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

Vol. 148 WASHINGTON, MONDAY, NOVEMBER 18, 2002 No. 149 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, November 19, 2002, at 12 noon. Senate MONDAY, NOVEMBER 18, 2002

The Senate met at 11 a.m. and was standing that You can produce serenity You. Grant us Your incomprehensible, called to order by the President pro in our souls when there is so much that but indispensable, palpable peace so tempore (Mr. BYRD). is unfinished, unresolved, and unfor- that we can be peacemakers. Give the PRAYER given in us, in our relationships, in our Senators a fresh infusion of Your peace work, and in our society. Sometimes so that they may deal with disagree- The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer: we even deny ourselves the calm con- ments and discord in the legislative Jehovah-Shalom, You have promised fidence of Your peace because we are so process. Help them overcome problems us a peace that passes all under- aware of what denies Your peace in us. and endure the pressure of these days. standing. That is the quality of peace Take from us strain and stress as our In the name of the Prince of Peace. we need today. It is beyond our under- anxious hearts confess our need for Amen.

NOTICE If the 107th Congress, 2d Session, adjourns sine die on or before November 22, 2002, a final issue of the Congres- sional Record for the 107th Congress, 2d Session, will be published on Monday, December 16, 2002, in order to permit Members to revise and extend their remarks. All material for insertion must be signed by the Member and delivered to the respective offices of the Official Reporters of Debates (Room HT–60 or S–123 of the Capitol), Monday through Friday, between the hours of 10:00 a.m. and 3:00 p.m. through Friday, December 13. The final issue will be dated Monday, December 16, 2002, and will be delivered on Tuesday, December 17, 2002. None of the material printed in the final issue of the Congressional Record may contain subject matter, or relate to any event that occurred after the sine die date. Senators’ statements should also be submitted electronically, either on a disk to accompany the signed statement, or by e-mail to the Official Reporters of Debates at ‘‘[email protected]’’. Members of the House of Representatives’ statements may also be submitted electronically by e-mail, to accompany the signed statement, and formatted according to the instructions for the Extensions of Remarks template at http:// clerkhouse.house.gov. The Official Reporters will transmit to GPO the template formatted electronic file only after receipt of, and authentication with, the hard copy, and signed manuscript. Deliver statements to the Official Reporters in Room HT–60. Members of Congress desiring to purchase reprints of material submitted for inclusion in the Congressional Record may do so by contacting the Congressional Printing Management Division, at the Government Printing Office, on 512–0224, between the hours of 8:00 a.m. and 4:00 p.m. daily. By order of the Joint Committee on Printing. MARK DAYTON, Chairman.

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

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VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00001 Fmt 4637 Sfmt 8633 E:\CR\FM\A18NO6.000 S18PT1 S11232 CONGRESSIONAL RECORD — SENATE November 18, 2002 riod of morning business. I wanted to great courage. She is someone who has PLEDGE OF ALLEGIANCE come to the floor to spend a couple of the capability to stand up in a very sig- The PRESIDENT pro tempore led the minutes speaking about those Senators nificant way and explain quickly what Pledge of Allegiance, as follows: who are leaving the Senate at the end it is she has a passion about in public I pledge allegiance to the Flag of the of this session. policy. United States of America, and to the Repub- The PRESIDENT pro tempore. The I deeply admire JEAN CARNAHAN, not lic for which it stands, one nation under God, Senator is correct. The Senate is in only for aspiring to carry out that mis- indivisible, with liberty and justice for all. morning business, and the Senator is sion of public service that was begun f recognized for not to exceed 10 min- by her husband, the of Mis- RESERVATION OF LEADER TIME utes. souri, but also because she played a f significant role and contributed in a The PRESIDENT pro tempore. Under significant way in the Senate. the previous order, the leadership time TRIBUTE TO DEPARTING We all will miss JEAN CARNAHAN as is reserved. SENATORS she moves on to other challenges and f Mr. DORGAN. Mr. President, the other opportunities. Senate, for all of the notice it gets in RECOGNITION OF THE ACTING My colleague, MAX CLELAND from the national press, is nonetheless still MAJORITY LEADER , will not be with us in the next a family of sorts. We are 100 men and session. He will be leaving at the end of The PRESIDENT pro tempore. The women who come to this fashion of this session as well. MAX CLELAND is majority whip, the Senator from Ne- public service from different points on one of those heroes of mine. MAX vada, is recognized. the compass, from all across the coun- CLELAND is a brave, remarkable Amer- try, and from different backgrounds— f ican. He left three of his limbs on a Republicans and Democrats, conserv- SCHEDULE battlefield fighting for this country. He atives and liberals. We work together a is a person of great personal courage. Mr. REID. The Chair will shortly an- great part of the year in this Chamber, I say to anyone who has not yet done nounce that we will be in a period of and we spend a lot of time in our re- so, read his book, ‘‘Going to the Max.’’ morning business until 12 noon today, spective States. We have become It is a story of great inspiration. MAX under a previous order issued by the friends. Republicans and Democrats, CLELAND has been a terrific legislator, Senate. At noon, the Senate will con- liberals and conservatives, nonetheless, a great representative of the State of sider the nomination of are close personal friends in many Georgia in the Senate. More than that, to be a circuit judge. The time on that cases. debate is 6 hours. Upon the use or We are going to be saying good-bye he has been an inspiration to virtually yielding back of that time, but not be- to a number of Senators this year. I all America. fore 5:15 p.m., the Senate will vote on wish to, before we complete our work Our country owes him a great debt of or in relation to that nomination. this week, say a word about a number gratitude for his service. Our col- Following disposition of that nomi- of those who will be leaving. I actually leagues owe him a great debt of grati- nation, the Senate will resume consid- threatened last week, I say to the Sen- tude for his companionship and service eration of the Homeland Act. ator from , Mr. GRAMM, for exam- in the Senate. I don’t know if there will be used the ple, to say a word about him. I will do We also will not be joined next year full 6 hours on the Shedd nomination. I that today in a moment. by Senator TORRICELLI who indicated really doubt it. I would hope that peo- I will start with Senator JEAN his decision not to seek reelection. Let ple would have the opportunity, if they CARNAHAN, if I may. I went to Missouri me say about BOB TORRICELLI, I served choose, to come and talk about this to campaign with JEAN CARNAHAN. She with him in the U.S. House of Rep- most important vote we will have to- was here a relatively short time be- resentatives. He is a passionate fighter, morrow on the amendment pending on cause she filled a seat that was then articulate, strong, assertive for the H.R. 5005. This is very important. And filled by a special election in the State issues in which he believes and for the of course, after the judge is voted on, of Missouri. But I believe the first mo- issues he feels are important to his there will be time this evening. There ment I met JEAN was at the organizing home State of and for our will be a very limited amount of time session. She had suffered a great trag- country. in the morning for people to speak. edy. The State of Missouri had suffered On the Republican side, I came here As the Presiding Officer has educated a great tragedy. The incumbent Gov- not knowing . I only knew the entire country, including the Sen- ernor of the State of Missouri had died of him by reputation. His reputation ate, this next series of votes is ex- in a plane crash. The Governor, his son, was he was a hard-edged, tough guy tremely important. and others perished in that crash rel- who asked no quarter, gave no quarter, f atively close to the election. His name and never stopped fighting for the remained on the ballot. The folks from issues about which he cared. He plant- MORNING BUSINESS the State of Missouri, nonetheless, ed himself sometimes far off the polit- The PRESIDENT pro tempore. Under voted for his name on the ballot, and ical spectrum and said: Here is where I the previous order, as the Democratic the Governor appointed JEAN stand. That was my impression of him whip has already stated, there will now CARNAHAN, his widow, to come to the as I came to the Senate. be a period for the transaction of morn- Senate. What I discovered in the Senate is he ing business not to extend beyond the JEAN stood up at the organizing ses- is quite a remarkable gentleman, and I hour of 12 noon, with Senators per- sion—and I am sure she would not use the term ‘‘gentleman’’ in every re- mitted to speak therein for up to 10 mind if I indicated this publicly be- spect. He is one of the most courteous, minutes each. cause she did it in an organizing ses- kind people with whom I have had the Mr. REID. I suggest the absence of a sion—and she said to members of our opportunity to serve. I have on occa- quorum. caucus and to the new Members coming sion gone over and sat with him in the The PRESIDENT pro tempore. The into the Senate: Chamber of the Senate and talked clerk will call the roll. You come here because of your win. I have about the house he will retire to and The legislative clerk proceeded to arrived here because of my loss. the front porch on which he will spend call the roll. She, of course, was speaking about some time. Mr. DORGAN. Mr. President, I ask the tragedy that had occurred in the While we might disagree on some unanimous consent that the order for State of Missouri, her having lost a issues very strongly, he is a legislator the quorum call be rescinded. husband, then a candidate for the Sen- who contributed substantially to the The PRESIDENT pro tempore. With- ate, and her son in that plane crash. public debate in this country and often out objection, it is so ordered. I watched JEAN CARNAHAN as she with great courage on his part. I cer- Mr. DORGAN. Mr. President, my un- worked in the Senate. She did a re- tainly thank him for his service to our derstanding is that we are now in a pe- markable job. She is someone with country.

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.001 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11233 Senator will be the House is substantial. In fact, early An economist by training, Senator leaving the Senate. If you know his on in our career, I sat next to him on GRAMM has spent his entire public ca- personal story, you just are almost out the Veterans Affairs Committee in the reer fighting for the principles of free- of breath when you understand what he U.S. House. That is when he was a dom, particularly economic freedom, has done over his . He not only Democrat, as a matter of fact. That is individual choice and limited govern- has served with great distinction in eons ago. ment. We all know well of his ‘‘Dickey public service in many venues—as a Senator GRAMM is one of those people Flatt’’ test. Dickey Flatt is a small judge in his home State, in the Senate, who makes a significant contribution businessman in Texas who has served running for President, and so many in this Chamber because he is deter- as Senator GRAMM’s bell-weather on other positions—he also volunteered mined to make that contribution and the Federal Government’s tax and reg- for service during wartime at age 42 he knows the rules, he is shrewd, and ulatory policies. It is for the Dickey and volunteered to climb into a glider he is tough. If you are in a fight, you Flatts of this country that Senator to crash land at night behind enemy want someone like Senator GRAMM GRAMM has fought to cut Federal tax lines. with you in a fight. rates, repeal the death tax and reduce This is a man of great personal cour- Mr. President, having said all that the government’s regulatory burden on age and a man who served this country about those who are leaving, let me say small businesses. We also have heard with great distinction in many ways. I again the reason I came today to speak often of Senator GRAMM’s ‘‘momma.’’ have had the opportunity over the is because I care very deeply about this It is for her and the other senior citi- years I have been in the Senate to institution. I still pinch myself every zens of our country that Senator serve with him as well and visit with day after 10 years serving in the Sen- GRAMM has worked hard to strengthen him about his public service. I deeply ate. When I drive to this Capitol Build- and modernize the and Social admire what Senator STROM THURMOND ing, I pinch myself that a man from a Security programs. Perhaps Senator has given to this country, and we wish town of 400 people and a high school GRAMM’s most important legislative him well. class of 9 had the opportunity to be accomplishments are the 1981 ‘‘Gramm- Senator MURKOWSKI is someone with elected to the Senate. Latta’’ tax cut, the Gramm-Rudman- whom I have worked on the Energy This is an extraordinary honor. This Hollings balanced budget bill and the Committee, both as a chairman of the body of 100 men and women who come Gramm-Leach-Bliley Financial Serv- Energy Committee and ranking mem- with different passions and different vi- ices Act. ber. He is now off to become Governor sions for our country offer America the Equally as important as the legisla- of the State of Alaska. He is someone patchwork quilt of what America is tion he has supported is the legislation with great passion for his State. Al- about in its deliberations and the de- that Senator GRAMM has chosen to most every amendment coming from velopment of ideas and the approaches fight over the years. If a bill did not Senator MURKOWSKI has something to by which we try to move America for- pass the Dickey Flatt test, you could do with Alaska. ward. be assured that Senator GRAMM would I have enjoyed the opportunity to get I know from time to time, as do all of oppose it. He is probably most famous to know Senator MURKOWSKI. He is a my colleagues, I leave this Chamber for successfully leading the opposition man of good humor, but also someone perhaps despondent about what hap- in 1994 to then-President Clinton’s pro- who feels very strongly and passion- pened that day, despondent that we did posal for a Federal takeover of the Na- ately about issues. not get something done which I tion’s system. Senator HUTCHINSON I have not thought we should have done, or de- I have had the privilege of serving known quite as well, but Senator spondent that we did something I with the Senator from Texas on the HUTCHINSON and his brother Asa, who thought we should not have done. But Senate Finance Committee for the past served in the House of Representatives over a long time, I remain enormously 4 years. I have learned much from him while TIM served in the Senate—their proud of the opportunities to serve in and enjoyed listening to him debate family, obviously, has a great passion the Senate. the important issues before the Com- for public service. I have enjoyed the It is a remarkable, unusual, distinct mittee. Senator GRAMM has a plain- opportunity to know him, although not privilege to serve in the Senate. This spoken, common sense way of explain- quite as well as others. institution is still the greatest delib- ing issues that will be sorely missed in Senator SMITH from erative body in the world, and my col- this body. is one with whom I had the opportunity league, Senator BYRD, the Presiding Senator GRAMM has served his State to serve on the Ethics Committee. I Officer, the President pro tempore, re- of Texas and this country with great have grown very fond of BOB SMITH. He minds us always of the place in history distinction. He is a skilled debater and is a big, tall man with a great passion this Senate occupies. legislator, who has held true to his to serve his State and country. One of I wish to say to all of those who are conservative principles over the years. the qualities I discovered about him on leaving this institution: It has been a I feel privileged to have had the oppor- issues that are very important, such as great privilege to serve with each and tunity to work with him during my the issues we confronted on the Ethics every single one of them. Their pres- tenure in the Senate, and to call him Committee, is there was not a partisan ence has contributed to this institution my friend. I wish him and his lovely bone in his body. But BOB SMITH was in a very significant way. wife Wendy the best in their future en- about fairness and doing things the Mr. President, I yield the floor. deavors. right way. Mr. FEINGOLD. Mr. President, today I have become a friend of BOB Mr. THOMPSON. Mr. President, I I pay tribute to my friend and col- SMITH’s. I like him a great deal. I wish rise today to pay tribute to my good league PHIL GRAMM, who retires from him very well as he moves on from the friend and distinguished colleague, the the Senate, but will not soon fade from Senate. senior Senator from Texas, Senator the memories of all those who worked Finally, Senator GRAMM from Texas. PHIL GRAMM. Senator GRAMM was first with him in this body. Very simply, I mentioned the other day he is some- elected to public office in 1978. He Senator GRAMM is a straight shooter, a one who, if you are going to be in a big served in the U.S. House of Representa- man who has a strong grasp of the fight—a really big fight—you want tives as a Democrat for 4 years. After issues, and who never fails to speak his with you. He not only is smart and becoming disenchanted with the Demo- mind. While we disagreed a good deal shrewd, but he does not ever quit, no cratic party, he resigned his seat in on the issues, I have always had the ut- matter what the time is on the clock. January of 1983 and ran again in a spe- most respect for Senator GRAMM’s While we have had our differences cial election as a Republican. He won opinion, and for the way that he has from time to time with regard to pub- back his seat and earned a new found conducted himself throughout his serv- lic policy, I have never had a difference respect for the honorable way in which ice in the Senate. with him on personal issues. He is he changed parties. In 1984, Senator There have also been many times someone I deeply admire. His service to GRAMM was elected to the United when we have seen eye to eye, and our country through the Senate and States Senate. when we have it has been a pleasure to

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00003 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.005 S18PT1 S11234 CONGRESSIONAL RECORD — SENATE November 18, 2002 work with the Senator from Texas. To- fair-minded and well-respected member William Buckley show which was gether we have fought to reform our gave a tremendous boost to our efforts, broadcast from the law school at the budget process and cut wasteful spend- through to some of our most critical University of . The subject ing. Now as my colleagues know, cut- moments, as when he skillfully nego- was the United States- relation- ting spending or reforming the way tiated an agreement on hard money ship. The panel included Henry Kis- that the government spends Federal limits that the vast majority of this singer, Jim Barksdale, my colleague tax dollars is never easy. But Senator body could support. Without that , and the new Senator from GRAMM and I share the belief that only agreement, we simply could not have , TIM HUTCHINSON. by reforming our budget process will moved the McCain-Feingold bill I was surprised that the young Ar- we ensure the kind of fiscal discipline through the Senate. I also want to pay kansas Senator not only held his own in Congress that the American people special tribute to Senator THOMPSON during this program, but he was the deserve. for the work he did investigating the star. He made compelling arguments While we were never able to bring our 1996 campaign finance scandals. Sen- for his points of view; he knew the budget process reform bill to introduc- ator THOMPSON cut his political teeth facts; and he expressed them in an ar- tion, we stood shoulder-to-shoulder on on another great scandal in our Na- ticulate and persuasive manner. many votes to cut pork-barrel spending tion’s history, but his work in 1997 TIM HUTCHINSON has been a very fine and apply fiscal discipline. I thank showed the nation that the campaign Senator for the State of Arkansas. He Senator GRAMM for his tremendous finance is truly a bipartisan problem has upheld the finest traditions of this leadership on these critical issues, and with a bipartisan solution. I will great- body, and we will miss him. I wish him all the best as he ends his ly miss his leadership on these issues. I wish him much success in the years distinguished career in the U.S. Sen- I also joined with Senator THOMPSON ahead. ate. to try to ensure that the export laws MAX CLELAND TRIBUTE TO SENATOR JESSE HELMS took national security sufficiently into Ms. STABENOW. Mr. President, I Mr. FEINGOLD. Mr. President, with account, rather than merely bend to rise today to pay tribute to my dear the end of the 107th Congress, we wish the largest business interests. And fi- friend and departing colleague Senator the best to Senator JESSE HELMS, who nally, I want to thank FRED THOMPSON MAX CLELAND. retires after serving five terms here in for his leadership on States’ rights. once said that ‘‘a the U.S. Senate. Senator HELMS will be Senator THOMPSON has consistently nation that rests on the will of the peo- long remembered, by his colleagues spoken out against Federal mandates ple must also depend on individuals to and by history, for his legendary serv- that hinder, rather than help, States support its institutions if it is to flour- ice to the people of . and localities as they work to serve ish. Persons qualified for public office From the day I arrived in the Senate, America’s communities. should feel an obligation to make that and throughout our service together on These are just a few of the many rea- contribution.’’ the Senate Foreign Relations Com- sons that FRED THOMPSON’s presence in MAX CLELAND heard that centuries mittee, Senator HELMS has been this body will be missed. He has been a old call to duty and answered with a unfailingly cordial to me, and that is true champion on many important lifetime of service. something I have always greatly appre- issues, and a champion for the people Senator CLELAND’s dedication to his ciated. While Senator HELMS and I of his state. I thank him for his leader- country stretches from the battlefields more often than not disagreed on the ship and his friendship, and I wish him of Vietnam to the floor of this Senate. issues of the day, I appreciated the all the best as he ends this chapter of And the families of Georgia, and our chance to work with him on issues his career. entire Nation, are better for his leader- where we were able to find common TIM HUTCHINSON ship. ground. Together we fought against un- Mr. COCHRAN. Mr. President, the Senator CLELAND nearly lost his life necessary fast-track procedures that election campaign in Arkansas this serving his country in Vietnam. He re- bind Congress’s hands on trade legisla- year which involved TIM HUTCHINSON turned home with injuries so grave tion. I also joined with Senator HELMS and Mark Pryor put me in an awkward that he spent a year and a half in var- to try to ensure that the export laws position. Former Senator David Pryor ious Veterans Administration Hos- took national security sufficiently into was one of my best friends when he was pitals recovering. account, rather than merely bend to in the Senate. But Senator CLELAND then battled the largest business interests. Finally, TIM HUTCHINSON has been a hard and beat a depression so deep that it I have been proud to work with Sen- working, successful Senator who de- would have broken the spirit of many ator HELMS to call attention to human served to be reelected. The voters of others and embarked on a remarkable rights abuses in China. Arkansas made their decision and TIM 30-year career of public service. So as he leaves the Senate, I thank HUTCHINSON was not reelected. He began by speaking out for better Senator HELMS for the chance to work During his 6 years in the Senate, TIM treatment for veterans, a cause he together on these important issues. I was a forceful, articulate, and effective would champion throughout his career. join my colleagues in paying tribute to spokesman for the interests of his Then at the age of 28, he was elected him, and in wishing him all the best for State. I observed him at close range, as to become Georgia’s youngest State his retirement. a fellow member of the Agriculture Senator. TRIBUTE TO SENATOR FRED THOMPSON Committee, speak out for the farmers In 1977, Senator CLELAND was ap- Mr. FEINGOLD. Mr. President, today of his State. He made sure the best pro- pointed head of the Veterans Adminis- I would like to pay tribute to FRED grams possible were included in the tration by President Carter, mailing THOMPSON, a colleague and friend who farm bill last year for the rice, cotton, him the youngest Administrator in the has left a lasting legacy here in the and soybean producers of his State. agency’s history. Senate. Senator THOMPSON has served He gave particular attention to the In 1982, Georgia voters elected him the people of Tennessee well, standing interests of the aquaculture industry Secretary of State, again, the youngest on principle time and time again. He and the unfair efforts of the Viet- ever. has been a champion of campaign fi- namese basa fish exporters to under- And in 1996, Senator CLELAND was nance reform since he first came to the mine years of catfish promotion efforts elected to the Senate in 1994. He was among the origi- and market development success. where he became a champion on issues nal co-sponsors of the first McCain- In every instance when TIM HUTCH- like veteran affairs, health care and Feingold legislation, and he has been INSON argued for the interest of the protecting our Nation’s parks and nat- an invaluable ally ever since. citizens of his State, he did so with ural treasures. I am deeply grateful to him for his conviction and a seriousness of purpose I think Jefferson would be proud to longstanding and steadfast support for that was very impressive to me. see that our Nation still produces such reform. FRED THOMPSON was a central Another example which I recall that leaders as Senator CLELAND whose en- part of our effort, from the first days, made me sit up and take notice was in tire life embodies the spirit of patriot- when gaining the support of such a a nationally televised debate of the ism, civic duty and self-sacrifice that

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00004 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.073 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11235 has shaped our Nation since its very who has served here for 54 years and is been a tremendous gentleman and a founding. on the brink of celebrating his 100th wonderful friend. He is a good friend to I hope Senator CLELAND will con- birthday—a remarkable achievement my family as well. I wanted to take a tinue to speak out on the issues he in and of itself. As someone once said, couple minutes to say thank you to a cares about so deeply because his voice if they had known they would have remarkable individual, a remarkable is still needed. lived that long, they would have taken American. I know that he has great af- JEAN CARNAHAN better care of themselves. And STROM fection for this institution and its Mr. President, I rise to express my THURMOND took very good care of him- Members. I wish him the very best of admiration and respect for my depart- self over the years. health and, I want him to know we will ing colleague, Senator JEAN CARNAHAN. Senator MAX CLELAND, a remarkable all miss him very much. Senator CARNAHAN and I entered the person, has served here for only 6 MAX CLELAND Senate in the same freshman class and years, representing the State of Geor- I also want to pay tribute to our col- we served together on the Special gia. He has done a remarkable job dur- league from Georgia, MAX CLELAND. I Committee on Aging. ing his years here. But he has had a know very few people who have as I quickly came to appreciate Senator distinguished record, of course, that many heroic qualities as MAX CLELAND CARNAHAN’s hard work on behalf of the has accumulated prior to his arrival in does. It is not by pure circumstance people of Missouri and our Nation. the Senate. that I mention STROM THURMOND and Senator JESSE HELMS, with whom I Senator CARNAHAN was a leader in MAX CLELAND next to each other. I have served on the Foreign Relations the fight to make prescription drugs mentioned the fact that STROM THUR- Committee for my entire service, my 22 more affordable. MOND served his country with great dis- Senator CARNAHAN authored the years in the Senate. He has served for tinction in military service during 30 years here. We have been the best of ‘‘Classroom Quality’’ provision of the World War II. MAX CLELAND, of course, colleagues serving together. ‘‘Leave No Child Behind Act’’, which served his Nation with great distinc- Senator BOB TORRICELLI of New Jer- will give our local schools the ability tion during the Vietnam conflict and, to offer qualified teaching specialists sey; Senator PHIL GRAMM of Texas, with whom I have served on the Bank- of course, paid a terrible price for that to all students who need them. service. Just a month shy of com- Senator CARNAHAN ing Committee; Senator JEAN worked to save pleting his tour of duty, he suffered the thousands of airline jobs in Missouri CARNAHAN, who has had a brief service here but has done a wonderful job rep- terrible loss of both legs and an arm. and across the Nation also provide re- Yet despite those physical injuries, resenting the State of Missouri; Sen- lief for those workers who lost their and the obstacles they presented, MAX ator FRANK MURKOWSKI, with whom I jobs in the wake of the travel slowdown CLELAND has made a remarkable con- was elected to the Senate 22 years ago; after 9–11. tribution to this institution, to the Senator CARNAHAN was one of the Senator FRED THOMPSON from the people of his home state of Georgia. first legislators to go to Afghanistan to State of Tennessee; Senator BOB SMITH; MAX CLELAND is truly an American see for herself that our troops had all Senator TIM HUTCHINSON—these are the hero, not just because he wore the uni- they needed in the fight against ter- 10 Members who are leaving. form of the United States and served in rorism. STROM THURMOND combat and suffered a terrible loss. He And Senator CARNAHAN fought tire- Mr. President, regarding Senator is an American hero because of his lessly to make sure Social Security THURMOND, I spoke back a number of willingness and desire to serve the peo- and Medicare remain strong for our weeks ago about Senator THURMOND in ple of his country in a continuing fash- present seniors and the generations to our wonderful tribute to him. He is ion beyond that of a military uniform. come. truly an institution within this insti- While her tenure was brief, her leg- tution. He has done so in the State of Georgia, acy will be long. I have known Senator THURMOND holding office there as well as here in But, beyond admiring her skills as a since I was very young. My father and the Senate. I don’t know of anyone who legislator, I came to appreciate Sen- he served together here for 12 years. I is held in such a high regard and with ator CARNAHAN’s sincere warmth, quiet have served with him for 22 years. So such respect by all of us as MAX humor and inner strength. for 34 years Senator THURMOND has had CLELAND. We are all too keenly aware that to serve with a Dodd in the U.S. Senate One of Senator CLELAND’s favorite Senator CARNAHAN came to the Senate of his 54 years. poets, William Butler Yeats, once in the wake of the tragic plane crash I know of no one who has had as var- wrote: ‘‘Too long a sacrifice can make that killed her husband, Governor Mel ied and as distinguished a career in a stone of the heart.’’ Carnahan, and her oldest son Randy. public service. When you think of his In the case of MAX CLELAND, his enor- But Senator CARNAHAN turned the contribution as an educator, as a Gov- mous sacrifice to his country only grief over her family’s loss into a leg- ernor, as a combat war veteran—and emboldened his golden nature, and in- acy of gains for families in Missouri not young at the time of D-Day, I creased his desire to dedicate himself and our Nation. might add, but nonetheless showed to improving the lives of others. Senator CARNAHAN was truly a fitting great heroism—and serving, as I men- I will miss him very much. When the heir to the Senate seat once held by tioned, as a Governor of his State, and, 108th Congress convenes, it just won’t Harry Truman and I hope she will con- of course, in the Senate for so many seem quite right that MAX CLELAND is tinue to speak out on the issues she years, and as a judge—truly a remark- not among us—he has a wonderful cared about so deeply. able individual—and elected to the sense of humor, a great sense of his- Her voice will still be needed. Senate under various banners over the tory, a great love of his country. I The PRESIDING OFFICER. The Sen- years—as a Democrat, as a Dixiecrat, deeply regret the people of Georgia ator from Connecticut is recognized. as a Republican, as a write-in can- didn’t see fit to send him back to serve Mr. DODD. Mr. President, I rise for didate—truly a remarkable achieve- with us. I don’t know his successor. I the purpose of paying tribute to our ment. am sure he is a fine person. I am sure colleagues who are leaving the Senate. I’ve heard it suggested that they he won’t mind if I say I am going to There are some 10 of our colleagues might have to rename the State of miss Max very much, but I know I have who are leaving under various cir- South Carolina; there have been so a lifelong friend in MAX CLELAND. cumstances. I would like to speak many monuments to his public service. Just prior to coming back to Wash- about them and to express my deep ap- There are schools, roads, bridges, parks ington, it was announced that MAX and preciation for their friendship, for the all through the State of South Carolina Nancy are going to be wed. My wife years we have worked together, or op- that bear the name of STROM THUR- Jackie and I wish both of them the best posed each other, as the case may be, MOND. That is because, of course, he is in the years ahead. on various matters that have come be- held with such incredible affection by JESSE HELMS fore this body. the people of that State. I also want to pay tribute to my Mr. President, of course, we all have We have had our differences on sub- friend and colleague from North Caro- great affection for Senator THURMOND, stantive matters, but he has always lina, Senator Jesse Helms. I don’t

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00005 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.004 S18PT1 S11236 CONGRESSIONAL RECORD — SENATE November 18, 2002 know of anyone here I probably dis- His passion for politics is something all JEAN CARNAHAN agreed with more over the past 22 years of us came to appreciate in the Senate Mr. President, I want to mention than Jesse Helms. But I also don’t during his years. He was elected to the JEAN CARNAHAN, who had a short serv- know of anyone with whom I have had House at age 31 in 1982. He did a tre- ice in this body. All of us have a deep a better relationship over the last 22 mendous job there, serving on the appreciation for the circumstances years. I know that sounds somewhat of House International Relations Com- under which she arrived—one of the a contradiction to people who watch mittee, and rose to prominence as a most tragic set of circumstances any of this institution, that people with House member, as a leading voice for us can imagine. She did a remarkable whom you can have profound and sig- advancing and expanding democracy job, coming in under difficult cir- nificant disagreements can also be peo- and human rights worldwide. cumstances, and we owe her a debt of ple you hold in high regard and respect. In 1996, he came to the Senate. His ef- gratitude for the courageous and self- Senator JESSE HELMS and I have forts on behalf of tax, employment, en- less service that she provided to the fought tooth and nail on almost every vironmental, education, and health people of Missouri, the American pub- issue I can think of. But I don’t know issues are things we are all well aware lic, and the sense of silent grace with of a finer gentleman, a more decent of. He has wonderful legislative skills which she handled those personal dif- human being than Jesse Helms. And we and was a great battler on behalf of the ficulties. have disagreed on policy matters over Democratic Party. She didn’t just simply show up in the and over again—he is a passionate con- He led the Senate Democratic cam- Senate—she thrived here. All of our servative, his voting record has scored paign committee during his first term colleagues would agree when I say that a 100 percent rating from American in a cycle during which he raised a lot learning to navigate the ways of the Conservative Union throughout his 30 of money to support Democratic can- Senate can be difficult for anybody, years here, and he is deeply proud of didates across the country. It is a but for somebody who never served in the fact that during those years he has thankless job. But for those of us who public office, having, of course, been one of the highest voting records of stand for election or reelection, you the of her State of Missouri loyalty to the Republican Party, in ex- have to have someone who will head up for 8 years, JEAN CARNAHAN did a re- cess of 95 percent. these committees and do so with a markable job during her time here. She It is that passion which I admire. We great deal of energy. BOB TORRICELLI made a difference on numerous pieces don’t have enough of it in politics certainly did that for a lot of people of legislation in which she helped to today, in my view. And while I wish we whose careers might have been termi- forge compromises. While her tenure had more of on it our side, I respect it nated more briefly had it not been for may have been brief, she left a mark when I see it in anyone. JESSE HELMS his dedication to seeing to it that worthy of those with much longer serv- certainly brings it to his public service. Democratic candidates would have a ice. All of us express nothing but our I will miss his service here. I will miss good chance to be heard. very best wishes to JEAN CARNAHAN and working with him. There were many I would not want this session to end to her family in the coming years. She occasions when we actually did find without expressing my gratitude to has become a good friend to us here. I common ground, as we do so frequently BOB TORRICELLI for his service in this thank her for her service, and I am here, on matters that don’t achieve the body and his service to the people of sure she will find other ways to con- high profile status as matters of dis- New Jersey. tribute and provide services for the agreement do. He served his State of PHIL GRAMM people of this country. North Carolina well. He served and rep- Mr. President, PHIL GRAMM is also FRANK MURKOWSKI resented a point of view embraced by leaving the Senate, going to work for FRANK MURKOWSKI and I were elected many. UBS Warburg. Their offices are in Con- to the Senate together in 1980. He has I will miss him on a personal level as necticut, so I will be looking forward, now been elected Governor to the State a kind and thoughtful individual. Jack- very carefully, at what PHIL GRAMM of Alaska. He is moving on to other ie and I wish he and Dot the very best does as a new part-time constituent of areas of public service. He has done a in the years to come. mine. I say that somewhat facetiously very fine job here and has made a sig- BOB TORRICELLI of course. nificant contribution representing the Mr. President, ROBERT TORRICELLI is PHIL GRAMM has had a very distin- people of Alaska. He had a successful leaving the Senate. He made the deci- guished career in public life. We have career as a businessman in Alaska be- sion this fall not to seek reelection in served together on the Banking Com- fore coming to the Senate. He was the midst of his election. A lot of at- mittee during his entire time in the President of the Alaska National Bank tention has been focused on that deci- Senate. We have worked together very from 1970 to 1980. sion, but for those us of who have closely on matters affecting the securi- Since his arrival here, he has kept known BOB TORRICELLI over his 20 ties industry. We coauthored a number Alaska first and foremost in his mind. years of public service—14 years in the of bills together during our joint serv- He has been an extraordinary defender House, 6 years in the Senate—BOB ice. We were elected to the House to- of Alaska’s interests. But he made TORRICELLI is a lot more than an indi- gether. PHIL was a Democrat in those many contributions, as well, to the na- vidual who decided to pull out of a race days, then became a Republican, was tional agenda. in New Jersey this year. He is a pas- elected to the Senate as a Republican. In fact, many of his biggest fights sionate fighter for things he believes He has authored major pieces of legis- have greatly benefitted our Nation as a and he has compiled a wonderful record lation during his career. whole. In 1996, for example, FRANK of public service. In fact, the Brookings Institution MURKOWSKI led the congressional effort I want the RECORD to reflect that listed three of the bills that PHIL to pass the omnibus parks bill, which BOB TORRICELLI was a fine Senator, a GRAMM authored or coauthored as created or improved more than 100 na- fine Member of Congress. He fought among a handful of the most signifi- tional parks, forests, preserves and his- very hard on behalf of his constituents, cant pieces of legislation in the 20th toric sites nationwide, including two in fought very hard on the issues he cared century, including the Gramm-Rud- Alaska. deeply about. We had our disagree- man-Hollings balanced budget proposal And, for more than 25 years, FRANK ments over Cuban policy frequently. I which attracted a wide degree of atten- and his wife, Nancy, have been leaders always used to say, when BOB tion during the 1980s. He made a mark in the fight against breast cancer in TORRICELLI came to the floor to take here as a tenacious fighter for what he rural Alaska, and other areas where ac- the other side, he was a formidable op- believes in. One of the most difficult cess to early testing is severely lack- ponent. opponents you could have on an issue ing. He also led a national effort He was an excellent debater, one who is PHIL GRAMM. He doesn’t take many against breast cancer here in Wash- embraced his views with a great deal of prisoners, and he fights very hard for ington, and has been an integral part of knowledge and a great deal of passion the matters in which he believes. I securing increased Federal funding for and feeling. He became active in Demo- thank him for his service and wish him breast cancer research and treatment cratic Party politics at an early age. well in the years ahead. nationwide.

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.095 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11237 He has been a passionate advocate of ing we will be hearing more about tory at nearby John Brown University. oil and gas exploration in Alaska—one FRED THOMPSON in the years to come. I have always believed that his back- of the major debates in this body. I dis- ROBERT SMITH ground as an educator made Senator agreed with FRANK MURKOWSKI about Mr. President, BOB SMITH from New HUTCHINSON one of the most thoughtful allowing drilling in the Arctic National Hampshire is also leaving the Senate. and well-spoken members of this body. Wildlife Refuge, but he certainly While, again, we have been on not only TIM HUTCHINSON’s election to the fought very hard on behalf of his be- different sides of the aisle but on the Senate in 1996 was the culmination of a liefs, showing up with charts and different sides of many, if not most, 10-year political evolution, which graphs and pictures of wildlife and the issues that come before the Senate, I began with his election to the Arkan- like, day after day during that debate. thank BOB SMITH for his service to his sas Statehouse in 1985. While there, he The people of Alaska have now elect- State of New Hampshire and to the gained a state-wide reputation as a ed him as their Governor. I know all of causes which he embraced very firmly. tireless advocate of law enforcement. us wish he and his wife Nancy well as BOB SMITH is a very conservative TIM HUTCHINSON was elected to the they assume new responsibilities in Ju- Member of this body. He has also be- United States House of Representatives neau, Alaska. come a leading advocate, during his in 1993, and in 1996 he became the first FRED THOMPSON latter years of service, on environ- Republican in Arkansas history to win Mr. President, I pay tribute to and mental questions affecting not only the a popular election to the Senate. express my gratitude to Senator FRED State of New Hampshire, but also envi- As a Senator TIM HUTCHINSON re- THOMPSON of Tennessee, as well, for his ronmental issues across the country, mained a committed advocate for con- service here. He has made a significant including his work on helping to clean servative causes—consistently scoring contribution to public life during his up and restore the Florida Everglades. over 90 percent for his voting record by years here in the Senate, as well as He opposed drilling in the Arctic Na- the American Conservative Union. prior to arriving here. FRED’s career in tional Wildlife Refuge despite strong However, there were also several in- politics has truly been one of life imi- support from the Bush administration stances when Senator HUTCHINSON took tating art imitating life. and Senator FRANK MURKOWSKI. the lead on important issues that How else can you describe a man who So BOB SMITH was more diverse in his can be seen on the Senate floor debat- views than some might have otherwise crossed party lines. For example, he ing, only to see him later that evening believed. Again, I thank him for his has always had an interest in improv- playing a on the tele- service. We didn’t agree on many sub- ing public education in America, and vision show ‘‘Law and Order’’? On just stantive issues that came before this was an integral part of the effort to about any given Sunday, you can catch body, but he was a passionate fighter create tax free education savings ac- counts. FRED THOMPSON on cable in a rerun of for views he held. My wife Jackie and I ‘‘Die Hard II,’’ or ‘‘The Hunt for Red wish him and his wife Jo Ann all the And, during the 107th Congress, Sen- October.’’ So he has had a distin- best in the future. ator HUTCHINSON introduced the Nurse guished career in film and television, TIM HUTCHINSON Employment and Education Develop- also. Mr. President, I rise today to pay ment Act—a landmark piece of bi-par- But to suggest that was the sum tribute to my friend and colleague, tisan legislation to address the critical total of FRED THOMPSON’s life would be Senator TIM HUTCHINSON, who will be nursing shortage affecting rural Ar- a tragic mistake. There is a lot more to leaving the United States Senate at kansas and the country as a whole. it. He has made significant contribu- the conclusion of the 107th Congress. This year, the NEED Act was incor- tions in real life for over 30 years. He Although Senator HUTCHINSON and I porated into the Nurse Reinvestment did serve as an assistant U.S. attorney have not agreed on every issue that has Act, which President Bush recently at one point in his life. He has been a come before us, I have always consid- signed into law. This legislation stands prominent public figure during some of ered him a friend, and I have always re- as a fitting coda to TIM HUTCHINSON’s the most critical moments in our Na- spected his convictions. He has cer- tenure in the U.S. Senate—its positive tion’s history—not only as chairman of tainly served as a capable and loyal ad- impact will be felt across America for the Governmental Relations Com- vocate for the people of his home state years to come. mittee, but also during the Watergate of Arkansas. Mr. President, I will miss having TIM crisis in the early 1970s. Mr. President, I had the good fortune HUTCHINSON as a colleague. My wife FRED THOMPSON was just a few years of getting to know TIM HUTCHINSON Jackie and I wish him and his wife out of Vanderbilt Law School when he very well during his six years in the Randy, all the best in future year. was named minority counsel to the Senate. We served together on the I thank all 10 of these Members for Senate Watergate Committee in 1973. Health, Education, Labor, and Pen- their friendship. I look forward to see- He has been commended on many occa- sions Committee. And, in 2000, Senator ing them in the years ahead, and I wish sions for his role in the public disclo- HUTCHINSON and I co-founded the Sen- them and their families the very best sure of the Oval Office audio tapes, and ate Biotechnology Caucus, which has in the years that come down the road. that deserves mention here again played an important role in educating FRED THOMPSON today. Members of Congress and the public FRED THOMPSON’s early impact on about recent developments in medical Mr. HAGEL. Mr. President, I rise to the American political scene fore- and genetic research. recognize my friend the Senior Senator shadowed his later career and success Throughout his 10 years in Wash- from Tennessee. FRED THOMPSON will in the Senate, and his ever-growing ington—4 years in the House of Rep- retire this year after eight distin- popularity in Tennessee. In 1994, he was resentatives and 6 here in the Senate— guished years in the Senate. He has elected by the people of that State to TIM HUTCHINSON has shown a deep com- packed a great deal in those eight fill the seat left vacant by the election mitment to improving the education of years. He has been a forceful leader of Senator as Vice-President. America’s children, strengthening our who has made significant contributions When he was voted in for a full Senate national security, increasing access to to our country in a short amount time. term in 1996, he received the highest healthcare, and safeguarding the often Senator THOMPSON was born and number of votes cast for any candidate overlooked interests of rural America. raised in Lawrenceburg, TN, a little for any office in Tennessee history. Given his background, these prior- town sited by the great frontiersman FRED THOMPSON has compiled a dis- ities are not surprising. TIM HUTCH- and Congressman Davy Crockett. Like tinguished career over the years, as I INSON himself was born on a small farm Crockett, Senator THOMPSON charted a mentioned earlier, as an assistant U.S. in rural Gravette, Arkansas. And he path in life that has allowed him to use attorney, as Watergate counsel and, of was educated as a minister at Bob his character and great abilities for in- course, during his years in the Senate. Jones University in South Carolina. terests larger than himself. He received We are going to miss him here. He and After graduating from college, he re- his undergraduate degree from Mem- his wife Geri, I am sure, are going to turned to Gravette, where he opened a phis State University and completed have a bright future, and I have a feel- Christian day school and taught his- his law degree at Vanderbilt University

VerDate 0ct 31 2002 02:40 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.097 S18PT1 S11238 CONGRESSIONAL RECORD — SENATE November 18, 2002 in 1967. In 1973 and ’74, Senator MAX CLELAND It was not by chance when I stepped THOMPSON served as minority counsel Mr. President, I rise to recognize my down from the dais, after being sworn to the vice chairman of the Senate Wa- longtime friend the Senior Senator in, that the first to welcome me was tergate Committee, his mentor, Sen- from Georgia. MAX CLELAND and I ar- Senator . He had come to ator, now Ambassador, Howard Baker. rived in the Senate together in 1997. He this Chamber many years ago after a He served as Special Counsel to both quickly became a respected U.S. Sen- tragic loss in his own life. He told me the Senate Select Committee on Intel- ator. MAX CLELAND has been a role the story of having been greeted by ligence and the Senate Committee on model for many people over the years. Senator McClellan of Arkansas, who Foreign Relations. Senator THOMPSON And, his years of selfless public service looked him in the eye and said: Work, is among the most junior Senators in have made America a better and hard work, it is the sure path to heal- the history of the Senate to have ever stronger nation. ing. served as Chairman of a Standing Sen- Senator CLELAND joined the Army Senator BIDEN said: I thought at the ate Committee. ROTC program at But Senator THOMPSON’s skills and in Florida and went on to earn a Mas- time how callous that advice was; he talents go far beyond his contributions ters Degree in American History from just does not understand the hurt I am to the Senate. He is also a very fine as a commissioned feeling. He later found out Senator actor, not withstanding Senator Second Lieutenant in the U.S. Army. McClellan spoke from having experi- MCCAIN’s critiques of his performances. In 1967 he volunteered for service in enced a family tragedy of over- He has an expansive list of movie and Vietnam. The next year he was pro- whelming proportion. JOE BIDEN took television roles that highlight his com- moted to the rank of Captain and soon the advice to heart and he passed it on manding presence and impressive style. after he was seriously wounded losing to me. You were right, JOE, and I We will continue to enjoy seeing him both his legs and his right arm. Sen- thank you for that wisdom. shine in his renewed acting career. He’s ator CLELAND’s determination and spir- There has been much work to throw had excellent real life practice in the it turned his experience in Vietnam ourselves into during the 107th Con- Senate. into a continuing passion for interests gress. It has been a monumental period We will miss FRED THOMPSON. We in our Nation’s history, a time marred will miss his common sense, sharp wit greater than his own. His service in and decency. All of his friends in the Vietnam further motivated him to con- by unprecedented national tragedy, deep political divisions, economic up- Senate wish FRED and his new bride, tinue to help shape America. Jeri, all the best in their new lives to- At the age of 28, he won a seat in the heavals, corporate corruption, contin- gether. I am proud to have served with making him the ued threats to our national security, him. youngest member and the only Viet- and now the gathering clouds of war. nam veteran in that legislative body at Through all of these disasters, we have PHIL GRAMM Mr. President, I rise to recognize the that time. Seven years later, President seen the triumph of the American spir- Senior Senator from Texas. Senator appointed him Adminis- it. Yes, Americans have taken to heart trator of the U.S. Veterans Adminis- the advice Louis Pasteur once gave to PHIL GRAMM will retire this year after 24 distinguished years in the U.S. Con- tration. He was the youngest VA Ad- a group of young people. He said: Do gress, three terms in the House and ministrator ever and the first veteran not let yourselves be discouraged by three terms in the Senate. He will be of Vietnam in that post. In 1982, he be- the sadness of certain hours which missed. came the youngest Georgia Secretary passes over nations. Thirty-five years ago Senator GRAMM of State and held that position for Thankfully, the Congress has refused received his Ph.D in Economics from three terms until he began his cam- to be discouraged. We have endured an- the . After his paign for the United States Senate in thrax attacks, dismantled offices, time in Georgia, Senator GRAMM began 1995. tighter security measures, major alter- his college teaching career at Texas A Senator CLELAND is an inspiration to ations to the Capitol complex, not to &M University as an Assistant Pro- all of us. We will miss his honesty, in- mention three shifts in legislative fessor of Economics in 1967. By 1973, he tegrity, spirit and leadership in this leadership. Through it all, we have became the youngest Full Professor in body. We wish him well and thank him managed to address a number of impor- the history of the Texas A&M Econom- for his service and contributions to our tant issues. We passed a historic tax ics Department. His grasp and under- country. I am privileged and proud to cut, reformed education, overhauled standing of economics have been im- have served in the Senate with my campaign finance laws, called cor- portant factors in our Congressional friend and colleague MAX CLELAND. I porate America to a higher standard, debate and government policy over the salute you, Captain. You will be and prepared our Nation to respond to last twenty-four years. missed. global . We have found that I have had the privilege to serve with The PRESIDING OFFICER (Mr. being of freedom is a re- Senator GRAMM on both the Senate JEFFORDS). Who seeks recognition? The lentless and consuming work. The im- Banking and Budget Committees. I Senator from Missouri, Mrs. mensity of our task would cripple a have seen first hand the power of his CARNAHAN. lesser people. Rather than be cowered intellect and grasp of the issues that Mrs. CARNAHAN. Mr. President, I by events, America and her institu- have advanced and strength- thank my colleague for his kind and tions have always been emboldened ened our economy and the foundation generous remarks. during times of crisis. I am convinced of our democracy. His contributions to f the Author of Liberty, who has blessed our country are many. He authored nu- FAREWELL TO THE SENATE and protected our Nation in the past, merous major pieces of legislation dur- Mrs. CARNAHAN. Mr. President, will enable us to meet the stern respon- ing his career—and none more impor- sibilities of the present. tant than the Gramm/Rudman/Hollings today I am reminded that 2 years ago Balanced Budget and Emergency Def- when I came to the Senate, it was with As the 108th Congress takes on this icit Control Act and the Gramm/Leach/ a heavy heart. Life had not turned out new burden, I will not be among them Bliley Financial Services Moderniza- the way it was supposed to. My hus- but my prayers will be with them. I tion Act. band, not I, was supposed to have been leave realizing that to have served in All of his friends in the Senate wish sworn in to the Senate, and I was to be the Senate for even a short while is an Wendy and PHIL much success as he seated in the gallery, beaming with de- honor afforded very few in their life- takes on new responsibilities. He will light at the shared victory we had won. time. I am forever grateful to the peo- now have more time to help R.C. Slo- As someone has pointed out, life is ple of Missouri who have allowed me cum coach the A&M Aggies. The Con- not the way it is supposed to be. Life is and my family to serve them for three gress and America are stronger today the way it is, and it is the way we cope generations. Reporters often ask me to for Senator GRAMM having served in with it that makes a difference. I had reflect on those years. Most recently, I Congress. I am proud to have served some difficult lessons to learn in that was asked what impressed me most with him. regard. during my time in the Senate. And I

VerDate 0ct 31 2002 02:40 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.118 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11239 replied it was the diligence beyond be a mantra but a mission, fervent and Sandy Fried, Legislative Assistant duty shown by all who are part of this funded. When health care is thought Rosie Haertling, Casework Supervisor Chamber—Democrats, Republicans, about, the health care needs of chil- Stacy Henry, Assistant Scheduler and independents. Staff, parliamentar- dren, family, and seniors—and I hope Margaret Hsiang, Legislative Correspondent Lisa Jaworski, Legislative Aide ians, clerks, pages, security officers, that will be often—I urge my col- Amy Jordan-Wooden, State Director maintenance workers, elevator opera- leagues to lay aside partisanship and Michele Ludeman, Caseworker/Administra- tors, all spend long hours serving heed the plight of the hurting and the tive Assistant America. For the most part, their helpless in our society. Bryan Mitchell, Legislative Correspondent names, their selfless deeds will go un- I will vote for the homeland bill, as I Jeff Morrison, System Administrator recorded, but their life and work dem- have each step of the way, for we must Stephen Neuman, Legislative Assistant onstrate a deep devotion to duty. make certain the information dis- Tom Neumeyer, Southeast Area Regional In recognition of the loyalty and ex- connect that allowed a 9/11 to occur Coordinator Neal Orringer, Military Legislative Assist- emplary work of my own staff, I ask never happens again. ant unanimous consent to have their During an earlier global conflict, Alison Paul, Staff Assistant names printed in the RECORD at the President Roosevelt called for stout Caroline Pelot, Deputy Director, Eastern close of my remarks. hearts and strong arms with which to Missouri The PRESIDING OFFICER. Without strike mighty blows for freedom and Jason Ramsey, Director, Central Missouri objection, it is so ordered. truth. Well, that is what I am hoping Ryan Rhodes, Scheduler/Executive Assistant (See exhibit 1.) this consolidation and coordination of Garon Robinnett, Staff Assistant Mrs. CARNAHAN. At this time I rec- effort will help us to accomplish. David Schanzer, Legislative Director ognize sadly that two great towers of As I vote for this bill, I do so with a Raymond Schrock, Special Projects Coordi- strength will be missed in this Cham- nator caution. The pursuit of terrorists and Vance Serchuk, Legislative Correspondent ber. My friend and colleague, MAX the protection of basic freedoms will be Jan Singlemann, Regional Aide CLELAND, from his wheelchair stands our greatest challenge in the years Rachel Storch, Deputy Chief of Staff taller than most men ever will. The ahead. In the quest to uproot ter- Stephen Sugg, Legislative Assistant Senate will be greatly diminished by rorism, let us take care to preserve Roy Temple, Chief of Staff his absence. And that we will no longer those precious liberties upon which our Cindy Townes, Data Entry Clerk hear the spirited voice of Paul Nation is founded and upon which de- Pam Townsend, Staff Assistant Wellstone summoning us to stand up mocracy depends. I have no doubt that Courtney Weiner, Legislative Correspondent and fight will likewise diminish the Rogerick Wilson, Constituent Services Rep- in this good and godly work we will ul- resentative fervor of this body. timately succeed. The PRESIDING OFFICER. The Sen- Our Nation and my party have been Let me conclude by saying that this ator gave the most eloquent statement. further blessed by the courageous lead- farewell to the Senate is a bittersweet I can’t say how much I appreciated ership of Senator DASCHLE and Senator moment for me, one that churns up a being here. HARRY REID. They have shown the mixture of memories and emotions. The Senator from West . grace under pressure that marks true One such memory was of a visit I made Mr. BYRD. I suggest the absence of a greatness. to the Corcoran Art Gallery to see the quorum. I would be remiss if I did not mention Jackie Kennedy exhibit. One of the dis- The PRESIDING OFFICER. The the women of the Senate whose friend- plays was a handwritten letter that clerk will call the roll. ship has blessed and brightened my Mrs. Kennedy sent to a friend after The legislative clerk proceeded to life. I am grateful, too, for the whole- completing an extensive project at the call the roll. hearted and unwavering support of my . Mr. BYRD. I ask unanimous consent Democratic colleagues in my every en- She wrote: that the order for the quorum call be deavor, and I especially appreciate How sad it is . . . when a work we love rescinded. those from the other side of the aisle, doing . . . is finally finished. The PRESIDING OFFICER. Without though far fewer in number, who gra- I know how she felt. objection, it is so ordered. ciously encouraged me as well. I still believe, as did my husband, f Tradition affords those of us who that public service is a good and noble ORDER OF PROCEDURE leave the Senate, either by our own work worthy of our lives. Perhaps a Mr. BYRD. Mr. President, I have a will or the will of the electorate, the former Member of this Chamber said it opportunity to reflect on the time in series of parliamentary inquiries. As I best. He was not of my party, but he understand the situation on tomorrow, this historic Chamber, to perhaps even certainly was of my principles. Senator engage in some unsolicited advice. I Tuesday, there will be 90 minutes of de- Lowell Weicker wrote: bate before a vote occurs at 10:30; dur- could not pass up that opportunity. My For all the licks anyone takes by choosing advice comes not as a seasoned insider ing that 90 minutes of debate there will public service, be 30 minutes under the control of Mr. but as one who came for a season to . . . there is the elation of having achieved LOTT, 30 minutes under the control of serve among my colleagues. Mine are for good purpose what none thought possible. Mr. DASCHLE, and 30 minutes under the simple maxims that spring from the And such feelings far exceed . . . whatever control of Mr. BYRD; is that correct? heart, a heart filled with love for the the hurt . . . for having tasted the battle. I yield the floor. The PRESIDING OFFICER. The Sen- Senate and for my country. ator is correct. EXHIBIT 1 First, when my colleagues think on Mr. BYRD. Mr. President, at 10:30 it the role of government, seek a balance. Current Staff of Senator Jean Carnahan: is my understanding—and I would like Seek a balance between one that does Isiah Akin, Legislative Aide Amy Barber, Legislative Assistant to inquire if I am correct in my under- everything and one that does nothing. standing—the first vote will occur on And where there is talk of war, let John Beakley, Special Assistant to the Sen- ator the Daschle-Lieberman second-degree there be the free and open debate that Ann Bickel, Assistant to the State Director amendment No. 4953; a second vote will becomes our great Nation. And when Todd Britt, Director, Eastern Missouri occur on the Daschle-Lieberman first- there are judges to be appointed, let Michael Carrasco, Office Manager degree amendment No. 4911; a third them be selected for their tempera- Chad Chitwood, Southwest Area Regional vote will occur on the Thompson sub- ment and jurisprudence and not for po- Coordinator stitute, House bill No. 4901; the fourth litical ideology that satisfies a special Qiana Combs, Deputy Director, Western Re- vote will occur on cloture on H.R. 5005; interest group. gion Sonja Cureton, Constituent Services Rep- am I correct? When we lay out our energy and envi- The PRESIDING OFFICER. The Sen- ronment policy, let it not be for short- resentative Julie Egermayer, Constituent Services Rep- ator is correct. term gain but for the well-being of our resentative Mr. BYRD. Mr. President, I thank grandchildren and the survival of our Sarah Elmore, Staff Assistant the Chair but let me continue. planet. And when my colleagues speak Bradley Epperson, Special Advisor As I understand it, the Thompson of leaving no child behind, let that not Alex Formuzis, Press Secretary substitute, House bill No. 4901, that is

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.008 S18PT1 S11240 CONGRESSIONAL RECORD — SENATE November 18, 2002 the substitute which was passed by the The distinguished occupant of the So I hope Senators in the future will House of Representatives, sent to the chair did not vote to invoke cloture, remember. Of course, I knew that could Senate, and called up and laid before nor did this Senator, who now is speak- be done. But I have to say I think that the Senate. That is the bill which first ing. is the first time in my memory—and I saw the light of day in the Senate, as I There were 29 Democrats who voted have been here during the great civil understand it, on or about the early against cloture last Friday. There were rights debates of the 1960s—I believe morning hours of this last Wednesday, 17 Democrats who voted for cloture that is the first time—and I don’t say this past Wednesday of last week. Is last Friday. As I note—and this may it critically of the Republicans; they that the amendment, the Thompson have been a cursory examination I had that right, they played by the substitute amendment, that is the have made—but I have noted, in a cur- rules. Our problem is we don’t all know House bill which I, on a number of oc- sory examination, I believe two Repub- the rules. But they played by the rules. casions, have referred to as being a bill licans who were absent would have We have one amendment. The 30 hours of 484 pages? voted with me against cloture and I be- will be gone Tuesday morning, and The PRESIDING OFFICER. The lieve four Democrats who were absent that one amendment is it, and I mean amendment does contain that number would have voted with me against clo- ‘‘it.’’ of pages. ture. Now, when cloture is invoked on H.R. Mr. BYRD. I just wanted to be sure In any event, had 6 of the 17 Demo- 5005, as amended, if amended, we won’t to establish in my own mind and call crats who voted for cloture voted be able to offer any amendments. We to the Senate’s attention that that will against cloture last Friday, we would can talk, but the ball game is over be the third vote, then, on that bill as not be under cloture at this point be- when we adopt the Thompson sub- we come to tomorrow morning, Tues- cause the number of Senators voting stitute. That substitute wipes out ev- day of this week. for cloture on last Friday would have erything. It wipes out H.R. 5005, as far Now, Mr. President, a further par- been only 59 and the number, therefore, as that is concerned. liamentary inquiry: Am I correct in would have fallen 1 vote short of clo- stating that cloture on the bill, H.R. ture. So the point is, we voted cloture on 5005, is not vitiated by question of the Now, I tried to get my fellow Demo- ourselves. We did it to ourselves on adoption of the substitute? crats to vote against cloture because I this side. I knew every Republican The PRESIDING OFFICER. Cloture felt that we ought to have more time would vote for cloture, but I hoped that on the bill is not vitiated by that ac- to discuss this homeland security bill, at least enough Democrats would vote tion. which had been dropped on our desks against cloture—we only needed six Mr. BYRD. I thank the Chair. virtually out of the shades of the early more votes in opposition. But we did it. Further parliamentary inquiry: Is it morning as they were lifting and the We did it to ourselves. We have had a not a fact that if cloture is invoked on golden fingers of dawn were streaking chance to offer only one amendment. H.R. 5005, under the rule, 30 hours then across the land. I tried to get several That is it. The Republicans say: That will ensue under that cloture measure? Senators to vote against cloture, my is it, no more amendments, and we will If cloture is invoked, there will be 30 plea being: ‘‘Don’t vote for cloture vote on Tuesday. hours on H.R. 5005, am I correct? today. Give us a little more time. If we I just say this so that our friends on The PRESIDING OFFICER. Cloture don’t vote for cloture today, it will be my side of the aisle in particular will under this consideration is 30 hours. know what their vote for cloture on Mr. BYRD. I thank the Chair. In this voted next week ‘‘—meaning this week, which we have now started. ‘‘Don’t Friday has done to defeat our chances instance, if the Thompson substitute, to have other amendments voted on. the House bill No. 4901, if that sub- vote for cloture today.’’ One or two Senators listened to my I thank the Chair and I yield the stitute is adopted and cloture then is importunings and voted against clo- floor. invoked on H.R. 5005, will amendments ture. Mr. REID. Mr. President, I have spo- be in order during those 30 hours? Mr. President, I ask for an additional The PRESIDING OFFICER. The ken to the two leaders. There will be 3 minutes. adoption of the Thompson substitute no cloture vote this afternoon, and The PRESIDING OFFICER. Without likely no other votes this afternoon. precludes amendments. objection, the Senator is granted an Mr. BYRD. I thought that was the Members will have all the opportunity additional 3 minutes. they want to debate the Shedd nomina- case. Mr. BYRD. Mr. President, one or two tion or, of course, the homeland secu- The adoption of the Thompson sub- Senators listened and voted against rity matter. stitute means as far as further amend- cloture. Some others listened and ments are concerned, the ball game is didn’t vote against cloture but voted The PRESIDING OFFICER (Mr. over; am I correct in putting it in that for cloture, which was their right to LEVIN). The Senator from Texas. form? do. But let me just show what hap- Mr. GRAMM. Mr. President, what is The PRESIDING OFFICER. The Sen- pened there. the pending business? ator is correct. They voted for cloture. Cloture was Mr. BYRD. I say all that, Mr. Presi- The PRESIDING OFFICER. We have invoked. Some of those Senators with dent, to say this: On last Friday when 1 minute and a half left in morning whom I talked said: ‘‘You have 30 hours the Senate invoked cloture, what was business. in which amendments can be offered, cloture invoked on, may I ask of the Mr. GRAMM. Mr. President, I ask and some of the problems that you out- Chair? On what did the Senate then in- unanimous consent that I might have lined, you can get a vote on them, and voke cloture? 10 additional minutes in morning busi- I see my loss of memory is not too possibly those can be amended and cor- ness. bad after all. It seems to be shared by rected.’’ The PRESIDING OFFICER. Without As we have seen, only one amend- others. Of course, I am 85—almost. objection, it is so ordered. The PRESIDING OFFICER. We are ment—one amendment—was offered. It filled up that particular tree, so that checking the record. f Mr. BYRD. I say that with all re- no other amendments could be offered while that amendment was pending. spect, due respect and ample respect to HOMELAND SECURITY the Chair, the Parliamentarian, and But our good friends on the other side others. said: This far, no farther. You have of- Mr. GRAMM. Mr. President, I wish to The PRESIDING OFFICER. Cloture fered an amendment—meaning Mr. talk for just a moment about where we has been invoked on amendment No. DASCHLE had offered an amendment on are on the homeland security bill. I 4901, the Thompson amendment. behalf of Mr. LIEBERMAN; that amend- wish to talk about the amendment on Mr. BYRD. I thank the Chair. ment was pending—you have offered which we will be voting tomorrow Now, Mr. President, the point I am this amendment. That’s the amend- morning because I think it is impor- trying to make here is—and I wanted it ment we are going to vote on. You are tant for people to look at the issue, in in the RECORD, and I wanted Senators not going to get to to offer any more terms of understanding the full pic- to be aware of what they did when they amendments. The 30 hours will be run ture, at least given each of our abilities voted to invoke cloture on last Friday. on that one amendment. to see the full picture.

