Court’s reversal, and she said ‘‘I have to have I am troubled by some of Judge White’s de- fore there is a vote.’’ Senator Leahy reiter- been wrong . . . The Supreme Court re- cisions that were reversed on appeal, but I ated this pledge at Judge White’s hearing. Judge White’s nomination has only been versed. I was wrong. The Supreme Court re- am more concerned about her inability to ar- pending for 37 days. Meanwhile, Mr. Peter versed.’’ ticulate her legal analysis and reasoning Keisler, D.C. Circuit, has waited 693 days for In her answer to my question about the ha- process in these cases and her lack of experi- a Committee vote, Judge Robert Conrad, 4th bitual offender, Judge White also noted that ence with complex federal issues. I am also Circuit, has waited 310 days for a hearing, the vast majority of her court’s opinions are concerned that Judge White has not provided and Mr. Steve Matthews, 4th Circuit, has unpublished. At her hearing, I expressed con- the Committee with a complete record of her waited 259 days for a hearing. cern about how many of her opinions were judicial opinions upon which we could evalu- unpublished. I am also concerned that copies ate her qualifications for this prestigious po- Mr. SPECTER. My final comment, if of a number of her opinions that were re- sition. I may make it while the chairman is on versed on appeal were not provided to the Given the brief period of time I had to re- the floor, is that we do have some Committee prior to her hearing as required. view Judge White’s opinions, her apparent other Senators who wish to speak. Question 15(d) of the Committee Question- unfamiliarity with her own opinions, her in- Well, I have just been advised that we naire specifically asks for ‘‘a list of and cop- ability to articulate her legal reasoning and don’t have Senators who wish to speak. ies of any of [the nominee’s] unpublished analysis in those opinions, and her failure to Apparently, Senator LEAHY, your com- opinions that were reversed on appeal or provide the Committee with important ele- where [the nominee’s] judgment was af- ments of her judicial record prior to her ments about an early conclusion were firmed with significant criticism of [the] hearing, I plan to vote against her confirma- much more persuasive than mine. substantive or procedural rulings;’’ however, tion to the Sixth Circuit. Mr. LEAHY. Mr. President, if the Judge White only provided the Committee NEEDLESS RUSH TO JUDGMENT ON JUDGE Senator will yield for a moment, when with copies of 23 cases that were unpublished WHITE the Senator from Pennsylvania is fin- and reversed on appeal. Three of the cases ished, I know Senator LEVIN and Sen- about which I questioned her were listed A Republican Senate confirmed 15 circuit elsewhere in her questionnaire, but were not court judges and 57 district court judges in ator STABENOW wished to speak very included in those 23 cases that she provided President Clinton’s final two years. Thus far briefly. If that was the case, I hope to the Committee and clearly fit into the in this Congress, the Senate has confirmed that maybe within the next 10 minutes category of cases she should have provided. only 8 of President Bush’s circuit court or so, or that by 6:30, or at 6:30, that The Committee and the full Senate cannot nominees and 38 district court nominees. perhaps what we can do is this: Let’s properly evaluate a nominee’s record if it President Bush is also far behind President say at 6:30, if the Senator from Penn- Clinton in total confirmations when con- does not have key elements of that record. I sylvania would agree that we might would have liked to have had access to all of trasting their entire terms. President Clin- Judge White’s opinions that were reversed ton had 65 circuit court and 305 district court vote at 6:30, then under the previous prior to her hearing so that they could have judges confirmed, while President Bush has unanimous consent, if Judge White is been analyzed and used as the basis for ques- so far had only 59 circuit and 241 district confirmed, assuming she is, but if she tioning. court judges confirmed. is under the unanimous consent, then In follow up questions after her hearing, I There are a total of 32 judicial nominees the regular order would be to go to the asked Judge White to provide those missing currently pending in the Judiciary Com- other two nominees from Michigan. It cases and to explain why she did not provide mittee: 11 Circuit Court vacancies with 10 would be my intent—unless somebody them initially. She responded to my question nominees; 36 District Court vacancies with 22 by saying it was an ‘‘oversight’’ that she did nominees. objected—it would be my intent to do not include them initially and further stated Judge Helene White was nominated on those by voice vote. That, of course, is that she can only provide the Committee April 15. Her Judiciary Committee question- contingent upon her being confirmed with a ‘‘partial list of cases in which [she] naire was received on April 25, and the Mi- under the unanimous consent agree- participated . . . which were reversed’’ be- nority did not receive her FBI report until ment that I have been shown. Would cause the method the Michigan Court of Ap- April 29. Her hearing was held on May 7. Re- that be acceptable? peals employs to catalogue cases makes it sponses to Judge White’s questions for the Mr. SPECTER. Mr. President, that is difficult to locate those cases. She only pro- record following her hearing were received acceptable to this side of the aisle. I vided the Committee with an additional 11 yesterday. cases that were reversed on appeal. I find The mere 22 days that elapsed between think it is an illustration of how the this response deeply troubling for a number nomination date and hearing is a far shorter Senate can conduct its business in an of reasons. First, appellate judges should be period of time than is typical for the Com- expeditious way. We started on a 4- held to the highest standards of competence. mittee to perform its standard review of a hour time agreement at 5:15. We are 54 ‘‘Oversights’’ by a judge can lead to defend- circuit court nominee’s record. The average minutes into the 4 hours, and we will ants being wrongly convicted, criminals for Bush’s circuit court nominees has been conclude with a 2-hour-and-45-minute being set free, or wronged litigants not re- 162 days between nomination and hearing. savings. Let this be an example for the ceiving justice. Attention to detail and thor- The American Bar Association has still not balance of the confirmation process oughness are critical qualities in an appel- completed its rating of Judge White. The late judge. Second, nominees to the federal Committee has never held a hearing for a and other Senate work. courts who have served as judges should pro- circuit court nominee prior to receiving I yield the floor. vide all of the opinions they participated in their ABA rating. Mr. HATCH. Mr. President, I will that were reversed on appeal or, at least, Democrats have accused Republicans of vote for all of the Judicial nominees demonstrate a reasonably robust effort to do stalling the two sixth circuit nominees. Sen- before us today. I want to offer a few so. Democrats have required prior appellate ator Reid: ‘‘Senators on the Republican side comments about one of them and also court nominees to provide substantial num- on the Judiciary Committee have delayed about the current state of the judicial bers of their unpublished opinions in addi- consideration of Judge White. . . . following confirmation process. tion to the ones that were reversed on ap- the hearing, [they] asked a total of 73 sepa- The Constitution gives authority to peal. I recall one judge being asked to go to rate written questions’’ nominate and appoint judges to the a depository in another state to retrieve cop- In fact, Judge White did not receive more ies of unpublished opinions. Judges should questions than other recent circuit court President, not to the Senate. make every reasonable effort to provide all nominees: Republicans submitted 73 ques- The Senate’s role is to check the of their opinions that were reversed on ap- tions for Judge Helene White, 6th Circuit; President’s power, to ensure that his peal, not merely the ones that are easily ac- Democrats submitted 108 questions for Judge nominees are not crooks, cronies, or cessible. I am also troubled by Judge White’s Jennifer Elrod, 5th Circuit; and Democrats corrupt.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6000 CONGRESSIONAL RECORD — SENATE June 24, 2008 Too often in relent years, however, To her credit, Judge White flatly re- qualifications. The distinguished rank- Senators have tried to push our role jected that activist view of a judge’s ing member, Senator SPECTER, and oth- beyond merely checking the Presi- role. ers are detailing some of those con- dent’s power to actually highjacking I wanted to share these thoughts cerns on the floor today. the President’s power. with my colleagues because some have Some of my friends on the other side That goes too far and undermines the questioned whether Judge White is the have responded that this nomination separation of powers which is so crit- kind of judge President Bush has said has really been pending for 11 years ical to limit government power and to he would appoint. and that we should somehow already keep our system of government in bal- She was, after all, first nominated to know enough to fill in the blanks and ance. the Sixth Circuit by President Clinton resolve the doubts. For this reason, my perspective on whose nominees generally embraced a That is ridiculous. the judicial confirmation process be- more activist judicial philosophy. I have served in this body and on the gins with substantial deference to the President Bush is the first, at least Judiciary Committee for 32 years. I President, no matter which party occu- during my Senate tenure, to resubmit know of no Senator who keeps tabs on pies the While House or has the Senate an appeals court nominee first offered the careers, accomplishments, and majority. by a President of the other party. record of unconfirmed nominees from For this reason, I have voted against President Clinton certainly did not previous administrations on the off and worked to eliminate filibusters do that. chance that they might some day be used to defeat majority-supported judi- But the Constitution gives each renominated. cial nominees. President the authority to make that We must evaluate each nominee on And for this reason, I have voted judgment and I have always believed the current record developed through against very few nominees during my that there is a high bar for the Senate the current process. 32 years in this body and on the Judici- to withhold its consent on the basis of And on the question of qualifications, ary Committee. judicial philosophy. that record satisfies but certainly does From that perspective of deference, I That perspective of deference and her not excite me. then look at a nominee’s judicial phi- answers to questions like the ones I de- I respect the judgment of colleagues, losophy and qualifications. scribed satisfy me on this point. especially on this side of the aisle, who Applying these criteria, my decision Let me turn to the question of quali- look at these and other issues and con- to support two of the nominees before fications. clude that they cannot support Judge us today, Raymond Kethledge to the The American Bar Associations rat- White. Voting against a nominee of Sixth Circuit and Stephen Murphy to ing of judicial nominees is more impor- your own party is a significant step. the Eastern District of Michigan, was tant for some than for others. There are Senators on the other side easy. My friends on the other side have who have served here even longer than My decision to support Judge Helene consistently said the ABA rating is the I have who have never voted against a White’s nomination to the Sixth Cir- gold standard for evaluating judicial nominee of their party. cuit, however, was a much closer call. nominees. Each of us might make that judg- Frankly, I have always believed that I take that back. ment for ourselves and, though it is in- a President has the right to appoint They have called the ABA rating the deed a closer call than I would like, I judges who reflect his or her judicial gold standard until they want to ob- will vote to confirm Judge White. philosophy. struct nominees who have received Before I conclude, I want to make a I asked Judge White detailed ques- even the highest rating. few observations about the judicial tions designed to explore her judicial Judge White’s ABA rating in 2008 is confirmation profess with regard to philosophy, her understanding of the higher than it is in 1997, when she was Judge White’s nomination in particular proper role of Federal appellate judges first nominated to the Sixth Circuit. and judicial nominations in general. in our system of government. At that time, some members of the When I chaired the Judiciary Com- I want to share a few of her responses ABA evaluation committee thought mittee during the previous administra- with my colleagues. she was not qualified at all. tion, Judge White’s nomination did not I asked Judge White to comment on This time, a majority of the evalua- receive a hearing because she lacked the notion that judges must make deci- tion committee found her well quali- support from her home State Senator sions based on the law as enacted by fied and no one thought her unquali- who served on the Judiciary Com- the people and their elected represent- fied. mittee at the time. atives, even if they personally disagree It is a little surprising, however, that Similarly, Sixth Circuit nominees of with it. after 26 years as a State court judge, 15 the current President, including Mr. Judge White agreed with this whole- of them on the appellate bench, Judge Kethledge who is before us today, did heartedly, staying that judges ‘‘should White still has not garnered a unani- not receive a hearing because they too be prepared to have no constituency mous well qualified rating from the lacked home State Senator support. except the law.’’ ABA. I am certainly glad that this issue I realize this is straight out of civics In fact, Raymond Kethledge, the has been resolve with our distinguished 101, but there are many today who be- other Sixth Circuit nominee before us colleagues from Michigan so that these lieve judges may twist and shape the today, received a higher ABA rating nominees can move forward. Constitution and statutes into any than Judge White and he has no judi- But I remain baffled why my fol- form they please in order to achieve re- cial experience at all. lowing that longstanding policy is sults they desire. Judge White has never litigated a today attacked as a so-called pocket In fact, some ray colleagues on the case. She has never handled clients. filibuster while the current chairman other side of the aisle have said judges She has virtually no experience with following that policy is praised for an must take sides, that they must favor Federal law issues of any kind. exercise in senatorial courtesy. certain ideological interests and serve There have been serious concerns That is one of number of baffling and certain political constituencies. about her ability to manage her cur- frustrating futures of the current judi- I also asked Judge White whether rent docket, let alone the far busier cial confirmation process. judges may decide cases based on their and more complex docket she would There have been seven previous Con- personal views, sense of justice, empa- face on the Federal bench. gresses during my service here that in- thy, or experience. Perhaps these dare some of the issues cluded a presidential election year. It would be difficult to come up with that kept the ABA evaluators from giv- During an average of 313 days in ses- a more misguided and even dangerous ing her the highest rating. sion, 25 appeals court nominees re- role for unelected judges in our system Unfortunately, Judge White did not ceived a hearing and 20 appeals court of government, but some of my friends distinguish herself in her hearing and nominees were confirmed. on the other side of the aisle have en- offered the committee little to offset Using that as our benchmark, in the dorsed that approach. these and other concerns about her current 110th Congress, we are nearly

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6001 90 percent finished with our days in Clinton in 1999 for a seat on the Sixth munity and of community organiza- session but so far less than one-third as Circuit Court of Appeals. Kathy tions including COTS, Coalition on many appeals court nominees have re- McCree Lewis passed away last year. Temporary Shelter; JVS, Jewish Voca- ceived a hearing and only half as any She never had her hearing and oppor- tional Services; and the Metropolitan have been confirmed. tunity to be voted on by the Senate. Detroit Young Women’s Christian As- It does not have to be this way, it has She was dedicated to her profession sociation. She should be a consensus not been this way in the past. and to her family. While she is no confirmation. I hope that when the nominees before longer with us, we remember her Oddly, Republican attacks on Judge us today ire confirmed, we will turn today. White have focused on what they term our attention to the others who are The seat that Judge White is being a lack of experience. Somehow, some- pending some for many months and nominated for on the Sixth Circuit is one who has been a respected appellate even for years, and continue doing the same seat that was held by a won- judge for 15 years, who has served as a what the American people sent us here derful woman, Judge Susan Bieke Neil- judge for well over 25 years, and who to do. son. She held that seat for a tragically the ABA rates as well qualified for the I yield the floor. short period of 2 months. This vote is Federal circuit court , is in their view Mr. LEAHY. Mr. President, I yield 5 also a vote to Judge Neilson. Her hus- not ‘‘experienced’’ enough to be a Fed- minutes to the senior Senator from band, Jeffrey Neilson, wrote Chairman eral appellate court judge. Michigan. LEAHY back in April that he believed Some Senators suggested that her The PRESIDING OFFICER (Mr. that Helene White ‘‘will reflect the lack of experience with specific Federal MENENDEZ). The Senator from Michi- best qualities of both Susan and Kath- issues that never come before even the gan is recognized. leen in the performance of her duties, most experienced State judge was a Mr. LEVIN. Mr. President, we are so that although death has precluded problem. They ignore the fact that nearing the end, I hope, of what is sure- their presence on the Sixth Circuit, judges always have to learn new areas ly one of the longest judicial nomina- they will be there in spirit. of the law as new cases come before tion sagas in U.S. history. Judge White Finally, I thank Chairman LEAHY them, and no one is better prepared to was previously nominated by President and our Democratic leader, HARRY do that than an experienced jurist like Clinton for a vacancy on the Sixth Cir- REID, for all they have done to make it Judge White. cuit of the Court of Appeals starting in possible that we can finally, hopefully, Indeed, Mr. Kethledge, President 1997. Her nomination was returned to resolve this Michigan issue that has the President without a hearing. An- Bush’s youthful nominee to the other been stymied in the Sixth Circuit and vacancy on the Sixth Circuit, was gra- other nominee of President Clinton was Eastern District for far too long, with also returned without a hearing. That cious enough to concede at the hearing a bipartisan resolution the President that he, too, lacked experience in the was the nomination of Kathleen has sent us on these three nominees McCree Lewis in 1999. same specific areas of Federal law. Yet with his full support in the Senate. his qualifications have not been in Judge White has been serving as a I hope the Senate will give an over- called into question by Republican judge on the Court of Appeals of Michi- whelming vote to Judge White but also Senators. Judge White has served as a gan since 1993, and I believe she has then adopt a voice vote for the other Michigan State appellate court judge participated in more than 4,000 deci- two nominees. sions. Before that, she served as a Mr. LEAHY. Mr. President, I had longer than Mr. Kethledge has been out judge on the Wayne County Circuit hoped that before the Senate we not of law school, but some are questioning Court from 1983 to 1993, and that is would hear unfair criticism leveled at her experience while embracing his rel- Michigan’s top trial court. Judge Judge White. Last month, Senator atively lack of experience. White, as have our other nominees, has BROWNBACK publicly apologized for his With these criticisms, Republicans been given a ‘‘well-qualified’’ rating by actions at her confirmation hearing, risk turning back the clock to before the American Bar Association’s stand- and I commended him for doing so. the confirmation of Justice Sandra ing committee, and President Bush has After Judge White answered the scores Day O’Connor, who herself had been a called Judge White ‘‘an experienced of time-consuming questions Repub- State legislator and State judge. Jus- and highly qualified judge who is licans sent to her and the committee tice O’Connor was not experienced in known for her intellect, work ethic, had received the updated ABA ratings deciding Federal law issues before her and demeanor.’’ emphasized so much by Republicans in confirmation as the first female justice The second nominee for the Sixth connection with these nominations, I of the U.S. Supreme Court. I think we Circuit is Raymond Kethledge, cur- hoped we could move forward with this can agree that she nonetheless served rently a partner at the Bush, Seyferth in a consensus fashion. It is dis- the Nation well in that capacity. firm in Detroit, MI. Before joining that appointing that some still seem bent Should we conclude from the Repub- firm, Mr. Kethledge was a law clerk to on grasping at straws to criticize Judge lic attacks that no State court judge Justice Anthony Kennedy on the U.S. White, applying a different standard can be confirmed to sit on a Federal Supreme Court and earlier clerked for from that which they used to evaluate court? Certainly Jennifer Elrod, a a judge well known to those of us in other Bush judicial nominees. State court judge with far less experi- Michigan, beloved Judge Ralph Guy of Judge Helene White has served on the ence than Judge White, who the Senate the U.S. Court of Appeals for the Sixth Michigan Court of Appeals for the past confirmed to the Fifth Circuit late last Circuit. Mr. Kethledge also served as 15 years, having been elected by the year, was not held to that standard by judiciary counsel for Senator Spencer people of Michigan in 1992. Before that the Republicans. Indeed, recall what Abraham from 1995 to 1997, and he grad- she served for a dozen years on the Senator CORNYN said about her nomi- uated magna cum laude from the Uni- Wayne County Circuit Court, the Com- nation: ‘‘I would point out that when it versity of Michigan Law School in 1993. mon Pleas Court for the city of De- comes to experience, most of us, when Steven Murphy, who is the nominee troit, and the 36th District Court of we apply for a new job, or a nominee, for the Eastern District position, cur- Michigan. She is described on the Bush have rarely done that job before. So rently serves as U.S. attorney for the White House Web site as ‘‘an experi- the question is not whether you have Eastern District of Michigan. Prior to enced and highly qualified judge, who actually done that job before, it’s his service as U.S. attorney, Mr. MUR- is known for her intellect, work ethic, whether you are likely to do a good PHY was an attorney with the General and demeanor.’’ job, if confirmed.’’ Motors legal staff in Detroit. He Judge White has been now been nom- Others have pointed to a handful worked for the U.S. Department of Jus- inated by Presidents from both parties, cases in which Judge White was on a tice for more than 12 years. by a Democratic President and by a panel decision that was reversed. This I wish to take this opportunity to Republic President. She has served as a handful of cases comes from 4,300 cases recognize the life and the work of Michigan State court judge for more she heard on the bench. These were Kathleen McCree Lewis who, as I men- than 25 years. In addition, she has been cases in which Judge White joined a tioned, was nominated by President active as a member of the legal com- unanimous panel of her court or in one

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6002 CONGRESSIONAL RECORD — SENATE June 24, 2008 instance where she agreed with the rest First, let me say a few words about Mr. CARDIN. Mr. President, I lis- of the court on the law and differed Judge Helene White, who brings 30 tened to Senator SPECTER talk about only on the facts. More to the point, years of legal experience to the Sixth one of our most important responsibil- they were cases of such limited prece- Circuit Court of Appeals. She is a grad- ities; that is, the confirmation process dential value that the decisions were uate of the University of Pennsylvania on the President’s nominations for our not even published. When asked about Law School and the Barnard College at courts, which are lifetime appoint- each case, Judge White testified that Columbia University. Judge White has ments. It is a major responsibility each she accepted the Michigan Supreme been a State judge since 1981. She has of us has in the Senate. Court’s decision as correct. I hope that served on both the 36th District Court I think the way this confirmation in a long career spanning thousands of for the city of Detroit and the Wayne process has proceeded with the three decisions, she will not be judged by a County Circuit Court. Since 1992, she judges before us is an example as to few unremarkable cases. Republicans has served, with distinguished service, how we should be working on the con- have certainly asked us not to focus on on the Michigan Court of Appeals. She firmation of judges. First, I think the a small handful of cases decided by has participated in more than 4,400 process under which the Senators other Bush nominees, even when the cases in her time as a judge on the worked with the White House on the cases in question were far more note- Michigan Court of Appeals. All told, appointments is a model that should be worthy. Judge White will bring more than 25 used, I hope, in more circuits, where Republicans have simply not been years of bench experience to the Sixth there is a real working relationship be- able to point to anything in Judge Circuit. While I support all of our tween the Senators and the White White’s long and distinguished career nominees, Judge White is the only per- House to come up with the best quali- that should disqualify her or even jus- son who brings that judicial experi- fied individuals to serve on the Federal tify a negative vote. It is unfortunate ence, having served on the bench with bench. I congratulate Senators LEVIN that some Republicans seem to be try- distinguished service, someone who is and STABENOW for the manner in which ing so hard to find reasons not to sup- respected by all sides for her intellect, these nominations were brought for- port this particular nominee. her fairness, and her balance. I am so ward. I hope that Republican and Demo- very pleased that we are finally at this Second is the confirmation process cratic Senators will join together to point to be able to vote on this impor- before the Judiciary Committee. I support her nomination and the entire tant nomination. spent a lot of time reading the back- package of Michigan nominations that Secondly, Mr. Raymond Kethledge, grounds on each of our nominees, as President Bush has sent to us after who is also nominated for the Sixth well as the hearing itself. I must tell consultation with Senators LEVIN and Circuit Court of Appeals, graduated you that as a result of reading the STABENOW. magna cum laude from the University background material, as a result of the I yield the floor. confirmation hearings, I am a strong The PRESIDING OFFICER. The jun- of Michigan and the University of supporter of Judge White for her con- ior Senator from Michigan is recog- Michigan Law School. I told him that firmation to the court of appeals. I also nized. even though I went to a rival school— Ms. STABENOW. Mr. President, I Michigan State University—I will sup- support Mr. Kethledge for the court of rise today to join my friend and distin- port his nomination. In fact, my son is appeals. I must tell you, in reading his guished colleague in supporting the a graduate of U of M. I was pleased to background, I was a little concerned nominations of Judge Helene White, see another Wolverine being nominated because he didn’t have any real experi- Mr. Raymond Kethledge to the Sixth for this distinguished position. Fol- ence in writing opinions, didn’t have Circuit Court of Appeals, and Mr. Ste- lowing law school, he served as Senator experience in trying cases, as far as a phen Murphy III to the District Court Spence Abraham’s judiciary counsel. judge is concerned, and there wasn’t for the Eastern District of Michigan. I He then went on to clerk for both much to judge his ability to reason on also want to remember those whom Judge Ralph Guy, on the Sixth Circuit the court of appeals by his background. Senator LEVIN spoke of as well. Court of Appeals, and Justice Kennedy, But I must tell you, after listening to I thank, particularly, Chairman on the Supreme Court, before eventu- the confirmation hearings, I was con- LEAHY for working with us in a very ally becoming a partner at Bush vinced that he is well qualified to serve diligent manner, for his patience, and Seyferth Kethledge & Paige in Troy, on the court of appeals. I am sup- for his commitment and his willingness MI. I am certainly pleased to support porting his nomination. That is what to work with us to move the Presi- his nomination to this position. the confirmation process should be dent’s nominations forward. It has Finally, Mr. Stephen Murphy has about. been a very long process—one that been nominated for a seat on the Dis- I listened to Senator SPECTER have started more than 11 years ago for trict Court for the Eastern District of concerns about Judge White because of Judge Helene White. In fact, I have Michigan. He will bring both academic some of her opinions. I must tell you, I been here for 8 years, and she has been and Federal law experience to the am pleased we have before us a nomi- waiting more than 11 years for this bench. He has taught at the University nee who has the experience to go onto vote—41⁄2 years, originally, to have the of Detroit Mercy School of Law and the the court of appeals or appellate hearing. I find that because of the Ave Maria School of Law in Ann Arbor. courts. Judge White has served 15 years length of time she has been waiting, it He has practiced as both a Federal on the State appellate court. She has is difficult to say that somehow this prosecutor and a defense counsel. He written numerous opinions, has par- was a short-circuited process or a proc- also practiced business litigation as an ticipated in over 4,000 cases, served 12 ess that happened too quickly. It has, attorney for General Motors. Since years on the circuit court in Michigan. in fact, been more than 11 years. I hope 2005, he has served as the U.S. attorney So she has trial court experience as a this serves as an example of how we for the Eastern District of Michigan. judge, and she has appellate court ex- can come together when both sides, I urge my colleagues on both sides of perience as a judge. with the administration, are willing to the aisle to support the President’s Quite frankly, I have been dis- work together in a bipartisan manner. nominees. We have worked hard in a bi- appointed by a lot of the nominees who I am very pleased we have been able to partisan manner. It has taken a long have been brought forward by the come to this agreement together. That time to get to this point, but I am very White House because they have is what we have done here. pleased we are here together sup- brought forward individuals who do not Senator LEVIN and I have worked porting these nominees for the Sixth have experience to go on our second with the Bush administration, and as a Circuit Court of Appeals and the East- highest court. I think experience is im- result, we have the three nominees for ern District of Michigan. I am hopeful portant. I raised those concerns during the Federal bench who are in front of that, very shortly, we will confirm Judge Elrod’s confirmation hearing us. In fact, all three of them were rated each of these nominees. and Judge Haynes’s hearing. I would ‘‘well-qualified’’ by the American Bar I yield the floor. like to have people with more experi- Association. I urge my colleagues to The PRESIDING OFFICER. The Sen- ence so that we can judge their quali- support them. ator from Maryland is recognized. fications.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6003 In Judge White’s case, we have that The PRESIDING OFFICER. All time The PRESIDING OFFICER. The Sen- record, and it is a great one. Has she is yielded back. The question is, Will ator from Vermont. been reversed in her 4,000 decisions? the Senate advise and consent to the Mr. LEAHY. Mr. President, I am sat- Yes. That is why we have appellate nomination of Helene N. White, of isfied with a voice vote on this nomi- courts. But she has never been chal- Michigan, to be United States Circuit nee. lenged as far as her reasoning and her Judge for the Sixth Circuit? The PRESIDING OFFICER. The fairness and her demeanor. In fact, she The clerk will call the roll. question is, Will the Senate advise and has been rated by the American Bar The assistant legislative clerk called consent to the nomination of Raymond Association as ‘‘well-qualified.’’ the roll. M. Kethledge, of Michigan, to be One more thing, Mr. President, as to Mr. DURBIN. I announce that the United States Circuit Judge for the why I strongly support Judge White’s Senator from West Virginia (Mr. Sixth Circuit? confirmation, and that is the manner BYRD), the Senator from Massachusetts The nomination was confirmed. in which she handled the confirmation (Mr. KENNEDY), and the Senator from f hearings. They were not easy hearings. Illinois (Mr. OBAMA) are necessarily ab- NOMINATION OF STEPHEN JOSEPH There were tough questions that were sent. MURPHY III TO BE UNITED asked. She exercised the type of de- Mr. KYL. The following Senators are STATES DISTRICT JUDGE FOR meanor I want to see in our Federal necessarily absent: the Senator from judges. She exercised the type of re- THE EASTERN DISTRICT OF Missouri (Mr. BOND) and the Senator sponse that I think represents the MICHIGAN from Arizona (Mr. MCCAIN). types of qualifications I want to see on The PRESIDING OFFICER. Are there The PRESIDING OFFICER. The our Federal bench. So I am very much any other Senators in the Chamber de- clerk will report Executive Calendar supporting her confirmation. I hope she siring to vote? No. 632. will receive a strong vote on the floor. The assistant legislative clerk read I urge my colleagues to support all The result was announced—yeas 63, the nomination of Stephen Joseph three of the Michigan judges who are nays 32, as follows: Murphy III, of Michigan, to be United before us for confirmation. [Rollcall Vote No. 156 Ex.] States District Judge for the Eastern With that, I yield the floor. YEAS—63 District of Michigan. The PRESIDING OFFICER. The Sen- Akaka Hagel Nelson (FL) ator from Vermont is recognized. Baucus Harkin Nelson (NE) The PRESIDING OFFICER. The Sen- Mr. LEAHY. Mr. President, I appre- Bayh Hatch Pryor ator from Vermont. ciate the comments of my colleagues. Biden Inouye Reed Mr. LEAHY. Mr. President, because Bingaman Isakson Reid of the lateness of the hour, I am willing First, I commend the two Senators Boxer Johnson Rockefeller from Michigan, who spent years work- Brown Kerry Salazar to forgo a rollcall on this nominee and ing out this conclusion for these three Cantwell Klobuchar Sanders a voice vote will be sufficient. Cardin Kohl Schumer The PRESIDING OFFICER. The nominees to be here. I commend Sen- Carper Landrieu Sessions ator LEVIN and Senator STABENOW for Casey Lautenberg Shelby question is, Will the Senate advise and working so hard. Senator CARDIN spent Clinton Leahy Smith consent to the nomination of Stephen so much time at the hearing with me. Coleman Levin Snowe Joseph Murphy III, of Michigan, to be Collins Lieberman Stabenow United States District Judge for the I appreciate the amount of time he Conrad Lincoln Stevens spent there. His words of calm rea- Crapo Lugar Tester Eastern District of Michigan? soning, but with questions that cut Dodd McCaskill Voinovich The nomination was confirmed. right to the importance of the hearing, Dorgan Menendez Warner Mr. LEAHY. Mr. President, I thank Durbin Mikulski Webb were extremely valuable. Feingold Murkowski Whitehouse my colleagues, I thank the Chair, and I If nobody else is seeking recognition, Feinstein Murray Wyden thank the distinguished leader for I am going to suggest the absence of a NAYS—32 helping us to get here. quorum in a moment. So that Senators The PRESIDING OFFICER. Under will understand, at 6:30 I will call off Alexander Cornyn Inhofe Allard Craig Kyl the previous order, the motions to re- the quorum, and the time will be yield- Barrasso DeMint Martinez consider are considered made en bloc, ed back on both sides. Then we will go Bennett Dole McConnell and the President will be immediately to a rollcall vote on Helene White. Brownback Domenici Roberts notified of the Senate’s action. Bunning Ensign Specter If Judge White is confirmed, as I Burr Enzi f fully expect she will be, then we will go Sununu Chambliss Graham Thune Coburn Grassley LEGISLATIVE SESSION to the next two judges, but only if she Vitter Cochran Gregg is confirmed. Again, Senator SPECTER Wicker The PRESIDING OFFICER. Under Corker Hutchison and I have both said we expect she will the previous order, the Senate will re- be. We will go to the next two judges, NOT VOTING—5 turn to legislative session. and I don’t know of anyone who will re- Bond Kennedy Obama The majority leader. Byrd McCain quire a rollcall vote on those two f judges. The nomination was confirmed. With that, I suggest the absence of a The PRESIDING OFFICER. Under AMERICAN HOUSING RESCUE AND quorum. the previous order, the motion to re- FORECLOSURE PREVENTION ACT The PRESIDING OFFICER. The consider is considered made and laid on OF 2008—Continued clerk will call the roll. the table, and the President shall be Mr. REID. Mr. President, there will The legislative clerk proceeded to immediately notified of the Senate’s be no more votes this evening. If I call the roll. action. could, though, have the attention of Mr. LEAHY. Mr. President, I ask f Senators who are here. unanimous consent that the order for Mr. President, first of all, let me say the quorum call be rescinded. NOMINATION OF RAYMOND M. on this package of judges, we have been The PRESIDING OFFICER. Without KETHLEDGE TO BE UNITED working on these for 5 or 6 years. That objection, it is so ordered. STATES CIRCUIT JUDGE FOR is how long it has taken. So this is Mr. LEAHY. Mr. President, I ask for THE SIXTH CIRCUIT the yeas and nays on the nominee. really a step forward. Everyone has co- The PRESIDING OFFICER. Is there a The PRESIDING OFFICER. The operated. I appreciate very much the sufficient second? clerk will report Executive Calendar help of the entire Republican caucus. There appears to be a sufficient sec- No. 631. Senator KYL was especially helpful to ond. The assistant legislative clerk read work through what we have done. We Is all time yielded back? the nomination of Raymond M. are going to approve two more judges Mr. LEAHY. I am authorized to yield Kethledge, of Michigan, to be United the day after tomorrow, and then we back all time on both sides. I yield States Circuit Judge for the Sixth Cir- will see where we go from there on back all time on both sides. cuit. judges.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6004 CONGRESSIONAL RECORD — SENATE June 24, 2008 What I wanted to tell everyone here have been very diligent in their opposi- the Medicare Program is. There are is we wanted to finish the housing bill tion to the legislation. But, of course, two things we have to do before we go tonight. Senator DODD and Senator they understand the Senate very well. home for July 4: Housing and Medicare. SHELBY have worked very hard to craft So what we would like to do is have We do not have to do it if the Repub- a bill that doesn’t go back to the a cloture vote on the motion to proceed licans don’t want to do it—we don’t House, but when the House signs off to that, but we cannot do that unless it have to do FISA, and we don’t have to on—— is by consent. Therefore, we are going do the supplemental. We can do it the The PRESIDING OFFICER. The ma- to have to do cloture on the motion to week we get back after July 4. jority leader will suspend. The Senate proceed to FISA at some later time, There are other things we would like will come to order. and then that only allows us to proceed to do—the FAA extension for 6 months. Mr. REID. I apologize, it was hard to to the bill. Then we still have to do clo- I tried to move to that yesterday. It concentrate on what I wanted to say. ture on the bill. was objected to. We want the President The PRESIDING OFFICER. The ma- FISA is a product of the administra- and others who have worked so hard on jority leader is recognized. tion. It has passed the House, and that this global AIDS bill—we would like to Mr. REID. Senators DODD and SHEL- is fine. But we are not going to stop get that passed. I was told by Senator BY are crafting a bill that can go di- people from going home for the Fourth BIDEN today that should be worked out rectly to the President. That is what of July recess over FISA. If people do tomorrow. But we can’t do any of this we are trying to do, craft something on not want to do it, then we are not as long as people are holding us up on which there has been general agree- going to do it. It is not because we are this housing bill. ment with the counterparts of SHELBY holding it up over here, is what I am One Senator I talked to tonight who and DODD in the House, and it would go saying. It is being held up by the mi- I thought was holding up the housing immediately to the President. As you nority. bill—which is true—did not object to know, they can do things very quickly We are going to proceed, and we are our going to FISA. But others have. in the House that we cannot do here. going to stay here and finish this hous- I do not know how much more direct That is the goal with housing. ing bill. The Case-Shiller Home Price I can be. I want to pass the supple- We are going to get there eventually. Index registered the largest decline in mental. I want to pass FISA. I want to The problem is the way this is sent to home prices in that index’s history. pass the Medicare fix. I want to pass us from the House, the format in which That is more than 40 years. Consumer housing. it was sent to us, we are now under clo- confidence is at an all-time low. I do not particularly like FISA, and I ture. That cloture will run out at ap- So we are going to finish the housing am going to vote against FISA. But I proximately 5:45 tomorrow evening. At bill. It may knock a few people out of have an obligation as the majority that time there are two germane parades on July 4, or whatever—how- leader to move legislation that the ma- amendments that we know of. There ever long it takes us to do this. jority of the body wants to go forward. are a couple more that are arguably The other product we have that we The majority of Republicans and a sig- germane. We will see what is the will of want to finish before we go home is the nificant number of Democrats want the body. supplemental appropriations bill. FISA to pass. But I am not going to It is my understanding that on those Again, there has been a delicately ask people to stay here next week be- two that are arguably germane, the crafted piece of legislation that has cause there is someone over here hold- managers of the bill have worked come from the House. They worked ing up the President’s bill. I am point- something out. If there would be no ob- very hard to get the House leadership ing to the Republicans. jection, they would accept those. The to approve that, Democratic and Re- I am willing to be as reasonable as I problem is on the amendments they publican. The President of the United can. I think we showed that on the have worked on up to this time, there States has signed off on it. Is it every- housing bill when I brought up a piece has been an objection and we cannot thing that I want? Is it everything we of legislation that Senator DEMINT and proceed on any of those amendments want over here? The answer is no. But others wanted to move forward on—and that DODD and SHELBY have worked I think it is something that will pass Senator BUNNING. We did that to show out. with a very large margin over here. good faith in reporting this housing Automatically, after the 30 hours is But we cannot get to it unless people bill. But with home prices continuing up, we would vote on the germane allow us to get to it. So that, too, to fall, foreclosures continuing to rise, amendments. No one can stop us from would have to wait until we get back 8,800 foreclosures a day—a day—the adopting or rejecting those amend- after the July 4 recess. time to act is now. ments. If we cannot get permission I think that would be a shame. We I have said on this floor many times, from everyone here as of now—I know have been told that the Pentagon can the housing bill is bipartisan. DODD and of only one holdup on our being able to pay the bills until about the middle of SHELBY have done a remarkably good complete the housing legislation. If we February. Then they are out of money. job. I hope those people who are try- can’t get that Senator to sign off on I want the President and all of his ing—I don’t know what their message this, then we only have one alter- people to hear what I am saying. We is. To show the power of a Senator? I native; that is, we will file cloture on are not holding up the supplemental. acknowledge, one Senator has a lot of another arm of this housing legisla- We, the Democrats, are not holding it power. But I think they should recog- tion. We will have cloture on that 2 up. We, the Democrats, are not holding nize they are holding up a lot of stuff. legislative days later, and then we still up FISA. The PRESIDING OFFICER. The Re- have one more to do. That would mean We also have a matter that we need publican leader is recognized. we would have to be here over the to complete, and that is the Medicare Mr. MCCONNELL. Mr. President, let weekend. It was not anticipated that fix. It is the doctors fix. That is what me say on this occasion I almost en- we would do that. we call it. But, again, today the House tirely agree with the majority leader In the meantime, having done that, passed that by a 350-some-odd margin about what needs to be accomplished it will hold up our being able to do to whatever makes up 435—passed that this week. We do indeed need to do the FISA. We wanted to do a consent overwhelmingly, again, with the spon- housing bill. We do indeed need to do agreement on that tonight. I was told sorship and leadership of the House the supplemental for the wars in Iraq that would not be possible. leadership, Democrats and Repub- and Afghanistan. The FISA bill, the On that, there are people who do not licans. We are going to take that up be- Medicare fix—it is a complicated legis- like the FISA legislation. I recognize fore we go. We have to. Not only that, lative tangle which my good friend, the that the majority of the Senate does, if we do not pass that legislation before majority leader, has described, and but some people do not like it. But, in we go, we do not have the doctors fix with which he is trying to deal as we spite of that, I have found the two peo- taken care of, but that has a snow- move through the week. But my goal is ple who speak out mostly against balling effect. really the same as his, and we are that—but there are others—are Sen- What it does is all insurance compa- going to continue talking to each ator FEINGOLD and Senator DODD who nies base their reimbursement on what other, continue to sort of run the traps

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6005 and hopefully clear the traps in such a The PRESIDING OFFICER. Without The Senator from Ohio. way that we can have a highly success- objection, it is so ordered. The Senator Mr. BROWN. When you think about ful week before the recess. from Ohio is recognized. what happened to the GI bill, it was That is my goal. It is the same as his 64TH ANNIVERSARY OF THE GI BILL OF RIGHTS not only providing opportunity individ- goal. I will be working with him to see Mr. BROWN. Mr. President, on Sun- ually to millions of men and women if we can get all of those things done in day, June 22, we marked an anniver- who served, and in that sense a pay- the next few days. sary. On June 22, 1944, President Roo- ment they earned; it also created a The PRESIDING OFFICER. The ma- sevelt signed the Servicemen’s Read- huge, unprecedented, and unsurpassed jority leader. justment Act into law. I come to the sense of prosperity for the country. Mr. REID. Mr. President, I would say floor today to commemorate the 64th When all of these men and women came one final thing. There is a time when anniversary of the passage of this pro- home and were given the opportunity we need to work together. The Repub- foundly important bill, better known to go to college, regardless of their in- lican leader recognizes that; I recog- as the GI bill of rights. come or their family status or their nize that. This is the time. We need to World War II was the largest, most wealth or their positions, they were figure out a way to get from here to deadly, most terrible war in world his- given that opportunity which they there. We are going to do our very best. tory. Before it was over, Americans earned from World War II. I think our messages—we don’t need fought on the continents of Europe, In recognition of that important an- to worry about those next week. We niversary honoring the service men and can come back and do that after the Asia, and Africa, and in the Atlantic and Pacific Oceans. Over 16 million women, giving them the opportunity break. We really need to try to get this and creating the prosperity of millions done for the American people. It would American men and women, including my father, answered the call to serve. of newly educated men and women in be good for the American people if we our country, I call on Congress to could do something on one of the major Since joining this body, I have held about 100 roundtables across my home renew its commitment to our veterans crises we have faced in our country, to recognize this anniversary. and that is this housing debacle. It is State of Ohio, and through these dis- cussions I have had the opportunity It is our responsibility, our privilege, very difficult. to uphold the promises our Nation has Everyone knows that I do not throw and privilege to meet with a number of made to veterans. It is our responsi- a lot of bouquets to the administra- Ohio veterans from World War II. Get- bility and our privilege to advance our tion, but I throw them a bouquet on ting to know those remarkable men Nation’s economic goals. Passing the their willingness to work with us on and women has reaffirmed my profound updated GI bill into law is the right the supplemental because they were respect for their decision to serve our way to fulfill both responsibilities. I willing to bend a little bit here and country. Their service and their sac- urge every Member of this body to sup- there. I repeat, was it everything that rifice produced both a stronger nation port that. I wanted, that we wanted? No, but a and a safer world. The ‘‘greatest gen- The PRESIDING OFFICER. The ma- tremendous step forward. I compliment eration’’ earned this Nation’s enduring jority leader. and I applaud the President and the gratitude. FEC NOMINATIONS people who worked with us to get to They earned the benefits the GI bill the point where we are. I would be provided and used them to propel this Mr. REID. Mr. President, I am very ashamed to have to wait until after the country into a time of unprecedented pleased that I am finally able to say we Fourth of July to do this bill; that is, prosperity. The GI bill was more than a are going to restore the Federal Elec- the supplemental appropriations bill, payment to the veterans for their serv- tion Commission to a fully functioning because even though what we are going ice to our country; it was also a very six-member body. The FEC lost a functioning quorum to be voting on only deals with the GI smart, very pragmatic investment in last January when three recess ap- bill of rights and the unemployment the social fabric and economic poten- pointments to the Commission expired, compensation and those other things, tial of our Nation. The GI bill was de- leaving only two FEC commissioners. if we do not act, the war funding signed to help smooth the transition It takes four to conduct official busi- doesn’t go forward. We do not have to from military service into civilian life. ness, so there was no way to conduct vote on war funding. We have already And it did that for millions of men and business. When the FEC went dark in done that. women who served. It paid for vet- As I said, I appreciate the work we erans’ tuition, books, fees, a monthly January, it meant our Nation’s cam- have been able to accomplish with the stipend, and other training costs. It paign finance watchdog was off the administration on this supplemental also provided veterans low-interest beat. It also meant that important pro- appropriations bill. Even though, as I mortgages and unemployment insur- visions of the Democrats’ Honest Lead- have indicated, I am not going to vote ance. ership and Open Government Act would for the FISA bill, there are people who The GI bill provided veterans in Ohio not be implemented. Most notably, the building of this have worked on this FISA matter for 3 and the rest of the country the oppor- Federal Election Commission is so very months or more. Again, the adminis- tunity to realize the American dream. important. I would be remiss to not say tration worked with them. Did they, on The number of degrees awarded by col- that the Honest Leadership and Open the FISA bill, move enough to make leges and universities more than dou- Government Act passed on a bipartisan me vote for the bill? The answer is no. bled between 1940, the last full year be- basis. For example, the bundling rules But they moved enough to get a lot of fore the war, and 1950. we worked so hard to enact into law people to vote for this bill, and I appre- Veterans were responsible for buying were put into limbo. But now with the ciate that also. 20 percent of all new homes after the But we could wind up with all this war. The investment in the middle FEC within a few minutes going to be good work being put off. It will be very class drove the development and eco- reestablished, that will not be the case. anticlimactic, the accomplishments nomic expansion of an entire genera- Since even before the Commission that we have made. tion. lost its quorum, I began offering my I suggest the absence of a quorum. I yield to the Senator from Montana. Republican colleagues votes on the The PRESIDING OFFICER. The The PRESIDING OFFICER. The Sen- pending FEC nominees, but those ef- clerk will call the roll. ator from Montana. forts were rejected. The bill clerk proceeded to call the Mr. BAUCUS. Mr. President, I yield Democrats have been united in their roll. my hour post cloture to Senator DODD. desire to have the FEC restored to full Mr. BROWN. Mr. President, I ask The PRESIDING OFFICER. The Sen- power. I am pleased we can finally unanimous consent the order for the ator from Rhode Island. come together with our Republican col- quorum call be rescinded. Mr. REED. I too yield my postcloture leagues tonight on the nominations. The PRESIDING OFFICER. Without hour to Senator DODD. I would be remiss if I did not speak objection, it is so ordered. The PRESIDING OFFICER. Senators very briefly about my two Democratic Mr. BROWN. I ask unanimous con- have that right. The time is yielded to nominees, Steven Walther and Cynthia sent to speak as in morning business. Senator DODD. Bauerly, both outstanding lawyers. I

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6006 CONGRESSIONAL RECORD — SENATE June 24, 2008 can tell you even more than that. They tion, with no further motions in order, The majority leader. are outstanding people and public serv- and the Senate then resume legislative f ants. Steven Walther is from Nevada. session, with no intervening action or He is one of those people who is in pub- debate. MEASURES READ THE FIRST lic service because he wants to do The PRESIDING OFFICER. Without TIME—S. 3186 AND H.R. 6331 something to help his country. He has objection, it is so ordered. Mr. REID. Mr. President, it is my un- been very active for many years in The clerk will report the first nomi- derstanding there are two bills at the State bar activities, very involved in nation. desk. I ask for their first reading en the ABA activities, and he gave up a The legislative clerk read the nomi- bloc. lucrative law practice to come here. He nation of Steven T. Walther, of Nevada, The PRESIDING OFFICER. The was a senior partner in a major law to be a member of the Federal Election clerk will report the bills by title. firm in Nevada. He did this for the Commission. The assistant legislative clerk read right reason. The PRESIDING OFFICER. The as follows. Both Cynthia and Steven are patient question is, Will the Senate advise and A bill (S. 3186) to provide funding for the individuals. Steve Walther was first consent to the nomination of Steven T. Low-Income Home Energy Assistance Pro- recommended to the President by me Walther, of Nevada, to be a member of gram. for this position on July 6, 2005. That is the Federal Election Commission? A bill (H.R. 6331) to amend titles XVIII and almost 3 years ago. The nomination was confirmed. XIX of the Social Security Act to extend ex- He waited almost 3 years for the full The PRESIDING OFFICER. The piring provisions under the Medicare Pro- Senate to confirm him. clerk will report the next nomination. gram, to improve beneficiary access to pre- The legislative clerk read the nomi- ventive and mental health services, to en- I recommended Ms. Bauerly to the hance low-income benefit programs, and to President in July 2007. She has waited nation of Cynthia L. Bauerly, of Min- maintain access to care in rural areas, in- for confirmation over 11 months. nesota, to be a member of the Federal cluding pharmacy access, and for other pur- I cannot say enough nice things Election Commission. poses. about Steven Walther. I want everyone The PRESIDING OFFICER. The Mr. REID. Mr. President, I am going within the sound of my voice to under- question is, Will the Senate advise and to object to my own request en bloc, stand what a man of integrity he is. He consent to the nomination of Cynthia but prior to the Chair accepting my ob- is not even a Democrat. He is an Inde- L. Bauerly, of Minnesota, to be a mem- jection, I want everyone to know that pendent. But I have such confidence in ber of the Federal Election Commis- S. 3186 is the Warm in Winter and Cool his fairness that it did not matter what sion? in Summer Act, which is LIHEAP. his party affiliation is. He is a fine in- The nomination was confirmed. That is an important piece of legisla- dividual, has a wonderful family, a son The PRESIDING OFFICER. The tion. We are going to work very hard to Wyatt who is getting used to the big clerk will report the next nomination. figure out a way to do that within the city of Washington, DC. The legislative clerk read the nomi- next 30 days. I would also say that H.R. I so appreciate Steve waiting since nation of Caroline C. Hunter, of Flor- 6331, the Medicare Improvements for January with basically no job. He has ida, to be a member of the Federal Patients and Providers Act, is a bill had no paycheck. There has been no Election Commission. that overwhelmingly passed the House FEC. Some people dropped off because The PRESIDING OFFICER. The of Representatives to take care of the they couldn’t afford to not have a job. question is, Will the Senate advise and so-called doctors’ fix. But fortunately, for the FEC and our consent to the nomination of Caroline I now ask for their second reading en country, Steven Walther could afford C. Hunter, of Florida, to be a member bloc, and I object to my own request en to be unemployed for 6 months. of the Federal Election Commission? bloc. Again, I want the record spread with The nomination was confirmed. The PRESIDING OFFICER. Objec- The PRESIDING OFFICER. The my appreciation for Steven Walther’s tion is heard. clerk will report the next nomination. public service and his friendship to me. The bills will be read for the second The legislative clerk read the nomi- These two individuals, Bauerly and time on the next legislative day. nation of Donald F. McGahn, of the Walther, have shown exceptional pa- Mr. REID. I suggest the absence of a District of Columbia, to be a member tience which will be an asset to them quorum. of the Federal Election Commission. in their work as Commissioners. I wish The PRESIDING OFFICER. The The PRESIDING OFFICER. The them and the FEC very well. clerk will call the roll. question is, Will the Senate advise and f The legislative clerk proceeded to consent to the nomination of Donald F. call the roll. EXECUTIVE SESSION McGahn, of the District of Columbia, Mr. DODD. Mr. President, I ask unan- to be a member of the Federal Election imous consent that the order for the Commission? NOMINATIONS OF STEVEN T. quorum call be rescinded. The nomination was confirmed. WALTHER, CYNTHIA L. The PRESIDING OFFICER. Without The PRESIDING OFFICER. The BAUERLY, CAROLINE C. HUNTER, objection, it is so ordered. clerk will report the last nomination. DONALD F. McGAHN, AND MAT- The legislative clerk read the nomi- f THEW S. PETERSEN TO BE MEM- nation of Matthew S. Petersen, of BERS OF THE FEDERAL ELEC- MORNING BUSINESS Utah, to be a member of the Federal TION COMMISSION Election Commission. Mr. DODD. Mr. President, I ask unan- Mr. REID. Mr. President, I ask unan- The PRESIDING OFFICER. The imous consent that the Senate proceed imous consent the Senate proceed to question is, Will the Senate advise and to a period of morning business, with executive session to consider the fol- consent to the nomination of Matthew Senators permitted to speak for up to lowing nominations: Calendar Nos. 306, S. Petersen, of Utah, to be a member of 10 minutes each, with the time to 624, 625, and 626; that the Rules Com- the Federal Election Commission? count postcloture. mittee be discharged from further con- The nomination was confirmed. The PRESIDING OFFICER. Is there sideration of PN 1765, the nomination The PRESIDING OFFICER. Under objection? of Matthew Petersen; that the Senate the previous order, the President will Without objection, it is so ordered. proceed en bloc to consideration of the be immediately notified of the Senate’s f nominations; that the Senate then pro- action. FISA AMENDMENTS ACT OF 2008 ceed to vote on confirmation of the f nominations in the order listed; that Mr. KYL. Mr. President, I rise today upon confirmation of the nominations, LEGISLATIVE SESSION to speak in favor of the passage of the the motions to reconsider be laid on The PRESIDING OFFICER. Under FISA Amendments Act of 2008. This is the table en bloc, the President be im- the previous order, the Senate will re- a law that our Nation needs. The most mediately notified of the Senate’s ac- sume legislative session. important change made by the pending

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6007 bill is to allow immediate and real- cations are procedurally proper and are President’s power to monitor foreign time surveillance of overseas targets as accompanied by reasonable procedures enemies of the United States without a soon as they become apparent in the to limit potential impact on U.S. per- warrant, and that to the extent that course of a foreign-intelligence inves- sons. Thus, courts could block any ob- FISA purports to do so, it is unconsti- tigation. FISA had never been intended viously bad faith or improper use of tutional. The Constitution’s framers to block surveillance of such targets, foreign surveillance that might affect vested the executive with primary re- but a 2007 FISA court decision inter- U.S. persons, but courts will not be sec- sponsibility and authority to protect preted FISA to apply to even foreign- ond-guessing intelligence judgments, the United States from foreign attack. to-foreign communications that are and should not be imposing procedures Section 102 repeats FISA’s ‘‘exclusive- routed through the United States. Be- or making demands that will consume means’’ claims, yet provides in the cause of changes in technology and intelligence resources and divert same section of the bill, at subsection U.S. dominance in the telecommuni- agents from their primary mission. (c), an amendment to the immunity cations industry, even phone calls from This limited role should also allow the provisions for electronic communica- Afghanistan to Pakistan could be rout- FISA Court to decide these cases very tions service providers in 18 U.S.C. ed through the United States. As a re- quickly, minimizing the burden on 2511(2) to require that certifications sult, a FISA order could be required be- both the intelligence community and conferring immunity identify the ‘‘spe- fore communications between two sus- on those judges who are assigned to the cific statutory provision’’ that allows pected al-Qaida members outside the FISA Court. the surveillance, but only if the certifi- United States could be monitored. I should also note that this bill con- cation ‘‘for assistance to obtain foreign This system made overseas surveil- tains important provisions that will intelligence information is based on lance a practical impossibility in many allow all of the lawsuits against tele- statutory authority.’’ This provision, cases and caused valuable intelligence communications companies to be dis- in the same section making claims of to be lost. Our best tool against al- missed upon certification by the Attor- exclusive means, acknowledges that Qaida and other terrorists is intel- ney General. Foreign intelligence sur- not all surveillance is based on statu- ligence; it is absolutely critical that we veillance is a matter that our Constitu- tory authority, but may, instead, be gather whatever intelligence is avail- tion entrusts to the executive in con- based on the executive’s constitutional able. sultation with Congress, not to private authority. If this nation again finds In the summer of 2007, Congress en- litigants and the judiciary. These law- itself under attack as it did on Sep- acted a 6-month restoration of U.S. suits all should have been dismissed tember 11, those in charge of our secu- agents’ surveillance capabilities with immediately; this bill will finally rity should not conclude from the ex- the Protect America Act. Today—over produce that result. Title II is a crit- clusive-means language in section 102 4 months after the PAA expired—Con- ical part of this bill that should have that they may not act in any constitu- gress finally acts to extend this sur- been enacted long ago. Frankly, I find tionally appropriate way to protect 1 it odd that much of the early criticism veillance authority for another 4 ⁄2 this country. of this bill has been directed at this of years. I am heartened to note that the Finally, the ‘‘sunset’’ provision in all provisions. Those who are opposed Attorney General and the Director of section 403, which will repeal the au- to the President’s efforts to monitor National Intelligence both strongly thorities in the bill at the end of 2012, al-Qaida’s communications after 9/11 support this bill and believe that it is problematic. As the Attorney Gen- should take their argument to the provides them with the tools they need eral and the Director of National Intel- President, not to the private compa- to gather intelligence about America’s ligence have said: ‘‘[t]he Intelligence nies that patriotically complied with foreign enemies. Community operates more effectively government requests to help this coun- Critically, this bill allows immediate when the rules governing our intel- try. Monitoring of al-Qaida’s electronic and real-time surveillance of foreign ligence professionals’ ability to track targets located overseas whenever the communications cannot be conducted without the cooperation of private our enemies are firmly established.’’ Justice Department and the intel- The need to modernize FISA has been ligence community find that, without companies. The general rule that pri- vate citizens acting in good faith to as- extensively debated since 2006, includ- immediate surveillance, ‘‘intelligence ing numerous hearings, briefings, and important to the national security of sist law enforcement are immune from suit has deep roots and serves impor- floor debates that ‘‘involved the discus- the United States may be lost or not sion in open settings of extraordinary timely acquired and time does not per- tant public policies. As Justice Cardozo noted in the 1928 case of Babbington v. information dealing with sensitive in- mit the issuance’’ of a court order prior telligence operations.’’ As the Attor- to such surveillance. This provision, in Yellow Taxi Corporation, the rule en- sures that ‘‘the citizenry may be called ney General and the Director of Na- a new section 702(c)(2) of FISA, ad- tional Intelligence have pointed out, dresses the exact problem that intel- upon to enforce the justice of the State, not faintly and with lagging ‘‘[e]very time we repeat this process it ligence agencies faced in 2007. Congress risks exposing our intelligence sources expects our intelligence agents to use steps, but honestly and bravely and with whatever implements and facili- and methods to our adversaries.’’ every tool that is technologically Despite these flaws, the bill before us available to monitor al-Qaida and ties are convenient and at hand.’’ Finally, I should note that this bill’s is needed. It is very similar to the bill those associated with it. With this re- that the Senate passed earlier this form, we make such surveillance pos- so-called ‘‘exclusive means’’ provision, like the similar provision in the 1978 Congress and on which the House re- sible. fused to act. It has passed the House by I also think that it is important that, FISA, is hortatory verbiage that obvi- ously yields the Constitutional author- a 3-to-1 margin, and I expect that we in new section 702(i), the FISA Amend- will see a similar margin in the Senate, ments Act allows pending surveillance ity of the President. The FISA Court of Review, in its 2002 decision in In re as the bill already appears to have certifications to be immediately gained the support of some Senators amended to allow surveillance of new Sealed Cases, made the point: The [Fourth Circuit in the Truong case], as who opposed last year’s bill. I look for- targets related to or growing out of ward to the passage of this bill. previous surveillance. This should help did all the other courts to have decided the issue, held that the President did have inher- to reduce the paperwork burden of f ent authority to conduct warrantless FISA, allowing our agents to focus searches to obtain foreign intelligence infor- WORLD REFUGEE DAY more time on monitoring the enemy mation.... We take for granted that the and less on filling out forms. Also, the President does have that authority and, as- Mr. LEVIN. Mr. President, I would judicial review authorized by this sec- suming that is so, FISA could not encroach like to take a moment to talk about tion is appropriately limited and recog- on the President’s constitutional power. World Refugee Day, which we recently nizes the intelligence community’s pri- Indeed, every administration since recognized, and offer some observa- mary role in deciding what foreign tar- FISA was enacted—including the tions on the millions of refugees gets to monitor. The court’s role is Carter administration—has concluded around the world and our efforts to aid limited to reviewing whether certifi- that Congress cannot take away the them.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6008 CONGRESSIONAL RECORD — SENATE June 24, 2008 Refugees find themselves in the im- There are many challenges even for ranged for a meeting of local patriots mensely difficult position of being un- those very few refugees who have been at Sabin’s Tavern, in what is now Prov- able to return to their homeland, yet granted asylum or citizenship in wel- idence’s East Side, later that day. At stuck without any place else to turn. coming countries, including cultural the meeting, the assembled group of They are often the targets of persecu- adjustments, difficulties in uniting Rhode Islanders decided that action tion due to their race, religion, polit- separated families, obtaining work must be taken. Gaspee was a symbol of ical associations, or other traits that skills, and adapting to an unfamiliar their oppression, and she was help- should be worthy of respect rather climate. In Michigan, numerous volun- lessly stranded in Pawtuxet Cove. In than a threat on one’s life. The theme teers, community organizations, short, the opportunity was too good to of this year’s World Refugee Day is churches, and businesses have come to- pass up. ‘‘protection,’’ with a particular focus gether to assist refugees who come to As night fell on June 9, 1772, there on shining a bright light on the plight our state. On this World Refugee Day, was no moonlight on the waters of of refugees around the world, so that I offer my praise and appreciation for Pawtuxet Cove. The Gaspee lay silent the world community takes action to the organizations and individuals— on the sand bar at Namquid Point. But ensure their safety. both those local to Michigan and those just a few miles away in Providence, a While refugees deserving of our at- international in scope—who are com- team of about 60 men led by John tention exist in many places around mitted to helping refugees find some Brown and Abraham Whipple was pre- the world, one area of significant con- stability and normalcy, and I urge my paring for an assault that would soon cern is the refugee situation in Iraq. colleagues to consider what we can do break that silence. They armed them- The U.N. estimates that over 4 million to help the millions who are suffering selves, boarded longboats, and set Iraqis have been displaced by violence, right now. Individuals who wish to help course for the Gaspee. with 1.5 million living in Syria and can begin by visiting the U.N. Refugee After paddling the longboats 6 miles over 1 million in Jordan, Iran, Egypt, down the dark waters of Narragansett Lebanon, Yemen and Turkey. It is a Agency website at http:// Bay, the men reached the Gaspee and staggering humanitarian crisis. As part www.unhcr.org. surrounded it. Brown called out and de- of the National Defense Authorization f manded that Lieutenant Dudingston Act for Fiscal Year 2008, Congress GASPEE DAY surrender his vessel. Dudingston re- adopted the Iraqi Refugee Crisis Act, Mr. WHITEHOUSE. Mr. President, fused and instead ordered his men to which I sponsored along with a number every student of American history fire upon anyone who attempted to of my colleagues. This legislation cre- knows the story of the Boston Tea ates a process for Iraqis who have of- board the Gaspee. Party, the men who crept onto British True to form, these brave Rhode Is- fered assistance to our forces in Iraq to ships moored in Boston Harbor on De- landers seized the challenge. They apply directly to the United States for cember 16, 1773, to destroy shipments of forced their way aboard the Gaspee, and refugee status. It is clear that the tea that the English sought to tax. a struggle ensued. In the melee Lieu- United States has a special obligation They were patriots who yearned for lib- to help this population. The largest tenant Dudingston was shot in the arm erty, for ‘‘no taxation without rep- community of Iraqi Christians in the by a musket ball: Rhode Islanders had resentation,’’ and who stepped into his- world outside of Iraq is in Michigan, drawn the first blood of the American which makes this issue particularly tory. Revolution, right there in Pawtuxet Only a few miles south and more significant for me and my constituents. Cove. The stark reality is that Iraq is just than a year earlier, however, another Brown and Whipple’s men took con- one small part of the tragic refugee sit- group of men had engaged in another trol of the ship from the British crew uation around the world. Thon Chol, act of patriotism—yet these men are and transported the captive English- who was one of the ‘‘Lost Boys of largely forgotten outside my home men safely to shore. They then re- Sudan,’’ is currently serving as an in- State of Rhode Island. Every year, in turned to the abandoned Gaspee for one tern in my Washington, DC, office. He their memory, Rhode Islanders cele- final act of defiance to the crown. The recently graduated with a master’s de- brate Gaspee Day. This is their story. men set fire to the Gaspee and watched gree in social work from Western During the buildup to the Revolu- as its powder magazine exploded, leav- Michigan University. His success is tionary War, as tensions between Eng- ing the whole ship burning down to the hard earned, but his story underscores land and its American colonies grew in- water line. The place was eventually the point that refugees deserve our at- creasingly strained, King George III renamed Gaspee Point. tention as well as our aid and protec- stationed the HMS Gaspee, under the If that is not an act that defines the tion. command of LT William Dudingston, American struggle for independence, Thon was forced to flee his hometown in the waters off Rhode Island. Its mis- then I don’t know what does. at age 6. While attempting to reach sion was to search incoming ships for Since that night in June when the Ethiopia he was one of thousands who smuggled goods and enforce the pay- Gaspee burned, Rhode Islanders have faced dehydration, famine, and attacks ment of taxes. marked the event with celebration. from wild animals and Government sol- On June 9, 1772—16 months before the This year, as I do every year, I had the diers alike. He lost most of his family, tea party in Boston—the sailing vessel good fortune to march in the annual witnessing many deaths himself. He Hannah was traveling from Newport to Gaspee Days parade in Warwick, RI. reached a refugee camp in 1987, was Providence when it was intercepted by And every year, I think about what it forced back to Sudan due to the civil the Gaspee and ordered to stop to allow must have felt like to be among the 60 war in Ethiopia in 1991, and then even- a search. On board the Hannah, Cap- men hauling on those longboat oars, as tually traveled to live in a refugee tain Benjamin Lindsey refused and they paddled toward destiny. camp in Kenya for 8 years before being continued on his course, despite warn- While it is doubtful that many of one of less than 4,000 Lost Boys per- ing shots fired by the Gaspee. The those patriots could fully grasp the mitted to settle in the United States smaller and more maneuverable Han- place they were about to take in his- and moving to Grand Rapids, MI. nah then raced up Narragansett Bay tory, there must have been a feeling of Many are now American citizens. and into the safety of Pawtuxet Cove. deep satisfaction known only to those Thon’s remarkable educational The hulking Gaspee tried to chase the who, in the face of tyranny, have stood achievements are in line with others Hannah but ran aground in the shallow up for home, for family, and for coun- who were in his situation; many have waters of Namquid Point. The Gaspee try. It is the same feeling that must sought degrees beyond high school, was stuck, awaiting the higher tides of have accompanied the soldiers of Gen- ranging from community college to the following day. eral Washington as they crossed the one student who is pursuing a master’s Meanwhile, Captain Lindsey pro- Delaware, the delegates of the Conti- degree at Yale University. Thon and ceeded on his course, and upon arriving nental Congress as they signed the others have committed themselves to in Providence he met with John Brown, Declaration of Independence, and in- returning to Sudan to teach demo- a community leader who later founded deed those men in Boston who emptied cratic values and religious freedom. Brown University. The two men ar- a shipment of tea into the ocean. I

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6009 hope that the brave Rhode Islanders Do the math yourself. This has to be fixed. states. Additionally, my cost for food for my that gave us Gaspee Day will be re- A few things that bother me the most: family has gone up significantly because of membered with those other giants of Hearing that the gas companies have made the increase in the price of corn. So why, oh ‘‘record profits’’ again while I’m paying for the Revolution, and given their due why, do you in the government PAY the Mid- it; the price of a barrel of oil goes up in the west ethanol producers $0.51/gal to pollute place in our Nation’s history. morning then by noon the same day the the water and drive up the cost of food f price of gas goes up even though that gas has throughout the country, while still using as been in the underground tank for days; the IDAHOANS SPEAK OUT ON HIGH much oil for tractors in the fields, fuel price of a barrel of oil goes down in the trucks to transport the ethanol (it can’t go ENERGY PRICES morning but the gas prices stay the same in pipelines), fertilizer, fuel the ethanol Mr. CRAPO. Mr. President, earlier until they can go up again later; relying on plants, and other energy costs for something this week, I asked Idahoans to share foreign oil. That is relying on a foreign peo- that only has about 68% of the energy con- with me how high energy prices are af- ple who are not necessarily our friends or tent of gasoline? You in the government fecting their lives, and they responded care about us; we have oil under our own should get out of the way of the energy in- ground but can’t get it? Why? dustry. They were doing fine before govern- by the hundreds. The stories, num- Here’s a question. Since when is not having bering over 1,000, are heartbreaking ment got involved. Please let the energy sec- oil not a national security issue? tor drill for oil, develop coal and oil shale and touching. To respect their efforts, AARON, Caldwell. gasification technologies, mine the off-shore I am submitting every e-mail sent to methane deposits, and set as a goal that nu- me through energy_prices@crapo SENATOR: Nightly, I listen to a number of clear power plants will be licensed as fast as .senate.gov to the CONGRESSIONAL pundits and politicos debate the ‘‘solutions’’ they can be built. Government reviews to our energy problems. One of the more ri- RECORD. This is not an issue that will should be minimal and should help instead of diculous ones is mandating people switch to hinder our progress. Wind power should be be easily resolved, but it is one that de- higher fuel efficiency automobiles (i.e., buy a serves immediate and serious atten- developed in areas which have minimal im- new car). As a small business owner, our pact (look at the INL site—huge area where tion, and Idahoans deserve to be heard. health insurance premiums have just gone Their stories not only detail their the Idaho wind blows all the time). Small up (again), the minimum wage has risen, gro- solar installations could easily be developed struggles to meet everyday expenses, cery costs are rising and our 401k is dimin- as the solar energy industry grows. The very but also have suggestions and rec- ishing. The very thought of anyone in Con- best thing that government could do is to ommendations as to what Congress can gress telling me I have to replace my ‘‘paid GET OUT OF THE WAY!! Maybe a few in- do now to tackle this problem and find for’’ cars, and take out a loan to buy a new sects and frogs will die as a result, but it is solutions that last beyond today. I ask (more energy efficient) car is ludicrous!! Gas- better than running out of energy and then oline would have to be over $10 a gallon to trying to figure out what to do in the dark unanimous consent to have today’s let- make economic sense to my family, in lieu DARYL. ters printed in the RECORD. of absorbing a car payment. There being no objection, the mate- I support drilling offshore and in ANWAR, SENATOR CRAPO: I wanted to briefly share rial was ordered to be printed in the as well as shale oil extraction. I think it’s some of the impacts the high fuel prices are time that the world’s most technologically- RECORD as follows: having on my family. I drive 32 miles one advanced nation illustrate to the world the TO WHOM IT MAY CONCERN: The rising cost way to work. My car gets about 25 miles per most technologically advanced means of ex- of fuel and food are a big concern for us that gallon. So it is costing me almost $10 a day tracting energy. I’m deeply offended that the live in Northern Idaho. We live in a lightly just to go to work. My husband is a farmer. United States government, who can’t profit- populated area and the trips to ‘‘town’’ are We normally purchase 500 gallons of fuel at ably manage Amtrak, the US Postal Service, right at 100 miles round trip. We are on So- a time for the farm. We have not been finan- or even its own Senate cafeteria, has the au- cial Security and Social Security doesn’t cially able to buy it this spring/summer. He dacity to pretend to convince me that they allow a lot of flexibility in what a person can has cut back on the water of the crop be- know more about ‘‘safe & sound’’ energy ex- spend. Basic items like home heating and cause the power bills are so high, which will traction than the companies that are profes- food prices have made huge changes in the most likely affect the yield. Fertilizer is sionals in this endeavor. I hear people crying way we live. skyrocketing. Diesel is ridiculous. Our entire about how drilling in the US might ‘‘spoil Recently we had a death in the family in food supply is going to be affected as other natural resources’’! I’d be willing to wager another state (Arizona). After figuring the farmers face these same problems. We are that if we weren’t dependent upon Middle cost of both driving and flying we deter- not buying any extras anymore. Groceries Eastern oil, we could have, most likely, mined it would be too much of an expense for have increased, so non-essentials like chips, saved about 4,000 US Servicemen and wom- us to go. We sent our love and regards—but candy, boxed cereals, etc. are out. We are not en’s lives. That cost of natural resource is in- that doesn’t take the place of a hug. The eating out like we used to either. We nor- finitely greater than a handful of caribou! cost of heating our home with heating oil mally ate out once or twice a week. For the Respectfully, has gone from under a dollar a gallon to 3.97 past 18 years, I have planted beautiful potted DANIEL, Boise. at the last tank fill up. That is a huge in- flowers for the entrance of our home, usually crease for a basic need. Many are worse off spending around $300. I will not be planting then we are and have to choose between My mother-in-law (80 years old) had emer- gency surgery in Grand Junction, Colorado. flowers like that this year. We are not buy- being warm and eating. Something must be ing any new clothes for summer. We’ll have done. With increased fuel prices, the air fare to fly my wife to Grand Junction ONE WAY was al- to make do. Every day we see our government reaching We live in an area where several years ago out with aid to other countries. . . .what most $900. I drove separately to Grand Junc- tion so our car would be available for our BP Petroleum came through and indicated about those right here in America? I expect that studies show fuel resources are avail- the stimulus payment most people received use. The total mileage over a week’s time was in excess of 1,500 miles and, at over $4.00/ able, however, nothing that we know of is went to catch up on a couple of bills—no one being done to proceed with any exploration could afford the luxury of just frivolously gal, our fuel bill (23 miles/gal) exceeded $260.00. I’d like to buy a more fuel-efficient or development. spending it. We need everyday, down-to- You would think that a country as great as earth practical help so basic needs can be car, but my down payment was significantly reduced! ours with as many resources as we have met. would not allow themselves to be held hos- Please stop this ever-increasing price on In eastern Idaho, the cost to go camping, tage to foreign fuel resources!!!! We would fuel and food. fishing, or hunting will average from 50 appreciate any help you can send our way. Thank you. . . .sincerely, miles to 150 miles or more round trip. A Sincerely, MR. AND MRS. RAY, Priest River. weekend outing has increased in cost from $5.00 to $16.00 for someone with a small SUV MARIE. I normally drive our 1999 Chevy Suburban. to $7.50–$22.50 when using the standard pick- It gets 14 MPG on average. With gas prices up and pulling a boat or trailer. This is based PROPOSITION FUEL REFUND AND REFORM over $4.00 a gallon I just use this simple rule on $4.00/gal fuel compared to $2.50/gal a year Item 1: There shall be a $4.0 billion one- of thumb to calculate how much a trip on ago. Summertime costs can easily be $100 per time charge imposed against each Refinery the interstate costs me. It’s simple. At nor- month more for fuel in this area just for sim- listed in Item 1 that shall be refunded to all mal interstate speed of 65 MPH, it costs me ple recreation (long distances and not much California drivers with a valid California $20.00 an hour to drive. 65 divided by 14 = 4.65 else to do). Add a few trips to the store for drivers license and age 18 and over. This x $4.10 a gallon = $19.00 not including wear supplies and the costs can be 50% higher. We Charge shall be apply to Exxon Mobil, BP and tear. So $20.00 an hour is my rule of can’t afford these extra costs. (includes ARCO), Texaco, Chevron, Conoco thumb. Some think the answer is E–85 Ethanol Phillips, Shell, and Citgo. Each Refinery Now if I lived 1 hour from work and I made from corn, but that does NOT save signifi- Charged the refund shall pay their amount $12.50 an hour, I would have to work 3.2 hours cant petroleum products and creates addi- to the California State Treasury for dis- more to get my 8 hours pay. tional water pollution in corn-growing bursement within 60 days of the passage of

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6010 CONGRESSIONAL RECORD — SENATE June 24, 2008 this Proposition. The state shall disburse creases. Most people are just paying more be- homes make cars impossible. We have to this money within 150 days of the passage of cause there is no alternative. This means have 4 wheel drives and chains just to get this Proposition. There shall be a daily fine that bankruptcy, unemployment, and other out of our driveways and to the grocery of $10 million a day charged to any Refinery severe financial strains will be staved off store! There is no mass transit and car- that has not paid its share of the refund in until they cannot be held off anymore, and pooling wouldn’t be feasible. the allotted time payable to the State of then it will collapse. The danger signs of en- Congress seems to be at a loss as to what California general fund. ergy dependence are so dire, yet congress to do and if something doesn’t happen soon Item 2: All Refineries shall sell off all fuel does not make any moves. I think the future we will be facing a major depression! The retail establishments within one year of the is bleak for individuals on the edge, and a Speculators are driving prices even higher passage of this proposition. No Refinery or large ‘‘correction’’ is due. I also would not be and the oil producing nations are unwilling fuel wholesaler shall be allowed to own or surprised to see your constituents come after to cut their profits. Most of us feel that Con- control any fuel retail outlets with the pas- congress with pitchforks and torches, but I gress and the Senate are in bed with the oil sage of this proposition. The price of these have doubts that congress will act. companies. establishments must fall within the current AARON, Coeur d’Alene. Something has to be done to open oil and market value within its area. Violation of gas production in this Country. We have this item will result in a daily fine of 10 mil- DEAR SENATOR CRAPO: Today, we had to Anwar, the Bakkan oil in the North Central lion dollars per day payable to the State of make the difficult choice of putting fuel in States and off shore oil pockets. It is time California general fund. the car or grocery shopping. You see, we that our government look out for the Amer- Item 3: Any present and future contracts needed milk, bread, and some other staples ican People and stop bucking under to the between fuel retail outlets shall be hereby and we needed a tank of gas. Each purchase Environmentalists. banned and null and void. Any fuel retail es- was going to amount to around $80, and we Something has to be done quickly. Long- tablishment shall be able to purchase fuel had to choose one or the other. So we gassed term renewable energy sources will take dec- from any Refinery or fuel wholesaler he or up the car and decided to try to make it ades, by that time all the small businesses she chooses without restriction. Also any re- until payday with the food that we had at like mine will be forced to either close or file tail outlet shall be able to sell multiple home. bankruptcy. Currently my shop is in jeop- brands of fuel without restriction. Violation I have never felt so sick or downtrodden at ardy. I am behind on all my bills and my of this item by any Refinery or fuel whole- the one or the other kind of option we faced credit has been ruined so I can’t even get a saler will result in a daily fine of ten million today. I went home and also deduced through loan to get me through the crisis. If our gov- dollars per day payable to the State of Cali- some back bills that our housing heating and ernmental body can’t find a solution now, fornia general fund until corrected. cooling has doubled since 2002. In only six then expect to see small and medium busi- Item 4: Each Refinery selling fuel in Cali- years our gas has gone from $67 a month to nesses go under. We are the backbone of this fornia shall maintain a stored reserve of fuel $112 and our electric from $87 to $167, despite land and we need some backbone leader- within the borders of California equal to 1.5 my keeping our heating at 65 day and 60 ship!!!! times the monthly volume of fuel it sells night in the winter and our cooling at 75 in Sincerely within the State of California. This require- the summer. We are hard pressed to pay DONNA, Salmon. ment shall be enforced beginning 1 year from those bills in addition to gas. This spiral has the passage of this proposition by the State got to stop or I do not know how we are DEAR SENATOR CRAPO: I would be more of California. Violation of this item by any going to manage. than happy to share our story of high energy Refinery or fuel wholesaler will result in a Sincerely, prices and the toll it is taking on our family daily fine of 10 million dollars per day pay- D., Boise. and our finances. My husband and I find it able to the State of California general fund outrageous that environmental groups can until corrected. DEAR SENATOR CRAPO: I commute 52 miles have SO much pull in this country to put Item 5: Beginning 10 days after the passage round trip daily to Rexburg from Idaho bans on the construction of oil refineries, of this Proposition and for a period of 5 Falls. Since January I have been car pooling liquid coal plants and drilling for our own years, wholesale prices of gasoline and diesel with a co-worker in my department and we domestic petroleum. At this point, we are de- per gallon sold to retail establishments in are encouraging our employer to let us tele- pendant on this abundant and efficient fuel. the State of California shall not exceed 1.2 commute at least one day a week. My family There is no other alternative right now to percent of the average price of oil per barrel has declared two days a week as ‘‘no drive take the place of petroleum—at least noth- on the world market. Violation of this item days’’ where we don’t even turn the key in ing that is practical, efficient and most im- will result in a daily fine of 10 million dol- either of our cars. We save our errands and portantly—affordable!!! To ignore our vast lars per day payable to the State of Cali- schedule appointments for other days of the reserves of coal and oil in this country to fornia general fund. week. This basic routine is helping, but not leave us dependent on Middle East Fuel is lu- Item 6: Beginning 10 days after the passage enough. dicrous. There is wonderful technology out of this Proposition and for a period of 5 years We recently had a daughter in the hospital there that can turn coal into liquid fuel that retail prices of gasoline and diesel per gallon in Idaho Falls for seven and a half weeks, burns cleaner than gasoline! But because sold in the State of California shall not ex- and for another four and a half weeks at the your average environmentalist does not un- ceed 2.0 percent of the average price of oil University of Utah Medical Center. Those ex- derstand how this technology works—they per barrel on the world market. Violation of penses were of course offset by health insur- are against it because traditionally burnt this item will result in a daily fine of 10 ance, although out of pocket expenses still coal is filthy. They would rather grow food thousand dollars per day payable to the amounted to thousands of dollars. However crops to fill their tanks up while people and State of California general fund. during those 12 weeks we had no choice but animals starve. Item 7: The people of California have deter- to drive to the hospital daily while fuel We live in Salmon, Idaho. My husband is a mined by the passing of this proposition that prices were skyrocketing. This created a sud- Real Estate Appraiser who frequently travels the Refineries listed in item one meet the den and unexpected burden on our family almost 600 miles in a week simply to reach definition of a monoply because of the way budget. With the added cost of fuel fore- the properties to do his work. The cost of liv- fuel prices have risen everywhere in the casted to stay high into the future, our fi- ing necessitates at this point that he take state of California in unison in the past 4 nancial recovery is nowhere in sight. EVERY SINGLE job that crosses his desk— years, because these refineries dominate the Thanks for listening. so frequently driving round-trip to Arco and market, and by the documented huge in- BOB AND BEVERLY, Idaho Falls. back in a day or over to Missoula, Montana creased, sustained and increasing profits and back in a day is a normal thing. BUT— made by these oil refineries. The people of SENATOR CRAPO: I own a small retail shop the drawback is that right now we have an California request the United States depart- in Salmon, Idaho. Retailers in this area de- outstanding balance on our Chevron card ment of Justice apply antitrust legal action pend on the local economy and on Tourism that is over $1,400 and over limit—so we can’t against the refineries listed in item 1. to make ends. Tourists provide 60% of our even use the card. We make large payments Item 8: If any Items listed in this propo- sales revenue and the gas prices have dra- every month, but with the interest rate we sition are nullified by court action then all matically diminished travelers. Whitewater still have not been able to bring the balance other Items shall remain in effect. rafting companies are struggling and my re- low enough to even use the card. So we pay UNSIGNED. tail store is in danger. I am unable to meet the Chevron bill AND pay for gas out of our my monthly expenses, let alone purchase regular checking account. The Chevron card SENATOR CRAPO: Thank you for asking for merchandise to replenish my normal inven- went well over limit way back when gas hit my opinion. As I interact with my employees tory. Consumers cannot afford anything be- $3.50 a gallon, and we have not been able to as a business executive, with my fellow yond gas and food. Prices have doubled on catch up and bring the balance down. We church members as a church leader, and as a groceries, shipping and all are related to ris- have a propane bill that is over $1,100 right husband and father, I think the real bottom ing fuel costs. Most of the people I know now that I pay $125 a month on—but this is line is this: The great majority of people have no extra from their paychecks and it is a balance from an $1,800 fill up of our tank have no viable alternative to spending addi- killing small businesses all over the Coun- back in November of 2007. I am going to call tional money on fuel and many other goods try! Here in the Rocky Mountains we can’t the gas company this week to see if they will and services that also rise with fuel price in- drive hybrid cars. The snow, rain and rural fill the tank now while prices are ‘‘lower’’.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6011 So we will probably have a bill that is over French company’s new uranium enrichment West Virginia, in Menlo Park, CA every day $3,000 for heating our home basically 6 plant and the corresponding jobs to the area 24/7 for nearly 9 months performing experi- months out of the year. If gas goes any high- to fuel nuclear power for France. WHAT—we ments under contract with the US DOE. Our er—we are going to have to figure out how to have had the capability of generating nu- work was successful but went no further. get even deeper in debt to find a cheaper way clear power at the INEL for 35 years. My fa- During the operation of that combustion sys- to heat our home in the winter. As you ther worked at the INEL for 35 years. You tem and the associated experiments we know—Idaho gets cold. We HAVE to heat our mean to tell me the environmentalists will passed all EPA combustion gas stream home!!! Living in Salmon, we HAVE to drive allow uranium enrichment for France, but standards. That company years later went over 300 miles in a round trip either to Idaho we can’t utilize an existing US nuclear plant bankrupt. I left after 2 years to join Hewlett Falls or Missoula Montana for doctors, for power for Idaho? Packard in their computer systems group. Costco, clothes shopping etc.—as due to Bio-fuels are not the whole answer, it puts For the past 25 years I’ve been involved in there being a lack of logging or mining any- too much pressure on our farmland that we semiconductor manufacturing. more there is really no local options for need to crop food crops. The prices of food Thirty years have passed and sadly our shopping, etc. The very lives of people living are going up enough because of the fuel government is no closer to a long term here depend on big rig trucks bringing our costs. proactive energy policy than it was in 1979. food etc. For MANY years now, we have been The US has substantial coal deposits, we It is a national disgrace and one day will hearing of the Idaho Cobalt Project—but be- need to build more coal fired power plants. be a national disaster which will make the Great Depression pale in comparison. cause the environmentalists have such a Combined with the nuclear and wind, we PLEASE, wait no longer. Turning food stranglehold on ALL industries in this coun- should be able to have more than enough stocks into ethanol, waiting for cheap solar, try—we are still awaiting word of WHEN or power to re-charge hybrid cars. and looking to the wind to solve this global IF this project will start. If it does get clear- Besides increasing drilling in the US, we crisis is beyond ridiculous. ance, Salmon, Idaho will once again have need to invest in some updated/additional re- Drill now in ANWR, Drill off the Coasts of jobs that pay a living wage for a family. We fineries. Florida, and California, Turn on the clean have a house that we moved out of in down- Then, Congress needs to do something coal industry and liquefy coal for fuel, build town Salmon in 2005—it has been sitting about the speculators driving up the price of as many nuclear power plants as fast as pos- empty awaiting a buyer since then. It is in a crude oil. I don’t know if you can make it il- sible (then maybe we can avoid the energy commercial zone—and commercial is dead in legal to speculate on oil futures or restrict depression). I don’t believe we have another Salmon. We filed paperwork with our mort- it, but news media are reporting that $3.00 of 30 years to gamble away. gage company way back in February to give every gallon goes to speculators profits buy- Regards, the house back in a Deed in Lieu—and we are ing and selling. LARRY, Eagle. still awaiting word!!! Apparently, the mort- CHRIS, Idaho Falls. gage companies are backlogged about 6 MIKE, I really believe that we don’t need to months? We can’t afford to visit family in DEAR SENATOR: My husband and I own a find alternative fuels. America is set up to California because we can’t afford the gas. small business in Lewiston, where we do burn petroleum based products and there are My husband’s mother and father in Cali- print advertising and TV/Video productions so many drawbacks to all of the ‘‘bio’’ fuels. fornia got extremely ill this last year, but he (among other things). We live close to our We have lots of oil right off of our own was never able to visit because of the debt business, so although our fuel prices have in- coasts and in the Gulf on Mexico, ANWR and load we are carrying and how expensive driv- creased, it’s not having a huge impact—YET. North and South Dakota with oil shale. ing or flying is!! We are working to make However, we frequently have to travel across Our problem to being independent is not payments and catch up on our gas bills that or out of the state to shoot various jobs, and supply, Arabs or the environment! It’s Con- are maxed out right now. We stopped making we are now having to charge such high travel gress and the wacko left enviro crowd who payments on a house that would not sell for expenses that we are at risk of losing some would rather see us all on bicycles! 3 years now—that has left us behind in ev- clients to production companies closer to I’m 62 years old and I DO ride a bicycle. erything. With fuel costs continuing to rise their location, even though they would pre- However, like you mentioned in your open- because we have a Democratic Liberal, Anti- fer to keep working with us. We are bidding ing letter, bikes don’t work all the time in American Congress that continues to ban on a job right now which falls in that cat- Idaho. Matter of fact between October and ″ any sort of domestic drilling for our own pe- egory—a year ago we would have quoted June, they suck! We had 2 of snow in Mos- troleum deposits—we don’t even have a them $200 for mileage, and now we have to cow on June 10th this year. Congress needs to just get out of the way chance to catch up right now as gas prices quote almost $500. Obviously this will impact and let industry do its thing. continue to rise. We are fortunate though. our bottom line by the end of the year— My husband has a busy and successful busi- Mike, I realize you’re only one Senator something that we really can’t afford. from a little-known state out West that ness and thankfully at least, we are able to BOBRI, Lewiston. doesn’t matter to everybody East of the Mis- work to make our payments. On Father’s sissippi River but some how we have to find Day, we decided against a picnic any further SENATOR CRAPO: I would guess that my the courage to stand up to the liberal Dems than 5 miles out of town because of the cost story is different than the story you were before our economy state and country are of fuel. It is sickening to us that our govern- looking for. turned into a Third World European night- ment cares SO little for the average working In 1974 I graduated from the University of mare like B. H. O is designing. American. It is sad that our government has California with a B.S. in Mechanical Engi- Sincerely, allowed itself to be controlled by secular hu- neering. DAVE, Moscow. manist environmentalists who care more for The height of the first real Oil Crisis cre- a spotted owl or a tiny snail than the human ated by OPEC. f family. Just ask anyone here in Salmon how Because of the skyrocketing price of gaso- ADDITIONAL STATEMENTS we feel about the forests being shut down to line, gas lines, and shortages, I purchased a logging—yet it is perfectly fine for the forest manual transmission diesel Volkswagen for that is becoming nothing more than a $7,500. That car on average got 52 miles per IN RECOGNITION OF ROBERT deadfall tinderbox to burn and choke us with gallon. Diesel is a cheap byproduct of gaso- LINGENFELTER toxic, suffocating smoke for 2 months every line refinement. At that time, it cost 1⁄2 the summer! Something has to change because if price of gasoline per gallon. ∑ Mr. CARPER. Mr. President, today I it does not soon—this country is going to Tell me why it costs more than gasoline recognize Robert Lingenfelter, affec- enter a depression that makes the Great De- now? tionately known as ‘‘Link,’’ for being pression look like the Good Old Days!!! A few weeks after graduation, I was grant- named Delaware History Teacher of Sincerely, ed a full scholarship to continue engineering the Year by the Gilder Lehrman Insti- BRENT AND KATIE, Salmon. graduate school at UC. tute of American History and Preserve In 1979 I graduated from UC with a Ph.D. in It is very hard to understand why the Mechanical Engineering, my specialty: ther- America. Link has dedicated his life to United States, the most powerful Nation on modynamics, energy, and materials science. the thousands of school children whose Earth, is begging the Middle East for oil. We My thesis was on the extraction of heat en- lives he has touched as a teacher, as a need to immediately increase drilling off ergy from hot geothermal brine solutions. coach and as a mentor. shore, in Alaska and other States, plus uti- I started working for a startup company The History Teacher of the Year lize technology available to extract oil from purchased by Weyerhaeuser. My project was Award, now in its fifth year, was de- shale deposits in the Rocky Mountains. We researching burning lignite (dirty coal) in a signed to promote and celebrate the have advanced technology sufficiently to be fluidized bed reactor to produce clean coal teaching of American history in class- safe for the environment and yet provide for energy. It included the removal of NOX, SOX, rooms across our Nation. The award ourselves rather than being dependent upon and high temperature particulate down the Middle East. below the submicron size. honors one exceptional teacher from Is it true that China is drilling off the My research burned one train car load of each State and U.S. territory. The se- Florida coast, but we can’t? In Idaho Falls, lignite (environmentally the worst coal to lection of the State winner is based the Chamber is bragging about bringing a burn with the lowest heating value) from upon several criteria, including a deep

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6012 CONGRESSIONAL RECORD — SENATE June 24, 2008 career commitment to teaching Amer- Year by the Red Clay School District ways be a role model, not just to his ican history; evidence of creativity and and was named the 2002–2003 Teacher of own students, but to all of us.∑ imagination in the classroom that ad- the Year at Skyline Middle School. f dress literacy and content beyond state These awards are a tribute to Link’s TRIBUTE TO LEROY standards; and evidence of thoughtful creative teaching style and his genuine KOPPENDRAYER assessment of student achievement. desire to help his students succeed. Through Link’s 13 dedicated years of Link’s teaching style is unique and ∑ Mr. COLEMAN. Mr. President, today, teaching, it is clear that he embodies specifically tailored to helping stu- I honor the distinguished public career all of these criteria and many more. dents not just learn history but relive of LeRoy Koppendrayer, retiring chair- After working for years as a night su- it. Link and others think of him as man of the Minnesota Public Utilities pervisor for what is now AstraZeneca, more than just a teacher. He is some- Commission. LeRoy was appointed Link graduated from Wilmington Col- thing of an actor, as well. He brings commissioner in 1998 and chairman in lege in 1995 with a bachelor’s degree in history alive in his classroom with 2003. He has served Minnesotans honor- education on a day that I was privi- props and costumes and engages his ably for 10 years, upholding and pro- leged to deliver the commencement ad- students in a way no textbook can. He tecting the interests of Minnesota’s dress there. Three years later, he and his students hold simulations of utility ratepayers while enjoying the earned his master’s of instruction from historical events, assuming the roles of respect and camaraderie of his fellow Wilmington College, which is now Wil- prominent historic figures and acting commissioners and those who have mington University. He was motivated out the sequence of the events. His stu- come to know him. to become a teacher because of his in- dents reenact the Boston massacre LeRoy’s journey to becoming a com- terest in American History, his love of mock trial, the Constitution Conven- missioner has been filled with a life- coaching and his passion to motivate tion of 1787, slavery and the under- time of experiences anyone would ad- children to achieve their true poten- ground railroad, and even battles of the mire. In the 1990s, LeRoy was elected tial. Civil War. He doesn’t simply teach his- to four terms as a representative in His interest in American history was tory he engages his students to partici- Minnesota’s Legislature where he increased in part by his work with me pate in history, bringing to mind the worked successfully on issues ranging as a volunteer photographer over the old Chinese proverb: Tell me, and I’ll from agriculture to energy to edu- past 26 years. During that time, Link forget. Show me, and I may remember. cation. He also worked for years as a also has documented a host of impor- Involve me, and I’ll understand. dairy farmer and then as an inter- tant events throughout Delaware. In Link also utilizes the historic sites in national agricultural consultant, his own words, he ‘‘created history the area to further instill in his stu- spending time in South America, Afri- with his camera lens.’’ dents an understanding of America’s ca, Jamaica, Philippines, and Indo- In addition to teaching, Link has past. He takes his students on trips to nesia, consulting farmers and working coached high school baseball for 14 the Constitution Center in Philadel- to develop and improve their econo- years. He developed a love of the game phia and to Fort Delaware, as well as mies and their lives. LeRoy’s appoint- as a child and wanted to see the same to any number of sites in Washington, ment to the commission caps his dec- passion he felt for the game in the eyes DC. His ‘‘classroom museum’’ is a place ades-long commitment to public serv- of the children he coached. He stresses of interactive learning that is far from ice. individual success for each of his play- a memorization of dates and locations; LeRoy’s work as commissioner in- ers and he has always believed that instead, it is a journey through Amer- cludes decisions on a myriad of issues once a child experiences success, they ican history, with stops and detours facing Minnesota’s utility ratepayers, start believing that anything is pos- along the way where students fully em- such as rate cases filed by natural gas, sible. Link tries to foster this ‘‘any- brace America’s past and its impact on electric, and telephone utility compa- thing is possible’’ mentality in all of the present. nies, the twin cities metro area code his students and players, continually Link is a powerful teacher with a split, the establishment of rules gov- encouraging them to do their absolute deep love for his students and for his- erning reliability standards for electric best and settle for nothing less. tory. He has a lighthearted attitude utilities, renewable energy projects and He has been instrumental in the that allows him to connect with stu- the citing and routing of energy facili- growth of many children, building dents on a level that few can. He can ties and transmission pipelines, to their confidence and showing them the always be counted on to have a joke name just a few. path to personal success. His dedica- ready to break up the stresses of the LeRoy’s committee memberships in- tion to the children he coached is ap- students he teaches. Using his sense of clude the National Association of Reg- parent to all who know him as he humor to his advantage, Link con- ulatory Commissioners, known as teaches his players lessons that will stantly builds a closer relationship NARUC; as liaison to NARUC’s Inter- help them in all walks of life, both on with his students to the point where national Relations Committee; the and off the diamond. they know they can come to him with NARUC Regulatory Advisory Com- Noticing his innate ability to con- anything from a history question to a mittee to the Institute of Public Utili- nect with students and his drive to problem with a friend at school. ties; and the NARUC Committee on help them grow, Link’s friends and Link is a truly remarkable teacher Electricity and Subcommittee on Stra- players’ parents suggested he pursue a and human being. He encourages his tegic Issues. He has also served as chair career in teaching. With their encour- students to reach beyond their limits of the Nuclear Waste Strategy Coali- agement, he decided to combine his and settle for nothing less. He instills tion and as a member of the board of love for American history and his com- in them the confidence they need to the Organization of Midwest States, mitment to helping children succeed. stand up for principles they believe in which oversees the Midwest electricity He became a teacher. and become proponents of change in grid. Link started his teaching career at the future. His teaching philosophy is As chairman, LeRoy has ensured the Stanton Middle School, where he one to be admired and emulated as it integrity of the commission’s process worked from 1995–1998 as a 7th grade so- allows students to be participants in through thoughtful consideration of cial studies and language arts teacher. history as opposed to mere observers. issues and a friendly rapport with In 1998, he joined Skyline Middle Robert ‘‘Link’’ Lingenfelter has be- those who appear before the commis- School where he teaches today. He is come one of the finest teachers in Dela- sion. Whether it is a lawyer rep- an 8th grade American history and so- ware, and he is on his way to becoming resenting a utility or a concerned cit- cial studies teacher and also serves as one of the finest teachers in America. izen appearing for the first time, the social studies department chair. In It is with a genuine sense of honor and LeRoy’s approach is the same. He addition, he works as an adjunct pro- joy that I rise today to extend heart- treats everyone with genuine respect fessor at Wilmington University. felt congratulations to my good friend and professional courtesy and with a Link has been recognized many times for his award. There could not be a sincere interest in understanding each as the Social Studies Teacher of the more deserving recipient. He will al- person’s point of view.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6013 And on top of it all, LeRoy recently places such as Belfield that have Michigan is a small town with a pop- found time to make a 150-mile bicycle helped to shape this country into what ulation of 345 residents located in Nel- trip with his wife Carolyn and 10 other it is today, which is why this fine com- son County in northeastern North Da- family members in support of MS re- munity is deserving of our recognition. kota. It was established on January 2, search. Belfield has a proud past and a bright 1883, with the completion of its post of- LeRoy is a man of loyalty, convic- future.∑ fice with C.J. Bondurant as post- tion, and fortitude. He commands great f master. Soon after its establishment, respect and great affection. He has an 125TH ANNIVERSARY OF MENOKEN, railroad tracks were completed, and, in enviable capacity for warmth and kind- NORTH DAKOTA March of 1883, the first train reached ness and is driven by his value for hard Michigan. The town quickly became ∑ work. He stands firm in what he be- Mr. CONRAD. Mr. President, I am known as a trading center. With the lieves and yet finds common ground pleased to honor a community in North railroads came more people, who built where there are differences, using a Dakota that recently celebrated its businesses, churches and schools. The welcoming approach and a friendly 125th anniversary. On June 21, the resi- settlers began to cultivate the land and smile to bring people together. And if dents of Menoken gathered to celebrate raise crops. Agriculture soon became all else fails, he’ll make you laugh, their community and its historic the center of their economy and re- mostly at his own expense, by poking founding. mains so to this day. Menoken is located in Burleigh Coun- fun at himself. Today, Michigan remains a proud ty, just a few miles from the State cap- Today, at this bittersweet moment, community that has a prosperous econ- ital. Although its population is small, it is with gratitude and admiration omy consisting of farming, manufac- Menoken holds an important place in that I stand before you to honor our State’s history. As the first tracks turing industries, and retail businesses. LeRoy’s longstanding contributions to of the Northern Pacific Railroad were Residents of Michigan are known for the people of Minnesota through his being laid across North Dakota, the their honesty, strong work ethic, and years of service as commissioner of the Seventeenth Siding was marked; later living off the land. It is a great place Minnesota Public Utilities Commis- to be known as what is now Menoken. for enjoying the outdoors all year sion.∑ Upon the completion of the railroad, round, including hunting, cross-coun- f settlers from Maine occupied the terri- try skiing, fishing, boating, and camp- 125TH ANNIVERSARY OF tory and named the town Blaine, after ing. Michigan Days is a highlight each BELFIELD, NORTH DAKOTA Maine Senator James G. Blaine. Once summer. During Michigan Days, the residents enjoy live music, a softball ∑ Mr. CONRAD. Mr. President, I am more the town’s name was changed to Clark, and then finally secured as tournament, street dances, a tractor pleased to honor a community in North pull, and ice cream socials. Dakota that is celebrating its 125th an- Menoken. The citizens of Menoken take great As part of the weekend anniversary niversary. From July 11 to July 13, the pride in their community enriched celebration residents will be able to go residents of Belfield, ND, will celebrate with history. The town is home to the to the interesting Dakota Mysteries their community’s history and found- Menoken Indian Village, which is a and Oddities Museum. Michigan will ing. preserved prehistoric earthlodge vil- also hold a golf tournament at the Belfield is situated along the banks lage that dates back to the early 13th Duffers Club and dedicate the Vet- of the Heart River in western North century A.D. In addition, the battle- eran’s Memorial Building for all the Dakota. As the westward expansion of grounds of General Sibley’s campaign brave residents of Michigan who have the Northern Pacific Railroad pro- of 1863 are located near Menoken. served in past wars. Several other won- gressed, settlers established this com- These two landmarks are among many derful activities will be taking place munity and first identified it as Fort of the town’s sacred keepsakes that re- throughout the weekend. Houston. Belfield is said to have later semble the very essence of North Da- Mr. President, I ask the U.S. Senate adopted its current name after Belle kota. to join me in congratulating Michigan, Field, the daughter of a railroad engi- The 125th anniversary celebration in- ND, and its residents on their 125th an- neer. cluded a school tour, fashion show, and niversary and in wishing them well in Belfield offers visitors and residents parade. It was followed by a horseshoe the future. By honoring Michigan and fresh air and beautiful scenery. From tournament, tractor pull, and old-time all the other historic towns of North Custer’s Trail and Initial Rock, to music. Once evening set in, people wit- Dakota, we keep the pioneering fron- Belfield Dam and the Maah Daah Hey nessed an exceptional cavalry reenact- tier spirit alive for future generations. Trail, Belfield has a wealth of outdoor ment. It was no doubt a day unlike any It is places such as Michigan that have recreational activities. This gateway other. helped shape this country into what it to the west is also birthplace of North Mr. President, I ask the U.S. Senate is today, which is why this community Dakota Supreme Court Judge Herbert to join me in congratulating Menoken, is deserving of our recognition. L. Meschke. ND, and its residents on their 125th an- Michigan has a proud past and a To celebrate its 125th anniversary, niversary and in wishing them well for bright future.∑ Belfield is organizing a weekend filled the future. By honoring Menoken and with events such as a parade, class re- all other towns of North Dakota, we f unions, a demolition derby, a steak fry, keep the pioneering, frontier spirit historical photo and pottery displays, 125TH ANNIVERSARY OF MILNOR, alive for future generations. It is places NORTH DAKOTA and games for all ages. Belfield will such as Menoken that have helped to ∑ also be host to the Black Daggers, a shape this country into what it is Mr. CONRAD. Mr. President, I wish U.S. Army Special Operations Com- today, which is why this fine commu- to recognize a community in North Da- mand Parachute Demonstration Team. nity is deserving of our recognition. kota that will be celebrating its 125th The team will be performing parachute Menoken has a proud past and a anniversary. On July 18–20, the resi- jumps throughout the weekend at var- bright future.∑ dents of Milnor will gather to celebrate ious locations. It will no doubt add a f their community’s history and found- breathtaking element to this celebra- ing. tion. 125TH ANNIVERSARY OF During the summer of 1863, Henry Mr. President, I ask the U.S. Senate MICHIGAN, NORTH DAKOTA Hastings Sibley and his army camped to join me in congratulating Belfield, ∑ Mr. CONRAD. Mr. President, I am on the shore of Storm Lake—Camp ND, and its residents on their first 125 pleased to honor a community in North Buel—and about 20 years later, in 1883, years and in wishing them well in the Dakota that is celebrating it 125th an- Milnor was established on that histor- future. By honoring Belfield and all the niversary. On July 24 through July 27, ical site. Milnor was named after Wil- other historic small towns of North Da- the residents of Michigan will cele- liam E. Milnor, the first telegrapher at kota, we keep the pioneering frontier brate their community’s history and the Milnor Station and WM Milnor spirit alive for future generations. It is founding. Roberts, a famous civil engineer of the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6014 CONGRESSIONAL RECORD — SENATE June 24, 2008 day. In October 1883, Milnor’s post of- lons. Families often gather in Minto’s Paul Mann was born in Onawa, IA on fice was established, and it became a beautiful park, which has a baseball March 12, 1947, graduated from Central city in 1914. field, tennis court, playground, and pic- Missouri State University in 1969, and Today, Milnor remains a small, proud nic area. In the winter, the children of earned a master’s in public administra- community. Each year, the community Minto can be found skating or playing tion from Drake University in 1981. He gathers in June for its annual Jam- hockey at the town’s outdoor ice rink. began teaching in Des Moines in 1969 boree. The residents celebrate with a Current and former residents of and was an energetic, beloved teacher BBQ, golf tournament, street dance, Minto will gather to celebrate the right up until his sudden passing in parade and many other fun activities. 125th anniversary. Events will begin September of 2006. At the time of his During the summer, many Milnor resi- with the telling of area Polish family death, he was a teacher of world civili- dents can be found at the local pool, histories at Minto’s new community zation and government at Central catching up with friends and family, or center. The Walsh County Historical Academy, the magnet school for Des at the Lakeview golf course playing a Museum will also be open to the public. Moines’ gifted and talented middle- few holes. Two National Wildlife Refu- Minto’s park will host a classic car and high-school students. gees are located near Milnor, the show, magic show, and community As a teacher, Paul was a consummate Tewaukon and Storm Lake Refuges. baseball game. Each day of celebration professional who had a deep personal Many residents enjoy camping, fishing, will close with a dance. commitment to ensuring that every and spotting wildlife at these beautiful Mr. President, I ask the U.S. Senate child receives a high-quality public sites. Milnor also has many other out- to join me in congratulating Minto, education. This commitment led to his door recreational areas located nearby, ND, and its residents on their first 125 activism and leadership within the Des like Buffalo Lake—Kandiotta Lake— years and in wishing them well in the Moines Education Association, includ- and Dead Colt Creek. future. By honoring Minto and all the ing 8 years as president. He served in a To celebrate the 125th anniversary, other historic small towns of North Da- various leadership positions at the the residents of Milnor will gather for kota, we keep the frontier spirit alive local, State and national levels within many fun and exciting activities, in- for future generations. It is places like the National Education Association. cluding a parade, a street dance, and a Minto that have helped to shape this He was also active in local and State time capsule unveiling. country into what it is today, which is politics. Mr. President, I ask the U.S. Senate why this community is deserving of I have always appreciated what Lee to join me in congratulating Milnor, our recognition. Iacocca said about teachers. ‘‘In a com- Minto has a proud past and a bright ND, and its residents on their first 125 pletely rational society,’’ he said, ‘‘the future.∑ years and wishing them well in the fu- best of us would be teachers, and the ture. By honoring Milnor and all the f rest of us would have to settle for other historic small towns of North Da- NEA’S HONORING OF PAUL MANN something else.’’ Fortunately, in Iowa, kota, we keep the great pioneering ∑ Mr. HARKIN. Mr. President, in early so many of our best and brightest do go frontier spirit alive for future genera- July, when nearly 9,000 educators are into teaching. And Paul Mann was one tions. It is places such as Milnor that in Washington for the National Edu- of the very finest. have helped to shape this country into cation Association’s annual Represent- To honor his activism in the cause of what it is today, which is why this fine ative Assembly, they will post- world peace and understanding, the community is deserving of our recogni- humously honor one of Iowa’s most Paul Mann Memorial School has been tion. dedicated and respected teachers, Paul established in Chiapas, Mexico. In addi- Milnor has a proud past and a bright Mann. Lola Mann, Paul’s wife of 38 tion, he has another living legacy: future.∑ years, will accept the Applegate-Dorros countless former students who are liv- f Award on behalf of her late husband at ing the noble ideals that he taught in his classroom and embodied in his life. 125TH ANNIVERSARY OF MINTO, NEA’s annual Human and Civil Rights Paul Mann lived a life of constant ac- NORTH DAKOTA Awards Dinner on July 2. The Applegate-Dorros Award is given tivism and thoughtful action both in ∑ Mr. CONRAD. Mr. President, I am each year to an individual who has and out of the classroom. His life is one pleased today to recognize a commu- made lasting contributions to the worthy of recognition and I commend nity in North Dakota that will be cele- cause of international understanding, his family and all of his former col- brating its 125th anniversary. On July and who has encouraged young people leagues for doing their part in honoring 25 to 27, the residents of Minto will to study the world and work for world him with the Applegate-Dorros gather to celebrate their community’s peace. Over a long and distinguished Award.∑ history and founding. career spanning nearly four decades as f Minto is a community of over 600 a teacher with the Des Moines public 125TH ANNIVERSARY OF IPSWICH, residents located in the fertile Red school system, Paul both lived and SOUTH DAKOTA River Valley in northeast North Da- taught those ideals. He shaped the kota. The Homestead Act brought the thinking of generations of students, ∑ Mr. JOHNSON. Mr. President, today first settlers to the Minto area, includ- and he was active on the national stage I recognize the community of Ipswich, ing a Canadian by the name of Angus as a long-time leader of NEA’s Midwest SD, on reaching the 125th anniversary Gillespie, Sr., who left his home in Peace and Justice Caucus. of its founding. As the county seat of Minto Township, Ontario, to farm in I do not believe that democracy is a Edmunds County, the rural community North Dakota. Minto was incorporated spectator sport, and neither did Paul. of Ipswich is infused with hospitality, in 1883. Twenty years later, Minto was As his wife Lola said, ‘‘he felt strongly beauty, and an exceptional quality of recognized as a city. Minto’s links with that he was placed on this earth for a life. its Canadian forefathers have been re- purpose . . . that he was here to help The town of Ipswich was founded in newed as the town of Minto, ND, be- make the world a better place.’’ He 1883, with the railroad industry came the sister city of Minto, Ontario, challenged his colleagues and students jumpstarting the area as a business in 2007. alike to get involved in campaigns and and transportation center. Ipswich was The community of Minto is host to in the broader political process. His noted for its many buildings made of many businesses and amenities. There own passion for politics and engage- native prairie stone, and was eventu- are numerous enterprises dedicated to ment was infectious. ally given the nicknames: ‘‘the Home farming, including elevators, imple- Paul stood up for social justice and of the Yellowstone Trail,’’ ‘‘the Arch ment dealerships, and trucking serv- the peaceful resolution of conflict. Just City,’’ and ‘‘the Zinnia City.’’ ices. It also offers its citizens many lei- as Gandhi counseled that ‘‘You must be Today, Ipswich has come a long way sure activities. Residents of the town the change you wish to see in the from its days as a railroad supply cen- and the surrounding area are able to world,’’ Paul lived a life that embodied ter. The town now boasts a variety of enjoy a meal at the town’s cafe´ and the progressive ideals that he advo- businesses, including those in the serv- have their hair done at one of the sa- cated. ice, manufacturing, and agricultural

