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Home , Dan Coats, Dan Quayle, David Turpie, Indiana Senate, John Pettit, Richard Lugar

E PL UR UM IB N U U S Congressional Record th of America PROCEEDINGS AND DEBATES OF THE 104 CONGRESS, SECOND SESSION

Vol. 142 WASHINGTON, WEDNESDAY, MAY 1, 1996 No. 58 Senate The Senate met at 9 a.m., and was bill following the disposition of the One reporter—Mary Dieter, who cov- called to order by the President pro Simpson amendment. It is the hope of ers politics for the Louisville tempore [Mr. THURMOND]. the majority leader to complete action Courier-Journal—added a twist to the on the immigration bill during today’s fourth-term jinx story. She noted that PRAYER session. even if I broke the jinx, I would not be- The Chaplain, Dr. Lloyd John I believe that Senator LUGAR is pre- come the longest serving Indiana Sen- Ogilvie, offered the following prayer: pared to proceed. I thank the Chair and ator upon being sworn in. That distinc- Gracious God, whose dwelling place I yield the floor, Mr. President. tion would still belong to Daniel Wol- is the heart that longs for Your pres- f sey Voorhees, who had served more ence and the mind that humbly seeks MORNING BUSINESS than a year of an unexpired term be- Your truth, we eagerly ask for Your fore winning three of his own. He guidance for the work of this day. We The PRESIDING OFFICER (Mr. served in this body from November 1877 confess anything that would hinder the KYL). There will now be a period for until March 1897. flow of Your spirit in and through us. morning business. In our personal lives, heal any broken Mr. LUGAR addressed the Chair. As a consequence of Voorhees’ long or strained relationships that would The PRESIDING OFFICER. The Sen- tenure, not until today has this Sen- drain off creative energies. Lift our ator from Indiana, Senator LUGAR, is ator passed the previous record for burdens and resolve our worries. Then recognized. length of service by a Senator from In- give us a fresh experience of Your Mr. LUGAR. I thank the Chair. diana. This day marks my 7,059th in of- amazing grace that will set us free to fice, passing the 7,058-day record set by f live with freedom and joy. Voorhees. HISTORY Now, Lord, we are ready to work with I am enormously grateful to the peo- great confidence fortified by the steady Mr. LUGAR. Mr. President, during ple of Indiana for granting me the op- supply of Your strength. Give us the my campaign for reelection in 1994, a portunity to serve them; to my family courage to do what we already know of number of Indiana papers published ar- Your will, so that we may know more for supporting my endeavors in public ticles describing the fourth-term jinx service; and to all my past and present of it for the specific challenges of this that had afflicted Indiana Senators and day. Our dominate desire is for Your colleagues in the Senate who have speculating whether I would be fortu- made my service here so rewarding and best in the contemporary unfolding of nate enough to overcome that jinx. Al- enjoyable. the American dream. Lead on, O King though five of my predecessors had Eternal, Sovereign of this land. Amen. each won three Senate elections, all of I would like to commemorate this oc- f them had been defeated in their fourth casion by paying homage to the impor- race. Some of the most prominent and tant record of service to the RECOGNITION OF THE ACTING accomplished names in Indiana poli- U.S. Senate. I regret that legislative MAJORITY LEADER tics, including James Watson, Homer history is a topic that rarely receives The PRESIDENT pro tempore. The Capehart, , and Birch adequate attention, either in our able acting majority leader, Senator Bayh had fallen victim to the fourth- schools or during deliberations in this LOTT of Mississippi, is recognized. term jinx. body. So often our work in the Senate f The independent-minded voters of In- would improve with a greater under- diana have never been shy about ex- SCHEDULE standing of the history that lies behind pressing their dissatisfaction with an us and of our role as stewards of an in- Mr. LOTT. Mr. President, today incumbent. In fact, the average length stitution that will survive long after there will be a period for morning busi- of service among all Indiana Senators all of us are gone. ness. Senator LUGAR of Indiana has 45 is just a little more than 8 years. Five minutes under his control. Following Hoosier Senators held office less than a I have attempted in a small way to his remarks, the Senate will resume year. The shortest Senate service was resist the erosion of Hoosier Senate consideration of S. 1664, the immigra- that of Charles William Cathcart, who history by asking my summer interns tion bill. Senators can expect rollcall served less than 2 months of an unex- during the last few years to research votes on amendments throughout the pired term. Only 10 of the 43 Hoosier Indiana Senators. Invariably my in- day. A cloture vote is expected on the Senators served more than 2 terms. terns are surprised and bemused by the

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

S4449

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VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00001 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4450 CONGRESSIONAL RECORD — SENATE May 1, 1996 parallels between our present legisla- who replaced Noble, was a general in name together to an infamy so profound, a tive labors and the actions of long for- the Indiana . damnation so deep, that the hand of res- urrection will never drag him forth.... gotten Senators. One wrote after re- searching the life of the venerable Oli- James K. Polk has spoken words of falsehood But the Hoosier Senator who epito- with the tongue of a serpent. ver P. Morton: ‘‘One of the greatest mized the rugged life in a frontier POLITICAL TURBULENCE of all time has been forgotten. State was John Tipton, an unschooled In any event, Mr. President, Indi- Let us recall him and learn from his native, who served in the ana’s position as a crossroads of the experiences.’’ Senate from 1832 to 1839. Tipton’s fa- Nation was not limited to commerce FRONTIER YEARS ther was killed by Indians when the and travel. Up to the present day it Mr. President, although few Hoosiers boy was just 7 years old. By the time also has been a crossroads for Amer- have had long Senate careers, many of he crossed the Ohio River into Indiana ican subcultures, economic forces, and my predecessors made indelible con- at the age of 21, Tipton was already the political ideas. In his 1981 bestseller tributions to the Nation. Curiously, breadwinner of his household. He set- ‘‘The Nine Nations of North America’’, only 16 of the 43 Indiana Senators—37 tled his mother and siblings in Har- Joel Garreau conceptually divided the percent—were born within the State: 10 rison County, where he earned a living North American Continent into nine were born in neighboring Ohio; 4 were as a gunsmith and farmhand. born in New York; 2 each were born in Tipton served under General Har- subregions according to their eco- Pennsylvania and Virginia; 2 were born rison during the Tippecanoe campaign, nomic, social, and cultural identity. It in foreign lands; and the remaining 8 rising to the rank of brigadier general. is not surprising that Garreau placed came from assorted Eastern States. After his military service, Tipton at the very intersection of No Indiana Senator has ever been would become a justice of the peace, three of these regions: the industrial born west of the . For sheriff of Harrison County, Indian Midwest centered on the Great Lakes, my Indiana Senate predecessors, the agent, and State legislator. He helped the broad grain growing region of the trek westward stopped at the Wabash select the site for a new State capital plains, and the South. River. In Indiana they found land that that would become Indianapolis. He As a result, through much of its his- brought abundance, the confluence of also did an official survey of the Indi- tory, the cauldron of Indiana politics great waterways, and a brand of fron- ana border with . Tipton strenu- has been characterized by its swirling tier politics that proved irresistible to ously but unsuccessfully maintained unpredictability. Viewed from a broad many young lawyers, farmers, and that a port on Lake called historical perspective, political parties businessmen seeking to make names rightfully belonged within In- in Indiana have never been able to for themselves. diana’s borders. dominate the landscape for long before As Senator, Tipton continued to they were toppled by their rivals. For Ironically, one of Indiana’s original focus on frontier issues. He served on example, only one time since 1863 has Senators, James Noble, might have set the Military Affairs and Indian Affairs the seat that I hold been passed be- an insurmountable record of service Committees. Later in his term, he be- tween members of the same party. In had he not died at the young age of 45. came chairman of the Committee on the entire history of Indiana, the two Elected by the Indiana Legislature in Roads and Canals, taking over from fel- Hoosier Senate seats have never been 1816 as a Democratic-Republican, he low-Hoosier . Like occupied by members of the same party took office 5 days before his 31st birth- his predecessors in the Senate, Tipton for longer than 16 consecutive years. day. He died during his third term on fought for appropriations to build The most turbulent time in Indiana February 26, 1831. Noble’s 14 years of roads connecting Indiana with the politics was the Civil War era. In many service in the Senate would stand as a East. counties, residents had considerable Hoosier record for three decades. As these roads were built and the sympathy for the southern cause, while Noble was a prominent lawyer who Ohio River and Great Lakes were de- other Hoosiers were ardent abolition- had played a central role in Indiana’s veloped, the frontier pushed westward. ists. Democrats who opposed the war constitutional convention and was a By the 1840’s, Indiana had developed and supported the South were known natural choice for appointment to the from a frontier State into a burgeoning as ‘‘Copperheads.’’ Another group of Senate by the Indiana Legislature. In crossroads of commerce and travel. Democrats opposed abolition, but the Senate he was a leading advocate With this transformation, the men rep- wished to hold the Union together. Be- for using Federal funds to improve the resenting Indiana in the Senate tended fore the war, these Constitutional- Nation’s roads and waterways, and he to be better educated and more moti- Union Democrats backed political con- was instrumental in securing appro- vated by national political ambitions cessions to the South in the hope of priations to extend the Cumberland than their pioneer predecessors. preserving the Union without war. Road westward from the town of EDWARD HANNEGAN When war began, however, many Con- Wheeling, in Virginia at that time. He Senator Edward Hannegan, who stitutional-Union Democrats reluc- argued against the view held by some served in this body from 1843 to 1849 tantly supported the northern war ef- of his contemporaries that Federal provides a good example. He was a re- fort. spending on infrastructure improve- nowned orator who sought unsuccess- JESSE BRIGHT ments was unconstitutional. For fully the Democratic nomination for Throughout the era of the Civil War Noble, building roads and waterways to President in 1852. The legendary Daniel and Reconstruction, at least one of the bind the States together was a vital ac- Webster said of him: ‘‘Had Hannegan two Hoosier seats was occupied by a tivity of the Federal Government. entered Congress before I entered it I Democratic Senator with sympathies Noble and other early Hoosier Sen- fear I never should have been known for the southern point of view. In 1862, ators had been settlers of the Indiana for my eloquence.’’ one of these Senators, Jesse Bright of Territory and had weathered the rigors Hannegan’s mix of rhetorical fire and Madison, became the only Senator of frontier life. Befitting a frontier elegance was demonstrated on one oc- from a nonslave State to be expelled by Senator, Noble always insisted on trav- casion when he took to the Senate the Senate for supporting the rebellion. eling to and from Washington on horse- floor to denounce President Polk for The expulsion was all the more notable back, rather than by stagecoach. his offer to Great Britain to set the because Bright had served as President Several Hoosier Senators partici- northern border of the Oregon Terri- pro tempore from 1854 to 1856 and again pated in military campaigns against tory at the 49th parallel. Hannegan was in 1860. The catalyst for the expulsion Tecumsah’s Shawnees and other Indian a leading proponent of the expansionist was a letter from Bright to his friend tribes. Noble served as a colonel in the view that was represented by the Jefferson Davis written on March 1, Indiana militia. Senator , battlecry: ‘‘54, 40, or fight.’’ Said 1861—more than a month before the at- who was Indiana’s other original Sen- Hannegan of Polk: tack on Fort Sumter. The letter intro- ator, served as Gen. William Henry So long as one human eye remains to lin- duced another friend, Mr. Thomas Lin- Harrison’s aide-de-camp during the ger on the page of history, the story of his coln, formerly of Madison, IN, to Davis. . Senator , abasement will be read, sending him and his It read:

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00002 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4451 MY DEAR SIR: Allow me to introduce to Lincoln in prosecuting the war and Jesse Bright’s sympathy for the South your acquaintance my friend, Thomas B. supporting the Emancipation Procla- and Edward Hannegan’s passionate Lincoln, of Texas. He visits your capital mation. speaking style. During the entirety of mainly to dispose of what he regards [as] a Within a week of Lincoln’s call for the Civil War, Voorhees served in the great improvement in fire-arms. I rec- ommend him to your favorable consideration troops on April 15, 1861, Morton had or- House of Representatives where he fre- as a gentleman of the first respectability, ganized 12,000 Hoosier recruits—a num- quently criticized President Lincoln. and reliable in every respect. ber three times Indiana’s quota. Over As a fervent believer in States rights, Very truly yours, the course of the war, Governor Morton he saw the North’s prosecution of the JESSE BRIGHT. continued to be one of the most effec- war as unconstitutional. After Lincoln The discovery of the letter late in tive troop organizers for the Union. In- issued the Emancipation Proclamation 1861 provided an opening to Republican diana contributed more than 200,000 Voorhees declared: Senators seeking to expel Bright for soldiers to the Union war effort; all but Ten days before he issued it he said that he his southern leanings. The Senator not 17,000 of these were volunteers. Morton had not the power to promulgate such a doc- only voted against many wartime pro- was revered by Hoosier troops because ument and that it would do no good if he did. visions, he owned slaves and a planta- he used State funds to ensure that In- In that he was right for once. But I suppose tion in Kentucky. diana’s soldiers were well clothed and he gave way to pressure. Yes, pressure. He was pressed. By whom? By , On December 16, 1861, Senator Mor- equipped and to care for the widows that political harlot, who appeared in a pray- ton Wilkinson of Minnesota introduced and orphans of fallen Hoosiers. Like ing attitude in behalf of 20 millions of peo- a resolution to expel Bright. Wilkinson Lincoln, Morton was not timid about ple. contended that the letter and Bright’s using the power at his disposal. He de- Lincoln’s reelection in 1864 was a addressing of Davis as ‘‘His Excellency clared martial law in parts of southern great disappointment to Voorhees, who Jefferson Davis, President of the Con- Indiana to quell subversive activities hoped that the President’s defeat federation of States’’ amounted to a by Copperhead groups. When the State would allow for a compromise that recognition of the legitimacy of the se- ran low on funds, Morton bypassed the would reestablish both the Union and cession of Southern States. Bright re- Democratic legislature, financing the the rights of States to make their own sponded that in the days before the war war effort by borrowing from private decisions on . After the war, began, many leaders in the North con- bankers and soliciting contributions Voorhees adopted a softer view of Lin- tinued friendly correspondence with from citizens and businesses. coln because of the President’s inten- acquaintances in the South and that In 1867 Morton began 10 years of serv- tions to implement a magnanimous re- his method of addressing Davis was ice in the Senate. In 1865 he had suf- construction program. nothing more than the polite use of a fered an apparent stroke that left him As a Senator, Voorhees was a promi- title. partially paralyzed. Despite his infir- nent forefather of the populist move- Although the Judiciary Committee mity, he was a vigorous debater and ment headed by William Jennings recommended against expulsion, the party organizer who reveled in the po- Bryan at the end of the century. Voor- Senate debate ran strongly against litical combat of the Senate. He be- hees devoted much energy to defending Bright. He was harshly denounced by came chairman of the Manufactures the agrarian interests of the Midwest Indiana’s Republican Senator Henry S. Committee and the Privileges and and South. He opposed protectionist Lane and by future President, Andrew Elections Committee. He also served tariffs designed to benefit eastern man- Johnson of Tennessee. On February 5, on the Foreign Affairs and Military Af- ufacturers, and he advocated a liberal with the Senate Gallery filled with on- fairs Committees. monetary policy that would expand lookers, the Senate expelled Bright by But the central issue during Morton’s currency to benefit farmers. He de- a vote of 32 to 14. His Senate career time in the Senate was, of course, Re- nounced the U.S. financial system as came to an end 1 month short of 17 construction. Though he had supported ‘‘an organized crime against the labor- years. Since the Indiana Legislature Lincoln’s magnanimous gestures to- ing, tax-paying men and women of the was under the control of the Demo- ward the South immediately after the United States.’’ cratic Party in 1862 when Bright would war, Morton gradually became con- In 1893, Voorhees became chairman of have been up for reelection, his expul- vinced that an uncompromising and the powerful Finance Committee. That sion denied him an almost certain complete reconstruction of the South year, a major financial panic caused fourth term. was necessary. He led the fight for pas- President Cleveland to call a special OLIVER P. MORTON sage and of the 15th session of Congress to consider the re- During the Civil War, Indiana was ad- amendment which granted blacks the peal of the mildly inflationary Sher- ministered by Gov. Oliver P. Morton, right to vote. To gain ratification by man Silver Purchase Act. To pass the the spiritual leader of the Indiana Re- the necessary three-fourths of the repeal, he needed the support of Voor- publican Party. Morton went on to be- States, he proposed a floor amendment hees. The issue divided Democrats, come one of the most important Sen- requiring several Southern States to many of whom, like Voorhees, strongly ators of the era of Reconstruction and ratify the 15th amendment as a condi- supported silver purchases. But Voor- a national spokesman for the Repub- tion for reclaiming their seats in Con- hees set aside his natural inclinations lican Party. His likeness can be viewed gress. His hardball tactics ultimately to help the President from his party re- today a few hundred feet away in Stat- prevailed, but they brought accusa- spond to the financial panic. Voorhees uary Hall. tions that he was overly vindictive to- considered passage of the repeal of the Originally a Democrat, Morton broke ward the South. To these charges, he Silver Purchase Act his greatest legis- with his party in 1854 over the Kansas- replied: ‘‘I want peace in the South. I lative accomplishment, although the Nebraska Act. His views on the slavery want it as earnestly as any man can, measure actually did little to remedy question developed in much the same but I want peace in the South on cor- the country’s financial crisis. manner as those of . rect principles. I am not willing to pur- HOOSIERS IN NATIONAL OFFICE Beginning in the late 1850’s, he was an chase peace by conceding that they Mr. President, Senator Vorhees had outspoken critic of slavery. In one 1860 were right and we were wrong.’’ the distinction of defeating a future speech he denounced it as ‘‘a moral, so- Morton died in 1877 before the end of President——in his cial, and political evil * * * a curse to his second term. With his passing, his first Senate election and being un- any people, a foe to progress, the seat fell into Democratic hands for al- seated by a future Vice President— enemy of education and intelligence, most 20 years. For it was the long-serv- Charles Fairbanks—in his last. In fact, and an element of social and political ing Daniel Voorhees who was appointed the late 18th and early 19th centuries weakness.’’ Like Lincoln, however, by the Democratic-controlled legisla- saw Indiana become a frequent supplier Morton carefully avoided advocating ture to replace Morton. of candidates for national office. Cir- outright abolition, instead focusing on DANIEL VOORHEES cumstances had positioned Indiana to stopping the extension of slavery. But Voorhees, who was known as the Tall play a leading role in national politics. after the South seceded and the fight- Sycamore of the Wabash was a promi- Indiana had grown to become the sev- ing began, Morton was a key ally of nent Terre Haute lawyer who shared enth largest State in the Union by the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00003 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4452 CONGRESSIONAL RECORD — SENATE May 1, 1996 1870’s, and it had become a swing State the House for the second time in the banks was cut off from a possible Presi- where party control changed from elec- decade. Under the 1792 Succession Act, dential run by the tragedy of President tion to election. Both parties, there- this was the line of succession in the McKinley’s assassination. Vice Presi- fore, had strong incentives to put Hoo- event of the President’s death. No dent was elevated siers on their national tickets. other official was mentioned. Had to the Presidency, ensuring that he Of the 20 individuals who served as Cleveland died before Congress con- would be the Republican nominee in either President or Vice President be- vened later in the year, the country 1904. Fairbanks had to settle for the tween 1870 and 1920, five were Hoosiers. would have been left temporarily with- Republican Vice Presidential nomina- Only New York, with six, placed more out a President. tion on the ticket with Roosevelt. This individuals in Executive Offices during Hendricks’ death prompted Congress time he did not pass up the oppor- this period. Each of these Hoosiers was to pass a revision of the Succession Act tunity, and he became Vice President connected to the Senate, either as a in 1886. It removed the President pro in 1905 after the GOP ticket swept to former Member or in performing their tempore and the Speaker of the House victory. Vice Presidential duties as presiding from the line of succession and sub- Fairbanks attempted to gather sup- officer. stituted the President’s Cabinet offi- port for the GOP Presidential nomina- cers in the order the departments were tion in 1908, but Roosevelt’s endorse- This succession of Hoosiers was created beginning with the Secretary ment of again begun by the unfortunate Schuyler of State. In 1947 at President Truman’s blocked the Hoosier’s path to the Colfax, who was President Grant’s first urging, Congress again revised the suc- White House. Once more in 1916, Fair- Vice President from 1869 to 1873. cession order, returning the Speaker banks was a candidate for Vice Presi- Colfax, whom Lincoln described as a and the President pro tempore to the dent on the ticket with Charles Evans ‘‘friendly rascal,’’ never held a seat in line, but reversing their order so the Hughes. But they were defeated by in- the Senate. His political career was Speaker ranked second behind the Vice cumbents and Hoosier brought to a close by revelations that President and the President pro tem- Thomas Marshall. he had participated in a financial scan- pore ranked third, followed by the Cab- THOMAS MARSHALL dal that occurred during his earlier inet Secretaries. Marshall never served in the Senate, tenure as Speaker of the House. He BENJAMIN HARRISON but he presided over this body for 8 avoided impeachment proceedings Indianapolis Republican Benjamin years as Vice President from 1913 until largely because the scandal was not re- Harrison, who would become our 23d 1921. He was the first Vice President to vealed until his Vice Presidential term President, also had the good fortune to serve two full terms since Daniel was about to expire. gain experience in the Senate. He Tompkins had done so under James THOMAS HENDRICKS served in this body from 1881 until 1887. Monroe. Thomas Hendricks, a Democrat and During that time he chaired the Com- During his time of presiding over the lawyer from Shelbyville, IN, became mittee on Territories and was a strong Senate, Marshall gained a reputation the second Hoosier Vice President, and advocate for protecting and expanding for his dry Hoosier wit. After listening the first to serve a previous term in the the pensions of Civil War veterans. to a long speech by Senator Joseph Senate. He was elected by the Indiana Harrison was turned out of his Senate Bristow of Kansas on the needs of the Legislature in 1863 to the term that seat after only one term by a newly country, Marshall remarked in a voice could have been the expelled Jesse elected Democratic State legislature. audible to many in the Chamber: Bright’s fourth. In the Senate, Hen- Nevertheless, Harrison retained his ‘‘What this country needs is a really dricks was a sharp critic of President national prominence and defeated good five-cent cigar.’’ This line was Lincoln. He voted for appropriations to President Cleveland in the 1888 Presi- widely reported in newspapers and be- pay for troops, weapons, and supplies, dential election, despite losing the pop- came his most famous utterance. Mar- but he opposed the Emancipation Proc- ular vote. Harrison’s narrow victory in shall would frequently poke fun at his lamation, the draft, and the 13th, 14th, New York brought him that State’s 36 own role as Vice President. He told a and 15th amendments. Hendricks lost electoral votes and a 233 to 168 triumph story of two brothers: ‘‘One ran away his seat after just one term when the in the electoral college. to sea; the other was elected Vice Indiana Legislature fell into GOP As President, Harrison implemented President. And nothing was ever heard hands in 1869. much of his economic program, includ- In 1876, after a term as Governor, ing a high tariff. He signed the Sher- of either of them again.’’ Hendricks got his first shot at the Vice man Silver Purchase Act, while resist- Ironically, though Marshall was con- Presidency when he ran on the Demo- ing the far more inflationary proposal sidered a good Vice President, his most cratic ticket with ill-fated Presidential for free coinage of silver that was sup- notable action perhaps was something candidate Samuel J. Tilden. In the ported by Daniel Voorhees. In a re- that he did not do. After President Wil- most controversial Presidential elec- match of the 1888 election, Grover son suffered a stroke in October 1919, tion in American history, Tilden and Cleveland easily defeated Harrison, many leaders advised him to assume Hendricks seemingly had won the elec- who would return to his law practice in the Presidency while Wilson was inca- tion by a 203 to 166 count in the elec- Indianapolis. pacitated. At the time, however, there was no provision in the Constitution toral college and by 260,000 popular CHARLES FAIRBANKS votes. The Democrats were denied vic- Another Indianapolis Republican, governing this situation. Marshall re- tory, however, when Republicans dis- Charles Fairbanks, served in the Sen- fused to replace the President, fearing puted the results of voting in several ate before attaining the vice presi- that it would divide the country and Southern States. An election commis- dency. A close friend and staunch ally create a precedent that could be used sion that favored the Republicans ruled of President McKinley, Fairbanks’ Sen- mischievously against future presi- in favor of the GOP Presidential can- ate tenure ran from 1897 until 1905. dents. With the ratification of the 25th didate Rutherford B. Hayes. Fairbanks was under consideration for amendment in 1967, which was spon- Hendricks again was the Democratic the 1900 GOP Vice Presidential nomina- sored by Senator of Indi- Vice Presidential nominee in 1884. This tion, but he took his name out of con- ana, the Constitution provided a legal time he was successful, as the Demo- tention. He planned to run for Presi- procedure for dealing with the difficult cratic ticket headed by Grover Cleve- dent in 1904 when McKinley’s second situation of an incapacitated Presi- land came out on top for the first time term expired, and he believed that the dent. since before the Civil War. As Vice Senate offered a better position from THE NEW CENTURY President, Hendricks would preside which to seek the GOP Presidential Mr. President, just as Marshall’s de- over only a 1-month session of the Sen- nomination. After all, no Vice Presi- cision affected the future of the Vice ate before his death in November 1885. dent since had been Presidency, several Hoosier Senators Hendricks’ untimely death left the elected to succeed his President. deeply affected the operations and cus- country without a Vice President, This turned out to be a colossal mis- toms of the Senate during the early President pro tempore, or Speaker of calculation. In September 1901, Fair- 20th century.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00004 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4453 ALBERT BEVERIDGE Committee on Territories and a mem- as they so often do, on the Senate. One such Senator was Albert J. ber of the Foreign Relations Com- Democrats held just a 51 to 44 seat ma- Beveridge of Indianapolis. Beveridge mittee. jority. Up to that time Senate party began his service in March 1899 at the During his time in the Senate, caucuses had chosen their leader large- age of 36. He had never held a political Beveridge’s political philosophy trans- ly on the basis of seniority. In 1913, office prior to his election to the Sen- formed from the standard conservatism however, Democrats broke with this ate. He served two terms, gaining a of his party to progressivism. practice in an effort to make the most reputation for his energy and intel- Beveridge became a leader of the na- of their legislative opportunities. They ligence, as well as his ambition. tionwide progressive movement and decided that their caucus leader should Beveridge is the patron saint of worked to construct a foundation for be the Senator who would be the most freshman Senators seeking to resist progressive legislation such as the first effective legislative leader. the constraints of the Senate’s senior- National Child Labor Law, the Meat The man they chose by unanimous ity system. In his excellent collection Inspection Act, and the Pure Food and vote was John Kern, who had been of addresses on the history of the Sen- Drug Act. This shift toward progres- elected to the Senate 2 years before in ate, Senator of West Vir- sivism, however, weakened his support 1910. Thus a freshman, with just 2 years ginia offers an enlightening account of among Republicans and contributed to of Senate experience, was entrusted Beveridge’s vigorous, but largely un- his defeat for re-election to a third with shepherding one of the most ambi- successful efforts to secure desired term in 1910. tious legislative plans in American his- committee assignments as a freshman. On April 8, 1913, the 17th amendment tory through the Senate. Kern was no Beveridge ventured across the sea for was ratified, forever transforming the political neophyte. He was a respected a 6-month trip to the , nature of Senate elections. The amend- politician who had been the Demo- , and Japan after his election by ment transferred the power to choose cratic Vice Presidential nominee in the Indiana Legislature in January Senators from the State legislatures to 1908 on the ticket with William Jen- 1899. Upon returning to Indiana in Sep- popular elections. nings Bryan. tember of that year, he was praised in BENJAMIN SHIVELY Historians often regard Kern as the the press for investigating an impor- In Indiana, Senator Benjamin first modern majority leader, although tant issue firsthand. Up to this point, Shively’s election was at the heart of he did not formally have that title. Senators had rarely ventured overseas the debate over the amendment. In 1908 Kern established numerous precedents on factfinding trips. When he traveled as Democrat State legislators met to during his 4 years as the head of the to Washington, DC, later in the year choose their nominee, Shively was Democratic caucus. He conferred close- for the opening of the congressional matched against John W. Kern. Kern ly with the administration on its pro- session, he was summoned to the White was the favorite among the people of gram, frequently visiting Wilson at the House to brief President McKinley on Indiana, but Shively prevailed by two White House to discuss strategy. He de- his observations. votes in a secret ballot. Since the manded party unity and employed Believing that his experience in the Democrats controlled the State legisla- threats, compromises, and personal en- Philippines had made him the pre- ture, Shively was elected Senator. to achieve it. He established eminent expert on the newly acquired Given the closeness of the balloting, the post of Democratic whip to assist islands, Beveridge campaigned to be State legislators were asked by report- him in maintaining discipline. He also appointed chairman of the Senate ers and constituents to reveal their used the prerogative to grant com- Committee on the Philippines. He also votes. When informal tallies of the leg- mittee assignments as an enforcement sought a seat on ’s islators’ announced votes had Kern mechanism. In his 4 years as caucus powerful Foreign Relations Com- winning by as many as eight votes, it leader, Kern’s energy and organization mittee. Among other steps, Beveridge was clear that many State legislators failed only once to deliver Senate pas- visited Gov. Theodore Roosevelt in were lying about how they had voted. sage of a major Presidential legislative New York, who recommended him to This fueled public cynicism in Indiana initiative. This was Wilson’s ship pur- Lodge. But Beveridge would be granted with the method of electing Senators chase bill, that was blocked by a 1915 neither the Philippines chairmanship and helped build support in the State filibuster. nor a seat on Foreign Relations. Lodge for ratification of the 17th amendment. Despite Kern’s power in the Senate wrote back to Roosevelt explaining: In 1914, after the amendment had and his close relationship with Presi- ‘‘Beveridge is a very bright fellow, well been ratified, Shively demonstrated dent Wilson, he was defeated by Repub- informed and sound in his views. I like that he did have popular support. He lican Harry S. New in the 1916 election. him very much, but he arrived here became the first Indiana Senator to be New garnered 51 percent of the vote to with a very imperfect idea of the rights elected by popular vote, a distinction Kern’s 49 percent. Wilson won his re- of seniority in the Senate, and with a of which he was enormously proud. election bid but lost Indiana by an even large idea of what he ought to have.’’ Shively also became chairman of the narrower margin to Charles Evans Beveridge had to settle for an ordinary important Pensions Committee. Unfor- Hughes. seat on the Philippines Committee. tunately, he did not survive his second JAMES WATSON In March 1900, freshman Beveridge term, dying in 1916 after serving only a In 1929, another Hoosier was chosen again scandalized the Senate by deliv- year. to be majority leader. That year Sen- ering his second major floor speech just JOHN KERN ate Republicans elected, James Eli 3 months into his first session. For Shively’s rival in 1908, John Kern, Watson, who served as majority leader many of his senior colleagues, went on to place his own extraordinary during the 4 years of ’s Beveridge was flouting the unwritten mark on the Senate. He defeated Al- Presidency. Watson began his Senate Senate rules governing the behavior of bert Beveridge in the 1910 Senate elec- career when he was elected to complete new members. In response to this tion, the last Senate race held before the unexpired term of Senator Ben- transgression against his elders, ratification of the 17th amendment. jamin Shively in 1916. He was reelected Beveridge was the recipient the next But it was the 1912 election that in 1920 and 1926. day of a subtle but stinging parody of brought Kern to Senate prominence. Watson had been one of President his speech by Senator Edmund W. That election resulted in a sweeping Hoover’s major rivals for the GOP Pettus of Mississippi. According to a victory for the Democratic Party. With Presidential nomination in 1928. As a report in the per- Teddy Roosevelt’s Bull Moose can- result, they did not develop the close formance caused Senators to roar in didacy splitting Republicans, Woodrow working relationship that had existed laughter at the expense of Beveridge. Wilson rolled to victory. Democrats between Wilson and Kern. As Repub- Beveridge survived and learned from strengthened an already huge majority lican leader, Watson’s primary tactic his hazing. Though still boisterous and in the House, and seized control of the was to build majorities through careful aggressive for a freshman, he focused Senate for the first time in 18 years. compromises. Like Kern, Watson’s sta- his attention on committee work, The majority party’s prospects for tus in the Senate did not insulate him eventually becoming chairman of the enacting its legislative program rested, from electoral defeat back home. He

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4454 CONGRESSIONAL RECORD — SENATE May 1, 1996 lost his quest for a fourth Senate elec- in 1816. Noble’s horseback journeys to Charles Fairbanks—Mar. 4, 1897–Mar. 3, tion victory when he was turned out of Washington, DC, are said to have taken 1905. office by the national Democratic land- him about 17 days. Today we can travel Albert Beveridge—Mar. 4, 1899–Mar. 3, 1911. slide of 1932. James Hemenway—Mar. 4, 1905–Mar. 3, to Indiana in less than 2 hours. Indi- 1909. ana’s population has grown from about Benjamin Shively—Mar. 4, 1909–Mar. 14, Like John Kern, Sherman Minton 150,000 in 1820 to almost 6 million peo- 1916. played a prominent role in the Senate, ple today. John Kern—Mar. 4, 1911–Mar. 3, 1917. despite serving only one term. Elected As our world has become more com- —Mar. 20, 1916–Nov. 7, 1916. as a Democrat in 1934, Minton was an plex, so has our job here in the Senate. James Watson—Nov. 8, 1916–Mar. 3, 1933. ardent New Dealer and loyal Senate We have more constituents, more Harry New—Mar. 4, 1917–Mar. 3, 1923. Samuel Ralston—Mar. 4, 1923–Oct. 14, 1925. ally of President Franklin Roosevelt. Members, more issues, more bills, more Arthur Robinson—Oct. 20, 1925–Jan. 2, 1935. In January 1937 Majority Leader Jo- staff, and more floor votes than our Fredrick Van Nuys—Mar. 4, 1933–Jan. 25, seph T. Robinson named Minton to the early predecessors could likely have 1944. new position of assistant Democratic imagined. The 7 most recent Hoosier Sherman Minton—Jan. 3, 1935–Jan. 2, 1941. whip. Minton, who was an aggressive Senators have cast more floor votes Raymond Willis—Jan. 3, 1941–Jan. 2, 1947. legislator, relished this responsibility. than the previous 36 Hoosier Senators Samuel Jackson—Jan. 28, 1944–Nov. 13, 1944. Two years later, Minton was promoted combined. The second session of the William Jenner—Nov. 14, 1944–Jan. 2, 1945. to majority whip. 14th Congress—the 1st in which Indiana Homer Capehart—Jan. 3, 1945–Jan. 2, 1963. Minton had the bad luck of running was represented —lasted just 92 days. William Jenner—Jan. 3, 1947–Jan. 2, 1959. for reelection in 1940. That year his Re- Today the Senate is in session almost Vance Hartke—Jan. 3, 1959–Jan. 2, 1977. publican opponent, Raymond Willis of year round. Birch Bayh—Jan. 3, 1963–Jan. 2, 1981. Angola, IN, got a big boost from the But even as this body has grown and —Jan. 3, 1977– presence of Hoosier favorite son Wen- —Jan. 3, 1981–Jan. 2, 1989. developed, the fundamentals of being a Daniel Coats—Jan. 3, 1989– dell Willkie at the top of the ticket. good legislator have always remained Indiana Senators: Length of Service Minton’s support for the 1940 Selective the same. Down through history, this 1. Richard Lugar—19 Years 4 Months— Service Act and other defense prepara- has been an institution that has de- (1977– ) tions also cost him votes. Willis de- pended on honesty, civility, hard work, 2. Daniel Voorhees—19 Years 4 Months— feated Minton by a narrow 25,000-vote thoughtfulness, an understanding of (1877–1897) margin. the people we represent, and a willing- 3–5. Homer Capehart—18 Years—(1945–1963) During his career in public service, 3–5. Vance Hartke—18 Years—(1959–1977) ness to stand on conviction. When 3–5. Birch Bayh—18 Years—(1963–1981) Minton had the distinction of serving these elements have been present, the 6. Jesse Bright—16 Years 11 Months—(1845– in all three branches of the Federal Senate has succeeded. 1862) Government. After Minton’s Senate de- Mr. President, I would encourage 7. James Watson—16 Years 4 Months— feat, Roosevelt brought him to the each of my colleagues, if they have not (1916–1933) White House as an administrative as- done so, to explore the service of their 8. James Noble—14 Years 2 Months—(1816– sistant to the President. Roosevelt Senatorial ancestors from their own 1831) used him primarily as his liaison with 9. William Jenner—12 Years 2 Months— States. Inevitably they will find both (1944–45; 1947–59) Congress. triumphs and tragedies; heroic acts and 10. —12 Years 2 Months—(1863; In May 1941, however, Roosevelt ap- embarrassing mistakes. But as I have 1887–99) pointed Minton to the Seventh Circuit surveyed the unbroken line that 11–12. William Hendricks—12 Years—(1825– U.S. Court of Appeals. He served there stretches from Waller Taylor and 1837) until President Harry Truman ap- James Noble to Senator and 11–12. Albert Beveridge—12 Years—(1899– pointed him to the Supreme Court in myself, I have gained an even stronger 1911) 13. Fredrick Van Nuys—10 Years 11 1949. Minton spent 7 years on the High appreciation of the character of my Court until illness forced his retire- Months—(1933–1944) State and the performance of the U.S. 14. Oliver Morton—10 Years 8 Months— ment in 1956. A number of former Sen- Senate. (1867–1877) ators have served on the Supreme Mr. President, I ask unanimous con- 15. Arthur Robinson—9 Years 2 Months— Court during its history, including sent to have printed in the RECORD two (1925–1935) James Francis Byrnes and Hugo Black. tables relating to Indiana Senators. 16. Waller Taylor—8 Years 3 Months—(1816– Since Minton’s appointment in 1949, There being no objection, the mate- 1825) however, no former Senator has been rial was ordered to be printed in the 17–18. Charles Fairbanks—8 Years—(1897– appointed to the High Court. 1905) RECORD, as follows: 17–18. Dan Quayle—8 Years—(1981–1989) MODERN ERA INDIANA SENATORS: DATES OF SERVICE 19. Daniel Coats—7 Years 4 Months—(1989– Since the end of World War II, seven James Noble—Dec. 11, 1816–Feb. 26, 1831. ) individuals have been elected to the Waller Taylor—Dec. 11, 1816–Mar. 3, 1825. 20. John Tipton—7 Years 2 Months—(1832– Senate by the people of Indiana. Sev- William Hendricks—Mar. 4, 1825–Mar. 3, 1839) eral of my colleagues served in Con- 1837. 21. Benjamin Shively—7 Years—(1909–1916) gress with William Jenner and Homer Robert Hanna—Aug. 19, 1831–Jan. 3, 1832. 22–23. Oliver Smith—6 Years—(1837–1843) Capehart, two Republicans whose ca- John Tipton—Jan. 4, 1832–Mar. 3, 1839. 22–33. Albert White—6 Years—(1839–1845) Oliver Smith—Mar. 4, 1837–Mar. 3, 1843. 22–33. Edward Hannegan—6 Years—(1843– reers significantly impacted my early Albert White—Mar. 4, 1839–Mar. 3, 1845. 1849) political development in Indiana. And, Edward Hannegan—Mar. 4, 1843–Mar. 3, 22–33. Henry Lane—6 Years—(1861–1867) of course, many of my colleagues had 1849. 22–33. Thomas Hendricks—6 Years—(1863– close and productive associations with Jesse Bright—Mar. 4, 1845–Feb. 5, 1862. 1869) the three distinguished former Hoosier —Mar. 4, 1849–Oct. 4, 1852. 22–33. Daniel Pratt—6 Years—(1869–1875) Senators who often visit with us: Birch Charles Cathcart—Nov. 23, 1852–Jan. 11, 22–33. Joseph McDonald—6 Years—(1875– Bayh, Vance Hartke, and Dan Quayle. 1853. 1881) Hopefully, those of us who have —Jan. 11, 1853–Mar. 3, 1855. 22–33. Benjamin Harrison—6 Years—(1881– Graham Fitch—Feb. 4, 1857–Mar. 3, 1861. 1887) served Indiana in the Senate during re- Henry Lane—Mar. 4, 1861–Mar. 3, 1867. 22–33. John Kern—6 Years—(1911–1917) cent years have upheld the tradition of Joseph Wright—Feb. 24, 1862–Jan. 14, 1863. 22–33. Harry New—6 Years—(1917–1923) achievement established by our Hoo- David Turpie—Jan. 14, 1863–Mar. 3, 1863. 22–33. Sherman Minton—6 Years—(1935– sier predecessors. It may be premature Thomas Hendricks—Mar. 4, 1863–Mar. 3, 1941) to make historical judgments on the 1869. 22–33. Raymond Willis—6 Years—(1941–1947) most recent seven Hoosier Senators, Oliver Morton—Mar. 4, 1867–Nov. 1, 1877. 34. Graham Fitch—4 Years 1 Month—(1857– and I will resist the temptation to do Daniel Pratt—Mar. 4, 1869–Mar. 3, 1875. 1861) Joseph McDonald—Mar. 4, 1875–Mar. 3, 1881. 35. James Hemenway—4 Years—(1905–1909) so. Daniel Voorhees—Nov. 6, 1877–Mar. 3, 1897. 36. James Whitcomb—3 Years 7 Months— Our Nation and our world have Benjamin Harrison—Mar. 4, 1881–Mar. 3, (1849–1852) changed profoundly since James Noble 1887. 37. Samuel Ralston—2 Years 7 Months— and Waller Taylor came to the Senate David Turpie—Mar. 4, 1887–Mar. 3, 1899. (1923–1925)

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00006 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4455 38. John Pettit—2 Years 2 Months—(1853– In Indiana, we are proud of DICK Reid amendment No. 3865 (to amendment 1855) LUGAR and his leadership. Both in the No. 3743), to authorize asylum or refugee sta- 39. Joseph Wright—11 Months—(1862–1863) Senate and on the campaign trail, he tus, or the withholding of deportation, for 40. Samuel Jackson—10 Months—(1944) has consistently raised issues our Na- individuals who have been threatened with 41. Thomas Taggart—7 Months—(1916) an act of female genital mutilation. tion cannot afford to ignore. His 42. Robert Hanna—4 Months—(1831–1832) The PRESIDING OFFICER. The Sen- 43. Charles Cathcart—2 Months—(1852–1853) thoughtful and skillful approach to policy has made our Nation safer and ator from Wyoming. f America’s influence in the world more Mr. SIMPSON. Mr. President, I SENATOR RICHARD LUGAR—A secure. thank my colleagues. I thank the rank- MAN OF CHARACTER We are proud of his long record of ac- ing member, Senator . I think complishments: fighting for freedom in we are in a position, now, to perhaps Mr. DOLE. Mr. President, Henry the Philippines, enhancing the world’s conclude this measure, at least on the Clay, one of the most eloquent men to nuclear security, working for American so-called Simpson amendment, today. serve in the U.S. Senate, once said, ‘‘Of farmers. We had some 156 amendments pro- all the properties which belong to hon- But DICK LUGAR brings more to the posed a day ago. We are down to about orable men, not one is so highly prized Senate than his skills as a legislator. 30 today. Some are known in the trade as character.’’ His politics are informed by character. as place holders—pot holders or what- I know I speak for my colleagues on DICK LUGAR understands that values ever might be appropriate, some of both sides of the aisle in saying that count and that principle is worth de- them. Nevertheless we will proceed Senator RICHARD LUGAR is truly a man fending. He represents the bet of Hoo- today. The debate will take its most of character. And I join today in salut- sier values—honesty, integrity, deter- important turn, and that is the issue of ing Senator LUGAR as he becomes the mination. verification; that is the issue of the longest serving Senator in Indiana his- On behalf of the people of Indiana, I birth certificate and the driver’s li- tory. thank RICHARD LUGAR for his service to cense, changes that were made yester- Today marks Senator LUGAR’s 7,059th our State and to our Nation. It is my day and adopted unanimously by voice day in this Chamber. They have been privilege to serve with them in the U.S. vote in this Chamber. We will deal with days spent making a difference in near- Senate. that issue. ly every issue that has come before f But one thing has to be clearly said this body, including agriculture, trade, because I am absolutely startled at the budget, foreign policy, and nuclear CONCLUSION OF MORNING some of the misinformation that one security. BUSINESS hears in the well from the proponents As chairman of the Foreign Relations The PRESIDING OFFICER. Is there and opponents of various aspects of im- Committee, Senator LUGAR played a further morning business? If not, morn- migration reform. It was said yester- key role in bringing freedom to the ing business is closed. day, by a colleague unnamed because I Philippines. And as chairman of the f have the greatest respect for this per- Agriculture Committee, he produced son, that tomorrow to be prepared to IMMIGRATION CONTROL AND FI- legislation which will bring freedom to be sure that we do not put any burden NANCIAL RESPONSIBILITY ACT America’s farmers. on employers by making employers ask OF 1996 DICK LUGAR’s service to his State and an employee for documents. his country are not limited to the time The PRESIDING OFFICER. Under That has been on the books since he has served in the Senate. the previous order, the Senate will now 1986. I could not believe my ears. Some- It was Naval Officer LUGAR who pre- resume consideration of S. 1664, which one else was listening to it with great pared intelligence briefings for the the clerk will report. attention. I hope we at least are be- Chief of Naval Operations and Presi- The legislative clerk read as follows: yond that point. Today the American dent Eisenhower. A bill (S. 1664) to amend the Immigration employer has to ask their employee, It was Mayor LUGAR who led the city and Nationality Act to increase control over the person seeking a job, new hire, for of Indianapolis for 8 years, earning a immigration to the United States by increas- documentation. There are 29 docu- ing border patrol and investigative personnel reputation as one of the Nation’s most ments to establish either worker au- innovative and successful mayors. and detention facilities, improving the sys- tem used by employers to verify citizenship thorization or identification. And then, And it is husband and father DICK or work-authorized alien status, increasing also, an I–9 form which has been re- LUGAR who stands as a role model for penalties for alien smuggling and document quired since that date, too. In other countless young Americans. fraud, and reforming asylum, exclusion, and words, yes, you do have to furnish a Mr. President, over the last few deportation law and procedures; to reduce document to an employer, a one-page years, Senator LUGAR has asked sum- the use of welfare by aliens; and for other form indicating that you are a citizen mer interns in his Washington office to purposes. of the United States of America or au- research an Indiana Senator of their The Senate resumed consideration of thorized to work. That has been on the choice. the bill. books, now, for nearly 10 years. If we I am confident that in decades yet to Pending: cannot get any further in the debate come, when young Indiana students re- Dole (for Simpson) amendment No. 3743, of than that, then someone is seriously search those who have served their a perfecting nature. distorting a national issue. Not only State, they will conclude that not only Simpson amendment No. 3853 (to amend- ment No. 3743), relating to pilot projects on that, but someone is feeding them did RICHARD LUGAR set a standard in systems to verify eligibility for employment enough to see that it remains dis- terms of longevity, he also set a stand- in the United States and to verify immigra- torted. ard in terms of integrity. tion status for purposes of eligibility for pub- So when we are going to hear the ar- f lic assistance or certain other government gument the employer should not be the benefits. watchdog of the world, what this bill COMMENDING SENATOR RICHARD Simpson amendment No. 3854 (to amend- does is take the heat off of the em- LUGAR ment No. 3743), to define ‘‘regional project’’ to mean a project conducted in an area ployer. Instead of digging around Mr. COATS. Mr. President, I rise to which includes more than a single locality through 29 documents they are going congratulate my friend and colleague, but which is smaller than an entire State. to have to look at 6. If the pilot pro- Senator RICHARD LUGAR, on his re- Simon amendment No. 3810 (to amendment gram works, and we find it is doing markable achievement and extraor- No. 3743), to exempt from deeming require- well, and is authentic and accurate, dinary service to the people of Indiana. ments immigrants who are disabled after en- then the I–9 form is not going to be re- He has had the privilege of rep- tering the United States. quired. That is part of this. Feinstein/Boxer amendment No. 3777 (to resenting Hoosiers in the U.S. Senate amendment No. 3743, to provide funds for the Then yesterday you took the real longer than any other Senator in Indi- construction and expansion of physical bar- burden off of the employer, and I think ana history. His tenure has been distin- riers and improvements to roads in the bor- it was a very apt move. We said, now, guished and well deserved. der area near San Diego, California. that if the employers are in good faith

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4456 CONGRESSIONAL RECORD — SENATE May 1, 1996 in asking for documents and so on, and anything else but improving that proc- Mr. FEINGOLD. Thank you, Mr. have no intention to discriminate, that ess in the system is really a distortion President. they are not going to be heavily fined, of what is in the bill and a distortion of or receive other penalties. That was a what is intended by the proposal before f great advantage to the employer. the Senate. So I will welcome the op- CAMPAIGN FINANCE REFORM So I hope the staffs, if there are any portunity to join with my colleague on watching this procedure, do not simply this issue. Mr. FEINGOLD. Mr. President, just load the cannon for their principal, as It has been mentioned, as we are briefly, before we go back on to the im- we are called by our staff—and other awaiting our friend and colleague from portant business at hand, the immigra- things we are called by our staff—prin- Vermont, who is going to present an tion bill, I just want to call to the at- cipals, that they load the cannon not amendment, that what we have now is tention of the body an article today in to come over here and tell us what is really the first important and signifi- entitled ‘‘Cam- going to happen to employers having to cant effort to try to deal with these paign Finance Proposal Drawing Oppo- ask for identity, having to prove the breeder documents, moving through sition From Diverse Group.’’ Mr. Presi- person in front of them is a citizen or the birth certificate, hopefully on tam- dent, I ask unanimous consent that authorized to work, unless you want to per-proof paper. Hopefully that will that article be printed in the RECORD. get rid of employer sanctions and get begin a long process of helping and as- There being no objection, the article rid of the I–9. Those things have been sisting develop a system that will move was ordered to be printed in the on the books for almost 10 years. us as much as we possibly can toward a RECORD, as follows: With that, I hope that is a starting counterfeit-free system, not only in [From the Washington Post, May 1, 1996] point we take judicial notice thereof. terms of the cards but also in terms of CAMPAIGN FINANCE PROPOSAL DRAWING The PRESIDING OFFICER. The Sen- the information that is going to be put OPPOSITION FROM DIVERSE GROUP ator from Massachusetts. on those cards. (By Ruth Marcus) Mr. KENNEDY. Mr. President, my We hear many of our colleagues talk An unusual alliance of unions, businesses, friend and colleague has stated abso- about: Let us just get the cards out and liberal and conservative groups is trying lutely accurately what the current there. But unless you are going to be to defeat campaign finance legislation that state of the law is. For those who have serious about looking at the backup, would abolish political action committees questions about it, all they have to do you are not really going to be serious and impose other restrictions on election is look at the Immigration and Nation- about developing a system. That is spending. ality Act, section 274, that spells out what this legislation does. It goes back The informal coalition, which met for the to the roots, to try to develop the au- second time yesterday, includes groups that the requirements of employment in the usually find themselves on opposite sides of United States. I will not take the time thoritative and definitive birth certifi- legislative and ideological battles: unions in- to go through that at this particular cate and to ensure the paper and other cluding the AFL–CIO, National Education moment, but for those who doubt or possible opportunities for counter- Association and National Association of Let- question any of the points the Senator feiting will be effectively eliminated, ter Carriers, and the National Association of has made, it is spelled out very clearly or reduced dramatically. Then the de- Business Political Action Committees in section 274(a). velopment of these tamperproof cards; (NABPAC), which represents 120 business and That is why we have the I–9 list, then the other provisions which are in- trade association PACs. Also among the 30 organizations at the which is the list, A, B, and C. This is cluded in here, and that is the pilot programs to try to find out how we can meeting were conservative groups such as the part of the problem which we hope the Cato Institute, Conservative Caucus and will be remedied with the Simpson pro- move toward greater truth in Americans for Tax Reform; liberal groups posal, and that is there will be just the verification that the person who is pre- such as EMILY’s List, the women’s political six cards. You have list A, you can senting it is really the person it has action committee; and others, including U.S. show one of these items, because under been issued to, and other matters. But Term Limits, the National Women’s Polit- the law you have to have identity and that is really the heart of this pro- ical Caucus, the National Association of employment eligibility. You can have gram. Broadcasters and the American Dental Asso- Frankly, if we cut away at any of ciation. one of the 10 items on A. Or you can those, then I think we seriously under- Yesterday’s meeting, at AFL–CIO head- have an item listed on B and an item mine an important opportunity to quarters here, was organized by Curtis Gans listed on C, in order to conform with of the Committee for the Study of the Amer- make meaningful progress on the the current law. As has been pointed ican Electorate, a nonpartisan organization whole issue of limiting the illegal im- that studies . Gans opposes the out both in the hearings as well as in migration flow. As we all know, the the consideration and the presentation campaign finance proposal pending in Con- magnet is jobs. As long as that magnet gress. of this legislation, and the consider- is out there, there is going to be a very ‘‘The unifying principle is essentially that ation of the Judiciary Committee, the substantial flow, in spite of what I the approaches that have been pushed by result is that there is so much mischief think are the beefed-up efforts of the Common Cause and Public Citizen are wrong that is created with the reproduction border patrol and other steps which . . . and their answers to the problems are and counterfeit of these particular have been taken. wrong,’’ Gans said, referring to two of the cards that they have become almost Mr. President, I suggest the absence leading groups pushing the campaign finance meaningless as a standard by which an legislation. of a quorum. He said the groups that met yesterday employer is able to make a judgment The PRESIDING OFFICER (Mr. were ‘‘unanimous’’ about the need to do as to the legitimacy of the applicant in DEWINE). The clerk will call the roll. ‘‘public education’’ activities to counter a order to ensure that Americans are The assistant legislative clerk pro- debate that Gans said ‘‘has essentially been going to get the jobs. Also it makes ceeded to call the roll. dominated by the Common Cause position.’’ complex the problems of discrimina- Mr. LEAHY. Mr. President, I ask But the diverse assemblage was unable even tion, which we talked about yesterday. unanimous consent that the order for to agree to Gans’s draft joint statement It is to address this issue that other the quorum call be rescinded. about the issue. provisions in the Simpson proposal— The PRESIDING OFFICER. Without Common Cause president Ann McBride said the six cards have been developed as objection, it is so ordered. the meeting showed ‘‘labor and business . . . Mr. LEAHY. Mr. President, I under- coming together and agreeing on the one have other procedures which have been stand the distinguished Senator from thing that they can agree on, which is main- outlined. But if there is any question Wisconsin has asked for time in morn- taining the status quo and their ability to in the minds of any of our colleagues, ing business. I will yield for that pur- use money to buy outcomes on Capitol Hill.’’ The meeting reflects a stepped-up effort by there is the requirement at the present pose. time, specified in law, to show various Mr. FEINGOLD. Mr. President, I ask foes of the proposal. NABPAC has launched a print and radio advertising campaign here documents as a condition of employ- unanimous consent to speak as in ment. That exists, as the Senator said, and in districts of members who support the morning business for 5 minutes. bill. The ads target individual lawmakers by today. And any representation that we The PRESIDING OFFICER. Without name. are somehow, or this bill somehow is objection, it is so ordered. The Senator ‘‘Legislation sponsored by Rep. David altering that or changing that or doing is recognized. Minge . . . will make it harder for average

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4457 Americans to contribute to campaigns and cans for Tax Reform, EMILY’s List— AMENDMENT NO. 3780 TO AMENDMENT NO. 3743 to run for office,’’ said a newspaper ad that you name it—National Association of (Purpose: To provide minimum safeguards in ran in the Minnesota Democrat’s district. Broadcasters, the American Dental As- expedited exclusion procedure to prevent ‘‘The next time you see Rep. David Minge sociation. This was a gathering of all returning bona fide refugees to their perse- ask him this simple question: Why do you cutors) want more millionaires in Congress?’’ the special interests in Washington, NABPAC also is encouraging its members even before we have had the bill come Mr. LEAHY. Mr. President, I send an to cut off contributions to lawmakers who up, saying, ‘‘Let’s kill it before it has a amendment to the desk. support the bill, and last month sent a chance to live.’’ The PRESIDING OFFICER. The memorandum to members of Congress en- The reason it gives me heart, Mr. clerk will report. closing copies of its ads. ‘‘The plans are to President, really, there are two rea- The legislative clerk read as follows: aggressively market this in other appro- sons. First of all, if this bill is not The Senator from Vermont [Mr. LEAHY], priate areas of the country,’’ NABPAC exec- for himself, Mr. DEWINE, Mr. HATFIELD, and utive vice president Steven F. Stockmeyer going anywhere, what are they worried about? Why are they coming together, Mr. KERRY, proposes an amendment num- said in the memo. bered 3780 to amendment No. 3743. Three sponsors of the campaign finance as they so infrequently do, to kill a bill in the House, Reps. Christopher Shays piece of legislation that is the first bi- Mr. LEAHY. Mr. President, I ask (R-Conn.), Martin T. Meehan (D-Mass.) and partisan effort in 10 years in this body unanimous consent reading of the Linda A. Smith (R-Wash.), fired back at to try to do something about the out- amendment be dispensed with. NABPAC in a letter to its members last rageous amount of money that is spent The PRESIDING OFFICER. Without week, calling the memorandum a ‘‘thinly on campaigns and the outrageous influ- objection, it is so ordered. veiled threat to keep members from co-spon- The amendment is as follows: soring’’ the legislation. ence that this community, Wash- ‘‘[I]ntimidating members into staying off ington, has on the entire political proc- Strike sections 131 and 132. of the bill by either subtly or blatantly ess in this country? Strike section 141 and insert the following: threatening to withhold campaign contribu- I recall when I ran for the U.S. Sen- SEC. 141. SPECIAL EXCLUSION IN EXTRAOR- tions is disgraceful and justifies why our leg- ate, I might talk to somebody from the DINARY MIGRATION SITUATIONS. islation is needed,’’ they wrote. ‘‘Frankly, labor community or to an independent (a) IN GENERAL.—The Immigration and Na- these efforts simply inspire us further to try banker, and they would say, ‘‘Gee, we tionality Act is amended by adding after sec- to end the system of checkbook lobbying in think you are a pretty good candidate, tion 236 (8 U.S.C. 1226) the following new sec- Washington.’’ tion: But Shays said yesterday that ‘‘some but first I have to check with Wash- ‘‘SPECIAL EXCLUSION IN EXTRAORDINARY members are [scared] because they don’t ington to see if I can support you.’’ MIGRATION SITUATIONS want to be the enemy of these groups.’’ A That is how the current system works. Common Cause study released last week You have to check in with Washington ‘‘SEC. 236A. (a) IN GENERAL.— found that NABPAC members gave $106 mil- ‘‘(1) Notwithstanding the provisions of sec- first. I think that gives way too much tions 235(b) and 236, and subject to sub- lion to current members of Congress from power to this town and way too much 1985 to 1995. section (c), if the Attorney General deter- In addition to abolishing PACs, the cam- power to these special interests that mines that the numbers or circumstances of paign finance bill, sponsored in the Senate want to kill campaign finance reform aliens en route to or arriving in the United by Sens. John McCain (R-Ariz.), Russell in this Congress. States, by land, sea, or air, present an ex- Feingold (D-Wis.) and Fred D. Thompson (R- It gives me heart that there is con- traordinary migration situation, the Attor- Tenn.), would set voluntary state-by-state cern. It also gives me heart that they ney General may, without referral to a spe- spending limits and, for those who agree to are drawing attention to the fact. In cial inquiry officer, order the exclusion and deportation of any alien who is found to be the limits, require television stations to fact, this article is eloquent testimony offer 30 minutes of free time in evening hours excludable under section 212(a) (6)(C) or (7). and cut rates for other advertising before to what is really going on in this coun- ‘‘(2) As used in this section, the term ‘ex- primary and general elections. try. There is too much money in this traordinary migration situation’ means the Critics contend that abolishing PACs town; there is too much money in these arrival or imminent arrival in the United would diminish the ability of average citi- elections. What they are trying to do, States or its territorial waters of aliens who zens to join together to have their voices Ann McBride of Common Cause pointed by their numbers or circumstances substan- head and would increase the influence of out, is to preserve the status quo, the tially exceed the capacity of the inspection wealthy citizens. meeting of labor and business coming and examination of such aliens. ‘‘(3) Subject to paragraph (4), the deter- Mr. FEINGOLD. Mr. President, what together and agreeing on the one thing this article is about is a reaction to the mination whether there exists an extraor- they can agree on, which is maintain- dinary migration situation within the mean- effort that Senator MCCAIN and I and ing the status quo and their ability to ing of paragraphs (1) and (2) is committed to others have been preparing to try to use money to buy outcomes on Capitol the sole and exclusive discretion of the At- change our Nation’s campaign financ- Hill. torney General. ing system. There are those who have What our bipartisan effort is about is ‘‘(4) The provisions of this subsection may indicated that the effort will go no- returning the power back to the people be invoked under paragraph (1) for a period where because it is already too late in in their own home States, to let them not to exceed 90 days, unless within such 90- day period or extension thereof, the Attor- the 104th Congress, and that it is just have more influence over elections going to go the way of all other cam- ney General determines, after consultation than the special interests that run this with the Committees on the Judiciary of the paign finance reform efforts in the town. We will join this issue on the Senate and the House of Representatives, past. floor, and we will fight these special in- that an extraordinary migration situation Frankly, Mr. President, this article terests head on, regardless of their new continues to warrant such procedures re- gives me heart. It is eloquent testi- coalitions. maining in effect for an additional 90-day pe- mony to the reason why we have got to Mr. President, I simply indicate we riod. have campaign finance reform in this are prepared, as I did a couple of days ‘‘(5) No alien may be ordered specially ex- country and why we need it now. What ago along with other Senators, we are cluded under paragraph (1) if— ‘‘(A) such alien is eligible to seek asylum happened yesterday was, according to prepared to offer this as an amendment the article, an unusual alliance of under section 208; and to a bill in the near future, or if the ‘‘(B) the Attorney General determines, in unions, businesses, and liberal-conserv- leadership sees it this way, to bring the procedure described in subsection (b), ative groups trying to defeat campaign this up as separate legislation. The that such alien has a credible fear of persecu- finance legislation that would abolish time is drawing near for campaign fi- tion on account of race, religion, nation- political action committees and other nance reform. ality, membership in a particular social restrictions on election spending, got I thank the Chair. I yield the floor. group or political opinion in the country of such person’s nationality, or in the case of a together, all together, to try to kill the f McCain-Feingold bill. It included person having no nationality, the country in groups such as the AFL–CIO, the NEA, IMMIGRATION CONTROL AND FI- which such person last habitually resided. ‘‘(6) A special exclusion order entered in National Association of Letter Car- NANCIAL RESPONSIBILITY ACT OF 1996 accordance with the provisions of this sec- riers, the National Association of Busi- tion is not subject to administrative review ness Political Action Committees, Cato The Senate continued with consider- other than as provided in this section, except Institute, Conservative Caucus, Ameri- ation of the bill. that the Attorney General shall provide by

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regulation for a prompt administrative re- AND OTHER DEPRIVATIONS OF HUMAN sarily restricted the present rights of per- view of such an order against an applicant RIGHTS.—Notwithstanding any other provi- sons seeking asylum in this country to es- who claims under oath, or as permitted sion of this section, the Attorney General cape political or religious persecution in under penalty of perjury under section 1746 may, in the Attorney General’s discretion, their own countries. Such persons used to of title 28, United States Code, after having proceed in accordance with section 236 with get a hearing before an immigration judge. been warned of the penalties for falsely mak- regard to any alien fleeing from a country Now they can be sent home without a hear- ing such claim under such conditions, to where— ing or judicial review. Lawmakers should re- have been, and appears to have been, law- ‘‘(1) the government (or a group within the store procedural protections for asylum- fully admitted for permanent residence. country that the government is unable or seekers. ‘‘(7) A special exclusion order entered in unwilling to control) engages in— Then the Washington Post, in an- accordance with the provisions of this sec- ‘‘(A) torture or other cruel, inhuman, or other editorial today, speaks of the degrading treatment or punishment; tion shall have the same effect as if the alien antiterrorism law being revisited and had been ordered excluded and deported pur- ‘‘(B) prolonged arbitrary detention without suant to section 236. charges or trial; says, again, that this amendment ‘‘(8) Nothing in this subsection shall be ‘‘(C) abduction, forced disappearance or should be supported. construed as requiring an inquiry before a clandestine detention; or I ask unanimous consent to have special inquiry officer in the case of an alien ‘‘(D) systematic persecution; or printed in the RECORD those two edi- crewman. ‘‘(2) an ongoing armed conflict or other ex- torials. ‘‘(b) PROCEDURE FOR USING SPECIAL EXCLU- traordinary conditions would pose a serious There being no objection, the mate- SION.—(1) When the Attorney General has de- threat to the alien’s personal safety.’’. rial was ordered to be printed in the termined pursuant to this section that an ex- (b) CONFORMING AMENDMENTS.—(1)(A) Sec- RECORD, as follows: traordinary migration situation exists and tion 235(b) of the Immigration and Nation- an alien subject to special exclusion under ality Act (8 U.S.C. 1225b) is amended to read [From the Washington Times, Apr. 30, 1996] such section has indicated a desire to apply as follows: IMMIGRANTS AND OTHER ORDINARY PEOPLE for asylum or withholding of deportation ‘‘(b) Every alien (other than an alien crew- The story goes that Texas Sen. Phil under section 243(h) or has indicated a fear of man), and except as otherwise provided in Gramm was attending a National Republican persecution upon return, the immigration of- subsection (c) of this section and in section Senatorial Committee meeting with political ficer shall refer the matter to an asylum offi- 273(d), who may not appear to the examining supporters a few years ago when a woman cer. officer at the port of arrival to be clearly and rose and asked an awkward question. ‘‘Sen. ‘‘(2) Such asylum officer shall interview beyond a doubt entitled to land shall be de- Gramm,’’ she said, ‘‘why do all the people the alien to determine whether the alien has tained for further inquiry to be conducted by here talk funny?’’ As it happened, about 80 a credible fear of persecution (or of return to a special inquiry officer. The decision of the percent of those supporters were first-gen- persecution) in or from the country of such examining immigration officer, if favorable eration Americans—immigrants—and Mr. alien’s nationality, or in the case of a person to the admission of any alien, shall be sub- Gramm says you could hear the collective having no nationality, the country in which ject to challenge by any other immigration gulp from the room about 100 miles away. such alien last habitually resided. officer and such challenge shall operate to His answer? ‘‘Ma’am, ’cause this is Amer- ‘‘(3) The Attorney General shall provide in- take the alien, whose privilege to land is so ica.’’ formation concerning the procedures de- challenged, before a special inquiry officer.’’. He elaborated on that answer in memo- scribed in this section to any alien who is (B) Section 237(a) of the Immigration and rable remarks to the Senate last week. ‘‘If subject to such provisions. The alien may Nationality Act (8 U.S.C. 1227a) is amended— we ever get to the point where we do not consult with or be represented by a person or (i) in the second sentence of paragraph (1), have a few citizens who talk funny, if we persons of the alien’s choosing according to by striking ‘‘Subject to section 235(b)(1), de- ever get to the point where we do not have a regulations prescribed by the Attorney Gen- portation’’ and inserting ‘‘Deportation’’; and new infusion of energy and a new spark to eral. Such consultation and representation (ii) in the first sentence of paragraph (2), the American dream, then the American shall be at no expense to the Government by striking ‘‘Subject to section (b)(1), if’’ and dream is going to start to die. It is not going and shall not unreasonably delay the proc- inserting ‘‘If’’. to fade, and it is not going to die on my ess. (2)(A) Section 106 of the Immigration and ‘‘(4) The application for asylum or with- watch in the U.S. Senate.’’ Nationality Act (8 U.S.C. 1105a) is amended— No doubt in part because of his emotional holding of deportation of an alien who has (i) by striking subsection (e); and speech, the Senate last week defeated legis- been determined under the procedure de- (ii) by amending the section heading to scribed in paragraph (2) to have a credible lation that would have effectively limited read as follows: ‘‘JUDICIAL REVIEW OF ORDERS fear of persecution shall be determined in immigration. But the chamber is not done OF DEPORTATION AND EXCLUSION’’. with this issue. If you want to see just how due course by a special inquiry officer during (B) Section 235(d) (8 U.S.C. 1225d) is re- a hearing on the exclusion of such alien. far some lawmakers would go to restrict peo- pealed. ple who, as Mr. Gramm puts it, talk funny, ‘‘(5) If the officer determines that the alien (C) The item relating to section 106 in the does not have a credible fear of persecution then consider some of the immigration legis- table of contents of the Immigration and Na- lation up for a vote as early as this week. in (or of return to persecution from) the tionality Act is amended to read as follows: country or countries referred to in paragraph Perhaps the most controversial issue in- ‘‘106. Judicial review of orders of deportation (2), the alien may be specially excluded and volves so-called demonstration projects in- and exclusion.’’. deported in accordance with this section. tended to test the use of verification systems ‘‘(6) The Attorney General shall provide by (3) Section 241(d) (8 U.S.C. 1251d) is re- for workers in this country. The idea is that regulation for a single level of administra- pealed. if the government could just figure out how tive appellate review of a special exclusion In section 142, strike the new section 106(f) to keep illegal immigrants from working order entered in accordance with the provi- of the Immigration and Nationality Act (8 then fewer would come here in the first sions of this section. U.S.C. 1105f). place. Presto, no more illegal immigration. ‘‘(7) As used in this section, the term ‘asy- Strike section 193. This editorial page has said from the be- lum officer’ means an immigration officer On page 178, line 8, strike ‘‘and subject to ginning of this debate that it sees nothing who— subsection (b),’’. wrong with a person’s coming here to work. ‘‘(A) has had extensive professional train- Strike section 198(b). As the quotable Mr. Gramm put the matter ing in country conditions, asylum law, and Mr. LEAHY. Mr. President, this the other day, ‘‘We have room in America for interview techniques; amendment is offered on behalf of my- people who come with their sleeves rolled up, ‘‘(B) has had at least one year of experi- self, the distinguished Presiding Offi- ready to go to work. But we do not have ence adjudicating affirmative asylum appli- cer, the distinguished senior Senator room for people who come with their hand cations of aliens who are not in special ex- out.’’ Exactly right. from Oregon [Mr. HATFIELD], and the Laying the groundwork for a national clusion proceedings; and distinguished Senator from Massachu- ‘‘(C) is supervised by an officer who meets identification system, as the demonstration the qualifications described in subpara- setts [Mr. KERRY]. projects do, sets a terrible precedent. What graphs (A) and (B). I offer this amendment to the provi- has this country come to that it would re- ‘‘(8) As used in this section, the term ‘cred- sions in the bill that I believe gut our quire aspiring workers to get permission ible fear of persecution’ means that, in light asylum law. This is not just my opin- from the government before they can roll up of statements and evidence produced by the ion but is the opinion of at editorial their sleeves and get to work? Work is not an alien in support of the alien’s claim, and of boards from newspapers that normally entitlement to be disbursed by the politi- such other facts as are known to the officer do not agree with each other. cally powerful for the benefit of the politi- about country conditions, a claim by the Let me first refer to the editorial in cally favored. Nor is it something to be alien that the alien is eligible for asylum trusted to some distant federal worker. under section 208 would not be manifestly The Washington Times yesterday. It Even if one assumes the government can unfounded. says: manage a national ID system, how is it going ‘‘(c) ALIENS FLEEING ONGOING ARMED CON- In their rush to pass an anti-terrorism bill, to match the ID with the worker? With fin- FLICT, TORTURE, SYSTEMATIC PERSECUTION, lawmakers perhaps unwillingly and unneces- gerprints? With blood and tissue samples?

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4459 That’s the sort of treatment ordinarily re- picions need to be proved. It should surprise country, maybe two or three coun- served for criminals, not mere workers. no one that persecuted people might not be tries—and then make it to the United There’s one other thing to keep in mind able to apply for passports in their own States. when senators take up immigration reform. countries, or might have to use a false name Under the immigration law that is In their rush to pass an anti-terrorism bill, to get out. And a two-hour layover in Ger- lawmakers perhaps unwittingly and unneces- many or France on a long flight to freedom before us, once they got here, because sarily restricted the present rights of per- shouldn’t disqualify an applicant for asylum. they used false passports and went sons seeking asylum in this country to es- Sen. Leahy’s effort, which has the backing of through other countries, they are prob- cape political or religious persecution in the people charged with enforcing the immi- ably going to be summarily sent back. their own countries. Such persons used to gration laws, should be supported. Summarily being sent back is in an get a hearing before an immigration judge. Mr. LEAHY. Now, we should be clear equal amount of time to the summary Now they can be sent home without a hear- what the provisions of the bill do and execution or imprisonment that they ing or judicial review. Lawmakers should re- face when they arrive back in their store procedural protections for asylum- what they and our amendment do not seekers. concern. These are not provisions that home country. There’s room here for workers. There’s cover alien terrorists. It is safe to say Now, let us be realistic. The Justice room here for people who genuinely need that there is not a single Member of Department does not want these provi- asylum. ‘‘America is not a great and power- this body who wants to allow alien ter- sions and has not requested them. They ful country because the most brilliant and rorists into our midst. That is not a were not recommended by the Jordan talented people in the world came to live partisan issue; every single Member of Commission. The Department has told here,’’ said Mr. Gramm. ‘‘America is a great this body is against terrorists. We can us that they want a type of standby au- and powerful country because it was here thority in case of immigration emer- that ordinary people like you and me have accept that as a point of fact. had more opportunity and more freedom There are a number of other provi- gency, similar to what I have proposed than any other people who have ever lived on sions in the antiterrorism law that the in this amendment. the face of the Earth. And with that oppor- President signed last week that cover Think of some of the history of this tunity and with that freedom, ordinary peo- the exclusion of those affiliated with country. Fidel Castro’s daughter came ple like us have been able to do extraor- foreign terrorist organizations. They to this country and was granted asy- dinary things.’’ forbid the grant of asylum to alien ter- lum, for appropriate reasons, and, of rorists. course, with great political fanfare. [From the Washington Post, May 1, 1996] We are not seeking to defend alien But Fidel Castro’s daughter did not fly THE TERRORISM LAW REVISITED smuggling or false documentation used directly to the United States with a Think back about 10 days to the for that purpose. That is already a passport bearing her name. She took a celebratory pictures of the president signing crime. Senators DEWINE, HATFIELD, false passport, she went to Spain, and the terrorism bill. That measure, deeply KERRY, and I totally agree on that. then came here. Under this new law, we flawed by provisions restricting habeas cor- pus, allowing the use of secret evidence at But we know that there are some cir- would likely have said, ‘‘Sorry, you are deportation proceedings and providing for cumstances and there are some oppres- out.’’ summary exclusion of asylum-seekers, was sive regimes in the world from which The most recent and famous example hailed as a vital bulwark protecting Ameri- escape may well entail the use of false of why we must not adopt the summary cans against international terrorists. In the papers. We want to make sure that we exclusion provisions of this bill is, of rush to pass that legislation by April 19, the do not create barriers to true refugees course, the case of Fauziya Kasinga first anniversary of the Oklahoma City and those deserving asylum, and pre- and her flight from Togo to avoid fe- bombing, scant attention was paid to Sen. vent them from making an application male genital mutilation. We first , who pointed out some of these flaws. But this week, when the for asylum. talked about that case here in the Sen- Vermont Democrat seeks to use the pending Let me give an example, using first a ate a couple of weeks ago. immigration bill to repeal one of them, the hypothetical and then go to some real There have been two extremely posi- administration is on his side. examples. You are in a country with an tive developments since then. First, Every year, thousands of individuals arrive oppressive regime. You are in a coun- the INS filed a brief with the Board of in this country seeking asylum from perse- try where you are being persecuted for Immigration Appeals, arguing—I be- cution. Until recently, this process was sub- your religious beliefs or your political lieve for the first time—that the fear of ject to a lot of abuse. Claimants were admit- beliefs. In fact, you may even face female genital mutilation should ted, given a work permit and released with death for your religious beliefs or your the understanding that they would show up present a sufficient cause to seek asy- some time in the distant future (there were belief in democracy. You know that the lum in the United States. terrible backlogs then) for a hearing. Most of arm of that government is out to get I do not think there should have been them simply disappeared into the general you. These are not cases of just para- any question about this. If there is any population and were never heard from again. noia; they may already have gone and doubt, we should amend this bill or law But the Immigration and Naturalization killed members of your family for simi- without hesitation to ensure that Service (INS) instituted reforms early in lar beliefs. You look at the one great flight from such practices are covered 1994—streamlining procedures, withholding beacon of freedom: the United States of by our asylum policies, as the Senator work permits and keeping many claimants America. You figure, ‘‘How do I get from Nevada [Mr. REID] has already in custody until their hearings—which have reduced the problem substantially. The sys- there?’’ suggested. tem now in place works well, and both the Now, you are facing the possibility of Second, last Thursday, April 25, after Justice Department and the INS say there is a death penalty for your religious be- more than a year in detention under no need for change. liefs. Do you think you could walk conditions that subjected her to unnec- But in the rush ‘‘to combat terrorism’’ down to the government that is out to essary hardship, Ms. Kasinga was fi- Congress passed, and the president signed, kill you for those religious beliefs and nally released by INS to await deter- new restrictions that create a presumption say, ‘‘Could I please have a passport? mination by the Board on her asylum that anyone seeking asylum who enters with Here is my name and address. And, by application. false documents, or has traveled through other countries to get here, does not have a the way, I want to book passage, I want Her case was first reported on the valid claim. In these cases, the claimant a visa and I want to go directly to the front page of the April 15 New York would have to make his case to an immigra- United States.’’ Times by Celia Dugger. Both she and tion officer on site, without any guarantee We all know what would happen in a her newspaper deserve a great deal of that he can be represented by a lawyer or case like that. The realty of the situa- credit for bringing this to our atten- even have an interpreter. If he does not per- tion is that people in those cir- tion. suade this official, he can be returned to his cumstances are probably going to get a Ms. Kasinga has sought for 2 years to own country summarily without further forged or a false passport. They are not find sanctuary in this country, only to hearing before an immigration judge or re- going to go on a flight that will go di- be detained, tear-gassed, beaten, iso- view by the Board of Immigration Appeals. It is fair to suspect anyone who enters the rectly to the United States because lated and abused. country with a false passport, or who has left that is something the government may Well, now we all realize how bad this a place of safety in Western Europe, for ex- be watching. They are going to go to is. It is something that should outrage ample, to ask for asylum here. But sus- another country—maybe a neighboring men and women alike. I believe it does

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4460 CONGRESSIONAL RECORD — SENATE May 1, 1996 outrage men and women in this coun- not be allowed to appeal—and review by the and other’s should see the threat to victims try. courts will be barred. They will be sent back of persecution and to our tradition of law. Unfortunately, one thing has not at once to the land where they face persecu- Mr. LEAHY. Mr. President, I have an changed yet, that is the provision I am tion. editorial by the New York Times, enti- This extraordinary change in our law is seeking to amend in this bill. The pro- tled, ‘‘Not So Harsh on Refugees.’’ I part of the counter-terrorism bill awaiting ask unanimous consent that it be visions in the bill would still sum- President Clinton’s signature. It is not di- printed in the RECORD. marily exclude Ms. Kasinga, and others rected at terrorists. It applies to anyone There being no objection, the article like her, from ever making an asylum seeking asylum who arrives here with false claim. She traveled through Germany documents or none—the situation of many was ordered to be printed in the on a false British passport in order to people fleeing persecution. RECORD, as follows: escape mutilation in Togo. Under the The issue raised in Fauzlya Kasinga’s case, [From the New York Times, Apr. 22, 1996] female genital mutilation, is an important NOT SO HARSH ON REFUGEES bill before us, she would be subjected to one: Does that cruel practice come within summary exclusion at the border with- The ordeal of a young woman from Togo the grounds for asylum? But the new sum- who came to America to avoid the practice out judicial review. mary process of exclusion will affect many of female genital mutilation should give In fact, does anybody in this body be- more people seeking asylum for traditional members of Congress pause before they ap- lieve that an immigration officer at reasons: the man fleeing a Nigerian Govern- prove any further limitations on the rights her point of entry would, as a matter of ment that executed his political colleagues, of refugees seeking sanctuary in the United first impression, have agreed with her for example, or the Vietnamese who escaped States. As detailed last week by Celia claim that fear of female genital muti- from a re-education camp. Dugger of The Times, Fauziya Kasinga was The asylum provisions effectively impose detained for months before she obtained a lation was a proper ground to seek asy- the absurd presumption that anyone who lum? hearing, and she was strip-searched and held flees a country without proper papers is not with convicted criminals. Shamefully, the We should, instead, restore protec- a genuine refugee. By that test Fidel Cas- anti-terrorism bill just passed by Congress tions in our laws to protect her ability tro’s daughter was not a true refugee be- and immigration bills still pending could to get a fair opportunity to be heard. cause she fled with a false passport. subject many more refugees to similar treat- On April 19, Anthony Lewis wrote a Nor were Jews who fled the Nazis without ment. column for the New York Times that papers. Ms. Kasinga’s case involves female genital captured the essence of this issue. In Political refugees are not the only losers. mutilation, a common practice in some two The bill trashes the American tradition of his column, he notes, ‘‘The asylum pro- dozen African nations that involves cutting courts as the arbiters of law and guarantors off portions of a young woman’s genitals, visions effectively impose the absurd of freedom. I have seen a good deal of nas- often without anesthesia. presumption that anyone who flees a tiness in the work of Congress over the Ms. Kasinga fled Togo in 1994 to avoid mu- country without proper papers is not a years, but I do not remember such detailed tilation after losing her status as a member genuine refugee.’’ As Mr. Lewis puts it, and gratuitous cruelty. of a privileged family. Her determination to ‘‘Political asylum is one saving grace The bill gives virtually final authority to avoid the practice could have subjected her in a world of too much political bru- immigration officers at 300 ports of entry to to harsh treatment had she stayed, or if she this country. Each is directed to interview is forced to return home. She may have a tality. Why should Americans want to people seeking asylum and exclude them if reasonable claim for asylum on the basis of undermine the asylum concept?’’ In- he finds that they do not have ‘‘a credible membership in a social group vulnerable to deed. fear of persection.’’ That phrase is unknown persecution in her homeland. This is what has always distin- to international law. But when Ms. Kasinga landed at Newark guished the United States in our 200 The officer’s summary decision is subject Airport in December 1994, seeking asylum years of constitutional history—200 only to ‘‘Immediate review by a supervisory with a phony passport, she was immediately years as a Nation protecting democ- office at the port.’’ The bill prohibits further detained. Under the law, people who have credible claims for asylum and family mem- racy and individual freedoms and administrative review, and it says, ‘‘no court shall have jurisdiction’’ to review summary bers already living in the United States can rights more than any other country in denials of asylum or to hear any challenge to be released, pending a hearing. Ms. Kasinga existence. No wonder people seek asy- the new process. (Our present system for has a cousin in the Washington area, but she lum in the United States. No wonder handling asylum applications works effi- was kept in custody anyway. After being people facing religious persecution, or ciently, so there is no administrative need held for months at a detention political persecution, or physical perse- for change.) center, Ms. Kasinga was transferred to a cution, look to the United States, Stripping away the protection of the Pennsylvania prison and housed with con- knowing that we are the symbol of courts may be the most alarming feature of victed criminals. the legislation. It is reminiscent of the pe- Ms. Kasinga fared no better in court, where freedom. But that symbol would be tar- riod after the Civil War, when a Congress an immigration judge denied her claim. The nished if we were to close our doors. bent on punishing the South took away the Board of Immigration Appeals will hear her Mr. President, in Mr. Lewis’ column, jurisdiction of the Supreme Court to con- case in May. he wrote: ‘‘The Senate will in fact have sider cases that thought If some members of Congress had their another chance to consider the issue the Court would decide against their desires. way, Ms. Kasinga would have been returned when it takes up the immigration Political asylum is one saving grace in a to Togo long ago. Under an immigration bill passed by the House, but now held up in the bill.’’ world of too much political brutality. Why should Americans want to undermine the Senate, anyone attempting to enter the I ask unanimous consent that a copy country without proper documents would of Mr. Lewis’ column be printed in the asylum concept? And why should a bill sup- posedly aimed at terrorists be used as a vehi- only be entitled to a one-hour interview with RECORD. cle to keep the victims of official terrorism an asylum officer. Denial of an asylum claim There being no objection, the article from finding refuge? would be subject to review by a supervisor, was ordered to be printed in the Why should senators as decent as Orrin but not by any other administrative or judi- RECORD, as follows: Hatch, chairman of the Judiciary Com- cial body. These provisions, similar to ones in the anti-terrorism bill, would deny a fair [From the New York Times, Apr. 19, 1996] mittee, stand still for such harshness? The asylum restrictions originated in the House hearing to many asylum seekers. SLAMMING THE DOOR and were kept in the bill by conferees, so the The House immigration bill also calls for (By Anthony Lewis) Senate was presented with a fait accompli. A detention of any asylum seeker who is await- ing a hearing, even when a credible claim has BOSTON.—The case of 19–year–old Fauzlya motion by Senator Patrick Leahy to send Kasinga, who says she fled her native Togo the terrorism bill back to conference on that been presented. That could subject more to avoid the rite of female genital mutila- issue failed, 61 to 38. would-be refugees to the harsh treatment tion, has aroused much sympathy. She ar- President Clinton has been so eager for an suffered by Ms. Kasinga. Senator Patrick Leahy of Vermont plans rived at Newark Airport in 1994, told officials anti-terrorism bill that he is not likely to to offer an amendment that would not only she was using someone else’s passport, veto this one, over the asylum sections any override the harsh exclusion provisions in sought asylum, was turned down and has more than over the gutting of habeas corpus. the immigration bill but also supersede the been held in prison ever since. The Board of But he could call on Congress to reconsider same provisions in the anti-terrorism bill. Immigration Appeals will hear her appeal on the attack on political asylum. May 2. The Senate will in fact have another Congress should follow his lead. But in future we are not likely to know chance to consider the issue when it takes up Mr. LEAHY. It is hard to think of a about desperate people like Ms. Kasinga. If the immigration bill, which has in it a simi- time when you find the New York their pleas for asylum are turned down by a lar provision for summary exclusion of asy- Times, the Washington Post, and the low-level U.S. immigration officer, they will lum-seekers. On reflection, Senator Hatch Washington Times all agreeing on an

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4461 issue. But this is, as I said before, not not talking about female genital muti- Many of us saw this so dramatically an issue of political ideology, it is an lation, we are not talking about ter- in the ‘‘60 Minutes’’ presentation. We issue of simple justice. It is an issue rorism; we are talking about the immi- are going to talk about dramatic that reflect what is best in this coun- gration laws of the United States. The things, where the alien without the try, what is the best in us as Ameri- bill as it stands before you has section document said the magic words. The cans. 131, which is a new ground for exclu- magic words in any language, or their In fact, it would be hard to think of sion of aliens, for aliens using docu- own, is, ‘‘I want asylum. I want to a better example of how unworkable ments fraudulently. That would be claim asylum,’’ just as the smuggler this provision is—the one in the bill stricken by the Senator’s amendment. instructed him or her to say. You need that we seek to correct—than a woman There is a section 132 which is a limita- to know only one word when you are who joined me at a press conference tion on withholding of deportation re- there, ‘‘asylum.’’ The program of ‘‘60 yesterday. Two years ago, she fled lief for aliens excludable for using doc- Minutes’’ ended with the alien going Peru. She had been horribly treated uments fraudulently. There is a provi- forward out of the door of JFK, suit- and threatened by rebel guerrillas sion for summary exclusion. That case in hand with a rolling cart to dis- there. She came to this country with- would substitute a similar procedure appear into America probably never to out proper documents. She was able to for only situations which would be de- be heard from again because he is cer- convince an immigration judge after scribed as an extraordinary migration tainly going to tear up any notice to an opportunity for a fair hearing that situation and not for other cir- appear at some future time. she would suffer persecution if she re- cumstances of the bill. Mr. LEAHY. Mr. President, will the turned home. So, I speak against the amendment Senator yield? Yesterday, I asked her to tell about for these reasons. The committee’s bill Mr. SIMPSON. If I could finish my her experience. Less than two sen- provision, which is in the version we remarks, I would—I yield for a ques- are addressing now on the new ground tences into her story, as the memories tion. Yes. of exclusion relating to document of what she had put up with 2 years ago Mr. LEAHY. One question: Is it not fraud, on summary exclusion, and on played back, she broke down crying. under the new procedures, when they asylum applications, three things Her case has been very well-docu- ask for asylum, would they not be held there—new ground, summary exclu- mented. She was able to establish a in detention until a preliminary deter- sion, and asylum application by those basis for asylum. But now, 2 years mination has been made about false who have attempted to enter the U.S. documents? later, the memories are so strong that, with fraudulent documents—will great- emotionally, she was unable to talk Mr. SIMPSON. Mr. President, much ly reduce the ability of aliens to unlaw- of this is being relieved by the simple with us about it. fully enter this country and then re- Can you imagine if the provisions in procedure of detention facilities. When main here for years through use, or this bill had been the law and she got those detention facilities are avail- misuse, of various administrative and able—and we have provided signifi- to the border, and an INS officer said, judicial proceedings and appeals. It is ‘‘Quick, tell me why you should stay cantly more money for detention fa- almost what we would refer to as an cilities—we find that these things are here. What is going on? Why should overuse of due process. going to be glimmering in more cases. you stay here?’’ This woman, who was These people in the past—this is But I wanted to cite it indeed. unable to talk about it 2 years later what we are trying to correct—often Mr. President, I want to emphasize after having been granted asylum, receive more due process than a U.S. that the bill provides very clearly an what would she have done, how would citizen receives. For example, the pro- opportunity for every single person, she have established her case? The an- visions relating to asylum and with- every single person without docu- swer would have been, ‘‘Well, obvi- holding of deportation will help the ments, or with fraudulent documents— ously, you are not establishing the nec- United States deal promptly and fairly please hear this—fraudulent documents essary criteria. You did not come here with a very common scenario. Here is with a proper passport, so you are the scenario. For every example that or proper documents allow every per- going back. Come back when you get a touches our hearts—and this floor is son to seek asylum. A specially trained proper passport.’’ What would she have filled with stories that touch our asylum officer will hear his or her case. gone back to? hearts; we will hear many of them This is the key. I want my friend from Fortunately, instead of being sent today—for each one I get to tell an- Vermont to share with me in the de- back summarily to the hands of her other one. Here is a story that will not bate as we do this, which he will in abusers, she had a chance to be heard touch your heart. fairness. A specially trained asylum of- before a judge. A young person with no obligation to ficer will hear his or her case, and if Mr. President, I am sure there are family, or anything else, who has de- the alien is found to have a ‘‘credible others who wish to speak. I will have cided to take off from his country to fear of persecution,’’ he or she will be more to say about this. seek the promised land, and that is provided a full—full—asylum hearing. Mr. President, I withhold my time. us—here is the common scenario used However, if he or she does not have Mr. SIMPSON. Mr. President, there by those who would abuse the compas- such a credible claim, he or she will be is no one I enjoy and regard more high- sion of the American people. This is subject to the summary exclusion pro- ly than my friend from Vermont. He why the American people suffer com- cedures as will all persons who enter and I have, fortunately, been on the passion fatique. This is what gives rise without documents or with fraudulent same side of more issues than ever on to proposition 187’s. This is what gives documents. opposite sides. I find him a fast and rise to the continual polls saying 70 to There is discussion about persons not true friend whom I enjoy very, very 80 percent of these people should be ex- being permitted to apply for asylum if much. When he speaks, he speaks with cluded and so on—not excluded, but in- they do not travel directly from the genuine clarity and authenticity about deed that we should do something with country in which they allegedly have a something in which he deeply believes. both illegal and legal immigration. fear of persecution. This is always a Let me be so very clear here. We are, The scenario is this: The young per- difficult situation because we find peo- as the Senator from Vermont said, not son with no family, no spouse over ple who will leave the country where talking about an antiterrorism bill. there in the country they are leaving, they are being persecuted legitimately, There was an amendment on the no children, no parents perhaps, maybe or, if they are just simply using an in- antiterrorism bill which passed the an orphan, whatever—they board the appropriate way to get here, they will Senate by a vote of 61 to 38 which is, in plane with documents. Then they give go to one, or two, or three other coun- many cases, quite similar to this meas- them back to the smuggler on the tries all of which might be democ- ure. It had to do with exclusion and plane who is with them, or else flush racies, all of which would be free coun- summary proceedings. We are not them down the toilet of the aircraft. tries, all of which would be giving the speaking of that. What we are talking Some have eaten them. Then they precious refuge of a refugee or an about is the bill itself, and Senator come to the United States, and at the aslyee. The only difference between a LEAHY is intending to strike—we are U.S. port of entry they claim asylum. refugee and an aslyee is a refugee is

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4462 CONGRESSIONAL RECORD — SENATE May 1, 1996 over in the home country and an aslyee spection with fraudulent documents or In other words, we have a situation is here. They are absolutely the same. no documents and such individuals where Canada has found that the vic- But the term is used ‘‘aslyee’’ when have no grounds for being in the United tims end up being joined by the per- they are here, and ‘‘refugee’’ when they States of America except the possi- petrators. That fact suggests as well are there. bility of asylum. that we may be dealing here with a cul- So the United States cannot be ex- The bill’s summary exclusion proce- tural practice—and that is exactly pected to provide asylum. I am not dures provide a method for the Attor- what we are dealing with, ladies and talking about asylum. I am talking ney General to significantly reduce gentlemen, a cultural practice—and about people who are fleeing persecu- this problem while still giving aliens a perhaps not a practice of official gov- tion or have a well-founded fear of per- reasonable opportunity to seek asylum ernment-sanctioned persecution. This secution based on race, religion, na- or withholding of deportation because is going to be a real debate in the com- tional origin, or membership in a so- of a fear of persecution for race, reli- ing times because we in this body talk cial or political organization. That is gion or one of the statutory or continually about respect of other cul- an aslyee. That is a refugee. That is grounds. And subject to the credible tures—cultures of the native American the definition under the law of the fear asylum procedure I have already in my State, cultures of other ethnic United States of America and the described, an immigration officer can groups, cultures of Hispanic-Ameri- United Nations. We will always provide order an alien who has entered without cans, cultures of African-Americans. asylum. documents or with fraudulent docu- The best practice is not to create There are some great asylee-receiv- ments to be removed from the United some per se ground of asylum but do ing countries in the world. Two of States without bringing the alien be- just as we do in all asylum and refugee them have completely revised their fore the immigration judge or the determinations, and that is consider asylum laws because of the absolute Board of Immigration Appeals. Only each one of them on a case-by-case gimmickry that is taking place. One is limited judicial review would be avail- basis. That is what we must do. my native land, my original native able. It would be limited to a habeas So, again, we get into these situa- land, Holland, the most open country corpus proceeding devoted to no more tions by our remarkable strength and in the world, a country that gave sol- than three issues: our remarkable weakness, which is our ace and comfort to fleeing Jews 500 First, Whether the individual is an compassion, and then we get the blend years ago and to those fleeing Nazi alien or if he or she claims to be a U.S. of emotion, fear, guilt, and racism and Germany. They have now changed citizen; blend that in, and we do erratic things their asylum laws the same as we are Second, Whether the individual was in immigration reform, or we would doing in order to avoid gimmickry. The in fact specially excluded; not be doing what we are doing in these other country is Germany. After the Third, Whether the individual has last days. The reason this is so dif- war, the horror of the war, and the im- proven that he or she is a lawful per- ficult, you will be on one side or the print of the Nazis upon the German manent resident. other and you say: ‘‘How can we do people, who were appalled—I believe The court could order no relief other this? Why can’t we do this? How can this because I lived among them for 2 than the full exclusion hearings. this be? How did I vote this way? How years—appalled at the Nazi regime, Finally, let me conclude, at least for can I get out of this thicket? ’’ real Germans are appalled by that. this moment, and I hope we will con- The reason is, you are going to stay They realized that, because of what tinue toward a result here. We are right in it because this is about Amer- they had done during the war, they talking here of immigration, and cer- ica. It is about America, and America made the broadest, most extensive asy- tainly there has been a reference to fe- is a very complex place, thank God. We lum laws in the world because they had male genital mutilation. That is a very still have one thing that binds us, or to; people were watching them after serious issue. I certainly concur totally several—a common flag, a common the war. And being the most generous as to the horror of that, and who could language, and a public culture. When country, they have had now to simply not? Certainly any compassionate per- we break it all down into individual shut down the process because of gim- son could not. cultures, Balkanize these great States mickry. My colleague from Nevada, Senator that were fought so hard for in this So it is important to know that those , noted that Canada had Chamber to unite and to unite in the who come from a safe country where made female genital mutilation a great melting pot, we do a disservice. they could have obtained asylum—nor- ground of asylum 3 years ago and had We are about to pass what many in mally someone who is fleeing, I mean only two persons apply since that time. this body will describe as a tough ille- fleeing in terror of their lives, with the My information from the Canadian gal immigration bill, and it will be, dogs and the soldiers and the arms Embassy is a bit different, and I hope and it will pass, whatever form it is. coming at them—they stop where it is my colleagues will hear this. All of us Win or lose your amendments, forget safe to do so, not select or choose leav- admit that this is a hideous, barbaric it. It is an accomplishment that we ing one or more safe countries in order thing. I understand, first, that this mu- will proudly reflect to our constitu- to enter the United States or another tilation is not by itself grounds for a ents. But remember this: We take in country for which he or she has a per- grant of asylum. This is our Canadian more asylees than all the rest of the sonal preference. And the ultimate per- neighbors. But it is merely one of sev- countries on Earth, total. We take in sonal preference is always the United eral factors to be considered in deter- more refugees than all the rest of the States of America. mining whether the applicant qualifies countries on Earth, total. We take in Mr. President, I do want to point out, under the definition of a refugee. more immigrants than all the rest of however, that the Attorney General Second—I think we must hear this— the countries on Earth, total, period. will have the discretion to waive, under I understand that as victims of mutila- Finally—you have all heard that a my proposal, under extraordinary cir- tion have come to Canada, they have thousand times—and it is very impor- cumstances this requirement of direct brought their relatives along with tant to someone listening, wherever travel to the United States. them, or the relatives at least followed these words fall, this bill explicitly I wish to conclude by saying a few later. In any case, the result now has provides that this special exclusion words about the summary exclusion been that the practice of female gen- procedure does not apply if the alien procedure in general. The present sys- ital mutilation has become a growing has a credible fear of persecution on tem is vulnerable to mass migration legal and criminal problem in Canada. one of the required grounds—race, reli- and other extraordinary situations and It has now been imported into Canada, gion, membership in national organiza- to persons who exploit the numerous and one or more Provinces plan to tion, and so on. Therefore, nearly the levels of administrative and judicial re- make it a criminal offense. Police cur- entire argument of the Senator from view to stay in this country for years rently have to prosecute it under the Vermont, my friend, vests on the inad- even though they have surreptitiously assault statute, I say to my friend from equacy of the procedure provided in the entered or sought to enter this country Vermont, who has been a prosecutor, bill to determine whether an alien has or have presented themselves for in- as I have, on the lower levels. a credible fear of persecution—that is

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4463 the intent of the Senator from Attorney General to declare a special caped. His family’s possessions were Vermont, saying it is inadequate. migration situation of immigration seized by the Iraqis. Let me read the standard that would emergency. The amendment I offer Finally, in November 1994, he and his be used by the specially trained asylum today includes such provisions. mother, who had been hiding for close officers to determine whether an appli- Further, when we talk about the peo- to 3 years, used false documents to get cant for asylum has a credible fear of ple coming in with false passports flee- out and arrived in the United States. persecution and therefore should re- ing persecution, they do not get a hear- Most of us know what terrible treat- ceive a full—full—asylum hearing and ing under the bill. They get an inter- ment the Kurds have had at the hands not be subject to the special exclusion. view. They get an interview by who- of the Iraqis. But somehow the immi- I cite the language in section 193 on ever is there at the border, and they gration inspector at the airport did not page 173 of the bill, lines 6 through 14, can get kicked out right then and believe Alan and did not think that he saying: there. It is cruel, it is fundamentally had established a credible claim of per- As used in this section, the term ‘‘credible unfair to a traumatized and fatigued secution. So Alan was placed in deten- fear of persecution’’ means that (A) there is refugee, who would be allowed no as- tion, in prison, in the United States. A a substantial likelihood— sistance and no interpreter, to treat year later, without a translator to help ‘‘Substantial likelihood’’ that is, them so summarily. him, he was denied political asylum. that the statements made by the alien in The kind of screening process pro- After 16 months in detention, when support of the alien’s claim are true, and (B) vided in the bill will mean an invest- his true story came out, an immigra- there is a significant possibility in light of ment of enormous resources for a spe- tion judge finally granted him asylum. such statements and of country conditions— cial screening that we do not need. We Yesterday, he thanked the United Which will be determined by the would be requiring extra resources to States for finally listening to him and State Department, do an ineffectual job. letting him out. that the alien could establish eligibility as a In 1995, for example, after our asylum This is one of a number of examples refugee within the meaning of section processes were reformed, we had only of refugees who were initially ruled not 101(a)(42)(A). 3,287 asylum seekers who arrived with- to have satisfied a credible fear stand- That is what this bill provides. It is out valid documents. They could be ard but who after a hearing were able not some swift or harsh provision. And handled through the normal process. to prove a claim for asylum. this bill does not gut our asylum laws. They do not have to be bounced out fol- I know the Senator from Massachu- The bill’s provisions bring some sense lowing some truncated and confusing setts is seeking time. and effectiveness to our asylum laws. interview. As we have heard, these peo- Before I yield the floor, Mr. Presi- These are laws that have been effec- ple have faced such traumatic experi- dent, I ask for the yeas and nays on my tively gimmicked over the years be- ences. They are not likely to be pre- amendment. cause 400,000 backlogged asylum cases pared to respond when hit with that The PRESIDING OFFICER. Is there a can well attest to that. first, all important interview. sufficient second? As my friend from Vermont says, if a We reformed, in 1994 and 1995, our There is a sufficient second. person is fleeing for his life because of asylum processes. The Justice Depart- The yeas and nays were ordered. religious beliefs and must use forged ment can handle it very well under my Mr. LEAHY. Mr. President, I just papers and travel through several amendment. might ask the distinguished manager, countries to get here under the bill Do not confuse illegal immigrants am I correct in my understanding, as that person will be summarily sent with refugees. we offer these various amendments back—it is not so. If such a person ar- This bill would establish summary they will then be set aside for others so rives under the provisions of the bill he exclusion procedures for refugees seek- there will be a series of votes? Is that or she would get a hearing before a spe- ing to claim asylum. It would give low- correct? cially trained asylum officer. And if he level immigration officers unprece- Mr. SIMPSON. Mr. President, at or she had a credible fear of persecu- dented authority to deport refugees least this amendment and the next tion, and there was a substantial likeli- without allowing them a fair oppor- amendment of Senator ABRAHAM and hood the facts are true, as I have just tunity to establish valid claims. These Senator FEINGOLD will come up at a cited, he or she will be permitted to re- provisions should not even be in this time around the hour of 2 o’clock. We main in the United States and have a bill, if it is intended to focus on the will stack votes on these two, or others full asylum hearing when he or she is problems of illegal immigration. Refu- we might have problems on, including, prepared and ready, with counsel. gees who seek asylum in the United perhaps, that of Senator BRADLEY, who So, I yield at this time. States are not causing problems for is here. The PRESIDING OFFICER (Mr. America and Americans. They come to Mr. LEAHY. Mr. President, just be- THOMAS). The Senator from Vermont. us for refuge. They come to us for pro- fore that vote will we follow the usual Mr. LEAHY. Mr. President, I just tection. They come to us for what thing where each side has a minute or want to make sure my colleagues un- America promises in constitutional so? derstand the Senator from Wyoming freedoms and protections. We should Mr. SIMPSON. We will put that in and I have a longstanding friendship not turn them back, and turn our back the unanimous-consent request, that and affection and respect for each on them or destroy our country’s rep- there be 2 minutes equally divided. other, but we do look at this somewhat utation for protecting . Mr. LEAHY. I yield the floor. differently. Look at the Washington Times edi- The PRESIDING OFFICER. The Sen- To begin with, regarding the vote on torial, look at the Washington Post ator from Massachusetts. the anti-terrorism bill, while the issue editorial, look at the New York Times Mr. KENNEDY. Mr. President, I will may appear similar, the procedural sit- editorial. They express the feelings of just take a moment because the Sen- uation was much different. There my so many in this country. ator from Vermont has made the pres- motion would have required a recom- Think about a person who talked be- entation and made it exceedingly well, mitting of the whole conference report, fore a press conference here on Capitol which he did in our judiciary markup a great burden to overcome. Hill yesterday, Alan Baban, who was as well. As a matter of fact, I had a number held 16 months in detention. What I want to do is just take a mo- of Senators come up to me and say, He is a Kurdish national who had ment of the Senate’s time to describe ‘‘Why do you not do this on the immi- been in prison for over a year in Iraq. the conditions that we were facing a gration bill? We will have a lot easier He was tortured, both because of his number of years ago, and where we are time voting for you on the immigra- Kurdish nationality and his political on the issues of asylum today, because tion bill.’’ Well, God bless you all, you involvement with an organization com- I think it reaches the core of the Leahy will now have a chance to vote with me mitted to securing political freedom amendment. There is no question that, on the immigration bill. for Kurds. His body has the scars of as he outlined, there are people who In addition, that motion did not in- that ordeal. At one point in his cap- come here with a well-founded fear of clude the creation of authority for the tivity he bribed a guard and he es- persecution. They come here, few of