VerDate 0ct 31 2002 02:40 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00010 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.011 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11241 We now have debated homeland secu- I thank the Senator for yielding. President and in negotiating with the rity, I think, for seven or even eight Mr. GRAMM. Mr. President, the authors of the bill that they wouldn’t weeks. It is obviously an important point I want to make—and I think it is end up having to negotiate again with issue. When you are creating a new De- a specific lesson of how government Republican leaders in the House. Over partment that will have 170,000 mem- works—is that those who have followed the weekend—not this weekend, but bers—the largest reorganization of this long debate, who have listened to the weekend before—we sat down with Government since the creation of the the Senator from , and the House leaders on this issue, and we Defense Department—I think having a know he has been on the losing side of negotiated out a final product. pretty extended debate is justified. vote after vote may say: What effect I would say of this 484 page bill, 98 I say to people who are opposed to does he have? percent of it is the Gramm-Miller sub- the bill that I hope they will recognize He has had a profound effect. Even stitute which we debated for weeks. that the debate has had an effect. The though he is not a supporter of the bill There were several changes made that distinguished Senator from West Vir- today and won’t be at the end of the have been much discussed. I believe ginia, who has been perhaps the most day—and I have been in a similar posi- there is a more efficient way of charac- outspoken opponent of the bill, I think tion on many issues, as the distin- terizing those changes than the way would agree that a major problem with guished Senator from West Virginia they have been characterized. I want to the bill has been changed—that being, knows—his major concern about the try to explain them. it would have transferred to the Presi- bill has been resolved. The debate and Let me just first start by saying dent a substantial ability to change the clarity of the argument we have when the House writes a bill and the the appropriation levels set by Con- had on the issue of the power of the Senate writes a bill, there are often dif- gress, and as such would have redistrib- purse has had a profound effect on the ferences in the bill, and there is always uted power from the legislative branch bill. So you can be on the losing side of give and take. Some have talked about to the executive branch. the votes and yet have a profound ef- extraneous material in the bill. I would Mr. BYRD. Mr. President, will the fect on the end product. have to say that in my 24 years in Con- Senator yield? I ask that 2 minutes of That is the point I wanted to make. gress, there are almost always issues my inquiry not be charged against his The Senator is right. I thought it was dealt with in a bill that some people 10. a change that should be made, and it is view as extraneous. I would say there The PRESIDING OFFICER. Without a change that has been made. I think it are relatively few in this bill. But let objection, it is so ordered. represents an improvement. me talk about the issues that are sub- Mr. BYRD. Mr. President, may I say I want to talk very briefly about the ject to the amendment Senator right at that point that the Senator is bill. I think I have a copy of it right LIEBERMAN has offered. This amend- correct. That was the major constitu- here. Let me remind people what hap- ment strikes provisions in the com- tional flaw. That was a major constitu- pened. I think everybody will under- promise—I think there are seven of tional flaw. It dealt with the power stand the dilemma we were in. them. I don’t have my notes with me, over the purse which under the Con- We adjourned for the election with but I remember them well enough to stitution is vested here in Congress. this issue unfinished. The President talk about them. Three of these provisions have to do Senator STEVENS, I would have to say, came back from the election with what with liability. Let me remind my col- was himself the foremost proponent of I believe and what I think the public leagues that since the Civil War, we a change, backed by some degree of perceives to be a strong mandate that have had provisions of law that have constitutionality. He is the major pro- this is the important issue that should dealt with liability for people who were ponent on that side of the aisle of our be dealt with. producing new products for war efforts. veering away from that precipice and The President could have said: Well, One of the ways of encouraging people bringing us back to leaving control in I will wait until the new Congress when to be innovative and one of the ways to the hands of the appropriations com- my party will be in control, and I will get products from the drawing board to mittees, and in the hands of Congress write this bill exactly like I want to write it. He could have done that. He the battlefield quickly is to protect in large part. people from liability. did not do that. And I believe that is Second, I would say one of the fore- There was a provision in the original wise. Instead, he sat down with three most proponents of recognizing that Senate amendment, the Gramm-Miller constitutional flaw was the distin- members of the opposition party and amendment, that the Senators from guished Senator from Texas, Mr. negotiated out additional clarifications Virginia were responsible for. That was GRAMM. I am convinced in my own in the bill. These clarifications are not a provision whereby the Federal Gov- mind—although I was not a little fly profound, but they are important. ernment would indemnify manufactur- As this reorganization process goes on the wall down at the White House ers of products that would be used in listening in—that the Senator from forward, and as 170,000 people are the war on terrorism, so that if a li- Texas was a major, major proponent of moved into one agency, these changes ability issue arose, the Federal Govern- bringing us back to our senses—or at the President agreed to will assure ment would step in and basically cover least the administration back to its that these workers and their represent- the liability. I would have to say that senses—with respect to that constitu- atives will have an opportunity to give was not my preferred , but in tional flaw. I have to believe in my own input. They will have a due process putting the amendment together we mind that he argued with them to that procedure, but in the end the reorga- accepted it. effect. nization will go forward. The President The House had another approach, Listen, that is at least the one—that will have the right to exercise the same which was to basically limit liability, is the one in the Senator’s mind, I national security waiver that every require that lawsuits occur in Federal would guess—unassailable point that President—first through executive court, and set up a procedure to deal the Senators from West Virginia and order, and from the Carter administra- with liability that arose in these the Senator from Alaska make; that is, tion forward under law—since John issues. with respect to the power of the purse. Kennedy has been able to exercise. In putting together the compromise You had better back off. The next thing we had to do to get with the House, we took something be- Those are my own words. But I have into a position to pass this bill is make tween the two that did not have the li- reason to believe the Senator from clear what the final version of the bill ability limits the House adopted but Texas is responsible in great measure would look like. We didn’t want to end was a movement toward reducing run- for what occurred down at the White up with a week or two weeks of a con- away liability and removing the tax- House with respect to its backing off ference with the House during this ses- payer from the line of fire. on that point. sion where Congress is meeting after That accounts for three of the criti- I thank the Senator. the election—sometimes referred to as cisms made. I want to address the one If I am correct, or if I have failed and a lame duck session. Many Democrats that is most discussed, and that is the my guesswork is incorrect, please say who are supportive of the bill wanted one that has to do with mercury-based so. to be sure in negotiating with the injections and smallpox vaccine.

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00011 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.015 S18PT1 S11242 CONGRESSIONAL RECORD — SENATE November 18, 2002 Under the bill, as it is now written, ican jobs, where it might leave only a The PRESIDING OFFICER. The Sen- we are treating smallpox vaccine as an sole bidder, or where the absence of ator from Nevada. instrument of the war on terrorism. competition could drive up costs. f Before, we had dealt with it as a re- You might say, how could it cost EXTENSION OF MORNING sponse to a disease. We had a liability America jobs? Well, let’s say you have BUSINESS fund for vaccines in the past, but now a company that was once based in that we have eradicated smallpox, the America and still has very heavy pres- Mr. REID. Mr. President, I ask unan- only fear we have of it is the reintro- ence in America but has its head- imous consent that morning business duction by terrorist elements. So we quarters in . Many companies be extended until the hour of 1 o’clock bring smallpox vaccine under this li- are now international companies and today. ability limit. where their home office is has ceased The PRESIDING OFFICER. Without Those of my age will remember, if to have a lot of relevance, in my mind. objection, it is so ordered. you get a smallpox shot, you get a skin In any case, the product made by the f reaction which produces a permanent French-headquartered company might UNANIMOUS CONSENT REQUEST scar. I say to my colleagues that this is actually be produced in America. We Mr. REID. Mr. President, as in execu- pretty terrorism specific because no could not buy it because the company tive session, I ask unanimous consent one would take a smallpox vaccination is now domiciled in France but once that the cloture vote on the Shedd except for the terrorist threat because was domiciled in America—maybe in nomination be vitiated and that fol- there are risks involved. Some small 1812—but yet we could buy a product lowing today’s debate on the nomina- percentage of people have very nega- that was produced in another country tion, the nomination be laid aside, and tive reactions, some people die, and al- by a company that never had an Amer- that upon the disposition of H.R. 5005, most everybody has a scar from small- ican presence. the homeland defense bill, the Senate pox. There might be national security rea- This bill would require people who sons or job reasons to have a waiver. proceed to executive session and vote, sue to enter into a negotiation with The amendment before us would strike with no intervening action or debate, the Justice Department before they file that waiver. I think it is a good waiver. on confirmation of Dennis Shedd to be suit, and to negotiate the possibility of I think it is a good government provi- a United States Circuit Judge; further, a payment out of an indemnity fund. sion. And I think it is one we should that if the nomination is confirmed, Some of our colleagues have said: have. the motion to reconsider be laid on the Why did you make it retroactive? Another amendment has to do with table, the President be immediately Wasn’t that some kind of benefit to advisory committees. I couldn’t care notified of the Senate’s action, and the some vaccine producer? I remind my less about advisory committees. I Senate return to legislative session; colleagues that nobody is taking small- think sometimes they serve a produc- that if the nomination is not con- pox vaccine now, nor would anybody tive purpose. I think in most cases firmed, the Senate return to legislative take it unless there was an imminent they do not. But I think we are foolish session with no intervening action or threat. But we do have some of the vac- to be striking advisory committees debate. I extend my appreciation to the Pre- cine stockpiled. when the House has adjourned and may siding Officer with whom we worked Why would you make it retroactive not come back to agree to the change for several hours Friday and this morn- to cover that stockpile that has al- if we make it. I do not think we ought ing. I have spoken personally with the ready been produced? The reason you to jeopardize this bill. do that is, if you give a protection Finally, there is a provision that es- minority leader, and he has acknowl- against liability for all vaccine pro- tablishes a broad authorization out- edged that this is the best way to pro- duced in the future but not for what we line. No funds are appropriated for par- ceed. I ask that the consent be granted. The PRESIDING OFFICER. Is there have stockpiled, the manufacturers ticipating in the management of re- objection? The Senator from West Vir- will destroy the stockpile and produce search. There is a definition that is ginia. more vaccine. And if we had a sudden written into the law that, as I under- Mr. BYRD. Reserving the right to ob- threat, we would not have the stock- stand it, would cover roughly 12 major ject, I did not understand the distin- pile. research universities. guished whip’s request with respect to So if this were a vaccine that was I just ask my colleagues to look at H.R. 5005. routinely taken, then I think the criti- these overall seven provisions, and to Mr. REID. What I said is that when cism would be well founded. But I ask themselves a question: Would the that debate is completed, we would think it is a total mischaracterization bill be better off without all seven, be- move forward to vote on the Shedd to say this is some kind of pharma- cause they are all stricken in one nomination. ceutical bailout when it is targeted to- amendment? I think the answer is no. Mr. BYRD. Even if that debate en- ward smallpox vaccine and the stock- I think there is a logical justification tails 30 hours in the train of a favor- pile now has relevance only in terms of for the amendments in general. And I able vote on cloture on H.R. 5005? terrorism. urge my colleagues to get the whole Mr. REID. That is right. In terms of manufactured products to story before they cast their vote. Mr. BYRD. So that, indeed, the re- use in the war on terrorism, I simply Finally—and I think this is of equal quest has no impact whatsoever on say, in every major conflict in modern importance—this is an important bill. H.R. 5005. history, we have had some liability We are getting toward the end. This Mr. REID. I would also ask that the limits for the people producing things has been progress that has been hard previous order with respect to ter- for wartime use. coming. And I think we take a risk, rorism insurance remain in effect fol- The fourth provision that would be one that we should not take, by mak- lowing the Shedd vote. The order in ef- stricken has to do with the Wellstone ing these changes. I do not think they fect now is that we would do the ter- amendment. Senator Wellstone offered are good changes. rorism bill immediately following an amendment to the bill that said, if I think, overall, we are better off homeland security. Now what we would you had a company that had ever been with these seven provisions in the bill like to do is dispose of the Shedd nomi- domiciled in the United States, and it than we are without them. I think, nation and then finish terrorism. was now domiciled anywhere else in overall, they are defensible. Any Mr. BYRD. Very well. I have no res- the world, that company could not par- changes you get in bringing the two ervation. ticipate in contracts for the war on ter- Houses together in negotiation often The PRESIDING OFFICER. Is there rorism. In the bill that is before us, a are subject to criticism, but I think objection? The Senator from Texas. couple of provisions were added to the these are defensible. Mr. GRAMM. Mr. President, it is my Wellstone amendment that allows the I think we would be taking an unnec- understanding that our staffs are talk- President some flexibility in cases essary risk by changing the bill. I hope ing. Someone just handed me this. If where the application of the Wellstone we will not do it. the Senator could wait for about 2 min- amendment would actually cost Amer- I yield the floor. utes, I think we are trying to run one

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.018 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11243 more trap. I believe this is acceptable, that this session of the Congress has helped to improve the VA hospital sys- and I am sorry to inconvenience him. been exceptionally slow in moving for- tem and reduce delays in paying vet- Mr. REID. Mr. President, I am happy ward. It has not accomplished many of erans’ benefits. to do that. I withdraw the unanimous the things we should have accom- After that, he was elected to four consent request. plished. I had hoped that with that in terms as Secretary of State of Georgia. The PRESIDING OFFICER. The re- our background, we would be ready to In 1996, Senator CLELAND was elected quest is withdrawn at this time. The move forward to accomplish this one to the U.S. Senate. After being sworn Senator from Wyoming. that is so obvious in need. I hope we into office, he told supporters: Mr. THOMAS. Mr. President, I under- can do that. Your dreams can come true if you continue stand we are still in morning business. I am glad we do have Members on to believe in them long enough, hard enough, The PRESIDING OFFICER. The Sen- both sides who recognize the impor- and never give up on them. ator is correct. tance of doing this. We have carefully What a role model MAX CLELAND is, f crafted language that will be there. It not only for disabled Americans but for all Americans. His life demonstrates HOMELAND SECURITY is time for us to move forward. Wheth- er there is anything else that we really what overcoming adversity—probably Mr. THOMAS. Mr. President, I just need to do in this lame duck session, I adversity at its worst, or almost that, listened to the two Senators who are wouldn’t argue that. We obviously have at least—really means. probably most involved with the de- to have a CR. Apparently there is As a triple amputee, life and work tails of this homeland security bill— movement toward doing something have not come easily. I have read it very interesting comments. I have with terrorism liability. But this is the takes him 3 hours just to prepare for been, frankly, disappointed that it has one. This is what we need to do, and we work each day. I would imagine it taken us as long as it has. We have need to move forward. takes him longer than that, because it been on this measure, I understand, I do appreciate the work that has takes me that long many days. But I now for about 7 weeks, and we are still been done. Particularly Senator cannot imagine the amount of pure not finished—a bill that needs to be THOMPSON and Senator GRAMM have grit it takes for this man just to live. finished. It needs to be there for secu- worked tirelessly in putting something At times I get up from my bed at 1 rity. Yet we continue to debate and together that will ensure homeland se- o’clock in the morning, 3 o’clock in the worry over issues that are not as sig- curity and a department that will be morning, whatever, and adjust the nificant as the passage of this bill. capable of moving forward to do the temperature in my room. If it is a lit- I hope we are getting closer to pass- things that everybody understands we tle too cold or a little too warm, I have ing a homeland security bill. It is our need to do. Frankly, there are no more to get up and go outside my room and responsibility to do that. I am almost excuses to delay this bill. I certainly adjust the temperature. I think of that embarrassed that we are not. urge my colleagues to oppose the poor man, MAX CLELAND, and how it is I am pleased that cloture was in- amendment and pass the compromise for him if he gets too cold or too warm voked and that we can move forward bill so the President can sign this into and has to adjust the temperature in on this bill that gives the President the law. the room. He has to get out of bed with tools he needs to protect our homeland. I yield the floor. much more difficulty than I, and go to We have talked about the details. The PRESIDING OFFICER. The Sen- the thermostat and do that. So what That is good. On the other hand, there ator from West Virginia. grit it must take of him just to live. are provisions in there that generally Mr. BYRD. Mr. President, is the Sen- Well, one of MAX CLELAND’s heroes is most everyone would agree we ought to ate presently in a period for the trans- the great Franklin Roosevelt who, con- be moving forward with: Immigration, action of morning business? fined to a wheelchair because of paral- to change the reorganization of that The PRESIDING OFFICER. The Sen- ysis, encountered many of the same ob- department so that you have more em- ate is in morning business until 1 stacles and challenges that face MAX. phasis on the immigration aspect with o’clock. Still, Franklin Roosevelt was elected regard to terrorism; reorganization of Mr. BYRD. I thank the Chair. President four times and, as President, the Bureau of Alcohol, Tobacco, and f saw this country through the Great De- Firearms so that it can work better in pression and World War II. terms of terrorism as opposed to law TRIBUTE TO SENATOR MAX I am proud to point out that another enforcement activities. CLELAND one of MAX CLELAND’s heroes is one of Personnel flexibility has been one we Mr. BYRD. Mr. President, it is sad my heroes, a Senator who is one of my have talked about for a very long time. and unfortunate that I and this cham- mentors in this Chamber, Senator Certainly, the President ought to have ber must say farewell to Senator MAX Richard B. Russell of Georgia. MAX as much authority for flexibility as CLELAND. As a student, a soldier, a pub- CLELAND met Senator Russell while others have had and as he has in other lic servant, and a U.S. Senator, MAX serving as a congressional intern. When departments. CLELAND has always personified the MAX returned from Vietnam several We also need to have, obviously, best of this country. His has been a life years later, with both legs gone and some protection for the union rep- of patriotism and sacrifice, of struggle only one arm, he met Senator Russell resentatives, and it is there; research and of triumph. again. That grand old Senator was so and development, aiming it more to- After graduating from college, which impressed with the young soldier that ward terrorism, that is one of the included an internship on Capitol Hill, he had his driver give the young man a amendments; critical infrastructure and receiving a master’s degree in tour of the Nation’s capital. protection, of course, so that we get American history, MAX CLELAND volun- During his tenure in the U.S. Senate, into helping with the private infra- teered for the Army and then volun- Senator CLELAND has used Senator structure such as dams, such as oil re- teered for service in Vietnam. In that Russell’s old telephone number, and fineries, these kinds of things—impor- brutal conflict, he lost both of his legs has often taken his visitors to see the tant stuff to do—the Coast Guard, and an arm in a grenade explosion. But statue of Senator Russell in the Rus- strengthening their position with re- MAX CLELAND never gave up. He re- sell Senate Office Building, telling spect to terrorism; the one on cor- fused to become simply a tragic symbol them, ‘‘So much of me is tied up in porate inversion where there was con- of an unwanted and unpopular war. Dick Russell.’’ cern about being offshore. The fact is it At the age of 28, MAX CLELAND be- MAX CLELAND truly knows the hor- is only there to be used as long as it came the youngest State Senator in rors of war. Knowing that ‘‘war is has specific economic security reasons Georgia. In 1977, President Jimmy hell,’’ he has been one of the Chamber’s to be used. I think that is reasonable. Carter appointed him to head the Vet- leading skeptics about the use of mili- Airport security—all these things are erans Administration, the youngest tary force abroad and has always there. person ever to hold that post, and one proved cautious when it comes to com- Again, I thought during the last of the best. In that position, among his mitting American troops overseas. In month or so it became pretty clear many accomplishments, MAX CLELAND the 106th Congress, for example, he was

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.020 S18PT1 S11244 CONGRESSIONAL RECORD — SENATE November 18, 2002 the first Democrat to call for a halt to UNANIMOUS CONSENT a Senator who ‘‘stands up for what he the U.S.-led bombing campaign in AGREEMENT regards as important.’’ Kosovo. He introduced legislation to Mr. REID. Mr. President, I renew my I have always appreciated those update and improve the War Powers unanimous consent request that was words, and over the many years, I have Resolution by erecting more safeguards just asked a few minutes ago. I ask the appreciated the friendship of the senior before the deployment of our fighting Chair, do I need to restate that? Senator from the State of North Caro- men and women into situations of hos- The PRESIDING OFFICER. It is not lina. So when JESSE HELMS was elected tility. necessary. to the United States Senate in 1972, it I must point out that I have not al- seemed to me that we were already ways been in agreement with Senator Is there objection to the unanimous consent request previously stated by long-time friends, and we became even CLELAND. I strongly opposed a balanced closer friends. budget constitutional amendment, and Senator REID? Without objection, it is so ordered. The more we came to know each I think MAX CLELAND supported it. I other, the more at least I liked and re- opposed the line-item veto, and I be- Mr. REID. Mr. President, the es- teemed President pro tempore of the spected him. I think he returned the lieve that MAX supported the line-item compliment, but I cannot speak for veto. But I have never, never, not for a Senate, Senator BYRD, is going to speak for a while this morning. We are that. I can only say for myself that I second, questioned his sincerity, his in- ESSE HELMS and I re- in morning business until 1 o’clock liked and I like J tegrity, or his respect for our Govern- spect him, and I have always respected today. ment and his love of this country. him. For those wishing to speak on the MAX CLELAND is an outstanding Sen- I found Senator JESSE HELMS to be a Shedd nomination, the time has been ator, a great American. He lost his deeply religious man of immense integ- running in spite of the fact we are in Senate seat, at least for the foreseeable rity, indisputable honesty, unqualified morning business. Senator HATCH is future, but he will never lose his integ- patriotism, and absolute independence, here, Senator LEAHY and his staff are rity. Senator CLELAND is a real winner. a man who is absolutely fearless. He is here, and he is available to come at Just as his military buddies were proud a southern gentleman of the first to have served with MAX CLELAND in any time. I don’t think they will need order. He is a product of the old South Vietnam, I am honored to have served all the time. and a product of his beloved North with him in the Senate. MAX CLELAND I ask unanimous consent that morn- Carolina. is a hero. He will always remain so. ing business be extended until 2 p.m. He has certainly made his presence May God bless MAX CLELAND. I wish today and that the Shedd time con- felt in the Senate. During his years in him nothing but happiness and success tinue to run for Senators who wish to in the future. the Senate, he served as chairman of speak on that during morning business. the Senate Agriculture Committee, God give us men! The PRESIDING OFFICER. Is there chairman of the Senate Foreign Rela- A time like this demands strong minds, objection? Without objection, it is so great hearts, true faith, and ready hands. tions Committee, and was made a ordered. grand duke by the country of Lith- Men whom the lust of office does not kill; The Senator from West Virginia. Men whom the spoils of office cannot buy; uania for his contributions to the rees- Mr. BYRD. Mr. President, seeing no Men who possess opinions and a will; tablishing and strengthening of the Men who have honor; men who will not lie. other Senator seeking recognition at independence of the Baltic nations. Men who can stand before a demagogue this time, I again have sought recogni- He also acquired a powerful and wide- And brave his treacherous flatteries without tion. ly recognized reputation for his strong winking. Mr. REID. Will the Senator yield? I independent stands, and I am here to Tall men, sun-crowned; failed to make one announcement. verify that many of the stands he has Who live above the fog, Mr. BYRD. Absolutely, yes. taken have not only been strong stands In public duty and in private thinking. Mr. REID. I apologize. The cloak- and independent stands but, in some rooms have sent out an announcement For while the rabble with its thumbworn cases, Senator HELMS stood virtually creeds, that there will be no more votes, but alone. Its large professions and its little deeds, min- the majority leader has asked me to Some of his positions have involved gles in selfish strife, announce there will be no rollcall votes Lo! Freedom weeps! his standing, as I say, alone not only today. against Presidential administrations Wrong rules the land and waiting justice The PRESIDING OFFICER. The Sen- sleeps. but against the remainder of the entire God give us men! ator from West Virginia is recognized. U.S. Senate, or at least most of the Men who serve not for selfish booty; f Senate. More than once, Senator But real men, courageous, who flinch not at HELMS has been the singular vote on a TRIBUTE TO SENATOR JESSE duty. particular position, and I know that HELMS Men of dependable character; can be a bit lonely. But he has never Men of sterling worth; Mr. BYRD. Mr. President, the senior wavered in the strength of his convic- Then wrongs will be redressed, and right will Senator from North Carolina, Mr. tions or his votes. rule the earth. HELMS, is in some ways my Senator. I God Give us Men! ‘‘The paramount thing for political was born in North Carolina. I was born leaders,’’ he once explained, ‘‘is wheth- Mr. President, MAX CLELAND is that there before Senator HELMS was born er a man believes in his principles and kind of man. there. My natural father and mother I yield the floor. whether a man is willing to stand up The PRESIDING OFFICER. The Sen- are buried there in North Wilkesboro, for them, win or lose.’’ ator from Nevada is recognized. NC. One of my brothers, the only That was JESSE HELMS. Con- Mr. REID. Mr. President, I certainly brother I have still living, still lives in sequently, we always know where Sen- confirm, underscore, and applaud the Wilkes County. ator JESSE HELMS stands. Take an statement of the Senator from West Many years ago, before the senior issue—abortion, prayer in school, Pres- Virginia about MAX CLELAND. I don’t Senator from North Carolina joined the idential nominations, reducing the def- know of anyone in my life who has Senate, he was a radio commentator on icit, taxes, Government waste, the fu- given me more inspiration than MAX WRAL in Raleigh, NC. During one of ture of the country— if one did not al- CLELAND. Whenever things seem a lit- his radio commentaries, it is my under- ready know where JESSE HELMS stood, tle bit dark and dreary, I always see standing that the future Senator from JESSE HELMS was always ready to tell that smiling face of MAX CLELAND. He North Carolina—the future Senator you where he stood. is a tremendous man, a fine human then, Senator HELMS, not Senator at Some of his positions have been un- being, and he has a lot more to con- that point—spoke of me as a Senator popular. Some of them may have tribute. His name will grow from where whose ‘‘greatest strength is his dedi- seemed out of step with the march of it is today. The people of Georgia and cated independence of thought and ac- history, but he has contributed to the this country have not heard the last of tion,’’ as a Senator who is ‘‘neither great debates that from time to time MAX CLELAND. easily frightened nor intimidated,’’ as have been heard over and throughout

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.023 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11245 the land. JESSE HELMS has made a the Subcommittee on Youth Violence and has both a tremendous respect for the major contribution to those debates. and is currently chief counsel for the Constitution and a great love for this Repub- In volume 2 of my own ‘‘History of Subcommittee on Administrative Over- lic. We will all miss him. the Senate,’’ I express the concern sight and the Courts. Scott Frick, chief counsel to Senator ‘‘ours is becoming a nation of hardened Ed’s work ethic is beyond reproach. THURMOND, comments: cynics.’’ I went on to point out that we From the moment he joined my staff, Ed Haden possesses a unique combination ought to return to our beginnings. Go his legal analysis has been unmatched of intelligence, work ethic, and the ability to back to the hills—the hills of West Vir- and his commitment to the rule of law communicate his ideas clearly. These quali- ginia or the hills of North Carolina— unwavering. His attention to detail and ties have served Senator SESSIONS and the State of well. And in addition, he is look up at the treetops and into the his ability to be thorough but brief at the same time has helped me enor- a truly nice guy. When I first joined the Ju- open sky and gain a renewed sense of diciary Committee staff, Ed selflessly offered God’s presence in our personal lives mously. I know I can trust his judg- his time and advice, and I remain appre- and in the life of the Nation. As Sen- ment, and I thank him for dutifully ciative of his willingness to lend a hand. ators, we especially need to remember managing our staff and our issues since John Abegg, Judiciary counsel to the day he arrived on our team. the old values, such as faith in God, Senator MCCONNELL, comments: obedience to law, respect for the flag, During his tenure on the committee, Ed has proven what I knew when I Ed Haden has been an invaluable asset to honesty, and thrift. How very well Sen- the United States Senate and to its Judici- hired him, that he would always carry ator HELMS has reflected those values. ary Committee. His intellect, resourceful- I close, Mr. President, by repeating himself in a professional manner, and ness, and work ethic are recognized and re- even though he might not agree with the words Senator HELMS spoke of me spected by both sides of the aisle, as is his al- 40 years ago, words I remember so well, those on the other side of the aisle, he ways courteous and modest demeanor. Ed is words I think so aptly tell the story of could work with them and gain their the embodiment of the principle that one can respect. disagree with others, even passionately so, Senator JESSE HELMS: Ed is truly a man of utmost char- about the most important of matters with- He is a Senator whose greatest strength is acter. Senator SCHUMER, chairman of out being personally disagreeable. He is a his dedicated independence of thought and the Administrative Oversight and the credit to the country, his state, and his fam- action. He is a Senator who is neither easily ily. frightened nor intimidated. Courts Subcommittee, commented at a recent executive committee meeting Sean Woo, counsel to Senator And foremost— that: BROWNBACK, comments: He is a Senator who has always stood up [Ed] . . . represents the best of what we are In many ways and especially in matters for what he regards as important. about. He is bright and diligent and honor- dealing with judicial nominations, Ed Haden Mr. President, my wife Erma, who is able. His word is his . . . . [Ed] has done was the conscience of the Republican judici- an old-fashioned girl who married an a great job, with great distinction. He is ary staff. His commitment, enthusiasm and old-fashioned guy, and I wish the very really an admirable lesson of what public intellect—applied with the Southern charm of an Alabamian—will be sorely missed. best for JESSE HELMS and his lovely service is all about. wife Dorothy Jane Coble as they enter This is one time I could not agree Mr. President, Ed has given me and the next phase of their lives. with Senator SCHUMER more. Ed is a his country an extraordinary effort, I yield the floor, and I suggest the ab- man of honor and integrity. His intel- and I am grateful for that, as well as sence of a quorum. lect is unmatched. Most importantly, his loyalty and dedication, always hav- The PRESIDING OFFICER. The his commitment to fairness and get- ing my best interest in mind and not clerk will call the roll. ting the job done distinguishes him. He his own, never seeking credit for his The assistant legislative clerk pro- has certainly provided extraordinary great work, doing what was best for ceeded to call the roll. assistance to me, but I believe he has this country and Alabama. Ed is an ex- Mr. SESSIONS. Mr. President, I ask enriched the entire debate on the Sen- ceedingly hard worker, a man of integ- unanimous consent that the order for ate Judiciary Committee. He is indeed rity and ability, who has dedicated the quorum call be rescinded. an extraordinary worker with a pro- himself to reaching a just result on The PRESIDING OFFICER (Mr. digious capacity to produce high-qual- every issue assigned to him, ranging NELSON of Florida). Without objection, ity work, almost unbelievably so. He from bankruptcy, where he was ex- it is so ordered. works long hours and is committed to traordinarily engaged in a most com- Mr. SESSIONS. Mr. President, I ask producing the absolutely most accu- plex bit of legislation, to judicial nomi- unanimous consent to speak as in rate answer for any question we are de- nations. I could not have been success- morning business. bating. ful without his leadership and assist- The PRESIDING OFFICER. The Sen- Ed has not only been a great man- ance. ate is in morning business. ager of the complex issues that have Ed’s greatest strength, I believe, is f passed through our committee, he also that he has a remarkably developed has been a good manager of the people and rich set of core principles that TRIBUTE TO ED HADEN I hired to work on the committee. His guide him in his daily work. He does Mr. SESSIONS. Mr. President, I rise ability to lead is without question, and not go in for flash or show, but for sub- today to recognize a member of my ju- the respect he has garnered during his stance. He, to a remarkable degree, un- diciary staff, my chief counsel on Judi- service has been expressed by those derstands the glory and uniqueness of ciary, Ed Haden. Ed will be leaving the who worked closely with him. the American Government. He loves Senate at the end of this session, re- Makan Delrahim, chief counsel to America. He works constantly to en- turning to private practice at the out- Senator HATCH, comments: rich her and strengthen her—especially standing Alabama law firm of Balch & Ed is a close friend and an indispensable the rule of law, which has been the Bingham in Birmingham, AL, where he colleague. I worked with Ed when he first foundation of this country’s strength. will work in that firm’s appellate liti- came to Washington and began his career as Ed Haden is more than just an out- gation department. I will say this: My Nominations Counsel on Sen. Hatch’s Judici- standing chief counsel, he is a great ary staff. Our friendship has continued as he loss and the Senate’s loss will be a moved to serve Senator SESSIONS. Ed’s intel- friend and a great American. I thank great gain to Balch & Bingham. lect and integrity are second to none. The him for his service to me, to the people Before joining the Senate, Ed had a committee will miss him. of Alabama, and to the people of the distinguished legal career, having Rita Lari Jochum, chief counsel to United States. He typifies what we so served as a staff attorney on the Ala- Senator GRASSLEY, comments: often see and too little hear about in bama Supreme Court and as a law Ed Haden is an excellent lawyer and a this body—the great work of our staffs. clerk for the Fifth Circuit Court of Ap- great American. He will be sorely missed by They give us loyalty into the night, peals. He came to the Judiciary Com- the Judiciary Committee. preparing work for us so we can shine mittee in 1999, first serving as counsel Stephen Higgins, chief counsel to the next day before the TV cameras. I to Senator on the nomi- Senator KYL, comments: think Ed is the epitome of excellence nations and constitutional law unit. In Ed Haden was an invaluable asset to the in staff, the kind of person I have val- 2000, he became my chief counsel for Judiciary Committee. He is a superb lawyer ued greatly and will miss greatly.

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.027 S18PT1 S11246 CONGRESSIONAL RECORD — SENATE November 18, 2002 I thank the Chair and yield the floor. leadership and, I might also say, their passing the Hometown Heroes Sur- Mr. HATCH. Mr. President, I rise to fortitude on this important legislation. vivors Benefits Act. join in Senator SESSIONS’ comments On the last night the other body was in Mr. President, I understand it has earlier today regarding the departure session, Congressman ETHERIDGE stood been cleared on this side of the aisle. I of Ed Haden, a staffer who has given a as a sentry on the bridge and said noth- hope that my friends on the other side great deal to the Judiciary Committee ing else is going forward until this goes of the aisle will let this bill pass. We during the past three years. Ed has through. And it did pass in the House. are willing on this side of the aisle to made his influence felt, and he will be I am proud to be the original sponsor of pass it, but there has been objection on missed. the Senate version of the Hometown the other side. I hope that objection Ed came to the Judiciary Committee Heroes bill, S. 3114. I thank Senators will be withdrawn and this will pass so in 1999 to work as my counsel in the COLLINS, JEFFORDS, LANDRIEU, and that we can join what has been already Nominations and Constitutional Law DURBIN for joining me as cosponsors. done in the other body. unit. He served me admirably in that This legislation should not be in any I suggest the absence of a quorum. position. The next year, Ed became way controversial. It is supported by The PRESIDING OFFICER. The clerk will call the roll. chief counsel to Senator SESSIONS’ sub- the Fraternal Order of Police; National The legislative clerk proceeded to committee, and he continued to con- Association of Police Organizations; call the roll. tribute substantively to many issues Congressional Fire Services Institute; Mr. NELSON of Florida. Mr. Presi- handled by the full committee. Ed’s International Association of Arson In- dent, I ask unanimous consent that the reputation as a smart, creative, and ef- vestigators; International Association order for the quorum call be rescinded. fective lawyer is well-earned. of Fire Chiefs; International Associa- The PRESIDING OFFICER (Mr. As Senator SESSIONS said, the Sen- tion of Fire Fighters; National Fire LEAHY). Without objection, it is so or- ate’s loss is someone else’s gain. Ed Protection Association; National Vol- dered. will be joining the Birmingham, AL, unteer Fire Council; North American Mr. NELSON of Florida. Mr. Presi- law firm of Balch & Bingham, which Fire Training Directors; International dent, I rise to speak in favor of the leg- will no doubt benefit greatly from the Fire Buff Association; National Asso- islation just referred to by the distin- association. ciation of Emergency Medical Techni- guished Senator from . I have I want my colleagues to know that, cians; American Ambulance Associa- a particular interest in this legislation as Senator SCHUMER said in a recent tion; American Federation of State, because in my former governmental ca- Judiciary meeting, I have found Ed County Municipal Employees. Actu- pacity as the State treasurer, insur- Haden to represent the best of what we ally, I will not list them all, but there ance commissioner, and State fire mar- are about. He is honorable and hard- are 50 additional national organiza- shal of Florida, I had the occasion to working and someone who can be taken tions. come to a great appreciation of the at his word. I thank Ed for his great Public safety officers act with an un- role of the firefighter, the extraor- service to me and the Judiciary Com- wavering commitment to the safety dinary courage that firefighters dis- mittee, and I wish him all the best in and protection of their fellow citizens, play, and the extraordinary amount of his future endeavors. and it is always the case that they are property and life they save. The PRESIDING OFFICER. The Sen- willing to selflessly sacrifice their lives Fortunately, that was etched into ator from Vermont is recognized. to provide safe and reliable emergency the consciousness of America as a re- Mr. LEAHY. Mr. President, what is services to their communities. Hun- sult of what we saw on September 11— the parliamentary situation? dreds of public safety officers nation- not only the police, the firemen, but so The PRESIDING OFFICER. The Sen- wide lose their lives, and thousands many public service personnel who re- ate is in morning business until 2 p.m. more are injured while performing du- sponded under those conditions. So I Mr. LEAHY. Mr. President, I will be ties that put them at great physical want to add my voice in support of the speaking on a number of things at ap- risk. legislation referred to by Senator propriate times this afternoon. I ask Although we know that PSOB bene- LEAHY and to those on the other side of the distinguished Presiding Officer, at fits can never be a substitute for the the aisle who might be putting a hold what time do we turn to the Shedd loss of a loved one, the families of all on this legislation. nomination? our fallen heroes should be eligible to There is an extreme risk to the occu- The PRESIDING OFFICER. At 2 collect these funds. pation of firefighter. We understand o’clock. The PSOB program authorizes a one- that risk more clearly based on what Mr. LEAHY. I thank the Chair. I time financial payment to the eligible we saw of the bravery and the devotion commend the Chair for his interest in survivors of Federal, State, and local to duty expressed on September 11. But the proceedings here—something he al- public safety officers for all line-of- that bravery and devotion to duty goes ways demonstrates when he is there. duty deaths. A number of other things on day in and day out in the firehouses He has had the ability to serve in both are in the bill. We have improved this in communities across this Nation. bodies and we have what might be a lit- PSOB program on numerous occa- These firefighters should be appro- tle bit more of a leisurely technique sions—we did it in the — priately compensated when infirmity over here. The Senator from Vermont but, unfortunately, the inclusion of on- and disaster strikes them. is delighted to have the Senator from duty heart attack and stroke victims Mr. President, I wanted to add my Florida as a Member of this body. in the program has not been addressed. name in support of the distinguished Senator from Vermont and his bill. f This bill fixes that loophole to ensure that the survivors of public safety offi- I yield the floor and suggest the ab- HOMETOWN HEROES SURVIVORS cers who die of heart attacks and other sence of a quorum. The PRESIDING OFFICER. The BENEFITS ACT OF 2002 cardiac-related deaths in the line of clerk will call the roll. Mr. LEAHY. Mr. President, I rise to duty, or within 24 hours of a triggering The legislative clerk proceeded to encourage the Senate to pass today the effect while on duty—regardless of call the roll. Hometown Heroes Survivors Benefits whether or not a traumatic injury oc- Mr. LEAHY. Mr. President, I ask Act of 2002, H.R. 5334. curs at the time of the heart attack or unanimous consent that the order for This multipartisan legislation is to stroke—are eligible to receive financial the quorum call be rescinded. improve the Department of Justice’s assistance. Heart attack and cardiac- The PRESIDING OFFICER (Mr. Public Safety Officers’ Benefit Pro- related deaths account for almost half BINGAMAN). Without objection, it is gram. This bill allows the families of of all firefighter fatalities and an aver- so ordered. public safety officers who suffer fatal age of 13 police officer deaths each f heart attacks or strokes to qualify for year. Federal survivor benefits. It is time for the Senate to show its CONCLUSION OF MORNING I commend those in the other body, support and appreciation for these ex- BUSINESS including Congressmen ETHERIDGE, traordinarily brave and heroic public The PRESIDING OFFICER. Morning WELDON, HOYER, and OXLEY, for their safety officers by joining the House and business is closed.

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.030 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11247 EXECUTIVE SESSION me give an example: Anthony Porter. DNA testing is an extraordinary tool f Anthony Porter was 2 days from execu- for uncovering the truth, whatever the tion in 1998 when he was exonerated truth may be. It is the fingerprint of NOMINATION OF DENNIS W. and released from prison. Why? Not be- the 21st Century. Prosecutors across SHEDD, OF SOUTH CAROLINA, TO cause the criminal justice system the country rightly use it to prove BE U.S. CIRCUIT JUDGE FOR THE worked. He was exonerated and re- guilt. By the same token, it should also FOURTH CIRCUIT leased because a class of journalism be used to do what it is equally sci- The PRESIDING OFFICER. Under students, who had taken on an inves- entifically reliable to do: to establish the previous order, the Senate will now tigation of his case, found that did he innocence. go into executive session to proceed to not commit the crime. They also found Just like fingerprints, in many the consideration of Executive Order the real killer. A group of students crimes there are no fingerprints; in No. 1178, which the clerk will report. from a journalism class did what many crimes there is no DNA evidence. The legislative clerk read the nomi- should have been done by the criminal Where there is DNA evidence, it can nation of Dennis W. Shedd, of South justice system in the first place. show us conclusively, even years after Carolina, to be United States Circuit Ray Krone spent 10 years in prison. a conviction, where mistakes have been Judge for the Fourth Circuit. Three of those ten years were on death made. And there is no good reason not The PRESIDING OFFICER. The Sen- row waiting for the news that he was to use it. ator from Vermont. about to be executed. Then, earlier this Allowing testing does not deprive the Mr. LEAHY. Mr. President, how year, through DNA testing, he was ex- State of its ability to present its case, much time is under the control of the culpated and the real killer was identi- and under a reasonable scheme for the Senator from Vermont? The PRESIDING OFFICER. Three fied. These are two of the many trage- preservation and testing of DNA evi- hours. dies we learn about each year. dence, it should be possible to preserve Mr. LEAHY. Mr. President, I have These situations result not only in the evidence. discussed this with the distinguished the tragedy of putting an innocent per- The would senior Senator from Utah. I am going son on , but they also leave therefore provide improved access to to speak on another matter prior to the person who committed the crime DNA testing for people who claim that going to the Shedd nomination, al- free. Everything fails. We have the they have been wrongfully convicted. though I have no objection to the time wrong person in prison. But we have Just last week, prosecutors in St. coming out of the 3 hours. not protected society or the criminal Paul, MN, vacated a 1985 rape convic- justice system because the real crimi- tion after a review of old cases led to f nal is still out running free. Often DNA testing that showed they had the INNOCENCE PROTECTION ACT times, the actual perpetrator is a serial wrong man—and also identified the ac- Mr. LEAHY. Mr. President, for more criminal. tual rapist. Think how much better so- than 2 years, I have been working hard Today, Federal judges are voicing ciety would have been had they caught with Members on both sides of the concerns about the death penalty. Jus- the real rapist 17 years ago. The dis- aisle, in both Houses of Congress, to tice Sandra Day O’Connor has warned trict attorney wanted to conduct DNA address the horrendous problem of in- that ‘‘the system may well be allowing testing in two other cases, but the evi- nocent people being condemned to some innocent defendants to be exe- dence in those cases had already been death within our judicial system. This cuted.’’ Justice Ginsburg has supported destroyed. She has called on law en- is not a question of whether you are for a State moratorium on the death pen- forcement agencies to adopt policies or against the death penalty. Many of alty. Another respected jurist, Sixth requiring retention of such evidence, the House Members and Senate Mem- Circuit Judge Gilbert Merritt, referred and that is what our bill would call for. bers who have joined this effort are in to the system as Many cases have no DNA evidence to favor of the death penalty. I suspect ‘‘broken,’’ and two district court be tested, just as in most cases there the majority of them are in favor of it. judges have found constitutional prob- are no fingerprints. In the vast major- It goes to the question of what happens lems with the Federal death penalty. ity of death row exonerations, no DNA if you have an innocent person who is We can agree there is a grave prob- testing has or could have been in- condemned to death. lem. The good news is that there is also volved. Our bill, the Innocence Protection a broad consensus on one important So the broad and growing consensus Act, proposes a number of basic com- step we have to take—we must pass the on death penalty reform has another monsense reforms to our criminal jus- Innocence Protection Act. top priority. All the statistics and evi- tice system; reforms that are aimed at That is why I wanted to let my col- dence show that the single most fre- reducing the risk that innocent people leagues know what is happening. As quent cause of wrongful convictions is will be put to death. the 107th Congress draws to a close, the inadequate defense representation at We have come a long way since I first IPA is cosponsored by a substantial bi- trial. The biggest thing we can do is to introduced the IPA in February 2000. partisan majority of the House and by guarantee at least minimum com- At that time, we had four Democratic 32 Senators from both sides of the petency for the defense in a capital cosponsors. Now there is a broad con- aisle, including, most recently, Senator case. sensus across the country among BOB SMITH of New Hampshire. A This bill offers States extra money Democrats and Republicans, supporters version of the bill has been reported by for quality and accountability. and opponents of the death penalty, a bipartisan majority of the Senate Ju- They can decline the money but then liberals, conservatives, and moderates, diciary Committee. And the bill enjoys the money will be spent on one or more that our death penalty machinery is the support of ordinary Americans organizations that provide capital rep- broken. We know that putting an inno- across the political spectrum. resentation in that State. One way or cent person on death row is not just a What would the Innocence Protection another, the system is improved. nightmare, it is not just a dream, it is Act do? As reported by the committee, More money is good for the states. a frequently recurring reality. the bill proposes two minimum steps More openness and accountability is Since the 1970s, more than 100 people that we need to take—not to make the good for everyone. And better who were sentenced to death have been system perfect, but simply to reduce lawyering makes the trial process far released, not because of some techni- what is currently an unacceptably high less prone to error. cality, but because they were innocent, risk of error. First, we need to make When I was a State’s Attorney in because they had been sentenced to good on the promise of modern tech- Vermont, I wanted those I prosecuted death by mistake. One wonders how nology in the form of DNA testing. to have competent defense counsel. I many others were not discovered and Second, we need to make good on the wanted to reach the right result in my how many innocent people were exe- constitutional promise of competent trails, whatever that was, and I wanted cuted. counsel. a clean record, not a record riddled These are not just numbers, these are DNA testing comes first because it is with error. Any prosecutor worth his or real people. Their lives are ruined. Let proven and effective. We all know that her salt will tell you the same; any

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.033 S18PT1 S11248 CONGRESSIONAL RECORD — SENATE November 18, 2002 prosecutor who is afraid of trying his I have heard four arguments against working in a well-functioning adver- cases against competent defense coun- the bill. One wonders, with all these sarial system with effective represen- sel ought to try a new line of work, be- people from the right to the left, all tation on the other side. That is the cause the whole system works better if these editorial writers and Members of way it is supposed to work. both prosecutor and defense counsel Congress from both parties supporting When I hear a prosecutor say that are competent. That is what I wanted the IPA, what that tells us. the IPA reforms—enabling DNA testing when I was prosecuting cases because I First, critics claim that the bill is an and securing adequate defense rep- wanted to make sure justice was done. affront to States’ rights. As a resentation—would make it almost im- The Constitution requires the Gov- Vermonter, and as a former State pros- possible for him to do his job, it makes ernment to provide an attorney for any ecutor, I agree that States’ rights are me wonder what he thinks that job is. defendant who cannot afford one. The very important. States should have the Finally, there is one more argument unfortunate fact is that in some parts right to set their own laws, free of Fed- against the bill which is rarely stated of the country, it is better to be rich eral preemption at the behest of spe- out loud. I call it the ‘‘innocence de- and guilty than poor and innocent, be- cial interests. They should have the nial’’ argument. We saw this in the cause the rich will get their competent right to set their own budgets, free of Earl Washington case in Virginia counsel, but those who are not rich unfunded mandates. And their reason- where, despite conclusive DNA evi- often find their lives placed in the able expectations of Federal funding dence to the contrary, the Common- hands of underpaid court-appointed for criminal justice and other essential wealth for years clung to the hope- lawyers who are inexperienced, inept, programs should be met, rather than lessly unreliable and implausible con- uninterested, or worse. bankrupting State governments be- fession of a mentally retarded man. We We have seen case after case of sleep- cause of Federal tax policy. see it in claims that ‘‘the system is ing lawyers, drunk lawyers, lawyers The IPA is entirely consistent with working’’ when an innocent man is re- who meet with their clients for the these principles of State sovereignty. leased after years on death row due to first time on the eve of trial, and law- It leaves State laws, including the the work of journalism students. And yers who refer to their own clients death penalty laws, in place. It offers we see it in the often-repeated insist- with racial slurs. States new funding for their criminal ence that, no matter how many people Part of the problem, I think, lies justice systems. And there was a provi- have been exonerated, no one can prove with some state court judges who do sion added during the committee proc- that an innocent person has actually not appear to expect much of anything ess establishing a student loan forgive- been executed. from criminal defense attorneys, even ness program for prosecutors and pub- The innocence deniers will never con- when they are representing people who lic defenders, something that a lot of cede there is a problem. But with 100 are on trial for their lives. Good judges, State governments say would help re- known instances of the system fail- like good prosecutors, want competent cruit and retain competent young law- ing—and those are only the ones we lawyering for both sides. But some yers. know about—it would be surprising if judges run for reelection touting the This is one of those cases, like in the there were not more unknown cases of number and speed of death sentences civil rights era, where the rhetoric of innocent people being sentenced to they have handed down. For them, the States rights is being abused as a code death. adversary system is a hindrance. for the denial of basic justice and ac- The IPA was passed out of committee The problem of low standards is not countability. Some States have made in the Senate and is supported by a ma- confined to elected State judges. Ear- meaningful reforms, but many have jority of the House. We ought to pass it lier this year, a bare majority of the not. They have had more than a quar- before more lives are ruined. Supreme Court held that it was okay ter of a century and 100 death row ex- As a prosecutor, I never had any hesi- for the defendant in a capital murder onerations to get their act together, tation to seek the severest penalties trial to be represented by the same but they have failed. As many in this our State could provide for people who lawyer who represented the murder body argued in 1996, when promoting committed serious crimes. When I look victim. Most law students would auto- legislation to speed up executions, jus- at some of the cases I have reviewed matically say that is a conflict of in- tice delayed is justice denied. I agree over recent years, when I see shoddy terest, but our Supreme Court said with that. We cannot wait forever evidence, or when I see evidence that that was all right. And last year, a while innocent lives are in peril. was not looked at because it might Federal appeals court struggled with I have heard a second argument have pointed to someone else, I wonder, the question whether a defense lawyer against the IPA, which is that society why wouldn’t society want a better who slept through most of his client’s cannot afford to pay for these reforms. system? Passing the IPA will help fix capital murder trial provided effective The truth, however, is that we cannot these problems and give greater credi- assistance of counsel. afford to do otherwise if we want to bility to our criminal justice system. Fortunately, a majority of the court maintain confidence in our criminal I yield the floor. eventually came to the sensible conclu- justice system. The costs of providing I suggest the absence of a quorum sion that ‘‘unconscious counsel equates DNA testing and competent counsel and ask that the time be equally di- to no counsel at all,’’ basically revers- are relatively small, especially when vided. ing what a State court said when it you compare them to the costs of re- The PRESIDING OFFICER. Without said the Constitution guarantees a per- trials that are necessitated by the lack objection, it is so ordered. son counsel. It does not guarantee they of adequate counsel at trial, or the cost The clerk will call the roll. will stay awake. of locking up innocent people for years The assistant legislative clerk pro- No law can guarantee that no inno- or even decades. I am all for efficiency, ceeded to call the roll. cent person will be convicted. But sure- but the greatest nation on Earth Mr. DEWINE. Mr. President, I ask ly we can do better than this. Surely should not be skimping on justice in unanimous consent the order for the we can demand more of defense counsel matters of life or death. quorum call be rescinded. than that they simply show up for the I have heard a third argument from a The PRESIDING OFFICER. Without trial and remain awake. When people vocal minority of State prosecutors. objection, it is so ordered. in this country are put on trial for They claim the bill would make it un- TRIBUTE TO SENATOR STROM THURMOND their lives, they should be defended by duly difficult, if not impossible, to seek Mr. DEWINE. Mr. President, I rise lawyers who meet reasonable standards the death penalty. That is a shocking today to recognize the accomplish- of competence and who have sufficient claim. When I prosecuted cases, I felt ments of our friend and colleague, Sen- funds to investigate the facts and pre- very comfortable prosecuting those ator STROM THURMOND, an individual pare thoroughly for trial. As citizens, cases under the laws of our State be- who has devoted his entire life to the we expect that of our prosecutors. We cause of two things: I knew that all the service of the American people and who ought to expect the same thing of our evidence we had, including potentially now stands before us as one of the most defense attorneys. That is all we ask exonerating evidence, had been given accomplished U.S. Senators in our na- for in the IPA. to the defendant. And I knew I was tion’s history.