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6015 sectors. For the outdoor enthusiasts, stalwart forerunners of the sustainable in Kosovo, that led to the declaration Ipswich offers an abundance of local movement.’’ of a national emergency on June 26, hunting and fishing. As ranking member of the U.S. Sen- 2001, in Executive Order 13219 and to The people of Ipswich celebrated ate Committee on Small Business and Executive Order 13304 of May 28, 2003, their Trail Days on the weekend of Entrepreneurship, I am eminently has not been resolved. The acts of ex- June 13–15, 2008, with an all-school re- proud of all of Maine’s small firms, and tremist violence and obstructionist ac- union, a parade, a pie-baking contest, a am particularly impressed by Mr. tivity outlined in Executive Order demolition derby and a street dance. Gaier’s and Mr. Frasier’s dedication to 13219, as amended, are hostile to U.S. South Dakota’s small communities are making Arrows the premier dining es- interests and pose a continuing un- the bedrock of our economy and vital tablishment that it has become. These usual and extraordinary threat to the to the future of our state. It is espe- two restaurateurs have helped trans- national security and foreign policy of cially because of our small commu- form American cuisine, and have the United States. For these reasons, I nities, and the feelings of loyalty and brought the world to Maine—as well as have determined that it is necessary to familiarity that they engender, that I Maine to the world. They are truly de- continue the national emergency de- am proud to call South Dakota home. serving of our admiration and praise, clared with respect to the Western Bal- Towns like Ipswich and its citizens are and I wish them well in all that they kans and maintain in force the com- no different and truly know what it do.∑ prehensive sanctions to respond to this means to be South Dakotan. One hun- f threat. dred and twenty five years after its GEORGE W. BUSH. founding, Ipswich remains a vital com- MESSAGES FROM THE PRESIDENT THE WHITE HOUSE, June 24, 2008. munity and a great asset to the won- Messages from the President of the f derful state of South Dakota. I am United States were communicated to proud to honor Ipswich on this historic the Senate by Mrs. Neiman, one of his MESSAGES FROM THE HOUSE milestone.∑ secretaries. At 10:30 a.m., a message from the f f House of Representatives, delivered by Ms. Niland, one of its reading clerks, HONORING ARROWS RESTAURANT EXECUTIVE MESSAGES REFERRED announced that the House agrees to ∑ Ms. SNOWE. Mr. President, today I As in executive session the Presiding the amendment of the Senate to the honor Arrows Restaurant of Ogunquit, Officer laid before the Senate messages bill (H.R. 3403) to promote and enhance ME, on the occasion of its 20th anniver- from the President of the United public safety by facilitating the rapid sary and to recognize the tremendous States sumitting sundry nominations deployment of IP-enabled 911 and E911 talent and innovative environmental and a withdrawal which were referred services, encourage the Nation’s transi- stewardship of its owners, award-win- to the appropriate committees. tion to a national IP-enabled emer- ning chefs Mark Gaier and Clark (The nominations received today are gency network, and improve 911 and E– Frasier. printed at the end of the Senate pro- 911 access to those with disabilities. Quite simply, Arrows is one of Amer- ceedings.) f ica’s great restaurants. It has received recognition from national publications f ENROLLED BILL SIGNED such as Gourmet magazine, which REPORT ON THE CONTINUATION The message also announced that the ranked it 14th on its list of ‘‘America’s OF THE NATIONAL EMERGENCY Speaker has signed the following en- Top 50 Restaurants in 2006,’’ and Bon THAT WAS ORIGINALLY DE- rolled bill: ´ Appetit, which named Arrows ‘‘one of CLARED IN EXECUTIVE ORDER H.R. 3403. An act to promote and enhance the country’s 10 most romantic res- 13219 OF JUNE 26, 2001, WITH RE- public safety by facilitating the rapid de- taurants.’’ SPECT TO THE WESTERN BAL- ployment of IP-enabled 911 and E–911 serv- Arrows has also received some of the KANS—PM 54 ices, encourage the Nation’s transition to a highest and most consistent ratings in national IP-enabled emergency network, and The PRESIDING OFFICER laid be- the annual Zagat survey. In addition, improve 911 and E–911 access to those with fore the Senate the following message Mr. Gaier and Mr. Frasier were nomi- disabilities. from the President of the United nated as Best Chefs in the Northeast by The enrolled bill was subsequently States, together with an accompanying the James Beard Foundation, a na- signed by the President pro tempore report; which was referred to the Com- tional organization whose annual (Mr. BYRD). mittee on Banking, Housing, and awards have been deemed the ‘‘Oscars Urban Affairs: f of the food world’’ by Time magazine. Arrows has further distinguished To the Congress of the United States: ENROLLED BILLS SIGNED itself by its extraordinary garden, Section 202(d) of the National Emer- The President pro tempore (Mr. which offers more than 300 varieties of gencies Act (50 U.S.C. 1622(d)) provides BYRD) announced that on today, June herbs, flowers, fruits, and vegetables. It for the automatic termination of a na- 24, 2008, he had signed the following en- provides Mr. Gaier and Mr. Frasier tional emergency unless, prior to the rolled bills, previously signed by the with the source of most of the ingredi- anniversary date of its declaration, the Speaker of the House: ents for their menu and serves as a President publishes in the Federal Reg- H.R. 634. An act to require the Secretary of wonderful illustration of how sensitive ister and transmits to the Congress a the Treasury to mint coins in commemora- environmental stewardship and entre- notice stating that the emergency is to tion of veterans who became disabled for life preneurial spirit can go hand-in-hand. continue in effect beyond the anniver- while serving in the Armed Forces of the It should come as no surprise that Ar- sary date. In accordance with this pro- United States. rows has been featured on television vision, I have sent the enclosed notice H.R. 814. An act to require the Consumer to the Federal Register for publication Product Safety Commission to issue regula- programs such as PBS’s ‘‘Victory Gar- tions mandating child-resistant closures on den,’’ and NBC’s ‘‘Today Show.’’ stating that the Western Balkans all portable gasoline containers. Like the restaurant, the garden has emergency is to continue in effect be- H.R. 5778. An act to preserve the independ- received tremendous acclaim in the yond June 26, 2008. ence of the District of Columbia Water and press. Bon Appe´tit noted that ‘‘[Ar- The crisis constituted by the actions Sewer Authority. rows] helped pioneer the idea of grow- of persons engaged in, or assisting, S. 188. An act to revise the short title of ing your own food and paying attention sponsoring, or supporting (i) extremist the Fannie Lou Hamer, Rosa Parks, and to what’s seasonal in a place that is violence in the Republic of Macedonia Coretta Scott King Voting Rights Act Reau- unforgiving in its climate.’’ Earlier and elsewhere in the Western Balkans thorization and Amendments Act of 2006. S. 254. An act to award posthumously a this year, the Daily Green—a Web site region, or (ii) acts obstructing imple- Congressional gold medal to Constantino that reports on the environmental con- mentation of the Dayton Accords in Brumidi. cerns of everyday Americans—praised Bosnia or United Nations Security S. 682. An act to award a congressional Mr. Gaier and Mr. Frasier as ‘‘ ... Council Resolution 1244 of June 10, 1999, gold medal to Edward William Brooke III in

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6016 CONGRESSIONAL RECORD — SENATE June 24, 2008 recognition of his unprecedented and endur- uary 4, 2007, the Speaker appoints the land Security and Governmental Af- ing service to our Nation. following members on the part of the fairs by unanimous consent, and re- S. 1692. An act to grant a Federal charter House of Representatives to the Com- ferred as indicated: to Korean War Veterans Association, Incor- mission on the Abolition of the Trans- porated. S. 3145. A bill to designate a portion of S. 2146. An act to authorize the Adminis- atlantic Slave Trade: United States Route 20A, located in Orchard trator of the Environmental Protection Mr. DONALD PAYNE of Newark, New Park, New York, as the ‘‘Timothy J. Russert Agency to accept, as part of a settlement, Jersey. Highway’’; to the Committee on Environ- diesel emission reduction Supplemental En- Mr. Howard Dodson of New York, ment and Public Works. vironmental Projects, and for other pur- New York. f poses. Ms. Evelyn Brooks Higginbotham of Cambridge, Massachusetts. MEASURES READ THE FIRST TIME At 3:25 p.m., a message from the The following bills were read the first At 6:21 p.m., a message from the House of Representatives, delivered by time: House of Representatives, delivered by Ms. Niland, one of its reading clerks, H.R. 6331. An act to amend titles XVIII and announced that the House has passed Ms. Niland, one of its reading clerks, announced that the House has passed XIX of the Social Security Act to extend ex- the following bills, in which it requests piring provisions under the Medicare Pro- the concurrence of the Senate: the following bill, in which it requests gram, to improve beneficiary access to pre- the concurrence of the Senate: H.R. 2452. An act to amend the Federal ventive and mental health services, to en- Water Pollution Control Act to ensure that H.R. 6327. An act to amend the Internal hance low-income benefit programs, and to publicly owned treatment works monitor for Revenue Code of 1986 to extend the funding maintain access to care in rural areas, in- and expenditure authority of the Airport and and report sewer overflows, and for other cluding pharmacy access, and for other pur- Airway Trust Fund, and for other purposes. purposes. poses. H.R. 4044. An act to amend title 11 of the The message also announced that the S. 3186. A bill to provide funding for the United States Code to exempt for a limited House has agreed to the following con- Low-Income Home Energy Assistance Pro- period, from the application of the means- current resolution, in which it requests gram. test presumption of abuse under chapter 7, the concurrence of the Senate: f qualifying members of reserve components of H. Con. Res. 379. Concurrent resolution the Armed Forces and members of the Na- providing for a conditional adjournment of ENROLLED BILLS PRESENTED tional Guard who, after September 11, 2001, the House of Representatives and a condi- The Secretary of the Senate reported are called to active duty or to perform a tional recess or adjournment of the Senate. that on today, June 24, 2008, she had homeland defense activity for not less than f 90 days. presented to the President of the H.R. 5001. An act to authorize the Adminis- MEASURES REFERRED United States the following enrolled bills: trator of General Services to provide for the The following bills were read the first redevelopment of the Old Post Office Build- S. 188. An act to revise the short title of ing located in the District of Columbia. and the second times by unanimous consent, and referred as indicated: the Fannie Lou Hamer, Rosa Parks, and H.R. 6040. An act to amend the Water Re- Coretta Scott King Voting Rights Act Reau- sources Development Act of 2007 to clarify H.R. 4044. An act to amend title 11 of the thorization and Amendments Act of 2006. the authority of the Secretary of the Army United States Code to exempt for a limited S. 254. An act to award posthumously a to provide reimbursement for travel ex- period, from the application of the means- Congressional gold medal to Constantino penses incurred by members of the Com- test presumption of abuse under Chapter 7, Brumidi. mittee on Levee Safety. qualifying members of reserve components of S. 682. An act to award a congressional the Armed Forces and members of the Na- H.R. 6109. An act to amend the Robert T. gold medal to Edward William Brooke III in tional Guard who, after September 11, 2001, Stafford Disaster Relief and Emergency As- recognition of his unprecedented and endur- are called to active duty or to perform a sistance Act to reauthorize the pre-disaster ing service to our Nation. homeland defense activity for not less than hazard mitigation program, and for other S. 1692. An act to grant a Federal charter purposes. 90 days; to the Committee on the Judiciary. H.R. 5001. An act to authorize the Adminis- to Korean War Veterans Association, Incor- H.R. 6331. An act to amend titles XVIII and trator of General Services to provide for the porated. XIX of the Social Security Act to extend ex- redevelopment of the Old Post Office Build- S. 2146. An act to authorize the Adminis- piring provisions under the Medicare Pro- ing located in the District of Columbia; to trator of the Environmental Protection gram, to improve beneficiary access to pre- the Committee on Environment and Public Agency to accept, as part of a settlement, ventive and mental health services, to en- Works. diesel emission reduction Supplemental En- hance low-income benefit programs, and to H.R. 6109. An act to amend the Robert T. vironmental Projects, and for other pur- maintain access to care in rural areas, in- Stafford Disaster Relief and Emergency As- poses. cluding pharmacy access, and for other pur- sistance Act to reauthorize the pre-disaster f poses. hazard mitigation program, and for other H.R. 6344. An act to provide emergency au- purposes; to the Committee on Homeland Se- EXECUTIVE AND OTHER thority to delay or toll judicial proceedings curity and Governmental Affairs. COMMUNICATIONS in United States district and circuit courts, H.R. 6344. An act to provide emergency au- and for other purposes. thority to delay or toll judicial proceedings The following communications were The message also announced that the in United States district and circuit courts, laid before the Senate, together with House has agreed to the following con- and for other purposes; to the Committee on accompanying papers, reports, and doc- current resolutions, in which it re- the Judiciary. uments, and were referred as indicated: quests the concurrence of the Senate: The following concurrent resolutions EC–6718. A communication from the Direc- H. Con. Res. 2. Concurrent resolution were read, and referred as indicated: tor, Naval Reactors, transmitting, pursuant expressing the sense of the Congress H. Con. Res. 2. Concurrent resolution ex- to law, the Naval Nuclear Propulsion Pro- pressing the sense of the Congress that chil- that children in the United States gram’s latest reports on environmental mon- dren in the United States should understand itoring and ideological waste disposal, work- should understand and appreciate the and appreciate the contributions of individ- er radiation exposure, and occupational safe- contributions of individuals from the uals from the territories of the United States ty and health; to the Committee on Armed territories of the United States and the and the contributions of such individuals in Services. contributions of such individuals in United States history; to the Committee on EC–6719. A communication from the Execu- United States history. Energy and Natural Resources. tive Vice President and Chief Financial Offi- H. Con. Res. 372. Concurrent resolution H. Con. Res. 372. Concurrent resolution cer, Federal Home Loan Bank of Atlanta, supporting the goals and ideals of Black supporting the goals and ideals of Black transmitting, pursuant to law, the Bank’s Music Month and to honor the outstanding Music Month and to honor the outstanding management reports and statements on sys- contributions that African American singers contributions that African-American singers tem of internal controls for fiscal year 2007; and musicians have made to the United and musicians have made to the United to the Committee on Banking, Housing, and States; to the Committee on Health, Edu- States. Urban Affairs. cation, Labor, and Pensions. The message further announced that EC–6720. A communication from the Ad- f ministrator, Federal Emergency Manage- pursuant to section 4(a) of the Commis- MEASURES DISCHARGED ment Agency, Department of Homeland Se- sion on the Abolition of the Trans- curity, transmitting, pursuant to law, notifi- atlantic Slave Trade (Public Law 110– The following measure was dis- cation of the fact that the cost of response 183), and the order of the House of Jan- charged from the Committee on Home- and recovery efforts for FEMA–3285–EM in

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6017 the State of Wisconsin has exceeded the ‘‘Exhaust Emission Standards for 2012 and mitting, pursuant to law, a report on the limit for a single emergency declaration; to Later Model Year Snowmobiles’’ (FRL No. Proposed Personnel Demonstration Project; the Committee on Banking, Housing, and 8684–6) received on June 20, 2008; to the Com- to the Committee on Homeland Security and Urban Affairs. mittee on Environment and Public Works. Governmental Affairs. EC–6721. A communication from the Gen- EC–6732. A communication from the Direc- EC–6743. A communication from the White eral Counsel, Department of Housing and tor, Regulatory Management Division, Envi- House Liaison, Department of Justice, trans- Urban Development, transmitting, pursuant ronmental Protection Agency, transmitting, mitting, pursuant to law, the report of a dis- to law, the report of the discontinuation of pursuant to law, the report of a rule entitled continuation of service in acting role in the service in an acting role for the position of ‘‘National Emission Standards for Hazardous position of U.S. Attorney of the District of Secretary, received on June 20, 2008; to the Air Pollutants for Source Category: Gasoline South Carolina, received on June 20, 2008; to Committee on Banking, Housing, and Urban Dispensing Facilities’’ ((RIN2060–AM74)(FRL the Committee on the Judiciary. Affairs. No. 8684–8)) received on June 20, 2008; to the EC–6744. A communication from the White EC–6722. A communication from the Direc- Committee on Environment and Public House Liaison, Department of Justice, trans- tor, Regulatory Review Group, Department Works. mitting, pursuant to law, the report of a con- of Agriculture, transmitting, pursuant to EC–6733. A communication from the Direc- firmation for the position of U.S. Attorney law, the report of a rule entitled ‘‘Guaran- tor, Regulatory Management Division, Envi- of the District of South Carolina, received on teed Loans; Number of Days of Interest Paid ronmental Protection Agency, transmitting, June 20, 2008; to the Committee on the Judi- on Loss Claims’’ (RIN0560–AH55) received on pursuant to law, the report of a rule entitled ciary. June 20, 2008; to the Committee on Banking, ‘‘National Emission Standards for Hazardous EC–6745. A communication from the Direc- Housing, and Urban Affairs. Air Pollutants: Area Source Standards for tor of Regulations Management, National EC–6723. A communication from the Chief Nine Metal Fabrication and Finishing Cemetery Administration, Department of Counsel, Federal Emergency Management Source Categories’’ ((RIN2060–A027) (FRL No. Veterans Affairs, transmitting, pursuant to Agency, Department of Homeland Security, 8683–3)) received on June 20, 2008; to the Com- law, the report of a rule entitled ‘‘Prohibi- transmitting, pursuant to law, the report of mittee on Environment and Public Works. tion of Interment or Memorialization in Na- a rule entitled ‘‘Changes in Flood Elevation EC–6734. A communication from the Dep- tional Cemeteries and Certain State Ceme- Determinations’’ (73 FR 33313) received on uty Director, National Institute of Stand- teries Due to Commission of Capital Crimes’’ June 20, 2008; to the Committee on Banking, ards and Technology, Department of Com- (RIN2900–AM86) received on June 20, 2008; to Housing, and Urban Affairs. merce, transmitting, pursuant to law, the re- the Committee on Veterans’ Affairs. EC–6724. A communication from the Chief port of a rule entitled ‘‘Technology Innova- f Counsel, Federal Emergency Management tion Program’’ (RIN0693–AB59) received on Agency, Department of Homeland Security, June 24, 2008; to the Committee on Com- REPORTS OF COMMITTEES transmitting, pursuant to law, the report of merce, Science, and Transportation. The following reports of committees a rule entitled ‘‘Changes in Flood Elevation EC–6735. A communication from the Direc- were submitted: Determinations’’ (73 FR 33315) received on tor, Office of Congressional Affairs, Nuclear June 20, 2008; to the Committee on Banking, Regulatory Commission, transmitting, pur- By Mr. LEAHY, from the Committee on Housing, and Urban Affairs. suant to law, the report of a rule entitled the Judiciary, without amendment: EC–6725. A communication from the Chief ‘‘List of Approved Spent Fuel Storage Casks: S. 2504. A bill to amend title 36, United Counsel, Federal Emergency Management HI–STORM 100 Revision 5’’ (RIN3150–AI24) re- States Code, to grant a Federal charter to Agency, Department of Homeland Security, ceived on June 24, 2008; to the Committee on the Military Officers Association of America, transmitting, pursuant to law, the report of Environment and Public Works. and for other purposes (Rept. No. 110–399). a rule entitled ‘‘Final Flood Elevation Deter- EC–6736. A communication from the Ad- By Mr. LEAHY, from the Committee on minations’’ (73 FR 33317) received on June 20, ministrator, Substance Abuse and Mental the Judiciary, with an amendment in the na- 2008; to the Committee on Banking, Housing, Health Services Administration, Department ture of a substitute and an amendment to and Urban Affairs. of Health and Human Services, transmitting, the title: EC–6726. A communication from the Chief pursuant to law, a report entitled, ‘‘National S. 2565. A bill to establish an awards mech- Counsel, Federal Emergency Management Alcohol and Drug Addiction Recovery anism to honor exceptional acts of bravery Agency, Department of Homeland Security, Month’’; to the Committee on Homeland Se- in the line of duty by Federal law enforce- transmitting, pursuant to law, the report of curity and Governmental Affairs. ment officers. a rule entitled ‘‘Suspension of Community EC–6737. A communication from the White f Eligibility’’ (73 FR 33311) received on June 20, House Liaison, Department of Education, EXECUTIVE REPORTS OF 2008; to the Committee on Banking, Housing, transmitting, pursuant to law, the report of and Urban Affairs. a vacancy and designation of an acting offi- COMMITTEES EC–6727. A communication from the Vice cer for the position of Assistant Secretary, The following executive reports of President and Controller, Federal Home Office of Postsecondary Education, received nominations were submitted: Loan Bank of Des Moines, transmitting, pur- on June 20, 2008; to the Committee on Mr. INOUYE. Mr. President, for the Com- suant to law, the Bank’s management report Health, Education, Labor, and Pensions. mittee on Commerce, Science, and Transpor- for fiscal year 2007; to the Committee on EC–6738. A communication from the White tation I report favorably the following nomi- Banking, Housing, and Urban Affairs. House Liaison, Department of Education, nation lists which were printed in the EC–6728. A communication from the Assist- transmitting, pursuant to law, the report of RECORDS on the dates indicated, and ask ant Secretary, Minerals Management Serv- a vacancy and designation of an acting offi- unanimous consent, to save the expense of ice, Department of the Interior, transmit- cer for the position of Assistant Secretary, reprinting on the Executive Calendar that ting, pursuant to law, the report of a rule en- Office of Management, received on June 20, these nominations lie at the Secretary’s titled ‘‘Open and Nondiscriminatory Move- 2008; to the Committee on Health, Education, desk for the information of Senators. ment of Oil and Gas as Required by the Outer Labor, and Pensions. Continental Shelf Lands Act’’ (RIN1010– EC–6739. A communication from the Direc- The PRESIDING OFFICER. Without AD17) received on June 19, 2008; to the Com- tor, Office of Personnel Management, trans- objection, it is so ordered. mittee on Energy and Natural Resources. mitting, pursuant to law, a report on Federal *Coast Guard nomination of Jeffrey R. EC–6729. A communication from the Direc- agencies’ use of the physicians’ com- Platt, to be Lieutenant. tor, Regulatory Management Division, Envi- parability allowance program; to the Com- *Coast Guard nomination of Eileen M. ronmental Protection Agency, transmitting mittee on Homeland Security and Govern- Lutkenhouse, to be Lieutenant Commander. a document issued by the Agency entitled, mental Affairs. *Coast Guard nomination of Nakeisha B. ‘‘Hazard Education Before Renovation of EC–6740. A communication from the Sec- Hills, to be Lieutenant Commander. Target Housing; State of Colorado Author- retary of Transportation, transmitting, pur- *Coast Guard nomination of Elizabeth A. ization Application’’; to the Committee on suant to law, the Office of Inspector Gen- McNamara, to be Lieutenant Commander. Environment and Public Works. eral’s Semiannual Report for the period of *National Oceanic and Atmospheric Ad- EC–6730. A communication from the Direc- October 1, 2007, through March 31, 2008; to ministration nominations beginning with tor, Regulatory Management Division, Envi- the Committee on Homeland Security and Mark H. Pickett and ending with Patrick M. ronmental Protection Agency, transmitting, Governmental Affairs. Sweeney III, which nominations were re- pursuant to law, the report of a rule entitled EC–6741. A communication from the Sec- ceived by the Senate and appeared in the ‘‘Approval and Promulgation of Implementa- retary and Director, Postal Regulatory Com- Congressional Record on May 22, 2008. tion Plans; Florida; Prevention of Signifi- mission, transmitting, pursuant to law, the By Mr. BIDEN for the Committee on For- cant Deterioration’’ (FRL No. 8684–4) re- report of a vacancy and designation of an eign Relations. ceived on June 20, 2008; to the Committee on acting officer for the position of Commis- *Liliana Ayalde, of Maryland, a Career Environment and Public Works. sioner, received on June 20, 2008; to the Com- Member of the Senior Foreign Service, Class EC–6731. A communication from the Direc- mittee on Homeland Security and Govern- of Minister-Counselor, to be Ambassador Ex- tor, Regulatory Management Division, Envi- mental Affairs. traordinary and Plenipotentiary of the ronmental Protection Agency, transmitting, EC–6742. A communication from the Direc- United States of America to the Republic of pursuant to law, the report of a rule entitled tor, Office of Personnel Management, trans- Paraguay.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6018 CONGRESSIONAL RECORD — SENATE June 24, 2008 Nominee: Liliana Ayalde. Contributions, Amount, Date, and Donee: 6/9/2005, People with Hart; 1,600, 6/26/2005, Peo- Post: Ambassador to Paraguay. 1. Self, $750, 10/28/2004, Richard Burr; $1,000, ple with Hart; 1,000, 7/18/2005, Stevens for (The following is a list of all members of 03/10/2005, Virginia Foxx; $2,100, 05/19/2005, Senate Committee; 1,000, 9/12/2005, Senate Re- my immediate family and their spouses. I Elizabeth Dole; $2,100, 05/19/2005, Elizabeth publican Majority; 1,000, 9/16/2005, Kyl for have asked each of these persons to inform Dole; $2,300, 05/07/2007, Rudy Giuliani; $250, 10/ Senate; 1,000, 9/22/2005, Friends of Mike Fer- me of the pertinent contributions made by 17/2007, Richard Burr. guson; 4,200, 9/28/2005, Gerlach for Congress; them. To the best of my knowledge, the in- 2. Spouse: Germaine C. Culbertson, $800, 05/ 2,100, 10/26/2005, Delay Congressional Com- formation contained in this report is com- 19/2005, Elizabeth Dole; $250, 10/16/2006, Rich- mittee; 5,000, 10/26/2005, McCain—Straight plete and accurate.) ard Burr; $2,300, 05/07/2007, Rudy Giuliani. Talk America PAC. Contributions, Amount, Date, and Donee: 3. Children and spouses: Blair and James 1,000, 3/2/2004, Castle Campaign Fund; 2,000, 1. Self, none. W. Robbins, no contributions. 3/2/2004, Citizens for Arlen Specter; 2,000, 3/2/ 2. Spouse, none. 4. Parents: Arthur B. and Siddie Belle 2004, Friends of Melissa Brown; 2,000, 3/2/2004, 3. Children and spouses: Stefanie Narvaez, Culbertson, deceased. Martinez for Senate; 4,000, 4/22/2004, Bill Shu- none; Natalia Narvaez, none. 5. Grandparents: Livi Angus and Mary ster for Congress; 25,000, 4/27/2004, Republican 4. Parents: Jaime Ayalde, none; Mercedes Braswell Lancaster, deceased; Henry Young National Committee; 2,000, 5/17/2004, Thune Ayalde, none. and Dora Durham Culbertson, deceased. for Senate; 2,000, 8/27/2004, Charlie Dent for 5. Grandparents: N/A. 6. Brothers and spouses: Arthur B. and Congress; 2,000, 8/27/2004, Jim Gerlach for 6. Brothers and spouses: Jaime H. Ayalde Brenda Culbertson, Jr., no contributions. Congress Committee; 2,000, 8/27/2004, Scott (brother), none; Julie Ayalde (sister-in-law), 7. Sisters and spouses: none. Paterno for Congress; 2,000, 8/27/2004, The none. *Rosemary Anne DiCarlo, of the District of Richard Burr Committee; 5,000, 10/15/2004, Re- 7. Sisters and spouses: Maria E. Ayalde Columbia, a Career Member of the Senior publican Federal Committee of PA. (sister), none; Sergio Romero (brother-in- Foreign Service, Class of Minister-Counselor, 2. Contributions for Constance Bricker Gi- law), none; Gloria Perez-Ayalde (sister), to be Alternate Representative of the United rard-diCarlo: 2,300, 1/16/2008, McCain 2008; none; Gustavo Perez (brother-in-law), none. States of America for Special Political Af- 5,000, 2/26/2008, D & G PAC (Dent and Ger- *John R. Beyrle, of Michigan, a Career fairs in the United Nations, with the rank of lach); 2,300, 3/21/2008, Texans for Senator Member of the Senior Foreign Service, Class Ambassador. John Cornyn. of Minister-Counselor, to be Ambassador Ex- *David F. Girard-diCarlo, of Pennsylvania, 2,100, 1/15/2007, McCain 2008; 2,300, 3/5/2007, traordinary and Plenipotentiary of the to be Ambassador Extraordinary and Pleni- Senate Majority Fund; 2,300, 4/25/2007, Cole- United States of America to the Russian potentiary of the United States of America man for Senate; 200, 6/1/2007, McCain 2008; Federation. to the Republic of Austria. 2,300, 6/1/2007, Citizens for Arlen Specter; Nominee: John Beyrle. Nominee: David Franklin Girard-diCarlo. 2,300, 6/1/2007, Treadwell for Congress; 1,000, 7/ Post: U.S. Ambassador, Moscow. Post: Chief of Mission, U.S. Embassy, Rep. 20/2007, Castle Campaign Fund; 1,000, 7/20/2007, (The following is a list of all members of of Austria. People for English; 1,000, 10/2/2007, Ferguson my immediate family and their spouses. I (The following is a list of all members of for Congress; 2,300, 11/6/2007, Treadwell for have asked each of these persons to inform my immediate family and their spouses. I Congress; 1,000, 11/7/2007, Collins for Senate; me of the pertinent contributions made by have asked each of these persons to inform 2,300, 12/19/2007, Re-elect Senator Arlen Spec- them. To the best of my knowledge, the in- me of the pertinent contributions made by ter. formation contained in this report is com- them. To the best of my knowledge, the in- 1,000, 2/22/2006, PHILPAC (Phil English); plete and accurate.) formation contained in this report is com- 2,100, 2/22/2006, Kean for U.S. Senate; 2,100, 3/ Contributions, Amount, Date, and Donee: plete and accurate.) 22/2006, Friends of Conrad Burns; 1,000, 3/27/ 1. Self: John Beyrle, 0. Contributions, Amount, Date, and Donee: 2006, Fitzpatrick for Congress; 25,000, 4/27/ 2. Spouse: Jocelyn Greene, 0. 1. Self, See attached. 2006, Republican National Committee; 2,100, 3. Children: Alison Beyrle, 0; Caroline 2. Spouse, See attached. 4/30/2006, Steele for Maryland, Inc.; 2,100, 5/16/ Beyrle, 0. 3. Children and spouses, none. 2006, Friends of Don Sherwood; 8,000, 6/15/2006, 4. Parents: JoAnne Beyrle, deceased; Jo- 4. Parents, deceased. Santorum Majority Committee; 2,100, 8/26/ seph Beyrle I, deceased. 5. Grandparents, deceased. 2006, Weldon Victory Committee; 2,100, 10/27/ 5. Grandparents: deceased. 6. Brothers and spouses: John Girard- 2006, DeWine for Senate; 500, 12/6/2006, Ste- 6. Brothers and spouses: Joseph Beyrle II, diCarlo, none; Pamela Girard-diCarlo, none. vens for Senate Committee. 0, Kathy Alward, 0. 7. Sisters and spouses: Elizabeth Severino, 1,000, 3/9/2005, Dent for Congress; 4,200, 5/1/ 7. Sisters and spouses: Julie Schugars, 0; ncone. 2005, Santorum 2006; 2,000, 5/11/2005, Senate Jack Schugars, 0. 1. Contributions for David Franklin Gi- Victory Fund; 1,000, 5/11/2005, People for * Asif J. Chaudhry, of Washington, a Career rard-diCarlo: 2,300, 1/16/2008, McCain 2008; English; 25,000, 5/11/2005, Republican Regents; Member of the Senior Foreign Service, Class 5,000, 2/26/2008, D & G PAC (Dent and Ger- 1,000, 5/19/2005, Young—Alaskans for Don of Minister-Counselor, to be Ambassador Ex- lach); 2,300, 3/21/2008, Texans for Senator Young; 4,200, 6/1/2005, Talent for Senate; 4,200, traordinary and Plenipotentiary of the John Cornyn; 1,000, 3/28/2008, Manion for Con- 9/28/2005, Gerlach for Congress; 2,100, 10/26/ United States of America to the Republic of gress, * Contribution made after Mr. Girard- 2005, Delay Congressional Committee. Moldova. diCarlo signed SFRC questionnaire on 3/26/08. 2,000, 1/26/2004, HALPAC; 1,000, 3/2/2004, Cas- Nominee: Asif J. Chaudhry. 2,100, 1/15/2007, McCain 2008; 1,000, 3/5/2007, tle Campaign Fund; 2,000, 3/2/2004, Friends of Post: Moldova. Davis for Congress; 2,300, 3/5/2007, Senate Ma- Melissa Brown; 2,000, 3/2/2004, Martinez for (The following is a list of all members of jority Fund; 500, 4/10/2007, Collins for Senate; Senate; 4,000, 3/2/2004, Citizens for Arlen my immediate family and their spouses. I 2,300, 4/25/2007, Coleman for Senate; 200, 6/1/ Specter; 1,000, 3/30/2004, Citizens for Bunning have asked each of these persons to inform 2007, McCain 2008; 2,300, 6/1/2007, Citizens for (KY); 1,000, 3/30/2004, Citizens for Cochran me of the pertinent contributions made by Arlen Specter; 2,300, 6/1/2007, Treadwell for (MS); 1,000, 3/30/2004, Vitter for US Senate them. To the best of my knowledge, the in- Congress; 1,000, 6/19/2007, Team Sununu (R– (LA); 4,000, 4/22/2004, Bill Shuster for Con- formation contained in this report is com- NH); 1,000, 7/20/2007, Castle Campaign Fund; gress; 25,000, 4/27/2004, Republican National plete and accurate.) 1,000, 7/20/2007, People for English; 1,000, 10/2/ Committee; 2,000, 5/17/2004, Thune for Senate; Contributions, Amount, Date, and Donee: 2007, Ferguson for Congress; 5,000, 10/10/2007, 2,000, 6/7/2004, Friends of Don Sherwood; 2,000, 1. Self, N/A. Republican Federal Committee of PA; 2,300, 8/27/2004, Charlie Dent for Congress; 2,000, 8/ 2. Spouse, $250, February 2004, John Kerry. 11/6/2007, Treadwell for Congress; 1,000, 11/7/ 27/2004, Jim Gerlach for Congress Committee; 3. Children and Spouses: N/A. 2007, Collins for Senate; 2,300, 12/19/2007, Re- 2,000, 8/27/2004, Scott Paterno for Congress; 4. Parents: N/A. elect Senator Arlen Specter. 2,000, 8/27/2004, The Richard Burr Committee. 5. Grandparents: N/A. 1,000, 2/22/2006, PHILPAC (Cong Phil John Melvin Jones, of Virginia, a Career 6. Brothers and Spouses: N/A English); 2,100, 2/22/2006, Kean for U.S. Sen- Member of the Senior Foreign Service, Class 7. Sisters and Spouses: N/A. ate; 2,100, 3/22/2006, Friends of Conrad Burns; of Counselor, to be Ambassador Extraor- * James Culbertson, of North Carolina, to 1,000, 3/27/2006, Tom Davis for Congress; 1,000, dinary and Plenipotentiary of the United be Ambassador Extraordinary and Pleni- 3/27/2006, Fitzpatrick for Congress; 25,000, 4/27/ States of America to the Co-operative Re- potentiary of the United States of America 2006, Republican National Committee; 4,200, public of Guyana. to the Kingdom of the Netherlands. 4/30/2006, Steele for Maryland, Inc.; 1,000, 5/16/ Noninee: John Melvin Jones. Nominee: James B. Culbertson. 2006, Dent for Congress; 5,000, 6/15/2006, Post—Georgetown, Guyana. Post: Ambassador to the Kingdom of the Santorum Majority Committee; 2,100, 8/26/ (The following is a list of all members of Netherlands. 2006, Weldon Victory Committee; 2,100, 10/27/ my immediate family and their spouses. I (The following is a list of all members of 2006, DeWine for Senate; 1,000, 10/27/2006, have asked each of these persons to inform my immediate family and their spouses. I Nancy Johnson for Congress. me of the pertinent contributions made by have asked each of these persons to inform 1,000, 5/1/2005, Friends of George Allen; them. To the best of my knowledge, the in- me of the pertinent contributions made by 4,200, 5/1/2005, Santorum 2006; 2,100, 5/1/2005, formation contained in this report is com- them. To the best of my knowledge, the in- Friends of Don Sherwood; 2,100, 5/1/2005, Tal- plete and accurate.) formation contained in this report is com- ent for Senate; 25,000, 5/11/2005, Republican Contributions, Amount, Date, and Donee: plete and accurate.) Regents; 2,100, 6/1/2005, Talent for Senate; 500, 1. Self, none.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6019 2. Spouse, none. * Rosemary Anne DiCarlo, of the District thorities of the Federal Energy Regulatory 3. Children and spouses: Christie R. and of Columbia, a Career Member of the Senior Commission under the Natural Gas Act and Keenan Aden, Jamal H.M. Jones, none. Foreign Service, Class of Minister-Counselor, the Federal Power Act, and for other pur- 4. Parents: Beverly E. and Bertha L. Jones, to be an Alternate Representative of the poses; to the Committee on Agriculture, Nu- both decreased. United States of America to the Sessions of trition, and Forestry. 5. Grandparents: John and Marian Porter, the General Assembly of the United Nations By Mr. SANDERS (for himself, Mr. both deceased. during her tenure of service as Alternate LEAHY, Mr. BROWN, and Mr. CARDIN): 6. Brothers and spouses; Earl B. Jones, de- Representative of the United States of Amer- S. 3186. A bill to provide funding for the creased. ica for Special Political Affairs in the United Low-Income Home Energy Assistance Pro- 7. Sisters and spouses: Elaine V. Williams; Nations. gram; read the first time. Jaculyn L. Jones, none. * Lezlee J. Westine, of Virginia, to be a By Mr. BIDEN (for himself and Mr. * Tina S. Kaidanow, of the District of Co- Member of the United States Advisory Com- LUGAR) (by request): lumbia, a Career Member of the Senior For- mission on Public Diplomacy for a term ex- S.J. Res. 42. A joint resolution relating to eign Service, Class of Counselor, to be Am- piring July 1, 2009. the approval of the proposed agreement for bassador Extraordinary and Plenipotentiary * Lyndon L. Olson, Jr., of Texas, to be a nuclear cooperation between the United of the United States of America to the Re- Member of the United States Advisory Com- States and the Russian Federation; to the public of Kosovo. mission on Public Diplomacy for a term ex- Committee on Foreign Relations pursuant to 42 U.S.C. 2159, for not to exceed 45 calendar Nominee: Tina S. Kaidanow. piring July 1, 2008. days. Post: U.S. Ambassador to Kosovo. * Eric J. Boswell, of the District of Colum- (The following is a list of all members of bia, to be an Assistant Secretary of State f my immediate family and their spouses. I (Diplomatic Security). have asked each of these persons to inform SUBMISSION OF CONCURRENT AND * Eric J. Boswell, of the District of Colum- SENATE RESOLUTIONS me of the pertinent contributions made by bia, to be Director of the Office of Foreign them. To the best of my knowledge, the in- Missions, and to have the rank of Ambas- The following concurrent resolutions formation contained in this report is com- sador during his tenure of service. and Senate resolutions were read, and plete and accurate.) referred (or acted upon), as indicated: Contributions, Amount, Date, and Donee: Mr. BIDEN. Mr. President, for the 1. Self, none. Committee on Foreign Relations I re- By Mr. BIDEN (for himself, Ms. SNOWE, 2. Spouse, none. port favorably the following nomina- Mrs. BOXER, Mr. LUGAR, Mr. KERRY, 3. Children and spouses, n/a. tion lists which were printed in the Mr. SPECTER, Mr. MENENDEZ, Mr. BROWNBACK, Mr. BAYH, Ms. 4. Parents: Esther Kaidanow, none; Howard RECORD on the dates indicated, and ask Kaidanow, none. STABENOW, and Mr. FEINGOLD): unanimous consent, to save the ex- S. Res. 598. A resolution expressing the 5. Grandparents, n/a. pense of reprinting on the Executive 6. Brothers and spouses: Eric Kaidanow, sense of the Senate regarding the need for none; Patricia Kaidanow, none. Calendar that these nominations lie at the United States to lead renewed inter- 7. Sisters and spouses, n/a. the Secretary’s desk for the informa- national efforts to assist developing nations * Philip Thomas Reeker, of the District of tion of Senators. in conserving natural resources and pre- venting the impending extinction of a large Columbia, a Career Member of the Senior The PRESIDING OFFICER. Without portion of the world’s plant and animal spe- Foreign Service, Class of Counselor, to be objection, it is so ordered. cies; to the Committee on Foreign Relations. Ambassador Extraordinary and Pleni- By Mr. NELSON of Nebraska (for him- potentiary of the United States of America * Foreign Service nomination of Russell self, Mr. HARKIN, Mr. HAGEL, and Mr. to the Republic of Macedonia. Green. * Foreign Service nomination of Dawn M. GRASSLEY): Nominee: Philip T. Reeker. S. Res. 599. A resolution expressing the Post: Ambassador to Macedonia. Liberi. * Foreign Service nominations beginning condolences of the Senate to those affected (The following is a list of all members of by the tragic events following the tornado my immediate family and their spouses. I with Matthew Kazuaki Asada and ending with Adam Zerbinopoulos, which nomina- that hit the Little Sioux Scout Ranch in Lit- have asked each of these persons to inform tle Sioux, Iowa, on June 11, 2008; considered me of the pertinent contributions made by tions were received by the Senate and ap- peared in the CONGRESSIONAL RECORD on May and agreed to. them. To the best of my knowledge, the in- By Mr. REID (for Mr. OBAMA (for him- formation contained in this report is com- 22, 2008. (minus 1 nominee: Tunisia M. Owens) self, Mr. SPECTER, Mr. LEAHY, and plete and accurate.) Mr. SCHUMER)): Contributions, Amount, Date, and Donee: * Nomination was reported with rec- S. Res. 600. A resolution commemorating 1. Philip T. Reeker $250, 12/13/05, Gabrielle ommendation that it be confirmed sub- the 44th anniversary of the deaths of civil Giffords; $250, 03/18/06, Gabrielle Giffords; ject to the nominee’s commitment to rights workers Andrew Goodman, James $250, 06/26/06, Gabrielle Giffords. respond to requests to appear and tes- Chaney, and Michael Schwerner in Philadel- 2. Spouse: Solveig C. Reeker, none. tify before any duly constituted com- phia, Mississippi, while working in the name 3. Children and spouses: N/A. of American democracy to register voters 4. Parents: Larry H. Reeker (father), none; mittee of the Senate. and secure civil rights during the summer of Linda K. Davenport (mother), none. f 1964, which has become known as ‘‘Freedom 5. Grandparents: Walter M. & Frances M. Summer″; considered and agreed to. Reeker, both deceased; Emery I. Karman and INTRODUCTION OF BILLS AND f Constance K. St. Clair, both deceased. JOINT RESOLUTIONS 6. Brothers and Spouses: David A. and The following bills and joint resolu- ADDITIONAL COSPONSORS Laura Reeker, none; Greg J. Reeker, none; tions were introduced, read the first S. 621 Seth S. Reeker, none. and second times by unanimous con- 7. Sister and Spouse: Christina & Patrick At the request of Mr. FEINGOLD, the Davenport, none. sent, and referred as indicated: name of the Senator from Oregon (Mr. * Kristen Silverberg, of Texas, to be Rep- By Mr. DORGAN (for himself, Mr. NEL- SMITH) was added as a cosponsor of S. resentative of the United States of America SON of Florida, and Mr. CARPER): 621, a bill to establish commissions to to the European Union, with the rank and S. 3183. A bill to amend the Commodity Ex- review the facts and circumstances sur- status of Ambassador Extraordinary and change Act to provide oil and gas price relief rounding injustices suffered by Euro- Plenipotentiary. by requiring the Commodity Futures Trad- pean Americans, European Latin Nominee: Kristen Lee Silverberg. ing Commission to take action to end exces- Americans, and Jewish refugees during Post: Ambassador to the European Union. sive speculation, and for other purposes; to World War II. (The following is a list of all members of the Committee on Agriculture, Nutrition, my immediate family and their spouses. I and Forestry. S. 661 have asked each of these persons to inform By Mr. KERRY: At the request of Mrs. CLINTON, the me of the pertinent contributions made by S. 3184. A bill to make grants to States to name of the Senator from Colorado them. To the best of my knowledge, the in- implement statewide portal initiatives, and (Mr. SALAZAR) was added as a cospon- formation contained in this report is com- for other purposes; to the Committee on Fi- sor of S. 661, a bill to establish kinship plete and accurate.) nance. navigator programs, to establish Contributions, Amount, Date, and Donee: By Ms. CANTWELL (for herself, Mr. guardianship assistance payments for 1. Self, President George W. Bush, $2000. WHITEHOUSE, Mr. SANDERS, Mr. children, and for other purposes. 2. Parents: Eric and Rhoda Silverberg, KERRY, Mr. WYDEN, and Mr. NELSON none. of Florida): S. 803 3. Grandparents: Axel Silverberg, none. S. 3185. A bill to provide for regulation of At the request of Mr. ROCKEFELLER, 4. Sister and Spouse: Lee Silverberg and certain transactions involving energy com- the name of the Senator from New Jer- Lane Duncan, none. modities, to strengthen the enforcement au- sey (Mr. LAUTENBERG) was added as a

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6020 CONGRESSIONAL RECORD — SENATE June 24, 2008 cosponsor of S. 803, a bill to repeal a standing contributions and leadership (Mr. LAUTENBERG) was added as a co- provision enacted to end Federal in the fields of medicine and genetics. sponsor of S. 2790, a bill to amend title matching of State spending of child S. 2173 XVIII of the Social Security Act to support incentive payments. At the request of Mr. HARKIN, the provide for coverage of comprehensive S. 960 name of the Senator from Rhode Island cancer care planning under the Medi- At the request of Mrs. CLINTON, the (Mr. WHITEHOUSE) was added as a co- care program and to improve the care name of the Senator from Maryland sponsor of S. 2173, a bill to amend the furnished to individuals diagnosed with (Mr. CARDIN) was added as a cosponsor Elementary and Secondary Education cancer by establishing a Medicare hos- of S. 960, a bill to establish the United Act of 1965 to improve standards for pice care demonstration program and States Public Service Academy. physical education. grants programs for cancer palliative S. 1232 S. 2279 care and symptom management pro- At the request of Mr. DODD, the name At the request of Mr. BIDEN, the grams, provider education, and related of the Senator from Vermont (Mr. name of the Senator from Vermont research. SANDERS) was added as a cosponsor of (Mr. SANDERS) was added as a cospon- S. 2818 S. 1232, a bill to direct the Secretary of sor of S. 2279, a bill to combat inter- At the request of Mr. ENZI, the name Health and Human Services, in con- national violence against women and of the Senator from Oklahoma (Mr. sultation with the Secretary of Edu- girls. INHOFE) was added as a cosponsor of S. cation, to develop a voluntary policy S. 2504 2818, a bill to amend the Employee Re- for managing the risk of food allergy At the request of Mr. NELSON of Flor- tirement Income Security Act of 1974 and anaphylaxis in schools, to estab- ida, the name of the Senator from Mis- and the Public Health Service Act to lish school-based food allergy manage- souri (Mrs. MCCASKILL) was added as a provide for enhanced health insurance ment grants, and for other purposes. cosponsor of S. 2504, a bill to amend marketplace pooling and relating mar- S. 1410 title 36, United States Code, to grant a ket rating. Federal charter to the Military Offi- At the request of Mr. COLEMAN, the S. 2908 name of the Senator from Maine (Ms. cers Association of America, and for At the request of Mr. BROWN, the other purposes. SNOWE) was added as a cosponsor of S. name of the Senator from New York 1410, a bill to amend the Internal Rev- S. 2505 (Mr. SCHUMER) was added as a cospon- enue Code of 1986 to allow a credit At the request of Ms. CANTWELL, the sor of S. 2908, a bill to amend title II of against income tax for the purchase of name of the Senator from Massachu- the Social Security Act to prohibit the hearing aids. setts (Mr. KERRY) was added as a co- display of Social Security account sponsor of S. 2505, a bill to allow em- S. 1661 numbers on Medicare cards. ployees of a commercial passenger air- At the request of Mr. DORGAN, the S. 3072 line carrier who receive payments in a name of the Senator from South Da- At the request of Mr. WICKER, the bankruptcy proceeding to roll over kota (Mr. JOHNSON) was added as a co- name of the Senator from New Hamp- such payments into an individual re- sponsor of S. 1661, a bill to commu- shire (Mr. SUNUNU) was added as a co- tirement plan, and for other purposes. nicate United States travel policies sponsor of S. 3072, a bill to provide for S. 2618 and improve marketing and other ac- comprehensive health reform. At the request of Mr. ISAKSON, the tivities designed to increase travel in S. 3122 name of the Senator from Ohio (Mr. the United States from abroad. At the request of Ms. CANTWELL, the VOINOVICH) was added as a cosponsor of name of the Senator from Oregon (Mr. S. 1963 S. 2618, a bill to amend the Public WYDEN) was added as a cosponsor of S. At the request of Mr. ROCKEFELLER, Health Service Act to provide for re- 3122, a bill to amend the Commodity the name of the Senator from Illinois search with respect to various forms of Exchange Act to provide for the regula- (Mr. DURBIN) was added as a cosponsor muscular dystrophy, including Becker, tion of oil commodities markets, and of S. 1963, a bill to amend the Internal congenital, distal, Duchenne, Emery- for other purposes. Revenue Code of 1986 to allow bonds Dreifuss Facioscapulohumeral, limb- guaranteed by the Federal home loan girdle, myotonic, and oculopharyngeal S. 3130 banks to be treated as tax exempt muscular dystrophies. At the request of Mr. DURBIN, the bonds. name of the Senator from Missouri S. 2666 (Mrs. MCCASKILL) was added as a co- S. 1970 At the request of Ms. CANTWELL, the At the request of Mr. DODD, the name name of the Senator from Michigan sponsor of S. 3130, a bill to provide en- ergy price relief by authorizing greater of the Senator from New Jersey (Mr. (Mr. LEVIN) was added as a cosponsor of MENENDEZ) was added as a cosponsor of S. 2666, a bill to amend the Internal resources and authority for the Com- S. 1970, a bill to establish a National Revenue Code of 1986 to encourage in- modity Futures Trading Commission, Commission on Children and Disasters, vestment in affordable housing, and for and for other purposes. a National Resource Center on Chil- other purposes. S. 3131 dren and Disasters, and for other pur- S. 2681 At the request of Mrs. FEINSTEIN, the poses. At the request of Mr. INHOFE, the name of the Senator from Oregon (Mr. S. 2042 names of the Senator from New Mexico WYDEN) was added as a cosponsor of S. At the request of Ms. STABENOW, the (Mr. BINGAMAN) and the Senator from 3131, a bill to amend the Commodity name of the Senator from Connecticut Alaska (Ms. MURKOWSKI) were added as Exchange Act to ensure the application (Mr. LIEBERMAN) was added as a co- cosponsors of S. 2681, a bill to require of speculation limits to speculators in sponsor of S. 2042, a bill to authorize the issuance of medals to recognize the energy markets, and for other pur- the Secretary of Health and Human dedication and valor of Native Amer- poses. Services to conduct activities to rap- ican code talkers. S. 3134 idly advance treatments for spinal S. 2731 At the request of Mr. NELSON of Flor- muscular atrophy, neuromuscular dis- At the request of Mr. BIDEN, the ida, the names of the Senator from Illi- ease, and other pediatric diseases, and name of the Senator from Maine (Ms. nois (Mr. OBAMA) and the Senator from for other purposes. SNOWE) was added as a cosponsor of S. California (Mrs. BOXER) were added as S. 2140 2731, a bill to authorize appropriations cosponsors of S. 3134, a bill to amend At the request of Mr. DORGAN, the for fiscal years 2009 through 2013 to pro- the Commodity Exchange Act to re- names of the Senator from Michigan vide assistance to foreign countries to quire energy commodities to be traded (Mr. LEVIN) and the Senator from Ha- combat HIV/AIDS, tuberculosis, and only on regulated markets, and for waii (Mr. INOUYE) were added as co- malaria, and for other purposes. other purposes. sponsors of S. 2140, a bill to award a S. 2790 S. 3167 Congressional Gold Medal to Francis At the request of Ms. LANDRIEU, the At the request of Mr. BURR, the Collins, in recognition of his out- name of the Senator from New Jersey names of the Senator from Alaska (Mr.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6021 STEVENS), the Senator from South S. 3183. A bill to amend the Com- to be speculators in that market. Now Carolina (Mr. DEMINT) and the Senator modity Exchange Act to provide oil it has gone to 71 percent. The specu- from North Carolina (Mrs. DOLE) were and gas price relief by requiring the lators have taken over that market. added as cosponsors of S. 3167, a bill to Commodity Futures Trading Commis- When the Commodity Exchange Act amend title 38, United States Code, to sion to take action to end excessive was passed by the Congress in the 1930s, clarify the conditions under which vet- speculation, and for other purposes; to here is what the congressional report erans, their surviving spouses, and the Committee on Agriculture, Nutri- said: This bill authorizes the Commis- their children may be treated as adju- tion, and Forestry. sion—the Commodity Futures Trading dicated mentally incompetent for cer- Mr. DORGAN. Mr. President, I rise to Commission; that is supposed to be the tain purposes. introduce a piece of legislation on be- regulating body—to fix limitations on S. RES. 530 half of myself, Senator NELSON of Flor- purely speculative trades and commit- At the request of Mr. DORGAN, the ida, and Senator CARPER dealing with ments. name of the Senator from Ohio (Mr. the subject of energy speculation. I Hedging is exempted. But for purely speculative positions, we provided the BROWN) was added as a cosponsor of S. want to run through a couple charts, Res. 530, a resolution designating the and I want to describe the reason for authority to the Commodity Futures week beginning October 5, 2008, as ‘‘Na- the introduction of this legislation. Trading Commission to deal with that because we did not want this market to tional Sudden Cardiac Arrest Aware- This chart shows the price of oil and be taken over by speculators. ness Week’’. what has happened to the price of oil. I have used these charts many times. S. RES. 580 The price of oil has nearly doubled in a year. There is no justification for it, no This one has to do with Fadel Gheit, At the request of Mr. BAYH, the name the top energy analyst for of the Senator from Louisiana (Ms. fundamentals of supply and demand that explain what has happened to the Oppenheimer & Co. Here is what he LANDRIEU) was added as a cosponsor of says: S. Res. 580, a resolution expressing the price of oil. These commodity contracts, by and There is absolutely no shortage of oil. I’m sense of the Senate on preventing Iran large, are traded in this country on convinced that oil prices shouldn’t be a dime from acquiring a nuclear weapons capa- above $55 a barrel. something called the commodity ex- bility. I call it the world’s largest gambling hall. change—NYMEX, it is called. This is ... It’s open 24/7. . . . Unfortunately, it’s to- AMENDMENT NO. 4979 what it looks like. They trade back and tally unregulated. . . . This is like a highway At the request of Mr. NELSON of Flor- forth, and there are legitimate reasons with no cops on the beat and no speed limit ida, the names of the Senator from to trade on the exchanges. Those rea- and everybody’s going 120 miles an hour. Delaware (Mr. BIDEN), the Senator sons to trade on the exchanges are for I will not show all the charts I have from Illinois (Mr. OBAMA), the Senator legitimate hedging for actual physical shown in the past, but the CEO of Mar- from Illinois (Mr. DURBIN), the Senator petroleum products for future delivery. athon Oil says: from Washington (Ms. CANTWELL) and The problem is, with respect to the oil $100 oil isn’t justified by the physical de- the Senator from Montana (Mr. TEST- markets, the legitimate hedging has mand in the market. ER) were added as cosponsors of amend- become a smaller part of what is trad- It was recently reported Americans ment No. 4979 intended to be proposed ed. There is now this unbelievable spec- drove 4.5 to 5 billion fewer miles in the to S. 3001, an original bill to authorize ulation going on in the commodity last 6 months than in the previous 6 appropriations for fiscal year 2009 for markets. That speculation has per- months. So we are driving 4 or 5 billion military activities of the Department verted the market, broken the market, fewer miles, using less energy. Four of of Defense, for military construction, causing the price of oil and gasoline to the first 5 months of this year, crude and for defense activities of the De- be well above that which is justifiable. oil inventories were up—not down, up. partment of Energy, to prescribe mili- We have an organization in the Gov- So if the supply of the product is going tary personnel strengths for such fiscal ernment called the Energy Information up and the use of the product is going year, and for other purposes. Administration, the EIA. They are the down, the marketplace would have you AMENDMENT NO. 5009 ones who know what there is to know believe—or at least you would expect— At the request of Mr. CRAPO, the about energy issues. As shown on this the price would come down. Instead, names of the Senator from Arizona chart, here is what they have told us. the price has gone up, which dem- (Mr. KYL) and the Senator from Utah Back in May of 2007—last year—here is onstrates this is not about market fun- (Mr. HATCH) were added as cosponsors where they said the price of oil would damentals. It is about an unbelievable of amendment No. 5009 intended to be be. Back in July, they said it would be orgy of speculation in the marketplace proposed to H.R. 3221, a bill to provide on this line, as shown on this chart; that is not justified. needed housing reform and for other back in September, on this line. I hope Now the question is, Will Congress do purposes. they were not buying any commodities something about it or will it just apply AMENDMENT NO. 5020 on the basis of their advice—they some lip gloss? Is this just something At the request of Mr. ENSIGN, the would be flat broke in a month. Here is where we act as if we are doing some- names of the Senator from Alaska (Ms. what happened to the price. It went thing or are we going to drive the spec- MURKOWSKI) and the Senator from Wy- straight up. All the while, the EIA did ulators out of this market? I am intro- oming (Mr. BARRASSO) were added as not seem to have the foggiest notion of ducing legislation that is tough and cosponsors of amendment No. 5020 in- where the price was going to go. Why? real and will address this issue. tended to be proposed to H.R. 3221, a Because the fundamentals do not jus- The regulating body here is the Com- bill to provide needed housing reform tify what is happening. modity Futures Trading Commission. and for other purposes. Now I have the EIA coming down to It has acted like most regulating bod- AMENDMENT NO. 5024 testify before my subcommittee this ies in recent years. Most of them are At the request of Ms. COLLINS, the week. I want to ask them these ques- run by people who came to the Govern- name of the Senator from Maine (Ms. tions. They insist there is very little ment not liking Government and not SNOWE) was added as a cosponsor of speculation in this marketplace. But wanting to regulate. It all goes back to amendment No. 5024 intended to be pro- most experts insist this has become an Mr. Pitt, back in 2001, in which he said: posed to H.R. 3221, a bill to provide unbelievable spectacle of speculation The Securities and Exchange Commis- needed housing reform and for other that injures America’s drivers and con- sion is going to be a business-friendly purposes. sumers, injures our industry, and place. Well, we have seen a lot of these f causes great damage to our economy. agencies that are business friendly. A House study, just in the last few They just get out of the way and pre- STATEMENTS ON INTRODUCED days, from the House Subcommittee on tend they are in a deep Rip van Winkle BILLS AND JOINT RESOLUTIONS Oversight and Investigations, said here sleep, and they are not going to see By Mr. DORGAN (for himself, Mr. is what has happened to the commod- anything and they are not going to NELSON of Florida, and Mr. ities market with respect to oil. As to know anything and they are not going CARPER): the oil futures market: 37 percent used to care much about anything.

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If ever we wonder about that, cators to collaborate and discuss teach- Franklin Delano Roosevelt, when he take a look at what has happened to ing and learning experiences, as well as signed this legislation some 70, 80 years the price of oil and gas in a situation providing a vital communication tool ago, said: where speculators have taken over. between the school and parents. It should be our national policy to restrict, The Commodity Futures Trading It is for these reasons, I am spon- as far as possible, the use of these exchanges Commission is a regulator of this mar- soring legislation to help my State and for purely speculative operations. ket. It has done a miserable job. It has others secure the funding they need to Franklin Roosevelt knew it. Why nearly all the authority it needs to do improve their education systems and doesn’t this Commodity Futures Trad- the right thing. What I propose to do prepare their students for success. ing Commission know it? with the Commodity Futures Trading While it is true that Congress has done The legislation I am introducing Commission is wring the speculators a lot to promote education technology today does a couple things. No. 1, it de- out of this market. They have dis- and set higher standards for teachers, mands the Commodity Futures Trading torted the market, broken the market, more must be done to address the di- Commission by date certain to distin- and we end up in a situation now where vide that afflicts so many of our rural guish between that which represents the price of gasoline is devastating this and urban schools. normal hedging transactions between economy. The price of oil is not justi- What is missing is a funding source producers and consumers of a physical fied by supply and demand. When that for states to develop and maintain web- product and the rest, which is specula- happens, there is a responsibility for based tools for training, communica- tion. It says this market is designed for this Congress to act. It is an urgent re- tion, collaboration, and curriculum normal hedging of risks between pro- sponsibility, in my judgment, now for planning. The Empowering Teaching ducers and consumers of a physical this Congress to say what is happening and Learning Through Education Por- product. Others who are engaged in ex- is wrong, it is hurting this country’s tals Act establishes annual competitive cess speculation are going to be slapped economy, it is hurting industries and grants that will provide funding on a with a higher margin—a 25-percent the American people, and we need to do one-to-one basis for states that wish to margin requirement—that is either something about it. The best start, in implement and maintain best-practice quadruple or quintuple the current re- my judgment, would be to pass this education portals. The legislation also provides new tax incentives to private quirement, depending on what is as- legislation I am introducing today. sessed between the 5- and 7-percent One final point. I am reaching out to organizations that support State edu- cation portal efforts. rate. But this essentially says to specu- Democratic and Republican offices in The Empowering Teaching and lators: It is going to cost you more to the hopes that this will be a bipartisan Learning Through Education Portals piece of legislation that will address a speculate in this marketplace if you Act bridges the urban-rural digital di- very serious issue on an urgent basis are one of these folks who just want to vide by ensuring that all districts have and begin to do something that mod- speculate to make a lot of money. access to the best available resources. Will Rogers talked about this long erates the price of oil and gas that It supports high quality teaching, pro- ago. He talked about people buying many experts have told us is 20, 30, and fessional development and retention of things they will never get from people in some cases 40 percent above that teachers and promotes an on-line sup- who never had it. That is what is going which is justified by the marketplace. port network and learning community on with investment banks, hedge funds, We should not stand for it. We do not for teachers and administrators. Fur- and a lot of others who are neck deep have to. We ought to pass this legisla- thermore, it provides teacher coaching in this marketplace. They have never tion soon. and guidance in order to address the seen a barrel of oil. They don’t want a By Mr. KERRY: challenges of teaching a diverse stu- S. 3184. A bill to make grants to barrel of oil. All they want to do is dent body, and collaborate on winning States to implement statewide portal speculate and make a bundle of money. strategies to address various learning initiatives, and for other purposes; to The problem is, it is damaging this styles, needs, and achievement levels. country. the Committee on Finance. It offers administrators tools to se- Mr. KERRY. Mr. President, we must My legislation, No. 1, requires the curely communicate and collaborate do all we can to ensure that our young separation of legitimate traders verses with district personnel, as well as with people have the skills necessary to speculators. It puts an increased mar- the Department of Education, and compete in today’s global economy. My gin requirement on the speculators to gives them access to formative assess- home State of Massachusetts has done try to wring some of that speculation ments and other resources. Finally, it an outstanding job ensuring that edu- out of the market. provides a means to actively engage cators have access to the high-quality No. 2, it requires position limits that students in a rich, relevant, multi- are significant, imposed by the Com- tools necessary to adequately prepare media environment that results in im- modity Futures Trading Commission. our students for the future. In par- proved learning and student retention. No. 3, it requires the Commodity Fu- ticular, they have been one of a hand- It is imperative that we prepare our tures Trading Commission to revoke or ful of pioneering states that have cre- children for the sophisticated work- modify any previous actions they have ated a statewide, online education force of the 21st century and an in- taken in which they have prevented ‘‘portal’’, which is a suite of web-based creasingly competitive global econ- themselves from being able to regulate tools that enhance the teaching and omy. This legislation takes some of the and see the transactions that exist in learning experience for teachers, par- brightest ideas for modernizing teach- this futures market. ents, and students. ing and learning and matches them Unbelievably almost, the Commodity Education portals are a one-stop re- with the dollars needed to translate Futures Trading Commission, which is source for educators, parents, and stu- them from paper to practice. That, I the regulator, decided, on its own voli- dents to support teaching and learning, believe, is a goal we can all agree on. tion, that it would allow, for example, as well as leadership skills. Portals I urge my colleagues to support the a London exchange, largely owned by provide access to shared resources and Empowering Teaching and Learning American interests, to come in and create an entry point to other informa- Through Education Portals Act. trade on computer terminals in At- tion and services including: lesson Mr. President, I ask unanimous con- lanta, GA, and pretend they are not plans; research-based training re- sent that the text of the bill be printed American. So the Commodity Futures sources; model classroom examples; en- in the RECORD. Trading Commission said: Do you know gaging interactive media; listservs; and There being no objection, the text of what, we will do a letter of no action so after-school resources. Among other the bill was ordered to be printed in we can’t regulate and can’t see it. That things, a portal allows educators to the RECORD, as follows:

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S. 3184 (1) IN GENERAL.—The Federal share of the (2) provides an entry point to other infor- Be it enacted by the Senate and House of Rep- cost described in subsection (a) shall be 50 mation or services, including information on resentatives of the United States of America in percent. model examples of effective classroom prac- Congress assembled, (2) NON-FEDERAL SHARE.—The State may tices, subscriptions or data systems, content provide the non-Federal share of the cost in standards, lesson plans, courses of study, en- SECTION 1. SHORT TITLE. cash or in kind, fairly evaluated, including gaging interactive media, Web resources, e- This Act may be cited as the ‘‘Empowering plant, equipment, or services. The State may mail list management software, online port- Teaching and Learning Through Education provide the non-Federal share from State, folios, after-school program resources, and Portals Act’’. local, or private sources. other educational resources; SEC. 2. DEFINITIONS. SEC. 4. APPLICATIONS AND AWARDS. (3) provides access to technology-based In this Act: (a) IN GENERAL.—To be eligible to receive a curriculum resources and tools that promote (1) 21ST CENTURY SKILLS.—The term ‘‘21st grant under this section for an initiative, a the teaching and learning of 21st century century skills’’— State shall submit an application to the Sec- skills; (A) means skills that students need to suc- retary at such time, in such manner, and (4) enables covered educators to quickly ceed in school, work, and life; and containing such information as the Sec- search for lesson plans, professional develop- (B) includes— retary may require. ment resources, model examples of effective (i) skills related either to core academic (b) CONTENTS.—The application shall con- classroom practices, or other resources, by subjects or to 21st century themes; tain, at a minimum— content standard, grade level, or topic; (ii) learning and innovation skills, such (1) a comprehensive plan for the initiative (5) provides an online support network or as— for which the State seeks the grant, includ- community for covered educators to collabo- (I) creativity and innovation; ing evidence that the initiative meets the re- rate on and discuss teaching, learning, cur- (II) critical thinking and problem solving; quirements of subsections (a) and (c) of sec- ricula, and experiences, and serves as a com- or tion 5; munication tool between covered educators (III) communication and collaboration; and (2) information describing how the State and covered parents; (iii) life and career skills to prepare stu- will provide the non-Federal share of the (6) includes digital media content devel- dents for the global economy, such as— cost described in section 3(a), and will con- oped by a television public broadcasting en- (I) flexibility and adaptability; tinue to provide that share during the imple- tity in coordination with the grant recipient; (II) productivity and accountability; or mentation of the initiative and the remain- or (III) leadership and responsibility. der of the grant period; (7) makes available access to 1 or more re- (3) information describing how the State (2) CORE ACADEMIC SUBJECTS; EDUCATIONAL source sections of the education portal, sub- will meet the maintenance of effort require- AGENCIES; SCHOOLS; STATE.—The terms ‘‘core ject to the protocol described in section academic subjects’’, ‘‘elementary school’’, ments in section 6; 4(b)(4), by covered education, covered stu- ‘‘local educational agency’’, ‘‘secondary (4) information explaining the protocol the dents, and covered parents, from other school’’, ‘‘State’’, and ‘‘State educational State will use to ensure safe and legal access States (with no requirement for State-spe- agency’’ have the meanings given the terms to the education portal; cific log-ins), so that those covered edu- in section 9101 of the Elementary and Sec- (5) an assurance that the State has estab- cators, covered students, and covered par- ondary Education Act of 1965 (20 U.S.C. 7801). lished or will establish an advisory panel, to ents can benefit from resources developed in provide advice on the implementation and (3) COVERED EDUCATOR.—The term ‘‘covered the State, thereby expanding access to the educator’’ means a teacher, administrator, maintenance of the initiative, including rep- national learning community. resentatives of leaders in school districts, or other professional staff member, at a cov- (c) PROVISION OF AND ACCESS TO RE- leaders at institutions of higher education, ered school. SOURCES.—The covered educators, covered (4) COVERED PARENT.—The term ‘‘covered State educational agencies, parents, and students, and covered parents in the State parent’’ means the parent of a covered stu- teachers; and may provide resources and information for dent. (6) a plan to ensure sufficient statewide the education portal, subject to the protocol (5) COVERED SCHOOL.—The term ‘‘covered bandwidth capacity and systems access to described in section 4(b)(4). The resources school’’ means a Head Start agency oper- implement and maintain the State education and information in the education portal ating a Head Start program, or a public portal. shall be accessible statewide by the edu- (c) AWARDS.—In determining the amounts school that is a preschool, elementary cators, students, and parents, subject to the of grants under this Act, the Secretary— school, secondary school, or institution of protocol. (1) shall take into consideration the extent higher education (including such an institu- (d) OTHER FEDERAL FUNDS.—A State that to which a State has developed and imple- tion offering a program leading to a bacca- receives a grant under part A of title II of mented an education portal initiative prior laureate degree or a program leading to an the Elementary and Secondary Education to the date of the submission of the applica- advanced degree). Act of 1965 (20 U.S.C. 6601 et seq.) may use tion involved; but (6) COVERED STUDENT.—The term ‘‘covered funds made available through that grant to (2) shall not penalize States that have student’’ means a student at a covered maintain (but not implement) the State’s made greater progress in developing and im- school. education portal initiative under this Act, plementing such initiatives. (7) COVERED TEACHER.—The term ‘‘covered after the end of the period in which the State teacher’’ means a teacher at a covered SEC. 5. USE OF FUNDS. receives funding under this Act. (a) REQUIRED USES.—A State that receives school. (e) CONFORMING AMENDMENT.—Section a grant under this Act for a fiscal year shall (8) EDUCATION TECHNOLOGY.—The term 2113(a) of the Elementary and Secondary use the funds made available through the ‘‘education technology’’ means any tech- Education Act of 1965 (20 U.S.C. 6613(a)) is grant to implement or maintain an edu- nology resource that improves the learning, amended by striking ‘‘A’’ and inserting cation portal initiative that includes— training, and engagement of students or ‘‘Subject to section 5 of the Empowering (1) collecting and making available— helps teachers learn, improve their knowl- Teaching and Learning Through Education (A) high quality resources (including data, edge, and practice. Portals Act, a’’. tools, and digital media content) for covered (9) INSTITUTION OF HIGHER EDUCATION.—The educators, covered students, and covered SEC. 6. MAINTENANCE OF EFFORT. term ‘‘institution of higher education’’ has parents, that support teaching, leading, and (a) IN GENERAL.—A State that receives a the meaning given the term in sections 101 learning, and are, as appropriate, aligned grant under this Act for a fiscal year shall and 102 of the Higher Education Act of 1965 with State education standards; and maintain the expenditures of the State for (20 U.S.C. 1001, 1002). (B) information for covered teachers to use education portal initiatives at a level not (10) PROFESSIONAL DEVELOPMENT.—The in assisting covered students to attain skills less than the level of such expenditures of term ‘‘professional development’’ means a such as 21st century skills; and the State for the fiscal year preceding the resource or training that increases a teach- (2) collecting resources for ongoing and first fiscal year for which the State received er’s skills, content knowledge, or other in- sustainable professional development for such a grant. formation that has a positive impact on stu- covered educators, related to the use of edu- (b) REDUCTION.—If the Secretary deter- dent learning. cation technology, and making the resources mines that a State, during a fiscal year, ex- (11) SECRETARY.—The term ‘‘Secretary’’ available through the implementation of re- pends less than the sum required to comply means the Secretary of Education. search-based methods and strategies for with subsection (a), the Secretary shall— SEC. 3. GRANTS. teacher coaching, collaborating, or men- (1) determine the difference between the (a) IN GENERAL.—The Secretary may award toring. required sum and the expenditure; and grants to eligible States, to pay for the Fed- (b) ALLOWABLE USES.—The State may use (2) reduce the State’s grant under this Act eral share of the cost of implementing and the funds made available through the grant for the following year by the amount of the maintaining education portal initiatives. for such an initiative, for a portal that— difference. (b) AMOUNTS.—The Secretary may award (1) gives covered educators access to form- SEC. 7. EVALUATIONS AND CONFERENCE. the grants for periods of not less than 1 year ative assessment and other resources to ad- (a) FEDERAL EVALUATION.—The Secretary and not more than 3 years. dress various student learning styles, needs, shall conduct an evaluation of each initia- (c) FEDERAL SHARE.— and achievement levels; tive funded under this Act. The Secretary

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Pursuant to section mitigation, protection from storm surges, of the evaluation to Congress. 130i.(2) of that Act, the majority and and the sequestration of carbon; (b) FEDERAL CONFERENCE.—Not less often minority leaders have designated Sen- Whereas human encroachment into natural than once every 2 years, the Secretary shall ecosystems increases opportunities for the ator LUGAR and me to introduce this hold a conference for advisory panels de- emergence and transmission of new animal- scribed in section 4(b)(5), to share informa- resolution. borne diseases that could cause high levels of tion on best practices relating to education f human mortality and affect major global in- portal initiatives. dustries including travel, trade, tourism, (c) STATE EVALUATIONS.—Each State that SUBMITTED RESOLUTIONS food production, and finance; receives a grant under this Act shall conduct Whereas loss of species can jeopardize im- an evaluation of the initiative funded under portant future pharmaceutical discoveries, the grant, using funds provided as part of the SENATE RESOLUTION 598—EX- given that more than 1⁄4 of all medicinal non-Federal share of the costs described in PRESSING THE SENSE OF THE drugs possess active ingredients from wild section 3(a). The State shall prepare and sub- SENATE REGARDING THE NEED species and that at least 1⁄2 of the most pre- scribed medicines in the United States are mit to the Secretary a report containing the FOR THE UNITED STATES TO results of the evaluation. derived from natural compounds; LEAD RENEWED INTERNATIONAL Whereas natural pollinators and the oppor- SEC. 8. AUTHORIZATION OF APPROPRIATIONS. EFFORTS TO ASSIST DEVEL- There is authorized to be appropriated to tunities of wild and domesticated cross- carry out this Act $100,000,000 for each of fis- OPING NATIONS IN CONSERVING breeding are vital to world and United States cal years 2009 through 2012, and such sums as NATURAL RESOURCES AND PRE- agriculture; may be necessary for each of the following 2 VENTING THE IMPENDING EX- Whereas poverty aggravated by natural re- fiscal years. TINCTION OF A LARGE PORTION source degradation contributes to political OF THE WORLD’S PLANT AND instability, ethnic and sectarian conflict, SEC. 9. SPECIAL RULES RELATING TO COR- and the social conditions that can fuel in- PORATE CHARITABLE CONTRIBU- ANIMAL SPECIES TIONS TO EDUCATION PORTAL creased violence and terrorism; PROJECTS OF ELIGIBLE STATES. Mr. BIDEN (for himself, Ms. SNOWE, Whereas the extinction of plant and animal (a) IN GENERAL.—Paragraph (2) of Section Mrs. BOXER, Mr. LUGAR, Mr. KERRY, species raises profound ethical questions, and many religious traditions call upon 170(b) of the Internal Revenue Code of 1986 Mr. SPECTER, Mr. MENENDEZ, Mr. human beings to act as good stewards of the (related to percentage limitations) is amend- BROWNBACK, Mr. BAYH, Ms. STABENOW, ed by redesignating subparagraphs (C) and Earth; and Mr. FEINGOLD) submitted the fol- Whereas opportunities for sustainably (D), respectively, and by inserting after sub- lowing resolution; which was referred paragraph (A) the following new subpara- managing natural resources and conserving graph: to the Committee on Foreign Rela- viable populations of species and their habi- tats rapidly diminish every year; ‘‘(B) SPECIAL RULE FOR CORPORATE CON- tions: Whereas a substantial body of academic TRIBUTIONS TO EDUCATION PORTAL PROJECTS S. RES. 598 and field research has identified global strat- OF ELIGIBLE STATES.— Whereas scientists estimate that approxi- egies and market based approaches for better ‘‘(i) IN GENERAL.—In the case of qualified 1 mately ⁄10 of the world’s known biological managing natural resources and protecting education portal project contributions— diversity is currently in danger of extinc- biological diversity; ‘‘(I) subparagraph (A) shall be applied sepa- 1 1 tion, including at least ⁄4 of all mammals, ⁄3 Whereas strategic large-scale and site-spe- rately with respect to such contributions 1 1 of all primates, ⁄3 of all amphibians, and ⁄8 cific habitat conservation could help to buff- and with respect to other charitable con- of all birds; er the impacts of climate change on endan- tributions of the taxpayer, and Whereas scientists have concluded that the gered species and human communities; ‘‘(II) in applying subparagraph (A) to such initial stages of a major worldwide extinc- Whereas an effective international con- qualified education portal project contribu- tion event are occurring now and have esti- servation effort that ensures the use of nat- tions, subparagraph (A) shall be applied by mated that by the end of the 21st century as ural resources on a sustainable basis and pre- substituting ‘50 percent’ for ‘10 percent’. 2 much as ⁄3 of the world’s plant and animal vents the worst predicted extinction sce- ‘‘(ii) QUALIFIED EDUCATION PORTAL PROJECT species could be in danger of extinction; narios from unfolding will require commit- CONTRIBUTION.—For purposes of this para- Whereas scientists estimate that approxi- ment and action from all nations; and graph, the term ‘qualified education portal 3 mately ⁄4 of the world’s terrestrial plant and Whereas the United States’s traditional project contribution’ means a charitable animal species reside in whole or in part in role in confronting international challenges, contribution in cash— developing nations, where in many cases protecting the environment, expanding op- ‘‘(I) to a State (as defined in section 2 of poor management of natural resources has portunities for people, and articulating a the Empowering Teaching and Learning exacerbated the threat of extinction to many moral vision for global action gives the Na- Through Education Portals Act) which has a species and directly harmed local commu- tion the opportunity to lead an international grant application approved under section 4 of nities; conservation effort: Now, therefore, be it such Act, and Whereas, in addition to producing 20 per- Resolved, That it is the sense of the Senate ‘‘(II) for the purpose of paying the non-Fed- cent of the world’s carbon emissions, that— eral share of the cost of implementing and unsustainable forestry practices and illegal (1) the Government should make full use of maintaining education portal initiatives logging operations have led to the destruc- Federal laws, regulations and policies, diplo- (within the meaning of section 3 of such tion of vast areas of forested land around the matic agreements, and other appropriate Act).’’. world, which, in turn, has led to species loss, mechanisms to— (b) EFFECTIVE DATE.—The amendments increased flooding, erosion, insect infesta- (A) identify global conservation goals that made by this section shall apply to contribu- tions, and higher incidences of malaria and help ensure the sustainable use of natural re- tions made after the date of the enactment other infectious diseases; sources and protect biological diversity in of this Act. Whereas the degradation of the marine en- terrestrial and marine environments of de- vironment and unsustainable fishing prac- veloping countries; Mr. BIDEN (for himself and Mr. tices in many parts of the world have led to (B) focus international conservation ef- LUGAR) (by request): dramatic declines of many fish and other forts on natural areas that are important S.J. Res. 42. A joint resolution relat- marine species; biodiversity conservation priorities and for ing to the approval of the proposed Whereas the introduction of invasive spe- which there is a good likelihood of success; agreement for nuclear cooperation be- cies threatens natural habitats; (C) raise the international profile of the tween the United States and the Rus- Whereas scientists have concluded that debate by putting the issue of rapidly declin- sian Federation; to the Committee on many species could face an increased risk of ing global biodiversity and poor natural re- extinction from global climate change; source management on the agenda of major Foreign Relations pursuant to 42 Whereas sound natural resource manage- international decision-making bodies; U.S.C. 2159, for not to exceed 45 cal- ment and the conservation of species and (D) work with other donor nations to in- endar days. habitats are vital to alleviating poverty for crease funding and other support for global Mr. BIDEN. Mr. President, today many communities in developing countries conservation strategies that focus on achiev- Senator LUGAR and I introduce, by re- that depend on these resources for their live- ing each of the goals identified in subpara- quest, a resolution of approval of the lihoods, food, medicinal compounds, housing graphs (A) through (C); and proposed agreement for peaceful nu- material, and other necessities; (E) achieve meaningful progress in the clear cooperation between the United Whereas there are significant risks to the next 5 years toward the goals identified in global and national economies from the de- subparagraphs (A) through (C); States and the Russian Federation, struction of natural resources around the (2) the United States should use diplomatic which the President transmitted to world and the valuable services they provide, mechanisms, relevant international institu- Congress on May 13, 2008, pursuant to such as water and air purification, soil fer- tions and agreements, and other appropriate sections 123b. and 123d. of the Atomic tility and erosion control, flood and drought mechanisms to lead other nations toward the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6025 goals and actions identified in paragraph (1); ally in our own national interest. Sus- Whereas the Boy Scouts of America will and tainable agricultural practices promise continue to feel the loss and remember the (3) the efforts of Federal agencies should sustainable economies in the devel- courage of the Boy Scouts who were at the reflect a recognition of the extreme urgency oping world. A stable climate will re- Little Sioux Scout Ranch the evening of of the problem and recognize that opportuni- duce the threat of water shortages, June 11, 2008; ties for increased conservation are rapidly Whereas the Boy Scouts of America will dwindling, by annually providing to the ap- shifting growing seasons, population continue to develop young men who show the propriate Committees of Congress progress movements, and resource wars. Pro- character, strength, and bravery that was reports and action plans with regard to the tecting habitats not only protects the demonstrated by the Boy Scouts at the Lit- goals and activities identified in paragraphs rich diversity of life on earth—pro- tle Sioux Scout Ranch on the evening of (1) and (2). tecting habitats will preserve some of June 11, 2008; and Mr. BIDEN. Mr. President, the evi- the most basic building blocks of our Whereas the people of Nebraska and Iowa dence is clear. We stand at the brink of economies and societies. have embraced those affected and will con- major losses among the living species Not least, as Dr. Wilson and Dr. tinue to offer support to the families of those who were lost and injured; Now, therefore, be on our planet. By the end of this cen- Chivian so persuasively argue, the preservation of biodiversity is an in- it: tury, as many as two out of every three Resolved, That the Senate— plant and animal species could be in vestment in human health. More than (1) expresses its heartfelt condolences to danger of extinction. This disturbing a quarter of the world’s medicinal the families and friends of those who lost trend has many causes, but several are drugs possess active ingredients from their lives in the terrible events of June 11, clear and manmade—they are our re- wild species, and more than half of the 2008, at the Little Sioux Scout Ranch in Lit- sponsibility and they are within our most prescribed medicines in the tle Sioux, Iowa: Sam Thomsen, Josh Fennen, control. United States are based on natural and Ben Petrzilka of Omaha, Nebraska, and Aaron Eilerts of Eagle Grove, Iowa; Our industrial emissions are chang- compounds. If we hope to advance med- icine, to ease pain and suffering and to (2) shares its thoughts and prayers for a ing our world’s climate and, in so full recovery for all those who were injured; doing, drastically altering habitats— extend lifespans, the bounty of nature offers an indispensable guide and re- (3) commends the Boy Scouts of America habitats already threatened by defor- for the support the organization has provided estation and other landuse changes. source. to the families and friends of those who were Finally, we have a moral obligation Unsustainable fishing and the spread of lost and injured; to protect biodiversity. Ensuring that invasive species due to enhanced global (4) extends its thanks to the first respond- we can feed and clothe and shelter mil- commerce pose similar manmade chal- ers, firefighters, and law enforcement, and lions more people while preserving the medical personnel who took quick action to lenges. elaborate tapestry of creation will provide aid and comfort to the victims; and That is why I am introducing, along allow our children and grandchildren (5) stands with the people of Nebraska and with Senators SNOWE, BOXER, LUGAR, to inherit the rich planet that we were Iowa as they begin the healing process fol- KERRY, SPECTER, MENENDEZ, bequeathed. Species extinctions are lowing this terrible event. BROWNBACK, BAYH, STABENOW, and nothing new. But species extinctions FEINGOLD, a resolution expressing the f that are avoidable, that are within our sense of the Senate that the United power to prevent, extinctions due to States should take a leadership role in SENATE RESOLUTION 600—COM- our greed, or our ignorance, impose on protecting international biodiversity. MEMORATING THE 44TH ANNI- us a special responsibility. Those are With one out of every ten species fac- VERSARY OF THE DEATHS OF mistakes that can never be undone. We ing extinction, with habitats declining, CIVIL RIGHTS WORKERS AN- must resolve to do all we can to replace DREW GOODMAN, JAMES and with developing countries search- greed with a better calculation of our ing to build a better economic future CHANEY, AND MICHAEL long-term interests. We must resolve SCHWERNER IN PHILADELPHIA, while protecting their natural environ- to replace ignorance with knowledge ments, now is the time for renewed ef- MISSISSIPPI, WHILE WORKING IN and with wisdom. THE NAME OF AMERICAN DE- forts to protect our living world. That is why my colleagues and I are MOCRACY TO REGISTER VOTERS This morning, my colleagues and I offering the resolution, to express the AND SECURE CIVIL RIGHTS DUR- hosted a briefing by Dr. Edward O. Wil- will of the Senate to redouble United ING THE SUMMER OF 1964, WHICH son, renowned University Research States efforts internationally to pro- HAS BECOME KNOWN AS ‘‘FREE- Professor Emeritus at Harvard and au- tect our world in all its complexity, DOM SUMMER’’ thor of two Pulitzer Prize-winning and diversity. books, and Dr. Eric Chivian, who f Mr. REID (for Mr. OBAMA (for him- shared the Nobel Peace Prize and is self, Mr. SPECTER, Mr. LEAHY, and Mr. Founder and Director of the Center for SENATE RESOLUTION 599—EX- SCHUMER)) submitted the following res- Health and the Global Environment at PRESSING THE CONDOLENCES OF olution; which was considered and Harvard Medical School. These two THE SENATE TO THOSE AF- agreed to: FECTED BY THE TRAGIC EVENTS eminent scientists made the case that S. RES. 600 biodiversity is not just a moral, eco- FOLLOWING THE TORNADO THAT HIT THE LITTLE SIOUX SCOUT Whereas 44 years ago, on June 21, 1964, An- logical, and economic issue, but also drew Goodman, James Chaney, and Michael one of major importance to human RANCH IN LITTLE SIOUX, IOWA, Schwerner were murdered in Philadelphia, health. ON JUNE 11, 2008. Mississippi, while working in the name of We often find, Mr. President, that the Mr. NELSON of Nebraska (for him- American democracy to register voters and areas most in danger are in developing self, Mr. HARKIN, Mr. HAGEL, and Mr. secure civil rights during the summer of 1964, nations, which have the least ability to GRASSLEY) submitted the following res- which has become known as ‘‘Freedom Sum- protect them. Developing nations face olution; which was considered and mer’’; very real economic and human chal- Whereas Andrew Goodman was a 20-year- agreed to: old White anthropology major at New York’s lenges. Many are struggling to provide S. RES. 599 Queens College, who volunteered for the enough food for their people, especially Whereas, on the evening of June 11, 2008, a ‘‘Freedom Summer’’ project; given the recent rise in food prices. tornado struck the Little Sioux Scout Ranch Whereas James Chaney, from Meridian, They now face the choice between feed- in Little Sioux, Iowa; Mississippi, was a 21-year-old African-Amer- ing their people and preserving their Whereas 4 lives were tragically lost, and ican civil rights activist who joined the Con- environment. We know how that will many other people were injured; gress of Racial Equality (CORE) in 1963 to turn out. We must give them another Whereas Boy Scouts and Boy Scout leaders work on voter education and registration; choice. at the camp showed great heroism and cour- Whereas Michael ‘‘Mickey’’ Schwerner, To do that, the United States and age in providing aid and assistance to their from Brooklyn, New York, was a 24-year-old fellow Scouts; White CORE field secretary in Mississippi other wealthy nations must help. The Whereas the first responders, firefighters, and a veteran of the civil rights movement; 10 colleagues with whom I worked on and law enforcement, and medical personnel Whereas in 1964, Mississippi had a Black this resolution understand that pro- worked valiantly to help provide care and voting-age population of 450,000, but only tecting our global biodiversity is actu- comfort to those who were injured; 16,000 Blacks were registered to vote;

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6026 CONGRESSIONAL RECORD — SENATE June 24, 2008 Whereas most Black voters were man, James Chaney, and Michael Schwerner, SA 5036. Mr. COBURN submitted an amend- disenfranchised by law or practice in Mis- helped register 17,000 African-Americans to ment intended to be proposed to amendment sissippi; vote; SA 4983 proposed by Mr. REID (for Mr. DODD Whereas in 1964, Andrew Goodman, James Whereas the national uproar in response to (for himself and Mr. SHELBY)) to the bill H.R. Chaney, and Michael Schwerner volunteered the deaths of these brave men helped create 3221, supra; which was ordered to lie on the to work as part of the ‘‘Freedom Summer’’ the necessary climate to bring about passage table. project that involved several civil rights or- of the Voting Rights Act of 1965; SA 5037. Mr. BAYH (for himself, Mr. NEL- ganizations, including the Mississippi State Whereas Andrew Goodman, James Chaney, SON, of Nebraska, and Ms. KLOBUCHAR) sub- chapter of the National Association for the and Michael Schwerner worked for freedom, mitted an amendment intended to be pro- Advancement of Colored People, the South- democracy, and equal justice under the law posed to amendment SA 4983 proposed by Mr. ern Christian Leadership Conference, the for all; and REID (for Mr. DODD (for himself and Mr. Student Nonviolent Coordinating Com- Whereas the Federal Government should SHELBY)) to the bill H.R. 3221, supra; which mittee, and CORE, with the purpose of reg- find an appropriate way to honor these cou- was ordered to lie on the table. istering Black voters in Mississippi; rageous young men and their contributions SA 5038. Mrs. LINCOLN (for herself and Mr. Whereas on the morning of June 21, 1964, to civil rights and voting rights: Now, there- PRYOR) submitted an amendment intended to the 3 men left the CORE office in Meridian fore, be it be proposed to amendment SA 4983 proposed and set out for Longdale, Mississippi, where Resolved, That the Senate— by Mr. REID (for Mr. DODD (for himself and they were to investigate the recent burning (1) encourages all Americans to pause and Mr. SHELBY)) to the bill H.R. 3221, supra; of the Mount Zion Methodist Church, a remember Andrew Goodman, James Chaney, which was ordered to lie on the table. Black church that had been functioning as a and Michael Schwerner and the 44th anniver- SA 5039. Mr. SCHUMER submitted an Freedom School for education and voter reg- sary of their deaths; amendment intended to be proposed by him istration; (2) commemorates the life and work of An- to the bill H.R. 3221, supra; which was or- dered to lie on the table. Whereas on their way back to Meridian, drew Goodman, James Chaney, Michael SA 5040. Ms. LANDRIEU (for herself, Mr. James Chaney, Andrew Goodman, and Mi- Schwerner, and all of the other brave Ameri- GRASSLEY, Mr. HARKIN, and Mr. WICKER) sub- chael Schwerner were detained and later ar- cans who made the ultimate sacrifice in the rested and taken to the Philadelphia, Mis- mitted an amendment intended to be pro- name of civil rights and voting rights for all posed to amendment SA 4983 proposed by Mr. sissippi, jail; Americans; and REID (for Mr. DODD (for himself and Mr. Whereas later that same evening, on June (3) commemorates and acknowledges the SHELBY)) to the bill H.R. 3221, supra; which 21, 1964, they were taken from the jail, legacy of the brave Americans who partici- turned over to the Ku Klux Klan, and beaten, was ordered to lie on the table. pated in the civil rights movement and the SA 5041. Mr. CASEY (for himself and Mr. shot, and killed; role that they played in changing the hearts SPECTER) submitted an amendment intended Whereas 2 days later, their burnt, charred, and minds of Americans and creating the po- to be proposed to amendment SA 4983 pro- and gutted blue Ford station wagon was litical climate necessary to pass legislation posed by Mr. REID (for Mr. DODD (for himself pulled from the Bogue Chitto Creek, just to expand civil rights and voting rights for and Mr. SHELBY)) to the bill H.R. 3221, supra; outside Philadelphia, Mississippi; all Americans. Whereas the national uproar caused by the which was ordered to lie on the table. SA 5042. Mr. WYDEN (for himself, Mr. disappearance of the civil rights workers led f SMITH, Ms. CANTWELL, and Mrs. MURRAY) President Lyndon B. Johnson to order Sec- AMENDMENTS SUBMITTED AND submitted an amendment intended to be pro- retary of Defense Robert McNamara to send PROPOSED posed to amendment SA 4983 proposed by Mr. 200 active duty Navy sailors to search the REID (for Mr. DODD (for himself and Mr. swamps and fields in the area for the bodies SA 5030. Mr. ROBERTS (for himself and SHELBY)) to the bill H.R. 3221, supra; which of the 3 civil rights workers, and Attorney Mr. BROWNBACK) submitted an amendment General Robert F. Kennedy to order his Fed- intended to be proposed to amendment SA was ordered to lie on the table. SA 5043. Mr. BINGAMAN (for himself and eral Bureau of Investigation (FBI) director, 4983 proposed by Mr. REID (for Mr. DODD (for Mr. DOMENICI) submitted an amendment in- J. Edgar Hoover, to send 150 agents to Mis- himself and Mr. SHELBY)) to the bill H.R. tended to be proposed to amendment SA 4983 sissippi to work on the case; 3221, moving the United States toward great- proposed by Mr. REID (for Mr. DODD (for him- Whereas the FBI investigation led to the er energy independence and security, devel- self and Mr. SHELBY)) to the bill H.R. 3221, discovery of the bodies of several other Afri- oping innovative new technologies, reducing supra; which was ordered to lie on the table. can-Americans from Mississippi, whose dis- carbon emissions, creating green jobs, pro- SA 5044. Mrs. LINCOLN (for herself and Mr. appearances over the previous several years tecting consumers, increasing clean renew- SMITH) submitted an amendment intended to had not attracted attention outside their able energy production, and modernizing our be proposed to amendment SA 4983 proposed local communities; energy infrastructure, and to amend the In- by Mr. REID (for Mr. DODD (for himself and Whereas the bodies of Andrew Goodman, ternal Revenue Code of 1986 to provide tax Mr. SHELBY)) to the bill H.R. 3221, supra; James Chaney, and Michael Schwerner, beat- incentives for the production of renewable which was ordered to lie on the table. en and shot, were found on August 4, 1964, energy and energy conservation; which was ordered to lie on the table. SA 5045. Mr. BAUCUS submitted an amend- buried under a mound of dirt; ment intended to be proposed by him to the Whereas on December 4, 1964, 21 White Mis- SA 5031. Mr. DEMINT submitted an amend- bill H.R. 3221, supra; which was ordered to lie sissippians from Philadelphia, Mississippi, ment intended to be proposed to amendment SA 4983 proposed by Mr. REID (for Mr. DODD on the table. including the sheriff and his deputy, were ar- SA 5046. Mr. CORNYN (for himself, Mrs. rested, and the Department of Justice (for himself and Mr. SHELBY)) to the bill H.R. BOXER, Mr. ROBERTS, Mr. PRYOR, Mr. charged them with conspiring to deprive An- 3221, supra; which was ordered to lie on the table. ISAKSON, and Mr. SALAZAR) submitted an drew Goodman, James Chaney, and Michael amendment intended to be proposed by him Schwerner of their civil rights, since murder SA 5032. Mr. DEMINT submitted an amend- ment intended to be proposed to amendment to the bill H.R. 3221, supra; which was or- was not a Federal crime; SA 4983 proposed by Mr. REID (for Mr. DODD dered to lie on the table. Whereas on December 10, 1964, the same (for himself and Mr. SHELBY)) to the bill H.R. SA 5047. Mr. ENSIGN submitted an amend- day Dr. Martin Luther King, Jr. received the 3221, supra; which was ordered to lie on the ment intended to be proposed to amendment Nobel Peace Prize, a United States District table. SA 4983 proposed by Mr. REID (for Mr. DODD judge dismissed charges against the 21 men SA 5033. Mr. DEMINT submitted an amend- (for himself and Mr. SHELBY)) to the bill H.R. accused of depriving the 3 civil right workers ment intended to be proposed to amendment 3221, supra; which was ordered to lie on the of their civil rights by murder; SA 4983 proposed by Mr. REID (for Mr. DODD table. Whereas in 1967, after an appeal to the Su- (for himself and Mr. SHELBY)) to the bill H.R. SA 5048. Mr. ENSIGN submitted an amend- preme Court and new testimony, 7 individ- 3221, supra; which was ordered to lie on the ment intended to be proposed to amendment uals were found guilty, but 2 of the defend- table. SA 4983 proposed by Mr. REID (for Mr. DODD ants, including Edgar Ray Killen, who had SA 5034. Mr. DEMINT submitted an amend- (for himself and Mr. SHELBY)) to the bill H.R. been strongly implicated in the murders by ment intended to be proposed to amendment 3221, supra; which was ordered to lie on the witnesses, were acquitted because the jury SA 4983 proposed by Mr. REID (for Mr. DODD table. came to a deadlock on their charges; (for himself and Mr. SHELBY)) to the bill H.R. SA 5049. Mr. ENSIGN submitted an amend- Whereas on January 6, 2005, a Neshoba 3221, supra; which was ordered to lie on the ment intended to be proposed to amendment County, Mississippi, grand jury indicted table. SA 4983 proposed by Mr. REID (for Mr. DODD Edgar Ray Killen on 3 counts of murder; SA 5035. Mr. GRASSLEY (for himself, Mr. (for himself and Mr. SHELBY)) to the bill H.R. Whereas on June 21, 2005, a jury convicted HARKIN, Mr. DURBIN, Mr. COLEMAN, Mrs. 3221, supra; which was ordered to lie on the Edgar Ray Killen on 3 counts of man- MCCASKILL, Mr. BOND, Mr. LUGAR, Mr. BAYH, table. slaughter; Ms. KLOBUCHAR, and Mr. OBAMA) submitted SA 5050. Mr. ENSIGN submitted an amend- Whereas June 21, 2008, was the 44th anni- an amendment intended to be proposed to ment intended to be proposed to amendment versary of Andrew Goodman, James Chaney, amendment SA 4983 proposed by Mr. REID SA 4983 proposed by Mr. REID (for Mr. DODD and Michael Schwerner’s ultimate sacrifice; (for Mr. DODD (for himself and Mr. SHELBY)) (for himself and Mr. SHELBY)) to the bill H.R. Whereas by the end of ‘‘Freedom Sum- to the bill H.R. 3221, supra; which was or- 3221, supra; which was ordered to lie on the mer’’, volunteers, including Andrew Good- dered to lie on the table. table.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6027 SA 5051. Mr. ENSIGN submitted an amend- On page 133, strike line 10 and all that fol- green jobs, protecting consumers, in- ment intended to be proposed to amendment lows through page 160, line 17. creasing clean renewable energy pro- SA 4983 proposed by Mr. REID (for Mr. DODD duction, and modernizing our energy HELBY Mr. DeMINT submitted an (for himself and Mr. S )) to the bill H.R. SA 5032. infrastructure, and to amend the Inter- 3221, supra; which was ordered to lie on the amendment intended to be proposed to nal Revenue Code of 1986 to provide tax table. amendment SA 4983 proposed by Mr. SA 5052. Mr. ENSIGN submitted an amend- incentives for the production of renew- REID (for Mr. DODD (for himself and Mr. ment intended to be proposed by him to the able energy and energy conservation; bill H.R. 3221, supra; which was ordered to lie SHELBY)) to the bill H.R. 3221, moving which was ordered to lie on the table; on the table. the United States toward greater en- as follows: SA 5053. Mr. CORKER submitted an amend- ergy independence and security, devel- At the end of subtitle A of title III of divi- ment intended to be proposed by him to the oping innovative new technologies, re- sion C, insert the following: bill H.R. 3221, supra; which was ordered to lie ducing carbon emissions, creating SEC. lll. TEMPORARY TAX RELIEF FOR AREAS on the table. green jobs, protecting consumers, in- DAMAGED BY 2008 MIDWESTERN SE- SA 5054. Mr. ENSIGN submitted an amend- creasing clean renewable energy pro- VERE STORMS, TORNADOS, AND ment intended to be proposed to amendment FLOODING. SA 4983 proposed by Mr. REID (for Mr. DODD duction, and modernizing our energy (a) IN GENERAL.—Subject to the modifica- (for himself and Mr. SHELBY)) to the bill H.R. infrastructure, and to amend the Inter- tions described in this section, the following 3221, supra; which was ordered to lie on the nal Revenue Code of 1986 to provide tax provisions of or relating to the Internal Rev- table. incentives for the production of renew- enue Code of 1986 shall apply to any Mid- SA 5055. Mrs. LINCOLN submitted an able energy and energy conservation; western disaster area in addition to the amendment intended to be proposed to which was ordered to lie on the table; areas to which such provisions otherwise amendment SA 4983 proposed by Mr. REID as follows: apply: (for Mr. DODD (for himself and Mr. SHELBY)) (1) GO ZONE BENEFITS.— to the bill H.R. 3221, supra; which was or- Beginning on page 615, line 4, strike all (A) Section 1400N (relating to tax benefits) dered to lie on the table. through page 623, line 12. other than subsections (b), (i), and (j) there- SA 5056. Mr. DEMINT submitted an amend- of. ment intended to be proposed by him to the SA 5033. Mr. DeMINT submitted an (B) Section 1400O (relating to education bill H.R. 3221, supra; which was ordered to lie amendment intended to be proposed to tax benefits). on the table. amendment SA 4983 proposed by Mr. (C) Section 1400P (relating to housing tax f REID (for Mr. DODD (for himself and Mr. benefits). (D) Section 1400Q (relating to special rules TEXT OF AMENDMENTS SHELBY)) to the bill H.R. 3221, moving the United States toward greater en- for use of retirement funds). Mr. ROBERTS (for himself (E) Section 1400R(a) (relating to employee SA 5030. ergy independence and security, devel- and Mr. BROWNBACK) submitted an retention credit for employers). oping innovative new technologies, re- amendment intended to be proposed to (F) Section 1400S (relating to additional ducing carbon emissions, creating amendment SA 4983 proposed by Mr. tax relief) other than subsection (d) thereof. green jobs, protecting consumers, in- (G) Section 1400T (relating to special rules REID (for Mr. DODD (for himself and Mr. creasing clean renewable energy pro- for mortgage revenue bonds). SHELBY)) to the bill H.R. 3221, moving duction, and modernizing our energy (2) OTHER BENEFITS INCLUDED IN KATRINA the United States toward greater en- infrastructure, and to amend the Inter- EMERGENCY TAX RELIEF ACT OF 2005.—Sections ergy independence and security, devel- nal Revenue Code of 1986 to provide tax 302, 303, 304, 401, and 405 of the Katrina Emer- oping innovative new technologies, re- incentives for the production of renew- gency Tax Relief Act of 2005. ducing carbon emissions, creating (3) OTHER BENEFITS.—Section 3082(a) of this green jobs, protecting consumers, in- able energy and energy conservation; Act (relating to use of amended income tax creasing clean renewable energy pro- which was ordered to lie on the table; returns to take into account receipt of cer- duction, and modernizing our energy as follows: tain casualty loss grants by disallowing pre- infrastructure, and to amend the Inter- On page 506, strike line 16 and all that fol- viously taken casualty loss deductions). lows through page 518, line 3. (b) MIDWESTERN DISASTER AREA.— nal Revenue Code of 1986 to provide tax (1) IN GENERAL.—For purposes of this sec- incentives for the production of renew- SA 5034. Mr. DEMINT submitted an tion and for applying the substitutions de- able energy and energy conservation; amendment intended to be proposed to scribed in subsections (d) and (e), the term which was ordered to lie on the table; amendment SA 4983 proposed by Mr. ‘‘Midwestern disaster area’’ means an area— (A) with respect to which a major disaster as follows: REID (for Mr. DODD (for himself and Mr. On page 615, between lines 2 and 3, insert has been declared by the President after May SHELBY)) to the bill H.R. 3221, moving 20, 2008, and before August 1, 2008, under sec- the following: the United States toward greater en- SEC. 3083. EXTENSION OF CERTAIN BONUS DE- tion 401 of the Robert T. Stafford Disaster PRECIATION PLACED IN SERVICE ergy independence and security, devel- Relief and Emergency Assistance Act by rea- REQUIREMENTS. oping innovative new technologies, re- son of severe storms, tornados, or flooding Section 15345(d)(1) of Public Law 110–246 is ducing carbon emissions, creating occurring in any of the States of Arkansas, amended— green jobs, protecting consumers, in- Illinois, Indiana, Iowa, Kansas, Michigan, (1) by striking ‘‘December 31, 2008’’ in creasing clean renewable energy pro- Minnesota, Missouri, and Wisconsin, and subparagraph (C) and inserting ‘‘December duction, and modernizing our energy (B) determined by the President to warrant 31, 2010’’, and individual or individual and public assist- (2) by striking ‘‘December 31, 2009’’ in infrastructure, and to amend the Inter- ance from the Federal Government under subparagraph (D) and inserting ‘‘December nal Revenue Code of 1986 to provide tax such Act with respect to damages attrib- 31, 2011’’. incentives for the production of renew- utable to such severe storms, tornados, or able energy and energy conservation; flooding. SA 5031. Mr. DEMINT submitted an which was ordered to lie on the table; (2) CERTAIN BENEFITS AVAILABLE TO AREAS amendment intended to be proposed to as follows: ELIGIBLE ONLY FOR PUBLIC ASSISTANCE.—For purposes of applying this section to benefits amendment SA 4983 proposed by Mr. On page 414, strike line 24 and all that fol- under the following provisions, paragraph (1) REID (for Mr. DODD (for himself and Mr. lows through page 415, line 3. SHELBY)) to the bill H.R. 3221, moving shall be applied without regard to subpara- the United States toward greater en- SA 5035. Mr. GRASSLEY (for him- graph (B): (A) Sections 1400Q, 1400S(b), and 1400S(d) of ergy independence and security, devel- self, Mr. HARKIN, Mr. DURBIN, Mr. the Internal Revenue Code of 1986. oping innovative new technologies, re- COLEMAN, Mrs. MCCASKILL, Mr. BOND, (B) Sections 302, 401, and 405 of the Katrina ducing carbon emissions, creating Mr. LUGAR, Mr. BAYH, Ms. KLOBUCHAR, Emergency Tax Relief Act of 2005. green jobs, protecting consumers, in- and Mr. OBAMA) submitted an amend- (c) REFERENCES.— creasing clean renewable energy pro- ment intended to be proposed to (1) AREA.—Any reference in such provisions duction, and modernizing our energy amendment SA 4983 proposed by Mr. to the Hurricane Katrina disaster area or the infrastructure, and to amend the Inter- REID (for Mr. DODD (for himself and Mr. Gulf Opportunity Zone shall be treated as a reference to any Midwestern disaster area nal Revenue Code of 1986 to provide tax SHELBY)) to the bill H.R. 3211, moving and any reference to the Hurricane Katrina incentives for the production of renew- the United States toward greater en- disaster area or the Gulf Opportunity Zone able energy and energy conservation; ergy independence and security, devel- within a State shall be treated as a reference which was ordered to lie on the table; oping innovative new technologies, re- to all Midwestern disaster areas within the as follows: ducing carbon emissions, creating State.