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4464 CONGRESSIONAL RECORD — SENATE May 1, 1996 them with papers, many of them with- viduals whose lives have been a strug- There being no objection, the article out any papers, for the obvious reasons gle, as we define them, to try to de- was ordered to be printed in the they are in terror and have been per- velop democratic institutions, demo- RECORD, as follows: secuted by the existing regime. That is cratic ideals, democratic values, demo- [From the Washington Post, May 1, 1996] an important group, but I will come cratic priorities in their countries so BARS JEWISH AGENCY—BAN COULD back to the numbers in just a moment. that their countries will move toward HAMPER IMMIGRATION TO But there is no question that large the kind of value system in the broad (By Barton Gellman) numbers of people came here request- terms of respect for democracy and in- JERUSALEM, April 30.—The Jewish Agency, ing asylum for one reason: they wanted dividual rights and freedoms are real a quasi-governmental body that has brought jobs. As Senator SIMPSON has correctly heroes in many, many instances. We 630,000 Jewish immigrants to Israel from the stated, the process and procedure was have recognized that over the long his- former since 1989, announced that people would come in and declare tory of this country. tonight that Russian authorities have re- they wanted asylum. The first thing So I think the amendment of the voked its accreditation and notified local ju- that happened was they got a green Senator from Vermont makes a great risdictions that the agency no longer is au- card, went out and got lost in society. thorized to function in Russia. deal of sense. I think the opposition, There was no clear indication of Russia’s There was very, very significant abuse quite frankly, is directed toward a con- intentions and no explanation from Moscow. of that whole process. But that has dition which no longer exists because But the potential stakes were seen in Israel changed dramatically in the last year. of the excellent work of the INS in ad- as high. By and large, we ought to be looking dressing it. Asylum claims declined 57 Russian immigration has changed the face at what the current condition is, not percent as productivity doubled in 1995. of Israel, adding nearly one-fifth to its Jew- what the conditions were 1 year ago, 2 That is in this last year. They are con- ish population and infusing the state with years ago, 3 years ago when we had all tinuing to make progress. one of the world’s most productive flows of human capital. Before the thaw that accom- the significant abuses in the asylum We ought to be sensitive to this issue system. The principal abuses for the panied the Soviet Union’s final days, the of individuals who have gone through Moscow government’s sharp restrictions on asylum system, as in the whole issue of the harshness and the brutality of emigration—and ill-treatment of Jewish ‘‘re- illegal immigration, were jobs. People these foreign regimes. We cannot pick fuseniks’’ who could not leave—were a major saw this as an opportunity to come to up the newspaper without being re- source of friction with the West. the United States, say ‘‘asylum,’’ get minded of them. In so many instances, An estimated 1.4 million Jews remain in that green card and then go to work. these individuals, who really do de- the former Soviet Union, 600,000 of them in Instead of running across the Rio Russia, and Israel had projected until now serve asylum, deserve to be able to re- that they would continue to make new Grande or trying to come on in across ceive that in our country, approxi- another border, that was one of the homes in Israel at last year’s rate of 65,000 mately 6,000. I have very serious fears for several years to come. Officials here have ways that they came in here. that that kind of sensitivity to the real observed no slowdown in Russia’s distribu- That whole spigot, in terms of the needs of individuals who have been tion of exit visas, and they do not foresee a jobs, has been closed down by the INS struggling for democratic ideals will return to Russia’s old bans on emigration because they no longer provide the not be as respected as it has been if we itself, but they said most Russian Jews could green card so that these people can go adopt the proposed recommendations. not readily leave without the practical and financial assistance of the Jewish Agency. out to work, and second, they are held Mr. SIMON addressed the Chair. in detention. Israeli officials said they were uncertain of We have to ask ourselves whether we The PRESIDING OFFICER. The Sen- the origins of the present impasse, and the are going to be satisfied with a coun- ator from Illinois. Russian ambassador here qualified it as a bu- reaucratic slipup. But Israelis voiced two selor, as well trained as they are, mak- Mr. SIMON. Mr. President, I also rise in support of the Leahy amendment. theories about what is happening. ing the final judgment about a well- One focused on the growing nationalist Senator SIMPSON is correct that for a founded fear of persecution. I can re- cast of a Russian election campaign that is member it was not long ago when we period, we went through this where threatening to unseat President Boris had a number of Soviet Jews who came people just memorized three or four Yeltsin. The second looked to bilateral ten- through Rome and were being evalu- words in the English language, ‘‘I seek sions and the bitterness of the new foreign ated as to whether they were real or asylum.’’ minister, Yevgeny Primakov, at Israeli refugees coming into the United When his bill was first introduced, I moves to keep Russia far from its desired role at the center of Middle East diplomacy. States. There were a series of coun- was inclined to believe some additional strengthening language was needed. A third explanation—mere misunder- selors out there. All had been trained, standing—prevailed at first when the Jewish all seeing these various refugees, re- But I was visited by the INS people. I Agency lost its legal accreditation on April fuseniks, people who had been per- have to say Commissioner Doris Meiss- 4, which effectively terminated its right to secuted in the Soviet Union. At the end ner just has made a terrific impression operate offices, hold meetings and stage of the day, one group let in 60 percent on all of us. She really knows her stuff, other activities in Russia. Agency officials and another group let in 20 percent. We is very conscientious, and is very able. treated it as a slipped formality and discour- had hearings on that. So you find di- This morning’s Washington Post has aged Israeli reporters from writing about the change. versity. a story, ‘‘Russia Bars Jewish Agency,’’ and the Russian Ambassador to Israel Other signs—including closure of the agen- What we are talking about are the cy’s Birobidjan and Makhachkale offices in limited numbers which we are faced said he thinks it was just a bureau- the Russian hinterland, a Justice Ministry with now. In 1994, we had 122,000 asy- cratic slipup. But then you get to the notice to local authorities about the loss of lum claims and we completed 60,000. In inside pages and read the story that accreditation and an increase in vandalism 1995, we had 126,000 claims and we com- out in the boondocks in Russia there directed at agency properties—began to con- pleted 53,000. We have seen this dra- are some anti-Jewish activities taking vince them otherwise as the month wore on. matic change that has taken place place. I hope it is just temporary and Avraham Burg, the agency’s chairman, de- isolated. cided to make public his protests after police with asylum claims—dramatic, dra- and local government officials descended on matic change. Out of the 53,000, there We do not know what is going to hap- a Jewish Agency gathering today in are approximately 6,000 that actually pen. I think that the Leahy amend- Pyatigorsk, an important regional emigra- receive asylum. Mr. President, 6,000 in ment is one that moves us in the right tion center in the northern Caucasus, and or- this country, 6,000 that are actually direction. I think the graph that Sen- dered the meeting to break up. Three Israeli granted asylum. ator KENNEDY has shown us shows fair- representatives of the agency were asked to These are individuals who have gone ly dramatic improvement in the situa- leave town. through not just the airplane ride tion. I hope the Leahy amendment will ‘‘If this is just a bureaucratic stupidity, I across and flushed their ID cards down be accepted. will be happy,’’ Burg said in an interview, ‘‘and if it is something else, we shall be the toilet or ate their ID cards, these Mr. President, I ask unanimous con- ready in the international arena with the are 6,000 people who have a well-found- sent to have printed in the RECORD the Jewish voice, Jewish pressure.’’ ed fear and have gone through the Washington Post article to which I re- ‘‘We are working in the former Soviet process. It seems to me that those indi- ferred. Union under two assumptions,’’ he added.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4465 ‘‘The first one is that the right of the an- Under the old system, people could get hearing on the matter beyond an ini- cient Jewish people to repatriation is a a work authorization simply by apply- tial 1-hour hearing from the bureaucrat given, and the second one is that the con- ing for asylum, and this, obviously, be- where the bureaucrat made the deci- stitutional, basic, elementary right of family came a magnet, even for those who had sion, ‘‘Send him home.’’ reunification is [Russia’s] passport to the free world. Without this you are not a West- absolutely no realistic claim for asy- Second example. A man from India— ern modern country.’’ lum. this is a true case—was imprisoned and Burg said he had summoned the Russian But the INS changed its rules in 1994, tortured by the Government because of ambassador to Israel, Alexander Bovin, for and it stopped automatically awarding his religious beliefs. His family’s home what became a sharp meeting last week. work permits to those filing for asy- was bombed. Fearing for his life, he Burg said the ambassador assured him that lum. Instead, it began to require an ad- fled to the United States, where INS the difficulty was merely technical. judication of the asylum claim before bureaucrats verbally abused him, and Neither Bovin nor any other Russian dip- it awarded work authorization. denied him food and water until the lomats here, nor officials in Moscow, could It also began resolving asylum claims be reached for comment tonight. next day. They said his fear was not Burg and Prime Minister Shimon Peres within 180 days. The results are very, credible. This case on judicial review agreed to take the position that there can be very significant. was changed. He was granted asylum. no link between the agency’s travails in Rus- According to the INS, in 1994, before Again, under the provisions of this bill, sia and any bilateral disputes between the the new rules were put in place, 123,000 without our amendment, this person Moscow and Jerusalem governments on the people claimed asylum. never would have gotten to the judicial grounds that it affects the human rights of In 1995 however, after the new rules review, would have been sent back by individual Jews and the broader interests of were established, only 53,000 people the determination made by the bureau- the world Jewish community. Foreign Min- even applied for asylum. That is a 57- crat. istry officials said tonight that they would percent decline in those people who play no role in protesting the change in Rus- Mr. President, I think that is too sian policy, and Burg planned to fly to New even apply for asylum, a 57-percent de- heavy a price to pay. I think it is very York Wednesday to confer with American crease in 1 year. clear that we do not need to change the Jewish leaders on possibly bringing pressure Also, the INS reports that it is now law in this area. to bear in Moscow. completing 84 percent of the new cases I think America, Mr. President, Alla Levy, chief of the Jewish Agency’s ef- within 60 days of filing, and 98 per- stands for something better than that. forts in the former Soviet Union and a 1970 cent—virtually all new cases—within We have historically held out the lamp immigrant, said today’s crackdown in 180 days of filing. That is why the ad- of freedom to the world. We are dif- Pyatigorsk was especially sensitive because ministration, the INS, say that they ferent than other countries. We have that city is one of 10 from which Russian Jews fly directly to Israel. did not need this provision. held out a lamp that is lit by the Several irritants trouble Israeli-Russian Second point, Mr. President. The flames of justice, not by bureaucracy. relations, and Primakov rebuffed a meeting most worthy cases for asylum would be Mr. President, I ask the Members of request last month from Foreign Minister excluded if we impose this new sum- the Senate, whether watching on TV or Ehud Barak. A specialist in the Arab world, mary exclusion procedure. Among sitting in the Chamber, think back to Primakov is seen as resenting the combined those excluded would be cases of vic- stories you have heard—we have all efforts of Israel and the United States to tims of politically motivated torture heard stories—about people who have squeeze Moscow out of its place as co-spon- and rape, the very people who are most fled persecution, and whether that was sor of regional peace talks. likely—most likely—to use false docu- Israel acknowledges, in addition, that it in Nazi Germany, or more recent exam- has been slow to transfer legal rights to Rus- ments to flee from the country of their ples. How often did that person who sia from the former Soviet Union’s valuable torture. These are the people who fled persecution have to have a forged land holdings in Jerusalem. Additional fric- would be hurt the most, frankly, by document? How often did that person tions arose at Israel’s treatment of Russian this summary exclusion. go to great pains to obtain a forged visitors at passport control points after po- Let us talk about these individuals. document to flee the country? How lice found evidence that Russian organized We have already heard about the young often did that person have to have an- crime had made inroads here. woman who was seen in the press the other country of immediate destina- Mr. DEWINE addressed the Chair. last few days from Togo. But let me tion before they ended up in the coun- The PRESIDING OFFICER. The Sen- use two other examples. These are real try that they wanted to end up in? How ator from Ohio. world cases. These are cases where, if many by necessity had to have that Mr. DEWINE. Mr. President, thank the law, as it is currently written in third country there? you very much. I rise today in strong this bill, if this change does in fact go Each one of us can remember these support of this amendment. Our into effect, these people never would stories. I remember, as a very young amendment would, in our view, greatly have gotten into this country. They boy, listening to a story told by a improve this section of the bill dealing would have been excluded by an INS friend of my father, who fled Nazi Ger- with asylum. Frankly, this section bureaucrat and sent back to their many. Although some of the details does need improvement. It really cre- country in that 1-hour determination have left me over the 40-some years ates a summary exclusion, a summary that we have talked about. since I heard this story, I can still re- exclusion that would keep out of Amer- A real example. First, a student in member parts of it, and how difficult it ica some of the worthiest of all asylum Sudan was beaten and given electric was and what great risks he took to get seekers. shocks by Government torturers for out of Nazi Germany, to get out of Nazi Further, it sets a legal standard that the crime of engaging in a peaceful Germany with documents that clearly is both unprecedented and excessive for protest against the Government. He es- were fake. I think we need to keep this people who are the most in need, for caped to the United States without a in mind, Mr. President, when we decide people who are truly fleeing persecu- passport. He was placed in detention what to do in regard to this amend- tion, and it puts what for some people because an INS bureaucrat concluded ment. is a life-or-death decision in the hands he did not have the credible fear of per- My friend from Wyoming talks about of the INS bureaucrats. secution standard that we have heard compassion fatigue. I understand that. As has been pointed out by my col- about. However, on judicial review, I get it. That is why, quite frankly, we leagues from Illinois and Massachu- this individual was granted asylum. have made changes. There are major setts, there really is not the problem So under the procedure that is con- changes in this bill. That is why the today that we may have seen 2, 3, 4 tained in the bill, under that proce- INS has made very, very significant years ago. Today, the asylum system dure, the new procedure that we are changes in the last several years to works pretty well, and we do not need trying to take out, under the new pro- speed up the process, to make sure that this change, we do not need this sum- cedure, it never would have gone be- they weed out these cases that do not mary exclusion. It is not worth the yond the INS bureaucrat. This student have merit. That system is working. price that we are going to pay. from Sudan would have been sent back But I would just say that as we look It is clear that several years ago, the to Sudan. There would have been no at this amendment, I would ask my asylum system was, in fact, broken. opportunity for this person to have a colleagues to keep this in mind, that in

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4466 CONGRESSIONAL RECORD — SENATE May 1, 1996 an immigration bill, more than in any Mr. SIMPSON. Mr. President, I ask country, we must address ourselves to other bill that we pass on the floor, unanimous consent that this amend- the root of that problem, which is the more than any other bill that we de- ment be set aside for a few moments so jobs. bate, we do define who we are as a Senator BRADLEY can go forward with In 1986 we started down the right country. I think we should be different. an amendment. I do not think it will track with the Immigration Reform I understand the argument that Hol- take a great deal of time. So if Senator Control Act, better known as the Simp- land does it one way or Germany does BRADLEY will go forward, and then Sen- son-Mazzoli Act. In that bill we en- it another way. That is fine. I under- ator HATCH could speak on this bill, acted, after considerable debate, em- stand the argument. But I think, quite and then I have a few more remarks on ployer sanctions which imposed civil frankly, we have to do it our way. We the pending amendment. I ask unani- penalties on employers of illegal aliens have to do it in a way that is con- mous consent that it be set aside at and criminal penalties for pattern or sistent with our tradition. One of the this time. practice violations. great traditions of this country is that The PRESIDING OFFICER. Without We put very tough teeth in the law— we have been a beacon of hope, and of objection, it is so ordered. up to a $10,000 fine, up to 3 years in jail. light, as would say. We Mr. BRADLEY addressed the Chair. Those provisions are strong and, if en- have been the country where people The PRESIDING OFFICER. The Sen- forced adequately, would deter the hir- could come to when they were per- ator from New Jersey. ing of illegal aliens. secuted. Mr. BRADLEY. Mr. President, I This bill makes important headway If you look at our history and our thank the distinguished chairman. in improving these laws. However, one immigration policy, our best days—our AMENDMENT NO. 3790 TO AMENDMENT NO. 3743 critical element is missing: These laws, best days—have been when we reached (Purpose: To establish an Office for the those that we passed in 1986, are not out and said, ‘‘Yes. We are this country Enforcement of Employer Sanctions) being adequately enforced. that is different.’’ The few times in our Mr. BRADLEY. Mr. President, I call I have heard many in the Chamber history when we have turned our back up amendment No. 3790. complain that employer sanction laws on people who are persecuted—and The PRESIDING OFFICER. The are not working and perhaps should be there are examples of this; the Nazi clerk will report. eliminated. I agree that they are not Germany situation, the few times we The assistant legislative clerk read working as well as they could be work- have done that—we have lived to regret as follows: ing, but the problem is not with the it. And we have been sorry for it. The Senator from New Jersey [Mr. BRAD- law. The problem is with the imple- So, yes, I understand compassion fa- mentation of the law. The INS’ ineffec- tigue. But we are, in a sense, in this LEY] proposes an amendment numbered 3790 to amendment No. 3743. tive implementation of these laws has bill defining who we are as a people and been noticed time and again by inde- redefining that. I think the amendment Mr. BRADLEY. Mr. President, I ask unanimous consent that further read- pendent observers, including the Jor- that has been offered by my friend dan Commission and the Office of the from Vermont is entirely consistent ing of the amendment be dispensed with. Inspector General. with that great tradition of this coun- For example, the Jordan Commission try. Thank you, Mr. President. I yield The PRESIDING OFFICER. Without objection, it is so ordered. found that employer sanctions are ac- the floor. corded a low priority by the INS. The Mr. JEFFORDS. Mr. President, I The amendment is as follows: INS’ own data bear that out. Between would like to express my strong sup- On page 47 of the amendment, strike line 1 1989 and 1995, the number of INS inves- port for the Leahy-DeWine amend- and all that follows through line 21 and in- tigations of employer sanction viola- ment, which preserves critical due sert the following: tions dropped by more than 50 percent. process rights for refugees arriving in SEC. . ENFORCEMENT OF EMPLOYER SANC- TIONS. Let me repeat that: From 1989 to the United States after fleeing persecu- (a) ESTABLISHMENT OF NEW OFFICE.—There 1995, the number of investigations by tion in their countries of origin. While shall be in the Immigration and Naturaliza- the INS of employer sanctions dropped the United States must control its bor- tion Service of the Department of Justice an by more than 50 percent. The GAO ders and ensure that its hospitality is Office for the Enforcement of Employer found that the number of agents as- never abused, it must also live up to its Sanctions (in this section referred to as the finest traditions as a land of freedom ‘‘Office’’). signed to the workplace enforcement and refuge for the oppressed. (b) FUNCTIONS.—The functions of the Office dropped more than half between 1989 Our country is built on the rule of established under subsection (a) shall be— and 1994. law, and must preserve and protect (1) to investigate and prosecute violations Overall, financial resources allocated that legacy for all. This amendment of section 274A(a) of the Immigration and to the enforcement of employer sanc- Nationality Act (8 U.S.C. 1324a(a)); and tions also has declined significantly. would ensure that those fleeing oppres- (2) to educate employers on the require- sion have a fair opportunity to present While the INS is now increasing the ments of the law and in other ways as nec- number of workplace agents and re- their cases and have them studied and essary to prevent employment discrimina- reviewed by appropriate officials. Many tion. sources directed toward the enforce- genuine refugees are forced to come to (c) AUTHORIZATION OF APPROPRIATIONS.— ment of employer sanctions, projec- the United States with false documents There are authorized to be appropriated to tions indicate that the INS will only and then apply for asylum. In fact, an the Attorney General $100,000,000 to carry employ, after these improvements are argument could be made that the more out the functions of the Office established made, only employ about 708 workplace under subsection (a). dangerous their situation, the more ur- agents in 1996. Mr. President, 708 gent it is that they come to apply for Mr. BRADLEY. Mr. President, this agents to cover a nation with 6.5 mil- asylum, and the more likely that they amendment is a second-degree amend- lion employers—this contrasts sharply will not have access to government ment to the one proposed by the distin- with the over 5,000 Border Patrol travel documents from the government guished Senator from Wyoming. The agents that the INS projects in 1996. which is persecuting them. It is just amendment will improve the Federal This disparity is notable given that these most needy people who will suffer Government’s ability to deter illegal according to the INS’ own estimates, most directly from the summary exclu- immigration by enhancing the enforce- their own estimates, about half of all sion measures which this amendment ment of our existing laws. In par- illegal immigrants do not cross the seeks to modify. ticular, this amendment would create a border illegally but overstay their With adoption of this amendment, separate office within the INS to en- visas. the United States will remain able to sure that our employer sanction laws Let me repeat that: Half of all illegal ensure that those with valid, deserving are effectively and fairly enforced. The immigrants in this country are not cases for asylum will continue to be fact is that employment is the single sneaking across the border in the mid- able to apply for asylum in the United most important enticement that brings dle of the night but they are people States. illegal immigrants to our shores. that come into this country on a visi- I urge my colleagues to support this If we want to address seriously the il- tor’s visa and overstay. They are peo- important amendment. legal immigration problem in this ple who come in on a visitor’s visa,

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4467 then get a job illegally. They are here accorded the priority that it deserves. As I understand it, this does not cre- in the workplace taking jobs away Of equal importance, the creation of a ate a new Justice Department agency from Americans. separate office within the INS will tell to enforce employer sanctions. It cre- The law says an employer who hires employers that the INS is now serious ates a new office within the INS. But an illegal immigrant who overstays on about enforcing the employer sanctions there is a funding level increase. That his visitor’s visa, for example, is sub- provision, that it has the budget and is correct. Originally, that was not so, ject to fine and possible imprisonment. the manpower to investigate and follow but it is so now, is that correct? Yet, nobody is going after these em- up leads on the worst violations of Mr. BRADLEY. Yes. ployers. There is not enough enforce- these laws. As well, it will send a Mr. SIMPSON. This provision would ment. strong message to the INS that it not disrupt the balance between em- Furthermore, the INS is failing to needs to improve its enforcement ac- ployer sanctions and antidiscrimina- conduct investigations effectively. tivities. tion. I will have to, if I may, set the Like the Jordan Commission’s report a I think it is also important to point amendment aside because several wish year earlier, a September 1995 inspec- out that this amendment does not add to speak on that amendment. I person- tor general audit found numerous prob- new sanctions or increase the burden ally do not have grave reservations lems with the INS conduct of its em- on employers. It does not add one sin- about it, but others do. ployer sanctions investigations. The gle form to the mountain of paperwork AMENDMENT NO. 3780 inspector general specifically found they must already fill out when they Mr. SIMPSON. I ask that the amend- that ‘‘the INS is sending a signal to the hire a new legal worker. It just asks ment be set aside and that we go back business community that it does not that existing law be adequately en- to the Leahy amendment, and then we take seriously its enforcement respon- forced. go to Senator ABRAHAM to lay down his sibilities in the area of employer sanc- Finally, and of equal importance, it amendment. tions.’’ Those are the words of the in- will require better education of em- The PRESIDING OFFICER. Is there spector general that the INS is not se- ployers to prevent discrimination. objection? riously pursuing employer sanctions. In short, this amendment goes to the Without objection, it is so ordered. The problem is more, however, than source of the illegal immigration prob- Mr. SIMPSON. Mr. President, let me numbers and authorizations. This bill lem in this country—the job magnet— just come to a little review of the provides much needed authorization for by improving our mechanism for seri- amendment of Senator LEAHY. The additional investigators available for ously working to eliminate that em- Senator from Vermont spoke of the the INS to use for employer sanctions. ployment magnet, with adequate en- alien who was so traumatized that he That is good. It does not go far enough forcement directed toward the prob- or she cannot speak about it at entry, because those investigators are not lem, with no excuses, and with results and so they would not be in a position required. necessarily going to be directed toward to immediately show a credible fear Mr. SIMPSON. Mr. President, I think employer sanction enforcement. and, thereby, attain a full asylum hear- my old friend, Senator BRADLEY from Moreover, these investigators are ing. New Jersey, has put his finger right likely to continue to be wasted on less The Senator certainly goes to the down on one of the most critical issues important and less effective enforce- hardest case. If the Senator’s amend- in dealing with the problem of illegal ment efforts. That certainly is the case ment was precisely directed only to immigration, which is the magnet of that possibility, it would be appro- if past practice is any indication. jobs, employment, which draws illegals New investigators could deal with priate. But the Senator’s amendment to this country. the part of the INS problems in this This amendment would establish an goes far beyond that. It would simply area, but only if they are used appro- office within the INS, as I understand gut the reforms proposed in the bill to priately. As the critique of the Jordan it, specifically staffed and mandated to deal with the large number of aliens. Commission, the inspector general, and perform both of the functions that are What we are trying to get at is aliens others have indicated, the problem is essential to the success of any em- who enter without inspection, or with more than resources; it is more than ployer sanction provisions. fraudulent documents, and those who simply a few more agents. Con- That is, the office would both edu- board a plane with documents, then sequently, our solution must provide cate employers about the law and their dispose of them, and upon entry fraud- more than resources. responsibilities to prevent unlawful ulently claim asylum. Mr. President, what is needed is a discrimination, and would investigate I think we are still having a bit of separate office for the enforcement of and prosecute those employers who distortion, not from the Senators from employer sanctions that will focus its knowingly hire illegal aliens. I think Vermont or Ohio, but when someone activities on the most serious problem, that we cannot claim to be serious says that they will not be interviewed which is employers hiring illegals, not about dealing with the problems of ille- by ‘‘the guy at the border,’’ that is sim- having anyone go after them, as well as gal immigration unless we are serious ply not true. This provision will only address the problems of employers dis- about dealing with those who know- be administered by specially trained criminating on the basis of national or- ingly hire illegals. So long as they can asylum officers with translators. There igin. It is clear that a fundamental get the jobs they seek, illegal aliens will be translators. There always are change is needed in the INS bureauc- will continue to regard this country as translators of any language, subject to racy to make these laws work. the land of opportunity, and some will review by a superior, another trained The amendment I am suggesting spe- refer to it almost as the land of slave asylum officer. These are not low-level cifically addresses this problem by labor as they come here as illegals and immigration officers. This is not cor- changing the task force provided by remain in that status. That is why it is rect. These are highly trained individ- section 120(b) of the bill to an office for important that we remove illegal per- uals. enforcement of employer sanctions and sons from our society or else make I remind our colleagues of one other authorizing it for $100 million, the fig- them legal. item that has sprung from the debate. ure contained in the 1986 Immigration So we already have a special counsel Our laws and treaties prevent our Gov- Act. The office will have two primary for the prevention of discrimination ernment from returning any person to functions: to investigate and prosecute against aliens. That is already on the any country where their life or freedom employer sanction violations, and to books. I did not like that when it went may be in danger. That is the law of educate employers on the requirement in, but it is on the books. Surely, it the United States. It is the law of the of the law in order to prevent unlawful would be appropriate to have an office United Nations. It is the sacred law. It employment discrimination. of employer sanctions to deal with the is called nonrefoulment: You cannot I think this amendment corrects the single-most important element. As return a person to a country where weaknesses in the existing bureauc- Barbara Jordan’s Commission put it, their life or freedom may be in danger. racy. It will separate and dedicate nec- ‘‘Shifting priorities and reduced fund- That is not done. We do not do it, and essary resources to the enforcement of ing have hamstrung some of those pro- that is the law of the United States. employer sanctions so that it will be visions.’’ That is the law of the United Nations.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4468 CONGRESSIONAL RECORD — SENATE May 1, 1996 No matter if a person can establish Mr. SIMPSON. Mr. President, I do brought about, are not appropriate. We credible fear or not, the person will not not think I am prepared to do that are not bringing this amendment to in be returned to certain imprisonment until the two people that have indi- any way condone, or encourage, or and danger. That will not change under cated they wish to debate come over. stimulate wrongful hirings of people any provisions of this bill. When I get in touch with them, and I who are not in this country under prop- Finally, I hope that we recognize will get back to you, perhaps we will er documentation. that 70 percent—I hope these figures get a half hour or an hour. I will work The question is, how do we best ad- can be heard—of all asylum applicants toward that, with the approval of Sen- dress that problem, and how do we do in fiscal year 1995 came from three ator KENNEDY. it in the least intrusive fashion? Al- countries. , 72,000, which, at I yield the floor. ready this bill contains a variety of last look, was a democracy. They had AMENDMENT NO. 3752 TO AMENDMENT NO. 3743 provisions which will have, I think, a worked through tremendous civil war Mr. ABRAHAM. Mr. President, I send marked impact on addressing the prob- to get where it is a democracy. We gave an amendment to the desk and ask for lem. In the bill we already increase their people an extended program its immediate consideration. substantially the number of Border Pa- called ‘‘extended voluntary departure’’ The PRESIDING OFFICER. The trol employees, people patrolling the a few years ago. Guatemala, 22,900; and clerk will report. borders to prevent illegal aliens from 9,300 from Mexico. So out of a total of The assistant clerk read as follows: entering the country. 149,500 applicants, they are the coun- The Senator from Michigan [Mr. Mr. President, in the bill we already tries: El Salvador, Guatemala, Mexico. ABRAHAM], for himself, Mr. FEINGOLD, Mr. addressed a very serious problem al- While there may be problems in those DEWINE, Mr. INHOFE, Mr. MACK, Mr. LOTT, luded to by the Senator from New Jer- countries, they are not highly repres- Mr. LIEBERMAN, and Mr. NICKLES, proposes sey, people who overstay their visas, sive countries. At least our Govern- an amendment numbered 3752 to amendment and constitute some 50 percent of the ment does not find them such. There is No. 3743. illegal alien population by for the first turmoil in Guatemala, killings in Gua- Mr. ABRAHAM. Mr. President, I ask time imposing sharp, stiff penalties on temala. There are killings in the unanimous consent that reading of the those who violate the visa rules. In ad- United States—an awful lot of them. amendment be dispensed with. dition, as we dealt with on numerous They are, however, known as leading The PRESIDING OFFICER. Without occasions yesterday, Mr. President, we sources of illegal immigration. objection, it is so ordered. have attempted to address the issue of What you are seeing is, when you The amendment is as follows: access to public assistance for nonciti- have a country that is your leading Strike sections 111–115 and 118. zens, and particularly for illegal aliens, source of illegal immigration, they are Mr. ABRAHAM. Mr. President, I ask as a way of discouraging some who picking them up, and they have been unanimous consent that Senator NICK- may have come to this country, or who here 2, 3 years, and they say, ‘‘I am LES be added as a cosponsor for the might consider doing so for purposes of seeking asylum’’ because they know amendment. accessing our social service programs. that these procedures are interminable. The PRESIDING OFFICER. Without In addition, under the bill, we have That is what we are trying to get at. objection, it is so ordered. dramatically, I think, moved to try to We are not after the person from Iraq, Mr. ABRAHAM. Mr. President, the expedite the deportation of criminal or the Kurd, or those people. We are amendment I proposed is cosponsored, aliens, a very substantial part of our after the people gimmicking the sys- in addition to myself, by Senators current alien community, and by defi- tem. For every one that you can point FEINGOLD, DEWINE, LOTT, MACK, nition, in the case of those who have to with passion and drama, you can LIEBERMAN, INHOFE, and NICKLES. committed serious offenses, individuals point to a hundred who are gimmicking Mr. President, our amendment does who are deportable, and thus no longer the system. This is what the people of basically two things. First, it would appropriate to be in the country. America are appalled at, that we will strike sections 111 through 115 of the I believe these steps, combined with not deal with the issue. bill, which would currently begin to other provisions in the legislation, There is a balance to be struck be- move us a long way down the road to- tween granting asylum to those who implement a national identification ward addressing the concerns we have are qualified and preventing this coun- system. Second, the amendment would strike try’s traditional hospitality being about the wrongful hiring of illegal a related provision, section 118 of the taken advantage of in a most extraor- aliens. I think we need to understand dinary way. Remember, when you have bill, which would require State driver’s the provisions that pertain to 9,304 cases from Mexico—and a case can licenses and birth certificates to con- verification, which, at least in this be more than one person—how many of form to new Federal regulations and Senator’s judgment, are a very obvious those asylum claimants from Mexico standards. example of a highly intrusive approach were granted asylum? There were 55— Mr. President, I intend to devote at that will not have much of an effect on 55 out of 9,304. If that is not gimmickry least my opening statement here today the problems that we confront. of the system, I am missing something. to the first Senate provisions that we Frankly, Mr. President, what we con- It means that one-seventh of our asy- seek to strike with this amendment, front in this country is less, in my lum applicants, even under the new those which pertain to the national judgment, of a case of an innocent em- provisions, are almost guaranteed to be identification system. Senator DEWINE, ployer who has been somehow deceived, bogus or fraudulent. I hope that our while in addition to commenting on or baffled by a clever alien. We have colleagues will hear that as we go to those sections, will be speaking in largely confronted a situation in which the eventual vote on that. more specific terms about the driver’s some form of complicity takes place Of the first four major countries of license and birth certificate provisions. between employers who are looking for asylum cases—Guatemala, Mexico, I recognize that we are not under a ways to hire less expensive labor, and China, and India—the final approval time agreement and that it will be the illegal aliens who have no choice in rate is 2 percent—2 percent of these option of the Presiding Officer in terms terms of the options available to them. people that we have heard these poign- of floor debate. But we hope Senator So what we find is intent on the part of ant, powerful stories about. And 98 per- DEWINE will have an opportunity fol- the employer, and, obviously, a willing- cent of them are fake or bogus. So if we lowing my remarks to be recognized ness on the part of the illegal alien to hear the 1 and forget the 100, we are soon so that he may comment on that be an employee. making a mistake. portion of the bill which he has par- This identification system is not I yield the floor. ticularly been focused on. going to do very much to address that Mr. BRADLEY. If the distinguished That said, Mr. President, let me just problem because no matter what type Senator from Wyoming will yield, I begin by making it clear that those of of identification document is used, wonder if we can get some time agree- us proposing this amendment consider whether it is a birth certificate, a driv- ment on the amendment that I offered. the hiring of illegal aliens to be a er’s license, an ID card, a Social Secu- I know a couple other Senators would wrong thing. We think wrongful rity card, or anything else, at least in like to speak. Is that possible? hirings, no matter how they might be my judgment, it is not going to matter

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4469 if the employer’s objective is to hire a First, it is extremely unfair and cost- However, it is not just the employers lower priced employee who happens to ly to honest employers. Any kind of who will suffer through a system of be an illegal alien because, whatever system that involves verifying new em- verification as set forth in the legisla- the system is, it will be circumvented ployees prior to hiring them in the tion; it is also the workers, the em- intentionally to accomplish the objec- fashion that is suggested here will be ployees, U.S. citizens who will now be tive of trimming down on overhead. costly. The employer must phone a 1– subjected to a verification system that, As a consequence, to a large extent, 800 number in Washington, or some- in my judgment, cannot be perfected the system, no matter how effectively place else to determine whether an in- accurately enough to avoid massive it is perfected, is not going to really dividual’s name is in the database, or problems, dislocations and unhappy re- have much impact on the large part of the person who is the employer must sults for countless American citizens. the problem we confront with regard to develop some type of, or require some As I have said, there is no way such the hiring of illegal aliens. In my judg- type of, computer interface system, a system can really be effective unless ment, that makes the cost of this pro- whatever it might be. These are addi- there is, first, a national database. gram greatly disproportionate to any tional business costs that will fall Such a national database, no matter potential benefit it might have in hard—especially hard—on small busi- how accurately constructed, is bound terms of reducing the population of il- nesses at a time when I think this Con- to be riddled with errors. Indeed, some legal aliens who are improperly em- gress at least in its rhetoric has been of the very small projects the INS has ployed. talking about trying to make the bur- already launched have been discovered I also say in my opening today that densome costs on small business less to have error rates, in terms of names we have taken, I think, with the cumbersome. in the database, as high as 28 percent. amendment, with the provisions of the In addition, there will be a very dis- Now, I hope that we could do better bill that were sustained yesterday in proportionately costly burden on those than 28 percent, but let us just consider the vote with respect to providing em- types of small businesses that have a if the database had an error margin of ployers with a shield against discrimi- high turnover of employees. And there 1 percent and let us also consider that nation cases, a further tool that will are a number of them in virtually that was a national program. That allow employers who are innocent to every one of our States, whether it is would be 600,000 hirings per year that take the steps necessary to avoid hir- the small fast food restaurant, or would be basically derailed due to error ing unintentionally people who are whether it is the seasonal type of small rates in the database. The project, of course, is not a na- meant to be hired under the current business. The list is endless of those tional program to begin with, but 1 laws. kinds of businesses which have huge That is the backdrop, Mr. President. percent of any sizable regional project amounts of turnover in terms of their We have big Government, an expansive is going to mean that U.S. citizens who employee ranks. For each of those Government, an intrusive Government are entitled to be hired will not be under a verification system we are add- solution being brought to bear in a cir- hired and be placed in limbo because of ing additional costs and additional bur- cumstance where I do not think it is this experimental program. dens that must be borne regardless of going to do much good. For that rea- Again, though, Mr. President, this is son, I think the verification system is the circumstances. not going to be a problem in the case of But really, Mr. President, this is an headed in the wrong direction. illegal aliens hired by employers who This approach is flawed, and it is, in unfunded mandate on these small busi- knowingly choose to do so because my judgment, overextensive in the way nesses, on businesses in general, on em- they will not be subjected to this it is structured in the bill right now ployers in general, whoever they might verification process. without any definition as to the dimen- be. And, in my judgment, it sets a very If we were to have this margin of sions that such pilot programs are en- bad precedent because it would be for error, if we were to even have a small visioned in the bill might encompass, the first time the case that we would handful of American citizens denied it has the potential to be a very, very require people to affirmatively seek employment under these provisions, we large program. What is the region? And permission to hire an employee. would set in motion what I think how advanced are all regions in an en- To me, Mr. President, that is a gigan- would be an extraordinarily costly tire quarter of the country? The bill tic step in the direction of big govern- process for those employers and em- does not specify how large the pilot ment that we should not take. I do not ployees so affected. programs might be. think we want to subject employers, no Is it right to impose a system that So for those reasons we believe that matter how, or how many employees would in fact mean that U.S. citizens the verification part of this legislation they have, to this new-found responsi- or legal permanent residents who are is unnecessary and should be struck. bility to affirmatively seek permission entitled to work would be potentially Let me talk more specifically about to hire employees. put on hold for weeks to months while why the costs are going to be greater Again, though, the people who will the system’s database is corrected? I than the benefits under the program. pay these costs and suffer these bur- think that is wrong. I think it is the First, Mr. President, even though dens are going to be the honest em- wrong direction to go. Anybody who this is a potential pilot program, it ployers. has dealt with computer databases seems to me, it is impossible to effec- Those who are dishonest, those who knows the potential for error in these tively run a pilot program of this type would hire illegal aliens knowingly types of systems. In my judgment, to unless a national database is collected. will not engage in any of these ex- invite that kind of high cost on the em- That national database check is going penses, will not undertake any of these ployees and employers of this country to be a very extensive step in the direc- steps because, obviously, their intent is would be a huge mistake. tion of a national identification sys- to circumvent the law, whatever it So those are the first two issues to tem. might be. They are doing it today. consider, the first two. The victims are Furthermore, Mr. President, it seems They will do it whatever the system is the honest, play-by-the-rules employ- to me, given the enormous downstroke that we come up with. ers and employees or potential employ- cost of developing that kind of system, So what we are talking about in ees who want to play by the rules. that there will be an enormous amount short is a very costly, very cum- They are going to be the victims. They of pressure on us to continue building bersome, very burdensome new respon- are going to pay a high cost. the system into a national system in sibility on employers in this country So, too, Mr. President, will the tax- the very near future. Indeed, that is that will disproportionately fall on the payers pay a high cost for this, in ef- the direction that the sponsors of the shoulders of those employers who are fect, unfunded mandate, because just legislation in both the House and Sen- playing by the rules instead of those building the database capable of han- ate had originally envisioned. But the who are breaking them. As I say, Mr. dling any kind of sizable regional bottom line in terms of the costs of the President, it will, for the first time, re- project will cost hundreds of millions program really falls on three cat- quire employers to affirmatively seek of dollars. The question is, is it going egories of U.S. citizens that we need to permission to hire employees, seek to produce the results that are being focus on today. that permission from Washington. suggested? I would say no.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4470 CONGRESSIONAL RECORD — SENATE May 1, 1996 As I have indicated already, those at illegal immigration, targeted at front of us today. Then in a moment I who want to circumvent a system will those who break the law. The bill that am going to have a chart, but let me circumvent this system, and they will the committee reported out is a good read from the bill. My colleagues who do so intentionally. Meanwhile, the bill as well. There are, however, several are in the Chamber, my colleagues who taxpayers will be footing a very sub- provisions in this bill—and this amend- are in their offices watching on TV, I stantial bill for a system that can be ment deals with these provisions—we ask them to listen to the words be- easily avoided by those employers and believe, frankly, are misguided and cause I think, frankly, they are going illegal alien employees who wish to do that are targeted and will have the to be very surprised. so. undue burden not on the lawbreakers No Federal agency, including but not lim- I intend to speak further on this but we believe will have an undue bur- ited to the Social Security Administration amendment this morning, but let me den, unfair burden on the other law- and the Department of State and no State just summarize my initial comments. I abiding citizens in this country. Let agency that issues driver’s licenses or identi- fication documents may accept for any offi- believe we should strike these me discuss these at this point. cial purpose a copy of a birth certificate as verification procedures. I believe that My colleague from Michigan has defined in paragraph 5 unless it is issued by the cost of imposing these programs talked about the employer verification a State or local authorized custodian of even on a trial basis is going to be ex- system. What is now in the bill is a records and it conforms to standards pre- cessive. I feel as if it leads us in the di- pilot project. I am going to discuss this scribed in paragraph B. rection of big Government, big Govern- at greater length later on in this de- Paragraph B, then, basically is the ment expansion and the imposition of bate, but let me state at this point my Federal prescribed standards. The bu- costly Federal regulations and burdens, experience in this area comes from a reaucracy will issue those regulations. especially on small businesses that different but related field, and that is Again, we are saying no Federal agency they do not need at this time. the area of criminal record systems. I could issue this, and ‘‘No State agency I believe that the tough standards we started my career as a county pros- that issues driver’s licenses or identi- have placed in the bill to deal with ille- ecutor, and I became involved in the fication documents may accept for any gal aliens, combined with some of the problem with the criminal record sys- official purpose.’’ Those are the key other relief that has been granted to tem. In fact, I discussed this at length words. employers to try to ferret out those with the current occupant of the chair. Let me turn to what I consider to be who should not be employed, are the I have seen, as other Members have, the first problem connected with this sorts of safeguards that will have the how difficult it is to bring our criminal language. It is a States rights issue. We least intrusive effect on those who play record system up to date, to make sure hear a lot of discussion on this floor by the rules. The costs of this that it is accurate. We have spent hun- about States rights. This seems to be verification system, in my judgment, dreds of millions of dollars in this the time and the year when we are try- far outweigh any potential benefits. country to try to bring our criminal ing to return power to the local juris- For those reasons, I urge my colleagues record system up to snuff so that when dictions, return power to the people. It to support our effort to strike these a police officer or parole officer or the is ironic that the language of this bill provisions. judge setting bond makes a life and as it is currently written goes in just At this point, as I said, Mr. Presi- death decision—that is what it is many the opposite direction. Although we of- dent, I realize we are not on a time times—about whether to turn someone tentimes talk about the 10th amend- agreement to yield time, but I know out or not turn them out, they have ment, I cannot think of a more clear the Senator from Ohio would like to good, reliable information. We have violation of the 10th amendment than speak to another part of this, so I yield improved our system and we are get- the language that we have in front of the floor. ting it better, but we still have a long, us today. This is the language that per- Mr. DEWINE addressed the Chair. long way to go. tains directly to the States. The PRESIDING OFFICER (Mr. If, when the stakes are so high in the . . . no State agency that issues driver’s li- GREGG). The Senator from Ohio. criminal system, and that is a finite censes or identification documents, may ac- Mr. DeWINE. I thank the Chair. I rise system—we are dealing with a rel- cept for any official purpose a copy of a birth today to support this amendment. atively small number of people—if we certificate . . . unless it is issued by a State The Senator from Michigan has dis- or local government registrar and it con- have such a difficult time getting it forms to standards . . . promulgated by the cussed very eloquently the problems right in that system, can you imagine Federal agency designated by the Presi- that we see with the employer how difficult it is going to be for us to dent.... verification section of the bill. I am create an entirely new database, a Listen to the language, ‘‘No State going to talk in a moment about a re- much, much larger database? How agency that issues driver’s licenses or lated problem, a problem that we see in many millions are we going to have to identification documents, may accept the part of the bill that will require for spend to do that and what are the for any official purpose. * * * ’’ We are the first time, in essence, a national chances we are going to get it right, telling a State in one of the basic func- birth certificate, a national driver’s li- and get it right in a short period of tions of government, one of their oldest cense. time? So I support the comments of my functions, the issuance of birth certifi- Before we discuss these parts of the colleague from Michigan in regard to cates, and other functions we rely on bill, however, let me start by congratu- this national database, in regard to States to do, issuing driver’s licenses, lating my colleague from Wyoming. He this national verification system. we are turning to them and saying you said something about an hour ago on Let me now turn to another part of cannot accept documents except as pre- this floor that is absolutely correct. We this bill, a part that is addressed also scribed by the Federal Government. We are going to pass an illegal immigra- by this same amendment we are now are telling that agency, we are telling tion bill, and after we have had our debating. This section has to do with that State, what they can and cannot way with the amendments, one way or the creation, for the first time, of a accept. This, I think, is going in the the other, we are going to pass a bill. It federally prescribed birth certificate wrong direction. is going to be a good bill, and it is and the creation for the first time of a I am not a constitutional scholar but going to be a real tribute to his work federally prescribed driver’s license. I think it has clear problems with the over the years and his work on this Under the bill as currently written, 10th amendment if anything has any particular bill. on the floor now, all birth certificates problems with the 10th amendment. Make no mistake about it: This bill and all driver’s licenses would have to You tell the State what they can ac- has very, very strong provisions, strong meet Federal standards. For the first cept and what they cannot accept for provisions that are targeted directly at time in our history, Washington, this their own purposes. the problem of illegal immigration. Congress, would tell States how they Let me move, if I could, to another The bill that the Senator reported from produce documents to identify their problem that I see with this provision. the subcommittee, because of his great own citizens. Let me read, if I could, The second problem, I will call it sort work and the other members of the directly from the law, or the bill as it of a nonmonetary problem, the non- subcommittee, is a strong bill targeted has been introduced and as it is in monetary cost. This bill as currently

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4471 written, going to the national driver’s ple are going to have to do. It is one Imagine the complaints we are going license, going to a national birth cer- more step back to get a new birth cer- to get in regard to that. tificate, is going to cause a tremendous tificate for them. How many people get Getting married, turning 16 and get- amount of anguish and tremendous married each year? I do not know, but ting a driver’s license, wanting to go amount of inconvenience for the Amer- each one of these people will be af- on Social Security—these are just ican people. It is the American people fected. three examples of how this is going to who are abiding by the law who are Let me give a second example. What work in the real world. really going to be punished by this. happens when you turn 16 years of age? I think it is important to remember This is, in essence, what the bill says. You ask any teenager. They will tell that this is an attempt to deal with a It says to the approximately 260-some you that in most States at least they problem not created by the people who million Americans, each presumably get the opportunity to try to get a we are, in essence, punishing by this who has a birth certificate somewhere, driver’s license. How many of us have language, not created by the teenager that your birth certificate is still valid, had that experience, gone down with or his or her parents who turned 16, not it is still valid, you just cannot use it their child or, if we remember that created by the senior citizen who for anything, or almost anything. If long ago, ourselves, trying to get a turned 65 and wants Social Security. you want to use that birth certificate, driver’s license? How many people had How many times are we going to you have to get a new one. You have to to stand in line? I do not think it is have people call us saying, ‘‘I certainly get a new one that conforms to what unique to my experience, or the experi- hope you didn’t vote for that bill, Sen- the bureaucracy has said the new birth ence of my friends. You go and stand in ator.’’ ‘‘I certainly hope, Congressman, certificate must conform to. line and it takes a while. Imagine your you didn’t vote for that bill.’’ Let me turn to another cost, because Your old birth certificate is no good. constituent or my constituent, our this is a costly thing, and we will talk You can keep it at home, you can keep family members going down with our just for a moment about the costs in- it stored in your closet or wherever child at the age of 16, standing in line curred in the whole reissuing of birth you have it, that is OK, it is still valid, at the DMV. We get to the head of the certificates. You can just imagine how but if you want to use it to get a pass- line. You have a birth certificate. And many million new birth certificates are port or you want to use it for any pur- the clerk looks at you and says, going to have to be issued. Somebody pose, you cannot do that. You have to ‘‘Sorry.’’ You say, ‘‘What’s wrong? I go back and get a new birth certificate. has to pay for that. have this birth certificate.’’ It is true the CBO has said this does What am I talking about in the real They say, ‘‘No, we are sorry. This is world where we all live and our con- not come under the new law we passed, not one of the new federally prescribed because under that law, you have to be stituents live? Let me give three exam- birth certificates. This was issued 16 ples, real world examples of inconven- up to $50 million of unfunded mandates years ago. This doesn’t conform. It per year before it is labeled an un- ience and problems that this is going doesn’t work. The Federal law says we to cause. Every year, millions of Amer- funded mandate. But that does not cannot accept that birth certificate.’’ mean it is not an unfunded mandate, icans get married and many of them You then leave and either go back to nor does it mean it is not a cost to change their names. To have a name the place your child was born or write local or State government. Nor does it change legally accepted by Social Se- to the place your child was born and mean it is not going to be a cost to curity—this is the law today—today, to you get that birth certificate. citizens. Let me go through a little bit have a name change legally accepted We live in a very mobile society. I al- on the cost. by Social Security or by the IRS, today ways relate things to my own experi- If you look at the language in the you must show a marriage certificate ence. In the case of our children, that bill, the idea behind the language is plus birth certificate. That is the law means we would have to go back to very good, and that is to get birth cer- today. Hamilton, OH; we would have to go tificates that are tamper-free. We took This amendment will not change back, for one of them, to Lima, OH; one the opportunity to contact printers that. But here is how it will affect it. to Springfield, OH; one to Springfield, and to talk to them to find out, under If this bill becomes law, the birth cer- VA, a couple to Xenia, OH. You would the language of this bill, what a State tificate you currently have is no good have to go back in each case to where would have to do. and you will not be able to use it for that child was born and go back to the Although there is discretion left to this purpose. You are going to have to health department or whatever the the bureaucracy in how this is going to go back to your origin, the place of issuing agency was of the State to get be implemented and the States are your birth. You are going to have to do that birth certificate. going to have some option about how it as Mary and Joseph did, you are going Once you got the birth certificate, is done, the printers we talked to said to have to go back to where you came you then have to get in line at the there is anywhere from 10 to 18 to 20 from, where you were born, or at least DMV. That is how it is going to work different safety features that one you are going to have to do this by in the real world. Let me give one more would expect to be included in this new mail, or in some way contact that example. birth certificate. county where you were born, because When people turn 65 in this country, Let me just read some of the things the birth certificate they gave your they have an opportunity to receive that they are talking about. I am not parents 20 years ago, 25 years ago, you Social Security and they have the op- going to bore everyone with the de- cannot use that anymore, because that portunity to get Medicare. One of the tails. We have two pages worth of dif- is what this bill says. They are going things you have to do, obviously, is ferent types of things: to have to issue you a new one and you prove your age. How many people, Mr. Thermochromic ink—colored ink are going to have to go back and get President, who turn 65 in 1996, live in which is sensitive to heat created by that new birth certificate. I think that the same county they lived in when human touch or frictional abrasion. is going to be a shock to many people they were born? I suspect not too When activated, the ink will disappear when they decide they want to get many. or change to another color. married. How shocked they are going to be Abrasion ink—a white transparent June is historically the most popular when they go in to Social Security and ink which is difficult to see, but will month, we are told, for weddings. My they present a birth certificate and So- fluoresce under ultraviolet light expo- wife Fran and I were married in June cial Security says, ‘‘Sorry. Yeah, you sure. so I guess we are average, with a num- waited in line for half an hour; sorry, Chemical voids—incorporated into ber of million other Americans. If this we can’t take this birth certificate.’’ the paper must be images that will ex- bill passes, I do not think it is too ‘‘Why not? I have had this certificate hibit a hidden multilingual void mes- much to say that June will not only be for 65 years.’’ sage that appears when alterations are known as the month of weddings, peo- ‘‘No, Congress passed a law 2, 3 years attempted with chemical ink eradi- ple getting married, it will also be the ago. You can’t use this birth certificate cators, bleach or hypochlorites. month where people will have to stand anymore. You have to go get a new A fourth example: Copy ban and void in line, because that is really what peo- one.’’ pantograph.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4472 CONGRESSIONAL RECORD — SENATE May 1, 1996 A fifth example: Fluorescent ink. Mrs. FEINSTEIN addressed the Here is a trade school diploma that is A sixth example: High-resolution la- Chair. forged. If this were handed to me, I tent images. The PRESIDING OFFICER. The Sen- would have no way of knowing. A seventh example: Secure lock. ator from California. Here is an achievement test certifi- And on and on and on. This is not Mrs. FEINSTEIN. Mr. President, I cate for high school from the State of something, as I say, that is brain sur- rise to oppose the Abraham-Feingold Indiana. If this were handed to me as gery. It is not something that cannot amendment. Let me not mince words. an employer, when I asked the ques- be done. It is something that clearly This amendment, in my view, is a bill tion, ‘‘are you qualified to work in this can be done. But let no one think this killer, it is a bill gutter, it decimates country?’’ how would I know? I would is not going to cost millions and mil- the foundation of employer sanctions. not. lions of dollars, and someone is going It will provide, if it passes, a bill that Here is another forged divorce cer- to pay for it. is gutless, toothless, aged, and will not tificate. If this were handed to me, I The American people are going to work. would not know. Why would I not? Be- pay for it one way or the other. They We must make employer sanctions cause the industry is very sophisti- are going to pay for it if the local gov- work. And let me tell you why. The cated. ernment eats up the cost or absorbs the reason why is, take my State, Cali- Here are some of the preliminary for- cost, and that is going to be what we fornia. We have 2 million people in geries, the basic paper from which like to refer to as an unfunded man- California illegally. How do these peo- these forgeries are done. How easily it date. ple survive? They survive one of two is replicated. If they pass it on to the consumer, to ways—they either get on benefits Here is the back of a green card be- the couple who just got married, or the through fraudulent documents or they fore it is finished. How easy it is rep- 16-year-old who gets his driver’s li- work. How do they work? With em- licated. cense, or they pass it on to the 65-year- ployer sanctions, an employer is not Let me show you what the final re- old who wants Social Security, that is supposed to give them jobs. sult is. This is a forged green card. The going to be a tax. It will be a hidden My opponents would have you believe names are blotted out. This is a real tax. The cost is going to be there, and that every employer wants to break green card. Who can tell the difference? it is going to be millions and millions the law, that every employer is going No one. These are the backs. Who can of dollars. to hire people simply because they tell the difference? No one. As my colleague from Michigan know them. I can tell you from the This is a forged green card. Who can pointed out, all these changes, all this State that has the largest number of il- tell the difference? burden, all this inconvenience, all legal immigrants in the Nation—40 per- This is forged—and look at them, these violations of the States rights is cent of them—that is not the case. look at the numbers. These are all per- being done, really, to go after the prob- Employer sanctions can only be ef- fect forgeries, every single one of lem of illegal aliens and the people, fective if there is some method of these. These exist by the millions. really, who are hiring them. verification. The Simpson-Kennedy They are made in less than 20 minutes. We have talked—it is difficult to get language is a pilot to ask the INS to And they cost anywhere from $25 to accurate statistics on this—we talked see how we can verify information that $150. Anyone can get them. How is an to INS, we talked to the people who are employers receive. Let me show you employer supposed to know? You can- experts in the field, and I think it is a graphically why it is important that not know without some way of common opinion that the majority of we do so. The birth certificate, which verifying the authenticity of the docu- illegal aliens who are illegally hired Senator SIMPSON has pointed out cor- ment which is submitted to you. are hired by people who know it. They rectly, is the most counterfeited docu- What the Simpson-Kennedy test pilot know it. ment in the United States. Let me does is ask INS to see what can be done This portion of this bill is not going show you why. Let me show you a few so that the documents can be verified to solve that problem at all. So, again, forms for birth certificates. by an employer. The bill narrows the we narrow it down. We are doing an This is one from the State of Illinois. list of documents down to six. So at awful lot. We are doing all these things It is a fraudulent document that has least some of the confusion can be to correct only a portion of the prob- not been printed upon. avoided there. lem. This is a second one from the State It is not fair to anybody to have a Let me conclude by simply stating, of Illinois. There are literally tens of system that exists in a bogus form again, this is a good bill. No one should thousands of different kinds of birth more frequently than it exists in a real think that there are not tough provi- certificates in the United States. This form. How does a birth certificate sions in this bill. If a bill like this had is a form from somewhere in Texas. mean anything to anybody for any offi- So the birth certificate is easy. These been brought to the Senate floor 2 cial purpose if it is counterfeited by papers are duplicated in the right years ago, 4 years ago, 8 years ago, it the tens of millions in this country? color, that of Austin, TX, then they are probably would not have had any How does a green card mean anything? put out wholesale. They are then lami- chance. I think I heard my colleague How does a divorce certificate mean nated, as you see here. And no one can from Wyoming say something very tell the difference. anything if it is counterfeited and you similar to that. Same thing goes here. This is a cannot verify it? It is a strong bill. It is a very strong forged copy of a record of marriage, a These are the real problems with bill without this what I consider to be marriage certificate. which this bill attempts to deal. If this a horrible infringement on people’s This is another from Cook County, amendment is successful, you might as rights. What we intend to do, or try to IL, a forged copy of a marriage certifi- well junk employer sanctions, you do, with this amendment is to take out cate. might as well say, ‘‘We’re going to per- these sections, these sections that are This is another one, a forged copy of mit people to continue to submit bogus going to impact 260 million, 270 million a marriage certificate. documents.’’ Americans and punish them to try to This is a forged GED application. I Remember, somebody here illegally get at this problem. We do not think it mean, if I am interviewing someone has only two choices—one, they earn a is going to work. We think it is going and this application is filled out, and living, secondly, they go on public sup- to be very intrusive, and we point out they say this is testimony to the fact port. Unless they have somebody very also that the bill, without these provi- that they have gotten an equivalency well to do in this country who can take sions, is, in fact, a very, very strong degree in this country—and, look, care of them—and I would submit to bill, and it is a bill that every Member there is the official seal and here are you that that is a remote possibility— in this Chamber can go home and be my grades on it—who am I to say it is those are the only two chances. So the proud of and can say, ‘‘We have taken not true? I would have no way of know- only way they can exist or stay—and very tough measures to deal with ille- ing. right now it is very attractive to come gal immigration.’’ Here is a forged divorce certificate. If to this country illegally because it is I thank the Chair, and I yield the this were handed to me as an employer so easy to obtain these counterfeit doc- floor. I would have no way of knowing. uments.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4473 That is the reality. That is why we will not require a national identifica- hard time understanding why anyone have on the Southwest border 5,000 peo- tion card for any reason other than the would oppose it because it is the only ple crossing every single day, Monday, verification of eligibility for employ- way we can make employer sanctions Tuesday, Wednesday, Thursday, Fri- ment or receipt of public benefits. work. day, Saturday, Sunday, because they There is no one card. Those who use, I I yield the floor. can go to Alvarado Street in Los Ange- think, as a ruse to defeat this pilot Mr. KENNEDY. Mr. President, the les, and they can purchase these docu- project, I hear out there, ‘‘Well, Sen- case for ensuring that birth certificates ments on the street within 20 minutes. ator FEINSTEIN, you are calling for a are going to be printed on paper to re- Our system of verification is non- national ID. That violates all our civil duce the possibility of counterfeit has existent, and they know that. There- rights.’’ To that I have to say, ‘‘There been made here. I want to speak to fore, if they submit a counterfeit docu- is no national ID anywhere in the legis- that issue because it has been ad- ment to an employer, the employer has lation before this body’’. None. It is a dressed by some saying this is ulti- little choice other than to accept it or red herring. It is a guise. It is a dupe. mately the responsibility of the State, ask for more documents. Then if the It is a ruse, simply to strike a mortal and the Federal Government does not really have any role in this area. employer asks for more documents, the blow at the system. I have a very hard time because Cali- Mr. President, sometime we will have employer very often is sued. to decide whether States will have So it is a very, very tenuous, real-life fornia is so impacted by illegal immi- their own independent immigration experience out there. This bill makes a gration. For 3 years we have said we policies or whether we will have a na- very modest attempt—where in com- must enforce our border, we must im- prove customs, we must be able to real- tional immigration policy. It really mittee, it became a test pilot. The lan- gets down to that. I have my dif- ly put a lid on the numbers because the guage, which I think it was a Kennedy ferences with some of the provisions in numbers are so large. I have come to amendment, was already a com- this bill. One that I think the case has the conclusion that within the scope of promise. Many of us on the committee been made, and I know it will be made possible immigration legislation, we wanted an absolute verification sys- again in just a few moments by the are stuck with an existing system. tem, put into affect right away. That Senator from Wyoming, is that if we do That existing system is employer sanc- did not pass in committee. not deal in an important way with en- tions. Therefore, why not try to make So the compromise was a pilot. Then suring that we will have birth certifi- them work? The already compromised the results of the pilot would be cates which are going to be, effec- brought back to Congress. Now we see verification system—just a pilot, which tively, even printed on paper that can- an attempt to get rid of the pilot. If allows the INS to work it out, and not be duplicated and other safeguards, you get rid of a pilot, what is left? bring it back to this body and let us really, this whole effort ought to be un- What is left is that we make ourselves say yea or nay to it—is simply a mod- derstood for what it is. into hypocrites, in my opinion, because est attempt to get some meaning into That is, basically, a sham. It will be we create a system that cannot func- this legislation. a sham not only with regard to immi- tion. Let me say what I honest to God be- gration, but it will be a sham on all of What we are seeing today is an em- lieve is the truth. If we cannot effect the programs that we talked about yes- ployer verification method that does sound, just and moderate controls, the terday in terms of the public programs not function. It does not function be- people of America will rise to stop all because individuals will be going out cause you cannot verify fraudulent immigration. I am as sure of that as I and getting the birth certificates and documents, and because fraudulent am that I am standing here now, be- getting citizen documents to prove documents abound. cause where the grievances exist, they they are American citizens and then I must say that I think it is very pos- exist in large number. Where the fraud drawing down on the public programs. sible to verify. We live in an informa- exists, it exists in large numbers. We spent hours yesterday saying tion age. Hundreds of data bases now Where it exists, wholesale industries which programs we are going to per- exist in both public and private sec- develop around it. It is extraordinarily mit, even for illegals to be able to ben- tors, data bases for national credit important, in my opinion, that this efit from, or which ones we will be able cards, for health insurance companies, amendment be defeated. to permit legals to be eligible for, and credit rating bureaus. Technology is, in Let me talk for a moment about dis- we went through the whole process of fact, advancing so rapidly that the crimination because I just met with a deeming. If you go out there and are ability to create these data bases and group of California legislators who able to get the birth certificates and ensure their accuracy is enhanced dra- wanted to know how this works. One of falsify those, you will be able to dem- matically every year. the big areas they raised was discrimi- onstrate you are a senior citizen and Why, then, does the Senate of the nation. As I understand the system, it you will be able to draw down on all of United States not want the U.S. Gov- must have safeguards to prevent dis- those programs. This reaches the heart ernment to use a computer data base crimination in employment or public of the whole question of illegal immi- to try to find a better way to help em- assistance. The way it would do that is grants. It reaches the whole question of ployers verify worker eligibility? I through a selective use of the system protecting American workers. It really believe that many of the issues or a refusal of employment opportuni- reaches the whole issue of protecting raised by opponents to this provision— ties or assistance because of a per- employers. It reaches the issue about that it is bureaucratic, that it is prone ceived likelihood that additional protecting the American taxpayers. to errors, that it is unworkable, that it verification will be needed. The legisla- Let me give a few examples of what is too intrusive—are simply unfounded. tion contains civil and criminal rem- we are looking at across the country. In fact, the provision was specifically edies for unlawful disclosure of infor- Some States have open birth record written, as I understand, to alleviate mation. Disclosure of information for laws. In these States, anyone who can such concerns, by defining clear limits any reasons not authorized in the bill identify a birth record can get a copy on the use of the system, establishing will be a misdemeanor with a fine of of it. The birth certificates are treated strict penalties for the misuse of infor- not more than $5,000. Unauthorized dis- as public property. In some States—for mation, and requiring congressional closure of information is grounds for example, in the State of Ohio, you can approval before any national system civil action. The legislation also con- walk into the registry of vital statis- goes into effect. What are the authors tains employer safeguards, that em- tics in Ohio, an open record State, and of this amendment so afraid of? Any ployers shall not be guilty of employ- ask for, in this instance, Senator national pilot system would come back ing an unauthorized alien if the em- DEWINE’s birth certificate. The reg- to this body for approval prior to its ployer followed the procedures required istry would have to give it to me, no being put in place. by the system and the alien was questions asked. I could walk into the The legislation also imposes some verified by the system as eligible for registry in Wisconsin and get Senator limits. It limits the use of documents. employment. FEINGOLD’s birth certificate just as eas- Documents must be resistant to coun- In my view, the Simpson-Kennedy ily. Some States even let you have a terfeiting and tampering. The system test pilot makes sense. I have a very copy through the mail. Once I have a

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4474 CONGRESSIONAL RECORD — SENATE May 1, 1996 copy of one of their birth certificates, I we are really not going to be able to work, and I will comment on that in a could take it, for example, down to the get a handle not only on illegal immi- few minutes. But I think we first need Ohio Department of Motor Vehicles gration, but also on protecting the tax- to ask the question of whether this, in and get an Ohio driver’s license with payers, because people will be able to any way, is an appropriate response to Senator DEWINE’s birth date and ad- use the birth certificate to dem- the illegal immigration problem. dress, but my picture instead of his. I onstrate that they are a citizen and According to INS figures, less than 2 now have two employer identification then draw down on the various pro- percent of the U.S. population is here documents to establish an eligibility to grams. That, I think, really makes a illegally. Mr. President, do we really work in the United States and also to sham of a great deal of what is being want to require 98 percent of Ameri- be able to be eligible for public pro- attempted at this time. cans to have their identities verified by grams. Mr. FEINGOLD addressed the Chair. the Federal Government every time Mr. President, with all that we are The PRESIDING OFFICER. The Sen- they apply for a job or public assist- doing in terms of tamperproof pro- ator from Wisconsin is recognized. ance? grams, and all that we are doing in Mr. FEINGOLD. Mr. President, I rise Think about what this means to terms of setting up additional agencies today to urge my colleagues to support every employer in this country, Mr. and investigators and protections for the Abraham-Feingold amendment to President. Every employer would have American workers, and all of the re- strike the worker verification proposal to live under such a system if it was sources that we are providing down at from this bill. fully implemented. Suppose a dairy the border, when you recognize that It has been said many times already farmer in rural Wisconsin, or perhaps half of the people that will be coming in the past, and today on the floor, rural New Hampshire, wants to hire a in and will be illegals came here le- that we cannot effectively combat ille- part-time employee. Should that farm- gally, and they will have an oppor- gal immigration without having a na- er have to get permission from a Wash- tunity to take advantage of these tional worker verification proposal. It ington bureaucrat before he hires the kinds of gaping holes in our system, has been said that the employer sanc- worker? How is the verification check then the rest of the bill—with all due tion laws implemented in the 1986 act to be completed? If it ends up being an respect, we can put hundreds of thou- have been largely ineffective due to the electronic system, does that mean the sands of guards down on the border, but absence of such a verification system. farmer is going to have to spend $2,000 if they are able to come in, as half of As we all know, Mr. President, there or $3,000 on a new computer and an- them do, on various visas and be able are two major channels of illegal immi- other $1,000 on the required software to to run through that process that any- gration. The first is composed of those be able to interface with a computer body can achieve in a day or day and a who cross our borders illegally, with- somewhere in Washington, DC—all so half and circumvent all of that, then I out visas and without inspection. he can hire just one part-time em- must say, Mr. President, we are not Roughly 300,000 such individuals enter ployee on his farm in Wisconsin or New really being serious about this issue. and remain in our country unlawfully Hampshire? We can all say, well, our local—I each year. Mr. President, if fully implemented, know the arguments and I have heard This, as we all know and agree, is un- this, obviously, is not a measured re- the arguments. There is a lot of truth questionably a serious problem along sponse to the illegal immigration prob- in much of what is said in the argu- our southwestern border. This Congress lem. It suggests that the way to find a ments. But we have to, at some time— does have a responsibility to provide needle in a haystack is to set the hay- and I hope it is now—recognize that we additional resources to the U.S. Border stack on fire. are going to have to at least set certain Patrol and other enforcement agencies It is not as if we are moving to a na- kinds of standards and let the States to prevent such individuals from cross- tional verification system as a last re- do whatever they want to do within ing the border in the first place. So I sort. Just in the past few years has the those standards. They have to print it strongly support the provisions in S. administration begun to take seriously on paper that is as resistantproof to 1664 that provide additional border the task of patrolling our Nation’s bor- tampering as we can scientifically guards and enforcement personnel. ders. Experiments such as Operation make it. They can set this up, and they Mr. President, the second part of the Hold the Line in El Paso, and Oper- can do it whatever way they want to do equation, though, which represents up ation Gatekeeper in San Diego, have it. But there are minimum kinds of to one-half of the illegal immigration demonstrated that there is a way to standards to try to reach the basic in- problem, is the problem known as visa prevent undocumented persons from tegrity of the birth certificates that overstayers. These are people who entering the United States. are going to be necessary. That has enter our country legally, usually on a Moreover, we have never tried to at- been pointed out. That is the breeder tourist or student visa, and then re- tack the visa overstayer problem. document. That is where all of this main in the United States unlawfully Again, that is the problem that con- really starts. It is easily circumvented. only after the visa has expired. stitutes nearly one-half of the illegal We can build all the other kinds of But despite this phenomenon, rep- problem. No one has ever proposed such houses of cards on top of trying to do resenting up to 50 percent—50 percent— targeted reforms—until now. something about illegal aliens, and un- of our illegal immigration problem, Our amendment contains provisions less we are going to reach down and there was not a single provision in the that impose tough new penalties on deal with this basic document, we are original committee legislation to ad- persons who overstay their visas by really not fulfilling, I think, our re- dress this problem—not a single word withholding future visas from persons sponsibility to the American people about half of the whole illegal immi- who violate the terms of their agree- with a bill that is really worthy of its gration problem. ments. name, because we are leaving these Instead, the bill supporters proposed In addition, anybody who applies for gaping holes. a massive, new national worker a legal visa must submit certain infor- I could go into other things, but I verification system, complete with uni- mation to the INS that will allow the will not take the time because others form Federal identification documents. INS to track such persons and deter- want to speak. I will go through other So, rather than targeting the individ- mine who is here lawfully and who is kinds of illustrations that are taking uals who break our laws and are here here unlawfully. place today. We know what the prob- illegally, the premise of that proposal These bold reforms should be given lem is. You have, as Senator DEWINE was to ensure that the identity of an opportunity to work. Let us give said, the fraudulent documents that every worker in America—U.S. citi- them a try before we commit ourselves are all being duplicated fraudulently zens, legal permanent residents, and so to experimenting with a costly and down at the border when we might be on—had to be verified by a Government burdensome national verification sys- able to do something about agency in Washington, DC. tem. tamperproof elements. But unless we Mr. President, we are going to hear Moreover, Mr. President—and, of are going to deal with the breeder doc- extensive debate about whether or not course, I acknowledge that during the ument, which is the birth certificate, what is in this bill is actually going to committee’s work, this was turned into

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4475 more of a pilot program approach. tie the documents back to a unique physio- And pretty soon, the verification Nonetheless, the so-called pilot pro- logical identifier commonly referred to as bi- process and identification documents grams contained in this legislation are ometric technology (retinal scan, finger- will be required for so many purposes riddled with problems. Let us be hon- print, hand print, voice print, etc). that it just might be a good idea to est. We would not be having these so- So fingerprinting every person in carry the I.D. document around in your called pilot programs if the eventual America is one suggested solution to wallet. goal was not to have a national this problem. Does that sound farfetched Mr. Presi- verification system up and running in Now this approach may sound a little dent? It should not, because I just de- the near future. Why would we do them farfetched, but my colleagues on both scribed the Social Security card—a if that was not the ultimate objective? sides of the aisle may be surprised that card that was originally intended for Indeed, in addition to the pilot pro- the original committee bill required one purpose and is now required for so grams, this bill, as reported out of the every birth certificate and driver’s li- many purposes that most people carry Judiciary Committee, requires the cense in America to be adorned with a it around in their wallets or pocket- President to develop just such a plan fingerprint. books. And Social Security numbers for a national system and submit it to This is not totally far-fetched. It is are used for numerous identification Congress. what we had to consider in the first purposes from the number on your We also know there are going to be place in committee. driver’s license to assessing computer numerous errors in the system. As the And it is my understanding that even networks. Senator from Michigan has pointed with the last-minute changes made I know, Mr. President, that the Sen- out, one Federal data base that is to be yesterday to the birth certificate re- ator from Wyoming will claim that the used with this system currently has an quirements, the bill continues to allow bill specifically prohibits the error rate of over 20 percent. Federal agencies to preempt the au- verification system from being used for So we know that millions and mil- thority of the States by requiring other purposes. But nothing in this legislation, in- lions of Americans will be wrongfully State agencies to follow federally man- cluding the so-called privacy protec- denied employment and Government dated regulations with respect to the tions, can prevent a future Congress assistance due to bureaucratic errors. composition and issuance of their birth from passing a law to require these Now the sponsors of the provision certificates and drivers license. identification documents and the will tell you that the system is only The bill’s supporters claim that the verification system to serve different supposed to have an error rate of 1 per- fingerprint requirements have been re- purposes than originally intended. cent. But read the bill. The bill clearly moved from the legislation. But again, read the bill. The legislation before us That is precisely why Senators states that the system should have an should not be misled into believing objective of an error rate of less than 1 allows the administration to determine what sort of safety and tamper-proof that the pilot projects contained in percent. It could have an error rate of this legislation are harmless and will 5, 10, or 20 percent and it would be per- features every State’s driver’s licenses must have. have no effect on their constituents. fectly OK under this bill. The pilot programs are not intended But perhaps nothing is as troubling We are going to put something in this Congress to say you cannot use it to merely provide a testing ground. If to me about this proposal as the fact the pilot programs are just meant to that it puts us squarely on the road to for something else. So if the Department of Transpor- provide us with test results, why does having some sort of national ID card. the bill specifically require the Presi- tation decides to require the State of Now I know that the very words ‘‘ID dent to develop and submit to Congress Wisconsin to begin collecting and proc- card’’ ruffles the feathers of the spon- a plan for expanding the pilot projects essing fingerprints of all driver’s li- sors of this provision. And I know that into a nationwide worker verification cense applicants, the State of Wis- they have crafted this language very system? carefully so there is not an actual iden- consin would be forced to comply under That is the goal of the verification tification document created by this this legislation with the national fin- proposal contained in the legislation language. gerprint mandate. and Senators should not be misled into But even many of the congressional That is why this provision, even with believing that these are harmless pilot supporters of a national verification the recent modifications, continues to programs that are not going to affect system have pointed out that this pro- be opposed by the National Association their constituents and are going to posal will not work without some sort of Counties and the National Con- somehow magically disappear in a few of national identification document. ference of State Legislatures. years. Why? Because any job applicant can The bill’s supporters will also say Mr. President, the number and range hand an employer a legitimate ID card that the legislation clearly prohibits of groups and organizations supporting that has, for example, been stolen or any identification documents required the Abraham-Feingold amendment is doctored. for the verification system to also be quite astounding. It is a coalition of The employer will run the card required for other purposes. the left, represented by the ACLU, the through the system and it will check Mr. President, that is not much of a National Council of La Raza and the out. But the card does not belong to guarantee. In fact, it is no guarantee American Jewish Committee, and the the individual, so that individual has and on the contrary, by establishing right, represented by the NFIB, the Na- just fraudulently obtained a job or re- such federally mandated identification tional Restaurant Association and the ceived welfare assistance. documents we open the door for these U.S. Chamber of Commerce, as well as That is exactly what is likely to hap- documents and the verification system some 30 other national organizations pen if this bill becomes law. to be used in the future for a variety of representing business, labor, ethnic Well, Mr. President, is there any way purposes that could be completely dif- and religious organizations which all to prevent this sort of fraud from hap- ferent from what we intended, and support the Abraham-Feingold amend- pening? One solution has been sug- something that none of us would sup- ment. gested. Let me quote Frank Ricchiazzi port. Why do they do this? Because they who is the assistant director of the At first, Mr. President, Members of know it is critical that we abandon California department of motor vehi- Congress may propose that people this rather heavyhanded, costly ap- cles. present these documents and go proach to combating illegal immigra- In testimony before the Judiciary through the verification process for tion and instead focus on true reform Committee last May, Mr. Ricchiazzi very legitimate purposes. Maybe they that focuses on the individuals who said the following: will say, ‘‘Well, we have to use these break the law, and not those who abide ID’s or documents to board an airplane; All the databases and communication sys- by them. tems in the world fill not prevent the clever maybe we will be required to use them So I very much commend my friends and resourceful individual from assuming to adopt a child; maybe it will be re- from Michigan and Ohio, and others, in multiple identities with quality fraudulent quired if you want to enlist in the their efforts in fighting this intrusive documents. What is needed is the ability to Armed Forces.’’ proposal.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4476 CONGRESSIONAL RECORD — SENATE May 1, 1996 I ask unanimous consent that a list- have massive fraud that assists people Mr. SIMPSON. I think we have had ing of the organizations supporting the who are here illegally. I do not think an interesting debate. We probably will Abraham-Feingold amendment be anyone questions that. No. 3 is the have a little bit more. There is no time printed in the RECORD. GAO report shows that we have a seri- agreement here. But there are some se- There being no objection, the mate- ous problem with discrimination par- rious distortions presented to us, and rial was ordered to be printed in the ticularly against Hispanics and Asian- that is always vexing because obvi- RECORD, as follows: Americans or people who speak with an ously persons are listening to those ORGANIZATIONS SUPPORTING ABRAHAM- accent, maybe a Polish accent or what- distortions and taking them to heart. FEINGOLD ever the accent might be because there I have been in this business for 17 National Federation of Independent Busi- is a reluctance on the part of employ- years, and that is not to say it has been ness. ers to hire them. a joyful experience, but it was much National Council of La Raza. Unless we have some method of a vol- more a pleasure when Senator PAUL National Restaurant Association. untary identification, that discrimina- SIMON joined this ragged subcommittee American Civil Liberties Union. tion is going to continue. So, in line consisting of Senator and U.S. Chamber of Commerce. with the recommendations of the Jor- . myself because no one else would take Americans For Tax Reform. dan Commission, pilot programs have on the issue. So for several years it was United States Catholic Conference. been suggested. No pilot program can just a little three-member sub- Mexican-American Legal Defense and Edu- be followed through by a Clinton ad- committee—Senator KENNEDY, myself, cation Fund. ministration or a Dole administration and Senator SIMON—because others National Retail Federation. or anyone else without congressional would come up to us in the course of American Jewish Committee. action. So there is that safeguard here. the entire year of work saying, ‘‘When Associated Builders and Contractors. I think this is essential. If this you get busy on doing something about Associated General Contractors. amendment is adopted, frankly, you National Asian-Pacific American Legal illegal immigration, you let me know Consortium. just defang the whole bill. It is a tooth- and I will help you.’’ Asian-American Legal Defense and Edu- less venture. You are trying to eat Unfortunately, nobody does help be- cation Fund. steak without teeth. I hope to never cause there are so many cross-currents. International Mass Retail Association. try that. I hope the Presiding Officer I have never seen more—I am not talk- Cato Institute. never has to try that. You have to have ing about the Senate. I am talking Service Employees International Union. teeth in this if we are going to do any- about outside the Senate. I have seen Asian-Pacific American Labor Alliance. thing about illegal immigration. National Association of Beverage Retail- groups hop into the sack with other There are provisions in this bill that groups they would not even talk to 10 ers. I do not like. I was defeated last night UNITE (Union of Needletrades, Industrial years ago. I have seen some of the most and Textile Employees). on an amendment, and I am probably egregious pandering and prostituting of National Association of Convenience going to be defeated today on a couple ideals outside this beltway that I have Stores. of amendments that I think make a ever seen, people who are cynical, cyn- League of United Latin-American Citizens. great deal of sense. I think in some ical in the extreme with what they are Food Marketing Institute. ways the bill is too harsh. But it is es- doing on this issue, some of the think Hispanic National Bar Association. sential that we take a look at this. Food Distributors International. Let me just add—and I know you tanks cynical to the extreme. I am not, The College and University Personnel As- should not make appeals on the basis please hear me, talking about a single sociation. of personalities—this whole issue of person in this arena. I have the deepest American Hotel and Motel Association. immigration is one of these cyclical respect for Senator . International Association of Amusement I helped campaign for him in Michigan Parks and Attractions. things. Right now there is a lot of in- terest, but for a while there was very and would do it again in an instant. I Mr. FEINGOLD. I thank the Chair. I have high regard for Senator MICHAEL yield the floor. little interest. There were just three of us who served on that subcommittee, DEWINE. I helped campaign for him in Mr. SIMON addressed the Chair. Ohio, and I would do it instantly. Sen- The PRESIDING OFFICER. The Sen- the smallest subcommittee in the Sen- ate, because there was not that much ator FEINGOLD I have come to know, a ator from Illinois. interest—ALAN SIMPSON, TED KENNEDY, spirited legislator of the old school— Mr. SIMON. Mr. President, I rise in doing your homework. So that is not strong opposition to the amendment. and . I was the very junior member both in terms of service and in the issue. Let me differ with my friend from But you are missing everything we Wisconsin who is one of the finest terms of knowledge. I say to my colleagues who may be are trying to do. Somebody is missing Members of this body. It was a great listening or their staffs who may be lis- the entire thing, and Senator SIMON day for the Senate when RUSS FEIN- tening, whenever ALAN SIMPSON and has expressed it beautifully: You can- GOLD was elected to serve here. TED KENNEDY say this is a bad amend- not do the things that are in this bill When he says this amendment in- ment in the field of immigration, I unless you have at least an attempt to creases penalties for those who come in think you ought to listen very, very find out what verification systems we legally and overstay, this amendment carefully. They know this area. Com- will use in the United States. does nothing of the sort. This amend- plicated as it is, they know this area The present stature of the bill simply ment does one thing and one thing well. We have a problem with illegal says that we will have verification only, and that is to weaken enforce- immigration, and you cannot deal with projects or processes of these following ment of illegal immigration. this problem unless you deal with the options. If I had my way, I would make What the bill does—not this amend- magnet that employers have, the area them requirements, and I would say it ment—on those who overstay legally, of fraud, and I also think the area of is required that these following pilot anyone who overstays more than 60 discrimination. There is no way of projects take place in the next years. days cannot apply for coming back in solving this without having some pilot That is what we should be doing. Then again legally for 3 or 5 years. We hire programs. none of them go into effect, or not one more investigators. You have to apply We could launch something without of them goes into effect, until we have for a visa to the original consular of- having a pilot program. I think that another vote. fice where you made the original appli- would be unwise. It seems to me this is That is what is in this bill. There is cation. a prudent approach that really makes nothing in here that has to do with na- Three things I do not think anyone sense, and with all due respect to my tional ID or all the sinister activity can question. No. 1 is the thing that friend from Michigan, I think this that you can ever discuss—Americans Senator SIMPSON has stressed over and amendment should be defeated. on the slippery slope, a tragedy of em- over again, and that is the attraction I yield the floor, Mr. President. ployers having to seek permission to for illegal immigration is the magnet Mr. SIMPSON addressed the Chair. hire people. They already do. It is al- of a job. I do not think anyone seri- The PRESIDING OFFICER (Mr. most as if one were speaking into a ously questions that. No. 2 is that we BURNS). The Senator from Wyoming. vacuum.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4477 I know what it is. It comes from the You did not do a thing with the most Americans should not have to receive per- fact when you are in it this long, you stupefying thing that happens in Amer- mission from the Federal Government to understand the nuances. That is not a ica, where you look at the obituary work and support their families, nor should cocky statement, I can assure you. list, and if you are between 20 and 40 U.S. employers need permission from the But, boy, I tell you, when I first started years old you really look at that. You Federal Government to hire their fellow citi- the business, I would say, ‘‘You can’t find out who died and then you go get zens. But ill-conceived measures in the ille- do that.’’ Then 2 years later I said, their birth certificate—and between gal immigration bill to be taken up on the ‘‘You have to do that.’’ the years of 20 and 30 and 40, that is Senate floor during the week of April 15 will That is where this one is. When I am when most of this happens—and then do just that. up at Harvard teaching, I shall think of off they go with the new birth certifi- And we have heard similar claims you all, and I will reflect. In a year or cate and into the stream they go, into here on the floor today. I do not know two—and I hope you are all here for the stream they go with a Social Secu- whether this outrageous statement re- many years—you are going to say, ‘‘I rity card, and into the stream with a didn’t know that’s what we did,’’ be- flects willful distortion or something driver’s license, and into the stream of more bizarre, because, first, it is al- cause if this amendment passes, you the public support system. ready unlawful under section 274(a) of will have taken away everything from We are talking about the cost of a the Immigration and Nationality Act, 8 this bill. The rest of it, as Senator system to set that up? The cost to PAUL SIMON says, is like eating steak America, by what is happening to the U.S.C. 1324(a) for any person or entity without teeth. You cannot do it with welfare systems, the cost of what is to knowingly employ illegal aliens, or what you have put in this bill. If you happening to America with the hem- to hire without complying with the re- think you have solved the problems of orrhaging of California and Illinois and quirements of an ‘‘employment illegal immigration by the Border Pa- Florida, hemorrhaging—absolutely verification system.’’ That is the law. trol—put 20,000 of them down there—if hemorrhaging, and we are not going to And that is described in that section. you think you are going to solve it by do anything about it? We are going to this or that and all the things that are Most important, neither current law talk about the cost of a system? If this in this bill, forget it, because over half nor the proposals in S. 1664 require citi- system costs $10 billion, it would be the people come here legally. You will zens or lawful permanent residents to worth it, because we are losing $20, $30, not even touch them unless, ah, with obtain any form of permission from the $40 billion, with people who gimmick the new Border Patrol we will give Federal Government to work: None. the housing programs, gimmick the them the power to now go up and ask Nor is there any requirement that U.S. welfare program, gimmick the employ- visa overstayers if they are visa over- employers obtain ‘‘permission’’ to em- ers. That is where we are. It is abso- stayers. How is that one for discrimi- ploy such persons. In the present con- lutely startling to me that those who nation in America? You are going to go text, the word permission connotes a want to do the most will allow us to do up to people who look foreign under form of consent that can be withheld, this provision, when we have nothing the least. at least partly on the basis of discre- else that gives us any power or author- Let me just address a couple of old tion. ity to do anything, and find out wheth- canards that just have to be addressed. In fact, there is not, under current er people are visa overstayers. I assume In this league you are supposed to be as they will most likely be people who patient as you can. But I am always re- law, and there would not be under any look foreign. So, remember, that one minded of that great phrase in Rudyard pilot project authorized under the bill will take place. Kipling’s ‘‘If.’’ Read it. You want to or any system actually implemented in It is a curious thing that the people read ‘‘If.’’ Read it every 5 years of your accordance with the provisions of this and the institutions who want to do life because it will change. bill, after the required implementing the most to hammer illegal, undocu- If you can keep your head when all about legislation, that would give any legal mented persons will give us the least you authority to withhold verification ex- hammer. I do not understand that and Are losing theirs and blaming it on you, cept on the basis that an individual is If you can trust yourself when all men doubt I would like to have that explained to you, not a citizen, lawful, permanent resi- me in the course of the debate. How But make allowance for their doubting too; dent, or alien authorized to work. you can come to subcommittee and full If you can wait and not be tired by waiting, Indeed, the bill includes as an ex- committee and the floor and add layer Or being lied about, don’t deal in lies, upon layer of things which have to do Or being hated, don’t give way to hating, plicit prohibition, a requirement that with tightening the screws on illegal, And yet don’t look too good, nor talk too verification may not be withheld ex- undocumented people—and that is wise: cept on that basis. That was to protect what you have done, and that may as- * * * * * the employer. We did not do that for suage all guilt, it may take care of all If you can fill the unforgiving minute any other reason but to protect the pain—but, then to take every bit, every With sixty seconds’ worth of distance run, employer. tiny crumb left of how to do something Yours is the Earth and everything that’s in In that same letter you were in- about illegal undocumented persons in it, formed that the verification provisions the United States, and that is to allow And—which is more—you’ll be a Man, my son. some kind, some kind of more counter- of the bill are ‘‘more than merely a feit-resistant, more verifiable, identifi- But there is one part in it that is pilot program. It is a new system that able—whether it is through the phone marvelous. It says: can cover the entire United States and system with a slide-through or some If you can bear to hear the truth you’ve spo- last for up to 7 years at the discretion kind of revised Social Security card or ken of the President.’’ Twisted by knaves to make a trap for fools, something—and then to go home and In fact—fact, section 112 of the bill And that is what I have seen outside, tell our people that, here in the United authorized the President to conduct in this beltway, ‘‘twisted by knaves to States of America, we finally did some- ‘‘several local or regional demonstra- thing about illegal immigration? And a make a trap for fools.’’ I am not refer- tion projects.’’ Are you going to let year from now or 2 years from now you ring to a single person in this Chamber. California just sink? Are you going to find out you could not get it done be- I am referring to people who I know cause you did not take the final step, out there. I know the groups. I know let California just sink and float off which was minuscule, and that was to them well. I have seen them in action. into the ocean? That is what you are do something about the breeder docu- So, let us look at the stuff that has doing if you do not allow them at least ment that Senator FEINSTEIN described floated through here with regard to the to do something; a pilot program. What so powerfully—you did not do anything national ID card. In an April 11 ‘‘Dear about Texas? Are you just going to let with that document, did not do a thing Colleague’’ letter you were all told it sink? What about Illinois? What with it. that: about Florida? You cannot get there.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00029 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4478 CONGRESSIONAL RECORD — SENATE May 1, 1996 So we provided several local or re- tem, I say to my colleagues. We are not genuine.’’ At least we protected the gional demonstration projects. That trying to do a number on our fellow employer a bit yesterday. Right now this does not authorize at all what the Americans. We do not have a workable employers can be fined by simply ask- authors of this letter assert, it will be system right now, and you helped cor- ing for another form of document. made ever clearer as we finish up our rect some of that yesterday, and I ap- Now the letter asserts, finally, ‘‘The work on this bill. preciate that. Well done. You protected system will lead to a national ID card. I had an amendment. We will see the employer from a heavy fine or pen- A number of congressional advocates of what happens with that. The word ‘‘re- alty just by asking for another docu- this system have admitted that the gional’’ will be defined as an area more ment. That was good work; I think system will not work without a bio- than an entire State, or various con- good work. metrically encoded identification figurations. That would make it clear We do not have a workable system. card.’’ I am quoting. ‘‘Establishing this that the system covering nearly the We do not know all the problems on far-reaching program sets us on a dan- United States of America, the entire the surface as these projects are con- gerous path toward identity papers and Nation, would not be authorized. No ducted, but if the development process other objectionable elements incom- one ever intended that. But the letter is not begun, if something as milk soup patible with a free society.’’ also asserts that the bill ‘‘does not re- in consistency as the present part of I also saw an article during the days place the I–9 form but is added on top the bill, which is the Kennedy-Simpson of this issue coming before the Amer- of the existing system.’’ verification process, which is all op- ican public where it was even suggested The bill does not say that. The bill tional, if we cannot even start that, we that we were looking into the examina- provides that if the Attorney General will never have a workable system, at tion of bodily fluids. There is a debate determines that a pilot project satis- least in the years to come. and there is a thing of give and take fies accuracy and other criteria, then The letter also states that, ‘‘Employ- and there is a thing such as honesty, requirements of the pilot project will ers who break the rules will continue but bodily fluids was never anything take the place of the requirements of breaking the rules while legitimate ever mentioned by any ‘‘congressional current law, including the I–9 form. business owners must confront new lev- advocate’’ that I have ever met. Furthermore, those are things that els of bureaucracy.’’ This is an especially blatant—bla- seem to escape us. We are trying to as- Most employers try to comply with tant—example of the misleading nature sure that employers will not have to the current law. They work hard to do of so many of the statements in these comply with the requirements of both that. They work hard not to hire ille- letters. current law and pilot projects, pilot gal aliens. However, the current First, the assertion that there is a projects where their participation is verification system, with which they national ID card, but then the state- mandatory. In addition, this same let- are required to comply, is not reliable ment about congressional advocates ter states, ‘‘Error rates are a serious because of fraudulent documents. does not refer to a national ID card, problem.’’ The letter refers to an esti- I am going to show it one more time. and I am one of those trained ‘‘congres- mate by the Social Security Adminis- There is no such thing in our line of sional advocates’’ who has opposed na- tration that in 20 percent of the cases work as repetition. There it is. Any- tional ID cards for all of the 17 years I handled, it will not be able to identify body can get one and when you get one, have been involved in this issue, pe- an individual’s employment eligibility you can begin to do things that to the riod. ‘‘on the first attempt.’’ Cato Institute would be repugnant, be- I put it in every bill. Anybody who Hear that, ‘‘the first attempt.’’ I am cause when you get one of these, you can read and write has found it in there not familiar with the details of the es- can go down and get welfare. You can and ignored it. I am tired of that one. timate, but there are three responses get welfare, you can access other pro- You do not have to take all the guff in that come to mind immediately. grams, you can do this and you can First, in the INS’ pilot project, if this place, and that is not a personal verification is not obtained electroni- even vote in some jurisdictions with reference. I have heard that one, too. I cally and the very first time, an addi- that kind of a card. am talking about lying. What are you going to do about that? tional, nearly instantaneous, elec- I have put in every bill I ever did Well, we have something in there about tronic attempt is made—instanta- that this would not be a national ID that, about forgery and about this and neous—using alternative databases or card, and that it would be used only at about that. We handle that. You will names. In the vast majority of cases, the time of new hire, and it would be verification of persons actually author- not handle it until you go to a pilot only presented at that time or at the ized to work is obtained in a very few program to figure out what you are time of receiving welfare benefits, that seconds. going to do with this kind of gim- it would not be carried on the person, Obviously, the whole point is to not mickry, and then every time I read a that it would not be used for law en- verify certain individuals. Illegal report or paper from some of these forcement. That is in every single bill aliens will not be verified. A handful of opinion-filled brilliants off campus I have ever done, period. cases then require a visit to an INS of- here, I am always stunned by the fact The card that I believe is probably fice. To our knowledge, every one of that they say what are we going to do, necessary is the one already used for those cases was resolved without sig- what are we going to do about people ID purposes by most Americans, and nificant delay, and remember that this who abuse the welfare system, what especially in California, the State that is a pilot project and not a fully devel- are we going to do about people who takes all the lumps while we give all oped system. come here pregnant and have a child in the advice. That is the driver’s license Second, if there is something wrong the United States of America and then or some kind of a State-issued identi- with the data base of the Social Secu- give birth to a U.S. citizen? What are fication card. But, ladies and gentle- rity Administration, it should be fixed, we going to do about people who denied men, what do you think this is? This is but we will not have to worry about a mother or father the opportunity to a State-issued identification card. That that because we do not deal with that receive a welfare benefit because the is what this is. That is why I favor the issue either. We cannot do anything county and the State had expended it bill’s required improvements in these with the Social Security card, to make all? It is all gone, millions are gone State documents. it as secure as the new $100 bill. We down the rat hole because of fake docu- The reference to ‘‘biometrically en- cannot seem to do that, and it will not ments. coded’’ is pure demagogery. ‘‘Biomet- bother us because we are already told So what you have here without reli- ric’’ merely refers to information relat- that Social Security will be broke in able documents is you have hundreds of ing to physical characteristics that are the year 2029 and will begin to go broke thousands of illegal aliens employed by unique to an individual making it easi- in the year 2012. But we do not deal such employer. Employers can be pun- er to determine if a card is being used with that one at all. That one will be ished if they fail to employ someone by an impostor. That is what ‘‘biomet- one for all of you to deal with. because they suspect a person is illegal ric’’ is. Look it up. A photograph is a Third, the whole point of the pilot if such person has documents that common example. A fingerprint is an- project is to develop a workable sys- ‘‘reasonably appear on their face to be other.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00030 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4479 Use of the ominous term ‘‘encoding,’’ about the pilot program in Santa Ana, But remember now, in this pilot pro- I guess, just appears as a totally gratu- CA. gram, if the new hire is not a U.S. cit- itous crack or shot. Is a photograph on My colleagues have heard the bill izen, the employer then begins the a card encoded on that card? I guess it will create a massive, time-consuming, verification process. Using a computer is, if you want to be stern about it. You error-prone, error-riddled bureaucracy. the employer transmits the alien reg- will have to ask the authors what they They have heard accusations that we istration number or the ‘‘A’’ number on mean, if they mean anything at all, by are racing, with no brakes, toward a an employee’s green card to the INS. the use of that term, except inflam- national ID card that will be ‘‘riddled This happens after the employee has matory language. with mistakes’’ and will be ‘‘dangerous been hired. Please remember that. It With respect to the ‘‘dangerous path’’ to our own workers.’’ happens after the employee has been statement, it is an indication of some- Mr. President, I would like to extin- hired. The majority of the time the em- thing I have noticed about many of the guish this fiery, heated rhetoric with ployer’s request is answered in 90 sec- opponents of any improved verification the cold splash of hard fact. Once my onds. All of the inquiries are answered system. I have found, in the 17 years of colleagues hear the truth, maybe they within 48 hours by the INS. my work in this area, and especially will be better able to sort out some of Here is where this fake figure comes with the Congressman from California, the rest of it, and the American people in. For 17 percent of the newly hired who is tougher than anybody ever in will finally hear the truth. I believe we workers—or maybe it is 20; I have this Chamber—he is no longer a Mem- will no longer have to deal with some heard both, about 1,100 workers; this ber, but I had the highest respect for of the old canards which are in vogue was newly hired, about 1,100 workers— him; he was tough—but he displayed a and have been in vogue for weeks here, the INS was unable to confirm that because currently under the authority fundamental distrust of the Govern- they were legally authorized to work, of the 1986 immigration bill, the INS is ment to do what it would do, funda- ladies and gentlemen. So all of those conducting a pilot project on an em- mental distrust of our people, funda- individuals then were given 30 days to ployment verification system. I hope mental distrust of our political system. set up an appointment with a specific no one here will try to stop it, but you That has to be the root of this, a funda- INS officer in a special office set up to never know. It is working. You might mental distrust of what we are doing. correct possible mistakes in the INS want to go scotch it before it goes too For, as I said many years ago, ‘‘There’s data base. far. It is just like the pilot projects au- no slippery slope toward some loss of Guess how many—I hope my col- thorized by this bill. leagues will hear this—guess how many liberty, only a long descending stair- Let me tell you what has happened so way. Each step downward has to be al- that you can hear it. Over 230 employ- of these 1,100 individuals actually came lowed by the American people and ers in Santa Ana, CA—230 employers— to the INS? Mr. President, 22—22—of their leaders.’’ That will never happen. have volunteered to participate in this them came to the INS. Of these 22 peo- The claim is also made that the sys- INS project, volunteered. ple, only 17 were actually authorized to tem ‘‘imposes costly new burdens on After the hiring of a new worker, the work in the United States. Their trou- States and localities.’’ CBO estimates employer fills out an I–9 form and bles were resolved within the day— the cost of all of the birth certificate checks the worker’s documents. Every- within the day. The other five people and driver’s license improvements re- body is doing that in the United who showed up were not authorized to quired by section 118 of the bill, as States, so if you hear any more argu- work in the United States. I guess you modified by the floor amendment ment about what we are putting on the have to assume that the other 1,000 which was adopted without objection employers to find out if the people in people or so who never showed up to yesterday—how curious, a floor amend- front of them are authorized to work in the INS were not authorized to work, ment of mine to get all of the snarls the United States of America, are citi- either. and the bumps out of an amendment zens, do not think that I put it in this What about the 17-percent error rate, that had objection in the committee, bill. It has been in the law for nearly 10 or 20 percent, that some opponents and I then made these specific correc- years. have spoken about? Is it the number of tions to satisfy most of my colleagues, So this is just like every other em- illegal aliens who were denied jobs by and it passed here by a voice vote with- ployer in the United States. It is a re- the INS pilot program? Is that it? Look out objection. That will be stricken by quirement of current law. It is a total at the statistics, the real statistics. this amendment. distortion of fact and reality to say The current INS pilot project is more This motion to strike will take the that we are going to ask something than 99 percent accurate. In the few work product that was done, with all of more of an employer to either get ‘‘per- cases where mistakes were made, they us in here and their staffs, and junk it, mission to hire,’’ or to ‘‘clear it’’ when were fixed promptly. In no case did any gone, history. You can do that. You he had not had to clear it before. legal permanent resident of the United may do that. If that happens, life will Ladies and gentlemen, they have States lose a job due to this system— go on, the Sun will rise in the east, and been doing it for 10 years, every single not one, nor any U.S. citizen. it will be a joyous day on the morrow. day while we go about our work here. Let me repeat myself because this is But let us be real. What I did with The I–9 is asked for, and people do it one of the most important facts my the phase-in of the driver’s license re- every single day. Some were offended colleagues should remember: No one quirements is going to cost now $10 to when it first began. ‘‘Why should I do has ever lost a job due to faulty data in $20 million, spread over 6 years. I have that?’’ I have a provision, if you are a the INS pilot program. The system is seen estimates of the losses to the U.S. citizen, you need do nothing more used only after a new employee had American people because of the use of than a test that you are a U.S. citizen. been hired. fraudulent ID’s. That is in the billions That would take care of that. But we No one will ever be denied a job and billions and billions of dollars, la- will not get the opportunity, likely, to under this system. The horror stories dies and gentlemen. That is what is get to that. which opponents have bandied about happening. Not to mention voter fraud, So let us at least start with what is are completely and utterly without terrorism, and other crimes that often there. We have a requirement in cur- basis and fact. They are fears and illu- involve document fraud. rent law which requires the employer sions summoned up from the vapors to One other one we have to put to bed, to ask the potential employee in front scare the wits out of the American peo- at least pull the covers up, and then go of him for documents. He is asked to ple. on anywhere you wish to go with this. ask for 29 different ones under the pre- My colleagues should also know that I have to respond to a wild charge that vious legislation, the present law— the employers who participate in this has been made before. You try not to worker authorization ID—and then to verification pilot program think it is respond to all this stuff, but finally make a tragic mistake, with no intent great stuff. They do not consider it a you just kind of get a belly full of it. to discriminate, and ask for another burden. They believe it to be a great The heated rhetoric which has been fly- one, and get a fine or the clink. So we help. I share with my colleagues’ com- ing about the Chamber—threatening corrected that. I hope we will keep ments of those who use the system and and stern—is totally untrue. That was that. try to look askance at the blather of

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00031 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4480 CONGRESSIONAL RECORD — SENATE May 1, 1996 the business lobbyists. When I make Obviously, I hope my colleagues will who make up such a large percentage these remarks, I am not speaking of oppose the Abraham amendment and of the illegal alien population, or people in this Chamber, but those will acknowledge that some of the whether it is sharply reducing the groups I know so well. I know them apocalyptic cries that come from out availability of public assistance pro- well. So they look askance at this there, from the beltway, are truly grams to illegal aliens. All of these, I blather of the business lobbies whose without foundation and reality or fact. think, combined, will play a very effec- sole job is to vigorously oppose all leg- Remember, this is a pilot project that tive role in dramatically reducing the islation which impacts business. you are seeking to strike, with all the illegal immigration problems we con- Here is what these employers say inevitable problems that a pilot project front. about the INS pilot program. ‘‘I love to a new system will involve, but if we Equally, I think, we will see that the this system,’’ says Virginia Valadez, do not even try to work out the bugs provisions in the legislation which pro- the human resources officer for GT Bi- through pilot projects, we will never tect employers, particularly small em- cycles. ‘‘Now I don’t have to be respon- have a workable system. That will be, ployers, from charges of discrimina- sible for whether or not these people then, truly a hazing of the American tion, in cases where no intent to dis- are legal. I don’t have to be the watch- public. They thought we got the job criminate exists, are going to, like- dog.’’ done, but we failed—and failed to- wise, allow us to address the problem Comments of the California Res- tally—in that. of individuals who are legal aliens se- taurant Association: ‘‘Some means of I yield the floor. curing employment in this country and verifying Government documents is Mr. ABRAHAM. Mr. President, I do so, I think, with great effectiveness. vital to the integrity of the employ- similarly acknowledge the efforts of (Mr. BROWN assumed the Chair.) ment system. We desperately need a re- Senator SIMPSON both with respect to Mr. ABRAHAM. Does that make this liable, convenient means for employers the broad subject of immigration pol- pilot program that we are talking to verify the authenticity of the docu- icy over the last 17 years and, more about, this identification verification ments that the Government itself re- specifically, his hard work on the bill program, the linchpin in this legisla- quires. I can assure you the restaurant before the Senate on illegal immigra- tion? Is the absence of that going to industry will participate eagerly.’’ It tion. make this toothless, Mr. President? I will be the first time in my memory— The positions which I have advocated do not think so. Quite the contrary. I the restaurant groups, when I started on a number of the issues that are part think, if anything, it will burden the this business, were the most resistant, of this bill, in some cases, have been bill and burden American citizens—tax- and they feel this would be extremely this opposition to his position, and, in payers, employers, and employees— helpful. some cases, they have been on the with an excessive amount of redtape, Says their publication, describing the same side. They have always been ad- bureaucracy, and big Government in- fledgling pilot verification program, vocated with great respect for his ef- trusion that is not going to hand- ‘‘Bring offers of ready volunteer to our forts here. somely pay off in terms of the benefits offices.’’ The testimony of Robert I must say I sympathize with his feel- it produces. Davis, the president of St. John Knits ings about some of the rhetoric which Let me just talk about some of those Co., before the select committee of the those outside of this Chamber have costs once again. First of all, this ap- California Assembly, after describing launched during the past couple of proach is the kind of big Government the widespread availability of this stuff months as we have dealt with this bureaucracy approach that I think and the great difficulty that puts on issue before both the committee and most of us in this Congress have been the law-abiding employer says, ‘‘To a here on the floor. I, too, have been the arguing we find too dominant already business that wants to comply and target of many rather unusual, in the American economy. Do we really build a stable labor force, this is a strange, and exaggerated charges, as want to have another bureaucracy, an- major concern. Economic loss from hir- well as complaints. In my State of other effort here to try to create hoops ing, training and loss of output from Michigan, in fact, groups who oppose for businesses to jump through as they the removal of a forged document some of the views I have on this issue make employment decisions, or for worker can be severe.’’ He said, now he have even launched paid media cam- U.S. citizens, who are entitled to be can ‘‘invest with confidence in the paigns critiquing my activities here in employed, to jump through in order to training of the individual, and plan for the U.S. Senate on these issues. I am secure employment? a long-term permanent work force.’’ He both an admirer of Senator SIMPSON’s Clearly, it is going to be a costly ven- believes in it. He has seen it work. ‘‘As efforts and a sympathizer with the role ture and a costly one both in terms of a businessman * * * it is exciting and he finds himself thrust into when he bureaucratic redtape as well as in tax- reassuring’’ and has had dramatic suc- chose to become involved in highly im- payer dollars. I was glad to hear the cess. portant issues that touch a large num- term ‘‘$10 billion’’ used as a possibility There they are. The current program ber of Americans. of the cost involved here. I do not know only tests individual or noncitizens in I comment now and finish on the what the total costs are going to be. No order to get a job. The illegal alien comments I made earlier with respect one, in fact, on the floor knows that. only has to claim to be a U.S. citizen, to the implications of this verification But it is certainly conceivable that it present a driver’s license, Social Secu- system on the American people. We will be great. Just as far as we are rity card, and those are the things we have been told as a starting point that aware to this point, the assembling of will find out. How do they avoid the the bill, without this pilot program, this database is going to be in the hun- verification process? What do they do? would be gutless, it would be toothless dreds of millions of dollars. The Social Find out. and, in various other ways, be a bill un- Security Administration has said that Others say we should try and call worthy of us here. I cannot help, when a national program would be $3 to $6 in—there has been a toll-free number we talk about exaggerated rhetoric, be billion, and then it would have to be called 1–800–BIG-BROTHER. They must a little shocked and surprised at those sustained. have forgotten the one called 1–800– allegations, because I consider the bill Mr. President, that is thousands of END-FRAUD. That is an 800 number, as it currently stands, even if it did not dollars per illegal immigrant in the too, that you want to pipe into that have these pilot programs, an extraor- country just to build this system, if next time you are grappling with 1–800– dinary piece of legislation that will that is what we would end up doing. I END-FRAUD or BIG-BROTHER and combat many of the problems this do not think that is exactly the kind of find out whether it will be cost effec- country has with illegal immigration, cost-benefit approach we want to take. tive, find out what we will do, see what and combat them squarely, head on, ef- Let us not just talk about the burdened is up in this country, do the testing we fectively, whether it is increasing the taxpayers; let us talk about the burden need to do, trust a Congress 6 years in border patrols, whether it is cracking to business, and particularly to small the future having to cast another vote down on and ensuring the deportation business. to do it right. If you do not get started, of alien criminals, whether it is in par- We can debate the terminology, we you will never get it started. tially penalizing the visa overstayers can talk about whether it is seeking

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00032 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4481 permission or some other way to de- These are significant costs—costs not of program together. Whether it is a scribe what would be called for under borne by the people who are breaking national database, regional database, this type of an approach. But it cer- the rules, but by the people who are State database, it is going to be cost- tainly would be an additional step in playing by the rules. ly—costs for the small businesses, in the process, and it certainly would re- I do not believe, Mr. President, that particular, but for the employers of quire, in some way, communicating we should attempt to solve the illegal America, who have to develop whatever with someone in a bureaucracy run by immigration problem by bringing huge system it is to comply with and inter- the Federal Government somewhere in burdens on people who are playing it face with the database; and then costs America to determine whether or not straight. I am sympathetic to the prob- in terms of actually doing such compli- verification indeed has occurred. lems raised with respect to people who ance; costs to the employees them- We have never, in my judgment, Mr. live in States such as California. I un- selves, who will be required to go President, ever placed that level of bur- derstand that they have different cir- through the additional step, and espe- den on employers in this country. It is cumstances than we might have in my cially to those who, because of a data- a costly burden, potentially a very State, or yours. But to basically im- base mistake, do not initially get hired costly burden, for small businesses, and pose upon the entire country ulti- and have to go through the additional particularly for those small businesses mately or, in the short-term, full bureaucratic red tape to get back into that have a large turnover of employ- States or regions the kinds of burdens the system; costs to all who will need ees. that are contemplated by this type of either birth certificates and driver’s li- In addition, it is a burden on the em- verification system, it just seems to censes and find out that because of ployees themselves. Again, we have one me, Mr. President, that is not a cost- what we have done, they now have to pilot program in Santa Ana, CA, care- benefit analysis that works out favor- get a new one. Those are the costs on fully monitored by the INS, who are ably for the American people. one side. presumably pulling out all the stops to Now, Mr. President, the real issue On the other side, as I say, the bene- try to minimize delays on a database. that we should focus on, in addition to fits, in my judgment, are substantially So there are 22 cases out of 1,000—1, 2, costs, are benefits, because that is the less than that which has been sug- 3 percent. Extrapolate that to the en- calculus. I think it is important for ev- gested earlier, because I think it will tire country or a large region, as is eryone who is considering how they ultimately still be possible to find a contemplated by the pilot program, feel about this issue to think about the way around the system. For those who and we are talking about thousands of degree to which such a program as is want to find a way around the system American citizens who will be, in one being contemplated here can possibly on the employer side, a verification way or another, denied initial hiring work. Will the forgery stop, Mr. Presi- system will only make a very minimal because the verification system data- dent? Will it really mean that there is impact. For that reason, I think we do base is not able to run at 100 percent. not the capability of circumventing the not need this step in the direction of While it may be the case that when a new system that might be developed? more big Government. I think we program is highly localized in a single Do we really believe that a system can should strike the verification system city, with INS monitoring, the 22 peo- be made perfect? Do we really think and the driver’s license and birth cer- ple can get relatively quickly into the that on Alvarado Street in Los Ange- tificate provisions of the legislation. correct category, I do not think such a les, or in any other city where there I yield the floor. quick turnaround will be possible if the might be this type of forgery, in a cou- The PRESIDING OFFICER. Who program is indeed larger, whether it is ple of years, if not sooner, somebody seeks recognition? larger in terms of a full State or a re- not will come up with a system that Mr. DEWINE addressed the Chair. gion that goes beyond one State, or breaks the code, that somehow pene- The PRESIDING OFFICER. The Sen- certainly if it was a national program. trates the new security that is devel- ator from Ohio. We have had other similar kinds of oped as part of these pilot programs? I Mr. DEWINE. Mr. President, I again things happen, Mr. President. When- am very skeptical, Mr. President. rise in support of the amendment. ever databases are involved, there But, also, let us not lose sight of the I would like to return, if I could, to could be interminable delays. The So- fact that, even separate from the abil- the issue of the birth certificate be- cial Security Administration encoun- ity to develop a foolproof system, we cause I think it is so revolutionary ters this quite often, and it takes days have the problem that many, if not an what we would do if we actually passed to months to correct errors. I do not overwhelming percentage, of the em- this bill as it is written and if we turn think that is the way to deal with the ployer problems we have are inten- this amendment down. As I pointed out illegal immigration problem in Amer- tional. So let us ask ourselves this: If earlier, we are saying to 270 million ica—by creating problems for people there is an employer who knowingly or Americans that your birth certificates who are citizens who are entitled to intentionally intends to hire someone are still valid. You just cannot use work, rather than cracking down on who is an illegal alien, are they even them for anything. If you really want those who are not entitled to work. going to participate in the verification to use them in the traditional way in Let us not overlook the acquisition system? I do not think so. I do not which we use birth certificates today, costs of the documents that will be re- think so, Mr. President. you have to go back to the county quired in order to effectuate this type So while the people who play by the where you were born or contact that of system if it goes beyond a very small rules are incurring the additional costs county. You have to get a new birth project. The acquisition costs were so, of setting up the kinds of systems that certificate under the prescription of I think, accurately and movingly laid will be required to interface with the the Federal Government. For the first out by the Senator from Ohio earlier. database in Washington, the ones who time, we have a federally prescribed Imagine what we will encounter from would shun the rules today will shun birth certificate. We have a federally our constituents if they determine or the rules tomorrow. As a consequence, prescribed driver’s license. In essence, learn that we have moved us in a direc- the issue of whether or not there is a they are not even ‘‘grandfathered in,’’ tion where new birth certificates are job magnet will not be very effectively to use the term we use many times. required, whether it is for passports, addressed by this type of an approach, You will have to get a new one if you weddings, or anything else. Imagine because as long as there are people want to use it. what we will encounter if when young willing to work around the rules, there A 16-year-old who just wants to get people go to get their driver’s license, will be an audience of people who will his or her driver’s license, we are going now living in a wholly different State think they can come to the country il- to say, ‘‘No, you cannot use that birth or part of the country, find out that legally and get jobs with those who ba- certificate that your parents have held our law here today, in attempting to sically eschew the responsibilities as onto for 16 years. You have to get a crack down on illegal immigration, has employers of following the rules today. new one.’’ We are going to say the thwarted that effort, forcing them to So there we bring ourselves to the same thing to someone who wants to incur additional costs in order to get final balance. On the one hand, massive get married. You have to go back to their first license. costs, taxpayer costs, putting this kind contact that county where you were