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.036 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11249 I must say that I am saddened that I course I knew that. He said, I went to the Old South, which has been highly am making these comments on the Clemson. I asked, STROM, What year criticized by many of us in this Cham- heels of a controversy over the nomina- did you graduate? ber. tion of a highly qualified judicial nomi- He said, I graduated from Clemson in But let me just take a moment to nee, Dennis Shedd, who was a long- 1923. pay tribute to my good friend and our time member of Senator THURMOND’s I looked at him. I said, STROM, my distinguished colleague on this com- staff and who was recommended to the dad was born in 1923. mittee, the senior Senator from South President for this appointment by Sen- STROM THURMOND has had quite an Carolina, STROM THURMOND. ator THURMOND. While I won’t go into unbelievable career. I have had the op- From the moment STROM THURMOND the specifics of these hollow arguments portunity, as well, to listen to many of set foot in the Senate Chamber in 1954, against Judge Shedd, I cannot make his stories. I asked him about his ten- he has been setting records. He was the these comments in praise of Senator ure at Clemson. He told me about the only person ever elected to the U.S. THURMOND without mentioning my dis- different times he would run barefooted Senate on a write-in-vote. That is a re- appointment about the handling of from town to town. He was a long dis- workable achievement. He is the long- Judge Shedd’s nomination. tance runner when he was there. est serving Senator in the history of As our colleagues know, Senator The great Athenian general Pericles the U.S. Senate. As he approaches his THURMOND’s nearly 50 years of service once noted that: 100th birthday, he is also the oldest within this body make him the longest Where the rewards of virtue are greatest, serving Senator. Many of my col- serving member since the Senate’s in- there the noblest citizens are enlisted in the leagues will recall the momentous oc- ception, yet his contributions to public service of the state. casion in September of 1998 when he service and our Nation extend well be- Our American democracy, like that cast his 15,000th vote in the Senate. yond the United States Senate. From of the Athenians, is designed to reward With these and so many other accom- the time he served as Superintendent virtue with the opportunity to rep- plishments over the years, he has ap- of Education in Edgefield, SC, STROM resent and defend fellow citizens. Cer- propriately been referred to as ‘‘an in- THURMOND placed the good of the Na- tainly there is no man of our time bet- stitution within an institution.’’ tion ahead of his personal career. He ter fit for and dedicated to these dif- In 1902, the year STROM THURMOND was born, life expectancy was 51 years served over 36 years on active and re- ficult tasks than STROM THURMOND. In- and today —the last time I heard—it is serve duty within the U.S. Army, while deed, he is a tribute to the American 77 years. But I think it is going up reg- simultaneously holding many other ethic of public service that the framers ularly. STROM continues to prove that, public service positions. of our nation envisioned over two cen- Throughout, he was prepared to turies ago. by any measure, he is anything but av- abandon his professional career on a It should come, then, as no surprise erage. He has seen so much in his life. To moment’s notice—ready to fight to pre- to my colleagues in the Senate, to the provide some context, let me point out serve democracy and freedom. He was citizens of South Carolina, and to the that, since his birth, , New awarded five battle stars, as well as 18 American public that STROM THURMOND Mexico, Arizona, Alaska and has left an indelible mark on our na- decorations, medals, and awards, in- gained Statehood, and eleven amend- tion through his service—a mark that cluding the Bronze Star for Valor and ments were added to the Constitution. surely will never be forgotten or held the . The technological advancements he I have only—I say ‘‘only’’—been in in anything less than the highest re- has witnessed, from the automobile to the Senate for 8 years, but in the rel- gard. the airplane to the Internet, literally atively short time I have had the pleas- We thank STROM for his service to span a century of progress. Conven- ure of serving in the Senate alongside our country, to South Carolina, and to iences we have come to take for grant- HURMOND the people who will miss his kindness Senator T , we have worked to- ed today were not always part of gether as sponsors or co-sponsors of and his friendship. But we look forward STROM THURMOND’s world. Perhaps this dozens of bills, including legislation to seeing him, as we are sure we will, explains why during our Judiciary enhancing local law enforcement ef- for a long time because he is a man of committee hearings, we have heard forts to protect the elderly and child great courage and great integrity. We him asking witnesses who were too far victims of violent crime, drug interdic- will miss him. away from the microphone to ‘‘please tion efforts designed to stem the tide of The PRESIDING OFFICER. The Sen- speak into the machine.’’ drugs flowing into our cities and ator from Utah is recognized. The story of his remarkable political schools, laws to end the practice of par- Mr. HATCH. Mr. President, I thank career truly could fill several volumes. tial-birth abortion, and constitutional my colleague for his kind remarks It began with a win in 1928 for the amendments to protect victims of vio- about our great friend, Senator Edgefield County Superintendent of lence. All of these collaborative efforts THURMOND. I have been around here 26 Schools. Eighteen years later, he was have benefited a great deal from the in- years, and Senator THURMOND was the Governor of South Carolina. STROM sight STROM THURMOND developed dur- leader on the Judiciary Committee for was even a Presidential candidate in ing his 12-year tenure as either chair- most of that time. He has been a tre- 1948, running on the ‘Dixiecrat’ ticket man or ranking member of the Judici- mendous mentor and adviser to me. against Democrat Harry Truman. ary Committee and also, of course, his He is a wonderful man. He has gone I must admit that he has come a long 50 years of service in this body. through so many changes in his life, way in his political career, given that While Senator THURMOND’s Senate and he has had many different experi- he originally came to the Senate as a career speaks volumes about his com- ences in his life. He is truly a war hero Democrat. I am happy to say that wis- mitment to this nation and to the peo- and truly one of the people I think ev- dom came within a few short years ple of South Carolina and to all Ameri- erybody in this body has to admire. when STROM saw the light and joined cans, I also must mention what a pleas- There is no question about it. He is one the Republican Party. ure it has been for me to know Strom of the all-time great Senators. He has That was supposed to be humorous. Thurmond as a person. represented the State of South Caro- But I did not hear any laughter. Over the years, he has shown great lina for all of these years very well. When I first arrived in the Senate in kindness and generosity to me and to I can remember traveling through January of 1977, he was my mentor. As my family. In particular, I would like the State with him. Just about every- my senior on the Judiciary committee, to thank him for the hospitality he has body knew STROM, and he knew just it was STROM THURMOND who helped me shown my son, Brian, who recently about everybody in his State. It was find my way and learn how the com- graduated from South Carolina’s absolutely amazing to me that a person mittee functioned. He has not only Clemson University. could be so revered as STROM THUR- been a respected colleague, but a per- When I told STROM my son Brian was MOND was—and he deserved it. sonal friend, ever since. going to go to Clemson, he beamed. I He is not only a great man, but he During his tenure as Chairman of the could tell he was delighted. He said, has done great things in his life. He has Judiciary committee, STROM THUR- You know, I went to Clemson. Of done great things having come from MOND left an indelible mark on the

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.038 S18PT1 S11250 CONGRESSIONAL RECORD — SENATE November 18, 2002 committee and the laws that came able to give STROM THURMOND the only . . . conferred, as against the Government, through it. He became known and re- thing he has asked of us, as a last re- the right to be let alone—the most com- spected for many fine qualities and po- quest, in return for his service: the prehensive of rights and the right most val- sitions—his devotion to the Constitu- confirmation of his former chief coun- ued by civilized man. tion, his toughness on crime, his sense sel, Judge Dennis Shedd, who himself is Now, Justice Brandeis wrote those of fairness. a wonderful, decent man. words in a dissenting opinion in a 1928 He is also famous for his incredible With that, Mr. President, I yield the case involving a liquor dealer who was grip. Many of us have experienced floor. convicted by evidence gathered STROM THURMOND holding our arm The PRESIDING OFFICER. The Sen- through a wiretap, way back then, tightly as he explains a viewpoint and ator from Vermont. early in the last century. That case asks for our support. I might add that Mr. LEAHY. Mr. President, just so arose because technology had granted this can be a very effective approach. all Senators understand where we are, the Government an increased ability to STROM is also known to have a kind I have been told that the cloture vote peer inside people’s private lives—then, word or greeting for everyone who that was scheduled for this afternoon in 1928, a wiretap. comes his way, and for being extremely has been vitiated. But we will be voting The technology increased govern- good to his staff—and to all the work- on the Shedd nomination sometime to- mental authority, forcing the Supreme ers here on Capitol Hill. No question. morrow morning. Court to evaluate and redefine the He has gone out of his way. I see the distinguished Senator from boundaries between freedom and gov- I might add that I have seen him op- Florida on the floor. Could he indicate ernmental power. The technological erate in his own home State and other how long he wishes to speak? I was advances also stimulated an important places. I have seen him. He has oper- about to begin the debate on the nomi- national debate about the balance be- ated in the most even-mannered, de- nation. tween individual freedom and the le- Mr. NELSON of Florida. About 10 cent, honorable way to people regard- gitimate needs of law enforcement. minutes. less of where they came from—regard- Now we are at a similar crossroads, Mr. LEAHY. Mr. President, I ask and those words ring out to us today as less of their color, their religion, their unanimous consent that the distin- country of origin, or any other distin- we go about trying to balance the guished Senator from Florida be recog- rights between individual freedom and guishing characteristic. STROM has al- nized for 10 minutes, with the time di- the legitimate needs of the Govern- ways been good to everybody. vided equally. I make that request, Despite his power and influence, he ment to penetrate terrorist cells. that that 10 minutes of time be taken Technology has advanced faster than has never forgotten the importance of equally out of both sides. the Nation’s norms and the laws for small acts of kindness. The PRESIDING OFFICER. Without managing them. Modern technology STROM THURMOND is truly a legend— objection, it is so ordered. someone to whom the people of South The Senator from Florida is recog- makes possible unprecedented intru- Carolina owe an enormous debt of grat- nized for 10 minutes. sions into the private lives of American people. This ability, coupled with in- itude for all his years of service. Clear- TECHNOLOGY AND FREEDOM ly, the people of South Carolina recog- Mr. NELSON of Florida. Mr. Presi- creasing governmental demands to use nize the sacrifices he has made and are dent, I come to the floor not to speak that technology, poses a grave threat grateful for all he has done for them. In on the Shedd nomination—and I had to personal privacy and personal free- fact, you cannot mention the name spoken to the chairman of the com- dom. STROM THURMOND in South Carolina mittee—but to speak about a matter This past week, I was rivetted by the without the audience bursting into we will be discussing tomorrow as we news of the revelations about how the spontaneous applause. He truly is an take up the homeland defense bill and Department of Defense is developing a American political icon. some of the questions of privacy that computer system to grant intelligence Abraham Lincoln once said that: have arisen, not necessarily directly and law enforcement authorities the The better part of one’s life consists of involved in this bill but clearly in the power to secretly access ordinary citi- friendships. discussion of homeland security. zens’ private information, including e- With a friend like STROM THURMOND, Some grave questions of invasion of mail, financial statements, and med- this sentiment couldn’t be more true. I privacy have been noted. So I felt com- ical records—to access that private in- am a great admirer of STROM THUR- pelled to take the floor of the Senate formation without the protections of a MOND, and, as everyone around here to raise further the issue of govern- court order. knows, I am proud to call him my mental intrusion into the private lives Clearly, in this post-9/11 world, we friend. of people. need to develop tools that will enable One final note about STROM THUR- I realize that in this technologically our Government to keep us safe from MOND: He is a great patriot. I am grate- advanced age, in order to go after the terrorists by disrupting their oper- ful for his work with me over the years bad guys, in order to be able to stop ations. But these tools need to be bal- in support of a Constitutional Flag them before they hit us, clearly there anced against the protection of inno- Amendment. A decorated veteran of has to be the clandestine means of pen- cent people’s right to privacy. If the World War II who fought at Normandy etrating the communications that are right to privacy means anything, it is on D-Day, STROM THURMOND loves this going on. That is very important to the the right of the individual to be free country. He loves it very much. Let me defense of this country and our citi- from unwarranted governmental intru- just say this country loves him, too. zens. At the same time, the constitu- sion. STROM THURMOND is a wonderful fa- tional rights of privacy must always be So what rivetted my attention were ther. He has raised his children to be foremost in our minds as we battle this reports, first in the Times, very fine people. And they love him as new, elusive kind of enemy called the , and then in the well. terrorist. Washington Times, that the so-called When his daughter died, it was one of So I want to offer some words. I Total Information Awareness Pro- the most tragic things I have ever seen. start, first, with words from a very fa- gram—located in DARPA, deep inside It was the first and only time I ever mous American who had something the Department of Defense—would saw STROM THURMOND shed tears. He is significant to say about privacy, Jus- make possible unwarranted govern- such a strong, resilient, patriotic lead- tice Louis Brandeis, in which he ar- mental intrusions such as we have er. But on that day, at that funeral, gued, in a 1928 case, that the Framers never seen before. STROM THURMOND broke down, which of our Constitution—and I will quote It is disturbing that we are devel- showed how much he loved his daugh- Justice Brandeis: oping a research system that, if ever ter and his family. I know how much . . . sought to protect Americans in their used, would violate the Privacy Act as he has. That is the mark of a great beliefs, their thoughts, their emotions and well as violate a lot of other Federal man. their sensations. laws on unreasonable searches of pri- I am glad today, or at least by to- Justice Brandeis went on, that the vate information without probable morrow, hopefully, this body will be Framers of the Constitution had: cause, which is the typical standard

VerDate 0ct 31 2002 02:40 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00020 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.006 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11251 that needs to be met. That is why we these great Senate giants on the floor Mr. LEAHY. Mr. President, we have go to a judge to get an order allowing right now, Senators LEAHY and HATCH, before us the nomination of United us to intrude on such things as guardians of the Constitution because States District Court Judge Dennis searches, as seizures, on such things as of their roles on the premier com- Shedd of South Carolina to the Court wiretaps. mittee that guards the Constitution in of Appeals for the Fourth Circuit. I have a serious concern about the Senate, privacy is an issue that has Judge Shedd’s nomination was re- whether this type of program, called attracted my attention and concern. ported out of the Judiciary Committee Total Information Awareness, can be Has my time expired? last Thursday on a voice vote. Nine used responsibly. So while we inves- The PRESIDING OFFICER (Mr. Democratic Senators, including my- tigate and learn more about it, I intend NELSON of Nebraska.) The Senator’s self, voted against him. As I noted be- to speak out to the Congress and to the time has expired. fore, I told Senator THURMOND I in- committees on which I am privileged Mr. NELSON of Florida. I ask unani- tended to bring this matter to a vote to serve—including the Armed Services mous consent that I conclude my re- by the committee this year. My con- Committee—to speak out that we need marks in 2 minutes. cern at the penultimate meeting, the The PRESIDING OFFICER. Without to oversee this program to ensure that meeting before last week, a meeting we objection, it is so ordered. there is no abuse of law-abiding indi- held in October, was that we had very Mr. NELSON of Florida. I thank Sen- little time to debate this controversial viduals’ privacy. ators for letting me make this case. It has been reported that this pro- When I first came here, I became con- nominee and that threatened to pre- gram is authorized or endorsed by the cerned that back in 1999 we allowed vent a committee vote on 17 other of homeland security legislation pending banks and insurance companies to the President’s judicial nominees be- now in the Senate. And that does not merge, but we didn’t protect individ- fore the committee. Incidentally, those 17 district court appear to be the case. While it doesn’t ual’s privacy. It would shock people to nominees and 2 circuit court nominees specifically tend to be the case, this know that if you go have a physical legislation, the Homeland Security De- exam in order to get a life insurance were confirmed by the Senate last partment, does include a provision cre- policy and if that life insurance com- week. Those 17 district court nominees ating a research division within the pany is acquired by a bank, that the were on the Senate Calendar because new Homeland Security Department. It access to those individually identifi- the Senate Judiciary Committee was would develop, among other things, in- able medical records is unlimited, able to report those nominees despite formation technologies similar to the without your personal consent, to any- unparalleled personal attacks by Re- Total Information Awareness Program. where within that bank holding com- publicans on me as chairman. Those at- While I strongly support funding for pany. tacks have included everything from new research, and I certainly believe You might also be interested to know saying I am not bringing up nomi- that we must use our technological ad- that recently we had the issuance of nees—although I am and we are at a vantage to defeat our enemies, at the rules by the Bush administration on record rate that far outpaces the Re- same time I think we better take a medical record privacy, but there was a publican rate during their six and one- breath, be very cautious that any new huge omission in that pharmaceutical half years of control—to even attacks research done in the Defense Depart- companies could go to drugstore in these recent months on my religious ment or within the new proposed De- chains, pay the drugstore chain for the beliefs as well as the religion of several partment of Homeland Security does names and ability to communicate to of the members of the Democratic ma- not threaten our personal freedoms. individual people who had prescrip- jority on the Senate Judiciary Com- I also have grave concerns that this tions, and then that pharmaceutical mittee. information awareness program is chain could contact that individual pa- Notwithstanding these unprece- being directed by someone who is very tient, asking them, soliciting them to dented attacks on both our religious controversial: Retired Rear Admiral change their medication to a different beliefs and our actions, the confirma- Poindexter, the former Reagan admin- kind of medication, one that would be tions last week bring to 99 the number istration official who was convicted in, within the generic equivalent or a dif- of President Bush’s judicial nominees you remember, the Iran-contra story. ferent brand name than the one that confirmed by the Democratic-led Sen- There is a very legitimate question the physician had prescribed for them. ate in the past 16 months. about whether or not he is the appro- That is an invasion of personal privacy. I mention this because before that, 1 priate person to head such a sensitive Yet it is allowed under the rules of the during the 6 ⁄2 years when the Repub- program. new administration. lican majority controlled the Senate, To quote from recent editions of the Take, for example, the case 2 weeks they averaged 38 judicial confirmations Washington Post, specifically Novem- ago in Fort Myers, FL. Suddenly a per year. In fact, in the year 1996, over ber 16, an editorial: dumpster was overflowing with tax the whole year, they allowed only 17 However revolutionary and innovative it records, bank records, Social Security district court judges to be confirmed may be, this is not neutral technology, and numbers, all kinds of personally identi- all year and did not confirm a single the potential for abuse is enormous. fiable financial information not prop- circuit court nominee—not a single The editorial continues: erly disposed of by the bank subsidiary. one. We had 17 district court judges in 1 meeting and those 17 nominees of Because the legal system, designed to pro- The bank says there is no such law. So tect privacy, has yet to catch up with this I filed a bill to protect individual’s per- President Bush were confirmed on one technology, Congress needs to take a direct sonal financial privacy. day last week by the Democratic-led interest in this project. Lo and behold, another invasion of Senate. The editorial goes on: privacy, identity theft, one of the big I put this in the record so the people understand the historic demonstration And the defense secretary should appoint things, more recently, in Orlando, FL— an outside committee to oversee it, before it another dumpster. Now all of a sudden, of my bipartisanship toward the Presi- proceeds. one of the two large pharmaceutical dent’s judicial nominees in perspective with the recent history of judicial con- The editorial concludes: drugstore chains dumps all of the pre- scriptions in the dumpster, along with firmations. The fact is that in addition Finally, everyone involved might also to the 83 district court nominees con- want to consider whether Adm. Poindexter is the bottles. As a result, the personally the best person to direct this extremely sen- identifiable medical information is firmed, the Senate has also already sitive project. there for the public to see from some- confirmed 16 of his circuit court nomi- Though his criminal convictions were over- one pilfering the dumpster. nees. That is in sharp contrast to the turned on appeal, his record before the Con- I think I have made my case. Privacy fact that the Republicans allowed only gress hardly makes him an ideal protector of is something we better be concerned 7 circuit court nominees to be con- the legal system. . . . about. firmed per year, on average, during That is the Washington Post. I yield the floor. their control of the Senate. For exam- In conclusion, ever since I had the The PRESIDING OFFICER. The Sen- ple, more than half of President Clin- privilege to serve with the likes of ator from Vermont is recognized. ton’s circuit court nominees in the

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00021 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.043 S18PT1 S11252 CONGRESSIONAL RECORD — SENATE November 18, 2002 106th Congress were defeated through nomination before the year was out. judges, one on the federal District Court and such obstruction—more than half. Several Senators asked to hold the the other on the Fourth Circuit. This is un- In fact, the Fourth Circuit—to take nomination over, and under the rules fair and unjustified because there are many one at random—is one of many circuits any Senator can. well-qualified African-American and women jurists and lawyers who deserve an oppor- affected by the other party’s obstruc- On October 7, when I hoped to be able tunity to serve this nation on the federal ju- tion of President Clinton’s judicial to list his name for consideration diciary. nominees. In the Fourth Circuit, seven again, I was told there would be a de- Because African-Americans are one-third of President Clinton’s nominees to that bate so lengthy that we would not even of South Carolina’s population and the circuit were never given a hearing or a be able to consider the 17 other judicial Fourth Circuit has a greater number of Afri- vote in committee or on the floor— nominations of President Bush that can-Americans than any circuit, it is critical seven out of that one circuit alone. were on the agenda or, for that matter, that any nominee, especially one from South James Beaty, one of the Fourth Cir- Carolina, be an unabashed champion of civil the legislative matters we were trying rights. The appointee should have a record cuit nominees of President Clinton, did to take up before the election. So I told that demonstrates fairness and justice to all not get a hearing or a vote in 1995, or Senator THURMOND, and other Senators people. Based on our careful review of Judge 1996, or 1997, or 1998. Another Fourth before that markup, it was for this rea- Dennis Shedd’s performance on the U.S. Dis- Circuit nominee, Judge Richard Leon- son that I would not list Judge Shedd’s trict Court for the District of South Caro- ard, did not get a hearing or vote in nomination on the agenda for the Octo- lina, we have concluded that his record 1995 or 1996. ber 8 markup, but I explained to Sen- shows a serious hostility to civil rights and constitutional protections. Another Fourth Circuit nominee, ator THURMOND and others that I hoped James Wynn, did not get a hearing or a Since his appointment to the federal bench we would be able to consider it at our in South Carolina, Judge Shedd has engaged vote in 1999, 2000, or 2001. Other Fourth next opportunity, as we knew at that in right-wing judicial activism by imposing Circuit nominees—Elizabeth Gibson, point we would have a lame duck ses- strict and exacting standards when review- Judge Andre Davis, or Judge Roger sion. So now, having the lame duck ing employment discrimination cases Gregory—also did not get hearings or session, I scheduled as soon as we came brought by African Americans and women. votes during the period of Republican back and Senators would be here a He has dismissed almost every employment control of the Senate. markup on Judge Shedd and one other discrimination, sexual harassment, civil Indeed, the first hearing the Judici- rights and disability case that has come be- judicial nominee. fore him. Judge Shedd seems to believe that ary Committee held last year on a judi- The committee has received more cial nominee was for an earlier Fourth discrimination is not an actionable offense than 1,200 letters from individuals and even when the Equal Employment Oppor- Circuit nominee, Judge Roger Gregory. organizations, both in and out of South tunity Commission has found ‘‘reasonable He had been nominated initially by Carolina, expressing concerns about cause’’ that discrimination has occurred. President Clinton when the Repub- elevating Judge Shedd. In fact, right Judge Shedd, however, seems to apply a licans were in control. They did not act here, it stands about 2 feet high—the more lenient standard in reviewing discrimi- on him. He was brought back by Presi- stack of letters we got against it. nation cases brought by white men. Judge Shedd has allowed four out of five ‘‘reverse’’ dent Bush, and he became the first These letters raise serious issues. What judge confirmed to the Fourth Circuit discrimination cases to proceed beyond the I heard about the nominee from the summary judgment phase of litigation. in several years. He was also the first citizens of South Carolina and from This record shows that Judge Shedd does African American confirmed to the others around the country was and is not have an abiding concern for civil rights Fourth Circuit in American history. troubling. and fairness. It further shows that Shedd That is because our committee in the I ask unanimous consent to have lacks the requisite moderate reasoning to Senate acted in the summer of 2001. printed samples of letters such as those bring balance to the Fourth Circuit. In fact, Judge Gregory was the first of 20 cir- his membership to the Fourth Circuit would from citizens of South Carolina in the push it further beyond the mainstream of cuit court nominees on whom we pro- RECORD. ceeded to hold hearings in our 16 American values and would subject South There being no objection, the mate- Carolinians and residents of other states months in the majority. rial was ordered to be printed in the within the Fourth Circuit to an extreme So the partisan rhetoric about the RECORD, as follows: right-wing interpretation of this nation’s Judiciary Committee having blockaded SOUTH CAROLINA civil rights laws and constitutional protec- President Bush’s judicial nominees and LEGISLATIVE BLACK CAUCUS, tions. having treated nominees unfairly Columbia, SC, September 4, 2002. Accordingly, we oppose Judge Shedd’s might be a good stump speech on the Re Fourth Circuit Nomination of Judge nomination without reservation. His values circuit, but it is belied by the facts. Shedd. represent the Old South, where African Frankly, I think the staff at the White Americans and women were judged by dif- Hon. PATRICK J. LEAHY, ferent and unequal standards. House who have put those kinds of Chair, Senate Judiciary Committee, Dirksen We appreciate your attention. If you have misstatements in the President’s Senate Office Building, Washington, DC. any questions, please contact me at the ad- speeches have done the President a dis- DEAR SENATOR LEAHY: The South Carolina dress and telephone number above. service, as they have the Senate. Legislative Black Caucus (SCLBC) was Sincerely, Turning to the nomination of Judge formed in 1975 soon after the Civil Rights JOSEPH H. NEAL, Movement in the 1960’s. Presently, the Chairman. Dennis Shedd to the United States SCLBC has 31 members: seven senators and Court of Appeals for the Fourth Cir- 24 representatives, including four women. SOUTH CAROLINA STATE CON- cuit, I cannot fail to note that it is not The SCLBC is dedicated to the struggle for FERENCE, NATIONAL ASSOCIATION without controversy. In fact, it is quite fairness, equality and justice for all South FOR THE ADVANCEMENT OF COL- controversial. Issues in his judicial Carolinians, and to the civic and political in- ORED PEOPLE, record raised cause for concern among volvement of African-Americans, women and Columbia, SC, June 24, 2002. many Senators on the Judiciary Com- other racial and ethnic minorities. Senator PATRICK LEAHY, mittee as well as with many citizens We seek to preserve the civil rights strides Chairman, Judiciary Committee, Dirksen Senate that occurred in South Carolina over the who live in the jurisdiction of the Office Building, Washington, DC. decades, and we fight to prevent any regres- DEAR CHAIRMAN LEAHY: We write to oppose Fourth Circuit and elsewhere in the sive step that threatens to rollback civil the nomination of Dennis Shedd to the country who have written to the Sen- rights and constitutional rights of Amer- Fourth Circuit Court of Appeals. ate in opposition to his elevation and ican-Americans, women and other racial and By now, you must be familiar with the im- confirmation. ethnic minorities. The nomination of U.S. portance of the Fourth Circuit to the African While considering the information District Judge Dennis W. Shedd to the U.S. American community. Almost a quarter of gathered in the hearing process, I Court of Appeals for the Fourth Circuit rep- the Fourth Circuit’s residents are African placed Judge Shedd’s nomination on resents such a regressive step, and accord- American. The Fourth Circuit, with over 6 the committee agenda in September. ingly, we strongly oppose the nomination. million African Americans in the five states, African-Americans constitute a full one- has the greatest number of African Ameri- That was my effort to show Senator third of South Carolina’s population, yet cans of any Circuit Court in the country. The THURMOND courtesy as a former chair- there is only one active African-American Latino population within the Fourth Circuit man and to signal that I expected this federal judge in the state. And, there are now at more than one million persons, has committee to proceed to consider the only two South Carolinian female federal nearly tripled in the last decade. Based on

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00022 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.046 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11253 these demographics, more may be at stake that Congress exceeded its power in enacting nomination. We have called your office re- here for the future of civil rights than in any a statute. questing such a meeting prior to a vote by other Circuit Court in the country. The question of judicial temperament is the Judiciary Committee on this issue. The Fourth Circuit is already an extremely raised by Judge Shedd’s offensive remarks Love Embraces Justice, conservative Court on civil rights and Con- during a judicial proceeding about an issue DR. JOSEPH E. LOWERY, stitutional issues. This Circuit ruled that that strikes at the heart of many—the Con- DR. C. DELORES TUCKER, federal law-enforcement officials need not federate flag. Judge Shedd presided over a YVONNE SCRUGGS- follow the Miranda decision, only to be re- federal lawsuit seeking the removal of the LEFTWICH, PH.D. versed by the Supreme Court. This Circuit Confederate flag from the dome of the South authorized drug testing for pregnant women Carolina Statehouse. According to press ac- RAINBOW PUSH COALITION without their consent, which was reversed by counts of a hearing held in the case, Judge Chicago, IL, August 24, 2002. the Supreme Court. This Circuit ruled that Shedd made several derogatory comments Senator PATRICK LEAHY, the Equal Employment Opportunity Com- about opposition to the flag. First, he at- Member, U.S. Senate, Washington, DC. mission was limited to remedies contained in tempted to marginalize opponents to the flag DEAR SENATOR LEAHY: Let me lend my employee arbitration agreements, and again, by questioning whether the flag matters to voice of opposition to the chorus of dis- was reversed by the Supreme Court. The Cir- most South Carolinians. (It does, and thirty content surrounding the nomination of cuit also has been reversed recently in cap- percent of South Carolina’s population is Af- Judge Dennis Shedd to the Fourth Circuit ital habeas corpus cases and citizen suits rican American.) He also minimized the deep Court of Appeals. I urge you to oppose the under environmental laws. The Fourth Cir- racial symbolism of the flag by comparing it Shedd nomination, based on the merits, and cuit has issued numerous other opinions that to the Palmetto tree, which appears in South the merits alone. A seat on the Fourth Cir- are hostile to , women’s Carolina’s State flag. cuit is too important to the nation’s judici- rights, fair employment, and voting rights. Our membership in South Carolina, de- ary not to be heavily scrutinized. This is also the Court to which moderate serves to be represented on the Circuit by a As a native of South Carolina, I am deeply African American nominees were repeatedly nominee who has a record of judicial impar- disturbed by the direction taken by the denied membership. No fewer than four Afri- tiality, is committed to the progress made Fourth Circuit in recent years. As a Judicial can Americans were nominated to this Court on civil rights and individual liberties, and Circuit with considerable influence on the by President Clinton, only to have their has a deep respect for the responsibility of Supreme Court, those elevated to the Court nominations languish for years due to Sen- the federal judiciary to uphold that progress. should reflect the highest American ideals of atorial obstruction. Thus, if a nominee is to Dennis Shedd is not that nominee. We urge inclusion and equal protection under the be confirmed to this Court, the nominee you and the Senate Judiciary Committee to law. Moreover, the states included in the must be a jurist who will bring moderation vote against his nomination. Fourth Circuit are comprised of the highest percentage of African Americans, than any and ideological balance to this Court. It is Sincerely, other Circuit, thus judges on the Court must our strongly held view that this nominee is JAMES GALLMAN, be sensitive and respectful for the civil not Dennis Shedd. President. Judge Shedd’s judicial record reveals a rights laws for which we fought so hard. Mr. LEAHY. We received a letter Currently, the Fourth Circuit is the most deep and abiding hostility to civil rights extremist court in the nation on civil rights cases. A review of Shedd’s unpublished opin- from the Black Leadership Forum, issues, criminal justice issues, and those in- ions reveals that Judge Shedd has dismissed signed by many well-respected African volving the power of the federal government, all but very few of the civil rights cases com- Americans, including Joseph Lowery, and more than a dozen more inter- to enact legislation, which holds States ac- ing before him. In nearly thirty cases involv- countable for civil rights violations. The ing racial discrimination in employment, he nationally known figures, as well as nomination of Dennis Shedd threatens to granted summary judgment for the employer letters from other African American take the Court in a further extremist direc- in whole or in part in all but one case; most leaders. tion. For example, Judge Shedd’s opinion in of the cases were dismissed altogether. Many I ask unanimous consent that these the Condon v. Reno case suggests that he fa- of these cases were strong cases with compel- letters be printed in the RECORD. vors disempowering Congress. American ling evidence and litigated by experienced There being no objection, the mate- judges, and their rulings should protect civil rights lawyers. rial was ordered to be printed in the rights, rather than restrict the balance of Gender and disability discrimination cases power. before Judge Shedd fare no better. He has RECORD, as follows: To preserve this nation’s ideals of inclu- granted summary judgment on every sexual BLACK LEADERSHIP FORUM, INC., sion, and to ensure equal protection under harassment claim on which summary judg- Washington, DC, September 16, 2002. the law for all Americans, I urge you, and ment was requested. Collectively, these rul- Hon. ERNEST F. HOLLINGS, other members of the members of the Senate ings leave us with the distinct impression Member of the Senate, Senate Russell Office Judiciary Committee to vote ‘‘No’’ on the that, in Dennis Shedd’s view of the world, Building, Washington, DC. nomination of Dennis Shedd. discrimination does not exist, and just as im- DEAR SENATOR HOLLINGS: We are writing to Sincerely, portantly, a jury should never be asked even share with you a letter which the Black REVEREND JESSE L. JACKSON, SR. to decide that question. Leadership Forum, Inc. (BLF), whose mem- We are profoundly disturbed by the mount- bers are listed on the left side of this page, NATIONAL BAR ASSOCIATION, ing evidence of Judge Shedd’s zealous efforts delivered several weeks ago to members of Washington, DC, September 4, 2002. to assist the defense in civil rights cases. the Senate Judiciary Committee. The at- Re Nomination of Judge Shedd, United There are repeated instances of Judge tached letter strongly opposes the nomina- States Court of Appeals for the Fourth Shedd’s intervention in civil rights cases— tion of Judge Dennis Shedd to a seat on the Circuit. without prompting by the defendant—in Fourth Circuit Federal Court of Appeals, for Hon. PATRICK LEAHY, ways that are detrimental to the plaintiff the reasons stated in substantial detail. Chairman Senate Judiciary Committee, Dirksen case. In a number of cases, Judge Shedd, on It has come to our attention that you are Office Building, Washington, DC. his own motion, has questioned whether he actively supporting Mr. Shedd’s nomination DEAR SENATOR LEAHY: The National Bar should dismiss civil rights claims outright or and are aggressively pressing the Judiciary Association hereby submit this letter in grant summary judgment. He has invited de- Committee for speedy approval of a hearing strong opposition to the confirmation of fendants to file for attorneys’ fees and costs on his nomination by the full Senate. There- Dennis Shedd to the United States Court of against civil rights plaintiffs. These are not fore, we feel that it is urgent for you to be Appeals for the Fourth Circuit. We strongly the actions of an impartial decision-maker. directly informed by BLF of the bases for urge you to vote to defeat his appointment We are extremely concerned about Judge our objections to this nomination. We reflect to this critical Court. Shedd’s rulings promoting ‘‘States’ rights,’’ in this letter the deep concern in the African The National Bar Association, established and view these as a fundamental encroach- American community about this nomination in 1925 is the oldest and largest organization ment on Congress’s ability to enact civil because Mr. Shedd’s judicial record under- of minority attorneys, judges, legal scholars rights and other legislation. Judge Shedd has cuts our closely guarded values of equal jus- and law students in the United States and in a very restrictive view of Congressional tice and threatens the maintenance of our the world. During our 77 year history we power. He struck down the Driver’s Privacy civil rights advances and constitutional pro- strive to obtain equal justice for all persons Protection Act of 1994 as legislation beyond tections. within the jurisdiction of these United Congress’s power, although this legislation Conversations with numerous African States of America. Real diversity can only was an ‘‘anti-stalking’’ measure designed to Americans who also are resident-constitu- be achieved as a result of equal justice for all prohibit public disclosure of drivers’ license ents of your District, indicate that they, too, which directly results in equal opportunity. information. In an opinion authored by Chief believe that this nomination should not go Real diversity, equal justice, and equal op- Justice Rehnquist, the Supreme Court forward. We sincerely hope, therefore, that portunity does not currently exist in our fed- unanimously overturned Judge Shedd’s rul- we can meet with you regarding our objec- eral judiciary. ing and refuted his reasoning. This stands as tions to Mr. Shedd’s nomination and that The National Bar Association maintains a one of the few occasions in which the Su- until we have had this discussion, you will watchful eye on federal judicial nomina- preme Court rejected unanimously a holding forego any further actions supporting his tions, as part of its’ historical mission. We

VerDate 0ct 31 2002 01:31 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00023 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.009 S18PT1 S11254 CONGRESSIONAL RECORD — SENATE November 18, 2002 have a duty and obligation to support or op- can American federal judge in the state.’’ In cial mainstream. Given the importance of pose any nomination which directly affects that there are unquestionably ‘‘many, well- the Fourth Circuit to the African-American our struggle for equal justice and equal op- qualified African American . . . jurists’’ in community and the current ideological im- portunity for all. During these difficult South Carolina, this is rightly seen an unfair balance on the Court, it is imperative that times, the United States of America must and unequal treatment in the sight of fair any nominee to this Court be a jurist of mod- set an example to the world by assuring representation. Further, considering the ex- erate views who will protect the civil and equal justice and equal opportunity to a istent disproportionate representation of ju- constitutional rights of all Americans. Den- truly diverse nation. rist of Color, certainly an effort must be nis Shedd is not that nominee. The National Bar Association feels, con- made to insure that any South Carolina Above all, we are concerned that any nomi- firmation of Dennis Shedd to the United nominee be a strong advocate of civil and nee to the Fourth Circuit be committed to States Court of Appeals for the Fourth Cir- human rights. Rather, Judge Shedd’s per- the rigorous enforcement of federal civil cuit will severely undermine and inhibit its’ formance on the U.S. District Court for the rights laws. We are particularly troubled by goals of equal justice for all, equal oppor- District of South Carolina demonstrates Dennis Shedd’s record in this area. Through- tunity for all, and real diversity. In our opin- what could be construed as hostile to civil out his eleven years on the federal district ion the one thing which insulates the United and constitutional rights. court, Judge Shedd has demonstrated a pro- States of America from anarchy, civil strife, We have learned that Judge Shedd’s insen- pensity to rule against plaintiffs in civil etc. is our Construction (as currently amend- sitivity to fairness has been demonstrated in rights cases. Based on our review of Judge ed), which provides an open judiciary, where his review of employment discrimination Shedd’s record, we doubt seriously whether any citizen regardless of race, creed, color, cases brought by African Americans and in he can fairly and impartially adjudicate the gender, economic status, social status, etc. fact, women, even in such cases when the claims of persons protected by the federal can seek redress. Absent an open federal ju- Equal Opportunity Commission has found civil rights laws. diciary, citizens will seek other less civil ‘‘reasonable cause.’’ But, we have also found Despite the fact that employment dis- means to voice their concerns and seek re- that in furtherance of this questionable ac- crimination cases comprise a large portion of Judge Shedd’s civil rights docket, Judge dress. An open judiciary is the balance for tion, when white men bring cases of Shedd has allowed only few discrimination the scales of justice. ‘‘reverse’’ discrimination, those cases pro- plaintiffs to have their day in court. In al- The essential element of an open judiciary ceed. We also note that there have been con- most every case, Judge Shedd has dismissed is our constitutional right to trial by jury. cerns raised about the number of unpub- some or all of the claims of civil rights This right provides some assurance of fair lished opinion issued by the Judge and fur- plaintiffs before they have a chance to be and equitable treatment in resolution of dis- ther that such concerns regarding the deci- heard by the jury. By all evidences, Judge putes, without political influence of the gov- sions were reversed or vacated by the Fourth Shedd utilizes an extremely high threshold ernment. Therefore, we must oppose federal Circuit Court of Appeals. of evidence necessary to allow a discrimina- judicial nominees, when their actions or be- The Fourth Circuit must have a judge who tion claim to get to the jury. For example, in liefs, in any way reduce complete access to is mindful of the rightful place that African the one race discrimination case in which the courts, right to trial by jury, or in any Americans have in this nation, and be a Judge Shedd did not dismiss at least some of way discourage access and right to trial by strong advocate of civil rights, human rights the plaintiff’s claims, a White manager ter- jury. and constitutional rights. Any nominee minated an African-American female em- A review of Dennis Shedd’s record appears should have demonstrated his dedication to ployee after directing racial epithets at her to indicate a judicial philosophy to reduce such virtues and ideals. No other individuals in the presence of a co-worker. Even with and discourage access to the courts and exer- should be considered for this important posi- this evidence, Judge Shedd said it was an cise of each citizens right to trial by jury. tion. ‘‘extremely close question’’ whether the case For these reasons, the National Bar Associa- For these reasons among others raised by should be dismissed. Given Judge Shedd’s tion strongly opposes nomination of Dennis our South Carolina Legislative Black Cau- characterization of the evidence in this case, Shedd to the United States Court of Appeals cus, we cannot support the nomination of we question his commitment to following for the Fourth Circuit. Judge Dennis Shedd for the Fourth Circuit decades of case law recognizing that dis- Sincerely, and would ask that the opinion of our body crimination often occurs in much more sub- MALCOLM S. ROBINSON, be strongly considered in this matter. tle but no less pernicious forms and there- President. Should you have any questions, or require additional comment, please contact me. fore may proven circumstantially. In con- Very truly yours, trast to Judge Shedd’s systematic dismissal THE NATIONAL BLACK CAUCUS JAMES L. THOMAS, of claims by African-American plaintiffs, OF STATE LEGISLATORS, Judge Shedd has allowed ‘‘reverse discrimi- Washington, DC, September 19, 2002. President. nation’’ claims by White men to proceed to Re Fourth Circuit Nomination of Judge CONGRESSIONAL BLACK CAUCUS trial in four of the five cases in which sum- Shedd. OF THE , mary judgment was requested. Hon. PATRICK J. LEAHY, Washington, DC, July 26, 2002. Also, in a number of cases, Judge Shedd U.S. Senate, Chair, Committee on the Judiciary, Hon. PATRICK LEAHY, has overruled a magistrate’s recommenda- Dirksen Senate Office Building, Wash- Chairman, Senate Judiciary Committee, Wash- tion to allow claims to be tried to a jury. In ington, DC. ington, DC. one case, a magistrate concluded that a fe- DEAR SENATOR LEAHY: The National Black DEAR SENATOR LEAHY: On behalf of the male corrections officer could pursue her Caucus of State Legislators (NBCSL) is the Congressional Black Caucus, we write to ex- claim for ‘‘outrageous conduct’’ where her body that represents some 600 African Amer- press our strong opposition to the confirma- supervisor subjected her to repeated requests ican state legislators in 44 states, the Dis- tion of Dennis Shedd to the United States for sex, lewd language, and physical contact, trict of Columbia and the U.S. Virgin Is- Court of Appeals for the Fourth Circuit. We and told her co-workers that he was having lands. Last year, we celebrated our 25th year urge you to vote to defeat his appointment an affair with her and that she was pregnant of involvement and dedication to many of to this critical court. with his child. The conduct occurred not the most pressing social issues and policies The Fourth Circuit has the highest per- only in the workplace but by telephoning the that impact our legislators’ districts and the centage of African-American residents of plaintiff at home and by visits to the plain- nation at large. Our commitment is to our any federal circuit in the nation. As you tiff’s house, which the supervisor said he constituents as well as the national agenda. know, President Clinton tried in vain for could visit ‘‘anytime he wanted.’’ Judge Our dedicated work is to maintain the high- many years to integrate the Fourth Circuit Shedd dismissed the claim, stating that est values of civil and human rights insuring by nominating no fewer than four moderate while the defendant’s actions were that African Americans are a fair and rep- African-Americans to the court, only to see ‘‘certainly disgusting and degrading,’’ they resentative part of the political and social their nominations languish. James Beaty did not rise to the level of outrageous con- equations of this great nation. and James Wynn from North Carolina, Andre duct. In their letter to you, dated September 4, Davis from Maryland and Roger Gregory Judge Shedd’s narrow and restrictive view 2002, members of the South Carolina Legisla- from Virginia were never given hearings be- of civil rights claims is also evidenced by his tive Black Caucus have spoken clearly and fore the Judiciary Committee at any time dismissal of several cases in which the Equal definitively in opposing the nomination of during the Clinton presidency. It was not Employment Opportunity Commission had Judge Dennis Shedd to the Fourth Circuit. until President Clinton took the extraor- found ‘‘reasonable cause’’ to believe that dis- In reviewing the information presented dinary step of giving Roger Gregory a recess crimination occurred. A finding of therein and having also researched the his- appointment in the final days of his Presi- ‘‘reasonable cause’’ by the EEOC is ex- tory and record of Judge Shedd, we find it dency that the last all-White circuit court in tremely rare (occurring in fewer than 10 per- woefully deficient regarding the issues of the nation was finally desegregated. cent of the cases filed). Thus, the fact that fairness, equality and justice. Moreover, as The Fourth Circuit is also the most con- Judge Shedd has refused to allow many of has been pointed out by our colleagues in servative of the federal circuits. Its rulings these claims to get to the jury strongly sug- South Carolina ‘‘African Americans con- on the rights of those accused of crimes, em- gests that Judge Shedd utilizes an exceed- stitute a full one-third of South Carolina’s ployees who face discrimination, and individ- ingly high threshold for proving unlawful population yet there is only one active Afri- uals with disabilities are far outside the judi- discrimination. The endorsement of such a

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.038 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11255 restrictive standard that is far outside the That’s what’s going on in the law.’’ In con- fense and Educational Fund, in the in- mainstream of federal jurisprudence has dev- trast, when the defense attorney was con- terest of many Latinos in the Fourth astating implications for all civil rights victed of perjury for denying he leaked the Circuit, expressing opposition to Judge plaintiffs if Judge Shedd is confirmed to the videotape to the press after learning of its Fourth Circuit. existence before trial, Judge Shedd sen- Shedd as well as correspondence from At his June 27 hearing, Judge Shedd admit- tenced the lawyer to prison and a $20,000 fine, others expressing concern. ted that, during his eleven years on the accompanied by a lecture about the serious I ask unanimous consent that these bench, a plaintiff has never won an employ- consequences of committing perjury. be printed in the RECORD. ment discrimination jury trial in his court. Judge Shedd has also exhibited a high level He defended this record by asserting that he of insensitivity on issues of race. Judge There being no objection, the letter could not recall a plaintiff ever winning a Shedd made several insensitive comments as was ordered to be printed in the jury trial in a discrimination case in any he dismissed a lawsuit aimed at removing RECORD, as follows: court in South Carolina. However, we have the Confederate battle flag from the South MEXICAN AMERICAN LEGAL subsequently learned that during Shedd’s Carolina statehouse dome. According to DEFENSE AND EDUCATIONAL FUND, tenure on the bench, there have been at least press accounts, Judge Shedd suggested that Washington, DC, September 30, 2002. twenty-one jury verdicts favorable to dis- South Carolinians—thirty percent of whom crimination plaintiffs in other federal courts are African-American—‘‘don’t care if that DEAR SENATE JUDICIARY COMMITTEE MEM- in South Carolina, yielding over $7 million in flag flies or not.’’ (‘‘Judge Dismisses Most BER: On behalf of the Mexican American damages. Shedd’s lack of awareness of the Flag Defendants, The Greenville News, June Legal Defense and Educational Fund outcome of these numerous cases evidences a 11, 1994). He also analogized the Confederate (MALDEF), I urge you to oppose the nomina- troubling indifference toward the type of battle flag, to many a symbol of support for tion of Dennis Shedd to the 4th Circuit Court civil rights cases with which, by virtue of his slavery and racist acts of terror directed at of Appeals. MALDEF is a Latino civil rights docket, he should be the most familiar. African-Americans, to the Palmetto tree, organization that was founded in Texas in Another area of grave concern to us is which is on the State flag: ‘‘What about the 1968. Since that time, we have expanded our Judge Shedd’s narrow view of Congressional Palmetto tree?’’ What if that reminds me work across the nation and represent all power to enact protective legislation. We be- that Palmetto trees were cut down to make Latinos. In our more recent history, we lieve that Judge Shedd has the worst fed- Fort Moultrie and that offends me?’’ (‘‘U.S. opened a community outreach office on the eralism record of any nominee considered by Judge Dims Hope of Battle Flag’s Foes,’’ The census in , Georgia prior to the 2000 the Judiciary Committee thus far. At the State, June 11, 1994.) It is shocking that census. Due to the growth of the Latino com- same time, the Fourth Circuit has been the Judge Shedd, who was raised in South Caro- munity in the Southeast and the pressing most active federal circuit in curtailing fed- lina during the 1950s and 1960s, could com- legal needs of our community in that region, eral power, invalidating many portions of pare—even hypothetically—being ‘‘offended’’ we expanded our office this year into a full important federal legislation in recent years. by the representation of the Palmetto tree Judge Shedd’s record in this area signals he regional office handling litigation, advocacy to the reaction of the African-American and community education within the 4th will join this Circuit’s aggressive efforts to community to the Confederate battle flag. alter the balance of federal and State power Circuit states of Maryland, North Carolina, Dennis Shedd’s opinions in his eleven years in a way that threatens enforcement of our South Carolina, Virginia, and West Virginia. on the federal bench reflect hostility toward most cherished civil rights laws. plaintiffs in civil rights cases, a desire to Many people still are not aware of the Judge Shedd authored the original district limit Congress’s authority to enact legisla- rapid growth of the Latino community in court opinion in Condon v. Reno, striking tion that is applicable to the States, and a this region of the country. The following is a down the Driver’s Privacy Protection Act sample of the Latino growth rates over that based on his belief that the federal govern- general insensitivity on issues of race. The Fourth Circuit desperately requires a voice the last decade in 4th Circuit states. In ment did not have the power to require Maryland, Howard County’s Latino popu- States to ensure that State driver’s license of moderation and commitment to core civil and human rights values. We believe that lation grew at a rate of 104%, Anne Arundel records would remain private. Although the County saw its Latino population grow at a Fourth Circuit affirmed Judge Shedd’s deci- Judge Shedd is not that voice and that the Committee should therefore reject his nomi- rate of 76%, Baltimore County’s Latino pop- sion, the Supreme Court unanimously re- ulation grew by 65%, and Prince George’s versed the holding in a decision by Chief Jus- nation to this important court. Sincerely, County experienced 37% growth of Latinos. tice Rehnquist. In an unpublished opinion, , Chair; In Virginia, Prince William County’s Latino which usually signifies a routine decision, ; population grew by 94%, Fairfax County ex- Judge Shedd struck down part of the Family E. Towns; perienced 71% growth of the Latino popu- and Medical Leave Act, holding that the Stephanie Tubbs Jones; lation, Virginia Beach City’s Latino popu- Eleventh Amendment doctrine of state sov- James E. Clyburn; lation grew by 65%, and Arlington county ex- ereign immunity prevents an employee from Albert R. Wynn; perienced 46% Latino growth. In North Caro- suing a State agency for a violation of that Corrine Brown; lina, Wake County’s Latino population grew statute. This issue—because it calls into Barbara Lee; by 190%, Mecklenburg County saw its Latino question Congress’s power to remedy sex dis- Sheila Jackson-Lee; population grow by 163%, and Cumberland crimination in the workplace—has profound Bobby L. Rush; County experienced Latino growth at a rate implications for Congress’s authority under Elijah E. Cummings; of 97% in the last decade. In South Carolina, Section 5 of the 14th Amendment. Melvin L. Watt; Richland County saw its Latino population Judge Shedd has demonstrated a reluc- Earl F. Hilliard; grow at a rate of 66%. tance to sanction law enforcement for cross- Danny K. Davis; ing the line. In a recent criminal case, a dep- Eva M. Clayton; In addition, much of the Latino growth in uty sheriff and a State prosecutor videotaped Julia Carson; these states is being driven by the movement a constitutionally protected conversation William J. Jefferson; of Latino immigrants. What many of these between a lawyer and a defendant charged Gregory W. Meeks; Latino immigrants face in these south- with a capital crime. The defendant was con- Donald M. Payne; eastern states are barriers to housing, jobs, victed in state court, but the South Carolina John Lewis; education, and health, as well as targeting Supreme Court overturned the conviction on Sanford D. Bishop, Jr.; by local law enforcement similar to what the basis of the videotape, calling it ‘‘an af- Benny G. Thompson; many Latino immigrants faced decades ago front to the integrity of the judicial sys- Carrie P. Meek; in states like California, Texas and New tem,’’ and stating that ‘‘[t]he right to coun- Alcee L. Hastings; York. While barriers and improper law en- sel would be meaningless without the protec- Diane E. Watson; forcement tactics still occur in states like tion of free and open communication be- Chaka Fattah; California and New York, these traditionally tween client and counsel.’’ Judge Shedd pre- Wm. Lacy Clay; high-immigrant states also now have a built- sided over the federal cases arising from a Major R. Owens; in infrastructure to serve the needs of immi- ’s investigation of the matter. Carolyn C. Kilpatrick; grants and help them find recourse if their When the deputy offered a guilty plea, Judge Maxine Waters; rights are trampled upon. Unfortunately, Shedd reportedly questioned it because he Juanita Millender-McDonald; similar infrastructures do not exist in most did not believe a civil rights violation oc- Jesse Jackson, Jr.; of the region covered by the 4th Circuit. As curred. Judge Shedd imposed only a $250 fine Harold E. Ford, Jr.; such, ensuring that only nominees who will on the deputy and remarked at his sen- Cynthia McKinney; be fair to the new Latino community in the tencing hearing that ‘‘[the deputy] is caught C.B. Rangel. southeast is particularly important. up in a situation in which there’s at least part of the criminal defense bar trying to get Mr. LEAHY. We received a letter MALDEF’s evaluation of Dennis Shedd un- prosecutors and law enforcement punished. from the Mexican American Legal De- covered a demonstrated lack of commitment

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00025 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.040 S18PT1 S11256 CONGRESSIONAL RECORD — SENATE November 18, 2002 to protect the civil rights of ordinary resi- NAACP of Hilton Head Island/Bluffton, for the American Way, American Association dents of the United States and to preserve South Carolina, NAACP, August 24, 2002. of University Women, Feminist Majority, and expand the progress that has been made NAACP of Moncks Corner, South Carolina, ADA Watch, National Partnership for on civil rights and individual liberties. In August 7, 2002. Women and Families, National Council of every respect, Dennis Shedd has dem- NAACP of Kershaw, South Carolina, Sep- Jewish Women, National Organization for onstrated that he would likely decide cases tember 17, 2002. Women, AFL–CIO, NOW Legal Defense and in a manner that run counter to the core NAACP of Clarendon County Branch, Au- Education Fund, and Disability Rights Edu- principles and rights we believe are nec- gust 12, 2002. cation and Defense Fund. essary to protect Latinos, particularly the Urban League of the Upstate, Inc., South ELECTED OFFICIALS most vulnerable who live within the 4th Cir- Carolina, September 24, 2002. National Black Caucus of State Legisla- cuit. NAACP of North Carolina, June 24, 2002; tors, September 25, 2002. Throughout his eleven years on the federal June 26, 2002. South Carolina Legislative Black Caucus, district court, Judge Shedd has dismissed al- NAACP of Maryland State Conference, September 4, 2002. most all of the civil rights cases that have September 4, 2002. North Carolina Legislative Black Caucus, come before him; thus, preventing the merits Progressive Maryland, August 8, 2002. September 26, 2002. NAACP of California State Conference, of these cases to be heard by a jury. Based on Legislative Black Caucus of Maryland, September 9, 2002. his handling of race, gender, age, and dis- Inc., September 9, 2002. NAACP of Mississippi State Conference, ability claims, we conclude that Judge Wisconsin Legislative Black & Hispanic August 24, 2002. Shedd would not give Latino plaintiffs seek- Caucus, August 21, 2002. NAACP of Delaware State Conference, Au- ing legal remedies for civil rights violations Margaret Rose Henry, State Senator, State gust 14, 2002. a fair day in court. of Delaware, September 19, 2002, November In the area of upholding federal statutes, Public Justice Center, October 7, 2002. 12, 2002. NAACP of West Virginia State Conference, Judge Shedd’s rulings regarding federalism Maryland State Delegate Howard ‘‘Pete’’ August 14, 2002. are also troubling and follow the Fourth Cir- Rawlings, August 21, 2002. cuit’s bold attempts to narrow the powers of Quad County (IL) Urban League, Sep- Congressional Black Caucus, July 26, 2002, Congress in its protection of the rights of all tember 27, 2002. October 2, 2002. Americans. We conclude that Judge Shedd, Birmingham Urban League, Inc., Sep- as a judge on the circuit court, would con- tember 24, 2002. BAR ASSOCIATIONS tinue attempts to limit the powers of Con- Advocates for Ohioans with Disabilities, National Bar Association, September 4, gress to pass legislation that protects the August 31, 2002. 2002. rights of Latinos and other protected groups. National Organization for Women, Western Old Dominion Bar Association, September Judge Shedd has also exhibited a high level Wayne County (MI), October 8, 2002. 11, 2002. of insensitivity or poor judgment in com- NATIONAL CIVIL RIGHTS GROUPS North Carolina Association of Black Law- menting on issues about race—while serving yers, August 30, 2002. Black Leadership Forum, September 16, as a federal district judge in a state with a Alliance of Black Women Attorneys of 2002, November 12, 2002 (Dr. Joseph E. Low- population that is 30% African-American. Maryland, Inc., August 30, 2002. ery). For example, in a recent unpublished case, National Employment Lawyers Associa- NAACP, September 17, 2002 (Kweisi Judge Shedd was reported in the press as tion, September 17, 2002, November 15, 2002. Mfume). making several insensitive comments as he North Carolina Academy of Trial Lawyers, Mexican American Legal Defense and Edu- September 26, 2002. dismissed a lawsuit aimed at removing the cational Fund, Sept. 30, 2002 (Antonia Her- Confederate battle flag from the South Caro- nandez). LAW PROFESSORS lina statehouse dome. People for the American Way, June 24, UNC—Chapel Hill School of Law: John Dennis Shedd’s eleven-year record as a fed- 2002; September 4, 2002. Carles Boger, Lissa L. Broome, Kenneth S. eral district judge reflects hostility towards American Association of University Broun, John O. Calmore, Charles E. Daye, plaintiffs in civil rights cases, a desire to Women, June 20, 2002; November 14, 2002. Eugene Gressman, Ann Hubbard, Daniel H. limit authority to enact legislation that is National Council of Jewish Women, August Pollitt, and Marilyn V. Yarbrough. applicable to states, and insensitivity to 15, 2002. Duke University School of Law: Chris- issues of discrimination. Further, Judge Rainbow/Push Coalition, August 24, 2002 topher H. Schroeder and Jerome Culp. Shedd’s extremist views on these issues (Reverend Jesse L. Jackson, Sr.). North Carolina Central University School render him unsuitable to serve on the Fourth , November 15, 2002 of Law: Renee F. Hill, David A. Green, Irving Circuit. For these reasons, we urge you to (Nan Aron). Joyner, Nichelle J. Perry, and Fred J. Wil- oppose his nomination to the Fourth Circuit People for the American Way, November liams. Court of Appeals. 15, 2002 (Ralph Neas). LAW SCHOOL STUDENTS Sincerely, Leadership Conference on Civil Rights & ANTONIA HERNANDEZ, Howard University School of Law Stu- Alliance for Justice, July 11, 2002, coalition President and General Counsel. dents, September 11, 2002, signed by 58 How- letter signed by the following groups: Alli- ard University Law Students. Mr. LEAHY. Mr. President, hundreds, ance for Justice and Leadership Conference ATTORNEYS probably thousands, of letters from on Civil Rights August 30, 2002, NARAL, South Carolina citizens arrived in my NAACP Legal Defense and Educational Tom Turnipseed, Columbia, South Caro- office urging a closer look at Judge Fund, NAACP, American Association of Uni- lina, June 26, 2002. Shedd’s nomination to serve in the versity Women, ADA Watch, National Coun- Walt Auvil, Attorney, Parkersburg, West Fourth Circuit. cil of Jewish Women, AFL–CIO, NOW Legal Virginia, June 19, 2002. Neil Bonney, Attorney, Virginia Beach, So we don’t have a CONGRESSIONAL Defense and Education Fund, People for the American Way, Feminist Majority, National Virginia, June 20, 2002. RECORD tomorrow morning that will be Timothy E. Cupp, Attorney, Harrisonburg, several hundred pages long, I will not Partnership for Women and Families, Na- tional Organization for Women, and Dis- Virginia, June 21, 2002. include all of them with my remarks ability Rights Education and Defense Fund. Devarieste Curry, August 31, 2002. today. However, I ask unanimous con- Alliance for Justice and Leadership Con- Joseph D. Garrison, Attorney, New Haven, sent that a list of the letters of opposi- ference on Civil Rights, September 18, 2002, Connecticut, June 18, 2002. tion to the nomination of Dennis Shedd coalition letter signed by the following Stephen B. Lebau, Richard P. Neuworth, to the Fourth Circuit Court of Appeals groups: Leadership Conference on Civil Anna L. Jefferson, Carrie D. Huggins, Attor- neys, Baltimore, MD, June 20, 2002. be printed in the RECORD. Rights, Alliance for Justice, People for the American Way, NARAL, Planned Parenthood David M. Melnick, Attorney, Rockville, There being no objection, the mate- MD, June 20, 2002. rial was ordered to be printed in the Federation of American, Human Rights Cam- paign, National Organization for Women, Gabriel A. Terrasa, Attorney, Owings RECORD, as follows: American Association of University Women, Mills, MD, June 20, 2002. Cathy Ventrell-Monsees, Attorney, Chevy LETTERS OF OPPOSITION TO THE NOMINATION NOW Legal Defense and Education Fund, Na- Chase, MD, June 20, 2002. OF DENNIS SHEDD TO THE 4TH CIRCUIT COURT tional Family Planning and Reproductive Salb, Shannon, Attorney, Washington, DC, OF APPEALS Health Association, National Council of Jew- September 19, 2002. LOCAL CIVIL RIGHTS GROUPS ish Women, National Abortion Federation, NAACP of South Carolina State Con- and The Feminist Majority. RELIGIOUS LEADERS ference, June 24, 2002; May 21, 2002. Alliance for Justice and Leadership Con- South Carolinians, September 30, 2002. NAACP of Andrews Branch, August 7, 2002. feree on Civil Rights, November 15, 2002, coa- Ms. Elvira Faulkner—McIlwain, Lancaster NAACP of Eutawville, South Carolina, Au- lition letter signed by the following groups: District Pee Dee Conf. AME Zion Church. gust 7, 2002. Leadership Conference on Civil Rights, Alli- Rev. Dr. Lloyd Snipes, Presiding Elder, NAACP of Newberry, South Carolina, Au- ance for Justice, NARAL, NAACP Legal De- Lancaster District Pee Dee Conf. AME Zion gust 7, 2002. fense and Educational Fund, NAACP, People Church.