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(2) ITEMS ATTRIBUTABLE TO DISASTER.—Any ‘‘qualified section 179 Disaster Recovery As- (13) SPECIAL RULES FOR USE OF RETIREMENT reference in such provisions to any loss, sistance property’’ for ‘‘qualified section 179 FUNDS.—Section 1400Q— damage, or other item attributable to Hurri- Gulf Opportunity Zone property’’ each place (A) by substituting ‘‘qualified Disaster Re- cane Katrina shall be treated as a reference it appears. covery Assistance distribution’’ for ‘‘quali- to any loss, damage, or other item attrib- (5) EXPENSING FOR CERTAIN DEMOLITION AND fied hurricane distribution’’ each place it ap- utable to the severe storms, tornados, or CLEAN-UP COSTS.—Section 1400N(f)— pears, flooding giving rise to any Presidential dec- (A) by substituting ‘‘qualified Disaster Re- (B) by substituting ‘‘on or after the appli- laration described in subsection (b)(1)(A). covery Assistance clean-up cost’’ for ‘‘quali- cable disaster date and before January 1, (3) APPLICABLE DISASTER DATE.—For pur- fied Gulf Opportunity Zone clean-up cost’’ 2010’’ for ‘‘on or after August 25, 2005, and be- poses of applying the substitutions described each place it appears, and fore January 1, 2007’’ in subsection in subsections (d) and (e), the term ‘‘applica- (B) by substituting ‘‘beginning on the ap- (a)(4)(A)(i), ble disaster date’’ means, with respect to any plicable disaster date and ending on Decem- (C) by substituting ‘‘the applicable disaster Midwestern disaster area, the date on which ber 31, 2010’’ for ‘‘beginning on August 28, date’’ for ‘‘August 28, 2005’’ in subsections the severe storms, tornados, or flooding giv- 2005, and ending on December 31, 2007’’ in (a)(4)(A)(i) and (c)(3)(B), ing rise to the Presidential declaration de- paragraph (2). (D) by disregarding clauses (ii) and (iii) of scribed in subsection (b)(1)(A) occurred. (6) EXTENSION OF EXPENSING FOR ENVIRON- (d) MODIFICATIONS TO 1986 CODE.—The fol- subsection (a)(4)(A) thereof, MENTAL REMEDIATION COSTS.—Section lowing provisions of the Internal Revenue (E) by substituting ‘‘qualified storm dam- 1400N(g)— Code of 1986 shall be applied with the fol- age distribution’’ for ‘‘qualified Katrina dis- lowing modifications: (A) by substituting ‘‘the applicable dis- tribution’’ each place it appears, aster date’’ for ‘‘August 28, 2005’’ each place (1) TAX-EXEMPT BOND FINANCING.—Section (F) by substituting ‘‘after the date which is 1400N(a)— it appears, 6 months before the applicable disaster date (A) by substituting ‘‘qualified Midwestern (B) by substituting ‘‘January 1, 2011’’ for and before the date which is the day after disaster area bond’’ for ‘‘qualified Gulf Op- ‘‘January 1, 2008’’ in paragraph (1), and the applicable disaster date’’ for ‘‘after Feb- portunity Zone Bond’’ each place it appears, (C) by substituting ‘‘December 31, 2010’’ for ruary 28, 2005, and before August 29, 2005’’ in (B) by substituting ‘‘any State in which a ‘‘December 31, 2007’’. subsection (b)(2)(B)(ii), Midwestern disaster area is located’’ for ‘‘the (7) INCREASE IN REHABILITATION CREDIT.— (G) by substituting ‘‘the Midwestern dis- State of Alabama, Louisiana, or Mississippi’’ Section 1400N(h)— aster area, but not so purchased or con- in paragraph (2)(B), (A) by substituting ‘‘the applicable dis- structed on account of severe storms, tor- (C) by substituting ‘‘designated for pur- aster date’’ for ‘‘August 28, 2005’’, and nados, or flooding giving rise to the designa- poses of this section (on the basis of pro- (B) by substituting ‘‘January 1, 2011’’ for tion of the area as a disaster area’’ for ‘‘the viding assistance to areas in the order in ‘‘January 1, 2008’’ in paragraph (1). Hurricane Katrina disaster area, but not so which such assistance is most needed)’’ for (8) TREATMENT OF NET OPERATING LOSSES purchased or constructed on account of Hur- ‘‘designated for purposes of this section’’ in ATTRIBUTABLE TO DISASTER LOSSES.—Section ricane Katrina’’ in subsection (b)(2)(B)(iii), paragraph (2)(C), 1400N(k)— (H) by substituting ‘‘beginning on the ap- (D) by substituting ‘‘January 1, 2013’’ for (A) by substituting ‘‘qualified Disaster Re- plicable disaster date and ending on the date ‘‘January 1, 2011’’ in paragraph (2)(D), covery Assistance loss’’ for ‘‘qualified Gulf which is 5 months after the date of the en- (E) in paragraph (3)(A)— Opportunity Zone loss’’ each place it ap- actment of the Housing and Economic Re- (i) by substituting ‘‘$5,000’’ for ‘‘$2,500’’, pears, covery Act of 2008’’ for ‘‘beginning on August and (B) by substituting ‘‘after the day before 25, 2005, and ending on February 28, 2006’’ in (ii) by substituting ‘‘before the earliest ap- the applicable disaster date, and before Jan- subsection (b)(3)(A), plicable disaster date for Midwestern dis- uary 1, 2011’’ for ‘‘after August 27, 2005, and (I) by substituting ‘‘qualified storm dam- before January 1, 2008’’ each place it appears, aster areas within the State’’ for ‘‘before Au- age individual’’ for ‘‘qualified Hurricane (C) by substituting ‘‘the applicable disaster gust 28, 2005’’, Katrina individual’’ each place it appears, date’’ for ‘‘August 28, 2005’’ in paragraph (F) by substituting ‘‘qualified Midwestern (J) by substituting ‘‘December 31, 2009’’ for (2)(B)(ii)(I), disaster area repair or construction’’ for ‘‘December 31, 2006’’ in subsection (c)(2)(A), ‘‘qualified GO Zone repair or construction’’ (D) by substituting ‘‘qualified Disaster Re- (K) by substituting ‘‘beginning on the date each place it appears, and covery Assistance property’’ for ‘‘qualified of the enactment of the Housing and Eco- (G) by substituting ‘‘after the date of the Gulf Opportunity Zone property’’ in para- nomic Recovery Act of 2008 and ending on enactment of the Housing and Economic Re- graph (2)(B)(iv), and December 31, 2009’’ for ‘‘beginning on Sep- covery Act of 2008 and before January 1, (E) by substituting ‘‘qualified Disaster Re- tember 24, 2005, and ending on December 31, 2013’’ for ‘‘after the date of the enactment of covery Assistance casualty loss’’ for ‘‘quali- 2006’’ in subsection (c)(4)(A)(i), this paragraph and before January 1, 2011’’ in fied Gulf Opportunity Zone casualty loss’’ paragraph (7)(C). each place it appears. (L) by substituting ‘‘the applicable disaster date’’ for ‘‘August 25, 2005’’ in subsection (2) LOW-INCOME HOUSING CREDIT.—Section (9) CREDIT TO HOLDERS OF TAX CREDIT (c)(4)(A)(ii), and 1400N(c)— BONDS.—Section 1400N(l)— (A) only with respect to calendar years (A) by substituting ‘‘Midwestern tax credit (M) by substituting ‘‘January 1, 2010’’ for 2009, 2010, and 2011, bond’’ for ‘‘Gulf tax credit bond’’ each place ‘‘January 1, 2007’’ in subsection (d)(2)(A)(ii). (B) by substituting ‘‘Disaster Recovery As- it appears, (14) EMPLOYEE RETENTION CREDIT FOR EM- sistance housing amount’’ for ‘‘Gulf Oppor- (B) by substituting ‘‘any State in which a PLOYERS AFFECTED BY SEVERE STORMS, TOR- tunity housing amount’’, Midwestern disaster area is located’’ for ‘‘the NADOS, AND FLOODING.—Section 1400R(a)— (C) by substituting ‘‘before the earliest ap- State of Alabama, Louisiana, or Mississippi’’ (A) by substituting ‘‘the applicable dis- plicable disaster date for Midwestern dis- in paragraph (4)(A)(i), aster date’’ for ‘‘August 28, 2005’’ each place aster areas within the State’’ for ‘‘before Au- (C) by substituting ‘‘after December 31, it appears, gust 28, 2005’’ in paragraph (1)(B), and 2008 and before January 1, 2010’’ for ‘‘after (B) by substituting ‘‘January 1, 2009’’ for (D) determined without regard to para- December 31, 2005, and before January 1, ‘‘January 1, 2006’’ both places it appears, and graphs (2), (3), (4), (5), and (6) thereof. 2007’’, (C) only with respect to eligible employers (3) SPECIAL ALLOWANCE FOR CERTAIN PROP- (D) by substituting ‘‘shall not exceed who employed an average of not more than ERTY ACQUIRED ON OR AFTER THE APPLICABLE $100,000,000.’’ for ‘‘shall not exceed’’ and all 200 employees on business days during the DISASTER DATE.—Section 1400N(d)— that follows in paragraph (4)(C), and taxable year before the applicable disaster (A) by substituting ‘‘qualified Disaster Re- (E) by substituting ‘‘the earliest applicable date. covery Assistance property’’ for ‘‘qualified disaster date for Midwestern disaster areas (15) TEMPORARY SUSPENSION OF LIMITATIONS Gulf Opportunity Zone property’’ each place within the State’’ for ‘‘August 28, 2005’’ in ON CHARITABLE CONTRIBUTIONS.—Section it appears, paragraph (5)(A). 1400S(a), by substituting the following para- (B) by substituting ‘‘the applicable disaster (10) NEW MARKETS TAX CREDIT.—Section graph for paragraph (4) thereof: date’’ for ‘‘August 28, 2005’’ each place it ap- 1400N(m)— ‘‘(4) QUALIFIED CONTRIBUTIONS.— pears, (A) by substituting ‘‘$300,000,000 for 2009 ‘‘(A) IN GENERAL.—For purposes of this sub- (C) by substituting ‘‘December 31, 2011’’ for and 2010’’ for ‘‘$300,000,000 for 2005 and 2006’’ section, the term ‘qualified contribution’ ‘‘December 31, 2007’’ in paragraph (2)(A)(v), in paragraph (2)(A), and means any charitable contribution (as de- (D) by substituting ‘‘December 31, 2012’’ for (B) by substituting ‘‘$400,000,000 for 2011’’ fined in section 170(c)) if— ‘‘December 31, 2008’’ in paragraph (2)(A)(v), for ‘‘$400,000,000 for 2007’’ in paragraph (2)(B). ‘‘(i) such contribution— (E) by substituting ‘‘the day before the ap- (11) EDUCATION TAX BENEFITS.—Section ‘‘(I) is paid during the period beginning on plicable disaster date’’ for ‘‘August 27, 2005’’ 1400O, by substituting ‘‘2008 or 2009’’ for ‘‘2005 the earliest applicable disaster date for all in paragraph (3)(A), and or 2006’’. States and ending on December 31, 2008, in (F) determined without regard to para- (12) HOUSING TAX BENEFITS.—Section 1400P, cash to an organization described in section graph (6) thereof. by substituting ‘‘the applicable disaster 170(b)(1)(A), and (4) INCREASE IN EXPENSING UNDER SECTION date’’ for ‘‘August 28, 2005’’ in subsection ‘‘(II) is made for relief efforts in 1 or more 179.—Section 1400N(e), by substituting (c)(1). Midwestern disaster areas,

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NONRECOGNITION OF GAIN.—Section 405, by green jobs, protecting consumers, in- ‘‘(B) EXCEPTION.—Such term shall not in- substituting ‘‘on or after the applicable dis- creasing clean renewable energy pro- clude a contribution by a donor if the con- aster date’’ for ‘‘on or after August 25, 2005’’. duction, and modernizing our energy tribution is— SEC. lll. ENHANCED CHARITABLE DEDUC- infrastructure, and to amend the Inter- ‘‘(i) to an organization described in section TIONS FOR CONTRIBUTIONS OF nal Revenue Code of 1986 to provide tax 509(a)(3), or FOOD INVENTORY. ‘‘(ii) for establishment of a new, or mainte- (a) INCREASED AMOUNT OF DEDUCTION.— incentives for the production of renew- nance of an existing, donor advised fund (as (1) IN GENERAL.—Clause (iv) of section able energy and energy conservation; defined in section 4966(d)(2)). 170(e)(3)(C) (relating to termination) of the which was ordered to lie on the table; ‘‘(C) APPLICATION OF ELECTION TO PARTNER- Internal Revenue Code of 1986 is amended by as follows: SHIPS AND S CORPORATIONS.—In the case of a striking ‘‘December 31, 2007’’ and inserting ‘‘December 31, 2009’’. At the appropriate place, insert the fol- partnership or S corporation, the election lowing: under subparagraph (A)(iii) shall be made (2) EFFECTIVE DATE.—The amendment separately by each partner or shareholder.’’. made by this subsection shall apply to con- SEC. llll. PROTECTION OF TAXPAYERS. (16) SUSPENSION OF CERTAIN LIMITATIONS ON tributions made after December 31, 2007. Notwithstanding any other provision of PERSONAL CASUALTY LOSSES.—Section (b) TEMPORARY SUSPENSION OF LIMITATIONS this Act, title III of Division B of this Act 1400S(b)(1), by substituting ‘‘the applicable ON CHARITABLE CONTRIBUTIONS.— shall not take effect. disaster date’’ for ‘‘August 25, 2005’’. (1) IN GENERAL.—Section 170(b) of such Code is amended by adding at the end the (17) SPECIAL RULE FOR DETERMINING EARNED SA 5037. Mr. BAYH (for himself, Mr. INCOME.—Section 1400S(d)— following new paragraph: NELSON of Nebraska, and Ms. (A) by treating an individual as a qualified ‘‘(3) TEMPORARY SUSPENSION OF LIMITATIONS individual if such individual’s principal place ON CHARITABLE CONTRIBUTIONS.—In the case KLOBUCHAR) submitted an amendment of abode on the applicable disaster date was of a qualified farmer or rancher (as defined intended to be proposed to amendment located in a Midwestern disaster area, in paragraph (1)(E)(v)), any charitable con- SA 4983 proposed by Mr. REID (for Mr. (B) by treating the applicable disaster date tribution of food— DODD (for himself and Mr. SHELBY)) to with respect to any such individual as the ‘‘(A) to which subsection (e)(3)(C) applies the bill H.R. 3221, moving the United applicable date for purposes of such sub- (without regard to clause (ii) thereof), and States toward greater energy independ- section, and ‘‘(B) which is made during the period be- ginning on the date of the enactment of this ence and security, developing innova- (C) by treating an area as described in tive new technologies, reducing carbon paragraph (2)(B)(ii) thereof if the area is a paragraph and before January 1, 2009, Midwestern disaster area only by reason of shall be treated for purposes of paragraph emissions, creating green jobs, pro- subsection (b)(2) of this section (relating to (1)(E) or (2)(B), whichever is applicable, as if tecting consumers, increasing clean re- areas eligible only for public assistance) it were a qualified conservation contribution newable energy production, and mod- (18) ADJUSTMENTS REGARDING TAXPAYER which is made by a qualified farmer or ernizing our energy infrastructure, and AND DEPENDENCY STATUS.—Section 1400S(e), rancher and which otherwise meets the re- to amend the Internal Revenue Code of by substituting ‘‘2008 or 2009’’ for ‘‘2005 or quirements of such paragraph.’’. 1986 to provide tax incentives for the 2006’’. (2) EFFECTIVE DATE.—The amendment made by this subsection shall apply to tax- production of renewable energy and en- (e) MODIFICATIONS TO KATRINA EMERGENCY able years ending after the date of the enact- ergy conservation; which was ordered TAX RELIEF ACT OF 2005.—The following pro- ment of this Act. to lie on the table; as follows: visions of the Katrina Emergency Tax Relief Act of 2005 shall be applied with the fol- SEC. lll. EXTENSION OF ENHANCED CHARI- Beginning on page 573, line 12, strike TABLE DEDUCTION FOR CONTRIBU- lowing modifications: through page 574, line 14, and insert the fol- TIONS OF BOOK INVENTORY. lowing: (1) ADDITIONAL EXEMPTION FOR HOUSING DIS- (a) EXTENSION.—Clause (iv) of section PLACED INDIVIDUAL.—Section 302— ‘‘(8) REAL PROPERTY TAX DEDUCTION.—For 170(e)(3)(D) of the Internal Revenue Code of purposes of paragraph (1), the real property (A) by substituting ‘‘Midwestern displaced 1986 (relating to termination) of the Internal individual’’ for ‘‘Hurricane Katrina displaced tax deduction is the lesser of— Revenue Code of 1986 is amended by striking ‘‘(A) the amount allowable as a deduction individual’’ each place it appears, and ‘‘December 31, 2007’’ and inserting ‘‘Decem- (B) by treating an area as a core disaster under this chapter for State and local taxes ber 31, 2009’’. described in section 164(a)(1), or area for purposes of applying subsection (c) (b) CLERICAL AMENDMENT.—Clause (iii) of ‘‘(B) $500 ($1,000 in the case of a joint re- thereof if the area is a Midwestern disaster section 170(e)(3)(D) of such Code (relating to turn). area without regard to subsection (b)(2) of certification by donee) is amended by insert- this section (relating to areas eligible only ing ‘‘of books’’ after ‘‘to any contribution’’. Any taxes taken into account under section for public assistance). (c) EFFECTIVE DATE.—The amendments 62(a) shall not be taken into account under (2) INCREASE IN STANDARD MILEAGE RATE.— made by this section shall apply to contribu- this paragraph.’’. Section 303, by substituting ‘‘beginning on tions made after December 31, 2007. the applicable disaster date and ending on SEC. lll. REPORTING REQUIREMENTS RELAT- SA 5038. Mrs. LINCOLN (for herself December 31, 2009’’ for ‘‘beginning on August ING TO DISASTER RELIEF CON- and Mr. PRYOR) submitted an amend- 25, 2005, and ending on December 31, 2006’’. TRIBUTIONS. ment intended to be proposed to (3) MILEAGE REIMBURSEMENTS FOR CHARI- (a) IN GENERAL.—Section 6033(b) of the In- TABLE VOLUNTEERS.—Section 304— ternal Revenue Code of 1986 (relating to re- amendment SA 4983 proposed by Mr. (A) by substituting ‘‘beginning on the ap- turns of certain organizations described in REID (for Mr. DODD (for himself and Mr. plicable disaster date and ending on Decem- section 501(c)(3)) is amended by striking SHELBY)) to the bill H.R. 3221, moving ber 31, 2009’’ for ‘‘beginning on August 25, ‘‘and’’ at the end of paragraph (13), by redes- the United States toward greater en- 2005, and ending on December 31, 2006’’ in ignating paragraph (14) as paragraph (15), ergy independence and security, devel- subsection (a), and and by adding after paragraph (13) the fol- oping innovative new technologies, re- (B) by substituting ‘‘the applicable disaster lowing new paragraph: ducing carbon emissions, creating date’’ for ‘‘August 25, 2005’’ in subsection (a). ‘‘(14) such information as the Secretary green jobs, protecting consumers, in- (4) EXCLUSION OF CERTAIN CANCELLATION OF may require with respect to disaster relief INDEBTEDNESS INCOME.—Section 401— activities, including the amount and use of creasing clean renewable energy pro- (A) by treating an individual whose prin- qualified contributions to which section duction, and modernizing our energy cipal place of abode on the applicable dis- 1400S(a) applies, and’’. infrastructure, and to amend the Inter- aster date was in a Midwestern disaster area (b) EFFECTIVE DATE.—The amendments nal Revenue Code of 1986 to provide tax (determined without regard to subsection made by this section shall apply to returns incentives for the production of renew- (b)(2) of this section) as an individual de- the due date for which (determined without able energy and energy conservation; scribed in subsection (b)(1) thereof, and by regard to any extension) occurs after Decem- which was ordered to lie on the table; treating an individual whose principal place ber 31, 2008. of abode on the applicable disaster date was as follows: in a Midwestern disaster area solely by rea- SA 5036. Mr. COBURN submitted an At the end of subtitle A of title III of divi- son of subsection (b)(2) of this section as an amendment intended to be proposed to sion C, insert the following:

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SEC. lll. TEMPORARY TAX RELIEF FOR AREAS to any loss, damage, or other item attrib- (5) EXPENSING FOR CERTAIN DEMOLITION AND DAMAGED BY 2008 MIDWESTERN SE- utable to the severe storms, tornados, or CLEAN-UP COSTS.—Section 1400N(f)— VERE STORMS, TORNADOS, AND flooding giving rise to any Presidential dec- (A) by substituting ‘‘qualified Disaster Re- FLOODING. laration described in subsection (b)(1)(A). covery Assistance clean-up cost’’ for ‘‘quali- (a) IN GENERAL.—Subject to the modifica- (3) APPLICABLE DISASTER DATE.—For pur- tions described in this section, the following fied Gulf Opportunity Zone clean-up cost’’ poses of applying the substitutions described provisions of or relating to the Internal Rev- each place it appears, and in subsections (d) and (e), the term ‘‘applica- enue Code of 1986 shall apply to any Mid- (B) by substituting ‘‘beginning on the ap- ble disaster date’’ means, with respect to any western disaster area in addition to the plicable disaster date and ending on Decem- Midwestern disaster area, the date on which areas to which such provisions otherwise ber 31, 2010’’ for ‘‘beginning on August 28, the severe storms, tornados, or flooding giv- apply: 2005, and ending on December 31, 2007’’ in ing rise to the Presidential declaration de- (1) GO ZONE BENEFITS.— paragraph (2). scribed in subsection (b)(1)(A) occurred. (A) Section 1400N (relating to tax benefits) (d) MODIFICATIONS TO 1986 CODE.—The fol- (6) EXTENSION OF EXPENSING FOR ENVIRON- other than subsections (b), (i), and (j) there- lowing provisions of the Internal Revenue MENTAL REMEDIATION COSTS.—Section of. Code of 1986 shall be applied with the fol- 1400N(g)— (B) Section 1400O (relating to education lowing modifications: (A) by substituting ‘‘the applicable dis- tax benefits). (1) TAX-EXEMPT BOND FINANCING.—Section aster date’’ for ‘‘August 28, 2005’’ each place (C) Section 1400P (relating to housing tax 1400N(a)— it appears, benefits). (A) by substituting ‘‘qualified Midwestern (B) by substituting ‘‘January 1, 2011’’ for (D) Section 1400Q (relating to special rules disaster area bond’’ for ‘‘qualified Gulf Op- ‘‘January 1, 2008’’ in paragraph (1), and for use of retirement funds). portunity Zone Bond’’ each place it appears, (C) by substituting ‘‘December 31, 2010’’ for (E) Section 1400R(a) (relating to employee (B) by substituting ‘‘any State in which a ‘‘December 31, 2007’’. retention credit for employers). Midwestern disaster area is located’’ for ‘‘the (7) INCREASE IN REHABILITATION CREDIT.— (F) Section 1400S (relating to additional State of Alabama, Louisiana, or Mississippi’’ Section 1400N(h)— tax relief) other than subsection (d) thereof. in paragraph (2)(B), (A) by substituting ‘‘the applicable dis- (G) Section 1400T (relating to special rules (C) by substituting ‘‘designated for pur- aster date’’ for ‘‘August 28, 2005’’, and for mortgage revenue bonds). poses of this section (on the basis of pro- (B) by substituting ‘‘January 1, 2011’’ for (2) OTHER BENEFITS INCLUDED IN KATRINA viding assistance to areas in the order in ‘‘January 1, 2008’’ in paragraph (1). EMERGENCY TAX RELIEF ACT OF 2005.—Sections which such assistance is most needed)’’ for 302, 303, 304, 401, and 405 of the Katrina Emer- (8) TREATMENT OF NET OPERATING LOSSES ‘‘designated for purposes of this section’’ in ATTRIBUTABLE TO DISASTER LOSSES.—Section gency Tax Relief Act of 2005. paragraph (2)(C), (3) OTHER BENEFITS.—Section 3082(a) of this 1400N(k)— (D) by substituting ‘‘January 1, 2013’’ for (A) by substituting ‘‘qualified Disaster Re- Act (relating to use of amended income tax ‘‘January 1, 2011’’ in paragraph (2)(D), covery Assistance loss’’ for ‘‘qualified Gulf returns to take into account receipt of cer- (E) in paragraph (3)(A)— Opportunity Zone loss’’ each place it ap- tain casualty loss grants by disallowing pre- (i) by substituting ‘‘$5,000’’ for ‘‘$2,500’’, pears, viously taken casualty loss deductions). and (b) MIDWESTERN DISASTER AREA.— (ii) by substituting ‘‘before the earliest ap- (B) by substituting ‘‘after the day before (1) IN GENERAL.—For purposes of this sec- plicable disaster date for Midwestern dis- the applicable disaster date, and before Jan- tion and for applying the substitutions de- aster areas within the State’’ for ‘‘before Au- uary 1, 2011’’ for ‘‘after August 27, 2005, and scribed in subsections (d) and (e), the term gust 28, 2005’’, before January 1, 2008’’ each place it appears, ‘‘Midwestern disaster area’’ means an area— (F) by substituting ‘‘qualified Midwestern (C) by substituting ‘‘the applicable disaster (A) with respect to which a major disaster disaster area repair or construction’’ for date’’ for ‘‘August 28, 2005’’ in paragraph has been declared by the President after May ‘‘qualified GO Zone repair or construction’’ (2)(B)(ii)(I), 20, 2008, and before August 1, 2008, under sec- each place it appears, and (D) by substituting ‘‘qualified Disaster Re- tion 401 of the Robert T. Stafford Disaster (G) by substituting ‘‘after the date of the covery Assistance property’’ for ‘‘qualified Relief and Emergency Assistance Act by rea- enactment of the Housing and Economic Re- Gulf Opportunity Zone property’’ in para- son of severe storms, tornados, or flooding covery Act of 2008 and before January 1, graph (2)(B)(iv), and occurring in any of the States of Arkansas, 2013’’ for ‘‘after the date of the enactment of (E) by substituting ‘‘qualified Disaster Re- Illinois, Indiana, Iowa, Kansas, Michigan, this paragraph and before January 1, 2011’’ in covery Assistance casualty loss’’ for ‘‘quali- Minnesota, Missouri, and Wisconsin, and paragraph (7)(C). fied Gulf Opportunity Zone casualty loss’’ (B) determined by the President to warrant (2) LOW-INCOME HOUSING CREDIT.—Section each place it appears. individual or individual and public assist- 1400N(c)— (9) CREDIT TO HOLDERS OF TAX CREDIT ance from the Federal Government under (A) only with respect to calendar years BONDS.—Section 1400N(l)— such Act with respect to damages attrib- 2009, 2010, and 2011, (A) by substituting ‘‘Midwestern tax credit utable to such severe storms, tornados, or (B) by substituting ‘‘Disaster Recovery As- bond’’ for ‘‘Gulf tax credit bond’’ each place flooding. sistance housing amount’’ for ‘‘Gulf Oppor- it appears, In the case of a State with respect to which tunity housing amount’’, (B) by substituting ‘‘any State in which a the President during the period beginning on (C) by substituting ‘‘before the earliest ap- Midwestern disaster area is located’’ for ‘‘the January 1, 2008, and ending on July 31, 2008, plicable disaster date for Midwestern dis- State of Alabama, Louisiana, or Mississippi’’ has declared major disasters under such Act aster areas within the State’’ for ‘‘before Au- in paragraph (4)(A)(i), with respect to at least 75 percent of the gust 28, 2005’’ in paragraph (1)(B), and (C) by substituting ‘‘after December 31, counties of such State, subparagraph (A) (D) determined without regard to para- 2008 and before January 1, 2010’’ for ‘‘after shall be applied by substituting ‘‘December graphs (2), (3), (4), (5), and (6) thereof. December 31, 2005, and before January 1, 31, 2007’’ for ‘‘May 20, 2008’’. (3) SPECIAL ALLOWANCE FOR CERTAIN PROP- 2007’’, ERTY ACQUIRED ON OR AFTER THE APPLICABLE (2) CERTAIN BENEFITS AVAILABLE TO AREAS (D) by substituting ‘‘shall not exceed DISASTER DATE.—Section 1400N(d)— ELIGIBLE ONLY FOR PUBLIC ASSISTANCE.—For $100,000,000.’’ for ‘‘shall not exceed’’ and all (A) by substituting ‘‘qualified Disaster Re- purposes of applying this section to benefits that follows in paragraph (4)(C), and covery Assistance property’’ for ‘‘qualified under the following provisions, paragraph (1) (E) by substituting ‘‘the earliest applicable shall be applied without regard to subpara- Gulf Opportunity Zone property’’ each place disaster date for Midwestern disaster areas graph (B): it appears, within the State’’ for ‘‘August 28, 2005’’ in (A) Sections 1400Q, 1400S(b), and 1400S(d) of (B) by substituting ‘‘the applicable disaster paragraph (5)(A). the Internal Revenue Code of 1986. date’’ for ‘‘August 28, 2005’’ each place it ap- (10) NEW MARKETS TAX CREDIT.—Section (B) Sections 302, 401, and 405 of the Katrina pears, 1400N(m)— Emergency Tax Relief Act of 2005. (C) by substituting ‘‘December 31, 2011’’ for (c) REFERENCES.— ‘‘December 31, 2007’’ in paragraph (2)(A)(v), (A) by substituting ‘‘$300,000,000 for 2009 (1) AREA.—Any reference in such provisions (D) by substituting ‘‘December 31, 2012’’ for and 2010’’ for ‘‘$300,000,000 for 2005 and 2006’’ to the Hurricane Katrina disaster area or the ‘‘December 31, 2008’’ in paragraph (2)(A)(v), in paragraph (2)(A), and Gulf Opportunity Zone shall be treated as a (E) by substituting ‘‘the day before the ap- (B) by substituting ‘‘$400,000,000 for 2011’’ reference to any Midwestern disaster area plicable disaster date’’ for ‘‘August 27, 2005’’ for ‘‘$400,000,000 for 2007’’ in paragraph (2)(B). and any reference to the Hurricane Katrina in paragraph (3)(A), and (11) EDUCATION TAX BENEFITS.—Section disaster area or the Gulf Opportunity Zone (F) determined without regard to para- 1400O, by substituting ‘‘2008 or 2009’’ for ‘‘2005 within a State shall be treated as a reference graph (6) thereof. or 2006’’. to all Midwestern disaster areas within the (4) INCREASE IN EXPENSING UNDER SECTION (12) HOUSING TAX BENEFITS.—Section 1400P, State. 179.—Section 1400N(e), by substituting by substituting ‘‘the applicable disaster (2) ITEMS ATTRIBUTABLE TO DISASTER.—Any ‘‘qualified section 179 Disaster Recovery As- date’’ for ‘‘August 28, 2005’’ in subsection reference in such provisions to any loss, sistance property’’ for ‘‘qualified section 179 (c)(1). damage, or other item attributable to Hurri- Gulf Opportunity Zone property’’ each place (13) SPECIAL RULES FOR USE OF RETIREMENT cane Katrina shall be treated as a reference it appears. FUNDS.—Section 1400Q—

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6031 (A) by substituting ‘‘qualified Disaster Re- is to be used) for relief efforts in 1 or more (C) by substituting ‘‘January 1, 2010’’ for covery Assistance distribution’’ for ‘‘quali- Midwestern disaster areas, and ‘‘January 1, 2007’’ in subsection (e). fied hurricane distribution’’ each place it ap- ‘‘(iii) the taxpayer has elected the applica- (5) EXTENSION OF REPLACEMENT PERIOD FOR pears, tion of this subsection with respect to such NONRECOGNITION OF GAIN.—Section 405, by (B) by substituting ‘‘on or after the appli- contribution. substituting ‘‘on or after the applicable dis- cable disaster date and before January 1, ‘‘(B) EXCEPTION.—Such term shall not in- aster date’’ for ‘‘on or after August 25, 2005’’. 2010’’ for ‘‘on or after August 25, 2005, and be- clude a contribution by a donor if the con- SEC. lll. ENHANCED CHARITABLE DEDUC- fore January 1, 2007’’ in subsection tribution is— TIONS FOR CONTRIBUTIONS OF (a)(4)(A)(i), ‘‘(i) to an organization described in section FOOD INVENTORY. (C) by substituting ‘‘the applicable disaster 509(a)(3), or (a) INCREASED AMOUNT OF DEDUCTION.— date’’ for ‘‘August 28, 2005’’ in subsections ‘‘(ii) for establishment of a new, or mainte- (1) IN GENERAL.—Clause (iv) of section (a)(4)(A)(i) and (c)(3)(B), nance of an existing, donor advised fund (as 170(e)(3)(C) (relating to termination) of the (D) by disregarding clauses (ii) and (iii) of defined in section 4966(d)(2)). Internal Revenue Code of 1986 is amended by subsection (a)(4)(A) thereof, ‘‘(C) APPLICATION OF ELECTION TO PARTNER- striking ‘‘December 31, 2007’’ and inserting (E) by substituting ‘‘qualified storm dam- SHIPS AND S CORPORATIONS.—In the case of a ‘‘December 31, 2009’’. age distribution’’ for ‘‘qualified Katrina dis- partnership or S corporation, the election (2) EFFECTIVE DATE.—The amendment tribution’’ each place it appears, under subparagraph (A)(iii) shall be made made by this subsection shall apply to con- (F) by substituting ‘‘after the date which is separately by each partner or shareholder.’’. tributions made after December 31, 2007. 6 months before the applicable disaster date (16) SUSPENSION OF CERTAIN LIMITATIONS ON (b) TEMPORARY SUSPENSION OF LIMITATIONS and before the date which is the day after PERSONAL CASUALTY LOSSES.—Section ON CHARITABLE CONTRIBUTIONS.— the applicable disaster date’’ for ‘‘after Feb- 1400S(b)(1), by substituting ‘‘the applicable (1) IN GENERAL.—Section 170(b) of such ruary 28, 2005, and before August 29, 2005’’ in disaster date’’ for ‘‘August 25, 2005’’. Code is amended by adding at the end the subsection (b)(2)(B)(ii), (17) SPECIAL RULE FOR DETERMINING EARNED following new paragraph: (G) by substituting ‘‘the Midwestern dis- INCOME.—Section 1400S(d)— ‘‘(3) TEMPORARY SUSPENSION OF LIMITATIONS aster area, but not so purchased or con- (A) by treating an individual as a qualified ON CHARITABLE CONTRIBUTIONS.—In the case structed on account of severe storms, tor- individual if such individual’s principal place of a qualified farmer or rancher (as defined nados, or flooding giving rise to the designa- of abode on the applicable disaster date was in paragraph (1)(E)(v)), any charitable con- tion of the area as a disaster area’’ for ‘‘the located in a Midwestern disaster area, tribution of food— Hurricane Katrina disaster area, but not so (B) by treating the applicable disaster date ‘‘(A) to which subsection (e)(3)(C) applies purchased or constructed on account of Hur- with respect to any such individual as the (without regard to clause (ii) thereof), and ricane Katrina’’ in subsection (b)(2)(B)(iii), applicable date for purposes of such sub- ‘‘(B) which is made during the period be- (H) by substituting ‘‘beginning on the ap- section, and ginning on the date of the enactment of this plicable disaster date and ending on the date (C) by treating an area as described in paragraph and before January 1, 2009, which is 5 months after the date of the en- paragraph (2)(B)(ii) thereof if the area is a shall be treated for purposes of paragraph actment of the Housing and Economic Re- Midwestern disaster area only by reason of (1)(E) or (2)(B), whichever is applicable, as if covery Act of 2008’’ for ‘‘beginning on August subsection (b)(2) of this section (relating to it were a qualified conservation contribution 25, 2005, and ending on February 28, 2006’’ in areas eligible only for public assistance) which is made by a qualified farmer or subsection (b)(3)(A), (18) ADJUSTMENTS REGARDING TAXPAYER rancher and which otherwise meets the re- (I) by substituting ‘‘qualified storm dam- AND DEPENDENCY STATUS.—Section 1400S(e), quirements of such paragraph.’’. age individual’’ for ‘‘qualified Hurricane by substituting ‘‘2008 or 2009’’ for ‘‘2005 or (2) EFFECTIVE DATE.—The amendment Katrina individual’’ each place it appears, 2006’’. made by this subsection shall apply to tax- (J) by substituting ‘‘December 31, 2009’’ for (e) MODIFICATIONS TO KATRINA EMERGENCY ‘‘December 31, 2006’’ in subsection (c)(2)(A), TAX RELIEF ACT OF 2005.—The following pro- able years ending after the date of the enact- (K) by substituting ‘‘beginning on the date visions of the Katrina Emergency Tax Relief ment of this Act. of the enactment of the Housing and Eco- Act of 2005 shall be applied with the fol- SEC. lll. EXTENSION OF ENHANCED CHARI- nomic Recovery Act of 2008 and ending on lowing modifications: TABLE DEDUCTION FOR CONTRIBU- TIONS OF BOOK INVENTORY. December 31, 2009’’ for ‘‘beginning on Sep- (1) ADDITIONAL EXEMPTION FOR HOUSING DIS- (a) EXTENSION.—Clause (iv) of section tember 24, 2005, and ending on December 31, PLACED INDIVIDUAL.—Section 302— 170(e)(3)(D) of the Internal Revenue Code of 2006’’ in subsection (c)(4)(A)(i), (A) by substituting ‘‘Midwestern displaced 1986 (relating to termination) of the Internal (L) by substituting ‘‘the applicable disaster individual’’ for ‘‘Hurricane Katrina displaced Revenue Code of 1986 is amended by striking date’’ for ‘‘August 25, 2005’’ in subsection individual’’ each place it appears, and (c)(4)(A)(ii), and (B) by treating an area as a core disaster ‘‘December 31, 2007’’ and inserting ‘‘Decem- (M) by substituting ‘‘January 1, 2010’’ for area for purposes of applying subsection (c) ber 31, 2009’’. (b) CLERICAL AMENDMENT.—Clause (iii) of ‘‘January 1, 2007’’ in subsection (d)(2)(A)(ii). thereof if the area is a Midwestern disaster section 170(e)(3)(D) of such Code (relating to (14) EMPLOYEE RETENTION CREDIT FOR EM- area without regard to subsection (b)(2) of certification by donee) is amended by insert- PLOYERS AFFECTED BY SEVERE STORMS, TOR- this section (relating to areas eligible only ing ‘‘of books’’ after ‘‘to any contribution’’. NADOS, AND FLOODING.—Section 1400R(a)— for public assistance). (c) EFFECTIVE DATE.—The amendments (A) by substituting ‘‘the applicable dis- (2) INCREASE IN STANDARD MILEAGE RATE.— made by this section shall apply to contribu- aster date’’ for ‘‘August 28, 2005’’ each place Section 303, by substituting ‘‘beginning on tions made after December 31, 2007. it appears, the applicable disaster date and ending on (B) by substituting ‘‘January 1, 2009’’ for December 31, 2009’’ for ‘‘beginning on August SEC. lll. REPORTING REQUIREMENTS RELAT- ‘‘January 1, 2006’’ both places it appears, and 25, 2005, and ending on December 31, 2006’’. ING TO DISASTER RELIEF CON- TRIBUTIONS. (C) only with respect to eligible employers (3) MILEAGE REIMBURSEMENTS FOR CHARI- (a) IN GENERAL.—Section 6033(b) of the In- who employed an average of not more than TABLE VOLUNTEERS.—Section 304— ternal Revenue Code of 1986 (relating to re- 200 employees on business days during the (A) by substituting ‘‘beginning on the ap- turns of certain organizations described in taxable year before the applicable disaster plicable disaster date and ending on Decem- section 501(c)(3)) is amended by striking date. ber 31, 2009’’ for ‘‘beginning on August 25, ‘‘and’’ at the end of paragraph (13), by redes- (15) TEMPORARY SUSPENSION OF LIMITATIONS 2005, and ending on December 31, 2006’’ in ignating paragraph (14) as paragraph (15), ON CHARITABLE CONTRIBUTIONS.—Section subsection (a), and and by adding after paragraph (13) the fol- 1400S(a), by substituting the following para- (B) by substituting ‘‘the applicable disaster lowing new paragraph: graph for paragraph (4) thereof: date’’ for ‘‘August 25, 2005’’ in subsection (a). ‘‘(14) such information as the Secretary ‘‘(4) QUALIFIED CONTRIBUTIONS.— (4) EXCLUSION OF CERTAIN CANCELLATION OF may require with respect to disaster relief ‘‘(A) IN GENERAL.—For purposes of this sub- INDEBTEDNESS INCOME.—Section 401— activities, including the amount and use of section, the term ‘qualified contribution’ (A) by treating an individual whose prin- qualified contributions to which section means any charitable contribution (as de- cipal place of abode on the applicable dis- 1400S(a) applies, and’’. fined in section 170(c)) if— aster date was in a Midwestern disaster area (b) EFFECTIVE DATE.—The amendments ‘‘(i) such contribution— (determined without regard to subsection made by this section shall apply to returns ‘‘(I) is paid during the period beginning on (b)(2) of this section) as an individual de- the due date for which (determined without the earliest applicable disaster date for all scribed in subsection (b)(1) thereof, and by regard to any extension) occurs after Decem- States and ending on December 31, 2008, in treating an individual whose principal place ber 31, 2008. cash to an organization described in section of abode on the applicable disaster date was 170(b)(1)(A), and in a Midwestern disaster area solely by rea- SA 5039. Mr. SCHUMER submitted an ‘‘(II) is made for relief efforts in 1 or more son of subsection (b)(2) of this section as an amendment intended to be proposed by Midwestern disaster areas, individual described in subsection (b)(2) ‘‘(ii) the taxpayer obtains from such orga- thereof, him to the bill H.R. 3221, moving the nization contemporaneous written acknowl- (B) by substituting ‘‘the applicable disaster United States toward greater energy edgment (within the meaning of section date’’ for ‘‘August 28, 2005’’ both places it ap- independence and security, developing 170(f)(8)) that such contribution was used (or pears, and innovative new technologies, reducing

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6032 CONGRESSIONAL RECORD — SENATE June 24, 2008 carbon emissions, creating green jobs, to amend the Internal Revenue Code of the bill H.R. 3221, moving the United protecting consumers, increasing clean 1986 to provide tax incentives for the States toward greater energy independ- renewable energy production, and mod- production of renewable energy and en- ence and security; developing innova- ernizing our energy infrastructure, and ergy conservation; which was ordered tive new technologies, reducing carbon to amend the Internal Revenue Code of to lie on the table; as follows: emissions, creating green jobs, pro- 1986 to provide tax incentives for the On page 455, between lines 14 and 15, insert tecting consumers, increasing clean re- production of renewable energy and en- the following: newable energy production, and mod- ergy conservation; which was ordered SEC. 1606. SENSE OF THE SENATE ON THE JOINT ernizing our energy infrastructure, and EFFORTS OF THE CITY OF PHILA- to lie on the table; as follows: DELPHIA AND PHILADELPHIA to amend the Internal Revenue Code of On page 455, between lines 14 and 15, insert COURT OF COMMON PLEAS TO PRE- 1986 to provide tax incentives for the the following: VENT HOME FORECLOSURES. production of renewable energy and en- SEC. 1606. VALUATION OF MULTIFAMILY PROP- (a) FINDINGS.—The Senate finds that— ergy conservation; which was ordered ERTIES IN NONCOMPETITIVE SALES (1) the Mortgage Bankers Association re- to lie on the table; as follows: BY HUD TO STATES AND LOCAL- ported this month that over 1,000,000 homes ITIES. have entered foreclosure proceedings, the On page 614, line 23, insert ‘‘, but only with Subtitle A of title II of the Deficit Reduc- highest rate of such proceedings ever re- respect to property the acquisition of which tion Act of 2005 (Public Law 109–171; 120 Stat. corded; has not occurred, or the construction, recon- 7) is amended by adding at the end the fol- (2) the Center for Responsible Lending re- struction, or renovation of which has not lowing new section: ports that 7,200,000 families now hold a begun, before the date of the enactment of ‘‘SEC. 2004. VALUATION OF MULTIFAMILY PROP- subprime loan; the Housing Assistance Tax Act of 2008’’ ERTIES IN NONCOMPETITIVE SALES (3) the Joint Economic Committee of the after ‘‘Alabama’’. BY HUD TO STATES AND LOCAL- Congress estimates that from the third quar- ITIES. ter of 2007 through the fourth quarter of 2009 SA 5043. Mr. BINGAMAN (for himself ‘‘Notwithstanding any other provision of there will be 45,470 subprime foreclosures in and Mr. DOMENICI) submitted an law, in determining the market value of any Pennsylvania; amendment intended to be proposed to multifamily real property or multifamily (4) the Joint Economic Committee further loan for any noncompetitive sale to a State amendment SA 4983 proposed by Mr. predicts that the cumulative loss in property REID (for Mr. DODD (for himself and Mr. or local government entity occurring during value resulting from these foreclosures will SHELBY)) to the bill H.R. 3221, moving fiscal years 2008, 2009, or 2010, the Secretary exceed $2,400,000,000 and the estimated loss in shall consider, but not be limited to, indus- property taxes will be $34,000,000; the United States toward greater en- try standard appraisal practices, including (5) the Pew Charitable Trusts reports that ergy independence and security; devel- the cost of repairs needed to bring the prop- 1,684,475 Pennsylvania homeowners will expe- oping innovative new technologies, re- erty at least to minimum State and local rience home devaluation due to subprime ducing carbon emissions, creating code standards and of maintaining the exist- foreclosures in 2008 and 2009; green jobs, protecting consumers, in- ing affordability restrictions imposed by the (6) a 2005 Freddie Mac/Roper poll of home- creasing clean renewable energy pro- Secretary on the multifamily real property owners indicates that more than 6 in 10 de- or multifamily loan.’’. duction, and modernizing our energy linquent borrowers are not aware of services infrastructure, and to amend the Inter- SA 5040. Ms. LANDRIEU (for herself, that lenders offer to individuals having trou- ble with their mortgage; nal Revenue Code of 1986 to provide tax Mr. GRASSLEY, Mr. HARKIN, and Mr. (7) the Department of Housing and Urban incentives for the production of renew- WICKER) submitted an amendment in- Development program statistics show that 96 able energy and energy conservation; tended to be proposed to amendment percent of the families that receive housing which was ordered to lie on the table; SA 4983 proposed by Mr. REID (for Mr. counseling services avoid foreclosure; as follows: DODD (for himself and Mr. SHELBY)) to (8) Philadelphia County reported 730 prop- At the appropriate place, insert the fol- the bill H.R. 3221, moving the United erties filed for foreclosure in April 2008, more lowing: foreclosure filings than any other county in States toward greater energy independ- SEC. lllll. INCREASING ACCESS AND UNDER- ence and security, developing innova- Pennsylvania; STANDING OF ENERGY EFFICIENT (9) the Center for Responsible Lending esti- MORTGAGES. tive new technologies, reducing carbon mates that Philadelphia County could lose emissions, creating green jobs, pro- (a) DEFINITION.—As used in this section, up to 4,444 homes to foreclosure; and the term ‘‘energy efficient mortgage’’ has tecting consumers, increasing clean re- (10) it has been over 1 year since the first the same meaning as given that term in newable energy production, and mod- legislation dealing with the subprime mort- paragraph (24) of section 104 of the Cranston- ernizing our energy infrastructure, and gage crisis was introduced in the Senate to Gonzalez National Affordable Housing Act to amend the Internal Revenue Code of consider housing legislation that provides (42 U.S.C. 12704(24)). 1986 to provide tax incentives for the homeowners with relief and that alleviates (b) RECOMMENDATIONS TO ELIMINATE BAR- production of renewable energy and en- the foreclosure crisis. RIERS TO USE OF ENERGY EFFICIENT MORT- (b) SENSE OF THE SENATE.—It is the sense GAGES.— ergy conservation; which was ordered of the Senate that— to lie on the table; as follows: (1) IN GENERAL.—Not later than 180 days (1) the City of Philadelphia and the Phila- after the date of enactment of this section, On page 510, strike lines 1 through 5, and delphia Court of Common Pleas should be the Secretary of Housing and Urban Develop- insert the following: commended for their efforts to facilitate ment, in conjunction with the Secretary of (C) establish land banks for homes that negotations between borrowers and lenders Energy and the Administrator of the Envi- have been foreclosed upon; to attempt to restructure loan terms and ronmental Protection Agency, shall consult (D) demolish blighted structures; and prevent foreclosures; with the residential mortgage industry and (E) redevelop demolished, blighted, or va- (2) the commitment of such entitites to States to develop recommendations to elimi- cant properties, including those damaged or their home foreclosure prevention program, nate the barriers that exist to increasing the destroyed in areas subject to a disaster dec- such program’s requirement of mandatory availability, use, and purchase of energy effi- laration by the President under title IV of counseling for delinquent borrowers, and cient mortgages, including such barriers as— the Robert T. Stafford Disaster Relief and such program’s use of professional housing (A) the lack of reliable and accessible in- Emergency Assistance Act (42 U.S.C. 5121 et counselors to negotiate between lenders and formation on such mortgages, including esti- seq.). homeowners represent the best practices in mated energy savings and other benefits of the industry; and Mr. CASEY (for himself and energy efficient housing; SA 5041. (3) the Secretary of Housing and Urban De- (B) the confusion regarding underwriting Mr. SPECTER) submitted an amendment velopment should, to the extent possible, in- requirements and differences among various intended to be proposed to amendment form other cities about the Philadelphia pro- energy efficient mortgage programs; SA 4983 proposed by Mr. REID (for Mr. gram and advise such other cities that the (C) the complex and time consuming proc- DODD (for himself and Mr. SHELBY)) to funds provided under section 2401 may be ess of securing such mortgages; the bill H.R. 3221, moving the United used to defray the cost of similar foreclosure (D) the lack of publicly available research prevention programs. States toward greater energy independ- on the default risk of such mortgages; and ence and security, developing innova- Mr. WYDEN (for himself, (E) the availability of certified or accred- SA 5042. ited home energy rating services. tive new technologies, reducing carbon Mr. SMITH, Ms. CANTWELL, and Mrs. (2) REPORT TO CONGRESS.—The Secretary of emissions, creating green jobs, pro- MURRAY) submitted an amendment in- Housing and Urban Development shall sub- tecting consumers, increasing clean re- tended to be proposed to amendment mit a report to Congress that— newable energy production, and mod- SA 4983 proposed by Mr. REID (for Mr. (A) summarizes the recommendations de- ernizing our energy infrastructure, and DODD (for himself and Mr. SHELBY)) to veloped under paragraph (1); and

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6033 (B) includes any recommendations for stat- (B) Clauses (i)(I) and (ii) of paragraph the applicable percentage is being pre- utory, regulatory, or administrative changes (3)(A). scribed, or 4.5 percent, and the Secretary deems necessary to institute (C) Paragraph (4). ‘‘(III) by taking into account the limita- such recommendations. (D) Paragraph (5). tion under subparagraph (A) for any year on (c) ENERGY EFFICIENT MORTGAGES OUT- (E) Paragraph (6). the last day of such year. REACH CAMPAIGN.— (F) Paragraph (7). ‘‘(D) ELIGIBLE BASIS.—For purposes of this (1) IN GENERAL.—The Secretary of Housing (G) Subparagraphs (A) and (B) of paragraph paragraph— and Urban Development, in consultation and (9). ‘‘(i) IN GENERAL.—The term ‘eligible basis’ coordination with the Secretary of Energy, (b) MODIFICATION OF CREDIT PHASEOUT.— means, with respect to any facility, the sum the Administrator of the Environmental (1) REPEAL OF PHASEOUT.—Subsection (b) of of— Protection Agency, and State Energy and section 45 is amended— ‘‘(I) the basis of such facility determined as Housing Finance Directors, shall carry out (A) by striking paragraph (1), and of the time that such facility is originally an education and outreach campaign to in- (B) by striking ‘‘the 8 cent amount in para- placed in service, and form and educate consumers, home builders, graph (1),’’ in paragraph (2) thereof. ‘‘(II) the portion of the basis of any shared qualified property which is properly allo- residential lenders, and other real estate pro- (2) LIMITATION BASED ON INVESTMENT IN FA- cable to such facility under clause (ii). fessionals on the availability, benefits, and CILITY.—Subsection (b) of section 45 is ‘‘(ii) RULES FOR ALLOCATION.—For purposes advantages of— amended by inserting before paragraph (2) of subclause (II) of clause (i), the basis of (A) improved energy efficiency in housing; the following new paragraph: shared qualified property shall be allocated and ‘‘(1) LIMITATION BASED ON INVESTMENT IN among all qualified facilities which are pro- (B) energy efficient mortgages. FACILITY.— jected to be placed in service and which re- (2) AUTHORIZATION OF APPROPRIATIONS.— ‘‘(A) IN GENERAL.—In the case of any quali- quire utilization of such property in propor- There are authorized to be appropriated such fied facility originally placed in service after tion to projected generation from such facili- sums as are necessary to carry out the edu- December 31, 2009, the amount of the credit ties. cation and outreach campaign described determined under subsection (a) for any tax- under paragraph (1). ‘‘(iii) SHARED QUALIFIED PROPERTY.—For able year with respect to electricity pro- purposes of this paragraph, the term ‘shared duced at such facility shall not exceed the SA 5044. Mrs. LINCOLN (for herself qualified property’ means, with respect to product of— any facility, any property described in sec- and Mr. SMITH) submitted an amend- ‘‘(i) the applicable percentage with respect ment intended to be proposed to tion 168(e)(3)(B)(vi)— to such facility, multiplied by ‘‘(I) which a qualified facility will require amendment SA 4983 proposed by Mr. ‘‘(ii) the eligible basis of such facility. for utilization of such facility, and REID (for Mr. DODD (for himself and Mr. ‘‘(B) CARRYFORWARD OF UNUSED LIMITATION ‘‘(II) which is not a qualified facility. SHELBY)) to the bill H.R. 3221, moving AND EXCESS CREDIT.— ‘‘(iv) SPECIAL RULE RELATING TO GEO- ‘‘(i) UNUSED LIMITATION.—If the limitation the United States toward greater en- THERMAL FACILITIES.—In the case of any ergy independence and security; devel- imposed under subparagraph (A) with respect qualified facility using geothermal energy to to any facility for any taxable year exceeds produce electricity, the basis of such facility oping innovative new technologies, re- the prelimitation credit for such facility for ducing carbon emissions, creating for purposes of this paragraph shall be deter- such taxable year, the limitation imposed mined as though intangible drilling and de- green jobs, protecting consumers, in- under subparagraph (A) with respect to such velopment costs described in section 263(c) creasing clean renewable energy pro- facility for the succeeding taxable year shall were capitalized rather than expensed. duction, and modernizing our energy be increased by the amount of such excess. ‘‘(E) SPECIAL RULE FOR FIRST AND LAST infrastructure, and to amend the Inter- ‘‘(ii) EXCESS CREDIT.—If the prelimitation YEAR OF CREDIT PERIOD.—In the case of any nal Revenue Code of 1986 to provide tax credit with respect to any facility for any taxable year any portion of which is not incentives for the production of renew- taxable year exceeds the limitation imposed within the 10-year period described in sub- under subparagraph (A) with respect to such able energy and energy conservation; section (a)(2)(A)(ii) with respect to any facil- facility for such taxable year, the credit de- ity, the amount of the limitation under sub- which was ordered to lie on the table; termined under subsection (a) with respect paragraph (A) with respect to such facility as follows: to such facility for the succeeding taxable shall be reduced by an amount which bears On page 587, line 24, insert ‘‘and ‘80 percent year (determined before the application of the same ratio to the amount of such limita- of the class life of such property’ shall be subparagraph (A) for such succeeding taxable tion (determined without regard to this sub- substituted for ‘20 years’ in paragraph year) shall be increased by the amount of paragraph) as such portion of the taxable (1)(B)(ii)(III) thereof’’ after ‘‘thereof’’. such excess. With respect to any facility, no year which is not within such period bears to amount may be carried forward under this the entire taxable year. SA 5045. Mr. BAUCUS submitted an clause to any taxable year beginning after ‘‘(F) ELECTION TO TREAT ALL FACILITIES amendment intended to be proposed by the 10-year period described in subsection PLACED IN SERVICE IN A YEAR AS 1 FACILITY.— him to the bill H.R. 3221, moving the (a)(2)(A)(ii) with respect to such facility. At the election of the taxpayer, all qualified United States toward greater energy ‘‘(iii) PRELIMITATION CREDIT.—The term facilities which are part of the same project ‘prelimitation credit’ with respect to any fa- and which are placed in service during the independence and security, developing cility for a taxable year means the credit de- innovative new technologies, reducing same calendar year shall be treated for pur- termined under subsection (a) with respect poses of this section as 1 facility which is carbon emissions, creating green jobs, to such facility for such taxable year, deter- placed in service at the mid-point of such protecting consumers, increasing clean mined without regard to subparagraph (A) year or the first day of the following cal- renewable energy production, and mod- and after taking into account any increase endar year.’’. ernizing our energy infrastructure, and for such taxable year under clause (ii). (c) TRASH FACILITY CLARIFICATION.—Para- to amend the Internal Revenue Code of ‘‘(C) APPLICABLE PERCENTAGE.—For pur- graph (7) of section 45(d) is amended— 1986 to provide tax incentives for the poses of this paragraph— (1) by striking ‘‘facility which burns’’ and ‘‘(i) IN GENERAL.—The term ‘applicable per- production of renewable energy and en- inserting ‘‘facility (other than a facility de- centage’ means, with respect to any facility, scribed in paragraph (6)) which uses’’, and ergy conservation; which was ordered the appropriate percentage prescribed by the (2) by striking ‘‘COMBUSTION’’. to lie on the table; as follows: Secretary for the month in which such facil- (d) EXPANSION OF BIOMASS FACILITIES.— On page 630, after line 2, insert the fol- ity is originally placed in service. (1) OPEN-LOOP BIOMASS FACILITIES.—Para- lowing: ‘‘(ii) METHOD OF PRESCRIBING APPLICABLE graph (3) of section 45(d) is amended by re- TITLE IV—ENERGY TAX INCENTIVES PERCENTAGES.—The applicable percentages designating subparagraph (B) as subpara- prescribed by the Secretary for any month graph (C) and by inserting after subpara- Subtitle A—Energy Production Incentives under clause (i) shall be percentages which graph (A) the following new subparagraph: PART I—RENEWABLE ENERGY yield over a 10-year period amounts of limi- ‘‘(B) EXPANSION OF FACILITY.—Such term INCENTIVES tation under subparagraph (A) which have a shall include a new unit placed in service SEC. 3101. RENEWABLE ENERGY CREDIT. present value equal to 35 percent of the eligi- after the date of the enactment of this sub- (a) EXTENSION OF CREDIT.— ble basis of the facility. paragraph in connection with a facility de- (1) 1-YEAR EXTENSION FOR WIND FACILI- ‘‘(iii) METHOD OF DISCOUNTING.—The scribed in subparagraph (A), but only to the TIES.—Paragraph (1) of section 45(d) is present value under clause (ii) shall be deter- extent of the increased amount of electricity amended by striking ‘‘January 1, 2009’’ and mined— produced at the facility by reason of such inserting ‘‘January 1, 2010’’. ‘‘(I) as of the last day of the 1st year of the new unit.’’. (2) 3-YEAR EXTENSION FOR CERTAIN OTHER 10-year period referred to in clause (ii), (2) CLOSED-LOOP BIOMASS FACILITIES.—Para- FACILITIES.—Each of the following provisions ‘‘(II) by using a discount rate equal to the graph (2) of section 45(d) is amended by re- of section 45(d) is amended by striking ‘‘Jan- greater of 110 percent of the Federal long- designating subparagraph (B) as subpara- uary 1, 2009’’ and inserting ‘‘January 1, 2012’’: term rate as in effect under section 1274(d) graph (C) and inserting after subparagraph (A) Clauses (i) and (ii) of paragraph (2)(A). for the month preceding the month for which (A) the following new subparagraph:

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‘‘(B) EXPANSION OF FACILITY.—Such term (b) MARINE RENEWABLES.—Subsection (c) of (2) COMBINED HEAT AND POWER SYSTEM shall include a new unit placed in service section 45 is amended by adding at the end PROPERTY.—Section 48 is amended by adding after the date of the enactment of this sub- the following new paragraph: at the end the following new subsection: paragraph in connection with a facility de- ‘‘(10) MARINE AND HYDROKINETIC RENEWABLE ‘‘(d) COMBINED HEAT AND POWER SYSTEM scribed in subparagraph (A)(i), but only to ENERGY.— PROPERTY.—For purposes of subsection the extent of the increased amount of elec- ‘‘(A) IN GENERAL.—The term ‘marine and (a)(3)(A)(v)— tricity produced at the facility by reason of hydrokinetic renewable energy’ means en- ‘‘(1) COMBINED HEAT AND POWER SYSTEM such new unit.’’. ergy derived from— PROPERTY.—The term ‘combined heat and (e) SALES OF NET ELECTRICITY TO REGU- ‘‘(i) waves, tides, and currents in oceans, power system property’ means property com- LATED PUBLIC UTILITIES TREATED AS SALES estuaries, and tidal areas, prising a system— TO UNRELATED PERSONS.—Paragraph (4) of ‘‘(ii) free flowing water in rivers, lakes, and ‘‘(A) which uses the same energy source for section 45(e) is amended by adding at the end streams, the simultaneous or sequential generation of the following new sentence: ‘‘The net ‘‘(iii) free flowing water in an irrigation electrical power, mechanical shaft power, or amount of electricity sold by any taxpayer system, canal, or other man-made channel, both, in combination with the generation of to a regulated public utility (as defined in including projects that utilize nonmechan- steam or other forms of useful thermal en- section 7701(a)(33)) shall be treated as sold to ical structures to accelerate the flow of ergy (including heating and cooling applica- an unrelated person.’’. water for electric power production purposes, tions), (f) MODIFICATION OF RULES FOR HYDRO- or ‘‘(B) which produces— POWER PRODUCTION.—Subparagraph (C) of ‘‘(iv) differentials in ocean temperature ‘‘(i) at least 20 percent of its total useful section 45(c)(8) is amended to read as follows: (ocean thermal energy conversion). energy in the form of thermal energy which ‘‘(C) NONHYDROELECTRIC DAM.—For pur- ‘‘(B) EXCEPTIONS.—Such term shall not in- is not used to produce electrical or mechan- poses of subparagraph (A), a facility is de- clude any energy which is derived from any ical power (or combination thereof), and scribed in this subparagraph if— source which utilizes a dam, diversionary ‘‘(ii) at least 20 percent of its total useful ‘‘(i) the hydroelectric project installed on structure (except as provided in subpara- energy in the form of electrical or mechan- the nonhydroelectric dam is licensed by the graph (A)(iii)), or impoundment for electric ical power (or combination thereof), Federal Energy Regulatory Commission and power production purposes.’’. ‘‘(C) the energy efficiency percentage of meets all other applicable environmental, li- (c) DEFINITION OF FACILITY.—Subsection (d) which exceeds 60 percent, and censing, and regulatory requirements, of section 45 is amended by adding at the end ‘‘(D) which is placed in service before Janu- ‘‘(ii) the nonhydroelectric dam was placed the following new paragraph: ary 1, 2015. in service before the date of the enactment ‘‘(11) MARINE AND HYDROKINETIC RENEWABLE ‘‘(2) LIMITATION.— of this paragraph and operated for flood con- ENERGY FACILITIES.—In the case of a facility ‘‘(A) IN GENERAL.—In the case of combined trol, navigation, or water supply purposes producing electricity from marine and heat and power system property with an and did not produce hydroelectric power on hydrokinetic renewable energy, the term electrical capacity in excess of the applica- the date of the enactment of this paragraph, ‘qualified facility’ means any facility owned ble capacity placed in service during the tax- and by the taxpayer— able year, the credit under subsection (a)(1) ‘‘(iii) the hydroelectric project is operated ‘‘(A) which has a nameplate capacity rat- (determined without regard to this para- so that the water surface elevation at any ing of at least 150 kilowatts, and graph) for such year shall be equal to the given location and time that would have oc- ‘‘(B) which is originally placed in service amount which bears the same ratio to such curred in the absence of the hydroelectric on or after the date of the enactment of this credit as the applicable capacity bears to the project is maintained, subject to any license paragraph and before January 1, 2012.’’. capacity of such property. requirements imposed under applicable law (d) CREDIT RATE.—Subparagraph (A) of sec- ‘‘(B) APPLICABLE CAPACITY.—For purposes that change the water surface elevation for tion 45(b)(4) is amended by striking ‘‘or (9)’’ of subparagraph (A), the term ‘applicable ca- the purpose of improving environmental and inserting ‘‘(9), or (11)’’. pacity’ means 15 megawatts or a mechanical quality of the affected waterway. (e) COORDINATION WITH SMALL IRRIGATION energy capacity of more than 20,000 horse- The Secretary, in consultation with the Fed- POWER.—Paragraph (5) of section 45(d), as power or an equivalent combination of elec- eral Energy Regulatory Commission, shall amended by section 3101, is amended by trical and mechanical energy capacities. certify if a hydroelectric project licensed at striking ‘‘January 1, 2012’’ and inserting ‘‘the ‘‘(C) MAXIMUM CAPACITY.—The term ‘com- a nonhydroelectric dam meets the criteria in date of the enactment of paragraph (11)’’. bined heat and power system property’ shall clause (iii). Nothing in this section shall af- (f) EFFECTIVE DATE.—The amendments not include any property comprising a sys- fect the standards under which the Federal made by this section shall apply to elec- tem if such system has a capacity in excess Energy Regulatory Commission issues li- tricity produced and sold after the date of of 50 megawatts or a mechanical energy ca- censes for and regulates hydropower projects the enactment of this Act, in taxable years pacity in excess of 67,000 horsepower or an under part I of the Federal Power Act.’’. ending after such date. equivalent combination of electrical and me- (g) EFFECTIVE DATE.— SEC. 3103. ENERGY CREDIT. chanical energy capacities. (1) IN GENERAL.—Except as otherwise pro- (a) EXTENSION OF CREDIT.— ‘‘(3) SPECIAL RULES.— vided in this subsection, the amendments (1) SOLAR ENERGY PROPERTY.—Paragraphs ‘‘(A) ENERGY EFFICIENCY PERCENTAGE.—For made by this section shall apply to property (2)(A)(i)(II) and (3)(A)(ii) of section 48(a) are purposes of this subsection, the energy effi- originally placed in service after December each amended by striking ‘‘January 1, 2009’’ ciency percentage of a system is the frac- 31, 2008. and inserting ‘‘January 1, 2015’’. tion— (2) REPEAL OF CREDIT PHASEOUT.—The (2) FUEL CELL PROPERTY.—Subparagraph ‘‘(i) the numerator of which is the total amendments made by subsection (b)(1) shall (E) of section 48(c)(1) is amended by striking useful electrical, thermal, and mechanical apply to taxable years ending after Decem- ‘‘December 31, 2008’’ and inserting ‘‘Decem- power produced by the system at normal op- ber 31, 2008. ber 31, 2014’’. erating rates, and expected to be consumed (3) LIMITATION BASED ON INVESTMENT IN FA- (3) MICROTURBINE PROPERTY.—Subpara- in its normal application, and CILITY.—The amendment made by subsection graph (E) of section 48(c)(2) is amended by ‘‘(ii) the denominator of which is the lower (b)(2) shall apply to property originally striking ‘‘December 31, 2008’’ and inserting heating value of the fuel sources for the sys- placed in service after December 31, 2009. ‘‘December 31, 2014’’. tem. (4) TRASH FACILITY CLARIFICATION; SALES TO (b) ALLOWANCE OF ENERGY CREDIT AGAINST ‘‘(B) DETERMINATIONS MADE ON BTU BASIS.— RELATED REGULATED PUBLIC UTILITIES.—The ALTERNATIVE MINIMUM TAX.—Subparagraph The energy efficiency percentage and the amendments made by subsections (c) and (e) (B) of section 38(c)(4) is amended by striking percentages under paragraph (1)(B) shall be shall apply to electricity produced and sold ‘‘and’’ at the end of clause (iii), by redesig- determined on a Btu basis. after the date of the enactment of this Act. nating clause (iv) as clause (v), and by in- ‘‘(C) INPUT AND OUTPUT PROPERTY NOT IN- (5) EXPANSION OF BIOMASS FACILITIES.—The serting after clause (iii) the following new CLUDED.—The term ‘combined heat and amendments made by subsection (d) shall clause: power system property’ does not include apply to property placed in service after the ‘‘(iv) the credit determined under section property used to transport the energy source date of the enactment of this Act. 46 to the extent that such credit is attrib- to the facility or to distribute energy pro- SEC. 3102. PRODUCTION CREDIT FOR ELEC- utable to the energy credit determined under duced by the facility. TRICITY PRODUCED FROM MARINE section 48, and’’. ‘‘(4) SYSTEMS USING BIOMASS.—If a system RENEWABLES. (c) ENERGY CREDIT FOR COMBINED HEAT AND is designed to use biomass (within the mean- (a) IN GENERAL.—Paragraph (1) of section POWER SYSTEM PROPERTY.— ing of paragraphs (2) and (3) of section 45(c) 45(c) is amended by striking ‘‘and’’ at the (1) IN GENERAL.—Section 48(a)(3)(A) (defin- without regard to the last sentence of para- end of subparagraph (G), by striking the pe- ing energy property) is amended by striking graph (3)(A)) for at least 90 percent of the en- riod at the end of subparagraph (H) and in- ‘‘or’’ at the end of clause (iii), by inserting ergy source— serting ‘‘, and’’, and by adding at the end the ‘‘or’’ at the end of clause (iv), and by adding ‘‘(A) paragraph (1)(C) shall not apply, but following new subparagraph: at the end the following new clause: ‘‘(B) the amount of credit determined ‘‘(I) marine and hydrokinetic renewable ‘‘(v) combined heat and power system prop- under subsection (a) with respect to such energy.’’. erty,’’. system shall not exceed the amount which

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bears the same ratio to such amount of cred- (A) IN GENERAL.—Section 25D(d) is amend- (1) IN GENERAL.—Subsection (c) of section it (determined without regard to this para- ed by adding at the end the following new 25D is amended to read as follows: graph) as the energy efficiency percentage of paragraph: ‘‘(c) LIMITATION BASED ON AMOUNT OF TAX; such system bears to 60 percent.’’. ‘‘(4) QUALIFIED SMALL WIND ENERGY PROP- CARRYFORWARD OF UNUSED CREDIT.— ERTY EXPENDITURE (d) INCREASE OF CREDIT LIMITATION FOR .—The term ‘qualified ‘‘(1) LIMITATION BASED ON AMOUNT OF TAX.— FUEL CELL PROPERTY.—Subparagraph (B) of small wind energy property expenditure’ In the case of a taxable year to which section section 48(c)(1) is amended by striking ‘‘$500’’ means an expenditure for property which 26(a)(2) does not apply, the credit allowed and inserting ‘‘$1,500’’. uses a wind turbine to generate electricity under subsection (a) for the taxable year (e) PUBLIC UTILITY PROPERTY TAKEN INTO for use in connection with a dwelling unit lo- shall not exceed the excess of— ACCOUNT.— cated in the United States and used as a resi- ‘‘(A) the sum of the regular tax liability (1) IN GENERAL.—Paragraph (3) of section dence by the taxpayer.’’. (as defined in section 26(b)) plus the tax im- (B) NO DOUBLE BENEFIT.—Section 45(d)(1) is 48(a) is amended by striking the second sen- posed by section 55, over amended by adding at the end the following tence thereof. ‘‘(B) the sum of the credits allowable under new sentence: ‘‘Such term shall not include (2) CONFORMING AMENDMENTS.— this subpart (other than this section) and any facility with respect to which any quali- (A) Paragraph (1) of section 48(c) is amend- section 27 for the taxable year. fied small wind energy property expenditure ed by striking subparagraph (D) and redesig- ‘‘(2) CARRYFORWARD OF UNUSED CREDIT.— (as defined in subsection (d)(4) of section nating subparagraph (E) as subparagraph ‘‘(A) RULE FOR YEARS IN WHICH ALL PER- 25D) is taken into account in determining (D). SONAL CREDITS ALLOWED AGAINST REGULAR the credit under such section.’’. (B) Paragraph (2) of section 48(c) is amend- AND ALTERNATIVE MINIMUM TAX.—In the case (4) MAXIMUM EXPENDITURES IN CASE OF ed by striking subparagraph (D) and redesig- of a taxable year to which section 26(a)(2) ap- nating subparagraph (E) as subparagraph JOINT OCCUPANCY.—Section 25D(e)(4)(A) is amended by striking ‘‘and’’ at the end of plies, if the credit allowable under sub- (D). section (a) exceeds the limitation imposed by (f) EFFECTIVE DATE.— clause (ii), by striking the period at the end of clause (iii) and inserting ‘‘, and’’, and by section 26(a)(2) for such taxable year reduced (1) IN GENERAL.—Except as otherwise pro- by the sum of the credits allowable under vided in this subsection, the amendments adding at the end the following new clause: ‘‘(iv) $1,667 in the case of each half kilo- this subpart (other than this section), such made by this section shall take effect on the excess shall be carried to the succeeding tax- date of the enactment of this Act. watt of capacity (not to exceed $13,333) of wind turbines for which qualified small wind able year and added to the credit allowable (2) ALLOWANCE AGAINST ALTERNATIVE MIN- energy property expenditures are made.’’. under subsection (a) for such succeeding tax- IMUM TAX.—The amendments made by sub- (d) CREDIT FOR GEOTHERMAL HEAT PUMP able year. section (b) shall apply to credits determined SYSTEMS.— ‘‘(B) RULE FOR OTHER YEARS.—In the case under section 46 of the Internal Revenue (1) IN GENERAL.—Section 25D(a), as amend- of a taxable year to which section 26(a)(2) Code of 1986 in taxable years beginning after ed by subsection (c), is amended by striking does not apply, if the credit allowable under the date of the enactment of this Act and to ‘‘and’’ at the end of paragraph (3), by strik- subsection (a) exceeds the limitation im- carrybacks of such credits. ing the period at the end of paragraph (4) and posed by paragraph (1) for such taxable year, (3) COMBINED HEAT AND POWER AND FUEL inserting ‘‘, and’’, and by adding at the end such excess shall be carried to the suc- CELL PROPERTY.—The amendments made by the following new paragraph: ceeding taxable year and added to the credit subsections (c) and (d) shall apply to periods ‘‘(5) 30 percent of the qualified geothermal allowable under subsection (a) for such suc- after the date of the enactment of this Act, heat pump property expenditures made by ceeding taxable year.’’. in taxable years ending after such date, the taxpayer during such year.’’. (2) CONFORMING AMENDMENTS.— under rules similar to the rules of section (2) LIMITATION.—Section 25D(b)(1), as (A) Section 23(b)(4)(B) is amended by in- 48(m) of the Internal Revenue Code of 1986 amended by subsection (c), is amended by serting ‘‘and section 25D’’ after ‘‘this sec- (as in effect on the day before the date of the striking ‘‘and’’ at the end of subparagraph tion’’. enactment of the Revenue Reconciliation (C), by striking the period at the end of sub- (B) Section 24(b)(3)(B) is amended by strik- Act of 1990). paragraph (D) and inserting ‘‘, and’’, and by ing ‘‘and 25B’’ and inserting ‘‘, 25B, and 25D’’. (4) PUBLIC UTILITY PROPERTY.—The amend- adding at the end the following new subpara- (C) Section 25B(g)(2) is amended by strik- ments made by subsection (e) shall apply to graph: ing ‘‘section 23’’ and inserting ‘‘sections 23 periods after February 13, 2008, in taxable ‘‘(E) $2,000 with respect to any qualified and 25D’’. years ending after such date, under rules geothermal heat pump property expendi- (D) Section 26(a)(1) is amended by striking similar to the rules of section 48(m) of the tures.’’. ‘‘and 25B’’ and inserting ‘‘25B, and 25D’’. Internal Revenue Code of 1986 (as in effect on (3) QUALIFIED GEOTHERMAL HEAT PUMP (f) EFFECTIVE DATE.— the day before the date of the enactment of PROPERTY EXPENDITURE.—Section 25D(d), as (1) IN GENERAL.—The amendments made by the Revenue Reconciliation Act of 1990). amended by subsection (c), is amended by this section shall apply to taxable years be- SEC. 3104. CREDIT FOR RESIDENTIAL ENERGY adding at the end the following new para- ginning after December 31, 2007. EFFICIENT PROPERTY. graph: (2) APPLICATION OF EGTRRA SUNSET.—The (a) EXTENSION.—Section 25D(g) is amended ‘‘(5) QUALIFIED GEOTHERMAL HEAT PUMP amendments made by subparagraphs (A) and by striking ‘‘December 31, 2008’’ and insert- PROPERTY EXPENDITURE.— (B) of subsection (e)(2) shall be subject to ing ‘‘December 31, 2014’’. ‘‘(A) IN GENERAL.—The term ‘qualified geo- title IX of the Economic Growth and Tax Re- (b) MAXIMUM CREDIT FOR SOLAR ELECTRIC thermal heat pump property expenditure’ lief Reconciliation Act of 2001 in the same PROPERTY.— means an expenditure for qualified geo- manner as the provisions of such Act to (1) IN GENERAL.—Section 25D(b)(1)(A) is thermal heat pump property installed on or which such amendments relate. amended by striking ‘‘$2,000’’ and inserting in connection with a dwelling unit located in ‘‘$4,000’’. the United States and used as a residence by SEC. 3105. SPECIAL RULE TO IMPLEMENT FERC (2) CONFORMING AMENDMENT.—Section the taxpayer. AND STATE ELECTRIC RESTRUC- TURING POLICY. 25D(e)(4)(A)(i) is amended by striking ‘‘(B) QUALIFIED GEOTHERMAL HEAT PUMP ‘‘$6,667’’ and inserting ‘‘$13,333’’. PROPERTY.—The term ‘qualified geothermal (a) EXTENSION FOR QUALIFIED ELECTRIC (c) CREDIT FOR RESIDENTIAL WIND PROP- heat pump property’ means any equipment UTILITIES.— ERTY.— which— (1) IN GENERAL.—Paragraph (3) of section (1) IN GENERAL.—Section 25D(a) is amended ‘‘(i) uses the ground or ground water as a 451(i) is amended by inserting ‘‘(before Janu- by striking ‘‘and’’ at the end of paragraph thermal energy source to heat the dwelling ary 1, 2010, in the case of a qualified electric (2), by striking the period at the end of para- unit referred to in subparagraph (A) or as a utility)’’ after ‘‘January 1, 2008’’. graph (3) and inserting ‘‘, and’’, and by add- thermal energy sink to cool such dwelling (2) QUALIFIED ELECTRIC UTILITY.—Sub- ing at the end the following new paragraph: unit, and section (i) of section 451 is amended by redes- ‘‘(4) 30 percent of the qualified small wind ‘‘(ii) meets the requirements of the Energy ignating paragraphs (6) through (10) as para- energy property expenditures made by the Star program which are in effect at the time graphs (7) through (11), respectively, and by taxpayer during such year.’’. that the expenditure for such equipment is inserting after paragraph (5) the following (2) LIMITATION.—Section 25D(b)(1) is made.’’. new paragraph: amended by striking ‘‘and’’ at the end of sub- (4) MAXIMUM EXPENDITURES IN CASE OF ‘‘(6) QUALIFIED ELECTRIC UTILITY.—For pur- paragraph (B), by striking the period at the JOINT OCCUPANCY.—Section 25D(e)(4)(A), as poses of this subsection, the term ‘qualified end of subparagraph (C) and inserting ‘‘, amended by subsection (c), is amended by electric utility’ means a person that, as of and’’, and by adding at the end the following striking ‘‘and’’ at the end of clause (iii), by the date of the qualifying electric trans- new subparagraph: striking the period at the end of clause (iv) mission transaction, is vertically integrated, ‘‘(D) $500 with respect to each half kilowatt and inserting ‘‘, and’’, and by adding at the in that it is both— of capacity (not to exceed $4,000) of wind tur- end the following new clause: ‘‘(A) a transmitting utility (as defined in bines for which qualified small wind energy ‘‘(v) $6,667 in the case of any qualified geo- section 3(23) of the Federal Power Act (16 property expenditures are made.’’. thermal heat pump property expenditures.’’. U.S.C. 796(23))) with respect to the trans- (3) QUALIFIED SMALL WIND ENERGY PROP- (e) CREDIT ALLOWED AGAINST ALTERNATIVE mission facilities to which the election ERTY EXPENDITURES.— MINIMUM TAX.— under this subsection applies, and

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6036 CONGRESSIONAL RECORD — SENATE June 24, 2008 ‘‘(B) an electric utility (as defined in sec- cation of the national new clean renewable tions issued after the date of the enactment tion 3(22) of the Federal Power Act (16 U.S.C. energy bond limitation, the Secretary shall, of this Act. 796(22))).’’. to the maximum extent practicable, make PART II—CARBON MITIGATION (b) EXTENSION OF PERIOD FOR TRANSFER OF allocations among such projects in such PROVISIONS OPERATIONAL CONTROL AUTHORIZED BY manner that the amount allocated to each FERC.—Clause (ii) of section 451(i)(4)(B) is such project bears the same ratio to the cost SEC. 3111. EXPANSION AND MODIFICATION OF amended by striking ‘‘December 31, 2007’’ and of such project as the limitation under para- ADVANCED COAL PROJECT INVEST- inserting ‘‘the date which is 4 years after the graph (2)(A) bears to the cost of all such MENT CREDIT. close of the taxable year in which the trans- projects. (a) MODIFICATION OF CREDIT AMOUNT.—Sec- action occurs’’. ‘‘(B) ALLOCATION AMONG GOVERNMENTAL tion 48A(a) is amended by striking ‘‘and’’ at (c) PROPERTY LOCATED OUTSIDE THE UNITED BODIES AND COOPERATIVE ELECTRIC COMPA- the end of paragraph (1), by striking the pe- STATES NOT TREATED AS EXEMPT UTILITY NIES.—The Secretary shall make allocations riod at the end of paragraph (2) and inserting PROPERTY.—Paragraph (5) of section 451(i) is of the amount of the national new clean re- ‘‘, and’’, and by adding at the end the fol- amended by adding at the end the following newable energy bond limitation described in lowing new paragraph: new subparagraph: paragraphs (2)(B) and (2)(C) among qualified ‘‘(3) 30 percent of the qualified investment ‘‘(C) EXCEPTION FOR PROPERTY LOCATED projects of governmental bodies and coopera- for such taxable year in the case of projects OUTSIDE THE UNITED STATES.—The term ‘ex- tive electric companies, respectively, in such described in clause (iii) of subsection empt utility property’ shall not include any manner as the Secretary determines appro- (d)(3)(B).’’. property which is located outside the United priate. (b) EXPANSION OF AGGREGATE CREDITS.— States.’’. ‘‘(d) DEFINITIONS.—For purposes of this sec- Section 48A(d)(3)(A) is amended by striking tion— (d) EFFECTIVE DATES.— ‘‘$1,300,000,000’’ and inserting ‘‘$2,550,000,000’’. ‘‘(1) QUALIFIED RENEWABLE ENERGY FACIL- (1) EXTENSION.—The amendments made by (c) AUTHORIZATION OF ADDITIONAL ITY.—The term ‘qualified renewable energy subsection (a) shall apply to transactions PROJECTS.— after December 31, 2007. facility’ means a qualified facility (as deter- mined under section 45(d) without regard to (1) IN GENERAL.—Subparagraph (B) of sec- (2) TRANSFERS OF OPERATIONAL CONTROL.— tion 48A(d)(3) is amended to read as follows: The amendment made by subsection (b) shall paragraphs (8) and (10) thereof and to any placed in service date) owned by a public ‘‘(B) PARTICULAR PROJECTS.—Of the dollar take effect as if included in section 909 of the amount in subparagraph (A), the Secretary American Jobs Creation Act of 2004. power provider, a governmental body, or a cooperative electric company. is authorized to certify— (3) EXCEPTION FOR PROPERTY LOCATED OUT- ‘‘(2) PUBLIC POWER PROVIDER.—The term ‘‘(i) $800,000,000 for integrated gasification SIDE THE UNITED STATES.—The amendment ‘public power provider’ means a State utility combined cycle projects the application for made by subsection (c) shall apply to trans- with a service obligation, as such terms are which is submitted during the period de- actions after the date of the enactment of defined in section 217 of the Federal Power scribed in paragraph (2)(A)(i), this Act. Act (as in effect on the date of the enact- ‘‘(ii) $500,000,000 for projects which use SEC. 3106. NEW CLEAN RENEWABLE ENERGY ment of this paragraph). other advanced coal-based generation tech- BONDS. ‘‘(3) GOVERNMENTAL BODY.—The term ‘gov- nologies the application for which is sub- (a) IN GENERAL.—Subpart I of part IV of ernmental body’ means any State or Indian mitted during the period described in para- subchapter A of chapter 1 is amended by add- tribal government, or any political subdivi- graph (2)(A)(i), and ing at the end the following new section: sion thereof. ‘‘(iii) $1,250,000,000 for advanced coal-based ‘‘SEC. 54C. NEW CLEAN RENEWABLE ENERGY ‘‘(4) COOPERATIVE ELECTRIC COMPANY.—The generation technology projects the applica- BONDS. term ‘cooperative electric company’ means a tion for which is submitted during the period ‘‘(a) NEW CLEAN RENEWABLE ENERGY mutual or cooperative electric company de- described in paragraph (2)(A)(ii).’’. BOND.—For purposes of this subpart, the scribed in section 501(c)(12) or section (2) APPLICATION PERIOD FOR ADDITIONAL term ‘new clean renewable energy bond’ 1381(a)(2)(C). PROJECTS.—Subparagraph (A) of section means any bond issued as part of an issue ‘‘(5) CLEAN RENEWABLE ENERGY BOND LEND- 48A(d)(2) is amended to read as follows: if— ER.—The term ‘clean renewable energy bond ‘‘(A) APPLICATION PERIOD.—Each applicant ‘‘(1) 100 percent of the available project lender’ means a lender which is a cooperative for certification under this paragraph shall proceeds of such issue are to be used for cap- which is owned by, or has outstanding loans submit an application meeting the require- ital expenditures incurred by governmental to, 100 or more cooperative electric compa- ments of subparagraph (B). An applicant bodies, public power providers, or coopera- nies and is in existence on February 1, 2002, may only submit an application— tive electric companies for one or more and shall include any affiliated entity which ‘‘(i) for an allocation from the dollar qualified renewable energy facilities, is controlled by such lender. amount specified in clause (i) or (ii) of para- ‘‘(2) the bond is issued by a qualified issuer, ‘‘(6) QUALIFIED ISSUER.—The term ‘quali- graph (3)(B) during the 3-year period begin- and fied issuer’ means a public power provider, a ning on the date the Secretary establishes ‘‘(3) the issuer designates such bond for cooperative electric company, a govern- the program under paragraph (1), and purposes of this section. mental body, a clean renewable energy bond ‘‘(ii) for an allocation from the dollar ‘‘(b) REDUCED CREDIT AMOUNT.—The annual lender, or a not-for-profit electric utility amount specified in paragraph (3)(B)(iii) dur- credit determined under section 54A(b) with which has received a loan or loan guarantee ing the 3-year period beginning at the earlier respect to any new clean renewable energy under the Rural Electrification Act.’’. of the termination of the period described in bond shall be 70 percent of the amount so de- (b) CONFORMING AMENDMENTS.— clause (i) or the date prescribed by the Sec- termined without regard to this subsection. (1) Paragraph (1) of section 54A(d) is retary.’’. ‘‘(c) LIMITATION ON AMOUNT OF BONDS DES- amended to read as follows: (3) CAPTURE AND SEQUESTRATION OF CARBON IGNATED.— ‘‘(1) QUALIFIED TAX CREDIT BOND.—The term DIOXIDE EMISSIONS REQUIREMENT.— ‘‘(1) IN GENERAL.—The maximum aggregate ‘qualified tax credit bond’ means— (A) IN GENERAL.—Section 48A(e)(1) is face amount of bonds which may be des- ‘‘(A) a qualified forestry conservation amended by striking ‘‘and’’ at the end of sub- ignated under subsection (a) by any issuer bond, or paragraph (E), by striking the period at the shall not exceed the limitation amount allo- ‘‘(B) a new clean renewable energy bond, end of subparagraph (F) and inserting ‘‘; cated under this subsection to such issuer. which is part of an issue that meets require- and’’, and by adding at the end the following ‘‘(2) NATIONAL LIMITATION ON AMOUNT OF ments of paragraphs (2), (3), (4), (5), and (6).’’. new subparagraph: BONDS DESIGNATED.—There is a national new (2) Subparagraph (C) of section 54A(d)(2) is ‘‘(G) in the case of any project the applica- clean renewable energy bond limitation of amended to read as follows: tion for which is submitted during the period $2,000,000,000 which shall be allocated by the ‘‘(C) QUALIFIED PURPOSE.—For purposes of described in subsection (d)(2)(A)(ii), the Secretary as provided in paragraph (3), ex- this paragraph, the term ‘qualified purpose’ project includes equipment which separates cept that— means— and sequesters at least 65 percent (70 percent ‘‘(A) not more than 331⁄3 percent thereof ‘‘(i) in the case of a qualified forestry con- in the case of an application for reallocated may be allocated to qualified projects of pub- servation bond, a purpose specified in section credits under subsection (d)(4)) of such lic power providers, 54B(e), and project’s total carbon dioxide emissions.’’. ‘‘(B) not more than 331⁄3 percent thereof ‘‘(ii) in the case of a new clean renewable (B) HIGHEST PRIORITY FOR PROJECTS WHICH may be allocated to qualified projects of gov- energy bond, a purpose specified in section SEQUESTER CARBON DIOXIDE EMISSIONS.—Sec- ernmental bodies, and 54C(a)(1).’’. tion 48A(e)(3) is amended by striking ‘‘and’’ ‘‘(C) not more than 331⁄3 percent thereof (3) The table of sections for subpart I of at the end of subparagraph (A)(iii), by strik- may be allocated to qualified projects of co- part IV of subchapter A of chapter 1 is ing the period at the end of subparagraph operative electric companies. amended by adding at the end the following (B)(iii) and inserting ‘‘, and’’, and by adding ‘‘(3) METHOD OF ALLOCATION.— new item: at the end the following new subparagraph: ‘‘(A) ALLOCATION AMONG PUBLIC POWER PRO- ‘‘Sec. 54C. Qualified clean renewable energy ‘‘(C) give highest priority to projects with VIDERS.—After the Secretary determines the bonds.’’. the greatest separation and sequestration qualified projects of public power providers (c) EFFECTIVE DATE.—The amendments percentage of total carbon dioxide emis- which are appropriate for receiving an allo- made by this section shall apply to obliga- sions.’’.