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00033 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4482 CONGRESSIONAL RECORD — SENATE May 1, 1996 born 20, 30, or 40 years ago to get that There are other States that probably get someone’s birth certificate if I was birth certificate. You have to be re- are more restrictive, but I would say close in age to that person. It might be issued a new form. We will have to say even in those States that are more re- able to pass. It might be able to work. to someone 65 years of age who wants strictive, unless we are willing to im- I have a great birth certificate. If I to get Social Security, or Medicare, pose burdens on American citizens that took it to the Chair and he was the em- ‘‘Sorry.’’ You come into the Social Se- no one in this Chamber will impose, ployer, he would say, ‘‘That’s it, a new curity Administration and you think unless we are willing to say to the 65- birth certificate, it has to be right.’’ you are going to get your check next year-old who wants to get Social Secu- And if the next day the real person month. You sign up, doing what you rity who now lives in South Carolina came in and they had their old birth are supposed to be doing. We will say and was born in Ohio that you have to certificate, the old, moldy birth certifi- to them, ‘‘No, you have to go back and personally go back to Cleveland, OH, or cate that had been in their closet or in get a new birth certificate,’’ a birth Cincinnati where you were born to get their attic, or had been in the desk for certificate that was issued initially 65 your birth certificate, unless we are a number years, you would say, ‘‘Well, years before that. I think that is an willing to say that, how in the world do that is not as good. I have to take the undue burden. I think it is a terrible you protect the integrity of that birth other one.’’ burden. certificate? How in the world do you do So I think when you work this out— I would like to talk now for a mo- it by mail? it all sounds great in theory—it just ment about another aspect of this, and Let us take it a step further. Let us will not work. If you look at how the that is those who argue in favor of re- assume the State even has some very government really works at the county quiring this national birth certificate— restrictive ways in which they will level, if you look at how health depart- nationally prescribed birth certificate. issue a birth certificate. What is the ments issue these certificates that To those who argue that it is worth it, use of being able to demonstrate who really work, if you take into consider- we are going to help solve the illegal you are, whether it is a driver’s license, ation the fact that an open State can immigration problem—and I know they if you have a driver’s license such as get anybody’s birth certificate, this are well intentioned when they say Senator SIMPSON has over there—I just does not make any sense. this—and it is worth it to require the heard him tell the story of how cheap Let me turn to another point. I think people we represent to do all of this, I it was to get that driver’s license. It is my friend from Wyoming has been too would argue, walk through this with a great story. It illustrates a lot of the modest. This is a good bill. He has me and see if at the end you still think problems that we have. Then you go to made it a good bill. He has had 17 years that a birth certificate—this new get the breeder document, and you can of experience at looking at things that tamperproof birth certificate—is really go circular. Even if you have a restric- we need to do. There is a consistent list going to solve very many problems, be- tive State, not like Ohio and other of things that we have done. I say cause it is based upon the premise that States where you can get anybody’s ‘‘we’’—‘‘he’’ has done. This is the legal the person who gets this new birth certificate, what in the world immigration bill passed by the sub- tamperproof birth certificate is in fact good does it do to have all these bells committee, a portion of it. These are the person they purport to be. That, I and whistles on these birth certifi- the things each one of us think relates think, is a leap in logic which may not cates? to a specific problem of dealing with il- necessarily be true. We will spend a ton of money. We legal aliens. My colleague from Wyoming has con- I reduced it to a chart form because sistently—and I respectfully say that will violate States’ rights because we I do not want anyone in this Chamber he has been at this for 17 or 18 years. are going to tell the States what they to think that if this amendment is ac- He refers to the birth certificate as the can accept and what they cannot ac- cepted—which I certainly hope it will ‘‘breeder document.’’ This is the real cept for official State business, all in be—that there is nothing left in the problem: We have to get at the birth the name of trying to solve this prob- bill to deal with illegal aliens. This is certificate. The difficulty with that is lem. I would submit it is not going to a tough bill. The Senator has done a that under the laws of many States and solve it at all. In fact, again, it is not great job. He has taken his years of ex- the way it operates in many States, too much of a leap of the imagination that breeder document may be a sec- to think it may create more problems. perience in the subcommittee, along ond-generation document or a third- Why? Because now you are going to with members of the subcommittee, generation document. have this routine of millions of people and he did a great job. Let me take my home State of Ohio. every year having to go back through Look at what the subcommittee did: Increased Border Patrol, INS inves- Ohio is what might be referred to as an when they turn 16 and want their driv- tigators, wiretaps for alien, smuggling, open State. It is not the only State er’s license and want their Medicare card, or when they want to get mar- and document fraud; that follows this procedure. There are RICO for alien smuggling and docu- many other States that follow this as ried; millions of people have to go back to the origin county of their birth to ment fraud; well. All you need to do in Ohio to get Increased asset forfeiture for alien get a birth certificate. These will be a birth certificate is to stop in at the smuggling and document fraud; county health department office. You issued en mass. 5. Doubled fines for document fraud; put down your $7, and you get a copy of It seems to me that you do not have Next, faster deportation of illegal your birth certificate. Not only can to be too smart if you are a person who aliens; you get a copy of your birth certifi- wants to violate the system. If you are And finally, faster deportation of im- cate, Mr. President, but you can get a a person who wants to game the sys- migrants convicted of crimes. copy of anybody’s birth certificate. It tem, as the Senator from Wyoming That was the bill coming out of the is a public document. It is a public said very eloquently, there are people subcommittee. It is a bill that I think record. So I can go into Ohio and get a who are doing it, and it is a problem. I have heard my friend say would have birth certificate for anybody if they But now you do not have to be too been hard to get through on the Senate were born in that county. bright to be able to figure out how to floor even as recently as a couple of What is the protection here? You can start working that system and how to years ago. But it is tough and it is issue the finest document in the world, get out of some of these counties, par- good. with all the bells and whistles on it in ticularly in States that are open for Then the bill went to the full com- the world; you can spend all of the birth certificates, this breeder docu- mittee, and the full committee even money you want to make it ment. Only now it is going to be a upped the ante. The full committee tamperproof, but if the person who breeder document that is going to be added additional things. This is what walks in and gets that document is not superior. You are going to be in the sit- the full committee did. that person, what good have you done? uation where you, as an imposter, are ‘‘Bill Made Tougher in Committee.’’ So in States like Ohio that have this going to have a better document than Increased penalties for visa over- open system, open record system, what the person who is actually that person. stayers. good does it do? There is absolutely no MIKE DEWINE can go in; I could figure Let me stop with that for a minute good at all. out how to game the system. I could because that is a problem. My friend

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00034 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4483 from Wyoming has identified this as a system so police officers would know Mr. SIMPSON. Mr. President, I problem. These are people who over- who they were dealing with. We found thank the Senator. I wish to review the stay. They are people who come here that only 5 percent of the criminal situation. We have a Leahy amend- legally—they are not legal immigrants, records in the State of Ohio were to- ment, on which, I believe, if anyone but they are people who come here le- tally accurate—only 5 percent. That is wishes to address that, we are ready to gally. They are students. For any num- not unusual. That is not unusual. close that debate. There is no time ber of reasons they are here, but then In all the discussion about the Brady agreement here, but I think that is they stay. That is a problem. This pro- bill, we got into the whole issue of the ready to be closed. I think Senator vision put in by the full committee accuracy of criminal records. We found HATCH has a statement and maybe will deals with that—increased penalties for that there are very, very few States enter that in the RECORD. Senator visa overstayers. that could put in an instant check sys- BRADLEY has an amendment, and there Next: More investigators for visa tem because of the high inaccuracy were several who said they wished to overstayers; level. speak on that. I have not had any fur- Next: Eliminate additional judicial Now, after having spent hundreds of ther word from anyone on that. There review of deportations; millions of dollars to try to upgrade a is no time agreement on it. Then the No bail for criminal aliens; criminal record system that we depend Abraham amendment, which now goes Three-tier fence along the border; on to make life and death decisions, to Senator KYL for his time. I have Next: Expand detention facilities by how in the world do we expect to, over- really nothing much further on any of 9,000 beds; night, re-create a national data base those three. And finally: Increase Border Patrol system for employment, a system that, So, again, if we are going to go on, by 1,000 agents. by definition, is going to have to be a maybe we could lock in a time agree- All of those provisions are in this lot bigger? ment to be sure that we let our col- bill. So it is a bill that is a strong bill, Now, people could say: ‘‘Well, you are leagues know there will at least be and no one, no one should be ashamed talking about a pilot project, Senator. three votes on these three amend- of voting for this bill. No one should Isn’t that what you are talking ments. feel they cannot go home and be able about?’’ Mr. KYL addressed the Chair. to say, ‘‘We passed a very, very tough ‘‘Yes.’’ The PRESIDING OFFICER. The Sen- bill.’’ Yes, we are talking about a pilot ator from is recognized. Let me turn, as I said I would earlier, project, but I have been thinking about Mr. KYL. Mr. President, I shall be to the issue of a national verification this, and I cannot come up with any quite brief. If the ranking majority and system. way you can have a pilot project that minority members wish to discuss a I understand that this is a pilot really works and is really accurate and time agreement, that would be fine, or project. Again, I only bring to the floor really protects employees or potential perhaps while I am speaking they could my own experience. Each one of us employees unless you have a national do it, but I will not speak more than 15 brings our own experience. I think that system. We cannot build walls around minutes for sure. is the great thing about the Congress States. We cannot build walls around Mr. President, I rise in opposition to and the Senate. We do have varied communities. People go back and the amendment. The discussion that backgrounds. My background has been, forth. You have to create a national my colleague from Ohio has just en- at least in part, in law enforcement as system, even if you are only using it in gaged in primarily relating to the issue a county prosecuting attorney. four or five pilot projects, and so we of the birth certificate, I will leave to One of the things that shocked me 20 will have to build a national system. Senator SIMPSON. I should rather re- years ago is when I found what kind of We will have to build a national system spond to arguments primarily made state our criminal records were in. that is not going to be error prone. earlier by the Senator from Michigan What am I talking about when I am Anyone who has had any experience and, to some extent, the Senator from talking about criminal records? I am with the criminal system in this coun- Ohio relating to the problem of talking about basically the same type try, who really has looked at it, I think verification of employment status. of thing here, only I am talking about is going to be hard pressed to be able to I wish to go back in time to set this a finite group of individuals, criminals. make a good argument that this new issue in proper context. In 1990, 6 years It is important for the police officer system we are going to create is not ago, the Congress increased the limit who comes up behind a car to be able going to cause serious, serious prob- on legal immigration to the country by to determine who is in that car, if that lems as well as be extremely expensive. 37 percent because we thought the laws person has a record, to be able to deter- I know there are some of my col- that imposed serious sanctions for hir- mine if that person is wanted, or at leagues who want to talk some more on ing illegal immigrants would have the least if that car is a stolen car. When this bill, but I just believe this amend- effect of reducing that illegal immi- someone is apprehended, then it is im- ment makes eminent sense. It is a good grant population; that making it hard- portant to be able to determine wheth- bill without it. It is a great bill. It does er to employ illegal immigrants would er that person is wanted, whether they a lot. The Senator from Wyoming is to in effect remove that magnet—employ- have had a criminal record in the past. be commended for the work he has ment—that was drawing many people The same way for a judge who looks done. But unless we take out these pro- across the border, particularly from down at arraignment. He is on his 52d visions, unless this amendment passes, Mexico. person, or she is on her 52d person, the I think we are all going to be very Unfortunately, it has not worked out judge is, and is trying to determine sorry, and I think we are going to have that way because the system just has what the bond is. It is important, when a lot of explaining to do to our con- not worked very well. Unfortunately, they glance at that record, the record stituents when that 16-year-old wants between 300,000 and 400,000 illegal im- be complete; that they know 3 years to get his or her driver’s license and migrants are now entering the United ago this person committed a rape, or they find out, no, that birth certificate States every year, many of them peo- they know that 4 years ago this person is not any good; the 65-year-old finds ple seeking these job opportunities. In fled the jurisdiction. All of that is im- out, no, my birth certificate is not any fact, in my own State, the INS esti- portant, and police officers deal with good anymore; I have to go back and mates that about 10 percent of the this every day and have to rely on this get a new one, or when someone wants State’s work force is made up of illegal information to make life and death de- to get married and they find out their immigrants. cisions. birth certificate is not any good either. I hope Members of the Senate believe I was shocked a number of years ago I think that is a very serious problem. that it should not be acceptable to to find that this system is not entirely Mr. President, I see my friend from have so many illegal immigrants tak- accurate. That is a kind way of putting Wyoming standing. I yield the floor. ing jobs here in the United States. The it. When I became Lieutenant Governor The PRESIDING OFFICER. Is there question, then, is what we do about it. in Ohio, we had as one of our goals to further debate on the amendment? We have a system that is not working, try to upgrade the criminal records The Senator from Wyoming. and we need to do something about it.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00035 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4484 CONGRESSIONAL RECORD — SENATE May 1, 1996 That is what the bill attempts to status of the employee, he can be the ad hominem argument, that is deal with. We started out with a bill charged with violating our immigra- made in a debate when you do not have that dealt with it in a much more ef- tion laws for hiring somebody who is a good answer. It makes perfection the fective way. But in order to com- not legally authorized to work here. enemy of the good. There is only one promise and get more support over the As Senator SIMPSON and others have perfect thing in this universe and that weeks and months, many changes were said, the system we have tried to de- is He Who made the universe. None of made, to the point, now, that it is real- vise to verify the working status, or us is perfect. None of our laws is per- ly a very modest approach. This is a legal status, of the individual for work fect. No system we can devise is per- very modest change we are seeking, to purposes is not working because it re- fect. Nothing is foolproof. Nothing is try to find out how to strengthen this lies on a series of documents, all of even tamperproof for people who are verification process so not so many il- which are easy to forge. Therefore, you not fools but are very clever individ- legal immigrants are working in the end up with a situation where it is vir- uals. United States. This is clearly the focus tually impossible for the employer to But we can try to do something to of the effort, to reduce the effect of the really know whether the individual is enforce a law that, 10 years ago, every- magnet of employment. entitled to work or not. one thought was still a good law and It has been illegal to hire illegal The employer fills out what is called none of the opponents of this aliens for 10 years now. So I think the an I–9 form to verify the eligibility of verification system is trying to repeal. first thing you have to do is ask what each person hired. But, as I said, that They are, in effect, willing to allow a is not working and what can we do system is open to great fraud and law on the books they know cannot be about it? The Jordan commission, abuse. So one of the purposes of the enforced. Nothing detracts more from a which has been referred to many times verification system is, obviously, to society than keeping laws on the books in this debate, studied this problem as make the law work. Another purpose is that everyone knows are not being en- much as any, and it came up with sev- to make it easier for the employer to forced. It breeds an attitude against eral recommendations. What the Jor- verify the legal status of the indi- the law, and, after all, the law is the dan commission and many other immi- vidual. Another purpose is to protect underpinning of the country. We are a gration experts have concluded is that the individual seeking employment. nation of laws. the best way to reduce the number of I want to make it very clear that the If we willingly, knowingly, allow a illegal aliens working in our country bill specifically prohibits the establish- lot of laws to be on the books that ev- today is to implement some kind of an ment of any national ID card. What erybody ignores because we know they easy-to-use, reliable employment many of us believe, ideally, is there is do not work, it makes them unimpor- verification system. In fact, the Jordan no card at all. Let us take the Social tant, in effect. It make the purpose be- commission reported that current em- Security number. You are frequently hind them unimportant. I submit we ployer sanction laws cannot be effec- asked to give your Social Security are not seriously doing our job if we tive without a system for verifying the number, but you do not necessarily simply argue against trying to improve work eligibility of employees. have to have a card with you that iden- a law with nothing to substitute to So, if the current system is not effec- tifies you as an individual for other make it better. There are no concrete, tive in weeding out those individuals purposes. On those few occasions in positive suggestions here, no construc- who are here illegally and, as the Jor- your life, hopefully few for most of us, tive criticism. It is all negative criti- dan commission and others have said, where you are applying for a job, you cism. You cannot make a perfect, fool- we have to find a way to develop a give the Social Security number. Per- proof system, they say. Nobody is saying we can. But we can workable system, what is the next haps one of the pilot projects is a 1–800 sure make it a lot better than it is. We step? You do some research. You try to number that the employer can dial up cannot make a foolproof system along do some pilot projects, some experi- and punch in the numbers of the Social the border either, but that does not ments, some demonstration projects, Security number and get information keep us from trying. Almost everyone as they are sometimes called, to find back that the individual who he has here is going to support training 1,000 out what will work the best. That is just hired is, in fact, legal. new agents to put on the border and in what the committee did. It adopted a In any event, we are not talking our cities every year for the next 7 verification provision which authorizes about a national ID card here, and the years; to build fences, to build lights, a series of pilot projects. We are not debate should not be confused with to do all the other things to try to changing the law. We are not imposing that prospect. Moreover, the employee keep the border more secure than it is. a system. We are certainly not impos- verification would only be used after It will never be totally secure, but we ing a national system. We are simply an individual was hired, so you do not do not give up. We try to seek new authorizing the Attorney General to run into problems of discrimination ways of protecting that border. In fact, experiment with some pilot projects here. Perhaps most important—and I we have some pilot projects in this bill over a short period of time, 4 years, to really view this as a deficiency in the to experiment with different kinds of determine what will work, what is the bill, not something to brag about, but fencing and different kinds of lighting most effective way for employers to it certainly answers one of the objec- and roads, to see what works the best verify that the person they have hired tions of my opponents—is that these to secure the border. is legally authorized to work. That is pilot projects would not in and of Why can we not have some pilot very straightforward. themselves establish any new projects to experiment, to see what are These projects are intended to assist verification system for the country. the best ways of verifying the legal sta- both the employer and, frankly, the The Congress would have to actually tus of people for employment pur- person seeking employment. Because, act, would have to pass a law imple- poses—and welfare benefits, I might if an individual seeks employment and, menting a verification system before it add? It is a false argument, to make frankly, looks like me, there probably ever took effect. So there would be perfection the enemy of the good. are not going to be too many questions plenty of opportunity for those who op- All this bill does is allow us to try asked. But, in my own State of Ari- pose this, once a pilot project had es- some new things to see if they will zona, we have a very large Hispanic tablished some good ideas here, to pick work. Now what is wrong with that, population. There are a lot of people those ideas apart if they do not like Mr. President? who seek employment in which the em- them. Basically what they are arguing I also heard an argument that it is ployer is basically in a dilemma, in a against is something that has not even going to cost the employers. Abso- catch-22 situation. If he asks too many been created yet. They are saying we lutely false. First of all, we made it questions of that individual, perhaps cannot imagine a system that would very clear that the pilot projects can- because he or she looks Hispanic, work well and therefore we should not not cost the employers anything and, speaks with a Spanish accent, that em- even try to find one. secondly, one of the reasons we are try- ployer can be charged with discrimina- As one of my colleagues said, it is ing to develop a new verification sys- tion. But if the employer does not ask impossible to have a foolproof system. tem is to decrease the cost of compli- enough questions to verify the legal That is the last argument, except for ance. It is not easy to comply with the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00036 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4485 filling out of these I–9 forms. I know, I The purpose and the thrust of this agency, whatever that might be, and talked to a lot of employers who do it. particular amendment in the first in- other features designed to limit tam- It is a hassle. It will be much easier stance, on the question of the birth pering and counterfeiting. We let the and less costly for them if we can im- certificate, is to make sure that docu- States do whatever else they want to plement a truly effective verification ments that are going to have to be re- do, but we are trying to get a handle on system. quired and be supplied are going to be this. In the end, Mr. President, as I said, accurate. Mr. President, we have heard a lot of the verification system that is con- Why is that important? It is impor- questions about how this is going to be templated in this legislation is really a tant, first of all, if we are serious about costly. It is approximately $10 an very minimal effort. It is a pilot doing something about illegal immi- issuance of a birth certificate in the project only. There is no assurance, as gration. If we are not going to do that, State of . We can give other il- the original bill provided, that a na- then the magnet attraction of jobs in lustrations of that as well. tionwide system will ever be imple- the United States is going to continue So it is important as we go to this mented. Such a system would only to invite people from all over the world issue about the birth certificates to arise if we concluded that there are to come to the United States. really understand it. As has been point- some really good ideas that come out We can build fences and fences and ed out time in and time out during this of this pilot project, presumably with a fences and hire border guards and bor- debate, the birth certificate is that majority of the House and Senate der guards and border guards, but we breeder document. If you get that birth agreeing to implement that have seen what happened in Vietnam certificate from any State that has verification system with legislation. when we had those various fences out open files on it—we have 13 States that As I said, this can really only be and mine fields and every kind of light- have open files on it—as I mentioned called a beginning, but it is an impor- ing facility. People still were able to earlier, and you can go on in there and tant first step, and I think that the bore through to where they wanted to get a copy of anyone’s birth certificate verification provisions of this bill, go if they had a sufficient interest in and get your own picture put with that minimal as they are, should not be doing so. birth certificate, and you can have a eliminated as the opponents suggest, No. 1, we have a national program at driver’s license, if you pass the driver’s but rather should be retained. the present time. requirement, and that is one of the eli- Therefore, I urge my colleagues to No. 2, everyone who wants to work gibility cards for employment. vote against the motion to strike these and every employer in this country is So, Mr. President, if we are serious important provisions from the bill. required to fill this out. about trying to deal with this under- Mr. KENNEDY addressed the Chair. The thrust of the Simpson proposal is lying issue, this proposal that Senator The PRESIDING OFFICER. The Sen- to get at the question of ensuring that SIMPSON has is absolutely essential, ator from Massachusetts is recognized. the documents that are going to be necessary and reasonable to try and Mr. KENNEDY. Mr. President, I provided to that employer are going to deal with this issue. know we have had a good debate and be legitimate and that we are going to On the second question about the discussion on this amendment. Let me make substantial improvements with various pilot programs to figure out a just summarize very briefly the rea- the problems of fraud in the making of better way to help employers verify sons that I believe that the existing those documents, as well illustrated by who can work, because the current ap- provisions are so important if we are the Senator from California. That is proach is not working, our provision serious about dealing with the prob- what this is all about. simply requires the Attorney General lems of illegal immigration. One of the provisions says that we to conduct some pilot programs. First of all, there have been com- are going to have to try and make sure I wish we would spend a moment, and ments by those who are supporting that we are going to have birth certifi- I will just take a moment, referring striking these various provisions that cates put on tamperproof paper. We our colleagues to those provisions on utilize an old technique that we know hear how the world is coming down be- page 13 of the legislation which out- of around here and many of us have cause we are going to have that re- lines what will be necessary in terms of seen many times, and that is, misstate quirement. these various pilot projects. We pointed what is in the bill and then differ with Let us look at what the legislation out they are not being put into effect. it. Misstate what is in the bill and then says on birth certificates: They will be completed and then a re- differ with it. The standards described in this para- port will be made to the Congress, and That is true with those who have sug- graph are set forth in the regulations the Congress will be able to take what- gested that we are moving toward a na- on page 38, and it says on line 13: ever steps that it will. tional identity card. It is also true of (i) certification by the agency issuing the It says: those who say we do not want a new birth certificate— (2) The plan described . . . shall take effect kind of national system that is going Whatever agency in the State issues on the date of enactment of a bill or joint to be governing in the rural areas or the birth certificate. resolution . . . urban areas of this country; that it Use of safety paper, tamper-free The objectives it must meet: the pur- somehow is going to be national. paper, that is true. We have said that pose is to reduce illegal immigration, Mr. President, at the present time, they have to move toward tamper-free to increase employer compliance, to we know, as it says in the Immigration paper. protect individuals from unlawful dis- and Nationality Act, to hire for em- The seal of the issuing agency— crimination, to minimize the burden on ployment in the United States an indi- Whatever that agency is in any businesses. vidual, complying with the require- Those are the objectives. They sound State. ments of the subsection (B), and sub- pretty good to me. That is basically section (B) is spelled out in such a way and other features designed to limit tam- what we are considering on that. pering— as to require everyone in the United Within that, Mr. President, as I have States of America, whether they are in Left up, again, to the State. seen as a member of the Judiciary Maine, Wisconsin, Florida, Massachu- counterfeiting, and use by impostors. Committee, they believe that they may setts, Texas or California, to fill out There it is, I say to my friends. Those very well be able to issue or develop this particular form, the I–9 form. That are the provisions that we are asking programs to increase the certification is a national requirement in existence in order to stop illegal immigration and accuracy that are industry based, at the present time. into this country. How can we say that perhaps regionally based, but industry Do we understand that that is al- these are unreasonable? How can we or employer based. You have about 80 ready in existence? And behind that, say that these are not necessary? How percent in seven States, 80 percent of with the other requirements in terms can we say if we are serious about ille- the illegals in seven States. of the identification of the individual, gal immigration that just insisting There are some very interesting pilot you have a list of acceptable docu- that there is going to be tamperproof programs that are in the process at the ments. paper out there, the seal of the issuing present time. We have not the time to

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00037 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4486 CONGRESSIONAL RECORD — SENATE May 1, 1996 go through them, although I think any- Let me just say, finally, unless we Whatever happened to the notion of one on the Judiciary Committee who are going to do that, we are going to do regulatory reform, which almost every took the time to get the briefing from what we have heard stated out here on Senator at least paid lip service to? the Justice Department has to be im- the floor, the American people are This seems to be one of the biggest po- pressed about what they think the pos- going to get frustrated by the failure tential unfunded mandates that has sibilities are of really strengthening to act; and then we are going to have ever been proposed on this floor. the whole process to be able to root out recriminations that are going to come I am confident that almost no em- illegal immigrants from the employ- down in a cruel kind of world and di- ployer in the State of Wisconsin would ment process in this country. vide families and loved ones, and there feel comfortable with the notion that There are very important privacy will be a backlash against legitimate suddenly, in addition to everything protections, Mr. President, and the list people being reunited and trying to else they have to do, they have to call goes on. We have drafted to deal with make a difference and contribute to up Washington under this. If there is that. The amendment has been drafted this country. any ambiguity involved about the pos- to try to take into consideration every This, I think, is one of the most im- sibility that this might occur, I refer possible limitation and sensitivity. portant pieces of this whole legislation. to page 26 of the bill, and subsection But, Mr. President, we are going to I hope the Abraham-Feingold amend- (E), where it explicitly states that one have to ultimately make a judgment. ment will be defeated. of the things that could be done in If you are serious about controlling il- Mr. FEINGOLD addressed the Chair. these pilot projects is to create the fol- legal immigration, serious about that, The PRESIDING OFFICER. The Sen- lowing: recognizing that half the illegals get ator from Wisconsin is recognized. A system that requires employers to verify here legally and then jimmy the sys- Mr. FEINGOLD. This has been a good the validity of employee social security ac- tem with these documents that are debate. It appears to be winding down. count numbers through a telephone call, and fraudulent, picked up easily, and get Let me just add a couple responses to to verify employee identity through a United jobs and displace American workers. If the comments of the Senators from States passport, a State driver’s license or you are interested in halting illegal Wyoming and Massachusetts. identification document, or a document immigration, you are going to have to One of the words that has been issued by the Service for purposes of this clause. do more than border guards. You are kicked around here is the word ‘‘per- going to have to get at the breeder doc- mission.’’ Does this employer identi- So it is explicit in the bill. It is not uments and get it in an effective sys- fication system, if it is fully imple- just some objectives, general objec- tem. mented, require permission from the tives, as the Senator from Massachu- If you are interested in protecting Federal Government for an employer setts was reading earlier. the Federal taxpayer, from illegal to hire somebody? It has been sort of You go 13 pages later, there are the aliens getting fraudulent documents so muddying the issue. explicit approaches that are permitted. that they can qualify for public assist- I suppose you could call the current One of those approaches is to put in ance programs, you better be inter- system, asking for ‘‘permission.’’ It is place a pilot program that presumably ested in doing something about these kind of a loose use of the word, because would lead to a national program re- fraudulent documents or otherwise we what is required now with the I–9 is the quiring every employer to essentially are just giving lip service to trying to obtaining of a certain kind of identi- call Washington after they have hired protect the taxpayer. fication card. But what it does not in- someone. I think this is very troubling If you recognize the importance of clude—and this is the phrase I used and certainly something that should be trying to do something about the when I spoke; I did not just say ‘‘per- removed from the bill. illegals, again, displacing jobs, we feel mission,’’ I said, ‘‘having to ask per- Another comment that I found inter- that it is important that we at least mission from Washington, DC.’’ That is esting was the comment of the Senator try to develop three pilot programs to what this system that could arise from from Wyoming. He said that if this sys- see what recommendations can be this proposal may create. tem costs $10 billion, it would be worth made to try to deal with this problem. What happens now is the employer it. I think that is debatable, perhaps. These are recommendations that are does not have to get on the phone or But we have no assurance that even made by the Jordan commission and by through a computer to find out some- after we have gone through this proc- others who have studied it. We ought thing from a national databank. That ess, either allowed every employer to to be prepared to examine those at the is a big difference. Ask anybody who do this or mandated every employer to time they are recommended, to evalu- tries to run a small business or a farm do this, after we spend $10 billion, we ate them, to find out if they are going how they are going to like the idea have no assurance at all that this sys- to make a difference. I believe they can that, in addition to everything else tem will work. make important recommendations and they have to do now to try to keep There will still be fraud. There will suggestions. their business going, every time they still be fraudulent documents. No one Mr. President, this is a hard and dif- want to hire somebody under one of has been able to assure us this is fool- ficult issue. It is a complicated one. these alternatives, they would have to proof. We may have created this giant For people just to say that we can either call Washington or they would mandate and spent $10 billion, have solve our problems with illegal immi- have to communicate with Washington this huge system in place, and it may gration by bumper-sticker solutions, through some other system, such as a not work. So it is not just a question of that with that we are going to halt il- computer system. spending the money. There is no guar- legal immigration, that all we have to Who is going to pay for all those sys- antee it would, in fact, work. do is put up fences and more border tems? Who is going to make up for the So the question here in the end is, guards, that we are going to halt that lost time of the employer who has What the adoption of this amendment just by adding more penalties—I have these additional burdens? It is very im- will do to this whole bill? Some say it been around here. We have added more portant to distinguish here between will destroy the bill. Others think, as I penalties on the problems of guns since what is current law and what this bill do, as Senator ABRAHAM does, that it I have been around here than you can could do if this amendment is not will make it a measured response. In- possibly imagine. You think it is stop- adopted—getting permission from stead of using a meat ax to deal with ping gun crimes in this country? Abso- Washington, DC. I think that is a fair the problem of illegal immigration, we lutely not. statement of what this adds to this will focus on the tough items that are You can just keep on adding these bill. in the bill that the Senator from Ohio penalties, but unless you are going to How can this possibly square with identified. get to the root causes of any of these the rhetoric and legislation proposed in There are strong measures in this problems, we are not going to have a the 104th Congress? Whatever happened bill. Frankly, I think a couple of them piece of legislation that is worthy of to the notion that we should not do might go a little too far. This is not a its name in dealing with a complex, more unfunded mandates from Wash- weak-kneed piece of legislation if we difficult problem. ington, especially on small businesses? get rid of this extreme mandate that

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00038 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4487 could potentially arise from these pilot In addition, it has been suggested gram. The cost will be great to the em- programs. that somehow because the 1986 legisla- ployees themselves who are playing by So, Mr. President, for those who sup- tion has not gone as far as people had the rules—U.S. citizens and those who port a strong immigration bill, I reject hoped for, it is a mistake to resist this legally can seek employment—because the notion that getting rid of this po- approach that is being proposed with those people in some cases will be de- tential employer verification system the pilot program. I think that is actu- nied employment because of data base would make it a weak bill. I think that ally counter-intuitive, Mr. President. malfunctions. The cost to taxpayers of is wrong. I think everyone should re- The fact is, every few years people setting up the type of data base in- member the balance here between come along with a new, better mouse- volved will be considerable, and the keeping the strong provisions that are trap, it would seem, or they would cost to average American citizens who, in the bill versus making the bill so claim, for addressing the problems of because of this type of program, find difficult for so many Americans and so illegal aliens securing employment. they need new birth certificates or new many businesses that it would be re- Ten years ago we burdened the Amer- driver’s licenses, will be considerable sented rather than welcomed. Mr. ican economy and our businesses and as well. A lot of costs, Mr. President. President, I yield the floor. employers with a lot of redtape—I–9 The benefits, on the other side, are The PRESIDING OFFICER. Who forms and other things—and they have not very clear to me. First of all, as I seeks recognition? not worked. Those who bring this have said in previous comments, those Mr. SIMPSON. Mr. President, let me amendment today are saying, ‘‘Let’s employers who intend to fire illegal propose a unanimous-consent request, not add yet another level, another tier, aliens at lower-paying jobs or below which will get us to vote on the pend- another round of redtape to those peo- the wage level they otherwise would ing amendments, if I may, and answer ple who are trying to play by the rules have to pay will get around any kind of any questions, or you may reserve the and create opportunities for people in verification system because they will right to object. I will certainly do that. this country.’’ not participate. To the idea that we Here is the consent agreement I would Third, Mr. President, it has been sug- will create a foolproof system, a card propose. gested that somehow this is really that defies any type of tampering or I ask unanimous consent that the something good for employers, it is counterfeiting, to me, is a remote pos- vote occur on or in relation to amend- good for people who might be discrimi- sibility. ment No. 3790 at the hour of 4 o’clock nated against because of their eth- There will be plenty of costs and very today to be followed by a vote on or in nicity or their race. This is a case, few, in my view, benefits. Rather than relation to amendment No. 3780, to be though, where frankly the people who going down the route we went in 1986, followed by a vote on or in relation to are the alleged beneficiaries are say- it is our argument that we understand, amendment No. 3752; further, that ing, ‘‘Thanks, but no thanks.’’ That is very simply, the losers here are the there be 2 minutes of debate equally di- why this amendment that we are bring- taxpayers, the employers, the employ- vided in the usual form prior to each of ing, both the verification amendment ees, the people playing by the rules. those votes. as well as the amendment that Senator Those are the folks we should be help- The PRESIDING OFFICER (Mr. DEWINE has separately offered with re- ing, Mr. President. KEMPTHORNE). Without objection, it is spect to birth certificates and driver’s The balance of this legislation does so ordered. licenses, are being supported by the exactly that, by cracking down on the Mr. SIMPSON. Let me say, too, that National Federation of Independent people who are violating this. I do not there are two other amendments. Business, and they are key votes for think we should take a step other than There was an amendment of Senator that organization, by the chamber of in that direction. For those reasons, FEINSTEIN from last night with regard commerce, by the National Association Mr. President, I strongly urge passage to fencing, which Senator KYL and Sen- of Manufacturers, by the National Re- of this amendment, support for the ator FEINSTEIN are working toward re- tail Federation, and yes, the National striking of both the verification proce- solving and may have something on Restaurant Association. We have heard dures as well as the procedure of the that. We are not ready for a vote there. earlier somehow that restaurants were driver’s license and the birth certifi- Of course, that is not part of this. supporting this. The national associa- cate procedure. Then there is an amendment of Sen- tion opposes it. Mr. SIMPSON. Mr. President, I think ator SIMON with regard to deeming, The businesses who will have to im- this has been a very impressive and im- with regard to the issue of disabled per- plement this, whether in pilot program portant debate. I commend Senator sons. We have not included that here, form or otherwise, say, ‘‘Thank you, ABRAHAM. I can see why the people of but that will be coming up as soon as but no thanks.’’ So, too, do groups his- his State placed him here. He will have we conclude this. torically fighting discrimination, such a great career here. I wish him well. He Senator REID has an amendment with as the ACLU and others. The fact is, is very able, formidable, and fair. We regard to criminal penalties on female the beneficiaries are not really going try to express to each other what is oc- genital mutilation. to benefit, Mr. President, if this is curring on the floor, even though it Mr. ABRAHAM. Mr. President, I do looked at closely. may be arcane and somewhat bizarre not intend to speak much longer. I just Meanwhile, I draw attention to the from time to time, but I always try to wanted to give a brief summary of a issue of the pilot project. We are being do that. To Senator DEWINE and his few points, both in response to some of asked to support this on a theory it is participation, and Senator FEINGOLD, a the arguments that have been made by not really a national system but a pilot very thorough debate. the last few speakers and also just to project. The way the legislation is Now, the reason we set that unani- kind of put in perspective exactly what drafted allows that type of pilot pro- mous-consent agreement is that there this all comes down to. gram to encompass regions with no def- are at least several who have told me, First of all, a statement made earlier inition as for their size. In addition, be- ‘‘I do want to get over and speak on the that this pilot program approach or the cause of the nature of verification, it amendment of Senator LEAHY and Sen- broader approach would not have any almost certainly will require the cre- ator BRADLEY.’’ I do not believe any cost to employers is simply not the ation of the type of national data base further persons intend to debate on the case for a variety of reasons, but the that will be both costly, onerous, and issue of the Abraham amendment, but National Retail Federation has sug- burdensome. To say that a pilot pro- the reason we set the vote for 4 o’clock gested that even the pilot program as gram is just a small step is not accu- is to allow those who wish to debate conceptualized would probably work rate, Mr. President. It is a very big the issues of Senator LEAHY’s amend- out to something in the vicinity of $7 step. ment and Senator BRADLEY to come per verification. That might not mean That brings me to the final point I forward. If they do not, they are fore- a lot to a business that does not have want to make today—the cost versus closed as of 4 o’clock. I hope they real- much turnover, but to those that have the benefits. The costs will be great to ize that, that there will be no further lots of employees coming and going it employers who have to verify new em- opportunity to address those two is a pretty big impact. ployees, whatever the size of the pro- amendments, or three amendments

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00039 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4488 CONGRESSIONAL RECORD — SENATE May 1, 1996 —the Abraham amendment, too—after to be implemented in the foreseeable the procedures followed to issue them, the hour of 4 o’clock. Then we will go future. and improvements of a similar nature to the order of the amendments as Sen- Yet, the weird part of it is that this for driver’s licenses, which I think are ator BRADLEY, Senator LEAHY, Senator birth certificate—and it is a sacred critically important. ABRAHAM, with the usual 2 minutes of document, the type of document that is The final provision on birth certifi- debate. pressed into the Bible; it is the book cates was drafted with assistance from Mr. President, let me inform the that goes into the safe deposit box—is the Association for Public Health Sta- Chair that the majority leader has des- the most easily counterfeited of all ID- tistics and Information. I want to ignated Senator HATCH as the manager related documents, partly because cop- share that with my colleagues. The Na- of the bill for the present time and that ies are issued by 50 States, some with tional Association of State Registrars the majority leader has yielded 1 hour laws like Ohio, some with laws like and Vital Statistics Offices—that was to me, in my capacity as an individual Wyoming—50 States and over 7,000 drafted with their assistance—these of- Senator, for the purposes of being able local registrars in a myriad of forms ficials made very valuable suggestions to complete debate on the bill, because and political subdivisions and, as Sen- to us, and they expressed their ap- I only have 27 minutes left. That is the ator LEAHY indicated in committee, I proval of the final language, which is purpose of that. I promise I shall not think townships. here to be stricken. Additional im- expend any more on the other issue. So how can anyone looking at a par- provements were made in the amend- Maybe on the birth certificate—I could ticular certificate know whether it ment I offered yesterday, which was ac- do a few minutes on that. even resembles a bona fide certificate? cepted, and which will be stricken if Well, I think I will since no one has Furthermore, birth certificates can this amendment is passed. come forward. readily be obtained in genuine form by I will just summarize the birth cer- Let me indicate that I will speak a requesting a copy of a deceased per- tificate provisions of the bill. I am very few minutes on the issue of the son’s certificate. And birth and death using my time, but I will yield to my birth certificate, but if these Senators records are only beginning—this is the friend from Ohio. I emphasize to those who are going to come forward imme- very beginnings—to be matched. That who are waiting to come to the floor on diately will notify me—I will yield to is puzzling to me in every sense. In the Bradley amendment or the Leahy them—that will expedite our efforts. most States, it is only for recent amendment that their opportunity will Let me just briefly remark about the deaths. So we have a situation where close at 4 o’clock on that procedure. birth certificate, because I think it is people want to build a new identity. If my friend from Ohio has any com- very important that we understand They try to get the certificate of a per- ment at this time, I will save some of that that is the fundamental ID-related son who was born in the year they my time. document. I think it would be just as were, or near their own birth year, or Mr. DEWINE. Mr. President, I thank disturbing to the Senator from Ohio as died as an infant, perhaps, so that the my colleague from Wyoming, and I it is to me. We do not have any way to deceased person would not have ob- agree with him that we have had a very match up birth and death records in tained a Social Security card or other- spirited debate and, I think, a very the United States. That seems bizarre, wise established an identity. good debate—a debate that has cov- but we do not. Maybe some States have It is acknowledged by a great major- ered, I think, most of the issues that tried to do that. One of the questions ity of experts that a secure verification we are going to cover here today. that arose in the debate was, well, system cannot be achieved without im- Let me just state, on a couple of re- what will this do? One thing it will do, provements in the birth certificate, lated subjects, the following. We have, which we do not do now, is that if it is and in the procedures followed to issue again, confirmed, I say to the Members known that the person is deceased, the it. Without a secure, effective of the Senate, this afternoon that this word ‘‘deceased’’ will be placed upon verification system, the current law amendment is supported by the Na- that birth certificate, wherever that prohibiting the knowing employment tional Conference of State Legislators, birth certificate is. Now, that is one of of illegal aliens cannot be enforced. I the National Association of Counties, the advantages of the word ‘‘deceased’’ emphasize current law because some of and by the National League of Cities. being stamped on a birth certificate. my colleagues argue as if this bill All three organizations support this You would think, surely, they must be would put this provision into law, and amendment. Again, they emphasize doing that in the United States of that is not so. It need not. they support it on the basis of cost— America. But they are not doing that This is the law now. We are not put- cost to them as local units of govern- in the United States of America. ting this into the law. There is a sys- ment—and they also support it on the That is just one part of the proposal. tem in the law. The issue simply is, do basis of the whole question of preemp- Again, please recognize that the mo- we here in Congress intend to take rea- tion. Once again, that is the Federal tion to strike is directed toward the re- sonable steps so that this part of cur- Government coming in and, frankly, vised or amended form as it left the rent law can be effectively enforced? telling them exactly what to do. Senate Judiciary Committee, as I say, That is the problem. Do we want to do Let me just make a couple of addi- trying to work with all concerns, real- that? tional comments in regard to the issue izing that we cannot indeed satisfy all Mr. President, without effective em- my colleague from Wyoming was talk- aspects; but a good-faith attempt was ployer sanctions, illegal immigration, ing a moment ago about, which is birth done with regard to that. including not only unlawful border certificates. To me, it is almost shock- Of course, the ID-related document crossing, but visa overstays, will not be ing when we think of the implications that is the most fundamental. It proves brought under control. It is just that of what this bill, as currently written, U.S. citizenship, the most valuable simple. Thus, fraud resistant birth cer- would do. I have given the example benefit the country can provide. As we tificates and procedures to issue them here on the floor that when you turn all have indicated, it is the common are a crucial part of any effort to make 65, you are hopefully going to get So- breeder document used to obtain other that effective. In addition to immigra- cial Security and Medicare; at 16, in documents, including a driver’s license tion and welfare advantages, a more se- most States, a driver’s license, or try and a Social Security number and card. cure birth certificate will help us to re- to get your driver’s license; or you will That is the power of the birth certifi- duce many more harms associated with get married. For any of those purposes, cate. fraudulent use of ID’s, ranging from fi- you will have to get a birth certificate, With the birth certificate, plus the nancial crimes—we will see ever more and your old birth certificate is no driver’s license, and a Social Security of those—and then those through the longer going to be any good for that card, a person can obtain just about Internet—and we will see more of purpose. any other ID-related document and those—and through electronic and Let your imagination run. You can would be verified as authorized to work computer-based systems, to voting think of all the other reasons why dur- and receive public assistance by nearly fraud, to terrorism. Accordingly, S. ing your lifetime you might need a any verification system it is possible to 1664 proposes significant reforms in birth certificate. Everybody can just conceive, including any system likely birth certificates themselves, and in about figure 270 million Americans are

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00040 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4489 at some point in time going to need Again, instead of the breeder docu- reaucracy tells you how to do it. As an their birth certificates. ment, instead of the father document employee, you are going to be in the I suppose if you are over 65 and al- or the mother document, this may be situation of arguing with a computer. ready on Social Security, and you are the son, or the granddaughter. This Again, I have had some experience in not traveling, I suppose some folks may be two generations away. It may dealing with the criminal records sys- never are going to have to use this new be an illegal license, as my colleague tem. Anybody who has dealt with any birth certificate and are never going to still has displayed in the Senate here, kind of big data base knows the prob- have to do what tens of millions of maybe an illegal license that is the lems. Someone gets turned down for a Americans are now going to have to do breeder document. I do not know. job or someone is told after they have under the provisions of this bill, which Again, this is not going to solve the been hired that we have a problem. You is to go and get new birth certificates. problem. My friend talks about now need to get this problem straightened Again, what we are saying in this bill the provision is in the bill that States out with the INS. You need to get this and with this amendment, what we are should, if they know it, stamp on this problem straightened out with the saying to 270 million Americans is, birth certificate if the person is de- computer data base. How many of us in ‘‘Yes, your birth certificate is still ceased. We can imagine how accurate this world today enjoy dealing with valid, but you really just cannot use it that is going to be, or what percentage computers, particularly in regard to much for anything. You will have to of these birth certificates is going to one of the most important things in get a new one.’’ That, to me, is oner- ever be stamped with the deceased on our lives, how to make our livelihood? ous, whether you travel overseas—how them. It may be a great idea. But, So this is not the first time Congress many of us have had occasion as Mem- again, it is going to be a very, very has spread a burden among every single bers of the Senate or the House to get small percentage where the local clerk American to deal with a few people. If the frantic call from someone who of the county is going to know that history tells us anything, it tells us says, ‘‘I am supposed to be going over- someone is deceased. In some cases, that people in this country ultimately seas and I had this passport. I cannot they will, but in a great majority of will not put up with this. find it. I found out today it is expired. the cases, they will not. We live in a Let me give you a couple of exam- I am leaving in 5 days, or 4 days.’’ What very mobile society, Mr. President. ples. Remember contemporaneous rec- if you had to add to all of the problems This, I do not think, is going to help a ordkeeping for people who used their they have to go through now, with the great deal. car in business? Remember when we red tape, one more thing—you have to If you really want to make these passed that? We did it because some go back and get a new birth certificate tamperproof, what you are going to do people cheated on their taxes when cal- because that birth certificate which is require people to go in and, face to culating the business use of their car. you have had all of these years will not face, get their new birth certificate. I Because of that fact, because some peo- work anymore. That might be accept- do not think we are going to do that. I ple cheated, Congress made all of the able. At least, it would not be for me. do not think we are going to say to a people who used their car in business I do not think it would be. retiree who lives in North Carolina or to keep very detailed daily records. I If we could make the case that the who lives in Florida or lives in Cali- was in the House when that happened. reissuance of a new birth certificate on fornia, ‘‘You have to go back to Cin- I was in the House when we started get- this tamperproof paper, with all of the cinnati, OH, you have to drive back ting calls. I was in the House when I bells and whistles prescribed by the and get a new birth certificate.’’ I do would go out and have office hours and Federal bureaucrats, if that would deal not think anyone is going to make be flooded by people who said, ‘‘What is with the problem—but maybe I am them do that. I do not think it is a se- this? I do not keep records every single missing something in this discussion. I rious idea. But yet, if you are going to day just because a few people cheat.’’ believe my colleague from Wyoming make it tamperproof, you at least have What did we do, Mr. President? We did when he says it is the breeder docu- what we always do: We repealed it. It ment. I trust him on it. He has had to do that, not allowing it to be by U.S. mail and getting anybody’s birth cer- was a mistake. enough experience on this. He has Remember section 89 because some tificate. I think it is very onerous, but talked about this problem. But it still businesses discriminated in setting up I think it is not going to be effective. is going to be a problem, and, in fact, the benefit plans for their employees? it may be even worse of a problem, It is going to be no good at all. In thinking about this, we ought to Congress made all businesses comply more of a problem. learn from our past mistakes. We with detailed recordkeeping to prove There are States—and Ohio is one, they were not discriminating. We did but Ohio is not the only one—where ought to learn from what this Congress has done in the past that we have re- that. The public did not stand for that you can get anybody’s birth certificate. either. And, again, it was repealed. It Let me repeat that: You can get any- gretted. I have cast votes that I have regretted. I have cast votes where I happens every single time that we body’s birth certificate. You walk into spread the burden among everyone for the county, and if someone was born looked around and said later on that I was wrong. This is not the first time a very specific problem. In fact, I do there, you can get their birth certifi- not think Congress has ever had a pro- cate. You put down $7; you can get 5, we have tried in this Congress within recent memory to deal with a specific vision as burdensome or really as broad 20, or as many birth certificates as you as this particular provision. This provi- want as long as you know the name of targeted problem by putting an oner- ous burden on everybody. We have a fi- sion applies to everyone who wants to the people. You can get them. They are use a birth certificate or a driver’s li- public records. nite problem. It is important. But the way we deal with it, the way we would cense—to everyone. What we are now saying is, instead of I submit, Mr. President, that we do deal with it, without this amendment, the old birth certificate copy, these are this at our own peril. The public ulti- is to put the burden on absolutely ev- going to be new ones. Obviously, they mately is not going to stand for it. I eryone, to say to 270 million Americans are more expensive—tamperproof, bells think it is a very, very serious mis- and whistles—with all of the things the that ‘‘your birth certificate no longer take. printers told us when we tried to find is any good. You will have to go get a Therefore, again, I urge my col- out what the cost would be, and they new one.’’ If you ever want to use it, leagues to pass the Abraham-Feingold will have them. So what? What is the you will have to say to every employer amendment. It is an amendment that protection? What is the protection if I in this country that if you, in fact, is supported by a broad group of Sen- have walked in and MIKE DEWINE, at want to hire someone, you will have to ators, certainly across the political the age of 49, went in and got somebody call a 1–800 number. You will have to spectrum. else’s who is 49 and might look the seek permission from the Federal Gov- At this point, Mr. President, I yield same? I now have a birth certificate. I ernment. I know there has been com- the floor. do not see what has been accomplished. ment on the floor about that not being Mr. SIMPSON. Mr. President, I sug- I do not see what we have done in re- the right terminology. That is what it gest the absence of a quorum. gard to this, even in States where it is is. You will have to check the person The PRESIDING OFFICER. The more difficult. out and to do it by how the Federal bu- clerk will call the roll.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00041 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4490 CONGRESSIONAL RECORD — SENATE May 1, 1996 The assistant legislative clerk pro- ‘‘(d) Whoever knowingly denies to any per- bill that was signed by the President ceeded to call the roll. son medical care or services or otherwise dis- last Saturday, the omnibus appropria- Mr. REID. Mr. President, I ask unan- criminates against any person in the provi- tion bill, there was this provision that imous consent that the order for the sion of medical care or services, because— was taken out in conference. ‘‘(1) that person has undergone female cir- quorum call be rescinded. cumcision, excision, or infibulation; or That is not because of the chairman The PRESIDING OFFICER. Without ‘‘(2) that person has requested that female of the Judiciary Committee in the objection, it is so ordered. circumcision, excision, or infibulation be House that was taken out. He supports Mr. REID. Mr. President, I ask unan- performed on any person; this issue. I hope my friend, as I know imous consent the pending amendment shall be fined under this title or imprisoned he will during the conference on this be set aside. not more than one year, or both.’’. matter, will hang tough for this issue. The PRESIDING OFFICER. Without (2) CONFORMING AMENDMENT.—The table of THE PRESIDING OFFICER. If there objection, it is so ordered. sections at the beginning of chapter 7 of title be no further debate, the question is on 18, United States Code, is amended by adding AMENDMENT NO. 3865, AS MODIFIED agreeing to the amendment. at the end the following new item: Mr. REID. Mr. President, I send to The amendment (No. 3865), as modi- ‘‘116. Female genital mutilation.’’. the desk a modified version of my fied, was agreed to. amendment, No. 3865. (c) EFFECTIVE DATE.—Subsection (c) shall Mr. REID. Mr. President, I move to take effect on the date that is 180 days after reconsider the vote. The PRESIDING OFFICER. The the date of the enactment of this Act. amendment is so modified. Mr. SIMPSON. I move to lay that The amendment (No. 3865), as modi- Mr. REID. Mr. President, the modi- motion on the table. fied, is as follows: fication I send to the desk is a modi- The motion to lay on the table was fication of the amendment regarding agreed to. At the appropriate place in the matter pro- posed to be inserted by the amendment, in- female genital mutilation. The modi- Mr. SIMON addressed the Chair. sert the following: fied version of this amendment strikes The PRESIDING OFFICER. The Sen- SEC. . FEMALE GENITAL MUTILATION. the language requiring the threat of fe- ator from Illinois. (a) CONGRESSIONAL FINDINGS.—The Con- male genital mutilation be made con- AMENDMENT NO. 3810 gress finds that— sideration for an asylum claim. Mr. SIMON. Mr. President, I think (1) the practice of female genital mutila- I repeat, at this time I believe in the we may be able to dispose of one of my tion is carried out by members of certain asylum aspect of it, but I understand amendments just before the 4 o’clock cultural and religious groups within the the problems associated with this; that vote. I will simply speak briefly on United States; we would need to make a better case to this. (2) the practice of female genital mutila- the committee and to this body. There- tion often results in the occurrence of phys- This is an amendment that says, ‘‘To ical and psychological health effects that fore, I will not go into the reasons why exempt from the deeming rules, immi- harm the women involved; I think it should be made a basis for grants who are disabled after entering (3) such mutilation infringes upon the asylum. The fact of the matter is, we the United States.’’ guarantees of rights secured by Federal and are not going to do it in this legisla- That is the current law. It simply State law, both statutory and constitu- tion. We will look down the road to goes back to the current law. It sets a tional; work with the committee to see if we safety net there. So that no one thinks (4) the unique circumstances surrounding can come up with a basis for doing all of a sudden people are going to the practice of female genital mutilation place it beyond the ability of any single that. claim that they are disabled, the State or local jurisdiction to control; I offer this modified version of my amendment says, the requirements of (5) the practice of female genital mutila- amendment today so we can crim- subsection (A) shall not apply with re- tion can be prohibited without abridging the inalize this torture in the United spect to any alien who has been law- exercise of any rights guaranteed under the States, as a number of other countries fully admitted to the United States for First Amendment to the Constitution or have already done. permanent residence and who since the under any other law; and The PRESIDING OFFICER. Is there date of such lawful admission has be- (6) Congress has the affirmative power further debate? come blind or disabled, as those terms under section 8 of article I, the necessary and proper clause, section 5 of the Four- The Senator from Wyoming. are defined in the Social Security Act. teenth Amendment, as well as under the Mr. SIMPSON. I thank the Senator Social Security disability is not an treaty clause of the Constitution to enact from Nevada. This is not some issue easy thing to achieve, as my colleagues such legislation. that he has come to in recent times, here know. I will add, the amendment (b) CRIMINAL CONDUCT.— simply because of media attention. He is endorsed by State and local govern- (1) IN GENERAL.—Chapter 7 of title 18, has been involved in this, and I have ments. I think it makes sense, and I United States Code, is amended by adding at observed him with great admiration. It hope it can be adopted. the end the following new section: is a serious issue. It is an issue of Mr. SIMPSON. Mr. President, we do ‘‘§ 116. Female genital mutilation criminal activity. It is an issue of as- have a Member ready to debate briefly ‘‘(a) Except as provided in subsection (b), sault. It is an issue of culture. And the Leahy or Bradley amendment. May whoever knowingly circumcises, excises, or there is much to it. we come back to that, please? infibulates the whole or any part of the labia As the Canadian experience has indi- I yield to Senator HATCH, whose time majora or labia minora or clitoris of another is limited. We certainly thank the person who has not attained the age of 18 cated, the problem, sometimes, with years shall be fined under this title or im- bringing in an asylee is that soon chairman. prisoned not more than 5 years, or both. thereafter, when other family members The PRESIDING OFFICER. The Sen- ‘‘(b) A surgical operation is not a violation join, they have not only brought the ator from Utah is recognized. of this section if the operation is— victim but they bring the perpetrator. AMENDMENT NO. 3780 ‘‘(1) necessary to the health of the person We will be glad to have some hearings Mr. HATCH. Mr. President, with re- on whom it is performed, and is performed by on that. We will discuss that. gard to the Leahy-Simon amendment, a person licensed in the place of its perform- I thank the Senator from Nevada. He let me say that this amendment is an ance as a medical practitioner; or ‘‘(2) performed on a person in labor or who has always been very helpful. This is improvement of the amendment that has just given birth and is performed for very helpful, that we do not go into the Senator LEAHY offered in the Judiciary medical purposes connected with that labor deep issue of asylum, but that we make Committee, because it will permit for or birth by a person licensed in the place it it a crime because at that point we will special summary exclusion procedures is performed as a medical practitioner, mid- solve a great deal of it. in extraordinary migration situations. wife, or person in training to become such a Mr. REID. Mr. President, I will just The amendment will remove summary practitioner or midwife. say in closing—and I would want exclusion procedures where they could ‘‘(c) In applying subsection (b)(1), no ac- spread on the record—that I have spo- count shall be taken of the effect on the per- be problematic. son on whom the operation is to be per- ken personally with the chairman of In particular, the amendment re- formed of any belief on the part of that or the Judiciary Committee in the House, moves the summary exclusion proce- any other person that the operation is re- HENRY HYDE. He acknowledges the bru- dures for asylum applicants. Those quired as a matter of custom or ritual. tality of this and has indicated on the would require that INS officers at

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00042 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4491 points of entry make threshold deter- The employer sanctions provisions of Notably, in 1994 the AFL–CIO Execu- minations of how an alien traveled to the Immigration Reform and Control tive Council called for ‘‘a thorough re- the United States and whether some- Act of 1986 [IRCA] have not success- examination of * * * employer sanc- one claiming asylum has a credible fully controlled illegal immigration. tions * * * and their effects on workers, fear of persecution. This would present That is not simply my opinion, it is a as well as the exploration of changes a burden to our INS officers at borders, fact. and viable alternatives that will best who would now have to become experts Illegal aliens continue to pour into meet our criteria of fairness and jus- in asylum law and would have to per- this country. A cottage industry in tice for all workers.’’ form additional bureaucratic func- counterfeit and fraudulent documents EMPLOYER SANCTIONS PLACE AN UNREASON- tions. has flourished, and an increasingly lu- ABLE BURDEN ON BUSINESS, PARTICULARLY I am also concerned about the harsh crative black market in smuggling SMALL BUSINESS consequences that could result to asy- aliens into this country has thrived. Even those who have long disagreed lum applicants who do have a valid Employer sanctions do not work. If with my position on sanctions have, in claim but who may not speak English, they did, we would not be debating a effect, acknowledged that the current may not have the necessary proof of verification system. If sanctions system does not work. The failure is their claim with them, and that sort of worked, we would not have the level of due, in part, to the number of work eli- thing. concern we presently have about the gibility documents and the widespread I also note that the INS has had suc- very issue of illegal immigration. We use of fraudulent documents. cess with reducing frivolous asylum would not have seen so much television This bill seeks to address those defi- claims. This provision seems unneces- footage of persons illegally crossing ciencies in some way, but potential im- sary at this time and could create bur- our borders by running against traffic provement efforts have not yet been dens on INS border agents, who should on highways in order to defeat vehic- implemented, let alone evaluated. To be focussing on other matters. ular pursuit. We would not have seen a This amendment also deletes provi- assume, therefore, that the employer ship ground off of the New Jersey shore sanctions program will now be more sions of the bill providing that an alien a few years ago loaded with aliens to be using fraudulent documents for entry workable is simply wrong. smuggled into our country. We would There is little evidence to support is excludable and ineligible for with- not be reading about illegal aliens holding of deportation. Many asylum the assumption that employer sanc- loaded onto boxcars which are then tions have done anything more than in- applicants fleeing persecution may sealed south of our border on their way have to destroy their documents for crease discrimination and place tre- north. mendous burdens on small business. various reasons and may have to At the same time, sanctions have had present fraudulent documents. The bill While jobs may be a magnet for illegal serious adverse consequences. Though immigration, there is no evidence that does provide for an exception for those unintended, they are still very real. who have a valid asylum claim. Ac- the existence of sanctions has in any Some employers have engaged in ille- way deterred illegal immigrants from cordingly, I do not think those provi- gal discrimination against Americans sions of the bill are as problematic. but attempting to enter this country. who look or sound foreign in order to These sanctions have been in effect for I think that on the whole the provi- avoid potential lawsuits, fines, and jail 10 years. The problem of illegal immi- sions of the amendment are meri- sentences under IRCA’s sanctions pro- gration, as we all know, has gotten torious and I support the amendment. visions. Further, the paperwork and re- worse during that period. I realize that the terrorism bill that lated burdens on American busi- The employer sanctions regime, in came out of conference included sum- nesses—as small as entities with just effect, converts our Nation’s employers mary exclusion provisions for asylum one employee—impose costs onto the into guardians of our borders—that is applicants. That provision was pri- American consumer. marily driven by some House Members In my view, employer sanctions sim- the job for the Border Patrol and the and, although I did not think it be- ply are not worth the price of increased INS. longed in the terrorism bill, I knew employment discrimination and in- I support many of the provisions in that we would deal with this here on creased burdens on small business. this bill, and I compliment my distin- the immigration bill. Accordingly, I do Let us speak for a few moments guished colleague from Wyoming for not think it is inconsistent for those about the anticivil rights nature of em- the hard work he has done in putting who supported the terrorism bill to ployer sanctions. The easiest way for this together. I support including support the Leahy asylum amendment. an employer to avoid sanctions is to strengthening our Border Patrol and Mr. President, I am going to support refuse to hire those who look or sound curbing alien smuggling. the Leahy asylum amendment because different. To be sure, the law penalizes Our 10 years of experience with em- I think it is the right thing to do. I do such discrimination. But the law does ployer sanctions, however, offers more like the changes he made. Even though not always catch up with all the dis- than sufficient evidence that they do I voted against the amendment in com- crimination that occurs. So to place an more harm than good. mittee, I think the changes make the incentive into the law for discrimina- Our employers have enough to do amendment a good amendment. tion is, I respectfully submit, truly un- competing in the global marketplace AMENDMENT NO. 3790 fortunate. while complying with hundreds of Mr. HATCH. Mr. President, I would The Comptroller General’s testimony other Federal rules and regulations. like to speak to the Bradley amend- before the Judiciary Committee on The appropriate response to a bank- ment for a few minutes as well, and I March 30, 1990, highlighting key issues rupt policy with a 10-year history of all appreciate my colleagues giving me in GAO’s report to Congress on IRCA costs and no benefits should not be to this opportunity. and the question of discrimination was throw more money at it. And most cer- This Congress is supposed to be about quite simple and straightforward: He tainly, the appropriate response is not reducing the Federal bureaucracy. I stated that the GAO had found wide- to create a new Federal bureaucracy to must confess that I am perplexed about spread discrimination as a result of manage it. where the idea for a new Federal bu- IRCA. Mr. President, I really believe that reaucracy is coming from. The admin- The GAO said: we should defeat this amendment, and istration opposes this provision for a The results of our survey of a random sam- I ask my colleagues to consider doing new Office of Enforcement of Employer ple of the Nation’s employers shows that an that. Sanctions. It argues that this new Of- estimated 891,000 employers, 19 percent of I yield the floor. fice would be duplicative of ongoing the 4.6 million in the population surveyed re- The PRESIDING OFFICER. Under programs within the INS and the Office ported beginning discriminatory practices the previous order, there will now be 2 of Special Counsel. In fact, the Attor- because of the law. minutes of debate equally divided on ney General’s office suggests that a The American people have a right to the Bradley amendment. new office would not only be a waste of know these facts, and I think Members Mr. BRADLEY addressed the Chair. money, but make the program even of the Senate have a right to know The PRESIDING OFFICER. The Sen- less effective. these facts. ator from New Jersey is recognized.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00043 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4492 CONGRESSIONAL RECORD — SENATE May 1, 1996 Mr. BRADLEY. Mr. President, I hope Sanctions have not worked. They are vital role in offering asylum. Senators people will support this amendment. a burden on business, especially small HATCH, KERRY, DEWINE, HATFIELD, and What is the problem with illegal immi- business. They cause discrimination I have united on this because what we gration? Why are illegal immigrants against those who look and sound for- are saying is, if somebody comes to coming to this country? Because they eign. The Judiciary Committee struck this country trying to escape religious get jobs. Employers hire them. the office from the bill. Frankly, I urge oppression, political oppression, or In 1986 we said, if an employer hires the rejection of the Bradley amend- whatever, the mere fact that they have an illegal immigrant, taking that job ment for those reasons. come here under a false passport—usu- away from an American, that person The PRESIDING OFFICER. The ally the only way they can get out of can be fined, ultimately can be put in question now occurs on agreeing to the country these escape—we should jail for up to 3 years. Employer sanc- amendment No. 3790, offered by the not have a low-level person be able to tions were the right policy in 1986. The Senator from New Jersey [Mr. BRAD- turn them back automatically for that. problem is, they were not enforced. LEY. Let them have a full asylum hearing. The number of inspections, the num- Mr. BRADLEY. Mr. President, I ask It does not do anything for illegal im- ber of inspectors between 1989 and 1995, for the yeas and nays. migrants. But it makes sure that the dropped 50 percent. Employer sanctions The PRESIDING OFFICER. The yeas U.S. promise of a fair hearing for those should be enforced. If so, we would and nays have been requested. Is there who are escaping religious or political have fewer illegal immigrants coming a sufficient second? There appears to persecution can get it. into this country. This amendment be a sufficient second. Mr. SIMPSON. Mr. President, this The yeas and nays were ordered. simply creates a special enforcement The PRESIDING OFFICER. The amendment would seriously impair the office in the Immigration Service, allo- question now occurs on agreeing to the bill’s provisions to expedite the exclu- cates such funds to do the job, and says amendment No. 3790, offered by the sion of aliens who attempt to enter the to the Immigration Service, ‘‘Enforce Senator from New Jersey [Mr. BRAD- United States surreptitiously, or employer sanctions. Stop illegal immi- LEY]. The yeas and nays have been or- through the use of fraudulent docu- gration.’’ dered. The clerk will call the roll. ments. You saw the ‘‘60 Minute’’ seg- I am pleased to yield the remainder The assistant legislative clerk called ment some time ago. of my time to the distinguished Sen- the roll. This is the scenario. The alien uses ator from Wyoming. The result was announced—yeas 26, documents to board an airliner, then The PRESIDING OFFICER. The Sen- nays 74, as follows: disposes of the documents, and claims ator from Wyoming is recognized. [Rollcall Vote No. 99 Leg.] asylum. And that cannot be. The Mr. SIMPSON. Mr. President, I do YEAS—26 amendment is not required to protect agree with the Senator’s amendment. Akaka Ford Moynihan the deserving asylum applicants. We Senator HATCH and I respectfully differ Boxer Graham Nunn have a credible fear exception. If they on this. There are two things wrong Bradley Hollings Pryor have credible fear, they get a full hear- with employer sanctions—lack of en- Breaux Inouye Reid ing without any question. They simply Bryan Lautenberg Robb forcement and fraudulent documents. Daschle Levin show that to a specially trained asy- This will solve one. Rockefeller Dodd Lieberman Shelby lum officer, and not to just somebody Mr. HATCH addressed the Chair. Exon Mikulski Simpson who is at a lower level. It is a signifi- The PRESIDING OFFICER. The Sen- Feinstein Moseley-Braun cantly lesser fear standard than we use ator from Utah. NAYS—74 for any other provision. Mr. HATCH. I yield 30 seconds to the Abraham Feingold Lott That is what we use with Hatians. distinguished Senator from Wisconsin. Ashcroft Frist Lugar I yield two seconds to Senator Baucus Glenn Mack The PRESIDING OFFICER. The Sen- D’AMATO. ator from Wisconsin is recognized for Bennett Gorton McCain Biden Gramm McConnell Mr. D’AMATO. Mr. President, if we 30 seconds. Bingaman Grams Murkowski pass this amendment what you are say- Mr. FEINGOLD. Thank you, Mr. Bond Grassley Murray ing is let people come in with illegal President. Brown Gregg Nickles Bumpers Harkin documents with just plain political I use these few seconds to say I Pell Burns Hatch Pressler persecution, and set them lose. They strongly agree with the Senator’s oppo- Byrd Hatfield Roth just continue. You are just going to Campbell Heflin sition to this amendment. As we Santorum Chafee Helms compound this problem. You do not Sarbanes learned in committee, this is a duplica- Coats Hutchison have to the facilities to hold them in, Simon tion to add to this agency. Where is the Cochran Inhofe nor the facilities to have hearings. You $100 million going to come from that Cohen Jeffords Smith Snowe will be gutting this bill. It absolutely this amendment provides for this agen- Conrad Johnston Coverdell Kassebaum Specter flies in the face of what we are at- cy? The Clinton administration has Craig Kempthorne Stevens tempting to do. been clear that they do not need it, D’Amato Kennedy Thomas The PRESIDING OFFICER. The that this would probably make their DeWine Kerrey Thompson Dole Kerry Thurmond question is on agreeing to the amend- lives more difficult in terms of fighting Domenici Kohl Warner ment of the Senator from Vermont. On the problem. Dorgan Kyl Wellstone this question, the yeas and nays have On a bipartisan basis in committee Faircloth Leahy Wyden been ordered, and the clerk will call we were able to defeat this notion. I The amendment (No. 3790) was re- the roll. hope we will not go backward on it on jected. The legislative clerk called the roll. the floor. I thank the Senator from AMENDMENT NO. 3780 The result was announced—yeas 51, Utah. The PRESIDING OFFICER (Mr. nays 49, as follows: Mr. HATCH addressed the Chair. THOMPSON). Under the previous order, The result was announced—yeas 51, The PRESIDING OFFICER. The Sen- there will now be two minutes of de- nays 49, as follows: ator from Utah. bate on the Leahy amendment. [Rollcall Vote No. 100 Leg.] Mr. HATCH. Mr. President, the Clin- The Senator from Vermont is recog- YEAS—51 ton administration, as my distin- nized. guished colleague just said, opposes the Mr. LEAHY. Mr. President, this is an Abraham Campbell Harkin Akaka Chafee Hatch creation of an office for the enforce- important amendment. You each have Baucus Daschle Hatfield ment of employer sanctions. The Con- on your desk editorials from the Wash- Bennett DeWine Heflin gress should be about cutting the Fed- ington Times, the Washington Post, Biden Dodd Inouye eral bureaucracy, not adding to it. This Bingaman Feingold Jeffords and the New York Times. They all Boxer Feinstein Kennedy bill throws another $100 million of em- agree and are in support of this amend- Bradley Ford Kerry ployer sanctions enforcement on top of ment. Breaux Frist Kohl the $43 million spent in the current Do not confuse asylum with illegal Bumpers Glenn Lautenberg year on worksite enforcement. immigration. This speaks of America’s Byrd Graham Leahy

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00044 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4493 Levin Moynihan Rockefeller The Senator from Michigan. This is the heart and soul of that pro- Lieberman Murray Sarbanes Mr. ABRAHAM. Mr. President, I Lugar Nunn Simon gram. Otherwise, we are going to con- Mack Pell Snowe would say this is an amendment tinue to get these false documents pro- Mikulski Pryor Wellstone brought by Senators DEWINE, FEIN- duced day in and day out. This is the Moseley-Braun Robb Wyden GOLD, INHOFE, MACK, LOTT, LIEBERMAN, only way to do it. It is a narrow, mod- NAYS—49 NICKLES, and myself. It represents an est program. If we do not do it now, the Ashcroft Gorton Murkowski effort to strike from the bill a rest of the bill, I think, is unworkable. Bond Gramm Nickles verification system that is a Govern- The PRESIDING OFFICER. All time Brown Grams Pressler ment intrusive system to try to verify has expired. Bryan Grassley Reid employment. In our view it will not Mr. SIMON. Mr. President, I move to Burns Gregg Roth Coats Helms Santorum succeed, but it will be very costly, table the amendment, and I ask for the Cochran Hollings Shelby costly to employers, costly to employ- yeas and nays. Cohen Hutchison Simpson Conrad Inhofe ees who will be denied jobs because it is The PRESIDING OFFICER. Is there a Smith Coverdell Johnston impossible to perfect such a system, sufficient second? Specter Craig Kassebaum There is a sufficient second. Stevens costly to the taxpayers to the tune of D’Amato Kempthorne hundreds of millions of dollars, and The yeas and nays were ordered. Dole Kerrey Thomas Domenici Kyl Thompson costly for reasons that the Senator The PRESIDING OFFICER. The Dorgan Lott Thurmond from Ohio will now address in terms of question is on agreeing to the motion Exon McCain Warner the need for people to obtain new birth to lay on the table amendment No. Faircloth McConnell certificates in order to comply with 3752, offered by the Senator from The amendment (No. 3780) was agreed this legislation. Michigan [Mr. ABRAHAM]. to. I yield the remainder of my time to The yeas and nays have been ordered. Mr. LEAHY. Mr. President, I move to the Senator from Ohio. The clerk will call the roll. reconsider the vote. Mr. DEWINE. Mr. President, this bill The bill clerk called the roll. Mr. FORD. I move to lay that motion says to 270 million Americans that The PRESIDING OFFICER (Mr. on the table. your birth certificate is still valid, but ABRAHAM). Are there any other Sen- The motion to lay on the table was if you ever want to use it, you have to ators in the Chamber desiring to vote? agreed to. go back to the origin, the place you The result was announced—yeas 54, AMENDMENT NO. 3752 were born, and get a new federally pre- nays 46, as follows: The PRESIDING OFFICER. The scribed birth certificate that this Con- [Rollcall Vote No. 101 Leg.] question occurs on amendment No. gress is going to tell all 50 States they YEAS—54 3752, offered by the Senator from have to reissue. Akaka Exon Lautenberg Michigan [Mr. ABRAHAM]. If you get a driver’s license at age 16, Biden Faircloth Levin There will order in the Senate. when you turn 65 and you want Social Bingaman Feinstein Mikulski Several Senators addressed the Security or Medicare, or you get mar- Bond Glenn Moynihan Chair. Boxer Gorton Murkowski ried, or you want a passport, you are Bradley Grassley Nunn The PRESIDING OFFICER. The Sen- going to need your birth certificate, Brown Gregg Pell ator from Illinois. and that birth certificate that you Bryan Harkin Pryor Mr. SIMON. Mr. President, after the Byrd Heflin Reid have had all these years no longer is 2 minutes of explanation on this, I will Campbell Hollings Robb going to be valid for that purpose. Chafee Inouye Rockefeller make the motion to table and ask for It is very costly. It is a hidden tax, Cochran Jeffords Roth the yeas and nays. and it is going to be a major, major Cohen Johnston Sarbanes The PRESIDING OFFICER. The Sen- Conrad Kennedy Shelby mistake. It will be something I think, ate will come to order. D’Amato Kerrey Simon if we vote for it, will come back and we Daschle Kerry Simpson The Senator from Wyoming. Dodd Kohl Specter Mr. SIMPSON. Mr. President, it is will be very, very sorry. Mr. SIMPSON. Mr. President, this is Dole Kyl Stevens appropriate you recognize the Senator NAYS—46 from Illinois. the critical test of the legislation. The PRESIDING OFFICER. The Sen- Without effective employer sanctions, Abraham Graham McConnell Ashcroft Gramm Moseley-Braun ator from Illinois. the United States will not achieve con- trol over illegal immigration. Without Baucus Grams Murray Mr. SIMON. Mr. President, I will not Bennett Hatch Nickles make the motion now, but imme- an effective verification system, there Breaux Hatfield Pressler cannot be effective employer sanctions. Bumpers Helms Santorum diately after the 2 minutes of expla- Burns Hutchison nation on this amendment, I will make Without more fraud-resistant birth cer- Smith Coats Inhofe Snowe tificates and driver’s licenses—this is Coverdell Kassebaum the motion to table and ask for the Thomas Craig Kempthorne yeas and nays. my California variety, you can get Thompson DeWine Leahy them for 75 bucks—there will never be Thurmond Mr. SIMPSON. Are you asking for Domenici Lieberman the yeas and nays? an effective verification system. Dorgan Lott Warner Mr. SIMON. I have not made the mo- This amendment strips the Feingold Lugar Wellstone Wyden tion to table because we have not had verification process that was in the bill Ford Mack Frist McCain the final 2 minutes. and strips any ability to deal with the I move to table, Mr. President, and I worst fraud-ridden breeder document, The motion to lay on the table the ask for the yeas and nays. which is the birth certificate. I yield. amendment (No. 3752) was agreed to. The PRESIDING OFFICER. It would Mr. KENNEDY addressed the Chair. Mr. SIMON. Mr. President, I move to not be appropriate at this time. It will The PRESIDING OFFICER. The Sen- reconsider the vote. be necessary to wait until the time for ator from Massachusetts. Mr. LEAHY. I move to lay the mo- debate has expired. Mr. KENNEDY. Mr. President, Sen- tion on the table. Mr. KENNEDY. Mr. President, can ator SIMPSON is absolutely right. This The motion to lay on the table was we have order, now? This is an ex- is the most important vote we are agreed to. tremely important 2 minutes we are going to have on immigration. It is a Mr. SIMPSON. Mr. President, let me having here on this debate. I think it is question of whether we are going to commend you on a very forceful and probably as important as any issue on continue with document abuse or not. fair procedure during these many the legislation. Members ought to have That is the basic difficulty in terms of months. It has been a rare privilege for an opportunity to be heard. trying to protect American jobs, as me to come to know you better and to If we could still insist on order in the well as trying to limit the magnet of know you as a legislator. You are fair, Senate? immigration, which is jobs. If we deal formidable, efficient, and effective. The PRESIDING OFFICER. The Sen- with that, we are going to stop the That is not just because of the win and ate will come to order. There will now magnet of immigration of people com- lose issue. I would have said that under be 2 minutes of debate equally divided. ing here illegally. either circumstance and meant it. And

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00045 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4494 CONGRESSIONAL RECORD — SENATE May 1, 1996 Senator DEWINE, dogged and deter- compassionate as well as practical that It would actually be more reasonable mined. I would not want to be prac- we not move in this direction. I know to provide an exception, I think, here, ticing law or doing much more of this my colleague from Wyoming has a if the sponsor became disabled and it with worthy adversaries such as Sen- slightly different perspective on this. was impossible for that sponsor to pro- ator SPENCER ABRAHAM and MICHAEL My amendment is supported by the Na- vide the support. Of course, please hear DEWINE and my friend RUSS FEINGOLD tional Conference of State Legisla- this: If the sponsor has no income, from Wisconsin. I commend them all. tures, the Natural League of Cities and there is no income to deem, and no ex- Someone came up to me said, ‘‘Oh, the National Association of Counties. ception is needed. You do not need to you really are on a roll,’’ and I said, ‘‘I Mr. KENNEDY. Mr. President, I com- have an exception if the sponsor went have been rolled for 6 months.’’ The mend my colleague and friend for this broke or if the sponsor cannot afford to roll is not always in the eye of the be- amendment. I think it is important to do this. Then there we are. The spon- holder. Win a few, lose a few, and you note that disabled persons are covered sor’s income is not deemed, and then move on in good camaraderie, good by this amendment only if they become the taxpayers pick up the program, spirit. You are setting that tone as you disabled after the immigrants arrive. It pick up the individual. That is where occupy the chair after a very vigorous is unfair to make the sponsors foot the we are. debate. You have learned the essence of bill for unforeseen tragedies such as I urge all of us to remember, as we do the Senate: Do your work, give it your this. No one can predict when dis- these amendments, that they all have a best shot, take a shot in the neck and ability will strike. It is a very small tremendous emotional pull. We have a belt in the head, swallow hard and target, but it will make a very impor- seen the emotional pulls for 11 or 12 move on, shake hands with the adver- tant difference to a number of individ- days on this floor. But in each of these sary, and go off, have a great big pop or uals who are experiencing this type of amendments related to deeming— tragedy. I hope we might be able to see something else. whether it is blindness, whether it is Mr. KENNEDY. If I could have 30 sec- this amendment through and accept it. Mr. SIMPSON. Mr. President, again, disability, whether it is veterans, onds, I want to thank all those that what seems to be so appropriate in im- whether it is kids, whether it is senior participated in that debate and discus- migration matters often has a deeper citizens, whatever, plucks genuinely at sion. I think the Members found there tenor when we are talking about the your heartstrings—the issue is that were appealing arguments on all sides. blind and the disabled. We all want to none of those people should become the I think as we find out on these immi- respond. burden of the taxpayers if they had a gration issues sometimes, when you Let me say this: We only make the sponsor that remains totally able, be- prevail you are not always right. It has sponsor pay what the sponsor is able to cause of their assets, to sustain them. been a constant learning experience be- pay. We are back to the same issue. That is it. That is where we are. That cause it involves human beings’ behav- This is a very singular issue, as were was the contract made. That is what ior and trying to predict how people the amendments we voted on last they agreed to do, and that is the pub- will react to different suggestions and night. The issue is, when you come to lic charge that we have always em- recommendations. the United States of America as a braced since the year 1882, and which I join Senator SIMPSON and thank all sponsor, you are saying that the immi- we are now trying to strengthen, and those who are on different sides and grant you are bringing here will not be- believe that we certainly will. those that were on our side for the come a public charge. That is the law. Mr. SIMON. Mr. President, I will courtesy and attention they gave to If you become disabled or blind and take 1 minute in rebuttal. The figures the debate and discussion. you go to seek assistance, the law pro- that my friend from Wyoming cites are Mr. SIMON. Mr. President, let me vides that if your sponsor has a lot of people, many of whom came here dis- just comment, I have frequently said money, you are going to get the money abled, and so they have ended up on on the floor we are too partisan, exces- from the sponsor first. That is what we SSI. This applies to people who have sively partisan. It is true. But this is a are going to do. It does not matter become disabled after they have come case where we discussed the issues, what your level of disability; that is here. I hope that the amendment will where on one side you had the Simp- the law, or will be the law under this be accepted. son-Kennedy leadership, on the other bill. It will be clarified, it will be I ask the Senator from Wyoming side you had Senator ABRAHAM and strengthened, and that is what this is this. I have another amendment that I Senator FEINGOLD. That is the way it about. We are not saying that we are am ready with. The understanding is should be on most issues. Very few going to break the sponsor because the that we will stack the votes, is that issues, really, involve party political person is disabled. If the sponsor has correct? philosophy. Whether you won or lost tremendous assets, and you have a dis- Mr. SIMPSON. No, Mr. President, on this issue, this is the way legis- abled or blind person, that sponsor is that is not my understanding. The lating ought to take place. supposed to keep their promise. Why leader is here. Mr. President, we will AMENDMENT NO. 3810 should he or she not? That was the work toward some type of agreement if Mr. SIMON. Mr. President, I believe promise made. Maybe they were not we can either lock things in, and the pending amendment is my amend- disabled at the time. I understand that. maybe get time agreements. There are ment No. 3810, is that correct? But they become disabled and here not many amendments, actually, left. The PRESIDING OFFICER. The they are. Should the taxpayers of There are some place-holder amend- amendment is now pending. America pick that up when the sponsor ments. But I cannot say that we will be Mr. SIMON. Mr. President, what this is financially able to do it? stacking votes. does—and this is not a complicated But there is a little more to this Certainly, if you wish to present an one—this simply says that we are here. The number of ‘‘disabled immi- amendment and go back-to-back on going to go back to the current law grants’’ receiving SSI has increased 825 that, we will certainly do that and that if someone is disabled under the percent over the last 15 years. That is maybe have 15 minutes on the first definition of the Social Security Act, if an extraordinary figure. The number of vote and 10 for the second. I think we you are blind or disabled, then the disabled immigrants receiving SSI has can get a unanimous consent to do deeming provision does not apply. increased 825 percent over the last 15 that, with the approval of the leader, The pending bill requires that 100 years. American taxpayers pay over $1 at an appropriate time, according to percent of an immigrant sponsor’s in- billion every year in SSI payments to the leader. come be deemed to the immigrants. disabled immigrants. The purpose of Mr. SIMON. Mr. President, if this is Say your sponsor has a $30,000-a-year the requirement that immigrants ob- acceptable to the Senator from Wyo- income; it is totally unrealistic, among tain the sponsor agreement is precisely ming, I will ask that we set aside the other things, to assume that sponsor to provide a reasonable assurance to amendment I just offered so that I may can provide $30,000 worth of support for the American taxpayer that, if they consider a second amendment that I the immigrant. need financial assistance, it will come have. I hope we would keep the current first from the sponsor and not from the Mr. SIMPSON. That is perfectly ap- law. I think it is simply sensible and taxpayers. propriate with me, Mr. President.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00046 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4495 Mr. SIMON. Mr. President, I ask program of assistance for which eligibility is He is back again with another deem- unanimous consent to set aside my based on need, or any need-based program of ing type of amendment. They are all first amendment. assistance administered by a State or local very compassionately offered. They are The PRESIDING OFFICER. Without government (other than a program of assist- carefully thought through. But, again, ance provided or funded, in whole or in part, objection, it is so ordered. by the Federal Government), require that it is an issue we dealt with last night. AMENDMENT NO. 3813 TO AMENDMENT NO. 3743 the income and resources described in sub- It is true, and he is right; he has (Purpose: To prevent retroactive deeming of section (b) be deemed to be the income and found this provision that individuals sponsor income) resources of such alien. already in this country will not be the Mr. SIMON. Mr. President, I send an (c) LENGTH OF DEEMING PERIOD.—Subject to beneficiaries of the new legally en- exceptions quivalent to the exceptions de- amendment to the desk and ask for its forceable sponsor agreements. They are scribed in subsection (d), a State of local going to be very strict. We have done a immediate consideration. government may impose the requirement de- The PRESIDING OFFICER. The scribed in paragraph (1) for the period for good job on that. The ones that will be clerk will report. which the sponsor has agreed, in such affi- required is after enactment. The assistant legislative clerk read davit or agreement, to provide support for It is also true that some of them who as follows: such alien. have been here less than 5 years will The Senator from Illinois [Mr. SIMON], for Mr. SIMON. Mr. President, this is an nevertheless be subject to at least a himself, Mr. GRAHAM, Mrs. FEINSTEIN, and amendment that is cosponsored by portion of the minimum 5-year deem- Mrs. MURRAY, proposes an amendment num- Senator GRAHAM of Florida, Senator ing period. Thus, there could be a case bered 3813 to amendment No. 3743. FEINSTEIN of California, and Senator where such an individual would be un- Mr. SIMON. Mr. President, I ask MURRAY of Washington. able to obtain public assistance be- unanimous consent that reading of the This amendment simply makes the cause under deeming they neither re- amendment be dispensed with. deeming provisions prospective. Every ceived the promised assistance from The PRESIDING OFFICER. Without once in a while—not often in this their sponsor nor were able to sue them objection, it is so ordered. body—we retroactively change the law. for support. The amendment is as follows: And three out of four times, we do But, again, let me remind my col- Strike page 199, line 4, and all that follows harm when we do it. This simply says leagues that no immigrants are admit- through page 202, line 5, and insert the fol- to sponsors that this is going to apply ted to the United States if they cannot lowing: ‘‘to provide support for such alien. prospectively. provide adequate assurance to the con- ‘‘(d) EXCEPTIONS.— Let me give you a very practical ex- sular officer, or to the immigration in- (1) INDIGENCE.— ample. Let us say that, right now, be- spector, that they are not likely be- (A) IN GENERAL.—If a determination de- come a public charge, making that scribed in subparagraph (B) is made, the cause under the present law the only amount of income and resources of the spon- Federal programs that are subject to promise to the American people that sor or the sponsor’s spouse which shall be at- deeming are AFDC, food stamps, and they will not became a burden on the tributed to the sponsored alien shall not ex- SSI. Without my amendment, I say to taxpayers. If they do use a substantial ceed the amount actually provided for a pe- my colleagues here from Michigan, amount of welfare within the first 5 riod— Kansas, New Mexico, and Wyoming, if a years, they are subject to deportation (I) beginning on the date of such deter- student is at a community college and under certain circumstances. That is mination and ending 12 months after such getting student assistance of one kind not a swift procedure. It is a thought- date, or ful procedure. (ii) if the address of the sponsor is un- or another, without this amendment, known to the sponsored alien, beginning on the sponsor who signed up for 3 years is I remind my colleagues again that the date of such detemination and ending on responsible for 5 years, not just for the major welfare programs already re- the date that is 12 months after the address three welfare programs, but for any quire deeming—AFDC, food stamps for of the sponsor becomes known to the spon- Federal assistance. 3 years, SSI for 5, even though spon- sored alien or to the agency (which shall in- I just think that is wrong. We ought sored agreements are not now legally form such alien of the address within 7 days). to say it is prospectively. And I sup- enforceable. Furthermore, the Presi- (B) DETERMINATION DESCRIBED.—A deter- port Senator SIMPSON in this. Let us dent’s own 1994 welfare bill proposed a mination described in this subparagraph is a make it 5 years, but we should not say 5-year deeming for those programs. determination by an agency that a sponsored alien would, in the absence of the assistance we are going back to sponsors who This would have applied to those who provided by the agency, be unable to obtain signed up for 3 years, and say, ‘‘Even had only received the sponsor agree- food and shelter, taking into account the though you signed up for 3 years, we ment to provide support for 3 years, an alien’s own income, plus any cash, food, are making it 5. And you thought you agreement that is not legally enforce- housing, or other assistance provided by were only going to be responsible for able. other individuals, including the sponsor. three programs—AFDC, food stamps, So I just do not believe it is unrea- (2) EDUCATION ASSISTANCE.— and SSI—but you are going to be re- sonable for the taxpayers of this coun- (A) IN GENERAL.—The requirements of sub- sponsible for every kind of Federal pro- try to require recently arrived immi- section (a) shall not apply with respect to grants to depend on their sponsors for sponsored aliens who have received, or have gram.’’ been approved to receive, student assistance Let me just add, the higher education the first 5 years under all cir- under the title IV, V, IX, or X of the Higher community strongly favors my amend- cumstances if the sponsor has the as- Education Act of 1965 in an academic year ment. sets. If the sponsor does not have the which ends or begins in the calendar year in I think we ought to move in this di- assets, we will pick them up. We have which this Act is enacted. rection. I think it is fair. I think, never failed to do that. (B) DURATION.—The exception described in again, three out of four times when It is only on that basis of assurance subparagraph (A) shall apply only for the pe- this body tries to do something retro- that they even came here because they riod normally required to complete the actively, we make a mistake. If we go could not have come here if they were course of study for which the sponsored alien receives assistance described in that sub- ahead with this retroactively, we are to be a public charge. paragraph. going to make a mistake. Regardless of the compassionate as- (3) CERTAIN SERVICES AND ASSISTANCE.—The I see my colleague, Senator GRAHAM, pects of it, that is what we ought to do. requirements of subsection (a) shall not on the floor. I believe he wants to Thank you. apply to any service or assistance described speak on this, too. Mr. GRAMM addressed the Chair. in section 201(a)(1)(A)(vii). Mr. SIMPSON. Mr. President, here The PRESIDING OFFICER. The Sen- (e) DEEMING AUTHORITY TO STATE AND we are again dealing with the issue of ator from Texas. LOCAL AGENCIES.— deeming. When I said that my col- Mr. GRAMM. Mr. President, I had (1) IN GENERAL.—Notwithstanding any leagues were persistent, I did not mean not intended to speak on this subject, other provision of law, but subject to excep- to leave out Senator PAUL SIMON of Il- but we have now had about a half dozen tions equivalent to the exceptions described in subsection (d), the State or local govern- linois. In my experience of 25 years amendments on this deeming issue. It ment may, for purposes of determining the knowing this likeable man, I know his seems to me that the Senate has spo- eligibility of an alien for benefits, and the persistence is indeed one of his prin- ken on this issue. Far be it from me to amount of benefits,under any state or local cipal attributes. say that our colleagues are infringing

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00047 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4496 CONGRESSIONAL RECORD — SENATE May 1, 1996 on our patience, but it seems to me labor, go somewhere else; do not come The point I am making is this. We this is a very clear issue. The American to America. But if you want to come have voted on this thing a half a dozen people have very strong opinions about here and build your dream and build times. I wish we could come up with it. We have voted on it. I do not see the American dream and work and every story or manipulation or hard- what we gain by going over and over struggle and succeed as the grand- ship that we could get, put it all into and over again plowing this same parents of most of the Members, the one and vote on it and settle it. That is ground, or in this case dragging this parents of most of the Members of this all I wish to do. dead cat which smells rank back across body did, welcome. We have too few Mr. SIMON. First of all, the Senator the table. people who want to come and work and does not understand the amendment, Here is the issue. When people come build their dream. obviously. to America, they get the greatest But I think we pretty well settled Mr. GRAMM. No, I understand the worldly gift you can get. They have an this whole deeming issue. I think we amendment perfectly. opportunity to become Americans. I ought to get on with it. This is now a Mr. SIMON. The Senator then did not am very proud of the fact that I stood good bill. We have spoken. I think we respond to my question. The question up on the floor of the Senate and are at the point where people are ready is whether is going to live fought an effort that was trying to to vote. I think after a half dozen votes up to his contract. We say to the spon- slam the door on people who come to on this issue that, ‘‘Well, you are ex- sors you are a sponsor for 3 years. Now this country legally. I believe in immi- empt from deeming if you are going to we come back with this legislation and gration. I do not want to tear down the church to say a prayer and you trip and say, sorry, we are changing the con- Statue of Liberty. I believe new Ameri- you break your back’’—I mean, I think tract. You thought you signed up for 3 cans bring new vision and new energy, we have established the principle. I do years. We are going to make it 5 years. and America would not be America not think we have to go on plowing I think that is wrong. without immigrants. But when people this ground over and over again. Mr. GRAMM. Would the Senator, if come to America, they come with spon- The American people want people to he wants to change the provision, sors, and these sponsors guarantee to come to work. They do not want people change it to say that immigrants are the American taxpayer that the immi- to come to go on welfare. We have a not eligible for welfare or public assist- grant is not going to become a ward of provision in the welfare bill that is ance until they become citizens? the State. even stronger than the deeming provi- Mr. SIMON. We already have a provi- If you want to know how lousy the sion in this bill. Maybe we could have sion in here for 5 years. That is not the current program is, in the last 10 years a vote that says under any cir- issue. The issue is, are we going to go when we have had millions of immi- cumstances except divine intervention back, on this amendment, retro- grants come to America legally, how that we stay with the provisions. We actively and say to sponsors, sorry, many people do you think have been could vote on it and be through with it. Uncle Sam is not going to live up to his deported because they have become Mr. SIMON. Will the Senator from word; we are changing your contract wards of the State? In 10 years with Texas yield? from 3 years to 5 years. millions of legal immigrants, we have Mr. GRAMM. I am happy to yield. I think I know the Senator from had, I understand, 13 people that have Mr. SIMON. My friend talks about Texas well enough—and, incidentally, been deported. Obviously, the current the contract you sign. What I want to he has had a lot more amendments on system is not working. do is say the United States, which this floor than the Senator from Illi- What the bill of the distinguished signs the contract with the sponsor, nois over the years. Senator from Wyoming says is simply will live up to its side of the contract. Mr. GRAMM. I do not think so today. this: When you sign that pledge that That contract right now is for 3 years Mr. SIMON. Not today. you are going to take care of these peo- for every sponsor. I am for moving to 5 Mr. GRAMM. I object to amendments ple until they can take care of them- years but doing it prospectively. This I am not participating in today. selves, we expect you to live up to your bill says to the people who signed the Mr. SIMON. I am not complaining promise. We expect you to use your en- contract that Uncle Sam has changed about the Senator from Texas offering ergy and your assets to see that the his mind. He is going to make you re- too many amendments. But the ques- person you have sponsored does not be- sponsible for 5 years when you sign for tion on this amendment— come a burden on the taxpayers. 3 years. Mr. GRAMM. Reclaiming my time, So what the bill does, in essence, is Does the Senator from Texas think Mr. President. Let me just make a count the sponsor’s income and the that is fair? point on the deeming issue. The only sponsor’s assets as yours for the pur- Mr. GRAMM. Let me respond by say- point I wanted to make is this. We pose of your applying for welfare. ing that I believe that when we are have had a half a dozen votes on it. The It seems to me that we do not have talking about people coming to Amer- outcome has been the same each time, anything to apologize about in giving ica, that is a great deal. I do not think and each time we have had a new people the greatest worldly gift you we have to second-guess it by saying amendment we have had some new sob can get, and that is becoming an Amer- that we are going to try to see that story where we picked out a little blue- ican. I do not think we ought to have after so many years you can get wel- eyed girl 3 years old or younger or any deviations, period, from this whole fare. I personally believe that until a something. deeming issue. If you come to America, person becomes a citizen, they ought I am just saying I would like to set- you have a sponsor. They say they are not to be eligible for welfare. I am for tle the issue. I think the Senate has de- going to take care of you. If things go a stronger provision than the Senate cided on the deeming issue, and I think wrong, we ought to go back on their as- has adopted. I do not think immigrants the decision that we have made is you sets. should be eligible for welfare until they ought not to be able to come to Amer- But this idea that there ought to be become citizens and, therefore, under ica as an immigrant to go on welfare. some magic things that we are going to the Constitution must be treated like We are having to go about that in dif- exempt—and we have seen all of these everybody else, because under the Con- ferent ways through different bills. My real tear-jerkers about, you know, in stitution there can be no differentia- point is I do not know what the sev- this particular case, or that particular tion between how they are treated as a enth or eighth or ninth amendment is case—this is a principle where I do not natural-born American or nationalized. going to do. I hope we will defeat these think there ought to be any particular There is only one difference, and that amendments decisively and get on with cases. is you cannot become President. passing a bill that the American public If people want to come to America, But here is the point. I think that wants. let them come to America, but let ought to be the provision. That is not I yield the floor. them come with their sleeves rolled up even what we are talking about here. The PRESIDING OFFICER. The Sen- ready to go to work. Do not let them We are talking about something much ator from New Mexico. come with their hand out. If you want less, and that is the deeming provision. Mr. DOMENICI. Mr. President, I wish to live off the fruits of somebody else’s The point I am making is this: to say to Senator GRAMM, first, I am

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00048 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4497 totally, fully aware of the Senator’s part of the chairman, saying, well, OK, Mr. GRAHAM. Mr. President, we had commitment to legal immigration, and if the ward does not have any money, a lot of rhetoric, expressions of what I have personally told the Senator that then it does not do much good to deem we might have fantasized reality was, I saw his speech in the Chamber which them; they cannot pay for it. what we thought it might be; words had some personal aspects of the Sen- That is pretty generous. That is a like ‘‘we expect you to live up to your ator’s views because of his family, be- whole new act of generosity on the part promise.’’ All of those are patriotic, cause of his wife and her family. of America, if that becomes law. soaring statements, which have little I have told the Senator of mine. Both Now, I would say it is fair because if to do with the reality of the amend- of mine came over as little kids to Al- you do not want that new act of gen- ment that the Senator from Illinois buquerque from Italy. I was very erosity, then maybe we will go back to has offered. lucky. I always say the only good thing the old one. But you can count on it: What is the reality today, of the re- about the farm programs of Italy at Up to the deeming period, we will not quirement of sponsors to their legal the turn of the century was they were pay for you whether your sponsor runs alien sponsoree, who is in the United so awful that kids like my folks could out of money or not because that was States? As the Senator from Illinois not make a living and so they sent the law, albeit never enforced. has pointed out, we Members of Con- them to America. So I think there are things on both gress have looked at all the programs That is true. In my dad’s family were sides of that scale of fairness, and, that we might wish to require deeming six kids, and they had enough acreage, frankly, from my standpoint, I have to apply to, that is to require the spon- why, for 50 years before that they could been through so many efforts to cut sor’s income to be added to the alien’s all make a living. But as bureaucracies back programs that Americans get income in determining the alien’s eligi- grow, they had a farm policy, and they angry at us about that are programs bility for programs. What have we de- could not make a nickel. So thank God for Americans that I thought we had to cided? We have decided we will require for bad farm policy in Italy. That is come here as budgeteers—the Senator deeming for SSI, supplemental Social why I am here. worked at it with me, I say to the sen- Security income, which primarily af- From our earliest days, we did not ior Senator from Texas. We are over fects older aliens; we will require intend that aliens be public charges. here saying, look, we cannot afford deeming for food stamps; and we will This is not today. This is America education money, we cannot afford require deeming for aid to families when we accepted millions that made this. Why, here we have $3 billion with dependent children. America great. We had a philosophy maybe, $1 to $3 billion in Medicaid We could have passed deeming for that the public money would not be going to aliens. And I am not sure the Medicaid, we could have passed deem- used for aliens. public even knows that. Where should ing for college Pell grants and guaran- Now, that is not a mean, harsh pol- we save first? It seems to me we should teed Federal loans, we could have icy. It is a reality. And I am telling save by passing this bill. That is what passed deeming for weatherization and you what has happened. If it was a re- I think. heating for low-income people, we ality of the philosophy of America in I yield the floor. could have passed deeming for any one the early days, what has happened to it Mr. SIMPSON. I thank the Senator of the hundreds of programs the Fed- today is that nobody paid attention to and Senator GRAMM. eral Government has that requires the programs that they were applying The PRESIDING OFFICER. The Sen- some form of means testing in order to for, so that Medicaid has, it is esti- ator from Wyoming. be eligible. But we decided thus far not mated, up to $3 billion—it could be Mr. SIMPSON. I thank the Chair. to do so, but to limit it to those three that high—being paid to people who are Let me review where we are and programs. As the Senator from Illinois aliens. That is $3 billion of public where the leader would like us to be. has pointed out, in two of those three charge when we probably never really We have the Simon amendment and programs the deeming period is 3 years, intended it, for all of these did not two Graham amendments, Senator not the 5 years that is being suggested come in after deeming periods. Every- GRAHAM of Florida, and Senator FEIN- here today. body knew the deeming periods and all STEIN will modify her amendment. Sen- But I think even more powerful is the that were irrelevant. ator KYL and she have resolved any dif- fact that this Congress has known for a Why did they know that? The Sen- ficulty there. We will take that. long, long time that the courts have ator just stated it. Nothing happened We would like to proceed with debate held the current application, the affi- to them if they violated them. I had and try to have votes stacked around 7 davit signed by the sponsor, to be le- them on the witness stand. I asked or 7:30, if we could proceed with gusto, gally unenforceable. Let me read a INS, ‘‘Could you enforce these?’’ ‘‘No, and I will try to do that, too. It is very paragraph from a letter from the office we cannot enforce them.’’ I said, ‘‘Do difficult. But that would be the pat- of the Commissioner of INS on the you think there are only 13?’’ There are tern, if there is further debate. And I issue of what is the enforceability of 1.2 million aliens on one program—1.2 concur with Senator GRAMM. It is these affidavits that sponsors sign. To million people. I said, ‘‘Could you en- about deeming, and we have addressed quote from the letter: force it? Could there be 500 of them that last night and we will address it In at least three States, however, courts that are illegal?’’ I said, ‘‘I think prob- again today. have held that an affidavit of support does ably there are 600,000 that should not Just remember one thing. We did not not impose on the person who signs it a le- be on there.’’ I think that might be so. like this before. A few years ago, we gally enforceable obligation to reimburse So I do not think this is an issue of voted to extend deeming from 3 to 5 public agencies and provide public assistance to an alien. changing the contract. In fact, this is a years for SSI, and we did that to whole new concept about deeming the achieve savings for an extension of un- The letter then cites a case, San resources of a sponsor liable for an employment benefits. We did not ask Diego County versus Viarea, from the alien before the citizens of America the sponsors. We just extended the California court, a 1969 opinion; the At- under taxes pay for it. And it is pretty deeming period, and we have done that torney General versus Binder, an opin- patent to me that to say everything in the past. ion from the State of our Presiding Of- stays just like it is for the past is just I think those would be my final re- ficer, from 1959; California Department not fair to the American people. marks on that. I wonder if we might— of Mental Hygiene versus Reynault, a We are talking about it is unfair to unless there is some further discussion case from 1958; another case from New some certain patrons. We are still say- of that amendment, if we might set York dated 1959. The letter goes on to state, ing—this bill is very generous because that aside and go to Senator GRAHAM. what it says is, if a sponsor does not Mr. GRAHAM. Mr. President, I wish The Michigan Supreme Court has also held that Michigan public assistance agencies have the money, they are back on pub- to speak in support of the amendment may not consider the income of a person who lic charge. of the Senator from Illinois. executed an affidavit of support to be an Did the Senator know that? Mr. SIMPSON. I see. alien’s income in determining the alien’s eli- That is different than we were think- The PRESIDING OFFICER. The Sen- gibility for State public assistance pro- ing of. That is a generous act on the ator from Florida. grams.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00049 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4498 CONGRESSIONAL RECORD — SENATE May 1, 1996 That is a 1987 Michigan case, despite the National Association of Public Hos- So, Mr. President, I urge in the the fact that this income deeming is pitals and Health Systems has said. strongest terms the support of the permitted in determining eligibility for What is really going to happen is what amendment of the Senator from Illi- food stamps. Catholic Charities USA has said. And nois, because without his amendment, I Finally, the Missouri Court of Ap- that is that there is going to be a mas- think this legislation carries with it peals has held that an affidavit of sup- sive transfer of responsibility to the the fatal flaw of fundamental unfair- port does not create an express or im- communities and States, and they will ness. plied contract for the payment of child be asked to pick up these costs. Mr. SIMPSON addressed the Chair. support on behalf of a child adopted by The most dramatic example of that is The PRESIDING OFFICER (Mr. a former spouse. That is a 1992 opinion. going to be in the area of health care. SHELBY). The Senator from Wyoming. Mr. President, I cite these cases, not In the field of health care, we have the Mr. SIMPSON. Mr. President, I think with the spirit of support but of the anomaly that, by Federal law, public we have perhaps completed the debate cold reality that this is the state of the hospitals are required to treat anybody on that amendment and we might set law. So a person who has sponsored an with an emergency condition. By laws that aside and proceed to—my friend alien to come into the United States that we passed, they are prohibited from Massachusetts is not here. today has had the legal expectation of from asking a person seeking emer- Is there a second Graham amend- the unenforceability of that affidavit gency assistance, what is your income? ment? Does the Senator from Florida and this Congress has, at least since What is your financial capability? So have any idea as to the time involved 1958, been aware that courts were rul- we are going to be encouraging people in the presentation of this amendment? ing thus and has not, until the action to get sick enough to come in and use May I inquire, Mr. President, of the of the Senator from Wyoming, taken the emergency rooms at the local hos- Senator from Florida if he has any idea steps to make these affidavits enforce- pital and then, with no one to pay and where we are, because so many people able. with the Federal Government no longer are involved—apparently there is an So the consequence of applying this picking up part of the cost through Olympics banquet, many awards ban- new standard retroactively is going to Medicaid, they will become a massive quets. Many people have asked for a be to substantially change the expecta- burden on those hospitals and on the window. I am perfectly willing to stand tion of both the legal alien and the communities which support those hos- right here until midnight and finish legal alien’s sponsor, because now we pitals. this bill. I would do that. If we can get are about to say that an affidavit The further irony of this is, this is an idea of time, that would be very which the courts have consistently going to be occurring in communities helpful. which are already paying a substantial ruled to be unenforceable, we are going Mr. GRAHAM. Mr. President, in re- burden because of the Federal Govern- to breathe life into that affidavit and sponse to the question of the Senator ment’s failure to enforce its immigra- we are going to expand that affidavit from Wyoming, the time to present tion laws and to have provided ade- to cover an indeterminate number of this amendment, which is amendment quately for the impact of these large programs for which there is some Fed- No. 3764, will be approximately 15 to 20 populations. I know it well in my own eral financial involvement. minutes. Mr. President, I do not disagree with State, which is one of the States that Mr. SIMPSON. I thank the Senator is particularly at risk under this pro- the thrust of the idea that we ought to from Florida. posal. Dade County, FL, Miami, has be making these affidavits financially Mr. GRAHAM. Mr. President, I ask had one of the fastest if not the fastest responsible, that we ought to make unanimous consent that the pending growing urban school systems in Amer- them documents which have some legal amendment of the Senator from Illi- ica in the last 10 years, primarily be- enforceability. I am concerned about nois be set aside. cause of the massive numbers of non- the reach that we are about to apply to The PRESIDING OFFICER. Is there native students who have entered that the number of programs, but that is for objection? Without objection, it is so school system. It has stretched the sys- another debate. But I think it is pat- ordered. The amendment is tempo- tem to the breaking point. ently unfair to now say we are going to rarily set aside. The Senator from Now we are about to say in this bill Florida is recognized. retroactively go back and make affida- that the Federal Government will pro- AMENDMENT NO. 3764 TO AMENDMENT NO. 3743 vits that have been unenforceable, en- vide less support to the education sys- forceable, and expand them to an inde- tem of that and other stressed coun- (Purpose: To limit the deeming provisions terminate number of programs. for purposes of determining eligibility of ties, and that the Federal Government legal aliens for Medicaid, and for other The argument for doing so, for reach- will restrict the funding for individuals ing back retroactively, is that, ‘‘We purposes) who would otherwise be eligible for Mr. GRAHAM. Mr. President, I call have two people who can pay. We have these programs, retroactively, so that one person who can pay who is the up amendment No. 3764. those costs will now become an addi- The PRESIDING OFFICER. The sponsor. We have the other person who tional burden of those already overbur- can pay who is the Federal taxpayer. It clerk will report. dened communities. The assistant legislative clerk read is better to force the sponsor to pay I think, Mr. President, in the funda- as follows: even if we do it in derogation of the un- mental spirit of fairness to all con- derstandings when the sponsor signed The Senator from Florida [Mr. GRAHAM] cerned, and specifically to those com- proposes an amendment numbered 3764 to the affidavit, than it is to continue to munities that have already paid a amendment No. 3743. ask the Federal taxpayer to pay.’’ I heavy price, that it is only fair and Mr. GRAHAM. Mr. President, I ask suggest that is a false analysis of what proper that we make this change of unanimous consent that the reading of is really going to happen. What is real- rules be prospective. Let us apply it to the amendment be dispensed with. ly going to happen is not that the spon- those people who come from the enact- The PRESIDING OFFICER. Without sor is going to pay retroactively, be- ment of this bill forward, who come objection, it is so ordered. cause I do not think we can legally with the understanding that they are The amendment is as follows: breathe life into a currently unenforce- signing an affidavit, if they are a spon- On page 201, strike lines 1 through 4 and in- able affidavit. And I do not think the sor, that will be legally enforceable; sert the following: Federal taxpayer is the party that is at that they will know if they are coming (3) CERTAIN SERVICES AND ASSISTANCE.—The final risk. as a legal alien what they are going to requirements of subsection (a) shall not I suggest what is really going to hap- be able to expect once they arrive here. apply to— pen is what the National Conference of I think it is patently unfair to (A) any services or assistance described in State Legislators has said. What really change the rule for thousands of people subsection 201(a)(1)(A)(vii); and is going to happen is what the National who are already here and then to have (B) in the case of an eligible alien (as de- scribed in section 201(f)(1))— Association of Counties has said. What us, essentially, transfer this financial (i) any care or services provided to an alien is really going to happen is what the responsibility to the communities in for an emergency medical condition, as de- National League of Cities has said. which they happen to have chosen to fined in section 1903(v)(3) of the Social Secu- What is really going to happen is what live. rity Act; and