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.011 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11257 Rev. Matthew L. Browning, Pastor, David elevated to a court that is only one even wait for the company to raise Stand AME Zion Church. step below the U.S. Supreme Court and these grounds. He raised it for them Rev. Dr. Reid R. White, Paster, El Bethel whether he should be entrusted with and summarily ruled in their behalf on AME Zion Church. Rev. Harold Jones, White Oak AME Zion deciding appeals there. an issue they had not even raised. Church. Every litigant, every defendant, In Shults v. Denny’s Restaurant, a Rev. Dr. Marion Wilson, Steele Hill AME every person, every plaintiff who comes case involving a claims of employment Zion Church. before a judge in the Federal courts discrimination under the Americans Rev. R.A. Morrison, Pastor, Salem AME must be assured that the judge will with Disabilties Act, Judge Shedd Zion Church. give a fair and unbiased hearing to the raised an issue on his own, saying he Rev. Albert Young, Pastor, Mt. Zion AME case at hand. The test of a judge, espe- was doing it ‘‘for possible resolution by Zion Church. Rev. Theodis Ingram, Pastor, Warner Tem- cially a lifetime appointment, goes be- summary judgment.’’ In other words, ple AME Zion Church. yond just the question of competence. putting himself on the side of Denny’s Rev. Henry I. Dale, Pastor, North Corner When we are talking about our Federal and in essence advocating for their in- AME Zion Church. courts—remember, our Federal courts terests. Rev. Eldren D. Morrison, Pastor, Pleasant are admired around the world for their Again, deciding how best the defense Hill AME Zion Church. independence and their fairness, but should execute their litigation strat- Rev. Beatrice H. Massey, Pastor, Mt. Nebo AME Zion Church. that means that whether you or I, or egy, he noted that three of the defenses Rev. Dorothy N. Wallace, Pastor, New anybody else walks into a Federal asserted are potentially dispositive of United AME Zion Church. court, no matter what our case is, certain claims—in other words, three Rev. Deborah Waddell, Pastor, Gold Hill whether we are plaintiff or a defendant, of the defenses could settle the case AME Zion Church. whether we are the Government or one right there—and said ‘‘these issues do Rev. Thomas R. Moore, Mt Carmel, AME responding to the Government, wheth- not appear to necessitate much, if any, Zion Church. Rev. Gloria Stover, Pastor, Greater Frazier er we are rich or poor, no matter what discovery on the part of the plaintiff.’’ AME Zion Church. our political background is, when we He mentioned, almost as an after- Rev. Toby L. Johnson, Pastor, Clinton walk into the courtroom door, we have thought at the close of his order, that Chapel AME Zion Church. to be able to have confidence that this defendants ‘‘may also file a memo- Rev. Len Clark, Pastor, Bingham Chapel judge, this Federal judge, will hear our randum’’ if they want. AME Zion Church. case—he or she will hear it fairly. It does not help when you are liti- Rev. James R. Thomas Jr., Pastor, Camp Litigants in our federal courts should gating a case if you know the judge has Creek AME Zion Church. Rev. James E. Gordon, Pastor, St. Paul be able to have confidence to say and already made up his mind for the other AME Zion Church. believe that it makes no difference side. It helps even less if, having made Rev. Dr. Roy H. Brice, Pastor, Mt. Moriah what my political background is, what it clear he has made up his mind for AME Zion Church. the color of my skin is, where I am the other side, he actually steps in and Rev. Albert Tucker, Pastor, Centennial from, or anything else. I will win or I helps the other side. AME Zion Church. will lose based on the merits of the What kind of an image does that give Rev. Roosevelt Alexander, Mt. Tabor, AME to people who are expecting fairness Zion Church. case, not based on the individual preju- dices of the judge. and impartiality in our Federal courts? CITIZENS Unfortunately, when one looks at What does that say to people who are Marlin Maddoux, Host, Point of View Judge Shedd’s record, one has to say being told by all of us, as we always Radio Talk Show. Gladys W. Wallace, Elgin, SC, April 1, 2002. that somebody coming in to his court are, that our Federal courts are impar- Kathy Moore, Charleston, SC, June 24, 2002. could not have that assurance. One has tial? What does it say when they watch Salvador V. Acosta, Jr., North Charleston, to say unless they fit into a narrow cases being tried by a judge who takes SC, June 21, 2002. category that Judge Shedd has rou- sides openly and clearly and continu- Henderson and Gwen Beavers, Charlottes- tinely favored in his cases, you are ously in his courtroom? ville, VA, August 29, 2002. probably pretty unlucky to be before In Lowery v. Seamless Sensations, a Florence Brandenburg, Shedrick Knox, Bir- case where an African American mingham, AL August 1, 2002. his court. Barbara Burgess, Marshall, Virginia, No- Let me go through these concerns in woman brought claims under Title VII vember 14, 2002. a little more detail. First, Judge Shedd for employment discrimination on the James T. McLawhorn, October 2, 2002. has a reputation for assisting in the de- basis of race, Judge Shedd turned to Judith Polson, New York, NY, September fense in civil cases, raising issues sua the person she was suing and said: 14, 2002. sponte (on his own motion, without a Make a motion to dismiss. Then he Gloria Washington, Stone Mountain, GA, motion from the lawyers for the liti- quickly granted it. I bet you that September 11, 2002. Keith Washington, Stone Mountain, GA, gants), in essence making himself the woman walked out of there wondering September 11, 2002. third litigator and not leaving it up to why she ever even bothered coming And letters from more than 1,200 other the parties—the plaintiff or defend- into court when it was so obvious the citizens. ant—to litigate the case, but actually judge made up his mind. Mr. LEAHY. Mr. President, there is a stepping in and taking sides and mak- Take Coker v. Wal-Mart, in which it reason, when you look at Judge ing it very clear to the people in the appears the judge wanted to get rid of Shedd’s record, that many believe he courtroom that he is taking sides. this case. He wanted to make a motion has a reputation for assisting the de- He has ordered defendants to make on his own to send it back to the State fense in civil cases and for ruling for motions for summary judgment wheth- court, but he did ask Wal-Mart: Give the defense in employment civil rights er they wanted or planned to or not. He me a memo to show me I can really do cases, for example. His holding in has resolved issues before they are even that which, of course, is what Wal- Condon v. Reno shows that his view of raised and fully briefed, having made Mart wanted. the constitutional allocation of powers up his mind before the case is even In Gilmore v. Ford Motor Company, a between the States and the, Federal heard, having made up his mind on be- product liability case, Judge Shedd Government goes even beyond what we half of one of the litigants. This shows outlined four factors he must consider have seen from a very conservative ac- a pattern of a judge injecting himself before dismissing an action for failure tivist Supreme Court across the street. into litigation, particularly in the to prosecute. He found that the defend- They are busily rewriting the law in shoes of corporations and others if they ants had not set forth evidence ad- this fundamental area. And Judge are being sued, if they are defendants dressing these four factors, but never- Shedd goes beyond the U.S. Supreme in civil litigation. Here are some spe- theless went on to ‘‘glean certain perti- Court. His actions in a case involving cific cases that illustrate these inter- nent information from the record.’’ serious prosecutorial and police mis- ventions by Judge Shedd to the benefit In other words, he said: Here is what conduct also raise serious questions of one of the parties. you need to win this case. You have not about his fairness in criminal cases. In McCarter v. RHNB, a case alleging raised these issues yourself. I have His record as a whole raises serious gender discrimination, Judge Shedd gleaned them from somewhere in the concerns about whether he should be granted summary judgment. He did not record. So do not worry, buddies, I

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00027 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.019 S18PT1 S11258 CONGRESSIONAL RECORD — SENATE November 18, 2002 have taken care of you; I am on your that court, you are not going to get a JUDGE SHEDD FREQUENTLY IGNORED THE FIND- side. I will argue your case for you and, hearing favorable to you—actually, an INGS OF HIS OWN MAGISTRATE JUDGE IN in doing this, I can dismiss the case overwhelming feeling that the hearings ORDER TO RULE AGAINST EMPLOYEES against you. will not be fair. They will be slanted to In the federal district courts, Magistrate You almost wonder if the winning one side. That is not how we maintain Judges often evaluate a case and recommend side feels they should pay their attor- to the judge whether the plaintiff has pre- the integrity and independence of the sented sufficient evidence for the case to go neys when the judge has stepped in to Federal bench. For example, the Na- to trial. The decisions of Magistrate Judges help them win the case. tional Employment Lawyers Associa- are typically affirmed, as the Magistrate In Simmons v. Coastal Contractors, tion reviewed Judge Shedd’s public Judge usually has had an opportunity to both parties were appearing without a record. They sent a letter opposing his fully review the facts of the case. Judge lawyer, or pro se. Judge Shedd noted confirmation. I ask unanimous consent Shedd has frequently ignored uncontradicted that ‘‘this civil action . . . is before the that the letter be printed in the evidence and overruled the recommendations of Magistrate Judges. court sua sponte.’’ While he must have RECORD. meant the motion itself was before him In Cleary v. Nationwide Mutual Insurance There being no objection, the mate- Co., the Magistrate Judge has found that sua sponte, or on his own motion, he rial was ordered to be printed in the there was sufficient evidence for a trial brought up deficiencies in the plain- RECORD, as follows: where a female employee was fired in retal- tiff’s complaint and ordered that an NATIONAL EMPLOYMENT iation for filing a sexual harassment case. amended complaint be filed or the ac- LAWYERS ASSOCIATION, The employer forced the female employee to tion would be dismissed on the judge’s September 17, 2002. take administrative leave and then fired her own motion. In other words, he essen- Re Dennis Sheed—Appointee for United after she filed a sexual harassment claim, tially indicated I am going to decide States Court of Appeals. but the harasser was allowed to keep work- the case. You litigants go have coffee if Hon. PATRICK J. LEAHY, ing. Judge Shedd rejected the Magistrate Judge’s recommendation, and refused to let you want, but I am going to make up Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. the case go to trial. By viewing each of the my mind, make your arguments for seven or eight incidents of harassment as a DEAR SENATOR LEAHY: On behalf of the Na- you, and settle the case for you. separate incident rather than as a whole, In another substitution for his stra- tional Employment Lawyers Association (NELA), I am writing you to express our or- Judge Shedd concluded that there was no tegic litigation judgment for that of ganization’s strong opposition to the nomi- evidence that the female employee was the defendants, Tessman v. Island nation of Judge Dennis Shedd to the Fourth forced to take leave and then terminated for Ford-Lincoln-Mercury, Judge Shedd Circuit Court of Appeals. We urge the mem- retaliatory reasons (contrary to the Mag- threatened to dismiss the plaintiff’s bers of the Senate Judiciary Committee to istrate Judge’s findings). Judge Shedd’s anal- Title VII action on his own unless the vote against his nomination. We further urge ysis—viewing each incident in isolation—is the Administration to nominate a person for contrary to established Supreme Court plaintiff could show cause why he precedent. Judge Shedd also excused some of should not. He said the plaintiff had that seat who will apply federal employment and labor laws in a fair and even-handed the defendant’s acts as mere ‘‘mistakes.’’ not alleged that she had presented her In Dinkins v. Blackman, Judge Shedd re- manner, and who will interpret those laws in jected a magistrate Judge’s recommendation claim to, or received a right-to-sue let- keeping with the intent of Congress. ter from the EEOC and decided that and granted summary judgment on a sexual rather than letting the defense move DURING HIS HEARING, JUDGE SHEDD OFFERED harassment claim and other claims by the for dismissal, he would do so on his MISLEADING INFORMATION employee, even though Judge Shedd found that the sexual harassment was ‘‘gross be- own. In other words: I am going to Judge Shedd’s employment law decisions have been, almost without exception, in havior.’’ Judge Shedd refused to give the em- make the arguments on the other side ployee the opportunity to seek further infor- and get rid of the case. favor of employers. At his Committee hear- ing earlier this year, Judge Shedd claimed mation for her case in discovery, ignoring a Additionally, of the 11 cases relating that was unable to recall any employment new Supreme Court case which was decided to employment discrimination avail- case in his courtroom that had gone to trial after Dinkins filed her case. able in the public record, Judge Shedd resulted in a verdict or judgment in favor of In Ellis v. Speaks Oil Co., Judge Shedd held for the employer in every single the plaintiff. By way of explanation, Judge granted summary judgment in favor of the one, including one case where he sat by Shedd told the Committee that no judge in employer on an age discrimination claim, designation on the Fourth Circuit. his district had an employment case where contrary to the Magistrate Judge’s rec- the employee had won at trial. This state- ommendation, because he concluded that the Judge Shedd granted summary judg- plaintiff, a truck driver, was not performing ment after summary judgment and ment was untrue, and several other judges in the district presided over trials which were his duties up to his employer’s expectations found for the employer and against the won by the plaintiffs. Shedd’s statement is of driving two trips per day. He disregarded employee in a wide range of employ- not only indicative of his anti-employee evidence found by the Magistrate Judge ment discrimination claims. bias, but also demonstrates a cavalier atti- which showed that the plaintiff, who was 62 Of the 54 fair employment cases in- tude toward the truth and a willingness to years old, was driving two trips per day until cluded in the unpublished opinions he offer erroneous information to the Com- the company let him go. provided to the Committee, more than mittee. In Roberts v. Defender Services, Judge Shedd ignored the Magistrate Judge’s recommenda- In addition, NELA is concerned that Judge 80 percent of them grant summary tion to deny the employer’s motion for sum- Shedd may not have opened his entire judi- judgment to the defendants. That does mary judgment in a sexual harassment case. cial record for scrutiny by the Senate Judici- not appear to be a fair record. It Judge Shedd agreed that the harassment in ary Committee and the public. Shedd turned strongly indicates plaintiffs are not re- this case was severe, but ruled that the over unpublished opinions only after his woman did not prove that she was really ceiving fair hearings. Employment hearing, and never provided the Committee upset by the harassment, which should have cases are often fact-specific disputes with a full docket of his cases. Without a full been a question for the jury to decide. that would not seem likely to result in docket, it is impossible to determine wheth- an overwhelming majority of summary er all of Judge Shedd’s unpublished opinions JUDGE SHEDD IGNORED CLEAR AND ESTAB- judgment decisions for defendants be- have been released. Your Committee is con- LISHED PRECEDENT IN ORDER TO RULE IN FAVOR OF CORPORATE EMPLOYERS AGAINST cause under the summary judgment sidering Judge Shedd’s lifetime appointment INDIVIDUAL EMPLOYEES standard, the evidence must be viewed to a court where his rulings would carry In Ephraim v. Paul Harris Stores, Inc., Judge in the light most favorable to the non- enormous precedential force. In light of the importance of this appointment, the Com- Shedd held that a claim of invasion of pri- movant—the plaintiff under these cir- mittee and the full Senate should not be vacy (false light) was not cognizable under cumstances—and the judge must find forced to make a decision based on a record South Carolina law, despite two South Caro- that there are no disputes about mate- that may be incomplete. line Supreme Court decisions that had recog- rial facts and that judgment as a mat- nized this as a valid claim under state law. JUDGE SHEDD’S EMPLOYMENT DECISIONS In Rector v. Rainbow Shops, Inc., Judge ter of law is warranted for the moving REVEAL A STRONG ANTI-EMPLOYEE BIAS party the defendants. Shedd disregarded South Carolina state- Certainly when I look at the mail I NELA has analyzed dozens of Judge court decisions that had held that a mere in- Shedd’s unpublished and published decisions sinuation is actionable in a case get from South Carolina and from liti- in employment cases. These decisions reveal if it is false and malicious and the meaning gants and others there, there is a per- a willingness to bend the law and ignore is plain. Instead, he decided that employee’s vasive feeling that unless you fit the precedent in order to reach results-oriented termination while the store was experiencing right category when you come before rulings. cash shortages was not reasonably capable of

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.053 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11259 a defamatory meaning. Judge Shedd also al- Judge Shedd also refused to follow a state Rehnquist wrote for the Court explain- lowed the employer to read and sign the court decision that had held that a sixteen- ing that, to the contrary, neither of form, even though the employer offered no day proximity in time between a workers’ the cases applied. He did not get just reason for doing this. Judge Shedd did not compensation filing and a drug screen was one of them wrong, he got them both prima facie retaliation, on the grounds that even require the employer to explain why it wrong. The Chief Justice wrote that was necessary for the termination meeting the drug screen in the Richberg case was or- to occur in public, in the presence of other dered 50 days after the filing. because the Act did not require the States in their sovereign capacity to store employees. JUDGE SHEDD’S APPOINTMENT TO THE FOURTH In Storms v. Goodyear Tire & Rubber Co., CIRCUIT WOULD STACK THE COURT WITH PRO- regulate their own citizens, but instead Judge Shedd held that an employee could EMPLOYER JUDGES regulates the States as the owners of not bring a claim for breach of contract NELA members who practice in the states the databases. Therefore, the Act was based on language contained in the com- within the Fourth Circuit repeatedly have consistent with the constitutional pany’s own personnel documents because reported that they do everything they can to principles enunciated in New York v. there was no evidence of ‘‘mutual assent’’ to avoid filing employment cases in federal Printz. those documents. He did not explain why the court and avoid filing federal claims in state In Crosby v. South Carolina, he found company had not assented to the promises court, for fear of removal. As a result, fed- the Family and Medical Leave Act un- contained in its own documents. He refused eral statutes prohibiting discrimination in constitutional on the grounds that it to follow precedent by the South Carolina employment—Title VII, the ADA, the Age Supreme Court on this and related issues. was not properly enacted under Discrimination in Employment Act, the Re- Congress’s power. I mention this case Later, in Truesdale v. Dana Corp., Judge construction-era civil rights acts—are large- Shedd cited his own opinion in Storms and ly not enforced in those states because the because it is the second time Judge again failed to follow precedent. In this case, Fourth Circuit has created a hostile environ- Shedd ruled in such a way in an impor- an employee was fired in violation of the ment for those claims. As Committee mem- tant federalism case. He also ruled this company’s own disciplinary policies and pro- bers are aware, the Fourth Circuit has been way because he just took a magistrate cedures. By interpreting the employer’s per- reversed even by the current Supreme Court judge’s very brief report and did not sonnel documents in a selective, extremely on a number of occasions, in cases involving put in any significant analysis of his pro-employer manner, Judge Shedd deter- employment and other matters. See, e.g., own. mined that the employer’s policies did not EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) protect the employee. In this case, it is almost impossible (reversing the Fourth Circuit decision by a to figure out his reasoning for why this JUDGE SHEDD DISREGARDED OR MISCONSTRUED 6–3 vote, and holding that the EEOC is not important law with bipartisan support EVIDENCE TO THE BENEFIT OF EMPLOYERS bound by arbitration agreements between an would be unconstitutional, especially In English v. Kennecott Ridgeway Mining employee and employer); Ferguson v. City of Co., an injured employee claimed that he was Charleston, 531 U.S. 67 (2001) (by a 6–3 vote, when acts of Congress are entitled to a fired in retaliation for filing a workers’ com- holding that coerced drug testing of preg- presumption of constitutionality. One pensation claim. Judge Shedd dismissed the nant women is unconstitutional); Dickerson would think if somebody really cared retaliatory discharge claim despite v. United States, 530 U.S. 428 (2000) (by a 7–2 about the courts of appeal and the Su- uncontradicted evidence (summarized in his vote, the Court refused to overrule Miranda preme Court, they would have at least own opinion) which demonstrated the em- v. Arizona). given us rigorous analysis instead of ployer’s hostility toward the injured worker NELA STRONGLY OPPOSES THE CONFIRMATION making what appears to be a somewhat because of his workers’ compensation claim. OF JUDGE SHEDD arbitrary ruling. In fact, while the plaintiff ‘‘was still under Judge Shedd’s record shows a cavalier atti- In addition, he issued several opin- the care of the company’s physician, cowork- tude toward evidence, legal precedent, and ers informed English that his superiors were ions relating to a murder case where a an alarming tendency to deny working men privileged conversation between the complaining that English was milking the and women who appear before him their day system, that he was not really hurt, and that in court. Judge Shedd is dismissive toward defendant and his attorney was mon- he should be returned to full duty.’’ the rights of workers who face harassment itored and recorded on videotape by the In Givens v. South Carolina Health Insurance and mistreatment by their employers. Un- county sheriff’s department. Present in Pool, Judge Shedd allowed the state insur- like his colleagues in the District of South the room where the conversation was ance pool to exclude AIDS/HIV from health Carolina, there has never been a pro-em- being monitored were several of the insurance coverage. Judge Shedd held that ployee verdict in any civil rights trial in sheriff’s deputies and the county pros- the § 501(c) insurance underwriting exclusion Judge Shedd’s courtroom. If fairness and a ecutor who subsequently handled the (safe harbor provision) of the Americans commitment to equal justice are expected of with Disabilities Act (‘‘ADA’’) exempted the case. The defendant was convicted and appointees to the United States Court of Ap- sentenced to death but the Supreme Insurance pool from coverage under that peals, then Judge Shedd has proven that he statute, even though the State did not do cannot satisfy these expectations. For these Court of South Carolina reversed be- any of its own actuarial studies or under- reasons, NELA urges you to oppose the con- cause of the nature of the videotaping. writing studies to evaluate the expensive and firmation of Judge Dennis Shedd. In its opinion, the Supreme Court of risks of insuring persons with AIDS/HIV. Very truly yours, South Carolina—not one considered the Since the State failed to do any of its own FREDERICK M. GITTES, most liberal of courts—used very studies, it should have been barred from President, National Employment Lawyers strong language that condemned the being able to claim the § 501(c) exemption. Association. In Gregory v. Chester County Sheriff’s Dept., failure to disqualify the local prosecu- Mr. LEAHY. Mr. President, I men- tor’s office. They cited the prosecutor’s Judge Shedd accepted a poorly reasoned rec- tioned that Judge Shedd tends to go ommendation from a Magistrate Judge special responsibilities to do justice. against an employee. The Magistrate Judge even beyond where an activist U.S. Su- And the South Carolina Supreme Court had found that the employee could not prove preme Court has gone. In a 1997 case said it would not tolerate deliberate that her demotion was an ‘‘adverse action’’ challenging the constitutionality of prosecutorial misconduct which threat- by the employer. This ruling is contrary to the Driver’s Privacy Protection Act, ens rights fundamental to liberty and precedent that demotions are adverse job ac- Judge Shedd made a federalism ruling justice. That is about as strong a con- tions. Gurganus v. Beneficial North Carolina, that went way beyond even the ex- demnation by any state Supreme Court Inc., 2001 U.S. App. LEXIS 26943 (4th Cir. treme federalism rulings of the U.S. of a prosecutor’s actions as I have ever 2000). Although Judge Shedd stated that he Supreme Court, and it was so bad that was supposed to review the Magistrate heard. Judge’s recommendation de novo, he issued the U.S. Supreme Court in a 9-to-0 So the federal prosecutions relating only a one-page summary order. opinion reversed Judge Shedd’s ruling. to the videotaping were then brought In Richberg v. Glaston Copper Recycling, In Condon v. Reno, Judge Shedd to Judge Shedd’s courtroom. Both the Judge Shedd refused to consider evidence ruled on the constitutionality of the prosecutor, Fran Humphries, and the presented by the plaintiff that showed the Driver’s Privacy Act, which essentially defense attorney, Jack Duncan, were existence of genuine issues of material fact prohibited States from selling and brought before a federal grand jury in- when he granted summary judgment for the sharing personal information gleaned vestigating these constitutional viola- employer. For example, he claimed that the as they were picking up driver’s license tions. plaintiff had failed to challenge the employ- information. He said that the Act vio- er’s affirmative defense that the plaintiff Mr. DUNCAN testified that he had not was terminated for failing to meet lated the 10th Amendment as inter- given a copy of the tape to a television ‘‘established work standards,’’ although the preted by the courts in New York v. reporter, while Mr. Humphries testified plaintiff had submitted a positive perform- United States and Printz v. United he had not immediately known the tap- ance evaluation from his personnel file. States. Three years later, Chief Justice ing was taking place. Now each of them

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00029 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.017 S18PT1 S11260 CONGRESSIONAL RECORD — SENATE November 18, 2002 was charged with perjury based on but for me, I could not in good con- have filed employment discrimination cases these statements. As I mentioned, the science vote aye on this nomination. I that were assigned to Judge Shedd’s court. prosecutor and several of the sheriffs, will vote no. Of those, Judge Shedd granted summary judgment for the employer in whole or in were there watching the taping. So it I ask unanimous consent that letters part in almost every case. In one case, Bailey was obvious he was not telling the from the Leadership Conference on v. South Carolina Dep’t of Social Services, truth. Civil Rights, Alliance for Justice, and Judge Shedd granted summary judgment to Mr. DUNCAN, the defense attorney, others be printed in the RECORD. the employer, even though the EEOC had de- was found guilty and sentenced to 4 There being no objection, the mate- termine there was reasonable cause to be- months in prison. Even though the in- rial was ordered to be printed in the lieve that the plaintiff was not promoted due to his race. In another case, McMillan v. De- formation seemed overwhelming RECORD, as follows: partment of Corrections, the plaintiff alleged against the prosecutor, Judge Shedd LEADERSHIP CONFERENCE ON CIVIL discrimination in the denial of a pay in- dismissed those charges. RIGHTS AND ALLIANCE FOR JUS- crease by the Department of Corrections. This is enlightening because if any- TICE, The plaintiff’s supervisor had requested a body was hurt by the improper taping, Washington, DC, August 30, 2002. pay increase for the plaintiff. At the same it was the defendant and the defense Hon. PATRICK J. LEAHY, time, another State agency conducted an in- attorney. If anybody truly committed Chair, Senate Judiciary Committee, Wash- vestigation into racially discriminatory em- ington, DC. a wrongdoing, as the South Carolina ployment practices within the Department DEAR SENATOR LEAHY: We, the undersigned of Corrections and concluded that White em- Supreme Court said in the strongest civil and human rights organizations, write ployees tended to do significantly better language against a prosecutor I can re- to express our strong opposition to the con- than Black employees in performance pay member, it was the prosecutor. But firmation of Dennis Shedd to the United increases. Nevertheless, Judge Shedd refused having them both before his court, States Court of Appeals for the Fourth Cir- to let this case go to trial. In contrast to Judge Shedd in effect exonerated the cuit. cases involving African-American plaintiffs, prosecutor and sentenced the defense First, we want to comment on the Judici- in four out of five discrimination cases filed attorney to 4 months. ary Committee’s level of review of this par- by White male plaintiffs, Judge Shedd has ticular nomination. On July 11, we sent a denied summary judgment and paved the Think of yourself as the litigant be- letter expressing concern that the Com- way for trial. fore his court. Look at all of these mittee had not received all of the informa- Judge Shedd has an equally poor record in cases I have talked about, and so many tion required to make a fully informed deci- cases involving gender discrimination. In others. I do not fall in the category of sion about whether to elevate Judge Shedd one case, Roberts v. Defender Services, Inc., the sides he tends to rule with. I am on to the Fourth Circuit. We urged the Com- he granted summary judgment to an em- the other side. It would be an awful mittee to take steps to complete the record ployer in a sexual harassment case, even on this nominee, and to hold another hearing after concluding that the supervisor’s con- sinking feeling to go in there knowing duct ‘‘clearly was, from an objective stand- how good your case is but you are prob- to allow the Committee to fully examine the complete record. point, sufficiently severe and pervasive to ably going to lose. It now appears as if the Committee has de- constitute a hostile and abusive work envi- This particular decision shows dis- clined to ensure that it has obtained the ronment.’’ Despite that finding, Judge Shedd regard for the rights of Americans who, complete judicial record and has decided not concluded that the plaintiff had not provided no matter what they have been accused to hold a second hearing on the nomination. any evidence that she ‘‘subjectively per- of, should be able to expect privacy and We are deeply troubled that the Committee ceived the environment to be abusive,’’ not to be videotaped by the govern- may vote on the Shedd nomination without reaching this conclusion despite the fact that the record contained evidence that the ment when they are talking to their first obtaining a complete record and then providing an opportunity to publicly explore plaintiff’s supervisor made sexual comments attorneys. The law is settled in this to her on a daily basis, that she told him country that with attorney-client that record. The many concerns that we have identified in Judge Shedd’s record pro- these comments were offensive, that she and privilege you can sit down and talk duced thus far and which give rise to our op- a female manager took steps to report the with your attorney without the pros- position only strengthen our conviction that conduct to corporate headquarters, and that ecutor videotaping what you are say- a vote on the nomination should occur only she resigned from her job. Judge Shedd has also exhibited a dis- ing, without them listening to or after a full record is obtained and examined. turbing tendency to resolve cases on sum- We strongly believe that the composition eavesdropping on you. mary judgment in favor of defendants, even of the federal judiciary is a civil rights issue There are a couple of people you are where genuine issues of material fact were of profound importance to all Americans, be- able to talk to with a reasonable expec- clearly presented. For example, in Alston v. cause the individuals charged with dis- tation of privacy. You are able to talk Ruston, Judge Shedd granted summary judg- pensing justice in our society have a direct to your spouse. You are able to talk to ment on a Section 1983 complaint after con- impact on civil rights protections for us all. cluding, as a matter of law, that a prison your attorney. You are able to talk to As you know, the role of the federal judici- your priest in a penitent relationship. guard had not used excessive force—despite ary in protecting the rights of the powerless an affidavit and a well-pleaded complaint Here, the prosecutor violated that— is particularly acute in the Fourth Circuit, from the plaintiff alleging that the officer something that every prosecutor’s which has the highest percentage of African- had sprayed him in the face with tear gas handbook in America says is wrong, Americans of any federal circuit in the na- without justification, advanced toward him something that hornbook law says is tion. ‘‘swinging his fists and punching [plaintiff] wrong, every ethics course says is The Fourth Circuit is also arguably the in the mouth,’’ and wielded a broomstick most conservative of the federal circuits. wrong, and every bar association says until another officer intervened. Given the Several of its most conservative decisions evidence presented, there was no room for is wrong. The Supreme Court of South have been subsequently reversed by the Su- Carolina unanimously said it was Judge Shedd to conclude that excessive force preme Court as too extreme, including had not taken place as a matter of law. Nev- wrong but Judge Shedd said to the Condon v. Reno, a challenge to Congress’s ertheless, Judge Shedd made such a ruling prosecutor: It is okay; we will get the power to protect the privacy of drivers’ li- and dismissed the plaintiff’s case. other guy. Well, that calls into ques- cense information; an attempt to overrule In other cases, Judge Shedd has exhibited tion his ability to be fair in criminal the Miranda rule; and Virginia’s attempt to hostility toward plaintiffs in civil rights cases. limit the right of reproductive choice. Be- claims involving allegations of misconduct So I am concerned when I see his cause of the high percentage of minority by law enforcement officers. For example, in citizens in the circuit and the very conserv- record as a Federal district judge, and Joye v. Richland Co. Sheriff’s Dep’t., Judge ative nature of the court, it is imperative Shedd dismissed a Section 1983 claim I ask myself: If this is his record as a that any new appointment to this court be a brought by a person wrongfully arrested by Federal district judge, how is he going person of moderate views who is wholly com- sheriff’s deputies under a bench warrant to be as a circuit judge on the court of mitted to the goals of equality and equal op- issued for his son. Despite the fact that the appeals? So I share some of the same portunity for all Americans. After an exten- arrest warrant described a 31 year old man, concerns about his fairness that we sive review of Judge Shedd’s record, it has standing 5′ 11′′, the officers arrested the have heard expressed from South Caro- become clear that he is not that nominee. plaintiff who was 61 years old and stood 5′ 7′′ We are deeply concerned about Judge lina and from throughout the Fourth tall. The plaintiff argued that the officers Shedd’s reluctance to follow the law in sup- had acted unreasonably in arresting him, in Circuit. port of vigorous enforcement of legal protec- violation of his 4th Amendment rights. I know arguments will be made on tions against discrimination for women and Judge Shedd, however, concluded that the the other side, and this will be disposed minorities. During Judge Shedd’s time on plaintiff had not stated a valid 1983 claim be- of however the Senate decides to vote, the bench, at least forty African-Americans cause the officers had a ‘‘reasonable, good

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.055 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11261 faith, belief, that they were arresting the with disabilities, a desire to limit Congress’s though the Equal Employment Opportunity correct person.’’ He therefore rejected, as a authority to enact protective legislation Commission (EEOC) had determined there matter of law, the contrary conclusion of the that is applicable to the states, and insensi- was reasonable cause to believe that the Af- magistrate that the officers were not enti- tive to issues of race. Judge Shedd’s view on rican American plaintiff was not promoted tled to a ‘‘good faith’’ defense on these facts. these issues render him a poor choice for the because of his race. In McMillan v. South Judge Shedd’s record also displays a con- Fourth Circuit and we therefore urge you to Carolina Dept. of Corrections, a case involv- sistent disregard for the rights of people oppose his confirmation. ing allegations of race discrimination, Judge with disabilities. He has ruled against dis- Sincerely, Shedd refused to allow the plaintiff’s claim ability rights plaintiffs in almost every in- Wade Henderson, Executive Director, to go to trial, despite a finding by another stance, departing from settled law and Leadership Conference on Civil Rights; state agency that Caucasian employees tend- adopting tortured interpretations of dis- Nan Aron, President, Alliance for Jus- ed to receive higher performance pay in- ability rights laws. In one case, Judge Shedd tice; Kate Michelman, President, creases than African-American employees. approved a state health insurance pool’s NARAL; Elaine R. Jones, President and In contrast, in four of the five cases filed in complete exclusion from coverage of a man Director-Counsel, NAACP Legal De- his court by Caucasian plaintiffs alleging who was HIV positive. The plaintiff who filed fense and Educational Fund; Hilary ‘‘reverse discrimination’’ in employment, the case sought to have it decided on an ex- Shelton, Director—Washington Bureau, Judge Shedd denied summary judgment and pedited basis, but died eight months later be- NAACP; Ralph Neas, President, People allowed the case to proceed to a jury trial. fore any decision was rendered. In another for the American Way; Nancy Zirkin, Judge Shedd’s record also reflects insen- case, a magistrate had found no evidence Director of Public Policy, American sitivity in civil rights cases alleging dis- that the plaintiff’s disability interfered with Association of University Women; El- crimination based on gender. For example, in his ability to do his job and recommended eanor Smeal, President, Feminist Ma- Roberts v. Defender Services, Inc., a rec- that the plaintiff be permitted to proceed jority; Jim Ward, Executive Director, ommendation of the federal magistrate and with the claim. Nevertheless, Judge Shedd ADA Watch; Judith L. Lichtman, granted summary judgment to the defend- dismissed the plaintiff’s claim, concluding, President, National Partnership for ant. In Roberts, the record contained evi- without citing any evidence, that the dis- Women and Families; Marsha Atkind, dence that the plaintiff’s supervisor made ability rendered the plaintiff unable to do his National President, National Council sexual comments to her on a daily basis, job. of Jewish Women; Kim Gandy, Presi- We are also very concerned about Judge that she told him these comments were of- dent, National Organization for Women Shedd’s views on ‘‘state’s rights’’ which fensive, that she and a female manager took (NOW); William Samuel, Director—De- would limit Congress’s power to pass laws steps to report the conduct to corporate partment of Legislation, AFL–CIO; that are applicable to the States. Shedd au- headquarters, and that she resigned from her Patrishia Wright, Director of Govern- thored the original district court opinion in job. Despite this evidence, Judge Shedd stat- ment Affairs, Disability Rights Edu- Condon v. Reno, striking down the Driver’s ed that while the supervisor’s conduct cation and Defense Fund; Liza M. Privacy Protection Act based on his belief ‘‘clearly was, from an objective standpoint, Maatz, Vice President of Government that the federal government did not have the sufficiently severe and pervasive to con- Relations, NOW Legal Defense and power to require States to ensure that State stitute a hostile and abusive work environ- Education Fund. driver’s license records would remain pri- ment,’’ the plaintiff had not provided any vate. Although the Fourth Circuit affirmed evidence that she ‘‘subjectively perceived PEOPLE FOR THE AMERICAN WAY, the environment to be abusive.’’ Judge Shedd’s decision, the Supreme Court Washington, DC, September 4, 2002. unanimously reversed the holding in a deci- A number of Judge Shedd’s opinions reflect Hon. PATRICK J. LEAHY, sion by Chief Justice Rehnquist. We are un- a disregard for laws protecting the disabled. U.S. Senate, Russell Senate Office Building, For example, in Payette v. Westinghouse aware of any other instance in the last 50 Washington, DC. years where a district court judge has struck Electric Corp., Judge Shedd effectively read DEAR SENATOR LEAHY: On behalf of the the right of employees to ‘‘reassignment,’’ a down an act of Congress on federalism more than 500,000 members and supporters of grounds only to be unanimously reversed by crucial protection for those with disabilities, People For the American Way (PFAW), we out of the Americans with Disabilities Act the Supreme Court. Judge Shedd also struck write to express our strong opposition to the down part of the Family and Medical Leave (ADA). Congress explicitly included reassign- elevation of Judge Dennis Shedd to the ment to a vacant position, when the person Act (FMLA), in Crosby v. South Carolina United States Court of Appeals for the is no longer able to do his or her job, as one Dep’t of Health and Envtl. Control, holding Fourth Circuit. type of accommodation required by the ADA. that the 11th Amendment doctrine of state Judge Shedd’s views on federalism are of sovereign immunity prevents an employee grave concern. Judge Shedd authored the In Givens v. South Carolina Health Insur- from suing a State agency for violation of original district court opinion in Condon v. ance Pool, Judge Shedd ignored the plain the FMLA. This issue—because it calls into Reno, which struck down the Driver’s Pri- meaning of the ADA when he approved a question Congress’s power to remedy sex dis- vacy Protection Act based on his analysis state health insurance pool’s refusal of cov- crimination in the workplace—has profound that the federal government did not have the erage for a man who was HIV positive. No implications for Congress’s authority under power to require states to ensure that driv- other medical condition was excluded, and Section 5 of the 14th Amendment. er’s license records remain private. Although the state had done no actuarial analysis to Judge Shedd has also exhibited a high level the Fourth Circuit Court of Appeals agreed, justify the exclusion of individuals with HIV/ of insensitivity on issues of race. In a recent an a unanimous decision authored by Justice AIDS. While many courts have held that the case, Judge Shedd made several insensitive Rehnquist, the Supreme Court unanimously ADA does not prevent insurance plans from comments as he dismissed a lawsuit aimed at reversed. PFAW is unaware of any other in- providing lesser benefits for treatment of removing the Confederate battle flag from stance in the last 50 years where a district particular types of disabilities, this ruling the South Carolina statehouse dome. Accord- court judge has struck down an act of Con- goes beyond those decisions. ing to press accounts, Judge Shedd suggested gress on federalism grounds only to be Judge Shedd has exhibited a high level of that South Carolina, 30% of whom are Afri- unanimously reversed by the Supreme Court. insensitivity on issues of race. In a recent can-American, ‘‘don’t care if that flag flies In Crosby v. South Carolina Dept. of case, Judge Shedd made several insensitive or not.’’ He also analogized the Confederate Health and Envtl. Control, Judge Shedd also comments as he dismissed a lawsuit aimed at battle flag, to many a symbol of support for struck down part of the Family and Medical removing the Confederate battle flag from slavery and racist acts of terror directed at Leave Act (FMLA), holding that the 11th the South Carolina statehouse dome. Accord- African-Americans, to the Palmetto tree, Amendment doctrine of state sovereign im- ing to press accounts, Judge Shedd suggested which is on the State flag, stating: ‘‘What munity prevents an employee from suing a that South Carolinians, 30% of whom are Af- about the Palmetto tree? What if that re- State agency for violation of the FMLA. rican-American, ‘‘don’t care if that flag flies minds me that Palmetto trees were cut down This issue—because it calls into question or not.’’ He also analogized the Confederate to make Fort Moultrie and that offends Congress’s power to remedy sex discrimina- battle flag, to many a symbol of support for me?’’ Judge Shedd’s hostility to the lawsuit tion in the workplace—has profound implica- slavery and racist acts of terror directed at in open court provides strong evidence of a tions for Congress’s authority under Section African-Americans, to the Palmetto tree, poor judicial temperament. His attempt to 5 of the 14th Amendment. which is on the South Carolina State flag, minimize the symbolism of the Confederate Judge Shedd has a troubling record on civil stating: ‘‘What about the Palmetto tree? flag to the African American community and rights enforcement. Throughout his eleven What if that reminds me that Palmetto trees suggest it is comparable to an image of the years as a federal district court judge, Judge were cut down to make Fort Moultrie and Palmetto tree reflects a stunning insen- Shedd has dismissed almost every civil that offends me?’’ sitivity to the injurious impact this par- rights case on behalf of minority claimants Given the importance of the Fourth Cir- ticular symbol still has on many of our citi- that has come before him, thereby pre- cuit and the current ideological imbalance zens. venting the merits of these cases from being on the court, it is imperative that any nomi- In sum, Dennis Shedd’s eleven-year record heard by a jury. nee to this court be a jurist of more mod- on the federal district bench reflects hos- For example, in Bailey v. South Carolina erate views who will protect the civil and tility towards plaintiffs in civil rights cases, Dept. of Social Services, Judge Shedd grant- constitutional rights of all Americans. Judge including minorities, women and persons ed summary judgment to the employer, even Shedd’s record demonstrates that he is not

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.085 S18PT1 S11262 CONGRESSIONAL RECORD — SENATE November 18, 2002 the nominee. PFAW urges the Judiciary there is only one active African-American NAACP’s annual convention in in committee to reject his nomination. federal judge in the state. And, there are early July. Sincerely, only two South Carolinian female federal Members of the NAACP believe that the RALPH G. NEAS, judges, one on the federal District Court and Federal judiciary, as the final arbiter of the President. the other on the Fourth Circuit. This is un- U.S. Constitution, is the branch of govern- fair and unjustified because there are many ment primarily charged with protecting the NATIONAL HEADQUARTERS, well-qualified African-American and woman rights and liberties of all Americans. In Chicago, IL, August 24, 2002. jurists and lawyers who deserve an oppor- many instances in our nation’s history, the Senator PATRICK LEAHY, tunity to serve this nation on the federal ju- courts have been the only institution willing Member, U.S. Senate, diciary. to enforce the rights of minority Americans. Washington, DC Because African-Americans are one-third We cannot afford to permit the Federal judi- DEAR SENATOR LEAHY: Let me lend my of South Carolina’s population and the ciary to retreat from its constitutional obli- voice of opposition to the chorus of dis- Fourth Circuit has a greater number of Afri- gation and resort to the type of judicial ac- content surrounding the nomination of can-Americans than any circuit, it is critical tivism that threatens civil rights and civil Judge Dennis Shedd to the Fourth Circuit that any nominee, especially one from South liberties. Court of Appeals. I urge you to oppose the Carolina, be an unabashed champion of civil No other federal circuit reflects this ex- Shedd nomination, based on the merits, and rights. The appointee should have a record treme right-wing activism more than the the merits alone. A seat on the Fourth Cir- that demonstrates fairness and justice to all Fourth Circuit Court of Appeal, which is cuit is too important to the nation’s judici- people. Based on our careful review of Judge home to more African Americans than any ary not to be heavily scrutinized. Dennis Shedd’s performance on the U.S. Dis- other circuit. The Fourth Circuit Court of As a native of South Carolina, I am deeply trict Court for the District of South Caro- Appeals’ hostility to civil rights, affirmative disturbed by the direction taken by the lina, we have concluded that his record action, women’s rights, voting rights and Fourth Circuit in recent years. As a Judicial shows a serious hostility to civil rights and fair employment is unrivalled. Its decisions Circuit with considerable influence on the constitutional protections. are so far out the mainstream that the Su- Supreme Court, those elevated to the Court Since his appointment to the federal bench preme Court has reversed the Fourth Circuit should reflect the highest American ideals of in South Carolina, Judge Shedd has engaged on basic constitutional protections such as inclusion and equal protection under the in right-wing judicial activism by imposing Miranda warnings. law. Moreover, the states included in the strict and exacting standards when review- Judge Shedd’s addition to the Fourth Cir- Fourth Circuit are comprised of the highest ing employment discrimination cases cuit would further relegate that court to the percentage of African Americans, than any brought by African Americans and women. periphery of judicial mainstream. His judi- other Circuit, thus judges on the Court must He has dismissed almost every employment cial record and testimony before the Judici- be sensitive and respectful for the civil discrimination, sexual harassment, civil ary Committee reflect a disposition to rule rights laws for which we fought so hard. rights and disability case that has come be- against the plaintiff in employment and dis- Currently, the Fourth Circuit is the most fore him. Judge Shedd seems to believe that crimination cases. Moreover, his restrictive extremist court in the nation on civil rights discrimination is not an actionable offense view of federal legislative authority, as indi- issues, criminal justice issues, and those in- even when the Equal Employment Oppor- cated in Condon v. Reno, 972 F. Supp. 977 volving the power of the federal government, tunity Commission has found ‘‘reasonable (D.S.C. 1997), which struck down the Driver’s to enact legislation, which holds States ac- cause’’ that discrimination has occurred. Privacy Protection Act of 1994, 18 U.S.C. countable for civil rights violations. The Judge Shedd, however seems to apply a more §§ 2721–25 and was later overturned in a 9-to- nomination of Dennis Shedd threatens to lenient standard in reviewing discrimination 0 decision by the Supreme Court, confirms take the Court in a further extremist direc- cases brought by white men. Judge Shedd our perspective that Judge Shedd’s judicial tion. For example, Judge Shedd’s opinion in has allowed four out of five ‘‘reverse’’ dis- philosophy and temperament would further the Condon v. Reno case suggests that he fa- crimination cases to proceed beyond the push the Fourth Circuit to the right-wing. vors disempowering Congress. American summary judgment phase of litigation. Accordingly, as unanimously passed by the judges, and their rulings should protect This record shows that Judge Shedd does over 1,200 delegates to the 2002 NAACP Na- rights, rather than restrict the balance of not have an abiding concern for civil rights tional Convention, I ask that you oppose the power. nomination and that you use your influence To preserve this nation’s ideals of inclu- and fairness. It further shows that Shedd lacks the requisite moderate reasoning to to encourage the Senate Judiciary Com- sion, and to ensure equal protection under mittee to not vote him out of Committee. the law for all Americans, I urge you, and bring balance to the Fourth Circuit. In fact, his membership to the Fourth Circuit would However, if the nomination makes it to the other members of the members of the Senate Senate floor, we ask you to vote against it. Judiciary Committee to vote ‘‘No’’ on the push it further beyond the mainstream of American values and would subject South I appreciate your attention and interest in nomination of Dennis Shedd. this important matter. Please do not hesi- Sincerely, Carolinians and residents of other states within the Fourth Circuit to an extreme tate to contact me or Hilary Shelton, Direc- REVEREND JESSE L. JACKSON, SR. right-wing interpretation of the nation’s tor of the NAACP Washington Bureau at civil rights laws and constitutional protec- (202) 638–2269, if we can be of assistance. SOUTH CAROLINA LEGISLATIVE Sincerely, BLACK CAUCUS, tions. Accordingly we oppose Judge Shedd’s nom- KWESI MFUME, Columbia, SC, September 4, 2002. President & CEO. Re Fourth Circuit Nomination of Judge ination without reservations. Hi values rep- resents the Old South, where African Ameri- Shedd. SOUTH CAROLINA STATE CON- cans and women were judged by different and FERENCE, NATIONAL ASSOCIATION Hon. PATRICK J. LEAHY, unequal standards. FOR THE ADVANCEMENT OF COL- Chair, Senate Judiciary Committee, We appreciate your attention. If you have ORED PEOPLE, Washington, DC. any questions, please contact me at the ad- DEAR SENATOR LEAHY: The South Carolina Columbia, SC, June 24, 2002. dress and telephone number above. Legislative Black Caucus (SCLBC) was Senator PATRICK LEAHY, Sincerely formed in 1975 soon after the Civil Rights Chairman, Judiciary Committee, Dirksen Senate JOSEPH H. NEAL, Movement in the 1960’s. Presently, the Chairman. Office Building, Washington, DC. SCLBC has 31 members; seven senators and DEAR CHAIRMAN LEAHY: We write to oppose 24 representatives, including four women. the nomination of Dennis Shedd to the NATIONAL ASSOCIATION FOR THE The SCLBC is dedicated to the struggle for Fourth Circuit Court of Appeals. ADVANCEMENT OF COLORED PEOPLE, fairness, equality and justice for all South By now, you must be familiar with the im- Baltimore, MD, September 17, 2002. Carolinians, and to the civic and political in- portance of the Fourth Circuit to the African Re Fourth Circuit Nomination of Judge volvement of African-Americans, women and American Community. Almost a quarter of Shedd. other racial and ethnic minorities. the Fourth Circuit’s residents are African We seek to preserve the civil rights strides U.S. Senate, Washington, DC. American. The Fourth Circuit, with over 6 that occurred in South Carolina over the DEAR SENATOR: On behalf of the NAACP, million African Americans in the five states, decades, and we fight to prevent any regres- the nation’s oldest, largest and most widely- has the greatest number of African Ameri- sive step that threatens to rollback civil recognized grass roots civil rights organiza- cans of any Circuit Court in the country. The rights and constitutional rights of African- tion, I am writing to let you know of the As- Latino population within the Fourth circuit Americans, women and other racial and eth- sociation’s strong opposition to the nomina- now at more than one million persons, has nic minorities. The nomination of U.S. Dis- tion of District Court Judge Dennis W. Shedd nearly tripled in the last decade. Based on trict Judge Dennis W. Shedd to the U.S. to the Fourth Circuit Court of Appeals. Dele- these demographics, more may be at stake Court of Appeals for the Fourth Circuit rep- gates from every state in the nation, includ- here for the future of civil rights than in any resents such a regressive step, and accord- ing the five states comprising the Fourth other Circuit Court in the country. ingly, we strongly oppose the nomination. Circuit, unanimously passed a resolution The Fourth Circuit is already an extremely African-Americans constitute a full one- from the South Carolina State Conference in conservative Court on civil rights and Con- third of South Carolina’s population, yet opposition to the nomination at the stitutional issues. This Circuit ruled that

VerDate 0ct 31 2002 02:40 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00032 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.086 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11263 federal law-enforcement officials need not federate flag. Judge Shedd presided over a fact, women, even in such cases when the follow the Miranda decision, only to be re- federal lawsuit seeking the removal of the Equal Opportunity Commission has found versed by the Supreme Court. This Circuit Confederate flag from the dome of the South ‘‘reasonable cause.’’ But, we have also found authorized drug testing for pregnant women Carolina Statehouse. According to press ac- that in furtherance of this questionable ac- without their consent which was reversed by counts of a hearing held in the case. Judge tion, when white men bring cases of the Supreme Court. This Circuit ruled that Shedd made several derogatory comments ‘‘reverse’’ discrimination, those cases pro- the Equal Employment Opportunity Com- about opposition to the flag. First, he at- ceed. We also note that there have been con- mission was limited to remedies contained in tempted to marginalize opponents to the flag cerns raised about the number of unpub- employee arbitration agreements, and again, by questioning whether the flag matters to lished opinions issued by the Judge and fur- was reversed by the Supreme Court. The Cir- most South Carolinians. (It does, and thirty ther that such concerns regarding the deci- cuit also has been reversed recently in cap- percent of South Carolina’s population is Af- sions were reversed or vacated by the Fourth ital habeas corpus cases and citizen suits rican American.) He also minimized the deep Circuit Court of Appeals. under environmental. laws. The Fourth Cir- racial symbolism of the flag by comparing it The Fourth Circuit must have a judge who cuit has issued numerous other opinions that to the Palmetto tree, which appears in South is mindful of the rightful place that African are hostile to affirmative action, women’s Carolina’s State flag. Americans have in this nation, and be a rights, fair employment, and voting rights. Our membership in South Carolina, de- strong advocate of civil rights, human rights This is also the Court to which moderate serves to be represented on the Circuit by a and constitutional rights. Any nominee African American nominees were repeatedly nominee who has a record of judicial impar- should have demonstrated his dedication to denied membership. No fewer than four Afri- tiality, is committed to the progress made such virtues and ideals. No other individuals can Americans were nominated to this Court on civil rights and individuals liberties, and should be considered for this important posi- by President Clinton, only to have their has a deep respect for the responsibility of tion. For these reasons among others raised by nominations languish for years due to Sen- the federal judiciary to uphold that progress. our South Carolina Legislative Black Cau- atorial obstruction. Thus, if a nominee is to Dennis Shedd is not that nominee. We urge cus, we cannot support the nomination of be confirmed to this Court, the nominee you and the Senate Judiciary Committee to must be a jurist who will bring moderation Judge Dennis Shedd for the Fourth Circuit vote against his nomination. and would ask that the opinion of our body and ideological balance to this Court. It is Sincerely, our strongly held view that this nominee is be strongly considered in this matter. JAMES GALLMAN, Should you have any questions, or require not Dennis Shedd. President. Judge Shedd’s judicial record reveals a additional comment, please contact me. deep and abiding hostility to civil rights Very truly yours, THE NATIONAL BLACK CAUCUS cases. A review of Shedd’s unpublished opin- JAMES L. THOMAS, OF STATE LEGISLATORS, President. ions reveals that Judge Shedd has dismissed Washington, DC, September 19, 2002. all but very few of the civil rights cases com- Hon. PATRICK J. LEAHY, Mr. LEAHY. Before yielding the re- ing before him. In nearly thirty case involv- U.S. Senate, Chair, Committee on the Judiciary, mainder of my time, I first say to my ing racial discrimination in employment, he Dirksen Senate Office Building, Wash- friend from Utah, he has been very pa- granted summary judgment for the employer ington, DC. tient but then he has told us before he in whole or in part in all but one case; most Re Fourth Circuit Nomination of Judge is a patient man. of the cases were dismissed altogether. Many Shedd. I yield the floor. of these cases were strong cases with compel- DEAR SENATOR LEAHY: The National Black Mr. HATCH. I thank my colleague. ling evidence an litigated by experienced The PRESIDING OFFICER. The Sen- civil right lawyers. Caucus of State Legislators (NBCSL) is the Gender and disability discrimination cases body that represents some 60 African Amer- ator from Utah. before Judge Shedd fare no better. He has ican state legislators in 44 states, the Dis- Mr. HATCH. Mr. President, I have granted summary judgment on every sexual trict of Columbia and the U.S. Virgin Is- been listening to this recitation of var- harassment claim on which summary judg- lands. Last year, we celebrated our 25th year ious cases involving Judge Shedd, and I ment was requested. Collectively, these rul- of involvement and dedication to many of have to say I certainly have a different ing leave us with the distinct impression the most pressing social issues and policies viewpoint. Let me go through those that, in Dennis Shedd’s view of the world, that impact our legislators’ districts and the nation at large. Our commitment is to our cases in approximately the order that discrimination does not exist, and just as im- the distinguished Senator from portantly, a jury should never be asked even constituents as well as the national agenda. to decide that question. Our dedicated work is to maintain the high- Vermont listed them. We are profoundly disturbed by the mount- est values of civil and human rights insuring My colleague referred to Shults v. ing evidence of Judge Shedd’s zealous efforts that African Americans are a fair and rep- Denny’s Restaurant. This was an to assist the defense in civil rights cases. resentative part of the political and social Americans with Disability Act and There are repeated instances of Judge equations of this great nation. slander case where Judge Shedd sua Shedd’s intervention in civil rights cases— In their letter to you, dated September 4, sponte considered summary judgment without prompting by the defendant—in 2002, members of the South Carolina Legisla- and ordered the plaintiff to file a ways that are detrimental to the plaintiff’s tive Black Caucus have spoken clearly and definitively in opposing the nomination of memorandum in opposition to the case. In a number of cases, Judge Shedd, on court’s sua sponte motion for summary his own motion, has questioned whether he Judge Dennis Shedd to the Fourth Circuit. should dismiss civil rights claims outright or In reviewing the information presented judgment. This action by Judge Shedd grant summary judgment. He has invited de- therein and having also researched the his- was again based on jurisdictional de- fendants to file for attorney’s fees and costs tory and record of Judge Shedd, we find it fenses raised in the defendant’s answer: against civil rights plaintiffs. These are not woefully deficient regarding the issues of Failure to file within the 2-year stat- the actions of an impartial decision-maker. fairness, equality and justice. Moreover, as ute of limitations and failure to ex- We are extremely concerned about Judge has been pointed out by our colleagues in haust the administrative Equal Em- Shedd’s rulings promoting ‘‘States’ rights,’’ South Carolina ‘‘African Americans con- ployment Opportunity Commission re- and view these as a fundamental encroach- stitute a full one-third of South Carolina’s population yet there is only one active Afri- view. ment on Congress’s ability to enact civil In the order, requesting the plaintiff rights and other legislation. Judge Shedd has can American federal judge in the state.’’ In a very restrictive view of Congressional that there are unquestionably ‘‘many, well- to file a memorandum, Judge Shedd power. He struck down the Driver’s Privacy qualified African American . . . jurists’’ in wrote: Protection act of 1994 as legislation beyond South Carolina, this is rightly seen as an un- Although the express language of rule 56 Congress’s power, although this legislation fair and unequal treatment in the sight of provides only for the parties to move for was an ‘‘anti-stalking’’ measures designed to fair representation. Further, considering the summary judgment, Federal district judges prohibit public disclosure of drivers’ license existent disproportionate representation of possess the inherent power to raise, sua information. In an opinion authored by Chief jurists of Color, certainly an effort must be sponte, an issue for possible resolution by Justice Rehnquist, the Supreme Court made to insure that any South Carolina summary judgment. unanimously overturned Judge Shedd’s rul- nominee be a strong advocate of civil and Therefore, Judge Shedd had the right ing and refuted his reasoning. This stand as human rights. Rather, Judge Shedd’s per- to bring this motion under the Rules of one of the few occasions in which the Su- formance on the U.S. District Court for the Civil Procedure. preme Court rejected unanimously a holding District of South Carolina demonstrates My colleague refers to Lowery v. what could be construed as hostile to civil that Congress exceeded its power in enacting Seamless Sensations. This was a title a statute. and constitutional rights. The question of judicial temperament is We have learned that Judge Shedd’s insen- VII case in which the defendant raised raised by Judge Shedd’s offensive remarks sitivity to fairness has been demonstrated in the defense that the plaintiff failed to during a judicial proceeding about an issue his review of employment discrimination timely file both a charge of discrimina- that strikes at the heart of many—the Con- cases brought by African Americans and in tion with the EEOC and the lawsuit.