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(C) RECAPTURE OF CREDIT FOR FAILURE TO percentage of total carbon dioxide emissions, (A) an exporter establishes that such ex- SEQUESTER.—Section 48A is amended by add- and porter exported coal to a foreign country or ing at the end the following new subsection: ‘‘(B) give high priority to applicant par- shipped coal to a possession of the United ‘‘(i) RECAPTURE OF CREDIT FOR FAILURE TO ticipants who have a research partnership States, or caused such coal to be so exported SEQUESTER.—The Secretary shall provide for with an eligible educational institution (as or shipped, recapturing the benefit of any credit allow- defined in section 529(e)(5)).’’. (B) such exporter filed a tax return on or able under subsection (a) with respect to any (e) EFFECTIVE DATE.—The amendments after October 1, 1990, and on or before the project which fails to attain or maintain the made by this section shall apply to credits date of the enactment of this Act, and separation and sequestration requirements described in section 48B(d)(1)(B) of the Inter- (C) such exporter files a claim for refund of subsection (e)(1)(G).’’. nal Revenue Code of 1986 which are allocated with the Secretary not later than the close (4) ADDITIONAL PRIORITY FOR RESEARCH or reallocated after the date of the enact- of the 30-day period beginning on the date of PARTNERSHIPS.—Section 48A(e)(3)(B), as ment of this Act. the enactment of this Act, amended by paragraph (3)(B), is amended— then the Secretary shall pay to such ex- (A) by striking ‘‘and’’ at the end of clause SEC. 3113. TEMPORARY INCREASE IN COAL EX- CISE TAX. porter an amount equal to $0.825 per ton of (ii), Paragraph (2) of section 4121(e) is amend- such coal exported by the exporter or caused (B) by redesignating clause (iii) as clause ed— to be exported or shipped, or caused to be ex- (iv), and ported or shipped, by the exporter. (C) by inserting after clause (ii) the fol- (1) by striking ‘‘January 1, 2014’’ in sub- paragraph (A) and inserting ‘‘December 31, (b) LIMITATIONS.—Subsection (a) shall not lowing new clause: apply with respect to exported coal if a set- ‘‘(iii) applicant participants who have a re- 2018’’, and (2) by striking ‘‘January 1 after 1981’’ in tlement with the Federal Government has search partnership with an eligible edu- been made with and accepted by, the coal cational institution (as defined in section subparagraph (B) and inserting ‘‘December 31 after 2007’’. producer, a party related to such coal pro- 529(e)(5)), and’’. ducer, or the exporter, of such coal, as of the (5) CLERICAL AMENDMENT.—Section SEC. 3114. SPECIAL RULES FOR REFUND OF THE date that the claim is filed under this sec- 48A(e)(3) is amended by striking ‘‘INTE- COAL EXCISE TAX TO CERTAIN COAL PRODUCERS AND EXPORTERS. tion with respect to such exported coal. For GRATED GASIFICATION COMBINED CYCLE’’ in the purposes of this subsection, the term ‘‘settle- (a) REFUND.— heading and inserting ‘‘CERTAIN’’. ment with the Federal Government’’ shall (1) COAL PRODUCERS.— (d) DISCLOSURE OF ALLOCATIONS.—Section not include any settlement or stipulation en- (A) IN GENERAL.—Notwithstanding sub- 48A(d) is amended by adding at the end the tered into as of the date of the enactment of sections (a)(1) and (c) of section 6416 and sec- following new paragraph: this Act, the terms of which contemplate a tion 6511 of the Internal Revenue Code of ‘‘(5) DISCLOSURE OF ALLOCATIONS.—The Sec- judgment concerning which any party has 1986, if— retary shall, upon making a certification reserved the right to file an appeal, or has under this subsection or section 48B(d), pub- (i) a coal producer establishes that such filed an appeal. licly disclose the identity of the applicant coal producer, or a party related to such coal (c) SUBSEQUENT REFUND PROHIBITED.—No and the amount of the credit certified with producer, exported coal produced by such refund shall be made under this section to respect to such applicant.’’. coal producer to a foreign country or shipped the extent that a credit or refund of such tax (e) EFFECTIVE DATES.— coal produced by such coal producer to a pos- on such exported or shipped coal has been (1) IN GENERAL.—Except as otherwise pro- session of the United States, or caused such paid to any person. vided in this subsection, the amendments coal to be exported or shipped, the export or (d) DEFINITIONS.—For purposes of this sec- made by this section shall apply to credits shipment of which was other than through tion— the application for which is submitted dur- an exporter who meets the requirements of (1) COAL PRODUCER.—The term ‘‘coal pro- ing the period described in section paragraph (2), ducer’’ means the person in whom is vested 48A(d)(2)(A)(ii) of the Internal Revenue Code (ii) such coal producer filed an excise tax ownership of the coal immediately after the of 1986 and which are allocated or reallocated return on or after October 1, 1990, and on or coal is severed from the ground, without re- after the date of the enactment of this Act. before the date of the enactment of this Act, gard to the existence of any contractual ar- (2) DISCLOSURE OF ALLOCATIONS.—The and rangement for the sale or other disposition amendment made by subsection (d) shall (iii) such coal producer files a claim for re- of the coal or the payment of any royalties apply to certifications made after the date of fund with the Secretary not later than the between the producer and third parties. The the enactment of this Act. close of the 30-day period beginning on the term includes any person who extracts coal (3) CLERICAL AMENDMENT.—The amendment date of the enactment of this Act, from coal waste refuse piles or from the silt made by subsection (c)(5) shall take effect as then the Secretary shall pay to such coal waste product which results from the wet if included in the amendment made by sec- producer an amount equal to the tax paid washing (or similar processing) of coal. tion 1307(b) of the Energy Tax Incentives Act under section 4121 of such Code on such coal (2) EXPORTER.—The term ‘‘exporter’’ means of 2005. exported or shipped by the coal producer or a person, other than a coal producer, who SEC. 3112. EXPANSION AND MODIFICATION OF a party related to such coal producer, or does not have a contract, fee arrangement, COAL GASIFICATION INVESTMENT caused by the coal producer or a party re- or any other agreement with a producer or CREDIT. lated to such coal producer to be exported or seller of such coal to export or ship such coal (a) MODIFICATION OF CREDIT AMOUNT.—Sec- shipped. to a third party on behalf of the producer or tion 48B(a) is amended by inserting ‘‘(30 per- (B) SPECIAL RULES FOR CERTAIN TAX- seller of such coal and— cent in the case of credits allocated under PAYERS.—For purposes of this section— (A) is indicated in the shipper’s export dec- subsection (d)(1)(B))’’ after ‘‘20 percent’’. (i) IN GENERAL.—If a coal producer or a laration or other documentation as the ex- (b) EXPANSION OF AGGREGATE CREDITS.— party related to a coal producer has received Section 48B(d)(1) is amended by striking porter of record, or a judgment described in clause (iii), such (B) actually exported such coal to a foreign ‘‘shall not exceed $350,000,000’’ and all that coal producer shall be deemed to have estab- follows and inserting ‘‘shall not exceed— country or shipped such coal to a possession lished the export of coal to a foreign country ‘‘(A) $350,000,000, plus of the United States, or caused such coal to or shipment of coal to a possession of the ‘‘(B) $250,000,000 for qualifying gasification be so exported or shipped. United States under subparagraph (A)(i). projects that include equipment which sepa- (3) RELATED PARTY.—The term ‘‘a party re- (ii) AMOUNT OF PAYMENT.—If a taxpayer de- rates and sequesters at least 75 percent of lated to such coal producer’’ means a person scribed in clause (i) is entitled to a payment such project’s total carbon dioxide emis- who— under subparagraph (A), the amount of such sions.’’. (A) is related to such coal producer payment shall be reduced by any amount (c) RECAPTURE OF CREDIT FOR FAILURE TO through any degree of common management, paid pursuant to the judgment described in SEQUESTER.—Section 48B is amended by add- stock ownership, or voting control, ing at the end the following new subsection: clause (iii). (B) is related (within the meaning of sec- ‘‘(f) RECAPTURE OF CREDIT FOR FAILURE TO (iii) JUDGMENT DESCRIBED.—A judgment is tion 144(a)(3) of the Internal Revenue Code of SEQUESTER.—The Secretary shall provide for described in this subparagraph if such judg- 1986) to such coal producer, or recapturing the benefit of any credit allow- ment— (C) has a contract, fee arrangement, or any able under subsection (a) with respect to any (I) is made by a court of competent juris- other agreement with such coal producer to project which fails to attain or maintain the diction within the United States, sell such coal to a third party on behalf of separation and sequestration requirements (II) relates to the constitutionality of any such coal producer. for such project under subsection (d)(1).’’. tax paid on exported coal under section 4121 (4) SECRETARY.—The term ‘‘Secretary’’ (d) SELECTION PRIORITIES.—Section 48B(d) of the Internal Revenue Code of 1986, and means the Secretary of Treasury or the Sec- is amended by adding at the end the fol- (III) is in favor of the coal producer or the retary’s designee. lowing new paragraph: party related to the coal producer. (e) TIMING OF REFUND.—With respect to ‘‘(4) SELECTION PRIORITIES.—In determining (2) EXPORTERS.—Notwithstanding sub- any claim for refund filed pursuant to this which qualifying gasification projects to cer- sections (a)(1) and (c) of section 6416 and sec- section, the Secretary shall determine tify under this section, the Secretary shall— tion 6511 of the Internal Revenue Code of whether the requirements of this section are ‘‘(A) give highest priority to projects with 1986, and a judgment described in paragraph met not later than 180 days after such claim the greatest separation and sequestration (1)(B)(iii) of this subsection, if— is filed. If the Secretary determines that the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6038 CONGRESSIONAL RECORD — SENATE June 24, 2008 requirements of this section are met, the placed in service after the date of the enact- spect to any alcohol which is produced out- claim for refund shall be paid not later than ment of this Act, in taxable years ending side the United States for use as a fuel out- 180 days after the Secretary makes such de- after such date. side the United States. For purposes of this termination. SEC. 3122. CREDITS FOR BIODIESEL AND RENEW- paragraph, the term ‘United States’ includes (f) INTEREST.—Any refund paid pursuant to ABLE DIESEL. any possession of the United States.’’. this section shall be paid by the Secretary (a) IN GENERAL.—Sections 40A(g), 6426(c)(6), (b) BIODIESEL FUELS CREDIT.—Subsection with interest from the date of overpayment and 6427(e)(5)(B) are each amended by strik- (d) of section 40A is amended by adding at determined by using the overpayment rate ing ‘‘December 31, 2008’’ and inserting ‘‘De- the end the following new paragraph: and method under section 6621 of the Inter- cember 31, 2009’’. ‘‘(5) LIMITATION TO BIODIESEL WITH CONNEC- nal Revenue Code of 1986. (b) INCREASE IN RATE OF CREDIT.— TION TO THE UNITED STATES.—No credit shall (g) DENIAL OF DOUBLE BENEFIT.—The pay- (1) INCOME TAX CREDIT.—Paragraphs (1)(A) be determined under this section with re- ment under subsection (a) with respect to and (2)(A) of section 40A(b) are each amended spect to any biodiesel which is produced out- any coal shall not exceed— by striking ‘‘50 cents’’ and inserting ‘‘$1.00’’. side the United States for use as a fuel out- (1) in the case of a payment to a coal pro- (2) EXCISE TAX CREDIT.—Paragraph (2) of side the United States. For purposes of this ducer, the amount of tax paid under section section 6426(c) is amended to read as follows: paragraph, the term ‘United States’ includes 4121 of the Internal Revenue Code of 1986 ‘‘(2) APPLICABLE AMOUNT.—For purposes of any possession of the United States.’’. with respect to such coal by such coal pro- this subsection, the applicable amount is (c) EXCISE TAX CREDIT.— ducer or a party related to such coal pro- $1.00.’’. (1) IN GENERAL.—Section 6426 is amended ducer, and (3) CONFORMING AMENDMENTS.— by adding at the end the following new sub- (2) in the case of a payment to an exporter, (A) Subsection (b) of section 40A is amend- section: an amount equal to $0.825 per ton with re- ed by striking paragraph (3) and by redesig- ‘‘(i) LIMITATION TO FUELS WITH CONNECTION spect to such coal exported by the exporter nating paragraphs (4) and (5) as paragraphs TO THE UNITED STATES.— or caused to be exported by the exporter. (3) and (4), respectively. ‘‘(1) ALCOHOL.—No credit shall be deter- (h) APPLICATION OF SECTION.—This section (B) Paragraph (2) of section 40A(f) is mined under this section with respect to any applies only to claims on coal exported or amended to read as follows: alcohol which is produced outside the United shipped on or after October 1, 1990, through ‘‘(2) EXCEPTION.—Subsection (b)(4) shall States for use as a fuel outside the United the date of the enactment of this Act. not apply with respect to renewable diesel.’’. States. (i) STANDING NOT CONFERRED.— (C) Paragraphs (2) and (3) of section 40A(e) ‘‘(2) BIODIESEL AND ALTERNATIVE FUELS.— (1) EXPORTERS.—With respect to exporters, are each amended by striking ‘‘subsection No credit shall be determined under this sec- this section shall not confer standing upon (b)(5)(C)’’ and inserting ‘‘subsection tion with respect to any biodiesel or alter- an exporter to commence, or intervene in, (b)(4)(C)’’. native fuel which is produced outside the any judicial or administrative proceeding (D) Clause (ii) of section 40A(d)(3)(C) is United States for use as a fuel outside the concerning a claim for refund by a coal pro- amended by striking ‘‘subsection (b)(5)(B)’’ United States. ducer of any Federal or State tax, fee, or and inserting ‘‘subsection (b)(4)(B)’’. royalty paid by the coal producer. For purposes of this subsection, the term (c) UNIFORM TREATMENT OF DIESEL PRO- ‘United States’ includes any possession of (2) COAL PRODUCERS.—With respect to coal DUCED FROM BIOMASS.—Paragraph (3) of sec- the United States.’’. producers, this section shall not confer tion 40A(f) is amended— (2) CONFORMING AMENDMENT.—Subsection standing upon a coal producer to commence, (1) by striking ‘‘diesel fuel’’ and inserting or intervene in, any judicial or administra- (e) of section 6427 is amended by redesig- ‘‘liquid fuel’’, nating paragraph (5) as paragraph (6) and by tive proceeding concerning a claim for re- (2) by striking ‘‘using a thermal fund by an exporter of any Federal or State inserting after paragraph (4) the following depolymerization process’’, and new paragraph: tax, fee, or royalty paid by the producer and (3) by striking ‘‘or D396’’ in subparagraph ‘‘(5) LIMITATION TO FUELS WITH CONNECTION alleged to have been passed on to an ex- (B) and inserting ‘‘, D396, or other equivalent porter. TO THE UNITED STATES.—No amount shall be standard approved by the Secretary’’. payable under paragraph (1) or (2) with re- SEC. 3115. CARBON AUDIT OF THE TAX CODE. (d) COPRODUCTION OF RENEWABLE DIESEL spect to any mixture or alternative fuel if (a) STUDY.—The Secretary of the Treasury WITH PETROLEUM FEEDSTOCK.— credit is not allowed with respect to such shall enter into an agreement with the Na- (1) IN GENERAL.—Paragraph (3) of section mixture or alternative fuel by reason of sec- tional Academy of Sciences to undertake a 40A(f) (defining renewable diesel) is amended tion 6426(i).’’. comprehensive review of the Internal Rev- by adding at the end the following new sen- (d) EFFECTIVE DATE.—The amendments enue Code of 1986 to identify the types of and tence: ‘‘Such term does not include any fuel made by this section shall apply to claims specific tax provisions that have the largest derived from coprocessing biomass with a for credit or payment made on or after May effects on carbon and other greenhouse gas feedstock which is not biomass. For purposes 15, 2008. emissions and to estimate the magnitude of of this paragraph, the term ‘biomass’ has the those effects. meaning given such term by section SEC. 3124. CREDIT FOR NEW QUALIFIED PLUG-IN ELECTRIC DRIVE MOTOR VEHICLES. (b) REPORT.—Not later than 2 years after 45K(c)(3).’’. (a) IN GENERAL.—Subpart B of part IV of the date of enactment of this Act, the Na- (2) CONFORMING AMENDMENT.—Paragraph subchapter A of chapter 1 is amended by add- tional Academy of Sciences shall submit to (3) of section 40A(f) is amended by striking ing at the end the following new section: Congress a report containing the results of ‘‘(as defined in section 45K(c)(3))’’. study authorized under this section. (e) ELIGIBILITY OF CERTAIN AVIATION ‘‘SEC. 30D. NEW QUALIFIED PLUG-IN ELECTRIC DRIVE MOTOR VEHICLES. (c) AUTHORIZATION OF APPROPRIATIONS.— FUEL.—Paragraph (3) of section 40A(f) (defin- There is authorized to be appropriated to ing renewable diesel) is amended by adding ‘‘(a) ALLOWANCE OF CREDIT.—There shall be carry out this section $1,500,000 for the period at the end the following: ‘‘The term ‘renew- allowed as a credit against the tax imposed of fiscal years 2008 and 2009. able diesel’ also means fuel derived from bio- by this chapter for the taxable year an Subtitle B—Transportation and Domestic mass which meets the requirements of a De- amount equal to the sum of the credit Fuel Security Provisions partment of Defense specification for mili- amounts determined under subsection (b) with respect to each new qualified plug-in SEC. 3121. INCLUSION OF CELLULOSIC BIOFUEL tary jet fuel or an American Society of Test- IN BONUS DEPRECIATION FOR BIO- ing and Materials specification for aviation electric drive motor vehicle placed in service MASS ETHANOL PLANT PROPERTY. turbine fuel.’’. by the taxpayer during the taxable year. (a) IN GENERAL.—Paragraph (3) of section (f) EFFECTIVE DATE.— ‘‘(b) PER VEHICLE DOLLAR LIMITATION.— 168(l) is amended to read as follows: (1) IN GENERAL.—Except as otherwise pro- ‘‘(1) IN GENERAL.—The amount determined ‘‘(3) CELLULOSIC BIOFUEL.—The term ‘cel- vided in this subsection, the amendments under this subsection with respect to any lulosic biofuel’ means any liquid fuel which made by this section shall apply to fuel pro- new qualified plug-in electric drive motor ve- is produced from any lignocellulosic or duced, and sold or used, after December 31, hicle is the sum of the amounts determined hemicellulosic matter that is available on a 2008. under paragraphs (2) and (3) with respect to renewable or recurring basis.’’. (2) COPRODUCTION OF RENEWABLE DIESEL such vehicle. (b) CONFORMING AMENDMENTS.—Subsection WITH PETROLEUM FEEDSTOCK.—The amend- ‘‘(2) BASE AMOUNT.—The amount deter- (l) of section 168 is amended— ments made by subsection (d) shall apply to mined under this paragraph is $3,000. (1) by striking ‘‘cellulosic biomass eth- fuel produced, and sold or used, after the ‘‘(3) BATTERY CAPACITY.—In the case of a anol’’ each place it appears and inserting date of the enactment of this Act. vehicle which draws propulsion energy from ‘‘cellulosic biofuel’’, SEC. 3123. CLARIFICATION THAT CREDITS FOR a battery with not less than 5 kilowatt hours (2) by striking ‘‘CELLULOSIC BIOMASS ETH- FUEL ARE DESIGNED TO PROVIDE of capacity, the amount determined under ANOL’’ in the heading of such subsection and AN INCENTIVE FOR UNITED STATES this paragraph is $200, plus $200 for each kilo- inserting ‘‘CELLULOSIC BIOFUEL’’, and PRODUCTION. watt hour of capacity in excess of 5 kilowatt (3) by striking ‘‘CELLULOSIC BIOMASS ETH- (a) ALCOHOL FUELS CREDIT.—Paragraph (6) hours. The amount determined under this ANOL’’ in the heading of paragraph (2) thereof of section 40(d) is amended to read as follows: paragraph shall not exceed $2,000. and inserting ‘‘CELLULOSIC BIOFUEL’’. ‘‘(6) LIMITATION TO ALCOHOL WITH CONNEC- ‘‘(c) APPLICATION WITH OTHER CREDITS.— (c) EFFECTIVE DATE.—The amendments TION TO THE UNITED STATES.—No credit shall ‘‘(1) BUSINESS CREDIT TREATED AS PART OF made by this section shall apply to property be determined under this section with re- GENERAL BUSINESS CREDIT.—So much of the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6039 credit which would be allowed under sub- quarter following the calendar quarter which and inserting ‘‘, and’’, and by adding at the section (a) for any taxable year (determined includes the first date on which the number end the following new paragraph: without regard to this subsection) that is at- of new qualified plug-in electric drive motor ‘‘(37) to the extent provided in section tributable to property of a character subject vehicles manufactured by the manufacturer 30D(f)(1).’’. to an allowance for depreciation shall be of the vehicle referred to in paragraph (1) (3) Section 6501(m) is amended by inserting treated as a credit listed in section 38(b) for sold for use in the United States after the ‘‘30D(f)(4),’’ after ‘‘30C(e)(5),’’. such taxable year (and not allowed under date of the enactment of this section, is at (4) The table of sections for subpart B of subsection (a)). least 60,000. part IV of subchapter A of chapter 1 is ‘‘(2) PERSONAL CREDIT.— ‘‘(3) APPLICABLE PERCENTAGE.—For pur- amended by adding at the end the following ‘‘(A) IN GENERAL.—For purposes of this poses of paragraph (1), the applicable per- new item: title, the credit allowed under subsection (a) centage is— ‘‘Sec. 30D. New qualified plug-in electric for any taxable year (determined after appli- ‘‘(A) 50 percent for the first 2 calendar drive motor vehicles.’’. cation of paragraph (1)) shall be treated as a quarters of the phaseout period, (e) TREATMENT OF ALTERNATIVE MOTOR VE- credit allowable under subpart A for such ‘‘(B) 25 percent for the 3d and 4th calendar HICLE CREDIT AS A PERSONAL CREDIT.— taxable year. quarters of the phaseout period, and (1) IN GENERAL.—Paragraph (2) of section ‘‘(B) LIMITATION BASED ON AMOUNT OF ‘‘(C) 0 percent for each calendar quarter 30B(g) is amended to read as follows: TAX.—In the case of a taxable year to which thereafter. ‘‘(2) PERSONAL CREDIT.—The credit allowed section 26(a)(2) does not apply, the credit al- ‘‘(4) CONTROLLED GROUPS.—Rules similar to under subsection (a) for any taxable year lowed under subsection (a) for any taxable the rules of section 30B(f)(4) shall apply for (after application of paragraph (1)) shall be year (determined after application of para- purposes of this subsection. treated as a credit allowable under subpart A graph (1)) shall not exceed the excess of— ‘‘(f) SPECIAL RULES.— for such taxable year.’’. ‘‘(i) the sum of the regular tax liability (as ‘‘(1) BASIS REDUCTION.—The basis of any (2) CONFORMING AMENDMENTS.— defined in section 26(b)) plus the tax imposed property for which a credit is allowable (A) Subparagraph (A) of section 30C(d)(2) is by section 55, over under subsection (a) shall be reduced by the amended by striking ‘‘sections 27, 30, and ‘‘(ii) the sum of the credits allowable under amount of such credit (determined without 30B’’ and inserting ‘‘sections 27 and 30’’. subpart A (other than this section and sec- regard to subsection (c)). (B) Paragraph (3) of section 55(c) is amend- tions 23 and 25D) and section 27 for the tax- ‘‘(2) RECAPTURE.—The Secretary shall, by ed by striking ‘‘30B(g)(2),’’. able year. regulations, provide for recapturing the ben- (f) EFFECTIVE DATE.— ‘‘(d) NEW QUALIFIED PLUG-IN ELECTRIC efit of any credit allowable under subsection (1) IN GENERAL.—Except as otherwise pro- DRIVE MOTOR VEHICLE.—For purposes of this (a) with respect to any property which ceases vided in this subsection, the amendments section— to be property eligible for such credit. made by this section shall apply to taxable ‘‘(1) IN GENERAL.—The term ‘new qualified ‘‘(3) PROPERTY USED OUTSIDE UNITED years beginning after December 31, 2008. plug-in electric drive motor vehicle’ means a STATES, ETC., NOT QUALIFIED.—No credit shall (2) TREATMENT OF ALTERNATIVE MOTOR VE- motor vehicle (as defined in section be allowed under subsection (a) with respect HICLE CREDIT AS PERSONAL CREDIT.—The 30(c)(2))— to any property referred to in section 50(b)(1) amendments made by subsection (e) shall ‘‘(A) the original use of which commences or with respect to the portion of the cost of apply to taxable years beginning after De- with the taxpayer, any property taken into account under sec- cember 31, 2007. ‘‘(B) which is acquired for use or lease by tion 179. (g) APPLICATION OF EGTRRA SUNSET.—The the taxpayer and not for resale, ‘‘(4) ELECTION NOT TO TAKE CREDIT.—No amendment made by subsection (d)(1)(A) ‘‘(C) which is made by a manufacturer, credit shall be allowed under subsection (a) shall be subject to title IX of the Economic ‘‘(D) which has a gross vehicle weight rat- for any vehicle if the taxpayer elects to not Growth and Tax Relief Reconciliation Act of ing of less than 14,000 pounds, have this section apply to such vehicle. 2001 in the same manner as the provision of ‘‘(E) which has received a certificate of ‘‘(5) PROPERTY USED BY TAX-EXEMPT ENTITY; such Act to which such amendment relates. conformity under the Clean Air Act and INTERACTION WITH AIR QUALITY AND MOTOR VE- SEC. 3125. EXCLUSION FROM HEAVY TRUCK TAX meets or exceeds the Bin 5 Tier II emission HICLE SAFETY STANDARDS.—Rules similar to standard established in regulations pre- FOR IDLING REDUCTION UNITS AND the rules of paragraphs (6) and (10) of section ADVANCED INSULATION. scribed by the Administrator of the Environ- 30B(h) shall apply for purposes of this sec- (a) IN GENERAL.—Section 4053 is amended mental Protection Agency under section tion.’’. by adding at the end the following new para- 202(i) of the Clean Air Act for that make and (b) COORDINATION WITH ALTERNATIVE graphs: model year vehicle, and MOTOR VEHICLE CREDIT.—Section 30B(d)(3) is ‘‘(F) which is propelled to a significant ex- amended by adding at the end the following ‘‘(9) IDLING REDUCTION DEVICE.—Any device tent by an electric motor which draws elec- new subparagraph: or system of devices which— ‘‘(A) is designed to provide to a vehicle tricity from a battery which— ‘‘(D) EXCLUSION OF PLUG-IN VEHICLES.—Any ‘‘(i) has a capacity of not less than 4 kilo- vehicle with respect to which a credit is al- those services (such as heat, air condi- watt hours, and lowable under section 30D (determined with- tioning, or electricity) that would otherwise ‘‘(ii) is capable of being recharged from an out regard to subsection (c) thereof) shall require the operation of the main drive en- external source of electricity. not be taken into account under this sec- gine while the vehicle is temporarily parked ‘‘(2) EXCEPTION.—The term ‘new qualified tion.’’. or remains stationary using one or more de- plug-in electric drive motor vehicle’ shall (c) CREDIT MADE PART OF GENERAL BUSI- vices affixed to a tractor, and not include any vehicle which is not a pas- NESS CREDIT.—Section 38(b) is amended— ‘‘(B) is determined by the Administrator of senger automobile or light truck if such ve- (1) by striking ‘‘and’’ each place it appears the Environmental Protection Agency, in hicle has a gross vehicle weight rating of less at the end of any paragraph, consultation with the Secretary of Energy than 8,500 pounds. (2) by striking ‘‘plus’’ each place it appears and the Secretary of Transportation, to re- ‘‘(3) OTHER TERMS.—The terms ‘passenger at the end of any paragraph, duce idling of such vehicle at a motor vehi- automobile’, ‘light truck’, and ‘manufac- (3) by striking the period at the end of cle rest stop or other location where such ve- turer’ have the meanings given such terms in paragraph (32) and inserting ‘‘, plus’’, and hicles are temporarily parked or remain sta- regulations prescribed by the Administrator (4) by adding at the end the following new tionary. of the Environmental Protection Agency for paragraph: ‘‘(10) ADVANCED INSULATION.—Any insula- purposes of the administration of title II of ‘‘(33) the portion of the new qualified plug- tion that has an R value of not less than R35 the Clean Air Act (42 U.S.C. 7521 et seq.). in electric drive motor vehicle credit to per inch.’’. ‘‘(4) BATTERY CAPACITY.—The term ‘capac- which section 30D(c)(1) applies.’’. (b) EFFECTIVE DATE.—The amendment ity’ means, with respect to any battery, the (d) CONFORMING AMENDMENTS.— made by this section shall apply to sales or quantity of electricity which the battery is (1)(A) Section 24(b)(3)(B), as amended by installations after the date of the enactment capable of storing, expressed in kilowatt section 104, is amended by striking ‘‘and of this Act. hours, as measured from a 100 percent state 25D’’ and inserting ‘‘25D, and 30D’’. SEC. 3126. RESTRUCTURING OF NEW YORK LIB- of charge to a 0 percent state of charge. (B) Section 25(e)(1)(C)(ii) is amended by in- ERTY ZONE TAX CREDITS. ‘‘(e) LIMITATION ON NUMBER OF NEW QUALI- serting ‘‘30D,’’ after ‘‘25D,’’. (a) IN GENERAL.—Part I of subchapter Y of FIED PLUG-IN ELECTRIC DRIVE MOTOR VEHI- (C) Section 25B(g)(2), as amended by sec- chapter 1 is amended by redesignating sec- CLES ELIGIBLE FOR CREDIT.— tion 104, is amended by striking ‘‘and 25D’’ tion 1400L as section 1400K and by adding at ‘‘(1) IN GENERAL.—In the case of a new and inserting ‘‘, 25D, and 30D’’. the end the following new section: qualified plug-in electric drive motor vehicle (D) Section 26(a)(1), as amended by section ‘‘SEC. 1400L. NEW YORK LIBERTY ZONE TAX sold during the phaseout period, only the ap- 104, is amended by striking ‘‘and 25D’’ and in- CREDITS. plicable percentage of the credit otherwise serting ‘‘25D, and 30D’’. ‘‘(a) IN GENERAL.—In the case of a New allowable under subsection (a) shall be al- (E) Section 1400C(d)(2) is amended by strik- York Liberty Zone governmental unit, there lowed. ing ‘‘and 25D’’ and inserting ‘‘25D, and 30D’’. shall be allowed as a credit against any taxes ‘‘(2) PHASEOUT PERIOD.—For purposes of (2) Section 1016(a) is amended by striking imposed for any payroll period by section this subsection, the phaseout period is the ‘‘and’’ at the end of paragraph (35), by strik- 3402 for which such governmental unit is lia- period beginning with the second calendar ing the period at the end of paragraph (36) ble under section 3403 an amount equal to so

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much of the portion of the qualifying project ‘‘(1) IN GENERAL.—Except as provided in nating the item relating to section 1400L as expenditure amount allocated under sub- paragraph (2), if the amount allocated under an item relating to section 1400K and by in- section (b)(3) to such governmental unit for subsection (b)(3) to a New York Liberty Zone serting after such item the following new the calendar year as is allocated by such governmental unit for any calendar year ex- item: governmental unit to such period under sub- ceeds the aggregate taxes imposed by section ‘‘Sec. 1400L. New York Liberty Zone tax section (b)(4). 3402 for which such governmental unit is lia- credits.’’. ble under section 3403 for periods beginning ‘‘(b) QUALIFYING PROJECT EXPENDITURE (d) EFFECTIVE DATE.—The amendments AMOUNT.—For purposes of this section— in such year, such excess shall be carried to made by this section shall take effect on the ‘‘(1) IN GENERAL.—The term ‘qualifying the succeeding calendar year and added to date of the enactment of this Act. project expenditure amount’ means, with re- the allocation of such governmental unit for such succeeding calendar year. SEC. 3127. TRANSPORTATION FRINGE BENEFIT spect to any calendar year, the sum of— TO BICYCLE COMMUTERS. ‘‘(A) the total expenditures paid or in- ‘‘(2) REALLOCATION.—If a New York Liberty (a) IN GENERAL.—Paragraph (1) of section curred during such calendar year by all New Zone governmental unit does not use an 132(f) is amended by adding at the end the York Liberty Zone governmental units and amount allocated to it under subsection following: the Port Authority of New York and New (b)(3) within the time prescribed by the Gov- ‘‘(D) Any qualified bicycle commuting re- Jersey for any portion of qualifying projects ernor of the State of New York and the imbursement.’’. located wholly within the City of New York, Mayor of the City of New York, New York, (b) LIMITATION ON EXCLUSION.—Paragraph New York, and then such amount shall after such time be (2) of section 132(f) is amended by striking ‘‘(B) any such expenditures— treated for purposes of subsection (b)(3) in ‘‘and’’ at the end of subparagraph (A), by ‘‘(i) paid or incurred in any preceding cal- the same manner as if it had never been allo- striking the period at the end of subpara- endar year which begins after the date of en- cated. graph (B) and inserting ‘‘, and’’, and by add- actment of this section, and ‘‘(d) DEFINITIONS AND SPECIAL RULES.—For ing at the end the following new subpara- ‘‘(ii) not previously allocated under para- purposes of this section— graph: graph (3). ‘‘(1) CREDIT PERIOD.—The term ‘credit pe- ‘‘(C) the applicable annual limitation in ‘‘(2) QUALIFYING PROJECT.—The term ‘quali- riod’ means the 12-year period beginning on fying project’ means any transportation in- January 1, 2009. the case of any qualified bicycle commuting frastructure project, including highways, ‘‘(2) NEW YORK LIBERTY ZONE GOVERN- reimbursement.’’. mass transit systems, railroads, airports, MENTAL UNIT.—The term ‘New York Liberty (c) DEFINITIONS.—Paragraph (5) of section ports, and waterways, in or connecting with Zone governmental unit’ means— 132(f) is amended by adding at the end the the New York Liberty Zone (as defined in ‘‘(A) the State of New York, following: section 1400K(h)), which is designated as a ‘‘(B) the City of New York, New York, and ‘‘(F) DEFINITIONS RELATED TO BICYCLE COM- qualifying project under this section jointly ‘‘(C) any agency or instrumentality of such MUTING REIMBURSEMENT.— by the Governor of the State of New York State or City. ‘‘(i) QUALIFIED BICYCLE COMMUTING REIM- and the Mayor of the City of New York, New ‘‘(3) TREATMENT OF FUNDS.—Any expendi- BURSEMENT.—The term ‘qualified bicycle York. ture for a qualifying project taken into ac- commuting reimbursement’ means, with re- spect to any calendar year, any employer re- ‘‘(3) GENERAL ALLOCATION.— count for purposes of the credit under this imbursement during the 15-month period be- ‘‘(A) IN GENERAL.—The Governor of the section shall be considered State and local State of New York and the Mayor of the City funds for the purpose of any Federal pro- ginning with the first day of such calendar of New York, New York, shall jointly allo- gram. year for reasonable expenses incurred by the cate to each New York Liberty Zone govern- ‘‘(4) TREATMENT OF CREDIT AMOUNTS FOR employee during such calendar year for the mental unit the portion of the qualifying PURPOSES OF WITHHOLDING TAXES.—For pur- purchase of a bicycle and bicycle improve- project expenditure amount which may be poses of this title, a New York Liberty Zone ments, repair, and storage, if such bicycle is taken into account by such governmental governmental unit shall be treated as having regularly used for travel between the em- unit under subsection (a) for any calendar paid to the Secretary, on the day on which ployee’s residence and place of employment. year in the credit period. wages are paid to employees, an amount ‘‘(ii) APPLICABLE ANNUAL LIMITATION.—The term ‘applicable annual limitation’ means, ‘‘(B) AGGREGATE LIMIT.—The aggregate equal to the amount of the credit allowed to amount which may be allocated under sub- such entity under subsection (a) with respect with respect to any employee for any cal- paragraph (A) for all calendar years in the to such wages, but only if such governmental endar year, the product of $20 multiplied by credit period shall not exceed $2,000,000,000. unit deducts and withholds wages for such the number of qualified bicycle commuting months during such year. ‘‘(C) ANNUAL LIMIT.—The aggregate payroll period under section 3401 (relating to amount which may be allocated under sub- wage withholding). ‘‘(iii) QUALIFIED BICYCLE COMMUTING paragraph (A) for any calendar year in the ‘‘(e) REPORTING.—The Governor of the MONTH.—The term ‘qualified bicycle com- credit period shall not exceed the sum of— State of New York and the Mayor of the City muting month’ means, with respect to any ‘‘(i) $115,000,000 ($425,000,000 in the case of of New York, New York, shall jointly submit employee, any month during which such em- the last 2 years in the credit period), plus to the Secretary an annual report— ployee— ‘‘(ii) the aggregate amount authorized to ‘‘(1) which certifies— ‘‘(I) regularly uses the bicycle for a sub- be allocated under this paragraph for all pre- ‘‘(A) the qualifying project expenditure stantial portion of the travel between the ceding calendar years in the credit period amount for the calendar year, and employee’s residence and place of employ- which was not so allocated. ‘‘(B) the amount allocated to each New ment, and York Liberty Zone governmental unit under ‘‘(II) does not receive any benefit described ‘‘(D) UNALLOCATED AMOUNTS AT END OF subsection (b)(3) for the calendar year, and in subparagraph (A), (B), or (C) of paragraph CREDIT PERIOD.—If, as of the close of the credit period, the amount under subpara- ‘‘(2) includes such other information as the (1).’’. graph (B) exceeds the aggregate amount allo- Secretary may require to carry out this sec- (d) CONSTRUCTIVE RECEIPT OF BENEFIT.— cated under subparagraph (A) for all cal- tion. Paragraph (4) of section 132(f) is amended by ‘‘(f) GUIDANCE.—The Secretary may pre- endar years in the credit period, the Gov- inserting ‘‘(other than a qualified bicycle scribe such guidance as may be necessary or ernor of the State of New York and the commuting reimbursement)’’ after ‘‘quali- appropriate to ensure compliance with the Mayor of the City of New York, New York, fied transportation fringe’’. purposes of this section.’’. (e) EFFECTIVE DATE.—The amendments may jointly allocate to New York Liberty (b) TERMINATION OF SPECIAL ALLOWANCE Zone governmental units for any calendar made by this section shall apply to taxable AND EXPENSING.—Subparagraph (A) of sec- years beginning after December 31, 2008. year in the 5-year period following the credit tion 1400K(b)(2), as redesignated by sub- period an amount equal to— section (a), is amended by striking the par- SEC. 3128. ALTERNATIVE FUEL VEHICLE REFUEL- ‘‘(i) the lesser of— enthetical therein and inserting ‘‘(in the ING PROPERTY CREDIT. ‘‘(I) such excess, or case of nonresidential real property and resi- (a) INCREASE IN CREDIT AMOUNT.—Section ‘‘(II) the qualifying project expenditure dential rental property, the date of the en- 30C is amended— amount for such calendar year, reduced by actment of the Federal Housing Finance (1) by striking ‘‘30 percent’’ in subsection ‘‘(ii) the aggregate amount allocated under Regulatory Reform Act of 2008 or, if acquired (a) and inserting ‘‘50 percent’’, and this subparagraph for all preceding calendar pursuant to a binding contract in effect on (2) by striking ‘‘$30,000’’ in subsection (b)(1) years. such enactment date, December 31, 2009)’’. and inserting ‘‘$50,000’’. ‘‘(4) ALLOCATION TO PAYROLL PERIODS.— (c) CONFORMING AMENDMENTS.— (b) EXTENSION OF CREDIT.—Paragraph (2) of Each New York Liberty Zone governmental (1) Section 38(c)(3)(B) is amended by strik- section 30C(g) is amended by striking ‘‘De- unit which has been allocated a portion of ing ‘‘section 1400L(a)’’ and inserting ‘‘section cember 31, 2009’’ and inserting ‘‘December 31, the qualifying project expenditure amount 1400K(a)’’. 2010’’. under paragraph (3) for a calendar year may (2) Section 168(k)(2)(D)(ii) is amended by (c) EFFECTIVE DATE.—The amendments allocate such portion to payroll periods be- striking ‘‘section 1400L(c)(2)’’ and inserting made by this section shall apply to property ginning in such calendar year as such gov- ‘‘section 1400K(c)(2)’’. placed in service after the date of the enact- ernmental unit determines appropriate. (3) The table of sections for part I of sub- ment of this Act, in taxable years ending ‘‘(c) CARRYOVER OF UNUSED ALLOCATIONS.— chapter Y of chapter 1 is amended by redesig- after such date.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6041 Subtitle C—Energy Conservation and ‘‘(iv) any qualified facility (as determined (2) Subparagraph (C) of section 54A(d)(2), as Efficiency Provisions under section 45(d) without regard to para- amended by section 3106, is amended to read SEC. 3141. QUALIFIED ENERGY CONSERVATION graphs (8) and (10) thereof and without re- as follows: BONDS. gard to any placed in service date). ‘‘(C) QUALIFIED PURPOSE.—For purposes of (a) IN GENERAL.—Subpart I of part IV of ‘‘(B) Expenditures with respect to research this paragraph, the term ‘qualified purpose’ subchapter A of chapter 1, as amended by facilities, and research grants, to support re- means— section 3106, is amended by adding at the end search in— ‘‘(i) in the case of a qualified forestry con- the following new section: ‘‘(i) development of cellulosic ethanol or servation bond, a purpose specified in section ‘‘SEC. 54D. QUALIFIED ENERGY CONSERVATION other nonfossil fuels, 54B(e), BONDS. ‘‘(ii) technologies for the capture and se- ‘‘(ii) in the case of a new clean renewable ‘‘(a) QUALIFIED ENERGY CONSERVATION questration of carbon dioxide produced energy bond, a purpose specified in section BOND.—For purposes of this subchapter, the through the use of fossil fuels, 54C(a)(1), and term ‘qualified energy conservation bond’ ‘‘(iii) increasing the efficiency of existing ‘‘(iii) in the case of a qualified energy con- means any bond issued as part of an issue technologies for producing nonfossil fuels, servation bond, a purpose specified in section if— ‘‘(iv) automobile battery technologies and 54D(a)(1).’’. ‘‘(1) 100 percent of the available project other technologies to reduce fossil fuel con- (3) The table of sections for subpart I of proceeds of such issue are to be used for one sumption in transportation, or part IV of subchapter A of chapter 1 is or more qualified conservation purposes, ‘‘(v) technologies to reduce energy use in amended by adding at the end the following ‘‘(2) the bond is issued by a State or local buildings. new item: government, and ‘‘(C) Mass commuting facilities and related ‘‘Sec. 54D. Qualified energy conservation ‘‘(3) the issuer designates such bond for facilities that reduce the consumption of en- bonds.’’. purposes of this section. ergy, including expenditures to reduce pollu- (c) EFFECTIVE DATE.—The amendments ‘‘(b) REDUCED CREDIT AMOUNT.—The annual tion from vehicles used for mass commuting. made by this section shall apply to obliga- credit determined under section 54A(b) with ‘‘(D) Demonstration projects designed to tions issued after the date of the enactment respect to any qualified energy conservation promote the commercialization of— of this Act. bond shall be 70 percent of the amount so de- ‘‘(i) green building technology, SEC. 3142. CREDIT FOR NONBUSINESS ENERGY termined without regard to this subsection. ‘‘(ii) conversion of agricultural waste for PROPERTY. ‘‘(c) LIMITATION ON AMOUNT OF BONDS DES- use in the production of fuel or otherwise, (a) EXTENSION OF CREDIT.—Section 25C(g) is IGNATED.—The maximum aggregate face ‘‘(iii) advanced battery manufacturing amended by striking ‘‘December 31, 2007’’ and amount of bonds which may be designated technologies, inserting ‘‘December 31, 2008’’. under subsection (a) by any issuer shall not ‘‘(iv) technologies to reduce peak use of (b) QUALIFIED BIOMASS FUEL PROPERTY.— exceed the limitation amount allocated to electricity, or (1) IN GENERAL.—Section 25C(d)(3) is such issuer under subsection (e). ‘‘(v) technologies for the capture and se- amended— ‘‘(d) NATIONAL LIMITATION ON AMOUNT OF questration of carbon dioxide emitted from (A) by striking ‘‘and’’ at the end of sub- BONDS DESIGNATED.—There is a national combusting fossil fuels in order to produce paragraph (D), qualified energy conservation bond limita- electricity. (B) by striking the period at the end of tion of $3,000,000,000. ‘‘(E) Public education campaigns to pro- subparagraph (E) and inserting ‘‘, and’’, and ‘‘(e) ALLOCATIONS.— mote energy efficiency. (C) by adding at the end the following new ‘‘(1) IN GENERAL.—The limitation applica- ‘‘(2) SPECIAL RULES FOR PRIVATE ACTIVITY subparagraph: ble under subsection (d) shall be allocated by BONDS.—For purposes of this section, in the ‘‘(F) a stove which uses the burning of bio- the Secretary among the States in propor- case of any private activity bond, the term mass fuel to heat a dwelling unit located in tion to the population of the States. ‘qualified conservation purposes’ shall not the United States and used as a residence by ‘‘(2) ALLOCATIONS TO LARGEST LOCAL GOV- include any expenditure which is not a cap- the taxpayer, or to heat water for use in such ERNMENTS.— ital expenditure. a dwelling unit, and which has a thermal ef- ‘‘(A) IN GENERAL.—In the case of any State ‘‘(g) POPULATION.— ficiency rating of at least 75 percent.’’. in which there is a large local government, ‘‘(1) IN GENERAL.—The population of any (2) BIOMASS FUEL.—Section 25C(d) is each such local government shall be allo- State or local government shall be deter- amended by adding at the end the following cated a portion of such State’s allocation mined for purposes of this section as pro- new paragraph: which bears the same ratio to the State’s al- vided in section 146(j) for the calendar year ‘‘(6) BIOMASS FUEL.—The term ‘biomass location (determined without regard to this which includes the date of the enactment of fuel’ means any plant-derived fuel available subparagraph) as the population of such this section. on a renewable or recurring basis, including large local government bears to the popu- ‘‘(2) SPECIAL RULE FOR COUNTIES.—In deter- agricultural crops and trees, wood and wood lation of such State. mining the population of any county for pur- waste and residues (including wood pellets), ‘‘(B) ALLOCATION OF UNUSED LIMITATION TO poses of this section, any population of such plants (including aquatic plants), grasses, STATE.—The amount allocated under this county which is taken into account in deter- residues, and fibers.’’. subsection to a large local government may mining the population of any municipality (c) COORDINATION WITH CREDIT FOR QUALI- be reallocated by such local government to which is a large local government shall not FIED GEOTHERMAL HEAT PUMP PROPERTY EX- the State in which such local government is be taken into account in determining the PENDITURES.— located. population of such county. (1) IN GENERAL.—Paragraph (3) of section ‘‘(C) LARGE LOCAL GOVERNMENT.—For pur- ‘‘(h) APPLICATION TO INDIAN TRIBAL GOV- 25C(d), as amended by subsection (b), is poses of this section, the term ‘large local ERNMENTS.—An Indian tribal government amended by striking subparagraph (C) and government’ means any municipality or shall be treated for purposes of this section by redesignating subparagraphs (D), (E), and county if such municipality or county has a in the same manner as a large local govern- (F) as subparagraphs (C), (D), and (E), respec- population of 100,000 or more. ment, except that— tively. ‘‘(3) ALLOCATION TO ISSUERS; RESTRICTION ‘‘(1) an Indian tribal government shall be (2) CONFORMING AMENDMENT.—Subpara- ON PRIVATE ACTIVITY BONDS.—Any allocation treated for purposes of subsection (e) as lo- graph (C) of section 25C(d)(2) is amended to under this subsection to a State or large cated within a State to the extent of so read as follows: local government shall be allocated by such much of the population of such government ‘‘(C) REQUIREMENTS AND STANDARDS FOR AIR State or large local government to issuers as resides within such State, and CONDITIONERS AND HEAT PUMPS.—The stand- within the State in a manner that results in ‘‘(2) any bond issued by an Indian tribal ards and requirements prescribed by the Sec- not less than 70 percent of the allocation to government shall be treated as a qualified retary under subparagraph (B) with respect such State or large local government being energy conservation bond only if issued as to the energy efficiency ratio (EER) for cen- used to designate bonds which are not pri- part of an issue the available project pro- tral air conditioners and electric heat vate activity bonds. ceeds of which are used for purposes for pumps— ‘‘(f) QUALIFIED CONSERVATION PURPOSE.— which such Indian tribal government could ‘‘(i) shall require measurements to be For purposes of this section— issue bonds to which section 103(a) applies.’’. based on published data which is tested by ‘‘(1) IN GENERAL.—The term ‘qualified con- (b) CONFORMING AMENDMENTS.— manufacturers at 95 degrees Fahrenheit, and servation purpose’ means any of the fol- (1) Paragraph (1) of section 54A(d), as ‘‘(ii) may be based on the certified data of lowing: amended by section 3106, is amended to read the Air Conditioning and Refrigeration Insti- ‘‘(A) Capital expenditures incurred for pur- as follows: tute that are prepared in partnership with poses of— ‘‘(1) QUALIFIED TAX CREDIT BOND.—The term the Consortium for Energy Efficiency.’’. ‘‘(i) reducing energy consumption in pub- ‘qualified tax credit bond’ means— (d) MODIFICATION OF QUALIFIED ENERGY EF- licly-owned buildings by at least 20 percent, ‘‘(A) a qualified forestry conservation FICIENCY IMPROVEMENTS.— ‘‘(ii) implementing green community pro- bond, (1) IN GENERAL.—Paragraph (1) of section grams, ‘‘(B) a new clean renewable energy bond, or 25C(c) is amended by inserting ‘‘, or an as- ‘‘(iii) rural development involving the pro- ‘‘(C) a qualified energy conservation bond, phalt roof with appropriate cooling gran- duction of electricity from renewable energy which is part of an issue that meets require- ules,’’ before ‘‘which meet the Energy Star resources, or ments of paragraphs (2), (3), (4), (5), and (6).’’. program requirements’’.

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(2) BUILDING ENVELOPE COMPONENT.—Sub- energy than the 2001 energy conservation energy factor established by the Department paragraph (D) of section 25C(c)(2) is amend- standards.’’. of Energy for compliance with the Federal ed— (b) ELIGIBLE PRODUCTION.— energy conservation standard.’’. (A) by inserting ‘‘or asphalt roof’’ after (1) SIMILAR TREATMENT FOR ALL APPLI- (5) GALLONS PER CYCLE; WATER CONSUMP- ‘‘metal roof’’, and ANCES.—Subsection (c) of section 45M is TION FACTOR.—Section 45M(f), as amended by (B) by inserting ‘‘or cooling granules’’ amended— paragraph (3), is amended by adding at the after ‘‘pigmented coatings’’. (A) by striking paragraph (2), end the following: (e) EFFECTIVE DATES.— (B) by striking ‘‘(1) IN GENERAL’’ and all ‘‘(9) GALLONS PER CYCLE.—The term ‘gal- (1) IN GENERAL.—Except as provided in that follows through ‘‘the eligible’’ and in- lons per cycle’ means, with respect to a dish- paragraph (2), the amendments made this serting ‘‘The eligible’’, washer, the amount of water, expressed in section shall apply to expenditures made (C) by moving the text of such subsection gallons, required to complete a normal cycle after December 31, 2007. in line with the subsection heading, and of a dishwasher. (2) MODIFICATION OF QUALIFIED ENERGY EF- (D) by redesignating subparagraphs (A) and ‘‘(10) WATER CONSUMPTION FACTOR.—The FICIENCY IMPROVEMENTS.—The amendments (B) as paragraphs (1) and (2), respectively, term ‘water consumption factor’ means, with made by subsection (d) shall apply to prop- and by moving such paragraphs 2 ems to the respect to a clothes washer, the quotient of erty placed in service after the date of the left. the total weighted per-cycle water consump- enactment of this Act. (2) MODIFICATION OF BASE PERIOD.—Para- tion divided by the cubic foot (or liter) ca- SEC. 3143. ENERGY EFFICIENT COMMERCIAL graph (2) of section 45M(c), as amended by pacity of the clothes washer.’’. BUILDINGS DEDUCTION. paragraph (1), is amended by striking ‘‘3-cal- (f) EFFECTIVE DATE.—The amendments Subsection (h) of section 179D is amended endar year’’ and inserting ‘‘2-calendar year’’. made by this section shall apply to appli- by striking ‘‘December 31, 2008’’ and insert- (c) TYPES OF ENERGY EFFICIENT APPLI- ances produced after December 31, 2007. ing ‘‘December 31, 2013’’. ANCES.—Subsection (d) of section 45M (defin- SEC. 3144. MODIFICATIONS OF ENERGY EFFI- ing types of energy efficient appliances) is SEC. 3145. ACCELERATED RECOVERY PERIOD CIENT APPLIANCE CREDIT FOR AP- amended to read as follows: FOR DEPRECIATION OF SMART ME- TERS AND SMART GRID SYSTEMS. PLIANCES PRODUCED AFTER 2007. ‘‘(d) TYPES OF ENERGY EFFICIENT APPLI- (a) IN GENERAL.—Subsection (b) of section ANCE.—For purposes of this section, the (a) IN GENERAL.—Section 168(e)(3)(D) is 45M is amended to read as follows: types of energy efficient appliances are— amended by striking ‘‘and’’ at the end of ‘‘(b) APPLICABLE AMOUNT.—For purposes of ‘‘(1) dishwashers described in subsection clause (i), by striking the period at the end subsection (a)— (b)(1), of clause (ii) and inserting a comma, and by ‘‘(1) DISHWASHERS.—The applicable amount ‘‘(2) clothes washers described in sub- inserting after clause (ii) the following new is— section (b)(2), and clauses: ‘‘(A) $45 in the case of a dishwasher which ‘‘(3) refrigerators described in subsection ‘‘(iii) any qualified smart electric meter, is manufactured in calendar year 2008 or 2009 (b)(3).’’. and and which uses no more than 324 kilowatt (d) AGGREGATE CREDIT AMOUNT ALLOWED.— ‘‘(iv) any qualified smart electric grid sys- hours per year and 5.8 gallons per cycle, and (1) INCREASE IN LIMIT.—Paragraph (1) of tem.’’. ‘‘(B) $75 in the case of a dishwasher which section 45M(e) is amended to read as follows: (b) DEFINITIONS.—Section 168(i) is amended is manufactured in calendar year 2008, 2009, ‘‘(1) AGGREGATE CREDIT AMOUNT ALLOWED.— by inserting at the end the following new or 2010 and which uses no more than 307 kilo- The aggregate amount of credit allowed paragraph: watt hours per year and 5.0 gallons per cycle under subsection (a) with respect to a tax- ‘‘(18) QUALIFIED SMART ELECTRIC METERS.— (5.5 gallons per cycle for dishwashers de- payer for any taxable year shall not exceed ‘‘(A) IN GENERAL.—The term ‘qualified signed for greater than 12 place settings). $75,000,000 reduced by the amount of the smart electric meter’ means any smart elec- ‘‘(2) CLOTHES WASHERS.—The applicable credit allowed under subsection (a) to the tric meter which is placed in service by a amount is— taxpayer (or any predecessor) for all prior taxpayer who is a supplier of electric energy ‘‘(A) $75 in the case of a residential top- taxable years beginning after December 31, or a provider of electric energy services. loading clothes washer manufactured in cal- 2007.’’. ‘‘(B) SMART ELECTRIC METER.—For purposes endar year 2008 which meets or exceeds a 1.72 (2) EXCEPTION FOR CERTAIN REFRIGERATOR of subparagraph (A), the term ‘smart electric modified energy factor and does not exceed a AND CLOTHES WASHERS.—Paragraph (2) of sec- meter’ means any time-based meter and re- 8.0 water consumption factor, tion 45M(e) is amended to read as follows: lated communication equipment which is ca- ‘‘(B) $125 in the case of a residential top- ‘‘(2) AMOUNT ALLOWED FOR CERTAIN REFRIG- pable of being used by the taxpayer as part loading clothes washer manufactured in cal- ERATORS AND CLOTHES WASHERS.—Refrig- of a system that— endar year 2008 or 2009 which meets or ex- erators described in subsection (b)(3)(D) and ‘‘(i) measures and records electricity usage ceeds a 1.8 modified energy factor and does clothes washers described in subsection data on a time-differentiated basis in at not exceed a 7.5 water consumption factor, (b)(2)(D) shall not be taken into account least 24 separate time segments per day, ‘‘(C) $150 in the case of a residential or under paragraph (1).’’. ‘‘(ii) provides for the exchange of informa- commercial clothes washer manufactured in (e) QUALIFIED ENERGY EFFICIENT APPLI- tion between supplier or provider and the calendar year 2008, 2009, or 2010 which meets ANCES.— customer’s electric meter in support of time- or exceeds 2.0 modified energy factor and (1) IN GENERAL.—Paragraph (1) of section based rates or other forms of demand re- does not exceed a 6.0 water consumption fac- 45M(f) (defining qualified energy efficient ap- sponse, tor, and pliance) is amended to read as follows: ‘‘(iii) provides data to such supplier or pro- ‘‘(D) $250 in the case of a residential or ‘‘(1) QUALIFIED ENERGY EFFICIENT APPLI- vider so that the supplier or provider can commercial clothes washer manufactured in ANCE.—The term ‘qualified energy efficient provide energy usage information to cus- calendar year 2008, 2009, or 2010 which meets appliance’ means— tomers electronically, and or exceeds 2.2 modified energy factor and ‘‘(A) any dishwasher described in sub- ‘‘(iv) provides net metering. does not exceed a 4.5 water consumption fac- section (b)(1), ‘‘(19) QUALIFIED SMART ELECTRIC GRID SYS- tor. ‘‘(B) any clothes washer described in sub- TEMS.— ‘‘(3) REFRIGERATORS.—The applicable section (b)(2), and ‘‘(A) IN GENERAL.—The term ‘qualified amount is— ‘‘(C) any refrigerator described in sub- smart electric grid system’ means any smart ‘‘(A) $50 in the case of a refrigerator which section (b)(3).’’. grid property used as part of a system for is manufactured in calendar year 2008, and (2) CLOTHES WASHER.—Section 45M(f)(3) is electric distribution grid communications, consumes at least 20 percent but not more amended by inserting ‘‘commercial’’ before monitoring, and management placed in serv- than 22.9 percent less kilowatt hours per ‘‘residential’’ the second place it appears. ice by a taxpayer who is a supplier of electric year than the 2001 energy conservation (3) TOP-LOADING CLOTHES WASHER.—Sub- energy or a provider of electric energy serv- standards, section (f) of section 45M is amended by re- ices. ‘‘(B) $75 in the case of a refrigerator which designating paragraphs (4), (5), (6), and (7) as ‘‘(B) SMART GRID PROPERTY.—For the pur- is manufactured in calendar year 2008 or 2009, paragraphs (5), (6), (7), and (8), respectively, poses of subparagraph (A), the term ‘smart and consumes at least 23 percent but no and by inserting after paragraph (3) the fol- grid property’ means electronics and related more than 24.9 percent less kilowatt hours lowing new paragraph: equipment that is capable of— per year than the 2001 energy conservation ‘‘(4) TOP-LOADING CLOTHES WASHER.—The ‘‘(i) sensing, collecting, and monitoring standards, term ‘top-loading clothes washer’ means a data of or from all portions of a utility’s ‘‘(C) $100 in the case of a refrigerator which clothes washer which has the clothes con- electric distribution grid, is manufactured in calendar year 2008, 2009, tainer compartment access located on the ‘‘(ii) providing real-time, two-way commu- or 2010, and consumes at least 25 percent but top of the machine and which operates on a nications to monitor or manage such grid, not more than 29.9 percent less kilowatt vertical axis.’’. and hours per year than the 2001 energy con- (4) REPLACEMENT OF ENERGY FACTOR.—Sec- ‘‘(iii) providing real time analysis of and servation standards, and tion 45M(f)(6), as redesignated by paragraph event prediction based upon collected data ‘‘(D) $200 in the case of a refrigerator man- (3), is amended to read as follows: that can be used to improve electric distribu- ufactured in calendar year 2008, 2009, or 2010 ‘‘(6) MODIFIED ENERGY FACTOR.—The term tion system reliability, quality, and per- and which consumes at least 30 percent less ‘modified energy factor’ means the modified formance.’’.

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(c) CONTINUED APPLICATION OF 150 PERCENT had the deferred compensation been includ- ‘‘(5) APPLICATION OF RULES.—Rules similar DECLINING BALANCE METHOD.—Paragraph (2) ible in gross income for the taxable year in to the rules of paragraphs (5) and (6) of sec- of section 168(b) is amended by striking ‘‘or’’ which first deferred or, if later, the first tax- tion 409A(d) shall apply. at the end of subparagraph (B), by redesig- able year in which such deferred compensa- ‘‘(e) REGULATIONS.—The Secretary shall nating subparagraph (C) as subparagraph (D), tion is not subject to a substantial risk of prescribe such regulations as may be nec- and by inserting after subparagraph (B) the forfeiture. essary or appropriate to carry out the pur- following new subparagraph: poses of this section, including regulations ‘‘(d) OTHER DEFINITIONS AND SPECIAL ‘‘(C) any property (other than property de- disregarding a substantial risk of forfeiture RULES.—For purposes of this section— scribed in paragraph (3)) which is a qualified in cases where necessary to carry out the smart electric meter or qualified smart elec- ‘‘(1) SUBSTANTIAL RISK OF FORFEITURE.— purposes of this section.’’. ‘‘(A) IN GENERAL.—The rights of a person to tric grid system, or’’. (b) CONFORMING AMENDMENT.—Section compensation shall be treated as subject to a (d) EFFECTIVE DATE.—The amendments 26(b)(2), as amended by section 3011, is made by this section shall apply to property substantial risk of forfeiture only if such amended by striking ‘‘and’’ at the end of sub- placed in service after the date of the enact- person’s rights to such compensation are paragraph (V), by striking the period at the ment of this Act. conditioned upon the future performance of end of subparagraph (W) and inserting ‘‘, substantial services by any individual. SEC. 3146. QUALIFIED GREEN BUILDING AND and’’, and by adding at the end the following SUSTAINABLE DESIGN PROJECTS. ‘‘(B) EXCEPTION FOR COMPENSATION BASED new subparagraph: ON GAIN RECOGNIZED ON AN INVESTMENT (a) IN GENERAL.—Paragraph (8) of section ‘‘(X) section 457A(c)(1)(B) (relating to de- 142(l) is amended by striking ‘‘September 30, ASSET.— terminability of amounts of compensa- 2009’’ and inserting ‘‘September 30, 2012’’. ‘‘(i) IN GENERAL.—To the extent provided in tion).’’. (b) TREATMENT OF CURRENT REFUNDING regulations prescribed by the Secretary, if (c) CLERICAL AMENDMENT.—The table of BONDS.—Paragraph (9) of section 142(l) is compensation is determined solely by ref- sections of subpart B of part II of subchapter amended by striking ‘‘October 1, 2009’’ and erence to the amount of gain recognized on E of chapter 1 is amended by inserting after inserting ‘‘October 1, 2012’’. the disposition of an investment asset, such the item relating to section 457 the following (c) ACCOUNTABILITY.—The second sentence compensation shall be treated as subject to a new item: substantial risk of forfeiture until the date of section 701(d) of the American Jobs Cre- ‘‘Sec. 457A. Nonqualified deferred compensa- of such disposition. ation Act of 2004 is amended by striking tion from certain tax indif- ‘‘(ii) INVESTMENT ASSET.—For purposes of ‘‘issuance,’’ and inserting ‘‘issuance of the ferent parties.’’. clause (i), the term ‘investment asset’ means last issue with respect to such project,’’. (d) EFFECTIVE DATE.— any single asset (other than an investment Subtitle D—Revenue Provisions (1) IN GENERAL.—Except as otherwise pro- fund or similar entity)— vided in this subsection, the amendments SEC. 3151. NONQUALIFIED DEFERRED COM- ‘‘(I) acquired directly by an investment PENSATION FROM CERTAIN TAX IN- made by this section shall apply to amounts DIFFERENT PARTIES. fund or similar entity, deferred which are attributable to services ‘‘(II) with respect to which such entity (a) IN GENERAL.—Subpart B of part II of performed after December 31, 2008. does not (nor does any person related to such subchapter E of chapter 1 is amended by in- (2) APPLICATION TO EXISTING DEFERRALS.— serting after section 457 the following new entity) participate in the active manage- In the case of any amount deferred to which section: ment of such asset (or if such asset is an in- the amendments made by this section do not terest in an entity, in the active manage- ‘‘SEC. 457A. NONQUALIFIED DEFERRED COM- apply solely by reason of the fact that the PENSATION FROM CERTAIN TAX IN- ment of the activities of such entity), and amount is attributable to services performed DIFFERENT PARTIES. ‘‘(III) substantially all of any gain on the before January 1, 2009, to the extent such ‘‘(a) IN GENERAL.—Any compensation disposition of which (other than such de- amount is not includible in gross income in which is deferred under a nonqualified de- ferred compensation) is allocated to inves- a taxable year beginning before 2018, such ferred compensation plan of a nonqualified tors in such entity. amounts shall be includible in gross income entity shall be includible in gross income ‘‘(iii) COORDINATION WITH SPECIAL RULE.— in the later of— when there is no substantial risk of for- Paragraph (3)(B) shall not apply to any com- (A) the last taxable year beginning before feiture of the rights to such compensation. pensation to which clause (i) applies. 2018, or ‘‘(b) NONQUALIFIED ENTITY.—For purposes ‘‘(2) COMPREHENSIVE FOREIGN INCOME TAX.— (B) the taxable year in which there is no of this section, the term ‘nonqualified enti- The term ‘comprehensive foreign income substantial risk of forfeiture of the rights to ty’ means— tax’ means, with respect to any foreign per- such compensation (determined in the same ‘‘(1) any foreign corporation unless sub- son, the income tax of a foreign country if— manner as determined for purposes of section stantially all of its income is— ‘‘(A) such person is eligible for the benefits 457A of the Internal Revenue Code of 1986, as ‘‘(A) effectively connected with the con- of a comprehensive income tax treaty be- added by this section). duct of a trade or business in the United tween such foreign country and the United (3) CHARITABLE CONTRIBUTIONS OF EXISTING States, or States, or DEFERRALS PERMITTED.— ‘‘(B) subject to a comprehensive foreign in- ‘‘(B) such person demonstrates to the satis- (A) IN GENERAL.—Subsection (b) of section come tax, and faction of the Secretary that such foreign 170 of the Internal Revenue Code of 1986 shall ‘‘(2) any partnership unless substantially country has a comprehensive income tax. not apply to (and subsections (b) and (d) of all of its income is allocated to persons other ‘‘(3) NONQUALIFIED DEFERRED COMPENSATION such section shall be applied without regard than— PLAN.— to) so much of the taxpayer’s qualified con- ‘‘(A) foreign persons with respect to whom ‘‘(A) IN GENERAL.—The term ‘nonqualified tributions made during the taxpayer’s last such income is not subject to a comprehen- deferred compensation plan’ has the meaning taxable year beginning before 2018 as does sive foreign income tax, and given such term under section 409A(d), ex- not exceed the taxpayer’s qualified inclusion ‘‘(B) organizations which are exempt from cept that such term shall include any plan amount. For purposes of subsection (b) of tax under this title. that provides a right to compensation based section 170 of such Code, the taxpayer’s con- ‘‘(c) DETERMINABILITY OF AMOUNTS OF COM- on the appreciation in value of a specified tribution base for such last taxable year PENSATION.— number of equity units of the service recipi- shall be reduced by the amount of the tax- ‘‘(1) IN GENERAL.—If the amount of any ent. payer’s qualified contributions to which such compensation is not determinable at the ‘‘(B) EXCEPTION.—Compensation shall not subsection does not apply by reason the pre- time that such compensation is otherwise in- be treated as deferred for purposes of this ceding sentence. cludible in gross income under subsection section if the service provider receives pay- (B) QUALIFIED CONTRIBUTIONS.—For pur- (a)— ment of such compensation not later than 12 poses of this paragraph, the term ‘‘qualified ‘‘(A) such amount shall be so includible in months after the end of the taxable year of contributions’’ means the aggregate chari- gross income when determinable, and the service recipient during which the right table contributions (as defined in section ‘‘(B) the tax imposed under this chapter for to the payment of such compensation is no 170(c) of such Code) paid in cash by the tax- the taxable year in which such compensation longer subject to a substantial risk of for- payer to organizations described in section is includible in gross income shall be in- feiture. 170(b)(1)(A) of such Code (other than any or- creased by the sum of— ‘‘(4) EXCEPTION FOR CERTAIN COMPENSATION ganization described in section 509(a)(3) of ‘‘(i) the amount of interest determined WITH RESPECT TO EFFECTIVELY CONNECTED IN- such Code or any fund or account described under paragraph (2), and COME.—In the case a foreign corporation with in section 4966(d)(2) of such Code). ‘‘(ii) an amount equal to 20 percent of the income which is taxable under section 882, (C) QUALIFIED INCLUSION AMOUNT.—For pur- amount of such compensation. this section shall not apply to compensation poses of this paragraph, the term ‘‘qualified ‘‘(2) INTEREST.—For purposes of paragraph which, had such compensation had been paid inclusion amount’’ means the amount in- (1)(B)(i), the interest determined under this in cash on the date that such compensation cludible in the taxpayer’s gross income for paragraph for any taxable year is the ceased to be subject to a substantial risk of the last taxable year beginning before 2018 amount of interest at the underpayment rate forfeiture, would have been deductible by by reason of paragraph (2). under section 6621 plus 1 percentage point on such foreign corporation against such in- (4) ACCELERATED PAYMENTS.—No later than the underpayments that would have occurred come. 120 days after the date of the enactment of

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00071 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6044 CONGRESSIONAL RECORD — SENATE June 24, 2008 this Act, the Secretary shall issue guidance On page 82, strike line 4 and all that fol- timely manner, provided that the Director providing a limited period of time during lows through page 401, line 4, and insert the may modify the data released to the public which a nonqualified deferred compensation following: to ensure that the data— arrangement attributable to services per- ‘‘(iii) each enterprise received credit to- ‘‘(A) is not released in an identifiable form; formed on or before December 31, 2008, may, wards achieving each of its goals resulting and without violating the requirements of sec- from a transaction or activity pursuant to ‘‘(B) is not otherwise obtainable from other tion 409A(a) of the Internal Revenue Code of section 1331(b)(2); and publicly available data sets. 1986, be amended to conform the date of dis- ‘‘(iv) each enterprise is achieving the pur- ‘‘(4) DEFINITION.—For purposes of this sub- tribution to the date the amounts are re- poses of the enterprise established by law; section, the term ‘identifiable form’ means quired to be included in income. and any representation of information that per- (5) CERTAIN BACK-TO-BACK ARRANGEMENTS.— ‘‘(B) the actions that each enterprise could mits the identity of a borrower to which the If the taxpayer is also a service recipient and undertake to promote and expand the pur- information relates to be reasonably inferred maintains one or more nonqualified deferred poses of the enterprise; by either direct or indirect means.’’. compensation arrangements for its service ‘‘(2) aggregate and analyze relevant data SEC. 1126. PUBLIC USE DATABASE. providers under which any amount is attrib- on income to assess the compliance of each Section 1323 of the Federal Housing Enter- utable to services performed on or before De- enterprise with the housing goals established prises Financial Safety and Soundness Act of cember 31, 2008, the guidance issued under under subpart B; 1992 (42 U.S.C. 4543) is amended— paragraph (4) shall permit such arrange- ‘‘(3) aggregate and analyze data on income, (1) in subsection (a)— race, and gender by census tract and other ments to be amended to conform the dates of (A) by striking ‘‘(a) IN GENERAL.—The Sec- distribution under such arrangement to the relevant classifications, and compare such retary’’ and inserting the following: date amounts are required to be included in data with larger demographic, housing, and ‘‘(a) AVAILABILITY.— the income of such taxpayer under this sub- economic trends; ‘‘(1) IN GENERAL.—The Director’’; and section. ‘‘(4) identify the extent to which each en- (B) by adding at the end the following new (6) ACCELERATED PAYMENT NOT TREATED AS terprise is involved in mortgage purchases paragraph: and secondary market activities involving MATERIAL MODIFICATION.—Any amendment to ‘‘(2) CENSUS TRACT LEVEL REPORTING.—Such a nonqualified deferred compensation ar- subprime and nontraditional loans; data shall include the data elements required rangement made pursuant to paragraph (4) ‘‘(5) compare the characteristics of to be reported under the Home Mortgage Dis- or (5) shall not be treated as a material subprime and nontraditional loans both pur- closure Act of 1975, at the census tract modification of the arrangement for pur- chased and securitized by each enterprise to level.’’; other loans purchased and securitized by poses of section 409A of the Internal Revenue (2) in subsection (b)(2), by inserting before each enterprise; and Code of 1986. the period at the end the following: ‘‘or with ‘‘(6) compare the characteristics of high- subsection (a)(2)’’; and cost loans purchased and securitized, where (3) by adding at the end the following new SA 5046. Mr. CORNYN (for himself, such securities are not held on portfolio to subsection: Mrs. BOXER, Mr. ROBERTS, Mr. PRYOR, loans purchased and securitized, where such ‘‘(d) TIMING.—Data submitted under this Mr. ISAKSON, and Mr. SALAZAR) sub- securities are either retained on portfolio or section by an enterprise in connection with a mitted an amendment intended to be repurchased by the enterprise, including provision referred to in subsection (a) shall such characteristics as— proposed by him to the bill H.R. 3221, be made publicly available in accordance ‘‘(A) the purchase price of the property moving the United States toward with this section not later than September that secures the mortgage; greater energy independence and secu- 30 of the year following the year to which ‘‘(B) the loan-to-value ratio of the mort- the data relates.’’. rity, developing innovative new tech- gage, which shall reflect any secondary liens nologies, reducing carbon emissions, on the relevant property; SEC. 1127. REPORTING OF MORTGAGE DATA. creating green jobs, protecting con- ‘‘(C) the terms of the mortgage; Section 1326 of the Federal Housing Enter- sumers, increasing clean renewable en- ‘‘(D) the creditworthiness of the borrower; prises Financial Safety and Soundness Act of ergy production, and modernizing our and 1992 (12 U.S.C. 4546) is amended— energy infrastructure, and to amend ‘‘(E) any other relevant data, as deter- (1) in subsection (a), by striking ‘‘The Di- rector’’ and inserting ‘‘Subject to subsection the Internal Revenue Code of 1986 to mined by the Director. ‘‘(c) DATA COLLECTION AND REPORTING.— (d), the Director’’; and provide tax incentives for the produc- ‘‘(1) IN GENERAL.—To assist the Director in (2) by adding at the end the following: tion of renewable energy and energy analyzing the matters described in sub- ‘‘(d) MORTGAGE INFORMATION.—Subject to conservation; which was ordered to lie section (b), the Director shall conduct, on a privacy considerations, as described in sec- on the table; as follows: monthly basis, a survey of mortgage mar- tion 304(j) of the Home Mortgage Disclosure Act of 1975 (12 U.S.C. 2803(j)), the Director At the appropriate place, insert the fol- kets in accordance with this subsection. shall, by regulation or order, provide that lowing: ‘‘(2) DATA POINTS.—Each monthly survey conducted by the Director under paragraph certain information relating to single family SEC. ll. REQUIRING MORTGAGE DISCLOSURE. (1) shall collect data on— mortgage data of the enterprises shall be dis- (a) IN GENERAL.—Section 102(a)(4)(A) of the ‘‘(A) the characteristics of individual closed to the public, in order to make avail- Ethics in Government Act of 1978 (5 U.S.C. mortgages that are eligible for purchase by able to the public— App) is amended by inserting after ‘‘spouse’’ the enterprises and the characteristics of in- ‘‘(1) the same data from the enterprises the following: ‘‘, except that this exception dividual mortgages that are not eligible for that is required of insured depository insti- shall not apply to a reporting individual de- purchase by the enterprises including, in tutions under the Home Mortgage Disclosure scribed in section 101(f)(9)’’. both cases, information concerning— Act of 1975; and (b) EFFECTIVE DATE.—The amendment ‘‘(i) the price of the house that secures the ‘‘(2) information collected by the Director made by subsection (a) shall take effect 1 mortgage; under section 1324(b)(6).’’. month after the date of enactment of this ‘‘(ii) the loan-to-value ratio of the mort- SEC. 1128. REVISION OF HOUSING GOALS. Act. gage, which shall reflect any secondary liens (a) REPEAL.—Sections 1331 through 1334 of on the relevant property; the Federal Housing Enterprises Financial SA 5047. Mr. ENSIGN submitted an ‘‘(iii) the terms of the mortgage; Safety and Soundness Act of 1992 (12 U.S.C. amendment intended to be proposed to ‘‘(iv) the creditworthiness of the borrower 4561 through 4564) are hereby repealed. amendment SA 4983 proposed by Mr. or borrowers; and (b) HOUSING GOAL.—The Federal Housing REID (for Mr. DODD (for himself and Mr. ‘‘(v) whether the mortgage, in the case of a Enterprises Financial Safety and Soundness Act of 1992 is amended by inserting before SHELBY)) to the bill H.R. 3221, moving conforming mortgage, was purchased by an section 1335 the following: the United States toward greater en- enterprise; ‘‘(B) the characteristics of individual ‘‘SEC. 1331. ESTABLISHMENT OF HOUSING GOALS. ergy independence and security, devel- subprime and nontraditional mortgages that ‘‘(a) IN GENERAL.—The Director shall, by oping innovative new technologies, re- are eligible for purchase by the enterprises regulation, establish effective for the first ducing carbon emissions, creating and the characteristics of borrowers under calendar year that begins after the date of green jobs, protecting consumers, in- such mortgages, including the creditworthi- enactment of the Federal Housing Finance creasing clean renewable energy pro- ness of such borrowers and determination Regulatory Reform Act of 2008, and each duction, and modernizing our energy whether such borrowers would qualify for year thereafter, annual housing goals, as de- infrastructure, and to amend the Inter- prime lending; and scribed under this subpart, with respect to nal Revenue Code of 1986 to provide tax ‘‘(C) such other matters as the Director de- the mortgage purchases by the enterprises. termines to be appropriate. ‘‘(b) SPECIAL COUNTING REQUIREMENTS.— incentives for the production of renew- ‘‘(3) PUBLIC AVAILABILITY.—The Director ‘‘(1) IN GENERAL.—The Director shall deter- able energy and energy conservation; shall make any data collected by the Direc- mine whether an enterprise shall receive which was ordered to lie on the table; tor in connection with the conduct of a full, partial, or no credit for a transaction as follows: monthly survey available to the public in a toward achievement of any of the housing

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goals established pursuant to this section or ‘‘(c) DETERMINATION.— ‘‘(1) NOTICE.—Within 30 days of making a sections 1332 through 1334. ‘‘(1) 30-DAY PERIOD.—If an enterprise sub- determination under subsection (b) regard- ‘‘(2) CONSIDERATIONS.—In making any de- mits a petition for reduction to the Director ing compliance of an enterprise for a year termination under paragraph (1), the Direc- under subsection (a)(2), the Director shall with the housing goals established under this tor shall consider whether a transaction or make a determination regarding any pro- section and before any public disclosure activity of an enterprise is substantially posed reduction within 30 days of receipt of thereof, the Director shall provide notice of equivalent to a mortgage purchase and ei- the petition. the determination to the enterprise, which ther (A) creates a new market, or (B) adds li- ‘‘(2) EXTENSION.—The Director may extend shall include an analysis and comparison, by quidity to an existing market, provided how- the period described in paragraph (1) for a the Director, of the performance of the en- ever that the terms and conditions of such single additional 15-day period, but only if terprise for the year and the targets for the mortgage purchase is neither determined to the Director requests additional information year under subsection (c). be unacceptable, nor contrary to good lend- from the enterprise. ‘‘(2) COMMENT PERIOD.—The Director shall ing practices, and otherwise promotes sus- ‘‘SEC. 1332. SINGLE-FAMILY HOUSING GOALS. provide each enterprise and the public an op- tainable homeownership and further, that ‘‘(a) ESTABLISHMENT OF GOALS.— portunity to comment on the determination such mortgage purchase actually fulfills the ‘‘(1) IN GENERAL.—The Director shall estab- during the 30-day period beginning upon re- purposes of the enterprise and is in accord- lish annual goals for the purchase by each ceipt by the enterprise of the notice. ance with the chartering Act of such enter- enterprise of conventional, conforming, sin- ‘‘(e) USE OF BORROWER INCOME.—In moni- prise. gle-family, owner-occupied, purchase money toring the performance of each enterprise ‘‘(c) ELIMINATING INTEREST RATE DISPARI- mortgages financing housing for each of the pursuant to the housing goals under this sec- TIES.— following: tion and evaluating such performance (for ‘‘(1) IN GENERAL.—In establishing and im- ‘‘(A) Low-income families. purposes of section 1336), the Director shall plementing the housing goals under this sub- ‘‘(B) Families that reside in low-income consider a mortgagor’s income to be the in- part, the Director shall require the enter- areas. come of the mortgagor at the time of origi- prises to disclose appropriate information to ‘‘(C) Very low-income families. nation of the mortgage. allow the Director to assess if there are any ‘‘(2) GOALS AS PERCENTAGE OF TOTAL PUR- ‘‘(f) CONSIDERATION OF PROPERTIES WITH disparities in interest rates charged on mort- CHASE MONEY MORTGAGE PURCHASES.—The RENTAL UNITS.—Mortgages financing 1-to-4 gages to borrowers who are minorities, as goals established under paragraph (1) shall unit owner-occupied properties shall count compared with borrowers of similar credit- be established as a percentage of the total toward the achievement of the single-family worthiness who are not minorities, as evi- number of single-family dwelling units fi- housing goal under this section, if such prop- denced in reports pursuant to the Home nanced by single-family purchase money erties otherwise meet the requirements Mortgage Disclosure Act of 1975. mortgage purchases of the enterprise. under this section notwithstanding the use ‘‘(2) REPORT TO CONGRESS ON DISPARITIES.— ‘‘(b) DETERMINATION OF COMPLIANCE.— of 1 or more units for rental purposes. Upon a finding by the Director that a pat- ‘‘(1) IN GENERAL.—The Director shall deter- ‘‘SEC. 1333. SINGLE-FAMILY HOUSING REFINANCE tern of disparities in interest rates exists mine, for each year that the housing goals GOALS. pursuant to the information provided by an under this section are in effect pursuant to ‘‘(a) PREPAYMENT OF EXISTING LOANS.— enterprise under paragraph (1), the Director section 1331(a), whether each enterprise has ‘‘(1) IN GENERAL.—The Director shall estab- shall— complied with the single-family housing lish annual goals for the purchase by each ‘‘(A) forward to the Committee on Bank- goals established under this section for such enterprise of mortgages on conventional, ing, Housing, and Urban Affairs of the Sen- year. conforming, single-family, owner-occupied ate and the Committee on Financial Services ‘‘(2) COMPLIANCE REQUIREMENTS.—An enter- housing given to pay off or prepay an exist- of the House of Representatives a report de- prise shall be considered to be in compliance ing loan served by the same property for tailing the disparities; and with a goal described under subsection (a) for each of the following: ‘‘(B) forward the report prepared under a year, only if, for each of the types of fami- ‘‘(A) Low-income families. subparagraph (A) to any other appropriate lies described in subsection (a), the percent- ‘‘(B) Families that reside in low-income regulatory or enforcement agency. age of the number of conventional, con- areas. ‘‘(3) IDENTITY OF INDIVIDUALS NOT DIS- forming, single-family, owner-occupied, pur- ‘‘(C) Very low-income families. CLOSED.—In carrying out this subsection, the chase money mortgages purchased by the en- ‘‘(2) GOALS AS PERCENTAGE OF TOTAL REFI- Director shall ensure that no personally terprise in such year that serve such fami- NANCING MORTGAGE PURCHASES.—The goals identifiable financial information that would lies, meets or exceeds the target established described under paragraph (1) shall be estab- enable an individual borrower to be reason- under subsection (c) for the year for such lished as a percentage of the total number of ably identified shall be made public. type of family. single-family dwelling units refinanced by ‘‘(d) TIMING.—The Director shall establish an annual deadline for the establishment of ‘‘(c) ANNUAL TARGETS.— mortgage purchases of each enterprise. housing goals described in subsection (a), ‘‘(1) IN GENERAL.—The Director shall estab- ‘‘(b) DETERMINATION OF COMPLIANCE.— taking into consideration the need for the lish annual targets for each goal described in ‘‘(1) IN GENERAL.—The Director shall deter- enterprises to reasonably and sufficiently subsection (a). mine, for each year that the housing goals plan their operations and activities in ad- ‘‘(2) CONSIDERATIONS.—In establishing an- under this section are in effect pursuant to vance, including operations and activities nual targets under paragraph (1), the Direc- section 1331(a), whether each enterprise has necessary to meet such goals. tor shall consider— complied with the single-family housing refi- ‘‘SEC. 1331A. DISCRETIONARY ADJUSTMENT OF ‘‘(A) national housing needs; nance goals established under this section HOUSING GOALS. ‘‘(B) economic, housing, and demographic for such year. ‘‘(a) AUTHORITY.— conditions; ‘‘(2) COMPLIANCE.—An enterprise shall be ‘‘(1) REVIEW.—The Director shall review ‘‘(C) the performance and effort of the en- considered to be in compliance with the the appropriateness of each goal established terprises toward achieving the housing goals goals of this section for a year, only if, for pursuant to this subpart at least once during under this section in previous years; each of the types of families described in each year to assure that given current mar- ‘‘(D) the ability of the enterprise to lead subsection (a), the percentage of the number ket conditions that each such goal is fea- the industry in making mortgage credit of conventional, conforming, single-family, sible. available; owner-occupied refinancing mortgages pur- ‘‘(2) PETITION TO REDUCE.—An enterprise ‘‘(E) recent information submitted in com- chased by each enterprise in such year that may petition the Director in writing at any pliance with the Home Mortgage Disclosure serve such families, meets or exceeds the time during a year to reduce the level of any Act of 1975 and such other reliable mortgage target for the year for such type of family goal for such year established pursuant to data as may be available; that is established under subsection (c). this subpart. ‘‘(F) the size of the purchase money con- ‘‘(c) ANNUAL TARGETS.— ‘‘(b) STANDARD FOR REDUCTION.—The Direc- ventional mortgage market serving each of ‘‘(1) IN GENERAL.—The Director shall estab- tor may reduce the level for a goal pursuant the types of families described in subsection lish annual targets for each goal described in to such a petition only if— (a), relative to the size of the overall pur- subsection (a). ‘‘(1) market and economic conditions or chase money mortgage market; and ‘‘(2) CONSIDERATIONS.—In establishing an- the financial condition of the enterprise re- ‘‘(G) the need to maintain the sound finan- nual targets under paragraph (1), the Direc- quire such action; or cial condition of the enterprises. tor shall consider— ‘‘(2) efforts to meet the goal would result ‘‘(3) HIGH-COST LOANS AND INAPPROPRIATE ‘‘(A) national housing needs; in the constraint of liquidity, over-invest- LENDING PRACTICES.—In establishing annual ‘‘(B) economic, housing, and demographic ment in certain market segments, or other targets under paragraph (1), the Director conditions; consequences contrary to the intent of this shall not consider segments of the market ‘‘(C) the performance and effort of the en- subpart, section 301(3) of the Federal Na- determined to be unacceptable or contrary terprises toward achieving the housing goals tional Mortgage Association Charter Act (12 to good lending practices pursuant to section under this section in previous years; U.S.C. 1716(3)), or section 301(b)(3) of the Fed- 1331(b)(2). ‘‘(D) the ability of the enterprise to lead eral Home Loan Mortgage Corporation Act ‘‘(d) NOTICE OF DETERMINATION AND ENTER- the industry in making mortgage credit (12 U.S.C. 1451 note), as applicable. PRISE COMMENT.— available;

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6046 CONGRESSIONAL RECORD — SENATE June 24, 2008 ‘‘(E) recent information submitted in com- ‘‘(iii) multifamily properties located in goal’’ and all that follows through ‘‘section pliance with the Home Mortgage Disclosure rural areas; and 1334’’ and inserting ‘‘housing goals estab- Act of 1975 and such other reliable mortgage ‘‘(F) the need to maintain the sound finan- lished under this subpart’’; and data as may be available; cial condition of the enterprise. (2) in section 1336(a)(1) (12 U.S.C. 4566(a)(1)), ‘‘(F) the size of the purchase money con- ‘‘(b) UNITS FINANCED BY HOUSING FINANCE by striking ‘‘sections 1332, 1333, and 1334,’’ ventional mortgage market serving each of AGENCY BONDS.—The Director may give cred- and inserting ‘‘this subpart’’. it toward the achievement of the multi- the types of families described in subsection (d) DEFINITIONS.—Section 1303 of the Fed- (a), relative to the size of the overall pur- family special affordable housing goal under eral Housing Enterprises Financial Safety chase money mortgage market; and this section (for purposes of section 1336) to and Soundness Act of 1992 (12 U.S.C. 4502) is ‘‘(G) the need to maintain the sound finan- dwelling units in multifamily housing amended— cial condition of the enterprises. projects that otherwise qualify under such (1) by striking paragraph (24), as so des- ‘‘(d) NOTICE OF DETERMINATION AND ENTER- goal and that are financed by tax-exempt or ignated by section 1002 of this Act, and in- PRISE COMMENT.— taxable bonds issued by a State or local serting the following: ‘‘(1) NOTICE.—Within 30 days of making a housing finance agency, but only if such ‘‘(24) VERY LOW-INCOME.— determination under subsection (b) regard- bonds— ‘‘(A) IN GENERAL.—The term ‘very low-in- ing compliance of an enterprise for a year ‘‘(1) are secured by a guarantee of the en- come’ means— with the housing goals established under this terprise; or ‘‘(i) in the case of owner-occupied units, section and before any public disclosure ‘‘(2) are not investment grade and are pur- thereof, the Director shall provide notice of families having incomes not greater than 50 chased by the enterprise. percent of the area median income; and the determination to the enterprise, which ‘‘(c) USE OF TENANT RENT LEVEL.— ‘‘(ii) in the case of rental units, families shall include an analysis and comparison, by ‘‘(1) IN GENERAL.—The Director shall mon- having incomes not greater than 50 percent the Director, of the performance of the en- itor the performance of each enterprise in of the area median income, with adjustments terprise for the year and the targets for the meeting the goal established under this sec- for smaller and larger families, as deter- year under subsection (c). tion and shall evaluate such performance mined by the Director. ‘‘(2) COMMENT PERIOD.—The Director shall (for purposes of section 1336) based on wheth- ‘‘(B) RULE OF CONSTRUCTION.—For purposes provide each enterprise and the public an op- er the rent levels are affordable to low-in- of section 1338 and 1339, the term ‘very low- portunity to comment on the determination come and very low-income families. income’ means— during the 30-day period beginning upon re- ‘‘(2) RENT LEVEL.—A rent level shall be ‘‘(i) in the case of owner-occupied units, in- ceipt by the enterprise of the notice. considered to be affordable for purposes of come in excess of 30 percent but not greater ‘‘(e) USE OF BORROWER INCOME.—In moni- this subsection for an income category re- than 50 percent of the area median income; toring the performance of each enterprise ferred to in this subsection if it does not ex- and pursuant to the housing goals under this sec- ceed 30 percent of the maximum income level ‘‘(ii) in the case of rental units, income in tion and evaluating such performance (for of such income category, with appropriate excess of 30 percent but not greater than 50 purposes of section 1336), the Director shall adjustments for unit size as measured by the percent of the area median income, with ad- consider a mortgagor’s income to be the in- number of bedrooms. justments for smaller and larger families, as come of the mortgagor at the time of origi- ‘‘(d) DETERMINATION OF COMPLIANCE.— determined by the Director.’’; and nation of the mortgage. ‘‘(1) IN GENERAL.—The Director shall, for ‘‘SEC. 1334. MULTIFAMILY SPECIAL AFFORDABLE each year that the housing goal under this (2) by adding at the end the following: HOUSING GOAL. section is in effect pursuant to section ‘‘(26) CONFORMING MORTGAGE.—The term ‘‘(a) ESTABLISHMENT.— 1331(a), determine whether each enterprise ‘conforming mortgage’ means, with respect ‘‘(1) IN GENERAL.—The Director shall estab- has complied with such goal and the addi- to an enterprise, a conventional mortgage lish, by regulation, by unit, dollar volume, tional requirements under subsection (a)(2). having an original principal obligation that or percentage of multifamily activity, as de- does not exceed the applicable dollar limita- ‘‘(2) COMPLIANCE.—An enterprise shall be termined by the Director, an annual goal for considered to be in compliance with the goal tion, in effect at the time of such origina- the purchase by each enterprise of— described under subsection (a) for a year tion, under— ‘‘(A) mortgages that finance dwelling units only if the multifamily mortgage purchases ‘‘(A) section 302(b)(2) of the Federal Na- affordable to very low-income families; and of the enterprise meet or exceed the goal for tional Mortgage Association Charter Act; or ‘‘(B) mortgages that finance dwelling units the year established under subsection (a). ‘‘(B) section 305(a)(2) of the Federal Home assisted by the low-income housing tax cred- ‘‘(e) CONSIDERATION OF UNITS IN SINGLE- Loan Mortgage Corporation Act. it under section 42 of the Internal Revenue FAMILY RENTAL HOUSING.—In establishing ‘‘(27) EXTREMELY LOW-INCOME.—The term Code of 1986. the goal under this section, the Director may ‘extremely low-income’ means— ‘‘(2) ADDITIONAL REQUIREMENTS FOR SMALL- take into consideration the number of hous- ‘‘(A) in the case of owner-occupied units, ER PROJECTS.—The Director shall establish, ing units financed by any mortgage pur- income not in excess of 30 percent of the area within the housing goal established under chased by an enterprise on single-family median income; and this section, additional requirements for the rental housing that is not owner-occupied. ‘‘(B) in the case of rental units, income not purchase by each enterprise of mortgages de- ‘‘(f) REMOVING CREDIT.—The Director shall in excess of 30 percent of the area median in- scribed in paragraph (1) for multifamily subtract from the units or mortgages count- come, with adjustments for smaller and larg- housing projects of a smaller or limited size, ed toward the goal established under this er families, as determined by the Director. which may be based on the number of dwell- section in a current year any units or mort- ‘‘(28) LOW-INCOME AREA.—The term ‘low-in- ing units in the project or the amount of the gages credited toward such goal in a prior come area’ means a census tract or block mortgage, or both, and shall include multi- year if an enterprise requires a lender to re- numbering area in which the median income family housing projects of 5 to 50 units (as purchase, or reimburse for losses, or indem- does not exceed 80 percent of the median in- adjusted by the Director), or with mortgages nify the enterprise against potential losses come for the area in which such census tract of up to $5,000,000 (as adjusted by the Direc- on such units or mortgages. or block numbering area is located, and, for tor). ‘‘(g) NOTICE OF DETERMINATION AND ENTER- the purposes of section 1332(a)(2), shall in- ‘‘(3) FACTORS.—The Director shall establish PRISE COMMENT.— clude families having incomes not greater the goal and additional requirements under ‘‘(1) NOTICE.—Within 30 days of making a than 100 percent of the area median income this section taking into consideration— determination under subsection (d) regard- who reside in minority census tracts. ‘‘(A) national multifamily mortgage credit ing compliance of an enterprise for a year ‘‘(29) MINORITY CENSUS TRACT.—The term needs; with the housing goal established under this ‘minority census tract’ means a census tract ‘‘(B) the performance and effort of the en- section and before any public disclosure that has a minority population of at least 30 terprise in making mortgage credit available thereof, the Director shall provide notice of percent and a median family income of less for multifamily housing in previous years; the determination to the enterprise, which than 100 percent of the area family median ‘‘(C) the size of the multifamily mortgage shall include an analysis and comparison, by income. market, including the size of the small mul- the Director, of the performance of the en- ‘‘(30) SHORTAGE OF STANDARD RENTAL UNITS tifamily mortgage market; terprise for the year and the goal for the BOTH AFFORDABLE AND AVAILABLE TO EX- ‘‘(D) the most recent information available year under subsection (a). TREMELY LOW-INCOME RENTER HOUSEHOLDS.— for the Residential Survey published by the ‘‘(2) COMMENT PERIOD.—The Director shall ‘‘(A) IN GENERAL.—The term ‘shortage of Census Bureau, and such other reliable data provide each enterprise and the public an op- standard rental units both affordable and as may be available regarding multifamily portunity to comment on the determination available to extremely low-income renter mortgages; during the 30-day period beginning upon re- households’ means the gap between— ‘‘(E) the ability of the enterprise to lead ceipt by the enterprise of the notice.’’. ‘‘(i) the number of units with complete the industry in expanding mortgage credit (c) CONFORMING AMENDMENTS.—The Fed- plumbing and kitchen facilities with a rent availability at favorable terms, especially eral Housing Enterprises Financial Safety that is 30 percent or less of 30 percent of the for underserved markets, such as for— and Soundness Act of 1992 is amended— adjusted area median income as determined ‘‘(i) small multifamily projects; (1) in section 1335(a) (12 U.S.C. 4565(a)), in by the Director that are occupied by ex- ‘‘(ii) multifamily properties in need of the matter preceding paragraph (1), by strik- tremely low-income renter households or are preservation and rehabilitation; and ing ‘‘low- and moderate-income housing vacant for rent; and

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00074 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6047 ‘‘(ii) the number of extremely low-income writing guidelines to facilitate a secondary prise with respect to underserved markets,’’ renter households. market to preserve housing affordable to before ‘‘as provided in this section’’; and ‘‘(B) RULE OF CONSTRUCTION.—If the num- very low-, low-, and moderate-income fami- (2) by adding at the end of such subsection, ber of units described in subparagraph (A)(i) lies, including housing projects subsidized as amended by the preceding provisions of exceeds the number of extremely low-income under— this subtitle, the following new paragraph: households as described in subparagraph ‘‘(i) the project-based and tenant-based ‘‘(4) ENFORCEMENT OF DUTY TO PROVIDE (A)(ii), there is no shortage. rental assistance programs under section 8 of MORTGAGE CREDIT TO UNDERSERVED MAR- ‘‘(31) SHORTAGE OF STANDARD RENTAL UNITS the United States Housing Act of 1937; KETS.—The duty under section 1335(a) of each BOTH AFFORDABLE AND AVAILABLE TO VERY ‘‘(ii) the program under section 236 of the enterprise to serve underserved markets (as LOW-INCOME RENTER HOUSEHOLDS.— National Housing Act; determined in accordance with section ‘‘(A) IN GENERAL.—The term ‘shortage of ‘‘(iii) the below-market interest rate mort- 1335(c)) shall be enforceable under this sec- standard rental units both affordable and gage program under section 221(d)(4) of the tion to the same extent and under the same available to very low-income renter house- National Housing Act; provisions that the housing goals established holds’ means the gap between— ‘‘(iv) the supportive housing for the elderly under this subpart are enforceable. Such ‘‘(i) the number of units with complete program under section 202 of the Housing duty shall not be enforceable under any plumbing and kitchen facilities with a rent Act of 1959; other provision of this title (including sub- that is 30 percent or less of 50 percent of the ‘‘(v) the supportive housing program for part C of this part) other than this section or adjusted area median income as determined persons with disabilities under section 811 of under any provision of the Federal National by the Director that are occupied by either the Cranston-Gonzalez National Affordable Mortgage Association Charter Act or the extremely low- or very low-income renter Housing Act; Federal Home Loan Mortgage Corporation households or are vacant for rent; and ‘‘(vi) the programs under title IV of the Act.’’. ‘‘(ii) the number of extremely low- and McKinney-Vento Homeless Assistance Act SEC. 1130. MONITORING AND ENFORCING COM- very low-income renter households. (42 U.S.C. 11361 et seq.), but only permanent PLIANCE WITH HOUSING GOALS. ‘‘(B) RULE OF CONSTRUCTION.—If the num- supportive housing projects subsidized under (a) IN GENERAL.—Section 1336 of the Fed- ber of units described in subparagraph (A)(i) such programs; and eral Housing Enterprises Financial Safety exceeds the number of extremely low- and ‘‘(vii) the rural rental housing program and Soundness Act of 1992 (12 U.S.C. 4566) is very low-income households as described in under section 515 of the Housing Act of 1949. amended by striking subsections (b) and (c) subparagraph (A)(ii), there is no shortage.’’. ‘‘(C) RURAL AND OTHER UNDERSERVED MAR- and inserting the following: SEC. 1129. DUTY TO SERVE UNDERSERVED MAR- KETS.—The enterprise shall lead the industry ‘‘(b) NOTICE AND PRELIMINARY DETERMINA- KETS. in developing loan products and flexible un- TION OF FAILURE TO MEET GOALS.— (a) ESTABLISHMENT AND EVALUATION OF derwriting guidelines to facilitate a sec- ‘‘(1) NOTICE.—If the Director preliminarily PERFORMANCE.—Section 1335 of the Federal ondary market for mortgages on housing for determines that an enterprise has failed, or Housing Enterprises Financial Safety and very low-, low-, and moderate-income fami- that there is a substantial probability that Soundness Act of 1992 (12 U.S.C. 4565) is lies in rural areas, and for mortgages for an enterprise will fail, to meet any housing amended— housing for any other underserved market goal under this subpart, the Director shall (1) in the section heading, by inserting for very low-, low-, and moderate-income provide written notice to the enterprise of ‘‘duty to serve underserved markets and’’ be- families that the Director identifies as lack- such a preliminary determination, the rea- fore ‘‘other’’; ing adequate credit through conventional sons for such determination, and the infor- (2) by striking subsection (b); lending sources. Such underserved markets mation on which the Director based the de- (3) in subsection (a)— may be identified by borrower type, market termination. (A) in the matter preceding paragraph (1), segment, or geographic area.’’; and ‘‘(2) RESPONSE PERIOD.— by inserting ‘‘and to carry out the duty (5) by adding at the end the following new ‘‘(A) IN GENERAL.—During the 30-day period under subsection (a) of this section’’ before subsection: beginning on the date on which an enterprise ‘‘, each enterprise shall’’; ‘‘(c) EVALUATION AND REPORTING OF COM- is provided notice under paragraph (1), the (B) in paragraph (3), by inserting ‘‘and’’ PLIANCE.— enterprise may submit to the Director any after the semicolon at the end; ‘‘(1) IN GENERAL.—Not later than 6 months written information that the enterprise con- (C) in paragraph (4), by striking ‘‘; and’’ after the effective date of the Federal Hous- siders appropriate for consideration by the and inserting a period; ing Finance Regulatory Reform Act of 2008, Director in finally determining whether such (D) by striking paragraph (5); and the Director shall establish a manner for failure has occurred or whether the achieve- (E) by redesignating such subsection as evaluating whether, and the extent to which, ment of such goal was or is feasible. subsection (b); the enterprises have complied with the duty ‘‘(B) EXTENDED PERIOD.—The Director may (4) by inserting before subsection (b) (as so under subsection (a) to serve underserved extend the period under subparagraph (A) for redesignated by paragraph (3)(E) of this sub- markets and for rating the extent of such good cause for not more than 30 additional section) the following new subsection: compliance. Using such method, the Director days. ‘‘(a) DUTY TO SERVE UNDERSERVED MAR- shall, for each year, evaluate such compli- ‘‘(C) SHORTENED PERIOD.—The Director KETS.— ance and rate the performance of each enter- may shorten the period under subparagraph ‘‘(1) DUTY.—In accordance with the purpose prise as to extent of compliance. The Direc- (A) for good cause. of the enterprises under section 301(3) of the tor shall include such evaluation and rating ‘‘(D) FAILURE TO RESPOND.—The failure of Federal National Mortgage Association for each enterprise for a year in the report an enterprise to provide information during Charter Act (12 U.S.C. 1716) and section for that year submitted pursuant to section the 30-day period under this paragraph (as 301(b)(3) of the Federal Home Loan Mortgage 1319B(a). extended or shortened) shall waive any right Corporation Act (12 U.S.C. 1451 note) to un- ‘‘(2) SEPARATE EVALUATIONS.—In deter- of the enterprise to comment on the pro- dertake activities relating to mortgages on mining whether an enterprise has complied posed determination or action of the Direc- housing for very low-, low-, and moderate-in- with the duty referred to in paragraph (1), tor. come families involving a reasonable eco- the Director shall separately evaluate ‘‘(3) CONSIDERATION OF INFORMATION AND nomic return that may be less than the re- whether the enterprise has complied with FINAL DETERMINATION.— turn earned on other activities, each enter- such duty with respect to each of the under- ‘‘(A) IN GENERAL.—After the expiration of prise shall have the duty to increase the li- served markets identified in subsection (a), the response period under paragraph (2), or quidity of mortgage investments and im- taking into consideration— upon receipt of information provided during prove the distribution of investment capital ‘‘(A) the development of loan products and such period by the enterprise, whichever oc- available for mortgage financing for under- more flexible underwriting guidelines; curs earlier, the Director shall issue a final served markets by purchasing or securitizing ‘‘(B) the extent of outreach to qualified determination on— mortgage investments. loan sellers in each of such underserved mar- ‘‘(i) whether the enterprise has failed, or ‘‘(2) UNDERSERVED MARKETS.—To meet its kets; and there is a substantial probability that the duty under paragraph (1), each enterprise ‘‘(C) the volume of loans purchased in each enterprise will fail, to meet the housing goal; shall comply with the following require- of such underserved markets. and ments with respect to the following under- ‘‘(3) MANUFACTURED HOUSING MARKET.—In ‘‘(ii) whether (taking into consideration served markets: determining whether an enterprise has com- market and economic conditions and the fi- ‘‘(A) MANUFACTURED HOUSING.—The enter- plied with the duty under subparagraph (A) nancial condition of the enterprise) the prise shall lead the industry in developing of subsection (a)(2), the Director may con- achievement of the housing goal was or is loan products and flexible underwriting sider loans secured by both real and personal feasible. guidelines to facilitate a secondary market property.’’. ‘‘(B) CONSIDERATIONS.—In making a final for mortgages on manufactured homes for (b) ENFORCEMENT.—Subsection (a) of sec- determination under subparagraph (A), the very low-, low-, and moderate-income fami- tion 1336 of the Housing and Community De- Director shall take into consideration any lies. velopment Act of 1992 (12 U.S.C. 4566(a)) is relevant information submitted by the enter- ‘‘(B) AFFORDABLE HOUSING PRESERVATION.— amended— prise during the response period. The enterprise shall lead the industry in de- (1) in paragraph (1), by inserting ‘‘and with ‘‘(C) NOTICE.—The Director shall provide veloping loan products and flexible under- the duty under section 1335(a) of each enter- written notice, including a response to any