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00050 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4499 (ii) any public health assistance for immu- While I strongly support the idea The [National Association of Public Hos- nizations and immunizable diseases, and for that sponsors should be required to pitals] opposes a deeming requirement for the testing and treatment of communicable provide housing, transportation, food, Medicaid. It will lead to an increase in the diseases. cash assistance to legal aliens who number of uninsured patients and exacerbate (4) MEDICAL SERVICES FOR LEGAL IMMI- an already tremendous burden of uncompen- GRANTS.— they have sponsored, legal aliens and sated care on public hospitals.*** the sponsor would be unable to provide (A) IN GENERAL.—Notwithstanding any The Congressional Budget Office esti- other provision of law, for purposes of deter- for themselves, for whatever reason, mates that the effect of this bill’s cur- mining the eligibility for medical assistance reasonable access to the health care under title XIX of the Social Security Act which unpredictable illness and debili- rent provision will be to reduce Federal (other than services for which an exception tating disease or injury might impose. reimbursement for such Medicaid costs is provided under paragraph (3)(B))— Unlike cash assistance, housing or by $2.7 billion. This is nothing more (i) the requirements of subsection (a) shall than a massive cost shifting to the not apply to an alien lawfully admitted to food, health care must be provided by a qualified professional, tailored to the States and local governments in which the United States before the date of the en- these legal aliens reside. actment of this Act; and specific diagnostic and treatment (ii) for an alien who has entered the United needs. Ultimately, no amount of hard The bill’s deeming provisions, in ad- States on or after the date of enactment of work and personal responsibility can dition to being nothing more than a this Act, the income and resources described protect an immigrant or anyone else huge cost-shift to State and local gov- in subsection (b) shall be deemed to be the from illness or injury. ernments, will also impose an adminis- income of the alien for a period of two years My proposal would be to deem Med- trative burden and a huge unfunded beginning on the day such alien was first icaid for 2 years. That is, for the first mandate on State Medicaid programs. lawfully in the United States. 2 years that the legal alien is in the In light of a series of calls throughout Mr. GRAHAM. Mr. President, the un- United States, the income of the spon- the year by the Nation’s Governors, the derlying bill, S. 1664, for the first time sor will be deemed to be that of the administration and this Congress have would deny to legal immigrants—legal alien. been asked to provide States with immigrants—access to Medicaid This is a reasonable compromise with greater flexibility to more efficiently through newly federally imposed or what I hope will have bipartisan sup- administer their Medicaid programs. mandated deeming requirements. This port. It would not exempt Medicaid This provision is incredibly ironic and prohibition, as the discussion of the from deeming altogether. Instead, it in sharp contrast to everything that we amendment of the Senator from Illi- would create a 2-year deeming period have been discussing in Medicaid pol- nois has indicated, will apply both pro- for the Medicaid Program alone. icy over the last 2 years. spectively, to persons who arrive after As a result, this amendment elimi- For a Medicaid case worker, who al- this bill is enacted, and retroactively, nates the magnet, the draw or incen- ready has to learn the complex require- to legal aliens who are already in the tive to come to the United States in ments of the Medicaid program, he or country. order to receive medical care, espe- she now must also learn immigration My amendment changes the deeming cially since an immigrant cannot plan law. As a study by the National Con- period for Medicaid to 2 years. It elimi- to get sick 2 years in advance. ference of State Legislatures notes, nates the retrospective nature of this However, it does recognize that in this would require an extensive citizen- provision, and it would apply these pro- the long run, health care is different ship verification made for all appli- visions to future immigrants and pro- from other benefits. This amendment cants to the Medicaid Program. vide for an exemption for emergency also recognizes and attempts to allevi- According to the Conference of State care and public health. ate the tremendous other burdens, cost Legislatures: So to restate what the amendment shifts, unfunded mandates and public These [deeming] mandates will require does, the amendment changes the health problems which potentially States to verify citizenship status, immigra- deeming period for Medicaid to 2 years. could be caused by S. 1664. tion status, sponsoring status, and length of Second, it eliminates the retroactive What are some of these potential time in the U.S. in each eligibility deter- nature of the legislation in the same problems? mination for a deemed Federal program. They will also require State and local gov- way that the amendment of the Sen- First, cost shifting. The Medicaid provisions in S. 1664 are currently ernments to implement and maintain costly ator from Illinois would do to all of the data information systems. nothing more than a cost shift to deemed programs. It would apply these In addition to all these costs, States provisions prospectively to future legal States, local governmental units and our Nation’s hospital system. Simply will have infrastructure training and aliens, and it would provide an exemp- ongoing implementation costs associ- tion for emergency care and for public put, if people are sick and cannot af- ford to pay for coverage for some of the ated with the staff time needed to health. make these complicated deeming cal- This amendment is supported by the most disabling conditions, someone will absorb the cost. culations. The result will be a tremen- National Conference of State Legisla- dously costly and bureaucratic un- tors. It is supported by the National The question is whether the Federal Government will pay a portion of that funded mandate on State Medicaid pro- Association of Counties. It is supported grams. by the National League of Cities. It is cost, or will such costs be shifted en- tirely to those States and local govern- This bill also threatens our Nation’s supported by the United States Con- ments and hospitals where legal aliens public health. Residents of commu- ference of Mayors. It is supported by will seek those services? nities where legal aliens live would the National Association of Public Hos- As the National Conference of State face an increased health risk from pitals. It is supported by the American Legislatures, the National Association communicable diseases under this pro- Public Health Association. It is sup- of Counties and National League of Cit- vision of the bill because immigrants ported by the National Association of ies wrote in an April 24, 1996, letter: would be ineligible for Medicaid and Community Health Centers. It is sup- Without Medicaid eligibility, many legal other public health programs des- ported by Interfaith, by the Catholic immigrants will have no access to health ignated to provide early treatment to Charities USA and the U.S. Catholic care. Legal immigrants will be forced to turn prevent communicable disease out- Conference. It is supported by the to state indigent health care programs, pub- breaks. Council of Jewish Federations, the Lu- lic hospitals, and emergency rooms for as- Such policies have historically and theran Immigration and Refugee Serv- sistance or avoid treatment altogether. This consistently had horrendous results. ices and the Evangelical Lutheran will in turn endanger the public health and increase the cost of providing health care to For example, in 1977, Orange County, Church of America. everyone. Furthermore, without Medicaid TX, instituted a policy that required Mr. President, I offer this amend- reimbursement, public hospitals and clinics people to prove legal status or be re- ment today which I consider to be a in States and localities would incur in- ported to the Immigration and Natu- substantial improvement of this bill. It creased unreimbursed costs for treating legal ralization Service when requesting is a substantial improvement by recog- immigrants. service at any county health facility. nizing the fact that health services are The National Association of Public As noted by El Paso County Judge different from other benefits that a Hospitals, in their April 12, 1996, letter Pat O’Rourke, in a letter dated Sep- legal alien might seek. added: tember 24, 1986:

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00051 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4500 CONGRESSIONAL RECORD — SENATE May 1, 1996 . . . within eighteen months, the county was attributed by Jackson Memorial consider so many amendments that re- experienced a 57 percent increase in Hospital to legal aliens in the commu- lated specifically to the provisions in extrapulmonary tuberculosis, a 47 percent nity. However, they currently do re- this bill that will apply retroactively increase in salmonella, a 14 percent increase ceive some reimbursement for care to and prospectively the income of a spon- in infectious hepatitis, a 53 percent increase in rubella and a 153 percent increase in legal aliens through private health sor to the income of a legal alien—I syphilis. care plans and Medicaid. Without the emphasize legal alien—for purposes de- The judge cites a 1978 report by the Medicaid payments, total uncompen- termining eligibility for means-tested sated costs will grow and require the Task Force on Public General Hos- programs. local community to either raise its Mr. President, if you represent the pitals of the American Public Health taxes or consider reducing hospital concerns of the millions of Americans Association in saying: services. who are represented by these organiza- Hence, what was a simple condition requir- In addition, by reducing access of tions, if you understand the pragmatic ing a relatively small expense became a large matter adversely affecting all tax- pregnant immigrant women to pre- reality of what we are about to do both payers. natal care and nutrition support pro- to individuals and to the communities grams, the health of the U.S.-citizen In an analysis of the potential health in which they live, and to the tax- infants will be threatened. The Na- impacts of S. 1664, the bill before us payers in the communities and States tional Academy of Sciences’ Institute this evening, conducted by Dr. Richard in which you live, you would under- of Medicine estimates that for every $1 Brown, the president of the American stand why there have been so many spent on prenatal care, there is a $3 Public Health Association and director amendments offered on this subject. savings in future medical care for low of the University of California at Los I believe that the amendment which I birthweight babies. Denying prenatal Angeles Center for Health Policy Re- have offered is a reasoned middle and well-baby care to an immigrant search, Dr. Brown states: ground. By setting a 2-year deeming only threatens the life of her U.S.-cit- provision it would give us assurance In a study of tuberculosis patients in Los izen child. Mr. President, that makes Angeles, more than 80 percent learned of that no one would come to this country their disease when they sought treatment for absolutely no sense. In fact, it is nei- with a specific condition—whether that a symptom or other health condition, not be- ther cost effective nor in the interest be pregnancy or a known medical infir- cause they sought a TB screening. Yet [S. of public health. mity—in order to receive U.S. tax- 1664] would make it more difficult for immi- Another concern raised by Catholic payer-financed medical service. Very grants to seek diagnosis and treatment be- Charities USA is the potential for in- few people are prophetic enough to cause their access to health care would be creased abortions as a result of S. 1664. know what their condition is going to sharply reduced, permitting this debilitating To quote from the Catholic Charities be 24 months from now. By providing and often deadly disease to spread through- U.S.A., that this will be prospective, all per- out the community. When an infected person The most immediate threat of the Med- becomes seriously ill with tuberculosis, the sons who come into this country from icaid deeming provision is the pressure on this point forward, from the enactment costs of treating these true emergencies will poor pregnant women to end their preg- be borne by everyone, especially taxpayers. nancies inexpensively through abortion rath- of this bill forward, will know under Dr. Brown concludes: er than to carry them to term. A legal immi- what conditions they will be entering Tuberculosis and other communicable dis- grant who becomes pregnant and does not this country. eases do not respect distinctions between have the means to obtain health care will be By exempting those programs that citizens and non-citizens, legal residents and able to finance a $250 abortion at a local clin- affect the public health and relate to people who are not here lawfully. The key to ic much more easily than either she or her emergency care, we will be recognizing controlling an outbreak of tuberculosis, hep- sponsor can pay for prenatal care or put the fact that those steps are not just atitis, sexually transmitted diseases, or down a $1,000 deposit at a hospital for labor for the benefit of the individual but and delivery. other communicable diseases is early identi- they are for the benefit of the broad fication of the source of the infection and In summary, as currently drafted, S. public with its interest in continuing immediate intervention to treat all infected 1664 would have the following negative to have access to emergency facilities persons. Because these bills will discourage consequences: It shifts costs to States, and to be saved from having unin- immigrants from seeking treatment, they local governments, and hospitals. It tended access to communicable dis- will endanger the health of everyone in the imposes an administrative unfunded community. eases. mandate on State medicaid programs. In the interest of our Nation’s public Mr. President, I believe this is a con- It threatens the Nation’s or the structive amendment which deals with health, why, Mr. President, why would public’s health. It is not cost effective serious issues within this legislation. I we wish to take such an unnecessary and it may lead to an increase in abor- urge its adoption. risk? tions. In addition, the Medicaid deeming My amendment would help address EXHIBIT 1 provisions, by creating a obstacle to these problems. Therefore, it is sup- NATIONAL CONFERENCE OF STATE preventive health services, will result ported by the National Conference of LEGISLATURES, NATIONAL ASSO- CIATION OF COUNTIES, NATIONAL in certain cases of immigrants resort- State Legislatures, the National Asso- LEAGUE OF CITIES ing to emergency room care. Health ciation of Counties, the National care costs will thus be more expensive. April 24, 1996. League of Cities, U.S. Conference of DEAR SENATOR: The National Conference of This would further strain the already Mayors, the National Association of State Legislatures (NCSL), the National As- overburdened and underfunded emer- Public Hospitals, the American Public sociation of Counties, (NCAo), and the Na- gency and trauma care facilities across Health Association, the National Asso- tional League of Cities (NLC) are very con- the country, particularly in our Na- ciation of Community Health Centers, cerned about unfunded mandates in S. 1664, tion’s urban centers. Without reim- InterHealth, Catholic Charities U.S.A., the Immigration Control and Financial Re- bursements, such hospitals will be sponsibility Act of 1996 that would be an ad- and the U.S. Catholic Conference, the ministrative burden on all states and local- forced to consider shutting their emer- Council of Jewish Federations, Lu- gency room doors for all residents of ities. We urge you to support a number of theran Immigration and Refugee Serv- amendments that will be offered on the Sen- the county, affecting all residents, im- ices, and Evangelical Lutheran Church ate floor to mitigate the impact of these migrants or otherwise. of America. mandates on, and cost shifts to, states and For example, Jackson Memorial Hos- Mr. President, I ask unanimous con- localities. pital in Miami estimates that its un- sent to have printed in the RECORD im- S. 1664 would extend ‘‘deeming’’ from three compensated care costs for fiscal year mediately after my remarks state- programs (AFDC, SSI and Food Stamps) to 1995 for undocumented immigrants was all federal means-tested programs, including ments by several of these organizations foster care, adoption assistance, school $45.8 million. To repeat, for 1995, in in support of this amendment. that one public hospital, Jackson Me- lunch, WIC and approximately fifty others. The PRESIDING OFFICER. Without As you know, ‘‘deeming’’ is attributing a morial in Miami, the cost in uncom- objection, it is so ordered. sponsor’s income to the immigrant when de- pensated care for undocumented aliens (See exhibit 1.) termining program eligibility. It is unclear was $45.8 million. An additional $60 Mr. GRAHAM. Mr. President, I close what ‘‘all federal means-tested programs’’ million in uncompensated care costs by saying that I regret we have had to means. Various definitions of the phrase

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00052 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4501 ‘‘federal means-tested programs’’ would in- Senator Leahy’s amendment exempting Although the bill would require the sponsor clude a range of between 50–80 programs. immigrant children from nutrition program to agree, in a legally enforceable affidavit of Furthermore, regardless of the size of their deeming. support, to financially support the immi- immigrant populations, this mandate will Finally, we firmly believe that deeming re- grant, many sponsors may nevertheless be require all states to verify citizenships sta- strictions are incompatible with our respon- unable to finance the health care costs of the tus, immigration status, sponsorship status, sibility to protect abused and neglected chil- immigrants, many sponsors may neverthe- sponsor’s income and length of time in the dren. Courts will decide to remove children less be unable to finance the health care U.S. in each eligibility determination for from unsafe homes regardless of their spon- costs of the immigrants they sponsor. ‘‘all federal means-tested programs.’’ NCSL sorship status and state and local officials Finally, it should be noted that in order to estimates that implementing deeming re- must protect them. Deeming for foster care qualify for Medicaid coverage an individual strictions for just ten of these programs will and adoption services will shift massive ad- must not only be very poor but in addition cost states approximately $744 million. Ex- ministrative costs to states and localities must qualify under one of the vulnerable cat- tending deeming mandates to over 50 pro- and force them to fund 100% of thee benefits. egories that include pregnant women, chil- grams garners little federal savings and We urge you to support the following amend- dren, the elderly, and people with disabil- should be eliminated as part of the Congres- ments to protect states and localities from ities. Therefore, because of the strict eligi- bility requirements for the Medicaid pro- sional commitment to eliminating cost this cost shift. gram, legal immigrants who do qualify for shifts to state and local budgets and tax- Senator Murray’s amendment exempting coverage are very limited in number and ex- payers. immigrant children from foster care and Therefore, we urge you to support Senator tremely vulnerable. adoption deeming restrictions. For these reasons, Catholic Charities USA ’s effort to raise a point of order Senator Wellstone’s amendment exempting supports the elimination of the deeming re- against S. 1664 based on its violation of P.L. battered spouses and children from deeming quirement for Medicaid. Should the elimi- 104–4, the Unfunded Mandates Act of 1995. restrictions. nation of deeming for Medicaid prove un- This is a critical test of your commitment to We appreciate your consideration of our workable in the current political context, we preventing cost-shifts to, and unfunded ad- concerns and urge you to protect states and would support an amendment to limit Med- ministrative burdens on, states and local- localities from the unfunded mandates in S. icaid deeming to the shortest time period ities. We also urge you to support subsequent 1664. possible. amendments that will reduce the scope of Sincerely, the deeming provisions and limit the admin- JAMES J. LACK, MEDICAID ‘‘DEEMING’’ FOR LEGAL IMMIGRANTS istrative burden on states and localities. New York Senate, SHOULD BE LIMITED TO TWO YEARS These include: President, NCSL. The Immigration Control and Financial Senator Graham’s amendment giving DOUGLAS R. BOVIN, Responsibility Act (S. 1664), which is sched- deeming mandate exemption to: 1) programs Commissioner, Delta uled for Senate floor action on April 15, pro- where deeming costs more to implement County, MI, poses harsh new restrictions on immigrants than it saves in state or local spending; or 2) President, NACo. who are in this country legally. The bill de- programs that the federal government does GREGORY S. LASHUTKA, nies Medicaid for a minimum of ten years, or not pay for the administrative cost of imple- Mayor, Columbus, OH, until citizenship, for immigrants who have menting deeming. This ensures that new President, NLC. come to this country, worked hard, paid deeming mandates are cost effective and are taxes, and in every respect ‘‘played by the not unfunded mandates. CATHOLIC CHARITIES USA SUPPORTS THE rules.’’ The bill does this through a mecha- Senator Graham’s amendment substituting ELIMINATION OF THE MEDICAID ‘‘DEEMING’’ nism called ‘‘deeming.’’ a clear and concrete list of programs to be REQUIREMENT INCLUDED IN THE IMMIGRA- How Deeming Works: To be eligible for deemed for the vague language in S. 1664 re- TION REFORM BILL Medicaid, an individual must have suffi- quiring deeming for ‘‘all federal means-test- S. 269 currently requires that the income ciently low income to qualify. Deeming is a ed programs.’’ This amendment ensures that and resources of a legal immigrant’s sponsor process where by a person’s income is Congress, and not the courts, will decide and the sponsor’s spouse be ‘‘deemed’’ to the ‘‘deemed’’ to include not only is or her own which programs are deemed. income, but also income from other sources. Senator Kennedy’s amendment conforming income of the legal immigrant when deter- mining the immigrant’s eligibility for all S. 1664 requires a legal immigrant’s income Senate deeming exemptions to those accept- to be deemed to include the income of the ed by the House in H.R. 2202. means-tested federal public assistance pro- grams, including Medicaid. The deeming pe- immigrant’s sponsor and the sponsor’s In addition, we urge you to support other spouse. In addition, the immigrant’s income amendments that would temper the un- riod would be a minimum of 10 years (or until citizenship). is ‘‘deemed’’ to include the value of the spon- funded mandates in S. 1664 and relieve the sor’s resources, such as the sponsor’s car and administrative burden on states and local- Catholic Charities USA supports the elimi- nation of the Medicaid deeming requirement home. Although a legal immigrant could ities. We are especially concerned about the well qualify for benefits based on his or her impact of extending the deeming require- for two main reasons. First, requiring deem- ing for the Medicaid program ignores the di- own resources, many immigrants will effec- ments to the Medicaid program. Without tively be denied Medicaid because of their Medicaid eligibility, many legal immigrants chotomy between medical services and other need-based assistance that Congress has fol- sponsor’s income and resources. will not have access to health care. Legal Catholic Charities USA opposes Medicaid lowed since the inception of Medicaid. For immigrants will be forced to turn to state in- deeming for the following reasons: over 30 years, Congress has treated Medicaid digent health care programs, public hos- The Risk of Increased Abortions: To most pitals, and emergency rooms for assistance benefits for legal immigrants in a fundamen- immediate threat of the Medicaid deeming or avoid treatment altogether. This will in tally different fashion than other federal provision is the pressure on poor pregnant turn endanger the public health and increase benefits programs. Historically, Congress has women to end their pregnancies inexpen- the cost of providing health care to every- never required deeming for Medicaid, recog- sively through abortion rather than carry one. Furthermore, without Medicaid reim- nizing that no level of hard work and per- them to term. A legal immigrant who be- bursement, public hospitals and clinics and sonal responsibility can protect someone comes pregnant and does not have the means states and localities would incur increased from illness and injury, and that payments to obtain health care will be able to finance unreimbursed costs for treating legal immi- for medical care are significantly higher and a $250 abortion at a local clinic much more grants. We support the following compromise more unpredictable than payments for other easily than either she or her sponsor can pay amendment to preserve some Medicaid eligi- necessities. In addition, although an immi- for prenatal care or put down a $1000 deposit bility for legal sponsored immigrants. grant’s sponsor or other charitable indi- at a hospital for labor and delivery. Senator Graham’s amendment to limit vidual may be able to share food and shel- Medical Needs are Unpredictable and Im- Medicaid deeming to two years. ter—and even income to a certain extent—a possible to ‘‘Share:’’ If an immigrant cannot We strongly support amendments to ex- person cannot share his or her medical care. provide for him or herself S. 1664 requires empt the most vulnerable legal immigrant Unlike housing or food, health care must be that a sponsor provide housing, transpor- populations from deeming requirements. We provided by a qualified professional and must tation, food, or even cash assistance in some urge you to support the following amend- be tailored to a person’s specific health circumstances. Although Catholic Charities ments that will preserve a minimal amount needs. In this sense, Medicaid is sub- USA opposes these extensions of current law, of federal program eligibility for the need- stantively different than other needs-based we acknowledge a distinction between these iest legal immigrants and protect states and assistance. S. 269 would end Congress’ long- forms of assistance and the specific area of localities from bearing the cost of these standing recognition of the special nature of medical care. Unlike housing or food, health services. Medicaid. care must be provided by a qualified profes- Senator Kennedy’s amendment exempting Second, the Medicaid deeming requirement sional and tailored to a persons’s specific di- children and pre-natal and post-partum care will lead to an increase in the number of un- agnostic and treatments needs. Although a from Medicaid deeming restrictions. insured patients and exacerbate an already citizen may have enough income and re- Senator Simon’s amendment exempting tremendous burden of uncompensated care sources to qualify as a sponsor, the some- immigrants disabled after arrival from on public hospitals and other providers who times expensive and often unpredictable na- deeming restrictions. treat large numbers of low-income patients. ture of medical care may limit the sponsor’s

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00053 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4502 CONGRESSIONAL RECORD — SENATE May 1, 1996 ability to finance a sudden and drastic emer- should not continue indefinitely. Catholic immigrant. The bills would require that the gency. Charities USA believes a reduced, two year sponsor’s income be combined with the im- Early Diagnosis and Treatment is Less Ex- deeming period for Medicaid is a viable com- migrant’s income until the immigrant had pensive Than Emergency Care: Basic pre- promise that recognizes all of these con- worked for 40 quarters (at least 10 years) in ventative and diagnostic services treat con- cerns. which he/she earned enough to pay taxes or ditions inexpensively before they become ag- until he/she became a citizen. This provision gravated. If such services are denied, rel- THE HEALTH EFFECTS OF S. 1664 AND H.R. 2202 would make most sponsored legal immi- atively unthreatening illnesses may turn (By E. Richard Brown, Ph.D) grants ineligible for such benefits, even if into emergencies to be treated with much S. 1664 and H.R. 2202 threaten the health of they maintain a separate household with more expansive and expensive means. For ex- substantial combined expenses or do not ample, $3 is saved on average for every $1 immigrants and of the larger community. They threaten the health of immigrants and have access to their sponsor’s income. spent in prenatal care. Moreover, if a legal These provisions make more stringent the immigrant is denied prenatal services, her the larger community by making it more difficult to control the spread of serious conditions under which legal immigrants child may be born with serious conditions may receive these public benefits, length- that will last an entire lifetime. These chil- communicable diseases and making it more likely that such diseases would spread ening the time during which they are poten- dren, born to legal immigrants, are citizens tially deportable for receiving benefits, re- who will be eligible for Medicaid. through the community, threaten the health of U.S.-citizen infants by reducing the access ducing the conditions under which they may The Cost of Denying Care is an Unfunded legitimately receive them, and extending the Mandate to be Borne By Local Hospitals and of pregnant immigrant women to prenatal care and nutrition support programs; and ‘‘deeming’’ process to more programs and for Communities: Public hospitals in local com- a longer period of time. munities are required to treat anyone with threaten the health of immigrants by reduc- emergency conditions. If legal immigrants ing management of chronic illnesses and Undocumented immigrants are denied medical services and forced to let early intervention to prevent health prob- Undocumented immigrant women would be their illnesses deteriorate, local hospitals lems from developing into more serious ones, barred from receiving prenatal and eventually will be required to treat them as resulting in more disability and higher med- postpartum care under Medicaid. States may emergencies. Since public hospitals are fund- ical costs both among immigrants and their provide prenatal and postpartum care to un- ed by local taxpayers, this policy represents U.S.-citizen children. documented immigrant women who have an enormous cost-shift from the federal gov- PROVISIONS OF S. 1664 AND H.R. 2202 continuously resided in the United States for at least three years (the House bill excludes ernment onto state and local entities. Al- Public health care services and publicly pregnancy care altogether). The bills would though designed to reduce federal expense, funded community-based services are essen- allow undocumented immigrants to receive the deeming provision would essentially cre- tial to control the progression and spread of immunizations and be tested and treated for ate an entirely new population of uninsured disease among low-income persons and com- serious communicable diseases. Because individuals, force immigrants to wait until munities. These services are essential be- these provisions apply to any services pro- their conditions become more expensive, and cause a high proportion of low-income immi- vided or funded by federal, state or local gov- then mandate that local hospitals serve grants do not receive health insurance ernment, they prohibit most community- them and pay for this service—all effects through employment, despite their high based health services, such as migrant that will have real-world financial repercus- rates of labor force participation. Because of health centers and community health cen- sions for citizens. their low incomes, they cannot afford to pur- ters, from providing primary or preventive Denying Medical Services to Immigrants chase health insurance in the private mar- care to undocumented immigrants. Endangers Entire Communities: Due to the ketplace. Although uninsured immigrants Undocumented immigrants currently are increased cost to local hospitals, services pay a considerably higher proportion of their not eligible for any means-tested health pro- will degenerate—not only for legal immi- incomes out-of-pocket for medical services grams except emergency medical services, in- grants—but for every person in the commu- than do persons with insurance, they often cluding childbirth services (funded by Med- nity who relies on that hospital for care. If cannot afford an adequate level of medical icaid), immunizations, and nutrition pro- a portion of a hospital’s budget is diverted to care without the assistance of public pro- grams for pregnant women and children. cover the increased expense of handling grams and publicly subsidized health serv- These bills extend this prohibition to pre- emergency conditions, less money will be ices. natal and postpartum care, and they extend available to finance services for everyone. S. 1664 and H.R. 2202 would impose such on- to nearly all publicly funded programs and Perhaps more importantly, if immigrants erous financial requirements on legal immi- services the prohibitions on providing non- are not immunized or treated for commu- grants that they effectively exclude millions emergency care that formerly were re- nicable diseases, entire communities will be of legally resident children and adult immi- stricted to Medicaid. at risk. grants from receiving any health services or Immigrants Currently Finance Benefits for nutrition supplements. These bills also pro- EFFECTS ON HEALTH Citizens: Legal immigrants are subject to hibit undocumented immigrants from receiv- These bills would maek it more difficult the same tax laws as citizens. However, as a ing all but emergency medical care from any for low-income immigrants, whether they group, legal immigrants pay more propor- public agency or from community-based are here legally or not, to obtain preventive tionally in taxes than citizens. They also use health services, such as migrant health cen- or porimary health care. By denying access fewer benefits than citizens. Although some ters and community health centers. These to cost-effective health services that can claim immigrants drain resources, legal im- bills will reduce access to cost-effective pri- prevent or limit illness, this legislation migrants actually finance public assistance mary care and prevention and force immi- would increase the use of emergency rooms benefits for citizens. Because of these fac- grants to use expensive emergency and hos- and hospitals at greater cost to taxpayers tors, basic fairness counsels against denying pital services—at increased cost to taxpayers and cause more disability among immi- legal immigrants the same safety net secu- and poorer health outcomes for immigrants grants. rity as citizens. Immigrants should be able and the larger community. to rely on support times of need in the same Prenatal care and birth outcomes manner as other taxpayers, especially since Legal immigrants The provisions in these bills will result in they have demonstrated that they require Legal immigrants would become deport- an increased number of low birthweight and such services less often. able if they participate in Medicaid, vir- higher death rates among U.S.-citizen in- Catholic Charities USA favors a reduced tually any state health insurance or health fants. The expanded ‘‘deeming’’ provisions deeming period of two years for Medicaid. A care program that is means-tested, or any would prevent many legal immigrant women two-year deeming period would substantially local means-tested services for more than 12 who are pregnant and needy from qualifying remove what some view as a ‘‘draw’’ for im- months during their first five years (seven for Medicaid, and the expanded threats of de- migrants entering the country solely to ob- years in the House bill) in the United States. portation would discourage other needy legal tain medical services, especially since an im- This provision would strongly deter most immigrant women from applying for Med- migrant could hardly plan an illness two legal immigrants from enrolling in Medicaid icaid. The bills also would prohibit preg- years in advance. In addition, this com- or otherwise obtaining health services on a nancy-related health services to most un- promise would preserve the distinction be- sliding fee-scale from a local health depart- documented immigrant women. tween medical services and other forms of ment or any community health center, mi- Denying inexpensive prenatal care to many assistance, recognizing that no amount of grant health center, or other community- pregnant women will increase the health hard work and personal responsibility can based health service which receives any fed- risks to the women and their U.S.-citizen in- protect someone from illness and injury. Al- eral, state or local government funds. Re- fants, all at great cost to federal and state though opponents may oppose such an ceiving any combination of such benefits for taxpayers. The National Academy of amendment because it won’t reduce federal a total of more than 12 months would make Sciences’ Institute of Medicine estimates spending as much, the effect of a longer pe- the immigrant ineligible for citizenship. that every $1 spent on prenatal care saves $3 riod would be an exponential increase in the Furthermore, to determine eligibility for that otherwise would be spent on medical cost to state and local entities. The bill such services or programs, the sponsor’s in- care for low birthweight infants. A recent itself, by setting the deeming period at two come (and the income of the sponsor’s study by the California Department of years, recognizes that a sponsor’s liability spouse) would be ‘‘deemed’’ available to the Health Services found that Medi-Cal hospital

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00054 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4503 costs for low birthweight babies averaged debilitating and often deadly disease to SEC. 108. CONSTRUCTION OF PHYSICAL BAR- $32,800, thirteen times higher than those of spread throughout the community. When an RIERS, DEPLOYMENT OF TECH- non-low birthweight babies ($2,560). With no infected person becomes seriously ill with NOLOGY AND IMPROVEMENTS TO prenatal care, the expected hospital medical tuberculosis, the costs of treating these true ROADS IN THE BORDER AREA NEAR SAN DIEGO, CALIFORNIA. costs for a baby born to a Mexican-American emergencies will be borne by everyone, espe- There are authorized to be appropriated woman with no prenatal care are 60% higher cially taxpayers. The California Department funds of $12 million for the construction, ex- than if she had gotten adequate prenatal of Health Services estimates that it costs pansion, improvement or deployment of tri- care, or $1,360 higher per birth. The Amer- $150 to provide preventive therapy to a tu- ple-fencing in addition to that currently ican-born infants of immigrant mothers berculosis-infected patient, but it costs 100 under construction, where such triple-fenc- automatically would be U.S. citizens, enti- times as much for a tuberculosis patient who ing is determined by the Immigration & Nat- tling them to medical care paid for by Med- must be hospitalized—and more than 600 uralization Service (INS) to be safe and ef- icaid. These added medical costs may well times as much if the patient has developed a fective, and in addition, bollard style con- exceed any savings due to reduced Medicaid drug-resistant variety of tuberculosis. crete columns, all weather roads, low light eligibility among immigrant pregnant Tuberculosis and other communicable dis- television systems, lighting, sensors and women. eases do not respect distinctions between other technologies along the international Management of chronic illness citizens and non-citizens, legal residents and land border between the United States and These bills would prohibit undocumented people who are not here lawfully. The key to Mexico south of San Diego, California, for and many legal immigrants from using local controlling an outbreak of tuberculosis, hep- the purpose of detecting and deterring un- health department clinics or community- atitis, sexually transmitted diseases, or lawful entry across the border. Amounts ap- based clinics, such as migrant or community other communicable diseases is early identi- propriated under this section are authorized health centers, for other than emergency fication of the source of infection and imme- to remain available until expended. The INS, care or diagnosis and treatment for a com- diate intervention to treat all infected per- while constructing the additional fencing, municable disease. High blood pressure, dia- sons. Because these bills will discourage im- shall incorporate the necessary safety fea- betes, asthma, and many other chronic ill- migrants from seeking treatment, they will tures into the design of the fence system to nesses can be managed effectively by regular endanger the health of everyone in the com- insure the well-being of Border Patrol agents medical care, which includes monitoring of munity. deployed within or in near proximity to the condition, teaching the patient appro- ADMINISTRATIVE COSTS these additional barriers. Mrs. FEINSTEIN. Mr. President, ear- priate self-management, and provision of S. 1664 and H.R. 2202 would impose substan- necessary medication. When diabetes goes tial administrative burdens on health care lier I sent an amendment to the desk untreated, it results in diabetic foot ulcers, services to check clients’ immigration status on behalf of Senator BOXER and myself blindness, and many other complications. and obtain information necessary to ‘‘deem- which relates to the triple fencing of Uncontrolled high blood pressure causes ing.’’ These administrative costs include the Southwest border, particularly in heart attacks, strokes, and kidney failure, interviewing clients and obtaining the infor- the vicinity of San Diego and Mexico. all of which lead to expensive emergency mation from them, verifying the accuracy of This is an amendment to that amend- hospital admissions. In the absence of reg- information, training of staff, and record ment which has been worked out with ular care, people with these controllable dis- keeping and processing. The administrative eases will present repeatedly to hospitals in Senator KYL and which I believe, hope- burden includes obtaining information about fully will be acceptable to both sides. severe distress, resulting in emergency and the client’s immigration status, date on Senator KYL and I have discussed this. intensive care for a much higher cost than which the person entered the country, periodic visits and maintenance medication. whether the immigrant has a sponsor, We have also discussed it with Doris Primary care and prevention are cost-effec- whether the immigrant has worked for 40 Meissner, the INS Commissioner. We tive alternatives to use of emergency rooms, quarters during which they earned enough to have worked out language to which specialty clinics, and hospitalization—and have a tax liability, and the income and re- INS now agrees. they preserve and improve the person’s func- sources of the immigrant, the sponsor, and Essentially, the language would au- tional status. As with pre- and postnatal the sponsor’s spouse. These administrative thorize the appropriation of $12 million care, the costs of increased use of emergency costs must be borne by the program or serv- for the construction, expansion, im- and hospital services are likely to offset any ice provider, except for anti-fraud investiga- provement, and deployment of triple savings due to reduced use of primary and tors in hospitals. preventive care. fencing. In addition, that currently SUMMARY Communicable diseases under construction where such triple 1664 and H.R. 2202 will: These bills would make it more difficult fencing is determined by the INS to be Reduce access of legal immigrants and un- for undocumented immigrants or legal immi- safe and effective, and in addition, documented immigrants to primary care and grants to obtain care for communicable dis- bollard-style concrete columns, all preventive health services and increase im- eases. Although they explicitly permit un- weather roads, low-light television sys- migrants’ use of emergency and hospital documented immigrants to be diagnosed and tems, lighting sensors and other tech- services; treated for communicable diseases, public Result in poorer health outcomes for im- nologies along the international land health services throughout the country are migrants and their U.S.-citizen infants; border between the United States and being restructured to eliminate dedicated Increase the larger community’s risk of Mexico south of San Diego, CA, for the clinics for tuberculosis, sexually transmitted contracting communicable diseases; purpose of detecting and deterring un- diseases, and other cummunicable diseases. Increase expenditures on emergency and Instead diagnosis, treatment, and manage- lawful entry across the border. hospital services, offsetting savings due to ment of these health problems are being in- I believe this amendment in full is reduced use of preventive and primary care; tegrated into primary care, which would be acceptable to both sides. Commissioner and denied to undocumented immigrants and Meissner has also agreed to send a let- Increase administrative costs for publicly most legal immigrants alike who cannot af- ter to Representative HUNTER which funded health care providers. ford to pay the full cost of these services. would State that the INS is in the Without access to primary care, immigrants Mr. SIMPSON. Mr. President, may process of testing triple fencing, will would have few options to receive medical we set aside this amendment and go di- continue that testing, and is prepared attention for persistent illnesses. Coughs rectly to the amendment of Senator to add to it where it has proven to be that do not go away, fevers that do not sub- FEINSTEIN so she might modify a pre- side, and rashes and lesions that do not heal effective and safe. vious amendment? Mr. President, I ask unanimous con- may be due to communicable diseases such The PRESIDING OFFICER. Without as tuberculosis, hepatitis, meningitis, or a sent to vitiate the yeas and nays. sexually transmitted disease. objection, it is so ordered. The PRESIDING OFFICER. Without Tuberculosis is prevalent among legal, as The pending amendment No. 3764 is objection, it is so ordered. well as undocumented, immigrants from set aside. Mr. SIMPSON. Mr. President, let me Asia and Latin America. It is easily spread if AMENDMENT NO. 3777, AS MODIFIED commend the Senator from California those who are infected are not diagnosed and Mrs. FEINSTEIN. I thank the Sen- for the fine work that she has done treated. In a recent study of tuberculosis pa- ator from Wyoming. Mr. President, I here in conjunction with the Senator tients in , more than 80% learned send a modification to amendment 3777 from Arizona, Senator KYL. Both of of their disease when they sought treatment you committed to the same objective, for a symptom or other health condition, not to the desk. because they sought tuberculosis screening. The amendment (No. 3777), as modi- both of you from States heavily af- Yet these bills would make it more difficult fied, is as follows: fected, both of you more aware of these for immigrants to seek diagnosis and treat- Beginning on page 10, strike line 18 and all things than any of us in this Chamber. ment because their access to health care that follows through line 13 on page 11 and I insist in these remarks of all these would be sharply reduced, permitting this insert the following: past months that if there are people

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00055 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4504 CONGRESSIONAL RECORD — SENATE May 1, 1996 that understand illegal immigration and authentically touching, they will support, or similar agreement, with respect any better than the people of Texas, move us, maybe to tears. I am not to such individual, and the income and re- California, Florida, and Illinois—al- being sarcastic. Those things are real. sources of the sponsor spouse shall be deemed to be the income and resources of the though not on the border of our coun- They will be veterans, they will be individual for a period of 3 years after the in- try but yet one of the large States with children, they will be disabled, they dividual’s entry into the United States. a large number of formally undocu- will be sick, and all we are saying is That is quite clear. That is what the mented persons; that I think has been that the sponsor will pay first, which is obligation of the sponsor was. There is corrected; but a large and sometimes exactly what they promised to do. And similar clarity of language to be found vexing population. I think you have re- so, if the sponsor, having been hit too under the provisions relating to Aid to solved that to the betterment of all. hard, is pressed to bankruptcy, is Families with Dependent Children and The PRESIDING OFFICER. The pressed to destruction, is pressed wher- food stamps. So if a person wanted to question is on agreeing to the amend- ever one would be pressed, then we step know, what is my legal obligation ment. in, the U.S.A., the old taxpayers step when I sign a sponsorship affidavit, The amendment (No. 3777), as modi- into the game —but not until the spon- they could go to the law books of the fied, was agreed to. sor has suffered to a degree where they United States and read, with clarity, Mr. SIMPSON. Mr. President, I be- cannot pony up the bucks that they what those programs happen to be. lieve now that the status of matters is promised to pay. My friend from Wyoming, the reality that we have two Simon amendments If the sponsor has the financial re- is that this Congress, until tonight, has that we will deal with. sources to pay for the medical care not chosen to place Medicaid as one of Mr. SIMON. We have dealt with needed by an immigrant, why on God’s those programs for which such deeming them. earth should the U.S. taxpayers pay for is required. By failing to do so, and by AMENDMENT NO. 3764 it? That is the real question. That is doing so for these three distinct pro- Mr. SIMPSON. We have not quite fin- one that is easy to debate. grams, I think a very clear implication ished dealing with them. I had a com- Does any Senator in this Chamber has been created that we did not in- ment or two to make. believe that the taxpayers of this coun- tend, that there be deeming of the Mr. President, with regard to Sen- try would agree to admit to our coun- sponsor’s income for the purposes of ator GRAHAM’s remarks and his amend- try an immigrant if they believed that eligibility for Medicaid. ment, I hope—and I will not be long— the immigrant would impose major I believe that the kinds of arguments we have heard in that amendment the medical costs on the taxpayers, and that are made by responsible organiza- revisitation of an old theme. The issue that the immigrant sponsor would not tions, such as the Association of Public is very simple. As we hear the con- be providing the support that they Hospitals, is why this Congress, up tinual discussion about taxpayers and promised to pay? Now, that is where we until tonight, has not deemed it appro- what is going to happen to taxpayers— are. That is where we have been. We priate to deem the income of the spon- taxpayers this, taxpayers that—I have can argue on into the night and get the sor to the legal alien for the purposes a thought for you. I will tell you who same result, I think, that we got last of Medicaid. If that argument was so persuasive in should pay for the legal immigrant: the night and will get tomorrow—the issue the past, why have we not added Med- sponsor who promised to pay for the being, regardless of the tragic nature of icaid to the list of responsibilities in legal immigrant. this situation, whatever it is, the spon- This is not mystery land. This is ex- the past? sor pays. Mr. President, I believe—the rhetoric traordinary. How can we keep coming Then if you are saying, ‘‘But if the back to the same theme when the issue aside—that the facts are that there is sponsor cannot pay,’’ we have already clarity as to what the sponsor’s obliga- is so basic? taken care of that. If the sponsor can- If you are a legal immigrant to the tion is today. No. 2, that we are about not pay—goes bankrupt, dies, or what- to change that responsibility and make United States, this is such a basic ever—the Government of the United theme that I do not know why it needs those changes retroactive, applying to States of America, the taxpayers, will literally hundreds of thousands of peo- to be repeated again and again and pick up the slack; but not until the ple. And, in the case of Medicaid, in my again. But I hope it will be dealt with sponsor has had the slack drawn out of judgment, we are about to adopt legis- in the same fashion again and again them—not to the point so they cannot lation that would have a range of nega- and again, because it is this: When the live or become public charges them- tive effects, from increasing the threat legal immigrant comes to the United selves, but that is what this is about. to the public health of communicable States, the consular officer, the people Mr. GRAHAM addressed the Chair. diseases, to endangering the already involved in the decision, and the spon- The PRESIDING OFFICER. The Sen- fragile financial status of some of our sor agrees that that person will not be- ator from Florida. most important American hospitals, to come a public charge. That was the law Mr. GRAHAM. Mr. President, I wish increasing the likelihood that a poor, in 1882. We have made a mockery of to slightly, again, correct the RECORD. pregnant woman would choose abortion that law through administrative law I know the Senator from Wyoming rather than deliver a full-term child. judge decisions and court decisions feels passionately about his position. And so, Mr. President, I believe that through the years, where it is not just His position just happens to be at vari- both the amendment offered by the the ‘‘steak and the tooth,’’ as my ance with the facts. Senator from Illinois and, immodestly, friend from Illinois referred to, there is I will cite and read this and ask if the the amendment I have presented to the no steak and no teeth in it. Senator would disagree that these are Senate represent the kind of public pol- And so, one of the most expensive the words in the United States Code 42, icy that is consistent with the reality welfare programs for the United States section 1382(j). This happens to be one of our history of the treatment of legal taxpayers is Medicaid. Everybody of the three areas in which this Con- aliens—again, I underscore legal knows it. The figures are huge. Senator gress, at its election, has decided to aliens—and should be continued by the DOMENICI knows it. He covered it the specifically require that the income of adoption of the amendments that will other day. They are huge, and we all the sponsor be added to that of the in- be before the Senate shortly. know that. We know the burden on the come of the legal alien for the purposes Thank you. States. of determining eligibility for benefits. The PRESIDING OFFICER. Is there So all we are saying is the sponsor, This happens to be the program of Sup- further debate? the person who made the move to bring plemental Security Income. Here is MODIFICATION TO AMENDMENT NO. 3866 in the legal immigrant, is going to be what the law says: Mr. SIMPSON. Mr. President, I have responsible, and all of that person’s as- a unanimous-consent request cleared sets are going to be deemed for the as- For the purposes of determining eligibility for and the amount of benefits under this with the minority. sets of the legal immigrant. So it does subchapter for an individual who is an alien, Mr. President, I ask unanimous con- not matter what type of extraordinary the income and resources of any person who, sent to make two minor technical cor- situation you want to describe to us as a sponsor of such individual’s entry into rections to two provisions of amend- all, and all of them will be genuinely the United States, executed an affidavit of ment No. 3866 to the bill, S. 1664.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00056 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4505 The first correction corrects a print- ment on Border Patrol. Those will be AMENDMENT NO. 3948 TO AMENDMENT NO. 3743 ing error, by which a provision belong- accepted. There is a Robb amendment (Purpose: To express the sense of the Con- ing in one section of the amendment which will be accepted. gress regarding the critical role of interior No. 3866 was inadvertently placed in a Border Patrol stations in the agency’s en- I inquire of the Senator from Florida forcement mission) different section. if he has any further amendments. At On behalf of Senators GRAMM and The second correction is a minor one time there was a list. I wonder if HUTCHISON, I send an amendment to change in the wording. there is any further amendment other These two corrections have been the desk. than the pending amendment from the cleared on both sides, and I ask unani- The PRESIDING OFFICER. Without Senator from Florida. mous consent that they be accepted. objection, the pending amendment will The PRESIDING OFFICER. Without Mr. GRAHAM. Yes. I have one other be set aside, and the clerk will report. objection, it is so ordered. amendment that relates to the impact The bill clerk read as follows: The modification follows: on State and local communities of un- The Senator from Wyoming [Mr. SIMPSON], (1) Subsection (c) of section 201 of S. 1664, funded mandates. I understand that for Mr. GRAMM, for himself, Mrs. HUTCHISON, (relating to social security benefits), as there may be a desire to withhold fur- and Mr. DOMENICI, proposes an amendment amended by amendment no. 3866, is further ther votes after the three that are cur- numbered 3948 to amendment No. 3743. amended to read as follows: rently stacked. If that is the case, I Mr. SIMPSON. Mr. President, I ask (c) SOCIAL SECURITY BENEFITS.—(1) Section would be pleased to offer my next 202 of the Social Security Act (42 U.S.C. 402) unanimous consent that reading of the is amended by adding at the end the fol- amendment tomorrow morning. amendment be dispensed with. lowing new subsection: Mr. SIMPSON. Mr. President, I The PRESIDING OFFICER. Without ‘‘Limitation on Payments to Aliens thank our remarkable staff. And Eliza- objection, it is so ordered. ‘‘(y)(1) Notwithstanding any other provi- beth certainly is one of the most re- The amendment is as follows: sion of law and except as provided in para- markable. I think we can get a vote At the end, insert the following: graph (2), no monthly benefit under this title here in the next few minutes on three SEC. . FINDINGS RELATED TO THE ROLE OF IN- shall be payable to any alien in the United amendments which are 15 minutes in TERIOR BORDER PATROL STATIONS. States for any month during which such original time and 10 on the second two The Congress makes the following findings: alien is not lawfully present in the United with a lock-in of tomorrow to take (1) The Immigration and Naturalization States as determined by the Attorney Gen- Service has drafted a preliminary plan for eral. care of the rest of the amendments on the removal of 200 Border Patrol agents from ‘‘(2) Paragraph (1) shall not apply in any this bill. We may proceed a bit tonight interior stations and the transfer of these case where entitlement to such benefit is with the debate. That will be resolved agents to the Southwest border. based on an application filed before the date shortly. (2) The INS has stated that it intends to of the enactment of this subsection.’’. But the Senator from Florida has one carry out this transfer without disrupting (2) Nothing in this subsection (c) shall af- service and support to the communities in fect any obligation or liability of any indi- rather sweeping amendment on which which interior stations are located. vidual or employer under title 21 of subtitle we will need further debate, will we (3) Briefings conducted by INS personnel in C of the Internal Revenue Code. not; more than 15 minutes perhaps? communities with interior Border Patrol (3) No more than 18 months following en- stations have revealed that Border Patrol actment of this Act, the Comptroller General Mr. GRAHAM. I anticipate it will re- agents at interior stations, particularly is directed to conduct and complete a study quire more than 15 minutes. those located in Southwest border States, of whether, and to what extent, individuals Mr. SIMPSON. I see. I would prob- perform valuable law enforcement functions who are not authorized to work in the United ably have that much on the other side. that cannot be performed by other INS per- States are qualifying for Old Age, Survivors, sonnel. and Disability Insurance (OASDI) benefits Then I have one with Senator KEN- (4) The transfer of 200 Border Patrol agents based on their earnings record. NEDY and share with my colleagues from interior stations to the Southwest bor- (2) In section 214(b)(2) of the Housing and that I do have a place holder amend- der, which would not increase the total num- Community Development Act of 1980, as ment. It is my intention, unless anyone ber of law enforcement personnel at INS, added by section 222 of S. 1664 (relating to responds to this, not at this time but would cost the federal government approxi- prorating of financial assistance), as added mately $12,000,000. by amendment no. 3866— tomorrow—you will recall that Senator (A) strike ‘‘eligibility of one or more’’ and MOYNIHAN placed an amendment at the (5) The cost to the federal government of insert ‘‘ineligibility of one or more’’; and time of the welfare bill with regard to hiring new criminal investigators and other (B) strike ‘‘has not been affirmatively’’ and the Social Security system having a personnel for interior stations is likely to be insert ‘‘has been affirmatively’’. study, that they should begin to do greater than the cost of retaining Border Pa- trol agents at interior stations. (3) In the last sentence of section something in that agency to determine 214(d)(1)(A) of the Housing and Community (6) The first recommendation of the report Development Act of 1980, as added by section how to make that card more tamper re- by the National Task Force on Immigration 224 of S. 1664 (relating to verification of im- sistant. It was cosponsored by Senator was to increase the number of Border Patrol migration status and eligibility for financial DOLE. It passed unanimously here. agents at the interior stations. assistance), as added by amendment no. 3866, That would be an amendment that I (7) Therefore, it is the sense of the Con- insert after ‘‘Housing and Urban Develop- have the ability to enter unless it is ex- gress that— ment’’ the following: ‘‘or the agency admin- ceedingly contentious. I intend to do so (A) the U.S. Border Patrol plays a key role istering assistance covered by this section’’. because it certainly is one that is not in apprehending and deporting undocu- Mr. SIMPSON. Mr. President, I think mented aliens throughout the United States; strange to us, and the date of its origi- (B) interior Border Patrol stations play a we can go forward. We now, so that our nal passage was—so that the staff may unique and critical role in the agency’s en- colleagues will be aware, are in a posi- be aware of the measure, that was in forcement mission and serve as an invaluable tion to vote on three amendments. We the CONGRESSIONAL RECORD of Sep- second line of defense in controlling illegal will likely do that in a short period of tember 8, 1995, page S12915, directing immigration and its penetration to the inte- time. the Commissioner to develop—this is rior of our country; The Feinstein amendment has been not something that is immediate—to (C) a permanent redeployment of Border resolved. be done in a year, and a study and a re- Patrol agents from interior stations is not the most cost-effective way to meet enforce- There is a Simon amendment on dis- port will come back. There is nothing ability deeming, a Simon amendment ment needs along the Southwest border, and sinister with regard to it, but it is im- should only be done where new Border Patrol on retroactivity deeming, and the portant to consider that. agents cannot practicably be assigned to Graham amendment that we have just We have an amendment of Senator meet enforcement needs along the Southwest been debating with regard to 2-year border; and ROBB, and apparently an objection to deeming. (D) the INS should hire, train and assign We have many of our colleagues who that amendment from that side of the new staff based on a strong Border Patrol apparently are involved with the Olym- aisle. I hope that might be resolved. presence both on the Southwest border and pic activities tonight passing on the Let me go forward and accept the in interior stations that support border en- torch, and some other activity. Gramm amendment, the Hutchison forcement. There is a Gramm amendment on the amendment, and if you have those, I Mr. SIMPSON. This amendment has Border Patrol and a Hutchison amend- will send them to the desk. been cleared by both sides of the aisle.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00057 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4506 CONGRESSIONAL RECORD — SENATE May 1, 1996 It has to do with the Border Patrol, the United States is a high priority of creased costs for taxpayers. It is esti- and I urge its adoption. the agencies. mated that for every dollar WIC spends Mr. GRAHAM addressed the Chair. I thank the Chair. on pregnant women $3 is saved in fu- The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. The ture Medicaid costs. We will end up ator from Florida. question is on agreeing to the amend- paying far more through Medicaid to Mr. GRAHAM. May I make an in- ment. take care of children with low birth quiry? Is this the amendment that Mr. SIMPSON. Mr. President, per- rates. says, in effect, that if Border Patrol haps we could go ahead—since there Regardless of the citizenship status personnel are relocated from the inte- was no objection to that amendment, I of these mothers, their children will be rior assignment to the assignment in a certainly withhold the other one be- U.S. citizens and eligible for means border position, that there has to be cause it does address what the Senator tested programs. some coordination with the law en- from Florida is saying. So I urge adop- And, ironically, States with large na- forcement agencies in the communities tion of the pending amendment. tive American populations who benefit from which the personnel are being re- The PRESIDING OFFICER. Without from the food distribution program on located? objection the amendment is agreed to. Indian reservations would have been Mr. SIMPSON. Mr. President, that The amendment (No. 3948) was agreed forced to verify the citizenship of their would be the Hutchison amendment, to. native American citizens. not this amendment. NUTRITION PROGRAMS AND IMMIGRATION The American School Food Service Mr. GRAHAM. That will be next, the Mr. LEAHY. Mr. President, yester- Association, the National Conference Hutchison amendment? day the Senate agreed to include an of State Legislatures, and others, are Mr. SIMPSON. Yes. The one that is amendment which I submitted to the very concerned about the additional before the body is the sense of the Con- immigration bill. This amendment ad- mandates and administrative duties gress regarding the critical role of the dresses the serious problem of adding that would have been imposed upon interior Border Patrol saying that it to the administrative load of the al- schools and States by the ‘‘deeming’’ plays a key role in apprehending and ready overburdened nutrition pro- requirements and the immigrant deter- deporting undocumented aliens and grams. mination process as they affect child plays a critical role in the agency’s en- I met a couple of weeks ago with the nutrition programs. forcement mission and serves as a valu- Vermont School Food Service Associa- Most soup kitchen and food bank pro- able second line of defense. Redeploy- tion and they expressed tremendous grams are run by volunteers. Requiring ment of Border Patrol agents at inte- concern over the additional workload volunteers to do alien status checks rior stations would not be cost-effec- this bill would add to their schools. and income verification with spon- tive, and it is unnecessary in view of Marlene Senecal, Connie Bellevance, soring families would be nearly impos- plans to nearly double the Border Pa- and Sue Steinhurst of the American sible, but hiring staff for this purpose trol agents over the next 5 years, and School Food Service Association urged would use donated funds in ways not INS should hire, train, and assign new me to take action as did Jo Busha, the intended by those making the dona- staff based on a strong Border Patrol State director of child nutrition pro- tions. presence, both on the Southwest border grams. School lunch and breakfast programs and interior stations that support bor- For the school lunch and breakfast are run by local schools who struggle der enforcement. programs the ASFSA estimated that with increasing administrative and Mr. GRAHAM. Mr. President, I am 14,881 new staff would have to be hired overhead costs. Requiring them to not going to object to either of these nationwide to handle the additional pa- closely monitor immigrant status and amendments, but I would like to raise perwork of verifying citizenship status sponsor incomes would have burdened the concern that currently there is a for each child and working with the them greatly according to the Amer- great deal of apprehension by interior INS. ican School Food Service Association. law enforcement, that is, law enforce- If the average salary of new staff is Fifty million children attend school ment that is not directly on the Na- $25,000 to $30,000 a year we are talking each school day in the United States. tion’s border, at the level of support about a huge burden for schools—at Similar arguments can be raised for being provided by INS and the Border least $370 million per year. other child nutrition programs such as Patrol. The magnitude of this unfunded man- the WIC Program. I might state that I recently met date imposed on schools could drive My amendment also corrected what I with a group of law enforcement lead- thousands of schools off the school believe are some drafting errors in the ers from the central part of my State lunch and breakfast program. bill and makes additional improve- who stated that the common practice The National Conference of State ments. was that for the first 6 to 9 months of Legislatures are also concerned that First, on page 180, ineligible aliens the year, if they had an illegal alien in the bill, as written, places a huge un- are disqualified from receiving public detention, the Border Patrol or appro- funded mandate on local schools, local assistance except for certain programs priate other INS officials would come governments, and State agencies. such as those under the National and take custody of that individual. This bill also inflicts complex spon- School Lunch Act, the Child Nutrition During the last 3 to 6 months of the fis- sor deeming procedures regarding legal Act, and other assistance such as soup cal year depending on the status of the immigrants in most Federal programs, kitchens if they are not means tested. budget of the INS, nobody would show including child nutrition programs, This language omits several pro- up, and therefore the law enforcement and WIC. grams such as the commodity supple- officials were in the position of either ‘‘Deeming’’, the practice of counting mental food program which is an alter- making a judgment to release the indi- a sponsor’s income as that of an immi- native to WIC in many areas of the vidual or to continue them in deten- grant’s when calculating eligibility for country. tion at their expense and oftentimes on Federal programs, would add unneces- There is no reason I can think of for a questionable legal basis for continued sary bureaucratic burdens on local and pregnant women getting WIC benefits detention. State administrators, schools, child to be treated differently from pregnant I raise this phenomenon to say I hope care providers, and WIC clinics. women getting the same benefits under that as the INS and the Border Patrol Those already burdened will be forced the Commodity Supplemental Food look at the redeployment of resources to spend more time filling out forms Program which was the precursor to that this legislation is going to call for and less time providing for the poor WIC, and is still operated in about 30 it is more than just a coordination and disadvantaged. areas around the Nation. with local law enforcement but, rather, States like Vermont, with very few Also, the soup kitchen program, the that there is an affirmative effort made immigrants, will still be affected by food bank program and the emergency to assure that the capability to assume the additional administrative burden. food assistance program could be con- responsibility for and detain illegal Also, denying these benefits to preg- sidered to be means tested so they aliens wherever they are determined in nant immigrant women will lead to in- would not be exempt either.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00058 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4507 These programs provide emergency I ask unanimous consent that votes port. And those who were involved at food assistance to families and I doubt occur on or in relation to the following the time will recall. if anyone intended to treat them dif- amendments at 7:15 p.m., with 2 min- That is what I have. That is the ex- ferently from the nutrition programs utes equally divided for debate between tent of it. already exempted. each vote: Simon amendment No. 3810, Mr. KENNEDY. Since we have an- HARKIN-BYRD-DASCHLE AMENDMENT Simon amendment No. 3813, Graham other moment then, is it the intention, Mr. BYRD. Mr. President, I am amendment No. 3764. after we dispose of this, to at least pleased to have joined with my col- The PRESIDING OFFICER. Without make a request that only those amend- leagues, Senators HARKIN and DASCHLE, objection, it is so ordered. ments which have been outlined now be in sponsoring an amendment to this Mr. SIMPSON. Now, with that having in order for tomorrow? And that it bill which requires the Attorney Gen- been accomplished, we will I think be would at least be our attempt during eral to ensure that every State has at able to accommodate you, all of our the evening time to try and get some least 10 full-time active duty agents colleagues, by finding out tonight and time understandings with those—— from the Immigration and Naturaliza- wrapping up everything so that we will Mr. SIMPSON. That is being done at tion Service. Currently, West Virginia finish this measure tomorrow. That the present time, all of that. is one of only three States that does will be I think attainable from what I Mr. KENNEDY. The leader will be not have a permanent INS presence. see at the table, and I think my col- out here, I am sure, shortly, but we Our amendment rectifies that problem. league from Massachusetts will agree. As the debate on this bill has shown, would start then early and try and And we will then proceed at 7:15. move this through in the course of the the Senate is determined to strengthen Mr. President, I ask unanimous con- our current laws with respect to immi- day. sent that 60 minutes of Senator Mr. SIMPSON. This matter will be gration, particularly illegal immigra- DASCHLE’s time be allotted for Senator tion. But whatever we pass, whatever concluded. The staffs on both sides of GRAHAM and 60 minutes of Senator the aisle are working to present that to new laws we fashion to combat the se- DOLE’s time be allotted to myself. rious problem of illegal immigration, us in a few moments, to tighten and The PRESIDING OFFICER (Mr. button down a complete agreement on they will mean little if we are not also ASHCROFT). Without objection, it is so willing to provide the tools and support time agreements and unanimous con- ordered. sent. to enforce those laws. Mr. KENNEDY addressed the Chair. Mr. KENNEDY. The leader will out- Mr. President, In America today, ille- The PRESIDING OFFICER. The Sen- line the plan for the rest of the gal immigration is not simply a Cali- ator from Massachusetts. fornia problem, or a Texas problem, or Mr. KENNEDY. If I may ask the Sen- evening. Is it the Senator’s under- a New York problem. On the contrary, ator from Wyoming, as I understand it, standing that those three amendments it is a national problem that impacts that would leave the Graham, Chafee will be the final voting amendments on every one of the 50 States. Obvi- for the evening? and SIMPSON amendments remaining ously, my State of West Virginia does for consideration on tomorrow. Is that Mr. SIMPSON. I think that would be not suffer the consequences associated the Senator’s understanding? That the case. The leader is not here, but I with illegal immigration to the same would be at least my understanding. If think conjecture would have it be so. degree as do other States. But I believe we are missing something, some Mem- Mr. KENNEDY. We will wait on that that if we are to have a coherent na- ber out there has a measure that we issue until the leader makes a final de- tional policy, a policy based on stop- have not mentioned, we hope at the finitive decision. I thank the Chair. ping the hiring of illegal aliens and time of the vote they will mention it. Mr. SIMPSON. I thank my col- swiftly deporting those who are here il- We are not urging other Senators to leagues. legally, then every State must be add more to the list. But that is at I suggest the absence of a quorum. brought into our enforcement efforts. least my understanding. I will be glad The PRESIDING OFFICER. The And that means providing every State, to hear from others if that is not cor- clerk will call the roll. not just some States, with the law en- rect. The bill clerk proceeded to call the forcement tools they need. roll. Clearly, every State needs a min- The PRESIDING OFFICER. The Sen- imum INS presence to meet basic ator from Florida. Mr. SIMPSON. Mr. President, I ask needs. By providing each State with its Mr. GRAHAM. I might have more unanimous consent that the order for own INS office, the Justice Department than one amendment tomorrow. the quorum call be rescinded. will, I believe, save taxpayer dollars by Mr. SIMPSON. Mr. President, we can The PRESIDING OFFICER. Without reducing not only travel time for those all have more than one amendment. I objection, it is so ordered. agents who must now come from other hope the Senator from Florida will as- Mr. SIMPSON. Mr. President, let me areas, but also jail time per illegal sist us in buttoning this down. If there ask unanimous consent, in the voting alien, since a permanent INS presence is another amendment or two other to take place at 7:15, that the first vote would substantially speed up deporta- amendments, let us button it down and at 7:15 be 15 minutes and the subse- tion proceedings. get it to rest. We do have a Robb quent votes 10 minutes each. Moreover, there is a growing need to amendment, I say to the Senator from The PRESIDING OFFICER. Without assist legal immigrants and to speed up Massachusetts, which has an objection objection, it is so ordered. document processing. How are employ- on that side of the aisle. Mr. SIMPSON. Mr. President, I ask ers—who will be mandated under this Mr. KENNEDY. I understand the for the yeas and nays. bill to aggressively work to deter the Robb amendment has been withdrawn. The PRESIDING OFFICER. Is there a hiring of illegal aliens—going to re- Mr. SIMPSON. Withdrawn? sufficient second? Mr. KENNEDY. Withdrawn. ceive the administrative help they There is a sufficient second. Mr. SIMPSON. There is a Hutchison need without the assistance of local The yeas and nays were ordered. INS personnel? amendment which has been questioned VOTE ON AMENDMENT 3810 Mr. President, this amendment by the Senator from Florida. There is a makes sense, good common sense. It is Simpson-Kennedy amendment with re- The PRESIDING OFFICER. The a modest proposal that I believe will gard to verification. And then there is question is on agreeing to the amend- send a clear message that we are seri- a place holder amendment which I in- ment, No. 3810. The clerk will call the ous in our commitment to enforcing tend to present, the Moynihan-Dole roll. our immigration laws. Consequently, I amendment, which passed unanimously The assistant legislative clerk called am pleased to have sponsored the in September, to allow the Social Secu- the roll. amendment, and equally pleased that rity Administration to begin, nothing Mr. LOTT. I announce that the Sen- the Senate has included it in the cur- more, a study to determine how in the ator from Kansas [Mr. KASSEBAUM] is rent bill. future we are to make that system necessarily absent. Mr. SIMPSON. And now I have a more tamper resistant. It is not any- The result was announced, yeas 30, unanimous-consent request to propose. thing that goes into place. It is a re- nays 69, as follows:

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00059 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4508 CONGRESSIONAL RECORD — SENATE May 1, 1996 [Rollcall Vote No. 102 Leg.] not provide adequate assurance to the The PRESIDING OFFICER. The Sen- YEAS—30 consular officer and commissioner and ator from Florida is recognized. Akaka Hollings Mikulski the immigration inspector that he or Mr. GRAHAM. Mr. President, the Breaux Inouye Moseley-Braun she is not likely to become a public amendment, which will next be voted Bumpers Jeffords Moynihan charge. In effect, that is a promise to on, would do three things: One, it will Conrad Kennedy Murray Daschle Kerrey Pell the American people that they will not say that the application of deeming to Dodd Kerry Rockefeller become a burden to the taxpayers, Medicaid will be only for a period of 2 Dorgan Lautenberg Sarbanes under any circumstance. years. Second, it will exempt emer- Feingold Leahy Simon Graham Levin Wellstone Mr. SIMON. Mr. President, I ask for gency care and public health services. Harkin Lieberman Wyden the yeas and nays. Third, it will apply prospectively. The PRESIDING OFFICER. Is there a Mr. President, this amendment is NAYS—69 sufficient second? supported by groups, which range from Abraham Domenici Lugar There is a sufficient second. Ashcroft Exon Mack the Catholic Conference to the League Baucus Faircloth McCain The yeas and nays were ordered. of Cities. They support it for a set of Bennett Feinstein McConnell The PRESIDING OFFICER (Mr. common reasons. They understand that Biden Ford Murkowski SANTORUM). The question occurs on the public health will be at risk if we Bingaman Frist Nickles Bond Glenn Nunn agreeing to amendment No. 3813. The deny Medicaid to this population of Boxer Gorton Pressler yeas and nays have been ordered. legal aliens, and that there will be a Bradley Gramm Pryor The clerk will call the roll. massive cost shift to the communities Brown Grams Reid The assistant legislative clerk called Bryan Grassley Robb in which hospitals, which are obligated Burns Gregg Roth the roll. to provide medical services that will Byrd Hatch Santorum Mr. LOTT. I announce that the Sen- now no longer be reimbursed in part by Campbell Hatfield Shelby ator from Kansas [Mrs. KASSEBAUM] is Medicaid, are located. Catholic Char- Chafee Heflin Simpson necessarily absent. Coats Helms Smith ities is concerned about an increase in Cochran Hutchison Snowe The PRESIDING OFFICER. Are there abortion, as poor pregnant women Cohen Inhofe Specter any other Senators in the Chamber de- would find it economically necessary Coverdell Johnston Stevens siring to vote? Craig Kempthorne Thomas to seek an abortion rather than pay the D’Amato Kohl Thompson The result was announced—yeas 36, cost of a delivery. DeWine Kyl Thurmond nays 63, as follows: For all of those reasons, I urge adop- Dole Lott Warner [Rollcall Vote No. 103 Leg.] tion of this amendment. NOT VOTING—1 YEAS—36 Mr. SIMPSON addressed the Chair. Kassebaum Akaka Heflin Mikulski The PRESIDING OFFICER. The Sen- Boxer Hollings The amendment (No. 3810) was re- Moseley-Braun ator from Wyoming is recognized. Breaux Inouye Moynihan Mr. SIMPSON. Mr. President, this jected. Chafee Johnston Murray Mr. SIMPSON. Mr. President, I move Conrad Kennedy Pell amendment, like so many others be- to reconsider the vote. Daschle Kerrey Pryor fore, would reduce the sponsor’s re- DeWine Kerry Rockefeller Mr. KEMPTHORNE. Mr. President, I sponsibility for their immigrant rel- Dodd Lautenberg Sarbanes atives they bring to the United States move to lay the motion on the table. Feinstein Leahy Simon The motion to lay on the table was Glenn Levin Specter on the basis that they will not become agreed to. Graham Lieberman Wellstone a public charge. This amendment Hatfield Mack Wyden would nearly eliminate deeming for AMENDMENT NO. 3813 NAYS—63 Medicaid, the most costly and expen- The PRESIDING OFFICER. The sive of all of the welfare programs. question before the Senate now is Abraham Domenici Lott Ashcroft Dorgan Lugar Medicaid deeming would be limited to 2 Simon amendment No. 3813. There are 2 Baucus Exon McCain years. Bennett Faircloth McConnell minutes to be divided equally between The sponsors who promised to pro- the sides. Biden Feingold Murkowski Bingaman Ford Nickles vide the needed assistance should pay Mr. SIMON. Mr. President, this is a Bond Frist Nunn the health care assistance, as long as relatively simple amendment. If any- Bradley Gorton Pressler they have the assets to do so. Other- thing, this area is simple. If you are a Brown Gramm Reid wise, the taxpayers pick up the tab. sponsor of someone coming in, you sign Bryan Grams Robb Bumpers Grassley Roth The PRESIDING OFFICER. Does the up for 3 years. The Simpson bill says Burns Gregg Santorum Senator request the yeas and nays? we go to 5 years. I am for that prospec- Byrd Harkin Shelby Mr. SIMPSON. Mr. President, I ask tively. I do not believe it is right for Campbell Hatch Simpson Coats Helms Smith for the yeas and nays. Uncle Sam to rewrite the contract and Cochran Hutchison Snowe The PRESIDING OFFICER. Is there a say, ‘‘You signed up for 3 years, now Cohen Inhofe Stevens sufficient second? you are responsible for 5 years.’’ That Coverdell Jeffords Thomas There is a sufficient second. is what happens without my amend- Craig Kempthorne Thompson D’Amato Kohl Thurmond The yeas and nays were ordered. ment. Dole Kyl Warner The PRESIDING OFFICER. The I favor the 5 years prospectively, but NOT VOTING—1 question is on agreeing to the amend- I think if Uncle Sam signs a deal, ment. Uncle Sam should be responsible. He Kassebaum The clerk will call the roll. should not change a contract. That is So the amendment (No. 3813) was re- The legislative clerk called the roll. true for a used car dealer. It certainly jected. Mr. LOTT. I announce that the Sen- ought to be true for Uncle Sam. Mr. SIMPSON. Mr. President, I move ator from Kansas [Mrs. KASSEBAUM] is Mr. SIMPSON. It is true that individ- to reconsider the vote. necessarily absent. uals already in the country will not be Mr. KENNEDY. I move to lay that The PRESIDING OFFICER. Are there the beneficiaries of new legally en- motion on the table. any other Senators in the Chamber de- forceable sponsor agreements that will The motion to lay on the table was siring to vote? be required after enactment. It is also agreed to. The result was announced—yeas 22, true that some of those, those who AMENDMENT NO. 3764 nays 77, as follows: have been here less than 5 years, will The PRESIDING OFFICER (Mr. [Rollcall Vote No. 104 Leg.] nevertheless be subject to at least a SANTORUM). Under the previous order, portion of the minimum 5-year deem- the question occurs on amendment No. YEAS—22 ing period. 3764 offered by the Senator from Flor- Akaka Ford Kohl Boxer Graham Lautenberg I remind my colleagues, however, ida, Senator GRAHAM. Daschle Hatfield Lieberman that no immigrant is admitted to the Mr. KENNEDY. Mr. President, the Dodd Hollings Mikulski United States if the immigrant does Senator would like to speak. Feingold Kennedy Moseley-Braun

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00060 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4509 Moynihan Rockefeller Wyden Mr. KENNEDY. Senator BYRD evi- Y Timber, Inc., its successors and assigns or Murray Sarbanes affiliates located in the Lost Creek area and Pell Simon dently notified the leadership that he wanted to be able to address the Senate other areas of the Deerlodge National For- NAYS—77 before the final vote on the bill. est, Montana. Abraham Dorgan Lott Mr. DOLE. Mr. President, I also ask TITLE —VANCOUVER NATIONAL Ashcroft Exon Lugar HISTORIC RESERVE Baucus Faircloth that Senator BYRD have whatever time Mack SEC. 01. VANCOUVER NATIONAL HISTORIC RE- Bennett Feinstein he wishes under his control prior to the McCain SERVE. Biden Frist McConnell vote. (a) ESTABLISHMENT.—There is established Bingaman Glenn Murkowski Mr. GRAHAM. Mr. President, reserv- Bond Gorton the Vancouver National Historic Reserve in Nickles ing the right to object, it is my inten- Bradley Gramm Nunn the State of Washington (referred to in this Breaux Grams Pressler tion to offer a point of order prior to section as the ‘‘Reserve’’, consisting of the Brown Grassley Pryor the vote on the Dole-Simpson amend- area described in the report entitled ‘‘Van- Bryan Gregg Reid couver National Historic Reserve Feasibility Bumpers Harkin ment. Is that provided for? Robb Study and Environmental Assessment’’ pub- Burns Hatch Mr. DOLE. Yes. In fact, I said, ‘‘or Roth Byrd Heflin points of order.’’ lished by the Vancouver Historical Study Santorum Commission and dated April 1993 as author- Campbell Helms Mr. GRAHAM. All right. Chafee Hutchison Shelby ized by Public Law 101–523 (referred to in this Coats Inhofe Simpson Mr. DOLE. There could be more than section as the Vancouver Historic Reserve Cochran Inouye Smith one, so we did not designate any Report’’). Snowe Cohen Jeffords DMINISTRATION Specter names. (b) A .—The Reserve shall be Conrad Johnston administered in accordance with; Coverdell Kempthorne Stevens The PRESIDING OFFICER. Without Craig Kerrey Thomas objection, it is so ordered. (1) the Vancouver Historic Reserve Report D’Amato Kerry Thompson Mr. DOLE. I might also indicate to (including the specific findings and rec- ommendations contained in the report); and DeWine Kyl Thurmond my colleagues and perhaps the man- Dole Leahy Warner (2) the Memorandum of Agreement be- Domenici Levin Wellstone agers that between 10 and 12 they could tween the Secretary of Interior, acting sort of stack the votes, whatever works NOT VOTING—1 through the Director of the National Park out. We could have a series of votes at Service, and the City of Vancouver, Wash- Kassebaum noon. Otherwise, whatever the man- ington, dated November 14, 1994. The amendment (No. 3764) was re- agers desire. (c) NO LIMITATION ON FAA AUTHORITY.— jected. The establishment of the Reserve shall not Mr. KENNEDY. Mr. President, I f limit; move to reconsider the vote. PRESIDIO PROPERTIES (1) the authority of the Federal Aviation Mr. DOLE. I move to lay that motion Administration over air traffic control, or ADMINISTRATION ACT aviation activities at Pearson Airpark; or on the table. The Senate resumed consideration of (2) limit operations and airspace in the vi- The motion to lay on the table was the bill. cinity of Portland International Airport. agreed to. Mr. DOLE. Mr. President, I now ask (d) AUTHORIZATION OF APPROPRIATIONS.— The PRESIDING OFFICER. The ma- unanimous consent that the Senate There are authorized to be appropriated such jority leader. sums as are necessary to carry out this sec- turn to the consideration of Calendar tion. UNANIMOUS-CONSENT AGREEMENT No. 300, H.R. 1296, regarding Presidio The bill (H.R. 1296), as amended, was Mr. DOLE. Mr. President, I ask unan- properties, and the bill be considered in passed. imous consent that when the Senate the following fashion: Mr. MURKOWSKI. Mr. President, I resumes S. 1664 on Thursday, May 2, That amendments numbered 3571 and strongly support the passage of this the following amendments be the only 3572 be withdrawn and all other amend- important environmental legislation. amendments remaining in order: Sen- ments and motions other than the Taken together, these measures rep- ator GRAHAM of Florida, Senator Murkowski substitute and the com- resent the most significant and impor- GRAHAM of Florida, Senator CHAFEE, mittee substitute be withdrawn, and tant conservation package to come be- Senator SIMPSON, and Senator DEWINE. the committee-reported substitute be fore the Senate in over a decade. They I further ask that following the de- modified to reflect the adoption of the will preserve and protect for future bate on the above-listed amendments, Murkowski substitute, as modified, to generations important natural re- the Senate proceed to vote on in rela- reflect the deletion of title XVI, Ster- source and historic treasures of this tion to those amendments, with the ling Forest, and title XX, Utah Wilder- country as well as providing critically votes occurring in the order in which ness, and containing the text of amend- needed management authorities. they were debated, and there be 2 min- ment numbered 3572, with Lost Creek For the most part, the measures con- utes equally divided for debate between land exchange modified to reflect the tained in this package have languished each vote. text I now send to the desk, and the on the Senate floor due to holds and I further ask that following the dis- committee substitute, as amended, be delaying tactics from Senators. I want position of the amendments or points immediately agreed to, the bill be ad- to congratulate the majority leader, of order, the Senate proceed for 30 min- vanced to third reading and passed, and Senator DOLE, for his successful efforts utes of debate only to be equally di- the motion to reconsider be laid upon to end the seemingly endless parade of vided between Senator SIMPSON and the table, all without any intervening obstacles to the passage of this legisla- Senator KENNEDY, and following that action or debate. tion. Had we less rhetoric and a mod- time the Senate proceed to vote on The PRESIDING OFFICER. Is there icum of rational assistance from the Simpson Amendment No. 3743, as objection? Without objection, it is so administration, we might have accom- amended, to be followed by a cloture ordered. plished this far earlier. We all observed vote on the bill; and if cloture is in- The modification to the Murkowski the administration’s game plan and the voked, the Senate proceed immediately substitute amendment No. 3564 is as willingness of the media to cater to it, to advance S. 1644 to third reading and follows: proceed to the House companion bill, including attaching the minimum wage H.R. 2022; that all after the enacting Delete title XVI and title XX of amend- package to the parks legislation. ment No. 3564 and insert the following new Mr. President. I will not go into clause be stricken, the text of S. 1644 title: be inserted, the bill be advanced to lengthy detail on the various measures TITLE I—MISCELLANEOUS third reading and final passage occur, that are finally being released, but I do all without further action or debate. SECTION 101. LOST CREEK LAND EXCHANGE. want to highlight some of them at this The PRESIDING OFFICER. Without The Secretary of Agriculture shall submit time. a plan to the Committee on Energy and Nat- Title I of this measure deals with the objection, it is so ordered. ural Resources of the Mr. KENNEDY. Mr. President, re- and the Committee on Resources of the Presidio of San Francisco. By itself, serving the right to object. House of Representatives detailing the terms this title is an important and critically The PRESIDING OFFICER. The Sen- and conditions for the exchange of certain needed measure that should have been ator from Massachusetts. lands and interests in land owned by the R– enacted months ago. With the closure

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00061 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4510 CONGRESSIONAL RECORD — SENATE May 1, 1996 of the Presidio, the National Park lier, they represent the single largest The unique history of the Presidio’s Service was facing an almost impos- conservation package to come before operation as a military post dates back sible drain on its limited funds to the Senate in over a decade. to 1776. Its designation as a national maintain a unique and important re- This Senator at least wants to ex- historic landmark in 1962 recognized source. The legislation establishes a press his gratitude to the majority the importance of the post in many mechanism whereby the Presidio will leader, Senator DOLE, for being able to military operations. After the Army be preserved and maintained for future free at least this group of hostages closed the post, the National Park generations, the National Park Service from the political games. He will prob- Service took over the Presidio. When will be able to focus on interpretation ably not receive the credit he is due, comparing our limited resources and the visitor experience, and the site but if we can enact the Presidio and against the number of national parks will be self-supporting. I appreciate the the other measures included in this and historic sites, it is apparent that willingness of the two Senators from package, it will be as a result of his ef- we must find new ways to manage and California to work with me and the forts and his leadership and I thank preserve such important resources. him. committee in crafting this novel ap- ESTABLISHMENT OF THE TALL GRASS PRAIRIE Mr. DOLE. Mr. President, the legisla- proach. NATIONAL PRESERVE IN KANSAS Title II contains 25 miscellaneous tion before us today contains several For several years there have been at- amendments and boundary changes. issues of priority for several States. tempts to create a National Tall Grass Today, we are prepared to go forward Some of these measures were reported Prairie Preserve on nearly 11,000 acres with a number of items concerning from the committee over a year ago. in Kansas, known as the Z-Bar Ranch. parks and public lands issues across They affect areas from the Atlantic to Proposals for this preserve have faced this country and I am pleased to sup- the Pacific and provide essential au- valid opposition from concerned citi- port this package. thorities that the administration needs zens and landowners in the area. Any I would like to thank Senator MUR- for proper and effective management. involvement by the Federal Govern- KOWSKI for including provisions critical The remaining 34 titles include the to Kansas and California. I am pleased ment generates concerns, but this leg- establishment of new areas, such as the that the Presidio legislation is in- islation provides for involvement by Tall Grass Prairie National Preserve, cluded in this package. This critical the Federal Government. which will preserve one of the last por- provision will allow for the innovative Senator KASSEBAUM has worked to tions of the prairie that symbolized the preservation of the Presidio, one of our bring all parties together to discuss the West. Both Senator DOLE and Senator Nation’s true treasures. This bill also establishment of a prairie park and KASSEBAUM deserve credit for the ef- includes the establishment of the Tall strike a balance with this legislation. I forts to secure passage of that meas- Grass Prairie National Preserve in have always supported Senator KASSE- ure, but it too had been held up by the Kansas. BAUM’s efforts to encourage private other side. Among those titles is the More so than any other legislation, participation in the establishment of a Snowbasin Land Exchange, which is this package represents the interests national prairie preserve in Kansas. critical for the Winter Olympics. Ap- and priorities of individual States. The Z-Bar Ranch is currently owned parently the administration is only States like Kansas and California want by a private trust, but establishing Z- concerned with getting through No- these initiatives accomplished—not Bar as a national preserve requires leg- vember and was prepared to let that battered about by outsiders and Wash- islation. Under this legislation, the measure languish with the other meas- ington bureaucrats who think they Federal Government is limited to own- ures. The title also includes the Selma know best. National forests; land con- ership of a maximum of 180 acres of the to Montgomery National Historic veyances, visitor centers, land ex- Z-Bar Ranch. The Federal Government Trail, an important measure that will changes and historic parks—these are would be authorized to purchase or ac- commemorate a significant part of the all issues of importance to the various cept a donation of this portion of land. civil rights movement. interest involved and should no longer The current owners of the ranch have The Taos Pueblo Land Transfer title be delayed. I urge the President to sup- offered to donate the core area of land would transfer 764 acres of land within port this package. to the Federal Government. This will the Wheeler Peak Wilderness in New PRESIDIO minimize the cost of establishing the Mexico to the Secretary of the Interior Mr. President, this bill provides for preserve. In my view, a compromise to be held in trust for Pueblo de Taos the administration of the Presidio in which includes minimal Federal owner- Indians. This tract is surrounded on California. I am pleased to join with ship and continued local input sets this three sides by Pueblo lands and is an my colleagues to pass this legislation proposal apart from other efforts. important area for use in their reli- which will provide for an exciting fu- The Tall Grass Prairie is a vital part gious ceremonies. The Pueblo would ture for the Presidio. of the natural environment and herit- use the lands for traditional purposes, The Presidio is a treasured resource age of the high plains. Those who have but the lands would otherwise be man- of this country. The legislation before visited the Flint Hills of Kansas appre- aged to protect its wilderness char- us today provides for national recogni- ciate the beauty of this prairie. Sen- acter. Both Senator DOMENICI and Sen- tion of the Presidio. I believe Senator ator KASSEBAUM’s work in creating a ator DOLE were instrumental in mov- MURKOWKI has sought a balance be- partnership between public and private ing that measure and I appreciate their tween the interests of the trust sectors will help preserve the history of support. charged with preserving this resource the Midwest. With a private/public The Rocky Mountain National Vis- and the interests of the National Park partnership, we can officially recognize itor Center, sponsored by Senators Service. In my view, the Presidio trust the Tall Grass Prairie while limiting CAMPBELL and BROWN addresses a crit- will ensure an important partnership the involvement of the Federal Govern- ical need at Rocky Mountain National between the local community and this ment. I commend Senator KASSEBAUM Park through a creative public-private property. for her hard work on this innovative partnership to provide a visitor center This trust, established within the De- legislation and her efforts to recognize for the park. Rocky Mountain National partment of the Interior, will manage this important Kansas landmark. Park is the most popular tourist at- the renovation and leasing of the spe- I again commend Senator MURKOWSKI traction in the State of Colorado, cific Presidio properties. The revenues and Senator CAMPBELL for their work drawing over 3 million visitors every generated from these leases will then on this important piece of legislation. I year, but has not had a visitor center. offset the costs of maintaining the Pre- know that earlier the administration Mr. President. All these measures are sidio as a national park, reducing the expressed some concerns about the Pre- important and all should have passed need for Federal funding. Through this sidio legislation, I think in reviewing on their own merits long ago. These innovative approach to managing one the bill before us they will find their measures are important to the environ- of our Nation’s finest landmarks, we concerns were addressed by the com- ment, essential to the National Park can ensure the preservation of the Pre- mittee. I commend the community of System, and will be of lasting benefit sidio while also providing significant San Francisco and people of California to future generations. As I stated ear- opportunities to the local community. for recognizing this important resource

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00062 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4511 and working to develop an approach this project be undertaken in the order year, and would save the Government that will allow generations to come to of its relative priority. millions in taxpayer dollars. enjoy this historic and unique land- Mr. CAMPBELL. Mr. President, I The Cache La Poudre title, sponsored mark. would like to congratulate all of the by the distinguished senior Senator Mr. MCCAIN. Mr. President, I want Members and their staff who have from Colorado, designates approxi- to thank Senator MURKOWSKI for all of worked so hard on collaborating on mately 35,000 acres between the cities his hard work on the Energy Com- this omnibus package. In particular, I of Fort Collins and Greeley, CO, as the mittee and on the many difficult public would like to thank my good friend, Cache La Poudre River National Water lands issues he must deal with. the majority leader from Kansas, for Heritage Area. The headwaters of the As my colleagues are aware, I have his persistent efforts to shepherd this streams that flow into this river tell had serious concerns about legislation bill into law. He has done a great serv- the story of water development and requiring rather than authorizing ice for many of us, and the bill’s final river basin management in the West- agency heads to acquire land and to passage is a testament to his strength ward expansion of the United States. construct particular buildings, thereby and tenacity as a leader. This historical area holds a special incurring costs to the Federal tax- I would like to say a few words about meaning for Coloradans, and we feel payer. a couple of the bills, that have specific that it deserves national recognition as Usually, such Federal acquisition and meaning to me. a heritage area. In addition to the des- construction activities are authorized The Presidio bill, the flagship of this ignation, this title helps establish a by Congress. Once authorized, adminis- package, offers a unique, creative, and local commission to develop and imple- trative procedures are in place to en- innovative approach to provide for the ment a long-term management plan for sure that the project is necessary and long-term protection and preservation the area. is undertaken in the order of its rel- of one of our Nation’s greatest cul- This bill holds great distinction for ative priority. The final decision of tural, historical, and natural treasures. me, for I have been working on it for whether to go forward is traditionally Many people have been waiting a long many years with my good friend and left to the discretion of the Secretary time for this bill. I know the Senators colleague, Senator BROWN from Colo- based on merit and priorities. from California and Congresswoman rado. The good Senator has been work- When the Presidio bill first came to PELOSI have put a great deal of time ing hard to get this bill enacted into the floor, I expressed my concerns and energy into this legislation, as law, and each revision of the bill has about several titles containing acquisi- have the staff from the Energy Com- been a more worthy product than the tion and construction mandates. In mittee and personal offices. In our ef- last. There are always a couple of bills order not to hold up the bill unneces- forts to try to reach consensus on all that hold special meaning for us per- sarily, I canvassed the affected agen- levels, we have managed to craft a bill sonally, and the Cache La Poudre is a cies to determine if they opposed any that will provide enough balance and good example of one that the senior of these mandates. The purpose of this flexibility to incorporate all points of Senator from Colorado has a particular inquiry was so that I did not have to view. interest in. It would be a great honor insist on changing bill mandates to au- Mr. President, I also would like to to have this bill enacted into law be- thorizations if the administration in- discuss several bills within the omni- fore my friend retires this year. The Giplin County Land Exchange tended to undertake the activity even bus package that are of particular in- title represents the best type of land if not congressionally mandated. terest to me and my home State of Col- exchange possible. It is a simple, The Department of the Interior ob- orado. These bills deserve distinction straightforward land exchange bill that jected to one requirement dealing with in their own right, being crafted with will convey 300 acres of Bureau of Land a land acquisition in the Corinth, MS. years of collaborative hard work and Management lands in Gilpin County, The bill requires the National Park dedication. I would like to make brief CO, for the acquisition of 8,733 acres of Service to acquire land in the vicinity comments on each of them, and once equal value within the State. again send my congratulations to all of the Corinth battlefield, and requires The bill seeks to address a site-spe- those who have worked so hard on the Secretary to construct, operate, cific land management problem that is and maintain an interpretive center on these important bills. a result of the scattered mining claims The Rocky Mountain National Park the property. of the 1800’s. The Federal selected lands Visitor Center title provides the au- I had intended to offer an amendment for conveyance are contained within thority for the National Park Service to change the acquisition mandate to a 133 scattered parcels near the commu- to use appropriated and donated funds traditional authorization so that the nities of Black Hawk and Central City, to operate a visitor center outside of applicable needs assessment and most of which are less than one acre in prioritization procedures could be ap- the boundary of Rocky Mountain Na- size. These lands would be exchanged plied, but I have been assured by the tional Park. The Park Service has been to the cities of Black Hawk and Cen- chairman of the Senate Energy Com- in need of a visitor’s center at the east- tral City to help alleviate a shortage of mittee that he will address my concern ern entrance to Rocky for many years residential lots. in the conference committee. now, but due to fiscal constraints, they In return for these selected lands, the Mr. MURKOWSKI. Senator MCCAIN is have been unable to get adequate ap- Federal Government will receive ap- correct. I understand his concern about propriations. Thanks to a generous pri- proximately 8,773 acres of offered lands, the mandate on the Corinth battlefield vate-public partnership proposal, the which are anticipated to be of approxi- title, and I will address it in the con- Park Service has an opportunity to mately equal dollar value to the se- ference report. provide a visitor service outside of the lected lands. These lands are in three Mr. MCCAIN. I thank the Senator. I park boundaries. This legislation sim- separate locations, described as fol- would also like to add that the Sen- ply allows the Park Service to enter lows: ators from Mississippi have made a into this type of partnership with pri- Circle C Church Camp: This 40-acre strong argument that the visitor cen- vate individuals. I would particularly parcel is located within Rocky Moun- ter is necessary. I trust and expect that like to applaud the individuals in Estes tain National Park along its eastern the Secretary will fully consider their Park, whose innovative work, generous boundaries, and lies approximately 5 views in administering the authoriza- contributions, and persevering dedica- miles south of the well known commu- tion. tion have made this idea a reality. nity of Estes Park. This acquisition Furthermore, I know it is the intent This type of private-public oppor- can provide additional public camping of the Senator from Mississippi to sub- tunity is exactly what the Federal sites and address a current shortage of ject the authorization to appropria- Government should be taking advan- employee housing in the popular na- tions. tage of these days, and I am encour- tional park. Mr. LOTT. Senator MCCAIN is cor- aged by the proposal for this visitor Quilan Ranches tract: This 3,993-acre rect. It has always been my intention center that has been put forth. This parcel is located in Conejos County, in that the acquisition and construction center would help the thousands of southern Colorado. This land has excel- be subject to appropriations, and that visitors that come to the park each lent elk winter range and other wildlife

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00063 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4512 CONGRESSIONAL RECORD — SENATE May 1, 1996 habitat, and borders State lands, which dress is another bill that holds special Utah wilderness bill. I would have liked are managed for wildlife protection. meaning for me. I have been working to have had the Senate continue to de- Bonham Ranch—Cucharas Canyon: on this legislation for many years now, bate the bill because I believe that, This 4,700-acre ranch will augment ex- and I am pleased to see that this title given the opportunity, we could have isting BLM land holdings in the beau- has seven different cosponsors from convinced those of my colleagues who tiful Cucharas Canyon, identified as an both sides of the aisle. The Old Spanish had doubts about this bill to support it. AREA of Critical Environmental Con- Trail title will designate the Old Span- I am also a realist and I understand cern [ACEC]. This ranch has superb ish Trail and the Northern Branch of that in this Chamber, if one does not wildlife habitat, winter range, riparian the Old Spanish Trail for study for po- have the votes to invoke cloture, it is areas, raptor nesting and fledgling tential addition to the National Trails difficult to move any piece of legisla- areas, as well as numerous riparian System as a National Historic Trail. tion. areas, rator nesting and fledgling The Old Spanish Trail has rightly I want my constituents, the people of areas. been called ‘‘the longest, crookedest, Utah, to know of my appreciation for Any equalization funds remaining most arduous pack mule route in the their tremendous support over the last from this exchange will be dedicated to history of America.’’ It is that, and 14 months. Despite what a small, but the purchase of land and water rights, more. The Old Spanish Trail tells a very vocal minority would have the pursuant to Colorado water law, for the dramatic story that spans two cen- Senate believe, the people of Utah Blanca Wetlands Management Area, turies of recorded history and origi- wanted a sensible, balanced wilderness near Alamosa, CO. nated in prehistoric times. This trail bill. S. 884 achieved that balanced ap- It is clear that the merits of this bill witnessed use by Ute and Navajo Indi- proach and it was supported widely are numerous. Moreover, the bill is ans, Spaniards, Mexicans, and Amer- across the State of Utah. I believe that noncontroversial, and while it may not ican trappers, explorers, and settlers, a letter in support of our bill signed by have dramatic consequence for people including the Mormons. Its heyday over 300 elected officials in Utah is a outside of the State of Colorado, it rep- spans the development of the West, good indicator that it has strong public resents a tremendous opportunity for from the native on foot to the mounted support. A rigorous public comment citizens in my State. Due to the time- Spaniard to the coming of the trans- process, involving thousands of written sensitive and fragile nature of the var- continental railroad. Few routes, if comments, personal testimony, and ious components of this bill, I am de- any, pass through as much relatively over 40 public hearings assisted the lighted that the Senate has acted as pristine country. It is time to recog- Utah delegation in drafting this bill. It expeditiously as possible. nize and celebrate our common herit- was a thorough, well-thought-out proc- In addition, for the past 5 years now, age, and I am thrilled to have this in- ess and it was open to plenty of criti- I have been supporting legislation that cluded in the package passed. cism from the other side. seeks to bring some common sense and These bills may not mean a whole lot I, particularly, want to express my reason to the administration of Forest to many Members in this Chamber, but tremendous appreciation to those Service ski area permits. The ski fees they mean a great deal to my constitu- county commissioners from the rural title will take the most convoluted, ents and me. I again commend my col- Utah counties who would have been subjective, and bizarre formula for cal- leagues for their hard work, and most impacted by wilderness designa- culating ski fees, developed by the For- strongly support passage of this impor- tion. These faithful and dedicated pub- est Service, and replace it with a sim- tant legislative package this evening. lic servants have devoted thousands of ple, user friendly formula in which the Mrs. BOXER. Mr. President, I would hours to develop the county proposals. ski areas will be able to figure out like to ask the distinguished chairman Despite the fact that S. 884 included 1.1 their fees with very little effort. of the committee a question regarding million acres more than the counties The current formula utilized by the the duties and authorities of the trust recommended as wilderness, these indi- Forest Service is encompassed in 40 as outlined in section 104(b) of the Pre- viduals recognized the need to bring pages and contains hundreds of defini- sidio trust legislation. the 20-year debate to closure. The tions, rulings, and policies. It is simply Section 104(b) provides that ‘‘Federal county commissioners have invested Government bureaucracy at its worst. laws and regulations governing pro- thousands of dollars, and sacrificed For the ski industry, this formula is a curement by Federal Agencies shall their personal time to come to Wash- monstrous burden, and with the expan- not apply to the trust.’’ However, the ington to enlighten my colleagues sion and diversification of many ski re- same section of the bill states that the about the wilderness issue. sorts, this burden grows increasingly Presidio trust ‘‘shall establish and pro- There are dozens of names that de- more complex each year. I am pleased mulgate procedures applicable to the serve to be mentioned, but I would like that this title will offer some clarity trust’s procurement of goods and serv- to give particular credit to Commis- and common sense to the ski resorts of ices’’ that just ‘‘conform to laws and sioner Louise Liston of Garfield Coun- my home State. regulations related to Federal Govern- ty, Commissioner Lana Moon of Mil- Mr. President, the Grand Lake Ceme- ment contracts governing working con- lard County, Commissioners Bill Redd tery title simply directs the Secretary ditions and wage scales including the and Ty Lewis of San Juan County, of the Interior to authorize a permit provisions of 40 U.S.C. Sec. 276a–276a6 Commissioners Randy Johnson and for the town of Grand Lake, CO, to per- (Davis Bacon Act).’’ Kent Peterson of Emery County. I manently maintain their 5-acre ceme- Can I ask the chairman if this lan- would also be remiss if I failed to men- tery, which happens to fall within the guage means that contractors and sub- tion Commissioners Joe Judd of Kane boundaries of Rocky Mountain Na- contractors who contract to do work at County and Teryl Hunsaker of Tooele tional Park. This cemetery has been in the Presidio on behalf of the trust will County. As always, the fine commis- use by the town since 1892, and con- be required to comply with prevailing sioners of Washington County, Gayle tinues to carry strong emotional and wage provisions in all construction Aldred, Jerry B. Lewis, and Russ sentimental attachments for the resi- contracts and subcontracts? Gallian were instrumental in providing dents. Mr. MURKOWSKI. I would like to expertise. There are dozens of other Currently, the cemetery is operated tell my friend, Senator BOXER, that faithful commissioners and I apologize under a temporary special use permit, yes, she is correct. that I cannot mention them all by which is set to expire this year. By Mr. BENNETT. Mr. President, I rise name. granting permanent maintenance au- to express my strong support to the ef- The Utah wilderness issue is not thority to the town, this title creates forts of Chairman MURKOWSKI to move dead. On the contrary, it is very much lasting stability to this longstanding this package of bills. I would like to alive and very much unresolved. It will issue. It is completely noncontrover- add my thoughts as well, as to what come again before the Senate, and at sial, and widely supported by both the some have called the demise of the some point we will be forced to finally community and the Park Service. Utah wilderness bill. deal with the issue. It is my hope that Finally, Mr. President, the last title I am disappointed that the Senate next time, my colleagues will give in this package that I would like to ad- failed to break the filibuster of the greater consideration to the $10 million

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00064 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4513 of taxpayers’ money and the 20 years of send to the desk; that the bill be ad- against the person of another may be used in BLM expertise that went into pro- vanced to third reading and the vote the course of committing the offense.’’. viding the basis for our recommenda- occur on passage immediately, without AMENDMENT NO. 3950 tion. further action or debate, following the Again, while I am disappointed that (Purpose: To preserve law enforcement func- vote on H.R. 2202. tions and capabilities in the interior of Utah wilderness will not be included in The PRESIDING OFFICER. Without States) this package, there is a silver lining in objection, it is so ordered. At the appropriate place, insert the fol- this cloud. Mr. President, as you know, Mr. DOLE. I ask unanimous consent lowing section: Utah is preparing to host the 2002 Win- that it be in order for me to ask for the SEC. . The Immigration and Naturaliza- ter Olympics. Last fall, Senator HATCH yeas and nays on passage of the bill at tion Service shall, when redeploying Border and I introduced the Snowbasin Land this time. Patrol personnel from interior stations, co- Exchange, which would authorize the The PRESIDING OFFICER. Without ordinate with and act in conjunction with Forest Service to enter into a land ex- objection, it is so ordered. State and local law enforcement agencies to change with the Snowbasin ski resort Mr. DOLE. I ask for the yeas and ensure that such redeployment does not de- nays. grade or compromise the law enforcement to exchange 1,320 acres of Forest Serv- capabilities and functions currently per- ice land around Snowbasin for over The PRESIDING OFFICER. Is there a formed at interior Border Patrol stations. sufficient second? 4,000 acres throughout the Wasatch The PRESIDING OFFICER. There There appears to be a sufficient sec- Front. It is an equal value exchange, being no objection, the amendments and a win-win situation for both par- ond. The yeas and nays were ordered. are considered read and agreed to. ties. Not only for the Olympics, but for The amendments (Nos. 3949 and 3950) other reasons as well. Mr. DOLE. That vote will occur then tomorrow after the immigration bill. were agreed to. For example, in Utah open space in Mr. KENNEDY. I thank the Chair. some areas is at a premium. As our f For Senator SIMPSON and myself, we population swells each year as thou- IMMIGRATION CONTROL AND FI- thank all the Members for their atten- sands of people from other States like NANCIAL RESPONSIBILITY ACT tion during the course of the debate California and New Jersey come to OF 1996 and for all of the cooperation that was Utah because of our quality of life, our The Senate continued with the con- given to Senator SIMPSON and myself. precious open spaces along the Wasatch We made good progress. The end is in Front are rapidly disappearing. As part sideration of the bill. Mr. DOLE. Mr. President, I would sight. These are important matters of this exchange, the Forest Service that still must be addressed tomorrow, will acquire lands along the Bonneville now ask that we resume immigration. I understand there are a couple of but we will start at 10 o’clock. We Shoreline Trail which is one of the know which amendments are out there. most heavily used recreational trails in amendments Senators can dispose of. Mr. KENNEDY addressed the Chair. We hope those who are going to offer northern Utah. The people of Weber The PRESIDING OFFICER. The Sen- those amendments will make them- County will benefit as the critical wild- ator from Massachusetts. selves available at the earliest possible life habitat along the benches above AMENDMENT NOS. 3949 AND 3950, EN BLOC times for the convenience of all Sen- Ogden is preserved along with the open ators. We look forward to the conclu- spaces. Development will be prevented Mr. KENNEDY. I send to the desk two amendments to S. 1664 at the re- sion of the bill. We thank all Members from encroaching upon these areas. for their cooperation and attention Again, it is a win-win situation ar- quest of Senator SIMPSON and myself that have been cleared on both sides, today. ranged for through this exchange. The PRESIDING OFFICER. The ma- and ask unanimous consent they be Unfortunately, the Snowbasin ex- jority leader. change was caught up in the politics of considered en bloc and adopted. f the day and for various reasons, this The PRESIDING OFFICER. The legislation had the brakes put on it by clerk will report. MORNING BUSINESS the Clinton administration. Snowbasin The assistant legislative clerk read Mr. DOLE. Mr. President, I now ask and the Utah delegation proceeded as follows. there be a period for the transaction of through months of negotiations with The Senator from Massachusetts [Mr. KEN- morning business with Senators per- the Forest Service and finally reached NEDY], for Mr. BRYAN, proposes an amend- mitted to speak for up to 5 minutes agreements on virtually every one of ment numbered 3949. The Senator from Massachusetts [Mr. KEN- each. the administration’s concerns. This NEDY], for Mrs. HUTCHISON, proposes an The PRESIDING OFFICER. Without legislation is necessary for the success- amendment numbered 3950. objection, it is so ordered. ful implementation of the 2002 Winter The amendments are as follows: f Olympics and I know that my col- AMENDMENT NO. 3949 VIOLENCE IN LIBERIA leagues are as concerned as I am that (Purpose: To prevent certain aliens from Mr. PELL. Mr. President, I am dis- this legislation is implemented so participating in the family unity program) Snowbasin may proceed to prepare for tressed at the latest outbreak of vio- At the appropriate place in the matter pro- the men’s and women’s downhill. We lence in Liberia. Yesterday, young posed to be inserted by the amendment, in- gang members fired upon the U.S. Em- all want a successful Olympic event. sert the following: bassy, prompting the marines to return This legislation is included as part of SEC. . EXCLUSION OF CERTAIN ALIENS FROM the chairman’s package and I am FAMILY UNITY PROGRAMS. fire. Fortunately, no Americans were pleased that we can finally act upon Section 301(e) of the Immigration Act of injured. Since this exchange, the situa- this bill. 1990 (8 U.S.C. 1255a note) is amended to read tion in Monrovia has calmed down and Again, Mr President, I thank the as follows: the State Department has called this chairman for his willingness to move ‘‘(e) EXCEPTION FOR CERTAIN ALIENS.—An an isolated incident. Nevertheless, this this package and I encourage my col- aliens is not eligible for a new grant or ex- spasm of violence demonstrates the in- tension of benefits of this section if the At- tractability of the conflict in Liberia leagues to support it. I thank the torney General finds that the alien— Chair. ‘‘(1) has been convicted of a felony or 3 or and the need for a diplomatic solution. f more misdemeanors in the United States. I believe the United States should re- ‘‘(2) is described in section 243(h)(2) of the main committed to securing a peaceful NICODEMUS NATIONAL HISTORIC Immigration and Nationality Act, or solution in Liberia. I applaud the work SITE AND THE NEW BEDFORD ‘‘(3) has committed an act of juvenile de- of Assistant Secretary of State for Af- NATIONAL HISTORIC LANDMARK linquency which if committed by an adult rican Affairs, George Moose, and Dep- Mr. DOLE. Mr. President, I ask unan- would be classified as— uty Assistant Secretary of State Wil- ‘‘(A) a felony crime of violence that has an imous consent that immediately fol- element the use or attempted use of physical liam Twaddell. Their diplomatic efforts lowing the disposition of H.R. 2202, the force against the person of another; or to implement a cease-fire are impor- immigration bill, the Senate proceed ‘‘(B) a felony offense that by its nature in- tant to U.S. national interests. In addi- to an original bill (S. 1720), which I now volves a substantial risk that physical force tion, I commend the administration’s

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00065 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4514 CONGRESSIONAL RECORD — SENATE May 1, 1996 response of providing $30 million in miles of any transmitter which has pager some simple little box that beeps logistical assistance to the West Afri- been licensed or which will be licensed to let you know you should call your can Peacekeeping force, ECOMOG. based on an application filed before the office. Today’s pagers are vehicles for Such assistance is necessary to keep freeze. The point is, many expansion communicating written messages. For ECOMOG actively engaged in the on- proposals were filed by paging compa- example, news organizations like Reu- the-ground peace process. nies more than 1 year ago, and have ters now offer periodic summaries of Mr. President, I call upon the various been delayed at the FCC. These appli- breaking news stories through pagers. warlords to respect the cease-fire and cations reflect expansions that were Pagers also provide cost-efficient to pursue a peaceful solution. In addi- needed months ago. Indeed, these car- means of communicating within large tion, it is important to remind the war- riers now are receiving requests for fur- factory complexes. Additionally, we lords that an attempt by any faction to ther expansions. If we limit paging must not forget the lifesaving con- seize power by force or to undo the companies to a zone 40 miles from tribution these services make when Abuja Accords will receive a strong transmitters already licensed and oper- used by doctors, ambulance crews, and American response. ating, the only expansion they may be critically ill patients, to summon as- While the ultimate resolution of the able to achieve would be adding those sistance in the event of an emergency. crisis remains the responsibility of the locations for which they applied last The bottom line, Mr. President, is Liberians, the United States has an im- year. Additional coverage needs in the that this technology must be allowed portant role to play. The United States coming months will go unmet. to grow. That was the basis for my let- is the most influential foreign power in Another problem is created by the ter in March. At the same time, the Liberia. The United States must re- FCC’s proposal to allow anyone to file process must not be so full of loopholes main committed to seeking peace in a competing application against the as to allow the unscrupulous to benefit Liberia. An engaged United States can expansion proposals of existing car- at the expense of consumers. That is help a Liberia that wants peace. riers. The FCC has defended the freeze the challenge faced by the FCC. It has f as a mechanism to prevent filing by begun meeting the challenge by modi- FCC’S PAGING FREEZE speculators and application mills, fying its freeze on the filing of paging many of which use the application Mr. PRESSLER. Mr. President, on applicants. The flaws in its initial pro- process to defraud consumers out of February 8, 1996, the Federal Commu- posal should prove easy to address. As their life savings. This is a worthy nications Commission issued a notice chairman of the Senate Committee on goal. However, the new rule contains of proposed rulemaking which proposed Commerce, Science, and Transpor- an ironic twist. If anyone can file a to fundamentally change the way in tation, I stand ready to help this proc- competing application against an ex- which paging systems are licensed. The ess in any reasonable manner. isting paging carrier’s expansion, spec- FCC adopted a freeze on the filing of f ulation and fraudulent filings will be paging applications, which imme- encouraged. The application mills that THE VERY BAD DEBT BOXSCORE diately brought about many harmful currently are not able to file applica- Mr. HELMS. Mr. President, 4 years effects. I promptly expressed my con- ago when I commenced these daily re- cerns to the FCC about its actions and tions will now target each and every ports to the Senate it was my purpose asked Chairman Hundt to do some- expansion proposal, because it will be thing about the freeze in a letter dated their only opportunity to practice to make a matter of daily record the March, 15, 1996. their unholy trade. This will allow con- exact Federal debt as of the close of I am glad to say that on April 23, tinued consumer fraud. It also will pre- business the previous day. 1996, the FCC issued an order dem- vent bona fide paging companies from In that first report, February 27, 1992, onstrating it had listened to my con- expanding their coverage, since any ex- the Federal debt the previous day stood cerns and the concerns of the industry pansion proposal which is filed against at $3,825,891,293,066.80, as of the close of with regard to the paging freeze. The will be held in abeyance and probably business. The point is, the Federal debt FCC has modified the freeze so that ex- dismissed. This result would nullify the has since shot further into the strato- isting paging carriers can apply to ex- good work of the FCC in modifying the sphere. pand their systems by putting trans- freeze. I strongly suspect it is an unin- As of yesterday at the close of busi- mitters within 40 miles of stations they tended result. ness, a total of $1,276,157,534,167.42 has already are operating, so long as these To prevent this anomalous result, been added to the Federal debt since stations were licensed before the the FCC can make minor adjustments February 26, 1992, meaning that as of freeze. The FCC also has decided to its freeze modification order: First, the close of business yesterday, Tues- against retroactively applying the allowing a 75-mile expansion zone; sec- day, April 30, 1996, the Federal debt freeze and will now process all applica- ond, allowing the expansion sites to be stood at $5,102,048,827,234.22. On a per tions which were filed before the Feb- established within 75 miles of any capita basis, every man, woman, and ruary 8 freeze date. transmitter granted from an applica- child in America owes $19,271.23 as his These are two very important steps tion filed before the freeze; and third, or her share of the Federal debt. towards mitigating the harmful impact limiting competing applicants to other f of the freeze, and I wish to congratu- carriers. It is vital the FCC take steps to miti- TRIBUTE TO VICE ADMIRAL JOHN late the FCC on its response. However, BULKELEY it has come to my attention there are gate the harmful effects of the freeze. some significant shortcomings in the The paging industry provides service to Mr. WARNER. Mr. President, I rise mechanics of the new rules. With over 34 million subscribers. Industry today to recognize the dedication, pub- minor clarifications, the FCC could members have been encouraged to lic service and patriotism that personi- eliminate these shortcomings. make considerable investments to im- fied the life of Vice Admiral John Dun- In particular, the industry believes— prove their services, and have relied in can Bulkeley, USN. Admiral Bulkeley, and several Members of Congress good faith on the FCC’s published regu- who passed away on April 6, was one of agree—75 miles would be a more appro- lations. Paging services are designed to the most highly decorated combat vet- priate zone of expansion as opposed to serve the needs of increasingly mobile erans of World War II, and served near- 40 miles. The increased distance would customers. To be competitive, these ly 60 years of active duty during his ca- allow existing paging businesses to ac- businesses need to provide their service reer. commodate their customers’ imme- to the customers where and when they A native of , Admiral diate needs and respond to new re- need it. If a paging service cannot re- Bulkeley entered the U.S. Navy after quests for paging service as factories, spond to the needs of its existing and graduating from the Naval Academy at hospitals, and neighborhoods are con- potential customers, it will not survive Annapolis, and was commissioned in structed and the need for paging cov- in this extremely competitive industry. March of 1934. He began his Navy ca- erage expands. This competition has spurred techno- reer as a junior watch officer aboard Paging companies should be allowed logical advances in what can be com- the cruiser Indianapolis. He then spent to apply for new transmitters within 75 municated over a pager. No longer is a time on the carrier Saratoga and as an