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00033 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.090 S18PT1 S11264 CONGRESSIONAL RECORD — SENATE November 18, 2002 Both are jurisdictional prerequisites to tioners before the court and ordered side acting as if every plaintiff’s case any Federal court action. the plaintiff to cure specific defi- has to be won no matter what the facts Since that defense called into ques- ciencies in his complaint or face dis- and the law support. Actually, some of tion the court’s subject matter juris- missal. This decision was an attempt those cases have to be lost because diction, Judge Shedd expedited consid- to aid the plaintiff in properly drafting they are not good cases. eration of those defenses. Remember, it his complaint. Now let’s just be honest about it. would serve no purpose for the court to My colleague refers to Tessman v. Is- Cases are decided by judges and ju- proceed on the merits where the court land Ford-Lincoln-Mercury, a title VII rors—judges in nonjury cases and ju- had no jurisdiction. In order to expe- case, where Judge Shedd sua sponte ries in jury cases. I have seen a lot of dite consideration of the issues, Judge challenged the court’s subject matter cases where plaintiffs have not won be- Shedd ordered the defendant to file a jurisdiction, given the plaintiff’s ap- cause they should not have won. To motion to dismiss based on those de- parent failure to allege that she had criticize judicial nominees for ruling fenses. Judge Shedd further ordered first presented her claim to the EEOC against plaintiffs is nonsensical be- that motion should be filed in his court and received a right-to-sue letter. He cause every judge should decide instead of the magistrate court as- ordered the action dismissed unless the against plaintiffs when they are wrong. signed to the case. Ultimately, the de- plaintiff could show cause why that ac- It does not take brains to figure that fendant was granted summary judg- tion should not be taken by the court. out. But I guess for some on the other ment on the grounds that the plaintiff This is a wholly appropriate approach side, unless the plaintiff wins there is could not establish a prima facie case. and probably the only approach that an injustice. Therefore, the case survived the above- could have been taken by any good My colleague criticizes Judge discussed motion to dismiss, evidenc- judge. Shedd’s ruling in Condon v. Reno with My colleague refers to Smith v. Beck, ing that although he raised the issue, the aim of characterizing his judicial a 1983 gender discrimination case in Judge Shedd fairly evaluated the mer- ideology in the process. which several women alleged discrimi- I was shocked to learn by one of its of the case. nation when they were not admitted, In another matter, my colleague Judge Shedd’s detractors that he is a without male escorts to a nightclub makes a special mention of Coker v. ‘‘sympathetic participant in [a] judi- featuring nude female dancers. Judge Wal-Mart. Let’s look at this case to see cial campaign to disempower Con- Shedd sua sponte questioned whether where again my colleague gets it gress,’’ and that he is a judge who the plaintiffs’ allegation sufficed to es- wrong. In this case, the defendant re- ‘‘resort[s] to outdated and reactionary tablish the defendant private club’s ac- moved the case from State to Federal views of federal power.’’ tions were under color of State law. court. Judge Shedd sua sponte ques- I am sure this came as a surprise to Based on his conclusion that merely tioned whether removal was appro- Judge Shedd as well. operating an establishment that has a priate, as it appears the motion for re- Condon v. Reno concerned the Driv- State liquor license does not transform moval had been filed outside the 30-day er’s Privacy Protection Act. Judge a club into a State actor, Judge Shedd time limitation established in 28 U.S.C. Shedd held in Condon that the Act vio- dismissed the case. In other words, he section 1446(b). Doubting whether he lated the Tenth Amendment in that it analyzed the law, as he should. improperly commanded states to im- had the authority to remand the case In short, my colleague has suggested sua sponte, Judge Shedd stated he that Judge Shedd ‘‘assists the de- plement federal policy. The 4th Circuit affirmed Judge would permit the defendant to file a fense.’’ That is so highly misleading a brief addressing whether removal was charge it is hard to take it seriously. Shedd’s ruling, while the Supreme timely and whether the court had au- But I suppose I must since it has been Court ultimately reversed it. But this thority to remand. raised. The truth is that a judge’s dis- was clearly a difficult call to make; in Rather than assisting the defense, cretion in assisting either side to get fact, the lower federal courts that ad- Judge Shedd raised the issue of re- their case right is fairly wide, but dressed the issue split evenly before mand, and held the defendant to the within bounds that Judge Shedd has the Supreme Court ruling, eight find- proper burden of showing that removal not crossed. The Supreme Court of the ing the Act constitutional and eight was proper. He aided the plaintiff, who United States has written: finding it unconstitutional. had apparently failed to raise the issue, [D]istrict courts are widely acknowledged Those finding the Act unconstitu- this is exactly the opposite of what the to possess the power to enter summary judg- tional together with Judge Shedd in- distinguished Senator from Vermont ments sua sponte, so long as the losing party cluded Judge Barbara Crabb, Chief has said. Judge Shedd had a duty to was on notice that she had to come forward Judge of the Western District of Wis- raise the removal issue, a purely juris- with all of her evidence. consin, a Carter appointee, and Judge dictional matter, and he gave the de- The Fourth Circuit Court of Appeals John Gobold of the 11th Circuit, a fendant the opportunity to challenge held that: Johnson appointee. Several Democrat his sua sponte action, which is what a It is a fundamental precept that Federal Governors across the nation, including good judge would do. courts are courts of limited jurisdiction, con- Democrats Jim Hunt of North Caro- My colleague also refers to Gilmore strained to exercise only the authority con- lina, of New Hamp- v. Ford Motor Company, a product li- firmed by Article III of the Constitution and shire and Don Siegelman of Alabama ability case. In that case, Judge Shedd affirmatively granted by Federal statute. A permitted their respective State Attor- primary incident of that precept is our duty sanctioned the plaintiff for failure to to inquire, sua sponte, whether a valid basis neys General to sign onto an amicus prosecute the action by dismissing the for jurisdiction exists, and to dismiss the ac- brief urging the Supreme Court to find case. He made that determination after tion if no such ground appears. the Act unconstitutional. he properly evaluated each of the fac- The truth is that in each of the cases In addition, the Democrat Attorney tors established by the Fourth Circuit in which Judge Shedd acted sua sponte, General of Wisconsin also signed the in Ballard v. Carson. Indeed, my col- he provided the proper notice and op- amicus brief. So, reasonable minds can league in the Senate worries more portunity to respond to the plaintiff. differ on these matters. about this case than did the plaintiff. Perhaps my colleague will be less It seems to me that either the vast The plaintiff failed to respond to this troubled than he appears to be when he right wing campaign to ‘‘disempower’’ motion to dismiss for failure to pros- learns that none of the cases he refers Congress is either much larger than ecute after earlier failing to respond to to where Judge Shedd supposedly as- previously supposed, or that this was a the defendant’s motion to compel dis- sisted the defense were reversed on ap- case in which thoughtful, and respected covery. peal. Not one. It seems it would be best judges could, and indeed did, disagree. Notably, my colleague did refer to to leave the litigation of cases to the Of course, my colleagues ignore an- Simmons v. Coastal Contractors, Inc., parties, lawyers, and judge involved other federalism case of Judge Shedd’s a discrimination and retaliation em- rather than second-guess them on the United States v. Brown. That case in- ployment case in which both parties floor of the Senate. volved the Gun Free School Zones Act. represented themselves pro se. Judge I, for one, am getting a little tired of The defendant challenged the con- Shedd sua sponte brought the peti- some of our colleagues on the other stitutionality of the Act on federalism

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.057 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11265 grounds. Judge Shedd allowed the pros- an attorney-client conversation—had tive federal trial attorney. My practice over ecutor to prove facts at trial that the already been done. the years has developed into primarily a Act was a valid exercise of Congres- In response to the videotaping, pros- ‘‘white collar’’ criminal defense practice. I have appeared many times in court before sional power. ecutors indicted the deputy sheriff for Judge Shedd and found him to be courteous The Supreme Court later invalidated a civil rights violation. Mr. and fair. He has exhibited great integrity the Gun Free Zones Act in United Quattlebaum’s attorney, on the other and a strong character while on the bench. States v. Lopez. Unlike the Condon v. hand, about whom my colleague ap- One of the most difficult cases in which I Reno, Judge Shedd upheld the exercise pears concerned, ended up being in- appeared before Judge Shedd was in United of federal power, yet not surprisingly, dicted for perjury based on his grand States v. John Earl Duncan (3:99–638–001). Mr. his critics point us to the Condon case jury testimony that he had not re- Duncan was a practicing attorney who was convicted of perjury. Judge Shedd sentenced but not to the Brown case. leased the protected videotape to the him to four months in a federal penitentiary That is amazing to me. media, and spent 4 months in prison. and four months in a community confine- My colleague again comments on The deputy sheriff pled guilty to ment center (halfway house). He fined him Judge Shedd’s ruling in Crosby v. charges based on the videotaping of the $33,386.92. Judge Shedd’s decision was a dif- South Carolina Department of Health. attorney-client conversations. ficult one, but fair. As his counsel, we recog- Interestingly he did not raise the My colleague has expressed concern nized that Judge Shedd would be compelled same objections to Judge Roger Greg- that the deputy sheriff who conducted to sentence Mr. Duncan to an active term of incarceration since he was a practicing at- ory who ruled to uphold Judge Shedd’s the improper videotaping was not more ruling when he was before us last year. torney who had been convicted of lying to a heavily penalized by comparison to the federal grand jury. One wonders why? defendant’s attorney who perjured him- During the sentencing phase of the Duncan Judge Shedd is criticized for adopting self after releasing the protected tape case, Judge Shedd was courteous and patient a magistrate report striking down as to the media. and listened intently to the many people unconstitutional part of the Family That concern is easily assuaged. The who spoke on our client’s behalf including Medical Leave Act after a state agency sentencing range in the guidelines for my co-counsel Dale L. DuTremble and me. cited 11th amendment sovereign immu- I know of no judge more qualified for the the offense to which the deputy sheriff position than Judge Shedd. If you have any nity against an employee lawsuit. pled guilty was zero to six months im- questions or I can be of any further support, Of course, the fact that eight of nine prisonment, one year of supervised re- please do not hesitate to call. Circuit Courts have agreed with his lease, and a fine of $1,000 to $10,000. The That ought to put that to bed. ruling seems not to concern my col- Government moved for a downward de- In all honesty, the charges against leagues, including the First, Second, parture of the zero to six months jail Judge Shedd that have been raised are Third, Fourth, Fifth, Sixth, Eighth, time for the police officer based on his shameful; absolutely shameful. It and Eleventh Circuits. assistance in the prosecution of related makes you wonder. Why? Why are we In fact, numerous Democrat-ap- matters. putting a really fine Federal district pointed judges agreed with Judge As Judge Shedd acknowledged during court judge who served almost 13 years Shedd, including Carter appointees the sentencing hearing, in order to de- on the bench with a distinguished Amalya Kearse of the First Circuit, part downward, he had to issue a sen- record through this type of bitter and I Richard Arnold of the Eighth, and Rob- tence that was less than the minimum think shameless set of accusations? ert Anderson of the Eleventh; and Clin- in the guidelines range, i.e., since less We had originally agreed with the ton nominees and than zero time in prison is not possible, Democrat leadership to confirm Judge of The First Circuit, Judge Shedd, in accepting the down- Shedd late last week along with other Theodore McKee of the Fourth, Kermit ward departure request had to impose a judicial nominees by unanimous con- Bye of the Eighth, Jose Cabranes of the fine that was less than $1,000 and could sent, but instead, base politics appears Second Circuit, and Roger Gregory of not impose any jail time on Mr. Grice. to have intervened. I am hopeful we the Fourth Circuit. Those are able, dis- Judge Shedd’s sentencing decisions can get this done tomorrow. tinguished judges. were controlled by the crimes charged According to an article by Byron It should not come as any surprise and the related sentencing guidelines York in National Review Online on Fri- that the Ninth Circuit is the only Cir- enacted by Congress. Judge Shedd’s day afternoon, it is clear what hap- cuit Court which has ruled the other sentence of a fine without jail time was pened. He writes that, after the Shedd way. mandated by the guidelines once the vote in the Judiciary Committee on One would think from this near uni- government’s request for downward de- Thursday, the usual left-wing groups, versal agreement that Judge Shedd’s parture was accepted. including, he writes, People for the ruling in Crosby would seem reasonable My colleague’s concern for the trail American Way, Leadership Conference one, one well within the judicial main- lawyer who served 4 months for per- on Civil Rights, Alliance for Justice, stream, no matter how we look at it. jury, after releasing a privileged video- and the National Abortion Rights Ac- And yet he is criticized for it here on tape to the media, is not altogether tion League, all urged Democrat Sen- the floor. clear to me, especially since that un- ators ‘‘to continue the fight against In the area of Criminal Justice, my ethical conduct caused a convicted Dennis Shedd in the full Senate.’’ He colleague makes special mention of the murderer to escape his sentence. quotes one leader as warning that, Quattlebaum murder case. Let’s look The concern is also strange given ‘‘controversy will follow these nomina- at that case to see where my colleague that my colleague expressed the oppo- tions to the Senate floor.’’ gets it all wrong. site concern with regard to Judge Here we are about to engage in the In that case, officers took into cus- Charles Pickering for questioning the longest debate on a Senate nominee on tody a murder suspect, Mr. inequitable result of mandatory sen- the Senate floor this year. The special Quattlebaum. During police ques- tencing guidelines. interest groups said jump, and so today tioning of Quattlebaum, which Look, let me just bring this to an end we will jump high, and I guess tomor- Quattlebaum was informed was being by reading a letter of one of the attor- row as well. videotaped, the deputy sheriff left the neys involved in that case. This is a I am not complaining entirely. I am room. Soon after the deputy sheriff left letter to me by E. Bart Daniel, attor- grateful to the distinguished chairman. the room, he went to the room where ney at law in Charleston, SC. It is re- I know it is a tough job to be chairman the videotaping was being done and no- garding the nomination of Dennis W. of the Judiciary Committee, and I hope ticed that an attorney was now in the Shedd to the Fourth Circuit Court of this is not his fault. I am not shy of room with Quattlebaum, despite the Appeals. any debate on the President’s superbly fact that no one was to have access to qualified judicial nominees. that room other than law enforcement. DEAR SENATOR HATCH: I have been a prac- But I do fear that, once again the ticing attorney in South Carolina for over 22 The deputy sheriff immediately con- years. During my career, I have served as an American people will roll their eyes sulted with superiors and legal advisors Assistant State Attorney General, an Assist- that, when we have as much to do in as to what to do about the running vid- ant U.S. Attorney, a United States Attorney the Senate that is still undone, the eotape, but the damage—i.e., recording under the previous President Bush and an ac- leadership would think that a divisive

VerDate 0ct 31 2002 02:40 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00035 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.020 S18PT1 S11266 CONGRESSIONAL RECORD — SENATE November 18, 2002 and lengthy debate on a judicial nomi- wholly owned subsidiary of plaintiffs’ chairman of the Democratic Party, and nee is a good idea. trial lawyers, my friends on the other himself a trial lawyer. But I understand why it is happening. side will spend a business day describ- Let me just say that again. Judge I am not a newcomer here. It appears ing an experienced judge as biased, as Shedd is not only supported by my dis- to be happening because of the Lou- pro this and anti that, and now I am tinguished Democrat colleague, Sen- isiana Senate election. afraid some of my Democratic col- ator HOLLINGS, but also by the Demo- It has been rumored and reported leagues can no longer evaluate judges cratic Party chairman in South Caro- that the Northern liberals who hold the as unbiased umpires who call the balls lina. This suggests a reality far from money strings and the liberal special and strikes as they are, not as they the slogans and distortions launched interest groups here in Washington alone see them, and not as they want against President Bush’s nominees, and who claim to represent African Amer- them to be. in particular Judge Shedd. ican interests—have said that the Now, it is silly to suggest an umpire First, it has been suggested that money won’t flow and folks won’t help is pro bat or pro ball or pro batter or Judge Shedd will add to what liberals get out the vote in Louisiana unless pro pitcher, but, of course, trial law- and plaintiffs’ trial lawyers perceive as Judge Dennis Shedd, Senator yers, and those who shill for them, conservative appeals court—or at least THURMOND’s former counsel gets slowed have an interest in exactly such on the issues that profit them. But down yet again. scorekeeping. To say all plaintiffs have contrary to the divisiveness card that (Mr. ROCKEFELLER assumed the to win all cases is just nuts, but yet his detractors are playing, Judge Shedd Chair.) that is what we have been getting late- will add diversity to that Court. Mr. HATCH. Now, look, most of us ly. Mr. President, Dennis Shedd has who have served on the Judiciary Com- But even this is not what bothers me served as a federal jurist for more than mittee for a number of years have the most about the debate that has a decade following nearly twenty years known Judge Dennis Shedd. He was been scheduled today. I am reminded of of public service and legal practice. While serving the Judiciary Com- chief of staff to Senator THURMOND what my friend Senator KENNEDY said when he was chairman of the com- in 1982 about those who opposed ex- mittee, Judge Shedd worked, among many other matters, on the extension mittee, and his chief counsel when he tending the Voting Rights Act. Senator of the Voting Rights Act, RICO reform, was not chairman. KENNEDY lamented in 1982 that ‘‘there the Ethics in Post-Employment Act, I have known him for most of my are those among us who would open old and the 1984 and 1986 crime bills. time in the Senate. He is one of the fin- wounds . . . [and] refight old battles.’’ As Senator BIDEN put it: ‘‘His hard est people I have ever known. He is also Mr. President, they say the more one of the better Federal district court work and intelligence helped the Con- things change, the more they stay the gress find areas of agreement and reach judges in the country. Judge Shedd is a same—well, almost the same. decent man. I resent his being dragged compromises.’’ Now, with that regret expressed, I That leads me to address a few issues through this process for months, as he wish to express my great satisfaction that have been raised by his detractors. has been. Senator THURMOND’s last re- that the Judiciary Committee has fa- Mr. President, the last five Fourth quest has gotten slowed down again. vorably recommended the nomination Circuit confirmations have all been Now, I am grateful we are going to of Judge Dennis Shedd of South Caro- Democrats. have a vote on him tomorrow, up or lina for a vote of the full Senate. What seems to me more important to down. I surely hope my colleagues will Mr. President, Senators feel very focus on—and what the American peo- look at his record, and not look at the strongly about their staffs. Our legal ple want us to focus on—is that when distortions of his record, and will vote counsels make uncounted sacrifices to Judge Shedd joins the other members for him and will support Senator work for us and for the American peo- of the Fourth Circuit, he will not only THURMOND and those of us who know ple. We are surrounded by very tal- have unmatched legislative experience, him, and know him well. ented lawyers who forego larger sala- he will also have the longest trial I think some have trouble getting the ries for the sake of public service. bench experience on the Fourth Circuit message. The message I got from the Sometimes they put their personal Court of Appeals. recent election is perhaps different opinions aside to advocate ours. Interestingly, by way of disproving than what my colleagues across the We Senators take it very personally some of my colleagues’ diversity- aisle received. As far as I see it, the when they are nominated and given the mania, the last Democrat confirmed to President took three issues to the opportunity for yet higher public serv- the Fourth Circuit Court of Appeals, American people: his policy, ice. It has been the tradition of the Ju- Judge Gregory, has affirmed Judge homeland security, and his judicial diciary Committee to give great cour- Shedd’s rulings in 11 appeals. Notably, nominees. Of course, he had other tesy to former staffers. I certainly take Judge Gregory agreed with Judge issues, but those were the three pri- it very personally, and know Senator Shedd’s ruling in the Crosby case, mary issues. THURMOND does, too, that we have not which found that the Family and Med- The election showed that Americans done so in the case of Dennis Shedd, ical Leave Act was improperly adopted trust this President, including in his who has served with distinction for the by Congress, a case which the liberal selection of judicial nominees. The last 12 years as a Federal district court groups seem worked up about when it election indicated voters rejected the judge in South Carolina. comes to Shedd but not when it came obstruction in the Senate we experi- When Judge Shedd was nominated to to Judge Gregory. No one asked Judge enced this last year, including on judi- the Federal trial bench, Chairman Gregory about his ruling in Crosby cial nominees. Voters especially re- BIDEN had this to say to him: when he was before the Judiciary Com- jected the shrillness and the distor- I have worked with you for so long that I mittee last year. But may Democrat tions of reputations they read and believe I am fully qualified to make an inde- colleagues drilled Judge Shedd on it. heard about in hundreds of news sto- pendent judgment about your working hab- Talk about discrimination. ries, scores of editorials, and dozens of its, your integrity, your honesty, and your Mr. President, Judge Dennis Shedd op-eds, and those they saw on TV. Vot- temperament. On all these scores, I have has heard more than 5,000 civil cases, ers sent us a clear message, it seems to found you to be beyond reproach. reviewed more than 1,400 reports and me, that we should end the obstruction Now, this is high praise indeed from recommendations of magistrates, and and maltreatment of judicial nomi- a colleague on the other side of the has had before him nearly 1,000 crimi- nees, and yet here we are about to en- aisle for whom we all have the greatest nal defendants. gage in hours of debate that will large- respect. Judge Shedd has strong bipar- Judge Shedd’s record demonstrates ly see the race card played, and the tisan support in his home State as that he is a mainstream judge with a role of judges—and one judge, in par- well, and not only from Senator law reversal rate. In the more than ticular—distorted and THURMOND and Senator HOLLINGS—a 5,000 cases Judge Shedd has handled mischaracterized. Republican and a Democrat—he is also during his 12 years on the bench, he has Today, at the behest of the so-called strongly supported by Dick been reversed fewer than 40 times—less Washington civil rights lobby, now a Harpootlian, South Carolina State than 1 percent.

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00036 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.025 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11267 Detractors have made much of the mantle of the civil rights movement, have ignored the wetlands protection fact that he has relatively few deci- Washington’s professional nominee de- case where he handed down tough sanc- sions he has chosen to publish. But, in tractors have been particularly mis- tions against a violator and ordered ex- fact, he falls in the middle of the aver- leading on Judge Shedd’s employment pensive wetlands restoration. age for published opinions in the cases. The left-wing detractors skipped over Fourth Circuit. One Carter appointee They have misleadingly pointed out Judge Shedd’s decision in favor of Na- has published all of 7 cases, one Clinton that the Judge seldom grants summary tional Campaign to Save the Environ- appointee has published only 3, and an- judgment in employment cases in favor ment. other Carter appointee has published of the employee. Of course, they fail to They missed his ruling to grant 51, only one more than Judge Shedd, point out that few judges do. Any good standing to a plaintiff challenging a despite being on the court for 10 years lawyer knows that. Summary judg- road construction project on its envi- longer. ment is a judgment without a jury, and ronmental impact. Judge Shedd is known for his fair- every good lawyer knows that employ- They missed his ruling in favor of a ness, for his total preparation, and for ment cases are inherently fact-laden woman protesting possible waste showing no personal bias in his court- and go to trial by a jury or more often dumping in her community. room. This is not just my opinion; this they settle. Or in many cases, the em- The well-paid, left-wing lobbyists reflects the opinions of lawyers who ployee fails to state a claim and the who have turned attacking President practice before him. Judge Shedd is case has to be dismissed. Bush’s judicial nominees into a small well-respected by members of the Of course, Judge Shed’s detractors cottage industry see only what they bench and bar in South Carolina. Ac- could have noticed that he has only want to see and not what the truth cording to the Alamanc of the Federal twice been reversed in his decisions in would show them. Judiciary, attorneys said that Judge employment cases. But of course, they The most breathtaking charge Shedd has outstanding legal skills and did not notice that. against Judge Shedd was first made by an excellent judicial temperament. They might have pointed out that in the NAACP that Judge Shedd has—‘‘a Here are a few comments from South one of the appeals that he was invited deep and abiding hostility to civil Carolina lawyers: ‘‘You are not going to hear for the Fourth Circuit, he re- rights.’’ to find a better judge on the bench or versed a summary judgment and re- I must admit that was outraged by one that works harder,’’ ‘‘He’s the best manded for trial a political discrimina- this when I first read it, and I still am. federal judge we’ve got.’’ ‘‘He gets an A tion case against a worker who was a It is a distortion far beyond the pale of Democrat. But they did not do that ei- all around.’’ ‘‘It’s a great experience decency, and I call on my colleagues ther. trying cases before him.’’ ‘‘He is polite once again to repudiate such rabid Judge Shedd’s detractors have also practices. and businesslike.’’ made irresponsible claims as to the Let me take a moment also to ad- In part, I am outraged because there Judge’s criminal case record. are some who would profile Judge dress one of the more ludicrous at- In fact, in criminal cases, Judge Shedd as merely a white male from the tempts to discredit Judge Shedd that Shedd has strongly defended citizens South and start from there to give him has been raised: that when he was con- due process rights from violation by a certain treatment. firmed to the District Court bench he the state. He has frequently chastised If Judge Shedd’s record working for had little experience in the practice of law enforcement for errors in search civil rights legislation on the Judiciary law. warrants an the questionable use of Committee were not enough of an ac- I have to say that to ignore the re- seized property. In fact, he has sanc- complishment for one lifetime for any markable experience Dennis Shedd had tioned the State for discovery prob- man or woman, the truth is that in in legislation practice crafting historic lems. He is known for aggressively in- laws while serving the Judiciary Com- forming defendants and witnesses of each of the cases that have come before mittee is some chutzpah. To raise an their fifth amendment rights. Judge Shedd involving the Voting objection like that almost 13 years Remarkably, Judge Shedd has never Rights Act of 1965, plaintiffs have won after the fact is just plain silly. But it been reversed on any ruling considered their claims. goes to show what we have to put up before or during trial, or on the taking In the Dooley case, a one person/one with in the obstruction and distortions of guilty pleas. His detractors have vote case, Judge Shedd gave the plain- of this past year. somehow failed to note this. tiff a clear and strong decision. In an- Let’s be clear, when Judge Shedd The cases that come before a judge other political rights case, he ruled to joins the other members of the Fourth are often difficult. Judge Shedd has not protect the plaintiff’s right to make Circuit, he will not only have un- been exempted. In one prisoner’s case, door-to-door political . matched legislative experience, he will Judge Shedd allowed a detainee to en- Of course, Mr. President, you know a also have the longest trial bench expe- gage in a hunger strike and ruled lot about a judge by how they conduct rience on the Fourth Circuit. He will against government’s attempt to force their courtroom. As you know, I have also add some diversity to that court. feed him. been a strong advocate for the protec- The last five Fourth Circuit confirma- Although some would seek to ques- tion of religious practices in the public tions have all been Democrats. tion Judge Shedd’s respect for privacy square. It says a lot about Judge I have to say that the most mis- in criminal cases, into cases he pro- Shedd, especially in these times, that leading criticism raised about Judge tected HIV blood donor’s confiden- he has allowed religious headdress in Shedd involves his employment cases. tiality. In another case, he ordered spe- his courtroom. Downright deceptive is that Judge cial accommodations to an HIV posi- Judge Shedd also led efforts to ap- Shedd’s detractors, the outside liberal tive defendant to ensure his continued point the first African American groups, have now taken to grouping clinical treatment. woman ever to serve as a magistrate and describing employment cases as These are not the rulings of a judge judge in South Carolina and has sought civil rights cases. who is insensitive to prisoners and the Selection Committee to conduct They want us to believe that every criminals, but this is the record of a outreach to women and people of color quarrel between an employee and her judge who works hard to get the work in filling such positions. He pushed for employer rises to a signifi- of law enforcement right. an African American woman to be chief cance. No doubt every plaintiff’s trial Of course, no smear campaign of pretrial services. He has actively re- lawyer would like to think of them- against a Bush judicial nominee, paid cruited persons of color to be his law selves as a Thurgood Marshall. But this for plaintiffs’ trial lawyers, and carried clerks. deception is unfortunate and a dis- out by their left-wing lobbyists, is And because of Judge Shedd’s work service to the cause of civil rights that complete without the suggestion that in an award-winning drug program that I have longed championed in this the nominee is foe of environmental aims to reverse stereotypes amount Chamber. rights. 4,000 to 5,000 school children, he was Cloaking every small, perhaps even Of course, in their paint-by-the-num- chosen as the United Way’s School Vol- frivolous, employment case with the bers attack, Judge Shedd’s detractors unteer of the Year.

VerDate 0ct 31 2002 01:50 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00037 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.033 S18PT1 S11268 CONGRESSIONAL RECORD — SENATE November 18, 2002 The Judiciary Committee received a employee who repeatedly displayed the §§ 2721–25 and was later overturned in a 9-to- very touching letter from one of Judge Confederate flag on his toolbox in vio- 0 decision by the Supreme Court, confirms Shedd’s former law clerks, Thomas lation of company policy. Judge Shedd our perspective that Judge Shedd’s judicial philosophy and temperament would further Jones, that we have blown up here. rejected the plaintiff’s contention that push the Fourth Circuit to the right-wing. Perhaps the Presiding Officer will be he was dismissed because of his na- Accordingly, as unanimously passed by the able to read it from the chair. tional origin as a ‘‘Confederate South- over 1,200 delegates to the 2002 NAACP Na- The letter says: ern American.’’ tional Convention, I ask that you oppose the Dear Senator LEAHY: My name is Thomas Perhaps my colleagues have sym- nomination and that you use your influence W. Jones, Jr. I am an African American at- pathy for that plaintiff, too. After all, to encourage the Senate Judiciary Com- torney currently practicing as a litigation the plaintiff was represented by a trial mittee to not vote him out of Committee. associate in Baltimore, MD. Upon my grad- However, if the nomination makes it to the lawyer in this employment case—or as Senate floor, we ask you to vote against it. uation from the University of Maryland they would like us to see it, a civil School of Law, I had the distinct pleasure of I appreciate your attention and interest in rights case—even though it was this important matter. Please do not hesi- serving as a judicial clerk for the Honorable tate to contact me or Hilary Shelton, Direc- Dennis W. Shedd on the U.S. District Court brought on behalf of a true racist. tor of the NAACP Washington Bureau at for the District of South Carolina. During I looked at a letter that the NAACP (202) 638–2269, if we can be of assistance. my 18 months of working with Judge Shedd, sent to the Judiciary Committee, a let- Sincerely, I never encountered a hint of bias, in any ter all the other copycat groups have KWESI, MFUME, form or fashion, regarding any aspect of repeated. President & CEO. Judge Shedd’s jurisprudence or daily activi- I ask unanimous consent that the Mr. HATCH. They describe their so- ties. It is apparent to me that the allega- letter be printed in the RECORD so ev- tions regarding Judge Shedd’s alleged biases erybody can see how fake the Wash- called civil rights complaint, and it have been propagated by individuals without ington NAACP has become when they boiled down to something not having the benefit of any real, meaningful inter- anything to do with Judge Shedd’s carry the plaintiffs’ trial lawyers’ action with Judge Shedd, his friends or fam- civil rights record. They project on to ily members. I trust the accusations of bias water. There being no objection, the mate- Judge Shedd their complaints about levied against Judge Shedd will be given the the Fourth Circuit as it currently short shrift they are due, and trust further rial was ordered to be printed in the stands. Though personally I believe that this honorable committee will act fa- RECORD, as follows: vorably upon the pending nomination of NATIONAL ASSOCIATION FOR THE that these charges are unfounded. Judge Shedd for the United States Court of ADVANCEMENT OF COLORED PEOPLE, Well, Judge Shedd is not on the Appeals for the Fourth Circuit. Thank you Baltimore, MD, September 17, 2002. Fourth Circuit yet. for your attention regarding this matter. Re- Re Fourth Circuit nomination of Judge The NAACP’s well-funded complaint spectfully, Thomas W. Jones, Jr. Shedd. is about appellate decisions Judge That was written on June 25 of this U.S. SENATE, Shedd has had nothing to do with. That year to Senator LEAHY. Washington, DC. is remarkably irresponsible for an or- I will read another letter into the DEAR SENATOR: On behalf of the NAACP, ganization once so distinguished. the nation’s oldest, largest and most widely- RECORD as well. This is a letter from Thurgood Marshall would be very dis- recognized grass roots civil rights organiza- Phyllis Berry Myers, President and pleased with this sort of sloppy advo- tion, I am writing to let you know of the As- cacy. CFO of the Center for New Black Lead- sociation’s strong opposition to the nomina- ership. I believe we received it today. It Then the NAACP got to the heart of tion of District Court Judge Dennis W. Shedd the matter. In the letter signed by reads as follows: to the Fourth Circuit Court of Appeals. Dele- gates from every state in the nation, includ- Kwesi Mfume they show who is paying DEAR SENATOR HATCH: The Centre for New the bills. On behalf of plaintiff’s trial York Leadership (CNBL) believes the Sen- ing the five states comprising the Fourth ate’s judicial nomination system is broken Circuit, unanimously passed a resolution lawyers, the NAACP complains about and needs repairing. from the South Carolina State Conference in Judge Shedd’s employment rulings— We have watched with great trepidation as opposition to the nomination at the not his civil rights or voting rights rul- the Senate’s role of ‘‘advise and consent’’ for NAACP’s annual convention in Houston ings which are unimpeachable, but em- Presidential nominations, especially judicial early July. ployment rulings. As I have said be- nominations, has become increasingly, Members of the NAACP believe that the fore, we know such a complaint has no federal judiciary, as the final arbiter of the ‘‘search and destroy,’’ ‘‘slander and defame.’’ basis in the reality of how employment It is a wonder that reasonable, decent people U.S. Constitution, is the branch of govern- ment primarily charged with protecting the cases are litigated and resolved. agree to go through the confirmation process Of course they, too, fail to note that at all. rights and liberties of all Americans. In The confirmation process has become par- many instances in our nation’s history, the Judge Shedd has only been reversed ticularly brutal if the nominee is labeled courts have been the only institution willing twice in employment cases during his ‘‘conservative.’’ Traditional civil rights to enforce the rights of minority Americans. 12-year career on the Federal bench. groups mass to castigate and intimidate, as We cannot afford to permit the federal judi- The truth is the so-called civil rights they do now, attempting to thwart the con- ciary to retreat from its constitutional obli- attack on Judge Shedd is nothing but a firmation of Judge Dennis W. Shedd to the gation and resort to the type of judicial ac- campaign paid by and for the plaintiff’s U.S. Fourth Circuit Court of Appeals. tivism that threatens civil rights and civil trial lawyers. They stoop so low to get liberties. Once again, we are witnessing the new their profits that they have put the depth to which public discourse and debate No other federal circuit reflects this ex- has sunk when fabrications, statements treme right-wing activism more than the NAACP, that once great organization, taken out of context, misinformation and Fourth Circuit Court of Appeal, which is and other civil rights groups up to do disinformation can pass as serious political home to more African Americans than any their dirty work. That bothers me a deliberation and debate. The vitally needed other circuit. The Fourth Circuit Court of lot. discussion about continued civil rights Appeals’ hostility to civil rights, affirmative Just so I set the record straight, I progress in a 21st Century world gets lost in action, women’s rights, voting rights and know a lot of really good trial lawyers the cacophony. Our nation and true civil fair employment is unrivalled. Its decisions in this country. I know a lot of them rights advocates are poorer because of this. are so far out the mainstream that the Su- preme Court has reversed the Fourth Circuit who fight for justice, for rights for the The Senate can restore to itself, at least a oppressed and for those who are down modicum, a sense of fair play, honor, and on basic constitutional protections such the trust in its own policies and procedures, a Miranda warnings. trodden. I am not referring to them. I commitment to guarding the civil rights of Judge Shedd’s addition to the Fourth Cir- am talking about those who are fund- all, as well as advancing the rule of law by cuit would further relegate that court to the ing these vicious left-wing attacks on swiftly confirming Judge Shedd. periphery of judicial mainstream. His judi- President Bush’s judicial nominees, Sincerely, cial record and testimony before the Judici- and there are plenty of them. They are PHYLLIS BERRY MYERS, ary Committee reflect a disposition to rule loaded with dough, and they seem to President & CEO. against the plaintiff in employment and dis- crimination cases. Moreover, his restrictive want to manipulate the Federal bench Of course, the liberal groups starkly view of federal legislation authority, as indi- like they have some of the State court ignore Judge Shedd’s ruling in the cated in Condon v. Reno, 972 F.Supp. 977 benches. It is wrong. Vanderhoff case. In that case, Judge (D.S.C. 1997), which struck down the Driver’s Dennis Shedd is well qualified to Shedd dismissed the claim of a fired Privacy Protection Act of 1994, 18 U.S.C. serve on the Fourth Circuit Court of

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00038 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.035 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11269 Appeals. I think so, and the American Again, I am pleased there will be no ments for plaintiffs, that he was not Bar Association, hardly a bastion of filibuster against this worthy Federal fair. In employment cases, often the conservative politics, has said so. district court judge who has served entire contest is whether the plaintiff In supporting his confirmation, I for with distinction for the last 12 years. I survives summary judgment, after one express my gratitude on behalf of caution this body, I hope we do not re- which the case settles. And that is true the American people for an entire life sort to filibusters on judicial nominees, in Judge Shedd’s cases. Once a sum- spent in public service. as has been recommended by some no- mary judgment is refused, that means One other letter I will read is a letter table left-wing law professors. Filibus- the case is going to be tried by a judge from the Congress of Racial Equality. tering judicial nominations should not or jury, and then the parties settled. It is written to Senator DASCHLE as of be done lightly, if at all. When we elect I ask unanimous consent that the today’s date. It reads as follows: a President, we elect a President who letter from Chief Judge Anderson be Dear Senator Daschle: This is an open let- will have the power to choose his or printed in the RECORD. ter in the interest of justice. The Congress of her judicial nominees. Senator’s have a There being no objection, the mate- Racial Equality, CORE, enthusiastically en- right to raise any issues against those rial was ordered to be printed in the dorses Judge Dennis Shedd for the Fourth nominees, so long as they are honestly RECORD, as follows: Circuit Court of Appeals. Despite a Demo- raised. U.S. DISTRICT COURT, cratic filibuster against Judge Shedd— In Judge Dennis Shedd’s case, the DISTRICT OF SOUTH CAROLINA, And, of course, I am pleased there is outside groups have raised a lot of Columbia, S.C., November 18, 2002. not going to be a filibuster. I think issues that are not honestly raised. I In re Dennis W. Shedd, Nominee to Fourth that is very unwise, and I hope we do have not heard any criticisms against Circuit Court of Appeals. not stoop to that level on either side of him that are valid in my judgment, and Senator ORRIN HATCH, the aisle. I thought we had overcome I know Judge Shedd personally and I Ranking Republican Member, Judiciary Com- mittee, U.S. Senate, Dirksen Senate Office that propensity in the last number of have reviewed his complete record. Just this morning, I received a letter Building, Washington, DC years. There have been so few in the DEAR SENATOR HATCH: This in response to history of this body, I hope we do not from , chief judge for your request that I provide information re- stoop to that again. the District of South Carolina. It is garding Dennis W. Shedd, a judge on our The letter reads as follows: noteworthy that Chief Judge Anderson court, who has been nominated for a position DEAR SENATOR DASCHLE: This is an open was a Democratic member of the South on the United States Court of Appeals for letter in the interest of justice. The Congress Carolina Legislature before his ap- the Fourth Circuit. I have served as a United of Racial Equality (CORE) enthusiastically pointment to the Federal bench. He States District Judge for 16 years, the last endorses Judge Dennis Shedd for the Fourth served as a district court judge for 16 two as Chief Judge for our district. I knew Circuit Court of Appeals. Despite a Demo- years and chief judge for the last 2 Judge Shedd prior to his appointment as U.S. District Judge, and, subsequent to his cratic filibuster against Judge Shedd, it is years. He and Judge Shedd have been the strong opinion of CORE that Judge appointment, he and I have served as suite suite-mates in the Federal courthouse mates in the courthouse here in Columbia. I Shedd is a more than worthy candidate for in Columbia. For all of these reasons, the Fourth Circuit Court of Appeals. therefore, feel that I am qualified to com- Judge Shedd’s character has been under at- he writes, he believes he is qualified to ment on his abilities, qualifications, and rep- tack without merit and without fair scrutiny comment on Judge Shedd’s abilities, utation. of his service to the American legal system. qualifications, and reputation. Judge In response to your specific inquiries, I can Prior to serving the bench, Judge Shedd Anderson writes: say without hesitation that Judge Shedd has a reputation for fairness, both in his commu- served faithfully from 1988–1990 as Chairman I can say without hesitation that Judge nity and on our court. As Chief Judge, I have of the South Carolina Advisory Committee Shedd has a reputation for fairness, both in received no complaints about his courtroom to the U.S. Commission on Civil Rights. A his community and on our court. As Chief demeanor, his decisions, or his procedures. It fair and honest review of Judge Shedd’s un- Judge, I have received no complaints about is my considered opinion that all people who published opinions would show that he has his courtroom demeanor, his decisions, or his appear in his court receive a fair hearing, re- sided numerous times with plaintiffs in cases procedures. It is my considered opinion that gardless of the type of cases involved, or the of race, gender and disability rights without all people who appear in his court receive a status of the parties in the case (plaintiff or falter or hesitation. In each case, his deci- fair hearing, regardless of the type of cases defendant). sions have allowed employment discrimina- involved, or the status of the parties in the Judge Shedd is scrupulous in his dealings tion lawsuits to go forward in the interest of case (plaintiff or defendant.) on the court. If there is any remote sugges- fairness and truth. The letter continues: tion of the appearance of impropriety, he Judge Shedd has shown his commitment to Judge Shedd is scrupulous in his dealings will not hesitate, and has not hesitated, to employment rights for minorities and on the court. If there is any remote sugges- recuse himself and he is very consistent women, particularly within the court. His ef- tion of the appearance of impropriety, he about this. forts have championed the efforts to recruit will not hesitate, and has not hesitated, to I regularly review the advance sheets of and elect the first African-American U.S. recuse himself and he is very consistent the United States Court of Appeal for the Magistrate Judge in the South Carolina Dis- about this. Fourth Circuit, and it would appear to me trict, Margaret Seymour. He was actively that Judge Shedd has an extremely good af- sought minority and female candidates for Chief Judge Anderson then addresses the quality of Judge Shedd’s decisions. firmance rate in that court. other Magistrate Judge positions, and has di- In regard to the issue of granting summary rected the Selected Commission in South He says: judgment or otherwise dismissing case short Carolina to bear in mind diversity in the se- I regularly review the advance sheets of of trail, it appears to me that Judge Shedd’s lection of candidates for these positions. the United States Court of Appeal for the record is no different from any other judge in Judge Dennis Shedd’s accomplishments Fourth Circuit, and it would appear to me this district. That is to say, some of his and service have transcended bi-partisan that Judge Shedd has an extremely good af- cases are ended by a ruling on summary support even from his home state Senators, firmance rate in that court. judgment. Those that are not are then set for notably, Senators Strom Thurmond and Sen- He continues: trial and a great number of those eventually ator Ernest Hollings who wholly support his settle before the trial can be conducted. In nomination. In regard to the issue of granting summary regard to summary judgment decisions, set- In the interest of fairness, balance we ask judgment or otherwise dismissing cases tlements, and actual trials, Judge Shedd’s you to look past the unfounded partisan at- short of trial, it appears to me that Judge statistics are not significantly different from tacks of propaganda against Judge Shedd Shedd’s record is no different from any other judge in this district. That is to say, some of any other judge in this district. and fairly examine his work for yourselves. I hope this letter is responsive to your in- We strongly believe Judge Shedd’s accom- his cases are ended by a ruling on summary judgment. Those that are not are then set for quiry and if you need any additional infor- plishments and contributions to justice and mation, please do not hesitate to let me civil rights speaks for itself. trial, and a great number of those eventually settle—which means that the plaintiff and know. We hope that you would join CORE in our With kind personal regards. support of Judge Dennis Shedd and urge Sen- defendant agree on the outcome. In regard to summary judgment decisions, settlements, JOSEPH F. ANDERSON, Jr., ate Democrats to end the unfair filibuster Chief United States District Judge. against him. Let Judge Shedd have his day and actual trials, Judge Shedd’s statistics on the Senate floor are not significantly different from any Mr. HATCH. I believe this letter Sincerely, other judge in this district. speaks volumes about Judge Shedd’s NIGER INNIS, It is ridiculous to say that, because a fairness and dispels the completely un- National Spokesman. judge has not granted summary judg- founded criticism that Judge Shedd’s

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00039 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.067 S18PT1 S11270 CONGRESSIONAL RECORD — SENATE November 18, 2002 reversal rate or dismissal rate is some- The delay and speechmaking about Although it is flattering that the Re- how out of sync or cause for concern. Judge Shedd fits right into the pattern publican record under my leadership is I have been on the Senate Judiciary we have been seeing for almost two being used as the benchmark for fair- Committee for 26 years. Most of my years. ness, I am afraid that this does not colleagues will say I have acted with Under Democrat control, the Senate make for a correct comparison because fairness, honesty, and candor during has undertaken a systematic effort to Republicans were never in control dur- those 26 years. Most would say I have treat President Bush and his judicial ing President Clinton’s first 2 years in done so as chairman of the committee nominees unfairly. Some have at- office. when I have been chairman. I know tempted to justify this unfair treat- Let me repeat that, we were never in Dennis Shedd. I know him very well. I ment as tit-for-tat, or business as control during President Clinton’s first worked closely with him and Senator usual, but the American people should 2 years in office. The proper compari- THURMOND, as did many on the com- not accept such a smokescreen. What son is not to the Republican record of mittee. I saw in Dennis Shedd a very the Senate is doing is unprecedented. the last 6 years of President Clinton, scrupulously honest and decent man. I Historically, a president can count but to his first 2 years. never saw one iota of evidence that he on seeing all of his first 11 Circuit Despite the numbers that my col- was anything but an honest and decent, Court nominees confirmed. As you can league throws out in their comparison honorable human being, with the re- see on this chart, Presidents Reagan, of apples to oranges. spect for all people, regardless of race, Bush and Clinton all enjoyed a 100 per- Now, Mr. President I brought a vis- religion, or origin—or any other rea- cent confirmation rate on their first 11 ual. Here you see apples and oranges. It son. I can say this man served the com- Circuit Court nominees. In stark con- is fair to say that they are difficult to mittee well. He was chief of staff for trast, 7 of President Bush’s first 11 compare and that a comparison only the committee when Senator nominations are still pending at the leads the listener to conclude that they THURMOND was chairman. He got along close of President Bush’s first Con- are both fruit. But they are not at all well with everyone. He did his job, and gress. the same kind. did it well. History also shows that Presidents The fact remains that the Democrat He has had experience in private can expect almost all of their first 100 achievement in this Session fails no- practice. He has had experience in this nominees to be confirmed swiftly. ticeably when properly compared, ap- legislative body that I don’t think Presidents Reagan, Bush and Clinton ples to apples. many staffers could match. He has had got 97, 95 and 97, respectively, of their During President Clinton’s first Con- 12 years of experience on the Federal first 100 judicial nominations con- gress, when Senator BIDEN was the district court bench in South Carolina firmed. But the Senate has confirmed Chairman of the Judiciary Committee, where the chief judge himself says he only 83 of President Bush’s first 100 the Senate confirmed 127 judicial nomi- has distinguished himself. nominees. nees. And Senator BIDEN achieved this I have bitterly resented some of the Some try to blame Republicans for record despite not receiving any nomi- outside attacks which have come to be the current vacancy crisis. That is nees for the first 6 months—in fact, the norm in the case of President bunk. In fact, the number of judicial Senator BIDEN’s first hearing was held Bush’s nominees. If a person is consid- vacancies decreased by three during on July 20th of that year, more than a ered moderate to conservative or con- the 6 years of Republican leadership. week later than the first hearing of servative, then automatically these There were 70 vacancies when I became this Session, which occurred on July groups start to attack some of these chairman of the Judiciary Committee 11, 2001. people. It is not right. I have had re- in January 1995, and there were 67 at Clearly, getting started in July of spect for a number of these groups in the close of the 106th Congress in De- Year One is no barrier to the confirma- the past, but I have lost respect for cember 2000. tion of 127 judges by the end of Year them in the last couple of years with Some try to justify wholesale delays Two. But we have confirmed only 99 some of the arguments they have made as payback for the past. That is also nominees in this Session. and some of the cases they have tried untrue. Look at the facts: During Senator BIDEN’s track record during to make and some of the distortions President Clinton’s 8 years in office, the first President Bush’s first 2 years they have foisted upon the Senate Ju- the Senate confirmed 377 judges—es- also demonstrates how a Democrat-led diciary Committee. It is time to quit sentially the same (5 fewer) as for Senate treated a Republican president. doing that. I would like to see the out- Reagan (382). This is an unassailable Then-Chairman BIDEN presided over side groups argue their cases well, record of non-partisan fairness, espe- the confirmation of all but 5 of the argue their ideology well, do what they cially when you consider that Presi- first President Bush’s 75 nominees in are organized to do, but do it honestly, dent Reagan had 6 years of a Senate that first two-year session. Chairman do it fairly; do not destroy a person’s controlled by his own party, while THURMOND’s record is similar. The con- reputation, as I think many have at- President Clinton had only 2. trast to the present could hardly be tempted to do here, and especially a Finally, some might suggest that the starker. person against whom you can find no Republicans left an undue number of We are about to close President real fault. nominees pending in Committee with- Bush’s first 2 years in office, having I know Dennis Shedd. He is an honor- out hearings at the end of the Clinton failed the standards set by Chairman able, honest, competent, intelligent, administration. Well, we left 41, which BIDEN and Chairman THURMOND. That former chief of staff of this committee is 13 less that the Democrats left with- is nothing over which to be proud. but now Federal district judge in South out hearings in 1992 at the end of the Mr. HOLLINGS. Mr. President, in Carolina. He deserves some respect in Bush Administration. South Carolina, Senator THURMOND and this body, and he deserves the vote of So you see, Mr. President, what is I have a long tradition of working co- this body. I hope my colleagues will happening to Judge Shedd fits into a operatively to nominate judges. Sen- look past some of these unfortunate pattern of unfairness that is not justi- ator THURMOND has made good choices criticisms that are, in my opinion, dis- fied by any prior Republican actions. in the past, and he has done so again, honest, that we have shown to be dis- President Bush deserves to be treated with Judge Dennis Shedd, for elevation tortions, and vote for Dennis Shedd to- as well as the last three Presidents. to the Court of Appeals for the Fourth morrow so that he can bring a greater NOMINATIONS RECORD OF THE 107TH CONGRESS Circuit. element of ability to the circuit court My Democrat colleagues are appar- Judge Shedd is familiar to many of appeals. ently proud that in this Session, so far, Members, having staffed the Judiciary Mr. President, contrary to some of the Senate has confirmed 99 judges. Committee for several years, and of the arguments made here today, it is There is much eagerness in their voices course serving as chief counsel and ad- clear to me that this debate is not so in asserting that this number compares ministrative assistant to Senator much about Judge Shedd, as it is about favorably to the last three sessions of THURMOND himself. the purposeful delaying and denying of Congress during which Republicans He is a very smart and capable man. President Bush’s judicial nominations. were in control of the Senate. For more than a decade, he has been a

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.069 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11271 judge on the United States District U.S. DISTRICT COURT, authority reflects that he has taken a fair Court for South Carolina, based in Co- DISTRICT OF SOUTH CAROLINA, and balanced approach to these issues and is lumbia. He has a reputation as a hard Columbia, SC, November 18, 2002. well within the accepted mainstream among worker on the bench, as a straight- In re Dennis W. Shedd, Nominee To Fourth federal judges. On the difficult issue of Circuit Court of Appeals. whether Congress had authority under the shooter, and one who is up-to-date on Senator ORRIN HATCH, Commerce Clause to enact the Driver’s Pri- the laws. By special designation, he has Ranking Republican Member, Judiciary Com- vacy Protection Act (DPPA), Judge Shedd sat on the Fourth Court on several oc- mittee, U.S. Senate, Washington, DC. concluded, after careful analysis of existing casions. DEAR SENATOR HATCH: This in response to case law, the DPPA violated the Tenth No judge now sitting on the Fourth your request that I provide information re- Amendment in that it commanded states to Circuit has as much Federal trial expe- garding Dennis W. Shedd, a judge on our implement federal policy in violation of Su- rience. On the bench, he has handled court, who has been nominated for a position preme Court precedent, New York v. United on the United States Court of Appeals for States, 515 U.S. 144 (1992), and Printz v. United 5,000 cases, and he has been reversed the Fourth Circuit. I have served as a United States, 521 U.S. 898 (1997). See Condon v. Reno, less than one percent in that entire States District Judge for 16 years, the last 972 F.Supp. 977 (D.S.C. 1997). time, an outstanding record of sound two as Chief Judge for our district. I knew While the Supreme Court ultimately ruled judgment. Judge Shedd prior to his appointment as that DPPA represented a valid exercise of I can say he has the support of a wide U.S. District Judge, and, subsequent to his Congress’ Commerce Clause power, 7 of the array of lawyers in South Carolina, and appointment, he and I have served as suite other 15 lower court judges to consider the mates in the courthouse here in Columbia. I, issue prior to the Court’s decision agreed has received a well qualified rating by with Judge Shedd. Among those were Judge the American Bar Association. therefore, feel that I am qualified to com- ment on his abilities, qualifications, and rep- Barbara Crabb, the Chief Judge of the West- I have a letter from Joseph Anderson, utation. ern District of Wisconsin and an appointee of chief United States District Judge, who In response to your specific inquires [I can President Jimmy Carter, and John Godbold writes: say without hesitation that Judge Shedd has of the 11th Circuit, a Johnson appointee. In addition, several governors, including Gov- ‘‘I can say without hesitation that Judge a reputation for fairness, both in his commu- ernor Jim Hunt of North Carolina, author- Shedd has a reputation for fairness, both in nity and on our court. As Chief Judge, I have ized their attorneys general to file amicus his community and on our court. As Chief received no complaints about his courtroom briefs in Condon urging the Supreme Court Judge, I have received no complaints about demeanor, his decisions, or his procedures. It to uphold Judge Shedd’s ruling and to de- his courtroom demeanor, his decisions, or his is my considered opinion that all people who clare the law unconstitutional. To us, the procedures. It is my considered opinion that appear in his court receive a fair hearing, re- gardless of the type of cases involved, or the disagreement among lawyers, judges and all people who appear in his court receive a scholars regarding whether DPPA was con- fair hearing, regardless of the type of cases status of the parties in the case (plaintiff or defendant).] stitutional in the wake of the Supreme involved, or the status of the parties in the Court’s decisions in Printz and other opinions case. Judge Shedd is scrupulous in his dealings on the court. If there is any remote sugges- reflects the difficult question presented in And here is a letter from nine faculty tion of the appearance of impropriety, he this case. Judge Shedd’s opinion represents a members of the University of South will not hesitate, and has not hesitated, to reasoned (albeit later overruled) approach to Carolina School of Law, from which recuse himself and he is very consistent that question. Judge Shedd graduated. After ana- about this. On the issue of state immunity under the I regularly review the advance sheets of Eleventh Amendment, opponents have cited lyzing several of his cases they con- Judge Shedd’s opinion in the case of Crosby clude: ‘‘Judge Shedd’s record on the the United States Court of Appeal for the Fourth Circuit, and it would appear to me v. South Carolina Dep’t of Heath, C.A. No. Federal bench demonstrates that he is that Judge Shedd has an extremely good af- 3:97–3588–19BD, as an example of his ‘‘highly fair and impartial in all matters that firmance rate in that court. protective views’’ of state sovereignty. In come before him, including to plain- In regard to the issue of granting summary Crosby, Judge Shedd in an unpublished opin- tiffs in employment discrimination and judgment or otherwise dismissing cases ion found that the 11th Amendment pro- civil rights cases. . . . In our view he short of trial it appears to me that Judge tected states from lawsuits in federal court will make an excellent addition to the Shedd’s record is not different from any under the Family and Medical Leave Act (FMLA). Contrary to the claims of his crit- Fourth Circuit.’’ other judge in this district. That is to say, some of his cases are ended by a ruling on ics, Judge Shedd’s opinion in Crosby is well Let me acknowledge that the summary judgment. Those that are not are within the mainstream of recent Eleventh NAACP, and some others, have con- then set for trial and a great number of those Amendment jurisprudence. In fact, eight of cerns with him. But I have looked into eventually settle before the trial can be con- the nine Circuit Courts of Appeals to decide those situations, and I find them want- ducted. In regard to summary judgment deci- the issue of whether the FMLA applied to ing with respect to specific inappro- sions, settlements, and actual trials, Judge state agencies have agreed with Judge priate actions by Judge Shedd. Shedd’s statistics are not significantly dif- Shedd’s ruling in Crosby. See Laro v. New Hampshire, 259 F.3d 1 (1st Cir 2001); Hale v. We in the law know that you never ferent from any other judge in this district. I hope this letter is responsive to your in- Mann, 219 F.3d 61 (2nd Cir 2000); Chittister v. have a character witness come up and quiry and if you need any additional infor- Dept. Community and Econ. Dev., 226 F.3d 223 tell what he knows of his own associa- mation, please do not hesitate to let me (3rd Cir 2000); Lizz v. WMATA, 255 F.3d 128 tion, but rather you bring witnesses know. (4th Cir 2001); Kazmier v. Widmann, 225 F.3d who give testimony to his reputation With kind personal regards, 519 (5th Cir 2000); Sims v. Cincinnati, 219 F.3d in the particular community. JOSEPH F. ANDERSON, Jr., 559 (6th Cir 2000); Townsell v. Missouri, 233 In that regard, having checked it out, Chief United States District Judge. F.3d 1094 (8th Cir 2000); Garrett v. UAB Board Judge Shedd is my kind of judge. He is of Trustees, 193 F.3d 1214 (11th Cir 1999). In fact, the Fourth Circuit opinion on this issue hard, he is tough, but he is hard and he JUNE 26,2002. Hon. JOHN R. EDWARDS, was joined by recent Bush appointee Roger is tough on both sides. U.S. Senate, Gregory, who was unanimously approved by We who have practiced law before the Washington, DC. the Judiciary Committee and unanimously courts, and know the score, and don’t DEAR SENATOR EDWARDS: We write to you confirmed by the full Senate. See Lizzi v. play games appreciate a judge who is as individual members of the faculty at the WMATA, 255 F.3d 128 (4th Cir 2001). not going to allow any games to be University of South Carolina School of Law. Those less familiar with Judge Shedd’s played on you. We are concerned that professors from law record also may not be aware of his opinion in another case involving the scope of Con- I have said often that as much as we schools in your state recently may have pro- vided you with inaccurate information re- gress’ authority under the Commerce Clause. need a balanced budget, we need some garding United States District Court Judge In United States v. Floyd Brown, Crim. No. 94– balanced Senators, and some balanced Dennis Shedd, whose nomination to the 168–19, Judge Shedd in an unpublished opin- judges. Fourth Circuit Court of Appeals is scheduled ion rejected a criminal defendant’s constitu- I hope we can garner bipartisan sup- for a hearing in the Senate Judiciary Com- tional challenge to the Gun Free School port, and to see that this Judge is con- mittee this week. As members of the aca- Zones Act, finding that the prosecution firmed. demic legal community in South Carolina, could prove facts at trial that would support I ask unanimous consent to print the we wish to set the record straight on Judge some basis for federal jurisdiction under the Shedd’s record on the bench, and to urge statute. Consequently, Judge Shedd found letters in the RECORD. your approval of this well-qualified nominee. that the Act represented a valid exercise of There being no objection, the mate- Contrary to claims made by his opponents, congressional authority under the Commerce rial was ordered to be printed in the Judge Shedd’s record in cases involving state Clause. The Supreme Court later disagreed RECORD, as follows: sovereignty and the scope of congressional with Judge Shedd and struck down the Act

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00041 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.070 S18PT1 S11272 CONGRESSIONAL RECORD — SENATE November 18, 2002 in a controversial 5–4 decision. See United In addition to the above cases, Judge Court of Appeals for the Fourth Cir- States v. Lopez, 514 U.S. 549 (1995). Nonethe- Shedd also has presided over three cases cuit. Judge Shedd is a man of impec- less, Judge Shedd’s opinion in Brown dem- where the NAACP has alleged violations of cable character who will make an out- onstrates that he is far from the the Voting Rights Act in which the NAACP ‘‘sympathetic participant in the campaign to prevailed. NAACP v. Lee County, C.A. No. standing addition to the Federal appel- disempower Congress’’ that his detractors 3:94–1575–17; NAACP v. Holly Hill, C.A. No. late bench. He possesses the highest have alleged. 5:91–3034–19; NAACP v. Town of Elloree, C.A. sense of integrity, a thorough knowl- Even more disturbing than their criticism No. 5:91–3106–06. Far from displaying a hos- edge of the law, and a good judicial of Judge Shedd’s record on federalism issues tility to civil rights and employment dis- temperament. These qualifications is the North Carolina law professors’ distor- crimination cases, Judge Shedd’s record have earned Judge Shedd widespread tion of his record in civil rights and employ- demonstrates that he is a judge who keeps respect and bipartisan support in my ment discrimination cases. While we will not an open mind, applies the law to the facts, home State of South Carolina. In addi- address each and every mischaracterization and treats all parties fairly. contained in their recent letter to you, suf- In sum, as members of the academic legal tion to Republican support, Senator fice it to say that those professors clearly community in South Carolina [we can un- ERNEST HOLLINGS and State Demo- have not provided you with the full picture equivocally state that Judge Shedd’s record cratic Party chairman Dick of Judge Shedd’s record. on the federal bench demonstrates that he is Harpootlian have endorsed his nomina- For example, the assertion that Judge fair and impartial in all matters that come tion. Shedd has never granted relief in an employ- before him, including to plaintiffs in employ- I am exceedingly proud of Dennis ment discrimination case and that he inap- ment discrimination and civil rights cases. Shedd. He was a loyal employee of propriately uses Rule 56 summary judgment In addition, his career on the bench and as a in these cases in misleading and inaccurate. staff member of the United States Senate mine for 10 years and is very deserving As you must know from your career as a liti- shows that he has a clear understanding of of this high honor. Judge Shedd has gator, when a case proceeds beyond the sum- and appropriate deference to Congress’ legis- been successful at every stage of his mary judgment stage, the likelihood of set- lative powers. In our view, he will make an professional life and has dedicated tlement in that case increases exponentially. excellent addition to the Fourth Circuit, and most of his career to public service. Moreover, an extremely high percentage of we urge you to support his nomination. Upon graduation from the University employment discrimination cases around the Sincerely, of South Carolina School of Law, he country are disposed of by summary judg- F. Ladson Boyle; David G. Owen; S. Allen joined my staff and eventually served ment either because the courts consider the Medlin; Howard B. Stravitz; William J. claims not to be meritorious or because the Quirk; Randall Bridwell; Ralph C. as administrative assistant. There- plaintiff failed to meet the minimal require- McCullough II; Dennis R. Nolan; Rob- after, during my tenures as chairman ments set by statute and judicial precedent. ert M. Wilcox. and ranking member of the Judiciary We understand that Judge Shedd has repeat- Mr. COCHRAN. Mr. President, I sup- Committee, he served as the commit- edly denied summary judgment to defend- port the confirmation of Judge Dennis tee’s chief counsel and staff director. ants in employment discrimination and civil W. Shedd of South Carolina as U.S. Cir- As a staff member, he gained a well-de- rights cases. In addition, we are aware of served reputation for honesty and hard only two instances in which the Fourth Cir- cuit Judge for the Fourth Circuit. cuit has overturned Judge Shedd in employ- Judge Shedd has served more than 10 work. ment discrimination cases during his almost years as a United States District Judge Upon returning to South Carolina, twelve-year career on the bench. for the District of South Carolina Judge Shedd entered the private prac- For your information, we wanted you to be where he has earned a reputation for tice of law and also served as an ad- aware of a few of the cases (among many) sound judgement and fairness. Prior to junct law professor at the University of where Judge Shedd allowed plaintiffs to pro- his appointment to the Federal bench, South Carolina. In 1990, President Bush ceed past the summary judgment stage in Judge Shedd spent nearly 20 years in nominated Dennis Shedd to the United civil rights and employment cases: the practice of law and public service, States District Court for the District In Miles v. Blue Cross & Blue Shield, C.A. of South Carolina, and he has served No. 3:94–2108–19BD, Judge Shedd denied de- including ten years as a staff member fendant Blue Cross & Blue Shield’s motion of U.S. Senator STROM THURMOND. ably for more than a decade. On numer- for summary judgment in a case brought During his tenure in the Senate, Judge ous occasions, Judge Shedd has been under Title VII of the Civil Rights Act, Shedd served as Counsel to the Presi- given the honor of sitting on the where an African-American employee alleged dent Pro Tempore as well as Chief Fourth Circuit by designation. that she was fired because of her race. The Counsel and Staff Director of the Sen- Judge Shedd’s performance on the case included allegations that the plaintiff’s ate Judiciary Committee. district court has been marked by dis- supervisor used racially disparaging remarks While serving on the Federal bench, tinction. He has been assigned more on several occasions. The supervisor also al- Judge Shedd has been a member of the than 5,000 cases during almost 12 years legedly stated that he did not want an Afri- on the bench. Out of all these cases, he can-American to hold the position held by Judicial Conference Committee on the the plaintiff. Judicial Branch and its subcommittee has only been reversed 37 times, result- In Davis v. South Carolina Department of on Judicial Independence. He has also ing in a reversal rate of less than 1 per- Health, C.A. No. 3:96–1698–19BD, Judge Shedd participated in community activities cent. These numbers indicate both the refused to dismiss a Title VII lawsuit by an where he has helped organize and pro- skilled legal mind and the thorough African-American employee who claimed mote drug education programs in the preparation that he will bring to the that she was denied a promotion because of Columbia, SC public schools. Fourth Circuit. Judge Shedd also pos- her race. The case involved allegations that Judge Shedd has handled more than sesses a good judicial temperament, the company promoted an unqualified white employee, and that a supervisor who partici- 4,000 civil cases and over 900 criminal treating all litigants in his courtroom pated in the decision not to promote the matters. No judge currently sitting on with dignity and respect. plaintiff had made racially disparaging re- the Fourth Circuit has as much Fed- Unfortunately, some groups have marks to her. eral trial experience. In the thousands portrayed Judge Shedd’s judicial career In Ruff v. Whiting Metals, C.A. No. 3:98–2627– of cases Judge Shedd has handled, he in a negative light. I would like to take 19BD, Judge Shedd refused to dismiss a Title has been reversed fewer than 40 times— a moment to address these allegations VII race discrimination case brought by an less than one percent. In addition, a and concerns. An examination of Judge African-American welder after he was laid Shedd’s record indicates that he is not off. The case involved allegations that super- majority of the ABA’s Standing Com- visors repeatedly made racial statements in mittee on the Judiciary rated Judge only fair and impartial, but personally the workplace, and that one supervisor Shedd ‘‘Well Qualified.’’ dedicated to upholding the constitu- claimed that he was going to use the pending I believe Judge Shedd has dem- tional rights of all people. layoffs to ‘‘get rid of some’’ African-Amer- onstrated the character, wisdom, and Judge Shedd has been criticized for ican employees. judicial temperament needed to be an his handling of Alley v. South Caro- In Black v. Twin Lakes Mobile Homes, C.A. outstanding judge on the Federal ap- lina, a lawsuit wherein the plaintiffs No. 0:97–3971–19, Judge Shedd denied sum- pellant bench. I encourage my col- sought to remove the Confederate flag mary judgment for the defendant, an owner from atop the statehouse dome in Co- of a mobile home park who sought to evict leagues to support his nomination. an HIV-positive tenant because of his med- Mr. THURMOND. Mr. President I am lumbia, SC. The South Carolina ical condition. Shedd’s ruling allowed the greatly pleased that the full Senate is NAACP has asserted that Judge Shedd plaintiff’s lawsuit alleging discrimination considering the nomination of Judge ‘‘made several derogatory comments under the Fair Housing Act to go forward. Dennis Shedd to the United States about those opposing the flag, and