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information submitted during the response ‘‘(6) RESUBMISSION.—If the initial housing ‘‘(E) comply with the housing plan in com- period, to the enterprise, the Committee on plan submitted by an enterprise under this pliance with section 1336(c); or Banking, Housing, and Urban Affairs of the section is disapproved, the enterprise shall ‘‘(F) provide the information required Senate, and the Committee on Financial submit an amended plan acceptable to the under subsection (m) or (n) of section 309 of Services of the House of Representatives, Director not later than 15 days after such the Federal National Mortgage Association of— disapproval, or such longer period that the Charter Act, or subsection (e) or (f) of sec- ‘‘(i) each final determination under this Director determines is in the public interest. tion 307 of the Federal Home Loan Mortgage paragraph that an enterprise has failed, or ‘‘(7) ADDITIONAL REMEDIES FOR FAILURE TO Corporation Act. that there is a substantial probability that MEET GOALS.—In addition to ordering a hous- ‘‘(c) EFFECTIVE DATE.—An order under this the enterprise will fail, to meet a housing ing plan under this section, issuing cease and section shall become effective upon the expi- goal; desist orders under section 1341, and ordering ration of the 30-day period beginning on the ‘‘(ii) each final determination that the civil money penalties under section 1345, the date of service of the order upon the enter- achievement of a housing goal was or is fea- Director may— prise (except in the case of an order issued sible; and ‘‘(A) seek other actions when an enterprise upon consent, which shall become effective ‘‘(iii) the reasons for each such final deter- fails to meet a goal; and at the time specified therein), and shall re- mination. ‘‘(B) exercise appropriate enforcement au- main effective and enforceable as provided in ‘‘(c) CEASE AND DESIST, CIVIL MONEY PEN- thority available to the Director under this the order, except to the extent that the order ALTIES, AND REMEDIES INCLUDING HOUSING Act.’’. is stayed, modified, terminated, or set aside PLANS.— (b) CONFORMING AMENDMENT.—The heading by action of the Director or otherwise, as ‘‘(1) REQUIREMENT.—If the Director finds, for subpart C of part 2 of subtitle A of the provided in this subpart.’’. pursuant to subsection (b), that there is a Federal Housing Enterprises Financial Safe- (d) CIVIL MONEY PENALTIES.— substantial probability that an enterprise ty and Soundness Act of 1992 is amended to (1) REPEAL.—Section 1345 of the Federal will fail, or has actually failed, to meet any read as follows: Housing Enterprises Financial Safety and housing goal under this subpart, and that the ‘‘Subpart C—Enforcement’’. Soundness Act of 1992 (12 U.S.C. 4585) is here- achievement of the housing goal was or is (c) CEASE AND DESIST PROCEEDINGS .— by repealed. feasible, the Director may require that the (1) REPEAL.—Section 1341 of the Federal (2) CIVIL MONEY PENALTIES.—The Federal enterprise submit a housing plan under this Housing Enterprises Financial Safety and Housing Enterprises Financial Safety and subsection. If the Director makes such a Soundness Act of 1992 (12 U.S.C. 4581) is here- Soundness Act of 1992 is amended by insert- finding and the enterprise refuses to submit by repealed. ing after section 1344 the following: such a plan, submits an unacceptable plan, (2) CEASE AND DESIST PROCEEDINGS.—The ‘‘SEC. 1345. CIVIL MONEY PENALTIES. fails to comply with the plan, or the Director Federal Housing Enterprises Financial Safe- ‘‘(a) AUTHORITY.—The Director may impose finds that the enterprise has failed to meet ty and Soundness Act of 1992 is amended by a civil money penalty, in accordance with any housing goal under this subpart, in addi- inserting before section 1342 the following: the provisions of this section, on any enter- tion to requiring an enterprise to submit a ‘‘SEC. 1341. CEASE AND DESIST PROCEEDINGS. housing plan, the Director may issue a cease prise that has failed to— ‘‘(a) GROUNDS FOR ISSUANCE.—The Director ‘‘(1) meet any housing goal established and desist order in accordance with section may issue and serve a notice of charges under subpart B, following a written notice 1341, impose civil money penalties in accord- under this section upon an enterprise if the and determination of such failure in accord- ance with section 1345, or order other rem- Director determines that— ance with section 1336(b); edies as set forth in paragraph (7). ‘‘(1) the enterprise has failed to meet any ‘‘(2) submit a report under section 1327, fol- ‘‘(2) HOUSING PLAN.—If the Director re- housing goal established under subpart B, lowing a notice of such failure, an oppor- quires a housing plan under this subsection, following a written notice and determination tunity for comment by the enterprise, and a such a plan shall be— of such failure in accordance with section final determination by the Director; ‘‘(A) a feasible plan describing the specific 1336; actions the enterprise will take— ‘‘(2) the enterprise has failed to submit a ‘‘(3) submit the information required under ‘‘(i) to achieve the goal for the next cal- report under section 1327, following a notice subsection (m) or (n) of section 309 of the endar year; and of such failure, an opportunity for comment Federal National Mortgage Association ‘‘(ii) if the Director determines that there by the enterprise, and a final determination Charter Act or subsection (e) or (f) of section is a substantial probability that the enter- by the Director; 307 of the Federal Home Loan Mortgage Cor- prise will fail to meet a goal in the current ‘‘(3) the enterprise has failed to submit the poration Act; year, to make such improvements and information required under subsection (m) or ‘‘(4) comply with any provision of part 2 of changes in its operations as are reasonable (n) of section 309 of the Federal National this title or any order, rule, or regulation in the remainder of such year; and Mortgage Association Charter Act, or sub- under part 2; ‘‘(B) sufficiently specific to enable the Di- section (e) or (f) of section 307 of the Federal ‘‘(5) submit a housing plan or perform its rector to monitor compliance periodically. Home Loan Mortgage Corporation Act; responsibilities under a remedial order ‘‘(3) DEADLINE FOR SUBMISSION.—The Direc- ‘‘(4) the enterprise has violated any provi- issued pursuant to section 1336(c) within the tor shall establish a deadline for an enter- sion of part 2 of this title or any order, rule, required period; or prise to comply with any remedial action or or regulation under part 2; ‘‘(6) comply with a housing plan for the en- submit a housing plan to the Director, which ‘‘(5) the enterprise has failed to submit a terprise under section 1336(c). may not be more than 45 days after the en- housing plan or perform its responsibilities ‘‘(b) AMOUNT OF PENALTY.—The amount of terprise is provided notice. The Director may under a remedial order that substantially a penalty under this section, as determined extend the deadline to the extent that the complies with section 1336(c) within the ap- by the Director, may not exceed— Director determines necessary. Any exten- plicable period; or ‘‘(1) for any failure described in paragraph sion of the deadline shall be in writing and ‘‘(6) the enterprise has failed to comply (1), (5), or (6) of subsection (a), $100,000 for for a time certain. with a housing plan under section 1336(c). each day that the failure occurs; and ‘‘(4) APPROVAL.—The Director shall review ‘‘(b) PROCEDURE.— ‘‘(2) for any failure described in paragraph each submission by an enterprise, including ‘‘(1) NOTICE OF CHARGES.—Each notice of (2), (3), or (4) of subsection (a), $50,000 for a housing plan submitted under this sub- charges issued under this section shall con- each day that the failure occurs. section, and, not later than 30 days after sub- tain a statement of the facts constituting ‘‘(c) PROCEDURES.— mission, approve or disapprove the plan or the alleged conduct and shall fix a time and ‘‘(1) ESTABLISHMENT.—The Director shall other action. The Director may extend the place at which a hearing will be held to de- establish standards and procedures gov- period for approval or disapproval for a sin- termine on the record whether an order to erning the imposition of civil money pen- gle additional 30-day period if the Director cease and desist from such conduct should alties under this section. Such standards and determines it necessary. The Director shall issue. procedures— approve any plan that the Director deter- ‘‘(2) ISSUANCE OF ORDER.—If the Director ‘‘(A) shall provide for the Director to no- mines is likely to succeed, and conforms finds on the record made at a hearing de- tify the enterprise in writing of the deter- with the Federal National Mortgage Associa- scribed in paragraph (1) that any conduct mination of the Director to impose the pen- tion Charter Act or the Federal Home Loan specified in the notice of charges has been alty, which shall be made on the record; Mortgage Corporation Act (as applicable), established (or the enterprise consents pur- ‘‘(B) shall provide for the imposition of a this title, and any other applicable provision suant to section 1342(a)(4)), the Director may penalty only after the enterprise has been of law. issue and serve upon the enterprise an order given an opportunity for a hearing on the ‘‘(5) NOTICE OF APPROVAL AND DIS- requiring the enterprise to— record pursuant to section 1342; and APPROVAL.—The Director shall provide writ- ‘‘(A) comply with the goals; ‘‘(C) may provide for review by the Direc- ten notice to any enterprise submitting a ‘‘(B) submit a report under section 1327; tor of any determination or order, or inter- housing plan of the approval or disapproval ‘‘(C) comply with any provision of part 2 of locutory ruling, arising from a hearing. of the plan (which shall include the reasons this title or any order, rule, or regulation ‘‘(2) FACTORS IN DETERMINING AMOUNT OF for any disapproval of the plan) and of any under part 2; PENALTY.—In determining the amount of a extension of the period for approval or dis- ‘‘(D) submit a housing plan in compliance penalty under this section, the Director shall approval. with section 1336(c); give consideration to factors including—

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‘‘(A) the gravity of the offense; ‘‘(B) 35 percent of such amounts shall be al- ‘‘(3) DISTRIBUTION TO STATES BY NEEDS- ‘‘(B) any history of prior offenses; located to fund the Capital Magnet Fund es- BASED FORMULA.— ‘‘(C) ability to pay the penalty; tablished pursuant to section 1339. ‘‘(A) IN GENERAL.—The Secretary shall, by ‘‘(D) injury to the public; ‘‘(b) REQUIRED AMOUNT FOR HOPE RESERVE regulation, establish a formula within 12 ‘‘(E) benefits received; FUND.—Of the aggregate amount allocated months of the date of enactment of the Fed- ‘‘(F) deterrence of future violations; under subsection (a), 25 percent shall be de- eral Housing Finance Regulatory Reform ‘‘(G) the length of time that the enterprise posited into a fund established in the Treas- Act of 2008, to distribute amounts made should reasonably take to achieve the goal; ury of the United States by the Secretary of available under this subsection to each State and the Treasury for such purpose. to provide affordable housing to extremely ‘‘(H) such other factors as the Director ‘‘(c) LIMITATION.—No funds under this title low- and very low-income households. may determine, by regulation, to be appro- may be used in conjunction with property ‘‘(B) BASIS FOR FORMULA.—The formula re- priate. taken by eminent domain, unless eminent quired under subparagraph (A) shall include ‘‘(d) ACTION TO COLLECT PENALTY.—If an domain is employed only for a public use, ex- the following: enterprise fails to comply with an order by cept that, for purposes of this section, public ‘‘(i) The ratio of the shortage of standard the Director imposing a civil money penalty use shall not be construed to include eco- rental units both affordable and available to under this section, after the order is no nomic development that primarily benefits extremely low-income renter households in longer subject to review, as provided in sec- any private entity. the State to the aggregate shortage of stand- tions 1342 and 1343, the Director may bring ‘‘SEC. 1338. HOUSING TRUST FUND. ard rental units both affordable and avail- an action in the United States District Court able to extremely low-income renter house- ‘‘(a) ESTABLISHMENT AND PURPOSE.—The holds in all the States. for the District of Columbia to obtain a mon- Secretary of Housing and Urban Develop- etary judgment against the enterprise, and ‘‘(ii) The ratio of the shortage of standard ment (in this section referred to as the ‘Sec- such other relief as may be available. The rental units both affordable and available to retary’) shall establish and manage a Hous- monetary judgment may, in the court’s dis- very low-income renter households in the ing Trust Fund, which shall be funded with cretion, include the attorneys’ fees and other State to the aggregate shortage of standard amounts appropriated under section 1337 and expenses incurred by the United States in rental units both affordable and available to any amounts as are or may be transferred or connection with the action. In an action very low-income renter households in all the credited to such Housing Trust Fund under under this subsection, the validity and ap- States. any other provisions of law. The purpose of propriateness of the order imposing the pen- ‘‘(iii) The ratio of extremely low-income the Housing Trust Fund under this section is alty shall not be subject to review. renter households in the State living with ei- ‘‘(e) SETTLEMENT BY DIRECTOR.—The Direc- to provide grants to States for use— ther (I) incomplete kitchen or plumbing fa- tor may compromise, modify, or remit any ‘‘(1) to increase and preserve the supply of cilities, (II) more than 1 person per room, or civil money penalty which may be, or has rental housing for extremely low- and very (III) paying more than 50 percent of income been, imposed under this section. low-income families, including homeless for housing costs, to the aggregate number ‘‘(f) DEPOSIT OF PENALTIES.—The Director families; and of extremely low-income renter households shall use any civil money penalties collected ‘‘(2) to increase homeownership for ex- living with either (IV) incomplete kitchen or under this section to help fund the Housing tremely low- and very low-income families. plumbing facilities, (V) more than 1 person Trust Fund established under section 1338.’’. ‘‘(b) ALLOCATIONS FOR HOPE BOND PAY- per room, or (VI) paying more than 50 per- (e) DIRECTOR AUTHORITY.— MENTS.— cent of income for housing costs in all the (1) AUTHORITY TO BRING A CIVIL ACTION.— ‘‘(1) IN GENERAL.—Notwithstanding sub- States. Section 1344(a) of the Federal Housing Enter- section (c), to help address the mortgage cri- ‘‘(iv) The ratio of very low-income renter prises Financial Safety and Soundness Act of sis, of the amounts appropriated under sec- households in the State paying more than 50 1992 (12 U.S.C. 4584) is amended by striking tion 1337(a) in excess of amounts described in percent of income on rent relative to the ag- ‘‘The Secretary may request the Attorney section 1337(b)— gregate number of very low-income renter General of the United States to bring a civil ‘‘(A) 100 percent of such excess shall be households paying more than 50 percent of action’’ and inserting ‘‘The Director may used to reimburse the Treasury for payments income on rent in all the States. bring a civil action’’. made pursuant to section 257(w)(1)(C) of the ‘‘(v) The resulting sum calculated from the (2) SUBPOENA ENFORCEMENT.—Section National Housing Act in calendar year 2009; factors described in clauses (i) through (iv) 1348(c) of the Federal Housing Enterprises ‘‘(B) 50 percent of such excess shall be used shall be multiplied by the relative cost of Financial Safety and Soundness Act of 1992 to reimburse the Treasury for such payments construction in the State. For purposes of (12 U.S.C. 4588(c)) is amended by inserting in calendar year 2010; and this subclause, the term ‘cost of construc- ‘‘may bring an action or’’ before ‘‘may re- ‘‘(C) 25 percent of such excess shall be used tion’— quest’’. to reimburse the Treasury for such payments ‘‘(I) means the cost of construction or (3) CONFORMING AMENDMENTS.—Subpart C in calendar year 2011. building rehabilitation in the State relative of part 2 of subtitle A of the Federal Housing ‘‘(2) EXCESS FUNDS.—At the termination of to the national cost of construction or build- Enterprises Financial Safety and Soundness the HOPE for Homeowners Program estab- ing rehabilitation; and Act of 1992 (12 U.S.C. 4581 et seq.) is amended lished under section 257 of the National ‘‘(II) shall be calculated such that values by striking ‘‘Secretary’’ each place that Housing Act, if amounts used to reimburse higher than 1.0 indicate that the State’s con- term appears and inserting ‘‘Director’’ in the Treasury under paragraph (1) exceed the struction costs are higher than the national each of— total net cost to the Government of the average, a value of 1.0 indicates that the (A) section 1342 (12 U.S.C. 4582); HOPE for Homeowners Program, such State’s construction costs are exactly the (B) section 1343 (12 U.S.C. 4583); amounts shall be used for their original pur- same as the national average, and values (C) section 1346 (12 U.S.C. 4586); pose, as described in subparagraphs (A) and lower than 1.0 indicate that the State’s cost (D) section 1347 (12 U.S.C. 4587); and (B) of section 1337(a)(2). of construction are lower than the national (E) section 1348 (12 U.S.C. 4588). ‘‘(3) TREASURY FUND.—The amounts re- average. SEC. 1131. AFFORDABLE HOUSING PROGRAMS. ferred to in subparagraphs (A) through (C) of ‘‘(C) PRIORITY.—The formula required (a) REPEAL.—Section 1337 of the Federal paragraph (1) shall be deposited into a fund under subparagraph (A) shall give priority Housing Enterprises Financial Safety and established in the Treasury of the United emphasis and consideration to the factor de- Soundness Act of 1992 (12 U.S.C. 4567) is here- States by the Secretary of the Treasury for scribed in subparagraph (B)(i). by repealed. such purpose. ‘‘(4) ALLOCATION OF GRANT AMOUNTS.— (b) HOUSING TRUST FUNDS.—The Federal ‘‘(c) ALLOCATION FOR HOUSING TRUST FUND ‘‘(A) NOTICE.—Not later than 60 days after Housing Enterprises Financial Safety and IN FISCAL YEAR 2010 AND SUBSEQUENT the date that the Secretary determines the Soundness Act of 1992 (12 U.S.C. 1301 et seq.) YEARS.— formula amounts described in paragraph (3), is amended by inserting after section 1336 ‘‘(1) IN GENERAL.—Except as provided in the Secretary shall caused to be published in the following: subsection (b), the Secretary shall distribute the Federal Register a notice that such ‘‘SEC. 1337. AFFORDABLE HOUSING APPROPRIA- the amounts appropriated for the Housing amounts shall be so available. TIONS. Trust Fund under this section to provide af- ‘‘(B) GRANT AMOUNT.—In each fiscal year ‘‘(a) AUTHORIZATION OF APPROPRIATIONS.— fordable housing as described in this sub- other than fiscal year 2009, the Secretary ‘‘(1) IN GENERAL.—There are authorized to section. shall make a grant to each State in an be appropriated such sums as are necessary ‘‘(2) PERMISSIBLE DESIGNEES.—A State re- amount that is equal to the formula amount to carry out the provisions of sections 1338 ceiving grant amounts under this subsection determined under paragraph (3) for that and 1339. may designate a State housing finance agen- State. ‘‘(2) ALLOCATION.—Of the amounts author- cy, housing and community development en- ‘‘(C) MINIMUM STATE ALLOCATIONS.—If the ized to be appropriated under paragraph (1)— tity, tribally designated housing entity (as formula amount determined under paragraph ‘‘(A) 65 percent of such amounts shall be such term is defined in section 4 of the Na- (3) for a fiscal year would allocate less than allocated to the Secretary of Housing and tive American Housing Assistance and Self- $3,000,000 to any State, the allocation for Urban Development to fund the Housing Determination Act of 1997 (25 U.S.C. 4103)), or such State shall be $3,000,000, and the in- Trust Fund established under section 1338; any other qualified instrumentality of the crease shall be deducted pro rata from the al- and State to receive such grant amounts. locations made to all other States.

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‘‘(5) ALLOCATION PLANS REQUIRED.— U.S.C. 12704), except that any reference in designated entity, as a grant amount author- ‘‘(A) IN GENERAL.—For each year that a such section to assistance under title II of ized under this subsection. State or State designated entity receives a such Act shall for purposes of this subsection ‘‘(D) PROHIBITED USES.—The Secretary grant under this subsection, the State or be considered to refer to assistance from af- shall, by regulation— State designated entity shall establish an al- fordable housing fund grant amounts; ‘‘(i) set forth prohibited uses of grant location plan. Such plan shall— ‘‘(ii) has an initial purchase price that amounts allocated under this subsection, ‘‘(i) set forth a plan for the distribution of meets the requirements of section 215(b)(1) of which shall include use for— grant amounts received by the State or the Cranston-Gonzalez National Affordable ‘‘(I) political activities; State designated entity for such year; Housing Act; ‘‘(II) advocacy; ‘‘(ii) be based on priority housing needs, as ‘‘(iii) is subject to the same resale restric- ‘‘(III) lobbying, whether directly or determined by the State or State designated tions established under section 215(b)(3) of through other parties; entity in accordance with the regulations es- the Cranston-Gonzalez National Affordable ‘‘(IV) counseling services; tablished under subsection (g)(2)(C); Housing Act and applicable to the partici- ‘‘(V) travel expenses; and ‘‘(iii) comply with paragraph (6); and pating jurisdiction that is the State in which ‘‘(VI) preparing or providing advice on tax ‘‘(iv) include performance goals that com- such housing is located; and returns; ply with the requirements established by the ‘‘(iv) is made available for purchase only ‘‘(ii) provide that, except as provided in Secretary pursuant to subsection (g)(2). by, or in the case of assistance under this clause (iii), grant amounts of a State or ‘‘(B) ESTABLISHMENT.—In establishing an subsection, is made available only to home- State designated entity may not be used for allocation plan under this paragraph, a State buyers who have, before purchase completed administrative, outreach, or other costs of— or State designated entity shall— a program of independent financial edu- ‘‘(I) the State or State designated entity; ‘‘(i) notify the public of the establishment cation and counseling from an eligible orga- or of the plan; nization that meets the requirements of sec- ‘‘(II) any other recipient of such grant ‘‘(ii) provide an opportunity for public tion 132 of the Federal Housing Finance Reg- amounts; and comments regarding the plan; ulatory Reform Act of 2008. ‘‘(iii) limit the amount of any grant ‘‘(iii) consider any public comments re- LIGIBLE RECIPIENTS.—Grant amounts amounts for a year that may be used by the ceived regarding the plan; and ‘‘(8) E allocated to a State or State designated enti- State or State designated entity for adminis- ‘‘(iv) make the completed plan available to trative costs of carrying out the program re- the public. ty under this subsection may be provided only to a recipient that is an organization, quired under this subsection, including home ‘‘(C) CONTENTS.—An allocation plan of a agency, or other entity (including a for-prof- ownership counseling, to a percentage of State or State designated entity under this such grant amounts of the State or State paragraph shall set forth the requirements it entity or a nonprofit entity) that— ‘‘(A) has demonstrated experience and ca- designated entity for such year, which may for eligible recipients under paragraph (8) to not exceed 10 percent. apply for such grant amounts, including a re- pacity to conduct an eligible activity under ‘‘(E) PROHIBITION OF CONSIDERATION OF USE quirement that each such application in- paragraph (7), as evidenced by its ability to— FOR MEETING HOUSING GOALS OR DUTY TO clude— ‘‘(i) own, construct or rehabilitate, man- age, and operate an affordable multifamily SERVE.—In determining compliance with the ‘‘(i) a description of the eligible activities housing goals under this subpart and the to be conducted using such assistance; and rental housing development; duty to serve underserved markets under ‘‘(ii) a certification by the eligible recipi- ‘‘(ii) design, construct or rehabilitate, and section 1335, the Director may not consider ent applying for such assistance that any market affordable housing for homeowner- any grant amounts used under this section housing units assisted with such assistance ship; or for eligible activities under paragraph (7). will comply with the requirements under ‘‘(iii) provide forms of assistance, such as The Director shall give credit toward the this section. down payments, closing costs, or interest achievement of such housing goals and such ‘‘(6) SELECTION OF ACTIVITIES FUNDED USING rate buy-downs for purchasers; duty to serve underserved markets to pur- HOUSING TRUST FUND GRANT AMOUNTS.—Grant ‘‘(B) demonstrates the ability and financial chases by the enterprises of mortgages for amounts received by a State or State des- capacity to undertake, comply, and manage ignated entity under this subsection may be the eligible activity; housing that receives funding from such used, or committed for use, only for activi- ‘‘(C) demonstrates its familiarity with the grant amounts, but only to the extent that ties that— requirements of any other Federal, State, or such purchases by the enterprises are funded ‘‘(A) are eligible under paragraph (7) for local housing program that will be used in other than with such grant amounts. such use; conjunction with such grant amounts to en- ‘‘(d) REDUCTION FOR FAILURE TO OBTAIN RE- ‘‘(B) comply with the applicable allocation sure compliance with all applicable require- TURN OF MISUSED FUNDS.—If in any year a plan of the State or State designated entity ments and regulations of such programs; and State or State designated entity fails to ob- under paragraph (5); and ‘‘(D) makes such assurances to the State or tain reimbursement or return of the full ‘‘(C) are selected for funding by the State State designated entity as the Secretary amount required under subsection (e)(1)(B) or State designated entity in accordance shall, by regulation, require to ensure that to be reimbursed or returned to the State or with the process and criteria for such selec- the recipient will comply with the require- State designated entity during such year— tion established pursuant to subsection ments of this subsection during the entire ‘‘(1) except as provided in paragraph (2)— (g)(2)(C). period that begins upon selection of the re- ‘‘(A) the amount of the grant for the State ‘‘(7) ELIGIBLE ACTIVITIES.—Grant amounts cipient to receive such grant amounts and or State designated entity for the succeeding allocated to a State or State designated enti- ending upon the conclusion of all activities year, as determined pursuant to this section, ty under this subsection shall be eligible for under paragraph (8) that are engaged in by shall be reduced by the amount by which use, or for commitment for use, only for as- the recipient and funded with such grant such amounts required to be reimbursed or sistance for— amounts. returned exceed the amount actually reim- ‘‘(A) the production, preservation, and re- ‘‘(9) LIMITATIONS ON USE.— bursed or returned; and habilitation of rental housing, including ‘‘(A) REQUIRED AMOUNT FOR HOMEOWNERSHIP ‘‘(B) the amount of the grant for the suc- housing under the programs identified in sec- ACTIVITIES.—Of the aggregate amount allo- ceeding year for each other State or State tion 1335(a)(2)(B) and for operating costs, ex- cated to a State or State designated entity designated entity whose grant is not reduced cept that not less than 75 percent of such under this subsection not more than 10 per- pursuant to subparagraph (A) shall be in- grant amounts shall be used for the benefit cent shall be used for activities under sub- creased by the amount determined by apply- only of extremely low-income families and paragraph (B) of paragraph (7). ing the formula established pursuant to this not more than 25 percent for the benefit only ‘‘(B) DEADLINE FOR COMMITMENT OR USE.— section to the total amount of all reductions of very low-income families; and Grant amounts allocated to a State or State for all State or State designated entities for ‘‘(B) the production, preservation, and re- designated entity under this subsection shall such year pursuant to subparagraph (A); or habilitation of housing for homeownership, be used or committed for use within 2 years ‘‘(2) in any case in which such failure to including such forms as down payment as- of the date that such grant amounts are obtain reimbursement or return occurs dur- sistance, closing cost assistance, and assist- made available to the State or State des- ing a year immediately preceding a year in ance for interest rate buy-downs, that— ignated entity. The Secretary shall recap- which grants under this section will not be ‘‘(i) is available for purchase only for use ture any such amounts not so used or com- made, the State or State designated entity as a principal residence by families that mitted for use and reallocate such amounts shall pay to the Secretary for reallocation qualify both as— under this subsection in the first year after among the other grantees an amount equal ‘‘(I) extremely low- and very low-income such recapture. to the amount of the reduction for the entity families at the times described in subpara- ‘‘(C) USE OF RETURNS.—The Secretary that would otherwise apply under paragraph graphs (A) through (C) of section 215(b)(2) of shall, by regulation, provide that any return (1)(A). the Cranston-Gonzalez National Affordable on a loan or other investment of any grant ‘‘(e) ACCOUNTABILITY OF RECIPIENTS AND Housing Act (42 U.S.C. 12745(b)(2)); and amount used by a State or State designated GRANTEES.— ‘‘(II) first-time homebuyers, as such term entity to provide a loan under this sub- ‘‘(1) RECIPIENTS.— is defined in section 104 of the Cranston-Gon- section shall be treated, for purposes of ‘‘(A) TRACKING OF FUNDS.—The Secretary zalez National Affordable Housing Act (42 availability to and use by the State or State shall—

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‘‘(i) require each State or State designated ‘‘(iii) limit the availability of assistance ‘‘(2) REQUIRED CONTENTS.—The regulations entity to develop and maintain a system to under this section to the State or State des- issued under this subsection shall include— ensure that each recipient of assistance ignated entity to activities or recipients not ‘‘(A) a requirement that the Secretary en- under this section uses such amounts in ac- affected by such failure to comply; or sure that the use of grant amounts under cordance with this section, the regulations ‘‘(iv) terminate any assistance under this this section by States or State designated issued under this section, and any require- section to the State or State designated en- entities is audited not less than annually to ments or conditions under which such tity. ensure compliance with this section; amounts were provided; and ‘‘(f) DEFINITIONS.—For purposes of this sec- ‘‘(B) authority for the Secretary to audit, ‘‘(ii) establish minimum requirements for tion, the following definitions shall apply: provide for an audit, or otherwise verify a agreements, between the State or State des- ‘‘(1) EXTREMELY LOW-INCOME RENTER HOUSE- State or State designated entity’s activities ignated entity and recipients, regarding as- HOLD.—The term ‘extremely low-income to ensure compliance with this section; sistance under this section, which shall in- renter household’ means a household whose ‘‘(C) requirements for a process for applica- clude— income is not in excess of 30 percent of the tion to, and selection by, each State or State ‘‘(I) appropriate periodic financial and area median income, with adjustments for designated entity for activities meeting the project reporting, record retention, and smaller and larger families, as determined State or State designated entity’s priority audit requirements for the duration of the by the Secretary. housing needs to be funded with grant assistance to the recipient to ensure compli- ‘‘(2) RECIPIENT.—The term ‘recipient’ amounts under this section, which shall pro- ance with the limitations and requirements means an individual or entity that receives vide for priority in funding to be based of this section and the regulations under this assistance from a State or State designated upon— section; and entity from amounts made available to the ‘‘(i) geographic diversity; ‘‘(II) any other requirements that the Sec- State or State designated entity under this ‘‘(ii) ability to obligate amounts and un- retary determines are necessary to ensure section. dertake activities so funded in a timely man- appropriate administration and compliance. ‘‘(3) SHORTAGE OF STANDARD RENTAL UNITS ner; ‘‘(B) MISUSE OF FUNDS.— BOTH AFFORDABLE AND AVAILABLE TO EX- ‘‘(iii) in the case of rental housing projects ‘‘(i) REIMBURSEMENT REQUIREMENT.—If any TREMELY LOW-INCOME RENTER HOUSEHOLDS.— under subsection (c)(7)(A), the extent to recipient of assistance under this section is ‘‘(A) IN GENERAL.—The term ‘shortage of which rents for units in the project funded determined, in accordance with clause (ii), to standard rental units both affordable and are affordable, especially for extremely low- have used any such amounts in a manner available to extremely low-income renter income families; that is materially in violation of this sec- households’ means for any State or other ‘‘(iv) in the case of rental housing projects tion, the regulations issued under this sec- geographical area the gap between— under subsection (c)(7)(A), the extent of the tion, or any requirements or conditions ‘‘(i) the number of units with complete duration for which such rents will remain af- under which such amounts were provided, plumbing and kitchen facilities with a rent fordable; the State or State designated entity shall re- that is 30 percent or less of 30 percent of the ‘‘(v) the extent to which the application quire that, within 12 months after the deter- adjusted area median income as determined makes use of other funding sources; and mination of such misuse, the recipient shall by the Secretary that are occupied by ex- ‘‘(vi) the merits of an applicant’s proposed reimburse the State or State designated en- tremely low-income renter households or are eligible activity; tity for such misused amounts and return to vacant for rent; and ‘‘(D) requirements to ensure that grant the State or State designated entity any ‘‘(ii) the number of extremely low-income amounts provided to a State or State des- such amounts that remain unused or uncom- renter households. ignated entity under this section that are mitted for use. The remedies under this ‘‘(B) RULE OF CONSTRUCTION.—If the num- used for rental housing under subsection clause are in addition to any other remedies ber of units described in subparagraph (A)(i) (c)(7)(A) are used only for the benefit of ex- that may be available under law. exceeds the number of extremely low-income tremely low- and very low-income families; ‘‘(ii) DETERMINATION.—A determination is households as described in subparagraph and made in accordance with this clause if the (A)(ii), there is no shortage. ‘‘(E) requirements and standards for estab- determination is made by the Secretary or ‘‘(4) SHORTAGE OF STANDARD RENTAL UNITS lishment, by a State or State designated en- made by the State or State designated enti- BOTH AFFORDABLE AND AVAILABLE TO VERY tity, for use of grant amounts in 2009 and ty, provided that— LOW-INCOME RENTER HOUSEHOLDS.— subsequent years of performance goals, ‘‘(I) the State or State designated entity ‘‘(A) IN GENERAL.—The term ‘shortage of benchmarks, and timetables for the produc- provides notification of the determination to standard rental units both affordable and tion, preservation, and rehabilitation of af- the Secretary for review, in the discretion of available to very low-income renter house- fordable rental and homeownership housing the Secretary, of the determination; and holds’ means for any State or other geo- with such grant amounts. ‘‘(II) the Secretary does not subsequently graphical area the gap between— ‘‘(h) AFFORDABLE HOUSING TRUST FUND.— reverse the determination. ‘‘(i) the number of units with complete If, after the date of enactment of the Federal ‘‘(2) GRANTEES.— plumbing and kitchen facilities with a rent Housing Finance Regulatory Reform Act of ‘‘(A) REPORT.— that is 30 percent or less of 50 percent of the 2008, in any year, there is enacted any provi- ‘‘(i) IN GENERAL.—The Secretary shall re- adjusted area median income as determined sion of Federal law establishing an afford- quire each State or State designated entity by the Secretary that are occupied by very able housing trust fund other than under this receiving grant amounts in any given year low-income renter households or are vacant title for use only for grants to provide af- under this section to submit a report, for for rent; and fordable rental housing and affordable home- such year, to the Secretary that— ‘‘(ii) the number of very low-income renter ownership opportunities, and the subsequent ‘‘(I) describes the activities funded under households. year is a year referred to in subsection (c), this section during such year with such ‘‘(B) RULE OF CONSTRUCTION.—If the num- the Secretary shall in such subsequent year grant amounts; and ber of units described in subparagraph (A)(i) and any remaining years referred to in sub- ‘‘(II) the manner in which the State or exceeds the number of very low-income section (c) transfer to such affordable hous- State designated entity complied during households as described in subparagraph ing trust fund the aggregate amount allo- such year with any allocation plan estab- (A)(ii), there is no shortage. cated pursuant to subsection (c) in such lished pursuant to subsection (c). ‘‘(5) VERY LOW-INCOME FAMILY.—The term year. Notwithstanding any other provision of ‘‘(ii) PUBLIC AVAILABILITY.—The Secretary ‘very low-income family’ has the meaning law, assistance provided using amounts shall make such reports pursuant to this given such term in section 1303, except that transferred to such affordable housing trust subparagraph publicly available. such term includes any family that resides fund pursuant to this subsection may not be ‘‘(B) MISUSE OF FUNDS.—If the Secretary in a rural area that has an income that does used for any of the activities specified in determines, after reasonable notice and op- not exceed the poverty line (as such term is clauses (i) through (vi) of subsection portunity for hearing, that a State or State defined in section 673(2) of the Omnibus (c)(9)(D). designated entity has failed to comply sub- Budget Reconciliation Act of 1981 (42 U.S.C. ‘‘(i) FUNDING ACCOUNTABILITY AND TRANS- stantially with any provision of this section, 9902(2)), including any revision required by PARENCY.—Any grant under this section to a and until the Secretary is satisfied that such section) applicable to a family of the grantee by a State or State designated enti- there is no longer any such failure to com- size involved. ty, any assistance provided to a recipient by ply, the Secretary shall— ‘‘(6) VERY LOW-INCOME RENTER HOUSE- a State or State designated entity, and any ‘‘(i) reduce the amount of assistance under HOLDS.—The term ‘very low-income renter grant, award, or other assistance from an af- this section to the State or State designated households’ means a household whose in- fordable housing trust fund referred to in entity by an amount equal to the amount of come is in excess of 30 percent but not great- subsection (h) shall be considered a Federal grant amounts which were not used in ac- er than 50 percent of the area median in- award for purposes of the Federal Funding cordance with this section; come, with adjustments for smaller and larg- Accountability and Transparency Act of 2006 ‘‘(ii) require the State or State designated er families, as determined by the Secretary. (31 U.S.C. 6101 note). Upon the request of the entity to repay the Secretary any amount of ‘‘(g) REGULATIONS.— Director of the Office of Management and the grant which was not used in accordance ‘‘(1) IN GENERAL.—The Secretary shall issue Budget, the Secretary shall obtain and pro- with this section; regulations to carry out this section. vide such information regarding any such

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CAPITAL MAGNET FUND. awarded more than 15 percent of the aggre- Capital Magnet Fund, regarding assistance gate funds available for grants during any ‘‘(a) ESTABLISHMENT.—There is established from the Capital Magnet Fund, which shall in the Treasury of the United States a trust year from the Capital Magnet Fund. include— fund to be known as the Capital Magnet ‘‘(2) GEOGRAPHIC DIVERSITY.— ‘‘(I) appropriate periodic financial and ‘‘(A) GOAL.—The Secretary of the Treasury Fund, which shall be a special account with- project reporting, record retention, and shall seek to fund activities in geographi- in the Community Development Financial audit requirements for the duration of the cally diverse areas of economic distress, in- Institutions Fund. grant to the recipient to ensure compliance cluding metropolitan and underserved rural ‘‘(b) DEPOSITS TO TRUST FUND.—The Cap- with the limitations and requirements of areas in every State. ital Magnet Fund shall consist of— this section and the regulations under this ‘‘(B) DIVERSITY DEFINED.—For purposes of ‘‘(1) any amounts appropriated to the Fund section; and this paragraph, geographic diversity includes pursuant to section 1337(a); and ‘‘(II) any other requirements that the Sec- those areas that meet objective criteria of ‘‘(2) any amounts as are or may be trans- retary determines are necessary to ensure economic distress developed by the Sec- appropriate grant administration and com- ferred or credited to such Fund under any retary of the Treasury, which may include— pliance. other provisions of law.’’. ‘‘(i) the percentage of low-income families ‘‘(c) EXPENDITURES FROM TRUST FUND.— or the extent of poverty; ‘‘(B) MISUSE OF FUNDS.—If the Secretary of Amounts in the Capital Magnet Fund shall ‘‘(ii) the rate of unemployment or under- the Treasury determines, after reasonable be available to the Secretary of the Treasury employment; notice and opportunity for hearing, that a to carry out a competitive grant program to ‘‘(iii) extent of blight and disinvestment; grantee has failed to comply substantially attract private capital for and increase in- ‘‘(iv) projects that target extremely low-, with any provision of this section and until vestment in— very low-, and low-income families in or out- the Secretary is satisfied that there is no ‘‘(1) the development, preservation, reha- side a designated economic distress area; or longer any such failure to comply, the Sec- bilitation, or purchase of affordable housing ‘‘(v) any other criteria designated by the retary shall— for primarily extremely low-, very low-, and Secretary of the Treasury. ‘‘(i) reduce the amount of assistance under low-income families; and ‘‘(3) LEVERAGE OF FUNDS.—Each grant from this section to the grantee by an amount ‘‘(2) economic development activities or the Capital Magnet Fund awarded under this equal to the amount of Capital Magnet Fund community service facilities, such as day section shall be reasonably expected to re- grant amounts which were not used in ac- care centers, workforce development centers, sult in eligible housing, or economic and cordance with this section; and health care clinics, which in conjunction community development projects that sup- ‘‘(ii) require the grantee to repay the Sec- with affordable housing activities implement port or sustain an affordable housing project retary any amount of the Capital Magnet a concerted strategy to stabilize or revitalize funded by a grant under this section whose Fund grant amounts which were not used in a low-income area or underserved rural area. aggregate costs total at least 10 times the accordance with this section; ‘‘(d) FEDERAL ASSISTANCE.—All assistance grant amount. ‘‘(iii) limit the availability of assistance provided using amounts in the Capital Mag- ‘‘(4) COMMITMENT FOR USE DEADLINE.— under this section to the grantee to activi- net Fund shall be considered to be Federal fi- Amounts made available for grants under ties or recipients not affected by such failure nancial assistance. this section shall be committed for use with- to comply; or ‘‘(e) ELIGIBLE GRANTEES.—A grant under in 2 years of the date of such allocation. The ‘‘(iv) terminate any assistance under this this section may be made, pursuant to such Secretary of the Treasury shall recapture section to the grantee. requirements as the Secretary of the Treas- into the Capital Magnet Fund any amounts ‘‘(i) PERIODIC REPORTS.— ury shall establish for experience and success not so used or committed for use and allo- ‘‘(1) IN GENERAL.—The Secretary of the in attracting private financing and carrying cate such amounts in the first year after Treasury shall submit a report, on a periodic out the types of activities proposed under such recapture. basis, to the Committee on Banking, Hous- the application of the grantee, only to— ‘‘(5) LOBBYING RESTRICTIONS.—No assist- ing, and Urban Affairs of the Senate and the ‘‘(1) a Treasury certified community devel- ance or amounts made available under this Committee on Financial Services of the opment financial institution; or section may be expended by an eligible ‘‘(2) a nonprofit organization having as 1 of grantee to pay any person to influence or at- House of Representatives describing the ac- its principal purposes the development or tempt to influence any agency, elected offi- tivities to be funded under this section. management of affordable housing. cial, officer or employee of a State or local ‘‘(2) REPORTS AVAILABLE TO PUBLIC.—The Secretary of the Treasury shall make the re- ‘‘(f) ELIGIBLE USES.—Grant amounts government in connection with the making, awarded from the Capital Magnet Fund pur- award, extension, continuation, renewal, ports required under paragraph (1) publicly suant to this section may be used for the amendment, or modification of any State or available. purposes described in paragraphs (1) and (2) local government contract, grant, loan, or ‘‘(j) REGULATIONS.— of subsection (c), including for the following cooperative agreement as such terms are de- ‘‘(1) IN GENERAL.—The Secretary of the uses: fined in section 1352 of title 31, United States Treasury shall issue regulations to carry out ‘‘(1) To provide loan loss reserves. Code. this section. ‘‘(2) To capitalize a revolving loan fund. ‘‘(6) PROHIBITION OF CONSIDERATION OF USE ‘‘(2) REQUIRED CONTENTS.—The regulations ‘‘(3) To capitalize an affordable housing FOR MEETING HOUSING GOALS OR DUTY TO issued under this subsection shall include— fund. SERVE.—In determining the compliance of ‘‘(A) authority for the Secretary to audit, ‘‘(4) To capitalize a fund to support activi- the enterprises with the housing goals under provide for an audit, or otherwise verify an ties described in subsection (c)(2). this section and the duty to serve under- enterprise’s activities, to ensure compliance ‘‘(5) For risk-sharing loans. served markets under section 1335, the Direc- with this section; ‘‘(g) APPLICATIONS.— tor of the Federal Housing Finance Agency ‘‘(B) a requirement that the Secretary en- ‘‘(1) IN GENERAL.—The Secretary of the may not consider any Capital Magnet Fund sure that the allocation of each enterprise is Treasury shall provide, in a competitive ap- amounts used under this section for eligible audited not less than annually to ensure plication process established by regulation, activities under subsection (f). The Director compliance with this section; and for eligible grantees under subsection (e) to of the Federal Housing Finance Agency shall ‘‘(C) requirements for a process for applica- submit applications for Capital Magnet Fund give credit toward the achievement of such tion to, and selection by, the Secretary for grants to the Secretary at such time and in housing goals and such duty to serve under- activities to be funded with amounts from such manner as the Secretary shall deter- served markets to purchases by the enter- the Capital Magnet Fund, which shall pro- mine. prises of mortgages for housing that receives vide that— ‘‘(2) CONTENT OF APPLICATION.—The appli- funding from Capital Magnet Fund grant ‘‘(i) funds be fairly distributed to urban, cation required under paragraph (1) shall in- amounts, but only to the extent that such suburban, and rural areas; and clude a detailed description of— purchases by the enterprises are funded ‘‘(ii) selection shall be based upon specific ‘‘(A) the types of affordable housing, eco- other than with such grant amounts. criteria, including a prioritization of funding nomic, and community revitalization ‘‘(7) ACCOUNTABILITY OF RECIPIENTS AND based upon— projects that support or sustain residents of GRANTEES.— ‘‘(I) the ability to use such funds to gen- an affordable housing project funded by a ‘‘(A) TRACKING OF FUNDS.—The Secretary of erate additional investments; grant under this section for which such grant the Treasury shall— ‘‘(II) affordable housing need (taking into amounts would be used, including the pro- ‘‘(i) require each grantee to develop and account the distinct needs of different re- posed use of eligible grants as authorized maintain a system to ensure that each re- gions of the country); and under this section; cipient of assistance from the Capital Mag- ‘‘(III) ability to obligate amounts and un- ‘‘(B) the types, sources, and amounts of net Fund uses such amounts in accordance dertake activities so funded in a timely man- other funding for such projects; and with this section, the regulations issued ner.’’.

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SEC. 1132. FINANCIAL EDUCATION AND COUN- (f) STUDY AND REPORT ON EFFECTIVENESS (d) REORGANIZATION.—If the Director deter- SELING. AND IMPACT.— mines, after the end of the 1-year period be- (a) GOALS.—Financial education and coun- (1) IN GENERAL.—The Comptroller General ginning on the effective date of the Federal seling under this section shall have the goal of the United States shall conduct a study on Housing Finance Regulatory Reform Act of of— the effectiveness and impact of the grant 2008, that a reorganization of the combined (1) increasing the financial knowledge and program established under this section. Not workforce is required, that reorganization decision making capabilities of prospective later than 3 years after the date of enact- shall be deemed a major reorganization for homebuyers; ment of this Act, the Comptroller General purposes of affording affected employee re- (2) assisting prospective homebuyers to de- shall submit a report on the results of such tirement under section 8336(d)(2) or velop monthly budgets, build personal sav- study to the Committee on Banking, Hous- 8414(b)(1)(B) of title 5, United States Code. ings, finance or plan for major purchases, re- ing, and Urban Affairs of the Senate and the (e) EMPLOYEE BENEFIT PROGRAMS.— duce their debt, improve their financial sta- Committee on Financial Services of the (1) IN GENERAL.—Any employee described bility, and set and reach their financial House of Representatives. under subsection (a) accepting employment goals; (2) CONTENT OF STUDY.—The study required with the Agency as a result of a transfer (3) helping prospective homebuyers to im- under paragraph (1) shall include an evalua- under subsection (a) may retain, for 12 prove their credit scores by understanding tion of the following: months after the date on which such transfer the relationship between their credit his- (A) The effectiveness of the grant program occurs, membership in any employee benefit tories and their credit scores; and established under this section in improving program of the Agency or the Department of (4) educating prospective homebuyers the financial situation of homeowners and Housing and Urban Development, as applica- about the options available to build savings prospective homebuyers served by the grant ble, including insurance, to which such em- for short- and long-term goals. program. ployee belongs on such effective date, if— (A) the employee does not elect to give up (b) GRANTS.— (B) The extent to which financial edu- the benefit or membership in the program; (1) IN GENERAL.—The Secretary of the cation and counseling services have resulted and Treasury (in this section referred to as the in positive behavioral changes. (B) the benefit or program is continued by ‘‘Secretary’’) shall make grants to eligible (C) The effectiveness and quality of the eli- the Director of the Federal Housing Finance organizations to enable such organizations gible organizations providing financial edu- Agency. to provide a range of financial education and cation and counseling services under the (2) COST DIFFERENTIAL.— counseling services to prospective home- grant program. (A) IN GENERAL.—The difference in the buyers. (g) REGULATIONS.—The Secretary is au- (2) SELECTION.—The Secretary shall select thorized to promulgate such regulations as costs between the benefits which would have eligible organizations to receive assistance may be necessary to implement and admin- been provided by the Department of Housing under this section based on their experience ister the grant program authorized by this and Urban Development and those provided and ability to provide financial education section. by this section shall be paid by the Director. (B) HEALTH INSURANCE.—If any employee and counseling services that result in docu- SEC. 1133. TRANSFER AND RIGHTS OF CERTAIN mented positive behavioral changes. HUD EMPLOYEES. elects to give up membership in a health in- (c) ELIGIBLE ORGANIZATIONS.— (a) TRANSFER.—Each employee of the De- surance program or the health insurance (1) IN GENERAL.—For purposes of this sec- partment of Housing and Urban Development program is not continued by the Director, tion, the term ‘‘eligible organization’’ means whose position responsibilities primarily in- the employee shall be permitted to select an an organization that is— volve the establishment and enforcement of alternate Federal health insurance program (A) certified in accordance with section the housing goals under subpart B of part 2 not later than 30 days after the date of such 106(e)(1) of the Housing and Urban Develop- of subtitle A of the Federal Housing Enter- election or notice, without regard to any ment Act of 1968 (12 U.S.C. 1701x(e)); or prises Financial Safety and Soundness Act of other regularly scheduled open season. (B) certified by the Office of Financial 1992 (12 U.S.C. 4561 et seq.) shall be trans- Subtitle C—Prompt Corrective Action Education of the Department of the Treas- ferred to the Federal Housing Finance Agen- SEC. 1141. CRITICAL CAPITAL LEVELS. ury for purposes of this section, in accord- cy for employment, not later than the effec- (a) IN GENERAL.—Section 1363 of the Fed- ance with paragraph (2). tive date of the Federal Housing Finance eral Housing Enterprises Financial Safety (2) OFE CERTIFICATION.—To be certified by Regulatory Reform Act of 2008, and such and Soundness Act of 1992 (12 U.S.C. 4613) is the Office of Financial Education for pur- transfer shall be deemed a transfer of func- amended— poses of this section, an eligible organization tion for purposes of section 3503 of title 5, (1) by striking ‘‘For’’ and inserting ‘‘(a) shall be— United States Code. ENTERPRISES.—FOR’’; and (A) a housing counseling agency certified (b) GUARANTEED POSITIONS.— (2) by adding at the end the following new by the Secretary of Housing and Urban De- (1) IN GENERAL.—Each employee trans- subsection: velopment under section 106(e) of the Hous- ferred under subsection (a) shall be guaran- ‘‘(b) FEDERAL HOME LOAN BANKS.— ing and Urban Development Act of 1968; teed a position with the same status, tenure, ‘‘(1) IN GENERAL.—For purposes of this sub- (B) a State, local, or tribal government grade, and pay as that held on the day imme- title, the critical capital level for each Fed- agency; diately preceding the transfer. eral Home Loan Bank shall be such amount (C) a community development financial in- (2) NO INVOLUNTARY SEPARATION OR REDUC- of capital as the Director shall, by regula- stitution (as defined in section 103(5) of the TION.—An employee transferred under sub- tion, require. Community Development Banking and Fi- section (a) holding a permanent position on ‘‘(2) CONSIDERATION OF OTHER CRITICAL CAP- nancial Institutions Act of 1994 (12 U.S.C. the day immediately preceding the transfer ITAL LEVELS.—In establishing the critical 4702(5)) or a credit union; or may not be involuntarily separated or re- capital level under paragraph (1) for the Fed- (D) any collaborative effort of entities de- duced in grade or compensation during the eral Home Loan Banks, the Director shall scribed in any of subparagraphs (A) through 12-month period beginning on the date of take due consideration of the critical capital (C). transfer, except for cause, or, in the case of level established under subsection (a) for the (d) AUTHORITY FOR PILOT PROJECTS.— a temporary employee, separated in accord- enterprises, with such modifications as the (1) IN GENERAL.—The Secretary of the ance with the terms of the appointment of Director determines to be appropriate to re- Treasury shall authorize not more than 5 the employee. flect the difference in operations between pilot project grants to eligible organizations (c) APPOINTMENT AUTHORITY FOR EXCEPTED the banks and the enterprises.’’. under subsection (c) in order to— AND SENIOR EXECUTIVE SERVICE EMPLOY- (b) REGULATIONS.—Not later than the expi- (A) carry out the services under this sec- EES.— ration of the 180-day period beginning on the tion; and (1) IN GENERAL.—In the case of an employee date of enactment of this Act, the Director (B) provide such other services that will occupying a position in the excepted service of the Federal Housing Finance Agency shall improve the financial stability and economic or the Senior Executive Service, any ap- issue regulations pursuant to section 1363(b) condition of low- and moderate-income and pointment authority established under law of the Federal Housing Enterprises Financial low-wealth individuals. or by regulations of the Office of Personnel Safety and Soundness Act of 1992 (as added (2) GOAL.—The goal of the pilot project Management for filling such position shall by this section) establishing the critical cap- grants under this subsection is to— be transferred, subject to paragraph (2). ital level under such section. (A) identify successful methods resulting (2) DECLINE OF TRANSFER.—The Director SEC. 1142. CAPITAL CLASSIFICATIONS. in positive behavioral change for financial may decline a transfer of authority under (a) IN GENERAL.—Section 1364 of the Fed- empowerment; and paragraph (1) to the extent that such author- eral Housing Enterprises Financial Safety (B) establish program models for organiza- ity relates to— and Soundness Act of 1992 (12 U.S.C. 4614) is tions to carry out effective counseling serv- (A) a position excepted from the competi- amended— ices. tive service because of its confidential, pol- (1) in the heading for subsection (a) by (e) AUTHORIZATION OF APPROPRIATIONS.— icymaking, policy-determining, or policy-ad- striking ‘‘In General’’ and inserting ‘‘Enter- There are authorized to be appropriated to vocating character; or prises’’; the Secretary such sums as are necessary to (B) a noncareer position in the Senior Ex- (2) in subsection (c)— carry out this section and for the provision ecutive Service (within the meaning of sec- (A) by striking ‘‘subsection (b)’’ and insert- of additional financial educational services. tion 3132(a)(7) of title 5, United States Code). ing ‘‘subsection (c)’’;

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00081 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6054 CONGRESSIONAL RECORD — SENATE June 24, 2008 (B) by striking ‘‘enterprises’’ and inserting ests if the repurchase, redemption, retire- (C) in paragraph (2)— ‘‘regulated entities’’; and ment, or other acquisition— (i) by striking ‘‘make, in good faith, rea- (C) by striking the last sentence; ‘‘(A) is made in connection with the sonable efforts necessary to’’; and (3) by redesignating subsections (c) (as so issuance of additional shares or obligations (ii) by striking the period at the end and amended by paragraph (2) of this subsection) of the regulated entity in at least an equiva- inserting ‘‘in any material respect.’’; and and (d) as subsections (d) and (f), respec- lent amount; and (6) by striking subsection (c) and inserting tively; ‘‘(B) will reduce the financial obligations the following: (4) by striking subsection (b) and inserting of the regulated entity or otherwise improve ‘‘(c) OTHER DISCRETIONARY SAFEGUARDS.— the following: the financial condition of the entity.’’. The Director may take, with respect to an ‘‘(b) FEDERAL HOME LOAN BANKS.— (b) REGULATIONS.—Not later than the expi- undercapitalized regulated entity, any of the ‘‘(1) ESTABLISHMENT AND CRITERIA.—For ration of the 180-day period beginning on the actions authorized to be taken under section purposes of this subtitle, the Director shall, date of enactment of this Act, the Director 1366 with respect to a significantly under- by regulation— of the Federal Housing Finance Agency shall capitalized regulated entity, if the Director ‘‘(A) establish the capital classifications issue regulations to carry out section 1364(b) determines that such actions are necessary specified under paragraph (2) for the Federal of the Federal Housing Enterprises Financial to carry out the purpose of this subtitle.’’. Safety and Soundness Act of 1992 (as added Home Loan Banks; by this section), relating to capital classi- SEC. 1144. SUPERVISORY ACTIONS APPLICABLE ‘‘(B) establish criteria for each such capital fications for the Federal Home Loan Banks. TO SIGNIFICANTLY UNDERCAPITAL- classification based on the amount and types IZED REGULATED ENTITIES. of capital held by a bank and the risk-based, SEC. 1143. SUPERVISORY ACTIONS APPLICABLE TO UNDERCAPITALIZED REGULATED Section 1366 of the Federal Housing Enter- minimum, and critical capital levels for the ENTITIES. prises Financial Safety and Soundness Act of banks and taking due consideration of the Section 1365 of the Federal Housing Enter- 1992 (12 U.S.C. 4616) is amended— capital classifications established under sub- prises Financial Safety and Soundness Act of (1) in subsection (a)(2), by striking ‘‘under- section (a) for the enterprises, with such 1992 (12 U.S.C. 4615) is amended— capitalized enterprise’’ and inserting ‘‘under- modifications as the Director determines to (1) by striking ‘‘the enterprise’’ each place capitalized’’; be appropriate to reflect the difference in op- that term appears and inserting ‘‘the regu- (2) by striking ‘‘the enterprise’’ each place erations between the banks and the enter- lated entity’’; that term appears and inserting ‘‘the regu- prises; and (2) by striking ‘‘An enterprise’’ each place lated entity’’; ‘‘(C) shall classify the Federal Home Loan that term appears and inserting ‘‘A regu- (3) by striking ‘‘An enterprise’’ each place Banks according to such capital classifica- lated entity’’; that term appears and inserting ‘‘A regu- tions. (3) by striking ‘‘an enterprise’’ each place lated entity’’; ‘‘(2) CLASSIFICATIONS.—The capital classi- that term appears and inserting ‘‘a regulated (4) by striking ‘‘an enterprise’’ each place fications specified under this paragraph are— entity’’; that term appears and inserting ‘‘a regulated ‘‘(A) adequately capitalized; (4) in subsection (a)— entity’’; ‘‘(B) undercapitalized; (A) by redesignating paragraphs (1) and (2) (5) in subsection (b)— ‘‘(C) significantly undercapitalized; and as paragraphs (2) and (3), respectively; (A) in the subsection heading, by striking ‘‘(D) critically undercapitalized. (B) by inserting before paragraph (2), as re- ‘‘DISCRETIONARY SUPERVISORY’’ and inserting ‘‘(c) DISCRETIONARY CLASSIFICATION.— designated, the following: ‘‘SPECIFIC’’; ‘‘(1) GROUNDS FOR RECLASSIFICATION.—The ‘‘(1) REQUIRED MONITORING.—The Director (B) in the matter preceding paragraph (1), Director may reclassify a regulated entity shall— by striking ‘‘may, at any time, take any’’ under paragraph (2) if— ‘‘(A) closely monitor the condition of any and inserting ‘‘shall carry out this section ‘‘(A) at any time, the Director determines undercapitalized regulated entity; by taking, at any time, 1 or more’’; in writing that the regulated entity is engag- ‘‘(B) closely monitor compliance with the (C) by striking paragraph (6); ing in conduct that could result in a rapid capital restoration plan, restrictions, and re- (D) by redesignating paragraph (5) as para- depletion of core or total capital or the value quirements imposed on an undercapitalized graph (6); of collateral pledged as security has de- regulated entity under this section; and (E) by inserting after paragraph (4) the fol- creased significantly or that the value of the ‘‘(C) periodically review the plan, restric- lowing: property subject to any mortgage held by tions, and requirements applicable to an ‘‘(5) IMPROVEMENT OF MANAGEMENT.—Take the regulated entity (or securitized in the undercapitalized regulated entity to deter- 1 or more of the following actions: case of an enterprise) has decreased signifi- mine whether the plan, restrictions, and re- ‘‘(A) NEW ELECTION OF BOARD.—Order a new cantly; quirements are achieving the purpose of this election for the board of directors of the reg- ‘‘(B) after notice and an opportunity for section.’’; and ulated entity. hearing, the Director determines that the (C) by adding at the end the following: ‘‘(B) DISMISSAL OF DIRECTORS OR EXECUTIVE regulated entity is in an unsafe or unsound ‘‘(4) RESTRICTION OF ASSET GROWTH.—An OFFICERS.—Require the regulated entity to condition; or undercapitalized regulated entity shall not dismiss from office any director or executive ‘‘(C) pursuant to section 1371(b), the Direc- permit its average total assets during any officer who had held office for more than 180 tor deems the regulated entity to be engag- calendar quarter to exceed its average total days immediately before the date on which ing in an unsafe or unsound practice. assets during the preceding calendar quarter, the regulated entity became undercapital- ‘‘(2) RECLASSIFICATION.—In addition to any unless— ized. Dismissal under this subparagraph shall other action authorized under this title, in- ‘‘(A) the Director has accepted the capital not be construed to be a removal pursuant to cluding the reclassification of a regulated restoration plan of the regulated entity; the enforcement powers of the Director entity for any reason not specified in this ‘‘(B) any increase in total assets is con- under section 1377. subsection, if the Director takes any action sistent with the capital restoration plan; and ‘‘(C) EMPLOY QUALIFIED EXECUTIVE OFFI- described in paragraph (1), the Director may ‘‘(C) the ratio of tangible equity to assets CERS.—Require the regulated entity to em- classify a regulated entity— of the regulated entity increases during the ploy qualified executive officers (who, if the ‘‘(A) as undercapitalized, if the regulated calendar quarter at a rate sufficient to en- Director so specifies, shall be subject to ap- entity is otherwise classified as adequately able the regulated entity to become ade- proval by the Director).’’; and capitalized; quately capitalized within a reasonable time. (F) by adding at the end the following: ‘‘(B) as significantly undercapitalized, if ‘‘(5) PRIOR APPROVAL OF ACQUISITIONS AND ‘‘(7) OTHER ACTION.—Require the regulated the regulated entity is otherwise classified NEW ACTIVITIES.—An undercapitalized regu- entity to take any other action that the Di- as undercapitalized; and lated entity shall not, directly or indirectly, rector determines will better carry out the ‘‘(C) as critically undercapitalized, if the acquire any interest in any entity or engage purpose of this section than any of the other regulated entity is otherwise classified as in any new activity, unless— actions specified in this subsection.’’; and significantly undercapitalized.’’; and ‘‘(A) the Director has accepted the capital (6) by striking subsection (c) and inserting (5) by inserting after subsection (d) (as so restoration plan of the regulated entity, the the following: redesignated by paragraph (3) of this sub- regulated entity is implementing the plan, ‘‘(c) RESTRICTION ON COMPENSATION OF EX- section), the following new subsection: and the Director determines that the pro- ECUTIVE OFFICERS.—A regulated entity that ‘‘(e) RESTRICTION ON CAPITAL DISTRIBU- posed action is consistent with and will fur- is classified as significantly undercapitalized TIONS.— ther the achievement of the plan; or in accordance with section 1364 may not, ‘‘(1) IN GENERAL.—A regulated entity shall ‘‘(B) the Director determines that the pro- without prior written approval by the Direc- make no capital distribution if, after making posed action will further the purpose of this tor— the distribution, the regulated entity would subtitle.’’; ‘‘(1) pay any bonus to any executive offi- be undercapitalized. (5) in subsection (b)— cer; or ‘‘(2) EXCEPTION.—Notwithstanding para- (A) in the subsection heading, by striking ‘‘(2) provide compensation to any executive graph (1), the Director may permit a regu- ‘‘DISCRETIONARY’’; officer at a rate exceeding the average rate lated entity, to the extent appropriate or ap- (B) in the matter preceding paragraph (1), of compensation of that officer (excluding plicable, to repurchase, redeem, retire, or by striking ‘‘may’’ and inserting ‘‘shall’’; bonuses, stock options, and profit sharing) otherwise acquire shares or ownership inter- and during the 12 calendar months preceding the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00082 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6055 calendar month in which the regulated enti- ‘‘(iv) materially fails to implement a cap- tions as the Agency determines to be appro- ty became significantly undercapitalized.’’. ital restoration plan submitted and accepted priate regarding the conduct of SEC. 1145. AUTHORITY OVER CRITICALLY UNDER- under section 1369C. conservatorships or receiverships. CAPITALIZED REGULATED ENTITIES. ‘‘(J) CRITICAL UNDERCAPITALIZATION.—The ‘‘(2) GENERAL POWERS.— (a) IN GENERAL.—Section 1367 of the Fed- regulated entity is critically undercapital- ‘‘(A) SUCCESSOR TO REGULATED ENTITY.— eral Housing Enterprises Financial Safety ized, as defined in section 1364(a)(4). The Agency shall, as conservator or receiver, and Soundness Act of 1992 (12 U.S.C. 4617) is ‘‘(K) MONEY LAUNDERING.—The Attorney and by operation of law, immediately suc- amended to read as follows: General notifies the Director in writing that ceed to— the regulated entity has been found guilty of ‘‘(i) all rights, titles, powers, and privileges ‘‘SEC. 1367. AUTHORITY OVER CRITICALLY UNDERCAPITALIZED REGULATED a criminal offense under section 1956 or 1957 of the regulated entity, and of any stock- ENTITIES. of title 18, United States Code, or section holder, officer, or director of such regulated 5322 or 5324 of title 31, United States Code. entity with respect to the regulated entity ‘‘(a) APPOINTMENT OF THE AGENCY AS CON- ‘‘(4) MANDATORY RECEIVERSHIP.— and the assets of the regulated entity; and SERVATOR OR RECEIVER.— ‘‘(A) IN GENERAL.—The Director shall ap- ‘‘(ii) title to the books, records, and assets ‘‘(1) IN GENERAL.—Notwithstanding any other provision of Federal or State law, the point the Agency as receiver for a regulated of any other legal custodian of such regu- entity if the Director determines, in writing, Director may appoint the Agency as conser- lated entity. that— ‘‘(B) OPERATE THE REGULATED ENTITY.—The vator or receiver for a regulated entity in ‘‘(i) the assets of the regulated entity are, Agency may, as conservator or receiver— the manner provided under paragraph (2) or and during the preceding 60 calendar days ‘‘(i) take over the assets of and operate the (4). All references to the conservator or re- have been, less than the obligations of the regulated entity with all the powers of the ceiver under this section are references to regulated entity to its creditors and others; shareholders, the directors, and the officers the Agency acting as conservator or re- or of the regulated entity and conduct all busi- ceiver. ‘‘(ii) the regulated entity is not, and during ness of the regulated entity; ‘‘(2) DISCRETIONARY APPOINTMENT.—The the preceding 60 calendar days has not been, ‘‘(ii) collect all obligations and money due Agency may, at the discretion of the Direc- generally paying the debts of the regulated the regulated entity; tor, be appointed conservator or receiver for entity (other than debts that are the subject ‘‘(iii) perform all functions of the regulated the purpose of reorganizing, rehabilitating, of a bona fide dispute) as such debts become entity in the name of the regulated entity or winding up the affairs of a regulated enti- due. which are consistent with the appointment ty. ‘‘(B) PERIODIC DETERMINATION REQUIRED FOR as conservator or receiver; ‘‘(3) GROUNDS FOR DISCRETIONARY APPOINT- CRITICALLY UNDERCAPITALIZED REGULATED EN- ‘‘(iv) preserve and conserve the assets and MENT OF CONSERVATOR OR RECEIVER.—The TITY.—If a regulated entity is critically property of the regulated entity; and grounds for appointing conservator or re- undercapitalized, the Director shall make a ‘‘(v) provide by contract for assistance in ceiver for any regulated entity under para- determination, in writing, as to whether the fulfilling any function, activity, action, or graph (2) are as follows: regulated entity meets the criteria specified duty of the Agency as conservator or re- ‘‘(A) SUBSTANTIAL DISSIPATION.—Substan- in clause (i) or (ii) of subparagraph (A)— ceiver. tial dissipation of assets or earnings due to— ‘‘(i) not later than 30 calendar days after ‘‘(C) FUNCTIONS OF OFFICERS, DIRECTORS, ‘‘(i) any violation of any provision of Fed- the regulated entity initially becomes criti- AND SHAREHOLDERS OF A REGULATED ENTITY.— eral or State law; or cally undercapitalized; and The Agency may, by regulation or order, ‘‘(ii) any unsafe or unsound practice. ‘‘(ii) at least once during each succeeding provide for the exercise of any function by ‘‘(B) UNSAFE OR UNSOUND CONDITION.—An 30-calendar day period. any stockholder, director, or officer of any unsafe or unsound condition to transact ‘‘(C) DETERMINATION NOT REQUIRED IF RE- regulated entity for which the Agency has business. CEIVERSHIP ALREADY IN PLACE.—Subpara- been named conservator or receiver. ‘‘(C) CEASE AND DESIST ORDERS.—Any will- graph (B) does not apply with respect to a ‘‘(D) POWERS AS CONSERVATOR.—The Agen- ful violation of a cease and desist order that regulated entity in any period during which cy may, as conservator, take such action as has become final. the Agency serves as receiver for the regu- may be— ‘‘(D) CONCEALMENT.—Any concealment of lated entity. ‘‘(i) necessary to put the regulated entity the books, papers, records, or assets of the ‘‘(D) RECEIVERSHIP TERMINATES CON- in a sound and solvent condition; and regulated entity, or any refusal to submit SERVATORSHIP.—The appointment of the ‘‘(ii) appropriate to carry on the business the books, papers, records, or affairs of the Agency as receiver of a regulated entity of the regulated entity and preserve and con- regulated entity, for inspection to any exam- under this section shall immediately termi- serve the assets and property of the regu- iner or to any lawful agent of the Director. nate any conservatorship established for the lated entity. ‘‘(E) INABILITY TO MEET OBLIGATIONS.—The regulated entity under this title. ‘‘(E) ADDITIONAL POWERS AS RECEIVER.—In regulated entity is likely to be unable to pay ‘‘(5) JUDICIAL REVIEW.— any case in which the Agency is acting as re- its obligations or meet the demands of its ‘‘(A) IN GENERAL.—If the Agency is ap- ceiver, the Agency shall place the regulated creditors in the normal course of business. pointed conservator or receiver under this entity in liquidation and proceed to realize ‘‘(F) LOSSES.—The regulated entity has in- section, the regulated entity may, within 30 upon the assets of the regulated entity in curred or is likely to incur losses that will days of such appointment, bring an action in such manner as the Agency deems appro- deplete all or substantially all of its capital, the United States district court for the judi- priate, including through the sale of assets, and there is no reasonable prospect for the cial district in which the home office of such the transfer of assets to a limited-life regu- regulated entity to become adequately cap- regulated entity is located, or in the United lated entity established under subsection (i), italized (as defined in section 1364(a)(1)). States District Court for the District of Co- or the exercise of any other rights or privi- ‘‘(G) VIOLATIONS OF LAW.—Any violation of lumbia, for an order requiring the Agency to leges granted to the Agency under this para- any law or regulation, or any unsafe or un- remove itself as conservator or receiver. graph. sound practice or condition that is likely ‘‘(B) REVIEW.—Upon the filing of an action ‘‘(F) ORGANIZATION OF NEW ENTERPRISE.— to— under subparagraph (A), the court shall, The Agency shall, as receiver for an enter- ‘‘(i) cause insolvency or substantial dis- upon the merits, dismiss such action or di- prise, organize a successor enterprise that sipation of assets or earnings; or rect the Agency to remove itself as such con- will operate pursuant to subsection (i). ‘‘(ii) weaken the condition of the regulated servator or receiver. ‘‘(G) TRANSFER OR SALE OF ASSETS AND LI- entity. ‘‘(6) DIRECTORS NOT LIABLE FOR ACQUIESCING ABILITIES.—The Agency may, as conservator ‘‘(H) CONSENT.—The regulated entity, by IN APPOINTMENT OF CONSERVATOR OR RE- or receiver, transfer or sell any asset or li- resolution of its board of directors or its CEIVER.—The members of the board of direc- ability of the regulated entity in default, and shareholders or members, consents to the ap- tors of a regulated entity shall not be liable may do so without any approval, assign- pointment. to the shareholders or creditors of the regu- ment, or consent with respect to such trans- ‘‘(I) UNDERCAPITALIZATION.—The regulated lated entity for acquiescing in or consenting fer or sale. entity is undercapitalized or significantly in good faith to the appointment of the ‘‘(H) PAYMENT OF VALID OBLIGATIONS.—The undercapitalized (as defined in section Agency as conservator or receiver for that Agency, as conservator or receiver, shall, to 1364(a)(3)), and— regulated entity. the extent of proceeds realized from the per- ‘‘(i) has no reasonable prospect of becom- ‘‘(7) AGENCY NOT SUBJECT TO ANY OTHER formance of contracts or sale of the assets of ing adequately capitalized; FEDERAL AGENCY.—When acting as conser- a regulated entity, pay all valid obligations ‘‘(ii) fails to become adequately capital- vator or receiver, the Agency shall not be of the regulated entity that are due and pay- ized, as required by— subject to the direction or supervision of any able at the time of the appointment of the ‘‘(I) section 1365(a)(1) with respect to a reg- other agency of the United States or any Agency as conservator or receiver, in accord- ulated entity; or State in the exercise of the rights, powers, ance with the prescriptions and limitations ‘‘(II) section 1366(a)(1) with respect to a sig- and privileges of the Agency. of this section. nificantly undercapitalized regulated entity; ‘‘(b) POWERS AND DUTIES OF THE AGENCY AS ‘‘(I) SUBPOENA AUTHORITY.— ‘‘(iii) fails to submit a capital restoration CONSERVATOR OR RECEIVER.— ‘‘(i) IN GENERAL.— plan acceptable to the Agency within the ‘‘(1) RULEMAKING AUTHORITY OF THE AGEN- ‘‘(I) AGENCY AUTHORITY.—The Agency may, time prescribed under section 1369C; or CY.—The Agency may prescribe such regula- as conservator or receiver, and for purposes

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of carrying out any power, authority, or ‘‘(4) RULEMAKING AUTHORITY RELATING TO ‘‘(i) STATUTE OF LIMITATION TOLLED.—For duty with respect to a regulated entity (in- DETERMINATION OF CLAIMS.—Subject to sub- purposes of any applicable statute of limita- cluding determining any claim against the section (c), the Director may prescribe regu- tions, the filing of a claim with the receiver regulated entity and determining and real- lations regarding the allowance or disallow- shall constitute a commencement of an ac- izing upon any asset of any person in the ance of claims by the receiver and providing tion. course of collecting money due the regulated for administrative determination of claims ‘‘(ii) NO PREJUDICE TO OTHER ACTIONS.—Sub- entity), exercise any power established under and review of such determination. ject to paragraph (10), the filing of a claim section 1348. ‘‘(5) PROCEDURES FOR DETERMINATION OF with the receiver shall not prejudice any ‘‘(II) APPLICABILITY OF LAW.—The provi- CLAIMS.— right of the claimant to continue any action sions of section 1348 shall apply with respect ‘‘(A) DETERMINATION PERIOD.— which was filed before the date of the ap- to the exercise of any power under this sub- ‘‘(i) IN GENERAL.—Before the end of the 180- pointment of the receiver, subject to the de- paragraph, in the same manner as such pro- day period beginning on the date on which termination of claims by the receiver. visions apply under that section. any claim against a regulated entity is filed ‘‘(6) PROVISION FOR JUDICIAL DETERMINATION ‘‘(ii) SUBPOENA.—A subpoena or subpoena with the Agency as receiver, the Agency OF CLAIMS.— duces tecum may be issued under clause (i) shall determine whether to allow or disallow ‘‘(A) IN GENERAL.—The claimant may file only by, or with the written approval of, the the claim and shall notify the claimant of suit on a claim (or continue an action com- Director, or the designee of the Director. any determination with respect to such menced before the appointment of the re- claim. ceiver) in the district or territorial court of ‘‘(iii) RULE OF CONSTRUCTION.—This sub- ‘‘(ii) EXTENSION OF TIME.—The period de- the United States for the district within section shall not be construed to limit any scribed in clause (i) may be extended by a which the principal place of business of the rights that the Agency, in any capacity, written agreement between the claimant and regulated entity is located or the United might otherwise have under section 1317 or the Agency. States District Court for the District of Co- 1379B. ‘‘(iii) MAILING OF NOTICE SUFFICIENT.—The lumbia (and such court shall have jurisdic- ‘‘(J) INCIDENTAL POWERS.—The Agency requirements of clause (i) shall be deemed to tion to hear such claim), before the end of may, as conservator or receiver— be satisfied if the notice of any determina- the 60-day period beginning on the earlier ‘‘(i) exercise all powers and authorities tion with respect to any claim is mailed to of— specifically granted to conservators or re- the last address of the claimant which ap- ‘‘(i) the end of the period described in para- ceivers, respectively, under this section, and pears— graph (5)(A)(i) with respect to any claim such incidental powers as shall be necessary ‘‘(I) on the books of the regulated entity; against a regulated entity for which the to carry out such powers; and ‘‘(II) in the claim filed by the claimant; or Agency is receiver; or ‘‘(ii) take any action authorized by this ‘‘(III) in documents submitted in proof of ‘‘(ii) the date of any notice of disallowance section, which the Agency determines is in the claim. of such claim pursuant to paragraph (5)(A)(i). the best interests of the regulated entity or ‘‘(iv) CONTENTS OF NOTICE OF DISALLOW- ‘‘(B) STATUTE OF LIMITATIONS.—A claim the Agency. ANCE.—If any claim filed under clause (i) is shall be deemed to be disallowed (other than ‘‘(K) OTHER PROVISIONS.— disallowed, the notice to the claimant shall any portion of such claim which was allowed ‘‘(i) SHAREHOLDERS AND CREDITORS OF contain— by the receiver), and such disallowance shall FAILED REGULATED ENTITY.—Notwithstanding ‘‘(I) a statement of each reason for the dis- be final, and the claimant shall have no fur- any other provision of law, the appointment allowance; and ther rights or remedies with respect to such of the Agency as receiver for a regulated en- ‘‘(II) the procedures available for obtaining claim, if the claimant fails, before the end of tity pursuant to paragraph (2) or (4) of sub- agency review of the determination to dis- the 60-day period described under subpara- section (a) and its succession, by operation allow the claim or judicial determination of graph (A), to file suit on such claim (or con- of law, to the rights, titles, powers, and the claim. tinue an action commenced before the ap- privileges described in subsection (b)(2)(A) ‘‘(B) ALLOWANCE OF PROVEN CLAIM.—The re- pointment of the receiver). shall terminate all rights and claims that ceiver shall allow any claim received on or ‘‘(7) REVIEW OF CLAIMS.— the stockholders and creditors of the regu- before the date specified in the notice pub- ‘‘(A) OTHER REVIEW PROCEDURES.— lated entity may have against the assets or lished under paragraph (3)(B)(i) by the re- ‘‘(i) IN GENERAL.—The Agency shall estab- charter of the regulated entity or the Agen- ceiver from any claimant which is proved to lish such alternative dispute resolution proc- cy arising as a result of their status as the satisfaction of the receiver. esses as may be appropriate for the resolu- stockholders or creditors, except for their ‘‘(C) DISALLOWANCE OF CLAIMS FILED AFTER tion of claims filed under paragraph (5)(A)(i). right to payment, resolution, or other satis- FILING PERIOD.—Claims filed after the date ‘‘(ii) CRITERIA.—In establishing alternative faction of their claims, as permitted under specified in the notice published under para- dispute resolution processes, the Agency subsections (b)(9), (c), and (e). graph (3)(B)(i), or the date specified under shall strive for procedures which are expedi- ‘‘(ii) ASSETS OF REGULATED ENTITY.—Not- paragraph (3)(C), shall be disallowed and tious, fair, independent, and low cost. withstanding any other provision of law, for such disallowance shall be final. ‘‘(iii) VOLUNTARY BINDING OR NONBINDING purposes of this section, the charter of a reg- ‘‘(D) AUTHORITY TO DISALLOW CLAIMS.— PROCEDURES.—The Agency may establish ulated entity shall not be considered an ‘‘(i) IN GENERAL.—The receiver may dis- both binding and nonbinding processes under asset of the regulated entity. allow any portion of any claim by a creditor this subparagraph, which may be conducted ‘‘(3) AUTHORITY OF RECEIVER TO DETERMINE or claim of security, preference, or priority by any government or private party. All par- CLAIMS.— which is not proved to the satisfaction of the ties, including the claimant and the Agency, ‘‘(A) IN GENERAL.—The Agency may, as re- receiver. must agree to the use of the process in a par- ceiver, determine claims in accordance with ‘‘(ii) PAYMENTS TO LESS THAN FULLY SE- ticular case. the requirements of this subsection and any CURED CREDITORS.—In the case of a claim of ‘‘(B) CONSIDERATION OF INCENTIVES.—The regulations prescribed under paragraph (4). a creditor against a regulated entity which Agency shall seek to develop incentives for ‘‘(B) NOTICE REQUIREMENTS.—The receiver, is secured by any property or other asset of claimants to participate in the alternative in any case involving the liquidation or such regulated entity, the receiver— dispute resolution process. winding up of the affairs of a closed regu- ‘‘(I) may treat the portion of such claim ‘‘(8) EXPEDITED DETERMINATION OF lated entity, shall— which exceeds an amount equal to the fair CLAIMS.— ‘‘(i) promptly publish a notice to the credi- market value of such property or other asset ‘‘(A) ESTABLISHMENT REQUIRED.—The Agen- tors of the regulated entity to present their as an unsecured claim against the regulated cy shall establish a procedure for expedited claims, together with proof, to the receiver entity; and relief outside of the routine claims process by a date specified in the notice which shall ‘‘(II) may not make any payment with re- established under paragraph (5) for claimants be not less than 90 days after the date of pub- spect to such unsecured portion of the claim, who— lication of such notice; and other than in connection with the disposi- ‘‘(i) allege the existence of legally valid ‘‘(ii) republish such notice approximately 1 tion of all claims of unsecured creditors of and enforceable or perfected security inter- month and 2 months, respectively, after the the regulated entity. ests in assets of any regulated entity for date of publication under clause (i). ‘‘(iii) EXCEPTIONS.—No provision of this which the Agency has been appointed re- ‘‘(C) MAILING REQUIRED.—The receiver shall paragraph shall apply with respect to— ceiver; and mail a notice similar to the notice published ‘‘(I) any extension of credit from any Fed- ‘‘(ii) allege that irreparable injury will under subparagraph (B)(i) at the time of such eral Reserve Bank, Federal Home Loan occur if the routine claims procedure is fol- publication to any creditor shown on the Bank, or the United States Treasury; or lowed. books of the regulated entity— ‘‘(II) any security interest in the assets of ‘‘(B) DETERMINATION PERIOD.—Before the ‘‘(i) at the last address of the creditor ap- the regulated entity securing any such ex- end of the 90-day period beginning on the pearing in such books; or tension of credit. date on which any claim is filed in accord- ‘‘(ii) upon discovery of the name and ad- ‘‘(E) NO JUDICIAL REVIEW OF DETERMINATION ance with the procedures established under dress of a claimant not appearing on the PURSUANT TO SUBPARAGRAPH (D).—No court subparagraph (A), the Director shall— books of the regulated entity, within 30 days may review the determination of the Agency ‘‘(i) determine— after the discovery of such name and ad- under subparagraph (D) to disallow a claim. ‘‘(I) whether to allow or disallow such dress. ‘‘(F) LEGAL EFFECT OF FILING.— claim; or

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‘‘(II) whether such claim should be deter- ‘‘(10) SUSPENSION OF LEGAL ACTIONS.— graph (A), the date on which the statute of mined pursuant to the procedures estab- ‘‘(A) IN GENERAL.—After the appointment limitations begins to run on any claim de- lished under paragraph (5); and of a conservator or receiver for a regulated scribed in such subparagraph shall be the ‘‘(ii) notify the claimant of the determina- entity, the conservator or receiver may, in later of— tion, and if the claim is disallowed, provide any judicial action or proceeding to which ‘‘(i) the date of the appointment of the a statement of each reason for the disallow- such regulated entity is or becomes a party, Agency as conservator or receiver; or ance and the procedure for obtaining agency request a stay for a period not to exceed— ‘‘(ii) the date on which the cause of action review or judicial determination. ‘‘(i) 45 days, in the case of any conservator; accrues. ‘‘(C) PERIOD FOR FILING OR RENEWING and ‘‘(13) REVIVAL OF EXPIRED STATE CAUSES OF SUIT.—Any claimant who files a request for ‘‘(ii) 90 days, in the case of any receiver. ACTION.— expedited relief shall be permitted to file a ‘‘(B) GRANT OF STAY BY ALL COURTS RE- ‘‘(A) IN GENERAL.—In the case of any tort suit, or to continue a suit filed before the QUIRED.—Upon receipt of a request by the claim described under clause (ii) for which date of appointment of the receiver, seeking conservator or receiver under subparagraph the statute of limitations applicable under a determination of the rights of the claimant (A) for a stay of any judicial action or pro- State law with respect to such claim has ex- with respect to such security interest after ceeding in any court with jurisdiction of pired not more than 5 years before the ap- the earlier of— such action or proceeding, the court shall ‘‘(i) the end of the 90-day period beginning grant such stay as to all parties. pointment of the Agency as conservator or receiver, the Agency may bring an action as on the date of the filing of a request for expe- ‘‘(11) ADDITIONAL RIGHTS AND DUTIES.— conservator or receiver on such claim with- dited relief; or ‘‘(A) PRIOR FINAL ADJUDICATION.—The ‘‘(ii) the date on which the Agency denies Agency shall abide by any final unappealable out regard to the expiration of the statute of the claim. judgment of any court of competent jurisdic- limitations applicable under State law. ‘‘(D) STATUTE OF LIMITATIONS.—If an action tion which was rendered before the appoint- ‘‘(B) CLAIMS DESCRIBED.—A tort claim re- described under subparagraph (C) is not filed, ment of the Agency as conservator or re- ferred to under clause (i) is a claim arising or the motion to renew a previously filed ceiver. from fraud, intentional misconduct resulting suit is not made, before the end of the 30-day ‘‘(B) RIGHTS AND REMEDIES OF CONSERVATOR in unjust enrichment, or intentional mis- period beginning on the date on which such OR RECEIVER.—In the event of any appealable conduct resulting in substantial loss to the action or motion may be filed under subpara- judgment, the Agency as conservator or re- regulated entity. graph (B), the claim shall be deemed to be ceiver— ‘‘(14) ACCOUNTING AND RECORDKEEPING RE- disallowed as of the end of such period (other ‘‘(i) shall have all of the rights and rem- QUIREMENTS.— than any portion of such claim which was al- edies available to the regulated entity (be- ‘‘(A) IN GENERAL.—The Agency as conser- lowed by the receiver), such disallowance fore the appointment of such conservator or vator or receiver shall, consistent with the shall be final, and the claimant shall have no receiver) and the Agency, including removal accounting and reporting practices and pro- further rights or remedies with respect to to Federal court and all appellate rights; and cedures established by the Agency, maintain such claim. ‘‘(ii) shall not be required to post any bond a full accounting of each conservatorship ‘‘(E) LEGAL EFFECT OF FILING.— in order to pursue such remedies. and receivership or other disposition of a ‘‘(i) STATUTE OF LIMITATION TOLLED.—For ‘‘(C) NO ATTACHMENT OR EXECUTION.—No at- regulated entity in default. purposes of any applicable statute of limita- tachment or execution may issue by any ‘‘(B) ANNUAL ACCOUNTING OR REPORT.—With tions, the filing of a claim with the receiver court upon assets in the possession of the re- respect to each conservatorship or receiver- shall constitute a commencement of an ac- ceiver, or upon the charter, of a regulated ship, the Agency shall make an annual ac- tion. entity for which the Agency has been ap- counting or report available to the Board, ‘‘(ii) NO PREJUDICE TO OTHER ACTIONS.—Sub- pointed receiver. the Comptroller General of the United ject to paragraph (10), the filing of a claim ‘‘(D) LIMITATION ON JUDICIAL REVIEW.—Ex- States, the Committee on Banking, Housing, with the receiver shall not prejudice any cept as otherwise provided in this sub- and Urban Affairs of the Senate, and the right of the claimant to continue any action section, no court shall have jurisdiction Committee on Financial Services of the that was filed before the appointment of the over— House of Representatives. receiver, subject to the determination of ‘‘(i) any claim or action for payment from, ‘‘(C) AVAILABILITY OF REPORTS.—Any re- claims by the receiver. or any action seeking a determination of port prepared under subparagraph (B) shall ‘‘(9) PAYMENT OF CLAIMS.— rights with respect to, the assets or charter be made available by the Agency upon re- ‘‘(A) IN GENERAL.—The receiver may, in the of any regulated entity for which the Agency quest to any shareholder of a regulated enti- discretion of the receiver, and to the extent has been appointed receiver; or ty or any member of the public. that funds are available from the assets of ‘‘(ii) any claim relating to any act or omis- ‘‘(D) RECORDKEEPING REQUIREMENT.—After the regulated entity, pay creditor claims, in sion of such regulated entity or the Agency the end of the 6-year period beginning on the such manner and amounts as are authorized as receiver. date on which the conservatorship or receiv- under this section, which are— ‘‘(E) DISPOSITION OF ASSETS.—In exercising ership is terminated by the Director, the ‘‘(i) allowed by the receiver; any right, power, privilege, or authority as Agency may destroy any records of such reg- ‘‘(ii) approved by the Agency pursuant to a conservator or receiver in connection with ulated entity which the Agency, in the dis- final determination pursuant to paragraph any sale or disposition of assets of a regu- (7) or (8); or lated entity for which the Agency has been cretion of the Agency, determines to be un- ‘‘(iii) determined by the final judgment of appointed conservator or receiver, the Agen- necessary, unless directed not to do so by a any court of competent jurisdiction. cy shall conduct its operations in a manner court of competent jurisdiction or govern- ‘‘(B) AGREEMENTS AGAINST THE INTEREST OF which— mental agency, or prohibited by law. THE AGENCY.—No agreement that tends to di- ‘‘(i) maximizes the net present value re- ‘‘(15) FRAUDULENT TRANSFERS.— minish or defeat the interest of the Agency turn from the sale or disposition of such as- ‘‘(A) IN GENERAL.—The Agency, as conser- in any asset acquired by the Agency as re- sets; vator or receiver, may avoid a transfer of ceiver under this section shall be valid ‘‘(ii) minimizes the amount of any loss re- any interest of an entity-affiliated party, or against the Agency unless such agreement is alized in the resolution of cases; and any person determined by the conservator or in writing and executed by an authorized of- ‘‘(iii) ensures adequate competition and receiver to be a debtor of the regulated enti- ficer or representative of the regulated enti- fair and consistent treatment of offerors. ty, in property, or any obligation incurred ty. ‘‘(12) STATUTE OF LIMITATIONS FOR ACTIONS by such party or person, that was made with- ‘‘(C) PAYMENT OF DIVIDENDS ON CLAIMS.— BROUGHT BY CONSERVATOR OR RECEIVER.— in 5 years of the date on which the Agency The receiver may, in the sole discretion of ‘‘(A) IN GENERAL.—Notwithstanding any was appointed conservator or receiver, if the receiver, pay from the assets of the regu- provision of any contract, the applicable such party or person voluntarily or involun- lated entity dividends on proved claims at statute of limitations with regard to any ac- tarily made such transfer or incurred such li- any time, and no liability shall attach to the tion brought by the Agency as conservator ability with the intent to hinder, delay, or Agency by reason of any such payment, for or receiver shall be— defraud the regulated entity, the Agency, failure to pay dividends to a claimant whose ‘‘(i) in the case of any contract claim, the the conservator, or receiver. claim is not proved at the time of any such longer of— ‘‘(B) RIGHT OF RECOVERY.—To the extent a payment. ‘‘(I) the 6-year period beginning on the date transfer is avoided under subparagraph (A), ‘‘(D) RULEMAKING AUTHORITY OF THE DIREC- on which the claim accrues; or the conservator or receiver may recover, for TOR.—The Director may prescribe such rules, ‘‘(II) the period applicable under State law; the benefit of the regulated entity, the prop- including definitions of terms, as the Direc- and erty transferred, or, if a court so orders, the tor deems appropriate to establish a single ‘‘(ii) in the case of any tort claim, the value of such property (at the time of such uniform interest rate for, or to make pay- longer of— transfer) from— ments of post-insolvency interest to credi- ‘‘(I) the 3-year period beginning on the date ‘‘(i) the initial transferee of such transfer tors holding proven claims against the re- on which the claim accrues; or or the entity-affiliated party or person for ceivership estates of the regulated entity, ‘‘(II) the period applicable under State law. whose benefit such transfer was made; or following satisfaction by the receiver of the ‘‘(B) DETERMINATION OF THE DATE ON WHICH ‘‘(ii) any immediate or mediate transferee principal amount of all creditor claims. A CLAIM ACCRUES.—For purposes of subpara- of any such initial transferee.