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00066 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4515 engineering officer in Chinese waters Service Medals, two Silver Stars, two The message also announced that the aboard the gunboat Sacramento, before awards of the Legion of Merit, two Pur- Houses has passed the following bills, being given a special assignment in ple Hearts, and numerous other decora- in which it requests the concurrence of 1941 to help begin a new branch of tions and citations for outstanding per- the Senate: naval service—patrol torpedo boats. formance and service to his country. H.R. 1527. An act to further clarify the au- Lieutenant John Bulkeley’s perform- Vice Admiral Bulkeley was a true thorities and duties of the Secretary of Agri- ance as a PT boat squadron leader is American patriot and a superb naval culture in issuing ski area permits on Na- legendary. He earned the nickname officer who, throughout his naval ca- tional Forest System lands and to withdraw ‘‘Sea Wolf’’ for his daring raids on the reer, led with courage and integrity. lands within ski area permit boundaries from Japanese Navy in the early days of the His leadership and performance the operation of the mining and minerals Pacific war. Most notable among his leasing laws. throughout an intense and demanding H.R. 1823. An act to amend the Central heroic deeds was Lieutenant Bulkeley’s period in naval and military history Utah Project Completion Act to direct the bold rescue of General Douglass Mac- were instrumental in the successful ad- Secretary of the Interior to allow for prepay- Arthur from the Philippines in 1942. ministration of the Navy and out- ment of repayment contracts between the General MacArthur had become sur- standing support for naval forces United States and the Central Utah Water rounded by the Japanese while remain- throughout the world. Thanks to his Conservancy District dated December 28, ing on the island of Corregidor during inspirational leadership and selfless 1965, and November 26, 1985, and for other the Japanese invasion of the Phil- dedication to duty, our Navy has re- purposes. ippines. Lieutenant Bulkeley’s PT H.R. 3008. An act to amend the Helium Act mained second to none. He will be sore- to authorize the Secretary to enter into squadron broke through a Japanese ly missed. agreements with private parties for the re- blockade and carried the general and f covery and disposal of helium on Federal his family to safety. ‘‘Johnny,’’ said lands, and for other purposes. MacArthur, ‘‘you’ve taken me out of RELATING TO CERTAIN REGULA- ENROLLED BILL AND JOINT RESOLUTION SIGNED the jaws of death—and I won’t forget TIONS REGARDING THE OFFICE The message further announced that it.’’ General MacArthur did not forget, OF COMPLIANCE the Speaker has signed the following and for his efforts in the early part of The text of the concurrent resolution enrolled bill: the war, John Bulkeley received the (S. Con. Res. 51) to provide for the ap- H.R. 2024. An act to phase out the use of highest award this Nation bestows for proval of final regulations that are ap- mercury in batteries and provide for the effi- valor, the Medal of Honor. plicable to employing offices that are cient and cost-effective collection and recy- The Sea Wolf’s career did not end not employing offices of the House of cling or proper disposal of used nickel cad- there. In 1942, he spent time stateside Representatives or the Senate, and to mium batteries, small sealed lead-acid bat- recruiting young officers for the PT covered employees who are not em- teries, and certain other batteries, and for program, among them a stalwart ployees of the House of Representatives other purposes. young man named John F. Kennedy. or the Senate, and that were issued by At 4:15 p.m., a message from the Admiral Bulkeley then headed for the Office of Compliance on January 22, Europe, where he commanded a group House of Representatives, delivered by 1996, and for other purposes, as agreed Ms. Goetz, one of its reading clerks, an- of PT boats that helped clear the way to by the Senate on April 15, 1996, is as for the D-Day invasion at Utah beach nounced that the Speaker has signed follows: the following enrolled joint resolution: in Normandy. He commanded the de- [The text of the concurrent resolu- stroyer Endicott during the invasion of S.J. Res. 53. Joint resolution making cor- tion is located in today’s RECORD on rections to Public Law 104–134. southern France, and sank two German page S4519.] warships—the only German warships The enrolled bill and joint resolution sunk in surface-to-surface combat dur- f were signed subsequently by the Presi- ing the entire war in the Mediterra- MESSAGES FROM THE PRESIDENT dent pro tempore (Mr. THURMOND). nean. Messages from the President of the f At the end of WWII John Bulkeley United States were communicated to was not yet 32 years old, but he had al- the Senate by Mr. Thomas, one of his MEASURES REFERRED ready received every medal for courage secretaries. The following bills were read the first that our country awards. Following the EXECUTIVE MESSAGES REFERRED and second times by unanimous con- war, Bulkeley graduated from the sent and referred as indicated: Armed Forces Staff College. He also As in executive session the Presiding taught electrical engineering at the Officer laid before the Senate messages H.R. 1823. An act to amend the Central Utah Project Completion Act to direct the Naval Academy and served on the staff from the President of the United States submitting sundry nominations Secretary of the Interior to allow for prepay- of the Joint Chiefs of Staff. ment of repayment contracts between the His service did not stop here, how- which were referred to the appropriate United States and the Central Utah Water ever. Admiral Bulkeley commanded a committees. Conservancy District dated December 28, destroyer division in Korean waters (The nominations received today are 1965, and November 26, 1985, and for other during the Korean war; in 1961 he was printed at the end of the Senate pro- purposes; to the Committee on Energy and appointed commander of the Guanta- ceedings.) Natural Resources. namo Naval base in Cuba, an assign- H.R. 3008. An act to amend the Helium Act f to authorize the Secretary to enter into ment he received from his old friend MESSAGES FROM THE HOUSE agreements with private parties for the re- President John F. Kennedy; and in 1964 covery and disposal of helium on Federal he was assigned as president of the At 11:56 a.m., a message from the lands, and for other purposes; to the Com- Navy Board of Inspection and Survey, a House of Representatives, delivered by mittee on Energy and Natural Resources. position which he held for nearly 23 Mr. Hays, one of its reading clerks, an- years. Under his active leadership, the nounced that the House having pro- f INSURV Board was directly respon- ceeded to reconsider the bill (H.R. 1561) MEASURE PLACED ON THE sible for the delivery of combat-ready to consolidate the foreign affairs agen- CALENDAR ships, whether new or coming out of cies of the United States; to authorize The following measure was read the overhaul. appropriations for the Department of first and second times by unanimous When his remarkable career came to State and related agencies for fiscal consent and placed on the calendar: an end, Vice Admiral Bulkeley was one years 1996 and 1997, and for other pur- of the most decorated sailors in Amer- poses, returned by the President of the H.R. 1527. An act to further clarify the au- ican history. In addition to receiving United States with his objections, to thorities and duties of the Secretary of Agri- culture in issuing ski area permits on Na- the Medal of Honor, Admiral Bulkeley the House of Representatives, in which tional Forest System lands and to withdraw was also presented the Navy Cross, two it originated, the said bill did not pass, lands within ski area permit boundaries from awards of the Army Distinguished two-thirds of the House of Representa- the operation of the mining and minerals Service Cross, three Distinguished tives not agreeing to pass the same. leasing laws.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00067 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4516 CONGRESSIONAL RECORD — SENATE May 1, 1996 ENROLLED JOINT RESOLUTION the strength of the National Guard; to the Syrena T. Gatewood Connie J. McGowen- PRESENTED Committee on Appropriations. Lillie D. Golson Cox POM–569. A resolution adopted by the Douglas P. Herold Steven K. Rietz The Secretary of the Senate reported Southern Governors’ Association relative to Rita L. Herring Margaret A. that on May 1, 1996 he had presented to an electronic benefits transfer system; to the Mary Ann Holovac Simoneau the President of the United States, the Committee on Banking, Housing, and Urban Carl W. Huntley John F. Snow following enrolled joint resolution: Affairs. Michael D. Jones Daniel R. Struckman S.J. Res. 53. Joint resolution making cor- POM–570. A resolution adopted by the Mis- Dennis L. Livingston Earl D. Ward, Jr rections to Public Law 104–134. souri Chapter of the American Fisheries So- Robert H. McClelland ciety relative to the Neosho National Fish f To be assistant pharmacist Hatchery; to the Committee on Environment EXECUTIVE AND OTHER and Public Works. David A. Konigstein COMMUNICATIONS POM–571. A resolution adopted by the To be senior assistant health services officer Southern Governors’ Association relative to Traci L. Galinsky Richard R. Kauffman The following communications were Federal highway funds; to the Committee on William D. Henriques Dorothy E. Stephens laid before the Senate, together with Environment and Public Works. Gene W. Walters accompanying papers, reports, and doc- POM–572. A resolution adopted by the Abi- uments, which were referred as indi- lene Metropolitan Planning Organization To be assistant health services officer cated: relative to transportation trust funds; re- Carol E. Auten Cherly A. Wiseman EC–2381. A communication from the Chair ferred jointly, pursuant to the order of Au- gust 4, 1997, to the Committee on the Budget The following candidates for personnel ac- of the Federal Energy Regulatory Commis- tion in the regular corps of the Public Health sion, transmitting, pursuant to law, the re- and to the Committee on Governmental Af- fairs. Service subject to qualifications therefor as port of a package of final rules; to the Com- provided by law and regulations: mittee on Energy and Natural Resources. f EC–2382. A communication from the Direc- 1. FOR APPOINTMENT tor of the U.S. Office of Personnel Manage- REPORTS OF COMMITTEES To be medical director ment, transmitting, pursuant to law, the re- The following reports of committees Richard J Hodes Douglas G Peter port of a final regulation (RIN3206–AE80); to William E Paul the Committee on Governmental Affairs. were submitted: EC–2383. A communication from the Dep- By Mrs. KASSEBAUM, from the Com- To be senior surgeon uty Associate Administrator for Acquisition mittee on Labor and Human Resources, Melinda Moore Policy, General Services Administration, Of- without amendment: To be surgeon fice of Policy, Planning and Evaluation, S. 295. A bill to permit labor management transmitting, pursuant to law, the report of cooperative efforts that improve America’s Thomas R Hales Scott F Wetterhall the Federal Acquisition Circular (Number 90– economic competitiveness to continue to To be senior assistant surgeon 38); to the Committee on Governmental Af- thrive, and for other purposes (Rept. No. 104– Mary M Agocs Lana L Jeng fairs. 259). EC–2384. A communication from the Execu- James P Alexander, Philip R Krause tive Director of the Committee for Purchase f Jr David E Nelson Arturo H Castro Patrick J Oconnor From People Who Are Blind Or Severely Dis- EXECUTIVE REPORTS OF abled, transmitting, pursuant to law, the re- George A Conway Carol A Pertowski port of additions of the Procurement List; to COMMITTEES Theresa Diaz Vargas Rossanne M Philen the Committee on Governmental Affairs. Nina J Gilberg Steven G Scott The following executive reports of Jessie S Wing EC–2385. A communication from the Regu- committees were submitted: latory Policy Officer of the National Ar- To be senior assistant dental surgeon chives at College Park, transmitting, pursu- By Mrs. KASSEBAUM, from the Com- mittee on Labor and Human Resources: Leonard R Aste Michael D Jones ant to law, the report of a final and interim George G Bird Steven J Lien To be senior assistant engineer officer final rule (RIN3095–AA59); to the Committee April C Butts Aaron R Means, Sr on Governmental Affairs. Arthur M. Anderson Philip E. Rapp Lisa W Cayous Samuel J Petrie EC–2386. A communication from the Shib S. Bajpayee John P. Riegel Sherwood G Crow Roy F Schoppert, III Human Resources Manager of the National Robin A. Dalton Paula A. Simenauer Bret A Downing Darlene A Sorrell Bank for Cooperatives Retirement Plan, Thomas J. Mark A. Stafford Scott K Dubois James N Sutherland transmitting, pursuant to law, the report of Heintzman Mark R. Thomas Edward D Gonzales Charles S Walkley the Plan for calendar year 1994; to the Com- Michael S. Jensen Michael B. Wich Joseph G Hosek Evan L Wheeler mittee on Governmental Affairs. David I. McDonnel Dominic J. Wolf EC–2387. A communication from the Chair- Kenneth E. Olson II To be nurse officer man of the Federal Trade Commission, Norma J Hatot transmitting, pursuant to law, the report To be assistant engineer officer under the Government in the Sunshine Act James H. Ludington To be senior assistant nurse officer for calendar year 1995; to the Committee on Gary W Bangs Sharon D Murrain- To be scientist Governmental Affairs. Robyn G Brown- Ellerbe EC–2388. A communication from the Sec- Victor Krauthamer Douglas Paul J Murter III retary of Health and Human Services, trans- To be senior assistant scientist Priscilla A Coutu Steven R Oversby mitting, pursuant to law, the report on Fed- Teresa L Payne Lemyra M. Debruyn Rosa J. Key- Robin L Fiske eral agency drug-free workplace plans; to the Ricky D Pearce Jeffrey S. Gift Schwartz Colleen A Hayes Committee on Appropriations. Candice S Skinner Darcy E. Hanes India L Hunter EC–2389. A communication from the Acting Ernestine T Smartt Administrator of the General Services Ad- James E. Hoadley Bradley J Husberg Christopher L Yukiko Tani ministration, transmitting, pursuant to law, To be senior assistant sanitarian Mary E Tolbert the report of an informational copy relative Lambdin Artis M. Davis Gailen R. Luce Vien H Vanderhoof to the Capital Investment and Leasing Pro- Wanda F Lambert Mark A. Hamilton Abraham M. Maekele Siona W Willie gram for fiscal year 1997; to the Committee Michael D Lyman Michael E. Herring Mark D. Miller Arnette M Wright on Environment and Public Works. Mary Y Martin Steven G. Inserra Kelly M. Taylor EC–2390. A communication from the Direc- Theresa I. Kilgus Michael D. Warren tor of the Office of Personnel Management, To be assistant nurse officer Cynthia C. Kunkel Ronald D. Zabrocki transmitting, pursuant to law, the report of Sandra A Chatfield James M a final rule (RIN3206–AH36); to the Com- To be senior assistant veterinary officer Simmerman mittee on Governmental Affairs. Victoria A. Ronald B. Landy (The above nominations were re- f Hampshire ported with the recommendation that PETITIONS AND MEMORIALS To be pharmacist they be confirmed.) The following petitions and memo- Dennis M. Alder Daryl A. Dewoskin Mrs. KASSEBAUM. Mr. President, rials were laid before the Senate and John T. Babb Cynthia P. Smith for the Committee on Labor and were referred or ordered to lie on the To be senior assistant pharmacist Human Resources, I report favorably a table as indicated: Lisa D. Becker Kathleen E. Downs nomination list in the Public Health POM–568. A resolution adopted by the Kristi A. Cabler Richard C. Fisher Service which was printed in full in the Southern Governors’ Association relative to Wesley G. Cox Jeffrey J. Gallagher CONGRESSIONAL RECORD of November 9,

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00068 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4517 1995, and ask unanimous consent, to That legislation directed the Sec- Plainview, Slaton, and Tahoka. These save the cost of reprinting on the Exec- retary of the Interior to enter into and currently comprise a combined popu- utive Calendar, that this nomination complete negotiations with the city of lation of nearly 500,000 persons. lie at the Secretary’s desk for the in- Corpus Christi concerning the Nueces The major project facilities include formation of Senators. River project, also known as Choke Sanford Dam on the Canadian River 35 The PRESIDENT OFFICER. Without Canyon Reservoir. A hearing was held miles northeast of Amarillo, Lake Mer- objection, it is so ordered. on the legislation, but the Congress edith which is formed by the dam, and (The nominations ordered to lie on ended before the Senate could act. a 322-mile aqueduct system that trans- the Secretary’s desk were printed in This year, with title transfers being ports water from the lake to the mem- the RECORD of November 9, 1995, at the encouraged by both the administration ber cities. The project was built in the end of the Senate proceedings.) and Congress, it makes sense for the 1960’s and has supplied water to the cit- f Choke Canyon legislation to be in- ies continuously since 1968. Responsi- bility for operation and maintenance of INTRODUCTION OF BILLS AND cluded with the broader Bureau of Rec- the entire complex of municipal water JOINT RESOLUTIONS lamation legislation as developed by the State of Texas. supply facilities, including Sanford The following bills and joint resolu- In 1976 the city of Corpus Christi and Dam, was transferred to the authority tions were introduced, read the first the Nueces River authority contracted on July 1, 1968. and second time by unanimous con- with the Bureau for construction of The project authorization—section 2. sent, and referred as indicated: Choke Canyon Reservoir on the Frio (c)(3)—provides that title to the aque- By Mrs. HUTCHISON: River near Three Rivers, TX. The pri- duct shall pass to the project sponsor S. 1719. A bill to require the Secretary of mary purpose of the project was to pro- upon payment of all obligations arising the Interior to offer to sell to certain public vide additional water to the city of from the legislation and contract. agencies the indebtedness representing the Total project cost was about $83.8 remaining repayment balance of certain Bu- Corpus Christi through the year 2040. reau of Reclamation projects in Texas, and Since project completion in 1982, how- million, of which about $76.9 million is for other purposes; to the Committee on En- ever, subsequent studies have deter- reimbursable to the United States by ergy and Natural Resources. mined that the current supply to the the Authority. Non-reimbursable com- By Mr. DOLE (for himself, Mr. KEN- city from the project is less than con- ponents paid for flood control and fish NEDY, and Mr. KERRY): tracted for, and that additional water and wildlife benefits. Including interest S. 1720. A bill to establish the Nicodemus supplies likely will be required by the during construction, the original reim- National Historic Site and the New Bedford bursable obligation was $83.7 million, National Historic Landmark; ordered held at year 2003. the desk. The local sponsors are proposing that repayable with interest at the rate of the repayment agreements be renegoti- 2.632 percent over a term of 50 years. f ated to reflect the diminished water Twenty-six annual payments have been STATEMENTS ON INTRODUCED supply derived from the project, as well made. BILLS AND JOINT RESOLUTIONS as the unanticipated expenses that the Under this bill the outstanding bal- By Mrs. HUTCHISON: local sponsors have incurred to obtain ance would be purchased by the project S. 1719. A bill to require the Sec- additional water to compensate for the sponsor, the Canadian River Municipal retary of the Interior to offer to sell to projected shortfall in the Choke Can- Water Authority. Title to the aqueduct certain public agencies the indebted- yon-Lake Corpus Christi system. would be transferred to the Authority. ness representing the remaining repay- I have incorporated the Choke Can- Title to the dam will not be transferred ment balance of certain Bureau of Rec- yon project into this legislation for because of its flood-control functions, lamation projects in Texas, and for two reasons: which need to remain under the super- other purposes; to the Committee on First, to pursue the intent of the vision of the U.S. Corps of Engineers, Energy and Natural Resources. original contract—because the city and title to the land around the res- THE TEXAS RECLAMATION PROJECTS INDEBTED still is not getting the water it was ervoir to remain with the National PURCHASE ACT promised; Park Service because it is designated a ∑ Mrs. HUTCHISON. Mr. President, I Second and most important, I have National Recreation Area. introduce today a bill on behalf of the introduced this legislation because the Purchase of the debt would be accom- State of Texas and several major water area is facing a very real water short- plished by payment of the net present supply authorities in Texas. It would age. Due to the lower than anticipated value of the cash stream which would transfer title for Bureau of Reclama- yield from the Choke Canyon Res- be required to repay the current in- tion projects to local control. ervoir, projections show the 12-county debtedness, discounted at U.S. Treas- The purpose of this bill is to give region it serves will be short of water ury rates on the date of purchase con- local public agencies the right to make within 10 years. This will affect nearly tract execution, after adjustment to re- decisions regarding their own local 400,000 people and numerous major in- flect unrealized project benefits and water supplies. In doing so we will re- dustries. outstanding credits. duce the size of the Federal Govern- The discount and prepayment condi- ADVANTAGES FOR FEDERAL INTERESTS ment and save taxpayers significant tions which the Corpus Christi is ask- Recent changes in the mission of the amounts of money. ing be negotiated are extremely impor- Bureau of Reclamation have reduced Mr. President, I mentioned that I am tant to the city’s ability to ensure ade- emphasis on water resource develop- introducing this legislation on behalf quate future water supplies at afford- ment projects. Now, the BOR’s activi- of the State of Texas. Our goal is to able prices. Congressman SOLOMON ties are regulatory in nature, for the create a process to allow the State of ORTIZ has introduced similar legisla- most part, as they relate to existing Texas or its public agencies to pur- tion on the House side. projects. Transfer of Federal ownership chase and accept title to the Bureau of Also included in this legislation is a would eliminate the need for BOR par- Reclamation projects in the State. project near Amarillo in the congres- ticipation in the oversight of operation I submit this measure with the full sional district of Congressman MAC and maintenance, and relieve the Fed- support of the State of Texas. The THORNBERRY: the Canadian River eral Government of liability related to State legislature recently passed a res- project. Construction of the Canadian operation of transferred facilities. olution, endorsed and signed by the River project by the BOR was author- The cash payment to the Govern- Governor, accepting the responsibility ized by Public Law 898 on December 29, ment would make funds available to for this process of title transfer. 1950, to provide a source of municipal support new projects that create, jobs My interest in this effort goes back and industrial water to member cities or which cannot be funded from present to the last Congress, when in June 1994, of the Canadian River Municipal Water budget sources. Currently, BOR is con- I introduced S. 2236 in an effort to cor- Authority in the Texas Panhandle and sidering the prospect of title transfer rect a longstanding problem involving South Plains. The cities served include for selected projects, including the aq- the U.S. Bureau of Reclamation and Amarillo, Borger, Brownfield, Lamesa, ueduct system of the Canadian River the city of Corpus Christi. Levelland, Lubbock, O’Donnell, Pampa, Project. The debt purchase proposal in

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00069 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4518 CONGRESSIONAL RECORD — SENATE May 1, 1996 this legislation is similar to the proc- reduction in the size of the Federal bu- ments will provide a direct cash infusion ess which would result from those ac- reaucracy required to support the into the federal treasury while defeasing out- tivities, without extended negotiations projects. standing obligations of the Federal Govern- ment. and added administrative costs. Quantified advantages include an im- Second, the Federal Government would be ADVANTAGES FOR LOCAL SPONSORS mediate infusion of approximately $34 able to transfer the liabilities associated Because of the water supply shortfall million to the Federal Treasury, an- with the projects to the purchaser. the Canadian River Project the Au- nual savings of $250,000 for project op- Third, the Federal Government would not thority and its member cities are eration and upkeep expenses and an an- have to continually appropriate funds to pay forced to seek replacement water. The nual savings of about $12,000 by avoid- for a portion of operations and maintenance of the transferred facilities. savings that would accrue from pur- ing payments-in-lieu-of-taxes to Jack- Fourth, it would eliminate Federal over- chasing the outstanding debt would son County. head on these projects since oversight would allow the Authority and its member Annual debt service payments for not be required. cities to finance needed replacement Lake Texana will be reduced by ap- There are also significant local incentives water without undue economic hard- proximately $1 million per year. Cur- for the purchase of these facilities. These in- rently this cost is borne by the water centives include: ship. 1. Reducing annual debt service payments Replacement supplies capable of pro- users, so municipal and industrial for local ratepayers. viding the lost annual supply of 30,000 water costs would be reduced. 2. Since local sponsors are currently oper- acre-feet or more are being sought at a It is estimated also that up to $50,000 ating and maintaining the facilities the pur- probable cost of $76.5 million. That ad- in costs due to BOR reporting man- chase would eliminate duplication of man- ditional expenditure will be necessary dates and management assistance agement by both the Bureau and the local even if the discounted debt purchase is would be avoided. sponsor. More importantly, however, state 3. Allow for consistency in operating plans accomplished. for the facilities. Since the State of Texas Also included in the legislation is the sponsors will be able to manage their regulates the operation of these facilities, Palmetto Bend project authorized by projects to achieve the maximum bene- local or State ownership would streamline Congress in 1968. fits without the delay, expense and un- operations of the facilities through elimi- The primary purpose of Palmetto certainty which is incurred currently nation of duplicative or contradictory oper- Bend is to provide municipal and indus- by BOR management oversight. ating plans’. trial water to a broad area along the This proposal is a mutually advan- 4. Eliminating the time and oversight re- quired by the Bureau of Reclamation. Texas gulf coast. The project was com- tageous proposition that will provide 5. Eliminating additional cost associated pleted by the BOR in 1985 and includes, economic benefits to both Federal and with federal involvement. For example, The as its main feature, Lake Texana. State interests, while reducing duplica- Texas Water Development Board has been Lake Texana is located near the gulf tive and unnecessary Government pro- working with local governments in devel- coast midway between Houston and grams. oping water conservation plans to address Corpus Christi. It is operated by the Mr. President, I urge my colleagues’ local issues since 1985. In fact, under state Lavaca-Navidad River Authority. In es- strong support for this legislation. It is law any applicant that borrows over $500,000 from the Board must have an approved water sence, the reservoir’s entire yield has responsible. It addresses serious local conservation plan. Given the recent push by been committed, including more than interests. It fulfills the expressed goals the Bureau of Reclamation for the develop- 42,000 acre-feet/year for municipal use of both the 104th Congress and the ad- ment of water conservation plans it will ap- in the cities of Corpus Christi and ministration, and it makes sense. prove there are additional costs that should Point Comfort, and more than 32,000 Mr. President, I ask unanimous con- not have to be borne by local governments. acre-feet/year for industrial use largely sent that recent testimony by a rep- In addition, the State of Texas owns the in the regional petro-chemical-plastics resentative of the Texas Water Devel- surface water within its boundaries with rights to these surface waters being con- industry. The city of Corpus Christi opment Board before the House Sub- veyed by the State to individuals and enti- provides water service to a 10-county committee on Water and Power Re- ties for beneficial uses. While the Federal area. Two of the industries to which sources Subcommittee supporting this Government has assisted local and State Lake Texana supplies water provide legislation be entered into the RECORD. sponsors in constructing these projects to more than 3,000 jobs to the local re- There being no objection, the mate- store and divert surface waters, the water gion. rial was ordered to be printed in the rights for the projects have remained with Currently, the authority and the RECORD, as follows: local sponsors, not the Federal Government. What is being proposed in this legislation, Texas Water Development Board are TESTIMONY BY TOM BROWN, DEPUTY EXECU- and what the Texas Water Development obligated for repayment to the Federal TIVE ADMINISTRATOR WATER RESOURCES DE- Board supports, is the ability of local spon- Government of about $70.7 million, at VELOPMENT, TEXAS WATER DEVELOPMENT sors to purchase the Federal interests in an interest rate of 3.502 percent over a BOARD these facilities at a present value of the out- term of 50 years. The board has made 10 Mr. Chairman and Members of the Com- standing debt associated with the municipal annual payments; the authority is mittee, thank you for the opportunity to and industrial uses in the projects, a transfer scheduled to begin payment in 1996. present the views of the Texas Water Devel- of all operations and maintenance and the Under this bill, the outstanding bal- opment Board on the issue of transfer of Fed- transfer of title to the state or local sponsor. eral Reclamation facilities to local project Furthermore, this legislation meets the Bu- ance of debt would be prepaid, and the beneficiaries. The Legislature of the State of reau of Reclamation’s criteria for projects project purchased by the authority and Texas has passed Senate Concurrent Resolu- that could be transferred as single purpose board as State project sponsors. Pur- tion 80 and the Governor has signed this res- projects: (1) A fair return to the taxpayers chase would be accomplished by pay- olution, supporting the transfer of Bureau of for Federal assets. (2) Compliance with all ment of the net present value of the Reclamation projects in Texas to either the applicable Federal Laws. (3) That interstate cash stream required to repay the cur- local sponsors or the State. Included in SCR compacts and interests are protected. (4) Na- rent contractual debt, discounted at 80 was the direction of the legislature to the tive American assets are not affected. (5) No U.S. Treasury rates on the date of pur- Texas Water Development Board to work international treaties are affected. (6) The with local interests to purchase Bureau recipients shall maintain the public safety chase, after adjustment to reflect unre- projects in Texas and to encourage Congress aspects of the project. alized project benefits and outstanding to adopt legislation to facilitate this acquisi- It is recognized that the non-reimbursable credits. tion. Under this legislation there are three aspects of the projects such as recreational Title to the Federal portion of the projects being proposed to be purchased, the opportunities and fish and wildlife benefits project would be transferred to the Canadian River Project, Palmetto Bend are a significant public benefit. However, in State sponsors, the authority, and the Project and the Nueces River Reclamation the case of the projects referenced in this board. Project. legislation both the Palmetto Bend and Two clear benefits of the transfer of There are strong incentives for the Federal Nueces River projects, local sponsors and or title to the State sponsors are avoid- Government to sell these projects to local the State of Texas operate all recreation and sponsors. These include: First, receiving wildlife areas and the Bureau of Reclamation ance of the cost of Federal oversight of lump sum cash payments totaling in excess is not directly involved in the provision of the project and the release from liabil- of $100 million. Since the bill provides for the these benefits, nor do they provide any spe- ity of the Federal Government. Trans- purchase of the facilities using a net present cific or regular management function rel- fer of this obligation should result in a value of the outstanding debt, these pay- ative to these activities. The Canadian River

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00070 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4519 Project transfer will not involve transfer of kota [Mr. CONRAD] and the Senator HATFIELD] and the Senator from Mas- any facilities associated with the non-reim- from Maine [Ms. SNOWE] were added as sachusetts [Mr. KERRY] were added as bursable aspects of the projects. cosponsors of S. 1624, a bill to reauthor- cosponsors of Amendment No. 3780 pro- Through this legislation the Congress ize the Hate Crime Statistics Act, and posed to S. 1664, an original bill to would affirm its support to the principle that the State have the primary responsibility for for other purposes. amend the Immigration and Nation- management and use of its water. This legis- SENATE JOINT RESOLUTION 42 ality Act to increase control over im- lation also recognizes that it is the States At the request of Mr. BREAUX, the migration to the United States by in- responsibility to ensure that these transfers names of the Senator from Pennsyl- creasing border patrol and investiga- will relieve the Federal Government of the vania [Mr. SPECTER] and the Senator tion personnel and detention facilities, financial liabilities associated with these from Pennsylvania [Mr. SANTORUM] improving the system used by employ- projects and help Texas control its water were added as cosponsors of Senate ers to verify citizenship or work-au- destiny and meet the needs of its citizens. Joint Resolution 42, a joint resolution thorized alien status, increasing pen- Thank you for allowing me to issue this statement and support what we believe is designating the Civil War Center at alties for alien smuggling and docu- needed legislation.∑ Louisiana State University as the ment fraud, and reforming asylum, ex- United States Civil War Center, mak- clusion, and deportation law and proce- f ing the center the flagship institution dures; to reduce the use of welfare by ADDITIONAL COSPONSORS for planning the sesquicentennial com- aliens; and for other purposes. memoration of the Civil War, and for ELLSTONE S. 949 At the request of Mr. W his other purposes. name was added as a cosponsor of At the request of Mr. GRAHAM, the SENATE RESOLUTION 85 name of the Senator from Maryland amendment no. 3780 proposed to S. 1664, At the request of Mr. CHAFEE, the supra. [Mr. SARBANES] was added as a cospon- name of the Senator from Georgia [Mr. sor of S. 949, a bill to require the Sec- f COVERDELL] was added as a cosponsor retary of the Treasury to mint coins in of Senate Resolution 85, a resolution to SENATE CONCURRENT RESOLU- commemoration of the 200th anniver- express the sense of the Senate that ob- TION 51—TO PROVIDE FOR THE sary of the death of George Wash- stetrician-gynecologists should be in- APPROVAL OF FINAL REGULA- ington. cluded in Federal laws relating to the TIONS S. 1035 provision of health care. Mr. WARNER submitted the fol- At the request of Mr. DASCHLE, the SENATE RESOLUTION 226 lowing concurrent resolution; which name of the Senator from [Mr. At the request of Mr. DOMENICI, the was considered and agreed to on April INOUYE] was added as a cosponsor of S. names of the Senator from Delaware 15, 1996: 1035, a bill to permit an individual to [Mr. BIDEN], the Senator from Colorado S. CON. RES. 51 be treated by a health care practitioner [Mr. BROWN], and the Senator from Resolved by the Senate (the House of Rep- with any method of medical treatment Louisiana [Mr. BREAUX] were added as resentatives concurring), That the following such individual requests, and for other cosponsors of Senate Resolution 226, a regulations issued by the Office of Compli- purposes. resolution to proclaim the week of Oc- ance on January 22, 1996, and applicable to S. 1129 tober 13 through October 19, 1996, as employing offices that are not employing of- At the request of Mr. ASHCROFT, the ‘‘National Character Counts Week.’’ fices of the House of Representatives or the Senate, and to covered employees who are names of the Senator from RESOLUTION 243 not employees of the House of Representa- [Mr. SHELBY] and the Senator from At the request of Mr. ROBB, the tives or the Senate, are hereby approved as Texas [Mrs. HUTCHINSON] were added as names of the Senator from Rhode Is- follows: land [Mr. CHAFEE], the Senator from cosponsors of S. 1129, a bill to amend PART 825—FAMILY AND MEDICAL LEAVE the Fair Labor Standards Act of 1938 to North Dakota [Mr. DORGAN], the Sen- 825.1 Purpose and scope. ator from California [Mrs. FEINSTEIN], permit employers to provide for flexi- 825.2 [Reserved]. ble and compressed schedules, to per- the Senator from Louisiana [Mr. JOHN- SUBPART A—WHAT IS THE FAMILY AND MED- STON], the Senator from Wisconsin [Mr. mit employers to give priority treat- ICAL LEAVE ACT, AND TO WHOM DOES IT KOHL], the Senator from New Jersey ment in hiring decisions to former em- APPLY UNDER THE CONGRESSIONAL ACCOUNT- ployees after periods of family care re- [Mr. LAUTENBERG], the Senator from ABILITY ACT? sponsibility, to maintain the minimum Nevada [Mr. REID], the Senator from 825.100 What is the Family and Medical wage and overtime exemption for em- Pennsylvania [Mr. SPECTER], and the Leave Act? ployees subject to certain leave poli- Senator from South Carolina [Mr. 825.101 What is the purpose of the FMLA? cies, and for other purposes. THURMOND] were added as cosponsors of 825.102 When are the FMLA and the CAA ef- fective for covered employees S. 1197 Senate Resolution 243, a resolution to designate the week of May 5, 1996, as and employing offices? At the request of Mr. MACK, the ‘‘National Correctional Officers and 825.103 How does the FMLA, as made appli- names of the Senator from North Caro- Employees Week.’’ cable by the CAA, affect leave lina [Mr. HELMS], the Senator from in progress on, or taken before, AMENDMENT NO. 3752 Kansas [Mrs. KASSEBAUM], and the Sen- the effective date of the CAA? At the request of Mr. ABRAHAM the ator from New Hampshire [Mr. GREGG] 825.104 What employing offices are covered were added as cosponsors of S. 1197, a name of the Senator from Oklahoma by the FMLA, as made applica- bill to amend the Federal Food, Drug, [Mr. NICKLES] was added as a cosponsor ble by the CAA? of Amendment No. 3752 proposed to S. 825.105 [Reserved]. and Cosmetic Act to facilitate the dis- 1664, an original bill to amend the Im- 825.106 How is ‘‘joint employment’’ treated semination to physicians of scientific migration and Nationality Act to in- under the FMLA as made appli- information about prescription drug crease control over immigration to the cable by the CAA? therapies and devices, and for other United States by increasing border pa- 825.107—825.109 [Reserved]. purposes. 825.110 Which employees are ‘‘eligible’’ to trol and investigative personnel and S. 1563 take FMLA leave under these detention facilities, improving the sys- regulations? At the request of Mr. SIMPSON, the tem used by employers to verify citi- 825.111 [Reserved]. name of the Senator from Massachu- zenship or work-authorized alien sta- 825.112 Under what kinds of circumstances setts [Mr. KERRY] was added as a co- tus, increasing penalties for alien are employing offices required sponsor of S. 1563, a bill to amend title smuggling and document fraud, and re- to grant family or medical 38, United States Code, to revise and forming asylum, exclusion, and depor- leave? improve eligibility for medical care tation law and procedures; to reduce 825.113 What do ‘‘spouse’’, ‘‘parent’’, and and services under that title, and for the use of welfare by aliens; and for ‘‘son or daughter’’ mean for other purposes. purposes of an employee quali- other purposes. fying to take FMLA leave? S. 1624 AMENDMENT NO. 3780 825.114 What is a ‘‘serious health condition’’ At the request of Mr. HATCH, the At the request of Mr. LEAHY the entitling an employee to FMLA names of the Senator from North Da- names of the Senator from Oregon [Mr. leave?

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825.115 What does it mean that ‘‘the em- 825.218 What does ‘‘substantial and grievous SUBPART G—HOW DO OTHER LAWS, EMPLOY- ployee is unable to perform the economic injury’’ mean? ING OFFICE PRACTICES, AND COLLECTIVE (functions of the position of the 825.219 What are the rights of a key em- BARGAINING AGREEMENTS AFFECT EM- employee’’? ployee? PLOYEE RIGHTS UNDER THE FMLA AS MADE 825.116 What does it mean that an employee 825.220 How are employees protected who APPLICABLE BY THE CAA? is ‘‘needed to care for’’ a family request leave or otherwise as- member? sert FMLA rights? 825.700 What if an employing office provides more generous benefits than re- 825.117 For an employee seeking intermit- SUBPART C—HOW DO EMPLOYEES LEARN OF quired by FMLA as Made Appli- tent FMLA leave or leave on a THEIR RIGHTS AND OBLIGATIONS UNDER THE cable by the CAA? reduced leave schedule, what is FMLA, AS MADE APPLICABLE BY THE CAA, meant by ‘‘the medical neces- AND WHAT CAN AN EMPLOYING OFFICE RE- 825.701 [Reserved]. sity for’’ such leave? QUIRE OF AN EMPLOYEE? 825.702 How does FMLA affect anti-discrimi- 825.118 What is a ‘‘health care provider’’? 825.300 [Reserved]. nation laws as applied by sec- SUBPART B—WHAT LEAVE ISANEMPLOYEE 825.301 What notices to employees are re- tion 201 of the CAA? ENTITLED TO TAKE UNDER THE FAMILY AND quired of employing offices MEDICAL LEAVE ACT, AS MADE APPLICABLE under the FMLA as made appli- SUBPART H—DEFINITIONS BY THE CONGRESSIONAL ACCOUNTABILITY cable by the CAA? 825.800 Definitions. ACT? 825.302 What notice does an employee have 825.200 How much leave may an employee to give an employing office Appendix A to Part 825—[Reserved]. take? when the need for FMLA leave Appendix B to Part 825—Certification of 825.201 If leave is taken for the birth of a is foreseeable? Physician or Practitioner. 825.303 What are the requirements for an child, or for placement of a Appendix C to Part 825—[Reserved]. child for adoption or foster employee to furnish notice to care, when must the leave be an employing office where the Appendix D to Part 825—Prototype Notice: concluded? need for FMLA leave is not Employing Office Response to 825.202 How much leave may a husband and foreseeable? Employee Request for Family wife take if they are employed 825.304 What recourse do employing offices and Medical Leave. by the same employing office? have if employees fail to pro- Appendix E to Part 825—[Reserved]. 825.203 Does FMLA leave have to be taken vide the required notice? all at once, or can it be taken 825.305 When must an employee provide PART 825—FAMILY AND MEDICAL LEAVE in parts? medical certification to support § 825.1 Purpose and scope 825.204 May an employing office transfer an FMLA leave? employee to an ‘‘alternative po- 825.306 How much information may be re- (a) Section 202 of the Congressional Ac- sition’’ in order to accommo- quired in medical certifications countability Act (CAA) (2 U.S.C. 1312) applies date intermittent leave or a re- of a serious health condition? the rights and protections of sections 101 duced leave schedule? 825.307 What may an employing office do if through 105 of the Family and Medical Leave 825.205 How does one determine the amount it questions the adequacy of a Act of 1993 (FMLA) (29 U.S.C. 2611–2615) to of leave used where an em- medical certification? covered employees. (The term ‘‘covered em- ployee takes leave intermit- 825.308 Under what circumstances may an ployee’’ is defined in section 101(3) of the tently or on a reduced leave employing office request subse- CAA (2 U.S.C. 1301(3)). See § 825.800 of these schedule? quent recertifications of med- regulations for that definition.) The purpose 825.206 May an employing office deduct ical conditions? of this part is to set forth the regulations to hourly amounts from an em- 825.309 What notice may an employing of- carry out the provisions of section 202 of the ployee’s salary, when providing fice require regarding an em- CAA. unpaid leave under FMLA, as ployee’s intent to return to (b) These regulations are issued by the made applicable by the CAA, work? Board of Directors, Office of Compliance, without affecting the employ- 825.310 Under what circumstances may an pursuant to sections 202(d) and 304 of the ee’s qualification for exemption employing office require that CAA, which direct the Board to promulgate as an executive, administrative, an employee submit a medical regulations implementing section 202 that or professional employee, or certification that the employee are ‘‘the same as substantive regulations when utilizing the fluctuating is able (or unable) to return to promulgated by the Secretary of Labor to workweek method for payment work (i.e., a ‘‘fitness-for-duty’’ implement the statutory provisions referred of overtime, under the Fair report)? to in subsection (a) [of section 202 of the Labor Standards Act? 825.311 What happens if an employee fails to CAA] except insofar as the Board may deter- 825.207 Is FMLA leave paid or unpaid? satisfy the medical certifi- mine, for good cause shown . . . that a modi- 825.208 Under what circumstances may an cation and/or recertification re- fication of such regulations would be more employing office designate quirements? effective for the implementation of the leave, paid or unpaid, as FMLA 825.312 Under what circumstances may an rights and protections under this section’’. leave and, as a result, enable employing office refuse to pro- The regulations issued by the Board herein leave to be counted against the vide FMLA leave or reinstate- are on all matters for which section 202 of employee’s total FMLA leave ment to eligible employees? the CAA requires regulations to be issued. entitlement? SUBPART D—WHAT ENFORCEMENT Specifically, it is the Board’s considered 825.209 Is an employee entitled to benefits MECHANISMS DOES THE CAA PROVIDE? judgment, based on the information avail- while using FMLA leave? 825.400 What can employees do who believe able to it at the time of the promulgation of 825.210 How may employees on FMLA leave that their rights under the these regulations, that, with the exception of pay their share of group health FMLA as made applicable by regulations adopted and set forth herein, benefit premiums? the CAA have been violated? there are no other ‘‘substantive regulations 825.211 What special health benefits mainte- 825.401—825.404 [Reserved]. nance rules apply to multi-em- promulgated by the Secretary of Labor to SUBPART E—[RESERVED] ployer health plans? implement the statutory provisions referred 825.212 What are the consequences of an em- SUBPART F—WHAT SPECIAL RULES APPLY TO to in subsection (a) [of section 202 of the ployee’s failure to make timely EMPLOYEES OF SCHOOLS? CAA]’’. health plan premium pay- 825.600 To whom do the special rules apply? (c) In promulgating these regulations, the ments? 825.601 What limitations apply to the tak- Board has made certain technical and no- 825.213 May an employing office recover ing of intermittent leave or menclature changes to the regulations as costs it incurred for maintain- leave on a reduced leave sched- promulgated by the Secretary. Such changes ing ‘‘group health plan’’ or ule? are intended to make the provisions adopted other non-health benefits cov- 825.602 What limitations apply to the tak- accord more naturally to situations in the erage during FMLA leave? ing of leave near the end of an legislative branch. However, by making 825.214 What are an employee’s rights on re- academic term? these changes, the Board does not intend a turning to work from FMLA 825.603 Is all leave taken during ‘‘periods of substantive difference between these regula- leave? a particular duration’’ counted tions and those of the Secretary from which 825.215 What is an equivalent position? against the FMLA leave enti- they are derived. Moreover, such changes, in 825.216 Are there any limitations on an em- tlement? and of themselves, are not intended to con- ploying office’s obligation to 825.604 What special rules apply to restora- stitute an interpretation of the regulation or reinstate an employee? tion to ‘‘an equivalent posi- of the statutory provisions of the CAA upon 825.217 What is a ‘‘key employee’’? tion’’? which they are based.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00072 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4521 § 825.2 [Reserved] manner consistent with the Equal Protec- that portion of leave taken on or after the SUBPART A—WHAT IS THE FAMILY AND MED- tion Clause of the Fourteenth Amendment in FMLA’s effective date may be counted ICAL LEAVE ACT, AND TO WHOM DOES IT minimizing the potential for employment against the employee’s leave entitlement APPLY UNDER THE CONGRESSIONAL ACCOUNT- discrimination on the basis of sex, while pro- under the FMLA, as made applicable by the ABILITY ACT? moting equal employment opportunity for CAA. men and women. (b) If an employing office-approved leave is § 825.100 What is the Family and Medical (b) The enactment of FMLA was predicated underway when the application of the FMLA Leave Act? on two fundamental concerns ‘‘the needs of by the CAA takes effect, no further notice (a) The Family and Medical Leave Act of the American workforce, and the develop- would be required of the employee unless the 1993 (FMLA), as made applicable by the Con- ment of high-performance organizations’’. employee requests an extension of the leave. gressional Accountability Act (CAA), allows Increasingly, America’s children and elderly For leave which commenced on the effective ‘‘eligible’’ employees of an employing office are dependent upon family members who date or shortly thereafter, such notice must to take job-protected, unpaid leave, or to must spend long hours at work. When a fam- have been given which was practicable, con- substitute appropriate paid leave if the em- ily emergency arises, requiring workers to sidering the foreseeability of the need for ployee has earned or accrued it, for up to a attend to seriously-ill children or parents, or leave and the effective date. (c) Starting on January 23, 1996, an em- total of 12 workweeks in any 12 months be- to newly-born or adopted infants, or even to ployee is entitled to FMLA leave under these cause of the birth of a child and to care for their own serious illness, workers need reas- regulations if the reason for the leave is the newborn child, because of the placement surance that they will not be asked to qualifying under the FMLA, as made appli- of a child with the employee for adoption or choose between continuing their employ- foster care, because the employee is needed cable by the CAA, even if the event occa- ment, and meeting their personal and family sioning the need for leave (e.g., the birth of to care for a family member (child, spouse, obligations or tending to vital needs at or parent) with a serious health condition, or a child) occurred before such date (so long as home. any other requirements are satisfied). because the employee’s own serious health (c) The FMLA is both intended and ex- condition makes the employee unable to per- pected to benefit employers as well as their § 825.104 What employing offices are cov- form the functions of his or her job (see employees. A direct correlation exists be- ered by the FMLA, as made applicable by § 825.306(b)(4)). In certain cases, this leave tween stability in the family and produc- the CAA? may be taken on an intermittent basis rath- tivity in the workplace. FMLA will encour- (a) The FMLA, as made applicable by the er than all at once, or the employee may age the development of high-performance or- CAA, covers all employing offices. As used in work a part-time schedule. ganizations. When workers can count on du- the CAA, the term ‘‘employing office’’ (b) An employee on FMLA leave is also en- rable links to their workplace they are able means— titled to have health benefits maintained to make their own full commitments to their (1) the personal office of a Member of the while on leave as if the employee had contin- jobs. The record of hearings on family and House of Representatives or of a Senator; ued to work instead of taking the leave. If an medical leave indicate the powerful produc- (2) a committee of the House of Represent- employee was paying all or part of the pre- tive advantages of stable workplace relation- atives or the Senate or a joint committee; mium payments prior to leave, the employee ships, and the comparatively small costs of (3) any other office headed by a person would continue to pay his or her share dur- guaranteeing that those relationships will with the final authority to appoint, hire, dis- ing the leave period. The employing office, not be dissolved while workers attend to charge, and set the terms, conditions, or or a disbursing or other financial office of pressing family health obligations or their privileges of the employment of an employee the House of Representatives or the Senate own serious illness. of the House of Representatives or the Sen- ate; or may recover its share only if the employee § 825.102 When are the FMLA and the CAA (4) the Capitol Guide Board, the Capitol does not return to work for a reason other effective for covered employees and em- Police Board, the Congressional Budget Of- than the serious health condition of the em- ploying offices? ployee or the employee’s immediate family fice, the Office of the Architect of the Cap- (a) The rights and protection of sections member, or another reason beyond the em- itol, the Office of the Attending Physician, 101 through 105 of the FMLA have applied to ployee’s control. the Office of Compliance, and the Office of certain Senate employees and certain em- (c) An employee generally has a right to Technology Assessment. ploying offices of the Senate since August 5, return to the same position or an equivalent (b) [Reserved]. 1993 (see section 501 of FMLA). position with equivalent pay, benefits and (c) Separate entities will be deemed to be (b) The rights and protection of sections parts of a single employer for purposes of the working conditions at the conclusion of the 101 through 105 of the FMLA have applied to FMLA, as made applicable by the CAA, if leave. The taking of FMLA leave cannot re- any employee in an employment position they meet the ‘‘integrated employer’’ test. A sult in the loss of any benefit that accrued and any employment authority of the House determination of whether or not separate en- prior to the start of the leave. of Representatives since August 5, 1993 (see tities are an integrated employer is not de- (d) The employing office has a right to 30 section 502 of FMLA). termined by the application of any single days advance notice from the employee (c) The rights and protections of sections criterion, but rather the entire relationship where practicable. In addition, the employ- 101 through 105 of the FMLA have applied to is to be reviewed in its totality. Factors con- ing office may require an employee to sub- certain employing offices and covered em- sidered in determining whether two or more mit certification from a health care provider ployees other than those referred to in para- entities are an integrated employer include: to substantiate that the leave is due to the graphs (a) and (b) of this section for certain (i) Common management; serious health condition of the employee or periods since August 5, 1993 (see, e.g., title V (ii) Interrelation between operations; the employee’s immediate family member. of the FMLA, sections 501 and 502). (iii) Centralized control of labor relations; Failure to comply with these requirements (d) The provisions of section 202 of the CAA and may result in a delay in the start of FMLA that apply rights and protections of the (iv) Degree of common financial control. leave. Pursuant to a uniformly applied pol- FMLA to covered employees are effective on icy, the employing office may also require § 825.105 [Reserved] January 23, 1996. § 825.106 How is ‘‘joint employment’’ treated that an employee present a certification of (e) The period prior to the effective date of under the FMLA as made applicable by the fitness to return to work when the absence the application of FMLA rights and protec- CAA? was caused by the employee’s serious health tions under the CAA must be considered in (a) Where two or more employing offices condition (see § 825.311(c)). The employing of- determining employee eligibility. exercise some control over the work or work- fice may delay restoring the employee to § 825.103 How does the FMLA, as made ap- employment without such certificate relat- ing conditions of the employee, the employ- plicable by the CAA, affect leave in ing offices may be joint employers under ing to the health condition which caused the progress on, or taken before, the effective employee’s absence. FMLA, as made applicable by the CAA. date of the CAA? Where the employee performs work which si- § 825.101 What is the purpose of the FMLA? (a) An eligible employee’s right to take multaneously benefits two or more employ- (a) FMLA is intended to allow employees FMLA leave began on the date that the ing offices, or works for two or more employ- to balance their work and family life by tak- rights and protections of the FMLA first ing offices at different times during the ing reasonable unpaid leave for medical rea- went into effect for the employing office and workweek, a joint employment relationship sons, for the birth or adoption of a child, and employee (see § 825.102(a)). Any leave taken generally will be considered to exist in situa- for the care of a child, spouse, or parent who prior to the date on which the rights and tions such as: has a serious health condition. The FMLA is protections of the FMLA first became effec- (1) Where there is an arrangement between intended to balance the demands of the tive for the employing office from which the employing offices to share an employee’s workplace with the needs of families, to pro- leave was taken may not be counted for pur- services or to interchange employees; mote the stability and economic security of poses of the FMLA as made applicable by the (2) Where one employing office acts di- families, and to promote national interests CAA. If leave qualifying as FMLA leave was rectly or indirectly in the interest of the in preserving family integrity. It was in- underway prior to the effective date of the other employing office in relation to the em- tended that the FMLA accomplish these pur- FMLA for the employing office from which ployee; or poses in a manner that accommodates the le- the leave was taken and continued after the (3) Where the employing offices are not gitimate interests of employers, and in a FMLA’s effective date for that office, only completely disassociated with respect to the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00073 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4522 CONGRESSIONAL RECORD — SENATE May 1, 1996 employee’s employment and may be deemed (c) If an employee was employed by two or (2) For placement with the employee of a to share control of the employee, directly or more employing offices, either sequentially son or daughter for adoption or foster care; indirectly, because one employing office con- or concurrently, the hours of service will be (3) To care for the employee’s spouse, son, trols, is controlled by, or is under common aggregated to determine whether the min- daughter, or parent with a serious health control with the other employing office. imum of 1,250 hours has been reached. condition; and (b) A determination of whether or not a Whether an employee has worked the min- (4) Because of a serious health condition joint employment relationship exists is not imum 1,250 hours of service is determined ac- that makes the employee unable to perform determined by the application of any single cording to the principles established under the functions of the employee’s job. criterion, but rather the entire relationship the Fair Labor Standards Act (FLSA), as ap- (b) The right to take leave under FMLA as is to be viewed in its totality. For example, plied by section 203 of the CAA (2 U.S.C. made applicable by the CAA applies equally joint employment will ordinarily be found to 1313), for determining compensable hours of to male and female employees. A father, as exist when— work. The determining factor is the number well as a mother, can take family leave for (1) an employee, who is employed by an of hours an employee has worked for one or employing office other than the personal of- more employing offices. The determination the birth, placement for adoption or foster fice of a Member of the House of Representa- is not limited by methods of record-keeping, care of a child. tives or of a Senator, is under the actual di- or by compensation agreements that do not (c) Circumstances may require that FMLA rection and control of the Member of the accurately reflect all of the hours an em- leave begin before the actual date of birth of House of Representatives or Senator; or ployee has worked for or been in service to a child. An expectant mother may take (2) two or more employing offices employ the employing office. Any accurate account- FMLA leave pursuant to paragraph (a)(4) of an individual to work on common issues or ing of actual hours worked may be used. For this section before the birth of the child for other matters for both or all of them. this purpose, full-time teachers (see § 825.800 prenatal care or if her condition makes her (c) When employing offices employ a cov- for definition) of an elementary or secondary unable to work. ered employee jointly, they may designate school system, or institution of higher edu- one of themselves to be the primary employ- cation, or other educational establishment (d) Employing offices are required to grant ing office, and the other or others to be the or institution are deemed to meet the 1,250 FMLA leave pursuant to paragraph (a)(2) of secondary employing office(s). Such a des- hour test. An employing office must be able this section before the actual placement or ignation shall be made by written notice to to clearly demonstrate that such an em- adoption of a child if an absence from work the covered employee. ployee did not work 1,250 hours during the is required for the placement for adoption or (d) If an employing office is designated a previous 12 months in order to claim that foster care to proceed. For example, the em- primary employing office pursuant to para- the employee is not ‘‘eligible’’ for FMLA ployee may be required to attend counseling graph (c) of this section, only that employ- leave. sessions, appear in court, consult with his or ing office is responsible for giving required (d) The determinations of whether an em- her attorney or the doctor(s) representing notices to the covered employee, providing ployee has worked for any employing office the birth parent, or submit to a physical ex- FMLA leave, and maintenance of health ben- for at least 1,250 hours in the previous 12 amination. The source of an adopted child efits. Job restoration is the primary respon- months and has been employed by any em- (e.g., whether from a licensed placement sibility of the primary employing office, and ploying office for a total of at least 12 agency or otherwise) is not a factor in deter- the secondary employing office(s) may, sub- months must be made as of the date leave mining eligibility for leave for this purpose. ject to the limitations in § 825.216, be respon- commences. The ‘‘previous 12 months’’ sible for accepting the employee returning means the 12 months immediately preceding (e) Foster care is 24-hour care for children from FMLA leave. the commencement of the leave. If an em- in substitution for, and away from, their par- (e) If employing offices employ an em- ployee notifies the employing office of need ents or guardian. Such placement is made by ployee jointly, but fail to designate a pri- for FMLA leave before the employee meets or with the agreement of the State as a re- mary employing office pursuant to para- these eligibility criteria, the employing of- sult of a voluntary agreement between the graph (c) of this section, then all of these fice must either confirm the employee’s eli- parent or guardian that the child be removed employing offices shall be jointly and sever- gibility based upon a projection that the em- from the home, or pursuant to a judicial de- ally liable for giving required notices to the ployee will be eligible on the date leave termination of the necessity for foster care, employee, for providing FMLA leave, for as- would commence or must advise the em- and involves agreement between the State suring that health benefits are maintained, ployee when the eligibility requirement is and foster family that the foster family will and for job restoration. The employee may met. If the employing office confirms eligi- take care of the child. Although foster care give notice of need for FMLA leave, as de- bility at the time the notice for leave is re- may be with relatives of the child, State ac- scribed in §§ 825.302 and 825.303, to whichever ceived, the employing office may not subse- tion is involved in the removal of the child of these employing offices the employee quently challenge the employee’s eligibility. from parental custody. chooses. If the employee makes a written re- In the latter case, if the employing office quest for restoration to one of these employ- does not advise the employee whether the (f) In situations where the employer/em- ing offices, that employing office shall be employee is eligible as soon as practicable ployee relationship has been interrupted, primarily responsible for job restoration, and (i.e., two business days absent extenuating such as an employee who has been on layoff, the other employing office(s) may, subject to circumstances) after the date employee eligi- the employee must be recalled or otherwise the limitations in § 825.216, be responsible for bility is determined, the employee will have be re-employed before being eligible for accepting the employee returning from satisfied the notice requirements and the no- FMLA leave. Under such circumstances, an FMLA leave. tice of leave is considered current and out- eligible employee is immediately entitled to § 825.107 [Reserved] standing until the employing office does ad- further FMLA leave for a qualifying reason. § 825.108 [Reserved] vise. If the employing office fails to advise (g) FMLA leave is available for treatment the employee whether the employee is eligi- § 825.109 [Reserved] for substance abuse provided the conditions ble prior to the date the requested leave is to § 825.110 Which employees are ‘‘eligible’’ to of § 825.114 are met. However, treatment for commence, the employee will be deemed eli- take FMLA leave under these regulations? substance abuse does not prevent an employ- gible. The employing office may not, then, (a) An ‘‘eligible employee’’ under these ing office from taking employment action regulations means a covered employee who deny the leave. Where the employee does not give notice of the need for leave more than against an employee. The employing office has been employed in any employing office may not take action against the employee for 12 months and for at least 1,250 hours of two business days prior to commencing leave, the employee will be deemed to be eli- because the employee has exercised his or employment during the previous 12 months. her right to take FMLA leave for treatment. (b) The 12 months an employee must have gible if the employing office fails to advise However, if the employing office has an es- been employed by any employing office need the employee that the employee is not eligi- tablished policy, applied in a non-discrimina- not be consecutive months. If an employee ble within two business days of receiving the tory manner that has been communicated to worked for two or more employing offices se- employee’s notice. all employees, that provides under certain quentially, the time worked will be aggre- (e) The period prior to the effective date of gated to determine whether it equals 12 the application of FMLA rights and protec- circumstances an employee may be termi- months. If an employee is maintained on the tions under the CAA must be considered in nated for substance abuse, pursuant to that payroll for any part of a week, including any determining employee’s eligibility. policy the employee may be terminated periods of paid or unpaid leave (sick, vaca- (f) [Reserved]. whether or not the employee is presently tion) during which other benefits or com- § 825.111 [Reserved] taking FMLA leave. An employee may also pensation are provided by the employer (e.g., § 825.112 Under what kinds of circumstances take FMLA leave to care for an immediate workers’ compensation, group health plan are employing offices required to grant family member who is receiving treatment benefits, etc.), the week counts as a week of family or medical leave? for substance abuse. The employing office employment. For purposes of determining (a) Employing offices are required to grant may not take action against an employee whether intermittent/occasional/casual em- leave to eligible employees: who is providing care for an immediate fam- ployment qualifies as ‘‘at least 12 months’’, (1) For birth of a son or daughter, and to ily member receiving treatment for sub- 52 weeks is deemed to be equal to 12 months. care for the newborn child; stance abuse.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00074 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4523 § 825.113 What do ‘‘spouse’’, ‘‘parent’’, and calendar days, and any subsequent treat- injury or removal of cancerous growths are ‘‘son or daughter’’ mean for purposes of an ment or period of incapacity relating to the serious health conditions provided all the employee qualifying to take FMLA leave? same condition, that also involves: other conditions of this regulation are met. (a) Spouse means a husband or wife as de- (A) Treatment two or more times by a Mental illness resulting from stress or aller- fined or recognized under State law for pur- health care provider, by a nurse or physi- gies may be serious health conditions, but poses of marriage in the State where the em- cian’s assistant under direct supervision of a only if all the conditions of this section are ployee resides, including common law mar- health care provider, or by a provider of met. riage in States where it is recognized. health care services (e.g., physical therapist) (d) Substance abuse may be a serious (b) Parent means a biological parent or an under orders of, or on referral by, a health health condition if the conditions of this sec- individual who stands or stood in loco care provider; or tion are met. However, FMLA leave may parentis to an employee when the employee (B) Treatment by a health care provider on only be taken for treatment for substance was a son or daughter as defined in (c) below. at least one occasion which results in a regi- abuse by a health care provider or by a pro- This term does not include parents ‘‘in law’’. men of continuing treatment under the su- vider of health care services on referral by a (c) Son or daughter means a biological, pervision of the health care provider. health care provider. On the other hand, ab- adopted, or foster child, a stepchild, a legal (ii) Any period of incapacity due to preg- sence because of the employee’s use of the ward, or a child of a person standing in loco nancy, or for prenatal care. substance, rather than for treatment, does parentis, who is either under age 18, or age 18 (iii) Any period of incapacity or treatment not qualify for FMLA leave. or older and ‘‘incapable of self-care because for such incapacity due to a chronic serious (e) Absences attributable to incapacity of a mental or physical disability’’. health condition. A chronic serious health under paragraphs (a)(2) (ii) or (iii) qualify for (1) ‘‘Incapable of self-care’’ means that the condition is one which: FMLA leave even though the employee or individual requires active assistance or su- (A) Requires periodic visits for treatment the immediate family member does not re- pervision to provide daily self-care in three by a health care provider, or by a nurse or ceive treatment from a health care provider during the absence, and even if the absence or more of the ‘‘activities of daily living’’ physician’s assistant under direct super- does not last more than three days. For ex- (ADLs) or ‘‘instrumental activities of daily vision of a health care provider; ample, an employee with asthma may be un- living’’ (IADLs). Activities of daily living in- (B) Continues over an extended period of able to report for work due to the onset of an clude adaptive activities such as caring ap- time (including recurring episodes of a single asthma attack or because the employee’s propriately for one’s grooming and hygiene, underlying condition); and health care provider has advised the em- bathing, dressing and eating. Instrumental (C) May cause episodic rather than a con- ployee to stay home when the pollen count activities of daily living include cooking, tinuing period of incapacity (e.g., asthma, exceeds a certain level. An employee who is cleaning, shopping, taking public transpor- diabetes, epilepsy, etc.). pregnant may be unable to report to work tation, paying bills, maintaining a residence, (iv) A period of incapacity which is perma- because of severe morning sickness. using telephones and directories, using a nent or long-term due to a condition for post office, etc. which treatment may not be effective. The § 825.115 What does it mean that ‘‘the em- (2) ‘‘Physical or mental disability’’ means employee or family member must be under ployee is unable to perform the functions of a physical or mental impairment that sub- the continuing supervision of, but need not the position of the employee’’? stantially limits one or more of the major be receiving active treatment by, a health An employee is ‘‘unable to perform the life activities of an individual. See the Amer- care provider. Examples include Alzheimer’s, functions of the position’’ where the health icans with Disabilities Act (ADA), as made a severe stroke, or the terminal stages of a care provider finds that the employee is un- applicable by section 201(a)(3) of the CAA (2 disease. able to work at all or is unable to perform U.S.C. 1311(a)(3)). (v) Any period of absence to receive mul- any one of the essential functions of the em- (3) Persons who are ‘‘in loco parentis’’ in- tiple treatments (including any period of re- ployee’s position within the meaning of the clude those with day-to-day responsibilities covery therefrom) by a health care provider Americans with Disabilities Act (ADA), as to care for and financially support a child or, or by a provider of health care services under made applicable by section 201(a)(3) of the in the case of an employee, who had such re- orders of, or on referral by, a health care CAA (2 U.S.C. 1311(a)(3)). An employee who sponsibility for the employee when the em- provider, either for restorative surgery after must be absent from work to receive medical ployee was a child. A biological or legal rela- an accident or other injury, or for a condi- treatment for a serious health condition is tionship is not necessary. tion that would likely result in a period of considered to be unable to perform the essen- (d) For purposes of confirmation of family incapacity of more than three consecutive tial functions of the position during the ab- relationship, the employing office may re- calendar days in the absence of medical sence for treatment. An employing office has quire the employee giving notice of the need intervention or treatment, such as cancer the option, in requiring certification from a health care provider, to provide a statement for leave to provide reasonable documenta- (chemotherapy, radiation, etc.), severe ar- of the essential functions of the employee’s tion or statement of family relationship. thritis (physical therapy), kidney disease (di- position for the health care provider to re- This documentation may take the form of a alysis). simple statement from the employee, or a (b) Treatment for purposes of paragraph (a) view. For purposes of FMLA, the essential child’s birth certificate, a court document, of this section includes (but is not limited functions of the employee’s position are to etc. The employing office is entitled to ex- to) examinations to determine if a serious be determined with reference to the position amine documentation such as a birth certifi- health condition exists and evaluations of the employee held at the time notice is given cate, etc., but the employee is entitled to the the condition. Treatment does not include or leave commenced, whichever is earlier. return of the official document submitted for routine physical examinations, eye examina- § 825.116 What does it mean that an employee this purpose. tions, or dental examinations. Under para- is ‘‘needed to care for’’ a family member? § 825.114 What is a ‘‘serious health condition’’ graph (a)(2)(i)(B), a regimen of continuing (a) The medical certification provision entitling an employee to FMLA leave? treatment includes, for example, a course of that an employee is ‘‘needed to care for’’ a prescription medication (e.g., an antibiotic) family member encompasses both physical (a) For purposes of FMLA, ‘‘serious health or therapy requiring special equipment to re- and psychological care. It includes situations condition’’ entitling an employee to FMLA solve or alleviate the health condition (e.g., where, for example, because of a serious leave means an illness, injury, impairment, oxygen). A regimen of continuing treatment health condition, the family member is un- or physical or mental condition that in- that includes the taking of over-the-counter able to care for his or her own basic medical, volves: medications such as aspirin, antihistamines, hygienic, or nutritional needs or safety, or is (1) Inpatient care (i.e., an overnight stay) or salves; or bed-rest, drinking fluids, exer- unable to transport himself or herself to the in a hospital, hospice, or residential medical cise, and other similar activities that can be doctor, etc. The term also includes providing care facility, including any period of inca- initiated without a visit to a health care pro- psychological comfort and reassurance pacity (for purposes of this section, defined vider, is not, by itself, sufficient to con- which would be beneficial to a child, spouse to mean inability to work, attend school or stitute a regimen of continuing treatment or parent with a serious health condition perform other regular daily activities due to for purposes of FMLA leave. who is receiving inpatient or home care. the serious health condition, treatment (c) Conditions for which cosmetic treat- (b) The term also includes situations where therefor, or recovery therefrom), or any sub- ments are administered (such as most treat- the employee may be needed to fill in for sequent treatment in connection with such ments for acne or plastic surgery) are not others who are caring for the family mem- inpatient care; or ‘‘serious health conditions’’ unless inpatient ber, or to make arrangements for changes in (2) Continuing treatment by a health care hospital care is required or unless complica- care, such as transfer to a nursing home. provider. A serious health condition involv- tions develop. Ordinarily, unless complica- (c) An employee’s intermittent leave or a ing continuing treatment by a health care tions arise, the common cold, the flu, ear reduced leave schedule necessary to care for provider includes any one or more of the fol- aches, upset stomach, minor ulcers, head- a family member includes not only a situa- lowing: aches other than migraine, routine dental or tion where the family member’s condition (i) A period of incapacity (i.e., inability to orthodontia problems, periodontal disease, itself is intermittent, but also where the em- work, attend school or perform other regular etc., are examples of conditions that do not ployee is only needed intermittently ‘‘such daily activities due to the serious health meet the definition of a serious health condi- as where other care is normally available, or condition, treatment therefor, or recovery tion and do not qualify for FMLA leave. Re- care responsibilities are shared with another therefrom) of more than three consecutive storative dental or plastic surgery after an member of the family or a third party.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00075 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4524 CONGRESSIONAL RECORD — SENATE May 1, 1996 § 825.117 For an employee seeking intermit- (c) The phrase ‘‘authorized to practice in tice to all employees, and the transition tent FMLA leave or leave on a reduced the State’’ as used in this section means that must take place in such a way that the em- leave schedule, what is meant by ‘‘the med- the provider must be authorized to diagnose ployees retain the full benefit of 12 weeks of ical necessity for’’ such leave? and treat physical or mental health condi- leave under whichever method affords the For intermittent leave or leave on a re- tions without supervision by a doctor or greatest benefit to the employee. Under no duced leave schedule, there must be a med- other health care provider. circumstances may a new method be imple- ical need for leave (as distinguished from SUBPART B—WHAT LEAVE ISANEMPLOYEE mented in order to avoid the CAA’s FMLA voluntary treatments and procedures) and it ENTITLED TO TAKE UNDER THE FAMILY AND leave requirements. must be that such medical need can be best MEDICAL LEAVE ACT, AS MADE APPLICABLE (2) [Reserved]. (e) If an employing office fails to select one accommodated through an intermittent or BY THE CONGRESSIONAL ACCOUNTABILITY of the options in paragraph (b) of this section reduced leave schedule. The treatment regi- ACT? for measuring the 12-month period, the op- men and other information described in the § 825.200 How much leave may an employee tion that provides the most beneficial out- certification of a serious health condition take? come for the employee will be used. The em- (see § 825.306) meets the requirement for cer- (a) An eligible employee’s FMLA leave en- ploying office may subsequently select an tification of the medical necessity of inter- titlement is limited to a total of 12 work- option only by providing the 60-day notice to mittent leave or leave on a reduced leave weeks of leave during any 12-month period all employees of the option the employing schedule. Employees needing intermittent for any one, or more, of the following rea- office intends to implement. During the run- FMLA leave or leave on a reduced leave sons: ning of the 60-day period any other employee schedule must attempt to schedule their (1) The birth of the employee’s son or who needs FMLA leave may use the option leave so as not to disrupt the employing of- daughter, and to care for the newborn child; providing the most beneficial outcome to fice’s operations. In addition, an employing (2) The placement with the employee of a that employee. At the conclusion of the 60- office may assign an employee to an alter- son or daughter for adoption or foster care, day period the employing office may imple- native position with equivalent pay and ben- and to care for the newly placed child; ment the selected option. efits that better accommodates the employ- (3) To care for the employee’s spouse, son, (f) For purposes of determining the amount ee’s intermittent or reduced leave schedule. daughter, or parent with a serious health of leave used by an employee, the fact that § 825.118 What is a ‘‘health care provider’’? condition; and a holiday may occur within the week taken (a)(1) The term ‘‘health care provider’’ (4) Because of a serious health condition as FMLA leave has no effect; the week is means: that makes the employee unable to perform counted as a week of FMLA leave. However, (i) A doctor of medicine or osteopathy who one or more of the essential functions of his if for some reason the employing office’s ac- is authorized to practice medicine or surgery or her job. tivity has temporarily ceased and employees (as appropriate) by the State in which the (b) An employing office is permitted to generally are not expected to report for work doctor practices; or choose any one of the following methods for for one or more weeks (e.g., a school closing (ii) Any other person determined by the Of- determining the ‘‘12-month period’’ in which two weeks for the Christmas/New Year holi- fice of Compliance to be capable of providing the 12 weeks of leave entitlement occurs: day or the summer vacation or an employing health care services. (1) The calendar year; office closing the office for repairs), the days (2) In making a determination referred to (2) Any fixed 12-month ‘‘leave year’’, such the employing office’s activities have ceased in subparagraph (1)(ii), and absent good as a fiscal year or a year starting on an em- do not count against the employee’s FMLA cause shown to do otherwise, the Office of ployee’s ‘‘anniversary’’ date; leave entitlement. Methods for determining Compliance will follow any determination (3) The 12-month period measured forward an employee’s 12-week leave entitlement are made by the Secretary of Labor (under sec- from the date any employee’s first FMLA also described in § 825.205. tion 101(6)(B) of the FMLA, 29 U.S.C. leave begins; or (g)(1) If employing offices jointly employ 2611(6)(B)) that a person is capable of pro- (4) A ‘‘rolling’’ 12-month period measured an employee, and if they designate a primary viding health care services, provided the Sec- backward from the date an employee uses employer pursuant to § 825.106(c), the pri- retary’s determination was not made at the any FMLA leave (except that such measure mary employer may choose any one of the request of a person who was then a covered may not extend back before the date on alternatives in paragraph (b) of this section employee. which the application of FMLA rights and for measuring the 12-month period, provided (b) Others ‘‘capable of providing health protections first becomes effective for the that the alternative chosen is applied con- care services’’ include only: employing office; see § 825.102). sistently and uniformly to all employees of (1) Podiatrists, dentists, clinical psycholo- (c) Under methods in paragraphs (b)(1) and the primary employer including the jointly gists, optometrists, and chiropractors (lim- (b)(2) of this section an employee would be employed employee. ited to treatment consisting of manual ma- entitled to up to 12 weeks of FMLA leave at (2) If employing offices fail to designated a nipulation of the spine to correct a sub- any time in the fixed 12-month period se- primary employer pursuant to § 825.106(c), an luxation as demonstrated by X-ray to exist) lected. An employee could, therefore, take 12 employee jointly employed by the employing authorized to practice in the State and per- weeks of leave at the end of the year and 12 offices may, by so notifying one of the em- ploying offices, select that employing office forming within the scope of their practice as weeks at the beginning of the following year. to be the primary employer of the employee defined under State law; Under the method in paragraph (b)(3) of this for purposes of the application of paragraphs (2) Nurse practitioners, nurse-midwives section, an employee would be entitled to 12 (d) and (e) of this section. and clinical social workers who are author- weeks of leave during the year beginning on ized to practice under State law and who are the first date FMLA leave is taken; the next § 825.201 If leave is taken for the birth of a performing within the scope of their practice 12-month period would begin the first time child, or for placement of a child for adop- as defined under State law; FMLA leave is taken after completion of any tion or foster care, when must the leave be (3) Christian Science practitioners listed previous 12-month period. Under the method concluded? with the First Church of Christ, Scientist in in paragraph (b)(4) of this section, the ‘‘roll- An employee’s entitlement to leave for a Boston, Massachusetts. Where an employee ing’’ 12-month period, each time an employee birth or placement for adoption or foster or family member is receiving treatment takes FMLA leave the remaining leave enti- care expires at the end of the 12-month pe- from a Christian Science practitioner, an tlement would be any balance of the 12 riod beginning on the date of the birth or employee may not object to any requirement weeks which has not been used during the placement, unless the employing office per- from an employing office that the employee immediately preceding 12 months. For exam- mits leave to be taken for a longer period. or family member submit to examination ple, if an employee has taken eight weeks of Any such FMLA leave must be concluded (though not treatment) to obtain a second or leave during the past 12 months, an addi- within this one-year period. third certification from a health care pro- tional four weeks of leave could be taken. If § 825.202 How much leave may a husband vider other than a Christian Science practi- an employee used four weeks beginning Feb- and wife take if they are employed by the tioner except as otherwise provided under ruary 1, 1997, four weeks beginning June 1, same employing office? applicable State or local law or collective 1997, and four weeks beginning December 1, (a) A husband and wife who are eligible for bargaining agreement. 1997, the employee would not be entitled to FMLA leave and are employed by the same (4) Any health care provider from whom an any additional leave until February 1, 1998. employing office may be limited to a com- employing office or the employing office’s However, beginning on February 1, 1998, the bined total of 12 weeks of leave during any group health plan’s benefits manager will ac- employee would be entitled to four weeks of 12-month period if the leave is taken— cept certification of the existence of a seri- leave, on June 1 the employee would be enti- (1) for birth of the employee’s son or ous health condition to substantiate a claim tled to an additional four weeks, etc. daughter or to care for the child after birth; for benefits; and (d)(1) Employing offices will be allowed to (2) for placement of a son or daughter with (5) A health care provider listed above who choose any one of the alternatives in para- the employee for adoption or foster care, or practices in a country other than the United graph (b) of this section provided the alter- to care for the child after placement; or States, who is authorized to practice in ac- native chosen is applied consistently and (3) to care for the employee’s parent with cordance with the law of that country, and uniformly to all employees. An employing a serious health condition. who is performing within the scope of his or office wishing to change to another alter- (b) This limitation on the total weeks of her practice as defined under such law. native is required to give at least 60 days no- leave applies to leave taken for the reasons

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00076 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4525 specified in paragraph (a) of this section as (d) There is no limit on the size of an incre- employee’s normal job location. Any such at- long as a husband and wife are employed by ment of leave when an employee takes inter- tempt on the part of the employing office to the ‘‘same employing office’’. It would apply, mittent leave or leave on a reduced leave make such a transfer will be held to be con- for example, even though the spouses are em- schedule. However, an employing office may trary to the prohibited-acts provisions of the ployed at two different work sites of an em- limit leave increments to the shortest period FMLA, as made applicable by the CAA. ploying office. On the other hand, if one of time that the employing office’s payroll (e) When an employee who is taking leave spouse is ineligible for FMLA leave, the system uses to account for absences or use of intermittently or on a reduced leave sched- other spouse would be entitled to a full 12 leave, provided it is one hour or less. For ex- ule and has been transferred to an alter- weeks of FMLA leave. ample, an employee might take two hours off native position no longer needs to continue (c) Where the husband and wife both use a for a medical appointment, or might work a on leave and is able to return to full-time portion of the total 12-week FMLA leave en- reduced day of four hours over a period of work, the employee must be placed in the titlement for one of the purposes in para- several weeks while recuperating from an ill- same or equivalent job as the job he/she left graph (a) of this section, the husband and ness. An employee may not be required to when the leave commenced. An employee wife would each be entitled to the difference take more FMLA leave than necessary to ad- may not be required to take more leave than between the amount he or she has taken in- dress the circumstance that precipitated the necessary to address the circumstance that dividually and 12 weeks for FMLA leave for need for the leave, except as provided in precipitated the need for leave. a purpose other than those contained in §§ 825.601 and 825.602. § 825.205 How does one determine the amount paragraph (a) of this section. For example, if of leave used where an employee takes each spouse took 6 weeks of leave to care for § 825.204 May an employing office transfer an leave intermittently or on a reduced leave a healthy, newborn child, each could use an employee to an ‘‘alternative position’’ in schedule? additional 6 weeks due to his or her own seri- order to accommodate intermittent leave ous health condition or to care for a child or a reduced leave schedule? (a) If an employee takes leave on an inter- with a serious health condition. (a) If an employee needs intermittent leave mittent or reduced leave schedule, only the or leave on a reduced leave schedule that is amount of leave actually taken may be § 825.203 Does FMLA leave have to be taken counted toward the 12 weeks of leave to all at once, or can it be taken in parts? foreseeable based on planned medical treat- ment for the employee or a family member, which an employee is entitled. For example, (a) FMLA leave may be taken ‘‘intermit- including during a period of recovery from a if an employee who normally works five days tently or on a reduced leave schedule’’ under serious health condition, or if the employing a week takes off one day, the employee certain circumstances. Intermittent leave is office agrees to permit intermittent or re- would use 1⁄5 of a week of FMLA leave. Simi- FMLA leave taken in separate blocks of time larly, if a full-time employee who normally due to a single qualifying reason. A reduced duced schedule leave for the birth of a child or for placement of a child for adoption or works 8-hour days works 4-hour days under a leave schedule is a leave schedule that re- reduced leave schedule, the employee would duces an employee’s usual number of work- foster care, the employing office may require use 1⁄2 week of FMLA leave each week. ing hours per workweek, or hours per work- the employee to transfer temporarily, during the period the intermittent or reduced leave (b) Where an employee normally works a day. A reduced leave schedule is a change in part-time schedule or variable hours, the the employee’s schedule for a period of time, schedule is required, to an available alter- native position for which the employee is amount of leave to which an employee is en- normally from full-time to part-time. titled is determined on a pro rata or propor- (b) When leave is taken after the birth or qualified and which better accommodates re- tional basis by comparing the new schedule placement of a child for adoption or foster curring periods of leave than does the em- with the employee’s normal schedule. For care, an employee may take leave intermit- ployee’s regular position. See § 825.601 for example, if an employee who normally works tently or on a reduced leave schedule only if special rules applicable to instructional em- 30 hours per week works only 20 hours a the employing office agrees. Such a schedule ployees of schools. week under a reduced leave schedule, the reduction might occur, for example, where (b) Transfer to an alternative position may employee’s ten hours of leave would con- an employee, with the employing office’s require compliance with any applicable col- stitute one-third of a week of FMLA leave agreement, works part-time after the birth lective bargaining agreement and any appli- for each week the employee works the re- of a child, or takes leave in several seg- cable law (such as the Americans with Dis- duced leave schedule. ments. The employing office’s agreement is abilities Act, as made applicable by the (c) If an employing office has made a per- not required, however, for leave during CAA). Transfer to an alternative position manent or long-term change in the employ- which the mother has a serious health condi- may include altering an existing job to bet- ee’s schedule (for reasons other than FMLA, tion in connection with the birth of her child ter accommodate the employee’s need for and prior to the notice of need for FMLA or if the newborn child has a serious health intermittent or reduced leave. leave), the hours worked under the new condition. (c) The alternative position must have (c) Leave may be taken intermittently or equivalent pay and benefits. An alternative schedule are to be used for making this cal- on a reduced leave schedule when medically position for these purposes does not have to culation. necessary for planned and/or unanticipated have equivalent duties. The employing office (d) If an employee’s schedule varies from medical treatment of a related serious may increase the pay and benefits of an ex- week to week, a weekly average of the hours health condition by or under the supervision isting alternative position, so as to make worked over the 12 weeks prior to the begin- of a health care provider, or for recovery them equivalent to the pay and benefits of ning of the leave period would be used for from treatment or recovery from a serious the employee’s regular job. The employing calculating the employee’s normal work- health condition. It may also be taken to office may also transfer the employee to a week. provide care or psychological comfort to an part-time job with the same hourly rate of § 825.206 May an employing office deduct immediate family member with a serious pay and benefits, provided the employee is hourly amounts from an employee’s salary, health condition. not required to take more leave than is when providing unpaid leave under FMLA, (1) Intermittent leave may be taken for a medically necessary. For example, an em- as made applicable by the CAA, without af- serious health condition which requires ployee desiring to take leave in increments fecting the employee’s qualification for ex- treatment by a health care provider periodi- of four hours per day could be transferred to emption as an executive, administrative, or cally, rather than for one continuous period a half-time job, or could remain in the em- professional employee, or when utilizing of time, and may include leave of periods ployee’s same job on a part-time schedule, the fluctuating workweek method for pay- from an hour or more to several weeks. Ex- paying the same hourly rate as the employ- ment of overtime, under the Fair Labor amples of intermittent leave would include ee’s previous job and enjoying the same ben- Standards Act? leave taken on an occasional basis for med- efits. The employing office may not elimi- (a) Leave taken under FMLA, as made ap- ical appointments, or leave taken several nate benefits which otherwise would not be plicable by the CAA, may be unpaid. If an days at a time spread over a period of six provided to part-time employees; however, employee is otherwise exempt from min- months, such as for chemotherapy. A preg- an employing office may proportionately re- imum wage and overtime requirements of nant employee may take leave intermit- duce benefits such as vacation leave where the Fair Labor Standards Act (FLSA), as tently for prenatal examinations or for her an employing office’s normal practice is to made applicable by the CAA, as a salaried own condition, such as for periods of severe base such benefits on the number of hours executive, administrative, or professional morning sickness. An example of an em- worked. employee (under regulations issued by the ployee taking leave on a reduced leave (d) An employing office may not transfer Board, at part 541), providing unpaid FMLA- schedule is an employee who is recovering the employee to an alternative position in qualifying leave to such an employee will from a serious health condition and is not order to discourage the employee from tak- not cause the employee to lose the FLSA ex- strong enough to work a full-time schedule. ing leave or otherwise work a hardship on emption. This means that under regulations (2) Intermittent or reduced schedule leave the employee. For example, a white collar currently in effect, where an employee meets may be taken for absences where the em- employee may not be assigned to perform la- the specified duties test, is paid on a salary ployee or family member is incapacitated or borer’s work; an employee working the day basis, and is paid a salary of at least the unable to perform the essential functions of shift may not be reassigned to the graveyard amount specified in the regulations, the em- the position because of a chronic serious shift; an employee working in the head- ploying office may make deductions from health condition even if he or she does not quarters facility may not be reassigned to a the employee’s salary for any hours taken as receive treatment by a health care provider. branch a significant distance away from the intermittent or reduced FMLA leave within

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00077 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4526 CONGRESSIONAL RECORD — SENATE May 1, 1996 a workweek, without affecting the exempt choose to substitute paid leave for FMLA able to return to a ‘‘light duty job’’ but is status of the employee. The fact that an em- leave. If an employee does not choose to sub- unable to return to the same or equivalent ploying office provides FMLA leave, whether stitute accrued paid leave, the employing of- job, the employee may decline the employing paid or unpaid, or maintains any records re- fice may require the employee to substitute office’s offer of a ‘‘light duty job’’. As a re- garding FMLA leave, will not be relevant to accrued paid leave for FMLA leave. sult the employee may lose workers’ com- the determination whether an employee is (b) Where an employee has earned or ac- pensation payments, but is entitled to re- exempt within the meaning of the Board’s crued paid vacation, personal or family main on unpaid FMLA leave until the 12- regulations at part 541. leave, that paid leave may be substituted for week entitlement is exhausted. As of the (b) For an employee paid in accordance all or part of any (otherwise) unpaid FMLA date workers’ compensation benefits cease, with a fluctuating workweek method of pay- leave relating to birth, placement of a child the substitution provision becomes applica- ment for overtime, where permitted by sec- for adoption or foster care, or care for a ble and either the employee may elect or the tion 203 of the CAA (2 U.S.C. 1313), the em- spouse, child or parent who has a serious employing office may require the use of ac- ploying office, during the period in which health condition. The term ‘‘family leave’’ as crued paid leave. See also §§ 825.210(f), intermittent or reduced schedule FMLA used in FMLA refers to paid leave provided 825.216(d), 825.220(d), 825.307(a)(1) and leave is scheduled to be taken, may com- by the employing office covering the par- 825.702(d) (1) and (2) regarding the relation- pensate an employee on an hourly basis and ticular circumstances for which the em- ship between workers’ compensation ab- pay only for the hours the employee works, ployee seeks leave for either the birth of a sences and FMLA leave. including time and one-half the employee’s child and to care for such child, placement of (e) Paid vacation or personal leave, includ- regular rate for overtime hours. The change a child for adoption or foster care, or care for ing leave earned or accrued under plans al- to payment on an hourly basis would include a spouse, child or parent with a serious lowing ‘‘paid time off’’, may be substituted, the entire period during which the employee health condition. For example, if the em- at either the employee’s or the employing of- is taking intermittent leave, including ploying office’s leave plan allows use of fam- fice’s option, for any qualified FMLA leave. weeks in which no leave is taken. The hourly ily leave to care for a child but not for a par- No limitations may be placed by the employ- rate shall be determined by dividing the em- ent, the employing office is not required to ing office on substitution of paid vacation or ployee’s weekly salary by the employee’s allow accrued family leave to be substituted personal leave for these purposes. normal or average schedule of hours worked for FMLA leave used to care for a parent. (f) If neither the employee nor the employ- during weeks in which FMLA leave is not (c) Substitution of paid accrued vacation, ing office elects to substitute paid leave for personal, or medical/sick leave may be made unpaid FMLA leave under the above condi- being taken. If an employing office chooses for any (otherwise) unpaid FMLA leave need- tions and circumstances, the employee will to follow this exception from the fluctuating ed to care for a family member or the em- remain entitled to all the paid leave which is workweek method of payment, the employ- ployee’s own serious health condition. Sub- earned or accrued under the terms of the em- ing office must do so uniformly, with respect stitution of paid sick/medical leave may be ploying office’s plan. to all employees paid on a fluctuating work- elected to the extent the circumstances meet (g) If an employee uses paid leave under week basis for whom FMLA leave is taken on the employing office’s usual requirements circumstances which do not qualify as FMLA an intermittent or reduced leave schedule for the use of sick/medical leave. An employ- leave, the leave will not count against the 12 basis. If an employing office does not elect to ing office is not required to allow substi- weeks of FMLA leave to which the employee convert the employee’s compensation to tution of paid sick or medical leave for un- is entitled. For example, paid sick leave used hourly pay, no deduction may be taken for paid FMLA leave ‘‘in any situation’’ where for a medical condition which is not a seri- FMLA leave absences. Once the need for the employing office’s uniform policy would ous health condition does not count against intermittent or reduced scheduled leave is not normally allow such paid leave. An em- the 12 weeks of FMLA leave entitlement. over, the employee may be restored to pay- ployee, therefore, has a right to substitute (h) When an employee or employing office ment on a fluctuating workweek basis. paid medical/sick leave to care for a seri- elects to substitute paid leave (of any type) (c) This special exception to the ‘‘salary for unpaid FMLA leave under circumstances basis’’ requirements of the FLSA exemption ously ill family member only if the employ- ing office’s leave plan allows paid leave to be permitted by these regulations, and the em- or fluctuating workweek payment require- ploying office’s procedural requirements for ments applies only to employees of employ- used for that purpose. Similarly, an em- ployee does not have a right to substitute taking that kind of leave are less stringent ing offices who are eligible for FMLA leave, than the requirements of FMLA as made ap- and to leave which qualifies as (one of the paid medical/sick leave for a serious health condition which is not covered by the em- plicable by the CAA (e.g., notice or certifi- four types of) FMLA leave. Hourly or other cation requirements), only the less stringent deductions which are not in accordance with ploying office’s leave plan. (d)(1) Disability leave for the birth of a requirements may be imposed. An employee the Board’s regulations at part 541 or with a child would be considered FMLA leave for a who complies with an employing office’s less permissible fluctuating workweek method of serious health condition and counted in the stringent leave plan requirements in such payment for overtime may not be taken, for 12 weeks of leave permitted under FMLA as cases may not have leave for an FMLA pur- example, where the employee has not worked made applicable by the CAA. Because the pose delayed or denied on the grounds that long enough to be eligible for FMLA leave leave pursuant to a temporary disability the employee has not complied with stricter without potentially affecting the employee’s benefit plan is not unpaid, the provision for requirements of FMLA as made applicable eligibility for exemption. Nor may deduc- substitution of paid leave is inapplicable. by the CAA. However, where accrued paid va- tions which are not permitted by the Board’s However, the employing office may des- cation or personal leave is substituted for regulations at part 541 or by a permissible ignate the leave as FMLA leave and count unpaid FMLA leave for a serious health con- fluctuating workweek method of payment the leave as running concurrently for pur- dition, an employee may be required to com- for overtime be taken from such an employ- poses of both the benefit plan and the FMLA ply with any less stringent medical certifi- ee’s salary for any leave which does not qual- leave entitlement. If the requirements to cation requirements of the employing of- ify as FMLA leave, for example, deductions qualify for payments pursuant to the em- fice’s sick leave program. See §§ 825.302(g), from an employee’s pay for leave required ploying office’s temporary disability plan 825.305(e) and 825.306(c). under an employing office’s policy or prac- are more stringent than those of FMLA as (i) Compensatory time off, if any is author- tice for a reason which does not qualify as made applicable by the CAA, the employee ized under applicable law, is not a form of ac- FMLA leave, e.g., leave to care for a grand- must meet the more stringent requirements crued paid leave that an employing office parent or for a medical condition which does of the plan, or may choose not to meet the may require the employee to substitute for not qualify as a serious health condition; or requirements of the plan and instead receive unpaid FMLA leave. The employee may re- for leave which is more generous than pro- no payments from the plan and use unpaid quest to use his/her balance of compensatory vided by FMLA as made applicable by the FMLA leave or substitute available accrued time for an FMLA reason. If the employing CAA, such as leave in excess of 12 weeks in paid leave. office permits the accrual of compensatory a year. The employing office may comply (2) The FMLA as made applicable by the time to be used in compliance with applica- with the employing office’s own policy/prac- CAA provides that a serious health condition ble Board regulations, the absence which is tice under these circumstances and maintain may result from injury to the employee ‘‘on paid from the employee’s accrued compen- the employee’s eligibility for exemption or or off’’ the job. If the employing office des- satory time ‘‘account’’ may not be counted for the fluctuating workweek method of pay ignates the leave as FMLA leave in accord- against the employee’s FMLA leave entitle- by not taking hourly deductions from the ance with § 825.208, the employee’s FMLA 12- ment. employee’s pay, in accordance with FLSA re- week leave entitlement may run concur- § 825.208 Under what circumstances may an quirements, or may take such deductions, rently with a workers’ compensation absence employing office designate leave, paid or treating the employee as an ‘‘hourly’’ em- when the injury is one that meets the cri- unpaid, as FMLA leave and, as a result, en- ployee and pay overtime premium pay for teria for a serious health condition. As the able leave to be counted against the em- hours worked over 40 in a workweek. workers’ compensation absence is not unpaid ployee’s total FMLA leave entitlement? § 825.207 Is FMLA leave paid or unpaid? leave, the provision for substitution of the (a) In all circumstances, it is the employ- (a) Generally, FMLA leave is unpaid. How- employee’s accrued paid leave is not applica- ing office’s responsibility to designate leave, ever, under the circumstances described in ble. However, if the health care provider paid or unpaid, as FMLA-qualifying, and to this section, FMLA, as made applicable by treating the employee for the workers’ com- give notice of the designation to the em- the CAA, permits an eligible employee to pensation injury certifies the employee is ployee as provided in this section. In the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00078 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4527 case of intermittent leave or leave on a re- writing, no later than the following payday ness days of returning to work of the reason duced schedule, only one such notice is re- (unless the payday is less than one week for the leave. In the absence of such timely quired unless the circumstances regarding after the oral notice, in which case the no- notification by the employee, the employee the leave have changed. The employing of- tice must be no later than the subsequent may not subsequently assert FMLA protec- fice’s designation decision must be based payday). The written notice may be in any tions for the absence. only on information received from the em- form, including a notation on the employee’s (2) If the employing office knows the rea- ployee or the employee’s spokesperson (e.g., pay stub. son for the leave but has not been able to if the employee is incapacitated, the employ- (c) If the employing office requires paid confirm that the leave qualifies under ee’s spouse, adult child, parent, doctor, etc., leave to be substituted for unpaid leave, or FMLA, or where the employing office has re- may provide notice to the employing office that paid leave taken under an existing leave quested medical certification which has not of the need to take FMLA leave). In any cir- plan be counted as FMLA leave, this decision yet been received or the parties are in the cumstance where the employing office does must be made by the employing office within process of obtaining a second or third med- not have sufficient information about the two business days of the time the employee ical opinion, the employing office should reason for an employee’s use of paid leave, gives notice of the need for leave, or, where make a preliminary designation, and so no- the employing office should inquire further the employing office does not initially have tify the employee, at the time leave begins, of the employee or the spokesperson to as- sufficient information to make a determina- or as soon as the reason for the leave be- certain whether the paid leave is potentially tion, when the employing office determines comes known. Upon receipt of the requisite FMLA-qualifying. that the leave qualifies as FMLA leave if information from the employee or of the (1) An employee giving notice of the need this happens later. The employing office’s medical certification which confirms the for unpaid FMLA leave must explain the rea- designation must be made before the leave leave is for an FMLA reason, the preliminary sons for the needed leave so as to allow the starts, unless the employing office does not designation becomes final. If the medical employing office to determine that the leave have sufficient information as to the em- certifications fail to confirm that the reason qualifies under the FMLA, as made applica- ployee’s reason for taking the leave until for the absence was an FMLA reason, the ble by the CAA. If the employee fails to ex- after the leave commenced. If the employing employing office must withdraw the designa- plain the reasons, leave may be denied. In office has the requisite knowledge to make a tion (with written notice to the employee). many cases, in explaining the reasons for a determination that the paid leave is for an (f) If, before beginning employment with request to use paid leave, especially when FMLA reason at the time the employee ei- an employing office, an employee had been the need for the leave was unexpected or un- ther gives notice of the need for leave or employed by another employing office, the foreseen, an employee will provide sufficient commences leave and fails to designate the subsequent employing office may count information for the employing office to des- leave as FMLA leave (and so notify the em- against the employee’s FMLA leave entitle- ignate the paid leave as FMLA leave. An em- ployee in accordance with paragraph (b)), the ment FMLA leave taken from the prior em- ployee using accrued paid leave, especially employing office may not designate leave as ploying office, except that, if the FMLA vacation or personal leave, may in some FMLA leave retroactively, and may des- leave began after the effective date of these ignate only prospectively as of the date of cases not spontaneously explain the reasons regulations (or if the FMLA leave was sub- notification to the employee of the designa- or their plans for using their accrued leave. ject to other applicable requirement under tion. In such circumstances, the employee is (2) As noted in § 825.302(c), an employee giv- which the employing office was to have des- subject to the full protections of the FMLA, ing notice of the need for unpaid FMLA leave ignated the leave as FMLA leave), the prior as made applicable by the CAA, but none of does not need to expressly assert rights employing office must have properly des- the absence preceding the notice to the em- under the FMLA as made applicable by the ignated the leave as FMLA under these regu- ployee of the designation may be counted CAA or even mention the FMLA to meet his lations or other applicable requirement. or her obligation to provide notice, though against the employee’s 12-week FMLA leave § 825.209 Is an employee entitled to benefits the employee would need to state a quali- entitlement. while using FMLA leave? fying reason for the needed leave. An em- (d) If the employing office learns that ployee requesting or notifying the employing leave is for an FMLA purpose after leave has (a) During any FMLA leave, the employing office of an intent to use accrued paid leave, begun, such as when an employee gives no- office must maintain the employee’s cov- even if for a purpose covered by FMLA, tice of the need for an extension of the paid erage under the Federal Employees Health would not need to assert such right either. leave with unpaid FMLA leave, the entire or Benefits Program or any group health plan However, if an employee requesting to use some portion of the paid leave period may be (as defined in the Internal Revenue Code of paid leave for an FMLA-qualifying purpose retroactively counted as FMLA leave, to the 1986 at 26 U.S.C. 5000(b)(1)) on the same con- does not explain the reason for the leave— extent that the leave period qualified as ditions as coverage would have been provided consistent with the employing office’s estab- FMLA leave. For example, an employee is if the employee had been continuously em- lished policy or practice—and the employing granted two weeks paid vacation leave for a ployed during the entire leave period. All office denies the employee’s request, the em- skiing trip. In mid-week of the second week, employing offices are subject to the require- ployee will need to provide sufficient infor- the employee contacts the employing office ments of the FMLA, as made applicable by mation to establish an FMLA-qualifying rea- for an extension of leave as unpaid leave and the CAA, to maintain health coverage. The son for the needed leave so that the employ- advises that at the beginning of the second definition of ‘‘group health plan’’ is set forth ing office is aware of the employee’s entitle- week of paid vacation leave the employee in § 825.800. For purposes of FMLA, the term ment (i.e., that the leave may not be denied) suffered a severe accident requiring hos- ‘‘group health plan’’ shall not include an in- and, then, may designate that the paid leave pitalization. The employing office may no- surance program providing health coverage be appropriately counted against (sub- tify the employee that both the extension under which employees purchase individual stituted for) the employee’s 12-week entitle- and the second week of paid vacation leave policies from insurers provided that— ment. Similarly, an employee using accrued (from the date of the injury) is designated as (1) no contributions are made by the em- paid vacation leave who seeks an extension FMLA leave. On the other hand, when the ploying office; of unpaid leave for an FMLA-qualifying pur- employee takes sick leave that turns into a (2) participation in the program is com- pose will need to state the reason. If this is serious health condition (e.g., bronchitis pletely voluntary for employees; due to an event which occurred during the that turns into bronchial pneumonia) and (3) the sole functions of the employing of- period of paid leave, the employing office the employee gives notice of the need for an fice with respect to the program are, without may count the leave used after the FMLA- extension of leave, the entire period of the endorsing the program, to permit the insurer qualifying event against the employee’s 12- serious health condition may be counted as to publicize the program to employees, to week entitlement. FMLA leave. collect premiums through payroll deductions (b)(1) Once the employing office has ac- (e) Employing offices may not designate and to remit them to the insurer; quired knowledge that the leave is being leave as FMLA leave after the employee has (4) the employing office receives no consid- taken for an FMLA required reason, the em- returned to work with two exceptions: eration in the form of cash or otherwise in ploying office must promptly (within two (1) If the employee was absent for an connection with the program, other than business days absent extenuating cir- FMLA reason and the employing office did reasonable compensation, excluding any cumstances) notify the employee that the not learn the reason for the absence until profit, for administrative services actually paid leave is designated and will be counted the employee’s return (e.g., where the em- rendered in connection with payroll deduc- as FMLA leave. If there is a dispute between ployee was absent for only a brief period), tion; and an employing office and an employee as to the employing office may, upon the employ- (5) the premium charged with respect to whether paid leave qualifies as FMLA leave, ee’s return to work, promptly (within two such coverage does not increase in the event it should be resolved through discussions be- business days of the employee’s return to the employment relationship terminates. tween the employee and the employing of- work) designate the leave retroactively with (b) The same group health plan benefits fice. Such discussions and the decision must appropriate notice to the employee. If leave provided to an employee prior to taking be documented. is taken for an FMLA reason but the em- FMLA leave must be maintained during the (2) The employing office’s notice to the ploying office was not aware of the reason, FMLA leave. For example, if family member employee that the leave has been designated and the employee desires that the leave be coverage is provided to an employee, family as FMLA leave may be orally or in writing. counted as FMLA leave, the employee must member coverage must be maintained during If the notice is oral, it shall be confirmed in notify the employing office within two busi- the FMLA leave. Similarly, benefit coverage

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00079 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4528 CONGRESSIONAL RECORD — SENATE May 1, 1996 during FMLA leave for medical care, sur- § 825.210 How may employees on FMLA leave tions on behalf of an employee using FMLA gical care, hospital care, dental care, eye pay their share of group health benefit pre- leave as though the employee had been con- care, mental health counseling, substance miums? tinuously employed, unless the plan contains abuse treatment, etc., must be maintained (a) Group health plan benefits must be an explicit FMLA provision for maintaining during leave if provided in an employing of- maintained on the same basis as coverage coverage such as through pooled contribu- fice’s group health plan, including a supple- would have been provided if the employee tions by all employers party to the plan. ment to a group health plan, whether or not had been continuously employed during the (c) During the duration of an employee’s provided through a flexible spending account FMLA leave period. Therefore, any share of FMLA leave, coverage by the group health or other component of a cafeteria plan. group health plan premiums which had been plan, and benefits provided pursuant to the (c) If an employing office provides a new paid by the employee prior to FMLA leave plan, must be maintained at the level of cov- health plan or benefits or changes health must continue to be paid by the employee erage and benefits which were applicable to benefits or plans while an employee is on during the FMLA leave period. If premiums the employee at the time FMLA leave com- FMLA leave, the employee is entitled to the are raised or lowered, the employee would be menced. new or changed plan/benefits to the same ex- required to pay the new premium rates. (d) An employee using FMLA leave cannot tent as if the employee were not on leave. Maintenance of health insurance policies be required to use ‘‘banked’’ hours or pay a For example, if an employing office changes which are not a part of the employing of- greater premium than the employee would a group health plan so that dental care be- fice’s group health plan, as described in have been required to pay if the employee comes covered under the plan, an employee § 825.209(a), are the sole responsibility of the had been continuously employed. on FMLA leave must be given the same op- employee. The employee and the insurer (e) As provided in § 825.209(f), group health portunity as other employees to receive (or should make necessary arrangements for plan coverage must be maintained for an em- obtain) the dental care coverage. Any other payment of premiums during periods of un- ployee on FMLA leave until: plan changes (e.g., in coverage, premiums, paid FMLA leave. (1) the employee’s FMLA leave entitlement deductibles, etc.) which apply to all employ- (b) If the FMLA leave is substituted paid is exhausted; ees of the workforce would also apply to an leave, the employee’s share of premiums (2) the employing office can show that the employee on FMLA leave. must be paid by the method normally used employee would have been laid off and the (d) Notice of any opportunity to change during any paid leave, presumably as a pay- employment relationship terminated; or plans or benefits must also be given to an roll deduction. (3) the employee provides unequivocal no- employee on FMLA leave. If the group (c) If FMLA leave is unpaid, the employing tice of intent not to return to work. health plan permits an employee to change office has a number of options for obtaining § 825.212 What are the consequences of an from single to family coverage upon the payment from the employee. The employing employee’s failure to make timely health birth of a child or otherwise add new family office may require that payment be made to plan premium payments? members, such a change in benefits must be the employing office or to the insurance car- (a)(1) In the absence of an established em- made available while an employee is on rier, but no additional charge may be added ploying office policy providing a longer grace FMLA leave. If the employee requests the to the employee’s premium payment for ad- period, an employing office’s obligations to changed coverage it must be provided by the ministrative expenses. The employing office maintain health insurance coverage cease employing office. may require employees to pay their share of under FMLA if an employee’s premium pay- (e) An employee may choose not to retain premium payments in any of the following ment is more than 30 days late. In order to group health plan coverage during FMLA ways: drop the coverage for an employee whose leave. However, when an employee returns (1) Payment would be due at the same time premium payment is late, the employing of- from leave, the employee is entitled to be re- as it would be made if by payroll deduction; fice must provide written notice to the em- instated on the same terms as prior to tak- (2) Payment would be due on the same ployee that the payment has not been re- ing the leave, including family or dependent schedule as payments are made under ceived. Such notice must be mailed to the coverages, without any qualifying period, COBRA or 5 U.S.C. 8905a, whichever is appli- employee at least 15 days before coverage is physical examination, exclusion of pre-exist- cable; to cease, advising that coverage will be ing conditions, etc. See § 825.212(c). (3) Payment would be prepaid pursuant to dropped on a specified date at least 15 days (f) Except as required by the Consolidated a cafeteria plan at the employee’s option; after the date of the letter unless the pay- Omnibus Budget Reconciliation Act of 1986 (4) The employing office’s existing rules for ment has been received by that date. If the (COBRA) or 5 U.S.C. 8905a, whichever is ap- payment by employees on ‘‘leave without employing office has established policies re- plicable, and for ‘‘key’’ employees (as dis- pay’’ would be followed, provided that such garding other forms of unpaid leave that pro- cussed below), an employing office’s obliga- rules do not require prepayment (i.e., prior vide for the employing office to cease cov- tion to maintain health benefits during leave to the commencement of the leave) of the erage retroactively to the date the unpaid (and to restore the employee to the same or premiums that will become due during a pe- premium payment was due, the employing equivalent employment) under FMLA ceases riod of unpaid FMLA leave or payment of office may drop the employee from coverage if and when the employment relationship higher premiums than if the employee had retroactively in accordance with that policy, would have terminated if the employee had continued to work instead of taking leave; or provided the 15-day notice was given. In the not taken FMLA leave (e.g., if the employ- (5) Another system voluntarily agreed to absence of such a policy, coverage for the ee’s position is eliminated as part of a non- between the employing office and the em- employee may be terminated at the end of discriminatory reduction in force and the ployee, which may include prepayment of the 30-day grace period, where the required employee would not have been transferred to premiums (e.g., through increased payroll 15-day notice has been provided. another position); an employee informs the deductions when the need for the FMLA (2) An employing office has no obligation employing office of his or her intent not to leave is foreseeable). regarding the maintenance of a health insur- return from leave (including before starting (d) The employing office must provide the ance policy which is not a ‘‘group health the leave if the employing office is so in- employee with advance written notice of the plan’’. See § 825.209(a). formed before the leave starts); or the em- terms and conditions under which these pay- (3) All other obligations of an employing ployee fails to return from leave or con- ments must be made. (See § 825.301.) office under FMLA would continue; for ex- tinues on leave after exhausting his or her (e) An employing office may not require ample, the employing office continues to FMLA leave entitlement in the 12-month pe- more of an employee using FMLA leave than have an obligation to reinstate an employee riod. the employing office requires of other em- upon return from leave. (g) If a ‘‘key employee’’ (see § 825.218) does ployees on ‘‘leave without pay’’. (b) The employing office may recover the not return from leave when notified by the (f) An employee who is receiving payments employee’s share of any premium payments employing office that substantial or grievous as a result of a workers’ compensation injury missed by the employee for any FMLA leave economic injury will result from his or her must make arrangements with the employ- period during which the employing office reinstatement, the employee’s entitlement ing office for payment of group health plan maintains health coverage by paying the em- to group health plan benefits continues un- benefits when simultaneously taking unpaid ployee’s share after the premium payment is less and until the employee advises the em- FMLA leave. See paragraph (c) of this sec- missed. ploying office that the employee does not de- tion and § 825.207(d)(2). (c) If coverage lapses because an employee sire restoration to employment at the end of § 825.211 What special health benefits mainte- has not made required premium payments, the leave period, or FMLA leave entitlement nance rules apply to multi-employer health upon the employee’s return from FMLA is exhausted, or reinstatement is actually plans? leave the employing office must still restore denied. (a) A multi-employer health plan is a plan the employee to coverage/benefits equivalent (h) An employee’s entitlement to benefits to which more than one employer is required to those the employee would have had if other than group health benefits during a pe- to contribute, and which is maintained pur- leave had not been taken and the premium riod of FMLA leave (e.g., holiday pay) is to suant to one or more collective bargaining payment(s) had not been missed, including be determined by the employing office’s es- agreements between employee organiza- family or dependent coverage. See § 825.215(d) tablished policy for providing such benefits tion(s) and the employers. (1)–(5). In such case, an employee may not be when the employee is on other forms of leave (b) An employing office under a multi-em- required to meet any qualification require- (paid or unpaid, as appropriate). ployer plan must continue to make contribu- ments imposed by the plan, including any