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.064 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11273 minimized the deep racial symbolism Shedd merely followed the law as es- Carolina Advisory Committee to the of the Confederate flag by comparing it tablished by the Supreme Court, which U.S. Commission on Civil Rights. He to the Palmetto tree, which appears in held in Faragher v. City of Boca Raton, also played an instrumental role in the South Carolina’s state flag.’’ 524 U.S. 775 (1998), that the work envi- selection of Margaret Seymour as the These allegations are misleading and ronment must be both objectively and first female African-American U.S. inaccurate. A close look at the tran- subjectively offensive. While the plain- magistrate judge in the district of script of the hearing reveals that Judge tiff had clearly shown that the work South Carolina. When Judge Seymour Shedd made a point of saying that his environment was objectively offensive, was nominated by President Clinton to comments were not meant to be dispar- Judge Shedd determined that she had the district court, Judge Shedd fully aging. In fact, he said, ‘‘I’m not going not made a showing that she perceived supported her nomination. Further- to denigrate the constitutional claim it to be offensive. He based his deter- more, Judge Shedd has hired both Afri- abut the Confederate flag.’’ Further- mination on the fact that she had rec- can-American and female law clerks. more, Judge Shedd never ruled on the ommended the position to someone I would like to turn to another accu- merits of the case. Rather, he ab- else and stated that the employer was sation that has been leveled against stained to allow a claim to go forward ‘‘a nice person’’ who was ‘‘pretty good Judge Shedd. He has been accused of in State court, arguably the forum bet- to work for.’’ These comments by the espousing an unreasonably narrow in- ter equipped to handle the issue. plaintiff demonstrate that Judge terpretation of congressional power Additionally, it is important to note Shedd’s decision was reasonable under based on his decision in Condon v. Reno, 972 F.Supp. 977 (1997), in which he that Judge Shedd’s comments about the circumstances of this case. the Palmetto tree were made during The truth is that Judge Shedd has struck down the Driver’s Privacy Pro- his examination of the lawyer’s legal issued rulings that have benefitted tection Act. The act regulated the dis- argument in the case. The argument plaintiffs on numerous occasions. For semination of State motor vehicle hinged on the offensive nature of the example, in Miles v. Blue Cross & Blue record information, and the State of Confederate flag, and Judge Shedd Shield, C.A. No. 3:94–2108–19BD, an ac- South Carolina challenged its constitu- pointed out that many symbols could tion was brought under title VII of the tionality. Judge Shedd ruled that under Supreme Court precedent, the be perceived as offensive, such as the Civil Rights Act by an African-Amer- act violated the 10th amendment by Palmetto tree on the State flag. Judge ican employee who alleged that she impermissibly commandeering State Shedd then stated, ‘‘I’m not deter- was fired because of her race. There governments, forcing them to regulate mining now on whether or not the flag was ample evidence that the plaintiff in a specific fashion. The Fourth Cir- should be there at all. I’m just doing had been subjected to racial slurs be- cuit upheld this decision, Condon v. what—you lawyers have been with me fore being fired. Judge Shedd appro- Reno, 155 F.3d 453 (4th Cir. 1998), but before know, I’m exploring your legal priately denied the defendant employ- the Supreme Court ultimately re- theory.’’ In this case, Judge Shedd was er’s motion for summary judgment. versed. Reno v. Condon, 120 S.Ct. 666 simply engaging in the Socratic meth- In another case, Davis v. South Caro- (2000). od with the lawyers, and his words lina Department of Health and Envi- I stress that this case was one of first should not be twisted to insinuate any ronmental Control, C.A. No. 3:96–1698– impression. Given the U.S. Supreme personal feelings about the propriety of 19BD, an action was brought under Court opinions in New York v. United flying the Confederate flag over the title VII by an African-American em- States, 505 U.S. 144 (1992), and Printz v. statehouse dome. ployee who alleged that she was denied United States, 521 U.S. 898 (1997), Judge I would like to point out the case of a promotion because of her race. There Shedd’s ruling was entirely reasonable. Vanderhoff v. John Deere, the one case was evidence that an unqualified white In a very persuasive opinion, he com- involving the Confederate flag in which employee had been promoted and that pared the Drivers Privacy Protection Judge Shedd did rule. In that case, an racially disparaging remarks had been Act with those acts invalidated in New employee was fired because he refused made. Judge Shedd followed the law York and Printz and found it to have to comply with company policy and re- and denied the defendant employer’s similar constitutional defects. move the Confederate flag from his motion for summary judgment. Again Judge Shedd was not alone in his toolbox. The employee sued under title in Ruff v. Whiting Metals, C.A. No. analysis. At least one liberal commen- VII, a statute designed to prohibit 3:98–2627–19BD and Williams v. South tator, Erwin Chemerinsky, concluded workplace discrimination based on Carolina Department of Public Safety, that the Supreme Court’s distinction of race, sex, religion, and national origin. C.A. No. 3:99–976–19BC, Judge Shedd de- the Drivers Privacy Protection Act He argued that his national origin was nied a defendant’s motion for summary from the statutes struck down in New a ‘‘Confederate Southern American’’ judgment on race discrimination York and Printz was unconvincing. and that he had been the subject of dis- claims. While Chemerinsky agreed with the crimination. Judge Shedd rejected this In the case of Treacy v. Loftis, C.A. final outcome of the case, he has ar- argument and dismissed the plaintiff’s No. 3:92–3001–19BD, Judge Shedd, over- gued that the Supreme Court should claim. Thus, on the one Confederate ruling a magistrate judge’s rec- have overruled both New York and flag case where he ruled on the merits, ommendation, declined to grant sum- Printz in order to reach its decision in Judge Shedd’s decision went against a mary judgment on a fired employee’s Reno. Professor Chemerinsky’s argu- flag proponent. claim of intentional infliction of emo- ment lends support to the proposition In recent weeks, Judge Shedd has tional distress. In that case, the plain- that Judge Shedd, in striking down the been the subject of vicious attacks tiff claimed that her job was termi- statute, was correct in his interpreta- based on his handling of employment nated due to her involvement in an tion of the law at that time. discrimination cases. Over and over interracial relationship. Judge Shedd, In addition, of the 16 lower Federal again, we have head the accusation in refusing to grant summary judg- court judges who considered the con- that Judge Shedd shows a bias towards ment, allowed the case to go forward. stitutionality of DPPA, 8 determined defendants. A review of Judge Shedd’s There are many other cases like that the statute was unconstitutional. record indicates that he has been fair these. Judge Shedd’s record reveals In short, there is nothing to indicate to the civil rights claims of plaintiffs that he has upheld important rights that Judge Shedd’s decision in this in his courtroom. In fact, Judge Shedd protected by the Constitution. If ele- case was out of the mainstream. has only been reversed two times in vated to the Fourth Circuit, Judge Another case that has been cited is employment discrimination cases. Shedd will continue to protect civil lib- Crosby v. U.S., in which Judge Shedd With such a low reversal rate, I am dis- erties. held that the plaintiff’s claim under appointed that some groups have in- In addition to Judge Shedd’s proven the Family and Medical Leave Act was sisted on attacking this fine judge. record of protecting civil rights, he has barred by the 11th amendment to the One commonly cited case is Roberts personally dedicated himself to pro- Constitution. Judge Shedd’s detractors v. Defender Services, in which Judge viding equal opportunities for women have argued that this case is another Shedd dismissed a plaintiff’s sexual and minorities. As an example, Judge example of his narrow view of congres- harassment claim. In this case, Judge Shedd served as chairman of the South sional power. However, this accusation

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.127 S18PT1 S11274 CONGRESSIONAL RECORD — SENATE November 18, 2002 is unfair and unwarranted. In this case, ney Joseph Rice, ‘‘Shedd—who came to the benefit of any real, meaningful interaction Judge Shedd sought to follow the law bench with limited trial experience—has a with Judge Shedd, his friends or family as established by the Supreme Court. good understanding of day-to-day problems members. I trust the accusations of bias lev- He was not attempting to make new that affect lawyers in his courtroom. . . . ied against Judge Shedd will be given the He’s been a straight shooter.’’ Legal Times, short shrift they are due, and trust further law, but was instead seeking to apply May 14, 2001. that this honorable Committee will act fa- the law correctly. Furthermore, Judge According to the Almanac of the Federal vorably upon the pending nomination of Shedd was not alone in his decision. Judiciary, attorneys said that Shedd has Judge Shedd for the United States Court of Out of nine circuit courts that have outstanding legal skills and an excellent ju- Appeals for the Fourth Circuit. considered this same question, eight dicial temperament. A few comments from Thank you for your attention regarding have agreed with Judge Shedd. It is South Carolina lawyers; ‘‘You are not going this matter. Respectfully, worth noting that Judge Roger Greg- to find a better judge on the bench or one that works harder.’’ ‘‘He’s the best federal THOMAS W. JONES, JR. ory, originally appointed by President judge we’ve got.’’ He gets an A all around.’’ Clinton, joined the Fourth Circuit’s It’s a great experience trying cases before U.S. SENATE, opinion that agreed with Judge Shedd’s him.’’ ‘‘He’s polite and businesslike.’’ COMMITTEE ON THE JUDICIARY, ruling. Plaintiff lawyers commended Shedd for Washington, DC, September 13, 2002. Judge Shedd has also been criticized being even-handed; ‘‘He has always been JAMES GALLMAN, as being antiplaintiff for disposing of fair.’’ ‘‘I have no complaints about him. He’s President, SCNAACP, matters sua sponte, or on his own mo- nothing if not fair.’’ Almanac of the Federal Columbia, SC. DEAR PRESIDENT GALLMAN: Thank you very tion. This charge is without merit for a Judiciary, Vol. 1, 1999. Judge Shedd would bring unmatched expe- much for your interest in the nomination of number of reasons. First, Federal rience to the Fourth Circuit. He has handled Judge Dennis Shedd to the United States judges face enormous caseloads. If an more than 4,000 civil cases since taking the Court of Appeals for the Fourth Circuit. I area of the law is clear, it is com- bench and over 900 criminal matters. In fact, want to assure you that Judge Shedd is an pletely proper for the judge to act on no judge currently sitting on the Fourth Cir- outstanding Federal Judge, and he is com- his own motion, helping to move litiga- cuit has as much federal trial experience as mitted to upholding the rights of all people tion along and clear the dockets. Sec- Judge Shedd, and none can match his ten under the Constitution. Rather than being ond, the law clearly allows for district years of experience in the legislative branch. hostile to civil rights, as his detractors have Shedd’s record demonstrates that he is a claimed, Judge Shedd is committed to the court judges to consider matters with- mainstream judge with a low reversal rate. ideals of equal justice under the law. I am out prompting from lawyers. The Su- In the more than 5,000 cases Judge Shedd has confident that upon an examination of his preme Court has acknowledged this, handled during his twelve years on the record, you will find that Dennis Shedd is stating in Celotex Corp. v. Catrett, 830 bench, he has been reversed fewer than 40 eminently qualified, applies the law fairly, F.2d 1308 477 U.S. 317, 326 (1986), that times less than one percent). Since taking and exhibits an appropriate judicial tem- district courts may grant summary his seat on the Fourth Circuit in 2001, Judge perament. judgment sua sponte to a party that Roger Gregory (a Democrat appointed by I would like to address your concerns re- garding Judge Shedd’s civil rights record. I has not moved for summary judgment. President Bush) has written opinions affirm- ing several of Judge Shedd’s rulings. Judge believe that it is commendable in all re- As long as a judge is acting properly, Gregory also agreed with Judge Shedd’s spects. First of all, Judge Shedd has been ac- which Judge Shedd has always done, holding in Crosby v. South Carolina Dep’t of cused of granting summary judgment for de- sua sponte decisions are entirely appro- Health (case cited by Judge Shedd’s oppo- fendants in almost every case. This accusa- priate. nents) that Congress did not effectively abro- tion is false. A review of Judge Shedd’s I have known Judge Dennis Shedd for gate State sovereign immunity in the Fam- record indicates that he has been fair to the over 24 years and can personally vouch ily and Medical Leave Act. See Lizzi v. civil rights claims of plaintiffs in his court- for his integrity and high moral char- WMATA, 255 F.3d 128 94th Cir. 2001. room. In fact, he has issued rulings that have benefitted plaintiffs on numerous occasions. acter. He is truly a man of knowledge, Judge Shedd has been completely forth- coming with the Senate Judiciary Commit- For example, in Miles v. Blue Cross & Blue ability, and superior ethical standards. tee’s requests for information. Earlier this Shield, C.A. No. 3:94–2108–19BD, an action Judge Shedd will bring a wealth of year, Judge Shedd sent nearly one thousand was brought under Title VII of the Civil trial experience to the Fourth Circuit, unpublished opinions to the Committee for Rights Act by an African-American em- having handled more than 4,000 civil review immediately after Chairman Leahy ployee who alleged that she was fired be- cases and over 900 criminal matters. In requested them. Judge Shedd has continued cause of her race. There was ample evidence addition, he possesses unmatched legis- to provide additional unpublished opinions, that the plaintiff had been subjected to ra- lative experience. It is no surprise that as well as all other information the cial slurs before being fired. Judge Shedd ap- propriately denied the defendant employer’s the American Bar Association gave Committee has requested regarding his rul- ings, opinions and judicial record generally. motion for summary judgment. Judge Shedd a rating of ‘‘Well Quali- Judge Shedd has bi-partisan support from In another case, Davis v. South Carolina fied.’’ I am proud to support my friend, his home state Senators; Senators Thurmond Department of Health and Environmental Dennis Shedd, and I hope to see him and Hollings support his nomination. Control, C.A. No. 3:96–1698–19BD, an action confirmed to the United States Court A majority of the ABA’s Standing Com- was brought under Title VII by an African- of Appeals for the Fourth Circuit. I ask mittee on the Judiciary rated Judge Shedd American employee who alleged that she was unanimous consent that the attached ‘‘Well Qualified.’’ Democrats have called the denied a promotion because of her race. ABA rating the ‘‘gold standard’’ for judicial There was evidence that an unqualified materials be printed in the RECORD. nominees. white employee had been promoted and that DENNIS W. SHEDD—NOMINEE TO THE FOURTH ROSENBERG PROUTT FUNK & racially disparaging remarks had been made. CIRCUIT COURT OF APPEALS GREENBERG, LLP, Judge Shedd followed the law and denied the Background. Appointed by President Baltimore, MD, June 25, 2002. defendant employer’s motion for summary George H.W. Bush to the United States Dis- Senator PATRICK LEAHY, judgment. Again in Ruff v. Whiting Metals, trict Court for South Carolina in 1990, Den- Chairman, U.S. Senate Judiciary Committee, the C.A. No. 3:98–2627–19BD and Williams v. nis W. Shedd has served as a federal jurist Dirksen Building, Washington, DC. South Carolina Department of Public Safety, for more than a decade. DEAR SENATOR LEAHY: My name is Thomas C.A. No. 3:99–976–19BC, Judge Shedd denied a In addition to his service on the District W. Jones, Jr. I am an African-American at- defendant’s motion for summary judgment Court, he sat by designation on the Fourth torney currently practicing as a litigation on race discrimination claims. Circuit Court of Appeals on several occa- associate in Baltimore, Maryland. In the case of Treacy v. Loftis, C.A. No. sions. Shedd also has served on the Judicial Upon my graduation from the University 3:92–3001–19BD, Judge Shedd, overruling a Conference Committee of the Judicial of Maryland School of Law, I had the dis- magistrate judge’s recommendation, de- Branch and its Subcommittee on Judicial tinct pleasure of serving as a judicial clerk clined to grant summary judgment on a fired Independence. for the Honorable Dennis W. Shedd (‘‘Judge employee’s claim of intentional infliction of From 1978 through 1988, Judge Shedd Shedd’’) on the U.S. District Court for the emotional distress. In that case, the plaintiff served in a number of different capacities in District of South Carolina. During my eight- claimed that her job was terminated due to the United States Senate, including Counsel een months of working with Judge Shedd, I her involvement in an interracial relation- to the President Pro Tempore and Chief never encountered a hint of bias, in any form ship. Judge Shedd, in refusing to grant sum- Counsel and Staff Director for the Senate or fashion, regarding any aspect of judge mary judgment, allowed the case to go for- Judiciary Committee. Shedd’s jurisprudence or daily activities. ward. Judge Shedd is well-respected by members It is apparent to me that the allegations Judge Shedd has also been accused of mak- of the bench and bar in South Carolina. Ac- regarding Judge Shedd’s alleged biases have ing insensitive remarks about the Confed- cording to South Carolina plaintiffs’ attor- been propagated by individuals without the erate flag during proceedings in the case of

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00044 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.128 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11275 Alley v. South Carolina, C.A. No. 3:94–1196–19. a shame that he has been characterized as a wise, cases are often referred to Federal a lawsuit in which the plaintiffs sought to judge with an agenda to curtail civil rights. magistrate judges who make reports and rec- remove the Confederate flag from atop the On the contrary, Judge Shedd has dem- ommendations to the District Court Judge. Statehouse dome. These allegations are mis- onstrated that he will apply the law fairly to While Judge Shedd has received some 1,400 leading and inaccurate. A close look at the all people. In addition, he has received a rat- reports from magistrate judges, many of transcript reveals that Judge Shedd made a ing of ‘‘Well Qualified’’ by the American Bar these are on non-substantive issues. I can as- point of saying that his comments were not Association, and he has the support of South sure you that the opinions Judge Shedd has meant to be disparaging. In fact, he said, Carolina Democrats, such as Senator Fritz supplied represent, to the best of his knowl- ‘‘I’m not going to denigrate the constitu- Hollings and state Democratic Party Chair- edge, all of his substantive ‘‘unpublished’’ tional claim about the Confederate flag.’’ man Dick Harpootlian. opinions. Judge Shedd went on to say, ‘‘I’m not deter- I hope that this information is helpful dur- Your editorial asserts that civil rights mining now on whether or not the flag ing your further consideration of Judge groups have identified ‘‘important rulings by should be there at all. I’m just doing what- Shedd, and I hope that you will join me in Judge Shedd that have not been handed you lawyers have been with me before know, support of this fine man. I have known Judge over.’’ I have previously requested that these I’m exploring your legal theory.’’. The tran- Shedd for a long time, and he is in all re- groups identify the particular cases in which script clearly indicates that Judge Shedd spects an honorable public servant. Again, they are interested, but they have yet to do was questioning the lawyers about their ar- thank you for your interest. so. I would once again urge these groups to guments in this case, something that is done With kindest regards and best wishes, identify the cases that cause them concern, every day in courtrooms across the nation. Sincerely, and Judge Shedd will be happy to locate any Furthermore, Judge Shedd never ruled on STROM THURMOND. information on these cases that will assist the merits of the case. Rather, he abstained Committee members as they evaluate his to allow a claim to go forward in state court, U.S. SENATE nomination. In short, Judge Shedd has acted promptly, arguably the forum better equipped to han- COMMITTEE ON THE JUDICIARY, professionally, and in good faith in his deal- dle the issue. Washington, DC, July 30, 2002. ings with the Senate Judiciary Committee. I would like to point out the case of LETTERS TO THE EDITOR, Vanderhoff v. John Deere, C.A. No 01–0406– , His record is as complete as any other cir- 19BD, the one case involving the Confederate New York, NY. cuit nominee we have ever had before the flag in which Judge Shedd did rule. In that DEAR EDITOR: This letter is in response to Committee. There simply is no justifiable case, an employee was fired because he re- the editorial that appeared in your paper on basis to clam that he has failed to respond to fused to comply with company policy and re- July 28, 2002, entitled ‘‘The Secret History of Committee requests. It is my sincere hope that Judge Dennis move the Confederate flag from his toolbox. Judges.’’ The piece questioned whether Shedd will soon be confirmed as a Federal The employee sued under Title VII, a statute Judge Dennis Shedd, whom President Bush Circuit Court Judge. He is a fine man who nominated to the U.S. Court of Appeals for designed to prohibit workplace discrimation has performed ably on the Federal bench for the Fourth Circuit, has adequately supplied based on race, sex, religion, and national ori- more than a decade. He has responsively pro- the Senate Judiciary Committee with all rel- gin. He argued that his national origin was a vided the Senate Judiciary committee with evant information regarding his 11 years as a ‘‘Confederate Southern American’’ and that documentation that chronicles his career as Federal District Court Judge. I can assure he had been the subject of discrimination. a distinguished jurist. Quite simply, Judge you that Judge Shedd has been thoroughly Judge Shedd rejected this argument and dis- Shedd’s record is complete, and it proves responsive to Committee requests and has missed the plaintiff’s claim. Thus, in the one that he is committed to upholding the rights provided an extraordinary amount of mate- Confederate flag case where he ruled on the of all people under the Constitution. rial. In fact, to the best of my knowledge, merits, Judge Shedd’s decision went against Sincerely, there is simply nothing left for him to hand a flag proponent. STROM THURMOND. In addition to Judge Shedd’s demonstrated over. This tired call for more information is fairness in the civil rights arena, he has nothing more than a delay tactic being uti- FAIRNESS: JUDGE SHEDD’S ABA ‘‘WELL QUALI- shown that he is personally committed to lized by political groups that oppose most of FIED’’ RATING—THE ABA RATED JUDGE ensuring equal opportunities for women and President Bush’s judicial nominees, even SHEDD ‘‘WELL QUALIFIED’’ FOR THE FOURTH minorities. He was instrumental in the selec- when the nominees are, like Judge Shedd, CIRCUIT tion of Judge Margaret Seymour, now a Fed- extremely well-qualified. According to the ABA Standing Committee All interested parties have had ample time eral District Court Judge, as the first Afri- on Federal Judiciary, a nominee is evaluated to examine Judge Shedd’s record. On June can-American female magistrate judge in on ‘‘integrity, professional competence, and 27, 2002, Judge Shedd testified before the the District of South Carolina. He has also judicial temperament.’’ made an effort to hire African-American and Committee for more than two hours, during ‘‘Integrity is self-defining. The prospective female law clerks. In fact, Thomas Jones, an which time he answered all questions asked nominee’s character and general reputation African-American man who clerked for of him. After the hearing, individual Sen- in the legal community are investigated, as Judge Shedd, wrote a letter to Senator ators had the opportunity to submit ques- are his or her industry and diligence.’’ Leahy in which he said that the allegations tions, and Judge Shedd prepared written re- ‘‘In investigating judicial temperament, made against Judge Shedd should ‘‘be given sponses to questions from six Senators. the Committee considers the prospective the short shrift they are due . . . .’’ Previously, on March 22, 2002, the Com- nominee’s compassion, decisiveness, open- Next, I would like to address the concerns mittee requested all of Judge Shedd’s mindedness, courtesy, patience, freedom raised by the case of Condon v. Reno, 972 F. ‘‘unpublished’’ opinions. To fulfill this ex- from bias, and commitment to equal justice Supp. 977 (D.S.C. 1997), in which Judge Shedd tremely broad request, as many as a dozen under the law.’’ held that the Driver’s Privacy Protection district court employees were required to un- ‘‘To merit Well Qualified, the prospective Act (DPPA) was unconstitutional. He was dertake an extensive and time-consuming nominee must be at the top of the legal pro- eventually reversed by the Supreme Court. manual search of case files within the dis- fession in his or her legal community, have Reno v. Condon, 528 U.S. 141 (2000). It is im- trict as well as an electronic search of avail- outstanding legal ability, wide experience, portant to stress that this case was one of able computer records. Within 12 days, Judge the highest reputation for integrity and ei- first impression. Given the United States Su- Shedd provided a first set of documents to ther have shown, or have exhibited the ca- preme Court opinions in New York v. United the Committee. As Judge Shedd was able to pacity for, judicial temperament, and have States, 505 U.S. 144 (1992), and Printz v. secure additional documents from out-of- the committee’s strongest affirmative en- United States, 521 U.S. 898 (1997), Judge state court storage, he supplemented his ini- dorsement.’’ Shedd’s ruling was entirely reasonable. In a tial response with a second set of documents Source: The ABA Standing Committee on very persuasive opinion, he compared DPPA on May 20, 2002. In summary, Judge Shedd Federal Judiciary: What It Is and How It with those Acts invalidated in New York and expeditiously supplied the Committee with Works, American Bar Association (July 1999) Printz and found it to have similar constitu- more than 13,000 pieces of paper. Therefore, (pages 4 and 6). tional defects. all documents responsive to this request While the Supreme Court ultimately dis- have been available to Committee members [From the Post and Courier, Nov. 15, 2002] agreed with Judge Shedd, his opinion was for a significant period of time. SHEDD’S ADVANCE A WELCOME SIGN not outside of the mainstream. Of the 16 Although it has been suggested that Judge President Bush’s nomination of U.S. Dis- lower Federal court judges who considered Shedd had not provided the appropriate doc- trict Court Judge Dennis Shedd of Columbia the constitutionality of DPPA, 8 determined umentation, the record will reflect that to the 4th U.S. Circuit Court of Appeals fi- the statute unconstitutional. Some of these Judge Shedd has diligently worked to nally was sent to the full Senate by the Sen- judges, such as Judge Barbara Crabb and produce all documents, of which he and other ate Judiciary Committee Thursday. That Judge John Godbold, were nominated by court employees are aware, that satisfy the overdue action represents an important step Democratic presidents. Committee request. While Judge Shedd has forward in breaking the partisan logjam on In summary, I believe that Judge Shedd is been assigned some 5,000 civil cases, many of federal judicial appointments. a highly qualified candidate who will make these cases included routine matters, such as It also represents a potential step away an excellent addition to the United States foreclosures, and have ended without any from what Sen. Strom Thurmond aptly de- Court of Appeals for the Fourth Circuit. It is substantive ruling by Judge Shedd. Like- scribed as ‘‘destructive politics’’ last month

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00045 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.132 S18PT1 S11276 CONGRESSIONAL RECORD — SENATE November 18, 2002 after Judiciary Chairman Patrick Leahy, D– The Senate Judiciary Committee has be- that Thurmond, who will soon turn 100 and is VT, reneged on his promise to send Judge come a graveyard for Bush’s top choices for not seeking re-election, won’t be voting on a Shedd’s nomination to the full Senate. Sen. seats on the federal appeals court. The judicial candidate he recommended and Thurmond, who’s retiring after a long, dis- Democrats have flexed their muscles to pre- President Bush nominated way back on May tinguished career in politics, vividly ex- vent the nomination of reputable choices— 9, 2001. pressed his outrage at this violation of per- such as Charles Pickering and Priscilla In all, Bush has nominated 126 U.S. Ap- sonal trust, telling his colleagues: ‘‘In 48 Owen—from making it to the Senate floor peals Court and U.S. District Court nomi- years in the Senate, I have never been treat- for a vote they probably would win. But now nees, and the senate has confirmed 80: 14 ed in such a manner.’’ the powerful Leahy has proven he can go judges to appeals courts and 66 to district And the Judiciary Committee’s growing lower—by denying a vote, even after he made courts. Most of the others haven’t been put habit of blocking presidential appointments a promise to allow one. to a vote. to the Federal bench has reached critical Thurmond was indignant last week, mak- Shedd should not be one of them. His mass over the last year and a half. Demo- ing a rare Senate speech in which he said record is a good one, and it is that record crats’ protests that Senate Republicans had about Leahy, ‘‘In my 48 years in the United that should be the test of his approval, not subjected President Clinton to the same mis- States Senate, I have never been treated in what others believe about his personal or po- treatment don’t hold up when the rates of re- such a manner.’’ Thurmond is leaving a Sen- litical philosophy. jection are considered, particularly at the ate in which a man’s word is no longer his Shedd is certainly not out of the judicial appeals court level. That blatantly party- honor. mainstream and his opinions are not rooted line obstruction of judicial appointments be- in controversy. came a campaign season liability for the [From the Orangeburg Times and Democrat, Sen. Hollings is known for his candid if not Democrats in some states, including South Oct. 13, 2002} controversial assessment of people. The S.C. Carolina, where Republican NOMINATION OF SHEDD HELD HOSTAGE Democrat is solidly behind Shedd, being the repeatedly stressed the need to break that one to introduce him initially to the Senate pattern by giving President Bush a GOP Sen- The continuing battle over federal judge- ships grows more frustrating. Judiciary Committee. ate—and a GOP-controlled Judiciary Com- Saying Shedd ‘‘has an outstanding record mittee—in his winning campaign to replace It’s a partisan and philosophical battle that has gone beyond what was ever intended of sound judgment,’’ Hollings told the Judi- Sen. Thurmond. ciary Committee that Shedd is ‘‘my kind of Recognizing the incoming Senate’s inten- by the framers of our Constitution. The judge—hard and tough, but hard and tough tions on this issue, and the voting public’s founders gave presidents appointment power on both sides.’’ message, Sen. Leahy didn’t call for a com- for judges, with the Senate’s role being ad- His nomination should be brought to a mittee roll-call vote on the nominations of vice and consent. vote by the Senate committee and then the Judge Shedd and Professor Michael McCon- Particularly since the Clinton years of the full Senate, where we’re confident he will nell to the appeals courts Thursday, instead 1990s, the process has been paralyzed by poli- win approval. allowing them to advance. tics. A Republican Senate left Clinton nomi- And despite familiar objections from spe- nees hanging, never even giving them a hear- The PRESIDING OFFICER. The Sen- cial-interest groups that seem intent on ing and a vote. The Democratic Senate has ator from North Dakota. branding any judge who has ever issued a been doing the same thing with President Mr. DORGAN. Mr. President, I will purportedly conservative ruling as a reckless Bush’s nominees. speak today in morning business brief- ‘‘extremist,’’ Judge Shedd has the support of On Tuesday, partisanship got closer to ly. not just leading Republicans, but of Sen. Er- home when Cordova native and S.C. U.S. Dis- The PRESIDING OFFICER. The Sen- nest F. Hollings, D–SC. The senator has been trict Judge Dennis Shedd was denied a vote ator may proceed. openly critical of the Judiciary Committee’s by the Senate Judiciary Committee on his previous attempts to derail this nomination. nomination to the 4th Circuit Court of Ap- HOMELAND SECURITY Thursday’s Judiciary Committee decision peals. Mr. DORGAN. Mr. President, I rise to was not merely a victory for Judge Shedd, The decision to delay the vote prompted say a few words about the issue of President Bush, Sen. Thurmond and Sen. S.C. Republican Sen. Strom Thurmond, for homeland security. I will not talk at Hollings. It was a victory for fairer, more ef- whom Shedd once served as a top aide, to the moment about the bill itself, which ficient consideration and confirmation of react angrily at the committee and its presidential judicial appointments by the Democratic leader, Sen. Patrick Leahy of we will vote on tomorrow, but a couple Senate. Vermont. Leahy said the vote on Shedd was of issues dealing with homeland secu- too contentious for the session and would rity that are very important, that have [From the Greenville News, Oct. 15, 2002] have sparked a debate delaying action on been raised in recent days and need to INSULTING THURMOND other judicial candidates. be discussed. Senate Judiciary Committee Chairman That may be, but Thurmond was taking One issue deals with something that Patrick Leahy, a Democrat from Vermont, the rejection personally, addressing the Sen- is happening in the Defense Depart- ate Judiciary Committee himself in a rare did a number last week on retiring South ment. My colleague Senator NELSON appearance. Carolina Sen. Strom Thurmond, and in the from Florida spoke of it earlier today. process thumbed his nose at both the Con- ‘‘In my 48 years in the U.S. Senate, I have stitution and any sense of fair play. Highly never been treated in such a manner. You as- That is the creation of an Information partisan Democrats don’t want Thurmond’s sured me on numerous occasions that Judge Awareness Office and the prospect of choice for the 4th U.S. Circuit Court of Ap- Shedd would get a vote, and that is all that having an agency that would amass peals, U.S. District Judge Dennis Shedd, to I have ever asked of you. I have waited pa- your most personal information—cred- get a well-earned promotion to the appeals tiently for 17 months, and I have extended it card purchases, travels, medical in- court. every courtesy to you,’’ Thurmond said to formation, and so on—and put it into a Shedd is eminently qualified, but he has Leahy. single database. That concerns me The judgeship battles are likely to trample been painted as an opponent of civil rights, greatly. I will speak about that in a the disabled and common workers. The case on more Senate decorum, particularly when hasn’t been made, but then, the Democrats judges meet vocal opposition as has Shedd. moment. who oppose his nomination aren’t interested Despite endorsements by the American Bar But first I will speak about another in making the case with facts. They have Association and others, Shedd has faced crit- issue relating to homeland security. conveniently used Shedd as an election issue. icism from the NAACP and other organiza- This is an issue that was recently high- With the U.S. Senate in the hands of tions contending his record shows no sym- lighted by a task force headed by Democrats, it has become something of a pathy for those in discrimination cases. former Senator and sport in Washington to prevent President Sixth District Congressman Jim Clyburn is former Senator . Bush from getting his top choice for federal among opponents. judges. But Sen. Leahy sunk to a new low But Shedd enjoys the support of both Re- That task force included former Sec- last seek by refusing to allow a vote on the publican Thurmond and Democrat Ernest F. retaries of State Warren Christopher Shedd nomination, and in doing so, it be- Hollings from South Carolina. And he is and George Shultz, retired Admiral came obvious he had flat-out lied to Sen. former chief legal counsel to the Senate Ju- William Crowe, former Chairman of the Thurmond. Leahy had promised South Caro- diciary Committee, which Thurmond for- Joint Chiefs of Staff, and others. There lina’s 99-year-old senior senator a Judiciary merly chaired. is a very significant blue ribbon task Committee vote on Shedd, but that was be- Thurmond’s anger over the delay of force. fore word leaked that a committee Democrat Shedd’s nomination probably won’t change They issued a report that was spon- would vote for Shedd. If his nomination got the equation. to the full Senate, he would be approved, es- A vote probably will not come until next sored by the Council of Foreign Rela- pecially with South Carolina’s Sen. Fritz year—and may not come then unless the Re- tions. The report was titled ‘‘America Hollings wholeheartedly supporting this publicans regain control of the U.S. Senate Still Unprepared, America Still In nomination. in November’s election. That would mean Danger.’’

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.136 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11277 The task force found that 1 year after Again, quoting from the report: ing it, and moving it back and forth to the , America re- Terrorist watch lists provided by the try to determine who might or might mains—according to them—dan- United States Department of State to immi- not be doing something maybe sus- gerously unprepared for another ter- gration and consular officials are still out of picious. rorist attack. At the top of the list of bounds for State and local police. In the in- That is not, in my judgment, in con- concerns in this task force was this: terim period, as information sharing issues cert with the basic civil liberties that get worked out, known terrorists will be free 650,000 local and State police officials con- to move about to plan and execute their at- we expect in this country and that are tinue to operate in a virtual intelligence tacks without any bother from local law en- guaranteed to the citizens in this coun- vacuum without access to terrorist watch forcement officials because they can’t know try. We must stop this before it starts. lists that are provided by the United States their names and they can’t access the list. I understand that a change in law— Department of State to immigration con- specifically a change in the 1974 Pri- sular officials. My staff has been in contact with this task force. We have also been in vacy Act—would be required to imple- Why is this important? Well, consider contact with the State Department and ment this data mining program. That, that 36 hours before the September 11 the White House, asking when some- in my judgment, is not going to happen attack, one of the hijackers who pi- thing is going to be done to connect in the Congress. I would not support loted the plane that crashed in Penn- the dots here. Since we made these such a change, and I think most of my sylvania, named Ziad Jarrah, a 26-year- contacts, the administration is appar- colleagues would oppose a change of old Lebanese national, was actually ently looking for ways to integrate that type. pulled over by the Maryland State Po- that terrorist watch list—called the (Mrs. MURRAY assumed the chair.) lice for driving 90 miles an hour on Tipoff database—with the National Mr. BYRD. Will the Senator yield? Interstate 95. If this fellow’s name had Crime Information Center which is ac- Mr. DORGAN. I am happy to yield. been on the State Department terrorist cessible by State and local law enforce- Mr. BYRD. The Senator says he is watch list—and it happens that it was ment officers. I call on the administra- confident that the Congress will do no not—there would have been no way for tion to expedite, as much as is possible, such thing? I say most respectfully to that Maryland State trooper to know the effort to make this happen. We the Senator, I would not count on what it. That Maryland State trooper can can’t waste another day in this regard, the next Congress might do. I am very type a name into the system and go to as all of us know. much afraid of what the next Congress the NCIC where they have the database The head of the CIA said the other might do in many areas. Doesn’t the of convicted felons, but that trooper day that we are in as much risk from a Senator share that feeling? has no access to the watch list that the terrorist act as we were the day before Mr. DORGAN. Well, I happen to—— Immigration Service has courtesy of September 11. If that is the case, then Mr. BYRD. I say, Congress normally the State Department. we ought to expect that all law en- would not do that. But I am not too You have all of these people around forcement officials around this country sure what the next Congress might do. the country—law enforcement offi- would have access to that terrorist Mr. DORGAN. Madam President, I cials—who are actually the first line of watch list. understand the concern expressed by defense and the first responders in the Let me go now to the second issue. I my colleague. Let me say, there is a event something happens. And they are just spoke of the need for law enforce- great disinfectant in this country, and out there stopping people with traffic ment to have access to a list of known that disinfectant is sunlight. If we can stops and stopping suspicious people terrorists and those who associate with shed some light on these kinds of pro- who are driving automobiles without known terrorists for purposes of pro- posals, I do not think there is any license tags, and so on. They don’t tecting this country. question the American people will de- have any idea whether someone they Well, one can certainly go to the mand—will demand—of this Congress have just stopped is a known terrorist other extreme in gathering informa- to preserve the basic rights, and espe- on a watch list prepared by the State tion in the name of homeland security. cially the basic right to privacy that Department and given to the Immigra- And a good example of that is a project exists and that they expect to continue tion Service and given to the consular that is being developed in the Depart- in the life of this country. offices. Why? Because they currently ment of Defense, by the Information So I understand the point that the have no mechanism to access it. Awareness Office. Senator from West Virginia makes, but Right now, a county sheriff some- The Information Awareness Office is I believe the more we disclose the ef- where in a northern county in North developing a long-term plan for what is forts of those who would suggest that Dakota is patrolling a road. If down called data mining. A master plan it is all right to snoop about everybody that road for some reason would come would be developed by which all of the and everything that goes on in this a terrorist who crossed over a remote information that moves around elec- country, the more we will expose, in section on the border between the tronically in our country—every pur- my judgment, the great, great concern United States and Canada and a county chase you make with a credit card, and anger of the American people to sheriff stops that known terrorist who every magazine subscription you buy, demand their right to privacy and de- is on the watch list for driving 90 miles every medical prescription you fill, mand that we not amend the 1974 Pri- an hour on Highway 22, there isn’t any every Web site you visit, every e-mail vacy Act in order to accommodate this way that county sheriff is going to be you send or receive, every academic kind of activity. able to access that watch list and know grade you ever received, every bank de- Mr. BYRD. Madam President, will that he or she has pulled over a known posit you made, every trip you book - the Senator yield? terrorist. would go into a massive database. And Mr. DORGAN. Of course I will yield. That is wrong. the Federal Government would use the Mr. BYRD. I am not going to detain Let me read an excerpt from the database to identify suspicious behav- the Senator. My colleague here wishes Hart-Rudman report, discussing what ior. to get the floor, and I am not going to they regard as a top concern: That is not what we ought to be detain him, but I still have to say that With just 56 field offices around the nation, doing in this country. We ought to I am surprised at some of the things we the burden of identifying and intercepting have a war on terrorism. But we ought do here. terrorists in our midst is a task well beyond not, in our zeal to engage in this war The distinguished Senator from the scope of the Federal Bureau of Investiga- on terrorism, in any way break down North Dakota is one of the brightest tion. This burden can and should be shared the basic civil liberties that exist in Senators I have ever seen over my good with 650,000 local county and State law en- forcement officers. But they clearly cannot our Constitution. The right to privacy many years in this institution. But lend a hand in the counterterrorism informa- is one of the most basic rights in Amer- let’s take the war, the resolution on a tion void that now exists. When it comes to ica—the right to expect there is not a war with Iraq. I took the position that combating terrorism, the police officers on Big Brother with a massive computer if we are, indeed—I was against that the beat are effectively operating deaf, dumb system gathering all the information resolution, but I said, if, indeed, we are and blind. about everything everyone is doing in going to shift this kind of power to the That is from the report. this country and evaluating it, perus- President, a power to declare war, then

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.074 S18PT1 S11278 CONGRESSIONAL RECORD — SENATE November 18, 2002 shouldn’t we put a sunset provision in, around the country to access the State That was lost time, lost health care for shouldn’t we stop that, at least give Department terrorist watch list. That children. him 2 years, and then say that we have is important, and it is necessary. I also It is very much a bipartisan, bi- to take another look at that? spoke about the prospect of gathering cameral agreement that we believe is Was the Senator surprised, as I was, raw data about everybody in the coun- in the best interests of our constitu- to see this very body—and even more try, about everything they do, to iden- ents and that we can do it on the Chil- surprisingly to see our own party—op- tify ‘‘suspicious’’ behavior. That is dren’s Health Insurance Program this pose that provision, a sunset provision, dangerous, and we ought not to con- year. when the Constitution says Congress sider it. The budget situation clearly is going shall have the power to declare war, Madam President, others want to to get a lot worse, starting in January. and we were shifting that power to the speak. I yield the floor. We need to protect the CHIPS funds be- Chief Executive to determine how and The PRESIDING OFFICER. The Sen- fore they are spent on other matters, when our military forces would be ator from West Virginia is recognized. as indeed they will be because, as I in- used, for how long and where? And he Mr. ROCKEFELLER. Mr. President, I dicated, the money will be returned to has that power in perpetuity. The next ask unanimous consent to speak in the Federal Government. Don’t expect President after him will have that morning business. that to come back into children’s The PRESIDING OFFICER. Without same power. health insurance. I was surprised. I am surprised to see objection, it is so ordered. It is my understanding there are a where this Senate, which has been the THE CHILDREN’S HEALTH INSURANCE PROGRAM number of Senators who have expressed great protector of the American people Mr. ROCKEFELLER. Madam Presi- concern and have stated their inten- and the constitutional system for over dent, I rise today to ask unanimous tion to hold up this bill in an effort to 200 years, is going of late. I have been consent for a bill which has been get the best possible outcome for their very bitterly disappointed in this Sen- hotlined on our side and which relates State. I do understand that. I have ate, of which I am a part, to see where to improved protection for children been through that a number of times it is going. It seems to have lost its under the Children’s Health Insurance even this year with individual States, nerve, lost its way, lost its vision, lost Program. And it is not a bill which I now two or three States, one or two its understanding of its role under the will hand to the clerk at the time that States, where they are trying to use a Constitution. I have completed my remarks, nor will formula, which has been worked out, Well, I thank the Senator and yield I ask unanimous consent that it be which applies to all States equally, to the floor. printed in the RECORD, although it is increase that formula to allow them to Mr. DORGAN. Madam President, let ready and being hotlined, because we do other things which are outside of me conclude by saying, I understand want to try to resolve a few remaining the Children’s Health Insurance Pro- the angst and the concern expressed by problems from several States on our gram. my colleague. side, which I do not think we are going After September 11, a day that this The Children’s Health Insurance Pro- to be able to do. We have tried in every country experienced a terrible, terrible gram is obviously larger than any one way to do it. tragedy—we have come together and Fundamentally, the Senator from State. My State does not get what it we have worked together to try to pro- West Virginia is on his feet trying to needs. There are only 20,000 children on tect our homeland. But there have also convince those States, whether they a regular basis who are covered, al- been, in this period, instances where we are here or not, whether their staff though 55 have come in and out of that have gone overboard. We should not members perhaps are, not to try and do program, but I cannot say in all con- sacrifice privacy rights in the name of what has happened so often before science that 55 are covered. The Chil- homeland security. We need to find an under the Children’s Health Insurance dren’s Health Insurance Program is in appropriate balance between the two. Program, and that is a State at the a situation that if we do not act now, There is much we can do, and much this money will be lost from the Chil- we should do, and much we will do, in last moment using the leverage of the final seconds of Congress to try to le- dren’s Health Insurance Program for my judgment, to improve law enforce- good. ment capabilities, but we can do that verage a better deal for itself. The House is coming back to pass It will happen. We have a new admin- without injuring the American people, istration, new priorities, new budget, without diminishing the right to pri- homeland security. There was one ob- jection made on that side in the House. and the same OMB director who has vacy. very firm views about this. I understand the point that the Sen- That person is being worked with at This is not, however, a permanent so- ator from West Virginia makes. But this time. If that objection is not lution. I am trying to stanch the drain, my point is, if someone is creating an raised and there is not an objection office with the expectation that Con- raised here, then the Children’s Health the bleeding for these next 2 years. I gress will amend the 1974 Privacy Act Insurance Program could get funding am trying my level best to do that. so that the Federal Government can for another 2 years. If not, funds will be This bill actually has a chance to track where you shopped, where you returned to the Federal Government. pass in the Senate and in the House spent money, where you traveled, what Children will not get health insurance, and to be taken up and passed in its en- airline you ride on, how much you owe, and there will be a very dramatic effect tirety. I only ask with all of my heart what kinds of grades you received—if which this Senator does not want to that Senators give it a chance, that someone thinks that the Congress is see happen. Senators not try to leverage the last going to allow that to happen, that This bill, which I will not ask unani- possible variety or program outside of someone is sadly mistaken. mous consent to report, is very much the CHIP program or extension of or I do not think Congress is going to bipartisan. It has been worked on for a some particular addition which will allow that to happen. I am not going to very long period of time. It started bring down, in fact, if an objection at allow that to happen. My colleague back in 1992, something of that sort. It this very late stage, with a day or so from Florida spoke on the floor earlier had a slow evolution because Senator remaining, which will obviously work, today and it prompted me to want to John Chafee and myself wanted very is held. If that objection is held, then come to say, as one Member of the Sen- much for the bill to be done under Med- there will be no bill at all. ate, I think there will be many of us icaid. The Governors struggled strenu- Earlier this year I worked in a bipar- who come to the floor of the Senate ously to have the entire matter han- tisan manner to develop a very com- and say, this isn’t something that will dled on a State-by-State basis, which prehensive proposal based on a basic be allowed. This is not something that was in effect a mistake because it and fundamental philosophy that no Congress will entertain in any serious meant some States that were very ag- child should go without needed health way. The right to privacy is critical. It gressive picked it up, and in others care. I was pleased at the time to be is important. And we must respect it. that were not so aggressive—my own joined by my good friend Senator So I spoke about two things: One is being one of those—it took a number of LINCOLN CHAFEE, Senator KENNEDY, the need for law enforcement officials years for the program to get going. and Senator HATCH to introduce the

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.076 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11279 Children’s Health Insurance Improve- I have been through this before even on this side of the aisle to support it ment and Protection Act of 2002. Unfor- this year with a Senator from another for the protection of 4.6 million chil- tunately, no action has been taken on State. And in formulas, there are var- dren across America and giving us a that proposal, and I am left worrying ious ways, technical ways, of things chance to do more. that we will end this session in a day or happening. Those can be brought up in I thank the Chair and yield the floor. two having forgotten our children. a very careful and effective way at the The PRESIDING OFFICER. The Sen- Therefore, I am introducing a pro- last moment, and people can dig in ator from West Virginia is recognized. posal that will at least protect the their heels. But I beg Senators to look Mr. BYRD. Madam President, I see Children’s Health Insurance Program at the overall results for our children. two of my distinguished colleagues on for the next 2 years. This is not a per- If we do not get this bill, it will af- the floor of the Senate who want to manent solution. This can change. But fect the next 2 years. All of this, I speak. At this moment, I am in no it is a solution for the next 2 years so might say, resulted in something that great hurry to get away. I am happy to money does not have to be returned. took place during the budget com- accommodate both of them. I ask unanimous consent that I may Children will be left behind. promises that we had in 1997. These yield to either Senator SPECTER or The Children’s Health Insurance Pro- programs all have sort of obscure be- gram, as the Presiding Officer knows Senator FRIST—Senator FRIST first. ginnings, but there are very large con- How much time would the Senator very well, has been an unqualified suc- sequences. cess. It has been an amazing success. like? As a result, a number of States will Mr. FRIST. Less than 15 minutes. Last year 4.6 million children across have insufficient Federal funding to America were enrolled in the Chil- Mr. SPECTER. I would like 10 min- sustain their enrollment. They just utes. dren’s Health Insurance Program and won’t have that money. They will have the percentage of children without Mr. BYRD. For not to exceed 25 min- no choice but to scale back or limit utes—15 and 10—and that I then regain health insurance has declined in recent their Children’s Health Insurance Pro- my right to the floor, even though I years by reason of the Children’s grams. I cannot imagine anything may walk away from the floor in the Health Insurance Program. In my worse. meantime. State of West Virginia, the CHIP pro- We have talked about judges this The PRESIDING OFFICER. Without gram provides health coverage on a afternoon while I was presiding. We objection, it is so ordered. permanent basis to over 20,000. And, of talked about homeland security. I am Mr. SPECTER. I thank our distin- course, it needs to do much better than talking about children’s health insur- guished President pro tempore for ac- that. As I indicated, we were slow in ance. I would not put that second to ei- commodating our schedules. starting a number of years ago. We ther of the previous two discussions. I The PRESIDING OFFICER. The Sen- have picked up our pace more recently. care passionately about it. I remember ator from Tennessee is recognized. Health insurance coverage is key to precisely when the Senate got together Mr. FRIST. Madam President, I ask assuring children’s access to all kinds and asked all the staff to leave, and 20 unanimous consent to speak in morn- of health care. I need not go into this. ing business, if that is necessary. Uninsured children who are injured are of us with very different points of view sat around a number of years ago and The PRESIDING OFFICER. Without 30 percent less likely than insured chil- objection, it is so ordered. dren to receive medical treatment, 3 we worked out a children’s health in- surance budget, which passed very eas- HOMELAND SECURITY times more likely not to get a needed Mr. FRIST. Madam President, I rise prescription. Health outcomes are af- ily. Some people had never talked about health insurance at all, and we to address a homeland security issue fected in all respects. As children do that we will be voting on tomorrow said this cannot do for children. It eventually become adults, they carry morning. Specifically, I would like to passed and it has been moving along with them the legacy of what they discuss the Lieberman amendment. ever since. didn’t get as children in the way of This amendment strips out certain pro- The biggest problem will result in en- health insurance. visions which Senator LIEBERMAN and rollment cuts in the CHIP Program and However, the continued success of other proponents of the provision be- the future health problems, as I indi- the CHIP program is now, as I have in- lieve are unrelated to the underlying dicated—I hope soberly enough—in cated, of adults who, as children, could homeland security bill. very serious jeopardy. On September 30 have received benefits under the CHIP More specifically, I want to address of this year, $1.2 billion in unspent Program but who did not because we the issue of vaccines. There are three children’s health insurance funds was were unable to take action, or the pro- claims that have been made by the pro- sent back to the General Treasury. It gram was fundamentally insufficient. ponents of the Lieberman amendment, is gone. In addition, some $1.5 billion of We are trying to do the best we can. as they relate to the vaccine provi- these funds are projected to revert I am introducing this concept of the sions. For my colleagues who were not back to the Treasury next September bill. It is being hotlined on our side. It on the floor Friday, I refer them to 30. If we do not act to protect this has not been hotlined on the Repub- some of my underlying comments on money for children and send money to lican side yet. the policy of the homeland security the States that can in fact use it, we Again, it is only a first step that we bill and the vaccine provisions which I will have failed our children. need to take. We need a comprehensive mentioned on the floor Friday. A 2-year fix is only a first step. There and reasonable approach to shore up This afternoon, what I would like to is much more that we need to do. The CHIP financing and avert a devastating do specifically is examine these three Bush administration projects that enrollment. I cannot think of anything claims. First, the proponents of the 900,000 children will lose their health more important that we can do as a na- Lieberman bill say that the underlying insurance coverage between fiscal tion. vaccine provisions in the bill remove years 2003 and 2006 if we do not take ac- I conclude by saying we need to put individual rights to sue. Their second tion this year. more money into this program. How- claim is that Thimerosal, contained in The bill I am discussing, that I hope ever, this legislation—at least for the vaccines, causes autism. The third will not be blocked by any individual short period—will protect $1.2 billion claim I would like to refute is that Member, is tremendously important. It that should be spent on children’s these vaccine provisions do not belong is called the CHIP Dip. Federal CHIP health insurance rather than on roads in the homeland security bill. funding has dropped by more than $1 or other matters, and will put money Claim No. 1: The proponents of the billion this year, and this reduction into States that can use it now to Lieberman amendment say the vaccine has no underlying health policy jus- cover children. It is the least we can provisions remove individual rights to tification whatsoever. I cannot hon- do. sue. They are saying these provisions estly imagine that with so many chil- I urge my colleagues to support this are an example of Republicans fronting dren at stake in so many different legislation, and I urge my colleagues for special interests; that they take States, that one would look at the last on the other side to support it in the away individual rights to sue and pro- moment to leverage a particular ad- last days when it is hotlined on their vide legal immunity from liability for vantage. side of the aisle. I urge my colleagues vaccine makers.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00049 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.080 S18PT1 S11280 CONGRESSIONAL RECORD — SENATE November 18, 2002 My response is that these provisions Claim No. 2—and this one probably a lot of time on it, but I do want to do nothing more than require injuries bothers me as much as any because it read what the people who are quoted in that are related, or allegedly related, is twisting medical science. I am not the article are saying. to a vaccine to first proceed through sure exactly what the reasons are, but I ask unanimous consent that two the Vaccine Injury Compensation Pro- this claim is Thimerosal-containing letters be printed in the RECORD. gram (VIC program). The VIC program vaccines cause autism. Additionally, There being no objection, the mate- was very specifically established in the proponents claim that Thimerosal as rial was ordered to be printed in the mid-1980s for all injuries that are alleg- an additive in a vaccine has a causal RECORD, as follows: edly related to a vaccine. relationship to the autism, a disease INSTITUTE FOR VACCINE SAFETY, Since the mid-1980s, all such injuries with increasing incidence. The inci- JOHNS HOPKINS UNIVERSITY, alleged to be caused by a vaccine are dence of autism is increasing. We do BLOOMBERG SCHOOL OF PUBLIC collected and channeled quickly and not know why, and that is why it is im- HEALTH, appropriately first through this Vac- portant for us to conduct the appro- November 11, 2002. cine Injury Compensation Program. A Proposed title: Misleading the public about priate research. autism and vaccines. no-fault, efficient alternative to our There has been a lot of misrepresen- tort system; very quickly. TO THE EDITOR: The unfortunate use of a tation about the various vaccine provi- sensationalized title in the article published That requirement is law today. The sions in the bill, but this one really provisions that are in the underlying November 10, 2002 in the New York Times irks me the most. It is grandstanding Magazine ‘‘The not so crackpot autism the- homeland security bill simply restate which crosses the line because it is not ory: reports of autism seem to be on the rise. and clarify what that law is and what what science says. It is not what the Anxious parents have targeted vaccines as that law does. If there is an alleged medical community says. It is not the culprit. One skeptical researcher thinks vaccine-related injury, you first go to what medical science in the broadest it’s an issue worth investigating,’’ absolutely the Vaccine Injury Compensation Pro- sense says. In fact, it is the exact oppo- misrepresents my opinion on this issue. Also, the caption under the photograph of me gram. After a period of time, whether site of what the Institute of Medicine or not the program decides in your ‘‘Neal Halsey says that vaccinologists have has said. no choice but to take the thimerosal threat favor, whether or not there is what you Last week on the floor one of my col- regard as adequate compensation, at seriously’’ is not a statement that I ever leagues said these provisions in the un- made. There is no ‘‘threat’’ as thimerosal the end of that program, you can sim- derlying homeland security bill—say- has been removed from vaccines used in chil- ply state that you still want to go to ing why they must be stricken—said dren. The headline, the press release issued court. Whatever that program decides, specifically: prior to publication, and the caption are in- you are free to go to court. You are appropriate. I do not (and never did) believe Liability protection for pharmaceutical that any vaccine causes autism. free to sue, and there are no caps in companies that actually make mercury- I stated to the author on at least two occa- terms of liability. based vaccine preservatives that actually sions that the scientific evidence does not The provisions in this bill take away have caused autism in children. . . . no one’s right to sue. The provisions in suggest any causal association between vac- That is scientifically wrong. Science the underlying homeland security bill cines and autism and he reaffirmed that the does not validate it. Let me tell you article would reflect my opinion. Unfortu- provide no immunity from liability. nately, the title implies the opposite opin- A little perspective: There are cur- what science says. I quote the October 2001 Institute of Medicine record. The ion. A ‘‘fact checker’’ employed by the New rently about 875 cases alleging injury York Times asked me several questions and due to the presence of a preservative report is called ‘‘Thimerosal-Con- taining Vaccines and Neurodevelop- minor corrections were made, but I was called Thimerosal that is no longer never shown the text of the article and no used in vaccines. Right now, these 875 mental Disorders.’’ That report con- questions were asked about the title that im- cases are in front of the Vaccine Injury cluded: plies a belief that I do not hold. It was my Compensation Program, consistent The hypothesis that Thimerosal exposure expectation that the title would be about with the law since the 1980s. These through the recommended childhood immu- thimerosal and the difficult decisions that nization schedule has caused neurodevelop- cases are in no way affected by the pro- were made during the past three years that mental disorders is not supported by clinical have resulted in the removal of thimerosal visions in the homeland security bill. I or experimental evidence. as a preservative from vaccines administered want to repeat that. These 875 cases The argument that is being used in to infants and young children. Changes in that are in the Vaccine Injury Com- support of the Lieberman amendment the use of thimerosal were made by the Food pensation Program are being dealt as the reason to support stripping and Drug Administration and the vaccine in- with in an orderly process that was dustry with urging by the American Acad- these provisions is based on a false outlined several months ago, and they emy of Pediatrics and the Public Health premise, a totally false premise, ac- are in no way affected by the provi- Service in a concerted effort to make vac- cording to medical science today. What sions in the underlying bill. cines as safe as possible. If individuals are unsatisfied with bothers me about it, and the reason The sensationalized title sets an inappro- priate context for everything in the article. what the Vaccine Injury Compensation this bothers me more than any of the other three claims, is probably because Readers are led to incorrectly believe that Program decides, at the end of it, you statement in the article refer to autism. I can say: Forget what you have con- it scares parents. It says vaccines are going to hurt your children, and that have expressed concern about subtle learning cluded from me; I am going straight to disabilities from exposure to mercury from court. Anyone can do that today, and demagoguery is going to mean these environmental sources and possibly from thi- one can still do that with the provi- parents are not going to let their chil- merosal when it was used in multiple vac- sions of this bill. dren get these childhood vaccines. cines. However, this should not have been in- The only people who are really af- These vaccines fight diseases that have terpreted as a support for theories that vac- fected by the language in this under- caused pandemics and epidemics, dis- cines cause autism, a far more severe and lying homeland security bill are the eases that will kill children if we do complex disorder. The studies of children ex- posed to methylmercury from maternal fish trial lawyers who are trying to cir- not make the vaccines available. Epidemics will occur, and death will and whale consumption and the preliminary cumvent the very law this body passed studies of children exposed to different in the mid-1980s—a law which has ensue. amounts of thimerosal have not revealed any worked very well since that point in I challenge my colleagues to go to increased risk of autism. time. The trial lawyers basically are the American Academy of Pediatrics Inappropriated reporting has contributed trying to create a loophole in the cur- and to the Institute of Medicine and to public misunderstanding of vaccines and rent law. ask that question: Does Thimerosal, other health care issues. The use of deceptive The provisions in the underlying according to the scientific literature, title is one of the primary means that news- homeland security bill state very sim- cause autism? The answer is no. papers have misled the public. The New York A number of the people on the floor Times and other newspapers need to conduct ply that you first go to the Vaccine In- self-examinations into this role in mis- jury Compensation Program, and for have also held up a New York Times leading the public and modify procedures ac- good reason. After which, you can still magazine article quoting it as further cordingly to help prevent future major mis- go to court and sue with no caps or no proof that the preservative Thimerosal representations of scientific data and opin- limits. causes autism. I do not want to spend ions. Another disserve to the public comes