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‘‘(C) RIGHTS OF TRANSFEREE OR OBLIGEE.— ‘‘(1) IN GENERAL.—Unsecured claims ‘‘(B) NO LIABILITY FOR OTHER DAMAGES.— The conservator or receiver may not recover against a regulated entity, or the receiver For purposes of subparagraph (A), the term under subparagraph (B) from— therefor, that are proven to the satisfaction ‘actual direct compensatory damages’ shall ‘‘(i) any transferee that takes for value, in- of the receiver shall have priority in the fol- not include— cluding satisfaction or securing of a present lowing order: ‘‘(i) punitive or exemplary damages; or antecedent debt, in good faith; or ‘‘(A) Administrative expenses of the re- ‘‘(ii) damages for lost profits or oppor- ‘‘(ii) any immediate or mediate good faith ceiver. tunity; or transferee of such transferee. ‘‘(B) Any other general or senior liability ‘‘(iii) damages for pain and suffering. ‘‘(D) RIGHTS UNDER THIS PARAGRAPH.—The of the regulated entity (which is not a liabil- ‘‘(C) MEASURE OF DAMAGES FOR REPUDI- rights under this paragraph of the conser- ity described under subparagraph (C) or (D). ATION OF FINANCIAL CONTRACTS.—In the case vator or receiver described under subpara- ‘‘(C) Any obligation subordinated to gen- of any qualified financial contract or agree- graph (A) shall be superior to any rights of a eral creditors (which is not an obligation de- ment to which paragraph (8) applies, com- trustee or any other party (other than any scribed under subparagraph (D)). pensatory damages shall be— party which is a Federal agency) under title ‘‘(D) Any obligation to shareholders or ‘‘(i) deemed to include normal and reason- 11, United States Code. members arising as a result of their status as able costs of cover or other reasonable meas- ‘‘(16) ATTACHMENT OF ASSETS AND OTHER IN- shareholder or members. ures of damages utilized in the industries for JUNCTIVE RELIEF.—Subject to paragraph (17), ‘‘(2) CREDITORS SIMILARLY SITUATED.—All such contract and agreement claims; and any court of competent jurisdiction may, at creditors that are similarly situated under ‘‘(ii) paid in accordance with this sub- paragraph (1) shall be treated in a similar the request of the conservator or receiver, section and subsection (e), except as other- manner, except that the receiver may take issue an order in accordance with rule 65 of wise specifically provided in this section. any action (including making payments) the Federal Rules of Civil Procedure, includ- ‘‘(4) LEASES UNDER WHICH THE REGULATED that does not comply with this subsection, ing an order placing the assets of any person ENTITY IS THE LESSEE.— if— designated by the conservator or receiver ‘‘(A) IN GENERAL.—If the conservator or re- ‘‘(A) the Director determines that such ac- under the control of the court, and appoint- ceiver disaffirms or repudiates a lease under tion is necessary to maximize the value of ing a trustee to hold such assets. which the regulated entity was the lessee, ‘‘(17) STANDARDS OF PROOF.—Rule 65 of the the assets of the regulated entity, to maxi- mize the present value return from the sale the conservator or receiver shall not be lia- Federal Rules of Civil Procedure shall apply ble for any damages (other than damages de- with respect to any proceeding under para- or other disposition of the assets of the regu- lated entity, or to minimize the amount of termined under subparagraph (B)) for the graph (16) without regard to the requirement disaffirmance or repudiation of such lease. of such rule that the applicant show that the any loss realized upon the sale or other dis- position of the assets of the regulated entity; ‘‘(B) PAYMENTS OF RENT.—Notwithstanding injury, loss, or damage is irreparable and im- subparagraph (A), the lessor under a lease to mediate. and ‘‘(B) all creditors that are similarly situ- which that subparagraph applies shall— ‘‘(18) TREATMENT OF CLAIMS ARISING FROM ated under paragraph (1) receive not less ‘‘(i) be entitled to the contractual rent ac- BREACH OF CONTRACTS EXECUTED BY THE CON- than the amount provided in subsection cruing before the later of the date on SERVATOR OR RECEIVER.— (e)(2). which— ‘‘(A) IN GENERAL.—Notwithstanding any ‘‘(3) DEFINITION.—As used in this sub- ‘‘(I) the notice of disaffirmance or repudi- other provision of this subsection, any final section, the term ‘administrative expenses of ation is mailed; or and unappealable judgment for monetary the receiver’ includes— ‘‘(II) the disaffirmance or repudiation be- damages entered against the conservator or ‘‘(A) the actual, necessary costs and ex- comes effective, unless the lessor is in de- receiver for the breach of an agreement exe- penses incurred by the receiver in preserving fault or breach of the terms of the lease; cuted or approved in writing by the conser- the assets of a failed regulated entity or liq- ‘‘(ii) have no claim for damages under any vator or receiver after the date of its ap- uidating or otherwise resolving the affairs of acceleration clause or other penalty provi- pointment, shall be paid as an administra- a failed regulated entity; and sion in the lease; and tive expense of the conservator or receiver. ‘‘(B) any obligations that the receiver de- ‘‘(iii) have a claim for any unpaid rent, O LIMITATION OF POWER.—Nothing in ‘‘(B) N termines are necessary and appropriate to subject to all appropriate offsets and de- this paragraph shall be construed to limit facilitate the smooth and orderly liquidation fenses, due as of the date of the appointment, the power of the conservator or receiver to or other resolution of the regulated entity. which shall be paid in accordance with this exercise any rights under contract or law, in- ‘‘(d) PROVISIONS RELATING TO CONTRACTS subsection and subsection (e). cluding to terminate, breach, cancel, or oth- ENTERED INTO BEFORE APPOINTMENT OF CON- ‘‘(5) LEASES UNDER WHICH THE REGULATED erwise discontinue such agreement. SERVATOR OR RECEIVER.— ENTITY IS THE LESSOR.— ‘‘(19) GENERAL EXCEPTIONS.— ‘‘(1) AUTHORITY TO REPUDIATE CONTRACTS.— ‘‘(A) IN GENERAL.—If the conservator or re- ‘‘(A) LIMITATIONS.—The rights of the con- In addition to any other rights a conservator ceiver repudiates an unexpired written lease servator or receiver appointed under this or receiver may have, the conservator or re- of real property of the regulated entity section shall be subject to the limitations on ceiver for any regulated entity may dis- under which the regulated entity is the les- the powers of a receiver under sections 402 affirm or repudiate any contract or lease— sor and the lessee is not, as of the date of through 407 of the Federal Deposit Insurance ‘‘(A) to which such regulated entity is a such repudiation, in default, the lessee under Corporation Improvement Act of 1991 (12 party; such lease may either— U.S.C. 4402 through 4407). ‘‘(B) the performance of which the conser- ‘‘(i) treat the lease as terminated by such ‘‘(B) MORTGAGES HELD IN TRUST.— vator or receiver, in its sole discretion, de- repudiation; or ‘‘(i) IN GENERAL.—Any mortgage, pool of termines to be burdensome; and ‘‘(ii) remain in possession of the leasehold mortgages, or interest in a pool of mortgages ‘‘(C) the disaffirmance or repudiation of interest for the balance of the term of the held in trust, custodial, or agency capacity which the conservator or receiver deter- lease, unless the lessee defaults under the by a regulated entity for the benefit of any mines, in its sole discretion, will promote terms of the lease after the date of such re- person other than the regulated entity shall the orderly administration of the affairs of pudiation. not be available to satisfy the claims of the regulated entity. ‘‘(B) PROVISIONS APPLICABLE TO LESSEE RE- creditors generally, except that nothing in ‘‘(2) TIMING OF REPUDIATION.—The conser- MAINING IN POSSESSION.—If any lessee under a this clause shall be construed to expand or vator or receiver shall determine whether or lease described under subparagraph (A) re- otherwise affect the authority of any regu- not to exercise the rights of repudiation mains in possession of a leasehold interest lated entity. under this subsection within a reasonable pe- under clause (ii) of subparagraph (A)— ‘‘(ii) HOLDING OF MORTGAGES.—Any mort- riod following such appointment. ‘‘(i) the lessee— gage, pool of mortgages, or interest in a pool ‘‘(3) CLAIMS FOR DAMAGES FOR REPUDI- ‘‘(I) shall continue to pay the contractual of mortgages described in clause (i) shall be ATION.— rent pursuant to the terms of the lease after held by the conservator or receiver ap- ‘‘(A) IN GENERAL.—Except as otherwise pro- the date of the repudiation of such lease; and pointed under this section for the beneficial vided under subparagraph (C) and paragraphs ‘‘(II) may offset against any rent payment owners of such mortgage, pool of mortgages, (4), (5), and (6), the liability of the conser- which accrues after the date of the repudi- or interest in accordance with the terms of vator or receiver for the disaffirmance or re- ation of the lease, and any damages which the agreement creating such trust, custodial, pudiation of any contract pursuant to para- accrue after such date due to the non- or other agency arrangement. graph (1) shall be— performance of any obligation of the regu- ‘‘(iii) LIABILITY OF CONSERVATOR OR RE- ‘‘(i) limited to actual direct compensatory lated entity under the lease after such date; CEIVER.—The liability of the conservator or damages; and and receiver appointed under this section for ‘‘(ii) determined as of— ‘‘(ii) the conservator or receiver shall not damages shall, in the case of any contingent ‘‘(I) the date of the appointment of the be liable to the lessee for any damages aris- or unliquidated claim relating to the mort- conservator or receiver; or ing after such date as a result of the repudi- gages held in trust, be estimated in accord- ‘‘(II) in the case of any contract or agree- ation, other than the amount of any offset ance with the regulations of the Director. ment referred to in paragraph (8), the date of allowed under clause (i)(II). ‘‘(c) PRIORITY OF EXPENSES AND UNSECURED the disaffirmance or repudiation of such con- ‘‘(6) CONTRACTS FOR THE SALE OF REAL CLAIMS.— tract or agreement. PROPERTY.—

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‘‘(A) IN GENERAL.—If the conservator or re- contract under this section at any time after ‘‘(II) does not include any purchase, sale, ceiver repudiates any contract for the sale of such performance. or repurchase obligation under a participa- real property and the purchaser of such real ‘‘(8) CERTAIN QUALIFIED FINANCIAL CON- tion in a commercial mortgage loan, unless property under such contract is in posses- TRACTS.— the Agency determines by regulation, resolu- sion, and is not, as of the date of such repudi- ‘‘(A) RIGHTS OF PARTIES TO CONTRACTS.— tion, or order to include any such agreement ation, in default, such purchaser may ei- Subject to paragraphs (9) and (10), and not- within the meaning of such term; ther— withstanding any other provision of this ‘‘(III) means any option entered into on a ‘‘(i) treat the contract as terminated by title (other than subsection (b)(9)(B) of this national securities exchange relating to for- such repudiation; or section), any other Federal law, or the law of eign currencies; ‘‘(ii) remain in possession of such real any State, no person shall be stayed or pro- ‘‘(IV) means the guarantee by or to any se- property. hibited from exercising— curities clearing agency of any settlement of ‘‘(B) PROVISIONS APPLICABLE TO PURCHASER ‘‘(i) any right of that person to cause the cash, securities, certificates of deposit, REMAINING IN POSSESSION.—If any purchaser termination, liquidation, or acceleration of mortgage loans or interests therein, group or of real property under any contract de- any qualified financial contract with a regu- index of securities, certificates of deposit, or scribed under subparagraph (A) remains in lated entity that arises upon the appoint- mortgage loans or interests therein (includ- possession of such property under clause (ii) ment of the Agency as receiver for such reg- ing any interest therein or based on the of subparagraph (A)— ulated entity at any time after such appoint- value thereof) or option on any of the fore- ‘‘(i) the purchaser— ment; going, including any option to purchase or ‘‘(I) shall continue to make all payments sell any such security, certificate of deposit, ‘‘(ii) any right under any security agree- due under the contract after the date of the mortgage loan, interest, group or index, or ment or arrangement or other credit en- repudiation of the contract; and option; hancement relating to one or more qualified ‘‘(II) may offset against any such payments ‘‘(V) means any margin loan; financial contracts; or any damages which accrue after such date ‘‘(VI) means any other agreement or trans- ‘‘(iii) any right to offset or net out any ter- due to the nonperformance (after such date) action that is similar to any agreement or mination value, payment amount, or other of any obligation of the regulated entity transaction referred to in this clause; transfer obligation arising under or in con- under the contract; and ‘‘(VII) means any combination of the ‘‘(ii) the conservator or receiver shall— nection with 1 or more contracts and agree- agreements or transactions referred to in ‘‘(I) not be liable to the purchaser for any ments described in clause (i), including any this clause; damages arising after such date as a result of master agreement for such contracts or ‘‘(VIII) means any option to enter into any the repudiation, other than the amount of agreements. agreement or transaction referred to in this any offset allowed under clause (i)(II); ‘‘(B) APPLICABILITY OF OTHER PROVISIONS.— clause; ‘‘(II) deliver title to the purchaser in ac- Subsection (b)(10) shall apply in the case of ‘‘(IX) means a master agreement that pro- cordance with the provisions of the contract; any judicial action or proceeding brought vides for an agreement or transaction re- and against any receiver referred to under sub- ferred to in subclause (I), (III), (IV), (V), (VI), ‘‘(III) have no obligation under the con- paragraph (A), or the regulated entity for (VII), or (VIII), together with all supple- tract other than the performance required which such receiver was appointed, by any ments to any such master agreement, with- under subclause (II). party to a contract or agreement described out regard to whether the master agreement ‘‘(C) ASSIGNMENT AND SALE ALLOWED.— under subparagraph (A)(i) with such regu- provides for an agreement or transaction ‘‘(i) IN GENERAL.—No provision of this para- lated entity. that is not a securities contract under this graph shall be construed as limiting the ‘‘(C) CERTAIN TRANSFERS NOT AVOIDABLE.— clause, except that the master agreement right of the conservator or receiver to assign ‘‘(i) IN GENERAL.—Notwithstanding para- shall be considered to be a securities con- the contract described under subparagraph graph (11), or any other provision of Federal tract under this clause only with respect to (A), and sell the property subject to the con- or State law relating to the avoidance of each agreement or transaction under the tract and the provisions of this paragraph. preferential or fraudulent transfers, the master agreement that is referred to in sub- ‘‘(ii) NO LIABILITY AFTER ASSIGNMENT AND Agency, whether acting as such or as conser- clause (I), (III), (IV), (V), (VI), (VII), or SALE.—If an assignment and sale described vator or receiver of a regulated entity, may (VIII); and under clause (i) is consummated, the conser- not avoid any transfer of money or other ‘‘(X) means any security agreement or ar- vator or receiver shall have no further liabil- property in connection with any qualified fi- rangement or other credit enhancement re- ity under the contract described under sub- nancial contract with a regulated entity. lated to any agreement or transaction re- paragraph (A), or with respect to the real ‘‘(ii) EXCEPTION FOR CERTAIN TRANSFERS.— ferred to in this clause, including any guar- property which was the subject of such con- Clause (i) shall not apply to any transfer of antee or reimbursement obligation in con- tract. money or other property in connection with nection with any agreement or transaction ‘‘(7) SERVICE CONTRACTS.— any qualified financial contract with a regu- referred to in this clause. ‘‘(A) SERVICES PERFORMED BEFORE APPOINT- lated entity if the Agency determines that ‘‘(iii) COMMODITY CONTRACT.—The term MENT.—In the case of any contract for serv- the transferee had actual intent to hinder, ‘commodity contract’ means— ices between any person and any regulated delay, or defraud such regulated entity, the ‘‘(I) with respect to a futures commission entity for which the Agency has been ap- creditors of such regulated entity, or any merchant, a contract for the purchase or sale pointed conservator or receiver, any claim of conservator or receiver appointed for such of a commodity for future delivery on, or such person for services performed before the regulated entity. subject to the rules of, a contract market or appointment of the conservator or receiver ‘‘(D) CERTAIN CONTRACTS AND AGREEMENTS board of trade; shall be— DEFINED.—In this subsection the following ‘‘(II) with respect to a foreign futures com- ‘‘(i) a claim to be paid in accordance with definitions shall apply: mission merchant, a foreign future; subsections (b) and (e); and ‘‘(i) QUALIFIED FINANCIAL CONTRACT.—The ‘‘(III) with respect to a leverage trans- ‘‘(ii) deemed to have arisen as of the date term ‘qualified financial contract’ means action merchant, a leverage transaction; on which the conservator or receiver was ap- any securities contract, commodity con- ‘‘(IV) with respect to a clearing organiza- pointed. tract, forward contract, repurchase agree- tion, a contract for the purchase or sale of a ‘‘(B) SERVICES PERFORMED AFTER APPOINT- ment, swap agreement, and any similar commodity for future delivery on, or subject MENT AND PRIOR TO REPUDIATION.—If, in the agreement that the Agency determines by to the rules of, a contract market or board of case of any contract for services described regulation, resolution, or order to be a quali- trade that is cleared by such clearing organi- under subparagraph (A), the conservator or fied financial contract for purposes of this zation, or commodity option traded on, or receiver accepts performance by the other paragraph. subject to the rules of, a contract market or person before the conservator or receiver ‘‘(ii) SECURITIES CONTRACT.—The term ‘se- board of trade that is cleared by such clear- makes any determination to exercise the curities contract’— ing organization; right of repudiation of such contract under ‘‘(I) means a contract for the purchase, ‘‘(V) with respect to a commodity options this section— sale, or loan of a security, a certificate of de- dealer, a commodity option; ‘‘(i) the other party shall be paid under the posit, a mortgage loan, or any interest in a ‘‘(VI) any other agreement or transaction terms of the contract for the services per- mortgage loan, a group or index of securi- that is similar to any agreement or trans- formed; and ties, certificates of deposit, or mortgage action referred to in this clause; ‘‘(ii) the amount of such payment shall be loans or interests therein (including any in- ‘‘(VII) any combination of the agreements treated as an administrative expense of the terest therein or based on the value thereof) or transactions referred to in this clause; conservatorship or receivership. or any option on any of the foregoing, in- ‘‘(VIII) any option to enter into any agree- ‘‘(C) ACCEPTANCE OF PERFORMANCE NO BAR cluding any option to purchase or sell any ment or transaction referred to in this TO SUBSEQUENT REPUDIATION.—The accept- such security, certificate of deposit, mort- clause; ance by the conservator or receiver of serv- gage loan, interest, group or index, or op- ‘‘(IX) a master agreement that provides for ices referred to under subparagraph (B) in tion, and including any repurchase or reverse an agreement or transaction referred to in connection with a contract described in such repurchase transaction on any such security, subclause (I), (II), (III), (IV), (V), (VI), (VII), subparagraph shall not affect the right of the certificate of deposit, mortgage loan, inter- or (VIII), together with all supplements to conservator or receiver to repudiate such est, group or index, or option; any such master agreement, without regard

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00087 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6060 CONGRESSIONAL RECORD — SENATE June 24, 2008 to whether the master agreement provides than 1 year after such transfers or on de- ment shall be considered to be a swap agree- for an agreement or transaction that is not mand, against the transfer of funds, or any ment under this clause only with respect to a commodity contract under this clause, ex- other similar agreement; each agreement or transaction under the cept that the master agreement shall be con- ‘‘(II) does not include any repurchase obli- master agreement that is referred to in sub- sidered to be a commodity contract under gation under a participation in a commercial clause (I), (II), (III), or (IV); and this clause only with respect to each agree- mortgage loan, unless the Agency deter- ‘‘(VI) any security agreement or arrange- ment or transaction under the master agree- mines by regulation, resolution, or order to ment or other credit enhancement related to ment that is referred to in subclause (I), (II), include any such participation within the any agreements or transactions referred to (III), (IV), (V), (VI), (VII), or (VIII); or meaning of such term; in subclause (I), (II), (III), (IV), or (V), in- ‘‘(X) any security agreement or arrange- ‘‘(III) means any combination of agree- cluding any guarantee or reimbursement ob- ment or other credit enhancement related to ments or transactions referred to in sub- ligation in connection with any agreement any agreement or transaction referred to in clauses (I) and (IV); or transaction referred to in any such sub- this clause, including any guarantee or reim- ‘‘(IV) means any option to enter into any clause. bursement obligation in connection with any agreement or transaction referred to in sub- ‘‘(vii) TREATMENT OF MASTER AGREEMENT agreement or transaction referred to in this clause (I) or (III); AS ONE AGREEMENT.—Any master agreement clause. ‘‘(V) means a master agreement that pro- for any contract or agreement described in ‘‘(iv) FORWARD CONTRACT.—The term ‘for- vides for an agreement or transaction re- any preceding clause of this subparagraph ward contract’ means— ferred to in subclause (I), (III), or (IV), to- (or any master agreement for such master ‘‘(I) a contract (other than a commodity gether with all supplements to any such agreement or agreements), together with all contract) for the purchase, sale, or transfer master agreement, without regard to wheth- supplements to such master agreement, shall of a commodity or any similar good, article, er the master agreement provides for an be treated as a single agreement and a single service, right, or interest which is presently agreement or transaction that is not a repur- qualified financial contract. If a master or in the future becomes the subject of deal- chase agreement under this clause, except agreement contains provisions relating to ing in the forward contract trade, or product that the master agreement shall be consid- agreements or transactions that are not or byproduct thereof, with a maturity date ered to be a repurchase agreement under this themselves qualified financial contracts, the more than 2 days after the date on which the subclause only with respect to each agree- contract is entered into, including a repur- ment or transaction under the master agree- master agreement shall be deemed to be a chase transaction, reverse repurchase trans- ment that is referred to in subclause (I), qualified financial contract only with re- action, consignment, lease, swap, hedge (III), or (IV); and spect to those transactions that are them- transaction, deposit, loan, option, allocated ‘‘(VI) means any security agreement or ar- selves qualified financial contracts. transaction, unallocated transaction, or any rangement or other credit enhancement re- ‘‘(viii) TRANSFER.—The term ‘transfer’ other similar agreement; lated to any agreement or transaction re- means every mode, direct or indirect, abso- ‘‘(II) any combination of agreements or ferred to in subclause (I), (III), (IV), or (V), lute or conditional, voluntary or involun- transactions referred to in subclauses (I) and including any guarantee or reimbursement tary, of disposing of or parting with property (III); obligation in connection with any agreement or with an interest in property, including re- ‘‘(III) any option to enter into any agree- or transaction referred to in any such sub- tention of title as a security interest and ment or transaction referred to in subclause clause. foreclosure of the equity of redemption of (I) or (II); ‘‘(vi) SWAP AGREEMENT.—The term ‘swap the regulated entity. ‘‘(IV) a master agreement that provides for agreement’ means— ‘‘(E) CERTAIN PROTECTIONS IN EVENT OF AP- an agreement or transaction referred to in ‘‘(I) any agreement, including the terms POINTMENT OF CONSERVATOR.—Notwith- subclauses (I), (II), or (III), together with all and conditions incorporated by reference in standing any other provision of this section, supplements to any such master agreement, any such agreement, which is an interest any other Federal law, or the law of any without regard to whether the master agree- rate swap, option, future, or forward agree- State (other than paragraph (10) of this sub- ment provides for an agreement or trans- ment, including a rate floor, rate cap, rate section and subsection (b)(9)(B)), no person action that is not a forward contract under collar, cross-currency rate swap, and basis shall be stayed or prohibited from exer- this clause, except that the master agree- swap; a spot, same day-tomorrow, tomorrow- cising— ment shall be considered to be a forward con- next, forward, or other foreign exchange or ‘‘(i) any right such person has to cause the tract under this clause only with respect to precious metals agreement; a currency swap, termination, liquidation, or acceleration of each agreement or transaction under the option, future, or forward agreement; an eq- any qualified financial contract with a regu- master agreement that is referred to in sub- uity index or equity swap, option, future, or lated entity in a conservatorship based upon clause (I), (II), or (III); or forward agreement; a debt index or debt a default under such financial contract ‘‘(V) any security agreement or arrange- swap, option, future, or forward agreement; a which is enforceable under applicable non- ment or other credit enhancement related to total return, credit spread or credit swap, op- insolvency law; any agreement or transaction referred to in tion, future, or forward agreement; a com- ‘‘(ii) any right under any security agree- subclause (I), (II), (III), or (IV), including any modity index or commodity swap, option, fu- ment or arrangement or other credit en- guarantee or reimbursement obligation in ture, or forward agreement; or a weather hancement relating to 1 or more such quali- connection with any agreement or trans- swap, weather derivative, or weather option; fied financial contracts; or action referred to in any such subclause. ‘‘(II) any agreement or transaction that is ‘‘(iii) any right to offset or net out any ter- ‘‘(v) REPURCHASE AGREEMENT.—The term similar to any other agreement or trans- mination values, payment amounts, or other ‘repurchase agreement’ (including a reverse action referred to in this clause and that is transfer obligations arising under or in con- repurchase agreement)— of a type that has been, is presently, or in nection with such qualified financial con- ‘‘(I) means an agreement, including related the future becomes, the subject of recurrent tracts. terms, which provides for the transfer of one dealings in the swap markets (including ‘‘(F) CLARIFICATION.—No provision of law or more certificates of deposit, mortgage-re- terms and conditions incorporated by ref- shall be construed as limiting the right or lated securities (as such term is defined in erence in such agreement) and that is a for- power of the Agency, or authorizing any section 3 of the Securities Exchange Act of ward, swap, future, or option on one or more court or agency to limit or delay in any 1934), mortgage loans, interests in mortgage- rates, currencies, commodities, equity secu- manner, the right or power of the Agency to related securities or mortgage loans, eligible rities or other equity instruments, debt secu- transfer any qualified financial contract in bankers’ acceptances, qualified foreign gov- rities or other debt instruments, quan- accordance with paragraphs (9) and (10), or to ernment securities (defined for purposes of titative measures associated with an occur- disaffirm or repudiate any such contract in this clause as a security that is a direct obli- rence, extent of an occurrence, or contin- accordance with subsection (d)(1). gation of, or that is fully guaranteed by, the gency associated with a financial, commer- ‘‘(G) WALKAWAY CLAUSES NOT EFFECTIVE.— central government of a member of the Orga- cial, or economic consequence, or economic ‘‘(i) IN GENERAL.—Notwithstanding the pro- nization for Economic Cooperation and De- or financial indices or measures of economic visions of subparagraphs (A) and (E), and sec- velopment, as determined by regulation or or financial risk or value; tions 403 and 404 of the Federal Deposit In- order adopted by the appropriate Federal ‘‘(III) any combination of agreements or surance Corporation Improvement Act of banking authority), or securities that are di- transactions referred to in this clause; 1991, no walkaway clause shall be enforceable rect obligations of, or that are fully guaran- ‘‘(IV) any option to enter into any agree- in a qualified financial contract of a regu- teed by, the United States or any agency of ment or transaction referred to in this lated entity in default. the United States against the transfer of clause; ‘‘(ii) WALKAWAY CLAUSE DEFINED.—For pur- funds by the transferee of such certificates of ‘‘(V) a master agreement that provides for poses of this subparagraph, the term deposit, eligible bankers’ acceptances, secu- an agreement or transaction referred to in ‘walkaway clause’ means a provision in a rities, mortgage loans, or interests with a si- subclause (I), (II), (III), or (IV), together with qualified financial contract that, after cal- multaneous agreement by such transferee to all supplements to any such master agree- culation of a value of a party’s position or an transfer to the transferor thereof certificates ment, without regard to whether the master amount due to or from 1 of the parties in ac- of deposit, eligible bankers’ acceptances, se- agreement contains an agreement or trans- cordance with its terms upon termination, curities, mortgage loans, or interests as de- action that is not a swap agreement under liquidation, or acceleration of the qualified scribed above, at a date certain not later this clause, except that the master agree- financial contract, either does not create a

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00088 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6061 payment obligation of a party or extin- such person by the time specified in subpara- under any other statute, regulation, or rule, guishes a payment obligation of a party in graph (A). including the Gramm-Leach-Bliley Act, the whole or in part solely because of the status ‘‘(C) BUSINESS DAY DEFINED.—For purposes Legal Certainty for Bank Products Act of of such party as a nondefaulting party. of this paragraph, the term ‘business day’ 2000, the securities laws (as that term is de- ‘‘(9) TRANSFER OF QUALIFIED FINANCIAL CON- means any day other than any Saturday, fined in section 3(a)(47) of the Securities Ex- TRACTS.—In making any transfer of assets or Sunday, or any day on which either the New change Act of 1934), and the Commodity Ex- liabilities of a regulated entity in default York Stock Exchange or the Federal Reserve change Act. which includes any qualified financial con- Bank of New York is closed. ‘‘(15) EXCEPTION FOR FEDERAL RESERVE AND tract, the conservator or receiver for such ‘‘(11) DISAFFIRMANCE OR REPUDIATION OF FEDERAL HOME LOAN BANKS.—No provision of regulated entity shall either— QUALIFIED FINANCIAL CONTRACTS.—In exer- this subsection shall apply with respect to— ‘‘(A) transfer to 1 person— cising the rights of disaffirmance or repudi- ‘‘(A) any extension of credit from any Fed- ‘‘(i) all qualified financial contracts be- ation of a conservator or receiver with re- eral Home Loan Bank or Federal Reserve tween any person (or any affiliate of such spect to any qualified financial contract to Bank to any regulated entity; or person) and the regulated entity in default; which a regulated entity is a party, the con- ‘‘(B) any security interest in the assets of ‘‘(ii) all claims of such person (or any affil- servator or receiver for such institution the regulated entity securing any such ex- iate of such person) against such regulated shall either— tension of credit. entity under any such contract (other than ‘‘(A) disaffirm or repudiate all qualified fi- ‘‘(e) VALUATION OF CLAIMS IN DEFAULT.— any claim which, under the terms of any nancial contracts between— ‘‘(1) IN GENERAL.—Notwithstanding any such contract, is subordinated to the claims ‘‘(i) any person or any affiliate of such per- other provision of Federal law or the law of of general unsecured creditors of such regu- son; and any State, and regardless of the method lated entity); ‘‘(ii) the regulated entity in default; or which the Agency determines to utilize with ‘‘(iii) all claims of such regulated entity ‘‘(B) disaffirm or repudiate none of the respect to a regulated entity in default or in against such person (or any affiliate of such qualified financial contracts referred to in danger of default, including transactions au- person) under any such contract; and subparagraph (A) (with respect to such per- thorized under subsection (i), this subsection ‘‘(iv) all property securing, or any other son or any affiliate of such person). shall govern the rights of the creditors of credit enhancement for any contract de- ‘‘(12) CERTAIN SECURITY INTERESTS NOT such regulated entity. scribed in clause (i), or any claim described AVOIDABLE.—No provision of this subsection ‘‘(2) MAXIMUM LIABILITY.—The maximum in clause (ii) or (iii) under any such contract; shall be construed as permitting the avoid- liability of the Agency, acting as receiver or or ance of any legally enforceable or perfected in any other capacity, to any person having ‘‘(B) transfer none of the financial con- security interest in any of the assets of any a claim against the receiver or the regulated tracts, claims, or property referred to under regulated entity, except where such an inter- entity for which such receiver is appointed subparagraph (A) (with respect to such per- est is taken in contemplation of the insol- shall be not more than the amount that such son and any affiliate of such person). vency of the regulated entity, or with the in- claimant would have received if the Agency ‘‘(10) NOTIFICATION OF TRANSFER.— tent to hinder, delay, or defraud the regu- had liquidated the assets and liabilities of ‘‘(A) IN GENERAL.—The conservator or re- lated entity or the creditors of such regu- the regulated entity without exercising the ceiver shall notify any person that is a party lated entity. authority of the Agency under subsection (i). to a contract or transfer by 5:00 p.m. (East- ‘‘(13) AUTHORITY TO ENFORCE CONTRACTS.— ‘‘(f) LIMITATION ON COURT ACTION.—Except ern Standard Time) on the business day fol- ‘‘(A) IN GENERAL.—Notwithstanding any as provided in this section or at the request lowing the date of the appointment of the re- provision of a contract providing for termi- of the Director, no court may take any ac- ceiver in the case of a receivership, or the nation, default, acceleration, or exercise of tion to restrain or affect the exercise of pow- business day following such transfer in the rights upon, or solely by reason of, insol- ers or functions of the Agency as a conser- case of a conservatorship, if— vency or the appointment of, or the exercise vator or a receiver. ‘‘(i) the conservator or receiver for a regu- of rights or powers by, a conservator or re- ‘‘(g) LIABILITY OF DIRECTORS AND OFFI- lated entity in default makes any transfer of ceiver, the conservator or receiver may en- CERS.— the assets and liabilities of such regulated force any contract, other than a contract for ‘‘(1) IN GENERAL.—A director or officer of a entity; and liability insurance for a director or officer, regulated entity may be held personally lia- ‘‘(ii) such transfer includes any qualified or a contract or a regulated entity bond, en- ble for monetary damages in any civil action financial contract. tered into by the regulated entity. described in paragraph (2) brought by, on be- ‘‘(B) CERTAIN RIGHTS NOT ENFORCEABLE.— ‘‘(B) CERTAIN RIGHTS NOT AFFECTED.—No half of, or at the request or direction of the ‘‘(i) RECEIVERSHIP.—A person who is a provision of this paragraph may be construed Agency, and prosecuted wholly or partially party to a qualified financial contract with a as impairing or affecting any right of the for the benefit of the Agency— regulated entity may not exercise any right conservator or receiver to enforce or recover ‘‘(A) acting as conservator or receiver of that such person has to terminate, liquidate, under a liability insurance contract for an such regulated entity; or or net such contract under paragraph (8)(A) officer or director, or regulated entity bond ‘‘(B) acting based upon a suit, claim, or of this subsection or under section 403 or 404 under other applicable law. cause of action purchased from, assigned by, of the Federal Deposit Insurance Corporation ‘‘(C) CONSENT REQUIREMENT.— or otherwise conveyed by such receiver or Improvement Act of 1991, solely by reason of ‘‘(i) IN GENERAL.—Except as otherwise pro- conservator. or incidental to the appointment of a re- vided under this section, no person may exer- ‘‘(2) ACTIONS ADDRESSED.—Paragraph (1) ceiver for the regulated entity (or the insol- cise any right or power to terminate, accel- applies in any civil action for gross neg- vency or financial condition of the regulated erate, or declare a default under any con- ligence, including any similar conduct or entity for which the receiver has been ap- tract to which a regulated entity is a party, conduct that demonstrates a greater dis- pointed)— or to obtain possession of or exercise control regard of a duty of care than gross neg- ‘‘(I) until 5:00 p.m. (Eastern Standard over any property of the regulated entity, or ligence, including intentional tortious con- Time) on the business day following the date affect any contractual rights of the regu- duct, as such terms are defined and deter- of the appointment of the receiver; or lated entity, without the consent of the con- mined under applicable State law. ‘‘(II) after the person has received notice servator or receiver, as appropriate, for a pe- ‘‘(3) NO LIMITATION.—Nothing in this sub- that the contract has been transferred pursu- riod of— section shall impair or affect any right of ant to paragraph (9)(A). ‘‘(I) 45 days after the date of appointment the Agency under other applicable law. ‘‘(ii) CONSERVATORSHIP.—A person who is a of a conservator; or ‘‘(h) DAMAGES.—In any proceeding related party to a qualified financial contract with a ‘‘(II) 90 days after the date of appointment to any claim against a director, officer, em- regulated entity may not exercise any right of a receiver. ployee, agent, attorney, accountant, ap- that such person has to terminate, liquidate, ‘‘(ii) EXCEPTIONS.—This subparagraph shall praiser, or any other party employed by or or net such contract under paragraph (8)(E) not— providing services to a regulated entity, re- of this subsection or under section 403 or 404 ‘‘(I) apply to a contract for liability insur- coverable damages determined to result from of the Federal Deposit Insurance Corporation ance for an officer or director; the improvident or otherwise improper use Improvement Act of 1991, solely by reason of ‘‘(II) apply to the rights of parties to cer- or investment of any assets of the regulated or incidental to the appointment of a conser- tain qualified financial contracts under sub- entity shall include principal losses and ap- vator for the regulated entity (or the insol- section (d)(8); and propriate interest. vency or financial condition of the regulated ‘‘(III) be construed as permitting the con- ‘‘(i) LIMITED-LIFE REGULATED ENTITIES.— entity for which the conservator has been servator or receiver to fail to comply with ‘‘(1) ORGANIZATION.— appointed). otherwise enforceable provisions of such con- ‘‘(A) PURPOSE.—The Agency, as receiver ‘‘(iii) NOTICE.—For purposes of this para- tracts. appointed pursuant to subsection (a)— graph, the conservator or receiver of a regu- ‘‘(14) SAVINGS CLAUSE.—The meanings of ‘‘(i) may, in the case of a Federal Home lated entity shall be deemed to have notified terms used in this subsection are applicable Loan Bank, organize a limited-life regulated a person who is a party to a qualified finan- for purposes of this subsection only, and entity with those powers and attributes of cial contract with such regulated entity, if shall not be construed or applied so as to the Federal Home Loan Bank in default or in the conservator or receiver has taken steps challenge or affect the characterization, def- danger of default as the Director determines reasonably calculated to provide notice to inition, or treatment of any similar terms necessary, subject to the provisions of this

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00089 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6062 CONGRESSIONAL RECORD — SENATE June 24, 2008 subsection, and the Director shall grant a regulated entity succeeds to the charter pur- capital stock of an enterprise or a limited- temporary charter to that limited-life regu- suant to subparagraph (A). life regulated entity established with respect lated entity, and that limited-life regulated ‘‘(C) LIMITED-LIFE REGULATED ENTITY to an enterprise. entity shall operate subject to that charter; TREATED AS BEING IN DEFAULT FOR CERTAIN ‘‘(iv) APPLICABILITY.—This subparagraph and PURPOSES.—A limited-life regulated entity applies only with respect to a limited-life ‘‘(ii) shall, in the case of an enterprise, or- shall be treated as a regulated entity in de- regulated entity that is established with re- ganize a limited-life regulated entity with fault at such times and for such purposes as spect to an enterprise. respect to that enterprise in accordance with the Agency may, in its discretion, deter- ‘‘(7) TRANSFER OF ASSETS AND LIABILITIES.— this subsection. mine. ‘‘(A) IN GENERAL.— ‘‘(B) AUTHORITIES.—Upon the creation of a ‘‘(D) MANAGEMENT.—Upon its establish- ‘‘(i) TRANSFER OF ASSETS AND LIABILITIES.— limited-life regulated entity under subpara- ment, a limited-life regulated entity shall be The Agency, as receiver, may transfer any graph (A), the limited-life regulated entity under the management of a board of direc- assets and liabilities of a regulated entity in may— tors consisting of not fewer than 5 nor more default, or in danger of default, to the lim- ‘‘(i) assume such liabilities of the regu- than 10 members appointed by the Agency. ited-life regulated entity in accordance with lated entity that is in default or in danger of ‘‘(E) BYLAWS.—The board of directors of a and subject to the restrictions of paragraph default as the Agency may, in its discretion, limited-life regulated entity shall adopt such (1). determine to be appropriate, except that the bylaws as may be approved by the Agency. ‘‘(ii) SUBSEQUENT TRANSFERS.—At any time liabilities assumed shall not exceed the ‘‘(3) CAPITAL STOCK.— after the establishment of a limited-life reg- amount of assets purchased or transferred ‘‘(A) NO AGENCY REQUIREMENT.—The Agen- ulated entity, the Agency, as receiver, may from the regulated entity to the limited-life cy is not required to pay capital stock into transfer any assets and liabilities of the reg- regulated entity; a limited-life regulated entity or to issue ulated entity in default, or in danger of de- ‘‘(ii) purchase such assets of the regulated any capital stock on behalf of a limited-life fault, as the Agency may, in its discretion, entity that is in default, or in danger of de- regulated entity established under this sub- determine to be appropriate in accordance fault as the Agency may, in its discretion, section. with and subject to the restrictions of para- determine to be appropriate; and ‘‘(B) AUTHORITY.—If the Director deter- graph (1). ‘‘(iii) perform any other temporary func- mines that such action is advisable, the tion which the Agency may, in its discretion, Agency may cause capital stock or other se- ‘‘(iii) EFFECTIVE WITHOUT APPROVAL.—The prescribe in accordance with this section. curities of a limited-life regulated entity es- transfer of any assets or liabilities of a regu- lated entity in default or in danger of default ‘‘(2) CHARTER AND ESTABLISHMENT.— tablished with respect to an enterprise to be to a limited-life regulated entity shall be ef- ‘‘(A) TRANSFER OF CHARTER.— issued and offered for sale, in such amounts fective without any further approval under ‘‘(i) FANNIE MAE.—If the Agency is ap- and on such terms and conditions as the Di- pointed as receiver for the Federal National rector may determine, in the discretion of Federal or State law, assignment, or consent Mortgage Association, the limited-life regu- the Director. with respect thereto. lated entity established under this sub- ‘‘(4) INVESTMENTS.—Funds of a limited-life ‘‘(iv) EQUITABLE TREATMENT OF SIMILARLY section with respect to such enterprise shall, regulated entity shall be kept on hand in SITUATED CREDITORS.—The Agency shall by operation of law and immediately upon cash, invested in obligations of the United treat all creditors of a regulated entity in its organization— States or obligations guaranteed as to prin- default or in danger of default that are simi- ‘‘(I) succeed to the charter of the Federal cipal and interest by the United States, or larly situated under subsection (c)(1) in a National Mortgage Association, as set forth deposited with the Agency, or any Federal similar manner in exercising the authority in the Federal National Mortgage Associa- reserve bank. of the Agency under this subsection to trans- tion Charter Act; and ‘‘(5) EXEMPT TAX STATUS.—Notwith- fer any assets or liabilities of the regulated ‘‘(II) thereafter operate in accordance with, standing any other provision of Federal or entity to the limited-life regulated entity es- and subject to, such charter, this Act, and State law, a limited-life regulated entity, its tablished with respect to such regulated en- any other provision of law to which the Fed- franchise, property, and income shall be ex- tity, except that the Agency may take ac- eral National Mortgage Association is sub- empt from all taxation now or hereafter im- tions (including making payments) that do ject, except as otherwise provided in this posed by the United States, by any territory, not comply with this clause, if— subsection. dependency, or possession thereof, or by any ‘‘(I) the Director determines that such ac- ‘‘(ii) FREDDIE MAC.—If the Agency is ap- State, county, municipality, or local taxing tions are necessary to maximize the value of pointed as receiver for the Federal Home authority. the assets of the regulated entity, to maxi- Loan Mortgage Corporation, the limited-life ‘‘(6) WINDING UP.— mize the present value return from the sale regulated entity established under this sub- ‘‘(A) IN GENERAL.—Subject to subpara- or other disposition of the assets of the regu- section with respect to such enterprise shall, graphs (B) and (C), not later than 2 years lated entity, or to minimize the amount of by operation of law and immediately upon after the date of its organization, the Agency any loss realized upon the sale or other dis- its organization— shall wind up the affairs of a limited-life reg- position of the assets of the regulated entity; ‘‘(I) succeed to the charter of the Federal ulated entity. and Home Loan Mortgage Corporation, as set ‘‘(B) EXTENSION.—The Director may, in the ‘‘(II) all creditors that are similarly situ- forth in the Federal Home Loan Mortgage discretion of the Director, extend the status ated under subsection (c)(1) receive not less Corporation Charter Act; and of a limited-life regulated entity for 3 addi- than the amount provided in subsection ‘‘(II) thereafter operate in accordance with, tional 1-year periods. (e)(2). and subject to, such charter, this Act, and ‘‘(C) TERMINATION OF STATUS AS LIMITED- ‘‘(v) LIMITATION ON TRANSFER OF LIABIL- any other provision of law to which the Fed- LIFE REGULATED ENTITY.— ITIES.—Notwithstanding any other provision eral Home Loan Mortgage Corporation is ‘‘(i) IN GENERAL.—Upon the sale by the of law, the aggregate amount of liabilities of subject, except as otherwise provided in this Agency of 80 percent or more of the capital a regulated entity that are transferred to, or subsection. stock of a limited-life regulated entity, as assumed by, a limited-life regulated entity ‘‘(B) INTERESTS IN AND ASSETS AND OBLIGA- defined in clause (iv), to 1 or more persons may not exceed the aggregate amount of as- TIONS OF REGULATED ENTITY IN DEFAULT.— (other than the Agency)— sets of the regulated entity that are trans- Notwithstanding subparagraph (A) or any ‘‘(I) the status of the limited-life regulated ferred to, or purchased by, the limited-life other provision of law— entity as such shall terminate; and regulated entity. ‘‘(i) a limited-life regulated entity shall as- ‘‘(II) the entity shall cease to be a limited- ‘‘(8) REGULATIONS.—The Agency may pro- sume, acquire, or succeed to the assets or li- life regulated entity for purposes of this sub- mulgate such regulations as the Agency de- abilities of a regulated entity only to the ex- section. termines to be necessary or appropriate to tent that such assets or liabilities are trans- ‘‘(ii) DIVESTITURE OF REMAINING STOCK, IF implement this subsection. ferred by the Agency to the limited-life regu- ANY.— ‘‘(9) POWERS OF LIMITED-LIFE REGULATED lated entity in accordance with, and subject ‘‘(I) IN GENERAL.—Not later than 1 year ENTITIES.— to the restrictions set forth in, paragraph after the date on which the status of a lim- ‘‘(A) IN GENERAL.—Each limited-life regu- (1)(B); ited-life regulated entity is terminated pur- lated entity created under this subsection ‘‘(ii) a limited-life regulated entity shall suant to clause (i), the Agency shall sell to shall have all corporate powers of, and be not assume, acquire, or succeed to any obli- 1 or more persons (other than the Agency) subject to the same provisions of law as, the gation that a regulated entity for which a re- any remaining capital stock of the former regulated entity in default or in danger of ceiver has been appointed may have to any limited-life regulated entity. default to which it relates, except that— shareholder of the regulated entity that ‘‘(II) EXTENSION AUTHORIZED.—The Director ‘‘(i) the Agency may— arises as a result of the status of that person may extend the period referred to in sub- ‘‘(I) remove the directors of a limited-life as a shareholder of the regulated entity; and clause (I) for not longer than an additional 2 regulated entity; ‘‘(iii) no shareholder or creditor of a regu- years, if the Director determines that such ‘‘(II) fix the compensation of members of lated entity shall have any right or claim action would be in the public interest. the board of directors and senior manage- against the charter of the regulated entity ‘‘(iii) SAVINGS CLAUSE.—Notwithstanding ment, as determined by the Agency in its once the Agency has been appointed receiver any provision of law, other than clause (ii), discretion, of a limited-life regulated entity; for the regulated entity and a limited-life the Agency shall not be required to sell the and

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‘‘(III) indemnify the representatives for ‘‘(II) there is adequate protection of the in- ‘‘(a) ISSUANCE FOR UNSAFE OR UNSOUND purposes of paragraph (1)(B), and the direc- terest of the holder of the lien on the prop- PRACTICES AND VIOLATIONS.— tors, officers, employees, and agents of a erty with respect to which such senior or ‘‘(1) AUTHORITY OF DIRECTOR.—If, in the limited-life regulated entity on such terms equal lien is proposed to be granted. opinion of the Director, a regulated entity or as the Agency determines to be appropriate; ‘‘(D) BURDEN OF PROOF.—In any hearing any entity-affiliated party is engaging or has and under this subsection, the Director has the engaged, or the Director has reasonable ‘‘(ii) the board of directors of a limited-life burden of proof on the issue of adequate pro- cause to believe that the regulated entity or regulated entity— tection. any entity-affiliated party is about to en- ‘‘(I) shall elect a chairperson who may also ‘‘(12) AFFECT ON DEBTS AND LIENS.—The re- gage, in an unsafe or unsound practice in serve in the position of chief executive offi- versal or modification on appeal of an au- conducting the business of the regulated en- cer, except that such person shall not serve thorization under this subsection to obtain tity or the Office of Finance, or is violating either as chairperson or as chief executive credit or issue debt, or of a grant under this or has violated, or the Director has reason- officer without the prior approval of the section of a priority or a lien, does not affect able cause to believe is about to violate, a Agency; and the validity of any debt so issued, or any pri- law, rule, regulation, or order, or any condi- ‘‘(II) may appoint a chief executive officer ority or lien so granted, to an entity that ex- tion imposed in writing by the Director in who is not also the chairperson, except that tended such credit in good faith, whether or connection with the granting of any applica- such person shall not serve as chief executive not such entity knew of the pendency of the tion or other request by the regulated entity officer without the prior approval of the appeal, unless such authorization and the or the Office of Finance or any written Agency. issuance of such debt, or the granting of such agreement entered into with the Director, ‘‘(B) STAY OF JUDICIAL ACTION.—Any judi- priority or lien, were stayed pending appeal. the Director may issue and serve upon the cial action to which a limited-life regulated ‘‘(j) OTHER AGENCY EXEMPTIONS.— regulated entity or entity-affiliated party a entity becomes a party by virtue of its ac- ‘‘(1) APPLICABILITY.—The provisions of this notice of charges in respect thereof. quisition of any assets or assumption of any subsection shall apply with respect to the ‘‘(2) LIMITATION.—The Director may not, liabilities of a regulated entity in default Agency in any case in which the Agency is pursuant to this section, enforce compliance shall be stayed from further proceedings for acting as a conservator or a receiver. with any housing goal established under sub- a period of not longer than 45 days, at the re- ‘‘(2) TAXATION.—The Agency, including its part B of part 2 of subtitle A of this title, quest of the limited-life regulated entity. franchise, its capital, reserves, and surplus, with section 1336 of this title, with sub- Such period may be modified upon the con- and its income, shall be exempt from all tax- section (m) or (n) of section 309 of the Fed- sent of all parties. ation imposed by any State, county, munici- eral National Mortgage Association Charter ‘‘(10) NO FEDERAL STATUS.— pality, or local taxing authority, except that Act (12 U.S.C. 1723a(m), (n)), with subsection ‘‘(A) AGENCY STATUS.—A limited-life regu- any real property of the Agency shall be sub- (e) or (f) of section 307 of the Federal Home lated entity is not an agency, establishment, ject to State, territorial, county, municipal, Loan Mortgage Corporation Act (12 U.S.C. or instrumentality of the United States. or local taxation to the same extent accord- 1456(e), (f)), or with paragraph (5) of section ‘‘(B) EMPLOYEE STATUS.—Representatives ing to its value as other real property is 10(j) of the Federal Home Loan Bank Act (12 for purposes of paragraph (1)(B), interim di- taxed, except that, notwithstanding the fail- U.S.C. 1430(j)). rectors, directors, officers, employees, or ure of any person to challenge an assessment agents of a limited-life regulated entity are ‘‘(b) ISSUANCE FOR UNSATISFACTORY RAT- under State law of the value of such prop- ING.—If a regulated entity receives, in its not, solely by virtue of service in any such erty, and the tax thereon, shall be deter- capacity, officers or employees of the United most recent report of examination, a less- mined as of the period for which such tax is than-satisfactory rating for asset quality, States. Any employee of the Agency or of imposed. any Federal instrumentality who serves at management, earnings, or liquidity, the Di- ‘‘(3) PROPERTY PROTECTION.—No property of the request of the Agency as a representative rector may (if the deficiency is not cor- the Agency shall be subject to levy, attach- for purposes of paragraph (1)(B), interim di- rected) deem the regulated entity to be en- ment, garnishment, foreclosure, or sale with- rector, director, officer, employee, or agent gaging in an unsafe or unsound practice for out the consent of the Agency, nor shall any of a limited-life regulated entity shall not— purposes of subsection (a).’’; involuntary lien attach to the property of ‘‘(i) solely by virtue of service in any such (2) in subsection (c)— the Agency. capacity lose any existing status as an offi- (A) in paragraph (1), by inserting before ‘‘(4) PENALTIES AND FINES.—The Agency cer or employee of the United States for pur- the period at the end the following: ‘‘, unless shall not be liable for any amounts in the na- poses of title 5, United States Code, or any the party served with a notice of charges ture of penalties or fines, including those other provision of law; or shall appear at the hearing personally or by arising from the failure of any person to pay ‘‘(ii) receive any salary or benefits for serv- a duly authorized representative, the party ice in any such capacity with respect to a any real property, personal property, pro- shall be deemed to have consented to the limited-life regulated entity in addition to bate, or recording tax or any recording or fil- issuance of the cease and desist order’’; and such salary or benefits as are obtained ing fees when due. (B) in paragraph (2)— ‘‘(k) PROHIBITION OF CHARTER REVOCA- through employment with the Agency or (i) by striking ‘‘or director’’ and inserting TION.—In no case may the receiver appointed such Federal instrumentality. ‘‘director, or entity-affiliated party’’; and pursuant to this section revoke, annul, or ‘‘(11) AUTHORITY TO OBTAIN CREDIT.— (ii) by inserting ‘‘or entity-affiliated terminate the charter of an enterprise.’’. ‘‘(A) IN GENERAL.—A limited-life regulated party’’ before ‘‘consents’’; (b) TECHNICAL AND CONFORMING AMEND- entity may obtain unsecured credit and issue (3) in each of subsections (c), (d), and (e)— MENTS.—The Federal Housing Enterprises Fi- unsecured debt. (A) by striking ‘‘the enterprise’’ each place nancial Safety and Soundness Act of 1992 (12 ‘‘(B) INABILITY TO OBTAIN CREDIT.—If a lim- that term appears and inserting ‘‘the regu- U.S.C. 4501 et seq.) is amended— ited-life regulated entity is unable to obtain lated entity’’; (1) in section 1368 (12 U.S.C. 4618)— unsecured credit or issue unsecured debt, the (B) by striking ‘‘an enterprise’’ each place (A) by striking ‘‘an enterprise’’ each place Director may authorize the obtaining of that term appears and inserting ‘‘a regulated that term appears and inserting ‘‘a regulated credit or the issuance of debt by the limited- entity’’; and entity’’; and life regulated entity— (C) by striking ‘‘conduct’’ each place that (B) by striking ‘‘the enterprise’’ each place ‘‘(i) with priority over any or all of the ob- term appears and inserting ‘‘practice’’; that term appears and inserting ‘‘the regu- ligations of the limited-life regulated entity; (4) in subsection (d)— lated entity’’; ‘‘(ii) secured by a lien on property of the (A) in the matter preceding paragraph (1)— (2) in section 1369C (12 U.S.C. 4622), by limited-life regulated entity that is not oth- (i) by striking ‘‘or director’’ and inserting striking ‘‘enterprise’’ each place that term erwise subject to a lien; or ‘‘director, or entity-affiliated party’’; and appears and inserting ‘‘regulated entity’’; ‘‘(iii) secured by a junior lien on property (ii) by inserting ‘‘to require a regulated en- (3) in section 1369D (12 U.S.C. 4623)— of the limited-life regulated entity that is tity or entity-affiliated party’’ after ‘‘in- (A) by striking ‘‘an enterprise’’ each place subject to a lien. cludes the authority’’; that term appears and inserting ‘‘a regulated ‘‘(C) LIMITATIONS.— (B) in paragraph (1)— entity’’; and ‘‘(i) IN GENERAL.—The Director, after no- (i) by striking ‘‘to require an executive of- (B) in subsection (a)(1), by striking ‘‘An en- tice and a hearing, may authorize the ob- ficer or a director to’’; and terprise’’ and inserting ‘‘A regulated entity’’; taining of credit or the issuance of debt by a (ii) by striking ‘‘loss’’ and all that follows and limited-life regulated entity that is secured through ‘‘person’’ and inserting ‘‘loss, if’’; (4) by striking sections 1369, 1369A, and by a senior or equal lien on property of the (iii) in subparagraph (A), by inserting 1369B (12 U.S.C. 4619, 4620, and 4621). limited-life regulated entity that is subject ‘‘such entity or party or finance facility’’ be- to a lien (other than mortgages that Subtitle D—Enforcement Actions fore ‘‘was’’; and collateralize the mortgage-backed securities SEC. 1151. CEASE AND DESIST PROCEEDINGS. (iv) by striking subparagraph (B) and in- issued or guaranteed by an enterprise) only Section 1371 of the Federal Housing Enter- serting the following: if— prises Financial Safety and Soundness Act of ‘‘(B) the violation or practice involved a ‘‘(I) the limited-life regulated entity is un- 1992 (12 U.S.C. 4631) is amended— reckless disregard for the law or any applica- able to otherwise obtain such credit or issue (1) by striking subsections (a) and (b) and ble regulations or prior order of the Direc- such debt; and inserting the following: tor;’’; and

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(C) in paragraph (4), by inserting ‘‘loan or’’ ‘‘(2) APPLICABILITY.—A party described in ‘‘(B) the Attorney General of the United before ‘‘asset’’; this paragraph is an entity-affiliated party States. (5) in subsection (e), by inserting ‘‘or enti- or any officer, director, or management of ‘‘(3) CONSENT.—Unless the party that is the ty-affiliated party’’— the Office of Finance, if the Director deter- subject of a notice delivered under sub- (A) before ‘‘or any executive’’; and mines that— section (a) appears at the hearing in person (B) before the period at the end; and ‘‘(A) that party, officer, or director has, di- or by a duly authorized representative, such (6) in subsection (f)— rectly or indirectly— party shall be deemed to have consented to (A) by striking ‘‘enterprise’’ and inserting ‘‘(i) violated— the issuance of an order under this section. ‘‘regulated entity, finance facility,’’; and ‘‘(I) any law or regulation; ‘‘(4) ISSUANCE OF ORDER OF SUSPENSION.— (B) by striking ‘‘or director’’ and inserting ‘‘(II) any cease and desist order which has The Director may issue an order under this ‘‘director, or entity-affiliated party’’. become final; section, as the Director may deem appro- SEC. 1152. TEMPORARY CEASE AND DESIST PRO- ‘‘(III) any condition imposed in writing by priate, if— CEEDINGS. the Director in connection with the grant of ‘‘(A) a party is deemed to have consented Section 1372 of the Federal Housing Enter- any application or other request by such reg- to the issuance of an order under paragraph prises Financial Safety and Soundness Act of ulated entity; or (3); or 1992 (12 U.S.C. 4632) is amended— ‘‘(IV) any written agreement between such ‘‘(B) upon the record made at the hearing, (1) by striking subsection (a) and inserting regulated entity and the Director; the Director finds that any of the grounds the following: ‘‘(ii) engaged or participated in any unsafe specified in the notice have been established. ‘‘(a) GROUNDS FOR ISSUANCE.— or unsound practice in connection with any ‘‘(5) EFFECTIVENESS OF ORDER.—Any order ‘‘(1) IN GENERAL.—If the Director deter- regulated entity or business institution; or issued under paragraph (4) shall become ef- mines that the actions specified in the notice ‘‘(iii) committed or engaged in any act, fective at the expiration of 30 days after the of charges served upon a regulated entity or omission, or practice which constitutes a date of service upon the relevant regulated any entity-affiliated party pursuant to sec- breach of such party’s fiduciary duty; entity and party (except in the case of an tion 1371(a), or the continuation thereof, is ‘‘(B) by reason of the violation, practice, or order issued upon consent under paragraph likely to cause insolvency or significant dis- breach described in subparagraph (A)— (3), which shall become effective at the time sipation of assets or earnings of that entity, ‘‘(i) such regulated entity or business insti- specified therein). Such order shall remain or is likely to weaken the condition of that tution has suffered or will probably suffer fi- effective and enforceable except to such ex- entity prior to the completion of the pro- nancial loss or other damage; or tent as it is stayed, modified, terminated, or ceedings conducted pursuant to sections 1371 ‘‘(ii) such party has received financial gain set aside by action of the Director or a re- and 1373, the Director may— or other benefit; and viewing court. ‘‘(A) issue a temporary order requiring ‘‘(C) the violation, practice, or breach de- ‘‘(d) PROHIBITION OF CERTAIN SPECIFIC AC- that regulated entity or entity-affiliated scribed in subparagraph (A)— TIVITIES.—Any person subject to an order ‘‘(i) involves personal dishonesty on the party to cease and desist from any such vio- issued under this section shall not— part of such party; or lation or practice; and ‘‘(1) participate in any manner in the con- ‘‘(ii) demonstrates willful or continuing ‘‘(B) require that regulated entity or enti- duct of the affairs of any regulated entity or disregard by such party for the safety or ty-affiliated party to take affirmative action the Office of Finance; soundness of such regulated entity or busi- to prevent or remedy such insolvency, dis- ‘‘(2) solicit, procure, transfer, attempt to ness institution. sipation, condition, or prejudice pending transfer, vote, or attempt to vote any proxy, ‘‘(b) SUSPENSION ORDER.— completion of such proceedings. consent, or authorization with respect to ‘‘(1) SUSPENSION OR PROHIBITION AUTHOR- ‘‘(2) ADDITIONAL REQUIREMENTS.—An order any voting rights in any regulated entity; ITY.—If the Director serves written notice ‘‘(3) violate any voting agreement pre- issued under paragraph (1) may include any under subsection (a) upon a party subject to requirement authorized under subsection viously approved by the Director; or that subsection (a), the Director may, by ‘‘(4) vote for a director, or serve or act as 1371(d).’’; order, suspend or remove such party from of- (2) in subsection (b)— an entity-affiliated party of a regulated enti- fice, or prohibit such party from further par- ty or as an officer or director of the Office of (A) by striking ‘‘or director’’ and inserting ticipation in any manner in the conduct of ‘‘director, or entity-affiliated party’’; and Finance. the affairs of the regulated entity, if the Di- ‘‘(e) INDUSTRY-WIDE PROHIBITION.— (B) by striking ‘‘enterprise’’ each place rector— that term appears and inserting ‘‘regulated ‘‘(1) IN GENERAL.—Except as provided in ‘‘(A) determines that such action is nec- paragraph (2), any person who, pursuant to entity’’; essary for the protection of the regulated en- (3) in subsection (c), by striking ‘‘enter- an order issued under this section, has been tity; and removed or suspended from office in a regu- prise’’ each place that term appears and in- ‘‘(B) serves such party with written notice serting ‘‘regulated entity’’; lated entity or the Office of Finance, or pro- of the order. hibited from participating in the conduct of (4) in subsection (d)— ‘‘(2) EFFECTIVE PERIOD.—Any order issued (A) by striking ‘‘or director’’ each place the affairs of a regulated entity or the Office under this subsection— of Finance, may not, while such order is in that term appears and inserting ‘‘director, or ‘‘(A) shall become effective upon service; entity-affiliated party’’; and effect, continue or commence to hold any of- and fice in, or participate in any manner in the (B) by striking ‘‘An enterprise’’ and insert- ‘‘(B) unless a court issues a stay of such ing ‘‘A regulated entity’’; and conduct of the affairs of, any regulated enti- order under subsection (g), shall remain in ty or the Office of Finance. (5) in subsection (e)— effect and enforceable until— (A) by striking ‘‘request the Attorney Gen- ‘‘(2) EXCEPTION IF DIRECTOR PROVIDES WRIT- ‘‘(i) the date on which the Director dis- TEN CONSENT.—If, on or after the date on eral of the United States to’’; and misses the charges contained in the notice (B) by striking ‘‘or may, under the direc- which an order is issued under this section served under subsection (a) with respect to which removes or suspends from office any tion and control of the Attorney General, such party; or bring such action’’. party, or prohibits such party from partici- ‘‘(ii) the effective date of an order issued pating in the conduct of the affairs of a regu- SEC. 1153. REMOVAL AND PROHIBITION AUTHOR- under subsection (b). lated entity or the Office of Finance, such ITY. ‘‘(3) COPY OF ORDER.—If the Director issues party receives the written consent of the Di- (a) IN GENERAL.—Part 1 of subtitle C of the an order under subsection (b) to any party, rector, the order shall, to the extent of such Federal Housing Enterprises Financial Safe- the Director shall serve a copy of such order consent, cease to apply to such party with ty and Soundness Act of 1992 (12 U.S.C. 4631 on any regulated entity with which such respect to the regulated entity or such Office et seq.) is amended— party is affiliated at the time such order is of Finance described in the written consent. (1) by redesignating sections 1377 through issued. Any such consent shall be publicly disclosed. 1379B (12 U.S.C. 4637–4641) as sections 1379 ‘‘(c) NOTICE, HEARING, AND ORDER.— ‘‘(3) VIOLATION OF PARAGRAPH (1) TREATED through 1379D, respectively; and ‘‘(1) NOTICE.—A notice under subsection (a) AS VIOLATION OF ORDER.—Any violation of (2) by inserting after section 1376 (12 U.S.C. of the intention of the Director to issue an paragraph (1) by any person who is subject to 4636) the following: order under this section shall contain a an order issued under subsection (h) shall be ‘‘SEC. 1377. REMOVAL AND PROHIBITION AU- statement of the facts constituting grounds treated as a violation of the order. THORITY. for such action, and shall fix a time and ‘‘(f) APPLICABILITY.—This section shall ‘‘(a) AUTHORITY TO ISSUE ORDER.— place at which a hearing will be held on such only apply to a person who is an individual, ‘‘(1) IN GENERAL.—The Director may serve action. unless the Director specifically finds that it upon a party described in paragraph (2), or ‘‘(2) TIMING OF HEARING.—A hearing shall should apply to a corporation, firm, or other any officer, director, or management of the be fixed for a date not earlier than 30 days, business entity. Office of Finance a written notice of the in- nor later than 60 days, after the date of serv- ‘‘(g) STAY OF SUSPENSION AND PROHIBITION tention of the Director to suspend or remove ice of notice under subsection (a), unless an OF ENTITY-AFFILIATED PARTY.—Not later such party from office, or prohibit any fur- earlier or a later date is set by the Director than 10 days after the date on which any en- ther participation by such party, in any at the request of— tity-affiliated party has been suspended from manner, in the conduct of the affairs of the ‘‘(A) the party receiving such notice, and office or prohibited from participation in the regulated entity. good cause is shown; or conduct of the affairs of a regulated entity

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00092 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6065 under this section, such party may apply to ercisable by the director or directors on the gage Corporation Act (12 U.S.C. 1452(a)(2)(A)) the United States District Court for the Dis- board not so suspended, until such time as is amended, in the second sentence, by strik- trict of Columbia, or the United States dis- there shall be a quorum of the board of direc- ing ‘‘The’’ and inserting ‘‘Except to the ex- trict court for the judicial district in which tors. tent action under section 1377 of the Federal the headquarters of the regulated entity is ‘‘(B) APPOINTMENT OF TEMPORARY DIREC- Housing Enterprises Financial Safety and located, for a stay of such suspension or pro- TORS.—If all of the directors of a regulated Soundness Act of 1992 temporarily results in hibition pending the completion of the ad- entity are suspended pursuant to this sec- a lesser number, the’’. ministrative proceedings pursuant to sub- tion, the Director shall appoint persons to SEC. 1154. ENFORCEMENT AND JURISDICTION. section (c). The court shall have jurisdiction serve temporarily as directors pending the Section 1375 of the Federal Housing Enter- to stay such suspension or prohibition. termination of such suspensions, or until prises Financial Safety and Soundness Act of ‘‘(h) SUSPENSION OR REMOVAL OF ENTITY- such time as those who have been suspended 1992 (12 U.S.C. 4635) is amended— AFFILIATED PARTY CHARGED WITH FELONY.— cease to be directors of the regulated entity (1) by striking subsection (a) and inserting ‘‘(1) SUSPENSION OR PROHIBITION.— and their respective successors take office. the following new subsection: ‘‘(A) IN GENERAL.—Whenever any entity-af- ‘‘(4) HEARING REGARDING CONTINUED PAR- ‘‘(a) ENFORCEMENT.—The Director may, in filiated party is charged in any information, TICIPATION.— the discretion of the Director, apply to the indictment, or complaint, with the commis- ‘‘(A) IN GENERAL.—Not later than 30 days United States District Court for the District sion of or participation in a crime involving after the date of service of any notice of sus- dishonesty or breach of trust which is pun- of Columbia, or the United States district pension or order of removal issued pursuant court within the jurisdiction of which the ishable by imprisonment for a term exceed- to paragraph (1) or (2), the entity-affiliated ing 1 year under Federal or State law, the headquarters of the regulated entity is lo- party may request in writing an opportunity cated, for the enforcement of any effective Director may, if continued service or partici- to appear before the Director to show that pation by such party may pose a threat to and outstanding notice or order issued under the continued service or participation in the this subtitle or subtitle B, or request that the regulated entity or impair public con- conduct of the affairs of the regulated entity fidence in the regulated entity, by written the Attorney General of the United States by such party does not, or is not likely to, bring such an action. Such court shall have notice served upon such party, suspend such pose a threat to the interests of the regu- jurisdiction and power to order and require party from office or prohibit such party from lated entity, or threaten to impair public compliance with such notice or order.’’; and further participation in any manner in the confidence in the regulated entity. (2) in subsection (b), by striking ‘‘or 1376’’ conduct of the affairs of any regulated enti- ‘‘(B) TIMING AND FORM OF HEARING.—Upon and inserting ‘‘1313B, 1376, or 1377’’. ty. receipt of a request for a hearing under sub- ‘‘(B) PROVISIONS APPLICABLE TO NOTICE.— paragraph (A), the Director shall fix a time SEC. 1155. CIVIL MONEY PENALTIES. ‘‘(i) COPY.—A copy of any notice under sub- (not later than 30 days after the date of re- Section 1376 of the Federal Housing Enter- paragraph (A) shall be served upon the rel- ceipt of such request, unless extended at the prises Financial Safety and Soundness Act of evant regulated entity. request of such party) and place at which the 1992 (12 U.S.C. 4636) is amended— ‘‘(ii) EFFECTIVE PERIOD.—A suspension or entity-affiliated party may appear, person- (1) by striking subsection (a) and inserting prohibition under subparagraph (A) shall re- ally or through counsel, before the Director the following: main in effect until the information, indict- or 1 or more designated employees of the Di- ‘‘(a) IN GENERAL.—The Director may im- ment, or complaint referred to in subpara- rector to submit written materials (or, at pose a civil money penalty in accordance graph (A) is finally disposed of, or until ter- the discretion of the Director, oral testi- with this section on any regulated entity or minated by the Director. mony) and oral argument. any entity-affiliated party. The Director ‘‘(2) REMOVAL OR PROHIBITION.— ‘‘(C) DETERMINATION.—Not later than 60 shall not impose a civil penalty in accord- ‘‘(A) IN GENERAL.—If a judgment of convic- days after the date of a hearing under sub- ance with this section on any regulated enti- tion or an agreement to enter a pretrial di- paragraph (B), the Director shall notify the ty or any entity-affiliated party for any vio- version or other similar program is entered entity-affiliated party whether the suspen- lation that is addressed under section against an entity-affiliated party in connec- sion or prohibition from participation in any 1345(a).’’; tion with a crime described in paragraph manner in the conduct of the affairs of the (2) by striking subsection (b) and inserting (1)(A), at such time as such judgment is not regulated entity will be continued, termi- the following: subject to further appellate review, the Di- nated, or otherwise modified, or whether the ‘‘(b) AMOUNT OF PENALTY.— rector may, if continued service or participa- order removing such party from office or ‘‘(1) FIRST TIER.—A regulated entity or en- tion by such party may pose a threat to the prohibiting such party from further partici- tity-affiliated party shall forfeit and pay a regulated entity or impair public confidence pation in any manner in the conduct of the civil penalty of not more than $10,000 for in the regulated entity, issue and serve upon affairs of the regulated entity will be re- each day during which a violation continues, such party an order removing such party scinded or otherwise modified. Such notifica- if such regulated entity or party— from office or prohibiting such party from tion shall contain a statement of the basis ‘‘(A) violates any provision of this title, further participation in any manner in the for any adverse decision of the Director. the authorizing statutes, or any order, condi- conduct of the affairs of the regulated entity ‘‘(5) RULES.—The Director is authorized to tion, rule, or regulation under this title or without the prior written consent of the Di- prescribe such rules as may be necessary to any authorizing statute; rector. carry out this subsection.’’. ‘‘(B) violates any final or temporary order ‘‘(B) PROVISIONS APPLICABLE TO ORDER.— (b) CONFORMING AMENDMENTS.— or notice issued pursuant to this title; ‘‘(i) COPY.—A copy of any order under sub- (1) SAFETY AND SOUNDNESS ACT.—Subtitle C ‘‘(C) violates any condition imposed in paragraph (A) shall be served upon the rel- of the Federal Housing Enterprises Financial writing by the Director in connection with evant regulated entity, at which time the en- Safety and Soundness Act of 1992 (12 U.S.C. the grant of any application or other request tity-affiliated party who is subject to the 4501 et seq.) is amended— by such regulated entity; or order (if a director or an officer) shall cease (A) in section 1317(f), by striking ‘‘section ‘‘(D) violates any written agreement be- to be a director or officer of such regulated 1379B’’ and inserting ‘‘section 1379D’’; tween the regulated entity and the Director. entity. (B) in section 1373(a)— ‘‘(2) SECOND TIER.—Notwithstanding para- ‘‘(ii) EFFECT OF ACQUITTAL.—A finding of (i) in paragraph (1), by striking ‘‘or 1376(c)’’ graph (1), a regulated entity or entity-affili- not guilty or other disposition of the charge and inserting ‘‘, 1376(c), or 1377’’; ated party shall forfeit and pay a civil pen- shall not preclude the Director from insti- (ii) in paragraph (2), by inserting ‘‘or 1377’’ alty of not more than $50,000 for each day tuting proceedings after such finding or dis- after’’1371’’; and during which a violation, practice, or breach position to remove a party from office or to (iii) in paragraph (4), by inserting ‘‘or re- continues, if— prohibit further participation in the affairs moval or prohibition’’ after ‘‘cease and de- ‘‘(A) the regulated entity or entity-affili- of a regulated entity pursuant to subsection sist’’; and ated party, respectively— (a) or (b). (C) in section 1374(a)— ‘‘(i) commits any violation described in ‘‘(iii) EFFECTIVE PERIOD.—Unless termi- (i) by striking ‘‘or 1376’’ and inserting any subparagraph of paragraph (1); nated by the Director, any notice of suspen- ‘‘1313B , 1376, or 1377’’; and ‘‘(ii) recklessly engages in an unsafe or un- sion or order of removal issued under this (ii) by striking ‘‘such section’’ and insert- sound practice in conducting the affairs of subsection shall remain effective and out- ing ‘‘this title’’. the regulated entity; or standing until the completion of any hearing (2) FANNIE MAE CHARTER ACT.—Section ‘‘(iii) breaches any fiduciary duty; and or appeal authorized under paragraph (4). 308(b) of the Federal National Mortgage As- ‘‘(B) the violation, practice, or breach— ‘‘(3) AUTHORITY OF REMAINING BOARD MEM- sociation Charter Act (12 U.S.C. 1723(b)) is ‘‘(i) is part of a pattern of misconduct; BERS.— amended in the second sentence, by striking ‘‘(ii) causes or is likely to cause more than ‘‘(A) IN GENERAL.—If at any time, because ‘‘The’’ and inserting ‘‘Except to the extent a minimal loss to the regulated entity; or of the suspension of 1 or more directors pur- that action under section 1377 of the Federal ‘‘(iii) results in pecuniary gain or other suant to this section, there shall be on the Housing Enterprises Financial Safety and benefit to such party. board of directors of a regulated entity less Soundness Act of 1992 temporarily results in ‘‘(3) THIRD TIER.—Notwithstanding para- than a quorum of directors not so suspended, a lesser number, the’’. graphs (1) and (2), any regulated entity or en- all powers and functions vested in or exer- (3) FREDDIE MAC CHARTER ACT.—Section tity-affiliated party shall forfeit and pay a cisable by such board shall vest in and be ex- 303(a)(2)(A) of the Federal Home Loan Mort- civil penalty in an amount not to exceed the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00093 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6066 CONGRESSIONAL RECORD — SENATE June 24, 2008 applicable maximum amount determined (2) in section 1379A (as so designated by Soundness Act of 1992 (12 U.S.C. 4501 et seq.), under paragraph (4) for each day during this Act), by striking ‘‘an enterprise’’ and in- as amended by this Act, is amended— which such violation, practice, or breach serting ‘‘a regulated entity’’; (1) in section 1315 (12 U.S.C. 4515)— continues, if such regulated entity or entity- (3) in section 1379B(c) (as so designated by (A) in subsection (a)— affiliated party— this Act), by striking ‘‘enterprise’’ and in- (i) by striking ‘‘(a) OFFICE PERSONNEL.— ‘‘(A) knowingly— serting ‘‘regulated entity’’; and The’’ and inserting ‘‘(a) IN GENERAL.—Sub- ‘‘(i) commits any violation described in (4) in section 1379D (as so designated by ject to title III of the Federal Housing Fi- any subparagraph of paragraph (1); this Act), by striking ‘‘enterprise’’ and in- nance Regulatory Reform Act of 2008, the’’; ‘‘(ii) engages in any unsafe or unsound serting ‘‘regulated entity’’. and practice in conducting the affairs of the reg- SEC. 1157. NOTICE AFTER SEPARATION FROM (ii) by striking ‘‘the Office’’ each place ulated entity; or SERVICE. that term appears and inserting ‘‘the Agen- ‘‘(iii) breaches any fiduciary duty; and Section 1379 of the Federal Housing Enter- cy’’; ‘‘(B) knowingly or recklessly causes a sub- prises Financial Safety and Soundness Act of (B) in subsection (c), by striking ‘‘the Of- stantial loss to the regulated entity or a sub- 1992 (12 U.S.C. 4637), as so designated by this fice’’ and inserting ‘‘the Agency’’; stantial pecuniary gain or other benefit to Act, is amended— (C) in subsection (e), by striking ‘‘the Of- such party by reason of such violation, prac- (1) by striking ‘‘2-year’’ and inserting ‘‘6- fice’’ and inserting ‘‘the Agency’’; tice, or breach. year’’; (D) by striking subsection (d) and redesig- ‘‘(4) MAXIMUM AMOUNTS OF PENALTIES FOR (2) by striking ‘‘a director or executive of- nating subsection (e) as subsection (d); and ANY VIOLATION DESCRIBED IN PARAGRAPH (3).— ficer of an enterprise’’ and inserting ‘‘an en- (E) by striking subsection (f); The maximum daily amount of any civil pen- tity-affiliated party’’; (2) in section 1319A (12 U.S.C. 4520)— alty which may be assessed pursuant to (3) by striking ‘‘director or officer’’ each (A) by striking ‘‘(a) IN GENERAL.—’’; and paragraph (3) for any violation, practice, or place that term appears and inserting ‘‘enti- (B) by striking subsection (b); breach described in paragraph (3) is— ty-affiliated party’’; and (3) in section 1364(c) (12 U.S.C. 4614(c)), by ‘‘(A) in the case of any entity-affiliated (4) by striking ‘‘enterprise.’’ and inserting striking the last sentence; party, an amount not to exceed $2,000,000; ‘‘regulated entity.’’. (4) by striking section 1383 (12 U.S.C. 1451 and SEC. 1158. SUBPOENA AUTHORITY. note); ‘‘(B) in the case of any regulated entity, (a) IN GENERAL.—Section 1379B of the Fed- (5) in each of sections 1319D, 1319E, and $2,000,000.’’; eral Housing Enterprises Financial Safety 1319F (12 U.S.C. 4523, 4524, 4525) by striking (3) in subsection (c)— and Soundness Act of 1992 (12 U.S.C. 4641) is ‘‘the Office’’ each place that term appears (A) by striking ‘‘enterprise’’ each place amended— and inserting ‘‘the Agency’’; and that term appears and inserting ‘‘regulated (1) in subsection (a)— (6) in each of sections 1319B and 1369(a)(3) entity’’; (A) in the matter preceding paragraph (1)— (12 U.S.C. 4521, 4619(a)(3)), by striking ‘‘Com- (i) by striking ‘‘administrative’’; (B) by inserting ‘‘or entity-affiliated mittee on Banking, Finance and Urban Af- (ii) by inserting ‘‘, examination, or inves- party’’ before ‘‘in writing’’; and fairs’’ each place such term appears and in- tigation’’ after ‘‘proceeding’’; (C) by inserting ‘‘or entity-affiliated serting ‘‘Committee on Financial Services’’. (iii) by striking ‘‘subtitle’’ and inserting (b) AMENDMENTS TO FANNIE MAE CHARTER party’’ before ‘‘has been given’’; ‘‘title’’; and ACT.—The Federal National Mortgage Asso- (4) in subsection (d)— (iv) by inserting ‘‘or any designated rep- ciation Charter Act (12 U.S.C. 1716 et seq.) is (A) by striking ‘‘or director’’ each place resentative thereof, including any person amended— such term appears and inserting ‘‘director, designated to conduct any hearing under this (1) in each of sections 303(c)(2) (12 U.S.C. or entity-affiliated party’’; subtitle’’ after ‘‘Director’’; and 1718(c)(2)), 309(d)(3)(B) (12 U.S.C. (B) by striking ‘‘an enterprise’’ and insert- (B) in paragraph (4), by striking ‘‘issued by 1723a(d)(3)(B)), and 309(k)(1) (12 U.S.C. ing ‘‘a regulated entity’’; the Director’’; 1723a(k)(1)), by striking ‘‘Director of the Of- (C) by striking ‘‘the enterprise’’ and insert- (2) in subsection (b), by inserting ‘‘or in fice of Federal Housing Enterprise Oversight ing ‘‘the regulated entity’’; any territory or other place subject to the of the Department of Housing and Urban De- (D) by striking ‘‘request the Attorney Gen- jurisdiction of the United States’’ after velopment’’ each place that term appears, eral of the United States to’’; ‘‘State’’; and inserting ‘‘Director of the Federal Hous- (E) by inserting ‘‘, or the United States (3) by striking subsection (c) and inserting ing Finance Agency’’; and district court within the jurisdiction of the following: (2) in section 309— which the headquarters of the regulated en- ‘‘(c) ENFORCEMENT.— (A) in subsection (m) (12 U.S.C. 1723a(m))— tity is located,’’ after ‘‘District of Colum- ‘‘(1) IN GENERAL.—The Director, or any (i) in paragraph (1), by striking ‘‘to the bia’’; party to proceedings under this subtitle, Secretary, in a form determined by the Sec- (F) by striking ‘‘, or may, under the direc- may apply to the United States District retary’’ and inserting ‘‘to the Director of the tion and control of the Attorney General of Court for the District of Columbia, or the Federal Housing Finance Agency, in a form the United States, bring such an action’’; United States district court for the judicial determined by the Director’’; and and district of the United States in any territory (ii) in paragraph (2), by striking ‘‘to the (G) by striking ‘‘and section 1374’’; and in which such proceeding is being conducted, Secretary, in a form determined by the Sec- (5) in subsection (g), by striking ‘‘An enter- or where the witness resides or carries on retary’’ and inserting ‘‘to the Director of the prise’’ and inserting ‘‘A regulated entity’’. business, for enforcement of any subpoena or Federal Housing Finance Agency, in a form SEC. 1156. CRIMINAL PENALTY. subpoena duces tecum issued pursuant to determined by the Director’’; (a) IN GENERAL.—Subtitle C of the Federal this section. (B) in subsection (n) (12 U.S.C. 1723a(n))— Housing Enterprises Financial Safety and ‘‘(2) POWER OF COURT.—The courts de- (i) in paragraph (1), by striking ‘‘and the Soundness Act of 1992 (12 U.S.C. 4631 et seq.) scribed under paragraph (1) shall have the ju- Secretary’’ and inserting ‘‘and the Director is amended by inserting after section 1377, as risdiction and power to order and require of the Federal Housing Finance Agency’’; added by this Act, the following: compliance with any subpoena issued under and paragraph (1).’’; (ii) in paragraph (2), by striking ‘‘Sec- ‘‘SEC. 1378. CRIMINAL PENALTY. (4) in subsection (d), by inserting ‘‘enter- retary’’ each place that term appears and in- ‘‘Whoever, being subject to an order in ef- prise-affiliated party’’ before ‘‘may allow’’; serting ‘‘Director of the Federal Housing Fi- fect under section 1377, without the prior and nance Agency’’; and written approval of the Director, knowingly (5) by adding at the end the following: (C) in paragraph (3)(B), by striking ‘‘Sec- participates, directly or indirectly, in any ‘‘(e) PENALTIES.—A person shall be guilty retary’’ and inserting ‘‘Director of the Fed- manner (including by engaging in an activity of a misdemeanor, and upon conviction, shall eral Housing Finance Agency’’. specifically prohibited in such an order) in be subject to a fine of not more than $1,000 or (c) AMENDMENTS TO FREDDIE MAC CHARTER the conduct of the affairs of any regulated to imprisonment for a term of not more than ACT.—The Federal Home Loan Mortgage entity shall, notwithstanding section 3571 of 1 year, or both, if that person willfully fails Corporation Act (12 U.S.C. 1451 et seq.) is title 18, be fined not more than $1,000,000, im- or refuses, in disobedience of a subpoena amended— prisoned for not more than 5 years, or issued under subsection (c), to— (1) in each of sections 303(b)(2) (12 U.S.C. both.’’. ‘‘(1) attend court; 1452(b)(2)), 303(h)(2) (12 U.S.C. 1452(h)(2)), and (b) TECHNICAL AND CONFORMING AMEND- ‘‘(2) testify in court; section 307(c)(1) (12 U.S.C. 1456(c)(1)), by MENTS.—The Federal Housing Enterprises Fi- ‘‘(3) answer any lawful inquiry; or striking ‘‘Director of the Office of Federal nancial Safety and Soundness Act of 1992 (12 ‘‘(4) produce books, papers, correspondence, Housing Enterprise Oversight of the Depart- U.S.C. 4501 et seq.) is amended— contracts, agreements, or such other records ment of Housing and Urban Development’’ (1) in section 1379 (as so designated by this as requested in the subpoena.’’. each place that term appears, and inserting Act)— Subtitle E—General Provisions ‘‘Director of the Federal Housing Finance (A) by striking ‘‘an enterprise’’ and insert- SEC. 1161. CONFORMING AND TECHNICAL Agency’’; ing ‘‘a regulated entity’’; and AMENDMENTS. (2) in section 306 (12 U.S.C. 1455)— (B) by striking ‘‘the enterprise’’ and insert- (a) AMENDMENTS TO 1992 ACT.—The Federal (A) in subsection (c)(2), by inserting ‘‘the’’ ing ‘‘the regulated entity’’; Housing Enterprises Financial Safety and after ‘‘Secretary of’’;

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00094 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6067 (B) in subsection (i)— ‘‘(vii) Federal Housing Finance Agency.’’. ‘‘(B) the mission of providing liquidity to (i) by striking ‘‘section 1316(c)’’ and insert- SEC. 1162. PRESIDENTIALLY-APPOINTED DIREC- members; ing ‘‘section 306(c)’’; and TORS OF ENTERPRISES. ‘‘(C) affordable housing and community de- (ii) by striking ‘‘section 106’’ and inserting (a) FANNIE MAE.— velopment mission; ‘‘section 1316’’; and (1) IN GENERAL.—Section 308(b) of the Fed- ‘‘(D) capital structure; and (C) in subsection (j)(2), by striking ‘‘of sub- eral National Mortgage Association Charter ‘‘(E) joint and several liability; and stantially’’ and inserting ‘‘or substantially’’; Act (12 U.S.C. 1723(b)) is amended— ‘‘(2) any other differences that the Director and (A) in the first sentence, by striking considers appropriate.’’. (3) in section 307 (12 U.S.C. 1456)— ‘‘eighteen persons, five of whom shall be ap- SEC. 1202. DIRECTORS. (A) in subsection (e)— pointed annually by the President of the Section 7 of the Federal Home Loan Bank (i) in paragraph (1), by striking ‘‘to the United States, and the remainder of whom’’ Act (12 U.S.C. 1427) is amended— Secretary, in a form determined by the Sec- and inserting ‘‘13 persons, or such other (1) by striking subsection (a) and inserting retary’’ and inserting ‘‘to the Director of the number that the Director determines appro- the following: Federal Housing Finance Agency, in a form priate, who’’; ‘‘(a) NUMBER; ELECTION; QUALIFICATIONS; determined by the Director’’; and (B) in the second sentence, by striking ‘‘ap- CONFLICTS OF INTEREST.— (ii) in paragraph (2), by striking ‘‘to the pointed by the President’’; ‘‘(1) IN GENERAL.—Subject to paragraphs (2) Secretary, in a form determined by the Sec- (C) in the third sentence— through (4), the management of each Federal retary’’ and inserting ‘‘to the Director of the (i) by striking ‘‘appointed or’’; and Home Loan Bank shall be vested in a board Federal Housing Finance Agency, in a form (ii) by striking ‘‘, except that any such ap- of 13 directors, or such other number as the determined by the Director’’; and pointed member may be removed from office Director determines appropriate. (B) in subsection (f)— by the President for good cause’’; ‘‘(2) BOARD MAKEUP.—The board of direc- (i) in paragraph (1), by striking ‘‘and the (D) in the fourth sentence, by striking tors of each Bank shall be comprised of— Secretary’’ and inserting ‘‘and the Director ‘‘elective’’; and ‘‘(A) member directors, who shall comprise of the Federal Housing Finance Agency’’; (E) by striking the fifth sentence. at least the majority of the members of the (ii) in paragraph (2), by striking ‘‘the Sec- (2) TRANSITIONAL PROVISION.—The amend- board of directors; and retary’’ each place that term appears and in- ments made by paragraph (1) shall not apply serting ‘‘the Director of the Federal Housing ‘‘(B) independent directors, who shall com- to any appointed position of the board of di- 2 Finance Agency’’; and prise not fewer than ⁄5 of the members of the rectors of the Federal National Mortgage As- board of directors. (iii) in paragraph (3)(B), by striking ‘‘Sec- sociation until the expiration of the annual retary’’ and inserting ‘‘Director of the Fed- ‘‘(3) SELECTION CRITERIA.— term for such position during which the ef- ‘‘(A) IN GENERAL.—Each member of the eral Housing Finance Agency’’. fective date under section 1163 occurs. (d) AMENDMENT TO TITLE 18, UNITED STATES board of directors shall be— (b) FREDDIE MAC.— CODE.—Section 1905 of title 18, United States ‘‘(i) elected by plurality vote of the mem- (1) IN GENERAL.—Section 303(a)(2) of the Code, is amended by striking ‘‘Office of Fed- bers, in accordance with procedures estab- Federal Home Loan Mortgage Corporation eral Housing Enterprise Oversight’’ and in- lished under this section; and Act (12 U.S.C. 1452(a)(2)) is amended— serting ‘‘Federal Housing Finance Agency’’. ‘‘(ii) a citizen of the United States. (A) in subparagraph (A)— (e) AMENDMENTS TO FLOOD DISASTER PRO- ‘‘(B) INDEPENDENT DIRECTOR CRITERIA.— TECTION ACT OF 1973.—Section 102(f)(3)(A) of (i) in the first sentence, by striking ‘‘18 ‘‘(i) IN GENERAL.—Each independent direc- the Flood Disaster Protection Act of 1973 (42 persons, 5 of whom shall be appointed annu- tor that is not a public interest director U.S.C. 4012a(f)(3)(A)) is amended by striking ally by the President of the United States under clause (ii) shall have demonstrated ‘‘Director of the Office of Federal Housing and the remainder of whom’’ and inserting knowledge of, or experience in, financial Enterprise Oversight of the Department of ‘‘13 persons, or such other number as the Di- management, auditing and accounting, risk Housing and Urban Development’’ and in- rector determines appropriate, who’’; and management practices, derivatives, project serting ‘‘Director of the Federal Housing Fi- (ii) in the second sentence, by striking ‘‘ap- development, or organizational manage- nance Agency’’. pointed by the President of the United ment, or such other knowledge or expertise (f) AMENDMENT TO DEPARTMENT OF HOUSING States’’; as the Director may provide by regulation. AND URBAN DEVELOPMENT ACT.—Section 5 of (B) in subparagraph (B)— ‘‘(ii) PUBLIC INTEREST.—Not fewer than 2 of the Department of Housing and Urban Devel- (i) by striking ‘‘such or’’; and the independent directors shall have more opment Act (42 U.S.C. 3534) is amended by (ii) by striking ‘‘, except that any ap- than 4 years of experience in representing striking subsection (d). pointed member may be removed from office consumer or community interests on bank- (g) AMENDMENTS TO TITLE 5, UNITED STATES by the President for good cause’’; and ing services, credit needs, housing, or finan- CODE.—Title 5, United States Code, is (C) in subparagraph (C)— cial consumer protections. amended— (i) by striking the first sentence; and ‘‘(iii) CONFLICTS OF INTEREST.—No inde- (1) in section 5313, by striking the item re- (ii) by striking ‘‘elective’’. pendent director may, during the term of lating to the Director of the Office of Federal (2) TRANSITIONAL PROVISION.—The amend- service on the board of directors, serve as an Housing Enterprise Oversight, Department ments made by paragraph (1) shall not apply officer of any Federal Home Loan Bank or as of Housing and Urban Development and in- to any appointed position of the board of di- a director, officer, or employee of any mem- serting the following new item: rectors of the Federal Home Loan Mortgage ber of a Bank, or of any person that receives ‘‘Director of the Federal Housing Finance Corporation until the expiration of the an- Agency.’’; and advances from a Bank. nual term for such position during which the ‘‘(4) DEFINITIONS.—For purposes of this sec- (2) in section 3132(a)(1)— effective date under section 1163 occurs. (A) in subparagraph (B), by striking ‘‘,, tion, the following definitions shall apply: SEC. 1163. EFFECTIVE DATE. ‘‘(A) INDEPENDENT DIRECTOR.—The terms and’’ and inserting ‘‘, and’’; Except as otherwise specifically provided (B) in subparagraph (D)— ‘independent director’ and ‘independent di- in this title, this title and the amendments rectorship’ mean a member of the board of (i) by striking ‘‘the Federal Housing Fi- made by this title shall take effect on, and nance Board’’; directors of a Federal Home Loan Bank who shall apply beginning on, the date of enact- is a bona fide resident of the district in (ii) by striking ‘‘the Office of Federal ment of this Act. Housing Enterprise Oversight of the Depart- which the Federal Home Loan Bank is lo- ment of Housing and Urban Development’’ TITLE II—FEDERAL HOME LOAN BANKS cated, or the directorship held by such a per- and inserting ‘‘the Federal Housing Finance SEC. 1201. RECOGNITION OF DISTINCTIONS BE- son, respectively. Agency’’; and TWEEN THE ENTERPRISES AND THE ‘‘(B) MEMBER DIRECTOR.—The terms ‘mem- (iii) by striking ‘‘or or’’ at the end; FEDERAL HOME LOAN BANKS. ber director’ and ‘member directorship’ (C) in subparagraph (E), as added by sec- Section 1313 of the Federal Housing Enter- mean a member of the board of directors of tion 8(d)(1)(B)(iii) of Public Law 107-123, by prises Financial Safety and Soundness Act of a Federal Home Loan Bank who is an officer adding ‘‘or’’ at the end; and 1992 (12 U.S.C. 4513) is amended by adding at or director of a member institution that is (D) by redesignating subparagraph (E), as the end the following: located in the district in which the Federal added by section 10702(c)(1)(C) of Public Law ‘‘(f) RECOGNITION OF DISTINCTIONS BETWEEN Home Loan Bank is located, or the director- 107-171, as subparagraph (F). THE ENTERPRISES AND THE FEDERAL HOME ship held by such a person, respectively.’’; (h) AMENDMENT TO SARBANES-OXLEY ACT.— LOAN BANKS.—Prior to promulgating any (2) by striking ‘‘elective’’ each place that Section 105(b)(5)(B)(ii)(II) of the Sarbanes- regulation or taking any other formal or in- term appears, other than in subsections (d), Oxley Act of 2002 (15 U.S.C. formal agency action of general applicability (e), and (f), and inserting ‘‘member’’; 7215(b)(5)(B)(ii)(II)) is amended by inserting relating to the Federal Home Loan Banks, (3) in subsection (b)— ‘‘and the Director of the Federal Housing Fi- including the issuance of an advisory docu- (A) by striking the subsection heading and nance Agency,’’ after ‘‘Commission,’’. ment or examination guidance, the Director all that follows through ‘‘Each elective di- (i) AMENDMENT TO FEDERAL DEPOSIT INSUR- shall consider the differences between the rectorship’’ and inserting the following: ANCE ACT.—Section 11(t)(2)(A) of the Federal Federal Home Loan Banks and the enter- ‘‘(b) DIRECTORSHIPS.— Deposit Insurance Act (12 U.S.C. prises with respect to— ‘‘(1) MEMBER DIRECTORSHIPS.—Each mem- 1821(t)(2)(A)) is amended by adding at the end ‘‘(1) the Banks’— ber directorship’’; and the following: ‘‘(A) cooperative ownership structure; (B) by adding at the end the following:

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‘‘(2) INDEPENDENT DIRECTORSHIPS.— to the date of enactment of this subsection rector of the Office of Thrift Supervision to ‘‘(A) ELECTIONS.—Each independent direc- may continue to serve as a member of that make any such payment shall not be re- tor— board of directors for the remainder of the garded as an obligation of the United States. ‘‘(i) shall be elected by the members enti- existing term of service.’’. To such extent as the Director of the Office tled to vote, from among eligible persons SEC. 1203. DEFINITIONS. of Thrift Supervision may prescribe any such nominated, after consultation with the Advi- Section 2 of the Federal Home Loan Bank obligation shall be regarded as a legal in- sory Council of the Bank, by the board of di- Act (12 U.S.C. 1422) is amended— vestment for the purposes of subsections (g) rectors of the Bank; and (1) by striking paragraphs (1), (10), and (11); and (h) of section 11 and for the purposes of ‘‘(ii) shall be elected by a plurality of the (2) by redesignating paragraphs (2) through section 16. votes of the members of the Bank at large, (9) as paragraphs (1) through (8), respec- ‘‘(c) PLANS AND DESIGNS.—The plans and with each member having the number of tively; designs for such buildings and facilities and votes for each such directorship as it has (3) by redesignating paragraphs (12) and for any such enlargement, remodeling, or re- under paragraph (1) in an election to fill (13) as paragraphs (9) and (10), respectively; construction shall, to such extent as the member directorships. and chairperson of the Director of the Office of ‘‘(B) CRITERIA.—Nominees shall meet all (4) by adding at the end the following: Thrift Supervision may request, be subject to the approval of the Director. applicable requirements prescribed in this ‘‘(11) DIRECTOR.—The term ‘Director’ ‘‘(d) CUSTODY, MANAGEMENT AND CON- section. means the Director of the Federal Housing TROL.—Upon the making of arrangements ‘‘(C) NOMINATION AND ELECTION PROCE- Finance Agency. mutually agreeable to the Director of the Of- DURES.—Procedures for nomination and elec- ‘‘(12) AGENCY.—The term ‘Agency’ means fice of Thrift Supervision and the Adminis- tion of independent directors shall be pre- the Federal Housing Finance Agency, estab- trator, which arrangements may be modified scribed by the bylaws of each Federal Home lished under section 1311 of the Federal Loan Bank, in a manner consistent with the from time to time by mutual agreement be- Housing Enterprises Financial Safety and tween them and may include but shall not be rules and regulations of the Agency.’’; Soundness Act of 1992.’’. (4) in subsection (c)— limited to the making of payments by the (A) by striking ‘‘elective’’ each place that SEC. 1204. AGENCY OVERSIGHT OF FEDERAL Director of the Office of Thrift Supervision HOME LOAN BANKS. term appears and inserting ‘‘member’’, ex- and such agencies to the Administrator and The Federal Home Loan Bank Act (12 cept— by the Administrator to the Director of the U.S.C. 1421 et seq.), other than in provisions (i) in the second sentence, the second place Office of Thrift Supervision, the custody, of that Act added or amended otherwise by that term appears; and management, and control of such buildings this Act, is amended— (ii) each place that term appears in the and facilities and of such real property shall (1) by striking sections 2A and 2B (12 U.S.C. fifth sentence; and be vested in the Administrator in accordance 1422a, 1422b); (B) in the second sentence— therewith. Until the making of such arrange- (2) by striking section 18 (12 U.S.C. 1438) (i) by inserting ‘‘(A) except as provided in ments, such custody, management, and con- and inserting the following: clause (B) of this sentence,’’ before ‘‘if at any trol, including the assignment and allotment time’’; and ‘‘SEC. 18. ADMINISTRATIVE PROVISIONS. and the reassignment and reallotment of (ii) by inserting before the period at the ‘‘(a) ACQUISITION AUTHORITY.—The Director building and other space, shall be vested in end the following: ‘‘, and (B) clause (A) of of the Office of Thrift Supervision, utilizing the Director of the Office of Thrift Super- this sentence shall not apply to the director- the services of the Administrator of General vision. ships of any Federal Home Loan Bank result- Services (hereinafter referred to as the ‘Ad- ‘‘(e) PROCEEDS.—Any proceeds (including ing from the merger of any 2 or more such ministrator’), and subject to any limitation advances) received by the Director of the Of- Banks’’; hereon which may hereafter be imposed in fice of Thrift Supervision in connection with (5) in subsection (d)— appropriation Acts, is hereby authorized— this subsection, and any proceeds from the (A) in the first sentence— ‘‘(1) to acquire, in the name of the United sale or other disposition of real or other (i) by striking ‘‘, whether elected or ap- States, real property in the District of Co- property acquired by the Director of the Of- pointed,’’; and lumbia, for the purposes set forth in this sec- fice of Thrift Supervision under this section, (ii) by striking ‘‘3 years’’ and inserting ‘‘4 tion; shall be considered as receipts of the Direc- years’’; ‘‘(2) to construct, develop, furnish, and tor of the Office of Thrift Supervision, and (B) in the second sentence— equip such buildings thereon and such facili- obligations and expenditures of the Director (i) by striking ‘‘Federal Home Loan Bank ties as in its judgment may be appropriate to of the Office of Thrift Supervision and such System Modernization Act of 1999’’ and in- provide, to such extent as the Director of the agencies in connection with this section serting ‘‘Federal Housing Finance Regu- Office of Thrift Supervision may deem advis- shall not be considered as administrative ex- latory Reform Act of 2008’’; able, suitable and adequate quarters and fa- penses. As used in this section, the term (ii) by striking ‘‘1⁄3’’ and inserting ‘‘1⁄4’’; and cilities for the Director of the Office of ‘property’ shall include interests in property. (iii) by striking ‘‘or appointed’’; and Thrift Supervision and the agencies under its ‘‘(f) BUDGET PROGRAM.— (C) in the third sentence— administration or supervision; ‘‘(1) IN GENERAL.—With respect to its func- (i) by striking ‘‘an elective’’ each place ‘‘(3) to enlarge, remodel, or reconstruct tions under this section, the Director of the that term appears and inserting ‘‘a’’; and any of the same; and Office of Thrift Supervision shall— (ii) by striking ‘‘in any elective director- ‘‘(4) to make or enter into contracts for ‘‘(A) annually prepare and submit a budget ship or elective directorships’’; any of the foregoing. program as provided in title I of the Govern- (6) in subsection (f)— ‘‘(b) ADVANCES.—The Director of the Office ment Corporation Control Act with regard to (A) by striking paragraph (2); of Thrift Supervision may require of the re- wholly owned Government corporations, and (B) by striking ‘‘appointed or’’ each place spective banks, and they shall make to the for purposes of this paragraph, the terms that term appears; and Director of the Office of Thrift Supervision, ‘wholly owned Government corporations’ and (C) in paragraph (3)— such advances of funds for the purposes set ‘Government corporations’, wherever used in (i) by striking ‘‘(3) ELECTED BANK DIREC- out in subsection (a) as in the sole judgment such title, shall include the Director of the TORS.—’’ and inserting ‘‘(2) ELECTION PROC- of the Director of the Office of Thrift Super- Office of Thrift Supervision; and ESS.—’’; and vision may from time to time be advisable. ‘‘(B) maintain an integral set of accounts (ii) by striking ‘‘elective’’ each place that Such advances shall be apportioned by the which shall be audited by the General Ac- term appears; Director of the Office of Thrift Supervision counting Office in accordance with the prin- (7) in subsection (i)— among the banks in proportion to the total ciples and procedures applicable to commer- (A) in paragraph (1), by striking ‘‘Subject assets of the respective banks, determined in cial corporate transactions, as provided in to paragraph (2), each’’ and inserting such manner and as of such times as the Di- such title, and no other settlement or adjust- ‘‘Each’’; and rector of the Office of Thrift Supervision ment shall be required with respect to trans- (B) by striking paragraph (2) and inserting may prescribe. Each such advance shall bear actions under this section or with respect to the following: interest at the rate of 4 1⁄2 per centum per claims, demands, or accounts by or against ‘‘(2) ANNUAL REPORT.—The Director shall annum from the date of the advance and any person arising thereunder. include, in the annual report submitted to shall be repaid by the Director of the Office ‘‘(2) MISCELLANEOUS PROVISIONS.—The first the Congress pursuant to section 1319B of the of Thrift Supervision in such installments budget program shall be for the first full fis- Federal Housing Enterprises Financial Safe- and over such period, not longer than twen- cal year beginning on or after the date of en- ty and Soundness Act of 1992, information re- ty-five years from the making of the ad- actment of this subsection. Except as other- garding the compensation and expenses paid vance, as the Director of the Office of Thrift wise provided in this section or by the Direc- by the Federal Home Loan Banks to the di- Supervision may determine. Payments of in- tor of the Office of Thrift Supervision, the rectors on the boards of directors of the terest and principal upon such advances provisions of this section and the functions Banks.’’; and shall be made from receipts of the Director thereby or thereunder subsisting shall be ap- (8) by adding at the end the following: of the Office of Thrift Supervision or from plicable and exercisable notwithstanding and ‘‘(l) TRANSITION RULE.—Any member of the other sources which may from time to time without regard to the Act of June 20, 1938 board of directors of a Bank elected or ap- be available to the Director of the Office of (D.C. Code, secs. 5–413—5–428), except that pointed in accordance with this section prior Thrift Supervision. The obligation of the Di- the proviso of section 16 thereof shall apply

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00096 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6069 to any building constructed under this sec- ing Enterprises Financial Safety and Sound- (1) sections 13(e), 14(a), and 14(c) of the Se- tion, and section 306 of the Act of July 30, ness Act of 1992. curities Exchange Act of 1934, and related 1947 (61 Stat. 584), or any other provision of ‘‘(b) CONSIDERATIONS.—In establishing the Commission regulations; law relating to the construction, alteration, goals required by subsection (a), the Director (2) section 15 of the Securities Exchange repair, or furnishing of public or other build- shall consider the unique mission and owner- Act of 1934, and related Commission regula- ings or structures or the obtaining of sites ship structure of the Federal Home Loan tions, with respect to transactions in the therefor, but any person or body in whom Banks. capital stock of a Federal Home Loan Bank; any such function is vested may provide for ‘‘(c) TRANSITION PERIOD.—To facilitate an (3) section 17A of the Securities Exchange delegation or redelegation of the exercise of orderly transition, the Director shall estab- Act of 1934, and related Commission regula- such function. lish interim target goals for purposes of this tions, with respect to the transfer of the se- ‘‘(g) LIMITATION.—No obligation shall be in- section for each of the 2 calendar years fol- curities of a Federal Home Loan Bank; and curred and no expenditure, except in liquida- lowing the date of enactment of this section. (4) the Trust Indenture Act of 1939. tion of obligation, shall be made pursuant to ‘‘(d) MONITORING AND ENFORCEMENT OF (b) MEMBER EXEMPTION.—The members of paragraphs (1) and (2) of subsection (a), if the GOALS.—The requirements of section 1336 of the Federal Home Loan Bank System shall total amount of all obligations incurred pur- the Federal Housing Enterprises Safety and be exempt from compliance with sections suant thereto would thereupon exceed Soundness Act of 1992, shall apply to this 13(d), 13(f), 13(g), 14(d), and 16 of the Securi- $13,200,000, or such greater amount as may be section, in the same manner and to the same ties Exchange Act of 1934, and related Com- provided in an appropriations Act or other extent as that section applies to the Federal mission regulations, with respect to owner- law.’’. housing enterprises. ship of or transactions in the capital stock of (3) in section 11 (12 U.S.C. 1431)— ‘‘(e) ANNUAL REPORT.—The Director shall the Federal Home Loan Banks by such mem- (A) in subsection (b)— annually report to Congress on the perform- bers. (i) in the first sentence— ance of the Banks in meeting the goals es- (c) EXEMPTED AND GOVERNMENT SECURI- (I) by striking ‘‘The Board’’ and inserting tablished under this section.’’. TIES.— (1) CAPITAL STOCK.—The capital stock ‘‘The Office of Finance, as agent for the SEC. 1206. COMMUNITY DEVELOPMENT FINAN- Banks,’’; and CIAL INSTITUTIONS. issued by each of the Federal Home Loan (II) by striking ‘‘the Board’’ and inserting Section 4(a)(1) of the Federal Home Loan Banks under section 6 of the Federal Home ‘‘such Office’’; and Bank Act (12 U.S.C. 1424(a)(1)) is amended— Loan Bank Act are— (ii) in the second and fourth sentences, by (1) by inserting after ‘‘savings bank,’’ the (A) exempted securities, within the mean- striking ‘‘the Board’’ each place such term following: ‘‘community development finan- ing of section 3(a)(2) of the Securities Act of appears and inserting ‘‘the Office of Fi- cial institution,’’; and 1933; and nance’’; (2) in subparagraph (B), by inserting after (B) exempted securities, within the mean- (B) in subsection (c)— ‘‘United States,’’ the following: ‘‘or, in the ing of section 3(a)(12)(A) of the Securities (i) by striking ‘‘the Board’’ the first place case of a community development financial Exchange Act of 1934, except to the extent such term appears and inserting ‘‘the Office institution, is certified as a community de- provided in section 38 of that Act. of Finance, as agent for the Banks,’’; and velopment financial institution under the (2) OTHER OBLIGATIONS.—The debentures, (ii) by striking ‘‘the Board’’ the second Community Development Banking and Fi- bonds, and other obligations issued under place such term appears and inserting ‘‘such nancial Institutions Act of 1994.’’. section 11 of the Federal Home Loan Bank Act (12 U.S.C. 1431) are— Office’’; and SEC. 1207. SHARING OF INFORMATION AMONG (C) in subsection (f)— FEDERAL HOME LOAN BANKS. (A) exempted securities, within the mean- (i) by striking the 2 commas after ‘‘per- The Federal Home Loan Bank Act is ing of section 3(a)(2) of the Securities Act of mit’’ and inserting ‘‘or’’; and amended by inserting after section 20 (12 1933; (ii) by striking the comma after ‘‘require’’; U.S.C. 1440) the following new section: (B) government securities, within the (4) in section 6 (12 U.S.C. 1426)— meaning of section 3(a)(42) of the Securities ‘‘SEC. 20A. SHARING OF INFORMATION AMONG Exchange Act of 1934; and (A) in subsection (b)(1), in the matter pre- FEDERAL HOME LOAN BANKS. (C) government securities, within the ceding subparagraph (A), by striking ‘‘Fi- ‘‘(a) INFORMATION ON FINANCIAL CONDI- meaning of section 2(a)(16) of the Investment nance Board approval’’ and inserting ‘‘ap- TION.—In order to enable each Federal Home Company Act of 1940. proval by the Director’’; and Loan Bank to evaluate the financial condi- (3) BROKERS AND DEALERS.—A person (other (B) in each of subsections (c)(4)(B) and tion of one or more of the other Federal than a Federal Home Loan Bank effecting (d)(2), by striking ‘‘Finance Board regula- Home Loan Banks individually and the Fed- transactions for members of the Federal tions’’ each place that term appears and in- eral Home Loan Bank System (including any Home Loan Bank System) that effects trans- serting ‘‘regulations of the Director’’; risks associated with the issuance or repay- actions in the capital stock or other obliga- (5) in section 10(b) (12 U.S.C. 1430(b))— ment of consolidated Federal Home Loan tions of a Federal Home Loan Bank, for the (A) in the subsection heading, by striking Bank bonds and debentures or other bor- account of others or for that person’s own ‘‘FORMAL BOARD RESOLUTION’’ and inserting rowings and the joint and several liabilities account, as applicable, is a broker or dealer, ‘‘APPROVAL OF DIRECTOR’’; and of the Banks incurred due to such bor- as those terms are defined in paragraphs (4) (B) by striking ‘‘by formal resolution’’; rowings), as well as to comply with any of its and (5), respectively, of section 3(a) of the (6) in section 21(b)(5) (12 U.S.C. 1441(b)(5)), obligations under the Securities Exchange Securities Exchange Act of 1934, but is ex- by striking ‘‘Chairperson of the Federal Act of 1934 (15 U.S.C. 78a et seq.), the Direc- cluded from the definition of— Housing Finance Board’’ and inserting ‘‘Di- tor shall make available to the Banks such (A) the term ‘‘government securities rector’’; reports, records, or other information as broker’’ under section 3(a)(43) of the Securi- (7) in section 15 (12 U.S.C. 1435), by insert- may be available, relating to the condition ties Exchange Act of 1934; and ing ‘‘or the Director’’ after ‘‘the Board’’; of any Federal Home Loan Bank. (B) the term ‘‘government securities deal- (8) by striking ‘‘the Board’’ each place that ‘‘(b) SHARING OF INFORMATION.— er’’ under section 3(a)(44) of the Securities term appears and inserting ‘‘the Director’’; ‘‘(1) IN GENERAL.—The Director shall pro- Exchange Act of 1934. (9) by striking ‘‘The Board’’ each place mulgate regulations to facilitate the sharing (d) EXEMPTION FROM REPORTING REQUIRE- that term appears and inserting ‘‘The Direc- of information made available under sub- tor’’; MENTS.—The Federal Home Loan Banks shall section (a) directly among the Federal Home be exempt from periodic reporting require- (10) by striking ‘‘the Finance Board’’ each Loan Banks. ments under the securities laws pertaining place that term appears and inserting ‘‘the ‘‘(2) LIMITATION.—Notwithstanding para- to the disclosure of— Director’’; graph (1), a Federal Home Loan Bank re- (1) related party transactions that occur in (11) by striking ‘‘The Finance Board’’ each sponding to a request from another Bank or the ordinary course of the business of the place that term appears and inserting ‘‘The from the Director for information pursuant Banks with members; and Director’’; and to this section may request that the Director (2) the unregistered sales of equity securi- (12) by striking ‘‘Federal Housing Finance determine that such information is propri- ties. Board’’ each place that term appears and in- etary and that the public interest requires (e) TENDER OFFERS.—Commission rules re- serting ‘‘Director’’. that such information not be shared. lating to tender offers shall not apply in con- SEC. 1205. HOUSING GOALS. ‘‘(c) LIMITATION.—Nothing in this section nection with transactions in the capital The Federal Home Loan Bank Act (12 shall affect the obligations of any Federal stock of the Federal Home Loan Banks. U.S.C. 1421 et seq.) is amended by inserting Home Loan Bank under the Securities Ex- (f) REGULATIONS.— after section 10b the following new section: change Act of 1934 (15 U.S.C. 78a et seq.) or (1) IN GENERAL.—The Commission shall ‘‘SEC. 10C. HOUSING GOALS. the regulations issued by the Securities and promulgate such rules and regulations as ‘‘(a) IN GENERAL.—The Director shall es- Exchange Commission thereunder.’’. may be necessary or appropriate in the pub- tablish housing goals with respect to the SEC. 1208. EXCLUSION FROM CERTAIN REQUIRE- lic interest or in furtherance of this section purchase of mortgages, if any, by the Federal MENTS. and the exemptions provided in this section. Home Loan Banks. Such goals shall be con- (a) IN GENERAL.—The Federal Home Loan (2) CONSIDERATIONS.—In issuing regulations sistent with the goals established under sec- Banks shall be exempt from compliance under this section, the Commission shall tions 1331 through 1334 of the Federal Hous- with— consider the distinctive characteristics of

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00097 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6070 CONGRESSIONAL RECORD — SENATE June 24, 2008 the Federal Home Loan Banks when evalu- (A) by striking subparagraph (C) and in- ducting the study, the Director shall estab- ating— serting the following: lish a process for the formal submission of (A) the accounting treatment with respect ‘‘(C) REPORTS.—The Director shall annu- comments. to the payment to the Resolution Funding ally report to the Committee on Banking, (b) ELEMENTS.—The study shall encom- Corporation; Housing, and Urban Affairs of the Senate and pass— (B) the role of the combined financial the Committee on Financial Services of the (1) the benefits and risks associated with statements of the Federal Home Loan Banks; House of Representatives on the collateral securitization of Acquired Member Assets; (C) the accounting classification of re- pledged to the Banks, including an analysis (2) the potential impact of securitization deemable capital stock; and of collateral by type and by Bank district.’’; upon liquidity in the mortgage and broader (D) the accounting treatment related to and credit markets; the joint and several nature of the obliga- (B) by adding at the end the following: (3) the ability of the Federal Home Loan tions of the Banks. ‘‘(D) SUBMISSION TO CONGRESS.—The Direc- Bank or Banks in question to manage the (g) DEFINITIONS.—As used in this section— tor shall submit the reports under subpara- risks associated with such a program; (1) the terms ‘‘Bank’’, ‘‘Federal Home Loan graphs (A) and (C) to the Committee on (4) the impact of such a program on the ex- Bank’’, ‘‘member’’, and ‘‘Federal Home Loan Banking, Housing, and Urban Affairs of the isting activities of the Banks, including Bank System’’ have the same meanings as in Senate and the Committee on Financial their mortgage portfolios and advances; and section 2 of the Federal Home Loan Bank Services of the House of Representatives, not (5) the joint and several liability of the Act (12 U.S.C. 1422); later than 180 days after the date of enact- Banks and the cooperative structure of the (2) the term ‘‘Commission’’ means the Se- ment of the Federal Housing Finance Regu- Federal Home Loan Bank System. curities and Exchange Commission; and latory Reform Act of 2008.’’; and (c) CONSULTATIONS.—In conducting the (3) the term ‘‘securities laws’’ has the same (2) by adding at the end the following: study under this section, the Director shall meaning as in section 3(a)(47) of the Securi- ‘‘(k) PUBLIC USE DATABASE.— consult with the Federal Home Loan Banks, ties Exchange Act of 1934 (15 U.S.C. ‘‘(1) DATA.—Each Federal Home Loan Bank the Banks’ fiscal agent, representatives of 78c(a)(47)). shall provide to the Director, in a form de- the mortgage lending industry, practitioners SEC. 1209. VOLUNTARY MERGERS. termined by the Director, census tract level in the structured finance field, and other ex- Section 26 of the Federal Home Loan Bank data relating to mortgages purchased, if any, perts as needed. Act (12 U.S.C. 1446) is amended— including— (d) REPORT.—Not later than 1 year after (1) by striking ‘‘Whenever’’ and inserting ‘‘(A) data consistent with that reported the date of enactment of this Act, the Direc- ‘‘(a) IN GENERAL.—Whenever’’; and under section 1323 of the Federal Housing tor shall submit a report to Congress on the (2) by adding at the end the following: Enterprises Financial Safety and Soundness results of the study conducted under sub- ‘‘(b) VOLUNTARY MERGERS AUTHORIZED.— Act of 1992; section (a), including policy recommenda- ‘‘(1) IN GENERAL.—Any Federal Home Loan ‘‘(B) data elements required to be reported tions based on the analysis of the Director of Bank may, with the approval of the Director under the Home Mortgage Disclosure Act of the feasibility of mortgage-backed securities and of the boards of directors of the Banks 1975; and issuance by a Federal Home Loan Bank or involved, merge with another Bank. ‘‘(C) any other data elements that the Di- Banks and the risks and benefits associated ‘‘(2) REGULATIONS REQUIRED.—The Director rector considers appropriate. with such program or programs. shall promulgate regulations establishing ‘‘(2) PUBLIC USE DATABASE.— (e) DEFINITIONS.—As used in this section, ‘‘(A) IN GENERAL.—The Director shall make the conditions and procedures for the consid- the terms ‘‘member’’, ‘‘Bank’’, and ‘‘Federal available to the public, in a form that is use- eration and approval of any voluntary merg- Home Loan Bank’’ have the same meanings ful to the public (including forms accessible er described in paragraph (1), including the as in section 2 of the Federal Home Loan electronically), and to the extent prac- procedures for Bank member approval.’’. Bank Act (12 U.S.C. 1422). SEC. 1210. AUTHORITY TO REDUCE DISTRICTS. ticable, the data provided to the Director under paragraph (1). SEC. 1216. TECHNICAL AND CONFORMING Section 3 of the Federal Home Loan Bank AMENDMENTS. Act (12 U.S.C. 1423) is amended— ‘‘(B) PROPRIETARY INFORMATION.—Not with- (a) RIGHT TO FINANCIAL PRIVACY ACT OF (1) by striking ‘‘As soon’’ and inserting standing subparagraph (A), the Director may 1978.—Section 1113(o) of the Right to Finan- ‘‘(a) IN GENERAL.—As soon’’; and not provide public access to, or disclose to cial Privacy Act of 1978 (12 U.S.C. 3413(o)) is (2) by adding at the end the following: the public, any information required to be amended— ‘‘(b) AUTHORITY TO REDUCE DISTRICTS.— submitted under this subsection that the Di- Notwithstanding subsection (a), the number rector determines is proprietary or that (1) by striking ‘‘Federal Housing Finance of districts may be reduced to a number less would provide personally identifiable infor- Board’’ and inserting ‘‘Federal Housing Fi- than 8— mation and that is not otherwise publicly ac- nance Agency’’; and ‘‘(1) pursuant to a voluntary merger be- cessible through other forms, unless the Di- (2) by striking ‘‘Federal Housing Finance tween Banks, as approved pursuant to sec- rector determines that it is in the public in- Board’s’’ and inserting ‘‘Federal Housing Fi- tion 26(b); or terest to provide such information.’’. nance Agency’s’’. ‘‘(2) pursuant to a decision by the Director SEC. 1213. SEMIANNUAL REPORTS. (b) RIEGLE COMMUNITY DEVELOPMENT AND to liquidate a Bank pursuant to section 1367 Section 21B of the Federal Home Loan REGULATORY IMPROVEMENT ACT OF 1994.— of the Federal Housing Enterprises Financial Bank Act is amended in subsection (f)(2)(C), Section 117(e) of the Riegle Community De- Safety and Soundness Act of 1992.’’. by adding at the end the following: velopment and Regulatory Improvement Act of 1994 (12 U.S.C. 4716(e)) is amended by strik- SEC. 1211. COMMUNITY FINANCIAL INSTITUTION ‘‘(v) SEMIANNUAL REPORTS.—The Director MEMBERS. shall report semiannually to the Committee ing ‘‘Federal Housing Finance Board’’ and inserting ‘‘Federal Housing Finance Agen- (a) TOTAL ASSET REQUIREMENT.—Paragraph on Banking, Housing, and Urban Affairs of (10) of section 2 of the Federal Home Loan the Senate and the Committee on Financial cy’’. Bank Act (12 U.S.C. 1422(10)), as so redesig- Services of the House of Representatives on (c) TITLE 18, UNITED STATES CODE.—Title nated by section 201(3) of this Act, is amend- the projected date for the completion of con- 18, United States Code, is amended by strik- ed by striking ‘‘$500,000,000’’ each place such tributions required by this section.’’. ing ‘‘Federal Housing Finance Board’’ each term appears and inserting ‘‘$1,000,000,000’’. SEC. 1214. LIQUIDATION OR REORGANIZATION OF place such term appears in each of sections (b) USE OF ADVANCES FOR COMMUNITY DE- A FEDERAL HOME LOAN BANK. 212, 657, 1006, and 1014, and inserting ‘‘Federal VELOPMENT ACTIVITIES.—Section 10(a) of the Section 26 of the Federal Home Loan Bank Housing Finance Agency’’. Federal Home Loan Bank Act (12 U.S.C. Act (12 U.S.C. 1446) is amended by adding at (d) MAHRA ACT OF 1997.—Section 517(b)(4) 1430(a)) is amended— the end the following: ‘‘At least 30 days prior of the Multifamily Assisted Housing Reform (1) in paragraph (2)(B)— to liquidating or reorganizing any Bank and Affordability Act of 1997 (42 U.S.C. 1437f (A) by striking ‘‘and’’; and under this section, the Director shall notify note) is amended by striking ‘‘Federal Hous- (B) by inserting ‘‘, and community develop- the Bank of its determination and the facts ing Finance Board’’ and inserting ‘‘Federal ment activities’’ before the period at the and circumstances upon which such deter- Housing Finance Agency’’. end; mination is based. The Bank may contest (e) TITLE 44, UNITED STATES CODE.—Section (2) in paragraph (3)(E), by inserting ‘‘or that determination in a hearing before the 3502(5) of title 44, United States Code, is community development activities’’ after Director, in which all issues shall be deter- amended by striking ‘‘Federal Housing Fi- ‘‘agriculture,’’; and mined on the record pursuant to section 554 nance Board’’ and inserting ‘‘Federal Hous- (3) in paragraph (6)— of title 5, United States Code.’’. ing Finance Agency’’. (A) by striking ‘‘and’’; and SEC. 1215. STUDY AND REPORT TO CONGRESS ON (f) ACCESS TO LOCAL TV ACT OF 2000.—Sec- (B) by inserting ‘‘, and ‘community devel- SECURITIZATION OF ACQUIRED tion 1004(d)(2)(D)(iii) of the Launching Our opment activities’’’ before ‘‘shall’’. MEMBER ASSETS. Communities’ Access to Local Television SEC. 1212. PUBLIC USE DATA BASE; REPORTS TO (a) STUDY.—The Director shall conduct a Act of 2000 (47 U.S.C. 1103(d)(2)(D)(iii)) is CONGRESS. study on securitization of home mortgage amended by striking ‘‘Office of Federal Section 10 of the Federal Home Loan Bank loans purchased or to be purchased from Housing Enterprise Oversight, the Federal Act (12 U.S.C. 1430) is amended— member financial institutions under the Ac- Housing Finance Board’’ and inserting ‘‘Fed- (1) in subsection (j)(12)— quired Member Assets programs. In con- eral Housing Finance Agency’’.