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00080 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4529 new preexisting condition waiting period, to turn from unpaid FMLA leave, it may be (b) If an employee is no longer qualified for wait for an open season, or to pass a medical necessary that premiums be paid continu- the position because of the employee’s in- examination to obtain reinstatement of cov- ously to avoid a lapse of coverage. If the em- ability to attend a necessary course, renew a erage. ploying office elects to maintain such bene- license, fly a minimum number of hours, § 825.213 May an employing office recover fits during the leave, at the conclusion of etc., as a result of the leave, the employee costs it incurred for maintaining ‘‘group leave, the employing office is entitled to re- shall be given a reasonable opportunity to health plan’’ or other non-health benefits cover only the costs incurred for paying the fulfill those conditions upon return to work. (c) Equivalent Pay: coverage during FMLA leave? employee’s share of any premiums whether or not the employee returns to work. (1) An employee is entitled to any uncondi- (a) In addition to the circumstances dis- tional pay increases which may have oc- cussed in § 825.212(b), the share of health plan (c) An employee who returns to work for at least 30 calendar days is considered to have curred during the FMLA leave period, such premiums paid by or on behalf of the em- as cost of living increases. Pay increases ploying office during a period of unpaid ‘‘returned’’ to work. An employee who trans- fers directly from taking FMLA leave to re- conditioned upon seniority, length of service, FMLA leave may be recovered from an em- or work performed would not have to be ployee if the employee fails to return to tirement, or who retires during the first 30 days after the employee returns to work, is granted unless it is the employing office’s work after the employee’s FMLA leave enti- policy or practice to do so with respect to tlement has been exhausted or expires, un- deemed to have returned to work. (d) When an employee elects or an employ- other employees on ‘‘leave without pay’’. In less the reason the employee does not return ing office requires paid leave to be sub- such case, any pay increase would be granted is due to: stituted for FMLA leave, the employing of- based on the employee’s seniority, length of (1) The continuation, recurrence, or onset fice may not recover its (share of) health in- service, work performed, etc., excluding the of a serious health condition of the employee surance or other non-health benefit pre- period of unpaid FMLA leave. An employee or the employee’s family member which miums for any period of FMLA leave covered is entitled to be restored to a position with would otherwise entitle the employee to by paid leave. Because paid leave provided the same or equivalent pay premiums, such leave under FMLA; under a plan covering temporary disabilities as a shift differential. If an employee de- (2) Other circumstances beyond the em- (including workers’ compensation) is not un- parted from a position averaging ten hours ployee’s control. Examples of ‘‘other cir- paid, recovery of health insurance premiums of overtime (and corresponding overtime cumstances beyond the employee’s control’’ does not apply to such paid leave. pay) each week, an employee is ordinarily are necessarily broad. They include such sit- (e) The amount that self-insured employ- entitled to such a position on return from uations as where a parent chooses to stay ing offices may recover is limited to only the FMLA leave. home with a newborn child who has a serious employing office’s share of allowable ‘‘pre- (2) Many employing offices pay bonuses in health condition; an employee’s spouse is un- miums’’ as would be calculated under different forms to employees for job-related expectedly transferred to a job location more COBRA, excluding the 2 percent fee for ad- performance such as for perfect attendance, than 75 miles from the employee’s worksite; ministrative costs. safety (absence of injuries or accidents on a relative or individual other than an imme- (f) When an employee fails to return to the job) and exceeding production goals. Bo- diate family member has a serious health work, any health and non-health benefit pre- nuses for perfect attendance and safety do condition and the employee is needed to pro- miums which this section of the regulations not require performance by the employee but vide care; the employee is laid off while on permits an employing office to recover are a rather contemplate the absence of occur- leave; or, the employee is a ‘‘key employee’’ debt owed by the non-returning employee to rences. To the extent an employee who takes who decides not to return to work upon the employing office. The existence of this FMLA leave had met all the requirements being notified of the employing office’s in- debt caused by the employee’s failure to re- for either or both of these bonuses before tention to deny restoration because of sub- turn to work does not alter the employing FMLA leave began, the employee is entitled stantial and grievous economic injury to the office’s responsibilities for health benefit to continue this entitlement upon return employing office’s operations and is not rein- coverage and, under a self-insurance plan, from FMLA leave, that is, the employee may stated by the employing office. Other cir- payment of claims incurred during the pe- not be disqualified for the bonus(es) for the cumstances beyond the employee’s control riod of FMLA leave. To the extent recovery taking of FMLA leave. See § 825.220 (b) and would not include a situation where an em- is allowed, the employing office may recover (c). A monthly production bonus, on the ployee desires to remain with a parent in a the costs through deduction from any sums other hand, does require performance by the distant city even though the parent no due to the employee (e.g., unpaid wages, va- employee. If the employee is on FMLA leave longer requires the employee’s care, or a par- cation pay, etc.), provided such deductions during any part of the period for which the ent chooses not to return to work to stay do not otherwise violate applicable wage bonus is computed, the employee is entitled home with a well, newborn child; or payment or other laws. Alternatively, the to the same consideration for the bonus as (3) When an employee fails to return to employing office may initiate legal action other employees on paid or unpaid leave (as work because of the continuation, recur- against the employee to recover such costs. appropriate). See paragraph (d)(2) of this sec- rence, or onset of a serious health condition, § 825.214 What are an employee’s rights on re- tion. thereby precluding the employing office turning to work from FMLA leave? (d) Equivalent Benefits. ‘‘Benefits’’ include from recovering its (share of) health benefit all benefits provided or made available to premium payments made on the employee’s (a) On return from FMLA leave, an em- employees by an employing office, including behalf during a period of unpaid FMLA leave, ployee is entitled to be returned to the same group life insurance, health insurance, dis- the employing office may require medical position the employee held when leave com- ability insurance, sick leave, annual leave, certification of the employee’s or the family menced, or to an equivalent position with educational benefits, and pensions, regard- member’s serious health condition. Such cer- equivalent benefits, pay, and other terms less of whether such benefits are provided by tification is not required unless requested by and conditions of employment. An employee a practice or written policy of an employing the employing office. The employee is re- is entitled to such reinstatement even if the office through an employee benefit plan. quired to provide medical certification in a employee has been replaced or his or her po- (1) At the end of an employee’s FMLA timely manner which, for purposes of this sition has been restructured to accommodate leave, benefits must be resumed in the same section, is within 30 days from the date of the employee’s absence. See also § 825.106(e) manner and at the same levels as provided the employing office’s request. For purposes for the obligations of employing offices that when the leave began, and subject to any of medical certification, the employee may are joint employing offices. changes in benefit levels that may have use the optional form developed for this pur- (b) If the employee is unable to perform an taken place during the period of FMLA leave pose (see § 825.306(a) and Appendix B of this essential function of the position because of affecting the entire workforce, unless other- part). If the employing office requests med- a physical or mental condition, including the wise elected by the employee. Upon return ical certification and the employee does not continuation of a serious health condition, from FMLA leave, an employee cannot be re- provide such certification in a timely man- the employee has no right to restoration to quired to requalify for any benefits the em- ner (within 30 days), or the reason for not re- another position under the FMLA. However, ployee enjoyed before FMLA leave began (in- turning to work does not meet the test of the employing office’s obligations may be cluding family or dependent coverages). For other circumstances beyond the employee’s governed by the Americans with Disabilities example, if an employee was covered by a control, the employing office may recover Act (ADA), as made applicable by the CAA. life insurance policy before taking leave but 100 percent of the health benefit premiums it See § 825.702. is not covered or coverage lapses during the paid during the period of unpaid FMLA § 825.215 What is an equivalent position? period of unpaid FMLA leave, the employee leave. (a) An equivalent position is one that is cannot be required to meet any qualifica- (b) Under some circumstances an employ- virtually identical to the employee’s former tions, such as taking a physical examina- ing office may elect to maintain other bene- position in terms of pay, benefits and work- tion, in order to requalify for life insurance fits, e.g., life insurance, disability insurance, ing conditions, including privileges, per- upon return from leave. Accordingly, some etc., by paying the employee’s (share of) pre- quisites and status. It must involve the same employing offices may find it necessary to miums during periods of unpaid FMLA leave. or substantially similar duties and respon- modify life insurance and other benefits pro- For example, to ensure the employing office sibilities, which must entail substantially grams in order to restore employees to can meet its responsibilities to provide equivalent skill, effort, responsibility, and equivalent benefits upon return from FMLA equivalent benefits to the employee upon re- authority. leave, make arrangements for continued

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00081 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4530 CONGRESSIONAL RECORD — SENATE May 1, 1996 payment of costs to maintain such benefits different position against the employee’s time requirements of the FLSA, as made ap- during unpaid FMLA leave, or pay these wishes. plicable by the CAA, as executive, adminis- costs subject to recovery from the employee (f) The requirement that an employee be trative, and professional employees). on return from leave. See § 825.213(b). restored to the same or equivalent job with (c) A ‘‘key employee’’ must be ‘‘among the (2) An employee may, but is not entitled the same or equivalent pay, benefits, and highest paid 10 percent’’ of all the employees to, accrue any additional benefits or senior- terms and conditions of employment does ‘‘both salaried and non-salaried, eligible and ity during unpaid FMLA leave. Benefits ac- not extend to de minimis or intangible, ineligible ‘‘who are employed by the employ- crued at the time leave began, however, (e.g., unmeasurable aspects of the job. However, ing office within 75 miles of the worksite’’: paid vacation, sick or personal leave to the restoration to a job slated for lay-off, when (1) In determining which employees are extent not substituted for FMLA leave) must the employee’s original position is not, among the highest paid 10 percent, year-to- be available to an employee upon return would not meet the requirements of an date earnings are divided by weeks worked from leave. equivalent position. by the employee (including weeks in which (3) If, while on unpaid FMLA leave, an em- § 825.216 Are there any limitations on an em- paid leave was taken). Earnings include ployee desires to continue life insurance, dis- ploying office’s obligation to reinstate an wages, premium pay, incentive pay, and non- ability insurance, or other types of benefits employee? discretionary and discretionary bonuses. for which he or she typically pays, the em- (a) An employee has no greater right to re- Earnings do not include incentives whose ploying office is required to follow estab- instatement or to other benefits and condi- value is determined at some future date, e.g., lished policies or practices for continuing tions of employment than if the employee benefits or perquisites. such benefits for other instances of leave had been continuously employed during the (2) The determination of whether a salaried without pay. If the employing office has no FMLA leave period. An employing office employee is among the highest paid 10 per- established policy, the employee and the em- must be able to show that an employee cent shall be made at the time the employee ploying office are encouraged to agree upon would not otherwise have been employed at gives notice of the need for leave. No more arrangements before FMLA leave begins. the time reinstatement is requested in order than 10 percent of the employing office’s em- (4) With respect to pension and other re- to deny restoration to employment. For ex- ployees within 75 miles of the worksite may tirement plans, any period of unpaid FMLA ample: be ‘‘key employees’’. leave shall not be treated as or counted to- (1) If an employee is laid off during the § 825.218 What does ‘‘substantial and grievous ward a break in service for purposes of vest- economic injury’’ mean? ing and eligibility to participate. Also, if the course of taking FMLA leave and employ- (a) In order to deny restoration to a key plan requires an employee to be employed on ment is terminated, the employing office’s a specific date in order to be credited with a responsibility to continue FMLA leave, employee, an employing office must deter- year of service for vesting, contributions or maintain group health plan benefits and re- mine that the restoration of the employee to participation purposes, an employee on un- store the employee ceases at the time the employment will cause ‘‘substantial and paid FMLA leave on that date shall be employee is laid off, provided the employing grievous economic injury’’ to the operations deemed to have been employed on that date. office has no continuing obligations under a of the employing office, not whether the ab- However, unpaid FMLA leave periods need collective bargaining agreement or other- sence of the employee will cause such sub- not be treated as credited service for pur- wise. An employing office would have the stantial and grievous injury. (b) An employing office may take into ac- poses of benefit accrual, vesting and eligi- burden of proving that an employee would bility to participate. have been laid off during the FMLA leave pe- count its ability to replace on a temporary (5) Employees on unpaid FMLA leave are riod and, therefore, would not be entitled to basis (or temporarily do without) the em- to be treated as if they continued to work for restoration. ployee on FMLA leave. If permanent replace- purposes of changes to benefit plans. They (2) If a shift has been eliminated, or over- ment is unavoidable, the cost of then rein- are entitled to changes in benefits plans, ex- time has been decreased, an employee would stating the employee can be considered in cept those which may be dependent upon se- not be entitled to return to work that shift evaluating whether substantial and grievous niority or accrual during the leave period, or the original overtime hours upon restora- economic injury will occur from restoration; immediately upon return from leave or to tion. However, if a position on, for example, in other words, the effect on the operations the same extent they would have qualified if a night shift has been filled by another em- of the employing office of reinstating the no leave had been taken. For example if the ployee, the employee is entitled to return to employee in an equivalent position. benefit plan is predicated on a pre-estab- the same shift on which employed before (c) A precise test cannot be set for the lished number of hours worked each year and taking FMLA leave. level of hardship or injury to the employing the employee does not have sufficient hours (b) If an employee was hired for a specific office which must be sustained. If the rein- as a result of taking unpaid FMLA leave, the term or only to perform work on a discrete statement of a ‘‘key employee’’ threatens benefit is lost. (In this regard, § 825.209 ad- project, the employing office has no obliga- the economic viability of the employing of- dresses health benefits.) tion to restore the employee if the employ- fice, that would constitute ‘‘substantial and (e) Equivalent Terms and Conditions of ment term or project is over and the employ- grievous economic injury’’. A lesser injury Employment. An equivalent position must ing office would not otherwise have contin- which causes substantial, long-term eco- have substantially similar duties, condi- ued to employ the employee. nomic injury would also be sufficient. Minor tions, responsibilities, privileges and status (c) In addition to the circumstances ex- inconveniences and costs that the employing as the employee’s original position. plained above, an employing office may deny office would experience in the normal course (1) The employee must be reinstated to the job restoration to salaried eligible employees would certainly not constitute ‘‘substantial same or a geographically proximate worksite (‘‘key employees’’, as defined in paragraph and grievous economic injury’’. (i.e., one that does not involve a significant (c) of § 825.217) if such denial is necessary to (d) FMLA’s ‘‘substantial and grievous eco- increase in commuting time or distance) prevent substantial and grievous economic nomic injury’’ standard is different from and from where the employee had previously injury to the operations of the employing of- more stringent than the ‘‘undue hardship’’ been employed. If the employee’s original fice; or may delay restoration to an em- test under the ADA (see, also § 825.702). worksite has been closed, the employee is en- ployee who fails to provide a fitness for duty § 825.219 What are the rights of a key em- titled to the same rights as if the employee certificate to return to work under the con- ployee? had not been on leave when the worksite ditions described in § 825.310. (a) An employing office which believes that closed. For example, if an employing office (d) If the employee has been on a workers’ reinstatement may be denied to a key em- transfers all employees from a closed work- compensation absence during which FMLA ployee, must give written notice to the em- site to a new worksite in a different city, the leave has been taken concurrently, and after ployee at the time the employee gives notice employee on leave is also entitled to transfer 12 weeks of FMLA leave the employee is un- of the need for FMLA leave (or when FMLA under the same conditions as if he or she had able to return to work, the employee no leave commences, if earlier) that he or she continued to be employed. longer has the protections of FMLA and qualifies as a key employee. At the same (2) The employee is ordinarily entitled to must look to the workers’ compensation time, the employing office must also fully return to the same shift or the same or an statute or ADA, as made applicable by the inform the employee of the potential con- equivalent work schedule. CAA, for any relief or protections. sequences with respect to reinstatement and (3) The employee must have the same or an § 825.217 What is a ‘‘key employee’’? maintenance of health benefits if the em- equivalent opportunity for bonuses and other (a) A ‘‘key employee’’ is a salaried FMLA- ploying office should determine that sub- similar discretionary and non-discretionary eligible employee who is among the highest stantial and grievous economic injury to the payments. paid 10 percent of all the employees em- employing office’s operations will result if (4) FMLA does not prohibit an employing ployed by the employing office within 75 the employee is reinstated from FMLA office from accommodating an employee’s miles of the employee’s worksite. leave. If such notice cannot be given imme- request to be restored to a different shift, (b) The term ‘‘salaried’’ means paid on a diately because of the need to determine schedule, or position which better suits the salary basis, within the meaning of the whether the employee is a key employee, it employee’s personal needs on return from Board’s regulations at part 541, imple- shall be given as soon as practicable after leave, or to offer a promotion to a better po- menting section 203 of the CAA (2 U.S.C. being notified of a need for leave (or the sition. However, an employee cannot be in- 1313) (regarding employees who may qualify commencement of leave, if earlier). It is ex- duced by the employing office to accept a as exempt from the minimum wage and over- pected that in most circumstances there will

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00082 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4531 be no desire that an employee be denied res- (i) Filed any charge, or has instituted (or provides an employee handbook to all em- toration after FMLA leave and, therefore, caused to be instituted) any proceeding ployees that describes the employing office’s there would be no need to provide such no- under or related to the FMLA, as made ap- policies regarding leave, wages, attendance, tice. However, an employing office who fails plicable by the CAA; and similar matters, the handbook must in- to provide such timely notice will lose its (ii) Given, or is about to give, any informa- corporate information on FMLA rights and right to deny restoration even if substantial tion in connection with an inquiry or pro- responsibilities and the employing office’s and grievous economic injury will result ceeding relating to a right under the FMLA, policies regarding the FMLA, as made appli- from reinstatement. as made applicable by the CAA; cable by the CAA. Informational publica- (b) As soon as an employing office makes a (iii) Testified, or is about to testify, in any tions describing the provisions of the FMLA good faith determination, based on the facts inquiry or proceeding relating to a right as made applicable by the CAA are available available, that substantial and grievous eco- under the FMLA, as made applicable by the from the Office of Compliance and may be in- nomic injury to its operations will result if CAA. corporated in such employing office hand- a key employee who has given notice of the (b) Any violations of the FMLA, as made books or written policies. need for FMLA leave or is using FMLA leave applicable by the CAA, or of these regula- (2) If such an employing office does not is reinstated, the employing office shall no- tions constitute interfering with, restrain- have written policies, manuals, or handbooks tify the employee in writing of its deter- ing, or denying the exercise of rights pro- describing employee benefits and leave pro- mination, that it cannot deny FMLA leave, vided by the FMLA as made applicable by visions, the employing office shall provide and that it intends to deny restoration to the CAA. ‘‘Interfering with’’ the exercise of written guidance to an employee concerning employment on completion of the FMLA an employee’s rights would include, for ex- all the employee’s rights and obligations leave. It is anticipated that an employing of- ample, not only refusing to authorize FMLA under the FMLA as made applicable by the fice will ordinarily be able to give such no- leave, but discouraging an employee from CAA. This notice shall be provided to em- tice prior to the employee starting leave. using such leave. It would also include ma- ployees each time notice is given pursuant to The employing office must serve this notice nipulation by an employing office to avoid paragraph (b), and in accordance with the either in person or by certified mail. This no- responsibilities under FMLA, for example— provisions of that paragraph. Employing of- tice must explain the basis for the employing (1) [Reserved]; fices may duplicate and provide the em- office’s finding that substantial and grievous (2) changing the essential functions of the ployee a copy of the FMLA Fact Sheet avail- economic injury will result, and, if leave has job in order to preclude the taking of leave; able from the Office of Compliance to pro- commenced, must provide the employee a (3) reducing hours available to work in vide such guidance. (b)(1) The employing office shall also pro- reasonable time in which to return to work, order to avoid employee eligibility. vide the employee with written notice de- taking into account the circumstances, such (c) An employing office is prohibited from tailing the specific expectations and obliga- as the length of the leave and the urgency of discriminating against employees or pro- tions of the employee and explaining any the need for the employee to return. spective employees who have used FMLA consequences of a failure to meet these obli- (c) If an employee on leave does not return leave. For example, if an employee on leave gations. The written notice must be provided to work in response to the employing office’s without pay would otherwise be entitled to to the employee in a language in which the notification of intent to deny restoration, full benefits (other than health benefits), the employee is literate. Such specific notice the employee continues to be entitled to same benefits would be required to be pro- must include, as appropriate— maintenance of health benefits and the em- vided to an employee on unpaid FMLA leave. (i) that the leave will be counted against ploying office may not recover its cost of By the same token, employing offices cannot the employee’s annual FMLA leave entitle- health benefit premiums. A key employee’s use the taking of FMLA leave as a negative ment (see § 825.208); rights under FMLA continue unless and factor in employment actions, such as hir- (ii) any requirements for the employee to until either the employee gives notice that ing, promotions or disciplinary actions; nor furnish medical certification of a serious he or she no longer wishes to return to work, can FMLA leave be counted under ‘‘no fault’’ health condition and the consequences of or the employing office actually denies rein- attendance policies. failing to do so (see § 825.305); statement at the conclusion of the leave pe- (d) Employees cannot waive, nor may em- (iii) the employee’s right to substitute paid riod. ploying offices induce employees to waive, (d) After notice to an employee has been their rights under FMLA. For example, em- leave and whether the employing office will given that substantial and grievous eco- ployees (or their collective bargaining rep- require the substitution of paid leave, and nomic injury will result if the employee is resentatives) cannot ‘‘trade off’’ the right to the conditions related to any substitution; reinstated to employment, an employee is take FMLA leave against some other benefit (iv) any requirement for the employee to still entitled to request reinstatement at the offered by the employing office. This does make any premium payments to maintain end of the leave period even if the employee not prevent an employee’s voluntary and health benefits and the arrangements for did not return to work in response to the em- uncoerced acceptance (not as a condition of making such payments (see § 825.210), and the ploying office’s notice. The employing office employment) of a ‘‘light duty’’ assignment possible consequences of failure to make must then again determine whether there while recovering from a serious health condi- such payments on a timely basis (i.e., the will be substantial and grievous economic in- tion (see § 825.702(d)). In such a circumstance circumstances under which coverage may jury from reinstatement, based on the facts the employee’s right to restoration to the lapse); at that time. If it is determined that sub- same or an equivalent position is available (v) any requirement for the employee to stantial and grievous economic injury will until 12 weeks have passed within the 12- present a fitness-for-duty certificate to be result, the employing office shall notify the month period, including all FMLA leave restored to employment (see § 825.310); employee in writing (in person or by cer- taken and the period of ‘‘light duty’’. (vi) the employee’s status as a ‘‘key em- tified mail) of the denial of restoration. (e) Covered employees, and not merely eli- ployee’’ and the potential consequence that restoration may be denied following FMLA § 825.220 How are employees protected who gible employees, are protected from retalia- tion for opposing (e.g., file a complaint leave, explaining the conditions required for request leave or otherwise assert FMLA such denial (see § 825.218); rights? about) any practice which is unlawful under the FMLA, as made applicable by the CAA. (vii) the employee’s right to restoration to (a) The FMLA, as made applicable by the They are similarly protected if they oppose the same or an equivalent job upon return CAA, prohibits interference with an employ- any practice which they reasonably believe from leave (see §§ 825.214 and 825.604); and ee’s rights under the law, and with legal pro- to be a violation of the FMLA, as made ap- (viii) the employee’s potential liability for ceedings or inquiries relating to an employ- plicable by the CAA or regulations. payment of health insurance premiums paid ee’s rights. More specifically, the law con- by the employing office during the employ- SUBPART C—HOW DO EMPLOYEES LEARN OF tains the following employee protections: ee’s unpaid FMLA leave if the employee fails THEIR RIGHTS AND OBLIGATIONS UNDER THE (1) An employing office is prohibited from to return to work after taking FMLA leave FMLA, AS MADE APPLICABLE BY THE CAA, interfering with, restraining, or denying the (see § 825.213). exercise of (or attempts to exercise) any AND WHAT CAN AN EMPLOYING OFFICE RE- (2) The specific notice may include other rights provided by the FMLA as made appli- QUIRE OF AN EMPLOYEE? information—e.g., whether the employing of- cable by the CAA. § 825.300 [Reserved] fice will require periodic reports of the em- (2) An employing office is prohibited from § 825.301 What notices to employees are re- ployee’s status and intent to return to work, discharging or in any other way discrimi- quired of employing offices under the but is not required to do so. A prototype no- nating against any covered employee (wheth- FMLA as made applicable by the CAA? tice is contained in Appendix D of this part, er or not an eligible employee) for opposing (a)(1) If an employing office has any eligi- or may be obtained from the Office of Com- or complaining about any unlawful practice ble employees and has any written guidance pliance, which employing offices may adapt under the FMLA as made applicable by the to employees concerning employee benefits for their use to meet these specific notice re- CAA. or leave rights, such as in an employee hand- quirements. (3) All employing offices are prohibited book, information concerning both entitle- (c) Except as provided in this subpara- from discharging or in any other way dis- ments and employee obligations under the graph, the written notice required by para- criminating against any covered employee FMLA, as made applicable by the CAA, must graph (b) (and by subparagraph (a)(2) where (whether or not an eligible employee) be- be included in the handbook or other docu- applicable) must be provided to the employee cause that covered employee has— ment. For example, if an employing office no less often than the first time in each six-

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00083 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4532 CONGRESSIONAL RECORD — SENATE May 1, 1996 month period that an employee gives notice leave change or are extended, or were ini- plan allow less advance notice to the em- of the need for FMLA leave (if FMLA leave tially unknown. ploying office. For example, if an employee is taken during the six-month period). The (b) ‘‘As soon as practicable’’ means as soon (or employing office) elects to substitute notice shall be given within a reasonable as both possible and practical, taking into paid vacation leave for unpaid FMLA leave time after notice of the need for leave is account all of the facts and circumstances in (see § 825.207), and the employing office’s paid given by the employee—within one or two the individual case. For foreseeable leave vacation leave plan imposes no prior notifi- business days if feasible. If leave has already where it is not possible to give as much as 30 cation requirements for taking such vaca- begun, the notice should be mailed to the days notice, ‘‘as soon as practicable’’ ordi- tion leave, no advance notice may be re- employee’s address of record. narily would mean at least verbal notifica- quired for the FMLA leave taken in these (1) If the specific information provided by tion to the employing office within one or circumstances. On the other hand, FMLA no- the notice changes with respect to a subse- two business days of when the need for leave tice requirements would apply to a period of quent period of FMLA leave during the six- becomes known to the employee. unpaid FMLA leave, unless the employing of- month period, the employing office shall, (c) An employee shall provide at least fice imposes lesser notice requirements on within one or two business days of receipt of verbal notice sufficient to make the employ- employees taking leave without pay. ing office aware that the employee needs the employee’s notice of need for leave, pro- § 825.303 What are the requirements for an FMLA-qualifying leave, and the anticipated vide written notice referencing the prior no- employee to furnish notice to an employing timing and duration of the leave. The em- tice and setting forth any of the information office where the need for FMLA leave is not ployee need not expressly assert rights under in subparagraph (b) which has changed. For foreseeable? example, if the initial leave period were paid the FMLA as made applicable by the CAA, or even mention the FMLA, but may only state (a) When the approximate timing of the leave and the subsequent leave period would need for leave is not foreseeable, an em- be unpaid leave, the employing office may that leave is needed for an expected birth or adoption, for example. The employing office ployee should give notice to the employing need to give notice of the arrangements for office of the need for FMLA leave as soon as making premium payments. should inquire further of the employee if it is necessary to have more information about practicable under the facts and cir- (2)(i) Except as provided in subparagraph cumstances of the particular case. It is ex- (ii), if the employing office is requiring med- whether FMLA leave is being sought by the employee, and obtain the necessary details pected that an employee will give notice to ical certification or a ‘‘fitness-for-duty’’ re- the employing office within no more than port, written notice of the requirement shall of the leave to be taken. In the case of med- ical conditions, the employing office may one or two working days of learning of the be given with respect to each employee no- need for leave, except in extraordinary cir- tice of a need for leave. find it necessary to inquire further to deter- mine if the leave is because of a serious cumstances where such notice is not feasible. (ii) Subsequent written notification shall In the case of a medical emergency requiring not be required if the initial notice in the health condition and may request medical certification to support the need for such leave because of an employee’s own serious six-month period and the employing office health condition or to care for a family handbook or other written documents (if leave (see § 825.305). (d) An employing office may also require member with a serious health condition, any) describing the employing office’s leave an employee to comply with the employing written advance notice pursuant to an em- policies, clearly provided that certification office’s usual and customary notice and pro- ploying office’s internal rules and procedures or a ‘‘fitness-for-duty’’ report would be re- cedural requirements for requesting leave. may not be required when FMLA leave is in- quired (e.g., by stating that certification For example, an employing office may re- volved. would be required in all cases, by stating quire that written notice set forth the rea- (b) The employee should provide notice to that certification would be required in all sons for the requested leave, the anticipated the employing office either in person or by cases in which leave of more than a specified duration of the leave, and the anticipated telephone, telegraph, facsimile (‘‘fax’’) ma- number of days is taken, or by stating that start of the leave. However, failure to follow chine or other electronic means. Notice may a ‘‘fitness-for-duty’’ report would be required such internal employing office procedures be given by the employee’s spokesperson in all cases for back injuries for employees will not permit an employing office to dis- (e.g., spouse, adult family member or other in a certain occupation). Where subsequent allow or delay an employee’s taking FMLA responsible party) if the employee is unable written notice is not required, at least oral leave if the employee gives timely verbal or to do so personally. The employee need not notice shall be provided. (See § 825.305(a).) expressly assert rights under the FMLA, as (d) Employing offices are also expected to other notice. (e) When planning medical treatment, the made applicable by the CAA, or even men- responsively answer questions from employ- employee must consult with the employing tion the FMLA, but may only state that ees concerning their rights and responsibil- office and make a reasonable effort to sched- leave is needed. The employing office will be ities under the FMLA as made applicable ule the leave so as not to disrupt unduly the expected to obtain any additional required under the CAA. employing office’s operations, subject to the information through informal means. The (e) Employing offices furnishing FMLA-re- approval of the health care provider. Em- employee or spokesperson will be expected to quired notices to sensory impaired individ- ployees are ordinarily expected to consult provide more information when it can read- uals must also comply with all applicable re- with their employing offices prior to the ily be accomplished as a practical matter, quirements under law. scheduling of treatment in order to work out taking into consideration the exigencies of (f) If an employing office fails to provide the situation. notice in accordance with the provisions of a treatment schedule which best suits the § 825.304 What recourse do employing of- this section, the employing office may not needs of both the employing office and the fices have if employees fail to provide the take action against an employee for failure employee. If an employee who provides no- required notice? to comply with any provision required to be tice of the need to take FMLA leave on an set forth in the notice. intermittent basis for planned medical treat- (a) An employing office may waive employ- ment neglects to consult with the employing ees’ FMLA notice obligations or the employ- § 825.302 What notice does an employee have office to make a reasonable attempt to ar- ing office’s own internal rules on leave no- to give an employing office when the need range the schedule of treatments so as not to tice requirements. for FMLA leave is foreseeable? unduly disrupt the employing office’s oper- (b) If an employee fails to give 30 days no- (a) An employee must provide the employ- ations, the employing office may initiate tice for foreseeable leave with no reasonable ing office at least 30 days advance notice be- discussions with the employee and require excuse for the delay, the employing office fore FMLA leave is to begin if the need for the employee to attempt to make such ar- may delay the taking of FMLA leave until at the leave is foreseeable based on an expected rangements, subject to the approval of the least 30 days after the date the employee birth, placement for adoption or foster care, health care provider. provides notice to the employing office of or planned medical treatment for a serious (f) In the case of intermittent leave or the need for FMLA leave. health condition of the employee or of a fam- leave on a reduced leave schedule which is (c) In all cases, in order for the onset of an ily member. If 30 days notice is not prac- medically necessary, an employee shall ad- employee’s FMLA leave to be delayed due to ticable, such as because of a lack of knowl- vise the employing office, upon request, of lack of required notice, it must be clear that edge of approximately when leave will be re- the reasons why the intermittent/reduced the employee had actual notice of the FMLA quired to begin, a change in circumstances, leave schedule is necessary and of the sched- notice requirements. This condition would be or a medical emergency, notice must be ule for treatment, if applicable. The em- satisfied by the employing office’s proper given as soon as practicable. For example, an ployee and employing office shall attempt to posting, at the worksite where the employee employee’s health condition may require work out a schedule which meets the em- is employed, of the information regarding leave to commence earlier than anticipated ployee’s needs without unduly disrupting the the FMLA provided (pursuant to section before the birth of a child. Similarly, little employing office’s operations, subject to the 301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2)) by opportunity for notice may be given before approval of the health care provider. the Office of Compliance to the employing placement for adoption. Whether the leave is (g) An employing office may waive employ- office in a manner suitable for posting. Fur- to be continuous or is to be taken intermit- ees’ FMLA notice requirements. In addition, thermore, the need for leave and the approxi- tently or on a reduced schedule basis, notice an employing office may not require compli- mate date leave would be taken must have need only be given one time, but the em- ance with stricter FMLA notice require- been clearly foreseeable to the employee 30 ployee shall advise the employing office as ments where the provisions of a collective days in advance of the leave. For example, soon as practicable if dates of scheduled bargaining agreement or applicable leave knowledge that an employee would receive a

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00084 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4533 telephone call about the availability of a 825, Appendix B). The employing office may (ii) If the employee’s family member will child for adoption at some unknown point in use the Office of Compliance’s form, or Form need care only intermittently or on a re- the future would not be sufficient. WH–380, as revised, or another form con- duced leave schedule basis (i.e., part-time), § 825.305 When must an employee provide taining the same basic information; however, the probable duration of the need. medical certification to support FMLA no additional information may be required. (c) If the employing office’s sick or medical leave? In all instances the information on the form leave plan requires less information to be must relate only to the serious health condi- furnished in medical certifications than the (a) An employing office may require that tion for which the current need for leave ex- certification requirements of these regula- an employee’s leave to care for the employ- ists. The form identifies the health care pro- tions, and the employee or employing office ee’s seriously ill spouse, son, daughter, or vider and type of medical practice (including elects to substitute paid sick, vacation, per- parent, or due to the employee’s own serious pertinent specialization, if any), makes max- sonal or family leave for unpaid FMLA leave health condition that makes the employee imum use of checklist entries for ease in where authorized (see § 825.207), only the em- unable to perform one or more of the essen- completing the form, and contains required ploying office’s lesser sick leave certification tial functions of the employee’s position, be entries for: requirements may be imposed. supported by a certification issued by the (1) A certification as to which part of the § 825.307 What may an employing office do if health care provider of the employee or the definition of ‘‘serious health condition’’ (see it questions the adequacy of a medical cer- employee’s ill family member. An employing § 825.114), if any, applies to the patient’s con- tification? office must give notice of a requirement for dition, and the medical facts which support (a) If an employee submits a complete cer- medical certification each time a certifi- the certification, including a brief statement cation is required; such notice must be writ- tification signed by the health care provider, as to how the medical facts meet the criteria the employing office may not request addi- ten notice whenever required by § 825.301. An of the definition. employing office’s oral request to an em- tional information from the employee’s (2)(i) The approximate date the serious health care provider. However, a health care ployee to furnish any subsequent medical health condition commenced, and its prob- provider representing the employing office certification is sufficient. able duration, including the probable dura- (b) When the leave is foreseeable and at may contact the employee’s health care pro- tion of the patient’s present incapacity (de- vider, with the employee’s permission, for least 30 days notice has been provided, the fined to mean inability to work, attend employee should provide the medical certifi- purposes of clarification and authenticity of school or perform other regular daily activi- the medical certification. cation before the leave begins. When this is ties due to the serious health condition, not possible, the employee must provide the (1) If an employee is on FMLA leave run- treatment therefor, or recovery therefrom) if ning concurrently with a workers’ compensa- requested certification to the employing of- different. fice within the time frame requested by the tion absence, and the provisions of the work- (ii) Whether it will be necessary for the ers’ compensation statute permit the em- employing office (which must allow at least employee to take leave intermittently or to 15 calendar days after the employing office’s ploying office or the employing office’s rep- work on a reduced leave schedule basis (i.e., resentative to have direct contact with the request), unless it is not practicable under part-time) as a result of the serious health the particular circumstances to do so despite employee’s workers’ compensation health condition (see § 825.117 and § 825.203), and if care provider, the employing office may fol- the employee’s diligent, good faith efforts. so, the probable duration of such schedule. (c) In most cases, the employing office low the workers’ compensation provisions. (iii) If the condition is pregnancy or a (2) An employing office that has reason to should request that an employee furnish cer- chronic condition within the meaning of doubt the validity of a medical certification tification from a health care provider at the § 825.114(a)(2)(iii), whether the patient is pres- may require the employee to obtain a second time the employee gives notice of the need ently incapacitated and the likely duration opinion at the employing office’s expense. for leave or within two business days there- and frequency of episodes of incapacity. Pending receipt of the second (or third) med- after, or, in the case of unforeseen leave, (3)(i)(A) If additional treatments will be re- ical opinion, the employee is provisionally within two business days after the leave quired for the condition, an estimate of the entitled to the benefits of the FMLA as made commences. The employing office may re- probable number of such treatments. applicable by the CAA, including mainte- quest certification at some later date if the (B) If the patient’s incapacity will be inter- nance of group health benefits. If the certifi- employing office later has reason to question mittent, or will require a reduced leave cations do not ultimately establish the em- the appropriateness of the leave or its dura- schedule, an estimate of the probable num- tion. ber and interval between such treatments, ployee’s entitlement to FMLA leave, the (d) At the time the employing office re- actual or estimated dates of treatment if leave shall not be designated as FMLA leave quests certification, the employing office known, and period required for recovery if and may be treated as paid or unpaid leave must also advise an employee of the antici- any. under the employing office’s established pated consequences of an employee’s failure (ii) If any of the treatments referred to in leave policies. The employing office is per- to provide adequate certification. The em- subparagraph (i) will be provided by another mitted to designate the health care provider ploying office shall advise an employee provider of health services (e.g., physical to furnish the second opinion, but the se- whenever the employing office finds a cer- therapist), the nature of the treatments. lected health care provider may not be em- tification incomplete, and provide the em- (iii) If a regimen of continuing treatment ployed on a regular basis by the employing ployee a reasonable opportunity to cure any by the patient is required under the super- office. See also paragraphs (e) and (f) of this such deficiency. vision of the health care provider, a general section. (b) The employing office may not regularly (e) If the employing office’s sick or medical description of the regimen (see § 825.114(b)). contract with or otherwise regularly utilize leave plan imposes medical certification re- (4) If medical leave is required for the em- quirements that are less stringent than the the services of the health care provider fur- ployee’s absence from work because of the nishing the second opinion unless the em- certification requirements of these regula- employee’s own condition (including ab- tions, and the employee or employing office ploying office is located in an area where ac- sences due to pregnancy or a chronic condi- cess to health care is extremely limited (e.g., elects to substitute paid sick, vacation, per- tion), whether the employee— sonal or family leave for unpaid FMLA leave a rural area where no more than one or two (i) is unable to perform work of any kind; doctors practice in the relevant specialty in where authorized (see § 825.207), only the em- (ii) is unable to perform any one or more of ploying office’s less stringent sick leave cer- the vicinity). the essential functions of the employee’s po- (c) If the opinions of the employee’s and tification requirements may be imposed. sition, including a statement of the essential the employing office’s designated health care § 825.306 How much information may be re- functions the employee is unable to perform providers differ, the employing office may quired in medical certifications of a serious (see § 825.115), based on either information require the employee to obtain certification health condition? provided on a statement from the employing from a third health care provider, again at (a) The Office of Compliance has made office of the essential functions of the posi- the employing office’s expense. This third available an optional form (‘‘Certification of tion or, if not provided, discussion with the opinion shall be final and binding. The third Physician or Practitioner’’) for employees’ employee about the employee’s job func- health care provider must be designated or (or their family members’) use in obtaining tions; or approved jointly by the employing office and medical certification, including second and (iii) must be absent from work for treat- the employee. The employing office and the third opinions, from health care providers ment. employee must each act in good faith to at- that meets FMLA’s certification require- (5)(i) If leave is required to care for a fam- tempt to reach agreement on whom to select ments. (See Appendix B to these regula- ily member of the employee with a serious for the third opinion provider. If the employ- tions.) This optional form reflects certifi- health condition, whether the patient re- ing office does not attempt in good faith to cation requirements so as to permit the quires assistance for basic medical or per- reach agreement, the employing office will health care provider to furnish appropriate sonal needs or safety, or for transportation; be bound by the first certification. If the em- medical information within his or her or if not, whether the employee’s presence to ployee does not attempt in good faith to knowledge. provide psychological comfort would be ben- reach agreement, the employee will be bound (b) The Certification of Physician or Prac- eficial to the patient or assist in the pa- by the second certification. For example, an titioner form is modeled closely on Form tient’s recovery. The employee is required to employee who refuses to agree to see a doc- WH–380, as revised, which was developed by indicate on the form the care he or she will tor in the specialty in question may be fail- the Department of Labor (see 29 C.F.R. Part provide and an estimate of the time period. ing to act in good faith. On the other hand,

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00085 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4534 CONGRESSIONAL RECORD — SENATE May 1, 1996 an employing office that refuses to agree to the particular circumstances to do so despite particular health condition that caused the any doctor on a list of specialists in the ap- the employee’s diligent, good faith efforts. employee’s need for FMLA leave. The certifi- propriate field provided by the employee and (e) Any recertification requested by the cation itself need only be a simple statement whom the employee has not previously con- employing office shall be at the employee’s of an employee’s ability to return to work. A sulted may be failing to act in good faith. expense unless the employing office provides health care provider employed by the em- (d) The employing office is required to pro- otherwise. No second or third opinion on re- ploying office may contact the employee’s vide the employee with a copy of the second certification may be required. health care provider with the employee’s and third medical opinions, where applica- § 825.309 What notice may an employing of- permission, for purposes of clarification of ble, upon request by the employee. Re- fice require regarding an employee’s intent the employee’s fitness to return to work. No quested copies are to be provided within two to return to work? additional information may be acquired, and business days unless extenuating cir- (a) An employing office may require an clarification may be requested only for the cumstances prevent such action. employee on FMLA leave to report periodi- serious health condition for which FMLA (e) If the employing office requires the em- cally on the employee’s status and intent to leave was taken. The employing office may ployee to obtain either a second or third return to work. The employing office’s pol- not delay the employee’s return to work opinion the employing office must reimburse icy regarding such reports may not be dis- while contact with the health care provider an employee or family member for any rea- criminatory and must take into account all is being made. sonable ‘‘out of pocket’’ travel expenses in- of the relevant facts and circumstances re- (d) The cost of the certification shall be curred to obtain the second and third med- lated to the individual employee’s leave situ- borne by the employee and the employee is ical opinions. The employing office may not ation. not entitled to be paid for the time or travel require the employee or family member to (b) If an employee gives unequivocal notice costs spent in acquiring the certification. travel outside normal commuting distance of intent not to return to work, the employ- (e) The notice that employing offices are for purposes of obtaining the second or third ing office’s obligations under FMLA, as required to give to each employee giving no- medical opinions except in very unusual cir- made applicable by the CAA, to maintain tice of the need for FMLA leave regarding cumstances. health benefits (subject to requirements of their FMLA rights and obligations as made (f) In circumstances when the employee or COBRA or 5 U.S.C. 8905a, whichever is appli- applicable by the CAA (see § 825.301) shall ad- a family member is visiting in another coun- cable) and to restore the employee cease. vise the employee if the employing office try, or a family member resides in a another However, these obligations continue if an will require fitness-for-duty certification to country, and a serious health condition de- employee indicates he or she may be unable return to work. If the employing office has a velops, the employing office shall accept a to return to work but expresses a continuing handbook explaining employment policies medical certification as well as second and desire to do so. and benefits, the handbook should explain third opinions from a health care provider (c) It may be necessary for an employee to the employing office’s general policy regard- who practices in that country. take more leave than originally anticipated. ing any requirement for fitness-for-duty cer- Conversely, an employee may discover after § 825.308 Under what circumstances may an tification to return to work. Specific notice beginning leave that the circumstances have employing office request subsequent recer- shall also be given to any employee from changed and the amount of leave originally tifications of medical conditions? whom fitness-for-duty certification will be anticipated is no longer necessary. An em- required either at the time notice of the need (a) For pregnancy, chronic, or permanent/ ployee may not be required to take more long-term conditions under continuing su- for leave is given or immediately after leave FMLA leave than necessary to resolve the commences and the employing office is ad- pervision of a health care provider (as de- circumstance that precipitated the need for fined in § 825.114(a)(2) (ii), (iii) or (iv)), an em- vised of the medical circumstances requiring leave. In both of these situations, the em- the leave, unless the employee’s condition ploying office may request recertification no ploying office may require that the employee more often than every 30 days and only in changes from one that did not previously re- provide the employing office reasonable no- quire certification pursuant to the employ- connection with an absence by the employee, tice (i.e., within two business days) of the unless: ing office’s practice or policy. No second or changed circumstances where foreseeable. third fitness-for-duty certification may be (1) Circumstances described by the pre- The employing office may also obtain infor- vious certification have changed signifi- required. mation on such changed circumstances (f) An employing office may delay restora- cantly (e.g., the duration or frequency of ab- through requested status reports. tion to employment until an employee sub- sences, the severity of the condition, com- § 825.310 Under what circumstances may an mits a required fitness-for-duty certification plications); or employing office require that an employee unless the employing office has failed to pro- (2) The employing office receives informa- submit a medical certification that the em- vide the notices required in paragraph (e) of tion that casts doubt upon the employee’s ployee is able (or unable) to return to work this section. stated reason for the absence. (i.e., a ‘‘fitness-for-duty’’ report)? (g) An employing office is not entitled to (b)(1) If the minimum duration of the pe- (a) As a condition of restoring an employee certification of fitness to return to duty riod of incapacity specified on a certification whose FMLA leave was occasioned by the when the employee takes intermittent leave furnished by the health care provider is more employee’s own serious health condition as described in § 825.203. than 30 days, the employing office may not that made the employee unable to perform (h) When an employee is unable to return request recertification until that minimum the employee’s job, an employing office may to work after FMLA leave because of the duration has passed unless one of the condi- have a uniformly-applied policy or practice continuation, recurrence, or onset of the em- tions set forth in paragraph (c) (1), (2) or (3) that requires all similarly-situated employ- ployee’s or family member’s serious health of this section is met. ees (i.e., same occupation, same serious condition, thereby preventing the employing (2) For FMLA leave taken intermittently health condition) who take leave for such office from recovering its share of health or on a reduced leave schedule basis, the em- conditions to obtain and present certifi- benefit premium payments made on the em- ploying office may not request recertifi- cation from the employee’s health care pro- ployee’s behalf during a period of unpaid cation in less than the minimum period spec- vider that the employee is able to resume FMLA leave, the employing office may re- ified on the certification as necessary for work. quire medical certification of the employee’s such leave (including treatment) unless one (b) If the terms of a collective bargaining or the family member’s serious health condi- of the conditions set forth in paragraph (c) agreement govern an employee’s return to tion. (See § 825.213(a)(3).) The cost of the cer- (1), (2) or (3) of this section is met. work, those provisions shall be applied. tification shall be borne by the employee and (c) For circumstances not covered by para- Similarly, requirements under the Ameri- the employee is not entitled to be paid for graphs (a) or (b) of this section, an employ- cans with Disabilities Act (ADA), as made the time or travel costs spent in acquiring ing office may request recertification at any applicable by the CAA, that any return-to- the certification. reasonable interval, but not more often than work physical be job-related and consistent every 30 days, unless: with business necessity apply. For example, § 825.311 What happens if an employee fails (1) The employee requests an extension of an attorney could not be required to submit to satisfy the medical certification and/or leave; to a medical examination or inquiry just be- recertification requirements? (2) Circumstances described by the pre- cause her leg had been amputated. The es- (a) In the case of foreseeable leave, an em- vious certification have changed signifi- sential functions of an attorney’s job do not ploying office may delay the taking of cantly (e.g., the duration of the illness, the require use of both legs; therefore such an in- FMLA leave to an employee who fails to pro- nature of the illness, complications); or quiry would not be job related. An employing vide timely certification after being re- (3) The employing office receives informa- office may require a warehouse laborer, quested by the employing office to furnish tion that casts doubt upon the continuing whose back impairment affects the ability to such certification (i.e., within 15 calendar validity of the certification. lift, to be examined by an orthopedist, but days, if practicable), until the required cer- (d) The employee must provide the re- may not require this employee to submit to tification is provided. quested recertification to the employing of- an HIV test where the test is not related to (b) When the need for leave is not foresee- fice within the time frame requested by the either the essential functions of his/her job able, or in the case of recertification, an em- employing office (which must allow at least or to his/her impairment. ployee must provide certification (or recer- 15 calendar days after the employing office’s (c) An employing office may seek fitness- tification) within the time frame requested request), unless it is not practicable under for-duty certification only with regard to the by the employing office (which must allow at

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00086 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4535 least 15 days after the employing office’s re- efits, and restoration ceases unless the em- § 825.401 [Reserved] quest) or as soon as reasonably possible ployment relationship continues, for exam- §825.402 [Reserved] under the particular facts and cir- ple, by the employee remaining on paid § 825.403 [Reserved] cumstances. In the case of a medical emer- leave. An employee may not be required to § 825.404 [Reserved] gency, it may not be practicable for an em- take more leave than necessary to address SUBPART E—[RESERVED] ployee to provide the required certification the circumstances for which leave was SUBPART F—WHAT SPECIAL RULES APPLY TO within 15 calendar days. If an employee fails taken. If the employee is able to return to EMPLOYEES OF SCHOOLS? to provide a medical certification within a work earlier than anticipated, the employee § 825.600 To whom do the special rules apply? reasonable time under the pertinent cir- shall provide the employing office two busi- cumstances, the employing office may delay (a) Certain special rules apply to employ- ness days notice where feasible; the employ- the employee’s continuation of FMLA leave. ees of ‘‘local educational agencies’’, includ- ing office is required to restore the employee If the employee never produces the certifi- ing public school boards and elementary once such notice is given, or where such cation, the leave is not FMLA leave. schools under their jurisdiction, and private (c) When requested by the employing office prior notice was not feasible. elementary and secondary schools. The spe- pursuant to a uniformly applied policy for (f) An employing office may deny restora- cial rules do not apply to other kinds of edu- similarly-situated employees, the employee tion to employment, but not the taking of cational institutions, such as colleges and must provide medical certification at the FMLA leave and the maintenance of health universities, trade schools, and preschools. time the employee seeks reinstatement at benefits, to an eligible employee only under (b) Educational institutions are covered by the end of FMLA leave taken for the employ- the terms of the ‘‘key employee’’ exemption. FMLA as made applicable by the CAA (and ee’s serious health condition, that the em- Denial of reinstatement must be necessary these special rules). The usual requirements for employees to be ‘‘eligible’’ apply. ployee is fit for duty and able to return to to prevent ‘‘substantial and grievous eco- (c) The special rules affect the taking of work (see § 825.310(a)) if the employing office nomic injury’’ to the employing office’s op- intermittent leave or leave on a reduced has provided the required notice (see erations. The employing office must notify § 825.301(c)); the employing office may delay leave schedule, or leave near the end of an the employee of the employee’s status as a academic term (semester), by instructional restoration until the certification is pro- ‘‘key employee’’ and of the employing of- vided. In this situation, unless the employee employees. ‘‘Instructional employees’’ are fice’s intent to deny reinstatement on that provides either a fitness-for-duty certifi- those whose principal function is to teach basis when the employing office makes these cation or a new medical certification for a and instruct students in a class, a small determinations. If leave has started, the em- serious health condition at the time FMLA group, or an individual setting. This term in- leave is concluded, the employee may be ter- ployee must be given a reasonable oppor- cludes not only teachers, but also athletic minated. See also § 825.213(a)(3). tunity to return to work after being so noti- coaches, driving instructors, and special edu- fied. (See § 825.219.) § 825.312 Under what circumstances may an cation assistants such as signers for the employing office refuse to provide FMLA (g) An employee who fraudulently obtains hearing impaired. It does not include, and leave or reinstatement to eligible employ- FMLA leave from an employing office is not the special rules do not apply to, teacher as- ees? protected by job restoration or maintenance sistants or aides who do not have as their principal job actual teaching or instructing, (a) If an employee fails to give timely ad- of health benefits provisions of the FMLA as made applicable by the CAA. nor does it include auxiliary personnel such vance notice when the need for FMLA leave as counselors, psychologists, or curriculum is foreseeable, the employing office may (h) If the employing office has a uniformly- specialists. It also does not include cafeteria delay the taking of FMLA leave until 30 days applied policy governing outside or supple- workers, maintenance workers, or bus driv- after the date the employee provides notice mental employment, such a policy may con- ers. to the employing office of the need for FMLA tinue to apply to an employee while on (d) Special rules which apply to restoration leave. (See § 825.302.) FMLA leave. An employing office which does to an equivalent position apply to all em- (b) If an employee fails to provide in a not have such a policy may not deny benefits ployees of local educational agencies. timely manner a requested medical certifi- to which an employee is entitled under cation to substantiate the need for FMLA § 825.601 What limitations apply to the taking FMLA as made applicable by the CAA on leave due to a serious health condition, an of intermittent leave or leave on a reduced this basis unless the FMLA leave was fraudu- employing office may delay continuation of leave schedule? lently obtained as in paragraph (g) of this FMLA leave until an employee submits the (a) Leave taken for a period that ends with certificate. (See §§ 825.305 and 825.311.) If the section. the school year and begins the next semester employee never produces the certification, SUBPART D—WHAT ENFORCEMENT is leave taken consecutively rather than the leave is not FMLA leave. MECHANISMS DOES THE CAA PROVIDE? intermittently. The period during the sum- (c) If an employee fails to provide a re- mer vacation when the employee would not quested fitness-for-duty certification to re- § 825.400 What can employees do who believe have been required to report for duty is not turn to work, an employing office may delay that their rights under the FMLA as made counted against the employee’s FMLA leave restoration until the employee submits the applicable by the CAA have been violated? entitlement. An instructional employee who certificate. (See §§ 825.310 and 825.311.) is on FMLA leave at the end of the school (d) An employee has no greater right to re- (a) To commence a proceeding, a covered year must be provided with any benefits over instatement or to other benefits and condi- employee alleging a violation of the rights the summer vacation that employees would tions of employment than if the employee and protections of the FMLA made applica- normally receive if they had been working at had been continuously employed during the ble by the CAA must request counseling by the end of the school year. FMLA leave period. Thus, an employee’s the Office of Compliance not later than 180 (1) If an eligible instructional employee rights to continued leave, maintenance of days after the date of the alleged violation. needs intermittent leave or leave on a re- health benefits, and restoration cease under If a covered employee misses this deadline, duced leave schedule to care for a family FMLA, as made applicable by the CAA, if the covered employee will be unable to ob- member, or for the employee’s own serious and when the employment relationship ter- tain a remedy under the CAA. health condition, which is foreseeable based minates (e.g., layoff), unless that relation- (b) The following procedures are available on planned medical treatment, and the em- ship continues, for example, by the employee under title IV of the CAA for covered em- ployee would be on leave for more than 20 remaining on paid FMLA leave. If the em- ployees who believe that their rights under percent of the total number of working days over the period the leave would extend, the ployee is recalled or otherwise re-employed, FMLA as made applicable by the CAA have an eligible employee is immediately entitled employing office may require the employee been violated— to further FMLA leave for an FMLA-quali- to choose either to: (1) counseling; fying reason. An employing office must be (i) Take leave for a period or periods of a (2) mediation; and able to show, when an employee requests res- particular duration, not greater than the du- (3) election of either— toration, that the employee would not other- ration of the planned treatment; or (A) a formal complaint, filed with the Of- wise have been employed if leave had not (ii) Transfer temporarily to an available fice of Compliance, and a hearing before a been taken in order to deny restoration to alternative position for which the employee hearing officer, subject to review by the employment. (See § 825.216.) is qualified, which has equivalent pay and Board of Directors of the Office of Compli- (e) An employing office may require an em- benefits and which better accommodates re- ance, and judicial review in the United ployee on FMLA leave to report periodically curring periods of leave than does the em- States Court of Appeals for the Federal Cir- on the employee’s status and intention to re- ployee’s regular position. cuit; or turn to work. (See § 825.309.) If an employee (2) These rules apply only to a leave in- (B) a civil action in a district court of the unequivocally advises the employing office volving more than 20 percent of the working United States. either before or during the taking of leave days during the period over which the leave that the employee does not intend to return (c) Regulations of the Office of Compliance extends. For example, if an instructional em- to work, and the employment relationship is describing and governing these procedures ployee who normally works five days each terminated, the employee’s entitlement to are found at [proposed rules can be found at week needs to take two days of FMLA leave continued leave, maintenance of health ben- 141 Cong. Rec. S17012 (November 14, 1995)]. per week over a period of several weeks, the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00087 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4536 CONGRESSIONAL RECORD — SENATE May 1, 1996 special rules would apply. Employees taking work shall be charged against the employee’s § 825.701 [Reserved] leave which constitutes 20 percent or less of FMLA leave entitlement. The employing of- § 825.702 How does FMLA affect anti-discrimi- the working days during the leave period fice has the option not to require the em- nation laws as applied by section 201 of the would not be subject to transfer to an alter- ployee to stay on leave until the end of the CAA? native position. ‘‘Periods of a particular du- school term. Therefore, any additional leave (a) Nothing in FMLA modifies or affects ration’’ means a block, or blocks, of time be- required by the employing office to the end any applicable law prohibiting discrimina- ginning no earlier than the first day for of the school term is not counted as FMLA tion on the basis of race, religion, color, na- which leave is needed and ending no later leave; however, the employing office shall be tional origin, sex, age, or disability (e.g., than the last day on which leave is needed, required to maintain the employee’s group title VII of the Civil Rights Act of 1964, as and may include one uninterrupted period of health insurance and restore the employee to amended by the Pregnancy Discrimination leave. the same or equivalent job including other Act), as made applicable by the CAA. (b) If an instructional employee does not benefits at the conclusion of the leave. FMLA’s legislative history explains that give required notice of foreseeable FMLA FMLA is ‘‘not intended to modify or affect leave (see § 825.302) to be taken intermit- § 825.604 What special rules apply to restora- tion to ‘‘an equivalent position’’? the Rehabilitation Act of 1973, as amended, tently or on a reduced leave schedule, the the regulations concerning employment employing office may require the employee The determination of how an employee is which have been promulgated pursuant to to take leave of a particular duration, or to to be restored to ‘‘an equivalent position’’ that statute, or the Americans with Disabil- transfer temporarily to an alternative posi- upon return from FMLA leave will be made ities Act of 1990, or the regulations issued tion. Alternatively, the employing office on the basis of ‘‘established school board under that Act. Thus, the leave provisions of may require the employee to delay the tak- policies and practices, private school policies the [FMLA] are wholly distinct from the rea- ing of leave until the notice provision is met. and practices, and collective bargaining sonable accommodation obligations of em- See § 825.207(h). agreements’’. The ‘‘established policies’’ and ployers covered under the [ADA] * * * or the § 825.602 What limitations apply to the taking collective bargaining agreements used as a Federal government itself. The purpose of of leave near the end of an academic term? basis for restoration must be in writing, the FMLA is to make leave available to eli- (a) There are also different rules for in- must be made known to the employee prior gible employees and employing offices with- structional employees who begin leave more to the taking of FMLA leave, and must in its coverage, and not to limit already ex- than five weeks before the end of a term, less clearly explain the employee’s restoration isting rights and protection’’. S. Rep. No. 3, than five weeks before the end of a term, and rights upon return from leave. Any estab- 103d Cong., 1st Sess. 38 (1993). An employing less than three weeks before the end of a lished policy which is used as the basis for office must therefore provide leave under term. Regular rules apply except in cir- restoration of an employee to ‘‘an equivalent whichever statutory provision provides the cumstances when: position’’ must provide substantially the greater rights to employees. (1) An instructional employee begins leave same protections as provided in the FMLA, (b) If an employee is a qualified individual more than five weeks before the end of a as made applicable by the CAA, for rein- with a disability within the meaning of the term. The employing office may require the stated employees. See § 825.215. In other Americans with Disabilities Act (ADA), the employee to continue taking leave until the words, the policy or collective bargaining employing office must make reasonable ac- end of the term if— agreement must provide for restoration to commodations, etc., barring undue hardship, (i) the leave will last at least three weeks, an ‘‘equivalent position’’ with equivalent in accordance with the ADA. At the same and employment benefits, pay, and other terms time, the employing office must afford an (ii) the employee would return to work and conditions of employment. For example, employee his or her FMLA rights. ADA’s during the three-week period before the end an employee may not be restored to a posi- ‘‘disability’’ and FMLA’s ‘‘serious health of the term. tion requiring additional licensure or certifi- condition’’ are different concepts, and must (2) The employee begins leave for a purpose cation. be analyzed separately. FMLA entitles eligi- other than the employee’s own serious SUBPART G—HOW DO OTHER LAWS, EMPLOY- ble employees to 12 weeks of leave in any 12- health condition during the five-week period ING OFFICE PRACTICES, AND COLLECTIVE month period, whereas the ADA allows an in- before the end of a term. The employing of- BARGAINING AGREEMENTS AFFECT EM- determinate amount of leave, barring undue fice may require the employee to continue PLOYEE RIGHTS UNDER THE FMLA AS MADE hardship, as a reasonable accommodation. taking leave until the end of the term if— APPLICABLE BY THE CAA? FMLA requires employing offices to main- (i) the leave will last more than two weeks, tain employees’ group health plan coverage and § 825.700 What if an employing office provides during FMLA leave on the same conditions (ii) the employee would return to work more generous benefits than required by as coverage would have been provided if the during the two-week period before the end of FMLA as made applicable by the CAA? employee had been continuously employed the term. (a) An employing office must observe any during the leave period, whereas ADA does (3) The employee begins leave for a purpose employment benefit program or plan that not require maintenance of health insurance other than the employee’s own serious provides greater family or medical leave unless other employees receive health insur- health condition during the three-week pe- rights to employees than the rights estab- ance during leave under the same cir- riod before the end of a term, and the leave lished by the FMLA. Conversely, the rights cumstances. will last more than five working days. The established by the FMLA, as made applicable (c)(1) A reasonable accommodation under employing office may require the employee by the CAA, may not be diminished by any the ADA might be accomplished by providing to continue taking leave until the end of the employment benefit program or plan. For ex- an individual with a disability with a part- term. time job with no health benefits, assuming (b) For purposes of these provisions, ‘‘aca- ample, a provision of a collective bargaining agreement (CBA) which provides for rein- the employing office did not ordinarily pro- demic term’’ means the school semester, vide health insurance for part-time employ- which typically ends near the end of the cal- statement to a position that is not equiva- lent because of seniority (e.g., provides less- ees. However, FMLA would permit an em- endar year and the end of spring each school ployee to work a reduced leave schedule year. In no case may a school have more er pay) is superseded by FMLA. If an employ- ing office provides greater unpaid family until the equivalent of 12 workweeks of leave than two academic terms or semesters each were used, with group health benefits main- year for purposes of FMLA as made applica- leave rights than are afforded by FMLA, the employing office is not required to extend tained during this period. FMLA permits an ble by the CAA. An example of leave falling employing office to temporarily transfer an within these provisions would be where an additional rights afforded by FMLA, such as maintenance of health benefits (other than employee who is taking leave intermittently employee plans two weeks of leave to care or on a reduced leave schedule to an alter- for a family member which will begin three through COBRA or 5 U.S.C. 8905a, whichever is applicable), to the additional leave period native position, whereas the ADA allows an weeks before the end of the term. In that sit- accommodation of reassignment to an equiv- uation, the employing office could require not covered by FMLA. If an employee takes paid or unpaid leave and the employing of- alent, vacant position only if the employee the employee to stay out on leave until the cannot perform the essential functions of the end of the term. fice does not designate the leave as FMLA leave, the leave taken does not count against employee’s present position and an accom- § 825.603 Is all leave taken during ‘‘periods of an employee’s FMLA entitlement. modation is not possible in the employee’s a particular duration’’ counted against the present position, or an accommodation in FMLA leave entitlement? (b) Nothing in the FMLA, as made applica- the employee’s present position would cause (a) If an employee chooses to take leave for ble by the CAA, prevents an employing office an undue hardship. The examples in the fol- ‘‘periods of a particular duration’’ in the from amending existing leave and employee lowing paragraphs of this section dem- case of intermittent or reduced schedule benefit programs, provided they comply with onstrate how the two laws would interact leave, the entire period of leave taken will FMLA as made applicable by the CAA. How- with respect to a qualified individual with a count as FMLA leave. ever, nothing in the FMLA, as made applica- disability. (b) In the case of an employee who is re- ble by the CAA, is intended to discourage (2) A qualified individual with a disability quired to take leave until the end of an aca- employing offices from adopting or retaining who is also an ‘‘eligible employee’’ entitled demic term, only the period of leave until more generous leave policies. to FMLA leave requests 10 weeks of medical the employee is ready and able to return to (c) [Reserved]. leave as a reasonable accommodation, which

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00088 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4537 the employing office grants because it is not permitted but not required to accept the po- (i) Requires periodic visits for treatment an undue hardship. The employing office ad- sition (see § 825.220(d)). As a result, the em- by a health care provider, or by a nurse or vises the employee that the 10 weeks of leave ployee may no longer qualify for payments physician’s assistant under direct super- is also being designated as FMLA leave and from the workers’ compensation benefit vision of a health care provider; will count towards the employee’s FMLA plan, but the employee is entitled to con- (ii) Continues over an extended period of leave entitlement. This designation does not tinue on unpaid FMLA leave either until the time (including recurring episodes of a single prevent the parties from also treating the employee is able to return to the same or underlying condition); and leave as a reasonable accommodation and re- equivalent job the employee left or until the (iii) May cause episodic rather than a con- instating the employee into the same job, as 12-week FMLA leave entitlement is ex- tinuing period of incapacity (e.g., asthma, required by the ADA, rather than an equiva- hausted. See § 825.207(d)(2). If the employee diabetes, epilepsy, etc.). lent position under FMLA, if that is the returning from the workers’ compensation (4) A period of incapacity which is perma- greater right available to the employee. At injury is a qualified individual with a dis- nent or long-term due to a condition for the same time, the employee would be enti- ability, he or she will have rights under the which treatment may not be effective. The tled under FMLA to have the employing of- ADA. employee or family member must be under fice maintain group health plan coverage (e) If an employing office requires certifi- the continuing supervision of, but need not during the leave, as that requirement pro- cations of an employee’s fitness for duty to be receiving active treatment by, a health vides the greater right to the employee. return to work, as permitted by FMLA under care provider. Examples include Alzheimer’s, (3) If the same employee needed to work a uniform policy, it must comply with the a severe stroke, or the terminal stages of a part-time (a reduced leave schedule) after re- ADA requirement that a fitness for duty disease. turning to his or her same job, the employee physical be job-related and consistent with (5) Any period of absence to receive mul- would still be entitled under FMLA to have business necessity. tiple treatments (including any period of re- group health plan coverage maintained for (f) Under title VII of the Civil Rights Act covery therefrom) by a health care provider the remainder of the two-week equivalent of of 1964, as amended by the Pregnancy Dis- or by a provider of health care services under FMLA leave entitlement, notwithstanding crimination Act, and as made applicable by orders of, or on referral by, a health care an employing office policy that part-time the CAA, an employing office should provide provider, either for restorative surgery after employees do not receive health insurance. the same benefits for women who are preg- an accident or other injury, or for a condi- This employee would be entitled under the nant as the employing office provides to tion that would likely result in a period of ADA to reasonable accommodations to en- other employees with short-term disabil- incapacity of more than three consecutive able the employee to perform the essential ities. Because title VII does not require em- calendar days in the absence of medical functions of the part-time position. In addi- ployees to be employed for a certain period intervention or treatment, such as cancer tion, because the employee is working a of time to be protected, an employee em- (chemotherapy, radiation, etc.), severe ar- part-time schedule as a reasonable accom- ployed for less than 12 months by any em- thritis (physical therapy), kidney disease (di- modation, the employee would be shielded ploying office (and, therefore, not an ‘‘eligi- alysis). from FMLA’s provision for temporary as- ble’’ employee under FMLA, as made appli- Covered employee—The term ‘‘covered em- signment to a different alternative position. cable by the CAA) may not be denied mater- ployee’’, as defined in the CAA, means any Once the employee has exhausted his or her nity leave if the employing office normally employee of—(1) the House of Representa- remaining FMLA leave entitlement while provides short-term disability benefits to tives; (2) the Senate; (3) the Capitol Guide working the reduced (part-time) schedule, if employees with the same tenure who are ex- Service; (4) the Capitol Police; (5) the Con- the employee is a qualified individual with a periencing other short-term disabilities. gressional Budget Office; (6) the Office of the disability, and if the employee is unable to (g) For further information on Federal Architect of the Capitol; (7) the Office of the return to the same full-time position at that anti-discrimination laws applied by section Attending Physician; (8) the Office of Com- time, the employee might continue to work 201 of the CAA (2 U.S.C. 1311), including title pliance; or (9) the Office of Technology As- part-time as a reasonable accommodation, VII, the Rehabilitation Act, and the ADA, in- sessment. barring undue hardship; the employee would dividuals are encouraged to contact the Of- Eligible employee—The term ‘‘eligible em- then be entitled to only those employment fice of Compliance. ployee’’, as defined in the CAA, means a cov- benefits ordinarily provided by the employ- SUBPART H—DEFINITIONS ered employee who has been employed in any ing office to part-time employees. employing office for 12 months and for at § 825.800 Definitions. (4) At the end of the FMLA leave entitle- least 1,250 hours of employment during the ment, an employing office is required under For purposes of this part: previous 12 months. FMLA to reinstate the employee in the same ADA means the Americans With Disabil- Employ means to suffer or permit to work. or an equivalent position, with equivalent ities Act (42 U.S.C. 12101 et seq.). Employee means an employee as defined in pay and benefits, to that which the employee CAA means the Congressional Account- the CAA and includes an applicant for em- held when leave commenced. The employing ability Act of 1995 (Pub. Law 104–1, 109 Stat. ployment and a former employee. office’s FMLA obligations would be satisfied 3, 2 U.S.C. 1301 et seq.). Employee employed in an instructional ca- if the employing office offered the employee COBRA means the continuation coverage pacity: See Teacher. an equivalent full-time position. If the em- requirements of title X of the Consolidated Employee of the Capitol Police—The term ployee were unable to perform the essential Omnibus Budget Reconciliation Act of 1986 ‘‘employee of the Capitol Police’’ includes functions of that equivalent position even (Pub. Law 99–272, title X, section 10002; 100 any member or officer of the Capitol Police. with reasonable accommodation, because of Stat. 227; as amended; 29 U.S.C. 1161–1168). Employee of the House of Representa- a disability, the ADA may require the em- Continuing treatment means: A serious tives—The term ‘‘employee of the House of ploying office to make a reasonable accom- health condition involving continuing treat- Representatives’’ includes an individual oc- modation at that time by allowing the em- ment by a health care provider includes any cupying a position the pay for which is dis- ployee to work part-time or by reassigning one or more of the following: bursed by the Clerk of the House of Rep- the employee to a vacant position, barring (1) A period of incapacity (i.e., inability to resentatives, or another official designated undue hardship. work, attend school or perform other regular by the House of Representatives, or any em- (d)(1) If FMLA entitles an employee to daily activities due to the serious health ployment position in an entity that is paid leave, an employing office may not, in lieu of condition, treatment therefor, or recovery with funds derived from the clerk-hire allow- FMLA leave entitlement, require an em- therefrom) of more than three consecutive ance of the House of Representatives but not ployee to take a job with a reasonable ac- calendar days, and any subsequent treat- any such individual employed by any entity commodation. However, ADA may require ment or period of incapacity relating to the listed in subparagraphs (3) through (9) under that an employing office offer an employee same condition, that also involves: ‘‘covered employee’’ above. the opportunity to take such a position. An (i) Treatment two or more times by a Employee of the Office of the Architect of employing office may not change the essen- health care provider, by a nurse or physi- the Capitol—The term ‘‘employee of the Of- tial functions of the job in order to deny cian’s assistant under direct supervision of a fice of the Architect of the Capitol’’ includes FMLA leave. See § 825.220(b). health care provider, or by a provider of any employee of the Office of the Architect (2) An employee may be on a workers’ com- health care services (e.g., physical therapist) of the Capitol, the Botanic Garden, or the pensation absence due to an on-the-job in- under orders of, or on referral by, a health Senate Restaurants. jury or illness which also qualifies as a seri- care provider; or Employee of the Senate—The term ‘‘em- ous health condition under FMLA. The (ii) Treatment by a health care provider on ployee of the Senate’’ includes any employee workers’ compensation absence and FMLA at least one occasion which results in a regi- whose pay is disbursed by the Secretary of leave may run concurrently (subject to prop- men of continuing treatment under the su- the Senate, but not any such individual em- er notice and designation by the employing pervision of the health care provider. ployed by any entity listed in subparagraphs office). At some point the health care pro- (2) Any period of incapacity due to preg- (3) through (9) under ‘‘covered employee’’ vider providing medical care pursuant to the nancy, or for prenatal care. above. workers’ compensation injury may certify (3) Any period of incapacity or treatment Employing Office—The term ‘‘employing the employee is able to return to work in a for such incapacity due to a chronic serious office’’, as defined in the CAA, means— ‘‘light duty’’ position. If the employing of- health condition. A chronic serious health (1) the personal office of a Member of the fice offers such a position, the employee is condition is one which: House of Representatives or of a Senator;

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00089 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4538 CONGRESSIONAL RECORD — SENATE May 1, 1996 (2) a committee of the House of Represent- benefits manager will accept certification of (2) Treatment by a health care provider on atives or the Senate or a joint committee; the existence of a serious health condition to at least one occasion which results in a regi- (3) any other office headed by a person substantiate a claim for benefits. men of continuing treatment under the su- with the final authority to appoint, hire, dis- (6) A health care provider as defined above pervision of the health care provider. charge, and set the terms, conditions, or who practices in a country other than the (B) Any period of incapacity due to preg- privileges of the employment of an employee United States, who is licensed to practice in nancy, or for prenatal care. of the House of Representatives or the Sen- accordance with the laws and regulations of (C) Any period of incapacity or treatment ate; or that country. for such incapacity due to a chronic serious (4) the Capitol Guide Board, the Capitol ‘‘Incapable of self-care’’ means that the in- health condition. A chronic serious health Police Board, the Congessional Budget Of- dividual requires active assistance or super- condition is one which: fice, the Office of the Architect of the Cap- vision to provide daily self-care in several of (1) Requires periodic visits for treatment the ‘‘activities of daily living’’ (ADLs) or itol, the Office of the Attending Physician, by a health care provider, or by a nurse or the Office of Compliance, and the Office of ‘‘instrumental activities of daily living’’ physician’s assistant under direct super- Technology Assessment. (IADLs). Activities of daily living include Employment benefits means all benefits adaptive activities such as caring appro- vision of a health care provider; provided or made available to employees by priately for one’s grooming and hygiene, (2) Continues over an extended period of an employing office, including group life in- bathing, dressing and eating. Instrumental time (including recurring episodes of a single surance, health insurance, disability insur- activities of daily living include cooking, underlying condition); and ance, sick leave, annual leave, educational cleaning, shopping, taking public transpor- (3) May cause episodic rather than a con- benefits, and pensions, regardless of whether tation, paying bills, maintaining a residence, tinuing period of incapacity (e.g., asthma, such benefits are provided by a practice or using telephones and directories, using a diabetes, epilepsy, etc.). written policy of an employing office or post office, etc. (D) A period of incapacity which is perma- through an employee benefit plan. The term Instructional employee: See Teacher. nent or long-term due to a condition for does not include non-employment related ob- Intermittent leave means leave taken in which treatment may not be effective. The ligations paid by employees through vol- separate periods of time due to a single ill- employee or family member must be under untary deductions such as supplemental in- ness or injury, rather than for one contin- the continuing supervision of, but need not surance coverage. (See § 825.209(a)). uous period of time, and may include leave of be receiving active treatment by, a health FLSA means the Fair Labor Standards Act periods from an hour or more to several care provider. Examples include Alzheimer’s, (29 U.S.C. 201 et seq.). weeks. Examples of intermittent leave would a severe stroke, or the terminal stages of a FMLA means the Family and Medical include leave taken on an occasional basis disease. Leave Act of 1993, Public Law 103–3 (Feb- for medical appointments, or leave taken (E) Any period of absence to receive mul- ruary 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et several days at a time spread over a period of tiple treatments (including any period of re- seq.). six months, such as for chemotherapy. covery therefrom) by a health care provider Group health plan means the Federal Em- Mental disability: See Physical or mental or by a provider of health care services under ployees Health Benefits Program and any disability. other plan of, or contributed to by, an em- Office of Compliance means the inde- orders of, or on referral by, a health care ploying office (including a self-insured plan) pendent office established in the legislative provider, either for restorative surgery after to provide health care (directly or otherwise) branch under section 301 of the CAA (2 U.S.C. an accident or other injury, or for a condi- to the employing office’s employees, former 1381). tion that would likely result in a period of employees, or the families of such employees Parent means the biological parent of an incapacity of more than three consecutive or former employees. For purposes of FMLA, employee or an individual who stands or calendar days in the absence of medical as made applicable by the CAA, the term stood in loco parentis to an employee when intervention or treatment, such as cancer ‘‘group health plan’’ shall not include an in- the employee was a child. (chemotherapy, radiation, etc.), severe ar- surance program providing health coverage Physical or mental disability means a thritis (physical therapy), kidney disease (di- under which employees purchase individual physical or mental impairment that substan- alysis). policies from insurers provided that— tially limits one or more of the major life ac- (2) Treatment for purposes of paragraph (1) (1) no contributions are made by the em- tivities of an individual. See the Americans of this definition includes (but is not limited ploying office; with Disabilities Act (ADA), as made appli- to) examinations to determine if a serious (2) participation in the program is com- cable by section 201(a)(3) of the CAA (2 U.S.C. health condition exists and evaluations of pletely voluntary for employees; 1311(a)(3)). the condition. Treatment does not include (3) the sole functions of the employing of- Reduced leave schedule means a leave routine physical examinations, eye examina- fice with respect to the program are, without schedule that reduces the usual number of tions, or dental examinations. Under para- endorsing the program, to permit the insurer hours per workweek, or hours per workday, graph (1)(ii)(A)(2) of this definition, a regi- to publicize the program to employees, to of an employee. men of continuing treatment includes, for Secretary means the Secretary of Labor or collect premiums through payroll deductions example, a course of prescription medication and to remit them to the insurer; authorized representative. Serious health condition entitling an em- (e.g., an antibiotic) or therapy requiring spe- (4) the employing office receives no consid- cial equipment to resolve or alleviate the eration in the form of cash or otherwise in ployee to FMLA leave means: (1) An illness, injury, impairment, or phys- health condition (e.g., oxygen). A regimen of connection with the program, other than continuing treatment that includes the tak- reasonable compensation, excluding any ical or mental condition that involves: (i) Inpatient care (i.e., an overnight stay) ing of over-the-counter medications such as profit, for administrative services actually aspirin, antihistamines, or salves; or bed- rendered in connection with payroll deduc- in a hospital, hospice, or residential medical care facility, including any period of inca- rest, drinking fluids, exercise, and other tion; and similar activities that can be initiated with- (5) the premium charged with respect to pacity (for purposes of this section, defined out a visit to a health care provider, is not, such coverage does not increase in the event to mean inability to work, attend school or by itself, sufficient to constitute a regimen the employment relationship terminates. perform other regular daily activities due to Health care provider means: the serious health condition, treatment of continuing treatment for purposes of (1) A doctor of medicine or osteopathy who therefor, or recovery therefrom), or any sub- FMLA leave. is authorized to practice medicine or surgery sequent treatment in connection with such (3) Conditions for which cosmetic treat- by the State in which the doctor practices; inpatient care; or ments are administered (such as most treat- or (ii) Continuing treatment by a health care ments for acne or plastic surgery) are not (2) Podiatrists, dentists, clinical psycholo- provider. A serious health condition involv- ‘‘serious health conditions’’ unless inpatient gists, optometrists, and chiropractors (lim- ing continuing treatment by a health care hospital care is required or unless complica- ited to treatment consisting of manual ma- provider includes: tions develop. Ordinarily, unless complica- nipulation of the spine to correct a sub- (A) A period of incapacity (i.e., inability to tions arise, the common cold, the flu, ear luxation as demonstrated by X-ray to exist) work, attend school or perform other regular aches, upset stomach, minor ulcers, head- authorized to practice in the State and per- daily activities due to the serious health aches other than migraine, routine dental or forming within the scope of their practice as condition, treatment therefor, or recovery orthodontia problems, periodontal disease, defined under State law; and therefrom) of more than three consecutive etc., are examples of conditions that do not (3) Nurse practitioners, nurse-midwives calendar days, including any subsequent meet the definition of a serious health condi- and clinical social workers who are author- treatment or period of incapacity relating to tion and do not qualify for FMLA leave. Re- ized to practice under State law and who are the same condition, that also involves: storative dental or plastic surgery after an performing within the scope of their practice (1) Treatment two or more times by a injury or removal of cancerous growths are as defined under State law; and health care provider, by a nurse or physi- serious health conditions provided all the (4) Christian Science practitioners listed cian’s assistant under direct supervision of a other conditions of this regulation are met. with the First Church of Christ, Scientist in health care provider, or by a provider of Mental illness resulting from stress or aller- Boston, Massachusetts. health care services (e.g., physical therapist) gies may be serious health conditions, but (5) Any health care provider from whom an under orders of, or on referral by, a health only if all the conditions of this section are employing office or a group health plan’s care provider; or met.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00090 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4539 (4) Substance abuse may be a serious (6) llll, or To be completed by the employee needing health condition if the conditions of this sec- family leave to care for a family member: None of the above llll tion are met. However, FMLA leave may State the care you will provide and an esti- only be taken for treatment for substance 4. Describe the medical facts which support mate of the period during which care will be abuse by a health care provider or by a pro- your certification, including a brief state- provided, including a schedule if leave is to vider of health care services on referral by a ment as to how the medical facts meet the be taken intermittently or if it will be nec- health care provider. On the other hand, ab- criteria of one of these categories: essary for you to work less than a full sched- sence because of the employee’s use of the ule: substance, rather than for treatment, does 5.a. State the approximate date the condi- tion commenced, and the probable duration not qualify for FMLA leave. (Employee signature) (5) Absences attributable to incapacity of the condition (and also the probable dura- tion of the patient’s present incapacity 2 if under paragraphs (1)(ii) (B) or (C) of this def- (Date) inition qualify for FMLA leave even though different): the employee or the immediate family mem- b. Will it be necessary for the employee to A ‘‘Serious Health Condition’’ means an ill- ber does not receive treatment from a health take work only intermittently or to work on ness, injury, impairment, or physical or care provider during the absence, and even if a less than full schedule as a result of the mental condition that involves one of the the absence does not last more than three condition (including for treatment described following: days. For example, an employee with asthma in Item 6 below)? llll may be unable to report for work due to the 1. Hospital Care.—Inpatient care (i.e., an onset of an asthma attack or because the If yes, give probable duration: overnight stay) in a hospital, hospice, or res- employee’s health care provider has advised c. If the condition is a chronic condition idential medical care facility, including any the employee to stay home when the pollen (condition #4) or pregnancy, state whether period of incapacity 1 or subsequent treat- count exceeds a certain level. An employee the patient is presently incapacitated 2 and ment in connection with or consequent to who is pregnant may be unable to report to the likely duration and frequency of episodes such inpatient care. work because of severe morning sickness. of incapacity 2: Son or daughter means a biological, adopt- 2. Absence Plus Treatment.—A period of in- ed, or foster child, a stepchild, a legal ward, 6.a. If additional treatments will be required capacity 2 of more than three consecutive or a child of a person standing in loco for the condition, provide an estimate of the calendar days (including any subsequent parentis, who is under 18 years of age or 18 probable number of such treatments: treatment or period of incapacity 2 relating years of age or older and incapable of self- If the patient will be absent from work or to the same condition), that also involves: care because of a mental or physical dis- other daily activities because of treatment (1) Treatment 3 two or more times by a ability. on an intermittent or part-time basis, also health care provider, by a nurse or physi- Spouse means a husband or wife as defined provide an estimate of the probable number cian’s assistant under direct supervision of a or recognized under State law for purposes of and interval between such treatments, ac- health care provider, or by a provider of marriage in the State where the employee tual or estimated dates of treatment if health care services (e.g., physical therapist) resides, including common law marriage in known, and period required for recovery if under orders of, or on referral by, a health States where it is recognized. any: care provider; or State means any State of the United States or the District of Columbia or any b. If any of these treatments will be provided (2) Treatment by a health care provider on at Territory or possession of the United States. by another provider of health services (e.g., least one occasion which results in a regimen Teacher (or employee employed in an in- physical therapist), please state the nature of continuing treatment 4 under the super- structional capacity, or instructional em- of the treatments: vision of the health care provider. ployee) means an employee employed prin- c. If a regimen of continuing treatment by cipally in an instructional capacity by an 3. Pregnancy.—Any period of incapacity due the patient is required under your super- to pregnancy, or for prenatal care. educational agency or school whose principal vision, provide a general description of such function is to teach and instruct students in regimen (e.g., prescription drugs, physical 4. Chronic Conditions Requiring Treat- a class, a small group, or an individual set- therapy requiring special equipment): ments.—A chronic condition which: ting, and includes athletic coaches, driving instructors, and special education assistants 7.a. If medical leave is required for the em- (1) Requires periodic visits for treatment by such as signers for the hearing impaired. The ployee’s absence from work because of the a health care provider, or by a nurse or phy- term does not include teacher assistants or employee’s own condition (including ab- sician’s assistant under direct supervision of aides who do not have as their principal sences due to pregnancy or a chronic condi- a health care provider; tion), is the employee unable to perform function actual teaching or instructing, nor (2) Continues over an extended period of time work of any kind? llll auxiliary personnel such as counselors, psy- (including recurring episodes of a single un- chologists, curriculum specialists, cafeteria b. If able to perform some work, is the em- derlying condition); and workers, maintenance workers, bus drivers, ployee unable to perform any one or more of (3) May cause episodic rather than a con- or other primarily noninstructional employ- the essential functions of the employee’s job tinuing period of incapacity 2 (e.g., asthma, ees. (the employee or the employer should supply diabetes, epilepsy, etc.). APPENDIX A TO PART 825—[RESERVED] you with information about the essential job APPENDIX B TO PART 825—CERTIFICATION OF functions)? llll If yes, please list the es- 5. Permanent/Long-term Conditions Requir- PHYSICIAN OR PRACTITIONER sential functions the employee is unable to ing Supervision.—A period of incapacity 2 CERTIFICATION OF HEALTH CARE PROVIDER perform: llll which is permanent or long-term due to a (FAMILY AND MEDICAL LEAVE ACT OF 1993 AS c. If neither a. nor b. applies, is it necessary condition for which treatment may not be ef- MADE APPLICABLE BY THE CONGRESSIONAL for the employee to be absent from work for fective. The employee or family member ACCOUNTABILITY ACT OF 1995) treatment? llll must be under the continuing supervision of, but need not be receiving active treatment 1. Employee’s Name: 8.a. If leave is required to care for a family by, a health care provider. Examples include 2. Patient’s Name (if different from em- member of the employee with a serious Alzheimer’s, a severe stroke, or the terminal ployee): health condition, does the patient require as- stages of a disease. sistance for basic medical or personal needs 3. The attached sheet describes what is or safety, or for transportation? llll 6. Multiple Treatments (Non-Chronic Condi- meant by a ‘‘serious health condition’’ under tions).—Any period of absence to receive the Family and Medical Leave Act as made b. If no, would the employee’s presence to provide psychological comfort be beneficial multiple treatments (including any period of applicable by the Congressional Account- recovery therefrom) by a health care pro- ability Act. Does the patient’s condition 1 to the patient or assist in the patient’s re- covery? llll vider or by a provider of health care services qualify under any of the categories de- under orders of, or on referral by, a health scribed? If so, please check the applicable c. If the patient will need care only intermit- care provider, either for restorative surgery category. tently or on a part-time basis, please indi- after an accident or other injury, or for a (1) llll cate the probable duration of this need: condition that would likely result in a period of incapacity 2 of more than three consecu- (2) llll (Signature of Health Care Provider) tive calendar days in the absence of medical (3) llll (Type of Practice) intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe ar- (4) llll (Address) thritis (physical therapy), kidney disease (di- (5) llll (Telephone number) alysis).

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00091 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4540 CONGRESSIONAL RECORD — SENATE May 1, 1996 FOOTNOTES 2. The requested leave b will b will not health condition. (Explain below, if nec- 1 Here and elsewhere on this form, the information be counted against your annual FMLA leave essary, including the interval between cer- sought relates only to the condition for which the entitlement. tifications as prescribed in § 825.308 of the Of- employee is taking FMLA leave. fice of Compliance’s FMLA regulations.) 2 ‘‘Incapacity’’, for purposes of FMLA as make ap- 3. You b will b will not be required to plicable by the CAA, is defined to mean inability to furnish medical certification of a serious Subtitle C—Regulations Relating to the Em- work, attend school or perform other regular daily health condition. If required, you must fur- ploying Offices Other Than Those of the activities due to the serious health condition, treat- nish certification byllll (insert date) Senate and the House of Representatives— ment therefore, or recovery therefrom. (must be at least 15 days after you are noti- C Series 3 Treatment includes examinations to determine fied of this requirement) or we may delay the CHAPTER III—REGULATIONS RELATING if a serious health condition exists and evaluations commencement of your leave until the cer- TO THE RIGHTS AND PROTECTIONS of the condition. Treatment does not include routine tification is submitted. physical examinations, eye examinations, or dental UNDER THE FAIR LABOR STANDARDS examinations. 4. You may elect to substitute accrued paid ACT OF 1938 4 A regimen of continuing treatment includes, for leave for unpaid FMLA leave. We b will b PART C501—GENERAL PROVISIONS example, a course of prescription medication (e.g., will not require that you substitute accrued Sec. an antibiotic) or therapy requiring special equip- paid leave for unpaid FMLA leave. If paid C501.00 Corresponding section table of the ment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of leave will be used the following conditions FLSA regulations of the Labor over-the-counter medications such as aspirin, anti- will apply: (Explain) Department and the CAA regu- histamines, or salves; or bed-rest, drinking fluids, 5(a). If you normally pay a portion of the lations of the Office of Compli- exercise, and other similar activities that can be ini- premiums for your health insurance, these ance. tiated without a visit to a health care provider. payments will continue during the period of C501.101 Purpose and scope. APPENDIX C TO PART 825—[RESERVED] FMLA leave. Arrangements for payment C501.102 Definitions. C501.103 Coverage. APPENDIX D TO PART 825—PROTOTYPE NOTICE: have been discussed with you and it is agreed C501.104 Administrative authority. EMPLOYING OFFICE RESPONSE TO EMPLOYEE that you will make premium payments as C501.105 Effect of Interpretations of the REQUEST FOR FAMILY AND MEDICAL LEAVE follows: (Set forth dates, e.g., the 10th of Labor Department. each month, or pay periods, etc. that specifi- EMPLOYING OFFICE RESPONSE TO EMPLOYEE C501.106 Application of the Portal-to-Portal cally cover the agreement with the em- REQUEST FOR FAMILY OR MEDICAL LEAVE Act of 1947. ployee.). (OPTIONAL USE FORM—SEE § 825.301(B)(1) OF C501.107 [Reserved]. THE REGULATIONS OF THE OFFICE OF COMPLI- (b). You have a minimum 30-day (or, indicate § C501.00 Corresponding section table of the ANCE) longer period, if applicable) grace period in FLSA regulations of the Labor Department (FAMILY AND MEDICAL LEAVE ACT OF 1993, AS which to make premium payments. If pay- and the CAA regulations of the Office of MADE APPLICABLE BY THE CONGRESSIONAL ment is not made timely, your group health Compliance insurance may be cancelled: Provided, That ACCOUNTABILITY ACT OF 1995) The following table lists the parts of the we notify you in writing at least 15 days be- (Date) Secretary of Labor Regulations at Title 29 of fore the date that your health coverage will the Code of Federal Regulations under the To:llllllllll lapse, or, at our option, we may pay your FLSA with the corresponding parts of the (Employee’s name) share of the premiums during FMLA leave, Office of Compliance (OC) Regulations under and recover these payments from you upon From:llllllllll section 203 of the CAA: (Name of appropriate employing office rep- your return to work. We b will b will not resentative) pay your share of health insurance premiums Secretary of Labor regu- OC regulations while you are on leave. lations Subject: Request for Family/Medical Leave Part 531 Wage payments (c). We b will b will not do the same under the Fair Labor Onllll, (date) you notified us of your with other benefits (e.g., life insurance, dis- Standards Act of 1938 ..... Part C531 need to take family/medical leave due to: ability insurance, etc.) while you are on Part 541 Defining and de- (Date) FMLA leave. If we do pay your premiums for limiting the terms ‘‘bona other benefits, when you return from leave fide executive’’, ‘‘admin- The birth of your child, or the placement of you b will b will not be expected to reim- istrative’’, and ‘‘profes- a child with you for adoption or foster care; burse us for the payments made on your be- sional’’ employees ...... Part C541 or half. Part 547 Requirements of a A serious health condition that makes you 6. You b will b will not be required to ‘‘Bona fide thrift or sav- unable to perform the essential functions of present a fitness-for-duty certificate prior to ings plan’’ ...... Part C547 your job; or being restored to employment. If such cer- Part 553 Application of the tification is required but not received, your FLSA to employees of A serious health condition affecting your return to work may be delayed until the cer- public agencies ...... Part C553 spouse, child, parent, for which you are need- tification is provided. Part 570 Child labor ...... Part C570 ed to provide care. 7(a). You b are b are not a ‘‘key em- SUBPART A—MATTERS OF GENERAL You notified us that you need this leave be- ployee’’ as described in § 825.218 of the Office APPLICABILITY ginning on llll(date) and that you expect of Compliance’s FMLA regulations. If you § C501.101 Purpose and scope leave to continue until on or aboutllll are a ‘‘key employee’’, restoration to em- (a) Section 203 of the Congressional Ac- (date). ployment may be denied following FMLA countability Act (CAA) provides that the Except as explained below, you have a right leave on the grounds that such restoration rights and protections of subsections (a)(1) under the FMLA, as made applicable by the will cause substantial and grievous economic and (d) of section 6, section 7, and section CAA, for up to 12 weeks of unpaid leave in a injury to us. 12(c) of the Fair Labor Standards Act of 1938 12-month period for the reasons listed above. (b). We b have b have not determined (FLSA) (29 U.S.C. §§ 206(a)(1) and (d), 207, Also, your health benefits must be main- that restoring you to employment at the 212(c)) shall apply to covered employees of tained during any period of unpaid leave conclusion of FMLA leave will cause sub- the legislative branch of the Federal Govern- under the same conditions as if you contin- stantial and grievous economic harm to us. ment. Section 301 of the CAA creates the Of- ued to work, and you must be reinstated to (Explain (a) and/or (b) below. See § 825.219 of fice of Compliance as an independent office the same or an equivalent job with the same the Office of Compliance’s FMLA regula- in the legislative branch for enforcing the pay, benefits, and terms and conditions of tions.) rights and protections of the FLSA, as ap- employment on your return from leave. If plied by the CAA. 8. While on leave, you b will b will not you do not return to work following FMLA (b) The FLSA as applied by the CAA pro- be required to furnish us with periodic re- leave for a reason other than: (1) the con- vides for minimum standards for both wages ports every llll (indicate interval of tinuation, recurrence, or onset of a serious and overtime entitlements, and delineates periodic reports, as appropriate for the par- health condition which would entitle you to administrative procedures by which covered ticular leave situation) of your status and FMLA leave; or (2) other circumstances be- worktime must be compensated. Included intent to return to work (see § 825.309 of the yond your control, you may be required to also in the FLSA are provisions related to Office of Compliance’s FMLA regulations). If reimburse us for our share of health insur- child labor, equal pay, and portal-to-portal the circumstances of your leave change and ance premiums paid on your behalf during activities. In addition, the FLSA exempts you are able to return to work earlier than your FMLA leave. specified employees or groups of employees the date indicated on the reverse side of this from the application of certain of its provi- This is to inform you that: (check appro- form, you will will not be required to b b sions. priate boxes; explain where indicated) notify us at least two work days prior to the (c) This chapter contains the substantive 1. You are b eligible b not eligible for date you intend to report for work. regulations with respect to the FLSA that leave under the FMLA as made applicable by 9. You b will b will not be required to the Board of Directors of the Office of Com- the CAA. furnish recertification relating to a serious pliance has adopted pursuant to sections

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00092 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4541 203(c) and 304 of the CAA, which requires (f) ‘‘Board’’ means the Board of Directors dent in the consideration, the validity of its that the Board promulgate regulations that of the Office of Compliance. reasoning, its consistency with earlier and are ‘‘the same as substantive regulations (g) ‘‘Office’’ means the Office of Compli- later pronouncements, and all those factors promulgated by the Secretary of Labor to ance. which give it power to persuade, if lacking implement the statutory provisions referred (h) ‘‘Intern’’ is an individual who (a) is per- power to control.’’. Skidmore v. Swift, 323 to in subsection (a) [of § 203 of the CAA] ex- forming services in an employing office as U.S. 134, 140 (1944). cept insofar as the Board may determine, for part of a demonstrated educational plan, and (b) Section 203(c) of the CAA provides that good cause shown . . . that a modification of (b) is appointed on a temporary basis for a the substantive regulations implementing such regulations would be more effective for period not to exceed 12 months: Provided, section 203 of the CAA shall be ‘‘the same as the implementation of the rights and protec- That if an intern is appointed for a period substantive regulations promulgated by the tions under this section’’. shorter than 12 months, the intern may be Secretary of Labor’’ except where the Board (d) These regulations are issued by the reappointed for additional periods as long as finds, for good cause shown, that a modifica- Board of Directors, Office of Compliance, the total length of the internship does not tion would more effectively implement the pursuant to sections 203(c) and 304 of the exceed 12 months: Provided further, That the rights and protections established by the CAA, which directs the Board to promulgate defintion of ‘‘intern’’ does not include volun- FLSA. Thus, the CAA by its terms does not regulations implementing section 203 that teers, fellows or pages. mandate that the Board adopt the interpre- are ‘‘the same as substantive regulations § C501.103 Coverage tative statements of the Department of promulgated by the Secretary of Labor to The coverage of section 203 of the CAA ex- Labor or its Wage and Hour Division. The implement the statutory provisions referred tends to any covered employee of an employ- Board is thus not adopting such statements to in subsection (a) [of section 203 of the ing office without regard to whether the cov- as part of its substantive regulations. CAA] except insofar as the Board may deter- ered employee is engaged in commerce or the § C501.106 Application of the Portal-to-Portal mine, for good cause shown . . . that a modi- production of goods for interstate commerce Act of 1947 fication of such regulations would be more and without regard to size, number of em- effective for the implementation of the (a) Consistent with section 225 of the CAA, ployees, amount of business transacted, or the Portal-to-Portal Act (PPA), 29 U.S.C. rights and protections under this section’’. other measure. The regulations issued by the Board herein §§216 and 251 et seq., is applicable in defining are on all matters for which section 203 of § C501.104 Administrative authority and delimiting the rights and protections of the CAA requires regulations to be issued. (a) The Office of Compliance is authorized the FLSA that are prescribed by the CAA. Specifically, it is the Board’s considered to administer the provisions of section 203 of Section 10 of the PPA, 29 U.S.C. § 259, pro- judgment, based on the information avail- the Act with respect to any covered em- vides in pertinent part: ‘‘[N]o employer shall able to it at the time of the promulgation of ployee or covered employer. be subject to any liability or punishment for these regulations, that, with the exception of (b) The Board is authorized to promulgate or on account of the failure of the employer regulations adopted and set forth herein, substantive regulations in accordance with to pay minimum wages or overtime com- there are no other ‘‘substantive regulations the provisions of sections 203(c) and 304 of pensation under the Fair Labor Standards promulgated by the Secretary of Labor to the CAA. Act of 1938, as amended, . . . if he pleads and implement the statutory provisions referred § C501.105 Effect of interpretations of the De- proves that the act or omission complained to in subsection (a) [of section 203 of the partment of Labor of was in good faith in conformity with and reliance on any written administrative regu- CAA]’’. (a) In administering the FLSA, the Wage lation, order, ruling, approval or interpreta- (e) In promulgating these regulations, the and Hour Division of the Department of tion of [the Administrator of the Wage and Board has made certain technical and no- Labor has issued not only substantive regu- Hour Division of the Department of Labor] menclature changes to the regulations as lations but also interpretative bulletins. . . . or any administrative practice or en- promulgated by the Secretary. Such changes Substantive regulations represent an exer- forcement policy of such agency with respect are intended to make the provisions adopted cise of statutorily-delegated lawmaking au- to the class of employers to which he be- accord more naturally to situations in the thority from the legislative branch to an ad- longed. Such a defense, if established shall legislative branch. However, by making ministrative agency. Generally, they are be a bar to the action or proceeding, not- these changes, the Board does not intend a proposed in accordance with the notice-and- withstanding that after such act or omis- substantive difference between these regula- comment procedures of the Administrative sion, such administrative regulation, order, tions and those of the Secretary from which Procedure Act (APA), 5 U.S.C. § 553. Once ruling, approval, interpretation, practice or they are derived. Moreover, such changes, in promulgated, such regulations are consid- enforcement policy is modified or rescinded and of themselves, are not intended to con- ered to have the force and effect of law, un- or is determined by judicial authority to be stitute an interpretation of the regulation or less set aside upon judicial review as arbi- invalid or of no legal effect.’’. of the statutory provisions of the CAA upon trary, capricious, an abuse of discretion, or which they are based. otherwise not in accordance with law. See (b) In defending any action or proceeding § C501.102 Definitions Batterton v. Francis, 432 U.S. 416, 425 n.9 based on any act or omission arising out of section 203 of the CAA, an employing office For purposes of this chapter: (1977). See also 29 C.F.R. § 790.17(b) (1994). Un- may satisfy the standards set forth in sub- (a) ‘‘CAA’’ means the Congressional Ac- like substantive regulations, interpretative section (a) by pleading and proving good countability Act of 1995 (P.L. 104–1, 109 Stat. statements, including bulletins and other re- faith reliance upon any written administra- 3, 2 U.S.C. §§ 1301–1438). leases of the Wage and Hour Division, are tive regulation, order, ruling, approval or in- (b) ‘‘FLSA’’ or ‘‘Act’’ means the Fair Labor not issued pursuant to the provisions of the terpretation, of the Administrator of the Standards Act of 1938, as amended (29 U.S.C. APA and may not have the force and effect Wage and Hour Division of the Department § 201 et seq.), as applied by section 203 of the of law. Rather, they may only constitute of- of Labor: Provided, That such regulation, CAA to covered employees and employing of- ficial interpretations of the Department of order, ruling, approval or interpretation had fices. Labor with respect to the meaning and appli- not been superseded at the time of reliance (c) ‘‘Covered employee’’ means any em- cation of the minimum wage, maximum by any regulation, order, decision, or ruling ployee, including an applicant for employ- hour, and overtime pay requirements of the of the Board or the courts. ment and a former employee, of the (1) the FLSA. See 29 C.F.R. § 790.17(c) (citing Final Capitol Guide Service; (2) the Capitol Police; Report of the Attorney General’s Committee § C501.107 [Reserved] (3) the Congressional Budget Office; (4) the on Administrative Procedure, Senate Docu- PART C531—WAGE PAYMENTS UNDER Office of the Architect of the Capitol; (5) the ment No. 8, 77th Cong., 1st Sess., at p. 27 THE FAIR LABOR STANDARDS ACT OF Office of the Attending Physician; (6) the Of- (1941)). The purpose of such statements is to 1938 fice of Compliance; or (7) the Office of Tech- make available in one place the interpreta- UBPART A—PRELIMINARY MATTERS nology Assessment, but shall not include an tions of the FLSA which will guide the Sec- S intern. retary of Labor and the Wage and Hour Ad- Sec. (d)(1) ‘‘Employee of the Office of the Archi- ministrator in the performance of their du- C531.00 Corresponding section table of the tect of the Capitol’’ includes any employee ties unless and until they are otherwise di- FLSA regulations of the Labor of the Architect of the Capitol, the Botanic rected by authoritative decisions of the Department and the CAA regu- Garden, or the Senate Restaurants; courts or conclude, upon reexamination of an lations of the Office of Compli- (2) ‘‘Employee of the Capitol Police’’ in- interpretation, that it is incorrect. The Su- ance. cludes any member or officer of the Capitol preme Court has observed: ‘‘[T]he rulings, in- C531.1 Definitions. Police. terpretations and opinions of the Adminis- C531.2 Purpose and scope. (e) ‘‘Employing office’’ and ‘‘employer’’ trator under this Act, while not controlling mean (1) the Capitol Guide Service; (2) the upon the courts by reason of their authority, SUBPART B—DETERMINATIONS OF ‘‘REASON- Capitol Police; (3) the Congressional Budget do constitute a body of experience and in- ABLE COST’’ AND ‘‘FAIR VALUE’’; EFFECTS OF Office; (4) the Office of the Architect of the formed judgment to which courts and liti- COLLECTIVE BARGAINING AGREEMENTS Capitol; (5) the Office of the Attending Phy- gants may properly resort for guidance. The C531.3 General determinations of ‘‘reason- sician; (6) the Office of Compliance; or (7) the weight of such a judgment in a particular able cost’’. Office of Technology Assessment. case will depend upon the thoroughness evi- C531.6 Effects of collective bargaining agree- ments.