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.083 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11281 when scientists become reluctant to talk Mr. FRIST. Madam President, I will not belong in the homeland security with the media for fear of being misquoted or quote a couple paragraphs from each. bill. I would argue just to the contrary. misrepresented. I have already spent a great The first is from Dr. Neal Halsey, If we do not have a stable manufac- deal of time correcting the misinformation who is profiled in the article in the turing base for vaccines, there is abso- in the Sunday’s NYT Magazine article. Natu- rally, the next reporter from the NYT who New York Times and who is character- lutely no way we can prepare our com- contacts me will be met with skepticism and ized as being concerned about the Thi- munities and our Nation in the event reluctance unless changes are made to pre- merosal threat. Dr. Halsey heads up there is a biological warfare attack on vent recurrences of this debacles. the Johns Hopkins University Institute our soil. Apparently, editors, not authors, write for Vaccine Safety, and he wrote say- We talk a lot about smallpox, and we most titles. To avoid misinterpretations au- ing that this story all know today we are inadequately thors should propose titles and assume re- absolutely misrepresents my opinion on protected because today we are inad- sponsibility for making certain that titles do this issue. . . .There is no ‘‘threat’’ as thi- not misrepresent the opinions of individuals equately vaccinated against smallpox. merosal has been removed from vaccines or information presented in the article. Pro- We cannot destroy the manufacturing used in children. The headline, the press re- posed titles and subtitles should be included base for our vaccines today. We started lease issued prior to publication, and the in the review by ‘‘fact checkers’’’ when inter- with 12 vaccine companies in this coun- caption are inappropriate. I do not (and viewing people whose opinions are included try, companies that made vaccines. In never did) believe that any vaccine causes in the title. The best way to avoid these autism. large part because of the liability problems would be to permit individuals re- issue, the number of companies making He continues: ferred to in articles an opportunity to read a vaccines has decreased to four vaccine draft of the text before it is to late to correct I stated to the author on at least two occa- mistakes or misunderstandings. manufacturers in the world. Only two sions that the scientific evidence does not vaccine manufacturers are in this The New York Times and other newspapers suggest— country, and at the same time, the Na- and magazines should have policies requiring Does not suggest— authors, editors and fact checkers to disclose tional Institutes of Health is embark- personal associations with issues covered in any causal association between vaccines ing upon a new initiatives to develop a articles they are involved in preparing and and autism and he reaffirmed that the arti- vaccine for botulinum toxin, a major they should be relieved from their responsi- cle would reflect my opinion. Unfortunately, initiative on their part. If we vote to the title implies the opposite opinion. bility for articles where they have personal strike these provisions, we are putting issues or conflicts of interest. He concludes: The general public and parents of children at risk our manufacturing base which The general public and parents of children we absolutely must have to be a pre- with autism have been misled by the title of with autism have been misled by the title of this article and the news release. This is a pared Nation. Vaccine development this article and the news release. . . .I en- cannot be ramped up quickly because disservice to the public and the value of my courage interested readers to review my sci- opinion has been diminished in the eyes of entific publications and to read objective re- manufacturing is a highly complex physicians, scientists, and informed mem- views of this and other vaccine safety issues process. These important provisions bers of the public. I encourage interested conducted by the Institute of Medicine. further stabilize the vaccine supply readers to review my scientific publications system, and thus, are key to our abil- and to read objective reviews of this and The second letter is from Dr. Samuel under other vaccine safety issues conducted Katz, Professor and Chairman Emer- ity to establish appropriate homeland by the Institute of Medicine (www.iom. edu). itus at the Department of Pediatrics at security. NEAL HALSEY, M.D., the Duke University School of Medi- Those are the three claims we have Director. cine. Dr. Katz writes: heard over the last 2 to 3 days. I en- As one of the two authors of the July 7 courage my colleagues to look at ear- DEPARTMENT OF PEDIATRICS, DUKE joint PHS/AAP 1999 statement that you cite lier statements on what the vaccine UNIVERSITY SCHOOL OF MEDICINE, in your article . . . it is appropriate that sev- provisions are specifically. Durham, NC. eral misconceptions in your article be rec- I urge my colleagues to vote against Subject: Thimerosal issue. tified. . . .we chose to recommend the re- the Lieberman amendment tomorrow TO THE EDITOR: As one of the two authors moval of Thimerosal, not because there was and to move forward on this important of the July 7, joint PHS/AAP 1999 statement any evidence of its toxicity to vaccine recipi- that you cite in your article on ‘‘The Not-So- homeland security bill. ents, but to enhance public confidence in The PRESIDING OFFICER. The Sen- Crackpot Autism Theory’’ it is appropriate vaccines. To the credit of the pharma- that several misconceptions in your article ceutical industry, within 1 year all vaccines ator from . be rectified. The EPA guidelines on mercury for children were free of Thimerosal. Mr. SPECTER. How much time re- levels related to methyl mercury, a very dif- Dr. Katz concludes: mains of the 25 minutes identified by ferent compound from ethyl mercury which the Senator from West Virginia? Despite the absence of Thimerosal from is the metabolite of thimerosal. Three other The PRESIDING OFFICER. The Sen- guidelines issued by federal and World these products over the past two years, there Health Organization agencies were not ex- has been no decrease, in fact an alleged in- ator from West Virginia has 10 min- ceeded by the vaccine levels. crease, in the incidence of autism among our utes. Nevertheless we chose to recommend the childhood population—strongly suggesting Mr. SPECTER. I thank the Chair. removal of thimerosal, not because there was other factors involved in its ideology. Re- NOMINATION OF DENNIS SHEDD grettably, this exemplifies another issue any evidence of its toxicity to vaccine recipi- Madam President, I will briefly com- ents, but to enhance public confidence in where the best-intentioned actions have vaccines. To the credit of the pharma- served to benefit no one other than the li- ment on two matters: First on the con- ceutical industry, within 1 year all vaccines ability lawyers who feed on events of this firmation of Judge Shedd, and second for children were free of thimerosal. sort as sharks in bloodied waters. on the pending Lieberman amendment The only possible exception is influenza The final statement is from Every to the homeland security bill. virus vaccine which is not recommended for Child by Two, the - I support confirmation of Judge children less than 6 months of age and for Betty Bumpers Campaign for Early Shedd for a number of reasons. First, which a newly licensed product is now avail- Childhood Immunizations in a state- he has been found well qualified by the able free of thimerosal. Despite the absence American Bar Association, the highest of thimerosal from these products over the ment released today: past two years, there has been no decrease, Most importantly, we are concerned that rating which can be given. I knew in fact an alleged increase, in the incidence the Senate may be inadvertently fueling Judge Shedd when he served as chief of autism among our childhood population— fears that vaccines cause autism. In fact, counsel, chief of staff, to the Judiciary strongly suggesting other factors involved in well-respected studies concluded that the Committee from 1981, when I came to its etiology. Regrettably this exemplifies an- evidence is inadequate. Much research is the Senate and started to serve on the other issue where the best-intentioned ac- available to support these conclusions. Judiciary Committee, until 1988. I be- tions have served to benefit no one other Madam President, the third claim— lieve he is a fair, equitable, and com- than the liability lawyers who feed on events and I will be brief on the third claim— petent jurist. I know Judge Shedd’s of this sort as sharks in bloodied waters. Yours sincerely, we have heard on the floor from the ad- record on the U.S. district court where SAMUEL L. KATZ, MD, vocates of the Lieberman amendment, he has served since 1991. I asked Judge Wilburt C. Davison Professor which I encourage my colleagues to op- Shedd some questions, and he re- and Chairman . pose, is that the vaccine provisions do sponded in some detail.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00051 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.059 S18PT1 S11282 CONGRESSIONAL RECORD — SENATE November 18, 2002 I ask unanimous consent that Judge sponded that I do not think it is fair. Sen- at trial when I thought that its use would Shedd’s written response be included at ator Specter then asked me to provide a improperly disadvantage the defendant. It is the conclusion of my comments. written answer explaining my position. I also my practice during trial to ensure very The PRESIDING OFFICER. Without trust that this will be responsive to the Sen- specifically that defendants are aware of ator’s request. their constitutional right to testify or not to objection, it is so ordered. In lodging its opposition to me, as I under- testify. Similarly, it is my practice to ensure (See exhibit 1.) stand it, the NAACP has focused on a rel- that witnesses who I believe may incrimi- Mr. SPECTER. In those written com- atively small number of cases—primarily nate themselves by their testimony are ments he pointed out that in civil dem- employment discrimination cases—in which aware of their rights, and I have appointed onstration cases he has been fair and the plaintiffs did not prevail. Relying on counsel in some instances to advise these equitable: One bench trial verdict of these cases, and ignoring my complete witnesses before they testify. over $2 million and another over $1 mil- record, the NAACP has attempted to create I would also note that my overall record in the impression that I do not treat civil civil cases demonstrates that I do not have lion; he has employed both female and rights plaintiffs fairly. However, this is a any bias against plaintiffs. I have, for exam- African-American law clerks; and, in complete mischaracterization of my record ple, awarded a bench trial verdict of over general, set forth the specifics to show as a district judge, and it is based on a very $2,000,000 in one case, and over $1,000,000 in that he has not been discriminatory in limited—and misleadingly selective—sam- another case. In addition, I have presided his judicial practices. These comments pling of my casework. My complete record as over jury trials which led to substantial ver- have been checked out by staff and a district judge demonstrates that the dicts in a plaintiff’s favor, and I have on at found to be accurate. charge is not accurate. least one occasion directed a verdict of li- I do not wish to belabor this response with ability in a plaintiff’s favor. I have also Judge Shedd has been criticized for a case-buy-case rebuttal of the employment raised, sua sponte, the propriety of the re- circumventing the authority of Con- cases for which, to my knowledge, I have moval of cases from state court, thereby set- gress under the commerce clause in a been criticized. Of course, people are entitled ting in motion the procedure by which the very celebrated case, United States v. to disagree bout the outcome of a particular plaintiffs could return to their chosen forum Brown, involving the Gun-free School case depending on their viewpoint. However, (i.e., state court). I have also assisted parties Zones Act. Judge Shedd found that it as an initial matter, I would note that I have in civil cases in reaching a settlement, and was constitutional and was later re- not been made aware of any criticism which often this has occurred where it appeared as versed by the Supreme Court of the suggests that my decisions in these cases are though the plaintiff would otherwise gain no legally incorrect or improper. I do not claim recovery. United States under United States v. to have been correct on every issue that has Apart from my case record, I believe that Lopez. In brief, it is a complicated sub- come before me, but I can tell you that I my commitment to ensuring fairness for all ject, but Lopez, the Supreme Court de- have conscientiously endeavored to be cor- persons is exhibited by my conduct in other cision of 1995, curtailed the authority rect. matters. For example, I have employed fe- of Congress under the commerce Moreover, contrary to the misimpression male and African-American law clerks. I clause. that the NAACP has attempted to create, I have also actively recruited and support mi- Judge Shedd has been said to have have on many occasions denied defendants’ nority and female candidates for magistrate limited what Congress can do on motions for summary judgment (or to dis- judgeships. miss) in employment cases. I have done so Now in my twelfth year on the district States’ rights. Here is a case where he when a magistrate judge has recommended court. I have handled thousands of civil and found congressional authority. It was a that I grant the motion, and I have done so criminal cases in which I have issued count- close case. He was reversed—or later over the defendant’s vigorous objection. less rulings, all of which are public record. the Supreme Court decided he was in Typically, once a plaintiff defeats a sum- During this time, my concerted effort has error. But I think it illustrates the mary judgment motion in this type of case, been to ensure that all litigants are treated point that Judge Shedd did give lati- the case settles, and that has happened often fairly according to the law. I do not ap- tude for congressional enactments. in my cases. However, I have also had em- proach any case, or any litigant, with any type of bias, and I do not decide issues before It is my hope that Judge Shedd will ployment cases, in which I denied the defend- ant’s motion, thereafter process to verdict. me on anything other than the pertinent not be part of the so-called payback Further, sitting by designation with the law. I am gratified that I have earned a theory. I did not like what happened to Fourth Circuit, I joined with Judge Sam reputation among lawyers in this district (as President Clinton’s nominations when Ervin in reversing a summary judgment and reported in the Almanac of the Federal Judi- Republicans controlled the Senate. As remanding a case in order to allow the em- ciary) for being fair and impartial. I believe the RECORD will show, I supported ployment discrimination plaintiffs to pro- my impartiality is reflected by the low num- Judge Roger Gregory for the Fourth ceed to trial. I believe these examples alone ber of cases in which I have been reversed, as Circuit. We have had some of the pay- refute the NAACP’s criticism of me. one could reasonably expect that any type of As I am sure you are aware, an individual’s bias on the part of a district judge would back consideration on the Fifth Circuit civil rights may be implicated in federal liti- manifest itself over time in appellate I think fairly stated with Judge Pick- gation in many contexts outside the realm of response to judge’s work. ering, and I hope that will not occur employment discrimination. I have been pre- I would like to point out an incident that with Judge Shedd. It is my hope we sented with countless cases of various types occurred earlier this year, as I believe it is will soon have a protocol which will in which an individual’s civil rights were im- akin to the current accusations against me. take politicization out of judicial se- plicated, including (but not limited to) On May 3, an article appeared in the Wash- lections when there is a Democratic criminal cases, voting rights cases, habeas ington Post stating, in essence, that I was insensitive to disabled persons because I President, such as President Clinton, corpus cases, and cases involving allegations of governmental misconduct of some type. would not allow a blind woman to be present with a Republican Senate. Now the My complete record in these types of cases in the courtroom during a trial over which I shoe is on the other foot, and we have further reflects the fact that I do not have presided. That article was printed without a Republican President, President any type of anti-civil rights bias. anyone from the newspaper contacting me to Bush, and a Senate controlled by the For example, I have presided over trials in verify the allegation, which I readily could Democrats. We ought to move away which civil rights plaintiffs have won jury have refuted. However, after the article ran, from that. verdicts or gained a settlement at trial. I I was able to obtain a transcript of the trail As the RECORD will show, I have sup- have granted relief in at least five habeas in question, and it very clearly confirmed ported qualified nominees submitted corpus cases. I ruled in favor of the plaintiff what I already knew; I had made special ef- and upheld the one-person/one-vote principle forts to accommodate the woman in ques- by President Clinton and was pleased in a case in which the plaintiff challenged tion, and I only ordered her to leave the to note that there was reciprocity. All the method of electing members to a local courtroom (as I was required to do by the 11 of Pennsylvania’s district court school board, and I have handled a number of Federal Rules of Evidence) after the parties judges have been confirmed, as has Voting Rights Act cases in which (to my identified her as a potential witness and re- Judge Brooks Smith, the one contested recollection) the plaintiffs in each case suc- quested that all trial witnesses be seques- circuit judge. ceeded on their claim of a violation. tered. In other words, the woman was re- I have always endeavored to be vigilant in quired to leave the courtroom because she EXHIBIT 1 ensuring the protection of civil rights in was a potential witness, not because she was RESPONSE OF JUDGE DENNIS SHEDD TO criminal cases as well. I have, for example, blind. Fortunately, when the actual facts SENATOR SPECTER’S QUESTION granted judgment of acquittal on numerous came to light, the newspaper ran another During my June 27, 2002, hearing before the occasions to defendants where I believed, as story setting the record straight. Senate Judiciary Committee, Senator Spec- a matter of law, that the government failed I mention this story not as a complaint, ter asked me if I believed that the NAACP’s to meet its burden of proof. I have also dis- but as an example of how a perfectly legiti- opposition to my nomination was fair. I re- allowed the government from using evidence mate set of facts can easily be misused to

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.086 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11283 portray a false impression. I believer that hearings and consideration. It may award from the Vietnam Veterans of this has occurred in this instance, and I am well be that by the time we add up all America Foundation, the Patrick very appreciative to the Committee for pro- of the provisions, the disadvantages Leahy Humanitarian Award. I can’t viding me the opportunity to set the record straight about my judicial career. may well outweigh the advantages of think of anything that gave me more In closing, I would add a personal com- this bill on homeland security. pleasure than to give it to her. ment. In my life, I have seen first hand the Ultimately, the need to have home- I ask unanimous consent that an ar- unfair and unequal treatment of disadvan- land security, to have a Secretary who ticle from magazine of taged people in society. That is one reason I will be able to put all of the investiga- November 13, 2002, speaking of have always cared so deeply for doing my tive agencies under one umbrella, is so Emmylou being honored in Wash- best to treat all people fairly and with re- important that we will have to swallow ington, DC, be printed in the RECORD. spect. Those who know me would emphati- hard. This is really a case where it is a There being no objection, the mate- cally agree that I have an abiding concern for fairness. I believe my record as a judge matter of take it or leave it on a bill rial was ordered to be printed in the underscores my dedication to his principle which is undesirable in many aspects, RECORD, as follows: and I will continue to show fairness and re- but the importance of protecting [Rolling Stone, Nov. 13, 2002] spect to all in my judicial actions, as well as America from terrorist attacks out- EMMYLOU HONORED IN D.C. in my public and private life. weighs so many of these provisions (By Lynne Margolis) Mr. SPECTER. How much time re- which are highly undesirable. MUSICIANS, POLITICIANS PRAISE HARRIS FOR mains, Madam President, of the 10 min- There is an old expression about not LANDMINE CHARITY WORK utes? wanting to see either legislation or When Senator PATRICK J. LEAHY presented The PRESIDING OFFICER. The Sen- sausage made. This homeland security singer-songwriter Emmylou Harris with his ator has 5 minutes 50 seconds. bill is problemsome in so many re- namesake humanitarian award Tuesday HOMELAND SECURITY spects that it is giving sausage a bad night at the Birchmere Music Hall in Mr. SPECTER. Madam President, we name. It goes very far. However, it is Alexandria, Virginia, he said her work on be- face a very difficult situation on home- so important to have a Secretary with half of landmine victims might have touched land security in a number of respects. I authority on homeland security to act more lives—in more important ways—than her vast body of beloved music. spoke last week about my concern that to protect against terrorism. This bill Harris, who received the award from the there was not sufficient authority in is very weighty and has undesirable as- Vietnam Veterans of America Foundation the Secretary to direct the intelligence pects, and there are amendments which for her creation and continued support of the agencies and my concern about the would have improved the bill tremen- Concerts for a Landmine Free World bene- labor-management provisions. I did not dously. fits, said it merely represented how blessed offer amendments because when the I lodge these objections that the pro- she is to be able ‘‘to give something back’’ in House of Representatives has, in effect, cedural posture really of legislative exchange for a career that brings her so , with the House having gone much joy that ‘‘you really can’t call it gone home, if we pass amendments, work.’’ there will have to be a conference and home, a take-it-or-leave-it proposition, Harris seemed even more humbled than the bill will be brought down. puts this Senator in a very difficult po- usual by the shower of accolades from I believe it is vitally important that sition. Ultimately, I think the neces- LEAHY, VVAF president Bobby Muller and homeland security be passed, that we sity for homeland security outweighs some of her closest musical friends including move ahead to put all the so-called these disadvantages, but barely. Steve Earle, Buddy and Julie Miller, Patty dots on the screen, as I spoke at length I again thank my colleague from Griffin, Nanci Griffith, Guy Clark, Rodney on last week. Had all the dots been on West Virginia for arranging this se- Crowell, John Prine and Jamie O’Hara, all of the screen, I think 9/11 might well have quence, and I yield the floor. whom performed at the benefit concert. Pal The PRESIDING OFFICER. The Sen- Mary Chapin Carpenter was unable to attend been prevented. I do not accept the as- because of back problems, but sent flowers sertion of CIA Director George Tenet ator from West Virginia is recognized. that adorned the stage of the intimate, 500- that another 9/11 is inevitable. Mr. BYRD. I yield whatever time he seat venue. Most of the artists had partici- The House-passed bill from last may wish to consume to the distin- pated in earlier Landmine Free World con- Wednesday, which has come over, is a guished Senator from Vermont, Mr. cert tours and, like Harris, have visited voluminous bill, hundreds of pages LEAHY, with my retaining the floor. countries devastated by landmines that still long. As we start to consider it, there The PRESIDING OFFICER. Without remain years after military conflicts have are seven provisions now which Sen- objection, it is so ordered. ended. LEAHY has spearheaded efforts for a global landmine ban; VVAF aids civilian vic- ator LIEBERMAN has sought to strike: The Senator from Vermont. Mr. LEAHY. Madam President, I tims of those conflicts. Provisions on childhood vaccines; pro- During a night that focused on the purest tections for qualified antiterrorism thank the distinguished senior Senator of musical elements—lyrics, wooden guitars, technologies; the university of home- from West Virginia. He has been my and frequently, Harris’ angelic soprano soar- land security advancement, which friend for nearly 30 years, and his con- ing in harmony with her equally talented seems to pinpoint Texas A&M; the ex- stant courtesy is one of the reasons for friends—she gave as much praise to her fel- tended duration of the advisory com- it. low activists and performers as they did to mittee; the exemption for FACA; the Mr. BYRD. And will be for the next her. ‘‘Really what I have done has been given airport security liability protections; 30. Mr. LEAHY. I thank the Senator. the opportunity to reflect, or deflect, some the provision on contracting with off- of the light that shines on me because of the shore entities, which Senator TRIBUTE TO EMMYLOU HARRIS nature of my work, and shine it on these Wellstone had added, to prohibit the Madam President, last week, at the people, these causes, these situations,’’ she Secretary from contracting with in- Birchmere Music Hall in Alexandria, said backstage. verted domestic corporations. VA, there was a concert that honored ‘‘I’m so, so grateful for the opportunity to All of these provisions, I think, re- one of the most distinguished song- be able to do that. Because that’s the only quire very extensive consideration and writers and singers I know, Emmylou way I know to be really thankful for my Harris. Emmylou Harris was honored blessings. This is a really wonderful moment analysis. I am very distressed to see for me. And I’m so grateful to all my fan- them added on the bill, with no hear- because of the work she has done to aid tastic friends who made it possible.’’ ings and no chance for consideration. victims of landmines and to help stop The night contained a few overtly political Now we are faced with a homeland se- the scourge of landmines throughout references or anti-war proselytizing, though curity bill which is very heavily the world. In honoring her, some of the Prine performed ‘‘Your Flag Decal Won’t Get weighted with provisions which are un- best artists of this country came and You Into Heaven’’ and his 1970 tearjerker desirable. It makes it difficult. sang for her. They honored both her gem, ‘‘Hello in There,’’ with its reference to Candidly, I am not sure how I would work and, of course, they honored her parents who lost a son in Korea. Harris noted vote on all of these provisions if they that her father was a World War II veteran amazing talent. and Korean War POW, and that the show was were presented individually. I do think My wife Marcelle and I, and our occurring one day after Veterans Day as well that on a matter of this importance, it daughter Alicia, and Emmylou’s as the twentieth anniversary of the Vietnam would have been orderly procedure to daughter, mother, and friends were Veterans Memorial dedication. She talked have these provisions submitted for there to hear this. She received the about playing at the memorial’s fifteenth

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.058 S18PT1 S11284 CONGRESSIONAL RECORD — SENATE November 18, 2002 anniversary five years ago and how listening I think my wife saw me coming when the budget to helping to preserve and to O’Hara sing his ‘‘50,000 Names’’ was ‘‘the she named the little dog Trouble. I said protect our environment, he has defied most cathartic experience I’ve ever had in to Erma, if Billy came back tonight, easy labels. Senator SMITH has also my career.’’ As he performed the tune again, would he still be No. 1, and she said been a strong advocate for modernizing sniffles could be heard in the audience. Later, at Harris’ request, Earle did ‘‘a song yes. And we both agreed that Billy his state’s and the nation’s infrastruc- about faith,’’ the title track from his new would still be No. 1. ture, and for that I sincerely applaud album, Jerusalem. Last year, when our beloved dog him. He has also tenaciously fought to Earlier, LEAHY cracked that everybody in Billy Byrd passed away, many people gain a thorough accounting of Amer- Washington was in the room except U.S. At- came to me to express their condo- ican MIAs and POWs. torney General , who ‘‘listens lences. But one who really, really I have probably opposed Senator to Steve Earle all the time.’’ The outspoken touched me was a big, hulking Navy SMITH more than I have agreed with Earle has made his anti-war and anti-death combat veteran who came to my office him, but I have consistently been im- penalty views well known in Washington. Harris noted that ‘‘Jerusalem’’ provided a and showed a personal compassion in pressed with his independence of spirit necessary note of hope, adding ‘‘we’re in a that moment of sorrow. That person and thought, and his dedication to the very difficult time right now.’’ Backstage came to talk about the little dog that causes in which he believes. I am con- she said, ‘‘I don’t know whether [war is] in- I had lost. He had read about the pass- fident that in his future efforts he will evitable or not. Certainly, the world is gonna ing of our little dog Billy. He read the continue to demonstrate the steadfast- change in some way pretty soon. I can’t see story in the newspaper, and he came to ness, courage, and integrity that he has the status quo staying the same.’’ my office to express his sorrow. exemplified during his twelve years in But this was a night for positivity and Who was he? That person was the this chamber. I wish him well in his fu- humor, despite the profusion of sad love songs and achingly beautiful hormonies de- senior Senator from New Hampshire, ture endeavors. livered on tunes such as Harris’ ‘‘Prayer in Mr. ROBERT SMITH. He would make I hope he will, indeed, come back and Open D’’ (performed by the Millers as about two of me, . Here he visit those who are his colleagues of ‘‘Prayer in D’’ because, Buddy explained, ‘‘I came to my office, took his own busy this date. can’t play an open D’’). time to come to my office. This was RECONSTRUCTION OF AFGHANISTAN For the encore, Harris brought out John back in April of this year. He came to Mr. BYRD. Mr. President, on another Starling and Mike Auldrige, original mem- my office, paid a special visit to my of- matter, it was just over one year ago, bers of the D.C.-area bluegrass band the Sel- fice to tell me how sorry he was to hear on November 12, 2001, that Afghani- dom Scene, for the Louvin Brothers’ classic ‘‘Satan’s Jeweled Crown,’’ which she re- about my little dog Billy. stan’s government of religious extrem- corded on Elite Hotel. So once again, as I have many times ists fled Kabul. The rule of the Taliban The evening was probably best represented in my long years with which God has soon collapsed in the rest of the coun- by comments delivered by LEAHY. ‘‘There are blessed me, I came to realize that the try, and a new government, endorsed people in Southeast Asia, in Africa, in Cen- people with whom we work here in the by the , took shape. De- tral America, around the world, who are Senate often have a personal side that spite this new government, the United going to be helped by what you have done,’’ we do not get to know or understand in States still has more than 8,000 troops he said. ‘‘They will never know you, they’ll our working relationships on the Sen- in Afghanistan performing a number of never hear your songs, they’ll never know your fame. They’ll never be able to do any- ate floor. Our colleagues are usually important missions, from tracking thing to help you, but because you’ve helped much more complex than their public down al-Qaida terrorists who have them, their lives are immeasurably better. persona would lead one to believe and taken to the hills to providing security And how many people in life can say that?’’ have facets to their characters that are to the new Afghan President. In other Mr. LEAHY. I yield the floor, and I not often seen in their daily official ac- words, from tracking down al-Qaida thank the Senator from West Virginia. tivities. terrorists, who have taken to the hills The PRESIDING OFFICER (Mr. But Senator ROBERT SMITH’S on the one hand, to providing security DAYTON). The Senator from West Vir- thoughtful expression of sympathy to the new Afghan President on the ginia. gave me a better understanding and ap- other hand. Mr. BYRD. The distinguished Sen- preciation for this man who for several But the situation in Afghanistan is ator from Vermont is welcome, and I years now has proudly represented his anything but stable. Our troops still congratulate him. State in the Senate. He is on the face hit-and-run attacks from al-Qaida f Armed Services Committee with me. I and Taliban fighters. The leadership of have served on that committee now the new Afghan government has been FAREWELL TO SENATOR ROBERT with him these many years. Senator targeted for assassination. Warlords SMITH SMITH possesses an admirable quality that control portions of Afghanistan’s Mr. BYRD. Madam President, last of perseverance. As a young man, he countryside have questionable alle- year when my beloved little dog Billy had to work his way through college. giance to the central government. Two passed away, many people came to me Although he was the son of a naval avi- million Afghan refugees have returned to express their condolences. It was ator who was killed in combat during to their homes in the past year, many like losing one of the family. My wife World War II, when ROBERT SMITH was finding that their homes had been de- and I have shed many tears over little old enough, he enlisted in the Navy and stroyed by war and their fields ravaged Billy. There is never a day that I don’t he proudly served our country in com- by drought. pass his little box of ashes that is sit- bat in Vietnam. He is a person who had But with the Administration gearing ting up in my bedroom, never a day to run for Congress three times before up for a new war in Iraq, important that I don’t touch that little box and being elected. As a Senator, his tena- questions must be asked. What is our think of little Billy. He has been with cious adherence to his independent plan for Afghanistan? How great is the us 15 years. ways eventually cost him his Senate risk that we will lose the peace after We have a new dog now, one which is seat. winning a war in a poor, landlocked a very sweet little female dog. She is a He has often been portrayed as a Central Asian country? Is the potential lap dog. She is a Shi Tzu, a dog that fierce conservative, but I came to per- for war with Iraq shifting our attention came out of Tibet. It was bred to be a ceive him as the ‘‘citizen legislator’’ from unfinished business in Afghani- lap dog in the palace, extremely friend- that he promised to be when he was stan? ly, knows no person is not a friend. She first elected to Congress in 1984. In his Recent press reports on the situation just smothers my wife’s face with kiss- twelve years in the Senate, he has been in Afghanistan are not encouraging. On es—and mine, too. So we love her. a forceful advocate of the many and November 8, the Washington Post car- But I said to Erma the other night: various causes in which he believes, ried an article which quotes the Chair- Erma, if Billy could come back tomor- and he has never been deterred by the man of the Joint Chiefs of Staff, Gen- row, would he still be No. 1? And both labels others may place on those views. eral , as saying that we she and I said yes; even though we love BOB SMITH’S politics is not easy to have ‘‘lost a little momentum’’ in this little dog, the little dog we have characterize, from his support for a tracking down terrorists in Afghani- now, the female—she is called Trouble; constitutional amendment to balance stan. With al Qaeda adapting to our

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.047 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11285 military tactics, the report continues, $98,000,000 for Afghanistan in funds from the in such an expanded peacekeeping mis- the Pentagon is now debating whether Foreign Operations, Export Financing, and sion, but Congress should be careful to emphasize reconstruction efforts at Related Programs Appropriations Act. not to endorse the commitment of our the expense of military operations. If the administration fails to back up soldiers to such a mission before we Such a shift in mission should not be its promises of aid with actual dollars, have an understanding of what that taken lightly. Unless clear goals are how are we ever going to complete our commitment might entail, such as how laid out for the rehabilitation of Af- mission in Afghanistan? We ought to many troops might be involved, how ghanistan and a sensible strategy is be reasonable with our promises, but long they might be there, and what enunciated to achieve those ends, our once we make a commitment, this na- goals must be achieved before with- nation could find its feet sinking into tion should put our money where our drawal. the quicksand that is Afghanistan. mouth is. Finally, while this bill pushes for I was in Afghanistan 47 years ago. I It is clear that the United States more aid and more peacekeepers for Af- went to Afghanistan as a member of must do more to focus the inter- ghanistan, we are still without a plan the subcommittee of the House Foreign national community on creating a con- or strategy for our involvement in that Affairs Committee. I saw enough of Af- crete plan of action for rebuilding Af- country. The administration needs to ghanistan to convince me at that time ghanistan. But the first step in cre- work with our allies and the United that it was very difficult to subjugate ating this plan is to get the adminis- Nations to produce an understandable that country. Since then, the Soviets tration’s attention off of Iraq just long strategy that will address the recon- tried and failed. Before then, the Brit- enough to give serious consideration to struction needs of Afghanistan, while ish tried and they failed. We have al- the problems in Afghanistan. To that sharing the costs among all countries ready spent over $20 billion in Afghani- end, the Senate Foreign Relations that have an interest in the peace and stan, and we still don’t have Osama bin Committee has reported a bill to au- security of that nation. Laden. We are a long way from winning thorize $3.3 billion in aid for Afghani- The future of Afghanistan is an im- that war, if that is what we are trying stan. This bill was passed by the Sen- portant national security issue for the to do. ate last week. United States. Discontent is being Let us not forget our recent, tragic While I share with the authors of the sown in Afghanistan by al-Qaida history with nation building, such as bill the great concern about the poten- agents, and if order again breaks down our attempts to pacify the chaos of So- tial for Afghanistan to slide back into in Afghanistan, we can bet that terror- malia in the early 1990s. We should also chaos and disorder, I have serious res- ists and extremists will try to take ad- not forget that in 1979, the Soviet ervations about several provisions of vantage of the situation. If Osama bin Union grabbed control of Kabul in lit- this bill. Laden is still alive, which recent re- tle more than a day, but spent the next First, the bill authorizes $3.3 billion ports seem to indicate, I am sure that nine years trying to extend its control in foreign aid for Afghanistan with no he is looking forward to the failure of to the rest of the country. Those people indication of why this figure was pro- U.S. and allied efforts to bring security are not easy to handle. posed. It is important to understand and stability to Afghanistan. If we are Today, the United States has no that the authorization of those funds to head him off at the pass, the first clear goals or sensible strategy for how does not actually allow the U.S. Gov- thing we need to do is have a clear plan to work with our allies to rebuild Af- ernment to spend a single dime for Af- of action. ghanistan. Instead of a clear plan of ac- ghanistan. It takes an appropriations While the President seems eager to tion, we hear lip service about a Mar- bill to spend that money. As Chairman use military force against Saddam Hus- shall Plan for Afghanistan. Start sink- of the Appropriations Committee, the sein, I urge him first to take care of ing money into that bottomless pit. committee that is expected to come up the unfinished business in Afghanistan. Such grand promises, if left unfulfilled, with the cash to fund such an author- The situation is crying for his atten- would send the wrong message to our ization, I do not understand how this tion. The Senate has passed a bill to allies and the Afghan people about our figure of $3.3 billion was reached. I am authorize funds to address the prob- commitment to seeing that that coun- left with the impression that the bill in lems in Afghanistan, but it is up to the try does not again become a haven for question authorizes these billions of President to show the leadership that terrorists. dollars simply to send a message that is needed to prevent the situation in The Administration has already sent rebuilding Afghanistan is an important that country from further deteriora- confusing messages to Congress about task. tion. its commitment to rebuilding Afghani- Second, as Chairman of the Appro- Mr. REID. Mr. President, will the stan. On August 13, 2002, the President priations Committee, I am not sure Senator from West Virginia yield for a refused to designate as emergency where Congress would find the funds to question? spending $174 million in humanitarian fulfill the $3.3 billion commitment to Mr. BYRD. Yes, I will. aid for Afghanistan, which was con- Afghanistan. Will the administration Mr. REID. I apologize for inter- tained in the Fiscal Year 2002 Supple- support cutting back on some of our rupting, but I wanted to engage the mental Appropriations Act. By refus- foreign aid programs in order to send Senator for a brief minute on homeland ing to designate those funds as an money to Afghanistan? Or will the ad- security. emergency, the President did not allow ministration propose to increase our Mr. BYRD. Yes. the funds to be spent as Congress in- foreign aid spending in order to fund Mr. REID. Let me tell you what I tended. this new aid package? Without the co- wanted to ask the Senator. I heard the While the President refused to spend operation of the administration, it very fine statement of the senior Sen- that money, he has publicly promised would be difficult to appropriate the ator from Pennsylvania, talking about $300 million in foreign aid to Afghani- full amount of the funds that are au- all the bad things that are encom- stan for fiscal year 2003. However, Con- thorized by this bill. As I am sure the passed in the Daschle amendment. But gress has not received any such re- sponsors of the bill would agree, the he finished his statement by saying: quest. As the committee report for the last thing we need are more empty Well, but there is nothing else we can Fiscal Year 2003 Foreign Operations promises to help the people of Afghani- do. I am going to have to vote for the Appropriations bill, as reported unani- stan. bill. mously from the Senate Appropria- Third, the Afghanistan aid bill con- The Senator from West Virginia has tions Committee on July 18, states: tains a sense of the Congress provision served in the House of Representatives, The Committee is, therefore, perplexed that encourages the President to work is that not true? that, despite calls for a Marshall Plan for Af- to expand the U.N. peacekeeping mis- Mr. BYRD. Yes. ghanistan and the critical importance to sion now underway in Kabul to include Mr. REID. I have, also. Now, the Sen- U.S. national security, the administration did not submit a formal fiscal year 2003 budg- the whole of Afghanistan. Right now, ator is aware that the House of Rep- et request for Afghanistan. The Committee the United States is not a participant resentatives has not yet completed its has been informally advised that the admin- in that peacekeeping mission. It is not business. They have sent everybody istration plans to spend approximately clear what role our troops would have home, but the leadership is still in

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.092 S18PT1 S11286 CONGRESSIONAL RECORD — SENATE November 18, 2002 place. Does the Senator understand not back away because of some scare state that we needed a Department of that? tactic that is being used by the White Homeland Security. But this bill that Mr. BYRD. Yes. House to try to get Members to vote has 484 pages in it, that has been sud- Mr. REID. And they, the leadership, against that amendment. Where is the denly dumped upon us, dumped on us— have the authority to pass, as we do House of Representatives supposed to as far as I am concerned, it would be no here, legislation by unanimous con- be? They get paid the same salaries as great tragedy if that bill would die and sent. Does the Senator understand we do. Their job is not finished. Our job we could start again next year. that? is not finished. Why shouldn’t they be Having that bill is not going to make Mr. BYRD. Yes. here? the American people one whit more se- Mr. REID. My concern here is that Over the many years I have been in cure—not one whit—because even if Members of the House of Representa- the Senate, 44 years now, time and that bill is passed, the President is tives, including DAN BURTON, one of the time again I have seen the House pass going to have 12 months in which to leading long-term House Members and a conference report or appropriations submit his plan, which we know noth- a very conservative man from Indi- bill or something, and walk away and ing about at this time. When we pass ana—I served with him when I was leave the Senate holding the bag. this bill, we will not know anything there—he said, talking about the There is no reason why they should not about his plan. But under that bill the things that are in the Daschle amend- have to come back, if we pass an Congress authorizes the President to ment, of which the Senator from West amendment and it goes to conference. submit his plan. That plan will auto- Virginia is a cosponsor—— They should come back and finish their matically go into effect after a certain Mr. BYRD. By unanimous consent, I work. This is an important piece of number of months, the most of which had asked to cosponsor the amend- work. They ought not go home on the would be 12 months. It will automati- ment, yes. pretext that, if this measure is passed cally go into effect. Mr. REID. Chairman Burton said: by the Senate, they should not have a We don’t know today what is in his These provisions don’t belong in the bill. conference on it. Or the White House plan. He probably doesn’t know yet This is not a homeland security issue. This is should not be spreading the scare sto- what he intends to submit as a plan. As a fairness issue. ries. far as I am concerned, we are buying a And he goes on to say, talking about If the House wants to have a con- pig in the poke and Senators ought not one provision; that is, the vaccine: ference, that’s fine. If the House vote for that bill. But at the very least, Fifteen years ago, one in every 10,000 chil- doesn’t want to have a conference and Senators ought to vote for this amend- dren were autistic. Today, one in every 250 wants to accept the bill, it can, or it ment because it does clean up a little children is autistic. We have an epidemic on wants to accept the amendment, it can. bit of what is wrong with the bill. our hands. More and more parents believe Then that could go to the President for The PRESIDING OFFICER. The as- the autism affecting their children is relat- his veto, if he wishes. sistant Republican leader. ing to a vaccine or a mercury preservative. Mr. REID. I appreciate very much TRIBUTE TO SENATOR PHIL GRAMM And he goes on. I say to the distin- the Senator yielding. Mr. NICKLES. Mr. President, it is a guished Senator from West Virginia, as I simply close by saying I really pleasure and a privilege for all of us to to people talking about endangering think we would be doing the President, serve in the Senate. One of the great the homeland security bill by voting the Congress, and the country a favor benefits of serving in the Senate is we for this amendment, does the Senator by adopting this amendment. It would have the opportunity to serve with agree with me this is senseless? That if take all the talk radio out of all the some outstanding individuals—out- this amendment is as bad as Chairman bad things in this bill—at least many standing leaders not only in their BURTON and the Senator from Pennsyl- of the bad things. I repeat, I think we States but outstanding leaders in their vania said, shouldn’t we vote on the would be doing the President a favor by country. merits of that and just have the House passing this amendment, sending this One of those individuals that I will accept our changes? We wouldn’t have bill to the House, and then let them always rank as one of my favorite Sen- to go to conference. Does the Senator handle that bill accordingly. ators, and one of the most effective understand that? I am confident that they arranged to Senators I have had the privilege and Mr. BYRD. Yes, the House could ac- come back, anyway, for things like pleasure of serving with, is Senator cept the amendment. If the Senate this. I think they probably understood PHIL GRAMM of Texas. adopts the amendment, the House it would be very difficult for the Sen- Senator GRAMM was elected to and could accept it and there would be no ate to accept their bill exactly as they served 6 years in the House. He was conference. sent it to us. So, again, I appreciate elected in 1978. He was elected as a Mr. REID. Wouldn’t that be the best? the Senator yielding. I think anyone Democrat. Eventually he resigned and Let’s say this amendment has the mer- saying—as the Senator from Pennsyl- ran as a Republican. I think he was the its, as indicated in the statement of vania did, and I am paraphrasing him, first person to do that in a century. It Congressman BURTON. We have heard not saying exactly what he said—that was a pretty phenomenal thing. Then statements here on the floor for several even though there were bad things in he came to the Senate where he has days now about all the very bad things this amendment, he saw no alternative served for 18 years. Much to my regret, in this homeland security amendment. but to go ahead and vote to get this he announced he would be retiring and This is my question to the Senator thing out of here because otherwise the will soon complete his very distin- from West Virginia, who has studied whole bill would come down, I simply guished Senate career. Seldom do you this legislation more than anyone else: state for the record that will not hap- find a person who makes such a dif- Wouldn’t it seem appropriate and good pen and that is not the case. ference in public policy over that pe- legislation if we voted in favor of this Mr. BYRD. Mr. President, I thank riod of time, as Senator GRAMM has. amendment and sent it back to the the distinguished Senator. I was elected to the Senate in 1980, House? That is why they arranged to I would only add that if the whole and I remember very well the Gramm- come back, in case there would be some thing comes down, that may be for the Latta budget bill that passed the House housekeeping they have to do. best. That may be for the best. It has a of Representatives in 1981. That was Wouldn’t that be the best thing to do lot more wrong with that bill suddenly Senator GRAMM, a Democrat, working with this large 484-page piece of legis- dumped upon us in the early hours of with Congressman Latta, a Republican, lation? Wednesday morning. As far as I am to basically pass President Reagan’s Mr. BYRD. I should think so. It concerned, greater mischief can happen economic budget, a phenomenal accom- would be my feeling, Mr. President, in many ways than having that bill die. plishment; it laid the guidelines for re- that we ought to look at the amend- As far as I am concerned, we ought to ducing and changing taxes. The max- ment on its face, on its merits, and be back next year and take our time imum tax rate actually, in 1981, was 70 vote for it. If I were disposed to vote and do a good job on that bill. I have percent; 6 years later it was 28 per- against it—there are some who will— always been for homeland security. I cent—a phenomenal achievement. but those of us who are for it should was one of the first around here to Some might disagree with it, but it

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.099 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11287 was a phenomenal achievement. And it their family. I wish them every suc- I recall one of the great trips I have was due, in great part, to the leader- cess. I am confident they will enjoy taken in the Senate. It was CODEL ship of PHIL GRAMM. every success. Senator GRAMM is an GRAMM to . PHIL insisted we So every once in a while we have the outstanding leader who has made in- stop at Normandy and examine that privilege of serving with someone who valuable contributions to make our scene of carnage and courage. On an- can make a real difference. And Sen- country better. He has made the State other occasion, we visited the Flanders ator GRAMM has done that. He did it in of Texas better and he has made our Cemetery, and PHIL read us the great the House. He has done it in the Sen- country better. I thank him very much poem: ‘‘On Flanders Fields.’’ We could ate. He has made accomplishments. He for his commitment, his effectiveness, not leave, he said, until we laid a has made legislation. He has angered and his public service. wreath at the Tomb of the Unknown his opponents, but I think in all cases, Mr. President, I yield the floor. Soldier. We also carefully examined his adversaries or his opponents, while The PRESIDING OFFICER. The Sen- the battlefield at Point du Hoc on the they may have disagreed with him on ator from Alabama. Normandy coast. PHIL showed us, with the issue, had to respect him for his Mr. SESSIONS. Mr. President, I great pride, where the brave Texans conviction, for his commitment, for his thank the Senator from Oklahoma for scaled and took that great fortified effectiveness. I respect that. his remarks about the remarkable PHIL height at Point du Hoc, a key moment Many of us made tributes to Senator GRAMM. And I would like to attempt to in the D-Day victory. Wellstone. We regret the tragedy of his make some comments upon his leaving PHIL GRAMM, with great clarity, has death. But we respected his commit- us. My abilities are inadequate because seen his battles for freedom in this ment. Likewise, I can tell you, I know he is, indeed, a very special American Congress—absent, of course, the phys- Senator Wellstone would say he would and human being. ical danger of war—in the same way. have to respect Senator PHIL GRAMM. DON has delineated a number of his He sees his role as a soldier for free- He did not agree with him—he agreed historic achievements: with the budg- dom, and that he has been. Indeed, he with him very little—but he had to re- et, with health care, with homeland se- has been a glorious warrior for free- spect him. One of the great things curity, and so many others. But there dom. about the Senate is that we can dis- are a lot of qualities about PHIL that Our heritage of liberty has always agree on issues, but we can have re- are important. been endangered by hostile outside en- spect and admiration for people who He has told us often, particularly emies, ignorance, corruption, and polit- have convictions and commitments, after the untimely death of Paul Cover- ical whims of the moment within. PHIL and, on occasion, when they prove the dell, that we should tell those we love GRAMM has stood in the breach and, in effectiveness of that to actually change that we love them, that we ought not the same vein as his beloved Texans at law. to wait. I don’t know if I have said that Normandy, he has carried the battle to Most of us remember the Gramm- directly to him, but I love PHIL GRAMM. the enemies of freedom. Time and Rudman-Hollings Balanced Budget Act I have loved him virtually since I have again, he has staked it all—put his ca- that passed in 1985 and was basically come to this body. He has consistently reer and his reputation on the line—for reaffirmed in 1987. It gave us caps and been, to me, the most principled, inter- those ideals. targets and rescissions, and so on. That esting, and courageous battler for He has been blessed with a great is still basically part of our budget law America I have ever seen. I have said partner in his glorious struggle to en- today. I have had the pleasure of serv- on many occasions, recognizing the hance the American dream—Wendy RAMM ing with Senator G on the Budget poor grammar, that PHIL GRAMM is our Gramm. Everyone who knows Wendy Committee for many years. Serving on ‘‘most invaluable Senator.’’ By that I loves her. And so does PHIL. They are the Budget Committee is a thankless mean he is the one this body could an unlikely pair: the loud PHIL and the task, but he has been a leader within least do without. I truly believe that. small, brilliant, and soft-spoken the Budget Committee. He is a person This body will be diminished by his Wendy. Surely, it could only have been who has believed in budgets, a person leaving. He has been a force—a force— a match made in Heaven. Wendy’s bal- who has believed in discipline, and he for the best of American values. First ance, her integrity, and her vision for was able to make that law. and foremost, PHIL GRAMM has been a America, which she so deeply shares If you look at the Gramm-Leach-Bli- champion for freedom. He has never ley Financial Service Modernization with PHIL, make them one of America’s doubted, as have many of his former Act, in 1998, again, he proved he could great couples. colleagues in the academy, the validity Thirdly, we cannot discuss his career work with Democrats and Republicans of the American dream. He has studied without considering his effectiveness to make significant revisions of law. history, traveled widely, and read in advocacy. With an economist’s abil- He did that from his position as chair- much. His experience and learning have ity to see the big picture, PHIL has an man of the Banking Committee. Today we are debating homeland se- only confirmed his belief in the Amer- unsurpassed ability to demolish small curity, and he is one of the principal ican ideal of democracy, freedom, and minded proposals. His skill in debate is authors of the President’s homeland se- free enterprise. He knows it works. He legendary. I have not seen his equal in curity bill, which I hope and pray we knows this has been the system that my tenure in this body. No one gets to will finish tomorrow, and, again, in has made America the envy of the the core of the matter better or can large part because of his leadership, world. put the complex in layman’s terms and also the leadership of Senator As a patriot, and in possession of this more effectively than PHIL GRAMM—no THOMPSON, who, regrettably, also is re- important truth, he has given his total one. Some are good at spin, but PHIL tiring from the Senate. effort to preserving and extending our GRAMM does not spin. He analyzes. He So we are losing some great Members brilliant heritage. From the time he distills arguments, and he puts them to who I hate to see leave. But, likewise, gets up until the time he goes to bed, the test of rigorous thought. He re- I would just like to say it has been a he fights for these great values of duces them to their simplest form and pleasure and a privilege to work with, America. He has done so with more pu- then demonstrates with his powerful in my opinion, one of the most effec- rity of purpose and depth of under- mind and verbal skill how such pro- tive, one of the most outstanding, Sen- standing than any I have known. Yes, posals either further or constrict the ators I have had the pleasure of know- he can compromise, and he does on oc- American way. ing in my Senate tenure. casion, but his compromises are always PHIL, though quite frank and blunt, It has been a pleasure to have Sen- focused on whether or not the deal is could get away with comments few ator GRAMM join me on the Senate best for America. Will it further free- others could. Many of our colleagues floor. He has sat right behind me for dom? That tends to be his test. have quoted from PHIL some of his re- the last 18 years. He has made a monu- First and foremost, PHIL GRAMM fully markable comments. He made a very mental contribution to this country comprehends the greatness and unique- important speech on economic rela- and to his State of Texas. ness of America. And his life has been tions between the United Kingdom and I am very happy for both Senator directed with incredible fidelity toward the United States when we were in Eu- GRAMM and his lovely wife Wendy and its preservation and enhancement. rope. He expressed concern about the

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00057 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.102 S18PT1 S11288 CONGRESSIONAL RECORD — SENATE November 18, 2002 UK’s move toward Europe. He recog- mentarily. One of them is the person I knew what we were thinking about nized our historic relationships be- want to commend, but I can’t do that doing and making sure Senator tween our countries, and he urged without thanking Senator SESSIONS for THURMOND was comfortable with that. them to join NAFTA. The speech made what he had to say about Senator PHIL I know many Senators have gone to headlines all over Europe. It was a GRAMM. Duke and sought his counsel as one of magnificent address. He knew it was I have had so much to say about him our longest serving and most effective important when he delivered it. He de- over the past month, I won’t repeat it staff members. livered it entirely without notes. I was here. I have already made some re- In so many ways Duke has been the very proud of him. marks on the floor and had a chance Senate’s unelected 101st Senator, I be- During the course of it, he noted the last week at the retirement dinner to lieve. The trust Senator THURMOND objections made by certain Europeans talk about him. He certainly will be puts in him is obvious to anyone who to American beef, much of which comes greatly missed. He is such a talented, has watched the two of them interact from Texas, of course, because of their intelligent, persistent but delightful over the years. Duke is STROM’s most fear of growth hormones. As an aside, person. He has been a great Senator, constant companion, his closest and he noted: great Congressman. He has a very large most trusted adviser and, I believe, his Maybe you need to eat more of our beef. It record of which he can be proud. I have dearest friend. Theirs is not the usual could keep you from giving up your sov- worked with him in the House when he relationship of a Senator and staffer. It ereignty. was a Democrat, in the House when he is more like a father and son. His ability to demolish the conceit of was a Republican, and in the Senate. I know that Duke has had opportuni- the left that government can provide There are a lot of bills that would ties to go do other things, but at the Americans more and better goods and not have passed, a lot of issues would urging or at the request of Senator services than the private sector is also not have been properly handled if he THURMOND, he stayed. And he is going unsurpassed. His advocacy for free had not been willing to take the time, to stay with Senator THURMOND to the trade is unsurpassed. PHIL believes in dig into the substance, and get them last day the Senator is here. the concept of truth. He respects truth, done. But they are great bills, great Even though they have been close on and he battles to always appeal to ob- laws that have his name on them: a personal basis, Duke Short has not jective truth. Thus he is not a Gramm-Latta, the first budget of the misunderstood his role or stepped be- spinmeister. He is a Texas straight Reagan years; and Gramm-Rudman- yond the boundaries into the role of an shooter. Hollings, which was a budget restraint elected official. He has always had a He will challenge an opponent’s mechanism he put in place in the 1980s clear understanding of his responsibil- flawed core principles even when it here in the Senate; and Gramm-Leach- ities and, most importantly, where his may not be politically correct to do so. Bliley, the reform bill on financial job ends and an elected official’s be- He will not just dance around the issue. services that was passed a couple years gins. It takes a person of extraordinary He goes right to the heart of the mat- ago, and many others. But I took the integrity and incredible common sense ter, with integrity and courage. A few time recently to add up bills or issues to be able to juggle both the role and are taken aback by his directness, but that I knew he was involved in just the responsibilities that Duke Short most respect his honesty even if they over the last 2 years that would have has shouldered, and I can say without disagree. And he has never allowed de- been much more expensive if they had hesitation or equivocation: Well done, bate to ruin friendships. passed, would have been hugely expen- Duke. He should be very proud of his Still, PHIL GRAMM does not take the sive. He probably has saved the tax- service to the Senator, to the Senate, future of America lightly. It is not just payers over the past 2 years somewhere and to his country. a matter of debate with him. It is not close to $1 trillion, certainly in the By the way, there is something more a matter of polls. He works to prevail hundreds of billions of dollars. to his career than his service to Sen- on issues important to this country’s There might be those who say we ator THURMOND and the Senate. He future. This is not an intellectual exer- should have spent that money. Well, served in the Army’s prestigious 82nd cise. It is in a different way as impor- you can argue that, but I can show di- Airborne. Then he came to the Senate tant to him as our victories in the past rect cases where he has helped influ- as a staffer in 1974, where he served as have been on the battlefield. His con- ence legislation or stopped legislation a senior investigator for the Sub- stant goal has been to make America that would have been very costly to committee on Internal Security. better. working taxpayers in America. He rose quickly through the ranks, Perhaps you think I overstate the I thank Senator SESSIONS for what he later serving as chief investigator of case, but I don’t think so. I think he is had to say today. the full Senate Judiciary Committee a special, glorious warrior for the TRIBUTE TO R.J. ‘‘DUKE’’ SHORT where he oversaw literally hundreds of American way of life. And why should Mr. LOTT. Mr. President, I rise this judicial nominations and helped shep- I not say here what I have said pri- afternoon before the Senate adjourns herd through the confirmations of vately; that is, that a true recording of for the year to recognize the extraor- Chief Justices and Associate Justices history will list him as one of the half dinary contributions of an individual who now sit on the Supreme Court. To dozen great Senators of the past cen- who is not a Senator but who, in addi- this day, he is remembered fondly by tury. This warrior for freedom will not tion to having been a long time staff judges and justices all across the Na- cease when he leaves this body. Who member here, is one of the Chamber’s tion as the individual with whom they knows, he may do more good from the most beloved individuals, I believe. worked most closely and who was al- outside than from the inside. That is R.J. ‘‘Duke’’ Short or, as Sen- ways courteous and wise in his counsel What we do know, however, is that ator THURMOND would call him, ‘‘Duke as to how they should conduct them- while he was here, his contributions to Short,’’ which is pretty hard to under- selves during the confirmation process. America and to liberty were truly mag- stand if you don’t know what he is ac- As in his other duties in the Senate, nificent. I have been honored to know tually saying. Duke performed in the confirmation PHIL GRAMM and to have been his My colleagues on both sides of the arena with the greatest dignity and in- friend. I will miss him. This Senate aisle know well that Duke has served tegrity. Many of you may be surprised will miss him. for the past decade as chief of staff to to know that Duke Short had a life be- I yield the floor. the legendary Senator THURMOND, who fore even his military service and be- The PRESIDING OFFICER. The Re- is retiring next year at the age of 100. fore coming to the Senate. He was a publican leader. Duke has served our ‘‘centennial Sen- U.S. Treasury Department agent and Mr. LOTT. I understand the Senator ator’’ with incredible ability and grace. received numerous awards for distin- from Alabama has some other remarks His judgment, his demeanor, and his guished service and assistance to our he would like to make. I appreciate his knowledge on both the ways and tradi- Nation’s Federal, State, and local law allowing me to proceed between the re- tions of this Chamber have impressed enforcement officers and officials. marks he just made on Senator GRAMM me. I have actually gone to him and But it wasn’t always the law enforce- and others he will be speaking on mo- asked for advice and made sure he ment, investigations, or government.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00058 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.105 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11289 He also originally was a chiropractor. power and influence. Duke Short Presidents, Cabinet members, Sen- That was his original profession. He is stands as a wonderful exception to that ators, Justices of the Supreme Court, a graduate of the Palmer College of rule, an example of truly unselfish pub- and even foreign leaders, Duke’s style Chiropractic with the degree of Doctor lic service, whether as a Federal agent always managed to disarm, to respect- of Chiropractic. Maybe there was some or in the Army, a man who dedicated fully inform and, taking a page out of other role he performed for the Senator his life to things bigger than himself STROM THURMOND’S book, to politely that we didn’t know about. and found, in turn, enormous satisfac- and diplomatically move situations to What an interesting career this gen- tion in the giving. where the people of South Carolina tleman has had. He is an alumnus of In his years in the Senate—at least benefited most. North Georgia College and the recipi- the ones I have been privileged to wit- Finally, Duke is fortunate in one ent of South Carolina’s most distin- ness—Duke Short has earned more other area. He is married to an excep- guished civilian award—the Order of than just satisfaction from a job well tional lady, Dee, who is truly the apple the Palmetto. He is, of course, most done. He has earned, I believe, the re- of his eye and one of the great inspira- fortunate to be married to Dee, a spect, admiration, and friendship of tions of his life. Duke and Dee Short charming lady whom we will miss every Senator in this body. In so many have always managed to light up any along with Duke when they go on to ways, he was one of us—a Member of social and business event they at- their next career. the Senate family who never forgot tended. I know my colleagues join me in that the only real power in politics is Mr. President, the Senate will miss wishing Duke good luck and our best that which we hold from the public, Duke Short’s leadership, but individ- wishes as he leaves the Senate in Janu- and his only reason for service was to ually I believe each of us will miss our ary at the conclusion of Senator serve his Senator. friend, Duke Short. In an era of in- THURMOND’s record-setting term. Duke came to the U.S. Senate in 1974 creasing rancor and incivility in public We will miss Duke’s good humor and as a senior committee investigator. It life, Duke Short’s easygoing manner, his style. He is the epitome of a South- was the beginning of a long and ex- his lighthearted humor and unswerving ern gentleman. He leaves this institu- traordinary partnership between him loyalty to country and friends will be tion with a marvelous record. Too and Senator THURMOND. When STROM sorely missed. often we commend each other and we became chairman of the Senate Judici- On behalf of a grateful Senate, thank talk about the great deeds of Senators, ary Committee in 1980, Duke was ap- you, Duke, for your good work and and not enough attention is given to pointed chief investigator and, in that good will. May God continue to bless loyal staff members who serve in this capacity, he oversaw and coordinated you and your fine family. body and in this room and on com- the confirmation of Chief Justice Wil- Mr. HATCH. Mr. President, for the mittee staffs and on personal staffs. liam Rehnquist, Associate Justices past several decades, serving one of the But Duke Short could not leave with- O’Connor, Scalia, Souter, Kennedy, and United States Senate’s most legendary out proper recognition of his service. Thomas. He became the Senator’s chief figures—Senator STROM THURMOND of I yield the floor. of staff nearly a decade ago and has South Carolina—has been Robert J. The PRESIDING OFFICER. The Sen- served in that capacity ever since. All Short. I rise today to pay tribute to the ator from Alabama is recognized. of us came to rely on Duke’s judgment, man we in the Senate fondly know as Mr. SESSIONS. Mr. President, I his unerring sense of fair play and, of ‘‘Duke Short.’’ thank the distinguished Republican course, his uncanny ability to always Duke is to be commended for his fine leader for those comments about Duke represent the wishes of his boss, Sen- work and years of dedication to our Short. I likewise want to say some- ator THURMOND. Country. When I first arrived in Wash- thing about him and didn’t know that Prior to coming to the Senate, Duke ington, DC., in January of 1977, Senator he intended to make those remarks. served the Nation in other important THURMOND was my senior on the Sen- Duke has been a friend of mine for 20 ways. He was a member of the Army’s ate Judiciary Committee. As I settled years. I have admired him greatly. He prestigious 82nd Airborne Division and in to my new role on the Judiciary is the kind of person who comes along a respected U.S. Treasury Department Committee, I came to know and re- and reaffirms your faith in basic de- agent. His contributions to law en- spect Duke, a bright and eager indi- mocracy, basic decency of the human forcement are legend within South vidual who was working at the time as race. After 30 years of service in the Carolina and throughout the Nation. Chief Investigator on the Committee. Senate as a senior staff member, he He has been a recipient of numerous Duke had first come to work in the will be leaving. national, regional, and State awards Senate in 1974, and until 1976, he served Our Nation—and particularly the from law enforcement associations, and as a Senior Investigator on the Senate State of South Carolina—owes Duke he was presented in 1990 with the State Subcommittee on Internal Security. Short a great debt of gratitude for his of South Carolina’s highest civilian From 1976–1989, he was the Chief Inves- many years of distinguished and able award, the Order of Palmetto. tigator on the Senate Committee on public service in the Senate. As my col- When Senator THURMOND was chair- the Judiciary. He has served as Chief of leagues well know, he served for many man of the Senate Armed Services Staff and Administrative Assistant to years as chief of staff to our legendary Committee, Duke served as a close ad- President Pro Tempore Emeritus Sen- STROM THURMOND, who retires next viser on a wide range of issues from ator STROM THURMOND since 1989. month at the age of 100, after more preparedness to nuclear arms control. Throughout the course of Duke’s than 47 years of service in this Cham- Once again, he earned the respect of work in the Senate, he has assisted in ber. the Nation’s highest officers and serv- the confirmations of literally hundreds Over the years he has worked with ice chiefs, in addition to Cabinet mem- of district and circuit court nominees, Senator THURMOND Duke has earned a bers and the national security staffs of and of every sitting Supreme Court reputation as someone who always con- several Presidents. Justice. He played a key role in assist- ducted himself with the utmost integ- Duke Short is one of those rare staff ing the Judiciary Committee in its in- rity and honesty. Given great author- members whose expertise and judgment quiry in the 1960’s into motorcycle ity—perhaps more than almost any are called upon in a variety of settings. gang violence, as well as many other other staff member in the Senate—he Through it all, he also demonstrated important matters. He has developed a always dedicated himself to the highest more than just a vast technical knowl- remarkable wealth of knowledge about principles of public service and dem- edge of different issues; he impressed the Senate as an institution, and is onstrated an uncompromising devotion us all with his deep and abiding love of widely respected by Senators past and to his mentor and boss, STROM THUR- and respect for the institutions of the present on both sides of the aisle. MOND. Senate, as well as the vital importance Duke has been recognized throughout There is, among the world’s cynics, a of the legislative oversight process. his distinguished career with many belief that the longer men and women In all these arenas, Duke Short dis- prestigious awards, too numerable to remain in positions of public trust, the tinguished himself as an individual of mention here, but most recently in- more they fall victim to the vagaries of rare humility. Working closely with cluding a Reserve Officers Association