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(g) FIRREA.—Section 1216 of the Financial Housing Enterprise Oversight under sub- (b) APPLICABILITY.—A regulation, order, or Institutions Reform, Recovery, and Enhance- section (a) of this section may not be con- determination is described in this subsection ment Act of 1989 (12 U.S.C. 1833e) is amend- strued to affect the status of any employee if it— ed— of such Office as an employee of an agency of (1) was issued, made, prescribed, or allowed (1) in subsection (a), by striking paragraph the United States for purposes of any other to become effective by— (3) and inserting the following: provision of law before the effective date of (A) the Office of Federal Housing Enter- ‘‘(3) the Federal Housing Finance Agen- the transfer of any such employee under sec- prise Oversight; cy;’’; tion 1303. (B) the Secretary of Housing and Urban (2) in subsection (b), by striking ‘‘Federal (d) USE OF PROPERTY AND SERVICES.— Development, and relates to the authority of National Mortgage Association’’ and insert- (1) PROPERTY.—The Director may use the the Secretary under— ing ‘‘Federal Home Loan Banks, the Federal property of the Office of Federal Housing En- (i) the Federal Housing Enterprises Finan- National Mortgage Association,’’; and terprise Oversight to perform functions cial Safety and Soundness Act of 1992; (3) in subsection (c), by striking ‘‘Finance which have been transferred to the Director (ii) the Federal National Mortgage Asso- Board’’ and inserting ‘‘Finance Agency’’. for such time as is reasonable to facilitate ciation Charter Act, with respect to the Fed- SEC. 1217. STUDY ON FEDERAL HOME LOAN BANK the orderly transfer of functions transferred eral National Mortgage Association; or ADVANCES. under any other provision of this Act or any (iii) the Federal Home Loan Mortgage Cor- (a) IN GENERAL.—Not later than 1 year amendment made by this Act to any other poration Act, with respect to the Federal after the date of enactment of this Act, the provision of law. Home Loan Mortgage Corporation; or Director shall conduct a study and submit a (2) AGENCY SERVICES.—Any agency, depart- (C) a court of competent jurisdiction, and report to the Committee on Banking, Hous- ment, or other instrumentality of the United relates to functions transferred by this Act; ing, and Urban Affairs of the Senate and the States, and any successor to any such agen- and Committee on Financial Services of the cy, department, or instrumentality, which (2) is in effect on the effective date of the House or Representatives on the extent to was providing supporting services to the Of- abolishment under section 1301(a). which loans and securities used as collateral fice of Federal Housing Enterprise Oversight SEC. 1303. TRANSFER AND RIGHTS OF EMPLOY- to support Federal Home Loan Bank ad- before the expiration of the period under sub- EES OF OFHEO. vances are consistent with the interagency section (a) in connection with functions that (a) TRANSFER.—Each employee of the Of- guidance on nontraditional mortgage prod- are transferred to the Director shall— fice of Federal Housing Enterprise Oversight ucts. (A) continue to provide such services, on a shall be transferred to the Agency for em- (b) REQUIRED CONTENT.—The study re- reimbursable basis, until the transfer of such ployment, not later than the effective date quired under subsection (a) shall— functions is complete; and of the abolishment under section 1301(a), and (1) consider and recommend any additional (B) consult with any such agency to co- such transfer shall be deemed a transfer of regulations, guidance, advisory bulletins, or ordinate and facilitate a prompt and reason- function for purposes of section 3503 of title 5, United States Code. other administrative actions necessary to able transition. (b) GUARANTEED POSITIONS.— ensure that the Federal Home Loan Banks (e) CONTINUATION OF SERVICES.—The Direc- tor may use the services of employees and (1) IN GENERAL.—Each employee trans- are not supporting loans with predatory ferred under subsection (a) shall be guaran- characteristics; and other personnel of the Office of Federal Housing Enterprise Oversight, on a reim- teed a position with the same status, tenure, (2) include an opportunity for the public to grade, and pay as that held on the day imme- comment on any recommendations made bursable basis, to perform functions which have been transferred to the Director for diately preceding the transfer. under paragraph (1). (2) NO INVOLUNTARY SEPARATION OR REDUC- SEC. 1218. FEDERAL HOME LOAN BANK REFI- such time as is reasonable to facilitate the orderly transfer of functions pursuant to any TION.—An employee transferred under sub- NANCING AUTHORITY FOR CERTAIN section (a) holding a permanent position on RESIDENTIAL MORTGAGE LOANS. other provision of this Act or any amend- the day immediately preceding the transfer Section 10(j)(2) of the Federal Home Loan ment made by this Act to any other provi- may not be involuntarily separated or re- Bank Act (12 U.S.C. 1430(j)(2)) is amended— sion of law. duced in grade or compensation during the (1) in subparagraph (A), by striking ‘‘or’’ at (f) SAVINGS PROVISIONS.— 12-month period beginning on the date of the end; (1) EXISTING RIGHTS, DUTIES, AND OBLIGA- TIONS NOT AFFECTED.—Subsection (a) shall transfer, except for cause, or, in the case of (2) in subparagraph (B), by striking the pe- a temporary employee, separated in accord- riod at the end and inserting ‘‘; or’’; and not affect the validity of any right, duty, or obligation of the United States, the Director ance with the terms of the appointment of (3) by adding at the end the following: the employee. ‘‘(C) during the 2-year period beginning on of the Office of Federal Housing Enterprise Oversight, or any other person, which— (c) APPOINTMENT AUTHORITY FOR EXCEPTED the date of enactment of this subparagraph, AND SENIOR EXECUTIVE SERVICE EMPLOY- (A) arises under— refinance loans that are secured by a first EES.— (i) the Federal Housing Enterprises Finan- mortgage on a primary residence of any fam- (1) IN GENERAL.—In the case of an employee cial Safety and Soundness Act of 1992; ily having an income at or below 80 percent occupying a position in the excepted service (ii) the Federal National Mortgage Asso- of the median income for the area.’’. or the Senior Executive Service, any ap- ciation Charter Act; TITLE III—TRANSFER OF FUNCTIONS, pointment authority established under law (iii) the Federal Home Loan Mortgage Cor- PERSONNEL, AND PROPERTY OF OFHEO or by regulations of the Office of Personnel poration Act; or AND THE FEDERAL HOUSING FINANCE Management for filling such position shall (iv) any other provision of law applicable BOARD be transferred, subject to paragraph (2). with respect to such Office; and Subtitle A—OFHEO (2) DECLINE OF TRANSFER.—The Director (B) existed on the day before the date of may decline a transfer of authority under SEC. 1301. ABOLISHMENT OF OFHEO. abolishment under subsection (a). paragraph (1) to the extent that such author- (a) IN GENERAL.—Effective at the end of (2) CONTINUATION OF SUITS.—No action or ity relates to— the 1-year period beginning on the date of other proceeding commenced by or against (A) a position excepted from the competi- enactment of this Act, the Office of Federal the Director of the Office of Federal Housing tive service because of its confidential, pol- Housing Enterprise Oversight of the Depart- Enterprise Oversight in connection with icymaking, policy-determining, or policy-ad- ment of Housing and Urban Development and functions that are transferred to the Direc- vocating character; or the positions of the Director and Deputy Di- tor of the Federal Housing Finance Agency (B) a noncareer position in the Senior Ex- rector of such Office are abolished. shall abate by reason of the enactment of ecutive Service (within the meaning of sec- (b) DISPOSITION OF AFFAIRS.—During the 1- this Act, except that the Director of the Fed- tion 3132(a)(7) of title 5, United States Code). year period beginning on the date of enact- eral Housing Finance Agency shall be sub- (d) REORGANIZATION.—If the Director deter- ment of this Act, the Director of the Office stituted for the Director of the Office of Fed- mines, after the end of the 1-year period be- of Federal Housing Enterprise Oversight, eral Housing Enterprise Oversight as a party ginning on the effective date of the abolish- solely for the purpose of winding up the af- to any such action or proceeding. ment under section 1301(a), that a reorga- fairs of the Office of Federal Housing Enter- SEC. 1302. CONTINUATION AND COORDINATION nization of the combined workforce is re- prise Oversight— OF CERTAIN ACTIONS. quired, that reorganization shall be deemed a (1) shall manage the employees of such Of- (a) IN GENERAL.—All regulations, orders, major reorganization for purposes of afford- fice and provide for the payment of the com- and determinations described in subsection ing affected employee retirement under sec- pensation and benefits of any such employee (b) shall remain in effect according to the tion 8336(d)(2) or 8414(b)(1)(B) of title 5, which accrue before the effective date of the terms of such regulations, orders, and deter- United States Code. transfer of such employee under section 1303; minations, and shall be enforceable by or (e) EMPLOYEE BENEFIT PROGRAMS.— and against the Director or the Secretary of (1) IN GENERAL.—Any employee of the Of- (2) may take any other action necessary Housing and Urban Development, as the case fice of Federal Housing Enterprise Oversight for the purpose of winding up the affairs of may be, until modified, terminated, set accepting employment with the Agency as a the Office. aside, or superseded in accordance with ap- result of a transfer under subsection (a) may (c) STATUS OF EMPLOYEES BEFORE TRANS- plicable law by the Director or the Sec- retain, for 12 months after the date on which FER.—The amendments made by title I and retary, as the case may be, any court of com- such transfer occurs, membership in any em- the abolishment of the Office of Federal petent jurisdiction, or operation of law. ployee benefit program of the Agency or the

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Office of Federal Housing Enterprise Over- (e) CONTINUATION OF SERVICES.—The Direc- (2) DECLINE OF TRANSFER.—The Director sight of the Department of Housing and tor may use the services of employees and may decline a transfer of authority under Urban Development, as applicable, including other personnel of the Board, on a reimburs- paragraph (1), to the extent that such au- insurance, to which such employee belongs able basis, to perform functions which have thority relates to a position excepted from on the date of the abolishment under section been transferred to the Director for such the competitive service because of its con- 1301(a), if— time as is reasonable to facilitate the or- fidential, policymaking, policy-determining, (A) the employee does not elect to give up derly transfer of functions pursuant to any or policy-advocating character. the benefit or membership in the program; other provision of this Act or any amend- (d) REORGANIZATION.—If the Director deter- and ment made by this Act to any other provi- mines, after the end of the 1-year period be- (B) the benefit or program is continued by sion of law. ginning on the effective date of the abolish- the Director of the Federal Housing Finance (f) SAVINGS PROVISIONS.— ment under section 1311(a), that a reorga- Agency. (1) EXISTING RIGHTS, DUTIES, AND OBLIGA- nization of the combined workforce is re- (2) COST DIFFERENTIAL.— TIONS NOT AFFECTED.—Subsection (a) shall quired, that reorganization shall be deemed a (A) IN GENERAL.—The difference in the not affect the validity of any right, duty, or major reorganization for purposes of afford- costs between the benefits which would have obligation of the United States, a member of ing affected employee retirement under sec- been provided by the Office of Federal Hous- the Board, or any other person, which— tion 8336(d)(2) or 8414(b)(1)(B) of title 5, ing Enterprise Oversight and those provided (A) arises under the Federal Home Loan United States Code. by this section shall be paid by the Director. Bank Act, or any other provision of law ap- (e) EMPLOYEE BENEFIT PROGRAMS.— (1) IN GENERAL.—Any employee of the (B) HEALTH INSURANCE.—If any employee plicable with respect to the Board; and elects to give up membership in a health in- (B) existed on the day before the effective Board accepting employment with the Agen- surance program or the health insurance date of the abolishment under subsection (a). cy as a result of a transfer under subsection (a) may retain, for 12 months after the date program is not continued by the Director, (2) CONTINUATION OF SUITS.—No action or on which such transfer occurs, membership the employee shall be permitted to select an other proceeding commenced by or against in any employee benefit program of the alternate Federal health insurance program the Board in connection with functions that Agency or the Board, as applicable, including not later than 30 days after the date of such are transferred under this Act to the Direc- insurance, to which such employee belongs election or notice, without regard to any tor shall abate by reason of the enactment of on the effective date of the abolishment other regularly scheduled open season. this Act, except that the Director shall be under section 1311(a) if— substituted for the Board or any member SEC. 1304. TRANSFER OF PROPERTY AND FACILI- (A) the employee does not elect to give up TIES. thereof as a party to any such action or pro- the benefit or membership in the program; Upon the effective date of its abolishment ceeding. and under section 1301(a), all property of the Of- SEC. 1312. CONTINUATION AND COORDINATION (B) the benefit or program is continued by fice of Federal Housing Enterprise Oversight OF CERTAIN ACTIONS. the Director. shall transfer to the Agency. (a) IN GENERAL.—All regulations, orders, (2) COST DIFFERENTIAL.— Subtitle B—Federal Housing Finance Board determinations, and resolutions described (A) IN GENERAL.—The difference in the SEC. 1311. ABOLISHMENT OF THE FEDERAL under subsection (b) shall remain in effect according to the terms of such regulations, costs between the benefits which would have HOUSING FINANCE BOARD. been provided by the Board and those pro- (a) IN GENERAL.—Effective at the end of orders, determinations, and resolutions, and shall be enforceable by or against the Direc- vided by this section shall be paid by the Di- the 1-year period beginning on the date of rector. enactment of this Act, the Federal Housing tor until modified, terminated, set aside, or (B) HEALTH INSURANCE.—If any employee Finance Board (in this subtitle referred to as superseded in accordance with applicable law elects to give up membership in a health in- the ‘‘Board’’) is abolished. by the Director, any court of competent ju- surance program or the health insurance (b) DISPOSITION OF AFFAIRS.—During the 1- risdiction, or operation of law. year period beginning on the date of enact- (b) APPLICABILITY.—A regulation, order, program is not continued by the Director, ment of this Act, the Board, solely for the determination, or resolution is described the employee shall be permitted to select an purpose of winding up the affairs of the under this subsection if it— alternate Federal health insurance program Board— (1) was issued, made, prescribed, or allowed not later than 30 days after the date of such (1) shall manage the employees of the to become effective by— election or notice, without regard to any Board and provide for the payment of the (A) the Board; or other regularly scheduled open season. compensation and benefits of any such em- (B) a court of competent jurisdiction, and SEC. 1314. TRANSFER OF PROPERTY AND FACILI- ployee which accrue before the effective date relates to functions transferred by this Act; TIES. of the transfer of such employee under sec- and Upon the effective date of the abolishment tion 1313; and (2) is in effect on the effective date of the under section 1311(a), all property of the Board shall transfer to the Agency. (2) may take any other action necessary abolishment under section 1311(a). for the purpose of winding up the affairs of SEC. 1313. TRANSFER AND RIGHTS OF EMPLOY- TITLE IV—HOPE FOR HOMEOWNERS the Board. EES OF THE FEDERAL HOUSING FI- SEC. 1401. SHORT TITLE. (c) STATUS OF EMPLOYEES BEFORE TRANS- NANCE BOARD. This title may be cited as the ‘‘HOPE for FER.—The amendments made by titles I and (a) TRANSFER.—Each employee of the Homeowners Act of 2008’’. II and the abolishment of the Board under Board shall be transferred to the Agency for SEC. 1402. ESTABLISHMENT OF HOPE FOR HOME- subsection (a) may not be construed to affect employment, not later than the effective OWNERS PROGRAM. the status of any employee of the Board as date of the abolishment under section (a) ESTABLISHMENT.—Title II of the Na- an employee of an agency of the United 1311(a), and such transfer shall be deemed a tional Housing Act (12 U.S.C. 1707 et seq.) is States for purposes of any other provision of transfer of function for purposes of section amended by adding at the end the following: law before the effective date of the transfer 3503 of title 5, United States Code. ‘‘SEC. 257. HOPE FOR HOMEOWNERS PROGRAM. of any such employee under section 1313. (b) GUARANTEED POSITIONS.— ‘‘(a) ESTABLISHMENT.—There is established (d) USE OF PROPERTY AND SERVICES.— (1) IN GENERAL.—Each employee trans- in the Federal Housing Administration a (1) PROPERTY.—The Director may use the ferred under subsection (a) shall be guaran- HOPE for Homeowners Program. property of the Board to perform functions teed a position with the same status, tenure, ‘‘(b) PURPOSE.—The purpose of the HOPE which have been transferred to the Director, grade, and pay as that held on the day imme- for Homeowners Program is— for such time as is reasonable to facilitate diately preceding the transfer. ‘‘(1) to create an FHA program, participa- the orderly transfer of functions transferred (2) NO INVOLUNTARY SEPARATION OR REDUC- tion in which is voluntary on the part of under any other provision of this Act or any TION.—An employee holding a permanent po- homeowners and existing loan holders to in- amendment made by this Act to any other sition on the day immediately preceding the sure refinanced loans for distressed bor- provision of law. transfer may not be involuntarily separated rowers to support long-term, sustainable (2) AGENCY SERVICES.—Any agency, depart- or reduced in grade or compensation during homeownership; ment, or other instrumentality of the United the 12-month period beginning on the date of ‘‘(2) to allow homeowners to avoid fore- States, and any successor to any such agen- transfer, except for cause, or, if the employee closure by reducing the principle balance cy, department, or instrumentality, which is a temporary employee, separated in ac- outstanding, and interest rate charged, on was providing supporting services to the cordance with the terms of the appointment their mortgages; Board before the expiration of the 1-year pe- of the employee. ‘‘(3) to help stabilize and provide con- riod under subsection (a) in connection with (c) APPOINTMENT AUTHORITY FOR EXCEPTED fidence in mortgage markets by bringing functions that are transferred to the Direc- EMPLOYEES.— transparency to the value of assets based on tor shall— (1) IN GENERAL.—In the case of an employee mortgage assets; (A) continue to provide such services, on a occupying a position in the excepted service, ‘‘(4) to target mortgage assistance under reimbursable basis, until the transfer of such any appointment authority established this section to homeowners for their prin- functions is complete; and under law or by regulations of the Office of cipal residence; (B) consult with any such agency to co- Personnel Management for filling such posi- ‘‘(5) to enhance the administrative capac- ordinate and facilitate a prompt and reason- tion shall be transferred, subject to para- ity of the FHA to carry out its expanded role able transition. graph (2). under the HOPE for Homeowners Program;

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00100 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6073 ‘‘(6) to ensure the HOPE for Homeowners ment or refinancing of the eligible mortgage, ‘‘(D) be wholly consistent with the ap- Program remains in effect only for as long as and all fees and penalties related to default praisal standards, practices, and procedures is necessary to provide stability to the hous- or delinquency on the eligible mortgage, under section 202(e) of this Act that apply to ing market; and shall be waived or forgiven. all loans insured under this Act; and ‘‘(7) to provide servicers of delinquent ‘‘(4) EXTINGUISHMENT OF SUBORDINATE ‘‘(E) comply with the requirements of sub- mortgages with additional methods and ap- LIENS.— section (g) of this section (relating to ap- proaches to avoid foreclosure. ‘‘(A) REQUIRED AGREEMENT.—All holders of praisal independence). ‘‘(c) ESTABLISHMENT AND IMPLEMENTATION outstanding mortgage liens on the property ‘‘(9) DOCUMENTATION AND VERIFICATION OF OF PROGRAM REQUIREMENTS.— to which the eligible mortgage relates shall INCOME.—In complying with the FHA under- ‘‘(1) DUTIES OF THE BOARD.—In order to agree to accept the proceeds of the insured writing requirements under the HOPE for carry out the purposes of the HOPE for loan as payment in full of all indebtedness Homeowners Program under this section, the Homeowners Program, the Board shall— under the eligible mortgage, and all encum- mortgagee under the mortgage shall docu- ‘‘(A) establish requirements and standards brances related to such eligible mortgage ment and verify the income of the mortgagor for the program; and shall be removed. The Secretary may take by procuring an Internal Revenue Service ‘‘(B) prescribe such regulations and provide such actions, subject to standards estab- transcript of the income tax returns of the such guidance as may be necessary or appro- lished by the Board under subparagraph (B), mortgagor for the 2 most recent years for priate to implement such requirements and as may be necessary and appropriate to fa- which the filing deadline for such years has standards. cilitate coordination and agreement between passed and by any other method, in accord- ‘‘(2) DUTIES OF THE SECRETARY.—In car- ance with procedures and standards that the the holders of the existing senior mortgage rying out any of the program requirements Board or the Secretary shall establish. and any existing subordinate mortgages, or standards established under paragraph (1), ‘‘(10) MORTGAGE FRAUD.—The mortgagor taking into consideration the subordinate the Secretary may issue such interim guid- shall not have been convicted under any pro- lien status of such subordinate mortgages. ance and mortgagee letters as the Secretary vision of Federal or State law for fraud, in- ‘‘(B) SHARED APPRECIATION.— determines necessary or appropriate. cluding mortgage fraud. ‘‘(i) IN GENERAL.—The Board shall establish ‘‘(d) INSURANCE OF MORTGAGES.—The Sec- ‘‘(11) PRIMARY RESIDENCE.—The mortgagor retary is authorized upon application of a standards and policies that will allow for the shall provide documentation satisfactory in mortgagee to make commitments to insure payment to the holder of any existing subor- the determination of the Secretary to prove or to insure any eligible mortgage that has dinate mortgage of a portion of any future that the residence covered by the mortgage been refinanced in a manner meeting the re- appreciation in the property secured by such to be insured under this section is occupied quirements under subsection (e). eligible mortgage that is owed to the Sec- by the mortgagor as the primary residence of ‘‘(e) REQUIREMENTS OF INSURED MORT- retary pursuant to subsection (k). the mortgagor, and that such residence is GAGES.—To be eligible for insurance under ‘‘(ii) FACTORS.—In establishing the stand- the only residence in which the mortgagor this section, a refinanced eligible mortgage ards and policies required under clause (i), has any present ownership interest. shall comply with all of the following re- the Board shall take into consideration— ‘‘(f) STUDY OF AUCTION OR BULK REFINANCE quirements: ‘‘(I) the status of any subordinate mort- PROGRAM.— ‘‘(1) LACK OF CAPACITY TO PAY EXISTING gage; ‘‘(1) STUDY.—The Board shall conduct a MORTGAGE.— ‘‘(II) the outstanding principal balance of study of the need for and efficacy of an auc- ‘‘(A) BORROWER CERTIFICATION.— and accrued interest on the existing senior tion or bulk refinancing mechanism to facili- ‘‘(i) IN GENERAL.—The mortgagor shall pro- mortgage and any outstanding subordinate tate refinancing of existing residential mort- vide certification to the Secretary that the mortgages; gages that are at risk for foreclosure into mortgagor has not intentionally defaulted ‘‘(III) the extent to which the current ap- mortgages insured under this section. The on the mortgage or any other debt, and has praised value of the property securing a sub- study shall identify and examine various op- not knowingly, or willfully and with actual ordinate mortgage is less than the out- tions for mechanisms under which lenders knowledge, furnished material information standing principal balance and accrued in- and servicers of such mortgages may make known to be false for the purpose of obtain- terest on any other liens that are senior to bids for forward commitments for such in- ing any eligible mortgage. such subordinate mortgage; and surance in an expedited manner. ‘‘(ii) PENALTIES.— ‘‘(IV) such other factors as the Board de- ‘‘(2) CONTENT.— ‘‘(I) FALSE STATEMENT.—Any certification termines to be appropriate. ‘‘(A) ANALYSIS.—The study required under filed pursuant to clause (i) shall contain an ‘‘(C) VOLUNTARY PROGRAM.—This paragraph paragraph (1) shall analyze— acknowledgment that any willful false state- may not be construed to require any holder ‘‘(i) the feasibility of establishing a mecha- ment made in such certification is punish- of any existing mortgage to participate in nism that would facilitate the more rapid re- able under section 1001, of title 18, United the program under this section generally, or financing of borrowers at risk of foreclosure States Code, by fine or imprisonment of not with respect to any particular loan. into performing mortgages insured under more than 5 years, or both. ‘‘(5) TERM OF MORTGAGE.—The refinanced this section; ‘‘(II) LIABILITY FOR REPAYMENT.—The mort- eligible mortgage to be insured shall— ‘‘(ii) whether such a mechanism would pro- gagor shall agree in writing that the mort- ‘‘(A) bear interest at a single rate that is vide an effective and efficient mechanism to gagor shall be liable to repay to the Federal fixed for the entire term of the mortgage; reduce foreclosures on qualified existing Housing Administration any direct financial and mortgages; benefit achieved from the reduction of in- ‘‘(B) have a maturity of not less than 30 ‘‘(iii) whether the use of an auction or bulk debtedness on the existing mortgage or years from the date of the beginning of am- refinance program is necessary to stabilize mortgages on the residence refinanced under ortization of such refinanced eligible mort- the housing market and reduce the impact of this section derived from misrepresentations gage. turmoil in that market on the economy of made in the certifications and documenta- ‘‘(6) MAXIMUM LOAN AMOUNT.—The principal the United States; tion required under this subparagraph, sub- obligation amount of the eligible mortgage ‘‘(iv) whether there are other mechanisms ject to the discretion of the Secretary. to be insured shall not exceed 132 percent of or authority that would be useful to reduce ‘‘(B) CURRENT BORROWER DEBT-TO-INCOME the dollar amount limitation in effect for foreclosure; and RATIO.—As of March 1, 2008, the mortgagor 2007 under section 305(a)(2) of the Federal ‘‘(v) and any other factors that the Board shall have had a ratio of mortgage debt to Home Loan Mortgage Corporation Act (12 considers relevant. income, taking into consideration all exist- U.S.C. 1454(a)(2)) for a property of the appli- ‘‘(B) DETERMINATIONS.—To the extent that ing mortgages of that mortgagor at such cable size. the Board finds that a facility of the type de- time, greater than 31 percent (or such higher ‘‘(7) PROHIBITION ON SECOND LIENS.—A scribed in subparagraph (A) is feasible and amount as the Board determines appro- mortgagor may not grant a new second lien useful, the study shall— priate). on the mortgaged property during the first 5 ‘‘(i) determine and identify any additional ‘‘(2) DETERMINATION OF PRINCIPAL OBLIGA- years of the term of the mortgage insured authority or resources needed to establish TION AMOUNT.—The principal obligation under this section. and operate such a mechanism; amount of the refinanced eligible mortgage ‘‘(8) APPRAISALS.—Any appraisal conducted ‘‘(ii) determine whether there is a need for to be insured shall— in connection with a mortgage insured under additional authority with respect to the loan ‘‘(A) be determined by the reasonable abil- this section shall— underwriting criteria established in this sec- ity of the mortgagor to make his or her ‘‘(A) be based on the current value of the tion or with respect to eligibility of partici- mortgage payments, as such ability is deter- property; pating borrowers, lenders, or holders of liens; mined by the Secretary pursuant to section ‘‘(B) be conducted in accordance with title ‘‘(iii) determine whether such underwriting 203(b)(4) or by any other underwriting stand- XI of the Financial Institutions Reform, Re- criteria should be established on the basis of ards established by the Board; and covery, and Enforcement Act of 1989 (12 individual loans, in the aggregate, or other- ‘‘(B) not exceed 90 percent of the appraised U.S.C. 3331 et seq.); wise to facilitate the goal of refinancing bor- value of the property to which such mort- ‘‘(C) be completed by an appraiser who rowers at risk of foreclosure into viable gage relates. meets the competency requirements of the loans insured under this section. ‘‘(3) REQUIRED WAIVER OF PREPAYMENT PEN- Uniform Standards of Professional Appraisal ‘‘(3) REPORT.—Not later than the expira- ALTIES AND FEES.—All penalties for prepay- Practice; tion of the 60-day period beginning on the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00101 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6074 CONGRESSIONAL RECORD — SENATE June 24, 2008 date of the enactment of this section, the ‘‘(2) procedures to ensure that interest tain the following information for each Board shall submit a report regarding the re- rates on such mortgages shall be commensu- month: sults of the study conducted under this sub- rate with market rate interest rates on such ‘‘(1) The number of new mortgages insured section to the Committee on Financial Serv- types of loans. under this section, including the location of ices of the House of Representatives and the ‘‘(k) EQUITY AND APPRECIATION.— the properties subject to such mortgages by Committee on Banking, Housing, and Urban ‘‘(1) FIVE-YEAR PHASE-IN FOR EQUITY AS A census tract. Affairs of the Senate. The report shall in- RESULT OF SALE OR REFINANCING.—For each ‘‘(2) The aggregate principal obligation of clude a detailed description of the analysis eligible mortgage insured under this section, new mortgages insured under this section. required under paragraph (2)(A) and of the the Secretary and the mortgagor of such ‘‘(3) The average amount by which the determinations made pursuant to paragraph mortgage shall, upon any sale or disposition principle balance outstanding on mortgages (2)(B), and shall include any other findings of the property to which such mortgage re- insured this section was reduced. and recommendations of the Board pursuant lates, or upon the subsequent refinancing of ‘‘(4) The amount of premiums collected for to the study, including identifying various such mortgage, be entitled to the following insurance of mortgages under this section. options for mechanisms described in para- with respect to any equity created as a di- ‘‘(5) The claim and loss rates for mortgages graph (1). rect result of such sale or refinancing: insured under this section. ‘‘(g) APPRAISAL INDEPENDENCE.— ‘‘(A) If such sale or refinancing occurs dur- ‘‘(6) Any other information that the Board ‘‘(1) PROHIBITIONS ON INTERESTED PARTIES ing the period that begins on the date that considers appropriate. IN A REAL ESTATE TRANSACTION.—No mort- such mortgage is insured and ends 1 year ‘‘(o) REQUIRED OUTREACH EFFORTS.—The gage lender, mortgage broker, mortgage after such date of insurance, the Secretary Secretary shall carry out outreach efforts to banker, real estate broker, appraisal man- shall be entitled to 100 percent of such eq- ensure that homeowners, lenders, and the agement company, employee of an appraisal uity. general public are aware of the opportunities management company, nor any other person ‘‘(B) If such sale or refinancing occurs dur- for assistance available under this section. with an interest in a real estate transaction ing the period that begins 1 year after such ‘‘(p) ENHANCEMENT OF FHA CAPACITY.— involving an appraisal in connection with a date of insurance and ends 2 years after such Under the direction of the Board, the Sec- mortgage insured under this section shall date of insurance, the Secretary shall be en- retary shall take such actions as may be nec- essary to— improperly influence, or attempt to improp- titled to 90 percent of such equity and the ‘‘(1) contract for the establishment of un- erly influence, through coercion, extortion, mortgagor shall be entitled to 10 percent of derwriting criteria, automated underwriting collusion, compensation, instruction, induce- such equity. systems, pricing standards, and other factors ment, intimidation, nonpayment for services ‘‘(C) If such sale or refinancing occurs dur- relating to eligibility for mortgages insured rendered, or bribery, the development, re- ing the period that begins 2 years after such under this section; porting, result, or review of a real estate ap- date of insurance and ends 3 years after such ‘‘(2) contract for independent quality re- praisal sought in connection with the mort- date of insurance, the Secretary shall be en- views of underwriting, including appraisal gage. titled to 80 percent of such equity and the reviews and fraud detection, of mortgages in- ‘‘(2) CIVIL MONETARY PENALTIES.—The Sec- mortgagor shall be entitled to 20 percent of sured under this section or pools of such retary may impose a civil money penalty for such equity. mortgages; and any knowing and material violation of para- ‘‘(D) If such sale or refinancing occurs dur- ‘‘(3) increase personnel of the Department graph (1) under the same terms and condi- ing the period that begins 3 years after such as necessary to process or monitor the proc- tions as are authorized in section 536(a) of date of insurance and ends 4 years after such essing of mortgages insured under this sec- this Act. date of insurance, the Secretary shall be en- tion. ‘‘(h) STANDARDS TO PROTECT AGAINST AD- titled to 70 percent of such equity and the ‘‘(q) GNMA COMMITMENT AUTHORITY.— VERSE SELECTION.— mortgagor shall be entitled to 30 percent of ‘‘(1) GUARANTEES.—The Secretary shall such equity. ‘‘(1) IN GENERAL.—The Board shall, by rule take such actions as may be necessary to en- ‘‘(E) If such sale or refinancing occurs dur- or order, establish standards and policies to sure that securities based on and backed by ing the period that begins 4 years after such require the underwriter of the insured loan a trust or pool composed of mortgages in- date of insurance and ends 5 years after such to provide such representations and warran- sured under this section are available to be date of insurance, the Secretary shall be en- ties as the Board considers necessary or ap- guaranteed by the Government National titled to 60 percent of such equity and the propriate to enforce compliance with all un- Mortgage Association as to the timely pay- mortgagor shall be entitled to 40 percent of derwriting and appraisal standards of the ment of principal and interest. HOPE for Homeowners Program. such equity. ‘‘(2) GUARANTEE AUTHORITY.—To carry out ‘‘(F) If such sale or refinancing occurs dur- ‘‘(2) EXCLUSION FOR VIOLATIONS.—The Board the purposes of section 306 of the National ing any period that begins 5 years after such shall prohibit the Secretary from paying in- Housing Act (12 U.S.C. 1721), the Government date of insurance, the Secretary shall be en- surance benefits to a mortgagee who violates National Mortgage Association may enter titled to 50 percent of such equity and the the representations and warranties, as estab- into new commitments to issue guarantees mortgagor shall be entitled to 50 percent of lished under paragraph (1), or in any case in of securities based on or backed by mort- such equity. which a mortgagor fails to make the first gages insured under this section, not exceed- ‘‘(2) APPRECIATION IN VALUE.—For each eli- payment on a refinanced eligible mortgage. ing $300,000,000,000. The amount of authority gible mortgage insured under this section, ‘‘(3) OTHER AUTHORITY.—The Board may es- provided under the preceding sentence to the Secretary and the mortgagor of such tablish such other standards or policies as enter into new commitments to issue guar- mortgage shall, upon any sale or disposition necessary to protect against adverse selec- antees is in addition to any amount of au- of the property to which such mortgage re- tion, including requiring loans identified by thority to make new commitments to issue lates, each be entitled to 50 percent of any the Secretary as higher risk loans to dem- guarantees that is provided to the Associa- appreciation in value of the appraised value onstrate payment performance for a reason- tion under any other provision of law. able period of time prior to being insured of such property that has occurred since the ‘‘(r) SUNSET.—The Secretary may not enter under the program. date that such mortgage was insured under into any new commitment to insure any refi- ‘‘(i) PREMIUMS.—For each refinanced eligi- this section. nanced eligible mortgage, or newly insure ble mortgage insured under this section, the ‘‘(l) ESTABLISHMENT OF HOPE FUND.— any refinanced eligible mortgage pursuant to Secretary shall establish and collect— ‘‘(1) IN GENERAL.—There is established in this section before October 1, 2008 or after ‘‘(1) at the time of insurance, a single pre- the Federal Housing Administration a re- September 30, 2011. mium payment in an amount equal to 3 per- volving fund to be known as the Home Own- ‘‘(s) DEFINITIONS.—For purposes of this sec- cent of the amount of the original insured ership Preservation Entity Fund, which shall tion, the following definitions shall apply: principal obligation of the refinanced eligi- be used by the Board for carrying out the ‘‘(1) APPROVED FINANCIAL INSTITUTION OR ble mortgage, which shall be paid from the mortgage insurance obligations under this MORTGAGEE.—The term ‘approved financial proceeds of the mortgage being insured section. institution or mortgagee’ means a financial under this section, through the reduction of ‘‘(2) MANAGEMENT OF FUND.—The HOPE institution or mortgagee approved by the the amount of indebtedness that existed on Fund shall be administered and managed by Secretary under section 203 as responsible the eligible mortgage prior to refinancing; the Secretary, who shall establish reasonable and able to service mortgages responsibly. and and prudent criteria for the management and ‘‘(2) BOARD.—The term ‘Board’ means the ‘‘(2) in addition to the premium required operation of any amounts in the HOPE Fund. Board of Directors of the HOPE for Home- under paragraph (1), an annual premium in ‘‘(m) LIMITATION ON AGGREGATE INSURANCE owners Program. The Board shall be com- an amount equal to 1.5 percent of the AUTHORITY.—The aggregate original prin- posed of the Secretary, the Secretary of the amount of the remaining insured principal cipal obligation of all mortgages insured Treasury, the Chairperson of the Board of balance of the mortgage. under this section may not exceed Governors of the Federal Reserve System, ‘‘(j) ORIGINATION FEES AND INTEREST $300,000,000,000. and the Chairperson of the Board of Direc- RATE.—The Board shall establish— ‘‘(n) REPORTS BY THE BOARD.—The Board tors of the Federal Deposit Insurance Cor- ‘‘(1) a reasonable limitation on origination shall submit monthly reports to the Con- poration. fees for refinanced eligible mortgages in- gress identifying the progress of the HOPE ‘‘(3) ELIGIBLE MORTGAGE.—The term ‘eligi- sured under this section; and for Homeowners Program, which shall con- ble mortgage’ means a mortgage—

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00102 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6075 ‘‘(A) the mortgagor of which— Treasury and do not, in the aggregate, ex- oping innovative new technologies, re- ‘‘(i) occupies such property as his or her ceed the amount specified in subsection (m); ducing carbon emissions, creating principal residence; and ‘‘(B) provide the subsidy amounts nec- green jobs, protecting consumers, in- ‘‘(ii) cannot, subject to subsection (e)(1)(B) essary for loan guarantees under the HOPE creasing clean renewable energy pro- and such other standards established by the for Homeowners Program, not to exceed the Board, afford his or her mortgage payments; amount specified in subsection (m), in ac- duction, and modernizing our energy and cordance with the provisions of the Federal infrastructure, and to amend the Inter- ‘‘(B) originated on or before January 1, Credit Reform Act of 1990 (2 U.S.C. 661 et nal Revenue Code of 1986 to provide tax 2008. seq.), except as provided in this paragraph; incentives for the production of renew- ‘‘(4) EXISTING SENIOR MORTGAGE.—The term and able energy and energy conservation; ‘existing senior mortgage’ means, with re- ‘‘(C) use the proceeds from HOPE Bonds which was ordered to lie on the table; spect to a mortgage insured under this sec- only to pay for the net costs to the Federal as follows: tion, the existing mortgage that has superior Government of the HOPE for Homeowners priority. Program, including administrative costs. On page 401, line 10, after the first period insert the following: ‘‘(5) EXISTING SUBORDINATE MORTGAGE.— ‘‘(2) REIMBURSEMENTS TO TREASURY.— ‘‘(x) NO BENEFIT FOR DELINQUENCY WITHIN The term ‘existing subordinate mortgage’ Funds received pursuant to section 1338(b) of FIRST SIX MONTHS.—No insurance benefits means, with respect to a mortgage insured the Federal Housing Enterprises Regulatory shall be paid by the Secretary pursuant to under this section, an existing mortgage Reform Act of 1992 shall be used to reimburse this section if a mortgagor fails to timely that has subordinate priority to the existing the Secretary of the Treasury for amounts make any of his or her first six payments on senior mortgage. borrowed under paragraph (1). a refinanced eligible mortgage insured under ‘‘(6) HOPE FOR HOMEOWNERS PROGRAM.— ‘‘(3) USE OF RESERVE FUND.—If the net cost this section.’’. The term ‘HOPE for Homeowners Program’ to the Federal Government for the HOPE for means the program established under this Homeowners Program exceeds the amount of section. funds received under paragraph (2), remain- SA 5050. Mr. ENSIGN submitted an ‘‘(7) SECRETARY.—The term ‘Secretary’ ing debts of the HOPE for Homeowners Pro- amendment intended to be proposed to means the Secretary of Housing and Urban gram shall be paid from amounts deposited amendment SA 4983 proposed by Mr. Development, except where specifically pro- into the fund established by the Secretary REID (for Mr. DODD (for himself and Mr. vided otherwise. under section 1337(b) of the Federal Housing SHELBY)) to the bill H.R. 3221, moving ‘‘(t) REQUIREMENTS RELATED TO THE Enterprises Financial Safety and Soundness the United States toward greater en- BOARD.— Act of 1992, remaining amounts in such fund ergy independence and security, devel- ‘‘(1) COMPENSATION, ACTUAL, NECESSARY, to be used to reduce the National debt.’’. oping innovative new technologies, re- AND TRANSPORTATION EXPENSES.— ducing carbon emissions, creating ‘‘(A) FEDERAL EMPLOYEES.—A member of SA 5048. Mr. ENSIGN submitted an the Board who is an officer or employee of amendment intended to be proposed to green jobs, protecting consumers, in- the Federal Government shall serve without amendment SA 4983 proposed by Mr. creasing clean renewable energy pro- additional pay (or benefits in the nature of REID (for Mr. DODD (for himself and Mr. duction, and modernizing our energy compensation) for service as a member of the SHELBY)) to the bill H.R. 3221, moving infrastructure, and to amend the Inter- Board. the United States toward greater en- nal Revenue Code of 1986 to provide tax ‘‘(B) TRAVEL EXPENSES.—Members of the ergy independence and security, devel- incentives for the production of renew- Board shall be entitled to receive travel ex- oping innovative new technologies, re- able energy and energy conservation; penses, including per diem in lieu of subsist- which was ordered to lie on the table; ence, equivalent to those set forth in sub- ducing carbon emissions, creating chapter I of chapter 57 of title 5, United green jobs, protecting consumers, in- as follows: States Code. creasing clean renewable energy pro- On page 510, between lines 5 and 6, insert ‘‘(2) BYLAWS.—The Board may prescribe, duction, and modernizing our energy the following: amend, and repeal such bylaws as may be infrastructure, and to amend the Inter- (4) SALE REQUIREMENT.—If a State or unit necessary for carrying out the functions of nal Revenue Code of 1986 to provide tax of general local government purchases or the Board. incentives for the production of renew- otherwise acquires an abandoned or fore- ‘‘(3) QUORUM.—A majority of the Board closed upon home or residential property able energy and energy conservation; with funds received pursuant to this section shall constitute a quorum. which was ordered to lie on the table; ‘‘(4) STAFF; EXPERTS AND CONSULTANTS.— or with any amounts derived or generated ‘‘(A) DETAIL OF GOVERNMENT EMPLOYEES.— as follows: from activities authorized under this sec- Upon request of the Board, any Federal Gov- On page 133, between lines 9 and 10, insert tion, that State or unit of general local gov- ernment employee may be detailed to the the following: ernment shall sell such home or property by Board without reimbursement, and such de- ‘‘(g) ADDITIONAL LIMITATIONS ON DISTRIBU- a date that is not later than 5 years after the tail shall be without interruption or loss of TION OF FUNDS.— date of enactment of this Act. civil service status or privilege. ‘‘(1) IN GENERAL.—None of the funds allo- ‘‘(B) EXPERTS AND CONSULTANTS.—The cated under this section shall be distributed SA 5051. Mr. ENSIGN submitted an Board shall procure the services of experts out of either the Housing Trust Fund or the amendment intended to be proposed to and consultants as the Board considers ap- Capital Magnet Fund to— amendment SA 4983 proposed by Mr. propriate. ‘‘(A) an organization which has been in- dicted for a violation under Federal law re- REID (for Mr. DODD (for himself and Mr. ‘‘(u) RULE OF CONSTRUCTION RELATED TO lating to an election for Federal office; or SHELBY)) to the bill H.R. 3221, moving VOLUNTARY NATURE OF THE PROGRAM.—This ‘‘(B) an organization which employs appli- the United States toward greater en- section shall not be construed to require ergy independence and security, devel- that any approved financial institution or cable individuals. mortgagee participate in any activity au- ‘‘(2) APPLICABLE INDIVIDUALS DEFINED.—In oping innovative new technologies, re- thorized under this section, including any this subsection, the term ‘applicable indi- ducing carbon emissions, creating activity related to the refinancing of an eli- vidual’ means an individual who— green jobs, protecting consumers, in- gible mortgage. ‘‘(A) is— creasing clean renewable energy pro- ‘‘(i) employed by the organization in a per- ‘‘(v) RULE OF CONSTRUCTION RELATED TO IN- manent or temporary capacity; duction, and modernizing our energy SURANCE OF MORTGAGES.—Except as other- ‘‘(ii) contracted or retained by the organi- infrastructure, and to amend the Inter- wise provided for in this section or by action zation; or nal Revenue Code of 1986 to provide tax of the Board, the provisions and require- ‘‘(iii) acting on behalf of, or with the ex- incentives for the production of renew- ments of section 203(b) shall apply with re- press or apparent authority of, the organiza- spect to the insurance of any eligible mort- able energy and energy conservation; tion; and gage under this section. which was ordered to lie on the table; ‘‘(B) has been indicted for a violation under ‘‘(w) HOPE BONDS.— as follows: Federal law relating to an election for Fed- ‘‘(1) ISSUANCE AND REPAYMENT OF BONDS.— On page 575, strike lines 3 through 13 and eral office.’’. Notwithstanding section 504(b) of the Fed- insert the following: eral Credit Reform Act of 1990 (2 U.S.C. SA 5049. Mr. ENSIGN submitted an ‘‘(A) INCREASE FOR 2008.— 661d(b)), the Secretary of the Treasury amendment intended to be proposed to ‘‘(i) IN GENERAL.—In the case of calendar shall— year 2008, the State ceiling for each State ‘‘(A) subject to such terms and conditions amendment SA 4983 proposed by Mr. shall be increased by an amount equal to as the Secretary of the Treasury deems nec- REID (for Mr. DODD (for himself and Mr. $11,000,000,000 multiplied by the State share essary, issue Federal credit instruments, to SHELBY)) to the bill H.R. 3221, moving for such State. be known as ‘HOPE Bonds’, that are callable the United States toward greater en- ‘‘(ii) STATE SHARE.—For purposes of this at the discretion of the Secretary of the ergy independence and security, devel- paragraph, the State share for any state

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shall be the amount, expressed as a percent- At the end of division C, add the following: RELATED PERSONS.—Section 45(e)(4) (relating age, determined with respect to such State TITLE ll—CLEAN ENERGY TAX to related persons) is amended by adding at under the formula established under clause STIMULUS the end the following new sentence: ‘‘A tax- (iii). SEC. ll01. SHORT TITLE. payer shall be treated as selling electricity ‘‘(iii) FORMULA.—The formula established This title may be cited as the ‘‘Clean En- to an unrelated person if such electricity is under this clause shall be established by the ergy Tax Stimulus Act of 2008’’. sold to a regulated public utility (as defined Secretary, in consultation with the Sec- in section 7701(a)(33).’’. Subtitle A—Extension of Clean Energy retary of Housing and Urban Development, (d) TRASH FACILITY CLARIFICATION.—Para- Production Incentives and shall be based on need, as such need is graph (7) of section 45(d) is amended— determined in the discretion of the Sec- SEC. ll11. EXTENSION AND MODIFICATION OF (1) by striking ‘‘facility which burns’’ and RENEWABLE ENERGY PRODUCTION inserting ‘‘facility (other than a facility de- retary, taking into account— TAX CREDIT. scribed in paragraph (6)) which uses’’, and ‘‘(I) the number and percentage of home (a) EXTENSION OF CREDIT.—Each of the fol- foreclosures in each State; lowing provisions of section 45(d) (relating to (2) by striking ‘‘COMBUSTION’’. (e) EFFECTIVE DATES.— ‘‘(II) the number and percentage of homes qualified facilities) is amended by striking (1) EXTENSION.—The amendments made by financed by a subprime mortgage related ‘‘January 1, 2009’’ and inserting ‘‘January 1, loan in each State; and 2010’’: subsection (a) shall apply to property origi- ‘‘(III) the number and percentage of homes (1) Paragraph (1). nally placed in service after December 31, in default or delinquency in each State. (2) Clauses (i) and (ii) of paragraph (2)(A). 2008. ‘‘(iv) FORMULA TO BE DEVISED SWIFTLY.— (3) Clauses (i)(I) and (ii) of paragraph (2) MODIFICATIONS.—The amendments made The formula under clause (iii) shall be estab- (3)(A). by subsections (b) and (c) shall apply to elec- lished not later than 30 days after the date of (4) Paragraph (4). tricity produced and sold after the date of enactment of this paragraph. (5) Paragraph (5). the enactment of this Act, in taxable years (6) Paragraph (6). ending after such date. SA 5052. Mr. ENSIGN submitted an (7) Paragraph (7). (3) TRASH FACILITY CLARIFICATION.—The amendment intended to be proposed by (8) Paragraph (8). amendments made by subsection (d) shall him to the bill H.R. 3221, moving the (9) Subparagraphs (A) and (B) of paragraph apply to electricity produced and sold before, on, or after December 31, 2007. United States toward greater energy (9). SEC. ll12. EXTENSION AND MODIFICATION OF independence and security, developing (b) PRODUCTION CREDIT FOR ELECTRICITY PRODUCED FROM MARINE RENEWABLES.— SOLAR ENERGY AND FUEL CELL IN- innovative new technologies, reducing (1) IN GENERAL.—Paragraph (1) of section VESTMENT TAX CREDIT. carbon emissions, creating green jobs, 45(c) (relating to resources) is amended by (a) EXTENSION OF CREDIT.— protecting consumers, increasing clean striking ‘‘and’’ at the end of subparagraph (1) SOLAR ENERGY PROPERTY.—Paragraphs renewable energy production, and mod- (G), by striking the period at the end of sub- (2)(A)(i)(II) and (3)(A)(ii) of section 48(a) (re- lating to energy credit) are each amended by ernizing our energy infrastructure, and paragraph (H) and inserting ‘‘, and’’, and by adding at the end the following new subpara- striking ‘‘January 1, 2009’’ and inserting to amend the Internal Revenue Code of ‘‘January 1, 2017’’. 1986 to provide tax incentives for the graph: ‘‘(I) marine and hydrokinetic renewable (2) FUEL CELL PROPERTY.—Subparagraph production of renewable energy and en- energy.’’. (E) of section 48(c)(1) (relating to qualified ergy conservation; which was ordered (2) MARINE RENEWABLES.—Subsection (c) of fuel cell property) is amended by striking to lie on the table; as follows: section 45 is amended by adding at the end ‘‘December 31, 2008’’ and inserting ‘‘Decem- On page 518, line 3, strike the period and the following new paragraph: ber 31, 2017’’. insert ‘‘: Provided, further that none of the ‘‘(10) MARINE AND HYDROKINETIC RENEWABLE (3) QUALIFIED MICROTURBINE PROPERTY.— funds appropriated by this section for sec- ENERGY.— Subparagraph (E) of section 48(c)(2) (relating tion 2401 or funds appropriated by section ‘‘(A) IN GENERAL.—The term ‘marine and to qualified microturbine property) is 2401 shall be for political activities, lob- hydrokinetic renewable energy’ means en- amended by striking ‘‘December 31, 2008’’ and bying, whether directly or through other ergy derived from— inserting ‘‘December 31, 2017’’. (b) ALLOWANCE OF ENERGY CREDIT AGAINST parties, or travel expenses.’’. ‘‘(i) waves, tides, and currents in oceans, estuaries, and tidal areas, ALTERNATIVE MINIMUM TAX.—Subparagraph ‘‘(ii) free flowing water in rivers, lakes, and (B) of section 38(c)(4) (relating to specified SA 5053 Mr. CORKER submitted an credits) is amended by striking ‘‘and’’ at the amendment intended to be proposed by streams, ‘‘(iii) free flowing water in an irrigation end of clause (iii), by striking the period at him to the bill H.R. 3221, moving the system, canal, or other man-made channel, the end of clause (iv) and inserting ‘‘, and’’, United States toward greater energy including projects that utilize nonmechan- and by adding at the end the following new independence and security, developing ical structures to accelerate the flow of clause: innovative new technologies, reducing water for electric power production purposes, ‘‘(v) the credit determined under section 46 carbon emissions, creating green jobs, or to the extent that such credit is attributable protecting consumers, increasing clean ‘‘(iv) differentials in ocean temperature to the energy credit determined under sec- tion 48.’’. renewable energy production, and mod- (ocean thermal energy conversion). ‘‘(B) EXCEPTIONS.—Such term shall not in- (c) REPEAL OF DOLLAR PER KILOWATT LIMI- ernizing our energy infrastructure, and clude any energy which is derived from any TATION FOR FUEL CELL PROPERTY.— to amend the Internal Revenue Code of source which utilizes a dam, diversionary (1) IN GENERAL.—Section 48(c)(1) (relating 1986 to provide tax incentives for the structure (except as provided in subpara- to qualified fuel cell), as amended by sub- production of renewable energy and en- graph (A)(iii)), or impoundment for electric section (a)(2), is amended by striking sub- ergy conservation; which was ordered power production purposes.’’. paragraph (B) and by redesignating subpara- to lie on the table; as follows: (3) DEFINITION OF FACILITY.—Subsection (d) graphs (C), (D), and (E) as subparagraphs (B), of section 45 is amended by adding at the end (C), and (D), respectively. Strike Title III of Division B. the following new paragraph: (2) CONFORMING AMENDMENT.—Section ‘‘(11) MARINE AND HYDROKINETIC RENEWABLE 48(a)(1) is amended by striking ‘‘paragraphs SA 5054. Mr. ENSIGN submitted an ENERGY FACILITIES.—In the case of a facility (1)(B) and (2)(B) of subsection (c)’’ and insert- amendment intended to be proposed to producing electricity from marine and ing ‘‘subsection (c)(2)(B)’’. amendment SA 4983 proposed by Mr. hydrokinetic renewable energy, the term (d) PUBLIC ELECTRIC UTILITY PROPERTY REID (for Mr. DODD (for himself and Mr. ‘qualified facility’ means any facility owned TAKEN INTO ACCOUNT.— SHELBY)) to the bill H.R. 3221, moving by the taxpayer— (1) IN GENERAL.—Paragraph (3) of section the United States toward greater en- ‘‘(A) which has a nameplate capacity rat- 48(a) is amended by striking the second sen- ergy independence and security, devel- ing of at least 150 kilowatts, and tence thereof. ‘‘(B) which is originally placed in service (2) CONFORMING AMENDMENTS.— oping innovative new technologies, re- on or after the date of the enactment of this (A) Paragraph (1) of section 48(c), as ducing carbon emissions, creating paragraph and before January 1, 2010.’’. amended by this section, is amended by green jobs, protecting consumers, in- (4) CREDIT RATE.—Subparagraph (A) of sec- striking subparagraph (C) and redesignating creasing clean renewable energy pro- tion 45(b)(4) is amended by striking ‘‘or (9)’’ subparagraph (D) as subparagraph (C). duction, and modernizing our energy and inserting ‘‘(9), or (11)’’. (B) Paragraph (2) of section 48(c), as infrastructure, and to amend the Inter- (5) COORDINATION WITH SMALL IRRIGATION amended by subsection (a)(3), is amended by nal Revenue Code of 1986 to provide tax POWER.—Paragraph (5) of section 45(d), as striking subparagraph (D) and redesignating incentives for the production of renew- amended by subsection (a), is amended by subparagraph (E) as subparagraph (D). striking ‘‘January 1, 2010’’ and inserting ‘‘the (e) EFFECTIVE DATES.— able energy and energy conservation; date of the enactment of paragraph (11)’’. (1) EXTENSION.—The amendments made by which was ordered to lie on the table; (c) SALES OF ELECTRICITY TO REGULATED subsection (a) shall take effect on the date of as follows: PUBLIC UTILITIES TREATED AS SALES TO UN- the enactment of this Act.

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(2) ALLOWANCE AGAINST ALTERNATIVE MIN- (D) Section 26(a)(1) is amended by striking Subtitle B—Extension of Incentives To IMUM TAX.—The amendments made by sub- ‘‘and 25B’’ and inserting ‘‘25B, and 25D’’. Improve Energy Efficiency section (b) shall apply to credits determined (d) EFFECTIVE DATE.— SEC. ll21. EXTENSION AND MODIFICATION OF under section 46 of the Internal Revenue (1) IN GENERAL.—The amendments made by CREDIT FOR ENERGY EFFICIENCY Code of 1986 in taxable years beginning after this section shall apply to taxable years be- IMPROVEMENTS TO EXISTING the date of the enactment of this Act and to ginning after December 31, 2007. HOMES. (a) EXTENSION OF CREDIT.—Section 25C(g) carrybacks of such credits. (2) APPLICATION OF EGTRRA SUNSET.—The (3) FUEL CELL PROPERTY AND PUBLIC ELEC- amendments made by subparagraphs (A) and (relating to termination) is amended by TRIC UTILITY PROPERTY.—The amendments (B) of subsection (c)(2) shall be subject to striking ‘‘December 31, 2007’’ and inserting ‘‘December 31, 2009’’. made by subsections (c) and (d) shall apply title IX of the Economic Growth and Tax Re- (b) QUALIFIED BIOMASS FUEL PROPERTY.— to periods after the date of the enactment of lief Reconciliation Act of 2001 in the same this Act, in taxable years ending after such (1) IN GENERAL.—Section 25C(d)(3) is manner as the provisions of such Act to amended— date, under rules similar to the rules of sec- which such amendments relate. tion 48(m) of the Internal Revenue Code of (A) by striking ‘‘and’’ at the end of sub- SEC. ll14. EXTENSION AND MODIFICATION OF 1986 (as in effect on the day before the date paragraph (D), CREDIT FOR CLEAN RENEWABLE EN- (B) by striking the period at the end of of the enactment of the Revenue Reconcili- ERGY BONDS. ation Act of 1990). subparagraph (E) and inserting ‘‘, and’’, and (a) EXTENSION.—Section 54(m) (relating to (C) by adding at the end the following new SEC. ll13. EXTENSION AND MODIFICATION OF termination) is amended by striking ‘‘De- RESIDENTIAL ENERGY EFFICIENT subparagraph: PROPERTY CREDIT. cember 31, 2008’’ and inserting ‘‘December 31, ‘‘(F) a stove which uses the burning of bio- (a) EXTENSION.—Section 25D(g) (relating to 2009’’. mass fuel to heat a dwelling unit located in termination) is amended by striking ‘‘De- (b) INCREASE IN NATIONAL LIMITATION.— the United States and used as a residence by cember 31, 2008’’ and inserting ‘‘December 31, Section 54(f) (relating to limitation on the taxpayer, or to heat water for use in such 2009’’. amount of bonds designated) is amended— a dwelling unit, and which has a thermal ef- (b) NO DOLLAR LIMITATION FOR CREDIT FOR (1) by inserting ‘‘, and for the period begin- ficiency rating of at least 75 percent.’’. SOLAR ELECTRIC PROPERTY.— ning after the date of the enactment of the (2) BIOMASS FUEL.—Section 25C(d) (relating (1) IN GENERAL.—Section 25D(b)(1) (relating Clean Energy Tax Stimulus Act of 2008 and to residential energy property expenditures) to maximum credit) is amended by striking ending before January 1, 2010, $400,000,000’’ is amended by adding at the end the fol- subparagraph (A) and by redesignating sub- after ‘‘$1,200,000,000’’ in paragraph (1), lowing new paragraph: paragraphs (B) and (C) as subparagraphs (A) (2) by striking ‘‘$750,000,000 of the’’ in para- ‘‘(6) BIOMASS FUEL.—The term ‘biomass and (B), respectively. graph (2) and inserting ‘‘$750,000,000 of the fuel’ means any plant-derived fuel available (2) CONFORMING AMENDMENTS.—Section $1,200,000,000’’, and on a renewable or recurring basis, including 25D(e)(4) is amended— (3) by striking ‘‘bodies’’ in paragraph (2) agricultural crops and trees, wood and wood (A) by striking clause (i) in subparagraph and inserting ‘‘bodies, and except that the waste and residues (including wood pellets), (A), Secretary may not allocate more than 1⁄3 of plants (including aquatic plants), grasses, (B) by redesignating clauses (ii) and (iii) in the $400,000,000 national clean renewable en- residues, and fibers.’’. subparagraph (A) as clauses (i) and (ii), re- ergy bond limitation to finance qualified (c) MODIFICATIONS OF STANDARDS FOR EN- spectively, and projects of qualified borrowers which are ERGY-EFFICIENT BUILDING PROPERTY.— (C) by striking ‘‘, (2),’’ in subparagraph (C). public power providers nor more than 1⁄3 of (1) ELECTRIC HEAT PUMPS.—Subparagraph (c) CREDIT ALLOWED AGAINST ALTERNATIVE such limitation to finance qualified projects (B) of section 25C(d)(3) is amended to read as MINIMUM TAX.— of qualified borrowers which are mutual or follows: (1) IN GENERAL.—Subsection (c) of section cooperative electric companies described in ‘‘(A) an electric heat pump which achieves 25D is amended to read as follows: section 501(c)(12) or section 1381(a)(2)(C)’’. the highest efficiency tier established by the Consortium for Energy Efficiency, as in ef- ‘‘(c) LIMITATION BASED ON AMOUNT OF TAX; (c) PUBLIC POWER PROVIDERS DEFINED.— CARRYFORWARD OF UNUSED CREDIT.— Section 54(j) is amended— fect on January 1, 2008.’’. ‘‘(1) LIMITATION BASED ON AMOUNT OF TAX.— (1) by adding at the end the following new (2) CENTRAL AIR CONDITIONERS.—Section In the case of a taxable year to which section paragraph: 25C(d)(3)(D) is amended by striking ‘‘2006’’ 26(a)(2) does not apply, the credit allowed and inserting ‘‘2008’’. ‘‘(6) PUBLIC POWER PROVIDER.—The term under subsection (a) for the taxable year ‘public power provider’ means a State utility (3) WATER HEATERS.—Subparagraph (E) of shall not exceed the excess of— with a service obligation, as such terms are section 25C(d) is amended to read as follows: ‘‘(A) the sum of the regular tax liability defined in section 217 of the Federal Power ‘‘(E) a natural gas, propane, or oil water (as defined in section 26(b)) plus the tax im- Act (as in effect on the date of the enact- heater which has either an energy factor of posed by section 55, over ment of this paragraph).’’, and at least 0.80 or a thermal efficiency of at ‘‘(B) the sum of the credits allowable under least 90 percent.’’. (2) by inserting ‘‘; PUBLIC POWER PRO- this subpart (other than this section) and (4) OIL FURNACES AND HOT WATER BOILERS.— VIDER’’ before the period at the end of the section 27 for the taxable year. heading. Paragraph (4) of section 25C(d) is amended to ‘‘(2) CARRYFORWARD OF UNUSED CREDIT.— read as follows: (d) TECHNICAL AMENDMENT.—The third sen- ‘‘(A) RULE FOR YEARS IN WHICH ALL PER- ‘‘(4) QUALIFIED NATURAL GAS, PROPANE, AND tence of section 54(e)(2) is amended by strik- SONAL CREDITS ALLOWED AGAINST REGULAR OIL FURNACES AND HOT WATER BOILERS.— ing ‘‘subsection (l)(6)’’ and inserting ‘‘sub- AND ALTERNATIVE MINIMUM TAX.—In the case ‘‘(A) QUALIFIED NATURAL GAS FURNACE.— section (l)(5)’’. of a taxable year to which section 26(a)(2) ap- The term ‘qualified natural gas furnace’ plies, if the credit allowable under sub- (e) EFFECTIVE DATE.—The amendments means any natural gas furnace which section (a) exceeds the limitation imposed by made by this section shall apply to bonds achieves an annual fuel utilization efficiency section 26(a)(2) for such taxable year reduced issued after the date of the enactment of this rate of not less than 95. Act. by the sum of the credits allowable under ‘‘(B) QUALIFIED NATURAL GAS HOT WATER this subpart (other than this section), such SEC. ll15. EXTENSION OF SPECIAL RULE TO IM- BOILER.—The term ‘qualified natural gas hot excess shall be carried to the succeeding tax- PLEMENT FERC RESTRUCTURING water boiler’ means any natural gas hot able year and added to the credit allowable POLICY. water boiler which achieves an annual fuel under subsection (a) for such succeeding tax- (a) QUALIFYING ELECTRIC TRANSMISSION utilization efficiency rate of not less than 90. able year. TRANSACTION.— ‘‘(C) QUALIFIED PROPANE FURNACE.—The ‘‘(B) RULE FOR OTHER YEARS.—In the case (1) IN GENERAL.—Section 451(i)(3) (defining term ‘qualified propane furnace’ means any of a taxable year to which section 26(a)(2) qualifying electric transmission transaction) propane furnace which achieves an annual does not apply, if the credit allowable under is amended by striking ‘‘January 1, 2008’’ and fuel utilization efficiency rate of not less subsection (a) exceeds the limitation im- inserting ‘‘January 1, 2010’’. than 95. posed by paragraph (1) for such taxable year, (2) EFFECTIVE DATE.—The amendment ‘‘(D) QUALIFIED PROPANE HOT WATER BOIL- such excess shall be carried to the suc- made by this subsection shall apply to trans- ER.—The term ‘qualified propane hot water ceeding taxable year and added to the credit actions after December 31, 2007. boiler’ means any propane hot water boiler allowable under subsection (a) for such suc- (b) INDEPENDENT TRANSMISSION COMPANY.— which achieves an annual fuel utilization ef- ceeding taxable year.’’. (1) IN GENERAL.—Section 451(i)(4)(B)(ii) (de- ficiency rate of not less than 90. (2) CONFORMING AMENDMENTS.— fining independent transmission company) is ‘‘(E) QUALIFIED OIL FURNACES.—The term (A) Section 23(b)(4)(B) is amended by in- amended by striking ‘‘December 31, 2007’’ and ‘qualified oil furnace’ means any oil furnace serting ‘‘and section 25D’’ after ‘‘this sec- inserting ‘‘the date which is 2 years after the which achieves an annual fuel utilization ef- tion’’. date of such transaction’’. ficiency rate of not less than 90. (B) Section 24(b)(3)(B) is amended by strik- (2) EFFECTIVE DATE.—The amendment ‘‘(F) QUALIFIED OIL HOT WATER BOILER.— ing ‘‘and 25B’’ and inserting ‘‘, 25B, and 25D’’. made by this subsection shall take effect as The term ‘qualified oil hot water boiler’ (C) Section 25B(g)(2) is amended by strik- if included in the amendments made by sec- means any oil hot water boiler which ing ‘‘section 23’’ and inserting ‘‘sections 23 tion 909 of the American Jobs Creation Act achieves an annual fuel utilization efficiency and 25D’’. of 2004. rate of not less than 90.’’.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00105 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6078 CONGRESSIONAL RECORD — SENATE June 24, 2008

(d) EFFECTIVE DATE.—The amendments ‘‘(3) REFRIGERATORS.—The applicable ‘‘(B) any clothes washer described in sub- made this section shall apply to expenditures amount is— section (b)(2), and made after December 31, 2007. ‘‘(A) $50 in the case of a refrigerator which ‘‘(C) any refrigerator described in sub- SEC. ll22. EXTENSION AND MODIFICATION OF is manufactured in calendar year 2008, and section (b)(3).’’. TAX CREDIT FOR ENERGY EFFI- consumes at least 20 percent but not more (2) CLOTHES WASHER.—Section 45M(f)(3) (de- CIENT NEW HOMES. than 22.9 percent less kilowatt hours per fining clothes washer) is amended by insert- (a) EXTENSION OF CREDIT.—Subsection (g) year than the 2001 energy conservation ing ‘‘commercial’’ before ‘‘residential’’ the of section 45L (relating to termination) is standards, second place it appears. amended by striking ‘‘December 31, 2008’’ and ‘‘(B) $75 in the case of a refrigerator which (3) TOP-LOADING CLOTHES WASHER.—Sub- inserting ‘‘December 31, 2010’’. is manufactured in calendar year 2008 or 2009, section (f) of section 45M (relating to defini- (b) ALLOWANCE FOR CONTRACTOR’S PER- and consumes at least 23 percent but no tions) is amended by redesignating para- SONAL RESIDENCE.—Subparagraph (B) of sec- more than 24.9 percent less kilowatt hours graphs (4), (5), (6), and (7) as paragraphs (5), tion 45L(a)(1) is amended to read as follows: per year than the 2001 energy conservation (6), (7), and (8), respectively, and by inserting ‘‘(B)(i) acquired by a person from such eli- standards, after paragraph (3) the following new para- gible contractor and used by any person as a ‘‘(C) $100 in the case of a refrigerator which graph: residence during the taxable year, or is manufactured in calendar year 2008, 2009, ‘‘(4) TOP-LOADING CLOTHES WASHER.—The ‘‘(ii) used by such eligible contractor as a or 2010, and consumes at least 25 percent but term ‘top-loading clothes washer’ means a residence during the taxable year.’’. not more than 29.9 percent less kilowatt clothes washer which has the clothes con- (c) EFFECTIVE DATE.—The amendments hours per year than the 2001 energy con- made by this section shall apply to homes tainer compartment access located on the acquired after December 31, 2008. servation standards, and top of the machine and which operates on a ‘‘(D) $200 in the case of a refrigerator man- SEC. ll23. EXTENSION AND MODIFICATION OF vertical axis.’’. ENERGY EFFICIENT COMMERCIAL ufactured in calendar year 2008, 2009, or 2010 (4) REPLACEMENT OF ENERGY FACTOR.—Sec- BUILDINGS DEDUCTION. and which consumes at least 30 percent less tion 45M(f)(6), as redesignated by paragraph (a) EXTENSION.—Section 179D(h) (relating energy than the 2001 energy conservation (3), is amended to read as follows: to termination) is amended by striking ‘‘De- standards.’’. ‘‘(6) MODIFIED ENERGY FACTOR.—The term cember 31, 2008’’ and inserting ‘‘December 31, (b) ELIGIBLE PRODUCTION.— ‘modified energy factor’ means the modified 2009’’. (1) SIMILAR TREATMENT FOR ALL APPLI- energy factor established by the Department (b) ADJUSTMENT OF MAXIMUM DEDUCTION ANCES.—Subsection (c) of section 45M (relat- of Energy for compliance with the Federal AMOUNT.— ing to eligible production) is amended— energy conservation standard.’’. (1) IN GENERAL.—Subparagraph (A) of sec- (A) by striking paragraph (2), (5) GALLONS PER CYCLE; WATER CONSUMP- tion 179D(b)(1) (relating to maximum (B) by striking ‘‘(1) IN GENERAL’’ and all TION FACTOR.—Section 45M(f) (relating to amount of deduction) is amended by striking that follows through ‘‘the eligible’’ and in- definitions), as amended by paragraph (3), is ‘‘$1.80’’ and inserting ‘‘$2.25’’. serting ‘‘The eligible’’, and amended by adding at the end the following: (2) PARTIAL ALLOWANCE.—Paragraph (1) of (C) by moving the text of such subsection ‘‘(9) GALLONS PER CYCLE.—The term ‘gal- section 179D(d) is amended— in line with the subsection heading and re- lons per cycle’ means, with respect to a dish- (A) by striking ‘‘$.60’’ and inserting designating subparagraphs (A) and (B) as washer, the amount of water, expressed in ‘‘$0.75’’, and paragraphs (1) and (2), respectively. gallons, required to complete a normal cycle (B) by striking ‘‘$1.80’’ and inserting (2) MODIFICATION OF BASE PERIOD.—Para- of a dishwasher. ‘‘$2.25’’. graph (2) of section 45M(c), as amended by ‘‘(10) WATER CONSUMPTION FACTOR.—The (c) EFFECTIVE DATE.—The amendments paragraph (1) of this section, is amended by term ‘water consumption factor’ means, with made by this section shall apply to property striking ‘‘3-calendar year’’ and inserting ‘‘2- respect to a clothes washer, the quotient of placed in service after the date of the enact- calendar year’’. the total weighted per-cycle water consump- ment of this Act. (c) TYPES OF ENERGY EFFICIENT APPLI- tion divided by the cubic foot (or liter) ca- SEC. ll24. MODIFICATION AND EXTENSION OF ANCES.—Subsection (d) of section 45M (defin- pacity of the clothes washer.’’. ENERGY EFFICIENT APPLIANCE ing types of energy efficient appliances) is (f) EFFECTIVE DATE.—The amendments CREDIT FOR APPLIANCES PRO- amended to read as follows: made by this section shall apply to appli- DUCED AFTER 2007. ‘‘(d) TYPES OF ENERGY EFFICIENT APPLI- ances produced after December 31, 2007. (a) IN GENERAL.—Subsection (b) of section ANCE.—For purposes of this section, the 45M (relating to applicable amount) is types of energy efficient appliances are— SA 5055. Mrs. LINCOLN submitted an amended to read as follows: ‘‘(1) dishwashers described in subsection ‘‘(b) APPLICABLE AMOUNT.—For purposes of (b)(1), amendment intended to be proposed to subsection (a)— ‘‘(2) clothes washers described in sub- amendment SA 4983 proposed by Mr. ‘‘(1) DISHWASHERS.—The applicable amount section (b)(2), and REID (for Mr. DODD (for himself and Mr. is— ‘‘(3) refrigerators described in subsection SHELBY)) to the bill H.R. 3221, moving ‘‘(A) $45 in the case of a dishwasher which (b)(3).’’. the United States toward greater en- is manufactured in calendar year 2008 or 2009 (d) AGGREGATE CREDIT AMOUNT ALLOWED.— ergy independence and security, devel- and which uses no more than 324 kilowatt (1) INCREASE IN LIMIT.—Paragraph (1) of oping innovative new technologies, re- hours per year and 5.8 gallons per cycle, and section 45M(e) (relating to aggregate credit ducing carbon emissions, creating ‘‘(B) $75 in the case of a dishwasher which amount allowed) is amended to read as fol- is manufactured in calendar year 2008, 2009, lows: green jobs, protecting consumers, in- or 2010 and which uses no more than 307 kilo- ‘‘(1) AGGREGATE CREDIT AMOUNT ALLOWED.— creasing clean renewable energy pro- watt hours per year and 5.0 gallons per cycle The aggregate amount of credit allowed duction, and modernizing our energy (5.5 gallons per cycle for dishwashers de- under subsection (a) with respect to a tax- infrastructure, and to amend the Inter- signed for greater than 12 place settings). payer for any taxable year shall not exceed nal Revenue Code of 1986 to provide tax ‘‘(2) CLOTHES WASHERS.—The applicable $75,000,000 reduced by the amount of the incentives for the production of renew- amount is— credit allowed under subsection (a) to the able energy and energy conservation; ‘‘(A) $75 in the case of a residential top- taxpayer (or any predecessor) for all prior which was ordered to lie on the table; loading clothes washer manufactured in cal- taxable years beginning after December 31, endar year 2008 which meets or exceeds a 1.72 2007.’’. as follows: modified energy factor and does not exceed a (2) EXCEPTION FOR CERTAIN REFRIGERATOR At the end of title VI of division A, add the 8.0 water consumption factor, AND CLOTHES WASHERS.—Paragraph (2) of sec- following: ‘‘(B) $125 in the case of a residential top- tion 45M(e) is amended to read as follows: SEC. 1606. CLARIFICATION OF SCOPE OF APPLI- loading clothes washer manufactured in cal- ‘‘(2) AMOUNT ALLOWED FOR CERTAIN REFRIG- CABLE RATE PROVISION. endar year 2008 or 2009 which meets or ex- ERATORS AND CLOTHES WASHERS.—Refrig- Section 44(f) of the Federal Deposit Insur- ceeds a 1.8 modified energy factor and does erators described in subsection (b)(3)(D) and ance Act (12 U.S.C. 1831u(f)) is amended by not exceed a 7.5 water consumption factor, clothes washers described in subsection adding at the end the following new para- ‘‘(C) $150 in the case of a residential or (b)(2)(D) shall not be taken into account graphs: commercial clothes washer manufactured in under paragraph (1).’’. ‘‘(3) OTHER PERSONS.—In the case of any calendar year 2008, 2009, or 2010 which meets (e) QUALIFIED ENERGY EFFICIENT APPLI- other person or governmental or private en- or exceeds 2.0 modified energy factor and ANCES.— tity in the State described in paragraph (1)— does not exceed a 6.0 water consumption fac- (1) IN GENERAL.—Paragraph (1) of section ‘‘(A) any provision of the constitution of tor, and 45M(f) (defining qualified energy efficient ap- that State that establishes a maximum law- ‘‘(D) $250 in the case of a residential or pliance) is amended to read as follows: ful annual interest rate, or otherwise or lim- commercial clothes washer manufactured in ‘‘(1) QUALIFIED ENERGY EFFICIENT APPLI- its the amount of interest, discount points, calendar year 2008, 2009, or 2010 which meets ANCE.—The term ‘qualified energy efficient finance charges, fees, or other charges that or exceeds 2.2 modified energy factor and appliance’ means— may be charged, taken, paid, received, or re- does not exceed a 4.5 water consumption fac- ‘‘(A) any dishwasher described in sub- served from time to time, until judgment, tor. section (b)(1), thereby interfering in interstate commerce,

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00106 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6079 shall not apply to any loan, discount, or Act (43 U.S.C. 1338), for each applicable fiscal Commerce, Science, and Transpor- credit sale made, or upon any bond, note, ob- year, the Secretary of the Treasury shall de- tation be authorized to meet during ligation, bill of exchange, financing trans- posit— the session of the Senate on Tuesday, action, or other evidence of debt issued or (1) 50 percent of qualified revenues in the June 24, 2008, at 10:30 a.m., in room 253 acquired by any other person or govern- general fund of the Treasury; and mental or private entity; and (2) 50 percent of qualified revenues in a spe- of the Russell Senate Office Building. ‘‘(B) such interest, discount points, finance cial account in the Treasury, which the Sec- The PRESIDING OFFICER. Without charges, fees, or other charges that may be retary shall disburse to eligible producing objection, it is so ordered. charged, taken, paid, received, or reserved States for new producing areas, to be allo- COMMITTEE ON COMMERCE, SCIENCE AND from time to time, until judgment, in any cated in accordance with subsection (d)(1). TRANSPORTATION loan, discount, or credit sale made, or upon (d) ALLOCATION TO ELIGIBLE PRODUCING Mr. DODD. Mr. President, I ask unan- any bond, note, obligation, bill of exchange, STATES.— imous consent that the Committee on financing transaction, or other evidence of (1) IN GENERAL.—The amount made avail- Commerce, Science, and Transpor- debt issued to or acquired by any other per- able under subsection (c)(2)(A) shall be allo- son or governmental or private entity may cated to eligible producing States in tation be authorized to meet during not exceed 17 percent per year.’’. amounts (based on a formula established by the session of the Senate on Tuesday, the Secretary by regulation) that are in- June 24, 2008, at 2:30 p.m., in room 253 SA 5056. Mr. DEMINT submitted an versely proportional to the respective dis- of the Russell Senate Office Building. amendment intended to be proposed by tances between the point on the coastline of The PRESIDING OFFICER. Without him to the bill H.R. 3221, moving the each eligible producing State that is closest objection, it is so ordered. to the geographic center of the applicable United States toward greater energy COMMITTEE ON FINANCE independence and security, developing leased tract and the geographic center of the leased tract, as determined by the Secretary. Mr. DODD. Mr. President, I ask unan- innovative new technologies, reducing imous consent that the Committee on carbon emissions, creating green jobs, (2) USE.—Amounts allocated to an eligible producing State under paragraph (1) shall be Finance be authorized to meet during protecting consumers, increasing clean used to address the impacts of any oil and the session of the Senate on Tuesday, renewable energy production, and mod- natural gas exploration and production ac- June 24, 2008, at 10 a.m., in room 215 of ernizing our energy infrastructure, and tivities under this section. the Dirksen Senate Office Building. to amend the Internal Revenue Code of (e) EFFECT.—Nothing in this section af- The PRESIDING OFFICER. Without fects— 1986 to provide tax incentives for the objection, it is so ordered. production of renewable energy and en- (1) the amount of funds otherwise dedi- ergy conservation; which was ordered cated to the land and water conservation COMMITTEE ON FOREIGN RELATIONS to lie on the table; as follows: fund established under section 2 of the Land Mr. DODD. Mr. President, I ask unan- and Water Conservation Fund Act of 1965 (16 imous consent that the Committee on At the end of title VI of division A, add the U.S.C. 460l–5); or following: Foreign Relations be authorized to (2) any authority that permits energy pro- meet during the session of the Senate SEC. 1606. OIL AND NATURAL GAS LEASING IN duction under any other provision of law. NEW PRODUCING AREAS. on Tuesday, June 24, 2008, at 2:15 p.m. (a) DEFINITIONS.—In this section: f The PRESIDING OFFICER. Without (1) ELIGIBLE PRODUCING STATE.—The term NOTICE OF HEARING objection, it is so ordered. ‘‘eligible producing State’’ means— COMMITTEE ON HEALTH, EDUCATION, LABOR, (A) a new producing State; and COMMITTEE ON ENERGY AND NATURAL AND PENSIONS (B) any other producing State that has, RESOURCES within the offshore administrative bound- Mr. BINGAMAN. Mr. President, I Mr. DODD. Mr. President, I ask unan- aries beyond the submerged land of a State, would like to announce for the infor- imous consent that the Committee on areas available for oil leasing, natural gas mation of the Senate and the public of Health, Education, Labor, and Pen- leasing, or both. an addition to a previously announced sions be authorized to meet, during the (2) NEW PRODUCING AREA.—The term ‘‘new session of the Senate, to conduct a producing area’’ means an area that is— hearing before the Committee on En- ergy and Natural Resources, Sub- hearing entitled ‘‘Emergence of the (A) within the offshore administrative Superbug: Antimicrobial Resistance in boundaries beyond the submerged land of a committee on Public Lands and For- State; and ests. the U.S.’’ on Tuesday, June 24, 2008. (B) not available for oil or natural gas leas- The hearing will be held on July 9, The hearing will commence at 10:30 ing as of the date of enactment of this Act. 2008, at 2:30 p.m. in room SD–366 of the a.m. in room 430 of the Dirksen Senate (3) NEW PRODUCING STATE.—The term ‘‘new Dirksen Senate Office Building. Office Building. producing State’’ means a State with respect In addition to the other measures The PRESIDING OFFICER. Without to which a petition has been approved by the previously announced, the Sub- objection, it is so ordered. Secretary under subsection (b). COMMITTEE ON HOMELAND SECURITY AND (4) QUALIFIED REVENUES.—The term ‘‘quali- committee will also consider S. 3179, a GOVERNMENTAL AFFAIRS fied revenues’’ means all rentals, royalties, bill to authorize the conveyance of cer- bonus bids, and other sums due and payable tain public land in the State of New Mr. DODD. Mr. President, I ask unan- to the United States from leases entered into Mexico owned or leased by the Depart- imous consent that the Committee on on or after the date of enactment of this Act ment of Energy, and for other pur- Homeland Security and Governmental for new producing areas. poses. Affairs be authorized to meet during (5) SECRETARY.—The term ‘‘Secretary’’ Because of the limited time available the session of the Senate on Tuesday, means the Secretary of the Interior. for the hearing, witnesses may testify June 24, 2008, at 10:30 a.m. to conduct a (b) PETITION FOR LEASING NEW PRODUCING hearing entitled ‘‘Ending Excessive AREAS.— by invitation only. However, those Speculation in Commodity Markets: (1) IN GENERAL.—Notwithstanding any wishing to submit written testimony other provision of law, the Governor of a for the hearing record should send it to Legislative Options.’’ State, with the concurrence of the State leg- the Committee on Energy and Natural The PRESIDING OFFICER. Without islature, may submit to the Secretary a peti- Resources, United States Senate, objection, it is so ordered. tion requesting that the Secretary make a Washington, DC 20510–6150, or by email SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW new producing area of the State eligible for to [email protected] Mr. DODD. Mr. President, I ask unan- oil leasing, gas leasing, or both, as deter- imous consent that the Senate Com- mined by the State, in accordance with the .gov. Outer Continental Shelf Lands Act (43 U.S.C. For further information, please con- mittee on the Judiciary, Sub- 1331 et seq.) and the Mineral Leasing Act (30 tact David Brooks at (202) 224–9863 or committee on Human Rights and the U.S.C. 181 et seq.). Rachel Pasternack at (202) 224–0883. Law, be authorized to meet during the (2) ACTION BY SECRETARY.—As soon as prac- f session of the Senate, to conduct a ticable after the date on which the Secretary hearing entitled ‘‘From Nuremberg to receives a petition under paragraph (1), the AUTHORITY FOR COMMITTEES TO Darfur: Accountability for Crimes Secretary shall approve or disapprove the pe- MEET Against Humanity’’ on Tuesday, June tition. COMMITTEE ON COMMERCE, SCIENCE, AND (c) DISPOSITION OF QUALIFIED OUTER CONTI- 24, 2008, at 10:30 a.m., in room SD–226 of TRANSPORTATION NENTAL SHELF REVENUES FROM ELIGIBLE the Dirksen Senate Office Building. PRODUCING STATES.—Notwithstanding sec- Mr. DODD. Mr. President, I ask unan- The PRESIDING OFFICER. Without tion 9 of the Outer Continental Shelf Lands imous consent that the Committee on objection, it is so ordered.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00107 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6080 CONGRESSIONAL RECORD — SENATE June 24, 2008 PRIVILEGE OF THE FLOOR Committee be discharged and the Sen- (A) the Edward R. Murrow Award from the Radio-Television News Directors Associa- Mr. REID. Mr. President, I ask unan- ate immediately proceed to the fol- lowing naming bills en bloc: H.R. 430, tion; imous consent that Rick Houghton, (B) the John Peter Zenger Freedom of the who will graduate from the U.S. Mili- H.R. 2728, H.R. 3712, S. 3145. The PRESIDING OFFICER. Is there Press Award; tary Academy at West Point next year (C) the American Legion Journalism objection? Award; and who now is an intern in my office, Without objection, it is so ordered. be accorded the privilege of the floor (D) the Veterans of Foreign Wars News The Senate proceeded to consider the Media Award; during today’s session of the Senate. bill (H.R. 430) to designate the United The ACTING PRESIDENT pro tem- (E) the Congressional Medal of Honor Soci- States Bankruptcy courthouse located ety Journalism Award; pore. Without objection, it is so or- at 271 Cadman Plaza East in Brooklyn, (F) the Allen H. Neuharth Award for Excel- dered. New York, as the ‘‘Conrad B. lence in Journalism; Mr. SANDERS. I ask unanimous con- Duberstein United States Bankruptcy (G) the David Brinkley Award for Excel- sent that Winoka Begay, Jessica Courthouse.’’ lence in Communication; Borchert, Jullian Carr, Kelley Fry, and The Senate proceeded to consider the (H) the Catholic Academy for Communica- Dane Lauritzen, from the office of Sen- bill (H.R. 2728) to designate the station tion’s Gabriel Award; and (I) an Emmy Award from the National ator BINGAMAN, be granted the privi- of the United States Border Patrol lo- leges of the floor for today, June 24, Academy of Television Arts and Sciences. cated at 25762 Madison Avenue in (7) In 2004, Tim Russert authored the best- 2008. Murrieta, California, as the ‘‘Theodore selling autobiography, Big Russ and Me, The ACTING PRESIDENT pro tem- L. Newton, Jr. and George F. Azrak which chronicled his life growing up in pore. Without objection, it is so or- Border Patrol Station.’’ South Buffalo and his education at Canisius dered. The Senate proceeded to consider the High School. He is also the author of Wisdom Mr. DODD. Mr. President, I ask unan- bill (H.R. 3712) to designate the United of our Fathers. imous consent that Matthew Solomon, States courthouse located at 1716 (8) Tim Russert advocated on behalf of a detailee on Senator LEAHY’s staff, be Spielbusch Avenue in Toledo, Ohio, as abused children and voiced the need to pro- granted floor privileges for the remain- tect our Nation’s young people, serving on the ‘‘James M. Ashley and Thomas the board of directors of the Greater Wash- der of the FISA debate. W.L. Ashley United States Court- ington Boys and Girls Club and America’s The ACTING PRESIDENT pro tem- house.’’ Promise—Alliance for Youth. pore. Without objection, it is so or- The Senate proceeded to consider the (9) Tim Russert sat in the front seat of his- dered. bill (S. 3145) to designate a portion of tory, chronicling the political and societal Mr. DODD. Madam President, I ask United States Route 20A, located in Or- events that have defined our time, and serv- unanimous consent that Ryan Kehmna chard Park, New York, as the ‘‘Tim- ing as a trusted source of information and and Ben Weingrod, both staff members othy J. Russert Highway.’’ analysis for millions of Americans. from my office, be granted the privi- Mr. DODD. Mr. President, I ask unan- (10) Tim Russert was a tireless booster of imous consent that the bills be read a Buffalo, a famous fan of his beloved Buffalo lege of the floor for the remainder of Bills, and was always proud of his South Buf- the debate on H.R. 6304. third time and passed, all en bloc. falo roots, a source of civic pride in the The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without Western New York community. objection, it is so ordered. objection, it is so ordered. (11) Tim Russert passed away on June 13, Mr. LEVIN. Mr. President, I ask The bill (H.R. 430) was ordered to a 2008. He is survived by his wife, Maureen unanimous consent that Dionne third reading, was read the third time, Orth and their son, Luke Russert. Thompson, a fellow in the office of and passed. SEC. 2. DESIGNATION. Senator LANDRIEU, be given floor privi- The bill (H.R. 2728) was ordered to a The portion of United States Route 20A lo- leges during the current session. third reading, was read the third time, cated in Orchard Park, New York, between The PRESIDING OFFICER. Without and passed. Abbot Road and California Road shall be The bill (H.R. 3712) was ordered to a known and designated as the ‘‘Timothy J. objection, it is so ordered. third reading, was read the third time, Russert Highway’’. f and passed. SEC. 3. REFERENCES. The bill (S. 3145) was ordered to be Any reference in a law, map, regulation, DISCHARGE AND REFERRAL—S. document, paper, or other record of the 3145 engrossed for a third reading, was read the third time, and passed, as follows: United States to the portion of United States Route 20A referred to in section 2 Mr. DODD. Mr. President, I ask unan- S. 3145 imous consent that the Homeland Se- shall be deemed to be a reference to the Tim- Be it enacted by the Senate and House of Rep- othy J. Russert Highway. curity and Governmental Affairs Com- resentatives of the United States of America in mittee be discharged from further con- Congress assembled, f sideration of S. 3145, and that it then SECTION 1. FINDINGS. THE CALENDAR be referred to the Committee on Envi- Congress finds the following: ronment and Public Works. (1) Timothy ‘‘Tim’’ John Russert was born Mr. DODD. Mr. President, I further The PRESIDING OFFICER. Without on May 7, 1950 in Buffalo, New York, to Eliz- ask unanimous consent that the Sen- objection, it is so ordered. abeth and Timothy Joseph Russert. ate now proceed to the consideration of (2) Tim Russert graduated from Canisius the following named bills on the cal- f High School in Buffalo, New York, earned his endar, all en bloc: Calendar No. 760, S. bachelor’s degree in political science from CONRAD B. DUBERSTEIN UNITED John Carroll University in 1972, and his Juris 2403; Calendar No. 761, S. 2837; Calendar STATES BANKRUPTCY COURT- Doctor from Cleveland State University— No. 762, S. 3009; Calendar No. 763, H.R. HOUSE Marshall School of Law in 1976. 781; Calendar No. 764, H.R. 1019; Cal- (3) Tim Russert embarked on a career in endar No. 766, H.R. 4140. public service with United States Senator I further ask unanimous consent that THEODORE L. NEWTON, JR. AND Daniel Patrick Moynihan and the Governor the bills be read a third time and GEORGE F. AZRAK BORDER PA- of New York, Mario Cuomo, from 1977 to 1984. passed en bloc, and the motions to re- TROL STATION (4) After his career in public service and consider be laid upon the table. New York politics, Tim Russert began his ca- reer in journalism when he joined NBC in The PRESIDING OFFICER. Without 1984. objection, it is so ordered. JAMES M. ASHLEY AND THOMAS (5) In 1991, Tim Russert became the host of f W.L. ASHLEY UNITED STATES the Sunday morning news program Meet the COURTHOUSE Press, the longest-running program in the SPOTTSWOOD W. ROBINSON III history of television. He would go on to be- AND ROBERT R. MERHIGE, JR. come the longest serving host of the show. FEDERAL COURTHOUSE TIMOTHY J. RUSSERT HIGHWAY (6) Throughout his career, Tim Russert re- ceived 48 honorary doctorates and several The bill (S. 2403) to designate the new Mr. DODD. Mr. President, I further awards for excellence in journalism, includ- Federal Courthouse, located in the 700 ask unanimous consent that the EPW ing— block of East Broad Street, Richmond,