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SUBPART A—PRELIMINARY MATTERS commodities or facilities offered for sale) Secretary of Labor Regu- OC Regulations § C531.00 Corresponding section table of the shall be the reasonable cost. The cost of op- lations FLSA regulations of the Labor Department eration and maintenance, the rate of depre- 541.2 Administrative ...... C541.2 and the CAA regulations of the Office of ciation, and the depreciated amount of cap- 541.3 Professional ...... C541.3 Compliance ital invested by the employer shall be those 541.5b Equal pay provisions arrived at under good accounting practices. of section 6(d) of the The following table lists the sections of the As used in this paragraph, the term ‘‘good FLSA apply to executive, Secretary of Labor Regulations at Title 29 of accounting practices’’ does not include ac- administrative, and pro- the Code of Federal Regulations under the counting practices which have been rejected fessional employees...... C541.5b FLSA with the corresponding sections of the by the for tax pur- 541.5d Special provisions Office of Compliance (OC) Regulations under poses, and the term ‘‘depreciation’’ includes applicable to employees section 203 of the CAA: obsolescence. of public agencies ...... C541.5d Secretary of Labor regu- OC regulations (d)(1) The cost of furnishing ‘‘facilities’’ § C541.01 Application of the exemptions of lations found by the Administrator to be primarily section 13(a)(1) of the FLSA 531.1 Definitions ...... C531.1 for the benefit or convenience of the em- (a) Section 13(a)(1) of the FLSA, which pro- 531.2 Purpose and scope ..... C531.2 ployer will not be recognized as reasonable 531.3 General determina- vides certain exemptions for employees em- and may not therefore be included in com- ployed in a bona fide executive, administra- tions of ‘‘reasonable puting wages. cost’’ ...... C531.3 tive, or professional capacity (including any (2) The following is a list of facilities found employee employed in the capacity of aca- 531.6 Effects of collective by the Administrator to be primarily for the bargaining agreements ... C531.6 demic administrative personnel or teacher in benefit of convenience of the employer. The a secondary school), applies to covered em- § C531.1 Definitions list is intended to be illustrative rather than ployees by virtue of section 225(f)(1) of the (a) ‘‘Administrator’’ means the Adminis- exclusive: (i) Tools of the trade and other CAA. trator of the Wage and Hour Division or his materials and services incidental to carrying (b) The substantive regulations set forth in authorized representative. The Secretary of on the employer’s business; (ii) the cost of this part are promulgated under the author- Labor has delegated to the Administrator any construction by and for the employer; ity of sections 203(c)and 304 of the CAA, the functions vested in him under section (iii) the cost of uniforms and of their laun- which require that such regulations be the 3(m) of the Act. dering, where the nature of the business re- same as the substantive regulations promul- (b) ‘‘Act’’ means the Fair Labor Standards quires the employee to wear a uniform. gated by the Secretary of Labor except Act of 1938, as amended. § C531.6 Effects of collective bargaining where the Board determines for good cause § C531.2 Purpose and scope agreements shown that modifications would be more ef- (a) Section 3(m) of the Act defines the term (a) The cost of board, lodging, or other fa- fective for the implementation of the rights ‘‘wage’’ to include the ‘‘reasonable cost’’, as cilities shall not be included as part of the and protections under § 203. determined by the Secretary of Labor, to an wage paid to any employee to the extent it § C541.1 Executive employer of furnishing any employee with is excluded therefrom under the terms of a The term ‘‘employee employed in a bona board, lodging, or other facilities, if such bona fide collective bargaining agreement fide executive***capacity’’ in section board, lodging, or other facilities are cus- applicable to the particular employee. 13(a)(1) of the FLSA as applied by the CAA tomarily furnished by the employer to his (b) A collective bargaining agreement shall shall mean any employee: employees. In addition, section 3(m) gives be deemed to be ‘‘bona fide’’ when pursuant (a) Whose primary duty consists of the the Secretary authority to determine the to the provisions of section 7(b)(1) or 7(b)(2) management of an employing office in which ‘‘fair value’’ of such facilities on the basis of of the FLSA it is made with the certified he is employed or of a customarily recog- average cost to the employer or to groups of representative of the employees under the nized department or subdivision thereof; and employers similarly situated, on average provisions of the CAA. (b) Who customarily and regularly directs value to groups of employees, or other appro- PART C541—DEFINING AND DELIMITING the work of two or more other employees priate measures of ‘‘fair value’’. Whenever so THE TERMS ‘‘BONA FIDE EXECUTIVE’’, therein; and determined and when applicable and perti- ‘‘ADMINISTRATIVE’’, OR ‘‘PROFES- (c) Who has the authority to hire or fire nent, the ‘‘fair value’’ of the facilities in- SIONAL’’ CAPACITY (INCLUDING ANY other employees or whose suggestions and volved shall be includable as part of ‘‘wages’’ EMPLOYEE EMPLOYED IN THE CAPAC- recommendations as to the hiring or firing instead of the actual measure of the costs of ITY OF ACADEMIC ADMINISTRATIVE and as to the advancement and promotion or those facilities. The section provides, how- PERSONNEL OR TEACHER IN SEC- any other change of status of other employ- ever, that the cost of board, lodging, or other ONDARY SCHOOL) ees will be given particular weight; and facilities shall not be included as part of SUBPART A—GENERAL REGULATIONS (d) Who customarily and regularly exer- ‘‘wages’’ if excluded therefrom by a bona fide cises discretionary powers; and Sec. collective bargaining agreement. Section (e) Who does not devote more than 20 per- C541.00 Corresponding section table of the 3(m) also provides a method for determining cent, or, in the case of an employee of a re- FLSA regulations of the Labor the wage of a tipped employee. tail or service establishment who does not Department and the CAA regu- (b) This part 531 contains any determina- devote as much as 40 percent, of his hours of lations of the Office of Compli- tions made as to the ‘‘reasonable cost’’ and work in the workweek to activities which ance. ‘‘fair value’’ of board, lodging, or other fa- are not directly and closely related to the C541.01 Application of the exemptions of sec- cilities having general application. performance of the work described in para- tion 13(a)(1) of the FLSA. SUBPART B—DETERMINATIONS OF ‘‘REASON- graphs (a) through (d) of this section: Pro- C541.1 Executive. ABLE COST’’ AND ‘‘FAIR VALUE’’; EFFECTS OF vided, That this paragraph shall not apply in C541.2 Administrative. COLLECTIVE BARGAINING AGREEMENTS the case of an employee who is in sole charge C541.3 Professional. of an independent establishment or a phys- § C531.3 General determinations of ‘‘reason- C541.5b Equal pay provisions of section 6(d) ically separated branch establishment; and able cost’’ of the FLSA as applied by the (f) Who is compensated for his services on (a) The term ‘‘reasonable cost’’ as used in CAA extend to executive, ad- a salary basis at a rate of not less than $155 section 3(m) of the Act is hereby determined ministrative, and professional per week, exclusive of board, lodging or to be not more than the actual cost to the employees. other facilities: Provided, That an employee employer of the board, lodging, or other fa- C541.5d Special provisions applicable to em- who is compensated on a salary basis at a cilities customarily furnished by him to his ployees of public agencies. rate of not less than $250 per week, exclusive employees. SUBPART A—GENERAL REGULATIONS of board, lodging or other facilities, and (b) Reasonable cost does not include a prof- § C541.00 Corresponding section table of the whose primary duty consists of the manage- it to the employer or to any affiliated per- FLSA regulations of the Labor Department ment of the employing office in which the son. and the CAA regulations of the Office of employee is employed or of a customarily (c) The reasonable cost to the employer of Compliance recognized department or subdivision there- furnishing the employee with board, lodging, of, and includes the customary and regular or other facilities (including housing) is the The following table lists the sections of the direction of the work of two or more other cost of operation and maintenance including Secretary of Labor Regulations at Title 29 of employees therein, shall be deemed to meet adequate depreciation plus a reasonable al- the Code of Federal Regulations under the all the requirements of this section. lowance (not more than 51⁄2 percent) for in- FLSA with the corresponding sections of the terest on the depreciated amount of capital Office of Compliance (OC) Regulations under § C541.2 Administrative invested by the employer: Provided, That if section 203 of the CAA: The term ‘‘employee employed in a bona the total so computed is more than the fair fide***administrative***capacity’’ in rental value (or the fair price of the com- Secretary of Labor Regu- OC Regulations section 13(a)(1) of the FLSA as applied by the modities or facilities offered for sale), the lations CAA shall mean any employee: fair rental value (or the fair price of the 541.1 Executive ...... C541.1 (a) Whose primary duty consists of either:

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00094 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4543 (1) The performance of office or nonmanual who is employed and engaged in these activi- ployee is paid according to a pay system es- work directly related to management poli- ties as a computer systems analyst, com- tablished by statute, ordinance, or regula- cies or general operations of his employer or puter programmer, software engineer, or tion, or by a policy or practice established his employer’s customers, or other similarly skilled worker in the com- pursuant to principles of public account- (2) The performance of functions in the ad- puter software field; and ability, under which the employee accrues ministration of a school system, or edu- (b) Whose work requires the consistent ex- personal leave and sick leave and which re- cational establishment or institution, or of a ercise of discretion and judgment in its per- quires the public agency employee’s pay to department or subdivision thereof, in work formance; and be reduced or such employee to be placed on directly related to the academic instruction (c) Whose work is predominantly intellec- leave without pay for absences for personal or training carried on therein; and tual and varied in character (as opposed to reasons or because of illness or injury of less (b) Who customarily and regularly exer- routine mental, manual, mechanical, or than one workday when accrued leave is not cises discretion and independent judgment; physical work) and is of such character that used by an employee because—(1) permission and the output produced or the result accom- for its use has not been sought or has been (c)(1) Who regularly and directly assists plished cannot be standardized in relation to sought and denied; (2) accrued leave has been the head of an employing office, or an em- a given period of time; and exhausted; or (3) the employee chooses to use ployee employed in a bona fide executive or (d) Who does not devote more than 20 per- leave without pay. administrative capacity (as such terms are cent of his hours worked in the workweek to (b) Deductions from the pay of an em- ployee of a public agency for absences due to defined in the regulations of this subpart), or activities which are not an essential part of a budget-required furlough shall not dis- (2) Who performs under only general super- and necessarily incident to the work de- qualify the employee from being paid ‘‘on a vision work along specialized or technical scribed in paragraphs (a) through (c) of this salary basis’’ except in the workweek in lines requiring special training, experience, section; and which the furlough occurs and for which the or knowledge, or (e) Who is compensated for services on a employee’s pay is accordingly reduced. (3) Who executes under only general super- salary or fee basis at a rate of not less than vision special assignments and tasks; and $170 per week, exclusive of board, lodging or PART C547—REQUIREMENTS OF A ‘‘BONA (d) Who does not devote more than 20 per- other facilities: Provided, That this para- FIDE THRIFT OR SAVINGS PLAN’’ cent, or, in the case of an employee of a re- graph shall not apply in the case of an em- Sec. tail or service establishment who does not ployee who is the holder of a valid license or C547.00 Corresponding section table of the devote as much as 40 percent, of his hours certificate permitting the practice of law or FLSA regulations of the Labor worked in the workweek to activities which medicine or any of their branches and who is Department and the CAA regu- are not directly and closely related to the actually engaged in the practice thereof, nor lations of the Office of Compli- performance of the work described in para- in the case of an employee who is the holder ance. graphs (a) through (c) of this section; and of the requisite academic degree for the gen- C547.0 Scope and effect of part. C547.1 Essential requirements of qualifica- (e)(1) Who is compensated for his services eral practice of medicine and is engaged in an internship or resident program pursuant tions. on a salary or fee basis at a rate of not less C547.2 Disqualifying provisions. than $155 per week, exclusive of board, lodg- to the practice of medicine or any of its ing or other facilities, or branches, nor in the case of an employee em- § C547.00 Corresponding section table of the (2) Who, in the case of academic adminis- ployed and engaged as a teacher as provided FLSA regulations of the Labor Department trative personnel, is compensated for serv- in paragraph (a)(3) of this section: Provided and the CAA regulations of the Office of ices as required by paragraph (e)(1) of this further, That an employee who is com- Compliance section, or on a salary basis which is at least pensated on a salary or fee basis at a rate of The following table lists the sections of the equal to the entrance salary for teachers in not less than $250 per week, exclusive of Secretary of Labor Regulations under the the school system, educational establish- board, lodging or other facilities, and whose FLSA with the corresponding sections of the ment or institution by which employed: Pro- primary duty consists of the performance ei- Office of Compliance (OC) Regulations under vided, That an employee who is compensated ther of work described in paragraph (a) (1), section 203 of the CAA: on a salary or fee basis at a rate of not less (3), or (4) of this section, which includes Secretary of Labor regu- OC regulations than $250 per week, exclusive of board, lodg- work requiring the consistent exercise of dis- lations ing or other facilities, and whose primary cretion and judgment, or of work requiring 547.0 Scope and effect of duty consists of the performance of work de- invention, imagination, or talent in a recog- part ...... C547.0 scribed in paragraph (a) of this section, nized field of artistic endeavor, shall be 547.1 Essential require- which includes work requiring the exercise deemed to meet all of the requirements of ments of qualifications .. C547.1 of discretion and independent judgment, this section: Provided further, That the salary 547.2 Disqualifying provi- shall be deemed to meet all the requirements or fee requirements of this paragraph shall sions ...... C547.2 of this section. not apply to an employee engaged in com- § C547.0 Scope and effect of part puter-related work within the scope of para- § C541.3 Professional (a) The regulations in this part set forth graph (a)(4) of this section and who is com- the requirements of a ‘‘bona fide thrift or The term ‘‘employee employed in a bona pensated on an hourly basis at a rate in ex- savings plan’’ under section 7(e)(3)(b) of the fide***professional capacity’’ in section cess of 61⁄2 times the minimum wage provided Fair Labor Standards Act of 1938, as amend- 13(a)(1) of the FLSA as applied by the CAA by section 6 of the FLSA as applied by the ed (FLSA), as applied by the CAA. In deter- shall mean any employee: CAA. mining the total remuneration for employ- (a) Whose primary duty consists of the per- § C541.5b Equal pay provisions of section ment which section 7(e) of the FLSA requires formance of: 6(d) of the FLSA as applied by the CAA ex- to be included in the regular rate at which (1) Work requiring knowledge of an ad- tend to executive, administrative, and pro- an employee is employed, it is not necessary vance type in a field of science or learning fessional employees to include any sums paid to or on behalf of customarily acquired by a prolonged course such employee, in recognition of services The FLSA, as amended and as applied by of specialized intellectual instruction and performed by him during a given period, the CAA, includes within the protection of study, as distinguished from a general aca- which are paid pursuant to a bona fide thrift the equal pay provisions those employees ex- demic education and from an apprenticeship, or savings plan meeting the requirements set empt from the minimum wage and overtime and from training in the performance of rou- forth herein. In the formulation of these reg- tine mental, manual, or physical processes, pay provisions as bona fide executive, admin- ulations due regard has been given to the or istrative, and professional employees (in- factors and standards set forth in section (2) Work that is original and creative in cluding any employee employed in the ca- 7(e)(3)(b) of the Act. character in a recognized field of artistic en- pacity of academic administrative personnel (b) Where a thrift or savings plan is com- deavor (as opposed to work which can be pro- or teacher in elementary or secondary bined in a single program (whether in one or duced by a person endowed with general schools) under section 13(a)(1) of the FLSA. more documents) with a plan or trust for manual or intellectual ability and training), Thus, for example, where an exempt adminis- providing old age, retirement, life, accident and the result of which depends primarily on trative employee and another employee of or health insurance or similar benefits for the invention, imagination, or talent of the the employing office are performing substan- employees, contributions made by the em- employee, or tially ‘‘equal work’’, the sex discrimination ployer pursuant to such thrift or savings (3) Teaching, tutoring, instructing, or lec- prohibitions of section 6(d) are applicable plan may be excluded from the regular rate turing in the activity of imparting knowl- with respect to any wage differential be- if the plan meets the requirements of the edge and who is employed and engaged in tween those two employees. regulation in this part and the contributions this activity as a teacher in a school system, § C541.5d Special provisions applicable to em- made for the other purposes may be excluded educational establishment or institution by ployees of public agencies from the regular rate if they meet the tests which employed, or (a) An employee of a public agency who set forth in regulations. (4) Work that requires theoretical and otherwise meets the requirement of being § C547.1 Essential requirements for qualifica- practical application of highly-specialized paid on a salary basis shall not be disquali- tions knowledge in computer systems analysis, fied from exemption under section C541.1, (a) A ‘‘bona fide thrift or savings plan’’ for programming, and software engineering, and C541.2, or C541.3 on the basis that such em- the purpose of section 7(e)(3)(b) of the FLSA

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00095 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4544 CONGRESSIONAL RECORD — SENATE May 1, 1996 as applied by the CAA is required to meet all C553.202 Limitations. Secretary of Labor regu- OC regulations the standards set forth in paragraphs (b) C553.211 Law enforcement activities. lations through (f) of this section and must not con- C553.212 Twenty percent limitation on non- 553.232 Overtime pay re- tain the disqualifying provisions set forth in exempt work. quirements ...... C553.232 § 547.2. C553.213 Public agency employees engaged in 553.233 ‘‘Regular rate’’ de- (b) The thrift or savings plan constitutes a both fire protection and law en- fined ...... C553.233 definite program or arrangement in writing, forcement activities. INTRODUCTION adopted by the employer or by contract as a C553.214 Trainees. § C553.1 Definitions result of collective bargaining and commu- C553.215 Ambulance and rescue service em- (a) ‘‘Act’’ or ‘‘FLSA’’ means the Fair Labor nicated or made available to the employees, ployees. Standards Act of 1938, as amended (52 Stat. which is established and maintained, in good C553.216 Other exemptions. 1060, as amended; 29 U.S.C. 201–219), as ap- C553.220 ‘‘Tour of duty’’ defined. faith, for the purpose of encouraging vol- plied by the CAA. untary thrift or savings by employees by C553.221 Compensable hours of work. (b) ‘‘1985 Amendments’’ means the Fair providing an incentive to employees to accu- C553.222 Sleep time. Labor Standards Amendments of 1985 (Pub. C553.223 Meal time. mulate regularly and retain cash savings for L. 99–150). a reasonable period of time or to save C553.224 ‘‘Work period’’ defined. (c) ‘‘Public agency’’ means an employing through the regular purchase of public or C553.225 Early relief. office as the term is defined in § 501.102 of private securities. C553.226 Training time. this chapter, including the Capitol Police. (c) The plan specifically shall set forth the C553.227 Outside employment. (d) Section 7(k) means the provisions of category or categories of employees partici- C553.230 Maximum hours standards for work § 7(k) of the FLSA as applied to covered em- pating and the basis of their eligibility. Eli- periods of 7 to 28 days—section ployees and employing offices by § 203 of the gibility may not be based on such factors as 7(k). CAA. hours of work, production, or efficiency of C553.231 Compensatory time off. C553.232 Overtime pay requirements. § C553.2 Purpose and scope the employees: Provided, however, That hours C553.233 ‘‘Regular rate’’ defined. The purpose of part C553 is to adopt with of work may be used to determine eligibility appropriate modifications the regulations of SUBPART D—COMPENSATORY TIME-OFF FOR of part-time or casual employees. the Secretary of Labor to carry out those OVERTIME EARNED BY EMPLOYEES WHOSE (d) The amount any employee may save provisions of the FLSA relating to public WORK SCHEDULE DIRECTLY DEPENDS UPON under the plan shall be specified in the plan agency employees as they are applied to cov- THE SCHEDULE OF THE HOUSE or determined in accordance with a definite ered employees and employing offices of the formula specified in the plan, which formula C553.301 Definition of ‘‘directly depends’’. CAA. In particular, these regulations apply may be based on one or more factors such as C553.302 Overtime compensation and com- section 7(k) as it relates to fire protection the straight-time earnings or total earnings, pensatory time off for an em- and law enforcement employees of public base rate of pay, or length of service of the ployee whose work schedule di- agencies. employee. rectly depends upon the sched- SUBPART C—PARTIAL EXEMPTION FOR EM- (e) The employer’s total contribution in ule of the House. PLOYEES ENGAGED IN LAW ENFORCEMENT any year may not exceed 15 percent of the C553.303 Using compensatory time off. AND FIRE PROTECTION participating employees’ total earnings dur- C553.304 Payment of overtime compensation ing that year. In addition, the employer’s for accrued compensatory time § C553.201 Statutory provisions: section 7(k). total contribution in any year may not ex- off as of termination of service. Section 7(k) of the Act provides a partial ceed the total amount saved or invested by INTRODUCTION overtime pay exemption for fire protection the participating employees during that and law enforcement personnel (including se- § C553.00 Corresponding section table of the year. curity personnel in correctional institutions) FLSA regulations of the Labor Department (f) The employer’s contributions shall be who are employed by public agencies on a and the CAA regulations of the Office of apportioned among the individual employees work period basis. This section of the Act Compliance in accordance with a definite formula or formerly permitted public agencies to pay method of calculation specified in the plan, The following table lists the sections of the overtime compensation to such employees in which formula or method of calculation is Secretary of Labor Regulations under the work periods of 28 consecutive days only based on the amount saved or the length of FLSA with the corresponding sections of the after 216 hours of work. As further set forth time the individual employee retains his sav- Office of Compliance (OC) Regulations under in § C553.230 of this part, the 216-hour stand- ings or investment in the plan: Provided, section 203 of the CAA: ard has been replaced, pursuant to the study That no employee’s share determined in ac- Secretary of Labor regu- OC regulations mandated by the statute, by 212 hours for cordance with the plan may be diminished lations fire protection employees and 171 hours for because of any other remuneration received 553.1 Definitions ...... C553.1 law enforcement employees. In the case of by him. 553.2 Purpose and scope ..... C553.2 such employees who have a work period of at § C547.2 Disqualifying provisions 553.201 Statutory provi- least 7 but less than 28 consecutive days, (a) No employee’s participation in the plan sions: section 7(k) ...... C553.201 overtime compensation is required when the shall be on other than a voluntary basis. 553.202 Limitations ...... C553.202 ratio of the number of hours worked to the (b) No employee’s wages or salary shall be 553.211 Law enforcement number of days in the work period exceeds dependent upon or influenced by the exist- activities ...... C553.211 the ratio of 212 (or 171) hours to 28 days. ence of such thrift or savings plan or the em- 553.212 Twenty percent § C553.202 Limitations ployer’s contributions thereto. limitation on nonexempt The application of § 7(k), by its terms, is (c) The amounts any employee may save work ...... C553.212 limited to public agencies, and does not under the plan, or the amounts paid by the 553.213 Public agency em- apply to any private organization engaged in employer under the plan may not be based ployees engaged in both furnishing fire protection or law enforce- upon the employee’s hours of work, produc- fire protection and law ment services. This is so even if the services tion or efficiency. enforcement activities ... C553.213 are provided under contract with a public PART C553—OVERTIME COMPENSATION: 553.214 Trainees ...... C553.214 agency. 553.215 Ambulance and res- PARTIAL EXEMPTION FOR EMPLOYEES EXEMPTION REQUIREMENTS cue service employees .... C553.215 ENGAGED IN LAW ENFORCEMENT AND § C553.211 Law enforcement activities FIRE PROTECTION; OVERTIME AND 553.216 Other exemptions ... C553.216 553.220 ‘‘Tour of duty’’ de- (a) As used in § 7(k) of the Act, the term COMPENSATORY TIME-OFF FOR EM- ‘‘any employee . . . in law enforcement ac- PLOYEES WHOSE WORK SCHEDULE DI- fined ...... C553.220 553.221 Compensable hours tivities’’ refers to any employee (1) who is a RECTLY DEPENDS UPON THE SCHED- uniformed or plainclothed member of a body ULE OF THE HOUSE of work ...... C553.221 553.222 Sleep time ...... C553.222 of officers and subordinates who are empow- INTRODUCTION 553.223 Meal time ...... C553.223 ered by law to enforce laws designed to Sec. 553.224 ‘‘Work period’’ de- maintain public peace and order and to pro- C553.00 Corresponding section table of the fined ...... C553.224 tect both life and property from accidental FLSA regulations of the Labor 553.225 Early relief ...... C553.225 or willful injury, and to prevent and detect Department and the CAA regu- 553.226 Training time ...... C553.226 crimes, (2) who has the power to arrest, and lations of the Office of Compli- 553.227 Outside employ- (3) who is presently undergoing or has under- ance. ment ...... C553.227 gone or will undergo on-the-job training and/ C553.1 Definitions. 553.230 Maximum hours or a course of instruction and study which C553.2 Purpose and scope. standards for work peri- typically includes physical training, self-de- SUBPART C—PARTIAL EXEMPTION FOR EM- ods of 7 to 28 days—sec- fense, firearm proficiency, criminal and civil PLOYEES ENGAGED IN LAW ENFORCEMENT tion 7(k) ...... C553.230 law principles, investigative and law enforce- AND FIRE PROTECTION 553.231 Compensatory time ment techniques, community relations, med- C553.201 Statutory provisions: section 7(k). off ...... C553.231 ical aid and ethics.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00096 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4545 (b) Employees who meet these tests are rectional institutions who engage in building case may be. If the applicable tests are met, considered to be engaged in law enforcement repair and maintenance, culinary services, then basic training or advanced training is activities regardless of their rank, or of their teaching, or in psychological, medical and considered incidental to, and part of, the em- status as ‘‘trainee’’, ‘‘probationary’’, or ‘‘per- paramedical services. This is so even though ployee’s fire protection or law enforcement manent’’, and regardless of their assignment such employees may, when assigned to cor- activities. to duties incidental to the performance of rectional institutions, come into regular § C553.215 Ambulance and rescue service their law enforcement activities such as contact with the inmates in the performance employees equipment maintenance, and lecturing, or to of their duties. Ambulance and rescue service employees support activities of the type described in § C553.212 Twenty percent limitation on non- of a public agency other than a fire protec- paragraph (g) of this section, whether or not exempt work tion or law enforcement agency may be such assignment is for training or famil- treated as employees engaged in fire protec- iarization purposes, or for reasons of illness, (a) Employees engaged in fire protection or law enforcement activities as described in tion or law enforcement activities of the injury or infirmity. The term would also in- type contemplated by § 7(k) if their services clude rescue and ambulance service per- sections C553.210 and C553.211, may also en- gage in some nonexempt work which is not are substantially related to firefighting or sonnel if such personnel form an integral law enforcement activities in that (1) the part of the public agency’s law enforcement performed as an incident to or in conjunc- tion with their fire protection or law en- ambulance and rescue service employees activities. See section C553.215. have received training in the rescue of fire, forcement activities. For example, fire- (c) Typically, employees engaged in law crime, and accident victims or firefighters or fighters who work for forest conservation enforcement activities include police who law enforcement personnel injured in the agencies may, during slack times, plant are regularly employed and paid as such. performance of their respective duties, and trees and perform other conservation activi- Other agency employees with duties not spe- (2) the ambulance and rescue service employ- cifically mentioned may, depending upon the ties unrelated to their firefighting duties. ees are regularly dispatched to fires, crime particular facts and pertinent statutory pro- The performance of such nonexempt work scenes, riots, natural disasters and acci- visions in that jurisdiction, meet the three will not defeat the § 7(k) exemption unless it dents. As provided in section C553.213(b), tests described above. If so, they will also exceeds 20 percent of the total hours worked where employees perform both fire protec- qualify as law enforcement officers. Such by that employee during the workweek or tion and law enforcement activities, the ap- employees might include, for example, any applicable work period. A person who spends plicable standard is the one which applies to law enforcement employee within the legis- more than 20 percent of his/her working time the activity in which the employee spends lative branch concerned with keeping public in nonexempt activities is not considered to the majority of work time during the work peace and order and protecting life and prop- be an employee engaged in fire protection or period. erty. law enforcement activities for purposes of § C553.216 Other exemptions (d) Employees who do not meet each of the this part. Although the 1974 Amendments to the three tests described above are not engaged (b) Public agency fire protection and law FLSA as applied by the CAA provide special in (law enforcement activities’ as that term enforcement personnel may, at their own op- exemptions for employees of public agencies tion, undertake employment for the same is used in section 7(k). Employees who nor- engaged in fire protection and law enforce- employer on an occasional or sporadic and mally would not meet each of these tests in- ment activities, such workers may also be part-time basis in a different capacity from clude: subject to other exemptions in the Act, and (1) Building inspectors (other than those their regular employment. The performance public agencies may claim such other appli- defined in section C553.213(a)), of such work does not affect the application cable exemptions in lieu of § 7(k). For exam- (2) Health inspectors, of the § 7(k) exemption with respect to the ple, section 13(a)(1) as applied by the CAA (3) Sanitarians, regular employment. In addition, the hours provides a complete minimum wage and (4) Civilian traffic employees who direct of work in the different capacity need not be overtime pay exemption for any employee vehicular and pedestrian traffic at specified counted as hours worked for overtime pur- employed in a bona fide executive, adminis- intersections or other control points, poses on the regular job, nor are such hours trative, or professional capacity, as those (5) Civilian parking checkers who patrol counted in determining the 20 percent toler- terms are defined and delimited in part C541. assigned areas for the purpose of discovering ance for nonexempt work discussed in para- The section 13(a)(1) exemption can be parking violations and issuing appropriate graph (a) of this section. claimed for any fire protection or law en- warnings or appearance notices, § C553.213 Public agency employees engaged forcement employee who meets all of the (6) Wage and hour compliance officers, in both fire protection and law enforce- tests specified in part C541 relating to duties, (7) Equal employment opportunity compli- ment activities responsibilities, and salary. Thus, high rank- ance officers, and (a) Some public agencies have employees ing police officials who are engaged in law (8) Building guards whose primary duty is (often called ‘‘public safety officers’’) who enforcement activities, may also, depending to protect the lives and property of persons engage in both fire protection and law en- on the facts, qualify for the section 13(a)(1) within the limited area of the building. forcement activities, depending on the agen- exemption as ‘‘executive’’ employees. Simi- (e) The term ‘‘any employee in law en- larly, certain criminal investigative agents cy needs at the time. This dual assignment forcement activities’’ also includes, by ex- may qualify as ‘‘administrative’’ employees would not defeat the section 7(k) exemption, press reference, ‘‘security personnel in cor- under section 13(a)(1). provided that each of the activities per- rectional institutions’’. Typically, such fa- formed meets the appropriate tests set forth TOUR OF DUTY AND COMPENSABLE HOURS OF cilities may include precinct house lockups. in sections C553.210 and C553.211. This is so WORK RULES Employees of correctional institutions who regardless of how the employee’s time is di- § C553.220 ‘‘Tour of duty’’ defined qualify as security personnel for purposes of vided between the two activities. However, (a) The term ‘‘tour of duty’’ is a unique the section 7(k) exemption are those who all time spent in nonexempt activities by concept applicable only to employees for have responsibility for controlling and main- public safety officers within the work period, whom the section 7(k) exemption is claimed. taining custody of inmates and of safe- whether performed in connection with fire This term, as used in section 7(k), means the guarding them from other inmates or for su- protection or law enforcement functions, or period of time during which an employee is pervising such functions, regardless of with neither, must be combined for purposes considered to be on duty for purposes of de- whether their duties are performed inside of the 20 percent limitation on nonexempt termining compensable hours. It may be a the correctional institution or outside the work discussed in section C553.212. scheduled or unscheduled period. Such peri- institution. These employees are considered (b) As specified in section C553.230, the ods include ‘‘shifts’’ assigned to employees to be engaged in law enforcement activities maximum hours standards under section 7(k) often days in advance of the performance of regardless of their rank or of their status as are different for employees engaged in fire the work. Scheduled periods also include ‘‘trainee’’, ‘‘probationary’’, or ‘‘permanent’’, protection and for employees engaged in law time spent in work outside the ‘‘shift’’ which and regardless of their assignment to duties enforcement. For those employees who per- the public agency employer assigns. For ex- incidental to the performance of their law form both fire protection and law enforce- ample, a police officer may be assigned to enforcement activities, or to support activi- ment activities, the applicable standard is crowd control during a parade or other spe- ties of the type described in paragraph (f) of the one which applies to the activity in cial event outside of his or her shift. this section, whether or not such assignment which the employee spends the majority of (b) Unscheduled periods include time spent is for training or familiarization purposes or work time during the work period. in court by police officers, time spent han- for reasons of illness, injury or infirmity. dling emergency situations, and time spent (f) Not included in the term ‘‘employee in § C553.214 Trainees working after a shift to complete an assign- law enforcement activities’’ are the so-called The attendance at a bona fide fire or police ment. Such time must be included in the ‘‘civilian’’ employees of law enforcement academy or other training facility, when re- compensable tour of duty even though the agencies or correctional institutions who en- quired by the employing agency, constitutes specific work performed may not have been gage in such support activities as those per- engagement in activities under section 7(k) assigned in advance. formed by dispatcher, radio operators, appa- only when the employee meets all the appli- (c) The tour of duty does not include time ratus and equipment maintenance and repair cable tests described in section C553.210 or spent working for a separate and inde- workers, janitors, clerks and stenographers. section C553.211 (except for the power of ar- pendent employer in certain types of special Nor does the term include employees in cor- rest for law enforcement personnel), as the details as provided in section C553.227.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00097 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4546 CONGRESSIONAL RECORD — SENATE May 1, 1996 § C553.221 Compensable hours of work of police officers or firefighters who are on a § C553.225 Early relief (a) The rules under the FLSA as applied by tour of duty of more than 24 hours, but only It is a common practice among employees the CAA on compensable hours of work are if there is an expressed or implied agreement engaged in fire protection activities to re- applicable to employees for whom the sec- between the employer and the employees to lieve employees on the previous shift prior to tion 7(k) exemption is claimed. Special rules exclude such time. In the absence of such an the scheduled starting time. Such early re- for sleep time (section C553.222) apply to both agreement, the sleep time is compensable. In lief time may occur pursuant to employee law enforcement and firefighting employees no event shall the time excluded as sleep agreement, either expressed or implied. This for whom the section 7(k) exemption is time exceed 8 hours in a 24-hour period. If practice will not have the effect of increas- claimed. Also, special rules for meal time the sleep time is interrupted by a call to ing the number of compensable hours of apply in the case of firefighters (section duty, the interruption must be counted as work for employees employed under section C553.223). hours worked. If the sleep period is inter- 7(k) where it is voluntary on the part of the (b) Compensable hours of work generally rupted to such an extent that the employee employees and does not result, over a period include all of the time during which an em- cannot get a reasonable night’s sleep (which, of time, in their failure to receive proper ployee is on duty on the employer’s premises for enforcement purposes means at least 5 compensation for all hours actually worked. or at a prescribed workplace, as well as all hours), the entire time must be counted as On the other hand, if the practice is required other time during which the employee is suf- hours of work. by the employer, the time involved must be fered or permitted to work for the employer. § C553.223 Meal time added to the employee’s tour of duty and Such time includes all pre-shift and post- (a) If a public agency elects to pay over- treated as compensable hours of work. shift activities which are an integral part of time compensation to firefighters and law § C553.226 Training time the employee’s principal activity or which enforcement personnel in accordance with (a) The general rules for determining the are closely related to the performance of the section 7(a)(1) of the Act, the public agency compensability of training time under the principal activity, such as attending roll may exclude meal time from hours worked if FLSA apply to employees engaged in law en- call, writing up and completing tickets or re- all the statutory tests for the exclusion of forcement or fire protection activities. ports, and washing and re-racking fire hoses. such time are met. (b) While time spent in attending training (c) Time spent away from the employer’s (b) If a public agency elects to use the sec- required by an employer is normally consid- premises under conditions that are so cir- tion 7(k) exemption, the public agency may, ered compensable hours of work, following cumscribed that they restrict the employee in the case of law enforcement personnel, ex- are situations where time spent by employ- from effectively using the time for personal clude meal time from hours worked on tours ees in required training is considered to be pursuits also constitutes compensable hours of duty of 24 hours or less: Provided, That the noncompensable: of work. For example, where a police station employee is completely relieved from duty (1) Attendance outside of regular working must be evacuated because of an electrical during the meal period, and all the other hours at specialized or follow-up training, failure and the employees are expected to re- statutory tests for the exclusion of such which is required by law for certification of main in the vicinity and return to work after time are met. On the other hand, where law public and private sector employees within a the emergency has passed, the entire time enforcement personnel are required to re- particular governmental jurisdiction (e.g., spent away from the premises is compen- main on call in barracks or similar quarters, certification of public and private emergency sable. The employees in this example cannot or are engaged in extended surveillance ac- rescue workers), does not constitute compen- use the time for their personal pursuits. tivities (e.g., stakeouts), they are not consid- sable hours of work for public employees (d) An employee who is not required to re- within that jurisdiction and subordinate ju- main on the employer’s premises but is ered to be completely relieved from duty, and any such meal periods would be compen- risdictions. merely required to leave word at home or (2) Attendance outside of regular working with company officials where he or she may sable. (c) With respect to firefighters employed hours at specialized or follow-up training, be reached is not working while on call. which is required for certification of employ- Time spent at home on call may or may not under section 7(k), who are confined to a duty station, the legislative history of the ees of a governmental jurisdiction by law of be compensable depending on whether the re- a higher level of government, does not con- strictions placed on the employee preclude Act indicates congressional intent to man- date a departure from the usual FLSA stitute compensable hours of work. using the time for personal pursuits. Where, (3) Time spent in the training described in for example, a firefighter has returned home ‘‘hours of work’’ rules and adoption of an overtime standard keyed to the unique con- paragraphs (b) (1) or (2) of this section is not after the shift, with the understanding that compensable, even if all or part of the costs he or she is expected to return to work in the cept of ‘‘tour of duty’’ under which fire- fighters are employed. Where the public of the training is borne by the employer. event of an emergency in the night, such (c) Police officers or firefighters, who are time spent at home is normally not compen- agency elects to use the section 7(k) exemp- tion for firefighters, meal time cannot be ex- in attendance at a police or fire academy or sable. On the other hand, where the condi- other training facility, are not considered to tions placed on the employee’s activities are cluded from the compensable hours of work where (1) the firefighter is on a tour of duty be on duty during those times when they are so restrictive that the employee cannot use not in class or at a training session, if they the time effectively for personal pursuits, of less than 24 hours, and (2) where the fire- fighter is on a tour of duty of exactly 24 are free to use such time for personal pur- such time spent on call is compensable. suits. Such free time is not compensable. (e) Normal home to work travel is not hours. § C553.227 Outside employment compensable, even where the employee is ex- (d) In the case of police officers or fire- (a) Section 7(p)(1) makes special provision pected to report to work at a location away fighters who are on a tour of duty of more for fire protection and law enforcement em- from the location of the employer’s prem- than 24 hours, meal time may be excluded ployees of public agencies who, at their own ises. from compensable hours of work provided (f) A police officer, who has completed his that the statutory tests for exclusion of such option, perform special duty work in fire or her tour of duty and who is given a patrol hours are met. protection, law enforcement or related ac- tivities for a separate and independent em- car to drive home and use on personal busi- § C553.224 ‘‘Work period’’ defined ness, is not working during the travel time ployer (public or private) during their off- (a) As used in section 7(k), the term ‘‘work duty hours. The hours of work for the sepa- even where the radio must be left on so that period’’ refers to any established and regu- the officer can respond to emergency calls. rate and independent employer are not com- larly recurring period of work which, under bined with the hours worked for the primary Of course, the time spent in responding to the terms of the Act and legislative history, such calls is compensable. public agency employer for purposes of over- cannot be less than 7 consecutive days nor time compensation. § C553.222 Sleep time more than 28 consecutive days. Except for (b) Section 7(p)(1) applies to such outside (a) Where a public agency elects to pay this limitation, the work period can be of employment provided (1) the special detail overtime compensation to firefighters and/or any length, and it need not coincide with the work is performed solely at the employee’s law enforcement personnel in accordance duty cycle or pay period or with a particular option, and (2) the two employers are in fact with section 7(a)(1) of the Act, the public day of the week or hour of the day. Once the separate and independent. agency may exclude sleep time from hours beginning and ending time of an employee’s (c) Whether two employers are, in fact, worked if all the conditions for the exclusion work period is established, however, it re- separate and independent can only be deter- of such time are met. mains fixed regardless of how many hours mined on a case-by-case basis. (b) Where the employer has elected to use are worked within the period. The beginning (d) The primary employer may facilitate the section 7(k) exemption, sleep time can- and ending of the work period may be the employment or affect the conditions of not be excluded from the compensable hours changed: Provided, That the change is in- employment of such employees. For exam- of work where— tended to be permanent and is not designed ple, a police department may maintain a ros- (1) the employee is on a tour of duty of less to evade the overtime compensation require- ter of officers who wish to perform such than 24 hours, and ments of the Act. work. The department may also select the (2) the employee is on a tour of duty of ex- (b) An employer may have one work period officers for special details from a list of actly 24 hours. applicable to all employees, or different those wishing to participate, negotiate their (c) Sleep time can be excluded from com- work periods for different employees or pay, and retain a fee for administrative ex- pensable hours of work, however, in the case groups of employees. penses. The department may require that the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00098 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4547 separate and independent employer pay the MAXIMUM HOURS STANDARDS—Continued ployee is compensated at the rate of time- fee for such services directly to the depart- and-a-half in pay for all hours in excess of 40 ment, and establish procedures for the offi- Work period (days) Fire protec- Law en- and up to 60 hours in a workweek, and (b) the cers to receive their pay for the special de- tion forcement employee is compensated at the rate of time- tails through the agency’s payroll system. 22 ...... 167 134 and-a-half in either pay or in time off for all Finally, the department may require that 21 ...... 159 128 hours in excess of 60 hours in a workweek. the officers observe their normal standards 20 ...... 151 122 19 ...... 144 116 § C553.303 Using compensatory time off of conduct during such details and take dis- 18 ...... 136 110 An employee who has accrued compen- ciplinary action against those who fail to do 17 ...... 129 104 satory time off under § C553.302 upon his or so. 16 ...... 121 98 15 ...... 114 92 her request, shall be permitted by the em- (e) Section 7(p)(1) applies to special details 14 ...... 106 86 ploying office to use such time within a rea- even where a State law or local ordinance re- 13 ...... 98 79 sonable period after making the request, un- quires that such work be performed and that 12 ...... 91 73 11 ...... 83 67 less the employing office makes a bona fide only law enforcement or fire protection em- 10 ...... 76 61 determination that the needs of the oper- ployees of a public agency in the same juris- 9 ...... 68 55 ations of the office do not allow the taking diction perform the work. For example, a 8 ...... 61 49 7 ...... 53 43 of compensatory time off at the time of the city ordinance may require the presence of request. An employee may renew the request city police officers at a convention center § C553.231 Compensatory time off at a subsequent time. An employing office during concerts or sports events. If the offi- may also, upon reasonable notice, require an cers perform such work at their own option, (a) Law enforcement and fire protection employees who are subject to the section employee to use accrued compensatory time- the hours of work need not be combined with off. the hours of work for their primary em- 7(k) exemption may receive compensatory ployer in computing overtime compensation. time off in lieu of overtime pay for hours § C553.304 Payment of overtime compensa- (f) The principles in paragraphs (d) and (e) worked in excess of the maximum for their tion for accrued compensatory time off as of this section with respect to special details work period as set forth in section C553.230. of termination of service of public agency fire protection and law en- (b) Section 7(k) permits public agencies to An employee who has accrued compen- forcement employees under section 7(p)(1) balance the hours of work over an entire satory time authorized by this regulation are exceptions to the usual rules on joint work period for law enforcement and fire shall, upon termination of employment, be employment set forth in part 791 of this protection employees. For example, if a fire- paid for the unused compensatory time at title. fighter’s work period is 28 consecutive days, the rate earned by the employee at the time (g) Where an employee is directed by the and he or she works 80 hours in each of the the employee receives such payment. public agency to perform work for a second first two weeks, but only 52 hours in the PART C570—CHILD LABOR REGULATIONS third week, and does not work in the fourth employer, section 7(p)(1) does not apply. SUBPART A—GENERAL Thus, assignments of police officers outside week, no overtime compensation (in cash wages or compensatory time) would be re- Sec. of their normal work hours to perform crowd C570.00 Corresponding section table of the control at a parade, where the assignments quired since the total hours worked do not exceed 212 for the work period. If the same FLSA regulations of the Labor are not solely at the option of the officers, Department and the CAA regu- would not qualify as special details subject firefighter had a work period of only 14 days, overtime compensation or compensatory lations of the Office of Compli- to this exception. This would be true even if ance. the parade organizers reimburse the public time off would be due for 54 hours (160 minus 106 hours) in the first 14 day work period. C570.1 Definitions. agency for providing such services. C570.2 Minimum age standards. § C553.232 Overtime pay requirements (h) Section 7(p)(1) does not prevent a public SUBPART B [RESERVED] agency from prohibiting or restricting out- If a public agency pays employees subject SUBPART C—EMPLOYMENT OF MINORS BE- side employment by its employees. to section 7(k) for overtime hours worked in TWEEN 14 AND 16 YEARS OF AGE (CHILD cash wages rather than compensatory time OVERTIME COMPENSATION RULES LABOR REG. 3) off, such wages must be paid at one and one- § C553.230 Maximum hours standards for C570.31 Determination. work periods of 7 to 28 days—section 7(k) half times the employees’ regular rates of pay. C570.32 Effect of this subpart. (a) For those employees engaged in fire C570.33 Occupations. protection activities who have a work period § C553.233 ‘‘Regular rate’’ defined C570.35 Periods and conditions of employ- of at least 7 but less than 28 consecutive The statutory rules for computing an em- ment. days, no overtime compensation is required ployee’s ‘‘regular rate’’, for purposes of the SUBPART D [RESERVED] Act’s overtime pay requirements are applica- under section 7(k) until the number of hours SUBPART E—OCCUPATIONS PARTICULARLY ble to employees or whom the section 7(k) worked exceeds the number of hours which HAZARDOUS FOR THE EMPLOYMENT OF MI- exemption is claimed when overtime com- bears the same relationship to 212 as the NORS BETWEEN 16 AND 18 YEARS OF AGE OR pensation is provided in cash wages. number of days in the work period bears to DETRIMENTAL TO THEIR HEALTH OR WELL- 28. SUBPART D—COMPENSATORY TIME-OFF FOR BEING (b) For those employees engaged in law en- OVERTIME EARNED BY EMPLOYEES WHOSE C570.50 General. forcement activities (including security per- WORK SCHEDULE DIRECTLY DEPENDS UPON C570.51 Occupations in or about plants or es- sonnel in correctional institutions) who have THE SCHEDULE OF THE HOUSE AND THE SEN- tablishments or a work period of at least 7 but less than 28 ATE storing explosives or articles consecutive days, no overtime compensation § C553.301 Definition of ‘‘directly depends’’ containing explosive compo- is required under section 7(k) until the num- For the purposes of this Part, a covered nents (Order 1). ber of hours worked exceeds the number of employee’s work schedule ‘‘directly de- C570.52 Occupations of motor-vehicle driver hours which bears the same relationship to pends’’ on the schedule of the House of Rep- and outside helper (Order 2). 171 as the number of days in the work period resentatives and the Senate only if the eligi- C570.55 Occupations involved in the oper- bears to 28. ble employee performs work that directly ation of power-driven wood- (c) The ratio of 212 hours to 28 days for em- supports the conduct of legislative or other working machines (Order 5). ployees engaged in fire protection activities business in the chamber and works hours C570.58 Occupations involved in the oper- is 7.57 hours per day (rounded) and the ratio that regularly change in response to the ation of power-driven hoisting of 171 hours to 28 days for employees engaged schedule of the House and the Senate. apparatus (Order 7). in law enforcement activities is 6.11 hours C570.59 Occupations involved in the oper- § C553.302 Overtime compensation and com- per day (rounded). Accordingly, overtime ations of power-driven metal pensatory time off for an employee whose compensation (in premium pay or compen- forming, punching, and shear- work schedule directly depends upon the satory time) is required for all hours worked ing machines (Order 8). in excess of the following maximum hours schedule of the House and Senate C570.62 Occupations involved in the oper- standards (rounded to the nearest whole No employing office shall be deemed to ation of bakery machines hour): have violated section 203(a)(1) of the CAA, (Order 11). which applies the protections of section 7(a) C570.63 Occupations involved in the oper- MAXIMUM HOURS STANDARDS of the Fair Labor Standards Act (‘‘FLSA’’) ation of paper-products ma- to covered employees and employing office, chines (Order 12). Work period (days) Fire protec- Law en- by employing any employee for a workweek C570.65 Occupations involved in the oper- tion forcement in excess of the maximum workweek applica- ations of circular saws, band 28 ...... 212 171 ble to such employee under section 7(a) of saws, and guillotine shears 27 ...... 204 165 the FLSA where the employee’s work sched- (Order 14). 26 ...... 197 159 ule directly depends on the schedule of the C570.66 Occupations involved in wrecking 25 ...... 189 153 24 ...... 182 147 House of Representatives or the Senate with- and demolition operations 23 ...... 174 141 in the meaning of § C553.301, and: (a) the em- (Order 15).

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00099 Fmt 4624 Sfmt 0655 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4548 CONGRESSIONAL RECORD — SENATE May 1, 1996 C570.67 Occupations in roofing operations minor is employed or in which his employ- Fair Labor Standards Act and Reorganiza- (Order 16). ment is contemplated. tion Plan No. 2, issued pursuant to the Reor- C570.68 Occupations in excavation operations (d) [Reserved]. ganization Act of 1945, find and declare to be (Order 17). (e) [Reserved]. hazardous for the employment of minors be- (f) ‘‘Secretary’’ or ‘‘Secretary of Labor’’ SUBPART A—GENERAL tween 16 and 18 years of age or detrimental means the Secretary of Labor, United States to their health or well-being; § C570.00 Corresponding section table of the Department of Labor, or his authorized rep- (f) Occupations in connection with: FLSA regulations of the Labor Department resentative. (1) Transportation of persons or property and the CAA regulations of the Office of (g) ‘‘Wage and Hour Division’’ means the by rail, highway, air, water, pipeline, or Compliance Wage and Hour Division, Employment other means; The following table lists the sections of the Standards Administration, United States De- (2) Warehousing and storage; Secretary of Labor Regulations under the partment of Labor. (3) Communications and public utilities; FLSA with the corresponding sections of the (h) ‘‘Administrator’’ means the Adminis- (4) Construction (including demolition and Office of Compliance Regulations under sec- trator of the Wage and Hour Division or his repair); except such office (including ticket tion 202 of the CAA: authorized representative. office) work, or sales work, in connection Secretary of Labor regu- OC regulations § C570.2 Minimum age standards with paragraphs (f) (1), (2), (3), and (4) of this lations (a) ALL OCCUPATIONS EXCEPT IN AGRI- section, as does not involve the performance 570.1 Definitions ...... C570.1 CULTURE.—(1) The Act, in section 3(1), sets a of any duties on trains, motor vehicles, air- 570.2 Minimum age stand- general 16-year minimum age which applies craft, vessels, or other media of transpor- ards ...... C570.2 to all employment subject to its child labor tation or at the actual site of construction 570.31 Determinations ...... C570.31 provisions in any occupation other than in operations. 570.32 Effect of this sub- agriculture, with the following exceptions: § C570.35 Periods and conditions of employ- part ...... C570.32 (i) The Act authorizes the Secretary of ment 570.33 Occupations ...... C570.33 Labor to provide by regulation or by order (a) Except as provided in paragraph (b) of 570.35 Periods and condi- that the employment of employees between this section, employment in any of the occu- tions of employment ...... C570.35 the ages of 14 and 16 years in occupations pations to which this subpart is applicable 570.50 General ...... C570.50 other than manufacturing and mining shall shall be confined to the following periods: 570.51 Occupations in or not be deemed to constitute oppressive child (1) Outside school hours; about plants or establish- labor, if and to the extent that the Secretary (2) Not more than 40 hours in any 1 week ments manufacturing or of Labor determines that such employment when school is not in session; storing explosives or ar- is confined to periods which will not inter- (3) Not more than 18 hours in any 1 week ticles containing explo- fere with their schooling and to conditions when school is in session; sive components (Order which will not interfere with their health (4) Not more than 8 hours in any 1 day 1) ...... C570.51 and well-being (see subpart C of this part); when school is not in session; 570.52 Occupations of and (5) Not more than 3 hours in any 1 day motor-vehicle driver and (ii) The Act sets an 18-year minimum age when school is in session; outside helper (Order 2) .. C570.52 with respect to employment in any occupa- 6) Between 7 a.m. and 7 p.m. in any 1 day, 570.55 Occupations in- tion found and declared by the Secretary of except during the summer (June 1 through volved in the operation Labor to be particularly hazardous for the Labor Day) when the evening hour will be 9 of power-driven wood- employment of minors of such age or detri- p.m. working machines (Order mental to their health or well-being. SUBPART D [RESERVED] 5) ...... C570.55 (2) The Act exempts from its minimum age SUBPART E—OCCUPATIONS PARTICULARLY 570.58 Occupations in- requirements the employment by a parent of HAZARDOUS FOR THE EMPLOYMENT OF MI- volved in the operation his own child, or by a person standing in NORS BETWEEN 16 AND 18 YEARS OF AGE OR of power-driven hoisting place of a parent of a child in his custody, DETRIMENTAL TO THEIR HEALTH OR WELL- apparatus (Order 7) ...... C570.58 except in occupations to which the 18-year BEING 570.59 Occupations in- age minimum applies and in manufacturing volved in the operations and mining occupations. § C570.50 General (a) HIGHER STANDARDS.—Nothing in this of power-driven metal SUBPART B [RESERVED] forming, punching, and subpart shall authorize non-compliance with SUBPART C—EMPLOYMENT OF MINORS BE- shearing machines (Order any Federal law or regulation establishing a TWEEN 14 AND 16 YEARS OF AGE (CHILD 8) ...... C570.59 higher standard. If more than one standard LABOR REG. 3) 570.62 Occupations in- within this subpart applies to a single activ- volved in the operation § C570.31 Determination ity the higher standard shall be applicable. of bakery machines The employment of minors between 14 and (b) APPRENTICES.—Some sections in this (Order 11) ...... C570.62 16 years of age in the occupations, for the pe- subpart contain an exemption for the em- 570.63 Occupations in- riods, and under the conditions hereafter ployment of apprentices. Such an exemption volved in the operation specified does not interfere with their shall apply only when: (1) The apprentice is of paper-products ma- schooling or with their health and well-being employed in a craft recognized as an chines (Order 12) ...... C570.63 and shall not be deemed to be oppressive apprenticeable trade; (2) the work of the ap- 570.65 Occupations in- child labor. prentice in the occupations declared particu- larly hazardous is incidental to his training; volved in the operations § C570.32 Effect of this subpart (3) such work is intermittent and for short of circular saws, band In all occupations covered by this subpart saws, and guillotine periods of time and is under the direct and the employment (including suffering or per- close supervision of a journeyman as a nec- shears (Order 14) ...... C570.65 mitting to work) by an employer of minor essary part of such apprentice training; and 570.66 Occupations in- employees between 14 and 16 years of age for (4) the apprentice is registered by the Execu- volved in wrecking and the periods and under the conditions speci- tive Director of the Office of Compliance as demolition operations fied in § 570.35 shall not be deemed to be op- employed in accordance with the standards (Order 15) ...... C570.66 pressive child labor within the meaning of established by the Bureau of Apprenticeship 570.67 Occupations in roof- the Fair Labor Standards Act of 1938. and Training of the United States Depart- ing operations (Order 16) C570.67 § C570.33 Occupations ment of Labor. 570.68 Occupations in exca- This subpart shall apply to all occupations (c) STUDENT-LEARNERS.—Some sections in vation operations (Order this subpart contain an exemption for the 17) ...... C570.68 other than the following: (a) Manufacturing, mining, or processing employment of student-learners. Such an ex- § C570.1 Definitions occupations, including occupations requiring emption shall apply when: As used in this part: the performance of any duties in work rooms (1) The student-learner is enrolled in a (a) ‘‘Act’’ means the Fair Labor Standards or work places where goods are manufac- course of study and training in a cooperative Act of 1938, as amended (52 Stat. 1060, as tured, mined, or otherwise processed; vocational training program under a recog- amended; 29 U.S.C. 201–219). (b) Occupations which involve the oper- nized State or local educational authority or (b) ‘‘Oppressive child labor’’ means em- ation or tending of hoisting apparatus or of in a course of study in a substantially simi- ployment of a minor in an occupation for any power-driven machinery other than of- lar program conducted by a private school; which he does not meet the minimum age fice machines; and standards of the Act, as set forth in section (c) The operation of motor vehicles or serv- (2) Such student-learner is employed under 570.2 of this subpart. ice as helpers on such vehicles; a written agreement which provides: (c) ‘‘Oppressive child labor age’’ means an (d) Public messenger service; (i) That the work of the student-learner in age below the minimum age established (e) Occupations which the Secretary of the occupations declared particularly haz- under the Act for the occupation in which a Labor may, pursuant to section 3(1) of the ardous shall be incidental to his training;

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00100 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4549 (ii) That such work shall be intermittent include ammunition, black powder, blasting § C570.55 Occupations involved in the oper- and for short periods of time, and under the caps, fireworks, high explosives, primers, ation of power-driven woodworking ma- direct and close supervision of a qualified smokeless powder, and all goods classified chines (Order 5) and experienced person; and defined as explosives by the Interstate (a) FINDING AND DECLARATION OF FACT.— (iii) That safety instructions shall be given Commerce Commission in regulations for the The following occupations involved in the by the school and correlated by the employer transportation of explosives and other dan- operation of power-driven wood-working ma- with on-the-job training; and gerous substances by common carriers (49 chines are particularly hazardous for minors (iv) That a schedule of organized and pro- CFR parts 71 to 78) issued pursuant to the between 16 and 18 years of age: gressive work processes to be performed on Act of June 25, 1948 (62 Stat. 739; 18 U.S.C. (1) The occupation of operating power-driv- the job shall have been prepared. Each such 835). en woodworking machines, including super- written agreement shall contain the name of (3) An area meeting all of the criteria in vising or controlling the operation of such student-learner, and shall be signed by the paragraphs (b)(3) (i) through (iv) of this sec- machines, feeding material into such ma- employer and the school coordinator or prin- tion shall be deemed a ‘‘nonexplosives area’’: chines, and helping the operator to feed ma- cipal. Copies of each agreement shall be kept (i) None of the work performed in the area terial into such machines but not including on file by both the school and the employer. involves the handling or use of explosives; the placing of material on a moving chain or This exemption for the employment of stu- (ii) The area is separated from the explo- in a hopper or slide for automatic feeding. dent-learners may be revoked in any indi- sives area by a distance not less than that (2) The occupations of setting up, adjust- vidual situation where it is found that rea- prescribed in the American Table of Dis- ing, repairing, oiling, or cleaning power-driv- sonable precautions have not been observed tances for the protection of inhabited build- en woodworking machines. for the safety of minors employed there- ings; (3) The occupations of off-bearing from cir- under. A high school graduate may be em- (iii) The area is separated from the explo- cular saws and from guillotine-action veneer ployed in an occupation in which he has sives area by a fence or is otherwise located clippers. completed training as provided in this para- so that it constitutes a definite designated (b) DEFINITIONS.—As used in this section: graph as a student-learner, even though he is area; and (1) The term ‘‘power-driven woodworking not yet 18 years of age. (iv) Satisfactory controls have been estab- machines’’ shall mean all fixed or portable § C570.51 Occupations in or about plants or lished to prevent employees under 18 years of machines or tools driven by power and used establishments manufacturing or storing age within the area from entering any area or designed for cutting, shaping, forming, explosives or articles containing explosive in or about the plant which does not meet surfacing, nailing, stapling, wire stitching, components (Order 1) criteria of paragraphs (b)(3) (i) through (iii) fastening, or otherwise assembling, pressing, (a) FINDING AND DECLARATION OF FACT.— of this section. or printing wood or veneer. The following occupations in or about plants (2) The term ‘‘off-bearing’’ shall mean the § C570.52 Occupations of motor-vehicle driver removal of material or refuse directly from a or establishments manufacturing or storing and outside helper (Order 2) explosives or articles containing explosive saw table or from the point of operation. Op- components are particularly hazardous for (a) FINDINGS AND DECLARATION OF FACT.— erations not considered as off-bearing within minors between 16 and 18 years of age or det- Except as provided in paragraph (b) of this the intent of this section include: (i) The re- rimental to their health or well-being: section, the occupations of motor-vehicle moval of material or refuse from a circular (1) All occupations in or about any plant or driver and outside helper on any public road, saw or guillotine-action veneer clipper where establishment (other than retail establish- highway, in or about any mine (including the material or refuse has been conveyed ments or plants or establishments of the open pit mine or quarry), place where log- away from the saw table or point of oper- type described in paragraph (a)(2) of this sec- ging or sawmill operations are in progress, ation by a gravity chute or by some mechan- tion) manufacturing or storing explosives or or in any excavation of the type identified in ical means such as a moving belt or expul- articles containing explosive components ex- § C570.68(a) are particularly hazardous for the sion roller, and (ii) the following operations cept where the occupation is performed in a employment of minors between 16 and 18 when they do not involve the removal of ma- ‘‘nonexplosives area’’ as defined in paragraph years of age. terial or refuse directly from a saw table or (b)(3) of this section. from the point of operation: The carrying, (b) EXEMPTION.—The findings and declara- (2) The following occupations in or about moving, or transporting of materials from tion in paragraph (a) of this section shall not any plant or establishment manufacturing or one machine to another or from one part of apply to the operation of automobiles or storing small-arms ammunition not exceed- a plant to another; the piling, stacking, or trucks not exceeding 6,000 pounds gross vehi- ing .60 caliber in size, shotgun shells, or arranging of materials for feeding into a ma- cle weight if such driving is restricted to blasting caps when manufactured or stored chine by another person; and the sorting, daylight hours: Provided, That such oper- in conjunction with the manufacture of tying, bundling, or loading of materials. ation is only occasional and incidental to the small-arms ammunition: (c) EXEMPTIONS.—This section shall not minor’s employment; that the minor holds a (i) All occupations involved in the manu- apply to the employment of apprentices or State license valid for the type of driving in- facturing, mixing, transporting, or handling student-learners under the conditions pre- volved in the job performed and has com- of explosive compounds in the manufacture scribed in section 570.50 (b) and (c). pleted a State approved driver education of small-arms ammunition and all other oc- § C570.58 Occupations involved in the oper- course: Provided further, That the vehicle is cupations requiring the performance of any ation of power-driven hoisting apparatus equipped with a seat belt or similar restrain- duties in the explosives area in which explo- (Order 7) ing device for the driver and for each helper, sive compounds are manufactured or mixed. (a) FINDING AND DECLARATION OF FACT.— and the employer has instructed each minor (ii) All occupations involved in the manu- The following occupations involved in the that such belts or other devices must be facturing, transporting, or handling of prim- operation of power-driven hoisting apparatus used. This paragraph shall not be applicable ers and all other occupations requiring the are particularly hazardous for minors be- to any occupation of motor-vehicle driver performance of any duties in the same build- tween 16 and 18 years of age: which involves the towing of vehicles. ing in which primers are manufactured. (1) Work of operating an elevator, crane, (iii) All occupations involved in the (c) DEFINITIONS.—For the purpose of this derrick, hoist, or high-lift truck, except op- priming of cartridges and all other occupa- section: erating an unattended automatic operation tions requiring the performance of any du- (1) The term ‘‘motor vehicle’’ shall mean passenger elevator or an electric or air-oper- ties in the same workroom in which rim-fire any automobile, truck, truck-tractor, trail- ated hoist not exceeding one ton capacity. cartridges are primed. er, semitrailer, motorcycle, or similar vehi- (2) Work which involves riding on a manlift (iv) All occupations involved in the plate cle propelled or drawn by mechanical power or on a freight elevator, except a freight ele- loading of cartridges and in the operation of and designed for use as a means of transpor- vator operated by an assigned operator. automatic loading machines. tation but shall not include any vehicle oper- (3) Work of assisting in the operation of a (v) All occupations involved in the loading, ated exclusively on rails. crane, derrick, or hoist performed by crane inspecting, packing, shipping and storage of (2) The term ‘‘driver’’ shall mean any indi- hookers, crane chasers, hookers-on, riggers, blasting caps. vidual who, in the course of employment, rigger helpers, and like occupations. (b) DEFINITIONS.—For the purpose of this drives a motor vehicle at any time. (b) DEFINITIONS.—As used in this section: section: (3) The term ‘‘outside helper’’ shall mean (1) The term ‘‘elevator’’ shall mean any (1) The term ‘‘plant or establishment man- any individual, other than a driver, whose power-driven hoisting or lowering mecha- ufacturing or storing explosives or articles work includes riding on a motor vehicle out- nism equipped with a car or platform which containing explosive component’’ means the side the cab for the purpose of assisting in moves in guides in a substantially vertical land with all the buildings and other struc- transporting or delivering goods. direction. The term shall include both pas- tures thereon used in connection with the (4) The term ‘‘gross vehicle weight’’ in- senger and freight elevators (including port- manufacturing or processing or storing of ex- cludes the truck chassis with lubricants, able elevators or tiering machines), but shall plosives or articles containing explosive water and a full tank or tanks of fuel, plus not include dumbwaiters. components. the weight of the cab or driver’s compart- (2) The term ‘‘crane’’ shall mean a power- (2) The terms ‘‘explosives’’ and ‘‘articles ment, body and special chassis and body driven machine for lifting and lowering a containing explosive components’’ mean and equipment, and payload. load and moving it horizontally, in which

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00101 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4550 CONGRESSIONAL RECORD — SENATE May 1, 1996 the hoisting mechanism is an integral part as a lever or pushbutton) in the car which hazardous for the employment of minors be- of the machine. The term shall include all when operated by the operator actuates a tween 16 and 18 years of age: types of cranes, such as cantilever gantry, starting device that automatically closes the (1) The occupations of operation or assist- crawler, gantry, hammerhead, ingot-pouring, car and hoistway doors from this point on, ing to operate any of the following power- jib, locomotive, motor-truck, overhead trav- the movement of the car to the landing se- driven paper products machines: eling, pillar jib, pintle, portal, semi-gantry, lected, leveling and holding when it gets (i) Arm-type wire stitcher or stapler, cir- semi-portal, storage bridge, tower, walking there, and the opening of the car and cular or band saw, corner cutter or mitering jib, and wall cranes. hoistway doors are entirely automatic. machine, corrugating and single-or-double- (3) The term ‘‘derrick’’ shall mean a power- § C570.59 Occupations involved in the oper- facing machine, envelope die-cutting press, driven apparatus consisting of a mast or ations of power-driven metal forming, guillotine paper cutter or shear, horizontal equivalent members held at the top by guys punching, and shearing machines (Order 8) bar scorer, laminating or combining ma- or braces, with or without a boom, for use (a) FINDING AND DECLARATION OF FACT.— chine, sheeting machine, scrap-paper baler, with a hoisting mechanism or operating The following occupations are particularly or vertical slotter. ropes. The term shall include all types of hazardous for the employment of minors be- (ii) Platen die-cutting press, platen print- derricks, such as A-frame, breast, Chicago tween 16 and 18 years of age: ing press, or punch press which involves boom, gin-pole, guy and stiff-leg derrick. (1) The occupations of operator of or helper hand feeding of the machine. (4) The term ‘‘hoist’’ shall mean a power- on the following power-driven metal form- (2) The occupations of setting-up, adjust- driven apparatus for raising or lowering a ing, punching, and shearing machines: ing, repairing, oiling, or cleaning these ma- load by the application of a pulling force (i) All rolling machines, such as beading, chines including those which do not involve that does not include a car or platform run- straightening, corrugating, flanging, or hand feeding. ning in guides. The term shall include all bending rolls; and hot or cold rolling mills. (b) DEFINITIONS.—(1) The term ‘‘operating types of hoists, such as base mounted elec- (ii) All pressing or punching machines, or assisting to operate’’ shall mean all work tric, clevis suspension, hook suspension, such as punch presses except those provided which involves starting or stopping a ma- monorail, overhead electric, simple drum with full automatic feed and ejection and chine covered by this section, placing or re- moving materials into or from the machine, and trolley suspension hoists. with a fixed barrier guard to prevent the or any other work directly involved in oper- (5) The term ‘‘high-lift’’ truck shall mean a hands or fingers of the operator from enter- ating the machine. The term does not in- power-driven industrial type of truck used ing the area between the dies; power presses; clude the stacking of materials by an em- for lateral transportation that is equipped and plate punches. (iii) All bending machines, such as apron ployee in an area nearby or adjacent to the with a power-operated lifting device usually machine where such employee does not place in the form of a fork or platform capable of brakes and press brakes. (iv) All hammering machines, such as drop the materials into the machine. tiering loaded pallets or skids one above the (2) The term ‘‘paper products’’ machine hammers and power hammers. other. Instead of a fork or platform, the lift- shall mean all power-driven machines used (v) All shearing machines, such as guillo- ing device may consist of a ram, scoop, shov- in: tine or squaring shears; alligator shears; and el, crane, revolving fork, or other attach- (i) The remanufacture or conversion of rotary shears. ments for handling specific loads. The term paper or pulp into a finished product, includ- (2) The occupations of setting up, adjust- shall mean and include highlift trucks ing the preparation of such materials for re- ing, repairing, oiling, or cleaning these ma- known under such names as fork lifts, fork cycling; or trucks, fork-lift trucks, tiering trucks, or chines including those with automatic feed (ii) The preparation of such materials for stacking trucks, but shall not mean low-lift and ejection. disposal. The term applies to such machines (b) DEFINITIONS.—(1) The term ‘‘operator’’ trucks or low-lift platform trucks that are whether they are used in establishments shall mean a person who operates a machine designed for the transportation of but not that manufacture converted paper or pulp covered by this section by performing such the tiering of material. products, or in any other type of manufac- (6) The term ‘‘manlift’’ shall mean a device functions as starting or stopping the ma- chine, placing materials into or removing turing or nonmanufacturing establishment. intended for the conveyance of persons which (c) EXEMPTIONS.—This section shall not them from the machine, or any other func- consists of platforms or brackets mounted apply to the employment of apprentices or tions directly involved in operation of the on, or attached to, an endless belt, cable, student-learners under the conditions pre- machine. chain or similar method of suspension; such (2) The term ‘‘helper’’ shall mean a person scribed in section 570.50 (b) and (c). belt, cable or chain operating in a substan- who assists in the operation of a machine § C570.65 Occupations involved in the oper- tially vertical direction and being supported covered by this section by helping place ma- ations of circular saws, band saws, and by and driven through pulleys, sheaves or terials into or remove them from the ma- guillotine shears (Order 14) sprockets at the top and bottom. chine. (a) FINDINGS AND DECLARATION OF FACT.— (c) EXCEPTION.—(1) This section shall not (3) The term ‘‘forming, punching, and The following occupations are particularly prohibit the operation of an automatic ele- shearing machines’’ shall mean power-driven hazardous for the employment of minors be- vator and an automatic signal operation ele- metal-working machines, other than ma- tween 16 and 18 years of age: vator: Provided, That the exposed portion of chine tools, which change the shape of or cut (1) The occupations of operator of or helper the car interior (exclusive of vents and other metal by means of tools, such as dies, rolls, on the following power-driven fixed or port- necessary small openings), the car door, and or knives which are mounted on rams, plung- able machines except machines equipped the hoistway doors are constructed of solid ers, or other moving parts. Types of forming, with full automatic feed and ejection: surfaces without any opening through which punching, and shearing machines enumer- (i) Circular saws. a part of the body may extend; all hoistway ated in this section are the machines to (ii) Band saws. openings at floor level have doors which are which the designation is by custom applied. (iii) Guillotine shears. interlocked with the car door so as to pre- (c) EXEMPTIONS.—This section shall not (2) The occupations of setting-up, adjust- vent the car from starting until all such apply to the employment of apprentices or ing, repairing, oiling, or cleaning circular doors are closed and locked; the elevator student-learners under the conditions pre- saws, band saws, and guillotine shears. (other than hydraulic elevators) is equipped scribed in section 570.50 (b) and (c). (b) DEFINITIONS.—(1) The term ‘‘operator’’ with a device which will stop and hold the § C570.62 Occupations involved in the oper- shall mean a person who operates a machine car in case of overspeed or if the cable slack- ation of bakery machines (Order 11) covered by this section by performing such ens or breaks; and the elevator is equipped The following occupations involved in the functions as starting or stopping the ma- with upper and lower travel limit devices operation of power-driven bakery machines chine, placing materials into or removing which will normally bring the car to rest at are particularly hazardous for the employ- them from the machine, or any other func- either terminal and a final limit switch ment of minors between 16 and 18 years of tions directly involved in operation of the which will prevent the movement in either age: machine. direction and will open in case of excessive (1) The occupations of operating, assisting (2) The term ‘‘helper’’ shall mean a person over travel by the car. to operate, or setting up, adjusting, repair- who assists in the operation of a machine (2) For the purpose of this exception the ing, oiling, or cleaning any horizontal or covered by this section by helping place ma- term ‘‘automatic elevator’’ shall mean a pas- vertical dough mixer; batter mixer; bread di- terials into or remove them from the ma- senger elevator, a freight elevator, or a com- viding, rounding, or molding machine; dough chine. bination passenger-freight elevator, the op- brake; dough sheeter; combination bread (3) The term ‘‘machines equipped with full eration of which is controlled by push- slicing and wrapping machine; or cake cut- automatic feed and ejection’’ shall mean ma- buttons in such a manner that the starting, chines covered by this Order which are ting band saw. going to the landing selected, leveling and equipped with devices for full automatic (2) The occupation of setting up or adjust- holding, and the opening and closing of the feeding and ejection and with a fixed barrier ing a cookie or cracker machine. car and hoistway doors are entirely auto- guard to prevent completely the operator or matic. § C570.63 Occupations involved in the oper- helper from placing any part of his body in (3) For the purpose of this exception, the ation of paper-products machines (Order the point-of-operation area. term ‘‘automatic signal operation elevator’’ 12) (4) The term ‘‘circular saw’’ shall mean a shall mean an elevator which is started in (a) FINDINGS AND DECLARATION OF FACT.— machine equipped with a thin steel disc hav- response to the operation of a switch (such The following occupations are particularly ing a continuous series of notches or teeth

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00102 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4551 on the periphery, mounted on shafting, and and shoring operations. (4) Working within where such test would be prohibited if re- used for sawing materials. shafts prior to the completion of all sinking quired by an employer under paragraphs (1), (5) The term ‘‘band saw’’ shall mean a ma- and shoring operations. (2) or (3) of section 3 of the Employee Poly- chine equipped with an endless steel band (b) EXEMPTIONS.—This section shall not graph Protection Act of 1988 (EPPA), 29 having a continuous series of notches or apply to the employment of apprentices or U.S.C. § 2002 (1), (2) or (3). The purpose of this teeth, running over wheels or pulleys, and student-learners under the conditions pre- Part is to set forth the regulations to carry used for sawing materials. scribed in section C570.50 (b) and (c). out the provisions of section 204 of the CAA. (6) The term ‘‘guillotine shear’’ shall mean EXCLUSION FOR EMPLOYEES OF THE CAPITOL Subpart A contains the provisions gen- a machine equipped with a movable blade op- POLICE erally applicable to covered employers, in- erated vertically and used to shear mate- None of the limitations on the use of lie cluding the requirements relating to the pro- rials. The term shall not include other types detector tests by employing offices set forth hibitions on lie detector use. Subpart B sets of shearing machines, using a different form in section 204 of the CAA apply to the Cap- forth rules regarding the statutory exemp- of shearing action, such as alligator shears itol Police. This exclusion from the limita- tions from application of section 204 of the or circular shears. tions of section 204 of the CAA applies only CAA. Subpart C sets forth the restrictions on (c) EXEMPTIONS.—This section shall not with respect to Capitol Police employees. polygraph usage under such exemptions. apply to the employment of apprentices or Except as otherwise provided by law or these Subpart D sets forth the rules on record- student-learners under the conditions pre- regulations, this exclusion does not extend keeping and the disclosure of polygraph test scribed in section 570.50 (b) and (c). to contractors or nongovernmental agents of information. § C570.66 Occupations involved in wrecking the Capitol Police; nor does it extend to the SEC. 1.2 DEFINITIONS. and demolition operations (Order 15) Capitol Police with respect to employees of a For purposes of this part: (a) FINDING AND DECLARATION OF FACT.—All private employer or an otherwise covered (a) Act or CAA means the Congressional occupations in wrecking and demolition op- employing office with which the Capitol Po- Accountability Act of 1995 (P.L. 104–1, 109 erations are particularly hazardous for the lice has a contractual or other business rela- Stat. 3, 2 U.S.C. §§ 1301–1438). employment of minors between 16 and 18 tionship. (b) EPPA means the Employee Polygraph years of age and detrimental to their health APPLICATION OF RIGHTS AND PROTEC- Protection Act of 1988 (Pub. L. 100–347, 102 and well-being. TIONS OF THE EMPLOYEE POLYGRAPH Stat. 646, 29 U.S.C. §§ 2001–2009) as applied to (b) DEFINITION.—The term ‘‘wrecking and PROTECTION ACT OF 1988 covered employees and employing offices by demolition operations’’ shall mean all work, section 204 of the CAA. SUBPART A—GENERAL including clean-up and salvage work, per- (c) The term covered employee means any formed at the site of the total or partial Sec. employee of (1) the House of Representatives; razing, demolishing, or dismantling of a 1.1 Purpose and scope. (2) the Senate; (3) the Capitol Guide Service; building, bridge, steeple, tower, chimney, 1.2 Definitions. (4) the Congressional Budget Office; (5) the other structure. 1.3 Coverage. Office of the Architect of the Capitol; (6) the 1.4 Prohibitions on lie detector use. Office of the Attending Physician; (7) the Of- § C570.67 Occupations in roofing operations 1.5 Effect on other laws or agreements. (Order 16) fice of Compliance; or (8) the Office of Tech- 1.6 Notice of protection. nology Assessment. (a) FINDING AND DECLARATION OF FACT.—All 1.7 Authority of the Board. (d) The term employee includes an appli- occupations in roofing operations are par- 1.8 Employment relationship. cant for employment and a former employee. ticularly hazardous for the employment of SUBPART B—EXEMPTIONS (e) The term employee of the Office of the minors between 16 and 18 years of age or det- Architect of the Capitol includes any em- rimental to their health. 1.10 Exclusion for employees of the Capitol Police. [Reserved]. ployee of the Office of the Architect of the (b) DEFINITION OF ROOFING OPERATIONS.— Capitol, the Botanic Gardens, or the Senate The term ‘‘roofing operations’’ shall mean 1.11 Exemption for national defense and se- Restaurants. all work performed in connection with the curity. (f) The term employee of the Capitol Police application of weatherproofing materials and 1.12 Exemption for employing offices con- includes any member or officer of the Cap- substances (such as tar or pitch, asphalt pre- ducting investigations of eco- itol Police. pared paper, tile, slate, metal, translucent nomic loss or injury. (g) The term employee of the House of Rep- materials, and shingles of asbestos, asphalt 1.13 Exemption for employing offices au- resentatives includes an individual occu- or wood) to roofs of buildings or other struc- thorized to manufacture, dis- pying a position the pay for which is dis- tures. The term shall also include all work tribute, or dispense controlled bursed by the Clerk of the House of Rep- performed in connection with: (1) The instal- substances. resentatives, or another official designated lation of roofs, including related metal work SUBPART C—RESTRICTIONS ON POLYGRAPH by the House of Representatives, or any em- such as flashing and (2) alterations, addi- USAGE UNDER EXEMPTIONS ployment position in an entity that is paid tions, maintenance, and repair, including 1.20 Adverse employment action under on- with funds derived from the clerk-hire allow- painting and coating, of existing roofs. The going investigation exemption. ance of the House of Representatives but not term shall not include gutter and downspout 1.21 Adverse employment action under con- any such individual employed by any entity work; the construction of the sheathing or trolled substance exemption. listed in subparagraphs (3) through (8) of base of roofs; or the installation of television 1.22 Rights of examinee—general. paragraph (c) above. antennas, air conditioners, exhaust and ven- 1.23 Rights of examinee—pretest phase. (h) The term employee of the Senate in- tilating equipment, or similar appliances at- 1.24 Rights of examinee—actual testing cludes any employee whose pay is disbursed tached to roofs. phase. by the Secretary of the Senate, but not any (c) EXEMPTIONS.—This section shall not 1.25 Rights of examinee—post-test phase. such individual employed by any entity list- apply to the employment of apprentices or 1.26 Qualifications of and requirements for ed in subparagraphs (3) through (8) of para- student-learners under the conditions pre- examiners. graph (c) above. scribed in section 570.50 (b) and (c). SUBPART D—RECORDKEEPING AND DISCLOSURE (i) The term employing office means (1) the § C570.68 Occupations in excavation oper- REQUIREMENTS personal office of a Member of the House of ations (Order 17) 1.30 Records to be preserved for 3 years. Representatives or of a Senator; (2) a com- (a) FINDING AND DECLARATION OF FACT.— 1.35 Disclosure of test information. mittee of the House of Representatives or The following occupations in excavation op- SUBPART E—[RESERVED] the Senate or a joint committee; (3) any erations are particularly hazardous for the 1.40 [Reserved]. other office headed by a person with the final employment of persons between 16 and 18 Appendix A—Notice to Examinee. authority to appoint, hire, discharge, and set years of age: (1) Excavating, working in, or Authority: Pub. L. 104–1, 109 Stat. 3, 2 U.S.C. the terms, conditions, or privileges of the backfilling (refilling) trenches, except (i) 1314(c). employment of an employee of the House of manually excavating or manually back- Representatives or the Senate; or (4) the filling trenches that do not exceed four feet SUBPART A—GENERAL Capitol Guide Board, the Congressional in depth at any point, or (ii) working in SEC. 1.1 PURPOSE AND SCOPE. Budget Office, the Office of the Architect of trenches that do not exceed four feet in Enacted into law on January 23, 1995, the the Capitol, the Office of the Attending Phy- depth at any point. (2) Excavating for build- Congressional Accountability Act (‘‘CAA’’) sician, the Office of Compliance, and the Of- ings or other structures or working in such directly applies the rights and protections of fice of Technology Assessment. The term excavations, except: (i) Manually excavating eleven Federal labor and employment law employing office includes any person acting to a depth not exceeding four feet below any statutes to covered employees and employ- directly or indirectly in the interest of an ground surface adjoining the excavation, or ing offices within the legislative branch. employing office in relation to an employee (ii) working in an excavation not exceeding Section 204(a) of the CAA, 2 U.S.C. § 1314(a) or prospective employee. A polygraph exam- such depth, or (iii) working in an excavation provides that no employing office may re- iner either employed for or whose services where the side walls are shored or sloped to quire any covered employee (including a cov- are retained for the sole purpose of admin- the angle of repose. (3) Working within tun- ered employee who does not work in that istering polygraph tests ordinarily would not nels prior to the completion of all driving employing office) to take a lie detector test be deemed an employing office with respect

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00103 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4552 CONGRESSIONAL RECORD — SENATE May 1, 1996 to the examinees. Any reference to ‘‘em- mit to a polygraph test during the employ- posting, a notice explaining the provisions of ployer’’ in these regulations includes em- ee’s tour of duty since, as a general rule, sus- section 204 of the CAA. Copies of such notice ploying offices. pect employees are often difficult to locate may be obtained from the Office of Compli- (j)(1) The term lie detector means a poly- away from their place of employment. Al- ance. graph, deceptograph, voice stress analyzer, lowing a test on the employing office’s prem- SEC. 1.7 AUTHORITY OF THE BOARD. psychological stress evaluator, or any other ises, releasing a covered employee during Pursuant to sections 204 and 304 of the similar device (whether mechanical or elec- working hours to take a test at police head- CAA, the Board is authorized to issue regula- trical) that is used, or the results of which quarters, and other similar types of coopera- tions to implement the rights and protec- are used, for the purpose of rendering a diag- tion at the request of the police authorities tions of the EPPA. Section 204(c) directs the nostic opinion regarding the honesty or dis- would not be construed as ‘‘requiring, re- Board to promulgate regulations imple- honesty of an individual. Voice stress ana- questing, suggesting, or causing, directly or menting section 204 that are ‘‘the same as lyzers, or psychological stress evaluators, in- indirectly, any covered employee * * * to substantive regulations promulgated by the clude any systems that utilize voice stress take or submit to a lie detector test’’. Co- Secretary of Labor to implement the statu- analysis, whether or not an opinion on hon- operation of this type must be distinguished tory provisions referred to in subsections (a) esty or dishonesty is specifically rendered. from actual participation in the testing of and (b) [of section 204 of the CAA] except in- (2) The term lie detector does not include employees suspected of wrongdoing, either sofar as the Board may determine, for good medical tests used to determine the presence through the administration of a test by the cause shown . . . that a modification of such or absence of controlled substances or alco- employing office at the request or direction regulations would be more effective for the hol in bodily fluids. Also not included in the of police authorities, or through reimburse- implementation of the rights and protections definition of lie detector are written or oral ment by the employing office of tests admin- under this section’’. The regulations issued tests commonly referred to as ‘‘honesty’’ or istered by police authorities to employees. In by the Board herein are on all matters for ‘‘paper and pencil’’ tests, machine-scored or some communities, it may be a practice of which section 204 of the CAA requires a regu- otherwise; and graphology tests commonly police authorities to request testing by em- lation to be issued. Specifically, it is the referred to as handwriting tests. ploying offices of employees before a police Board’s considered judgment, based on the (k) The term polygraph means an instru- investigation is initiated on a reported inci- information available to it at the time of ment that— dent. In other communities, police exam- promulgation of these regulations, that, (1) records continuously, visually, perma- iners are available to covered employing of- with the exception of the regulations adopt- nently, and simultaneously changes in car- fices, on a cost reimbursement basis, to con- ed and set forth herein, there are no other diovascular, respiratory, and electrodermal duct tests on employees suspected by an em- ‘‘substantive regulations promulgated by the patterns as minimum instrumentation ploying office of wrongdoing. All such con- Secretary of Labor to implement the statu- standards; and duct on the part of employing offices is tory provisions referred to in subsections (a) (2) is used, or the results of which are used, deemed within the prohibitions of section 204 and (b) [of section 204 of the CAA]’’. for the purpose of rendering a diagnostic of the CAA. In promulgating these regulations, the opinion regarding the honesty or dishonesty (c) The receipt by an employing office of Board has made certain technical and no- of an individual. information from a polygraph test adminis- menclature changes to the regulations as (l) Board means the Board of Directors of tered by police authorities pursuant to an in- promulgated by the Secretary. Such changes are intended to make the provisions adopted the Office of Compliance. vestigation is prohibited by section 3(2) of accord more naturally to situations in the (m) Office means the Office of Compliance. the EPPA. (See paragraph (a)(2) of this sec- legislative branch. However, by making SEC. 1.3 COVERAGE. tion.) these changes, the Board does not intend a (d) The simulated use of a polygraph in- The coverage of section 204 of the Act ex- substantive difference between these regula- strument so as to lead an individual to be- tends to any ‘‘covered employee’’ or ‘‘cov- tions and those of the Secretary from which lieve that an actual test is being or may be ered employing office’’ without regard to the they are derived. Moreover such changes, in performed (e.g., to elicit confessions or ad- number of employees or the employing of- and of themselves, are not intended to con- missions of guilt) constitutes conduct pro- fice’s effect on interstate commerce. stitute an interpretation of the regulation or hibited by paragraph (a) of this section. Such SEC. 1.4 PROHIBITIONS ON LIE DETECTOR USE. of the statutory provisions of the CAA upon use includes the connection of a covered em- (a) Section 204 of the CAA provides that, which they are based. ployee or prospective employee to the in- subject to the exemptions of the EPPA in- SEC. 1.8 EMPLOYMENT RELATIONSHIP. strument without any intention of a diag- corporated into the CAA under section 225(f) Subject to the exemptions incorporated nostic purpose, the placement of the instru- of the CAA, as set forth in section 1.10 into the CAA by section 225(f), section 204 ap- ment in a room used for interrogation through 1.12 of this Part, employing offices plies the prohibitions on the use of lie detec- unconnected to the covered employee or pro- are prohibited from: tors by employing offices with respect to spective employee, or the mere suggestion (1) Requiring, requesting, suggesting or covered employees irrespective of whether a causing, directly or indirectly, any covered that the instrument may be used during the covered employee works in that employing employee or prospective employee to take or course of the interview. office. Sections 101 (3), (4) and 204 of the CAA (e) The Capitol Police may not require a submit to a lie detector test; also apply EPPA prohibitions against dis- covered employee not employed by the Cap- (2) Using, accepting, or inquiring about the crimination to applicants for employment itol Police to take a lie detector test (on its results of a lie detector test of any covered and former employees of a covered employ- own initiative or at the request of another employee or prospective employee; and ing office. For example, an employee may employing office) except where the Capitol (3) Discharging, disciplining, discrimi- quit rather than take a lie detector test. The Police administers such lie detector test as nating against, denying employment or pro- employing office cannot discriminate or part of an ‘‘ongoing investigation’’ by the motion, or threatening any covered em- threaten to discriminate in any manner Capitol Police. For the purpose of this sub- ployee or prospective employee to take such against that person (such as by providing section, the definition of ‘‘ongoing investiga- action for refusal or failure to take or sub- bad references in the future) because of that tion’’ contained in section 1.12(b) shall apply. mit to such test, or on the basis of the re- person’s refusal to be tested. Similarly, an sults of a test. SEC. 1.5 EFFECT ON OTHER LAWS OR AGREE- employing office cannot discriminate or The above prohibitions apply irrespective MENTS. threaten to discriminate in any manner of whether the covered employee referred to (a) Section 204 of the CAA does not pre- against that person because that person files in paragraphs (1), (2) or (3), above, works in empt any otherwise applicable provision of a complaint, institutes a proceeding, testi- that employing office. Federal law or any rule or regulation of the fies in a proceeding, or exercises any right (b) An employing office that reports a theft House or Senate or any negotiated collective under section 204 of the CAA. (See section 207 or other incident involving economic loss to bargaining agreement that prohibits lie de- of the CAA.) tector tests or is more restrictive with re- police or other law enforcement authorities SUBPART B—EXEMPTIONS is not engaged in conduct subject to the pro- spect to the use of lie detector tests. (b)(1) This provision applies to all aspects SEC. 1.10 EXCLUSION FOR EMPLOYEES OF THE hibitions under paragraph (a) of this section CAPITOL POLICE [RESERVED]. if, during the normal course of a subsequent of the use of lie detector tests, including pro- SEC. 1.11 EXEMPTION FOR NATIONAL DEFENSE investigation, such authorities deem it nec- cedural safeguards, the use of test results, AND SECURITY. essary to administer a polygraph test to a the rights and remedies provided examinees, (a) The exemptions allowing for the admin- covered employee(s) suspected of involve- and the rights, remedies, and responsibilities istration of lie detector tests in the fol- ment in the reported incident. Employing of- of examiners and employing offices. lowing paragraphs (b) through (e) of this sec- fices that cooperate with police authorities (2) For example, a collective bargaining tion apply only to the Federal Government; during the course of their investigations into agreement that provides greater protection they do not allow covered employing offices criminal misconduct are likewise not to an examinee would apply in addition to to administer such tests. For the purposes of deemed engaged in prohibitive conduct: Pro- the protection provided in section 204 of the this section, the term ‘‘Federal Govern- vided, That such cooperation is passive in na- CAA. ment’’ means any agency or entity within ture. For example, it is not uncommon for SEC. 1.6 NOTICE OF PROTECTION. the Federal Government authorized to ad- police authorities to request employees sus- Pursuant to section 301(h) of the CAA, the minister polygraph examinations which is pected of theft or criminal activity to sub- Office shall prepare, in a manner suitable for otherwise

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00104 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4553 exempt from coverage under section 7(a) of (4) The employing office provides the ex- ity. For example, the use of an employing of- the EPPA, 29 U.S.C. § 2006(a). aminee with a statement, in a language un- fice’s vehicles, warehouses, computers or (b) Section 7(b)(1) of the EPPA, incor- derstood by the examinee, prior to the test equipment to smuggle or facilitate the im- porated into the CAA under section 225(f) of which fully explains with particularity the porting of illegal substances constitutes an the CAA, provides that nothing in the EPPA specific incident or activity being inves- indirect loss or injury to the employing of- shall be construed to prohibit the adminis- tigated and the basis for testing particular fice’s business operations. Conversely, the tration of any lie detector test by the Fed- employees and which contains, at a min- mere fact that an illegal act occurs on the eral Government, in the performance of any imum: employing office’s premises (such as a drug counterintelligence function, to any expert, (i) An identification with particularity of transaction that takes place in the employ- consultant or employee of any contractor the specific economic loss or injury to the ing office’s parking lot or rest room) does under contract with the Department of De- operations of the employing office; not constitute an indirect economic loss or fense; or with the Department of Energy, in (ii) A description of the employee’s access injury to the employing office. connection with the atomic energy defense to the property that is the subject of the in- (iv) Indirect loss or injury also includes activities of such Department. vestigation; theft or injury to property of another for (c) Section 7(b)(2)(A) of the EPPA, incor- (iii) A description in detail of the basis of which the employing office exercises fidu- porated into the CAA under section 225(f) of the employing office’s reasonable suspicion ciary, managerial or security responsibility, the CAA, provides that nothing in the EPPA that the employee was involved in the inci- or where the office has custody of the prop- shall be construed to prohibit the adminis- dent or activity under investigation; and erty (but not property of other offices to tration of any lie detector test by the Fed- (iv) Signature of a person (other than a which the employees have access by virtue of eral Government, in the performance of any polygraph examiner) authorized to legally the employment relationship). For example, intelligence or counterintelligence function bind the employing office; and if a maintenance employee of the manager of of the National Security Agency, the Defense (5) The employing office retains a copy of an apartment building steals jewelry from a Intelligence Agency, or the Central Intel- the statement and proof of service described tenant’s apartment, the theft results in an ligence Agency, to any individual employed in paragraph (a)(4) of this section for at least indirect economic loss or injury to the em- by, assigned to, or detailed to any such agen- 3 years. ployer because of the manager’s manage- cy; or any expert or consultant under con- (b) For the exemption to apply, the condi- ment responsibility with respect to the ten- tract to any such agency; or any employee of tion of an ‘‘ongoing investigation’’ must be ant’s apartment. A messenger on a delivery a contractor to such agency; or any indi- met. As used in section 7(d) of the EPPA, the of confidential business reports for a client vidual applying for a position in any such ongoing investigation must be of a specific firm who steals the reports causes an indi- agency; or any individual assigned to a space incident or activity. Thus, for example, an rect economic loss or injury to the mes- where sensitive cryptologic information is employing office may not request that an senger service because the messenger service produced, processed, or stored for any such employee or employees submit to a poly- is custodian of the client firm’s reports, and agency. graph test in an effort to determine whether therefore is responsible for their security. (d) Section 7(b)(2)(B) of the EPPA, incor- or not any thefts have occurred. Such ran- Similarly, the theft of property protected by porated into the CAA under section 225(f) of dom testing by an employing office is pre- a security service employer is considered an the CAA, provides that nothing in the EPPA cluded by the EPPA. Further, because the economic loss or injury to that employer. shall be construed to prohibit the adminis- exemption is limited to a specific incident or (v) A theft or injury to a client firm does tration of any lie detector test by the Fed- activity, an employing office is precluded not constitute an indirect loss or injury to eral Government, in the performance of any from using the exemption in situations an employing office unless that employing intelligence or counterintelligence function, where the so-called ‘‘ongoing investigation’’ office has custody of, or management, or se- to any covered employee whose duties in- is continuous. For example, the fact that curity responsibility for, the property of the volve access to information that has been items are frequently missing would not be a client that was lost or stolen or injured. For classified at the level of top secret or des- sufficient basis, standing alone, for admin- example, a cleaning contractor has no re- ignated as being within a special access pro- istering a polygraph test. Even if the em- sponsibility for the money at a client bank. gram under section 4.2 (a) of Executive Order ploying office can establish that unusually If money is stolen from the bank by one of 12356 (or a successor Executive order). high amounts of property are missing in a the cleaning contractor’s employees, the (e) Counterintelligence for purposes of the given month, this, in and of itself, would not cleaning contractor does not suffer an indi- above paragraphs means information gath- be a sufficient basis to meet the specific inci- rect loss or injury. ered and activities conducted to protect dent requirement. On the other hand, poly- (vi) Indirect loss or injury does not include against espionage and other clandestine in- graph testing in response to missing prop- loss or injury which is merely threatened or telligence activities, sabotage, terrorist ac- erty would be permitted where additional potential, e.g., a threatened or potential loss tivities, or assassinations conducted for or evidence is obtained through subsequent in- of an advantageous business relationship. on behalf of foreign governments, or foreign vestigation of specific items missing through (2) Economic losses or injuries which are or domestic organizations or persons. intentional wrongdoing, and a reasonable the result of unintentional or lawful conduct (f) Lie detector tests of persons described suspicion that the employee to be would not serve as a basis for the adminis- in the above paragraphs will be administered polygraphed was involved in the incident tration of a polygraph test. Thus, apparently in accordance with applicable Department of under investigation. Administering a poly- unintentional losses or injuries stemming Defense directives and regulations, or other graph test in circumstances where the miss- from truck, car, workplace, or other similar regulations and directives governing the use ing property is merely unspecified, statis- type accidents or routine inventory or cash of such tests by the United States Govern- tical shortages, without identification of a register shortages would not meet the eco- ment, as applicable. specific incident or activity that produced nomic loss or injury requirement. Any eco- SEC. 1.12 EXEMPTION FOR EMPLOYING OFFICES the missing property and a ‘‘reasonable sus- nomic loss incident to lawful union or em- CONDUCTING INVESTIGATIONS OF picion that the employee was involved’’, ployee activity also would not satisfy this ECONOMIC LOSS OR INJURY. would amount to little more than a fishing requirement. (a) Section 7(d) of the EPPA, incorporated expedition and is prohibited by the EPPA as (3) It is the operations of the employing of- into the CAA under section 225(f) of the CAA, applied to covered employees and employing fice which must suffer the economic loss or provides a limited exemption from the gen- offices by the CAA. injury. Thus, a theft committed by one em- eral prohibition on lie detector use for em- (c)(1)(i) The terms economic loss or injury ployee against another employee of the same ployers conducting ongoing investigations of to the employing office’s operations include employing office would not satisfy the re- economic loss or injury to the employer’s both direct and indirect economic loss or in- quirement. business. An employing office may request jury. (d) While nothing in the EPPA as applied an employee, subject to the conditions set (ii) Direct loss or injury includes losses or by the CAA prohibits the use of medical forth in sections 8 and 10 of the EPPA and injuries resulting from theft, embezzlement, tests to determine the presence of controlled sections 1.20, 1.22, 1.23, 1.24, 1.25, 1.26 and 1.35 misappropriation, espionage or sabotage. substances or alcohol in bodily fluids, the of this part, to submit to a polygraph test, These examples, cited in the EPPA, are in- section 7(d) exemption of the EPPA does not but no other type of lie detector test, only tended to be illustrative and not exhaustive. permit the use of a polygraph test to learn if— Another specific incident which would con- whether an employee has used drugs or alco- (1) The test is administered in connection stitute direct economic loss or injury is the hol, even where such possible use may have with an ongoing investigation involving eco- misappropriation of confidential or trade se- contributed to an economic loss to the em- nomic loss or injury to the employing of- cret information. ploying office (e.g., an accident involving an fice’s operations, such as theft, embezzle- (iii) Indirect loss or injury includes the use employing office’s vehicle). ment, misappropriation or an act of unlawful of an employing office’s operations to com- (e) Section 7(d)(2) of the EPPA provides industrial espionage or sabotage; mit a crime, such as check-kiting or money that, as a condition for the use of the exemp- (2) The employee had access to the prop- laundering. In such cases, the ongoing inves- tion, the employee must have had access to erty that is the subject of the investigation; tigation must be limited to criminal activity the property that is the subject of the inves- (3) The employing office has a reasonable that has already occurred, and to use of the tigation. suspicion that the employee was involved in employing office’s operations (and not sim- (1) The word access, as used in section the incident or activity under investigation; ply the use of the premises) for such activ- 7(d)(2), refers to the opportunity which an

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00105 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4554 CONGRESSIONAL RECORD — SENATE May 1, 1996 employee had to cause, or to aid or abet in (2) The statement required under para- distribution, or dispensing of any such con- causing, the specific economic loss or injury graph (a)(4) of this section must be received trolled substance by such employing office; under investigation. The term ‘‘access’’, by the employee at least 48 hours, excluding and thus, includes more than direct or physical weekend days and holidays, prior to the time (ii) The employee had access to the person contact during the course of employment. of the examination. The statement must set or property that is the subject of the inves- For example, as a general matter, all em- forth the time and date of receipt by the em- tigation. ployees working in or with authority to ployee and be verified by the employee’s sig- (b)(1) The terms manufacture, distribute, enter a property storage area have ‘‘access’’ nature. This will provide the employee with distribution, dispense, storage, and sale, for to unsecured property in the area. All em- adequate pre-test notice of the specific inci- the purposes of this exemption, are con- ployees with the combination to a safe have dent or activity being investigated and af- strued within the meaning of the Controlled ‘‘access’’ to the property in a locked safe. ford the employee sufficient time prior to Substances Act (21 U.S.C. § 812 et seq.), as ad- Employees also have ‘‘access’’ who have the the test to obtain and consult with legal ministered by the Drug Enforcement Admin- ability to divert possession or otherwise af- counsel or an employee representative. istration (DEA), United States Department fect the disposition of the property that is (3) The statement to be provided to the em- of Justice. the subject of investigation. For example, a ployee must set forth with particularity the (2) The exemption in section 7(f) of the bookkeeper in a jewelry store with access to specific incident or activity being inves- EPPA applies only to employing offices that inventory records may aid or abet a clerk tigated and the basis for testing particular are authorized by DEA to manufacture, dis- who steals an expensive watch by removing employees. Section 7(d)(4)(A) of the EPPA tribute, or dispense a controlled substance. the watch from the employing office’s inven- requires specificity beyond the mere asser- Section 202 of the Controlled Substances Act tory records. In such a situation, it is clear tion of general statements regarding eco- (21 U.S.C. § 812) requires every person who that the bookkeeper effectively has ‘‘access’’ nomic loss, employee access, and reasonable manufactures, distributes, or dispenses any to the property that is the subject of the in- suspicion. For example, an employing of- controlled substance to register with the At- vestigation. fice’s assertion that an expensive watch was torney General (i.e., with DEA). Common or (2) As used in section 7(d)(2), property re- stolen, and that the employee had access to contract carriers and warehouses whose pos- fers to specifically identifiable property, but the watch and is therefore a suspect, would session of the controlled substance is in the also includes such things of value as security not meet the ‘‘with particularity’’ criterion. usual course of their business or employment are not required to register. Truck drivers codes and computer data, and proprietary, fi- If the basis for an employing office’s request- and warehouse employees of the persons or nancial or technical information, such as ing an employee (or employees) to take a entities registered with DEA and authorized trade secrets, which by its availability to polygraph test is not articulated with par- to manufacture, distribute, or dispense con- competitors or others would cause economic ticularity, and reduced to writing, then the trolled substances, are within the scope of harm to the employing office. standard is not met. The identity of a co- (f)(1) As used in section 7(d)(3), the term worker or other individual providing infor- the exemption where they have direct access reasonable suspicion refers to an observable, mation used to establish reasonable sus- or access to the controlled substances, as articulable basis in fact which indicates that picion need not be revealed in the statement. discussed below. (c) In order for a polygraph examination to a particular employee was involved in, or re- (4) It is further required that the state- be performed, section 7(f) of the Act requires sponsible for, an economic loss. Access in the ment provided to the examinee be signed by sense of possible or potential opportunity, the employing office, or an employee or that a prospective employee have ‘‘direct ac- standing alone, does not constitute a basis other representative of the employing office cess’’ to the controlled substance(s) manu- for ‘‘reasonable suspicion’’. Information with authority to legally bind the employing factured, dispensed, or distributed by the from a co-worker, or an employee’s behavior, office. The person signing the statement employing office. Where a current employee demeanor, or conduct may be factors in the must not be a polygraph examiner unless the is to be tested as a part of an ongoing inves- basis for reasonable suspicion. Likewise, in- examiner is acting solely in the capacity of tigation, section 7(f) requires that the em- consistencies between facts, claims, or state- an employing office with respect to his or ployee have ‘‘access’’ to the person or prop- ments that surface during an investigation her own employees and does not conduct the erty that is the subject of the investigation. can serve as a sufficient basis for reasonable examination. The standard would not be (1) A prospective employee would have ‘‘di- suspicion. While access or opportunity, met, and the exemption would not apply if rect access’’ if the position being applied for standing alone, does not constitute a basis the person signing the statement is not au- has responsibilities which include contact for reasonable suspicion, the totality of cir- thorized to legally bind the employing office. with or which affect the disposition of a con- cumstances surrounding the access or oppor- (h) Polygraph tests administered pursuant trolled substance, including participation in tunity (such as its unauthorized or unusual to this exemption are subject to the limita- the process of obtaining, dispensing, or oth- nature or the fact that access was limited to tions set forth in sections 8 and 10 of the erwise distributing a controlled substance. a single individual) may constitute a factor EPPA, as discussed in sections 1.20, 1.22, 1.23, This includes contact or direct involvement in determining whether there is a reasonable 1.24, 1.25, 1.26, and 1.35 of this part. As pro- in the manufacture, storage, testing, dis- suspicion. vided in these sections, the exemption will tribution, sale or dispensing of a controlled (2) For example, in an investigation of a apply only if certain requirements are met. substance and may include, for example, theft of an expensive piece of jewelry, an em- Failure to satisfy any of the specified re- packaging, repackaging, ordering, licensing, ployee authorized to open the establish- quirements nullifies the statutory authority shipping, receiving, taking inventory, pro- ment’s safe no earlier than 9 a.m., in order to for polygraph test administration and may viding security, prescribing, and handling of place the jewelry in a window display case, is subject the employing office to remedial ac- a controlled substance. A prospective em- observed opening the safe at 7:30 a.m. In such tions, as provided for in section 6(c) of the ployee would have ‘‘direct access’’ if the de- a situation, the opening of the safe by the EPPA. scribed job duties would give such person ac- employee one and one-half hours prior to the cess to the products in question, whether specified time may serve as the basis for rea- SEC. 1.13 EXEMPTION OF EMPLOYING OFFICES AUTHORIZED TO MANUFACTURE, such employee would be in physical prox- sonable suspicion. On the other hand, in the DISTRIBUTE, OR DISPENSE CON- imity to controlled substances or engaged in example given, if the employee is asked to TROLLED SUBSTANCES. activity which would permit the employee to bring the piece of jewelry to his or her office (a) Section 7(f) of the EPPA, incorporated divert such substances to his or her posses- at 7:30 a.m., and the employee then opened into the CAA by section 225(f) of the CAA, sion. the safe and reported the jewelry missing, provides an exemption from the EPPA’s gen- (2) A current employee would have ‘‘ac- such access, standing alone, would not con- eral prohibition regarding the use of poly- cess’’ within the meaning of section 7(f) if stitute a basis for reasonable suspicion that graph tests for employers authorized to man- the employee had access to the specific per- the employee was involved in the incident ufacture, distribute, or dispense a controlled son or property which is the subject of the unless access to the safe was limited solely substance listed in schedule I, II, III, or IV of on-going investigation, as discussed in sec- to the employee. If no one other than the section 202 of the Controlled Substances Act tion 1.12(e) of this part. Thus, to test a cur- employee possessed the combination to the (21 U.S.C. § 812). This exemption permits the rent employee, the employee need not have safe, and all other possible explanations for administration of polygraph tests, subject to had ‘‘direct’’ access to the controlled sub- the loss are ruled out, such as a break-in, a the conditions set forth in sections 8 and 10 stance, but may have had only infrequent, basis for reasonable suspicion may be formu- lated based on sole access by one employee. of the EPPA and sections 1.21, 1.22, 1.23, 1.24, random, or opportunistic access. Such access (3) The employing office has the burden of 1.25, 1.26, and 1.35 of this part, to: would be sufficient to test the employee if establishing that the specific individual or (1) A prospective employee who would have the employee could have caused, or could individuals to be tested are ‘‘reasonably sus- direct access to the manufacture, storage, have aided or abetted in causing, the loss of pected’’ of involvement in the specific eco- distribution, or sale of any such controlled the specific property which is the subject of nomic loss or injury for the requirement in substance; or the investigation. For example, a mainte- section 7(d)(3) of the EPPA to be met. (2) A current employee if the following nance worker in a drug warehouse, whose job (g)(1) As discussed in paragraph (a)(4) of conditions are met: duties include the cleaning of areas where this section, section 7(d)(4) of the EPPA sets (i) The test is administered in connection the controlled substances which are the sub- forth what information, at a minimum, must with an ongoing investigation of criminal or ject of the investigation were present, but be provided to an employee if the employing other misconduct involving, or potentially whose job duties do not include the handling office wishes to claim the exemption. involving, loss or injury to the manufacture, of controlled substances, would be deemed to

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00106 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4555 have ‘‘access’’, but normally not ‘‘direct ac- (1) Current employees may only be admin- polygraph test, without additional sup- cess’’, to the controlled substances. On the istered polygraph tests in connection with porting evidence. other hand, a drug warehouse truck loader, an ongoing investigation of criminal or other (b) ‘‘Additional supporting evidence’’, for whose job duties include the handling of out- misconduct, relating to a specific incident or purposes of section 8(a) of the EPPA, in- going shipment orders which contain con- activity, or potential incident or activity. cludes, but is not limited to, the following: trolled substances, would have ‘‘direct ac- Thus, an employing office is precluded from (1)(i) Evidence indicating that the em- cess’’ to such controlled substances. A phar- using the exemption in connection with con- ployee had access to the missing or damaged macy department in a supermarket is an- tinuing investigations or on a random basis property that is the subject of an ongoing in- other common situation which is useful in il- to determine if thefts are occurring. How- vestigation; and lustrating the distinction between ‘‘direct ever, unlike the exemption in section 7(d) of (ii) Evidence leading to the employing of- access’’ and ‘‘access’’. Store personnel re- the EPPA for employing offices conducting fice’s reasonable suspicion that the employee ceiving pharmaceutical orders, i.e., the phar- ongoing investigations of economic loss or was involved in the incident or activity macist, pharmacy intern, and other such em- injury, the section 7(f) exemption includes under investigation; or ployees working in the pharmacy depart- ongoing investigations of misconduct involv- (2) Admissions or statements made by an ment, would ordinarily have ‘‘direct access’’ ing potential drug losses. Nor does the latter employee before, during or following a poly- to controlled substances. Other store per- exemption include the requirement for ‘‘rea- graph examination. sonnel whose job duties and responsibilities sonable suspicion’’ contained in the section (c) Analysis of a polygraph test chart or re- do not include the handling of controlled 7(d) exemption. Thus, a drug store operator fusal to take a polygraph test may not serve substances but who had occasion to enter the is permitted to polygraph all current em- as a basis for adverse employment action, pharmacy department where the controlled ployees who have access to a controlled sub- even with additional supporting evidence, substances which are the subject of the in- stance stolen from the inventory, or where unless the employing office observes all the vestigation were stored, such as mainte- there is evidence that such a theft is requirements of sections 7(d) and 8(b) of the nance personnel or pharmacy cashiers, would planned. Polygraph testing based on an in- EPPA, as applied by the CAA and described in sections 1.12, 1.22, 1.23, 1.24 and 1.25 of this have ‘‘access’’. Certain other store personnel ventory shortage of the drug during a par- part. whose job duties do not permit or require en- ticular accounting period would not be per- trance into the pharmacy department for mitted unless there is extrinsic evidence of SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CONTROLLED SUBSTANCE EXEMP- any reason, such as produce or meat clerks, misconduct. TION. checkout cashiers, or baggers, would not or- (2) In addition, the test must be adminis- (a) Section 8(a)(2) of the EPPA provides dinarily have ‘‘access’’. However, any cur- tered in connection with loss or injury, or that the controlled substance exemption in rent employee, regardless of described job potential loss or injury, to the manufacture, section 7(f) of the EPPA and section 1.13 of duties, may be polygraphed if the employing distribution, or dispensing of a controlled this part shall not apply if an employing of- office’s investigation of criminal or other substance. fice discharges, disciplines, denies employ- misconduct discloses that such employee in (i) Retail drugstores and wholesale drug ment or promotion, or otherwise discrimi- fact took action to obtain ‘‘access’’ to the warehouses typically carry inventory of so- nates in any manner against a current em- person or property that is the subject of the called health and beauty aids, cosmetics, ployee or prospective employee based solely investigation—e.g., by actually entering the over-the-counter drugs, and a variety of on the analysis of a polygraph test chart or drug storage area in violation of company other similar products, in addition to their the refusal to take a polygraph test. rules. In the case of ‘‘direct access’’, the pro- product lines of controlled drugs. The non- (b) Analysis of a polygraph test chart or spective employee’s access to controlled sub- controlled products usually constitute the refusal to take a polygraph test may serve as stances would be as a part of the manufac- majority of such firms’ sales volumes. An one basis for adverse employment actions of turing, dispensing or distribution process, economic loss or injury related to such non- the type described in paragraph (a) of this while a current employee’s ‘‘access’’ to the controlled substances would not constitute a section: Provided, That the adverse action controlled substances which are the subject basis of applicability of the section 7(f) ex- was also based on another bona fide reason, of the investigation need only be opportun- emption. For example, an investigation into with supporting evidence therefor. For exam- istic. the theft of a gross of cosmetic products ple, traditional factors such as prior employ- (d) The term prospective employee, for the could not be a basis for polygraph testing ment experience, education, job perform- purposes of this section, includes a current under section 7(f), but the theft of a con- ance, etc. may be used as a basis for employ- employee who presently holds a position tainer of valium could be. ment decisions. Employment decisions based which does not entail direct access to con- (ii) Polygraph testing, with respect to an on admissions or statements made by an em- trolled substances, and therefore is outside ongoing investigation concerning products ployee or prospective employee before, dur- the scope of the exemption’s provisions for other than controlled substances might be ing or following a polygraph examination preemployment polygraph testing, provided initiated under section 7(d) of the EPPA and may, likewise, serve as a basis for such deci- the employee has applied for and is being section 1.12 of this part. However, the exemp- sions. (c) Analysis of a polygraph test chart or considered for transfer or promotion to an- tion in section 7(f) of the EPPA and this sec- the refusal to take a polygraph test may not other position which entails such direct ac- tion is limited solely to losses or injury asso- serve as a basis for adverse employment ac- cess. For example, an office secretary may ciated with controlled substances. tion, even with another legitimate basis for apply for promotion to a position in the (g) Polygraph tests administered pursuant such action, unless the employing office ob- vault or cage areas of a drug warehouse, to this exemption are subject to the limita- serves all the requirements of section 7(f) of where controlled substances are kept. In tions set forth in sections 8 and 10 of the the EPPA, as appropriate, and section 8(b) of such a situation, the current employee would EPPA, as discussed in sections 1.21, 1.22, 1.23, be deemed a ‘‘prospective employee’’ for the the EPPA, as described in sections 1.13, 1.22, 1.24, 1.25, 1.26, and 1.35 of this part. As pro- 1.23, 1.24 and 1.25 of this part. purposes of this exemption, and thus could vided in these sections, the exemption will SEC. 1.22 RIGHTS OF EXAMINEE—GENERAL. be subject to preemployment polygraph apply only if certain requirements are met. (a) Pursuant to section 8(b) of the EPPA, screening, prior to such a change in position. Failure to satisfy any of the specified re- the limited exemption in section 7(d) of the However, any adverse action which is based quirements nullifies the statutory authority EPPA for ongoing investigations (described in part on a polygraph test against a current for polygraph test administration and may in sections 1.12 and 1.13 of this part) shall not employee who is considered a ‘‘prospective subject the employing office to the remedies employee’’ for purposes of this section may apply unless all of the requirements set forth authorized in section 204 of the CAA. The ad- in this section and sections 1.23 through 1.25 be taken only with respect to the prospective ministration of such tests is also subject to position and may not affect the employee’s of this part are met. collective bargaining agreements, which (b) During all phases of the polygraph test- employment in the current position. may either prohibit lie detector tests, or (e) Section 7(f) of the EPPA, as applied by ing the person being examined has the fol- contain more restrictive provisions with re- the CAA, makes no specific reference to a re- lowing rights: spect to polygraph testing. quirement that employing offices provide (1) The examinee may terminate the test current employees with a written statement SUBPART C—RESTRICTIONS ON POLYGRAPH at any time. prior to polygraph testing. Thus, employing USAGE UNDER EXEMPTIONS (2) The examinee may not be asked any offices to whom this exemption is available SEC. 1.20 ADVERSE EMPLOYMENT ACTION UNDER questions in a degrading or unnecessarily in- are not required to furnish a written state- ONGOING INVESTIGATION EXEMP- trusive manner. ment such as that specified in section 7(d) of TION. (3) The examinee may not be asked any the EPPA and section 1.12(a)(4) of this part. (a) Section 8(a)(1) of the EPPA provides questions dealing with: (f) For the section 7(f) exemption to apply, that the limited exemption in section 7(d) of (i) Religious beliefs or affiliations; the polygraph testing of current employees the EPPA and section 1.12 of this part for on- (ii) Beliefs or opinions regarding racial must be administered in connection with an going investigations shall not apply if an matters; ongoing investigation of criminal or other employing office discharges, disciplines, de- (iii) Political beliefs or affiliations; misconduct involving, or potentially involv- nies employment or promotion or otherwise (iv) Sexual preferences or behavior; or ing, loss or injury to the manufacture, dis- discriminates in any manner against a cur- (v) Beliefs, affiliations, opinions, or lawful tribution, or dispensing of any such con- rent employee based upon the analysis of a activities concerning unions or labor organi- trolled substance by such employing office. polygraph test chart or the refusal to take a zations.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00107 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4556 CONGRESSIONAL RECORD — SENATE May 1, 1996 (4) The examinee may not be subjected to (ii) Whether or not any other device, such test, although the legal counsel or represent- a test when there is sufficient written evi- as those used in conversation or recording ative may be excluded from the room where dence by a physician that the examinee is will be used during the examination; the test is administered during the actual suffering from any medical or psychological (iii) That both the examinee and the em- testing phase. condition or undergoing any treatment that ploying office have the right, with the oth- (xv) That the employee’s rights under the might cause abnormal responses during the er’s knowledge, to make a recording of the CAA may not be waived, either voluntarily actual testing phase. ‘‘Sufficient written evi- entire examination; or involuntarily, by contract or otherwise, dence’’ shall constitute, at a minimum, a (iv) That the examinee has the right to ter- except as part of a written settlement to a statement by a physician specifically de- minate the test at any time; pending action or complaint under the CAA, scribing the examinee’s medical or psycho- (v) That the examinee has the right, and agreed to and signed by the parties. logical condition or treatment and the basis will be given the opportunity, to review all (b) During the initial or any subsequent for the physician’s opinion that the condi- questions to be asked during the test; pretest phases, the examinee must be given tion or treatment might result in such ab- (vi) That the examinee may not be asked the opportunity, prior to the actual testing normal responses. questions in a manner which degrades, or phase, to review all questions in writing that (5) An employee or prospective employee needlessly intrudes; the examiner will ask during each testing who exercises the right to terminate the (vii) That the examinee may not be asked phase. Such questions may be presented at test, or who for medical reasons with suffi- any questions concerning religious beliefs or any point in time prior to the testing phase. cient supporting evidence is not adminis- opinions; beliefs regarding racial matters; SEC. 1.24 RIGHTS OF EXAMINEE—ACTUAL TEST- tered the test, shall be subject to adverse political beliefs or affiliations; matters re- ING PHASE. employment action only on the same basis lating to sexual behavior; beliefs, affili- (a) The actual testing phase refers to that as one who refuses to take a polygraph test, ations, opinions, or lawful activities regard- time during which the examiner administers as described in sections 1.20 and 1.21 of this ing unions or labor organizations; the examination by using a polygraph in- part. (viii) That the test may not be conducted strument with respect to the examinee and (c) Any polygraph examination shall con- if there is sufficient written evidence by a then analyzes the charts derived from the sist of one or more pretest phases, actual physician that the examinee is suffering test. Throughout the actual testing phase, testing phases, and post-test phases, which from a medical or psychological condition or the examiner shall not ask any question that must be conducted in accordance with the undergoing treatment that might cause ab- was not presented in writing for review prior rights of examinees described in sections 1.23 normal responses during the examination; to the testing phase. An examiner may, how- through 1.25 of this part. (ix) That the test is not and cannot be re- ever, recess the testing phase and return to quired as a condition of employment; the pre-test phase to review additional rel- SEC. 1.23 RIGHTS OF EXAMINEE—PRETEST (x) That the employing office may not dis- evant questions with the examinee. In the PHASE. charge, dismiss, discipline, deny employment case of an ongoing investigation, the exam- (a) The pretest phase consists of the ques- or promotion, or otherwise discriminate iner shall ensure that all relevant questions tioning and other preparation of the prospec- against the examinee based on the analysis (as distinguished from technical baseline tive examinee before the actual use of the of a polygraph test, or based on the questions) pertain to the investigation. polygraph instrument. During the initial examinee’s refusal to take such a test, with- (b) No testing period subject to the provi- pretest phase, the examinee must be: out additional evidence which would support sions of the Act shall be less than ninety (1) Provided with written notice, in a lan- such action; minutes in length. Such ‘‘test period’’ begins guage understood by the examinee, as to (xi)(A) In connection with an ongoing in- at the time that the examiner begins inform- when and where the examination will take vestigation, that the additional evidence re- ing the examinee of the nature and charac- place and that the examinee has the right to quired for the employing office to take ad- teristics of the examination and the instru- consult with counsel or an employee rep- verse action against the examinee, including ments involved, as prescribed in section resentative before each phase of the test. termination, may be evidence that the exam- 8(b)(2)(B) of the EPPA and section 1.23(a)(2) Such notice shall be received by the exam- inee had access to the property that is the of this part, and ends when the examiner inee at least forty-eight hours, excluding subject of the investigation, together with completes the review of the test results with weekend days and holidays, before the time evidence supporting the employing office’s the examinee as provided in section 1.25 of of the examination, except that a prospec- reasonable suspicion that the examinee was this part. The ninety-minute minimum dura- tive employee may, at the employee’s op- involved in the incident or activity under in- tion shall not apply if the examinee volun- tion, give written consent to administration vestigation; tarily acts to terminate the test before the of a test anytime within 48 hours but no ear- (B) That any statement made by the exam- completion thereof, in which event the ex- lier than 24 hours after receipt of the written inee before or during the test may serve as aminer may not render an opinion regarding notice. The written notice or proof of service additional supporting evidence for an ad- the employee’s truthfulness. must set forth the time and date of receipt verse employment action, as described in SEC. 1.25 RIGHTS OF EXAMINEE—POST-TEST by the employee or prospective employee paragraph (a)(3)(x) of this section, and that PHASE. and be verified by his or her signature. The any admission of criminal conduct by the ex- (a) The post-test phase refers to any ques- purpose of this requirement is to provide a aminee may be transmitted to an appro- tioning or other communication with the ex- sufficient opportunity prior to the examina- priate Government law enforcement agency; aminee following the use of the polygraph in- tion for the examinee to consult with coun- (xii) That information acquired from a strument, including review of the results of sel or an employee representative. Provision polygraph test may be disclosed by the ex- the test with the examinee. Before any ad- shall also be made for a convenient place on aminer or by the employing office only: verse employment action, the employing of- the premises where the examination will (A) To the examinee or any other person fice must: take place at which the examinee may con- specifically designated in writing by the ex- (1) Further interview the examinee on the sult privately with an attorney or an em- aminee to receive such information; basis of the test results; and ployee representative before each phase of (B) To the employing office that requested (2) Give to the examinee a written copy of the test. The attorney or representative may the test; any opinions or conclusions rendered in re- be excluded from the room where the exam- (C) To a court, governmental agency, arbi- sponse to the test, as well as the questions ination is administered during the actual trator, or mediator pursuant to a court asked during the test, with the cor- testing phase. order; responding charted responses. The term (2) Informed orally and in writing of the (D) By the employing office, to an appro- ‘‘corresponding charted responses’’ refers to nature and characteristics of the polygraph priate governmental agency without a court copies of the entire examination charts re- instrument and examination, including an order where, and only insofar as, the infor- cording the employee’s physiological re- explanation of the physical operation of the mation disclosed is an admission of criminal sponses, and not just the examiner’s written polygraph instrument and the procedure conduct; report which describes the examinee’s re- used during the examination. (xiii) That if any of the examinee’s rights sponses to the questions as ‘‘charted’’ by the (3) Provided with a written notice prior to or protections under the law are violated, instrument. the testing phase, in a language understood the examinee has the right to take action SEC. 1.26 QUALIFICATIONS OF AND REQUIRE- by the examinee, which shall be read to and against the employing office under sections MENTS FOR EXAMINERS. signed by the examinee. Use of Appendix A 401–404 of the CAA. Employing offices that (a) Section 8 (b) and (c) of the EPPA pro- to this part, if properly completed, will con- violate this law are liable to the affected ex- vides that the limited exemption in section stitute compliance with the contents of the aminee, who may recover such legal or equi- 7(d) of the EPPA for ongoing investigations notice requirement of this paragraph. If a table relief as may be appropriate, including, shall not apply unless the person conducting format other than in Appendix A is used, it but not limited to, employment, reinstate- the polygraph examination meets specified must contain at least the following informa- ment, and promotion, payment of lost wages qualifications and requirements. tion: and benefits, and reasonable costs, including (b) An examiner must meet the following (i) Whether or not the polygraph examina- attorney’s fees; qualifications: tion area contains a two-way mirror, a cam- (xiv) That the examinee has the right to (1) Have a valid current license, if required era, or other device through which the exam- obtain and consult with legal counsel or by the State in which the test is to be con- inee may be observed; other representative before each phase of the ducted; and

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00108 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4557 (2) Carry a minimum bond of $50,000 pro- (2) The employing office that requested the motion, or otherwise discriminate against vided by a surety incorporated under the polygraph test pursuant to the provisions of you based on the analysis of a polygraph laws of the United States or of any State, the EPPA (including management personnel test, or based on your refusal to take such a which may under those laws guarantee the of the employing office where the disclosure test without additional evidence which fidelity of persons holding positions of trust, is relevant to the carrying out of their job would support such action. or carry an equivalent amount of profes- responsibilities); (c)(1) In connection with an ongoing inves- sional liability coverage. (3) Any court, governmental agency, arbi- tigation, the additional evidence required for (c) An examiner must also, with respect to trator, or mediator pursuant to an order an employing office to take adverse action examinees identified by the employing office from a court of competent jurisdiction re- against you, including termination, may be pursuant to section 1.30(c) of this part: quiring the production of such information; (A) evidence that you had access to the prop- (1) Observe all rights of examinees, as set (b) An employing office may disclose infor- erty that is the subject of the investigation, out in sections 1.22, 1.23, 1.24, and 1.25 of this mation from the polygraph test at any time together with (B) the evidence supporting part; to an appropriate governmental agency with- the employing office’s reasonable suspicion (2) Administer no more than five polygraph out the need of a court order where, and only that you were involved in the incident or ac- examinations in any one calendar day on insofar as, the information disclosed is an tivity under investigation. which a test or tests subject to the provi- admission of criminal conduct. sions of EPPA are administered, not count- (c) A polygraph examiner may disclose test (2) Any statement made by you before or ing those instances where an examinee vol- charts, without identifying information (but during the test may serve as additional sup- untarily terminates an examination prior to not other examination materials and porting evidence for an adverse employment the actual testing phase; records), to another examiner(s) for exam- action, as described in 3(b) above, and any (3) Administer no polygraph examination ination and analysis, provided that such dis- admission of criminal conduct by you may subject to the provisions of the EPPA which closure is for the sole purpose of consulta- be transmitted to an appropriate Govern- is less than ninety minutes in duration, as tion and review of the initial examiner’s ment law enforcement agency. opinion concerning the indications of truth- described in section 1.24(b) of this part; and 4. (a) Information acquired from a polygraph (4) Render any opinion or conclusion re- fulness or deception. Such action would not constitute disclosure under this part pro- test may be disclosed by the examiner or by garding truthfulness or deception in writing. the employing office only: Such opinion or conclusion must be based vided that the other examiner has no direct solely on the polygraph test results. The or indirect interest in the matter. (1) To you or any other person specifically written report shall not contain any infor- SUBPART E—[RESERVED] designated in writing by you to receive such mation other than admissions, information, SEC. 1.40 [RESERVED]. information; case facts, and interpretation of the charts APPENDIX A TO PART 801—NOTICE TO (2) To the employing office that requested relevant to the stated purpose of the poly- EXAMINEE the test; graph test and shall not include any rec- Section 204 of the Congressional Account- ommendation concerning the employment of ability Act, which applies the rights and pro- (3) To a court, governmental agency, arbi- the examinee. tections of section 8(b) of the Employee trator, or mediator that obtains a court (5) Maintain all opinions, reports, charts, Polygraph Protection Act to covered em- order. written questions, lists, and other records re- ployees and employing offices, and the regu- (b) Information acquired from a polygraph lating to the test, including, statements lations of the Board of Directors of the Office test may be disclosed by the employing of- signed by examinees advising them of rights of Compliance (sections 1.22, 1.23, 1.24, and fice to an appropriate governmental agency under the CAA (as described in section 1.25), require that you be given the following without a court order where, and only inso- 1.23(a)(3) of this part) and any electronic re- information before taking a polygraph exam- far as, the information disclosed is an admis- cordings of examinations, for at least three ination: sion of criminal conduct. years from the date of the administration of 1. (a) The polygraph examination area the test. (See section 1.30 of this part for rec- 5. If any of your rights or protections under [does] [does not] contain a two-way mirror, ordkeeping requirements.) the law are violated, you have the right to a camera, or other device through which you take action against the employing office by SUBPART D—RECORDKEEPING AND DISCLOSURE may be observed. filing a request for counseling with the Of- REQUIREMENTS (b) Another device, such as those used in fice of Compliance under section 402 of the SEC. 1.30 RECORDS TO BE PRESERVED FOR 3 Congressional Accountability Act. Employ- YEARS. conversation or recording [will] [will not] be used during the examination. ing offices that violate this law are liable to (a) The following records shall be kept for the affected examinee, who may recover such a minimum period of three years from the (c) Both you and the employing office have legal or equitable relief as may be appro- date the polygraph examination is conducted the right, with the other’s knowledge, to priate, including, but not limited to, employ- (or from the date the examination is re- record electronically the entire examination. ment, reinstatement, and promotion, pay- quested if no examination is conducted): 2. (a) You have the right to terminate the ment of lost wages and benefits, and reason- (1) Each employing office that requests an test at any time. able costs, including attorney’s fees. employee to submit to a polygraph examina- tion in connection with an ongoing inves- (b) You have the right, and will be given the 6. Your rights under the CAA may not be tigation involving economic loss or injury opportunity, to review all questions to be waived, either voluntarily or involuntarily, shall retain a copy of the statement that asked during the test. by contract or otherwise, except as part of a sets forth the specific incident or activity (c) You may not be asked questions in a written settlement to a pending action or under investigation and the basis for testing manner which degrades, or needlessly in- complaint under the CAA, and agreed to and that particular covered employee, as re- trudes. signed by the parties. quired by section 7(d)(4) of the EPPA and de- (d) You may not be asked any questions con- I acknowledge that I have received a copy of scribed in 1.12(a)(4) of this part. cerning: Religious beliefs or opinions; beliefs the above notice, and that it has been read (2) Each examiner retained to administer regarding racial matters; political beliefs or to me. examinations pursuant to any of the exemp- affiliations; matters relating to sexual pref- tions under section 7 (d), (e) or (f) of the llllllllllllllllllll erence or behavior; beliefs, affiliations, opin- EPPA (described in sections 1.12 and 1.13 of (Date) ions, or lawful activities regarding unions or this part) shall maintain all opinions, re- llllllllllllllllllll labor organizations. (Signature) ports, charts, written questions, lists, and other records relating to polygraph tests of (e) The test may not be conducted if there is APPLICATION OF RIGHTS AND PROTEC- such persons. sufficient written evidence by a physician TIONS OF THE WORKER ADJUSTMENT RETRAINING AND NOTIFICATION ACT SEC. 1.35 DISCLOSURE OF TEST INFORMATION. that you are suffering from a medical or psy- OF 1988 (IMPLEMENTING SECTION 204 This section prohibits the unauthorized chological condition or undergoing treat- OF THE CAA) disclosure of any information obtained dur- ment that might cause abnormal responses ing a polygraph test by any person, other during the examination. Sec. 639.1 Purpose and scope. than the examinee, directly or indirectly, ex- (f) You have the right to consult with legal cept as follows: 639.2 What does WARN require? counsel or other representative before each 639.3 Definitions. (a) A polygraph examiner or an employing phase of the test, although the legal counsel 639.4 Who must give notice? office (other than an employing office ex- or other representative may be excluded 639.5 When must notice be given? empt under section 7 (a) or (b) of the EPPA from the room where the test is adminis- 639.6 Who must receive notice? (described in sections 1.10 and 1.11 of this tered during the actual testing phase. 639.7 What must the notice contain? part)) may disclose information acquired 3. (a) The test is not and cannot be required 639.8 How is the notice served? from a polygraph test only to: 639.9 When may notice be given less than 60 as a condition of employment. (1) The examinee or an individual specifi- days in advance? cally designated in writing by the examinee (b) The employing office may not discharge, 639.10 When may notice be extended? to receive such information; dismiss, discipline, deny employment or pro- 639.11 [Reserved].

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00109 Fmt 4624 Sfmt 0655 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4558 CONGRESSIONAL RECORD — SENATE May 1, 1996 § 639.1 Purpose and scope ment provides for a longer notice period, distinct units within a single site or the en- (a) PURPOSE OF WARN AS APPLIED BY THE WARN notice shall run concurrently with tire site. A mass layoff involves employment CAA.—Section 205 of the Congressional Ac- that additional notice period. Collective bar- loss, regardless of whether one or more units countability Act, Public Law 104–1 (‘‘CAA’’), gaining agreements may be used to clarify or are shut down at the site. provides protection to covered employees amplify the terms and conditions of WARN, (2) Workers, other than part-time workers, who are exempt from notice under section 4 and their families by requiring employing of- but may not reduce WARN rights. of WARN are nonetheless counted as employ- fices to provide notification 60 calendar days § 639.2 What does WARN require? ees for purposes of determining coverage as in advance of office closings and mass layoffs WARN requires employing offices that are an office closing or mass layoff. For exam- within the meaning of section 3 of the Work- planning an office closing or a mass layoff to ple, if an employing office closes a tem- er Adjustment and Retraining Notification give affected employees at least 60 days’ no- porary project on which 10 permanent and 40 Act of 1988, 29 U.S.C. § 2102. Advance notice tice of such an employment action. While temporary workers are employed, a covered provides workers and their families some the 60-day period is the minimum for ad- office closing has occurred although only 10 transition time to adjust to the prospective vance notice, this provision is not intended workers are entitled to notice. loss of employment, to seek and obtain alter- to discourage employing offices from volun- (d) REPRESENTATIVE.—The term ‘‘rep- native jobs and, if necessary, to enter skill tarily providing longer periods of advance resentative’’ means an exclusive representa- training or retraining that will allow these notice. Not all office closings and layoffs are tive of employees within the meaning of 5 workers to successfully compete in the job subject to WARN, and certain employment U.S.C. §§ 7101 et seq., as applied to covered market. As used in these regulations, WARN thresholds must be reached before WARN ap- employees and employing offices by section shall refer to the provisions of WARN applied plies. WARN sets out specific exemptions, 220 of the CAA, 2 U.S.C. § 1351. to covered employing offices by section 205 and provides for a reduction in the notifica- (e) AFFECTED EMPLOYEES.—The term ‘‘af- of the CAA. tion period in particular circumstances. fected employees’’ means employees who (b) SCOPE OF THESE REGULATIONS.—These Remedies authorized under section 205 of the may reasonably be expected to experience an regulations are issued by the Board of Direc- CAA may be assessed against employing of- employment loss as a consequence of a pro- tors, Office of Compliance, pursuant to sec- fices that violate WARN requirements. posed office closing or mass layoff by their tions 205(c) and 304 of the CAA, which directs employing office. This includes individually § 639.3 Definitions the Board to promulgate regulations imple- identifiable employees who will likely lose menting section 205 that are ‘‘the same as (a) EMPLOYING OFFICE.—(1) The term ‘‘em- their jobs because of bumping rights or other substantive regulations promulgated by the ploying office’’ means any of the entities factors, to the extent that such individual Secretary of Labor to implement the statu- listed in section 101(9) of the CAA, 2 U.S.C. workers reasonably can be identified at the tory provisions referred to in subsection (a) § 1301(9) that employs— time notice is required to be given. The term [of section 205 of the CAA] except insofar as (i) 100 or more employees, excluding part- affected employees includes managerial and the Board may determine, for good cause time employees; or supervisory employees. Consultant or con- shown . . . that a modification of such regu- (ii) employs 100 or more employees, includ- tract employees who have a separate em- lations would be more effective for the im- ing part-time employees, who in the aggre- ployment relationship with another employ- plementation of the rights and protections gate work at least 4,000 hours per week, ex- ing office or employer and are paid by that under this section’’. The regulations issued clusive of overtime. other employing office or employer, or who by the Board herein are on all matters for Workers on temporary layoff or on leave who are self-employed, are not ‘‘affected employ- which section 205 of the CAA requires a regu- have a reasonable expectation of recall are ees’’ of the operations to which they are as- lation to be issued. Specifically, it is the counted as employees. An employee has a signed. In addition, for purposes of deter- Board’s considered judgment, based on the ‘‘reasonable expectation of recall’’ when he/ mining whether coverage thresholds are met, information available to it at the time of she understands, through notification or either incumbent workers in jobs being promulgation of these regulations, that, through common practice, that his/her em- eliminated or, if known 60 days in advance, with the exception of regulations adopted ployment with the employing office has been the actual employees who suffer an employ- and set forth herein, there are no other ‘‘sub- temporarily interrupted and that he/she will ment loss may be counted. stantive regulations promulgated by the Sec- be recalled to the same or to a similar job. (f) EMPLOYMENT LOSS.—(1) The term em- retary of Labor to implement the statutory (2) Workers, other than part-time workers, ployment loss means (i) an employment ter- provisions referred to in subsection (a) [of who are exempt from notice under section 4 mination, other than a discharge for cause, section 205 of the CAA]’’. of WARN, are nonetheless counted as em- voluntary departure, or retirement, (ii) a In promulgating these regulations, the ployees for purposes of determining coverage layoff exceeding 6 months, or (iii) a reduc- Board has made certain technical and no- as an employing office. tion in hours of work of individual employ- menclature changes to the regulations as (3) An employing office may have one or ees of more than 50 percent during each promulgated by the Secretary. Such changes more sites of employment under common month of any 6-month period. (2) Where a termination or a layoff (see are intended to make the provisions adopted control. paragraphs (f)(1) (i) and (ii) of this section) is accord more naturally to situations in the (b) OFFICE CLOSING.—The term ‘‘office clos- involved, an employment loss does not occur legislative branch. However, by making ing’’ means the permanent or temporary when an employee is reassigned or trans- these changes, the Board does not intend a shutdown of a ‘‘single site of employment’’, ferred to employing office-sponsored pro- substantive difference between these sec- or one or more ‘‘facilities or operating grams, such as retraining or job search ac- tions and those of the Secretary from which units’’ within a single site of employment, if tivities, as long as the reassignment does not they are derived. Moreover, such changes, in the shutdown results in an ‘‘employment constitute a constructive discharge or other and of themselves, are not intended to con- loss’’ during any 30-day period at the single site of employment for 50 or more employ- involuntary termination. stitute an interpretation of the regulation or (3) An employee is not considered to have of the statutory provisions of the CAA upon ees, excluding any part-time employees. An employment action that results in the effec- experienced an employment loss if the clos- which they are based. ing or layoff is the result of the relocation or These regulations establish basic defini- tive cessation of the work performed by a unit, even if a few employees remain, is a consolidation of part or all of the employing tions and rules for giving notice, imple- office’s operations and, prior to the closing shutdown. A ‘‘temporary shutdown’’ triggers menting the provisions of WARN. The objec- or layoff— the notice requirement only if there are a tive of these regulations is to establish clear (i) The employing office offers to transfer sufficient number of terminations, layoffs principles and broad guidelines which can be the employee to a different site of employ- exceeding 6 months, or reductions in hours of applied in specific circumstances. However, ment within a reasonable commuting dis- work as specified under the definition of it is recognized that rulemaking cannot ad- tance with no more than a 6-month break in ‘‘employment loss’’. dress the multitude of employing office-spe- employment, or (c) MASS LAYOFF.—(1) The term ‘‘mass lay- cific situations in which advance notice will (ii) The employing office offers to transfer off’’ means a reduction in force which first, be given. the employee to any other site of employ- is not the result of an office closing, and sec- (c) NOTICE IN AMBIGUOUS SITUATIONS.—It is ment regardless of distance with no more ond, results in an employment loss at the civically desirable and it would appear to be than a 6-month break in employment, and single site of employment during any 30-day good business practice for an employing of- the employee accepts within 30 days of the period for: fice to provide advance notice, where reason- offer or of the closing or layoff, whichever is (i) At least 33 percent of the active employ- ably possible, to its workers or unions when later. ees, excluding part-time employees, and terminating a significant number of employ- (4) A ‘‘relocation or consolidation’’ of part ees. The Office encourages employing offices (ii) At least 50 employees, excluding part- or all of an employing office’s operations, for to give notice in such circumstances. time employees. purposes of paragraph § 639.3(f)(3), means that (d) WARN NOT TO SUPERSEDE OTHER LAWS Where 500 or more employees (excluding some definable operations are transferred to AND CONTRACTS.—The provisions of WARN do part-time employees) are affected, the 33 per- a different site of employment and that not supersede any otherwise applicable laws cent requirement does not apply, and notice transfer results in an office closing or mass or collective bargaining agreements that is required if the other criteria are met. Of- layoff. provide for additional notice or additional fice closings involve employment loss which (g) PART-TIME EMPLOYEE.—The term ‘‘part- rights and remedies. If such law or agree- results from the shutdown of one or more time’’ employee means an employee who is

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00110 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4559 employed for an average of fewer than 20 within the employing office’s organization to (2) The point in time at which the number hours per week or who has been employed for prepare and deliver the notice to affected of employees is to be measured for the pur- fewer than 6 of the 12 months preceding the employees or their representative(s). In most pose of determining coverage is the date the date on which notice is required, including instances, this may be the local site office first notice is required to be given. If this workers who work full-time. This term may manager, the local personnel director or a ‘‘snapshot’’ of the number of employees em- include workers who would traditionally be labor relations officer. ployed on that date is clearly unrepresenta- understood as ‘‘seasonal’’ employees. The pe- (b) An employing office that has previously tive of the ordinary or average employment riod to be used for calculating whether a announced and carried out a short-term lay- level, then a more representative number worker has worked ‘‘an average of fewer off (6 months or less) which is being extended can be used to determine coverage. Examples than 20 hours per week’’ is the shorter of the beyond 6 months due to circumstances not of unrepresentative employment levels in- actual time the worker has been employed or reasonably foreseeable at the time of the ini- clude cases when the level is near the peak the most recent 90 days. tial layoff is required to give notice when it or trough of an employment cycle or when (h) SINGLE SITE OF EMPLOYMENT.—(1) A sin- becomes reasonably foreseeable that the ex- large upward or downward shifts in the num- gle site of employment can refer to either a tension is required. A layoff extending be- ber of employees occur around the time no- single location or a group of contiguous loca- yond 6 months from the date the layoff com- tice is to be given. A more representative tions. Separate facilities across the street menced for any other reason shall be treated number may be an average number of em- from one another may be considered a single as an employment loss from the date of its ployees over a recent period of time or the site of employment. commencement. number of employees on an alternative date (2) There may be several single sites of em- (c) In the case of the privatization or sale which is more representative of normal em- ployment within a single building, such as of part or all of an employing office’s oper- ployment levels. Alternative methods cannot an office building, if separate employing of- ations, the employing office is responsible be used to evade the purpose of WARN, and fices conduct activities within such a build- for providing notice of any office closing or should only be used in unusual cir- ing. For example, an office building housing mass layoff which takes place up to and in- cumstances. 50 different employing offices will contain 50 cluding the effective date (time) of the pri- (b) TRANSFERS.—(1) Notice is not required single sites of employment. The offices of vatization or sale, and the contractor or in certain cases involving transfers, as de- each employing office will be its single site buyer is responsible for providing any re- scribed under the definition of ‘‘employment of employment. quired notice of any office closing or mass loss’’ at § 639.3(f) of this part. (3) Separate buildings or areas which are layoff that takes place thereafter. (2) An offer of reassignment to a different not directly connected or in immediate prox- (1) If the employing office is made aware of site of employment should not be deemed to imity may be considered a single site of em- any definite plans on the part of the buyer or be a ‘‘transfer’’ if the new job constitutes a ployment if they are in reasonable geo- contractor to carry out an office closing or constructive discharge. graphic proximity, used for the same pur- mass layoff within 60 days of purchase, the (3) The meaning of the term ‘‘reasonable pose, and share the same staff and equip- employing office may give notice to affected commuting distance’’ will vary with local ment. employees as an agent of the buyer or con- conditions. In determining what is a ‘‘rea- (4) Non-contiguous sites in the same geo- tractor, if so empowered. If the employing sonable commuting distance’’, consideration graphic area which do not share the same office does not give notice, the buyer or con- should be given to the following factors: geo- staff or operational purpose should not be tractor is, nevertheless, responsible to give graphic accessibility of the place of work, considered a single site. notice. If the employing office gives notice the quality of the roads, customarily avail- (5) Contiguous buildings operated by the as the agent of the buyer or contractor, the able transportation, and the usual travel same employing office which have separate responsibility for notice still remains with time. management and have separate workforces the buyer or contractor. (4) In cases where the transfer is beyond are considered separate single sites of em- (2) It may be prudent for the buyer or con- reasonable commuting distance, the employ- ployment. tractor and employing office to determine ing office may become liable for failure to (6) For workers whose primary duties re- the impacts of the privatization or sale on give notice if an offer to transfer is not ac- quire travel from point to point, who are workers, and to arrange between them for cepted within 30 days of the offer or of the outstationed, or whose primary duties in- advance notice to be given to affected em- closing or layoff (whichever is later). De- volve work outside any of the employing of- ployees or their representative(s), if a mass pending upon when the offer of transfer was fice’s regular employment sites (e.g., rail- layoff or office closing is planned. made by the employing office, the normal 60- road workers, bus drivers, salespersons), the § 639.5 When must notice be given? day notice period may have expired and the single site of employment to which they are office closing or mass layoff may have oc- (a) GENERAL RULE.—(1) With certain excep- assigned as their home base, from which tions discussed in paragraphs (b) and (c) of curred. An employing office is, therefore, their work is assigned, or to which they re- this section and in § 639.9 of this part, notice well advised to provide 60-day advance notice port will be the single site in which they are must be given at least 60 calendar days prior as part of the transfer offer. covered for WARN purposes. to any planned office closing or mass layoff, (c) TEMPORARY EMPLOYMENT.—(1) No no- (7) Foreign sites of employment are not as defined in these regulations. When all em- tice is required if the closing is of a tem- covered under WARN. United States workers ployees are not terminated on the same date, porary facility, or if the closing or layoff is at such sites are counted to determine the date of the first individual termination the result of the completion of a particular whether an employing office is covered as an within the statutory 30-day or 90-day period project or undertaking, and the affected em- employing office under § 639.3(a). triggers the 60-day notice requirement. A ployees were hired with the understanding (8) The term ‘‘single site of employment’’ worker’s last day of employment is consid- that their employment was limited to the may also apply to truly unusual organiza- ered the date of that worker’s layoff. The duration of the facility or the project or un- tional situations where the above criteria do first and each subsequent group of terminees dertaking. not reasonably apply. The application of this are entitled to a full 60 days’ notice. In order (2) Employees must clearly understand at definition with the intent to evade the pur- for an employing office to decide whether the time of hire that their employment is pose of WARN to provide notice is not ac- issuing notice is required, the employing of- temporary. When such understandings exist ceptable. fice should— will be determined by reference to employ- (i) FACILITY OR OPERATING UNIT.—The term (i) look ahead 30 days and behind 30 days to ment contracts, collective bargaining agree- ‘‘facility’’ refers to a building or buildings. determine whether employment actions both ments, or employment practices of other em- The term ‘‘operating unit’’ refers to an orga- taken and planned will, in the aggregate for ploying offices or a locality, but the burden nizationally or operationally distinct prod- any 30-day period, reach the minimum num- of proof will lie with the employing office to uct, operation, or specific work function bers for an office closing or a mass layoff and show that the temporary nature of the within or across facilities at the single site. thus trigger the notice requirement; and project or facility was clearly communicated § 639.4 Who must give notice? (ii) look ahead 90 days and behind 90 days should questions arise regarding the tem- Section 205(a)(1) of the CAA states that to determine whether employment actions porary employment understandings. ‘‘[n]o employing office shall be closed or a both taken and planned each of which sepa- § 639.6 Who must receive notice? mass layoff ordered within the meaning of rately is not of sufficient size to trigger Section 3(a) of WARN provides for notice section 3 of [WARN] until the end of a 60-day WARN coverage will, in the aggregate for to each representative of the affected em- period after the employing office serves writ- any 90-day period, reach the minimum num- ployees as of the time notice is required to ten notice of such prospective closing or bers for an office closing or a mass layoff and be given or, if there is no such representative layoff...’’. Therefore, an employing office thus trigger the notice requirement. An em- at that time, to each affected employee. that is anticipating carrying out an office ploying office is not, however, required under (a) REPRESENTATIVE(S) OF AFFECTED EM- closing or mass layoff is required to give no- section 3(d) to give notice if the employing PLOYEES.—Written notice is to be served tice to affected employees or their represent- office demonstrates that the separate em- upon the chief elected officer of the exclusive ative(s). (See definitions in § 639.3 of this ployment losses are the result of separate representative(s) or bargaining agent(s) of part.) and distinct actions and causes, and are not affected employees at the time of the notice. (a) It is the responsibility of the employing an attempt to evade the requirements of If this person is not the same as the officer office to decide the most appropriate person WARN. of the local union(s) representing affected

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00111 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4560 CONGRESSIONAL RECORD — SENATE May 1, 1996 employees, it is recommended that a copy (1) A statement as to whether the planned ticable, containing as much of the informa- also be given to the local union official(s). action is expected to be permanent or tem- tion required in § 639.7 as is available in the (b) AFFECTED EMPLOYEES.—Notice is re- porary and, if the entire office is to be circumstances of the disaster still must be quired to be given to employees who may closed, a statement to that effect; given, whether in advance or after the fact of reasonably be expected to experience an em- (2) The expected date when the office clos- an employment loss caused by a natural dis- ployment loss. This includes employees who ing or mass layoff will commence and the ex- aster. will likely lose their jobs because of bumping pected date when the individual employee (4) Where an office closing or mass layoff rights or other factors, to the extent that will be separated; occurs as an indirect result of a natural dis- such workers can be identified at the time (3) An indication whether or not bumping aster, the exception does not apply but the notice is required to be given. If, at the time rights exist; ‘‘unforeseeable business circumstance’’ ex- notice is required to be given, the employing (4) The name and telephone number of an ception described in paragraph (a) of this office cannot identify the employee who may employing office official to contact for fur- section may be applicable. reasonably be expected to experience an em- ther information. § 639.10 When may notice be extended? ployment loss due to the elimination of a The notice may include additional informa- Additional notice is required when the date particular position, the employing office tion useful to the employees such as infor- must provide notice to the incumbent in or schedule of dates of a planned office clos- mation on available dislocated worker as- ing or mass layoff is extended beyond the that position. While part-time employees are sistance, and, if the planned action is ex- not counted in determining whether office date or the ending date of any 14-day period pected to be temporary, the estimated dura- announced in the original notice as follows: closing or mass layoff thresholds are tion, if known. reached, such workers are due notice. (a) If the postponement is for less than 60 § 639.8 How is the notice served? days, the additional notice should be given § 639.7 What must the notice contain? Any reasonable method of delivery to the as soon as possible to the parties identified (a) NOTICE MUST BE SPECIFIC.—(1) All no- parties listed under § 639.6 of this part which in § 639.6 and should include reference to the tice must be specific. is designed to ensure receipt of notice of at earlier notice, the date (or 14-day period) to (2) Where voluntary notice has been given least 60 days before separation is acceptable which the planned action is postponed, and more than 60 days in advance, but does not (e.g., first class mail, personal delivery with the reasons for the postponement. The notice contain all of the required elements set out optional signed receipt). In the case of notifi- should be given in a manner which will pro- in this section, the employing office must cation directly to affected employees, inser- vide the information to all affected employ- ensure that all of the information required tion of notice into pay envelopes is another ees. by this section is provided in writing to the viable option. A ticketed notice, i.e., (b) If the postponement is for 60 days or parties listed in § 639.6 at least 60 days in ad- preprinted notice regularly included in each more, the additional notice should be treated vance of a covered employment action. as new notice subject to the provisions of (3) Notice may be given conditional upon employee’s pay check or pay envelope, does §§ 639.5, 639.6 and 639.7 of this part. Rolling the occurrence or nonoccurrence of an event not meet the requirements of WARN. notice, in the sense of routine periodic no- only when the event is definite and the con- § 639.9 When may notice be given less than sequences of its occurrence or nonoccurrence 60 days in advance? tice, given whether or not an office closing will necessarily, in the normal course of op- Section 3(b) of WARN, as applied by sec- or mass layoff is impending, and with the in- erations, lead to a covered office closing or tion 205 of the CAA, sets forth two conditions tent to evade the purpose of the Act rather mass layoff less than 60 days after the event. under which the notification period may be than give specific notice as required by The notice must contain each of the ele- reduced to less than 60 days. The employing WARN, is not acceptable. ments set out in this section. office bears the burden of proof that condi- §639.11 [Reserved] (4) The information provided in the notice tions for the exceptions have been met. If f shall be based on the best information avail- one of the exceptions is applicable, the em- able to the employing office at the time the ploying office must give as much notice as is AMENDMENTS SUBMITTED notice is served. It is not the intent of the practicable to the union and non-represented regulations that errors in the information employees and this may, in some cir- provided in a notice that occur because cumstances, be notice after the fact. The em- THE IMMIGRATION CONTROL AND events subsequently change or that are ploying office must, at the time notice actu- FINANCIAL RESPONSIBILITY ACT minor, inadvertent errors are to be the basis ally is given, provide a brief statement of the OF 1966 for finding a violation of WARN. reason for reducing the notice period, in ad- (b) DEFINITION.—As used in this section, dition to the other elements set out in § 639.7. the term ‘‘date’’ refers to a specific date or (a) The ‘‘unforeseeable business cir- GRAMM (AND OTHERS) to a 14-day period during which a separation cumstances’’ exception under section AMENDMENT NO. 3948 or separations are expected to occur. If sepa- 3(b)(2)(A) of WARN, as applied under the rations are planned according to a schedule, CAA, applies to office closings and mass lay- Mr. SIMPSON (for Mr. GRAMM for the schedule should indicate the specific offs caused by circumstances that were not himself, Mrs. HUTCHISON, and Mr. dates on which or the beginning date of each reasonably foreseeable at the time that 60- DOMENICI) proposed an amendment to 14-day period during which any separations day notice would have been required. amendment No. 3743 proposed by Mr. are expected to occur. Where a 14-day period (1) An important indicator of a cir- SIMPSON to the bill (S. 1664) to amend is used, notice must be given at least 60 days cumstance that is not reasonably foreseeable the Immigration and Nationality Act in advance of the first day of the period. is that the circumstance is caused by some to increase control over immigration (c) NOTICE.—Notice to each representative sudden, dramatic, and unexpected action or of affected employees is to contain: condition outside the employing office’s con- to the United States by increasing bor- (1) The name and address of the employ- trol. der patrol and investigative personnel ment site where the office closing or mass (2) The test for determining when cir- and detention facilities, improving the layoff will occur, and the name and tele- cumstances are not reasonably foreseeable system used by employers to verify phone number of an employing office official focuses on an employing office’s business citizenship or work-authorized alien to contact for further information; judgment. The employing office must exer- status, increasing penalties for alien (2) A statement as to whether the planned cise such reasonable business judgment as action is expected to be permanent or tem- smuggling and document fraud, and re- would a similarly situated employing office forming asylum, exclusion, and depor- porary and, if the entire office is to be in predicting the demands of its operations. closed, a statement to that effect; The employing office is not required, how- tation law and procedures; to reduce (3) The expected date of the first separa- ever, to accurately predict general economic the use of welfare by aliens; and for tion and the anticipated schedule for making conditions that also may affect its oper- other purposes; as follows: separations; ations. At the end, insert the following: (4) The job titles of positions to be affected (b) The ‘‘natural disaster’’ exception in ‘‘SEC. . FINDINGS RELATED TO THE ROLE OF IN- and the names of the workers currently hold- section 3(b)(2)(B) of WARN applies to office TERIOR BORDER PATROL STATIONS. ing affected jobs. closings and mass layoffs due to any form of The Congress makes the following findings: The notice may include additional informa- a natural disaster. (1) The Immigration and Naturalization tion useful to the employees such as infor- (1) Floods, earthquakes, droughts, storms, Service has drafted a preliminary plan for mation on available dislocated worker as- tidal waves or tsunamis and similar effects the removal of 200 Border Patrol agents from sistance, and, if the planned action is ex- of nature are natural disasters under this interior stations and the transfer of these pected to be temporary, the estimated dura- provision. agents to the Southwest border. tion, if known. (2) To qualify for this exception, an em- (2) The INS has stated that it intends to (d) EMPLOYEES NOT REPRESENTED.—Notice ploying office must be able to demonstrate carry out this transfer without disrupting to each affected employee who does not have that its office closing or mass layoff is a di- service and support to the communities in a representative is to be written in language rect result of a natural disaster. which interior stations are located. understandable to the employees and is to (3) While a disaster may preclude full or (3) Briefings conducted by INS personnel in contain: any advance notice, such notice as is prac- communities with interior Border Patrol

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00112 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4561 stations have revealed that Border Patrol SEC. .—The Immigration and Naturaliza- ducting a hearing on Airport Revenue agents at interior stations, particularly tion Service shall, when redeploying Border Diversion. those located in Southwest border States, Patrol personnel from interior stations, co- The PRESIDING OFFICER. Without perform valuable law enforcement functions ordinate with and act in conjunction with objection, it is so ordered. that cannot be performed by other INS per- State and local law enforcement agencies to sonnel. ensure that such deployment does not de- COMMITTEE ON ENERGY AND NATURAL (4) The transfer of 200 Border Patrol agents grade or compromise the law enforcement RESOURCES from interior stations to the Southwest bor- capabilities and functions currently per- Mr. SIMPSON. Mr. President, I ask der, which would not increase the total num- formed at interior Border Patrol stations. unanimous consent that the Com- ber of law enforcement personnel at INS, f mittee on Energy and Natural Re- would cost the federal government approxi- sources be granted permission to meet mately $12,000,000. NOTICES OF HEARINGS (5) The cost to the federal government of during the session of the Senate on COMMITTEE ON SMALL BUSINESS hiring new criminal investigators and other Wednesday, May 1, 1996, for purposes of personnel for interior stations is likely to be Mr. BOND. Mr. President, I wish to conducting a full committee business greater than the cost of retaining Border Pa- announce that the Committee on Small meeting which is scheduled to begin at trol agents at interior stations. Business will hold a hearing on ‘‘Small 9:30 a.m. The purpose of this meeting is (6) The first recommendations of the report Business Investment Company Reform to consider pending calendar business. by the National Task Force on Immigration Legislation’’ on Tuesday, May 7, 1996, The PRESIDING OFFICER. Without was to increase the number of Border Patrol at 10:00 a.m., in room 428A of the Rus- objection, it is so ordered. agents at the interior stations. sell Senate Office Building. (7) Therefore, it is the sense of the Con- COMMITTEE ON THE JUDICIARY For further information, please con- gress that— Mr. SIMPSON. Mr. President, I ask tact Paul Cooksey 224–5175. (A) the U.S. Border Patrol plays a key role unanimous consent that the Com- in apprehending and deporting undocu- COMMITTEE ON RULES AND ADMINISTRATION mittee on the Judiciary be authorized mented aliens throughout the United States; Mr. WARNER. Mr. President, I wish to meet during the session of the Sen- (B) interior Border Patrol stations play a to announce that the Committee on unique and critical role in the agency’s en- ate on Wednesday, May 1, 1996, at 10:00 forcement mission and serve as an invaluable Rules and Administration will meet in a.m. to hold a hearing on ‘‘Review of second line of defense in controlling illegal SR–301, Russell Senate Office Building, the National Drug Control Strategy.’’ immigration and its penetration to the inte- on Wednesday, May 8, 1996, at 9:30 a.m., The PRESIDING OFFICER. Without rior of our country; to hold a hearing on Campaign Finance objection, it is so ordered. (C) a permanent redeployment of Border Reform. COMMITTEE ON LABOR AND HUMAN RESOURCES Patrol agents from interior stations is not For further information concerning Mr. SIMPSON. Mr. President, I ask the most cost-effective way to meet enforce- this hearing, please contact Bruce ment needs along the Southwest border, and unanimous consent that the Com- Kasold of the Committee staff on 224– should only be done where new Border Patrol mittee on Labor and Human Resources 3448. agents cannot practicably be assigned to be authorized to meet in executive ses- meet enforcement needs along the Southwest COMMITTEE ON ENERGY AND NATURAL sion during the session of the Senate RESOURCES border; and on Wednesday, May 1, 1996, at 9:30 a.m. (D) the INS should hire, train and assign Mr. MURKOWSKI. Mr. President, I The PRESIDING OFFICER. Without new staff based on a strong Border Patrol would like to announce for the infor- objection, it is so ordered. presence both on the Southwest border and mation of the Senate and the public in interior stations that support border en- COMMITTEE ON SMALL BUSINESS forcement. that an oversight hearing has been scheduled before the Committee on En- Mr. SIMPSON. Mr. President, I ask unanimous consent that the Com- BRYAN AMENDMENT NO. 3949 ergy and Natural Resources. The pur- pose of this hearing is to receive testi- mittee on Small Business be authorized Mr. KENNEDY (for Mr. BRYAN) pro- mony on the recent increases in gaso- to meet during the session of the Sen- posed an amendment to amendment line prices. ate for two hearings on Wednesday, No. 3743 proposed by Mr. SIMPSON to The hearing will take place Thurs- May 1, 1996, in room 428A of the Russell the bill S. 1664, supra; as follows: day, May 9, 1996 at 9:30 a.m. in room Senate Office Building. The first is a At the appropriate place in the matter pro- SD–366 of the Dirksen Senate Office hearing regarding ‘‘President Clinton’s posed to be inserted by the amendment, in- Building in Washington, DC. Nomination of Ginger Ehn Lew to be sert the following: Those wishing to submit written Deputy Administrator of the United SEC. . EXCLUSION OF CERTAIN ALIENS FROM States Small Business Administration’’ FAMILY UNITY PROGRAM. statements should write to the Com- mittee on Energy and Natural Re- which will begin at 9:30 a.m., with the Section 301(e) of the Immigration Act of second hearing focusing on ‘‘The 1990 (8 U.S.C. 1255a note) is amended to read sources, U.S. Senate, Washington, DC as follows: 20510. For further information, please United States Small Business Adminis- ‘‘(e) EXCEPTION FOR CERTAIN ALIENS.—An call Judy Brown or Howard Useem at tration’s Fiscal Year 1997 Budget’’ to alien is not eligible for a new grant or exten- (202) 224–7556. immediately follow. sion of benefits of this section if the Attor- The PRESIDING OFFICER. Without f ney General finds that the alien— objection, it is so ordered. ‘‘(1) has been convicted of a felony or 3 or AUTHORITY FOR COMMITTEES TO SPECIAL COMMITTEE TO INVESTIGATE WHITE- more misdemeanors in the United States, MEET WATER DEVELOPMENT AND RELATED MATTERS ‘‘(2) is described in section 243(h)(2) of the Immigration and Nationality Act, or COMMITTEE ON ARMED SERVICES Mr. SIMPSON. Mr. President, I ask ‘‘(3) has committed an act of juvenile de- Mr. SIMPSON. Mr. President, I ask unanimous consent that the special linquency which if committed by an adult unanimous consent that the Com- committee to investigate Whitewater would be classified as— mittee on Armed Services and the asso- development and related matters be ‘‘(A) a felony crime of violence that has an ciated subcommittees be authorized to authorized to meet during the session element the use or attempted use of physical of the Senate on Wednesday, May 1, force against the person of another; or meet at the following time Wednesday ‘‘(B) a felony offense that by its nature in- May 1, 1996 for markup of the fiscal 1996 to conduct hearings pursuant to volves a substantial risk that physical force year 1997 Defense Authorization bill. Senate Resolution 120. against the person of another may be used in The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without the course of committing the offense.’’. objection, it is so ordered. objection, it is so ordered. COMMITTEE ON COMMERCE, SCIENCE, AND SUBCOMMITTEE ON AFRICAN AFFAIRS HUTCHISON AMENDMENT NO. 3950 TRANSPORTATION Mr. SIMPSON. Mr. President, I ask Mr. KENNEDY (for Mrs. HUTCHISON) Mr. SIMPSON. Mr. President, I ask unanimous consent that the Sub- proposed an amendment to amendment unanimous consent that the Com- committee on African Affairs of the No. 3743 proposed by Mr. SIMPSON to mittee on Commerce, Science, and Committee on Foreign Relations be au- the bill S. 1664, supra; as follows: Transportation be allowed to meet dur- thorized to meet during the session of At the appropriate place, insert the fol- ing the Wednesday, May 1, 1996 session the Senate on Wednesday, May 1, at lowing new section: of the Senate for the purpose of con- 2:00 p.m. to hold hearing.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00113 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4562 CONGRESSIONAL RECORD — SENATE May 1, 1996 ADDITIONAL STATEMENTS much discussion of ‘‘us’’ and ‘‘them,’’ nal bleeding were wheeled in to Room 9. these young people learn to value the Within moments, life-saving actions were ‘‘we’’ of ‘‘we the people.’’ I wish these taken to get one patient breathing. X-rays WE THE PEOPLE, THE CITIZENS, students the best of luck in the future were immediately taken and the young doc- AND THE CONSTITUTION tors made snap decisions on the treatment and look forward to their continued ∑ Mr. WELLSTONE. Mr. President, for these endangered patients. These emer- success in the years ahead.∑ gency room doctors don’t have on-going rela- today I would like to honor a group of f tionships with their patients. They treat and high school students who have em- JEFFERSON COUNTY MEDICAL move on to the next crisis with enormous barked on a project that not only en- SOCIETY dedication. hances their educations but fosters After an exhausting and exhilarating day, ∑ Mr. MCCONNELL. Mr. President, their sense of civic responsibility. Be- I returned the next morning at 7:15 a.m. to tween April 27 and April 29, more than twice a year, the Jefferson County Jewish Hospital to observe Dr. Laman Gray 1,300 students from all over the country Medical Society conducts a mini-in- perform a quadruple coronary bypass on a 67 were in Washington, DC, to compete in ternship program to inform and edu- year-old man. One stands in sheer amaze- the national finals of competition cate those outside the medical profes- ment at the sight of the human heart beat- sponsored by a program called We the sional about the practice of medicine. ing in an open chest cavity. When it came For 2 days, about 12 to 18 business pro- time for Dr. Gray to stitch the new bypass People, The Citizens, and the Constitu- vessels to the aorta, the heart was stopped tion. I’m proud to announce that the fessionals and government officials are matched up with several Louisville and then brought back to its rhythmic beat- class from Hutchinson High School in ing when Dr. Gray completed his delicate Hutchinson represented Minnesota in physicians to watch them perform work. Dr. Gray had another operation sched- the competition. These young people their jobs. Recently, Melissa Patack, a uled for the afternoon and in-between, he have undergone a rigorous course of member of my staff, had this unique was dealing with 2 other emergencies, in- study and worked diligently to reach and worthwhile opportunity. I ask that cluding arranging for the airlifting of a heart the national finals by winning local a summary of her experience be printed attack victim from another state to Jewish Hospital for care and treatment. competitions in their home State. in the RECORD. The accomplished young people rep- The material follows: Wednesday afternoon, I accompanied Dr. resenting Minnesota are the following: JEFFERSON COUNTY MEDICAL SOCIETY MINI- Cindy Zinner on her appointments at the INTERNSHIP—APRIL 16–17, 1996 Portland Family Clinic, a federally-spon- Adam Brodd, Megan Carls, Eddy Cox, sored community health center. Dr. Zinner Chris Dahlman, Aaron Douglas, Ben On April 16 and 17, 1996, I participated in the Jefferson County Medical Society’s Mini- specializes in internal medicine and pediat- Froemming, Aaron Hall, Eric Holtz, internship program. During the course of the rics, and that afternoon, was working as a Rana Kasich, Kristen Mann, Aaron two days, participants accompanied physi- pediatrician. The Portland facility fills a May, Mike Peek, Patrick Perrine, cians in their usual activities and had the unique role by being accessible not only to Terri Rennick, Chelle Robinson, John opportunity to observe first-hand the prac- those covered by health insurance (including Sandberg, Dave Schaefer, Sara tice of medicine. Medicaid) but also to the working poor who Sharstrom, Jill Shun, Kelly Watson, On Tuesday morning, I met Dr. Kathryn lack employer-sponsored health insurance, and who do not qualify for Medicaid. In ob- and Michelle Wulkan. Cashner, an ob-gyn with a speciality in high risk pregnancies, at her office to watch her serving Dr. Zinner treat several seemingly I would also like to recognize their morning appointments with more than a routine ear infections and perform a number teacher, Mike Carls, who deserves some dozen women. Dr. Cashner is a sole practi- of well-child examinations, the highly im- of the credit for the success of the tioner, with patients from all socio-economic portant role for preventive medicine be- team. The district coordinator, Jerry backgrounds. About one-quarter to one-third comes readily apparent. Dr. Zinner becomes Benson, and the State coordinator, of her patients receive Medicare benefits. a positive force in the lives of these strug- Robert Wangen, also contributed a sig- This was a morning of unusual normalcy, Dr. gling families. nificant amount of time and effort to Cashner remarked. Virtually all of the These doctors, the residents, nurses and help the team reach the national women were experiencing normal preg- other assistants with whom they work are nancies, although several of the patients finals. dedicated to the care and treatment of indi- were 4 to 6 months into their pregnancies viduals from every part of our society. Each The We the People program is spe- and seeing Dr. Cashner for the first prenatal cifically designed to educate young of the doctors has chosen a very different ca- visit. Dr. Cashner counseled one woman who reer in medicine, but all are devoted to the people about the Bill of Rights and the had a negative test result, but who was im- good health and life of the people they treat. Constitution. An evaluation of this mediately sent for a follow-up sonogram My experience was a significant educational program has shown that students in which turned out to be normal. When I left opportunity and I was privileged to watch the program display more political tol- Dr. Cashner at Audubon Hospital, she was these men and women perform their work.∑ erance and feel more politically effec- about to perform surgery on one of her high- tive than most adults in America. Stu- risk patients which would enable the patient f to carry her baby to full term. Dr. Cashner’s dents become more interested in poli- practice brings her into close contact with tics and they learn how to get politi- the lives of her patients; on one wall of her PRISON LITERACY cally involved. office she displays pictures of all the babies ∑ The 3-day national competition simu- she has brought into the world. Mr. SIMON. Mr President, you may lates a congressional hearing in which The afternoon brought me to Jewish Hos- remember that a few weeks ago, I had the students’ oral presentations are pital to observe Dr. Thomas O’Daniel, a plas- an amendment on the floor to restore judged on the basis of their knowledge tic surgeon, performing a face lift. Watching funding to the prison literacy program. of constitutional principles and their directly over his shoulder, I saw Dr. O’Daniel I hope that will stay in the final appro- perform the delicate task of reconstructing a priations that we agree to. ability to apply them to historical and 57 year-old woman’s face. The operation was contemporary issues. In short, these a grueling, pain-staking procedure of more The need to do something on the students are debating some of the very than 6 hours. Dr. O’Daniel concentrates on question of illiteracy was emphasized issues we’ve been debating on the Sen- facial injuries and gets a great deal of satis- in an editorial in the Chicago Tribune ate floor in recent months: the division faction from the work he does on children. and by an excellent letter to the editor of power between State and Federal The next morning, he was operating to cor- from George Ryan, the Secretary of Government, the balance of power rect a child’s clef palate. Last fall, he trav- State in Illinois who, I’m pleased to eled to Guatemala, where he and his staff op- among the branches of government, the erated on 75 children who suffered from clef say, has been a leader in literacy ef- right to privacy, the role of religion in palates and other facial deformities. forts. public life. In the evening, I went to University Hos- I ask that the George Ryan letter be Through the We the People program, pital where I watched Dr. Robert Couch run printed in the CONGRESSIONAL RECORD. students learn the constitutional val- the night shift of the emergency room. The ues of freedom, equality and justice, evening brought everything from walk-ins The letter follows: seeking routine medical care to the airlift of the principles that bind our Nation to- LEARNING IN PRISON gether. These students have taken two victims from a head-on automobile crash, probably caused by a driver who had SPRINGFIELD.—The March 25 editorial ti- something that is an historical docu- too much to drink. The residents under Dr. tled ‘‘The crime of prison illiteracy’’ cor- ment and made it a part of their lives. Couch’s supervision were poised for action rectly laid out the devastating problem of In an era when so much of our public when the helicopter landed and two women low literarcy levels among prisoners in Illi- discourse is polarized, when there is so with broken bones, head injuries and inter- nois and across the nation. Education is an

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00114 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4563 important factor in keeping people out of economy flourished. The whaling in- President Clinton who spoke at last jail and in reducing the number of repeat of- dustry soon took hold, and by the mid year’s dinner. Last night’s program fenders swelling our prisons. 1800’s whaling was the local economy’s featured Vice-President and Boosting overall adult literacy levels has majority leader DOLE and a number of long been a goal of mine. To this end, the mainstay. While that industry died secretary of state’s office has made a con- quickly after whales became scarce, Congressional Caucus members from certed effort to assist the Illinois Depart- New London’s whaling heritage is still both sides of the aisle demonstrating a ment of Corrections and local law-enforce- visible throughout town. New London continued bipartisan commitment and ment officials in offering literacy programs later grew into a manufacturing cen- expression of gratitude to the fire serv- to as many inmates as possible. ter, with silk mills and machine shops, ice. Over the last three years, my office has and became a major banking, industry, Mr. President, I am pleased to have funded volunteer literacy tutoring for 6,107 and transportation hub with easy rail- this opportunity to commend the Con- inmates. There are currently volunteer pro- gressional Fire Institute for its efforts grams in 22 state correctional facilities and road and ferry access up and down the East Coast. in promoting fire related issues and in 30 county and municipal jails. honoring the men and women of the In 1995, 785 community volunteers and in- New London’s coastline location has mate/peer tutors helped Illinois prisoners not only been economically important, fire service in a way that reflects the raise their reading levels. More inmates can but also strategically key. In 1776 dur- grace and valor with which they pro- ∑ be helped to overcome their literacy difficul- ing the Revolutionary War, the first tect us all. ties, however, if more volunteer tutors were colonial naval expedition sailed from f available. I urge the citizens of Illinois to do- New London, and local privateers beat nate a few hours of their time to a local lit- DONALD MINTZ eracy program. the British at sea during the war. Al- ∑ Mr. BREAUX. Mr. President, Amer- In addition to these volunteer efforts, I though the town was burned in retalia- ica lost a real civic leader, Louisiana have awarded a $64,400 literacy grant to the tion, New London was rebuilt and the and New Orleans lost a political leader Illinois Department of Corrections School area became a vital test and training who believed in cooperation, not con- District 428 to fund reading programs at the ground for America’s maritime forces. frontation, and I lost a good friend far Dwight, Kankakee, Pontiac and Sheridan fa- The U.S. Coast Guard Academy has cilities and to supplement literacy efforts at too early in his life. been based in New London since 1910, Don Mintz lived a beautiful life, 13 other state correctional centers. More and the city contributes much to nu- than 430 inmates were served by these pro- raised a beautiful family and had a grams. Test scores indicated that the read- clear submarine and Naval technology wonderful wife Susan, who together ing levels of these prisoners improved at a research and development via the contributed so much to so many. faster rate than the levels of other adult lit- many defense contractors based in the I ask that an editorial on Donald eracy students. area. Mintz that ran in the New Orleans As the Tribune pointed out, education is Today, Mr. President, New London Times Picayune on April 30, 1996, which not a panacea for reducing recidivism. But it remains a busy eastern seaport city expresses the feelings of so many, be is a proven fact that raising the reading that is home to a vibrant business com- printed in the RECORD. skills of inmates helps make them produc- munity, several colleges, an arts cen- The editorial follows: tive members of society after they serve their terms and reduces the chances that ter, and vacation resorts. And the same DONALD MINTZ they will commit another crime. New England grit that brought New Donald Mintz, who died unexpectedly Sun- GEORGE H. RYAN, London through the darkest days of day of a heart attack, was a New Orleanian Secretary of State.∑ the Revolutionary War survives. first and foremost. Though he never held For 350 years, the city of New London public office, Mr. Mintz set a highly public f example of how to be a citizen in our com- has contributed to the economic, mili- plex, multiracial community. He was as THE 350TH ANNIVERSARY OF THE tary, and cultural progress of the CITY OF NEW LONDON, CON- much at home in a corporate boardroom as United States of America. Its history in the humblest neighborhood. NECTICUT precedes the founding of our Nation. He tried to connect our disparate worlds. ∑Mr. DODD. Mr. President, I rise Few American cities can lay claim to He was a builder of bridges between his black today in honor of a very special event such a rich heritage, and as the motto and white friends, a man of faith nationally in the State of this year. recognized for his work as a Jewish lay lead- for the celebration indicates, this is a er and, most importantly, a dreamer of On Monday, May 6, 1996, the town of time for New London to rejoice in dreams, which he worked with ferocious en- New London will celebrate its 350th an- ‘‘Pride in the Past—Progress in the Fu- ergy to realize. One of his fondest, of becom- niversary, marking a milestone of his- ture.’’ I am proud to join the citizens of ing mayor of New Orleans, was unfulfilled toric significance to both the State and New London and all Connecticut’s citi- after unsuccessful campaigns in 1990 and our Nation. zens in celebrating this special birth- 1994. And what a history New London has. day.∑ But even without the portfolio of office, The one-room schoolhouse in which pa- Mr. Mintz was a doer, a relentless actor and f producer on the city’s stage. There was noth- triot Nathan Hale taught prior to his CONGRESSIONAL FIRE SERVICE ing lukewarm about him. Whatever caught hanging by the British as a Revolu- his interest had him thoroughly absorbed. tionary War spy stands in Union Plaza INSTITUTE And then he was relentless, driven, some- as a testament to the New England grit ∑ Mr. SARBANES. Mr. President, I rise times brazen, always dedicated, especially to with which the city has prospered for today to recognize the significant ef- New Orleans. centuries. forts of the Congressional Fire Services As Marc Morial, the man who defeated him Founded in 1646 by John Winthrop Institute, including those of Executive most recently for mayor, said: ‘‘Above all, he was a committed New Orleanian.’’ Jr., New London is situated in the area Director Bill Webb and others, in orga- By his death at age 53, Mr. Mintz had well the Pequot Indians called ‘‘Nameaug,’’ nizing the Eighth Annual National Fire beyond a lifetime’s worth of accomplish- or ‘‘good fishing place.’’ Indeed, after and Emergency Services Dinner last ments. He had been chairman of the Anti- Winthrop negotiated with the Pequots, night. Due to the tireless commitment Defamation League’s advisory board and the new colony’s locale, New London, of CFSI, this terrific event provided a achieved national stature in this country’s grew rapidly into a prosperous fishing highly appropriate opportunity to Jewish community; he had been a founder of a law firm; chairman of the Dock Board, the and seafaring city on the west side of honor and thank the men and women Downtown Development District, the United the Thames River. of the fire service who risk their own Way and the Criminal Justice Task Force on Throughout the 17th and 18th cen- lives every day to protect the lives and Violent Street Crime, and president of the turies, the port of New London bustled property of others. Metropolitan Area Committee, Kingsley with trading vessels carrying mer- In the 8 years since its inception, the House, Touro Synagogue and the Jewish chants and their goods between the annual dinner has grown beyond expec- Federation of Greater New Orleans. other colonies, Europe, and the Carib- tations, attracting an increasingly He was the managing partner of several Warehouse District renovations, a member of bean. With the barter of lumber and large number of friends and members of the Archbishop’s Community Appeal cam- horses for sugar, molasses, and rum, as the fire service from across the coun- paign committee and a board member of The well active trade of other goods and try. It has attracted scores of dig- Chamber/New Orleans and the River Region plentiful fishing reserves, the local nitaries over the past 8 years including and the New Orleans Symphony.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00115 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4564 CONGRESSIONAL RECORD — SENATE May 1, 1996 Between mayoral elections, he was pas- Mr. Bryan blocked Senate action. Mr. Ste- However, while a significant number sionate in his leadership of the statewide vens, meanwhile, has produced a weak revi- of Americans are succeeding, this ris- committee that set up the Louisiana Health sion that would deny the commission the ing tide is not lifting all boats. Many Care Authority to run the Charity hospital powers it needs to subpoena documents, con- Americans are still suffering, and we system and became chairman of the vene investigative hearings and make rec- authority’s board. ommendations that go beyond such obvious must do more to deal with their plight. The activities bespeak involvement and issues as native-American casinos and gam- Surely, there are no easy solutions to dynamism, but they don’t describe Donald bling on the Internet. Angered by criticism, America’s problems. We need to have a Mintz’s spirit. With his wife, Susan, he ex- Mr. Stevens last week decided, for now, debate on these issues. But, most im- uded a love of people, a love of life, a love of against reporting any bill out of his com- portant, we need to start finding ways community, a devotion to New Orleans. Cou- mittee. The delay increases the chance that to increase economic growth be it pled with this tireless drive, the result is the commission will die in the usual close-of- through balancing our budget, reform- that he made a difference in his hometown.∑ session legislative logjam. The social and economic consequences of ing our tax laws to create new jobs, re- f the rapid proliferation of casinos and state- lieving business of the burdens of GAMBLING IN THE SUNLIGHT run lotteries have received too little atten- wasteful regulation or lowering inter- tion. There is room for a comprehensive look est rates. ∑ Mr. SIMON. Mr. President, the New at the true costs and benefits for local econo- I share the view of many responsible York Times has again hit the mark in mies and at the relationship between gam- members of the business community a recent editorial supporting a national bling and crime. There is also a need to look who believe that our current growth study of the economic and social im- at the industry’s role in creating gambling rate of 2.5 per cent is far below the Na- pacts of gambling. The Gambling Im- addicts and the extent to which earnings de- tion’s true capacity for growth. Our pact Study Commission Act has re- rive from problem gamblers. Even staunch supporters of legalized gambling cannot ob- economy is capable of enhanced ceived considerable attention as it ject to a fair effort to give localities the in- growth, and we must do more to realize makes its way through the committee formation they need to make informed deci- this goal. process. Although the road has at sions before turning to gambling as a source The benefits of economic growth are times been bumpy, we are well on the of new or increased revenue. clear: An increase of as little as one- way to creating a commission with the Although Mr. Dole has received hefty cam- half of 1 percent in the growth rate, powers it needs to produce a balanced paign contributions from the gambling in- would wipe out the deficit, provide mil- and fair analysis of legalized gambling. dustry, he has indicated his support for a na- tional gambling study. To make it happen, lions of dollars for tax cuts and create In response to constructive criticism though, he needs to move quickly to make enormous employment opportunities of the original bill, we have been hard room for the bill on the Senate calendar and for millions of American workers. Ad- at work crafting a substitute. Devel- to insure its passage with the commission’s ditionally, increasing economic growth oped with bipartisan support, the sub- full investigative powers intact. Among would allow us to balance the budget stitute will take into account the le- other things the commission would study the without the draconian cuts in edu- gitimate interests of those whose live- gambling industry’s ability to influence pub- cation, the environment, Medicare, lihoods are invested in the industry as lic policy. The Senate’s timidity is a case in ∑ Medicaid, and other social programs well as the concerns of those who point. that my colleagues across the aisle would prefer to limit the expansion of f have advocated. gambling. A RECIPE FOR GROWTH Expanding economic growth may be However, we are quickly running out ∑ Mr. DODD. Mr. President, I rise the most important issue that faces of time. The American public deserves today to bring to my colleagues’ atten- our country and it is a challenge we all to know the advantages and disadvan- tion a recent article by Felix Rohatyn must undertake. Americans understand tages of legalized gambling. The Com- titled ‘‘Recipe for Growth,’’ which ap- that when we all work together, from mission’s report will be an important peared in the April 11, 1996, Wall Street the public and private sectors to em- national resource for policymakers at Journal. ployers and employees we can face any all levels of government. In order to Although he is a traditional Demo- challenge. make this happen, we need to move crat, Flex Rohatyn has long advocated Felix Rohatyn’s ‘‘Recipe For quickly to make room on the Senate economic solutions and ideas that Growth’’ serves as an excellent blue- calendar and to insure the passage of transcend political affiliation. And in a print for bringing genuine and real the Gambling Impact Study Commis- time when economic change and rising growth to the American economy. If we sion Act. job insecurity are causing more and are serious about expanding growth I urge my colleagues to read the edi- more American families to find that and bringing the promise of the Amer- torial and to work with me to pass this the promise of the American dream is ican dream to all our people, then I be- act before it is too late. increasingly unattainable his views de- lieve every Member of this body should I ask that the New York Times edi- serve particular recognition. take the time to read this article and torial be printed in the RECORD. Throughout my State of Connecticut, heed the advice of Felix Rohatyn. The editorial follows: and the Nation as a whole, thousands I ask that Mr. Rohatyn’s article be [From the New York Times, Apr. 27, 1996] of families are sitting around the printed in the RECORD. GAMBLING IN THE SUNLIGHT kitchen table wondering how are they The article follows: Just a few weeks ago, Representative going to pay their monthly bills. How [From , Apr. 11, 1996] ’s proposal to create a commis- are they going to make their mortgage RECIPE FOR GROWTH sion on the social and economic impact of payments? the nation’s gambling explosion seemed just But the issue runs even deeper—to (By Felix G. Rohatyn) the sort of virtuous idea that everyone in people’s vision of the future. Will they The American economy is now constrained this partisan Congress could support. In have the money to send their kids to by a financial iron triangle, in part created early March the House approved the nine- college? What happens if they lose by the Republican majority together with member study panel without dissent. But the the Clinton administration, from which it is Virginia Republican’s proposal is in trouble their health care? How can they pre- difficult to break out and which is beginning in the Senate and may die there unless the pare for retirement when they barely to generate serious social tensions. majority leader, , exerts leadership have enough right now? These painful The first leg of this triangle is the commit- to rescue it. choices are leaving workers anxious ment to balance the budget in seven years. A special interest group known for its gen- and scared for the future. Even though there has never been a rational erous campaign contributions—the Nevada- Let me be clear on one point: There explanation for this time frame, it has now based gaming industry—has teamed up with are millions of Americans who are suc- become part of the political theology. It prominent and well-compensated Republican ceeding in this economy. Since this ad- would be as dangerous for either party to de- lobbyists to try to stop the bill. With help ministration took Office, the American part from it, say by suggesting that eight or from Nevada’s Democratic Senator, Richard nine years would be equally logical, as it was Bryan, and Alaska’s , the Repub- economy has seen the creation of 8.5 for George Bush to abandon his ‘‘No new lican chairman of the Governmental Affairs million new jobs, many of which are taxes’’ pledge. Committee, the effort seems to be suc- both full time and at an increased The second leg is an extension of the first ceeding. wage. and is more restrictive in its effect: It is the

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00116 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4565 acceptance, by both parties and blessed by The fact that our 2 percent-2.5 percent that process to take place within the the Congressional Budget Office, that our present growth rate is inadequate is proven farmework of a market economy and a func- economic growth rate will be 2.2% for the by the very problems we face. The question tioning democracy. seven-year period. Even though projections of when, and especially how, to balance the We should have no illusions about the like- are notoriously inaccurate even over much federal budget deserves a great deal more in- lihood of reducing the level of present in- shorter periods, this particular projection is telligent discussion than the political come and wealth differentials; they are like- becoming both a prediction and a self-limita- sloganeering we have heard so far. The budg- ly to increase in the near future as the re- tion. It implies that this rate of growth is et is a document that reflects neither eco- quirements for skills and education increase. the limit of what our economy is capable of nomic reality nor valid accounting practices. The world is not fair; we must, however, without inflation. Since this view has the If the budget is to be balanced in order to make it better for those in the middle as support of the Federal Reserve, the Treasury satisfy the financial markets, only real jus- well as at the lower end of the economic and the financial markets, it has become a tification of this goal, then it must be done scale. The key is enough growth that, even if de facto limit on economic growth. The mar- with growth rather than with retrenchment. initially the lower end does not gain as rap- kets and the Fed react to any appearance of That higher growth, together with control- idly as the upper, it can improve its absolute acceleration with higher interest rates and ling costs of entitlement like Medicare, Med- standard of living, and being a process of the economy then falls back to 2.2% or icaid and Social Security, will generate the closing the gap. below. capital needed to provide both private and Higher growth requires a tax system that The third leg of this triangle is the impact public investment adequate to the country’s promotes growth as its main objective. It of technology and global competition on in- needs. must encourage higher investment and sav- comes and employment. THe lethal political Bringing the rate of growth from its ings. That is not the case today. Today’s tax combination of corporation downsizing to- present 2 percent-2.5 percent to a level of 3 system aims at a concept of fairness dictated gether with ever-increasing differentials in percent-3.5 percent would generate as much by distribution tables. That may not be the wealth and income among Americans of dif- as an additional $1 trillion over the next dec- best test. A tax system with growth as its fering levels of education and skills, and the ade. It could provide both for significant tax main objective may be a variation of the flat huge rewards to capital as the result of the cuts for the private sector as well as for the tax; or it may be a national sales tax; or it boom in the securities markets, are creating higher level of public investment in infra- may be another system aimed at taxing con- serious social tensions and political pres- structure and education required as we move sumption instead of investment such as pro- sures. into the 21st Century. It would obviously posed by Sens. and Pete Domen- Unless we can somehow break out of this generate millions of new jobs. The present ici. iron triangle, we could face serious difficul- bipartisan commitment to balance the budg- The power and dominance of global capital ties, and the best hope for a breakout is to et in seven years, based on the present ane- markets in today’s world would seem to aim make a determined effort for a higher rate of mic growth, is economically unrealistic and in the latter direction. Lowering taxes on economic growth. Only higher growth, as a probably socially unsustainable. In all likeli- capital would at first blush seem to help the result of higher investment and greater pro- hood, higher growth is in fact the only way already wealthy, current holders of capital. ductivity, can make these processes socially to achieve budget balance. The question is But whatever its effect on the distribution tolerable. In order to deal constructively how to achieve it. tables, it could unleash powerful capital with the realities of technology and the glob- The conventional wisdom among most aca- flows, both domestic and foreign, that would al economy. Democrats and Republicans may demic economists as well as the Treasury, lower interest rates significantly and make have to abandon cherished traditional posi- the Federal Reserve Board and Wall Street is investment in the U.S. even more competi- tions and turn their thinking upside down: that our economy cannot generate higher tive than it is today. At the same time, they Democrats may have to redefine their con- growth without running the risk of trig- would maintain the strength of the dollar cept of fairness, while Republicans may have gering inflation. Now everyone shares that and maintain low rates of inflation. to rethink the role of Government. view. In particular, the leaders of many of Achieving the objective of higher growth ECONOMIC INSECURITY this country leading industrial corporations could also include the gradual privatization The American economy is growing very believe that we could sustain significantly of Social Security in order to create a mas- slowly despite occasional upward blips. higher growth rates based on the very sig- sive investment pool with higher returns for Growth and inflation are both around 2%. nificant productivity improvements they are the beneficiaries and greater investment ca- Our main trading partners, Europe and generating in their own businesses, year- pabilities for the private and the public sec- Japan, are undergoing serious economic after-year. tor. The key to economic success in the 21st strains of their own, with German unemploy- Economics is not an exact science as we Century will be cheap and ample capital, ment nearing 10% and French unemployment have painfully learned over and over again. high levels of private investment to increase near 12%. Fiscal contraction is taking place It is the product of the psychology of mil- productivity, high levels of education and on both sides of the ocean as the Maastricht lions of consumers, of business leaders mak- advanced technology. It also includes higher criteria are maintained in Europe and deficit ing long term investment decisions, of cap- levels of public investment in building a na- reduction continues as a priority here, feed- ital flows instantaneously triggered by tional infrastructure supportive of the 21st ing a general sense of economic insecurity. events and ideas. We must do away with the century economy. The winds of deflation could be stronger false notion that we must choose between If the Democrats can redefine their con- than the winds of inflation. growth or inflation. Our experience, even in cept of fairness, Republicans, on the other At the same time, the Dow Jones Indus- the more recent past, shows that technology hand, may have to abandon their view of pas- trial Average is near its all-time high of 5700, and competition can produce growth without sive government. If growth and opportunity mergers and restructurings are still taking serious inflationary pressures. In the face of are to be the prime objectives of our society, place at a record pace, and layoffs and today’s totally new environment of almost the government must play an active role in downsizing are continuing as the inevitable daily revolutions in technology combined some areas. The first is education; the sec- result of global competition and techno- with globalization, we should be willing to be ond is higher levels of infrastructure invest- logical change. And has cre- bolder, both in fiscal and monetary policy. ment; the third is in the maintenance of a ated a political groundswell, on the left as As a traditional Democrat, I have always corporate safety net. well as on the right, by identifying real prob- believed that freedom, fairness and wealth, Public school reform, driven by higher lems but proposing solutions based on fear, basic to a modern democracy, required an es- standards, is an absolute priority. Even xenophobia, isolationism and protectionism. sentially redistributionist philosophy of though that is a state responsibility, it is a It is frightening to think of the political im- wealth, that a fairly steeply graduated in- national problem. These standards, regard- pact of a Buchanan if unemployment were come tax was required as a matter of fair- less of today’s political conventional wis- now 7.5 percent instead of 5.5 percent. All ness and that lower deficits would guarantee dom, will ultimately be national in scope. that it requires is the next recession. adequate growth and a fair distribution of Access to higher education should be made The social and economic problems we face wealth. The experience of the last two dec- available to any graduating high school sen- today are varied. They include job insecu- ades, with the advent of the global economy, ior meeting stringent national test levels rity, enormous income differentials signifi- has very much shaken that view. and demonstrably in need of financial assist- cant pressures on average incomes, urban Fairness does not require the redistribu- ance. The equivalent of the GI Bill, providing quality-of-life and many others. Even though tion of wealth; it requires the creation of national college scholarships to needy stu- all of these require different approaches, the wealth, geared to an economy that can pro- dents, should be created and federally fund- single most important requirement to deal vide employment for everyone willing and ed. It should be the primary affirmative ac- with all of them is the wealth and revenues able to work, and the opportunity for a con- tion program funded by the federal govern- generated by a higher rate of economic sistently higher standard-of-living for those ment. growth. John Kennedy was right: A rising employed. Only strong private sector As part of a higher economic growth rate, tide lifts all boats. Although it may not lift growth, driven by higher levels of invest- state and local governments should provide all of them at the same time and at the same ment and superior public services, can hope higher levels of infrastructure investment. rate, without more growth we are simply re- to providing the job opportunities required In addition to the creation of private em- distributing the same pie. That is a zero sum to deal with technological change and ployment, this could also provide public sec- game and it is simply not good enough. globalization. Only higher growth will allow tor jobs to help meet the work requirements

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00117 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4566 CONGRESSIONAL RECORD — SENATE May 1, 1996 of welfare reform, as well as to provide the leadership could set a national objective Steve Austin may remember Presi- support to a high capacity modern economy. that the economy’s rate of growth reach a dent Johnson’s words back in 1966, be- Financial assistance from the federal gov- minimum sustainable level of 3% annually cause 3 years prior, Steve Austin began ernment would encourage the states in that by the year 2000. They could ask the best his service as a volunteer firefighter. endeavor. Higher growth would enable fed- minds in the country, from government, eral as well as state and local budgets to from business, from labor and from academia Today, he continues to respond to take on this responsibility. to provide a set of options which could lead emergency calls as a member of the A corporate safety net should be provided to such a result. Many of these options would Aetna Hose, Hook and Ladder Company in order to deal with the inevitable disloca- be politically difficult, both for Democrats of Newark, DE. tions which corporate downsizings and and for Republicans, and some would prob- Along with his work as chairman and restructurings will continue to create. Busi- ably be impossible. But the only way to firefighter, Steve Austin, continues to ness, labor and government should cooperate abandon long-held notions that may no serve as a fire claims superintendent to create a system of portable pensions and longer apply to today’s world is to discuss for the State Farm Fire and Casualty portable health care to cushion the transi- them within the framework of a very simple Company, external affairs representa- tion from one job to another. Incentives and definite objective: higher growth. should be provided for business to make use tive for the International Association A DIFFERENT PERSPECTIVE of stock grants for employees laid off as a re- of Arson Investigators, chairman of the sult of mergers and restructuring. If losing Setting the U.S. on a path to higher NFPA Technical Committee on Fire one’s job creates wealth for the shareholders, growth will require coordination with our Investigator Professional Qualifica- partners in the G–7. The Europeans should the person losing his or her job should share tions, and as a member of the Delaware in some of that wealth creation. Corporate welcome such an initiative since they are in greater need for growth than we are. Never- State Fire Police. In the past, he has pension funds, to the extent they are over- been president of the New Castle Coun- funded as a result of the stock market boom, theless, the process will be slow and it must could be part of a process to provide larger be put into motion. ty Volunteer Firemen’s Association severance and retraining payments for laid- The President’s setting an objective of and also president of the Delaware off employees. higher growth would have an important psy- Chapter International Association of Other than in areas such as pensions and chological impact; the economy is, after all, Arson Investigators. health care, it is counterproductive to try to heavily influenced by psychological factors. During his distinguished career, legislate the social side of ‘‘corporate re- If the president were to set an ambitious Steve Austin has received the George growth objective, then all elements affecting sponsibility’’; it is almost impossible to de- H. Parker Distinguished Service fine. To begin with, most large U.S. corpora- the economy would be subject to review from a different perspective. They would include Award, the Life Membership Award, tions are majority-owned by financial insti- and the Presidential Award from the tutions including the pension funds of the fiscal and monetary policy; investments and very employees who are in danger of dis- savings; education and training; and inter- International Association of Arson In- placements. These institutions, driven by national trade. Most importantly, these ac- vestigators. their own competitive requirements, were tivities should take place within a frame- Steve Austin is committed to meet- the source of the pressures on management work in which the Democratic Party rede- ing the new challenges faced by the fire which resulted in the dramatic restructuring fines its concept of fairness and the Repub- services. I am confident that as long as of American industry over the last decade. lican Party redefines its concept of the role there are dedicated people like him, of government. At present, neither is appro- Those restructurings have made American the fire service will continue to serve industry highly competitive in world mar- priate for the revolution that technology, globalization and the inclusion of an addi- us with the heroism, bravery and pro- kets; they must continue and we must con- fessionalism that we have all come to tinue the opening of world trade. tional one billion people to the global work Boards of directors are not blind to the force will bring about tomorrow. expect. It is an honor to pay tribute to risks of political backlash. The issue of exec- Ultimately, a rising tide will float all him today as a great leader, a great utive compensation, made starkly visible by ships, and both political parties can help Delawarean, and a great friend.∑ bring this about. If they fail to do so, at a its tie-in with the rise in stock market val- f ues, will be dealt with responsibly or boards minimum the present malaise will turn will find themselves under great shareholder uglier, and it is even conceivable that an- TRIBUTE TO PAUL D. BARNES pressure. The use of profit-sharing, stock op- other tide will sweep away existing parties. ∑ Mr. SIMON. Mr. President, we are If that were to happen, arguments about tions and stock grants to practically all lev- quick to criticize those who work for els of the corporation will be significantly growth or fairness will be totally irrele- vant.∑ our Government but rarely recognize expanded and should create greater common the people who have dedicated long ca- interests between executives, shareholders f and employees. However, the main role of reers to making Government work bet- the corporation must remain to be competi- STEVEN P. AUSTIN—1996 FIRE ter and more cost effectively for all of tive, to grow, to invest, to hire and to gen- SERVICE PERSON OF THE YEAR us. For that reason, I want to pay trib- erate profits for its shareholders; a signifi- ∑ Mr. BIDEN. Mr. President, 30 years ute today to Paul D. Barnes. cant portion of employee compensation ago, President Lyndon Johnson stated, Mr. Barnes is currently the Regional should be related to the growing produc- The American firefighter today must meet Commissioner for the Social Security tivity of its employees. the challenge of fires caused by numerous Administration’s Chicago region. His The benefits to business in such an ap- new chemicals, explosives, and combustible fine service in Chicago will end in late proach are obvious, but labor also has a large fibers, and other dangerous materials. He May, when he assumes his new position stake in such a re-examination. Some of the must be prepared to fight fires in crowded proposals put forth at present would have as Assistant Deputy Commissioner for cities and giant buildings, as well as in re- very negative results for working Americans. Operations in Baltimore, MD. I am con- mote rural communities. It is too late to return to a protected Amer- fident that Chicago’s loss will be Balti- ican economy; the only result would be to Today, we know that these chal- more’s gain as Mr. Barnes brings his trigger a financial crisis that would harm lenges to the fire services have grown strong work ethic and demonstrated America and our trading partners. It is im- considerably. The greatest example, of leadership to his new job. possible to stop the effect of global informa- course, being the tragedy in Oklahoma Paul Barnes has served as Regional tion, technology, capital and labor. What is City. Commissioner for the Social Security important for working people, union or non- That is why today, Mr. President, I Administration’s Chicago region, union, is the creation of more well-paying am honored to pay tribute to Steven P. jobs as a result of high levels of investment which includes all six Midwestern and high levels of education; to share in the Austin, who last night at the National States, since November 1990. As re- profits of their employers through profit- Fire and Emergency Services Dinner, gional commissioner, he has been re- sharing and stock ownership; to share in the was named Fire Service Person of the sponsible for providing executive direc- benefit potential of pension funds vastly in- Year. tion and leadership to the region’s 7,500 creased by the boom in the financial mar- Steve Austin serves as chairman of Federal employees and the 2,200 State kets; to have access to permanent health the National Advisory Committee for employees with whom they contract care security and to high levels of education the Congressional Fire Services Insti- for disability determinations. These and training to deal with the 21st century re- tute, working countless hours to meet employees provide Social Security quirements. Business and labor, together, should ham- the challenges faced by the fire and services as well as administer the Sup- mer out such an agenda. If we are serious emergency services. He works dili- plemental Security Income Program about balancing the budget in a responsible gently helping those who help us in for the 45 million people who reside in manner, the president and the congressional times of crisis. the region.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00118 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4567 Mr. Barnes began his career with the living under it. While it was short tion 51 which salutes and congratulates Social Security Administration in Co- lived, its principles endured and it be- the Polish people on this historic mile- lumbia, TN in 1968. He has held a num- came the symbol around which a na- stone. ber of management positions since tional consciousness was born. When The Polish constitution of 1791 estab- joining the agency, including serving the courageous people of Poland forced lished that ‘‘all power in civil society as director of the southeastern Pro- out their Communist oppressors, they should be derived from the will of the gram Service Center in Birmingham, returned to the basic freedoms and people.’’ It marked the first attempt of AL from July 1987 through May 1989. principles contained in this constitu- a Central-Eastern European country to Before taking the top post in the Chi- tion. break free of the feudal system of gov- cago region, he was serving as the dep- Mr. President, this resolution is a ernment. It was also the first constitu- uty regional commissioner for the At- manifestation of this Congress’ strong tion in the region to uphold individual lanta region in Georgia. support for a free independent Poland. and religious rights for all people. Even He was a magna cum laude graduate It is also a reflection of the deep and though the constitution was in effect of Lane College in 1968, and earned a abiding friendship between Poland and less than 2 years, the guiding principles master’s degree in public administra- the United States. that it put forth lived on in the hearts tion from the University of Southern I know that all of my colleagues join of the people of Poland. These prin- California. He currently serves as a with me in congratulating Americans ciples gave them strength in the dark member of the Executive Committee of of Polish descent and Poles all around years that followed for Poland. Chicago’s Federal Executive Board. He the globe on this important occasion. It is heartening to see the strides Po- has served as the federal executive Ms. MIKULSKI. Mr. President, I am land has made in the past few years as board’s executive vice-president and in proud to rise as a cosponsor of this res- it reemerges into the community of 1993, he led the metro-Chicago Com- olution to commemorate the 205th an- free nations. I salute the people of Pol- bined Federal Campaign to the city’s niversary of the adoption of the first ish descent in America who have con- first ever $3 million charity drive. Polish Constitution. tributed so much to our democracy and In 1995, Mr. Barnes received a Presi- Democracy is not a new idea in Po- those around the world for the prin- dential Distinguished Executive Award land. The heart and soul of Poland ciples their forebears established in from President Clinton in recognition have always been democratic. In 1791, Central-Eastern Europe 205 years ago. of his efforts to meet the national per- the Polish people enacted the first lib- Mr. DOLE. I ask unanimous consent formance review objectives of pro- eral constitution in Europe since antiq- the joint resolution be considered read ducing a Government that works bet- uity. It was the second constitution in a third time and passed, the preamble ter and costs less. In 1992, he received a the world, after the American Con- be agreed to, the motion to reconsider Meritorious Executive Award from stitution. The Polish Constitution was laid upon the table, and any state- President Bush and the Social Security similar to ours. It included the prin- ments appear at the appropriate place Administration’s National Leadership ciples of individual liberty and a sepa- in the RECORD. I ask my statement be Award. ration of powers. It stated that all included. Mr. Barnes has touched many lives in power would be derived from the will of The PRESIDING OFFICER. Without Illinois and he will be missed. I wish the people—a truly revolutionary idea objection, it is so ordered. him the best of luck in the future and in Europe. The joint resolution (S.J. Res. 51) thank him for his support and dedica- The friendship between the United was considered read the third time, and tion to the people of Illinois and our States and Poland goes back to the passed. entire region.∑ Revolutionary War, when the great The preamble was agreed to. f Polish patriot Tadeusz Kosciuszko The joint resolution, with its pre- fought in our war of independence. In amble, reads as follows: CONGRATULATING THE POLISH fact, he helped to defend Philadelphia S.J. RES. 51 PEOPLE as our constitution was being drafted. Whereas, on May 3, 1996, Polish people Mr. DOLE. Mr. President, I ask unan- When he returned to Poland, around the world, including Americans of imous consent the Committee on the Kosciuszko helped to defend his coun- Polish descent, will celebrate the 205th anni- Judiciary be discharged from further try from the invading Russians who versary of the adoption of the first Polish consideration of Senate Joint Resolu- feared their neighbor’s growing com- constitution; tion 51, and further that the Senate mitment to democracy. Whereas American Revolutionary War hero The Polish Constitution was in effect Thaddeus Kosciuszko introduced the concept proceed to its immediate consider- of constitutional democracy to his native ation. for less than 2 years. But its principles country of Poland; The PRESIDING OFFICER. Without endured. Even while Poland was held Whereas the Polish constitution of 1791 objection, it is so ordered. captive behind the iron curtain, the was the first liberal constitution in Europe The clerk will report. Polish people remembered and longed and represented Central-Eastern Europe’s The legislative clerk read as follows: for liberty. Theirs was the first coun- first attempt to end the feudal system of government; A joint resolution (S. J. Res. 51) saluting try in Eastern Europe to free itself Whereas this Polish constitution was de- and congratulating Polish people around the from communism and Russian domina- signed to protect Poland’s sovereignty and world as, on May 3, 1996, they commemorate tion. national unity and to create a progressive the 205th anniversary of the adoption of Po- Today, Poland is a free and inde- constitutional monarchy; land’s first constitution. pendent nation—ready to take its Whereas this Polish constitution was the The Senate proceeded to consider the rightful place as a member of NATO first constitution in Central-Eastern Europe joint resolution. and the European Union. to secure individual and religious freedom Mr. DOLE. Mr. President, May 3 is a Mr. President, I am so proud to be for all persons in Poland; very important day for the Polish peo- the first Polish American woman to be Whereas this Polish constitution formed a ple for it is on this day that they will a Member of the U.S. Senate. I am government composed of distinct legislative, executive, and judicial powers; celebrate the 205th anniversary of Po- proud of my heritage, and what it Whereas this Polish constitution declared land’s first constitution. taught me about patriotism, loyalty that ‘‘all power in civil society should be de- Last week, along with a number of and duty. And I am proud to join my rived from the will of the people’’; my Senate colleagues on both sides of colleagues in paying tribute to the Pol- Whereas this Polish constitution revital- the aisles, I introduced a resolution ish people for their contribution to de- ized the parliamentary system by placing commemorating this historic occasion. mocracy. preeminent lawmaking power in the House of I am pleased that the Senate is acting Mr. LEVIN. Mr. President, I rise Deputies, by subjecting the Sejm to majority today to unanimously pass this resolu- today to commemorate the 205th anni- rule, and by granting the Sejm the power to remove ministers, appoint commissars, and tion. versary of the adoption of Poland’s choose magistrates; The Polish Constitution was the first first constitution, which will be cele- Whereas this Polish constitution provided is Eastern Europe to secure individual brated on May 3, 1996. I am pleased to for significant economic, social, and political and religious freedoms for all persons be a cosponsor of Senate Joint Resolu- reforms by removing inequalities between

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00119 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4568 CONGRESSIONAL RECORD — SENATE May 1, 1996 the nobility and the bourgeoisie, by recog- what we will turn to. Hopefully, it can administration Wisconsin’s AFDC case- nizing town residents as ‘‘freemen’’ who had be something that might mean we load has been reduced by more than 27 judicial autonomy and expanded rights, and might have debate on Friday but no percent. by extending the protection of the law to the votes on Friday, but I will make that peasantry who previously had no recourse Wisconsin Works is the good news. against the arbitrary actions of feudal lords; announcement or Senator LOTT can Now let me give you the bad. The Gov- make that announcement sometime to- Whereas, although this Polish constitution ernor and the morrow afternoon. was in effect for less than 2 years, its prin- cannot deliver to the people of Wis- ciples endured and it became the symbol We would like to accommodate Mem- consin this replacement for the failed around which a powerful new national con- bers who are engaged in hearings to- sciousness was born, helping Poland to sur- morrow. So, for those who are offering system until President Clinton and his vive long periods of misfortune over the fol- amendments, if they will accommodate administration give them permission. lowing 2 centuries; and us, accommodate the managers, Sen- By twice vetoing Federal welfare re- Whereas, in only the last 5 years, Poland form passed by our Congress, the Presi- has realized the promise held in the Polish ator KENNEDY and Senator SIMPSON, maybe we can postpone votes until 12 dent has denied Wisconsin and many constitution of 1791, has emerged as an inde- other States the opportunity to put pendent nation after its people led the move- noon tomorrow. ment that resulted in historic changes in Mr. FORD. Mr. President, will the into place needed reforms. Central-Eastern Europe, and is moving to- distinguished majority leader yield for The status quo, which the President ward full integration with the Euro-Atlantic a question? Did I understand that we has preserved, requires Wisconsin to community of nations: Now, therefore, be it might be able to get out of here to see come to the Clinton administration on Resolved by the Senate and House of Rep- the greatest 2 minutes in sports? bended knee to ask Washington bu- resentatives of the United States of America in Mr. DOLE. That would be the Ken- Congress assembled, That— reaucrats for permission to make ad- (1) the people of the United States salute tucky Derby? justments to the current one-size-fits- and congratulate Polish people around the Mr. FORD. I think it is set on Friday. all national welfare system. world, including Americans of Polish de- Mr. DOLE. We will try to work it scent, as on May 3, 1996, they commemorate out. No doubt about it, while welfare re- cipients remain trapped in the current the 205th anniversary of the adoption of the f first Polish constitution; system, President Clinton will claim (2) the people of the United States recog- WISCONSIN WORKS WELFARE LAW he has helped reform welfare by grant- nize Poland’s rebirth as a free and inde- Mr. DOLE. Mr. President, our current ing States permission to experiment pendent nation in the spirit of the legacy of welfare system does not work because through controlled demonstration pro- the Polish constitution of 1791; and it is not based on the proven American grams known as ‘‘waivers.’’ (3) the Congress authorizes and urges the President of the United States to call upon formula for escaping poverty: A job. A The reality is these waivers are not the Governors of the States, the leaders of strong family. A good education. Sav- the solution. We all know waivers have local governments, and the people of the ing some money to buy a home. brought us in the right direction. How- United States to observe this anniversary Instead, it undermines almost every ever, the waiver process perpetuates a with appropriate ceremonies and activities. value that leads to self-reliance and flawed system. Real change will only success. Poverty persists and 3 out of f occur when States are released from every 10 births are out of wedlock. Un- the burden of excessive Federal rules ORDERS FOR THURSDAY, MAY 2, believably, the out-of-wedlock birth and regulations. The waiver process is 1996 rate is 80 percent in some communities. too costly, time consuming, and bur- Mr. DOLE. Mr. President, I ask unan- Within the past year, the U.S. Con- imous consent that when the Senate gress has twice passed Federal welfare densome, often requiring months and completes its business today, it stand reform. President Clinton has vetoed it months of negotiating between a State in adjournment until the hour of 9 a.m. both times. Face it, President Clinton and the relevant Federal Cabinet agen- on Thursday, May 2; further, that im- has preserved the current system cy mediately following the prayer, the which is trapping another generation Earlier this year, all 50 of the Na- Journal of proceedings be deemed ap- of Americans in despair and locking tion’s Governors rejected the waiver proved to date, no resolutions come them out of the American dream. process in favor of comprehensive wel- over under the rule, the call of the cal- Wisconsin Gov. Tommy Thompson fare reform. Their unanimously adopt- endar be dispensed with, the morning refuses to allow this to happen. Last ed policy would provide greater State hour be deemed to have expired; and Thursday, he signed into law a pro- flexibility to enhance States as ‘‘lab- there then be a period for morning gram replacing in Wisconsin the failed oratories of democracy’’ while ensuring business until the hour of 10 a.m., with national welfare system. It is called the necessary State accountability to Senators permitted to speak for up to 5 Wisconsin Works. The new program promote work, family, and individual minutes each with the following Sen- provides work opportunities and work self-sufficiency among welfare bene- ators to speak for the designated programs. In order to help beneficiaries ficiaries. URNS get a job, it makes available child care times: Senator B , 5 minutes; Sen- The national bipartisan Governor’s ator GRASSLEY, 5 minutes; Senator and health care to all low-income fami- welfare policy reflects the principles GRAMS, 10 minutes; Senator DORGAN, 30 lies who need it. contained in both welfare reform bills minutes; Senator BINGAMAN, 5 minutes. As Governor Thompson stated: passed by the Congress and vetoed by I further ask at the hour of 10 a.m. the After almost a decade of welfare reform ex- the President. I remain committed to Senate resume consideration of the im- periments, Wisconsin Works represents the working with our Nation’s Governors migration bill. end of welfare in Wisconsin. The current aid to accomplish real Federal welfare re- The PRESIDING OFFICER. Without to families with dependent children [AFDC] form. objection, it is so ordered. program has become, for many families, a way of life. Because the program does not re- President Clinton has said that he is f quire work or provide incentives to become reluctant to return power to the States PROGRAM self-sufficient, it has trapped many families in dependency. Wisconsin Works aims to re- because it will lead to a ‘‘race to the Mr. DOLE. Mr. President, the Senate build the connection between work and in- bottom.’’ As Governor Thompson and will resume consideration of S. 1664, come and help families achieve self-suffi- the Wisconsin Legislature have proved, the immigration bill, tomorrow morn- ciency. however, compassion and innovation ing, and Senators should be reminded Due to his experience, Governor can go hand in hand. I congratulate there are still several amendments to Thompson knows what he is talking them for their achievement, and I in- be debated. Hopefully, some of those about. He has made welfare reform a vite President Clinton to join with this can be disposed of on voice votes. It is top priority by introducing more than Congress in moving power out of Wash- our expectation to complete action on 10 reform initiatives and by working ington and returning it to where it be- the immigration bill by early tomor- hard to fix the current Welfare-to- longs—our States, our communities, row afternoon. Then we will determine Work Program called JOBS. During his and our people.

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00120 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS May 1, 1996 CONGRESSIONAL RECORD — SENATE S4569 UNITED STATES LOSES FIRST partisan support for this proposal, but On the occasion of their 35th anniver- WORLD TRADE ORGANIZATION one of my colleagues on the other side sary, I congratulate the Air Force Ser- CASE has had a hold on this bill several geants Association. I know that AFSA Mr. DOLE. Mr. President, the World months, and we hope to move on it will continue to be an effective, strong, Trade Organization has just issued its early this month or next month. and dedicated voice for Air Force en- first decision in a trade case brought President Clinton supports my pro- listed personnel, active, reserve, guard, under the new dispute settlement sys- posal. In fact, he endorsed my proposal retired members, and their families. I tem. when I endorsed the GATT at the thank the association for its successful The case was brought against the White House nearly 2 years ago. I cer- efforts and look forward to continuing United States by Venezuela and Brazil. tainly would appreciate the President’s to work with AFSA on matters of mu- The allegation was that a U.S. environ- help in getting this measure passed. I tual concern. mental regulation, issued under the think it would be helpful to the Presi- f dent and to the country. It would an- Clean Air Act, discriminated against ORDER FOR ADJOURNMENT imported gasoline. swer a lot of concerns American work- On Monday, the United States lost ers have who are frustrated about the Mr. DOLE. Mr. President, I under- the case. President Clinton must now loss of American jobs. stand that the Senator from Massachu- decide whether to comply with the So I hope we can have action on my setts wishes to speak. I ask unanimous WTO decision. If he decides the United proposal in the very near future with consent, after the Senator from Massa- States should comply, he must an- the President’s support. chusetts completes his remarks, that nounce a plan for doing so. f the Senate stand in adjournment under the previous order. I believe the American people deserve AFSA 35TH ANNIVERSARY an explanation from President Clinton The PRESIDING OFFICER. Without about this case. They deserve an expla- Mr. DOLE. Mr. President, the Air objection, it is so ordered. nation about what this case might Force Sergeants Association [AFSA] Mr. KENNEDY addressed the Chair. mean in the future for other U.S. laws marks the 35th anniversary of its The PRESIDING OFFICER. The Sen- and regulations. founding today. I commend this asso- ator from Massachusetts. Clearly there will be future WTO ciation for all of its efforts on behalf of f the entire military community but, in cases where the United States will be MINIMUM WAGE the losing party. We cannot expect to particular, the enlisted component. win every case. Perhaps Monday’s case In 1961, AFSA was founded as a non- Mr. KENNEDY. Mr. President, on to- was properly decided. profit association to represent the in- morrow, I expect the Senate to con- But it seems to me that our laws terests of Air Force enlisted members, clude its action on the illegal immigra- should continue to be a matter for who, at that time, had no voice to tion bill. During the earlier discussion Americans, not international judges, to speak for them. Over the years, AFSA’s on the immigration bill, I tried to take determine. We should decide what our membership has grown to 160,000 with advantage of the opportunity to offer environmental laws will be. We should nearly 300 chapters around the world. an amendment that would have raised decide what kinds of regulations are Today, AFSA represents active and re- the minimum wage 90 cents—45 cents necessary to protect our environment. tire enlisted Air Force, Air Force Re- this year, 45 cents the next year—90 We should decide that our children de- serve, and Air National Guard members cents for working families. We were serve cleaner air and purer water, not and their families. unable to get sufficient recognition to some bureaucrat in Geneva. In my view, AFSA’s reputation on put that proposal before the U.S. Sen- We do not always agree, and that is Capitol Hill is better than ever, a ate, and the cloture motion was put be- part of our democratic process. But at broker of honest information—whether fore us, which effectively restricted our least we work out for ourselves what through testimony, visits, or cor- opportunity to take any action on the laws and regulations are best for Amer- respondence—working hand-in-hand minimum wage. ica. with elected officials. AFSA has A further cloture motion was offered, Mr. President, I believe President worked hard over the years to keep which further prohibits us from having Clinton has simply failed to tell the Members of Congress focused on the considered the minimum wage, even if American people what his strategy is quality of the lives of the active and we had extended the time, which under for defending other American laws in retired enlisted men and women AFSA the rules would have permitted debate the future from potential wrongful at- represents. and discussion for some 30 hours. tack in the WTO. As far as I know, AFSA was directly involved in cham- So for this phase of the minimum President Clinton has been silent on pioning improved pay and allowances wage debate, we will conclude tomor- this question, one that is deeply trou- for active duty members, dental and in- row, through the decision of the Sen- bling to many Americans. come insurance programs for reserv- ate, action on the illegal immigration I have a strategy for defending Amer- ists, the restoration of military cola bill and any opportunity to have the ican laws. I proposed a plan in January equity, the end of source taxation, and minimum wage amendment before the 1995 that would ensure that the United the increase in the Social Security Senate. States could withdraw from the WTO if earnings limit. Then we will move on to other busi- our laws, and our rights, were being Last fall, AFSA generated massive ness and, as I have stated at other trampled in Geneva. grassroots support to clearly show times, as the minority leader, Senator Many, many Americans shared my where military personnel stood on the DASCHLE, has stated, and as others concern—that the WTO might begin to ‘‘high-one’’ retirement recalculation have stated—my colleagues Senator operate out of control, might begin to proposal. KERRY and Senator WELLSTONE—we issue rulings that were outside its AFSA also provides awards, grants will look for the first opportunity to mandate, in short, that the WTO might and scholarships through the Airmen offer that amendment. abuse its authority. I was concerned Memorial Foundation, AMF, estab- It is a rather poignant time, Mr. that if this were to happen, the United lished in 1983. In addition, the AMF has President, as we are having this debate States would not have any adequate a post-military employment program on the minimum wage, because in 1960, mechanism to deal with it. My pro- that aids Air Force members who are during the campaign of President Ken- posal creates such a mechanism. It al- about to retire or separate. nedy, one of the important issues was lows us to get all the benefits of the AFSA also believes in preserving the the issue of the increase in the min- WTO, but protects us against the po- heritage and accomplishments of Air imum wage. tential harm should the WTO fail to Force enlisted personnel. In 1986, AFSA In the 1960 campaign against Richard honor our rights. founded the Airmen Memorial Museum Nixon, John Kennedy ran an ad in Unfortunately, my proposal has not in Suitland, MD, which is a comprehen- which he called for an increase in the yet become law because of some oppo- sive reference center for Air Force en- minimum wage. And in the ad, he sat sition—not much. There is strong bi- listed history. in front of the camera and said:

VerDate Aug 31 2005 05:57 Jun 21, 2008 Jkt 041999 PO 00000 Frm 00121 Fmt 4624 Sfmt 0634 J:\ODA16\1996_F~1\S01MY6.REC S01MY6 mmaher on MIKETEMP with SOCIAL SECURITY NUMBERS S4570 CONGRESSIONAL RECORD — SENATE May 1, 1996 Mr. Nixon has said that a $1.25 minimum To be major general JUDY A. GERRY MICHAEL J. PAPANIA ANNIE L. GILCHRIST MONIQUE V. PETROFSKY wage is extreme. That’s $50 a week. What is BRIG. GEN. KEITH D. BJERKE, 000–00–0000 BYRON C. GLENN PATRICIA K. RASCH extreme about that? I believe the next Con- BRIG. GEN. EDMOND W. BOENISCH, JR., 000–00–0000 MARGARET A. HOEFT LETITIA L. RHODES-BARD gress and the President should pass a min- BRIG. GEN. STEWART R. BYRNE, 000–00–0000 LORRAINE D. KELWOOD THOMAS M. SCHEIDEL imum wage for $1.25 an hour. Americans BRIG. GEN. JOHN H. FENIMORE, V, 000–00–0000 MARY M. LEEMHUIS RUTH A. SHULTS BRIG. GEN. JOHNNY J. HOBBS, 000–00–0000 SUSAN R. LUMSDEN JERILYN A. THORNBURG BRIG. GEN. STEPHEN G. KEARNEY, 000–00–0000 SCOTT A. VANOMEN must be paid enough to live. BRENDA J. MURRAY I am reminded of the same issue be- BRIG. GEN. WILLIAM B. LYNCH, 000–00–0000 ELLEN D. WOLFE fore us today. This Friday, May 3, is To be brigadier general To be assistant nurse officer the 35th anniversary of BOB DOLE’s COL. BRIAN E. BARENTS, 000–00–0000 SUSAN Z. MATHEW TERRY L. PORTER COL. GEORGE P. CHRISTAKOS, 000–00–0000 RICHARD M. YOUNG vote against President Kennedy’s legis- COL. WALTER C. CORISH, JR., 000–00–0000 lation raising the minimum wage from COL. JAMES V. DUGAR, 000–00–0000 To be senior assistant engineer officer $1 to $1.25. COL. FRED E. ELLIS, 000–00–0000 TERRY L. AAKER ALLEN K. JARRELL COL. FREDERICK D. FEINSTEIN, 000–00–0000 CHERYL FAIRFIELD ESTILL JEFFREY J. NOLTE BOB DOLE and were COL. WILLIAM P. GRALOW, 000–00–0000 DEBRA J. HASSINAN MUTAHAR S. SHAMSI wrong to oppose President Kennedy’s COL. DOUGLAS E. HENNEMAN, 000–00–0000 DONALD J. HUTSON GEORGE F. SMITH COL. EDWARD R. JAYNE II, 000–00–0000 minimum wage hike 35 years ago, and COL. GEORGE W. KEEFE, 000–00–0000 To be assistant engineer officer I believe BOB DOLE and RICHARD ARMEY COL. RAYMOND T. KLOSOWSKI, 000–00–0000 COL. FRED N. LARSON, 000–00–0000 NATHAN D. GJOVIK are wrong to oppose President Clin- COL. BRUCE W. MACLANE, 000–00–0000 To be scientist ton’s minimum wage hike today. COL. RONALD W. MIELKE, 000–00–0000 COL. FRANK A. MITOLO, 000–00–0000 DELORIS L. HUNTER Mr. President, this issue has been de- COL. FRANK D. REZAC, 000–00–0000 bated and discussed. It is as old as COL. JOHN P. SILLIMAN, JR., 000–00–0000 To be Senior assistant scientist COL. GEORGE E. WILSON III, 000–00–0000 some 60 years of our history. We know ANNE T. FIDLER HELENA O. MISHOE IN THE NAVY PATRICK J. MC NEILLY PAUL D. SIEGEL what the issues are: Are we going to re- WILLIAM H. TAYLOR III spect work? Are we going to honor THE FOLLOWING-NAMED OFFICERS FOR PROMOTION IN THE NAVAL RESERVE OF THE UNITED STATES TO THE To be sanitarian GRADE INDICATED UNDER TITLE 10, UNITED STATES work? Are we going to say to men and THOMAS C. FAHRES CHARLES L. HIGGINS CODE, SECTION 5912: women who are working 40 hours a DANIEL M. HARPER MICHAEL M. WELCH week, 52 weeks of the year that they UNRESTRICTED LINE To be senior assistant sanitarian ought to have a livable wage to be able To be rear admiral (lower half) GAIL G. BUONVIRI DAVID H. MC MAHON to provide for their family, their chil- CAPT. JOHN NICHOLAS COSTAS, 000–00–0000 LARRY F. CSEH NATHAN M. QUIRING dren, to pay a mortgage, put food on CAPT. JOSEPH COLEMAN HARE, 000–00–0000 ALAN J. DELLAPENNA, JR. DAVID H. SHISHIDO CAPT. DANIEL LAWRENCE KLOEPPEL, 000–00–0000 ALAN S. ECHT LINDA A. TIOKASIN the table, are we going to meet our re- CAPT. HENRY FRANCIS WHITE, JR., 000–00–0000 THOMAS A. HILL RICHARD E. TURNER FLORENCE A. KALTOVICH BERRY F. WILLIAMS sponsibilities to those working fami- UNRESTRICTED LINE (TAR) To be veterinary officer lies, which at other times we have To be rear admiral (lower half) done? STEPHANIE I. HARRIS CAPT. JOHN FRANCIS BRUNELLI, 000–00–0000 This issue will be before us again and To be senior assistant veterinary officer PUBLIC HEALTH SERVICE again and again until we are able to HUGH M. MAINZER SHANNA L. NESBY meet our responsibilities to the work- THE FOLLOWING CANDIDATES FOR PERSONNEL AC- META H. TIMMONS TION IN THE REGULAR CORPS OF THE PUBLIC HEALTH ing families in this country. That we SERVICE SUBJECT TO QUALIFICATIONS THEREFOR AS To be senior assistant pharmacist pledge, that we commit ourselves to. PROVIDED BY LAW AND REGULATIONS: SARAH E. ARROYO NANCY E. LAWRENCE And just as we found that we were suc- 1. FOR APPOINTMENT EDWARD D. BASHAW ANDREW J. LITAVECZ IV CHARLES C. BRUNER JOSEPHINE A. LYGHT cessful in raising the minimum wage in To be medical director VICKY S. CHAVEZ WILLIAM B. MC LIVERTY the early 1960’s from $1 to $1.25, all the SCOTT M. M. PATRICIA MURPHY MICHAEL M. GOTTESMAN HAROLD W. JAFFE MICHELE F. GEMELAS ANNA M. NITOPI way up to where it is at the present To be senior surgeon TERRY A. HOOK ROBERT G. PRATT time, we are going to be successful in ALICE D. KNOBEN KURT M. RILEY JAMES F. BATTEY, JR. raising it to $5.15 an hour as well. To be assistant pharmacist To be surgeon Mr. President, I yield the floor. GARY L. ELAM KIMBERLY D. KNUTSON HELENE D. GAYLE THURMA G. MC CANN JAMES A. GOOD SANDRA C. MURPHY f JEFFREY R. HARRIS MICHAEL E. ST LOUIS VALERIE E. JENSEN JILL A. SANDERS ADJOURNMENT UNTIL 9 A.M. DOUGLAS B. KAMEROW PAMELA STEWART-KUHN TOMORROW To be senior assistant surgeon To be assistant pharmacist pharmacist L. JANE DUNCAN The PRESIDING OFFICER. Under ROBERT T. CHEN KATHLEEN L. IRWIN SUSAN L. CRANDALL CONNIE A. KREISS To be senior assistant dietitian the previous order, the Senate stands AHMED M. ELKASHEF BORIS D. LUSHNIAK MICHAEL M. ENGELGAU DOUGLAS L. MC PHERSON CELIA R. HAYES DAVID M. NELSON adjourned until 9 a.m. tomorrow morn- RICHARD L. HAYS MANETTE T. NIU ing. BROCKTON J. HEFFLIN ROBERT J. SIMONDS To be therapist CLARE HELMINIAK JONATHAN T. WEBER Thereupon, the Senate, at 8:38 p.m., MICHAEL P. FLYZIK To be senior assistant dental surgeon adjourned until Thursday, May 2, 1996, To be assistant therapist at 9 a.m. THOMAS T. BARNES, JR. PAUL J. FARKAS MITCHEL J. BERNSTEIN JANIE G. FULLER MARK T. MELANSON f BRENDA S. BURGES KENT K. KENYON To be health services director DEBORAH P. COSTELLO RUTH M. KLEVENS NOMINATIONS DAVID A. CRAIN EDWARD E. NEUBAUER JAMES H. SAYERS RICHARD L. DECKER THOMAS A. REESE Executive nominations received by JAMES V. DEWHURST III JOSE C. RODRIGUEZ To be health services officer the Senate May 1, 1996: DEBRA L. EDGERTON ADELE M. UPCHURCH MAUREEN E. GORMLEY FEDERAL MINE SAFETY AND HEALTH REVIEW To be dental surgeon To be senior assistant health services officer MICHAEL E. KORALE MARY LUCILLE JORDAN, OF MARYLAND, TO BE A MEM- CORINNE J. AXELROD RICHARD D. KENNEDY BER OF THE FEDERAL MINE SAFETY AND HEALTH RE- To be nurse officer DEBORAH DOZIER-HALL EDWARD M. MC ENERNEY VIEW COMMISSION FOR A TERM OF 6 YEARS EXPIRING WILLIAM M. GOSMAN MICHAEL R. MILNER AUGUST 30, 2002. (REAPPOINTMENT) CATHY J. WASEM JANET S. HARRISON ANNE M. PERRY ELIZABETH A. RASBURY IN THE AIR FORCE To be senior assistant nurse officer REBECCA D. HICKS BRIAN T. HUDSON RAY J. WEEKLY THE FOLLOWING-NAMED OFFICERS FOR APPOINTMENT DONNA N. BROWN THOMAS E. DALY CRAIG S. WILKINS IN THE RESERVE OF THE AIR FORCE, TO THE GRADE IN- GRACIE L. BUMPASS TERENCE E. DEEDS To be assistant health services officer DICATED, UNDER THE PROVISIONS OF TITLE 10, UNITED MARTHA E. BURTON JOSEPH P. FINK STATES CODE, SECTIONS 8373, 8374, 12201, AND 12212: ANNETTE C. CURRIER ROBERT C. FRICKEY WILLARD E. DAUSE

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