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00108 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6081 Virginia, as the ‘‘Spottswood W. Robin- record of the United States to the building I would like in particular to express son III and Robert R. Merhige, Jr. Fed- referred to in subsection (a) shall be deemed my condolences to the four families eral Courthouse,’’ was considered, or- to be a reference to the J. James Exon Fed- who have suffered such a devastating dered to be engrossed for a third read- eral Bureau of Investigation Building. loss. My thoughts and prayers are with ing, read the third time, and passed, as f them at this difficult time. follows: COLONEL CHARLES D. MAYNARD The Boy Scouts of America is an or- S. 2403 LOCK AND DAM ganization that never fails to exceed Be it enacted by the Senate and House of Rep- The bill (H.R. 781) to redesignate expectations. All the Scouts at Little resentatives of the United States of America in Lock and Dam No. 5 of the McClellan- Sioux Ranch that day kept their cour- Congress assembled, Kerr Arkansas River Navigation Sys- age when all about them was chaos. SECTION 1. SPOTTSWOOD W. ROBINSON III AND tem near Redfield, Arkansas, author- Many of those who survived suffered ROBERT R. MERHIGE, JR. FEDERAL considerable injuries. As the storm COURTHOUSE. ized by the Rivers and Harbors Act ap- proved July 24, 1946, as the ‘‘Colonel passed, the Boy Scouts immediately (a) DESIGNATION.—The new Federal Court- began to administer first aid to the in- house, located in the 700 block of East Broad Charles D. Maynard Lock and Dam,’’ Street, Richmond, Virginia, shall be known was considered, ordered to a third read- jured and set to work to clear the and designated as the ‘‘Spottswood W. Rob- ing, read the third time, and passed. roads, allowing the emergency crews to inson III and Robert R. Merhige, Jr. Federal move in. In their bravery and resource- f Courthouse’’. fulness, they did honor to Boy Scouts (b) REFERENCES.—Any reference in a law, RAFAEL MARTINEZ NADAL throughout the country. We are proud map, regulation, document, paper, or other UNITED STATES CUSTOMHOUSE of them and humbled by their service. record of the United States to the Federal BUILDING I am saddened that we must be here Courthouse referred to in subsection (a) shall today at all offering this resolution, be deemed to be a reference to the The bill (H.R. 1019) to designate the ‘‘Spottswood W. Robinson III and Robert R. United States customhouse building lo- but I am honored to pay tribute to Merhige, Jr. Federal Courthouse’’. cated at 31 Gonzalez Clemente Avenue these young leaders, and I extend my deepest sympathy to all those affected f in Mayaguez, Puerto Rico, as the ‘‘Rafael Martinez Nadal United States by this tragedy. THEODORE ROOSEVELT UNITED Customhouse Building,’’ was consid- Mr. DODD. I ask unanimous consent STATES COURTHOUSE ered, ordered to a third reading, read that the resolution be agreed to, the The bill (S. 2837) to designate the the third time, and passed. preamble be agreed to, the motions to reconsider be laid upon the table with United States courthouse located at 225 f Cadman Plaza East, Brooklyn, New no intervening action or debate, and York, as the ‘‘Theodore Roosevelt RICHARD B. ANDERSON FEDERAL any statements related to the resolu- United States Courthouse’’ was consid- BUILDING tion be printed in the RECORD. ered, ordered to be engrossed for a The bill (H.R. 4140) to designate the The PRESIDING OFFICER. Without third reading, read the third time, and Port Angeles Federal Building in Port objection, it is so ordered. passed, as follows: Angeles, Washington, as the ‘‘Richard The resolution (S. Res. 599) was S. 2837 B. Anderson Federal Building,’’ was agreed to. The preamble was agreed to. Be it enacted by the Senate and House of Rep- considered, ordered to a third reading, resentatives of the United States of America in read the third time, and passed. The resolution, with its preamble, Congress assembled, f reads as follows: S. RES. 599 SECTION 1. THEODORE ROOSEVELT UNITED EXPRESSING CONDOLENCES TO STATES COURTHOUSE. Whereas, on the evening of June 11, 2008, a (a) DESIGNATION.—The United States court- THE VICTIMS OF THE TORNADO tornado struck the Little Sioux Scout Ranch house located at 225 Cadman Plaza East, IN LITTLE SIOUX, IOWA in Little Sioux, Iowa; Brooklyn, New York, shall be known and Mr. DODD. Mr. President, I ask unan- Whereas 4 lives were tragically lost, and designated as the ‘‘Theodore Roosevelt imous consent that the Senate proceed many other people were injured; United States Courthouse’’. to the immediate consideration of S. Whereas Boy Scouts and Boy Scout leaders (b) REFERENCES.—Any reference in a law, at the camp showed great heroism and cour- map, regulation, document, paper, or other Res. 599 submitted earlier today. age in providing aid and assistance to their record of the United States to the United The PRESIDING OFFICER. The fellow Scouts; States courthouse referred to in subsection clerk will report the resolution by Whereas the first responders, firefighters, (a) shall be deemed to be a reference to the title. and law enforcement, and medical personnel ‘‘Theodore Roosevelt United States Court- The legislative clerk read as follows: worked valiantly to help provide care and house’’. A resolution (S. Res. 599) expressing the comfort to those who were injured; f condolences of the Senate to those affected Whereas the Boy Scouts of America will by the tragic events following the tornado continue to feel the loss and remember the J. JAMES EXON FEDERAL BUREAU that hit Little Sioux Scout Ranch in Little courage of the Boy Scouts who were at the OF INVESTIGATION BUILDING Sioux, Iowa, on June 11, 2008. Little Sioux Scout Ranch the evening of The bill (S. 3009) to designate the June 11, 2008; There being no objection, the Senate Whereas the Boy Scouts of America will Federal Bureau of Investigation build- proceeded to consider the resolution. continue to develop young men who show the ing under construction in Omaha, Ne- Mr. GRASSLEY. Mr. President, I am character, strength, and bravery that was braska, as the ‘‘J. James Exon Federal pleased to be an original cosponsor of demonstrated by the Boy Scouts at the Lit- Bureau of Investigation Building,’’ was this Senate resolution to pay tribute to tle Sioux Scout Ranch on the evening of considered, ordered to be engrossed for the four boy scouts who lost their lives June 11, 2008; and a third reading, read the third time, almost 2 weeks ago when a tornado Whereas the people of Nebraska and Iowa and passed, as follows: struck Little Sioux Scout Ranch in have embraced those affected and will con- western Iowa: Aaron Eilerts of Eagle tinue to offer support to the families of those S. 3009 who were lost and injured; Now, therefore, be Be it enacted by the Senate and House of Rep- Grove, Iowa and Sam Thomsen, Josh it: resentatives of the United States of America in Fennen, and Ben Petrizilka of Omaha, Resolved, That the Senate— Congress assembled, Nebraska. I would like also to recog- (1) expresses its heartfelt condolences to SECTION 1. J. JAMES EXON FEDERAL BUREAU OF nize the bravery and dedication of all the families and friends of those who lost INVESTIGATION BUILDING. the other scouts affected by this trag- their lives in the terrible events of June 11, (a) DESIGNATION.—The Federal Bureau of edy and of the emergency crews who 2008, at the Little Sioux Scout Ranch in Lit- Investigation building under construction at responded. tle Sioux, Iowa: Sam Thomsen, Josh Fennen, the intersection of 120th and L Streets in All of these remarkable young people and Ben Petrzilka of Omaha, Nebraska, and Omaha, Nebraska, shall be known and des- Aaron Eilerts of Eagle Grove, Iowa; ignated as the ‘‘J. James Exon Federal Bu- had already established themselves as (2) shares its thoughts and prayers for a reau of Investigation Building’’. leaders in their community. The loss of full recovery for all those who were injured; (b) REFERENCES.—Any reference in a law, four of them is a tragedy for Iowa and (3) commends the Boy Scouts of America map, regulation, document, paper, or other Nebraska. for the support the organization has provided

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00109 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6082 CONGRESSIONAL RECORD — SENATE June 24, 2008 to the families and friends of those who were I would be remiss if I didn’t observe country, the issue of whether that was lost and injured; that the Senator from Ohio, the occu- done legally ought to be determined by (4) extends its thanks to the first respond- pant of the chair, is a worthwhile mem- the courts of our country. ers, firefighters, and law enforcement, and ber of that committee. I am grateful to medical personnel who took quick action to The bill that will come before us him and the other members of the com- provide aid and comfort to the victims; and grants retroactive immunity without mittee for their work over the last (5) stands with the people of Nebraska and ever considering what happened, how it year and a half since the majority Iowa as they begin the healing process fol- happened, who was responsible, why it began that work. We have had some 50 lowing this terrible event. was done, and why was no effort made hearings on that committee. We adopt- f to go before the Foreign Intelligence ed some 17 or 18 pieces of legislation Surveillance Courts—the FISA HONORING MEMBERS OF THE U.S. out of the committee—maybe more— courts—which have been in existence AIR FORCE more than half of which have become Mr. DODD. Mr. President, I ask unan- the law of the land. A number of oth- since the 1970s. All of those are impor- imous consent that the Armed Services ers, of course, have passed the Senate, tant questions the American people de- Committee be discharged from further or passed on out of committee, and we serve an answer to. Was the rule of law consideration and the Senate now pro- have not been able to resolve all of violated? Were there individuals who ceed to H. Con. Res. 32. them. insisted that this invasion of privacy The PRESIDING OFFICER. Without No matter is as significant and as im- occur in this country? I don’t think it objection, it is so ordered. The clerk portant as the housing reform legisla- is asking too much to want to get to will report the House concurrent reso- tion—to stop the hemorrhaging that is the bottom of that. Americans, regard- lution by title. occurring, with more than 8,400 people less of ideology or party persuasion, The legislative clerk read as follows: a day filing for foreclosure in our coun- ought to be jointly offended when there A concurrent resolution (H. Con. Res. 32) try. People find those numbers alarm- is an effort here to grant retroactive honoring the members of the U.S. Air Force ing, and it is intended to be so, because immunity without determining what who were killed in the June 25, 1996, terrorist it is large. Our efforts here are to try happened and why these events were bombing of the Khobar Towers United States allowed to go forward. military housing compound near Dhahran, to keep people in their homes, and find- Saudi Arabia. ing a floor, if we can, to this housing This evening I am going to take the There being no objection, the Senate problem that continues to cascade time allowed to me under the rules of proceeded to consider the concurrent downward will be a challenge for all of the Senate because we are in a resolution. us. postcloture environment. I am limited Our legislation takes a major step in Mr. DODD. Mr. President, I ask unan- to the amount of time I am permitted the direction of dealing with that, imous consent that the concurrent res- to talk under the rules of the Senate. along with the reform of the govern- olution be agreed to, the preamble be But I can do this because of the gen- ment-sponsored enterprises and, of agreed to, and the motions to recon- erosity of Senator JACK REED of Rhode course, the permanent affordable hous- sider be laid upon the table. Island, Senator MAX BAUCUS of Mon- The PRESIDING OFFICER. Without ing program, not to mention the efforts tana, and the willingness of the major- objection, it is so ordered. we have made in community develop- ity leader, to give me the maximum The concurrent resolution (H. Con. ment block grants, counseling services, time allowed to talk about this FISA Res. 32) was agreed to. mortgage revenue bonds, and tax relief bill, the Foreign Intelligence Surveil- The preamble was agreed to. for those who wish to acquire a fore- lance Act. I will speak about why I am f closed property—all part of a larger so deeply concerned about it, and what piece of legislation to deal with the I think the precedent-setting nature of AMERICAN HOUSING RESCUE AND housing crisis. I am hopeful and con- this could mean for our country. FORECLOSURE PREVENTION ACT fident we will get to it. It will take a There are moments such as this when OF 2008—Continued little bit longer as a result of the objec- we are asked to do something because, tions some are raising. Mr. DODD. Mr. President, I ask unan- we are told, if we don’t, we will jeop- This evening I rise to talk about an- imous consent that the Senate resume ardize our Nation. During such times, other matter, which will be the subject consideration of the House message to we have historically made some of the of a debate, whether it is in the next accompany H.R. 3221, the Housing re- worst mistakes in our history. One few days or weeks. It is a subject mat- form legislation. only needs to go back to the period of The PRESIDING OFFICER (Mr. ter which I care deeply and passion- World War II when, because of the fears SALAZAR). Without objection, it is so ately about. It involves the rule of law, people had, we incarcerated a lot of ordered. the Constitution of the United States, very good Americans of Japanese de- Mr. DODD. Mr. President, as the and the very basic principle that we scent, because those who engaged in chairman of the Senate Banking Com- are a nation of laws, not men; that the fear mongering were able to con- mittee, I express my gratitude to all even those in the most lofty of posi- vince even the Supreme Court of the the Members of this body. We began tions in our Government are not above United States—a majority—to allow proceedings on the motion to invoke the law; that individuals, corporations, for the virtual incarceration of lit- cloture earlier today, which passed by and companies have an obligation to erally thousands of human beings. We a vote of 83 to 9, another overwhelming respect that law, and those of us know now, today, what a great mistake vote in support of moving to the hous- charged with guarding it in an institu- that was, and how courageous it was ing bill. tion such as the Senate have an obliga- that people like Robert Jackson, a Su- Regretfully, we were not able to deal tion to defend it and to remind our- preme Court Justice, a former Attor- with many amendments today because selves and the country when there are ney General under Franklin Roosevelt, there was at least one objection to pro- efforts to undermine that rule of law. ceeding to the matter, pending the out- As I did in December of last year, a solicitor general, chief prosecutor at come of an extraneous matter that had when the matter first came up, and Nuremberg, one of the sole voices on little, if anything, to do with housing, again in February, when the effort the Court who objected to that effort regretfully—despite the strong bipar- came back to the Senate to change the to require these American citizens to tisan vote this morning—once again Foreign Intelligence Surveillance Act, be deprived of their homes, personal demonstrating that in this body one and particularly to grant retroactive belongings, and the virtual incarcer- Senator can disrupt the efforts to immunity to a handful of telecom com- ation in camps in the western part of achieve a larger result. Certainly, that panies, which, over the past number of the country. Today, we know what a is the Senator’s right, and nothing was years, have gathered up information mistake that was. But because we done illegally or unlawfully. It just and private information of individual acted out of fear, we made a dreadful dramatizes the difficulty in achieving citizens in this country, which may error. even something as important as the have been the single largest breach or My concern about this FISA bill, housing legislation we are working on. personal invasion in the history of our while not of that magnitude at this

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Either the under- courts were created to do—to balance I am here this evening to say I will lying program was legal or it was not— rights and fears over legitimate con- not and can not support this legisla- not a complicated question. Was it cerns about our security being jeopard- tion. This legislation goes against ev- legal or wasn’t it? ized. erything I have stood for—everything The suggestion that they had docu- So I rise once again to voice my this body ought to stand for, in my mentation is then supposed to be a jus- strong opposition to the misguided view. tification for the legality of it is not FISA legislation before us, as it will There is no question some improve- for us to decide. That is a matter for come in the next day or so. I have ments have been made over the pre- the courts, the coequal branch of Gov- strong reservations about the so-called vious versions of this legislation. Title ernment called the judiciary. We are improvements made to title I of the I, which regulates the ability of Gov- asked to determine that this was legal legislation. But more than that, this ernment to conduct electronic surveil- because documents were sent, not be- legislation includes provisions that lance, has been improved, albeit mod- cause some adjudication as to whether would grant retroactive immunity to estly. I congratulate those who were there had been a legal basis for these telecommunications companies that involved with it. I say, very quickly, documents. Yet we are told that with apparently have violated the privacy that it is my hope a new Congress and the adoption of this legislation, accept and the trust of millions of our fellow a new President will work together to it as a conclusion and move on. I don’t citizens by participating in the Presi- fix the problems with title I should the believe we ought to do that. I believe it dent’s warrantless wiretapping pro- Senate adopt this new legislation. is a mistake and a mistake of signifi- gram. If we pass this legislation, the But in no way is this compromise ac- cance. Senate will ratify a domestic spying re- ceptable. This legislation before us Because of this legislation, none of gime that has already concentrated far purports to give the courts more of a the questions will be answered. Be- too much unaccountable power in the role in determining the legality of the cause of the so-called compromise, the President’s hands and will place the telecommunications companies’ ac- judge’s hands will be tied and the out- telecommunications companies above tions. But in my view the title II provi- come of these cases will be predeter- the law. sions do little more than ensure with- mined by our votes. Because of this so- I am here this evening to implore my out a doubt that the telecommuni- called compromise, retroactive immu- colleagues to vote against cloture when cations companies will be granted ret- nity will be granted and, as they say, that vote occurs, as it will sometime in roactive immunity. that will be that. Case closed. the next 24 to 48 hours. Allow me to quote the Senate Intel- No court will rule on the legality of Let me make it clear at the outset of ligence Committee report on this mat- the telecommunications companies’ ac- the debate that this is not about do- tivities in participating in the Presi- ter. It reads as follows: mestic surveillance itself. We all recog- dent’s warrantless wiretapping pro- nize, here and elsewhere, the impor- [B]eginning soon after September 11, 2001, gram. None of our fellow Americans the Executive branch provided written re- tance of domestic surveillance in an quests or directives to U.S. electronic com- will have their day in court. What they age of unprecedented threats. This is munications service providers to obtain their will have is a Government that has about illegal, unwarranted, unchecked assistance with communications intelligence sanctioned lawlessness, at least as far domestic surveillance. The difference activities that had been authorized by the as we know. between surveillance that is lawful, President. I refuse to accept that argument. I warranted, and that which is not, is ev- . . . The letters were provided to electronic refuse to accept the argument that be- erything. communication service providers at regular cause the situation is too delicate, too I had hoped I would not have to re- intervals. All of the letters stated that the complicated, this body is simply going turn to this floor again under these cir- activities had been authorized by the Presi- to go ahead while sanctioning lawless- dent. All of the letters also stated that the cumstances. I hoped, in truth, that in activities had been determined to be lawful ness. I think we can do better than these negotiations that went on over by the Attorney General [of the United that. I think we have an obligation to the past number of weeks and months States], except for one letter that covered a do better than that. we would have been able to turn aside period of less than 60 days. That letter, If I have needed any reminder of that retroactive immunity on the grounds which like all the others, stated that the ac- fact, simply look to those who have that it is bad policy and sets a terrible tivities had been authorized by the Presi- joined this fight—my colleagues and precedent. dent, stated that the activities had been de- the many Americans who have given As all of my colleagues know, I have termined to be lawful by the Counsel to the me an awful lot of support and long fought against retroactive immu- President. strength for this fight, strength that nity, because I believe it is simply an This is all from the Intelligence Com- comes from the passion and eloquence abandonment of the rule of law. I have mittee report. of citizens who don’t have to be in- fought this with everything I have in Under the legislation before us, the volved but choose to be involved. me, and I have not waged this fight district court would simply decide They see what I see in this debate— alone. whether the telecommunication com- that by short-circuiting the judicial In December, I opposed retroactive panies received documentation stating process, we are sending a dangerous immunity on the floor of this body. I the President authorized the program signal to future generations. They see spent 10 hours on this floor then. In and that there had been some sort of us as establishing a precedent that January and February, I came to the determination it was legal. But as the Congress can and will provide immu- floor time and time again to discuss Intelligence Committee has already nity to potential lawbreakers if they the dangers of granting retroactive im- made clear, we already know this hap- are important enough. munity, along with my colleague and pened. We already know the companies Some may be asking: Why is retro- friend, RUSS FEINGOLD of Wisconsin, received some form of documentation active immunity too dangerous? What who has shown remarkable leadership with some sort of legal determination. is the issue? Why should you care at on this issue. I offered an amendment But that is not the question. The all? Allow me to explain by providing, that would have stripped retroactive question is not whether these compa- if I can, a bit of context. I remind my immunity from the Senate bill. Unfor- nies received a document from the colleagues what I said about the bill tunately, our amendment failed and, to White House. The question is, Were months ago because the argument my extreme disappointment, the Sen- their actions legal? Were they above against providing retroactive immu- ate adopted the underlying bill. the law or not? nity remains unchanged. Nothing has Since passage of the Senate bill, It is a rather straightforward, sur- changed since last December, January there have been extensive negotiations prisingly uncomplicated question. The or February.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00111 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6084 CONGRESSIONAL RECORD — SENATE June 24, 2008 Unwarranted domestic spying did not say a routine security sweep and a rou- true today. President Reagan’s words— happen in a panic or short-term emer- tine piece of legislation blessing it. let me repeat them: gency, not for a week, a month or even If that is all you imagine happened in ‘‘Trust me’’ government is government for a year. If it had, quite candidly, I the NSA secret room, I imagine you that asks that we concentrate our hopes and would not be standing here this will vote for immunity. I imagine you dreams on one man; that we trust him to do evening. I understand, in the wake of 9/ would not see much harm in voting to what is best for us. My view of government allow the practice to continue either. places trust not in one person or one party, 11, there were actions taken because of but in those values that transcend persons the legitimate fears we had, given the But if you see a vast dragnet for mil- and parties. circumstances of that attack, that lions of Americans’ private conversa- Those words of Ronald Reagan, 28 some actions such as this for a week, a tions conducted by a government agen- years ago, were right and those words month, a year, I think I would have ac- cy that acted without a warrant, acted are right today in the year 2008. They cepted as normal, understandable be- without the rule of law, then I believe are every bit as true today, even if havior as a government overreacting in you recognize what is at stake. You see times of threat and fear blur our con- haste and in the emotions of the mo- that what is at stake is the sanctity of cept of transcendent values, even if ment. But that is not the case. We now the law and the sanctity of our pri- those who would exploit those times know this spying by the administra- vacy. And you will probably come to a urge us to save our skins at any cost. tion went on relentlessly for more than very different conclusion. But again, why should any of us care, 5 years. Maybe that sounds overdramatic to I suppose. The rule of law has rarely I might not be here as well if it had some. Perhaps they will ask: What does been in such a fragile state. Rarely has been the first offense of a new adminis- it matter at the end of the day if a few it seemed less compelling. What, after tration. Maybe not if it had been the corporations are not sued? These peo- all, does the law give us, anyway? It second or third. Again, understanding ple sue each other all the time. has no parades, no slogans. It does not mistakes can be made. No one is per- Others may say: This seems a small live in books or precedents. We are fect. Again, in the haste of the mo- issue. Maybe the administration went never failed to be reminded the world is ment, the emotions, these things can too far, but this seems like an isolated a very dangerous place. happen. But that is not the case either. case. Indeed, that is precisely the advan- Indeed, I am here tonight because Indeed, as long as this case seems iso- tage seized upon, not just by this ad- with one offense after another after an- lated and technical, then those who are ministration but in all times, by those other, I believe it is long past time to supporting this will win. As long as it looking to disregard the rule of law. say enough is enough. I am here this appears to be about another lawsuit Listen to the words of James Madison, evening because of a pattern—a pattern buried in our legal system and nothing the father of our Constitution, words of abuse against civil liberties and the more, then they will win as well. The that he said more than two centuries rule of law, against the Constitution of administration is counting on the ago: the United States, of which we are American people to see nothing bigger It is a universal truth that the loss of lib- custodians, temporary though that sta- than that—nothing to see here. erty at home is to be charged to the provi- tus may be. But there is plenty to see here, and it sions against danger . . . from abroad. I would add that had these abuses is so much more than a few phone With the passage of this bill, the been committed by a President of my calls, a few companies, and a few law- words of James Madison will be one own party, I would have opposed them suits. What is at stake is nothing less step closer to coming true. So it has as strongly as I am this evening. I am than equal justice—justice that makes never been more essential that we lend here this evening because warrantless no exceptions. What is at stake is an our voices to the law and speak on its wiretapping is merely the latest link in open debate on security and liberty and behalf. a long chain of abuses. an end to warrantless, groundless spy- What is this about? It is about an- So why are we here? Because it is al- ing. swering the fundamental question: Do leged that giant telecom corporations The bill does not say trust the Amer- we support the rule of law or the rule worked with our Government to com- ican people, trust the courts and judges of men? To me, this is our defining pile Americans’ private, domestic com- and juries to come to a just decision. question as a nation and may be the munications records into a database of Retroactive immunity sends a message defining question that confronts every enormous scale and scope. that is crystal clear: Trust me. And generation, as it has throughout our Secretly, and without warrant, these that message comes straight from the history. corporations are alleged to have spied mouth of an American President: Trust This is about far more than a few on their own customers, the American me. telecoms. It is about contempt for the people. Here is only one of the most What is the basis of that trust? Clas- law, large and small. egregious examples, according to the sified documents, we are told, that I have said that warrantless wire- Electronic Frontier Foundation: prove the case for retroactive immu- tapping is but the latest link in a long Clear, first-hand whistleblower documen- nity beyond a shadow of a doubt. But chain of abuses when it comes to the tary evidence [states] . . . that for year on we are not allowed to see them, of rule of law. This is about the Justice end, every e-mail, every text message, every course. I have served in this body for 27 Department turning our Nation’s high- phone call carried over the massive fiber- est law enforcement offices into pa- optic links of 16 separate companies routed years, and I am not allowed to see through AT&T’s Internet hub in San Fran- them. Neither are a majority of my tronage plums, turning the impartial cisco—hundreds of millions of private, do- colleagues. We are all left in the dark. work of indictments and trials into the mestic communications—have been . . . cop- I cannot speak for my colleagues, but pernicious machinations of politics. ied in their entirety by AT&T and knowingly I would never take the ‘‘trust me’’ for Contempt for the rule of law once diverted wholesale by means of multiple an answer, not even in the best of again. ‘‘splitters’’ into a secret room controlled ex- times, not even from a President on This is about Alberto Gonzales, the clusively by the NSA. Mount Rushmore. I cannot put it bet- Nation’s now-departed Attorney Gen- The phone calls and the Internet ter than this: eral, coming before Congress to give us traffic of millions of Americans di- ‘‘Trust me’’ government is government testimony that was, at best wrong and verted into a secret room controlled by that asks that we concentrate our hopes and at worst, outright perjury. Contempt the National Security Agency. That al- dreams on one man; that we trust him to do for the rule of law by the Nation’s fore- legation still needs to be proven in a what’s best for us. My view of government most enforcer of the law. court of law. But it clearly needs to be places trust not in one person or one party, This is about a Congress handing the determined in a court of law and not by but in those values that transcend persons President the power to designate any a vote in the Senate. and parties. individual he wants as an unlawful I suppose if you only see cables and Those words are not spoken by some- enemy combatant, hold that individual computers there, the whole thing one who took our national security indefinitely, take away his or her right seems almost harmless, certainly noth- lightly. They were spoken by Ronald to habeas corpus, the 700-year-old right ing to get worked up about; one might Reagan in 1980. They are every bit as to challenge anyone’s detention.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00112 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6085 If you think the Military Commis- combat veteran, and former chief of So this is very much about torture— sions Act struck at the heart of the training at the U.S. Navy Survival, about enhanced interrogation measures Constitution, you would be under- Evasion, Resistance and Escape School. and waterboarding. It is also about ex- stating this. It did a pretty good job on While training American soldiers to re- traordinary rendition—outsourced tor- the Magna Carta while it was at it. sist interrogation, he writes: ture of men this administration would If you think this only threatens a few I have personally led, witnessed, and super- prefer we didn’t even know exist. of us, you should understand that the vised waterboarding of hundreds of people. But now we do know. One was a Syr- writ of habeas corpus belongs to all of Unless you have been strapped down to the ian immigrant raising his family in us. It allows anyone to challenge their board, have endured the agonizing feeling of Canada. He wrote computer code for a detention. water overpowering your gag reflex, and company called MathWorks and was then feel your throat open and allow pint planning to start his own tech busi- Rolling back habeas corpus endan- after pint of water to involuntarily fill your gers us all. Without a day in court, how lungs, you will not know the meaning of the ness. On a trip through New York’s can you prove you are entitled to a word. It does not simulate drowning, as the JFK Airport, he was arrested by U.S. trial? How can you prove you are inno- lungs are actually filling with water. The federal agents. They shackled him and cent? In fact, without a day in court, victim is drowning. How much the victim is bundled him onto a private CIA plane how can you let anyone know you have to drown depends on the desired result and and flew him across the Atlantic Ocean been detained at all? the obstinacy of the subject. Waterboarding to Syria. This man spent the next 10 Thankfully, and to their great credit, is slow motion suffocation. Usually the per- months and 10 days in a Syrian prison. son goes into hysterics on the board. When the Supreme Court recently rebuked done right it is controlled death. His cell was 3 feet wide—the size of a grave. Some 300 days passed alone in the President’s lawlessness and ruled That is from a soldier, a combat vet- that cell, with a bowl for his toilet, an- that detainees do have the right to eran, testifying about what other bowl for his water, and the door challenge their detention. waterboarding was about—controlled Mr. President, the Military Commis- only opened so he could wash himself death. That is not torture? Not accord- sions Act also gave President Bush the once a week—though it may have been ing to President Bush’s White House. more or less because the cell was dark power some say he wanted most of all: They have said waterboarding is legal and he lost all track of time. The door the power to get information out of and that if it chooses, America will suspected terrorists by virtually any waterboard again. only opened for one reason: for interro- means, the power to use evidence Surely, then, our new Attorney Gen- gators who asked him again and again gained from torture. eral would condemn torture. Surely the and again about al-Qaida. I don’t think you could hold the rule Nation’s highest law enforcement offi- Here is how it was described: of law in any greater contempt than cer in the land, coming after Alberto The interrogator said, ‘‘Do you know what sanctioning torture. Because of deci- this is?’’ I said, ‘‘Yes, it’s a cable,’’ and he Gonzales’s chaotic tenure, would never told me, ‘‘Open your right hand.’’ I opened sions made by the highest levels of our come before the Congress and defend Government, America is making itself my right hand, and he hit me like crazy. It the President’s power to openly break was so painful, and of course I started cry- known to the world, unfortunately, for the law. Well, think again. ing, and then he told me to open my left torture, with stories like this one: When he came to the Senate for his hand, and I opened it, and he missed, then A prisoner at Guantanamo—to take confirmation, Michael Mukasey was hit my wrist. And then he asked me ques- one example out of hundreds—was de- asked a simple question, bluntly and tions. If he does not think you are telling the prived of sleep for over 55 days, a plainly: Is waterboarding constitu- truth, then he hits you again. month and 3 weeks. Some nights, he tional? He replied: ‘‘If waterboarding is The jail and the torturers were Syr- was doused with water or blasted with torture, torture is not constitutional.’’ ian, but America sent this man there air-conditioning. After week after One would hope for a little more in- with full knowledge of what would hap- week of this delirious, shivering wake- sight from someone so famously well pen to him because it was part of a fulness, on the verge of death from versed in national security law, but longstanding secret program of ‘‘ex- hypothermia, doctors strapped him to Mr. Mukasey pressed on with the obsti- traordinary rendition,’’ as it is called. a chair—doctors, healers who took the nacy of a witness pleading the fifth: ‘‘If America was convinced that he was a Hippocratic Oath to do no harm— it’s torture, if it amounts to torture, it terrorist and wanted the truth beaten pumped him full of three bags of med- is not constitutional,’’ he said. And out of him. ical saline, brought him back from that is the best this noted jurist, this No charges were ever filed against death, and sent him back to his inter- legal scholar, longtime judge, an ex- him. His adopted nation’s government, rogators. pert on national security law had to Canada, one of our strongest NATO al- To the generation coming of age offer on the defining moral issue of this lies, cleared him of all wrongdoing around the world in this decade, that is Presidency. Claims of ignorance. Word after a year-long official investigation America—not Normandy, not the Mar- games. and awarded him more than $10 million shall Plan, not Nuremberg, but Guan- Now-Attorney General Mukasey was in government compensation for his tanamo. Think about it. asked the easiest question we have in a immense pain and suffering—but not We have legal analysts so vaguely de- democracy: Can the President of the before he was tortured 10 months, 10 fining torture, so willfully blurring the United States openly break the law? days in a 3-foot by 3-foot cell the size of lines during interrogations that we Can he, as we know he has already a grave. Does his torture make us have CIA counterterrorism lawyers done, order warrantless wiretapping, safer? Did his suffering improve our se- saying things like, ‘‘If the detainee ignore the will of Congress, and then curity? Of course not. dies, you’re doing it wrong.’’ We have hide behind nebulous powers he claims I would note that our own Govern- the CIA destroying tapes containing to find in the Constitution? The re- ment has shamefully refused to even the evidence of harsh interrogations— sponse of the nominee to become At- acknowledge that his case exists. about the administration covering its torney General: The President has ‘‘the We know about a German citizen as tracks in a way more suited to a ba- authority to defend the country.’’ In well, living in the city of Ulm with his nana republic than to the home of one swoop, the Attorney General con- wife and four children. On a bus trip great freedoms. We have an adminis- ceded to the President nearly unlim- through Eastern Europe, he was pulled tration actually defending ited power, just as long as he finds a off at a border crossing by armed waterboarding, a technique invented by lawyer willing to stuff his actions into guards and held for 3 weeks in a hotel the Spanish Inquisition, perfected by the boundless rubric of ‘‘defending the room, where he was beaten regularly. the Khmer Rouge, and in between country’’—unlimited power to defend At the end of 3 weeks, he was drugged originally banned for excessive bru- the Nation, to protect us as one man and shipped on a cargo plane to Kabul, tality—listen to this—by the Gestapo. sees fit, even if that means listening to Afghanistan. For 5 months, he was held Still, some way waterboarding is not our phone calls without a warrant, in the Salt Pit—a secret American torture. Oh, really? Listen to the words even if it means holding some of us in- prison staffed by Afghan guards. All he of Malcolm Nance, a 26-year-old expert definitely. That is contempt for the had to drink was stagnant water from in intelligence and counterterrorism, a rule of law. a filthy bottle. Again and again,

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00113 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6086 CONGRESSIONAL RECORD — SENATE June 24, 2008 masked men interrogated him about The truth behind this unprecedented course of the government’s efforts to also al-Qaida, and finally, he says, they domestic spying will never see the protect our people. The delicate balance be- raped him. He was released in May of light of day, and the cases will be tween these basic goals, two absolutely es- 2004. Scientific testing confirmed his closed forever. sential goals of our system of government, is often difficult to strike, and it is never per- story of malnourishment, and the ‘‘Law’’ is a word we barely hear from fect, but it can, and must, be achieved. Chancellor of Germany publicly ac- the supporters of immunity. They offer A sense of balance between liberty knowledge he was wrongly held. What neither deliberation about America’s and security, security and liberty. was his crime? Having the same name difficult choices in the age of terrorism as a suspected terrorist. nor a shared attempt to set for our We reject the view that the traditional principles of justice and fair play have no Again, our own Government has times the excruciating balance be- place in our struggle against the enemies of shamefully refused to even acknowl- tween security and liberty. They mere- freedom. Moreover, our investigation has es- edge that this case exists. ly promise a false debate on a false tablished that the targets of intelligence ac- So we do know, Mr. President. We choice: security or liberty but never, tivity have ranged far beyond persons who know because there aren’t enough ever both. could properly be characterized as enemies words in the world to cover all the I think differently, and I believe of freedom. facts. some of my colleagues do as well. I The Church Committee went on: If you would like to define torture think America’s founding truth is un- We have seen segments of our government, out of existence, be my guest. If you ambiguous: security and liberty, one in their attitudes and actions, adopt tactics would rather use a Washington euphe- and inseparable and never one without unworthy of a democracy, and occasionally mism—‘‘tough questioning,’’ ‘‘en- the other, no matter how difficult the reminiscent of the tactics of totalitarian re- hanced interrogation’’—feel free. Feel situation, no matter what threats we gimes. We have seen a consistent pattern in free to talk about fraternity hazing, as which programs initiated with limited goals, face. Secure in that truth, I offer a such as preventing criminal violence or iden- Rush Limbaugh did, or to use a favor- challenge to immunity supporters: You tifying foreign spies, were expanded to what ite term of Vice President CHENEY’s, ‘‘a want to put a handful of corporations witnesses characterized as ‘‘vacuum clean- dunk in the water.’’ You can call it above the law. Could you please explain ers,’’ sweeping in information about lawful whatever you like. But when you are how your immunity makes any one of activities of American citizens. through, the facts will be waiting for us any safer at all? The Church committee Senators con- you: controlled death, outsourced tor- The truth is that a working balance cluded: ture, secret prisons, month-long sleep between security and liberty has al- Unless new and tighter controls are estab- deprivations, the President’s personal ready been struck. In fact, it has been lished by legislation, domestic intelligence power to hold whomever he likes for as settled for decades—for 30 years, in activities threaten to undermine our domes- long as he likes. It is as if you had fact. FISA, the Foreign Intelligence tic society and fundamentally alter its na- awakened in the middle of some Kafka- Surveillance Act, has prevented execu- ture. esque nightmare. tive lawbreaking and protected Ameri- What a strange echo from three dec- Have I gone wildly off topic, Mr. cans, and that balance stands today. ades ago we hear in those words. They President? Have I brought up a dozen In the wake of the Watergate scandal could have been written yesterday; unrelated issues? I wish I had. I wish in the 1970s, the Senate convened the could have been written tonight. that none of these stories were true. Church Committee, a panel of distin- Three decades ago, our predecessors But we are deceiving ourselves when guished former Members of this body in this Chamber, Republicans and we talk about the U.S. attorneys issue, determined to investigate executive Democrats, responding to an abuse of the habeas issue, the torture issue, the abuses of power. Not surprisingly, they power, crafted a wonderfully balanced rendition issue, or the secrecy issue as found that when Congress and the idea between security and liberty. if each were an isolated case, as if each courts substitute ‘‘trust me’’ ideas for They did it in this very Chamber, com- were an accident. When we speak of real oversight, massive lawbreaking ing together. They understood that them as isolated, we are keeping our can result. The Church Committee when domestic spying goes too far it politics cripplingly small. And as long found evidence of the U.S. Army spying threatens to kill just what it promises as we keep this small, the rule of men on the civilian population, Federal dos- to protect—an America secure in her is winning. siers on citizens’ political activities, a liberty. That lesson was crystal clear There is only one issue here; that is, CIA and FBI program that opened hun- 30 years ago. Why is it so clouded the rule of law, the law issue. Does the dreds of thousands of Americans’ let- today? President of the United States serve ters without warning or warrant. In Before we entertain the argument the law or does the law serve the Presi- sum, Americans had sustained a severe that everything has changed since dent? Each insult to our Constitution blow to their fourth amendment rights those words were written, remember: comes from the same source. Each ‘‘to be secure in their persons, houses, The men who wrote them had wit- springs from the same mindset. If we papers, and effects, against unreason- nessed a World War, the Cold War, had attack this concept for the law at any able searches and seizures.’’ At the seen Nazi and Soviet spying, and they point, we will wound it at all points. same time, the Senators of the Church were living every day under the cloud That is why I am here this evening, Committee understood surveillance of a nuclear holocaust. It was indeed a Mr. President. Retroactive immunity was needed to go forward to protect dangerous time. Certainly, the argu- is on the table for discussion over these our people. ment that we have to take extraor- next several days, but also at issue is Surveillance itself is not the prob- dinary measures to protect ourselves the entire ideology that justifies it, the lem. Unchecked, unregulated, unwar- against those who would do us great in- same ideology that defends torture and ranted surveillance was. What surveil- jury—those were not easy times. Yet executive lawlessness. Immunity is a lance needed, in a word, was legit- those Republicans and Democrats, our disgrace in itself, but it is far worse in imacy. And in America, the Founders predecessors in this Chamber, struck what it represents. It tells us that understood power becomes legitimate that balance and reminded us that our some believe in the courts only so long when it is shared. Congress and the security was important, but it needed as their verdict goes their way; that courts check that attitude which so to be tempered and understood in the some only believe in the rule of law so often crops up in the executive context of our freedoms and our lib- long as exceptions are made at their branch—‘‘if the President does it, it is erties. desire. It puts secrecy above sunshine not illegal.’’ So I ask this: Who will chair the and fiat above the law. The Church Committee’s final report, commission investigating the secrets Did the telecoms break the law? I ‘‘Intelligence Activities and the Rights of warrantless spying years from don’t know. I can’t say so. But pass im- of Americans,’’ put the case very pow- today? Will it be a young Senator in munity, and we will never know. A erfully indeed. the body today who maybe has just handful of favored corporations will re- The critical question before the committee joined us in the last 2 years? Will it be main unchallenged. Their arguments was to determine how the fundamental lib- someone not yet elected? What will will never be heard in a court of law. erties of our people can be maintained in the that Senator say when he or she comes

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What will that Senator say President to wiretap without a warrant tive catalog of that report, they proved when he or she reads about the actions conversations between two foreign tar- it. of a Senate here—reads in the records gets, even if those conversations are In this push for immunity, secrecy, I how we let outrage after outrage slide routed through American computers. believe, is at the center of it. We find with nothing more than a promise to For other reasons, I believed that this proof in immunity’s original version, a stop the next one? I imagine that Sen- past summer’s legislation went too far, proposal to protect not just the ator will ask of us: Why didn’t they do and I opposed it. But the point is that telecoms, but everyone involved in the anything? Why didn’t they fight back? Congress once again proved its willing- wiretapping program. Remember that What happened between the 1970s and ness to work with the President on in the original proposal of what is be- the year 2008, that two Senates in 30 FISA. fore us today, or will be before us, that years time could go from standing up Isn’t that enough? is what they wanted to immunize— for the rule of law and liberty in the Just this past October and November, themselves. The administration asked face of executive abuses—what hap- the Senate of the U.S. Intelligence and that everyone be immunized. To their pened to that Congress that decided 30 Judiciary Committees worked with the credit, the Intelligence Committee re- years later that they would do just the President to further refine FISA and jected that request, but it ought to be opposite; in fact, retreat from that ensure that, in a true emergency, the instructive that the Bush administra- fight? FISA Court would do nothing to slow tion requested total blanket immunity In June of 2008, when no one could down intelligence gathering. for everyone involved in that program. doubt any more what this administra- Wasn’t that enough? What does that tell you about their tion was doing, why did they sit on And, as for the FISA Court, between intentions or their motivations? Think their hands and do almost nothing? In 1978 and 2004, according to the Wash- about it. It speaks to their fear and fact, go further. Why did they grant ington Post, the FISA Court ap- perhaps their guilt, their guilt that immunity to companies that had en- proved—and listen to these numbers— they have broken the law and their gaged in warrantless wiretapping? 18,748 warrants from 1978 to 2004—18,748 fear that in the years to come they Since the time of the Church Com- warrants. It rejected 5; 18,748 warrants would be found liable or convicted. mission, the threats facing us have were approved; 5 were rejected between They knew better than anyone else what they had done. They must have multiplied and grown in complexity, 1978 and 2004. The FISA Court has sided had good reason to be concerned. but the lesson has been immutable: with the executive branch 99.9 percent Thankfully, immunity for the Execu- warrantless spying threatens to under- of the time. Wouldn’t you think that would be enough? Is anything lacking? tive is not part of this bill, and, again, mine our democratic society unless I congratulate the committee. But legislation brings it under control. In Have we forgotten something here? Isn’t all of this enough to keep us safe? don’t ever forget it was asked for. That other words, the power to invade pri- will tell you something about motiva- There were numerous amendments in vacy must be used sparingly, guarded tions. 30 years to a piece of legislation to jealously, and shared equally between The original proposal tells us some- the branches of our Government. strike the balance between security thing very important, that this is and Or the case could be made pragmati- and liberty. always has been a self preservation Of course, we all know the answer we cally. As my friend, Harold Koh, dean bill. Otherwise, why not have the trial have received. This complex, finely of Yale Law School, recently argued: and get it over with? If the proponents tuned machinery, crafted over 3 dec- The engagement of all three branches of retroactive immunity are right, that tends to yield not just more thoughtful law ades by 3 branches of Government, 4 the documentation alone is all you but a more broadly supported public policy. Presidents, and 12 Congresses, was ig- need to prove legality, the corporations Three decades ago, our predecessors nored for 5 long years. It was totally will win in a walk. After all, in the offi- in this Chamber embodied that solu- ignored. It was a system primed to cial telling, the telecoms were ordered tion in the Foreign Intelligence Sur- bless nearly any eavesdropping a Presi- in documents to help the President spy veillance Act, the FISA law. FISA con- dent could conceive of, and spying still without a warrant, and they patrioti- firmed the President’s power to con- happened illegally—18,748 warrants ap- cally complied. We have even heard on duct surveillance of international con- proved from 1978 on; 5 were turned this floor the comparison between the versations involving anyone in the down. Yet this administration com- telecom corporations to the men and United States, provided that the Fed- pletely disregarded the FISA Court in women laying their lives on the line in eral FISA Court issued warrants ensur- seeking the warrantless wiretapping by Iraq and Afghanistan. ing that wiretapping was aimed at safe- the telecom industry. But ignore comparison which, frank- guarding our security and nothing else. If the shock of that decision has yet ly, I find deeply offensive. Ignore for a The President’s own Director of Na- to sink in, think of it this way: Presi- moment the fact that in America we tional Intelligence, Mike McConnell, dent Bush ignored not just a Federal obey the laws, not the President’s or- explained the rationale in an interview court but a secret Federal court; not ders. Ignore that not even the Presi- last summer: just a secret Federal court but a secret dent has the right to scare or bully you The United States did not want to allow Federal court prepared to sign off on into breaking the law, though it seems [the intelligence community] to conduct . . . his actions 99.9 percent of the time. A that tactic has proven surprisingly electronic surveillance of Americans for for- more compliant court has never been fruitful. Ignore that the telecoms were eign intelligence unless you had a warrant, conceived. Yet still that wasn’t good not unanimous. One of them, Qwest, so that was required. enough. wanted to see the legal basis for the As originally written in 1978 and as I ask my colleagues of this body can- order, never received it, and so refused amended numerous times, I might add, didly, and candidly it already knows to comply. Not everyone decided that FISA has accomplished its mission. It the answer: Is this about security or is documentation alone was a legal jus- has been a valuable—invaluable tool it about power? Why are some fighting tification for 5 years of vacuuming up for conducting needed surveillance of so hard for retroactive immunity? The the private information of American those who would do us great harm and answer, I believe, is that immunity citizens. those who would harm our country. means secrecy, and secrecy means Ignore that a judge presiding over Every time Presidents have come to power. It is no coincidence that the the case ruled: Congress openly to ask for more leeway man who proclaimed ‘‘if the President AT&T cannot seriously contend that a rea- under FISA, our Congresses have does it, it is not illegal’’—Richard sonable entity in its position could have be- worked with them. Congress has nego- Nixon—was the same man who raised lieved that the alleged domestic dragnet was tiated, and together Congress and the executive secrecy to an art form. The legal.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00115 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6088 CONGRESSIONAL RECORD — SENATE June 24, 2008 Ignore all of that: If the order the equal branch called the judiciary, they be open for generations to come? telecoms received was legally binding where that body, not elected represent- What will they think of us? I revere then they have a easy case to prove. atives in a voting Chamber, should de- what this Congress did in 1978, Demo- The corporations only need to show a termine the legality of this action crats and Republicans, standing up to judge the authority and the assurances taken by these companies. executive powers and abuses. They they were given and they will be in and He went on to say—the judge’s words: fashioned a law that granted us greater out of court in 5 minutes. If the The compromise between liberty and secu- protection over those who would do us telecoms are as defensible as the Presi- rity remains a difficult one. But dismissing harm while simultaneously protecting dent says, why doesn’t the President this case at the outset would sacrifice lib- our rights and liberties. What a great let them defend themselves? If the case erty for no apparent enhancement of secu- Senate. What a great Congress that is so easy to make, why doesn’t he let rity. had the courage to stand up and put them make it? That is a judge reminding this body aside partisan differences and stand up It can’t be that they are afraid of that to suggest somehow we grant for 200 more years of this Nation’s his- leaks. Our Federal court system has blanket immunity to these companies tory of liberty, of freedom. dealt for decades with the most deli- is to dismiss this case at the outset, as What will be said about this Con- cate national security matters, build- he points out, sacrificing liberty with gress? When a future generation looks ing up an expertise in protecting classi- no apparent enhancement of our secu- back at this hour, what did we do when fied information behind closed doors, rity. faced with a similar fact situation and ex parte and in camera. We can expect And that ought to be the epitaph of were confronted with that choice? Or no less in these cases. No intelligence this administration: ‘‘sacrificing lib- will we be open to the generations to sources need be compromised. No state erty for no apparent enhancement of come, as I said, to our successors in secrets need to be exposed. After litiga- our security.’’ Worse than selling our this Chamber so they can prepare tion at both the district court and cir- soul, we are giving it away for free. themselves to defend against future cuit court levels, no state secrets have It is equally wrong to claim that fail- outrages, as they will surely occur, of been exposed. ing to grant this retroactive immunity power and usurpations of law from fu- In fact, Federal district court judge will make the telecoms less likely to ture Presidents of either party? As I Vaughn Walker—a Republican ap- cooperate with surveillance in the fu- stand here this evening, I promise you pointee, I might point out; the quotes ture. Baloney. I do not believe it. The it will happen. It has never not hap- are from him—has already ruled that truth is, after the 1970s, FISA has com- pened in the past; it will in the future. the issue can go to trial without put- pelled telecommunications companies That is why we have these shared pow- ting state secrets in jeopardy. Walker to cooperate with surveillance when it ers to maintain that balance. We are reasonably pointed out—Ronald Rea- was warranted. What is more, it immu- going to concede that by suggesting gan’s appointee to the bench, I point nizes them. It has done that for more that in this most important of all cases out—the existence of the terrorist sur- than a quarter of a century. So co- we are going to grant retroactive im- veillance program is hardly a secret at operation in warranted wiretapping is munity. For what? For what? Can any- all. not at stake today, and despite the one even begin to make the case that The Government has [already] disclosed claims of supporters of immunity, it our security gets enhanced because we the general contours of the ‘‘terrorist sur- never has been. Collusion in deprive Americans who feel they may veillance program,’’ which requires the as- warrantless illegal wiretapping is. And have been wronged by determining sistance of a telecommunications provider. the warrant makes all the difference, whether the actions taken by these As the state secrets privilege is in- because it is precisely the court’s bless- companies at the behest of an adminis- voked to stall these high-profile cases, ing that brings Presidential power tration were legal? it is useful to consider that privilege’s under the rule of law, even when that Now, 30 years after the Church com- history. In fact, the privilege was warrant, as we permit, is granted after mittee, history has repeated itself. If tainted at its birth by a President of the surveillance has already begun, as those who come after us are to prevent my own party, Harry Truman. In 1952, you can under the FISA law. it from happening again, they need the President Truman successfully invoked In sum, we know that giving the full truth. That is why we must not the new privilege to prevent public ex- telecoms their day in court, giving the allow these secrets to go quietly into posure of a report on a plane crash that American people their day in court, the night. I am here this evening be- killed three Air Force contractors. would not jeopardize an ounce of our cause the truth is no one’s private When the report was finally declas- security. It does jeopardize our liberty. property; it belongs to every one of us. sified, 50 years later I might add, dec- And it would only expose one secret: It demands to be heard. ‘‘State secrets,’’ ‘‘patriotic duty,’’ ades after anyone in the Truman ad- the extent to which the rule of law has those, as weak as they are, are the ar- ministration was within reach, it con- been trampled upon. Does documenta- guments the telecoms’ advocates use tained no state secrets at all, only tion qualify as legal authority? Again, facts about the repeated maintenance when they are feeling high-minded. that is not a matter for a majority in When their thoughts turn baser, they failures that would have seriously em- this Chamber to decide by a vote. It is make their arguments as amateur barrassed some important people. So a matter for our courts to determine: economists. the state secrets privilege began its ca- Were these letters that were trans- Here is how Mike McConnell put it: reer, not to protect our Nation, but to mitted—was there a legal justification? If you play out the suits at the value protect some powerful people. Why didn’t the administration go to they’re claimed, it would bankrupt these In his opinion, Judge Walker argued, the FISA Court, where 18,748 requests companies. So we have to provide liability even when it is reasonably grounded— have been made since 1978 and granted, protection to these private sector entities. let me quote him: and only 5 rejected, a secret Federal To begin with, that is a clear exag- . . . the state secrets privilege still has its court where a warrant could have been geration. We are talking about some of limits. While the court recognizes and re- granted after the fact of the surveil- the wealthiest, most successful compa- spects the executive’s constitutional duty to lance actually having begun? Why nies in America. Some of them have protect the nation from threats, the court also takes seriously its constitutional duty didn’t they do that? Why did they send continued to earn record profits and to adjudicate the disputes that come before out letters? Why didn’t they go before sign up record numbers of subscribers it. To defer to a blanket assertion of secrecy that court? I am not concluding they at the same time as this very public here would be to abdicate that duty, particu- did it wrongfully, but I don’t know litigation, totally undermining the ar- larly because the very subject matter of this they didn’t do it wrongfully. That gument that these lawsuits are doing litigation has been so publicly aired. ought to be determined by the courts the telecoms severe reputational dam- Again, that is not some wild-eyed lib- of law, not to be above the law. age, as Mike McConnell suggested. eral judge drawing the conclusion in That is the choice at stake today: Companies of that size could not be this case. That is a sober conservative Will the secrets of the last years re- completely wiped out by anything but judge who reminds us of the balance main closed in the dark, as they will the most exorbitant and unlikely judg- that is necessary; why there is a co- once we grant this immunity, or will ment. To assume that the telecoms

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No one seri- AT&T cannot seriously contend that a rea- munications were targeted, not Ameri- ously wants to cripple the tele- sonable entity in its position could have be- cans’ domestic calls. communications industry. The point is lieved that the alleged domestic dragnet was And here, litigation against the to bring checks and balances back to legal. telecom companies is based upon clear, domestic spying. Accepting that prece- Again, Ronald Reagan’s appointee to firsthand evidence, authenticated by dent would hardly require a crippling the Federal bench. But the arguments those corporations in court. Every e- judgment. It is much more troubling, of the President’s allies sink even mail, every text message, every phone though, that the Director of National lower. Listen to words of a House Re- call, foreign or domestic carried over Intelligence would even suggest such publican leader spoken on FOX News. the massive fiber optic links of 16 sepa- an argument. I might understand if the They are shameful: rate companies, routed through Secretary of the Treasury made that I believe that they deserve immunity from AT&T’s Internet hub in San Francisco, case, or some economist at the World lawsuits out there from typical trial lawyers have been knowingly diverted by AT&T Blank or the IMF or the Federal Re- trying to find a way to get into the pockets by means of multiple splitters into a serve. But to have the Intelligence Di- of American companies. secret room controlled exclusively by rector of our country suggest liability Of course, some of the ‘‘typical the NSA. There may be other such protections for private sector entities, greedy trial lawyers’’ bringing these rooms as well. even to speak of that, is rather incred- suits actually work for a nonprofit. This was given to the courts by the ible. This is not the Secretary of Com- And the telecoms that some want to individual who was involved directly in merce we are talking about but the portray as pitiful little Davids actually the program. So the argument was head of our Nation’s intelligence ef- employ hundreds of attorneys, retain only conversations between foreign forts. the best corporate law firms, and spend targets that they have argued is com- For that matter, how does that even multimillion dollar legal budgets every pletely and factually wrong. begin to be relevant to letting this case year. The third argument immunity sup- go forward? Since when did we throw But if the facts actually mattered to porters make is that: A lack of immu- out entire suits because the defendants immunity supporters, we would not be nity will make the telecoms less likely stood to lose too much? It astounds me here. For some, the prewritten nar- to cooperate. that some can speak in the same rative takes precedence far above the Again, I made this case a moment breath about national security and bot- mere facts; and here it is the perennial ago. But for more than 25 years the tom lines. Approve immunity, and Con- narrative of the greedy trial lawyers. FISA legislation has compelled the gress will state clearly: The richer you With that, some can rest content. telecommunications companies to co- are, the more successful you are, the They can conclude that we were not operate. This is not a choice if, in fact, more lawless you are entitled to be. A ever serious about law, or about pri- the FISA courts demanded it. In fact, suit against you is a danger to the Re- vacy, or about checks and balances; it when they have done that, what they public. was all about money all along. do is they also immunize, so they can And so, at the rock bottom of its jus- There can no longer be any doubt: protect these companies against future tifications, the telecoms’ advocates are One by one the arguments of the im- litigation that can occur from people essentially arguing that immunity can munity supporters, of the telecoms’ ad- who claim they have done something be bought. The truth is, of course, ex- vocates, fail. wrong in the process. actly the opposite, or it should be. The I wish to spend, if I could, a few min- But to argue somehow these compa- larger the corporation, unfortunately, utes reviewing in detail those claims nies might never again be helpful is to the greater the potential for abuse. and their failures. I will put up some of not understand existing law. For 25 No one suggests that success should these quotes here for you. years they have, in fact, been com- make a company suspect. Companies The first argument is: The President pelled to comply and, in fact, we pro- grow large and essential to our econ- has the authority to decide whether vided the immunity when they have omy because they are excellent at what the telecoms should be granted immu- done so. they do, and most of them are over- nity. Why in this case, after 25 years, did whelmingly well managed. But the size The facts are the judiciary, not the the Bush administration completely and wealth open the realm of possi- executive branch, should be allowed to disregard this? And instead of compel- bility for abuse far beyond the scope of determine whether the President of the ling their compliance, and providing the individual. United States has exceeded his powers the immunity they would have gotten After all, if the allegations are true, by obtaining from the telecoms whole- immediately, they decided to send a we are talking about one of the most sale access to domestic communica- letter instead, without any legal docu- massive violations of privacy in Amer- tions of millions of ordinary citizens. mentation, without any argument at ican history. Shouldn’t there be some That is one of the arguments of those all. But they are relying on that thin retribution or penalty? If reasonable who argue that the granting of immu- reed of a letter saying, ‘‘You should do search and seizure means opening a nity is a Presidential prerogative. I this.’’ ‘‘We want you to do this.’’ drug dealer’s apartment, the telecoms’ argue quite the opposite. The court Not all of them complied. Qwest said: alleged actions would be the equivalent should not simply be in the business of Wait a minute, that is not legal. A let- of strip-searching everyone in the certifying that the companies received ter is not enough. They did not comply, building, ransacking their bedrooms, some form of documentation, some let- and obviously they did not get involved and prying up all of the floorboards. ters that they received; rather, they in the program and they were not The scale of these corporations opens should be allowed to evaluate the va- asked to do so further. So I am rather unprecedented possibilities for abuse, lidity of the legal arguments attested mystified. Shouldn’t we know the an- possibilities far beyond the power of to in the document. Was the request swer to that question? Is it wrong for the individual. What the telecoms have legal or not? Is a letter a legal docu- us to say: I think you ought to explain been accused of could not be done by ment that requires you to cooperate? why you think that was legal? one man or even 10. It would be incon- Remember, the administration’s Why was a document legal? The fact ceivable without the size and resources original immunity proposal protected that we are immunizing, in effect, of a large corporation, the same size everyone, as I said a moment ago, in- through retroactive immunity, their that makes Mike McConnell fear the volved in the wiretapping program, not actions, what sort of precedent are we corporation’s day in court. That is the just the companies. In their original setting? That we are in a sense, if you

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But nonetheless, what I am ity of their actions. case, involving the telecom companies. calling for is not a verdict by this The fourth argument: Immunity sup- This is the kind of precedent-setting body. All I am calling for is to allow a porters argue that telecoms can’t de- action that could occur by our vote to judgment to be rendered by a court of fend themselves without exposing grant retroactive immunity, if we buy law, allow plaintiffs to make their State secrets. This is highly offensive. into this very argument, which is a case, allow a Federal judge in that co- Again, Judge Walker has already ruled dangerous argument, indeed, to suggest equal branch of government to deter- the issue can go to trial. In fact, he was somehow that our Federal courts are mine whether what occurred was legal. incensed, as I quoted earlier. incapable of providing the kind of secu- If it was legal, case over. If it was not, ‘‘The Government,’’ he said, ‘‘has [al- rity where national security leaks then allow the plaintiffs to make their ready] disclosed the general contours could occur. We can be increasingly case and be rewarded accordingly. of the ‘terrorist surveillance program,’ confident that these cases will not ex- But by a vote of 51 to 49 or whatever which requires the assistance of a tele- pose State secrets based on history. the vote may be here, we are going to communications provider.’’ The seventh argument made by the superimpose our judgment for a legal The suggestion that State secrets—I supporters of this effort to grant retro- argument. I think letting a political know the Presiding Officer is a former active immunity, they claim that liti- judgment replace a legal judgment is a attorney general, and I am preaching gation will harm the telecoms by caus- dangerous precedent indeed. This is a to the choir on these matters, but I am ing them reputational damage. I hesi- big matter. We ought to have the cour- confident he knows that for decades tate to even make an argument against age to stand up to this administration, Federal courts meeting ex parte in this, it is so offensive to me. The fact after a litany of abuses over the last 7 camera have religiously guarded State that the Director of the National Secu- years. As I said some time ago, if this secrets when they have been asked to rity Agency would suggest somehow had been for a week, a month, a year, make judicial decisions about matters there was a financial loss to the com- after 9/11, I would not be here tonight. involving information that could fall panies if we went further with this, I am a reasonable, practical person. into the area of State secrets. I don’t that is not the kind of argument I ex- The emotions were high; fears were know of any example where leaks have pect to be made by someone who is in great after we were attacked. The fact occurred. So the suggestion that if you charge of intelligence. That is an eco- that someone might have rushed in and allow this to go into Federal court to nomic argument. It doesn’t hold up, in done something like this, I might not determine the legality of this action, my view. We are talking about wealthy like it, I may worry about it, but I actions that now are publicly well companies. But even so, I don’t know if wouldn’t prejudge it. Emotions could known, that somehow we are going to anyone is suggesting that these ac- be such that one would take those ac- have a leak of State secrets, there is tions, if, in fact, they prove to be true, tions. But this went on for 5 years and not a scintilla of evidence that has ever that, in fact, there was an illegal ac- would still be going on if a whistle- been the case. It is a phony argument tion taken here, would necessarily war- blower hadn’t stood and said: This is to suggest that somehow State secrets rant an overexcessive judgment that what is happening. And it was reported would be jeopardized. would somehow cripple these 17 compa- widely in the national media. That is Five: Immunity supporters claim nies from their financial well-being. the only reason it stopped. If not, it they are already protected by common There is plenty of evidence that they would be still going on. So it wasn’t law principles. In this case, of course, are doing tremendously well. But the one of these early events that can the fact is that common law immuni- idea somehow that a company ought sometimes happen in which reasonable ties do not trump specific legal duties not to be sued, that a plaintiff ought people ought to be able to step back imposed by statute, such as the specific not to bring a case because you might and say: I understand why that hap- duties Congress has long imposed on win and there might be damage finan- pened. the telecommunications companies to cially, that is a ludicrous argument on If we were talking about an adminis- protect customer privacy and records. its face to make when we are talking tration that had been upholding the In the pending case against AT&T, the about millions of people’s rights of pri- rule of law over the last 7 years or had judge already has ruled unequivocally vacy being invaded for 5 years by 17 been defending it, I might also not be that AT&T cannot seriously contend companies vacuuming up every bit of standing here. But how many lessons that a reasonable entity in its position information, that you might be dam- do we have to learn about an Attorney could have believed the alleged domes- aged because the plaintiffs might win. General politicizing U.S. attorneys, tic dragnet was legal. Even so, the tele- It is a foolish argument and a dan- rendition, torture, walking away from communications company defendants gerous one to make as well. habeas corpus, walking away from the can and should have the opportunity to The eighth argument, immunity sup- Geneva Conventions? How many more present these defenses to the courts, porters claim the lawsuits will bank- examples do we have to have of how and the courts—not Congress preemp- rupt the companies. It is the same ar- this administration regarded the rule tively—should decide whether they are gument as I made about financial dam- of law? And yet at the end of all that, sufficient. Again, common law does not age. The fact is, if we accept that within months of this administration trump specific legal duties imposed by premise about financial damage or leaving town, this body is going to say: statute. reputational damage, if we could con- We are going to side with the adminis- The sixth argument immunity sup- ceive of a corporation so wealthy, so tration, grant immunity, and we will porters claim is that leaks from the integral to our economy that its riches never find out what went on here. Why trial might damage national security. I place it outside the law altogether, did this crowd seek immunity for have already talked about this. I said that is a frightening concept, and I itself, if it wasn’t fearful about a judg- that the Federal courts over the years hope it will be rejected by our col- ment or a court of law examining what have handled matters very well, and leagues. Ensuring a day in court is not happened here? When letters became this is a red herring. When, if ever, the same as ensuring a verdict. When the legal basis rather than going to the then, can we challenge the legality of that day comes, if it does—and I doubt very court that had been around for 30 actions in Federal courts? If the case is it will, in light of the votes that have years, that had provided warrants over made in this case, if this is upheld and been cast in the past—I have abso- and over again in 99.9 percent of the we buy into that argument on this lutely no investment in a verdict ei- cases, why did this administration de- matter, which is already publicly ther way. But I am bothered by it. I am cide not to go that route and seek that

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Just as it would be absurd to declare unite security and justice because we Robert Jackson, speaking to that the telecoms clearly guilty, it would be have already done it. It is not a choice, Court, in the summer of 1945, said the equally absurd to close the case in Con- one or the other. It can never be that. following, which I memorized years gress without a decision. That is im- That is a false choice and a false di- ago. Speaking about the Soviet Union, munity. chotomy. Justice and security is what the French, the British, and ourselves, Throughout this debate, telecoms’ our forebears have given us, what our he said the following: advocates have needed to show not just predecessors have struggled with, and That four great nations, flushed with vic- that they were right but that they are which we now must wrestle with our- tory and stung with injury, stay the hand of so right and that they are so far be- selves. It is never perfect. There is al- vengeance and voluntarily submit their cap- yond the pale that we can shut down ways one side maybe a bit more tive enemies to the judgment of the law is the argument right here and now with weighty than the other, but it is our one of the most significant tributes that a vote, grant them immunity. That is a responsibility to try and strike that Power has ever paid to Reason. burden they have clearly not met, in balance, to keep us secure in the face It is a remarkable sentence, and it my view, in any of the arguments, all of those who would do us great harm captured the essence of Nuremberg— eight of them, that they have made. and to do so at a time without giving the rule of law. From that experience, They cannot expect to meet it when a up our rights and liberties. To do so is America led the way in creating the large majority of our colleagues who to change the very nature of who we structures in architecture that gave us will make that decision have not even are as a people. To succumb to the almost 70 years of global peace. The seen the secret documents that are fears of those who would suggest that IMF, the World Bank, Bretton Woods, supposed to prove the case for retro- you have to make choices about being the expansion of the United Nations, active immunity. more secure or being free, I don’t be- NATO—all of those institutions oc- My trust is in the courts, in the cases lieve that. curred because of the moral high argued openly, in the judges who pre- In fact, I think if we give up free- ground we achieved by insisting upon side over them, and in the juries of doms, we become far less secure and far the rule of law. American citizens who decide them. less safe. That is the judgment we must It was Nuremberg, in many ways, They should be our pride, not our em- now make, whether we can be secure that conjured up the image of who we barrassment. They deserve to do their and free and guarantee those liberties were as a people. Compare that with jobs. That is what the Founders cre- to go forward. the words ‘‘Guantanamo,’’ ‘‘Abu ated. It has been a great system of My father was the executive trial Ghraib,’’ ‘‘renditions,’’ ‘‘torture,’’ ‘‘ha- checks and balances, coequal, three co- counsel at the Nuremberg trials in 1945 beas corpus,’’ ‘‘walking away from the equal branches of Government—an ex- and 1946. I have never forgotten the ex- Geneva Conventions.’’ This is not who ecutive, a legislative, and a judicial ample he set, as Justice Robert Jack- we are. Nuremberg was who we are, not branch. We have an executive branch son said in the opening statement at Guantanamo, not giving retroactive that took action. We are going to have the Nuremberg trials, a statement, by immunity where the rule of law is a legislative branch that is going to the way, that my parents made us being abused, or potentially being sanction it by granting immunity memorize as children because it cap- abused. That is why we are here. without ever allowing that coequal tured the essence of the Nuremberg Each generation has been asked to branch of Government to determine trials. The rule of law is what moti- defend these principles and values, and the legality of their actions. We are de- vated those who insisted upon that each generation in its own way has priving what the very Founders of our trial. The overwhelming majority of done that. I believe our generation can country insisted upon. people did not want a trial. Why should and must as well. Therefore, the chal- This isn’t about being a Democrat, a you spend the money giving these 21 lenge before us is not a simple one, but Republican, a liberal or a conservative. defendants a lawyer? Fifty-five million an easy one, in my view; that is, to It is about whether you understand the people had died at the hands of the stand up for this principle. rule of law, that no man, not even the Nazis and their allies; 6 million Jews The world is not going to collapse, President, is above it. Whether this had been incinerated in the concentra- the sky is not going to fall if some President was of my party or anyone tion camps; 5 million others had the companies have to face some plaintiffs else’s, I would stand here with the same fate befall them because of their and explain why they vacuumed up all same degree of passion in making this political affiliation, their ethnicity, their private information for more case. A case I know I have lost in the their sexual orientation; 11 million than 5 years. What was the legal jus- past but I care so deeply about that I people incinerated; 45 million died at tification for that action? To grant ret- want my children and my grand- their hands. Why in the world would roactive immunity would, in fact, do children one day to know that their fa- you ever give them a trial? just that. ther and grandfather at this moment Why not, as Winston Churchill sug- So what is the tribute that Power stood for the rule of law. And I believe gested, just line them up and shoot owes to Reason? That America stands my colleagues, if given the chance to them? Just line them up and shoot for a transcendent idea, the idea that think about this, will reach the same them. They did not deserve civility. laws should rule, and not men, the idea conclusion. But Robert Jackson; Henry Stimson, that the Constitution does not get sus- This is one of those moments. They the Secretary of War under Franklin pended for vengeance, the idea that don’t happen very often, but they do Roosevelt—a Republican, I might add; this Nation should never tailor its eter- happen here. We have learned about the only one in Roosevelt’s Cabinet— nal principles to the conflict of the mo- them only after the fact too often. But Samuel Rosenman, a great speech- ment, because if we did, we would be this one is before us as it has been over writer for Franklin Roosevelt; Robert walking in the footsteps of the enemies the last number of months. We owe it Jackson, a Supreme Court Justice, and we despised. not only to ourselves but to future gen- a handful of others stood up and said: The tribute that Power owes to Rea- erations to stand for these timeless No, that war was not about treasury or son is due today as well. I know we can principles of the rule of law, liberty, treasure or land, it was about values find the strength to pay it. And if we and security. As complex, as diverse, as and principles, and the principle of the cannot, we will have to answer for it, I relentless as the assault on the rule of rule of law is something we stood for. fear. law has been, our answer to it is a sim- So despite all of the appetite for There is a famous military recruiting ple one. Far more than any President’s vengeance, we are not going to give poster that comes to mind. A man is lawlessness, the American way of jus- these defendants that which they gave sitting in an easy chair with his son

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My little daughters, Grace and Chris- Hill. tina, are 6 and 3. They are growing up— This week, the White House and Demo- This week, House and Senate leaders were cratic and Republican leaders on Capitol Hill I hope sound asleep at this hour, as I trying to allay the concerns of some law- hope to announce a ‘‘compromise’’ on a do- makers that approving the immunity would speak in the late night hours here, but mestic spying bill. If they do, it will be pre- they are growing up in a time of two be tantamount to retroactively declaring the sented as an indispensable tool for pro- spying operation to have been legal. Those great conflicts: one between our Nation tecting the nation’s security that still safe- lawmakers are right. Granting the corpora- and its enemies, and another between guards our civil liberties. The White House tions immunity would send that exact mes- what is best and worst in our American will paint opponents as weak-kneed liberals sage. soul. And someday soon, I know I am who do not understand and cannot stand up The new bill has other problems. It gives going to hear that question: What did to the threat of terrorism. the government too much leeway to acquire The bill is not a compromise. The final de- you do at the time when this conflict communications in the United States with- tails are being worked out, but all indica- out individual warrants or even a showing of was emerging? What side did you take? tions are that many of its provisions are probable cause. It greatly reduces judicial I want more than anything else, when both unnecessary and a threat to the Bill of review, and it would remain in force for six that day comes, to give the right an- Rights. The White House and the Congres- years, which is too long. swer, that I stood for the rule of law. sional Republicans who support the bill have If Congress cannot pass a clean bill that That question is coming to each and two real aims. They want to undermine the fixes the one real problem with FISA, it every one of us in our own way. Every power of the courts to review the legality of should simply extend the temporary author- single one of us will be judged by a jury domestic spying programs. And they want to ization. At a minimum . . . from whom there is no hiding: our sons give a legal shield to the telecommuni- It talks about what other steps can cations companies that broke the law by and daughters and grandchildren. be taken. helping Mr. Bush carry out his warrantless There are several other articles I Someday soon, they will read in their wiretapping operation. textbooks the stories of a great na- The Foreign Intelligence Surveillance act, want to share with colleagues, but let tion—one that threw down tyrants and or FISA, requires that government to get a me also say to my colleagues, we are in oppressors for two centuries, one that warrant to intercept communications be- a postcloture environment here on the rid the world of Nazism and Soviet tween anyone in this country and anyone housing bill. We will be in cloture until communism, one that proved that outside it. The 1978 law created a special tomorrow evening on the 30 hours re- court that has approved all but a handful of quired under the housing bill, unless great strength can serve great virtue, the government’s many thousands of war- that right can truly make might. some intervening action is taken. I rant requests. know we are supposed to consider vot- And then they will read how, in the Still, after Sept. 11, 2001, Mr. Bush by- early years of the 21st century, that passed the FISA court and authorized the ing on cloture on this bill sometime to- nation could have lost its way. We do interception of international calls and e- morrow morning. I reserve the right to not have the power to strike that chap- mail messages without a warrant. Then, use whatever vehicle is available to ter. But we cannot go back. We cannot when The Times disclosed the operation in me. While I am upset we are not deal- un-destroy the CIA’s interrogation late 2005, Mr. Bush claimed that FISA did ing with the housing bill—I believe tapes. We cannot un-pass the Military not allow the United States to act quickly that is a priority on which Americans enough to stop terrorists. That was non- Commissions Act. We cannot un-speak expect something to be done. You have sense. FISA always gave the government the 8,400 people filing for foreclosure every Alberto Gonzales’s testimony before power to start listening and then get a war- the Congress. We cannot un-torture in- rant—a grace period that has been extended day in this country. It is a massive eco- nocent people. We, perhaps, sadly and since Sept 11. nomic issue that is crippling the liveli- shamefully, cannot stop retroactive More fundamental, Mr. Bush’s powers do hood and the future wealth and secu- immunity. We cannot undo anything not supersede laws passed by Congress or the rity of too many American families. I that has been done in the last 6 years constitution’s protections against unreason- would object to any unanimous consent for the cause of lawlessness and fear. able searches and seizures. request to go to the FISA bill. If we do The ensuing debate did turn up an Inter- get to a cloture motion, I will be urg- We cannot block out that chapter. But net-age problem with FISA: It requires a we can begin the next chapter, even warrant to eavesdrop on foreign communica- ing my colleagues to vote against clo- this evening, even in the days to come, tions that go through American computers. ture, to send this bill back to the Intel- as we debate this issue. And let its first There was an easy fix, but when Congress ligence Committee, the Judiciary Com- words read: Finally, in the month of made it last year, the White House muscled mittee, and craft some reforms of June of 2008, the Senate of the United in amendments that seriously diluted the FISA, but stay away from this retro- States—Democrats and Republicans— courts’ ability to restrain the government active immunity. It is not needed. It is said: Enough. Enough is enough. from spying on its own citizens. unnecessary. It is shameful it is even That law expires on Aug. 3, and Mr. Bush being requested in this bill for all the I implore my colleagues to write it is demanding even more power to spy. He with me. I implore my colleagues to also wants immunity for the telecommuni- reasons I have identified earlier. vote against retroactive immunity and cations companies that provided the govern- Let me read, if I can, from the New vote against cloture when that oppor- ment with Americans’ private data without Jersey Star-Ledger. Again, this paper tunity arrives in the next day or so. I a warrant after Sept. 11. calls for rejecting the wiretap bill, as think it would be a mistake to grant it. Lawsuits against those companies are the well. This editorial says: I think we can do better. I think we best hope of finding out the extent of Mr. The House of Representatives is to vote can reform the law. But we ought not Bush’s lawless spying. But Democratic lead- today on a wiretapping bill that would give ers in Congress are reported to have agreed to have any decision be above the law, some of America’s biggest and richest com- to a phony compromise drafted by [one of panies a get-out-of-jail card for breaking the as is the danger here. our colleagues], the Republican vice chair- law and that also would help the government Mr. President, I want to, if I can, man of the Intelligence Committee. carry out unsupervised snooping for years in share with my colleagues, and those Under the so-called compromise, the ques- the future. who may be listening to all this, some tion of immunity would be decided by federal But Verizon and other telecommunications articles because their eloquence is far district court—a concession by Mr. Bond companies should not be rewarded with im- greater than mine when they talk [our colleague from Missouri], who origi- munity against lawsuits for agreeing to per- about the importance of all of this, and nally wanted the FISA court, which meets in form President Bush’s illegal eavesdropping. secret and is unsuited to the task, to decide. they are worth noting and reading as They should answer for their actions in What is unacceptable, though, is that the court, just like any other citizen. we examine this question before us. district court would be instructed to decide And Congress should not gut the current There have been editorials and others based solely on whether the Bush adminis- law that says a federal judge’s review is es- that have addressed this issue. There is tration certifies that the companies were sential to avoid the very abuses of power an editorial in the New York Times told the spying was legal. If the aim is to that Bush’s White House embraced.

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00120 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6093 The House ‘‘compromise’’ wiretapping bill We hope Congress stands firm as it did in that they thought the administration’s is not a compromise at all. It would give the February. Frame it any way you want, but modifications would amount to a suspension telecommunications companies absolute im- the issue is accountability. of the Constitution. We hope they have the munity from the suits pending against them Proponents are making a last-ditch ef- same courage of their convictions this time for wiretapping if they can simply show that fort— around. the Bush administration told them at the The Denver Post says— I applaud the Denver Post for its bril- time that the snooping was legal. Which ev- liant and thoughtful editorial in that eryone agrees the administration did indeed to squelch some 40 lawsuits that could bear do. witness to the breadth of Bush administra- regard. tion spying that took place outside the aus- This is an editorial from the Reg- It is not a debate. They sent letters. pices of FISA. ister-Guard in Eugene, OR, so we get The question is, were the letters and Congress must not capitulate on this key the breadth of this across the country. the documentation a legal justifica- point. This one is entitled ‘‘Sinking the Boat: tion? We already know they sent the It’s important to keep in mind how this House Approves Flawed Electronic Sur- letters, so all they are providing for us country came to have FISA. Enacted in 1978, veillance Bill,’’ June 24, 2008. in here is tantamount to acknowl- FISA was a response to widespread govern- edging what we already know occurred. ment abuse of wiretaps in the name of na- Congressional leaders have crafted a deep- tional security. The act set rules for govern- ly flawed bill on electronic eavesdropping, What we are not getting to is the legal ment spying on foreign powers on their caving once again to White House warnings conclusion that those documents not agents. that failure to give the executive branch seeking the warrants of the FISA court A secret FISA Court hears government broad license to spy on U.S. citizens without was a legal justification for their ac- eavesdropping requests and almost without a warrant would make it harder to protect tions. It does not take a legal scholar exception approves them. The administra- Americans from terrorists. to see the danger in this approach. It tion can even wiretap without a FISA war- In one of the most disappointing votes of means that the law becomes whatever rant and get one later. the 110th Congress, the House on Friday ap- the President wants it to be, never After the 9/11 attacks, President Bush de- proved a compromise over a contentious in- cided to do an end run around the FISA telligence surveillance bill. The House meas- mind what the statutes or even the Court, shifting approval for wiretaps from ure would allow the Federal Government to Constitution may say. That is why the the judiciary to the executive branch. That intercept international telephone calls or e- courts exist. That is why you have Fed- program was secret until 2005 when the New mails without prior court approval if the ex- eral judges to make those determina- York Times exposed its existence. ecutive branch claims it is necessary in an tions. As I pointed out earlier, conceivably emergency. It would also grant de facto im- This editorial goes on to say: it would still be operating today but munity to telecommunications companies The President also very much wants the that cooperated in the administration’s se- for that revealing by the whistle- cret and blatantly unconstitutional surveil- other major part of the new wiretapping law, blower. the section that amounts to an aggressive lance program after the September 11 at- broadening of federal surveillance powers. Last year, the administration employed tacks. The provisions would emasculate the ability fear mongering and convinced Congress— Congressman Peter DeFazio deserves cred- of federal judges to review wiretapping or- The Denver Post says— it for voting, along with 127 other Demo- crats, against the House bill. ‘‘We do not ders, especially if the orders were for a gen- to legitimize the program through the Pro- eral information ‘‘dragnet’’ as opposed to trample over the U.S. Constitution in order tect America Act, a temporary provision to protect Americans from terrorism—that targeting specific persons. that expired this year. Snooping government agents would be offi- is akin to sinking the boat so the enemy The battle now is over a permanent exten- can’t sink it,’’ the Oregon Democrat said. cially free to plug into phone and data lines sion, the centerpiece of which would be law- and copy and review untold millions of calls After September 11, President Bush au- suit immunity for the telecommunication thorized the National Security Agency to and e-mails, all without serious adult super- companies that cooperated with the vision. Effective checks and balances in gov- monitor, without the prior court approval warrantless spying program. required by the Constitution, e-mails and ernment this is not. Administration officials say they are very Bush and Attorney General Michael phone conversations between suspected ter- concerned about getting cooperation from rorists of United States residents. Called the Mukasey want the new law— the communications companies unless the The editorial goes on to say— Terrorist Surveillance Program, the initia- companies have immunity. tive ignored the 1978 Foreign Intelligence and they want it now. House Members— We find it hard to believe that these Surveillance Act which required a special Talking about the House-passed telecoms would refuse to comply with the Federal court to authorize electronic spying bill— FISA Court order. FISA has been in oper- on Americans. ation for 30 years and that seems to have not should not give it to them. Government been a problem in the past. The editorial goes on to say: wiretapping is now operating under a series The Bush administration grudgingly ac- of interim laws set to expire in early August. Let me just cut in here and point out that over the past 25 years, as I noted cepted judicial oversight of the program only There is no evidence that these interim after its existence was leaked to the media rules are too anemic to protect the Nation earlier, the FISA Courts have com- and Congress howled in outrage. That out- for a while longer. Congress should extend pelled companies to provide informa- rage has since been muffled by a White them. If the wiretapping law needs major re- tion and simultaneously granted them House campaign intended to scare Americans visions, these can be done under a new Presi- immunity when doing so. So this idea and to allow the administration to further dent. expand the chief executive’s powers and One who, unlike Bush, didn’t begin a se- that we hope they will willingly co- erode civil liberties. And, oh, yes, to ensure cret, illegal wiretapping months before Sep- operate—the courts have the power to that no one is held accountable for the ille- tember 11, 2001. compel cooperation when we want sur- veillance of individuals that could be gal wiretapping that Bush ordered after Sep- This is from the Denver Post. I won- tember 11. der why I chose that one to read to the doing us harm. So the argument that if The House bill is a modest improvement Presiding Officer, my good friend and we don’t grant immunity they might over the earlier versions. While it unwisely colleague from Denver, CO. I suspect he not show up again when we ask them allows the administration to authorize moni- may have seen this one himself, so I to provide surveillance that we need in toring of international calls or e-mails, it re- apologize if I am reading an editorial order to guarantee our security—we quires the secret Foreign Intelligence Sur- hope they will cooperate, but if they veillance Court to review and enforce protec- he has already probably read himself. tions for U.S. residents, and it bars surveil- This is dated June 5. ‘‘Another Dose of don’t, we have the ability to compel co- operation. lance until those procedures are approved ex- Courage Needed on FISA’’ is the title. cept in ‘‘exigent circumstances.’’ Congress once again is discussing a com- Back to the editorial. It concludes by The Senate should improve the House bill promise on a long-stalled rewrite of the For- saying: by requiring court supervision of any sur- eign Intelligence Surveillance Act with the It’s also important to keep in mind that veillance that can involve American citizens idea of getting something passed before its the Federal courts where these telecom law- or others in the United States. That’s a con- August recess. suits are being heard can—and have—dis- stitutional red line the Bush administra- The White House assuredly will play the missed some actions on the grounds that tion—or any other—should not be allowed to national security card again as it seeks ret- they could endanger national security. So cross. roactive immunity for telecoms that give in it’s not as if there is no protection at work. The Senate should also make certain that to demands for information under the Presi- The last time immunity was debated in the courts are allowed to decide whether dent’s warrantless wiretapping program. Congress, House Democrats held firm, saying telecommunication companies violated the

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00121 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6094 CONGRESSIONAL RECORD — SENATE June 24, 2008 law by handing over data to the government So while I know there are those who time, keep our country safe and our over the past five years without a court are going to argue and make the case Constitution whole. order. The Senate should also demand a full that those of us who stand up here to As I said before, when the 21st cen- accounting to Congress of all surveillance tury version of the Church committee conducted since September 11—accounting defend the rule of law, somehow we are the White House has refused to provide, tell- weak-kneed when it comes to ter- convenes to investigate the abuses of ing lawmakers and the American public to rorism, that is hardly the case. I don’t the past years, how will we be judged? instead ‘‘trust us’’ with their freedoms. want to give terrorists a greater vic- When it reads through the records of Congress still has a chance to make cer- tory. As profoundly sad, as tragic, and our debates—not if, Mr. President, but tain that the Federal Government Surveil- as violent as the attack was on 9/11 when—what will they find? When the lance Program complies with the rule of law. that destroyed so much and showed us President asked us to repudiate the Ge- History would suggest the failure to do so neva Conventions and strip away the could leave the door open to lawless behavior how dangerous the world is today, to as long as the current President remains in grant them the power—those terror- rights of habeas corpus, how did we re- office— ists—to allow them to deprive us of our spond? What was our Congress? What And, I would argue, set a precedent liberties is to grant them a victory did we say about that? When stories of for future administrations where that even greater than they achieved that secret prisons and outsourced torture could occur as well. day. It must be our common deter- became impossible to deny, what did Again, let me suggest here that what mination to see to it that we stand up that Congress do in 2008 and 2007? In we are talking about is not the choice and not allow these rights and these June of 2008 when we were asked to put between security and liberty. This is liberties we enjoy as citizens to be corporations explicitly outside the law not an issue that ought to divide peo- eroded at our own hand. and accept at face value the argument ple based on our party affiliation or Let’s say to terrorists around the that some are literally too rich to be how one is characterized and where world: We will fight you and defeat you sued, how did that Congress, how did they sit in the political spectrum. This as you try to do us and others great that Senate vote on that matter? is an issue that goes to the heart of harm, but you will not bring down the All of these questions are coming to who we are. It is talking about the rule pillars of our constitutional form of us, Mr. President. All of them and of law and the Constitution. Everyone government and the rule of law. That more. And in the quiet of his or her here takes an oath of office to protect is what this is all about, while it is ar- own conscience, each Senator knows and defend our country and to protect gued and we are told that we have to what the answers are. the Constitution. Certainly that is do this and if we don’t do it, that some- Remember, this is about more than a what this ought to involve. how we are succumbing to those terror- few telephone calls, a few companies, Are the courts going to make a deter- ists who wish to do us great physical or a few lawsuits. If the supporters of mination about the legality of this ef- harm. retroactive immunity keep this argu- fort? Again, I don’t know of another in- Let me, if I can, sort of wrap up be- ment a technical one, they will win. A stance in our Nation’s history where cause I know I am taking a little bit of technical argument obscures the defin- for 5 long years, 17 companies were al- time. I want to leave some time to ing question: the rule of law or the rule lowed to virtually sweep up every argue my housing bill. I am consuming of men? That question never goes phone call, every e-mail, every fax, the time on my housing bill to do this, away. As long as there are free soci- every text message that was sent by but I want people to understand, at eties, generations of leaders will strug- every citizen of this country, and that least from my perspective, why this is gle mightily to answer it. Each genera- is exactly what happened and would a dangerous conclusion, why we ought tion must ascertain an answer for still be ongoing if it hadn’t been re- to vote against cloture, and why I am itself. Just because our Founders an- vealed. going to use my power as a Senator to swered it correctly doesn’t mean we Do we require that there be some jus- object to going to that cloture vote, at are bound by their choice. In that, as tification as to whether this was le- least as long as a cloture vote exists on in all decisions, we are entirely free. gally occurring? That ought not to be a dealing with the housing legislation. The burden falls not on history but matter of political choice. That ought I think retroactive immunity is a on each one of us—the 100 of us who to be a matter for the courts. That is disgrace. In the last months, I believe serve in this remarkable Chamber. But why we established the third branch of we proved that beyond any doubt what- we can take counsel, listen to those government—the judiciary—to deter- soever. As I said, I believe it is more who came before us, who made the mine the constitutionality and legality disgraceful in all that it represents. It right choice even when our Nation’s of actions taken by the executive or is the mindset that the Church Com- survival was at risk. They knew the legislative branches. We are mittee summed up so eloquently three rule of law was far more rooted in our shortcutting in the legislative branch, decades ago. As I read these words— character than any one man’s lawless- at the request of the executive, the they are no longer with us. A lot of ness. From the beginning, they advised ability of that branch to make that de- these Members have long since left us, us to fight that lawlessness whenever termination. We are sanctioning, in ef- not only from this Chamber but who we found it. At the Constitutional Con- fect. We are closing the door, never to have since passed away. But it is vention, James Madison said: know why this happened, who ordered worthwhile for us to read their words, The means of defense against foreign dan- it, why did they avoid FISA, what was these Democrats and Republicans. ger historically have become the instru- behind their thinking. That is a dan- There were those who suggested some- ments of tyranny at home. gerous step for us to take. how they were weak-kneed when it He also said: That is the only case I am making. I came to giving the President the power I believe there are more instances of the have my doubts, as I said, about the le- to protect our national security. But abridgement of the freedom of the people by gality of it, but that is just one Sen- listen to their words of three decades gradual and silent encroachments of those in ator. I have the right to certainly have ago: power than by violent and sudden assertion. my doubts about certain actions. I The view that the traditional American As long as we are temporary don’t have the right to determine the principles of justice and fair play have no custodians of the Constitution, as we legality of it. I am a Senator, I am not place in our struggle against the enemies of are, we have a duty to guard against a Federal judge. I don’t sit in that freedom, that view created the Nixonian se- those gradual and silent encroach- third branch, I sit in the second crecy of the 1970s. ments. That is exactly what this is. It branch. I sit in the Congress of the The Church committee wrote those is a gradual and silent encroachment. United States. It is my job here to words in part as a rebuke to our prede- It doesn’t come in a burst, it comes stand up and see to it that we don’t cessors in this Chamber who for years slowly. Our Founders knew these take actions that would deprive that allowed secrecy and executive abuses threats were coming. They could pre- branch—the legal branch, the judicial to slide. But today those words take on dict, persuade, and warn, but when it branch—from asserting its rights under new meaning. Today, they rebuke us, comes time to stand up against those our Constitution—exactly what the in a way. Today they shame us for a threats in our own time, they cannot Founders intended. lack of faith that we can, at the same act for us. They can only teach us, they

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00122 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE June 24, 2008 CONGRESSIONAL RECORD — SENATE S6095 can warn us, they can remind us that litical party conventions. And it served S. RES. 600 they would come. And they have. They as a catalyst for Congress to pass the Whereas 44 years ago, on June 21, 1964, An- are here. They are before us. They can- Civil Rights Act of 1964 and the Voting drew Goodman, James Chaney, and Michael not act for us. The choice is ours and Rights Act of 1965, key legislation that Schwerner were murdered in Philadelphia, ours alone. would eliminate segregation and usher Mississippi, while working in the name of Tomorrow or the following day, when in a new era of equal opportunity and American democracy to register voters and secure civil rights during the summer of 1964, we are asked to vote on this, the choice access to our democracy for all Ameri- which has become known as ‘‘Freedom Sum- will be ours. We have been warned and cans. mer’’; cautioned by history. The decision now Unfortunately, our march toward Whereas Andrew Goodman was a 20-year- rests with each and every one of us to equal justice under law is not yet com- old White anthropology major at New York’s decide whether we have listened to plete. Three years ago, Edgar Ray Queens College, who volunteered for the them and not only answer them but Killen was convicted for the deaths of ‘‘Freedom Summer’’ project; provide the answer for generations to the three civil rights workers we honor Whereas James Chaney, from Meridian, come, as generations before us have an- today. Almost two dozen other men Mississippi, was a 21-year-old African-Amer- ican civil rights activist who joined the Con- swered that question. May we rise to were involved in this crime; some are gress of Racial Equality (CORE) in 1963 to that moment, Mr. President, and de- still alive, yet, none have ever been work on voter education and registration; feat this legislation. May we reject this held charged with this murder. Even Whereas Michael ‘‘Mickey’’ Schwerner, retroactive immunity for a handful of more troubling, the families of hun- from Brooklyn, New York, was a 24-year-old companies so that we may determine dreds of other Americans who lost White CORE field secretary in Mississippi whether their actions were legal or their lives in the fight for equal rights and a veteran of the civil rights movement; whether they were above the law or still await justice. Whereas in 1964, Mississippi had a Black whether they were the rule of law or As we pass this resolution, we must voting-age population of 450,000, but only recognize that it is long past time to 16,000 Blacks were registered to vote; the rule of men. That is the important Whereas most Black voters were choice we will have to make. pass the Emmett Till Unsolved Civil disenfranchised by law or practice in Mis- I yield the floor. Rights Crime Act, which would sissippi; strengthen our ability to track down f Whereas in 1964, Andrew Goodman, James those whose violent acts during a pe- Chaney, and Michael Schwerner volunteered COMMEMORATING THE 44TH ANNI- riod of national turmoil remain to work as part of the ‘‘Freedom Summer’’ VERSARY OF THE DEATHS OF unpunished. Last year, the House over- project that involved several civil rights or- CIVIL RIGHTS WORKERS AN- whelmingly passed this bill. Yet, one ganizations, including the Mississippi State DREW GOODMAN, JAMES lone Republican Senator has prevented chapter of the National Association for the CHANEY, AND MICHAEL Advancement of Colored People, the South- this important bill from passing. As we ern Christian Leadership Conference, the SCHWERNER commemorate the deaths of three of Student Nonviolent Coordinating Com- Mr. DODD. Mr. President, I ask unan- the most celebrated civil rights activ- mittee, and CORE, with the purpose of reg- imous consent that the Senate proceed ists of the past, let us remember this istering Black voters in Mississippi; to the immediate consideration of S. does not obviate our need to solve the Whereas on the morning of June 21, 1964, Res. 600, which was submitted earlier hundreds of less recognized civil rights the 3 men left the CORE office in Meridian and set out for Longdale, Mississippi, where today. crimes of that era. Today’s resolution is an important they were to investigate the recent burning The PRESIDING OFFICER. The of the Mount Zion Methodist Church, a clerk will report. gesture for us to remember the civil Black church that had been functioning as a The legislative clerk read as follows: rights misdeeds of the past. But it is Freedom School for education and voter reg- A resolution (S. Res. 600) commemorating also an opportunity for Congress to istration; the 44th anniversary of the deaths of civil show the country that we will not tol- Whereas on their way back to Meridian, rights workers Andrew Goodman, James erate similar offenses. As we pass this James Chaney, Andrew Goodman, and Mi- Chaney, and Michael Schwerner in Philadel- resolution, it is fitting to carry this chael Schwerner were detained and later ar- phia, Mississippi, while working in the name principle to the present and act in kind rested and taken to the Philadelphia, Mis- of American democracy to register voters to prevent hate crimes and civil rights sissippi, jail; and secure civil rights during the summer of Whereas later that same evening, on June abuses occurring now in this country 21, 1964, they were taken from the jail, 1964, which has become known as ‘‘Freedom and around the world. Summer.’’ turned over to the Ku Klux Klan, and beaten, The powerful inscription on the grave shot, and killed; There being no objection, the Senate of James Chaney reads: ‘‘There are Whereas 2 days later, their burnt, charred, proceeded to consider the resolution. those who are alive, yet will never live; and gutted blue Ford station wagon was Mr. LEAHY. Mr. President, our Na- there are those who are dead, yet will pulled from the Bogue Chitto Creek, just tion owes a tremendous debt of grati- live forever; great deeds inspire and en- outside Philadelphia, Mississippi; tude to all of those who risked their courage the living.’’ By remembering Whereas the national uproar caused by the lives in the pursuit of making America Mr. Chaney, Mr. Schwerner, and Mr. disappearance of the civil rights workers led President Lyndon B. Johnson to order Sec- a more perfect union. This week, we Goodman today, I hope we all can be commemorate the 44th anniversary of retary of Defense Robert McNamara to send inspired to renewed action in this Con- 200 active duty Navy sailors to search the the day three brave civil rights work- gress. Let us pass the Till bill to ensure swamps and fields in the area for the bodies ers—James Chaney, Michael that those who sacrificed their lives in of the 3 civil rights workers, and Attorney Schwerner, and Andrew Goodman— pursuit of justice are not forgotten and General Robert F. Kennedy to order his Fed- paid the ultimate price in the struggle the perpetrators of these crimes are eral Bureau of Investigation (FBI) director, to secure civil rights and expand our held accountable. J. Edgar Hoover, to send 150 agents to Mis- democracy for all Americans. Mr. DODD. Mr. President, I ask unan- sissippi to work on the case; Whereas the FBI investigation led to the On June 21, 1964, these three young imous consent that the resolution be men were abducted, brutally beaten, discovery of the bodies of several other Afri- agreed to, the preamble be agreed to, can-Americans from Mississippi, whose dis- and shot to death by Ku Klux Klans- the motions to reconsider be laid upon appearances over the previous several years men for simply attempting to register the table, with no intervening action had not attracted attention outside their African-Americans voters. Their deaths or debate, and that any statements re- local communities; touched the conscience of our country lating to the resolution be printed in Whereas the bodies of Andrew Goodman, and inspired events that changed the the RECORD. James Chaney, and Michael Schwerner, beat- course of our history. The public out- The PRESIDING OFFICER. Without en and shot, were found on August 4, 1964, cry over the initial disappearance of objection, it is so ordered. buried under a mound of dirt; these workers drew national and inter- Whereas on December 4, 1964, 21 White Mis- The resolution (S. Res. 600) was sissippians from Philadelphia, Mississippi, national attention to the violence asso- agreed to. including the sheriff and his deputy, were ar- ciated with efforts to register African- The preamble was agreed to. rested, and the Department of Justice American voters. It spurred efforts to The resolution, with its preamble, charged them with conspiring to deprive An- desegregate the voting delegates at po- reads as follows: drew Goodman, James Chaney, and Michael

VerDate Aug 31 2005 06:47 Sep 14, 2008 Jkt 059060 PO 00000 Frm 00123 Fmt 4624 Sfmt 0634 E:\RECORD08\RECFILES\S24JN8.REC S24JN8 mmaher on PROD1PC76 with CONG-REC-ONLINE S6096 CONGRESSIONAL RECORD — SENATE June 24, 2008 Schwerner of their civil rights, since murder nizing by this resolution who lost their DIPLOMACY FOR A TERM EXPIRING JULY 1, 2011. (RE- APPOINTMENT) was not a Federal crime; lives in the quest for freedom and de- DEPARTMENT OF EDUCATION Whereas on December 10, 1964, the same mocracy during the civil rights move- day Dr. Martin Luther King, Jr. received the ment in the 1960s. It was a moving op- HOLLY A. KUZMICH, OF INDIANA, TO BE ASSISTANT Nobel Peace Prize, a United States District SECRETARY FOR LEGISLATION AND CONGRESSIONAL portunity to listen to these remarkable AFFAIRS, DEPARTMENT OF EDUCATION, VICE TERRELL judge dismissed charges against the 21 men HALASKA, RESIGNED. accused of depriving the 3 civil right workers individuals who, today, are gray in hair CHRISTOPHER M. MARSTON, OF VIRGINIA, TO BE AS- of their civil rights by murder; and getting older, but in their youth SISTANT SECRETARY FOR MANAGEMENT, DEPARTMENT Whereas in 1967, after an appeal to the Su- they stood up for democracy and free- OF EDUCATION, VICE MICHELL C. CLARK, RESIGNED. preme Court and new testimony, 7 individ- dom. It is worthy that this institution f uals were found guilty, but 2 of the defend- is recognizing them. I wanted to men- ants, including Edgar Ray Killen, who had tion that this evening, as we agreed to been strongly implicated in the murders by DISCHARGED NOMINATION witnesses, were acquitted because the jury this resolution. came to a deadlock on their charges; f The Senate Committee on Rules and Administration was discharged from Whereas on January 6, 2005, a Neshoba ORDERS FOR WEDNESDAY, JUNE County, Mississippi, grand jury indicted further consideration of the following Edgar Ray Killen on 3 counts of murder; 25, 2008 nomination and the nomination was Whereas on June 21, 2005, a jury convicted Mr. DODD. Mr. President, I ask unan- confirmed: Edgar Ray Killen on 3 counts of man- imous consent that when the Senate MATTHEW S. PETERSEN, OF UTAH, TO BE A MEMBER OF slaughter; completes its business today, it stand THE FEDERAL ELECTION COMMISSION FOR A TERM EX- Whereas June 21, 2008, was the 44th anni- adjourned until 9:30 a.m., tomorrow, PIRING APRIL 30, 2011. versary of Andrew Goodman, James Chaney, Wednesday, June 25; that following the and Michael Schwerner’s ultimate sacrifice; f Whereas by the end of ‘‘Freedom Sum- prayer and the pledge, the Journal of the proceedings be approved to date, mer’’, volunteers, including Andrew Good- CONFIRMATIONS man, James Chaney, and Michael Schwerner, the morning hour be deemed to have helped register 17,000 African-Americans to expired, the time for the two leaders be Executive nominations confirmed by vote; reserved for their use later in the day, the Senate Tuesday, June 24, 2008: Whereas the national uproar in response to and the Senate resume consideration of FEDERAL ELECTION COMMISSION the deaths of these brave men helped create the necessary climate to bring about passage the House message to accompany H.R. STEVEN T. WALTHER, OF NEVADA, TO BE A MEMBER OF 3221, the housing legislation, and that THE FEDERAL ELECTION COMMISSION FOR A TERM EX- of the Voting Rights Act of 1965; PIRING APRIL 30, 2009. Whereas Andrew Goodman, James Chaney, the time during the adjournment count CYNTHIA L. BAUERLY, OF MINNESOTA, TO BE A MEM- and Michael Schwerner worked for freedom, against cloture. I further ask that the BER OF THE FEDERAL ELECTION COMMISSION FOR A TERM EXPIRING APRIL 30, 2011. democracy, and equal justice under the law mandatory quorum rule XXII with re- CAROLINE C. HUNTER, OF FLORIDA, TO BE A MEMBER for all; and spect to H.R. 6304 be waived. OF THE FEDERAL ELECTION COMMISSION FOR A TERM Whereas the Federal Government should The PRESIDING OFFICER. Without EXPIRING APRIL 30, 2013. find an appropriate way to honor these cou- DONALD F. MCGAHN, OF THE DISTRICT OF COLUMBIA, objection, it is so ordered. TO BE A MEMBER OF THE FEDERAL ELECTION COMMIS- rageous young men and their contributions SION FOR A TERM EXPIRING APRIL 30, 2009. to civil rights and voting rights: Now, there- f THE ABOVE NOMINATIONS WERE APPROVED SUBJECT fore, be it ADJOURNMENT UNTIL 9:30 A.M. TO THE NOMINEES’ COMMITMENT TO RESPOND TO RE- Resolved, That the Senate— QUESTS TO APPEAR AND TESTIFY BEFORE ANY DULY CONSTITUTED COMMITTEE OF THE SENATE. (1) encourages all Americans to pause and TOMORROW MATTHEW S. PETERSEN, OF UTAH, TO BE A MEMBER OF remember Andrew Goodman, James Chaney, Mr. DODD. Mr. President, if there is THE FEDERAL ELECTION COMMISSION FOR A TERM EX- and Michael Schwerner and the 44th anniver- no further business to come before the PIRING APRIL 30, 2011. sary of their deaths; Senate, I ask unanimous consent that THE JUDICIARY (2) commemorates the life and work of An- it stand adjourned under the previous drew Goodman, James Chaney, Michael HELENE N. WHITE, OF MICHIGAN, TO BE UNITED order. STATES CIRCUIT JUDGE FOR THE SIXTH CIRCUIT. Schwerner, and all of the other brave Ameri- RAYMOND M. KETHLEDGE, OF MICHIGAN, TO BE cans who made the ultimate sacrifice in the There being no objection, the Senate, UNITED STATES CIRCUIT JUDGE FOR THE SIXTH CIR- at 10:20 p.m., adjourned until Wednes- CUIT. name of civil rights and voting rights for all STEPHEN JOSEPH MURPHY III, OF MICHIGAN, TO BE Americans; and day, June 25, 2008, at 9:30 a.m. UNITED STATES DISTRICT JUDGE FOR THE EASTERN (3) commemorates and acknowledges the f DISTRICT OF MICHIGAN. legacy of the brave Americans who partici- pated in the civil rights movement and the NOMINATIONS f role that they played in changing the hearts Executive nominations received by and minds of Americans and creating the po- the Senate: WITHDRAWAL litical climate necessary to pass legislation DEPARTMENT OF STATE to expand civil rights and voting rights for Executive Message transmitted by all Americans. DAVID D. PEARCE, OF VIRGINIA, A CAREER MEMBER OF the President to the Senate on June 24, THE SENIOR FOREIGN SERVICE, CLASS OF MINISTER- Mr. DODD. Mr. President, a few COUNSELOR, TO BE AMBASSADOR EXTRAORDINARY AND 2008 withdrawing from further Senate PLENIPOTENTIARY OF THE UNITED STATES OF AMERICA consideration the following nomina- weeks ago, our colleague in the other TO THE PEOPLE’S DEMOCRATIC REPUBLIC OF ALGERIA. tion: Chamber, JOHN LEWIS, joined us for UNITED STATES ADVISORY COMMISSION ON lunch and brought along several Free- PUBLIC DIPLOMACY J. GREGORY COPELAND, OF TEXAS, TO BE GENERAL COUNSEL OF THE DEPARTMENT OF ENERGY, VICE DAVID dom Riders who knew very well the LYNDON L. OLSON, JR., OF TEXAS, TO BE A MEMBER OF R. HILL, WHICH WAS SENT TO THE SENATE ON JANUARY wonderful young people we are recog- THE UNITED STATES ADVISORY COMMISSION ON PUBLIC 22, 2008.

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