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00059 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.108 S18PT1 S11290 CONGRESSIONAL RECORD — SENATE November 18, 2002 Appreciation Award in 2000, an FBI Di- His political career flourished when mit the same crime serve the same rector’s Appreciation Award and the he was elected Governor. In 1948, he de- time—and it abolished parole. He was a Order of the Palmetto—the State of cided to run for President of the United tower of strength in the battle to bring South Carolina’s highest award, in States as a States rights candidate. He back respect for law enforcement, to 2001. This year, Duke received the carried four States and received 39 provide rights to crime victims, and to ACA’s Third Annual Patients’ Cham- electoral votes, the largest inde- crack down on criminals. pion Award. pendent electoral vote in U.S. history. As a former prosecutor, I am con- Duke’s career has been characterized However, the most memorable mo- vinced the great battles he led in the by service to our great Country, not ment, I guess, came when he was elect- 1980s—sentencing guidelines, abol- only in his work for the Senate for ed to the Senate in 1954 as a write-in ishing parole, allowing for the denial of nearly thirty years, but in his earlier candidate. In the Senate, the highest bail in certain circumstances—were service in the U.S. Army with the 82nd office ever to be elected by a write-in, historic steps that stimulated the Airborne Division, and as a special I understand, in the Senate, STROM strong efforts by State law enforce- agent in the Intelligence Division of THURMOND served on several commit- ment to break the back of the surging the Department of the Treasury. tees. He has been a fixture on the crime rates of the sixties and seventies Duke Short has served Senator Armed Services Committee on which I and resulted in substantial reduction THURMOND, South Carolinians, and his serve and where he has with constancy in crime. country well, with the spirit and end- of purpose fought for a strong America Longer prison sentences for repeat less dedication of a true patriot. We and for our veterans. He served as and dangerous criminals have saved will sorely miss him in the United chairman of this committee from 1995 thousands of innocent lives. People States Senate and wish him all the to January of 1999 and was bestowed have not been murdered because dan- best in his retirement. the great honor of being named chair- gerous criminals have been appre- TRIBUTE TO STROM THURMOND man emeritus in 1999. Serving with hended and locked up. No man gave Mr. SESSIONS. Mr. President, I will Senator THURMOND on this committee more steadfast leadership to this now take the opportunity to pay trib- was a great learning experience. change than STROM THURMOND. Indeed, ute to the senior Senator from South I am convinced his combat experi- he appointed the first chairman of the Carolina, the Honorable STROM THUR- ence provided him with an excellent Sentencing Guideline Commission who MOND. background to understand the intrica- did a remarkable job, or at least he The accomplishments of this man in cies of our military and the need of sought the appointment of Judge Wil- his nearly 100 years of life, are truly this Nation to be strong and avoid war kins from South Carolina. amazing. All of his continuous years of but to win it, if necessary. One of the great memories I have of public service to our country illustrate He has helped lead our effort in this spending time with Senator THURMOND that Senator THURMOND’s life has put Nation to victory in the , to was when he asked me, a new Senator, the service of his country first. Born on defeat and challenge head-on godless, to accompany him on a trip to China in December 5, 1902, in Edgefield, SC, he totalitarian communism, a force in- 1997. On this trip, we had some time to graduated from Clemson College, now compatible with American values. He climb the Great Wall of China. Senator Clemson University, in 1923. He studied never faltered. He stayed the course THURMOND was the oldest person ever law under his father. throughout the entire cold war. He to climb the Great Wall unassisted, and For 8 years, he served as the town at- celebrated its victory. it was quite a climb. His ability to put torney, and he also served as a South He never was among those souls who situations in perspective is illustrated Carolina State senator. A true patriot, he joined the U.S. waned, who blamed America first, who by the fact that upon reaching the top Army Reserve as a second lieutenant in always thought America was at fault of the wall, he said: This is a big wall. 1924. He landed in Normandy on D-Day and causing the problems in the world. Let’s go. Up early to exercise, dining with the 82nd Airborne Division during His career was marked by determina- late often, as we did on the trip, he did World War II. He had been a judge. He tion, surely based on personal experi- not flag, leaving the rest of us in his was in his forties. They did not really ence with war, to never have our sol- wake. want him to join the Army at the time diers outgunned in war. This was a Though he is nearing the century the war broke out. He insisted that he magnificent service to our country, of mark, his determination to fulfill his be allowed to do so and walked away, historical importance, and in which he service is remarkable. Just this past as some would say, old enough to know played a key role. week, we had the elections of the Re- better. But he ended up in Great Brit- Additionally, I have had the pleasure publican leadership. Senator ain preparing for Normandy and the in- to serve with Senator THURMOND on the THURMOND was there at 9 a.m. for the vasion with the 82nd, and he again vol- Judiciary Committee where he has elections. Then we had our lunch with unteered. He volunteered to be on the been a member since 1967. He served as the Republican Policy Committee glider force that would fly in behind chairman from 1981 to 1987 and chair- while last-minute issues were dis- enemy lines at the time of the D-Day man of the Subcommittee on Constitu- cussed, and he attended that. That invasion. tion, Federalism, and Property Rights afternoon, the Defense authorization He got into one of those gliders. They from January to June of 2001. Coming bill was up for debate and passage. He are pulled off by bombers, and let go. from a lineage of law study and being a was one of the few Senators to be in Hopefully the plane lands safely. He former judge, Senator THURMOND has the Chamber, and only at 15 minutes was asked one time: How was the land- cherished his role on this committee till 6, when he was sure no votes would ing, STROM? and continues to work to promote the be held that night—which he asked me He said: All I can say is I didn’t have rule of law and assure quality judges to confirm was accurate—did he leave. to open the door; you could walk out are appointed to Federal courts. It was a long, hard day. the side. He has been a champion of the rule of That is typical of his commitment to None of these landings were safe. It law on the Judiciary Committee for 35 service. His fierce commitment to was a highly dangerous mission. He years. Yes, he has changed many of his America and the Senate is legendary. volunteered in his midforties to do views over the years. He came to see During his service from 1994 to 2000 as that. He stayed until the end of the segregation was wrong, that it hurt Af- President pro tempore of the Senate, war. I asked him if he stayed to the rican Americans, whites, and it hurt he was consistently on time every end. He said yes, until Germany sur- America. Still, his classical view that morning to open the Senate, conduct rendered in combat and he was put on the law is sacred, that it must be fol- the Pledge of Allegiance, and introduce a train heading toward the Pacific lowed, never wavered. the Chaplain for invocation. He knew when Japan surrendered. He earned 18 His leadership in passing the Federal the importance of his office, and he did decorations, medals, and awards, in- sentencing guidelines was perhaps the not fail in that responsibility. cluding the Legion of Merit with oak greatest change in criminal law in the It has been a monumental career, a leaf cluster, Bronze Star for Valor, and entire last century. It was enacted to life almost larger than life. STROM the Purple Heart, among others. equalize sentencing—those who com- THURMOND has set a high standard for

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00060 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.083 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11291 duty, service, and country. It has been Rights, one that would not bankrupt The legislative clerk proceeded to my honor to know and serve with him. employers and one that would help pro- call the roll. He is a true southerner, a true Amer- vide good rights for patients all across Mr. SESSIONS. Mr. President, I ask ican, and a true patriot. this country. It has been a pleasure and unanimous consent that the order for STROM THURMOND will be forever re- privilege to serve with TIM HUTCHINSON the quorum call be rescinded. membered as a man who for a century in the Senate. The PRESIDING OFFICER. Without In the Senate we have the oppor- was a vigorous proponent of strong na- objection, it is so ordered. tional defense, a sound legal system tunity to work with outstanding indi- composed of judges who follow, not viduals. TIM HUTCHINSON is one of those TRIBUTE TO SENATOR TIM HUTCHINSON make, law, and justice for victims of individuals. The election did not work Mr. SESSIONS. Mr. President, I crime, and stiff punishment for wrong- out for him, but I am very optimistic thank the Senator from Oklahoma for doers. that his future is very bright indeed. I his kind remarks about Senator TIM One of his most enduring qualities, a thank him for his service to this body. HUTCHINSON. He was one of my closest quality that undoubtedly is a factor in I think he has made the Senate a bet- friends. He and Randi are fine people. his longevity, is his positive view of ter place, and I compliment him for his We served together on the Armed Serv- life, his optimism, his cheerfulness, service. ices Committee and the Health, Edu- and positive leadership which still are TRIBUTE TO SENATOR FRANK MURKOWSKI cation, Labor, and Pensions Com- remarkable and continue to this day. Mr. President, I also wish to com- mittee. I saw him perform day after I am sure there have been times when ment on our retiring colleague, Sen- day with fidelity to the principles that he did not feel well, but his hearty ator FRANK MURKOWSKI. Senator he campaigned on when he came to the greetings never changed. I have en- MURKOWSKI and I were elected together Senate. He fought for what he believed joyed hearing him call to me and say: in 1980, so we have been very good in. He was one of the most able advo- How’s the king of Alabama doing friends for the last 22 years. cates in the Chamber. I do not think today? I have served with Senator you could name on the fingers of your Having watched his leadership for 6 MURKOWSKI for the last 22 years on the hand any Senator who could compete years now in the Senate, I am con- Energy Committee. For the last sev- with him insofar as advocating posi- vinced his positive leadership and char- eral years, he has been the chairman of tions on the floor. He stood for the acter are major factors in his success. the Energy Committee. Talk about per- great values of America. I thank the Chair and yield the floor. sistence, about dedication, and about a While on the Armed Services Com- I suggest the absence of a quorum. person who has really served his State mittee, I remember one battle he got The PRESIDING OFFICER (Mr. of Alaska and served our country well; into as Personnel Subcommittee chair- CORZINE). The clerk will call the roll. it is Senator FRANK MURKOWSKI. As a man. He made great progress in regard The assistant legislative clerk pro- result of his leadership, many of us to the problem of the great educational ceeded to call the roll. have gone to Alaska. institutions in America, colleges and Senator STEVENS and Senator Mr. NICKLES. Mr. President, I ask high schools, that barred military re- MURKOWSKI love their State. We all unanimous consent that the order for cruiters from coming on campus to re- the quorum call be rescinded. love our States, but they love their State with great enthusiasm and are cruit personnel for a career in the mili- The PRESIDING OFFICER. Without tary. It is unthinkable to me that that objection, it is so ordered. very successful, forceful advocates for their parochial interests, as well as for would occur, but it happens in this TRIBUTE TO SENATOR HUTCHINSON country. Mr. NICKLES. Mr. President, Sen- our country. Senator MURKOWSKI was thinking Indeed, the very liberties we have ator TIM HUTCHINSON of Arkansas, one about how he could improve his State, that provide for education and allow of our colleagues, will soon be leaving people to debate and disagree are pro- us. I thank him for his service to his but he was also thinking about our na- tional energy posture. Frankly, we find tected by our military, and it denied State and also to our country. them the right to come on campus to For the last 6 years, I have had the ourselves in very difficult shape; we are seek people to serve, which is really pleasure of working with Senator importing the majority of our oil, and it only gets worse. He has tried to re- unbelievable. He fought that battle and HUTCHINSON. He is a neighbor; he is a reached an agreement eventually that friend. I have gotten to know him very verse that trend. I compliment him for his leadership essentially achieved the end of that un- well. He served on my whip team. He is on the Energy Committee. He was a conscionable procedure. a very energetic and dynamic person very effective and forceful chairman of who I think served his State and our He also presided on that sub- the Energy Committee and served our country very well. committee during consideration of a country very well there. consistent series of pay raises for our He served in the Arkansas State I also had the pleasure of serving House of Representatives for 8 years. men and women in the military. We with him on the Finance Committee. have now gotten to the point where we He served in the U.S. House for 4 years. He is a person who is a very good friend I got to know him when he served in are seeing our military get paid a far of taxpayers, a person who really want- more decent wage than they were a few the statehouse, and I was very im- ed to grow our economy, and a person pressed with him. Actually, his con- years ago. who I think was recognized by his On the HELP Committee, he was a gressional district was adjacent to that State for his outstanding leadership. prime advocate for the President’s No of Oklahoma. So I got to know him He was recently elected as Governor of Child Left Behind bill. He and I spon- then. When he came to the Senate, I the State of Alaska, and I have no sored legislation called Dollars to the asked him if he would serve on my doubt he will be an outstanding Gov- Classroom. We intended to put as much whip team, and he did. We became very ernor of that great State. good friends. He is a very energetic and So my compliments to Senator money to those teachers where learn- ing occurs to try to enhance those committed person who did an out- FRANK MURKOWSKI and to his lovely standing job in the Senate. He is also a wife Nancy. They are very good friends magical moments when a teacher and a very intelligent and diligent Member. of ours, a very outstanding senatorial child come together and learning oc- He served on the Armed Services couple who have made the Senate a curs. That was our vision, that is what Committee and the HELP Committee better place and who make our country we fought for, and No Child Left Be- and did a fantastic job. I worked with a better place. I thank and compliment hind had a lot of that in it. him. I was chairman of the task force him for his 22 years of service in the As Senator NICKLES said, Senator dealing with the Patients’ Bill of Senate and look forward to working HUTCHINSON fought for and was a great Rights and then was made chairman of with him as the next Governor of the advocate during the battle over the Pa- the conference on the Patients’ Bill of State of Alaska. tients’ Bill of Rights. He was a very re- Rights. Senator TIM HUTCHINSON was I suggest the absence of a quorum. sponsible and articulate spokesman on there all the time, trying to pass a The PRESIDING OFFICER. The some complex issues on which Senator good and affordable Patients’ Bill of clerk will call the roll. NICKLES led us as we carried on that

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00061 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.112 S18PT1 S11292 CONGRESSIONAL RECORD — SENATE November 18, 2002 debate. I do appreciate him remem- HOMELAND SECURITY other body. I felt that we should not bering and commenting on the extraor- Mr. BYRD. Mr. President, tomorrow invoke cloture on last Friday, that we dinary contributions of TIM HUTCH- morning the Senate will vote on the should take a few more days, study the INSON. We are going to miss him. I will amendment introduced by Senator bill, and try to amend it before cloture, miss him personally. His leadership DASCHLE to the homeland security bill. as I knew, would finally be adopted. will be missed. I know he will have a This amendment will strike several But my words were to little avail. great future in front of him. provisions in the bill that were added There was at least one Senator who did TRIBUTE TO SENATOR FRANK MURKOWSKI by the other body in the dark of night vote against cloture at my impor- without their ever having seen the Mr. President, it is a sad day to tuning him to do so. And I deeply ap- light of day until after they were think FRANK and Nancy MURKOWSKI preciated his willingness to listen and adopted. I have added my name as a co- will not be with us. I admire them so his willingness to vote against cloture. sponsor of the amendment because I There were others who were not quite much. was troubled by the substance of these so willing. They listened patiently, but We have had the occasion, my wife last-minute provisions. I was pleased they went on their way and voted for Mary and I, to spend time with them. I that Senator DASCHLE and Senator cloture. Some of them thought that, have come to respect him. I was in LIEBERMAN were taking action to inasmuch as we would then have 30 Alaska not too many years ago and strike the new language from the bill. hours under cloture, we could offer our passed his home in Fairbanks and I support the amendment and I hope amendments. But I knew that the en- talked to some of his neighbors, all of that other Senators will support it, as tire 30 hours could be spent on one whom had such a high opinion of him. well. amendment. I had never seen it done He was a champion for energy. He un- I have cosponsored the amendment before, but it very well could be. I was derstood that energy is good, not bad. because I believe the Senate has a duty aware of that. I didn’t think it would He understood we need a great capac- to take the time to improve legislation be done, but we have seen it has been ity, at the lowest possible cost, so when it needs improving, as it does, ob- done by the Republican minority, American citizens can carry on their viously. This bill certainly needs im- which has said: This far; no farther. travel, heat and cool their homes at proving. I had hoped that more Sen- You have offered one amendment, that the lowest possible cost. Keeping en- ators would be able to offer their being the Daschle amendment on be- ergy costs down is important. He knew amendments to this bill. half of himself and Mr. LIEBERMAN— and warned us repeatedly that we were I have heard several of my colleagues you have offered that amendment, and becoming too dependent on Middle expressing concerns about what is in the entire 30 hours will be spent on East oil and energy and we needed to the bill, as well as what is not in the that amendment. You will not have enhance our domestic production. He bill. I have concerns of my own, many any opportunity to offer any other convinced me and almost the majority of which I have expressed in recent amendment. of this Senate that Alaska and the days. I also have amendments that I still believe that there are serious ANWR reserve could produce large could be offered to address these prob- problems in the bill that go far beyond amounts of oil with no threat to the lems, just as other Senators have the provisions stricken by the Daschle environment, touching only the small- amendments that they had hoped to amendment. That was not an all-en- est portion of that vast reserve. I ad- offer. But here we are, consuming all of compassing amendment as far as I was mired him for that and I supported our time under cloture in consideration concerned. It was an amendment in the him. of this single amendment. The Sen- right direction but, even with the adop- He also supported one of the pro- ators in the minority are keeping us tion of the amendment, there is going grams that I believe was extremely en- from voting on the Daschle amendment to be a tremendous amount of power vironmentally friendly, the bill we call until all 30 hours of debate have run. shifted to the President. He is going to the CARA Act, which would allow rev- The Republican side of the aisle is have a full year in which to indicate to enue from offshore oil and gas wells in doing this to prevent other amend- the rest of us what his plan is for reor- the Gulf and wherever they would drill ments from being offered during this ganizing, and for organizing the new to be plowed back into environmental time. Department. He probably doesn’t know programs in our country. It would pro- While the administration is pressing at this moment what his plan will be. vide a constant and guaranteed source hard to avoid other amendments, the But he has a year, under this bill, to of funds for environmental benefit. It die was already cast for this bill when offer his plan. And it will, ipso facto, was a good and forward-looking bill, the Senate voted last Friday to invoke automatically go into effect at some far more historic, with greater poten- cloture. Caesar crossed the Rubicon on point. Congress is out of the loop. Con- tial for environmental benefits than a January 11, in the year 49 A.D., on the gress will not be asked to approve his lot of people understood—although it night of January 11. Whether he plan. Congress will only be informed of did certainly have broad support in the crossed the Rubicon before midnight or his plan. That’s it. We have no further environmental community. after midnight on that night, I don’t say in the matter. It has been a pleasure to serve with recall; I am not sure I ever knew. It So his plan, being a pig in a poke, a FRANK. I have been impressed with his was on that night that he crossed the plan which we do not know now, that steadfastness, his constancy of pur- Rubicon. He paused thoughtfully and plan will at some point go into effect pose, his understanding that your mes- then he said: without any further vote on the part of sage has to be repeated to break The die is cast. Congress. Congress will not be asked to through the sound barrier in the coun- So be it. approve it. And this bill, which we will try. I admire him and respect him very I voted against cloture last week on pass on tomorrow, will not give Con- much. We will be missing him. I look Friday because I believed that there gress the right to vote to approve that forward to having the opportunity to were problems in this bill that should plan. visit FRANK and Nancy as often as pos- be thoroughly addressed in the Senate; Moreover, an amendment, if I had sible when they come back to the cap- that we needed more time to debate been able to offer it, to provide for con- ital city here as Governor of Alaska. those problems and that we needed gressional approval—that amendment I suggest the absence of a quorum. more time in which to offer amend- would not have been germane under The PRESIDING OFFICER. The ments to the 484-page bill that had cloture. So we were headed off there. clerk will call the roll. been dropped on our desks on the So we have helped to cut our own The legislative clerk proceeded to morning of last Wednesday. I tried to throats, to a degree, by having voted call the roll. get some of our Democratic colleagues for cloture last Friday. Mr. BYRD. Mr. President, I ask unan- to vote against cloture on Friday, so I urged Senators last Friday, as I imous consent that the order for the that we would have a little more time said before, not to vote for cloture last quorum call be rescinded. in which we Senators and our staffs week, so we would have more time in The PRESIDING OFFICER. Without could study that hurriedly-put-to- which to read and study this bill that objection, it is so ordered. gether bill, hurriedly passed by the was dropped suddenly into our laps by

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00062 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.114 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11293 the other body. I pleaded with this Sen- The Senate has painted itself, in a visions that were added to this bill at ate not to shut off debate and limit way, into a corner, by invoking cloture the last minute in the hopes that the amendments, and 28 other Senators on the Thompson amendment. We have Senate would cave in to the adminis- voted with me not to do so. no one to blame but ourselves for al- tration’s empty rhetoric. Senator There were 29 Senators who voted lowing the administration and the DASCHLE and Senator LIEBERMAN have against it and they were all Democrats. other body to characterize this modest called this bluff, and this amendment Mr. President, 29 Democrats voted amendment as a threat to the passage has cast a high-powered spotlight on against cloture last Friday. Only 17 of homeland security legislation. The language in this bill that cannot pos- Democrats voted for some cloture. administration wants to limit any sibly withstand the light of day and There were other Democrats who were amendments to one up-or-down vote so the strict scrutiny of time. These absent and not voting and their votes, that the administration can argue that shameful provisions could never sur- of course—at least four of those Sen- a vote for this amendment is a vote to vive public scrutiny, and now that they ators would have voted against cloture. ‘‘kill’’ the homeland security bill. have been brought into focus, the Sen- That would have brought the vote up There is simply no basis whatsoever in ate must ensure that they do not sur- to 33 votes against cloture, well over fact for the administration’s attempts vive our consideration. half the Democratic caucus. So that if to politicize this vote by claiming that So let us see on tomorrow whether or only six of the 17 Senators who did vote the vote on this amendment by Mr. not the Senate has the will and the for cloture last Friday had not voted DASCHLE and Mr. LIEBERMAN will kill courage to take a strong stand against for cloture and voted against it, or had the bill. this power grab. That stand can be not voted for cloture, then there would This legislation has been introduced taken by voting for the Daschle- have only been 59 votes for cloture, for consideration by the Senate, and Lieberman amendment. which would have meant that cloture the extent of that consideration should This amendment strikes several pro- would not have been invoked. not be confined to a few days of debate visions in this bill that do not deserve Sixty-five votes in totality were for over whether simply to rubberstamp to be enacted into law. The first of cloture. So all that was needed to de- the legislation so it can be sent to the these provisions in one that I have pre- feat cloture was for six of those Sen- President for his signature. viously addressed, relating to unneces- ators who voted for cloture to vote If the President wants to insist on sary and dangerous exemptions from against cloture. getting this bill passed before Congress the Federal Advisory Committee Act. Many of my colleagues last week, as adjourns, he could persuade both The language in this bill would give I pleaded with them to vote against Houses of Congress to pass bills and new blanket authority to the Secretary cloture, reassured me that we would work out their differences in con- of Homeland Security to exempt advi- have the opportunity to offer amend- ference. Such a conference is one which sory committees from existing public ments after cloture was invoked. But may or may not take very long. disclosure and conflict-of-interest As a matter of fact, the House could those Members should look carefully at rules. These rules already allow exemp- very well accept the amendment, if the where the Senate stands today, because tions for sensitive information relating amendment by Mr. DASCHLE and Mr. there is an important lesson to be to national security. This bill would LIEBERMAN should prevail—the House learned about the rules of the Senate allow the Secretary to cloak com- could very well accept that amend- and the effect of cloture on the ability ment, and the bill would go to the mittee activities behind a veil of se- of Senators to offer amendments. Not President. crecy, regardless of whether those ac- only have Senators been restricted to For now, I think the Senate should tivities actually involve issues of na- offering only those amendments that do its job. Senators need to look care- tional security. are ruled to be germane—and we know fully at the bill, do what they can to I believe that too much secrecy in that under the cloture rule—but Sen- make improvements before voting. And government is dangerous to our civil ators have been unable to offer any they only have this one chance—vote liberties, and we should not authorize amendments at all, other than the up or down on the Daschle amendment. such broad exemptions without com- amendment introduced by the majority That will help some but not enough. pelling evidence of the need for un- leader. But that might allow some Senators in checked blanket authority. Not all Senators could foresee that their own good consciences to vote for The President of the United States would happen, but all Senators should the bill. As far as I am concerned, it is already has that authority on a case- have known that could happen under not enough because there would still be by-case basis. But now we are going to the rule. It did happen. So I hope the a tremendous shift of power from the extend it to the Secretary of the new Senators who voted for cloture, some legislative branch to the President. Department, and of course he can exer- of them at least, will have some after- And I don’t feel like shifting that cise blanket authority if he so wishes. thoughts that will help in the future to power to any President—not just this If we are to preserve our liberty and remind them that we ought not be in one, but in particular this administra- the integrity of our constitutional sys- such a great hurry to invoke cloture, tion with its way of wanting to do tem, executive decision making must especially on an extremely complicated things in a secretive manner and want- be subject to scrutiny and oversight by bill which has been brought to our at- ing to run a government out of the the Congress, the media, and the pub- tention in its entirety just within the White House, and not in the full light lic. I support striking this language past few days beginning with last of day or under the full scrutiny of the from the bill, and I thank Senators Wednesday. press and the people. DASCHLE and LIEBERMAN for bringing it When I say to Senators that we I intend to vote against this bill, and to the attention of the Senate. should not shirk our responsibilities as I know that a majority of Senators will The Daschle amendment also strikes legislators by invoking cloture, espe- likely vote for it. But whether Sen- several provisions in this bill that pro- cially so quickly, so early on, I under- ators plan to vote for this bill or tect corporate campaign contributors stand the kind of opportunities that against it, we should all work to make from lawsuits. The first of these provi- are available under cloture, we will all sure that the Senate passes the best sions would prohibit lawsuits against understand this in the future. possible bill that it can under the cir- companies that manufacture vaccines I understand that the rules of the cumstances. We ought to act respon- by people who have been harmed by Senate have been used fairly to prevent sibly in response to this eleventh-hour those vaccines, including children suf- amendments from being offered to the legislation that did not see the light of fering from autism as a result of pre- homeland security legislation. When I day until only a few days ago. We servatives used in childhood vaccines. hear the arguments that voting for the should not surrender our duties under Another of these liability provisions single amendment that has been of- the Constitution by allowing legisla- would enact sweeping tort reform for fered will jeopardize passage of the bill, tion to be dictated to this Senate in an products that are designated as anti- I understand that such arguments were atmosphere of political brinkmanship. terrorism technologies. These provi- made possible by the vote to invoke Senator DASCHLE’s amendment sions would protect companies that cloture. strikes a number of very troubling pro- manufacture everything from gas

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00063 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.130 S18PT1 S11294 CONGRESSIONAL RECORD — SENATE November 18, 2002 masks to computer software when which would qualify for the new re- automatically go into effect. Congress their products fail, even when the com- search center. will be on the sideline. We will have panies know that their products will Mr. President, striking these provi- said: Here it is, Mr. President. It’s all not work. sions from the Thompson amendment yours. We have no more say in it. It’s The final liability provision would is a good start. I believe that the Sen- yours. Just be kind enough to let us give immunity to companies respon- ate should go further in fulfilling its know what your plans are. That’s all sible for providing security screening constitutional duty to improve this we ask. Let us know what your plans in airports. The Senate rejected simi- legislation before passing this bill. I are. lar language last year during its con- believe there are many other provi- But under my amendment, those rec- sideration of the airline ‘‘bailout’’ bill, sions of this bill which should be ommendations would have come to the yet now we are being asked to approve stricken and begun anew next year. Congress. Congress would have kept it because it has been inserted into po- In fact, I think we would all be more itself in the loop. It would have been litically popular legislation. The at- secure if we put off the whole bill and able to maintain oversight. And with tempt to slip this provision past the started over next year. each phase, each of the three phases, as Senate is another example of the haste For example, there is a provision it passed from the first, to the second, with which this bill has been drafted that the President may submit his rec- to the third, Congress would have bene- and considered by this Congress. Issues ommendations to Congress and the fited by its experience under the first, like these liability provisions should be only thing that Congress can do is just and then under the second, and there carefully scrutinized before they be- at that point agree to his recommenda- would have been an orderly phase-in, come law, not just rubber-stamped by tions. The Congress has no opportunity and with Congress, as I say, retaining impatient lawmakers looking to put to approve or not approve of those rec- its place in the loop. But that amendment was opposed issues behind them and go home. ommendations as far as this bill is con- Another provision that has already cerned. We might expect a great deal of even by Mr. LIEBERMAN and, I believe, been considered by this Senate relates chaos as these 28 agencies are moved the majority leader. The majority lead- er I think voted against it. It was his to doing business with companies that into the Department. This will take right to do so. But Mr. LIEBERMAN, the have moved their headquarters out of place within the next year. The Presi- author of the bill which had been re- the United States to avoid paying U.S. dent has not yet submitted his plan for ported out by his committee, voted taxes. In its consideration of the having the agencies moved into the against the amendment. So I thought Lieberman substitute to the homeland new Department, but his plan will be it would have been an improvement to security bill, the Senate adopted an submitted at some point and, ipso the bill and certainly would not have amendment offered by the late Senator facto, will go into effect. been in derogation of the committee in Wellstone that prohibited the Sec- Under an amendment which I had of- its work. But that amendment was re- retary of Homeland Security from con- fered earlier to the homeland security measure—that being at that time, I be- jected. And there you are. I tried. I tracting with such companies, unless failed to bring about that improve- lieve, the Lieberman bill that came out he needed to do so for national security ment. So that is another improvement of the committee of which he is chair- reasons. The Thompson substitute guts that I think ought to still have been man—I had offered an amendment to the Wellstone amendment by allowing put into the bill that is before us. the Secretary expanded powers to provide for an orderly phase-in of agen- So I have seen the handwriting on waive this prohibition to prevent the cies into the new Department over a the wall. I know this bill will probably loss of jobs or to save money for the period of a year. pass the Senate. Having said that, I be- Under my amendment, the rec- government. The Senate should reject lieve that the amendment by Mr. ommendations of the administration this attempt to undermine the will of DASCHLE and Mr. LIEBERMAN is impor- the Senate by restoring the language of would have gone to the Lieberman tant because it does make some needed Senator Wellstone’s amendment to the committee and to its counterpart in improvements to the bill. The Senate homeland security bill. the House of Representatives. And has a duty to approve at least these The Thompson substitute also tries those two committees would have had minimal proposals, if I may say that to slip in language to delay the imple- an opportunity, then, to hold hearings about them—they are important im- mentation of new airport security reg- and, under expedited procedures, could provements—before handing over this ulations. The Senate enacted proce- have brought out bills, reported bills, broad grant of power to the executive dures in last year’s airline security bill to implement the phasing in of agen- branch. for the Transportation Security Agen- cies into the new Department, with I urge Senators to vote for the cy to issue regulations for improving there being three phases, of 120 days Daschle-Lieberman amendment on to- security in our Nation’s airports. The each, which would have created an or- morrow morning. new language in the Thompson sub- derly process whereby these various Mr. President, I yield the floor. stitute would modify these procedures agencies would have been phased into PROCUREMENT POLICY by requiring the Transportation Secu- the new Department. Mr. DEWINE. Mr. President, the rity Oversight Board to ratify any reg- Also, the Congress would have been homeland security legislation we have ulations before they become effective. I kept in the loop in each case, with the been debating takes on many organiza- see no good reason for this modifica- Lieberman committee and its counter- tional and administrative challenges, tion, If there is one, the Senate should part in the House being able to hold but one challenge it does not cover take the time to debate it rather than hearings, call witnesses, vote out bills fully is in the area of information tech- hastily approving it as part of this by expedited procedures. Those bills nology. Specifically, I am talking massive legislation. would come to the Senate. They could about departmental policies and guide- The final provision that will be be called up in the Senate under expe- lines for purchasing computer soft- stricken by the Daschle-Lieberman- dited procedures so that there would be ware. No doubt, effective procurement Byrd amendment is the language di- no filibuster, and those bills would be policies will be essential not just to the recting that a new homeland security amended, passed on; and in this way sound administration of the Depart- research center be created at Texas the creation of the new Department, ment, but also to the successful A&M University. with the orderly phasing in of the achievement of a number of important I don’t think the amendment specifi- agencies, would occur over the same policies identified in this legislation, cally says that, but its provisions are period of time—1 year—as is the case including most notably, the ability of such that that particular university with the current bill. law enforcement and intelligence agen- would be most favored and targeted for As it is, when we pass this bill in the cies to share data and coordinate ac- location of such a center. Senate, we are out of the loop; we have tivities to respond to or prevent terror The amendment removes items from automatically put ourselves, the Con- or criminal acts. the list of highly specific criteria gress, to the sidelines. And the Presi- For those sharing and analyzing data which all but guaranteed that Texas dent then can do as he wishes. He can electronically, the security of the soft- A&M would be the only university submit his plan, and that plan would ware being utilized, such as database

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00064 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.093 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11295 and operating system software, is crit- curity holes in software. Last year, ac- and I thank him for his comments, ical. These software technologies are cording to industry estimates, these vi- which are right on the mark. Informa- referred to by those in the industry as ruses inflicted $13 billion in damages tion assurance will be critical to the ‘‘information assurance’’ technology. on our economy and even incapacitated new Department of Homeland Security, Information assurance technology is systems within our own Defense De- and independent evaluations can be what is needed to assure information partment. useful tools to improve the security of systems operate effectively, ensure the Fortunately, information technology information systems. In fact, informa- security of the information contained laboratories exist that perform func- tion assurance is critical to the entire in these systems, and verify the identi- tions similar to the Underwriters Lab- Federal Government and deserves to be ties of those authorized to use these oratory. Many software companies a key component in any cybersecurity systems. At its most fundamental have these independent labs evaluate strategy. I look forward to seeing this level, information assurance software, their products to determine if they framework for independent software for example, includes operating sys- meet various levels of security assur- evaluation evolve and improve through tems, database, and user authentica- ance. For example, the international processes like the National Informa- tion software. Common Criteria provides for security tion Assurance Partnership and the It should not be a surprise to anyone evaluations that are recognized in 15 Common Criteria. here that agencies within the Federal countries, including the United States, Mr. DEWINE. I thank the distin- Government that are responsible for Germany, Canada, and Great Britain. guished chair of the Governmental Af- our most sensitive information have to Thus, if a software product is certified fairs Committee for his comments. I rely on information assurance tech- under the Common Criteria, it is recog- look forward to working with him and nology. In fact, in January of 2000, the nized among all participating coun- the new Department of Homeland Se- National Security Telecommunications tries. More to the point, this certifi- curity to ensure that the Department’s and Information Systems Security cation is designed to validate the secu- information assurance policies include Committee, an entity within the Na- rity claims made by software compa- the purchase of secure, stable informa- tional Security Agency, proposed a pol- nies, much like the Underwriters Lab- tion systems. icy that called on all Government oratory validates the safety claims of Mr. LIEBERMAN. I also thank the agencies to purchase only those com- appliance manufacturers. In his book, Senator from Ohio for his comments mercial-off-the-shelf, or COTS, soft- ‘‘Secrets and Lies’’ cybersecurity ex- and look forward to working with him, ware that had undergone an inde- pert Bruce Schneier noted that the as well. pendent evaluation process that tests Common Criteria is a ‘‘giant step in UNACCOMPANIED CHILD PROTECTION ACT the security of the software. Toward the right direction.’’ Mrs. FEINSTEIN. Mr. President, I that goal, the committee outlined a NSTISSP #11 is the Federal Govern- am disappointed that the bill before us specific acquisition policy for those in- ment’s way of saying that for its most does not contain in its entirety the Un- formation systems critical to national sensitive national security systems, it accompanied Child Protection Act, bi- security. This policy—the National Se- is not enough for information tech- partisan legislation I introduced at the curity Telecommunications and Infor- nology providers to say their products beginning of this Congress and that mation Systems Security Policy #11, are secure. Now, software providers was included as Title XII of the or NSTISSP #11—states that Federal must have independent evaluations to Lieberman substitute to H.R. 5005. agencies with information systems in- back up their claims. I am pleased, however, that the volved in national security can only It is my understanding that the De- measure contains one key component purchase commercial information as- fense Department is working to imple- of that legislation: the transfer of au- surance software that has been inde- ment an information assurance acqui- thority over the care and custody of pendently evaluated to be secure. sition policy based on NSTISSP #11. unaccompanied alien children to the This sounds a bit technical, but if we That is an important and positive step, Office of Refugee Resettlement within take a step back and look at this pro- one called for in the Defense authoriza- the Department of Health and Human posed policy as consumers, it makes tion bill conference report. Services. perfect sense. Today, many household The reason why I am bringing this This is key for two reasons: First, we items, like our dishwashers, tele- issue to the attention of my colleagues do not want to burden the Secretary of visions, stereos, and computers, have today is because I believe it is an issue Homeland Security with policy issues the now famous Underwriters Labora- that deserves the attention of the new unrelated to the threat of terrorism. tory Label. This label provides con- Department of Homeland Security. The Department will have a huge and sumers with the peace of mind that the After all, if the tragic terrorist attacks important mission when this legisla- products they are purchasing have met of September 11 proved anything, it is tion is done and its attention should be independent public safety tests. that our most sensitive information focused on that mission. Consumers have been purchasing systems in Federal information sharing Second, the federal government has a products with the Underwriters Lab- and coordination of strategies will special responsibility to protect the oratory ‘‘seal of approval’’ for more likely take place among those law en- children in its custody. For too long, than a century. However, businesses forcement agencies within and outside the Immigration and Naturalization large and small, and local, State, and of the Homeland Security Department. Service, INS, has not lived up to that Federal Government agencies purchase Information sharing and analysis also responsibility. The children’s provi- computer software with no thought is likely to occur between our law en- sions in this legislation is an impor- given to whether or not the software forcement and intelligence agencies. tant first step in correcting decades of has met some outside measure of secu- All of this activity requires that the questionable practices with regards to rity assurance. That is an extremely Department of Homeland Security to children that come under the agency’s risky proposition. Computer software have strong information assurance watch. is essential to our Nation’s critical in- strategies, including those involving As I mentioned before, this is an im- frastructures, including our railroads, the purchase of information assurance portant first step in providing protec- airports, pipelines, utilities, and finan- systems in the commercial market. tion for unaccompanied alien children. cial services. At the Government level, I see the distinguished chair of the I ask my friend from Arizona, who is a information technology is critical to Governmental Affairs Committee and senior member of the Judiciary Com- the administration of key Federal pro- manager of the legislation currently mittee and part of the leadership on grams, our homeland defense, and most pending on the floor. I know this is an the other side of the aisle, if he would notably, our national security. issue of great interest and concern to agree to work with me next year to The costs of insecure, vulnerable in- him, and I would now yield the floor to further refine the important reforms formation systems are real and sober- him for any comments he wishes to relating to the treatment of unaccom- ing. Computer viruses, like Nimda and make. panied alien children. Code Red, penetrate, disrupt and dis- Mr. LIEBERMAN. I thank the distin- Mr. KYL. I thank my friend from able information systems through se- guished Senator from Ohio for yielding, California for her question. I know that

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00065 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.095 S18PT1 S11296 CONGRESSIONAL RECORD — SENATE November 18, 2002 she has worked long and hard on these The creation of a Border and Trans- ated, we may find that other changes issues and that it is her work and her portation Security Directorate—bring- will be needed, but this legislation is a dedication that is responsible for the ing together the Immigration and Nat- very important step to ensuring that inclusion of the children’s provisions in uralization Service from the Justice our nation, our homeland, and our citi- the homeland security bill. Department, the U.S. Customs Service zens, are protected to the fullest extent I would further say to my friend from from the Treasury Department, and possible from the new and dangerous California that while additional re- the newly created Transportation Se- threats that confront us. forms may be warranted, the legisla- curity Administration—will make a I support this effort and I urge all tion before us today was primarily a single entity responsible for securing Senators to vote for it. structural bill, not a policy bill. That our border and transportation systems Let’s get on with it. fact prevented the consideration of and preventing the entry of terrorists Mrs. HUTCHISON. Mr. President, I some of the reforms she has cham- into our country. suggest the absence of a quorum. pioned from being included in this leg- The Coast Guard, which also plays an The PRESIDING OFFICER. The islation. important role in securing our borders, clerk will call the roll. I pledged to work with her in the will move from the Department of The legislative clerk proceeded to 108th Congress to help fashion legisla- Transportation to the Department of call the roll. tion that could address some of the Homeland Security. By maintaining Mrs. HUTCHISON. Mr. President, I issues that had to be left out of this the Coast Guard as an independent ask unanimous consent that the order measure. agency reporting directly to the Sec- for the quorum call be rescinded. Mrs. FEINSTEIN. I thank the Sen- retary of Homeland Security, this bill The PRESIDING OFFICER (Mr. ator from Arizona. You may be inter- ensures the Coast Guard will have the MILLER). Without objection, it is so or- ested to know that I first became in- resources and advocacy it needs to con- dered. volved in this issue when I heard about duct its important security missions as f a young 15-year old Chinese girl who well as its other missions, such as stood before a U.S. immigration court AVIATION SECURITY search-and-rescue and boating safety. IMPROVEMENT ACT facing deportation proceedings. She This legislation also creates a Direc- had found her way to the United States torate of Emergency Preparedness and Mrs. HUTCHISON. Mr. President, I as a stowaway in a container ship cap- Response, which will coordinate the ask unanimous consent that the Sen- tured off of Guam, hoping to escape the federal government’s response to ter- ate proceed to the immediate consider- repression she had experienced in her rorist attacks and major disasters. ation of Calendar No. 623, S. 2949. home country. Combining all the Federal Govern- The PRESIDING OFFICER. The Although she had committed no ment’s emergency response efforts into clerk will report the bill by title. crime, the INS sent her to a Portland a single entity will improve the Gov- The assistant legislative clerk read jail, where she languished for seven ernment’s coordination with state and as follows: months. When the INS brought her be- local entities in preparing for and re- A bill (S. 2949) to provide for enhanced fore an immigration judge, she stood aviation security, and for other purposes. before him confused, not understanding sponding to terrorist attacks. The need for this reorganization is There being no objection, the Senate the proceedings against her. Tears critical to our national security. Its proceeded to consider the bill which streamed down her face, yet she could scope is necessarily quite extensive. If had been reported from the Committee not wipe them away because her hands this effort is to be effective, the Presi- on Commerce, Science, and Transpor- were handcuffed and chained to her dent must have the flexibility to adapt tation, with amendments, as follows: waist. [Strike the parts shown in black While the young girl eventually re- the new department as needed to carry brackets and insert the parts shown in ceived asylum in our country, she un- out its mission. This bill provides him italic.] necessarily faced an ordeal no child the management flexibility he needs should bear under our immigration sys- while protecting the rights of the Fed- S. 2949 tem. This young Chinese girl rep- eral workers who will serve in the new Be it enacted by the Senate and House of Rep- resents only one of 5,000 foreign-born department. resentatives of the United States of America in children who, without parents or legal This bill represents to most extensive Congress assembled, guardians to protect them, are discov- reorganization of the Federal Govern- SECTION 1. SHORT TITLE; AMENDMENT OF TITLE ment in over 50 years. By taking re- 49. ered in the United States each year in (a) SHORT TITLE.—This Act may be cited as need of protection. sources from existing departments and agencies and placing them in a new or- the ‘‘Aviation Security Improvement Act’’. So you see, this issue calls for clearer (b) AMENDMENT OF TITLE 49.—Except as policy direction from Congress. I thank ganization, it has required a very dif- otherwise expressly provided, whenever in my friend and look forward to working ficult balancing of competing interests this Act an amendment or repeal is ex- with him in the beginning of the 108th and views. The success of those efforts pressed in terms of an amendment to, or a Congress. is a tribute to those who have worked repeal of, a section or other provision, the Mr. COCHRAN. Mr. President, the re- so hard to bring this legislation about. reference shall be considered to be made to a organization of our homeland security The President in particular deserves section or other provision of title 49, United States Code. efforts is necessary if we are to achieve praise for bringing together a wide va- a higher level of safety for American riety of interests and addressing a vari- SEC. 2. TABLE OF CONTENTS. ety of concerns about the new depart- The table of contents for this Act is as fol- citizens. lows: The bill before us improves our secu- ment. Here in the Senate, Senator Sec. 1. Short title; amendment of title 49. rity by combining into a single depart- THOMPSON, the ranking member of the Sec. 2. Table of contents. ment the federal agencies and pro- Governmental Affairs Committee and grams that today have a role in pro- one of the sponsors of the compromise TITLE I—EXPLOSIVE DETECTION SYSTEMS viding homeland security. Those orga- proposal before us now, deserves great nizations comprise some 170,000 people. credit for his efforts to ensure this leg- Sec. 101. Explosive detection systems. Bringing them together under a single islation was both effective and fair. TITLE II—AIR CARGO SECURITY reorganized department will enable us Senator LIEBERMAN, the chairman of Sec. 201. Inspection of cargo carried aboard to improve coordination of the Govern- the Governmental Affairs Committee, passenger aircraft. Sec. 202. Air cargo shipping. ment’s efforts to defend the United was one of the first to identify the need Sec. 203. Cargo carried aboard passenger air- States against terrorist attacks. for this department and to call for its craft. By creating the cabinet-level posi- creation, and he should be commended Sec. 204. Training program for cargo han- tion of Secretary of Homeland Secu- for his efforts as well. dlers. rity, the bill ensures there will be a The bill before us is the beginning, Sec. 205. Cargo carried aboard all-cargo air- leader of this effort, with the appro- not the end, of our efforts to adapt to craft. priate authority and responsibility to the new threats we face. After the De- TITLE III—PASSENGER IDENTIFICATION carry out that mission. partment of Homeland Security is cre- Sec. 301. Passenger identification.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00066 Fmt 4637 Sfmt 0655 E:\CR\FM\A18NO6.098 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11297 Sec. 302. Passenger identification available under chapter 417 or 471 until ex- tigations, and inspections of indirect air car- verification. plosive detection systems required to be de- rier facilities to determine if the indirect air TITLE IV—CIRCUMVENTION OF AIRPORT ployed under paragraph (1) have been de- carriers are meeting the security require- SECURITY ployed at that airport. ments of this title. Sec. 401. Prohibition on unauthorized cir- ‘‘(3) REPORTS.— ‘‘(2) ENSURING COMPLIANCE.—The Under Sec- cumvention of airport security ‘‘(A) IN GENERAL.—Until the Transpor- retary may take such actions as may be appro- systems and procedures. tation Security Administration has met the priate to promote and ensure compliance with TITLE V—WAR RISK INSURANCE requirements of paragraph (1), the Under the security standards established under this Sec. 501. War risk insurance for certain air- Secretary shall submit a classified report title. craft. every 30 days after the date of enactment of ‘‘ø(2)¿ (3) NOTICE OF FAILURES.—The Under the Aviation Security Improvement Act to TITLE VI—BLAST RESISTANT CARGO Secretary shall notify the Secretary of the Senate Committee on Commerce, CONTAINER TECHNOLOGY Transportation of any indirect air carrier Science, and Transportation and the House that fails to meet security standards estab- Sec. 601. Blast-resistant cargo container of Representatives Committee on Transpor- technology. lished under this title. tation and Infrastructure describing the ø ¿ TITLE VII—FLIGHT SCHOOLS ‘‘ (3) (4) SUSPENSION OR REVOCATION OF progress made toward meeting such require- CERTIFICATE.—The Secretary, as appropriate, Sec. 701. Modification of requirements regard- ments at each airport. shall suspend or revoke any certificate or au- ing training to operate aircraft ‘‘(B) LIMIT ON NUMBER OF REPORTS.—The thority issued under chapter 411 to an indi- TITLE VIII—MISCELLANEOUS Under Secretary shall submit reports for rect air carrier immediately upon the rec- Sec. 801. Applications for nonlethal cockpit each airport until the requirements of para- ommendation of the Under Secretary. Any weapons graph (1) have been met, but may not submit indirect air carrier whose certificate is sus- Sec. 802. FAA Notices to Airmen FDC 1/3353 ø ¿ more than 6 12 reports for any airport.’’. pended or revoked under this subparagraph and 2/95823. TITLE II—AIR CARGO SECURITY may appeal the suspension or revocation in ø ¿ TITLE VII IX—TECHNICAL SEC. 201. INSPECTION OF CARGO CARRIED accordance with procedures established CORRECTIONS ABOARD PASSENGER AIRCRAFT. under this title for the appeal of suspensions Sec. ø701.¿ 901. Technical corrections. Section 44901(f) is amended to read as fol- and revocations. TITLE I—EXPLOSIVE DETECTION lows: ‘‘ø(4)¿ (5) INDIRECT AIR CARRIER.—In this ‘‘(f) CARGO.— SYSTEMS subsection, the term ‘indirect air carrier’ has ‘‘(1) IN GENERAL.—The Under Secretary of SEC. 101. EXPLOSIVE DETECTION SYSTEMS. the meaning given that term in part ø109 of Transportation for Security shall establish Section 44901(d) is amended by adding at title 14,¿ 1548 of title 49, Code of Federal Reg- øa system¿ systems to screen, inspect, or oth- the end the following: ulations.’’. erwise ensure the security of all cargo that ‘‘(2) øFAILURE TO MEET DEADLINE¿ is to be transported in— (b) ASSESSMENT OF INDIRECT AIR CARRIER DEADLINE.— ‘‘(A) passenger aircraft operated by an air PROGRAM.—The Under Secretary of Trans- ‘‘(A) IN GENERAL.—If the Under Secretary carrier or foreign air carrier in air transpor- portation for Security shall assess the secu- of Transportation for Security determines tation or intrastate air transportation; or rity aspects of the indirect air carrier pro- that the Transportation Security Adminis- ‘‘(B) all-cargo aircraft in air transpor- gram under part ø109 of title 14,¿ 1548 of title tration is not able to deploy explosive detec- tation and intrastate air transportation. 49, Code of Federal Regulations, and report tion systems required to be deployed under ‘‘(2) STRATEGIC PLAN.—The Under Sec- the result of the assessment, together with paragraph (1) at all airports where explosive retary shall develop a strategic plan to carry any recommendations for necessary modi- detection systems are required by December out paragraph (1).’’. fications of the program to the Senate Com- 31, 2002, then with respect to each airport for mittee on Commerce, Science, and Transpor- which the Under Secretary makes that de- SEC. 202. AIR CARGO SHIPPING. (a) IN GENERAL.—Subchapter I of chapter tation and the House of Representatives termination— 449, is amended by adding at the end the fol- Committee on Transportation and Infra- ‘‘(i) the Under Secretary shall submit to lowing: structure within 45 days after the date of en- the Senate Committee on Commerce, actment of this Act. The Under Secretary Science, and Transportation and the House ‘‘§ 44921. Regular inspections of air cargo shipping facilities may submit the report and recommendations of Representatives Committee on Transpor- in classified form. tation and Infrastructure a detailed plan ‘‘The Under Secretary of Transportation (which may be submitted in classified form) for Security shall establish a system for the (c) REPORT TO CONGRESS ON RANDOM AU- for the deployment of the number of explo- regular inspection of shipping facilities for DITS.—The Under Secretary of Transpor- sive detection systems at that airport nec- shipments of cargo transported in air trans- tation for Security shall report to the Sen- essary to meet the requiremens of paragraph portation or intrastate air transportation to ate Committee on Commerce, Science, and (1) as soon as practicable at that airport; and ensure that appropriate security controls, Transportation and the House of Representa- ‘‘(ii) the Under Secretary shall take all systems, and protocols are observed, and tives Committee on Transportation and In- shall enter into øsuch¿ arrangements with frastructure on random screening, audits, necessary action to ensure that alternative the civil aviation authorities, or other ap- and investigations of air cargo security pro- means of screening all checked baggage is propriate officials, of foreign countries to en- grams based on threat assessments and other implemented until the requirements of para- sure that inspections are conducted on a reg- relevant information. The report may be graph (1) have been met. ular basis at shipping facilities for cargo submitted in classified form. ‘‘(B) CRITERIA FOR DETERMINATION.—In transported in air transportation to the making a determination under subparagraph (d) AUTHORIZATION OF APPROPRIATIONS.— United States.’’. There are authorized to be appropriated to (A), the Under Secretary shall take into ac- (b) ADDITIONAL INSPECTORS.—The Under Sec- the Secretary of Transportation such sums count— retary may increase the number of inspectors as ‘‘(i) the nature and extent of the required as may be necessary to carry out this sec- necessary to implement the requirements of title tion. modifications to the airport’s terminal 49, United States Code, as amended by this title. buildings, and the technical, engineering, de- (c) CONFORMING AMENDMENT.—The chapter (e) CONFORMING AMENDMENT.—The chapter sign and construction issues; analysis for chapter 449 is amended by add- analysis for chapter 449, as amended by sec- ‘‘(ii) the need to ensure that such installa- ing at the end the following: tion 202, is amended by adding at the end the tions and modifications are effective; and ‘‘44921. Regular inspections of air cargo ship- following: ‘‘(iii) the feasibility and cost-effectiveness ping facilities.’’. ‘‘44922. Air cargo security.’’. of deploying explosive detection systems in SEC. 203. CARGO CARRIED ABOARD PASSENGER the baggage sorting area or other non-public AIRCRAFT. SEC. 204. TRAINING PROGRAM FOR CARGO HAN- area rather than the lobby of an airport ter- (a) IN GENERAL.—Subchapter I of chapter DLERS. minal building. 449, is further amended by adding at the end The Under Secretary of Transportation for ‘‘(C) LIMITATION.—The Under Secretary the following: Security shall establish a training program may not make a determination under sub- ‘‘§ 44922. Air cargo security for any persons that handle air cargo to en- paragraph (A) in the case of more than 40 ‘‘(a) DATABASE.—The Under Secretary of sure that the cargo is properly handled and airports. Transportation for Security shall establish safe-guarded from security breaches. ‘‘(D) AIRPORT EFFORT REQUIRED.—Each air- an industry-wide pilot program database of port with respect to which the Under Sec- known shippers of cargo that is to be trans- SEC. 205. CARGO CARRIED ABOARD ALL-CARGO AIRCRAFT. retary makes a determination under sub- ported in passenger aircraft operated by an paragraph (A) shall— air carrier or foreign air carrier in air trans- (a) IN GENERAL.—The Under Secretary of ‘‘(i) cooperate fully with the Transpor- portation or intrastate air transportation. Transportation for Security shall establish a tation Security Administration with respect The Under Secretary shall use the program requiring that air carriers oper- to screening checked baggage and changes to ødatabase¿ results of the pilot program to ating all-cargo aircraft have an approved accommodate explosive detection systems; improve the known shipper program. plan for the security of their air operations and ‘‘(b) INDIRECT AIR CARRIERS.— area, the cargo placed aboard such aircraft, ‘‘(ii) make security projects a priority for ‘‘(1) RANDOM INSPECTIONS.—The Under Sec- and persons having access to their aircraft the obligation or expenditure of funds made retary shall conduct random audits, inves- on the ground or in flight.

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00067 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.101 S18PT1 S11298 CONGRESSIONAL RECORD — SENATE November 18, 2002

(b) PLAN REQUIREMENTS.—The plan shall (b) CONFORMING AMENDMENT.—The chapter tion war risk insurance policies the Depart- include provisions for— analysis for chapter 449, is amended by add- ment issued that were in effect on such date (1) security of each carrier’s air operations ing at the end the following: of enactment on terms that are no less favor- areas and cargo acceptance areas at the air- ‘‘44923. Passenger identification.’’. able than the terms of those policies as the ports served; SEC. 302. PASSENGER IDENTIFICATION policies were in effect on June 19, 2002; and (2) background security checks for all em- VERIFICATION. ‘‘(B) offer to amend each policy the term of ployees with access to the air operations (a) REQUIREMENT.—Subchapter I of chapter which is extended to provide coverage for area; 449, is further amended by adding at the end losses or injuries to hull, passengers, and (3) appropriate training for all employees the following: crew, in addition to coverage for injury to and contractors with security responsibil- ‘‘§ 44924. Passenger identification verification third parties (with respect to both persons ities; and property), on such terms and conditions ‘‘(a) PROGRAM REQUIRED.—The Under Sec- (4) appropriate screening of all flight crews as the Secretary may prescribe, at an addi- retary of Transportation for Security may and persons transported aboard all-cargo air- tional premium comparable to the premium establish and carry out a program to require craft; charged for the third-party casualty cov- the installation and use at airports in the (5) security procedures for cargo placed on erage under existing Federal Aviation Admin- United States of such identification all-cargo aircraft as provided in section istration policies. verification technologies as the Under Sec- ø44901(f)¿ 44901(f)(1)(B) of title 49, United ‘‘(2) REPORT.—Not later than 90 days after retary considers appropriate to assist in the States Code; and the date of enactment of the Aviation Secu- screening of passengers boarding aircraft at (6) additional measures deemed necessary rity Improvement Act, the Secretary shall such airports. and appropriate by the Under Secretary. transmit to the Committee on Commerce, (c) CONFIDENTIAL INDUSTRY REVIEW AND ‘‘(b) TECHNOLOGIES EMPLOYED.—The identi- fication verification technologies required as Science, and Transportation of the Senate COMMENT.— and the Committee on Transportation and (1) CIRCULATION OF PROPOSED PROGRAM.— part of the program under subsection (a) may include identification scanners, bio- Infrastructure of the House of Representa- The Under Secretary shall— tives a report that— (A) propose a program under subsection (a) metrics, øretinal¿ retinal, iris, or facial scan- ners, or any other technologies that the ‘‘(A) evaluates the availability of war risk within 90 days after the date of enactment of insurance for air carriers and other aviation this Act; and Under Secretary considers appropriate for entities for passengers and third parties; (B) distribute the proposed program, on a purposes of the program. ‘‘(B) analyzes the economic effect upon air confidential basis, to those air carriers and ‘‘(c) COMMENCEMENT.—If the Under Sec- carriers and other aviation entities of avail- other employers to which the program will retary determines that the implementation able war risk insurance; and apply. of such a program is appropriate, the instal- ‘‘(C) describes the manner in which the De- (2) COMMENT PERIOD.—Any person to which lation and use of identification verification partment could provide an alternative means the proposed program is distributed under technologies under the program shall com- of providing aviation war risk reinsurance paragraph (1) may provide comments on the mence as soon as practicable after the date covering passengers, crew, and third parties proposed program to the Under Secretary of that determination.’’. through use of a risk-retention group or by not more than 60 days after it was received. (b) CONFORMING AMENDMENT.—The chapter other means.’’. (3) FINAL PROGRAM.—The Under Secretary analysis for chapter 449, is amended by add- of Transportation shall issue a final program ing at the end the following: TITLE VI—BLAST RESISTANT CARGO under subsection (a) not later than 45 days ‘‘44924. Passenger identification CONTAINER TECHNOLOGY after the last date on which comments may verification.’’. SEC. 601. BLAST-RESISTANT CARGO CONTAINER be provided under paragraph (2). The final TITLE IV—CIRCUMVENTION OF AIRPORT TECHNOLOGY. program shall contain time frames for the SECURITY Not later than 6 months after the date of plans to be implemented by each air carrier SEC. 401. PROHIBITION ON UNAUTHORIZED CIR- enactment of this Act, the Under Secretary or employer to which it applies. CUMVENTION OF AIRPORT SECU- of Transportation for Security, and the Ad- (4) SUSPENSION OF PROCEDURAL NORMS.— RITY SYSTEMS AND PROCEDURES. ministrator of the Federal Aviation Admin- Neither chapter 5 of title 5, United States (a) PROHIBITION.—Section 46503 is amend- istration, shall jointly submit a report to Code, nor the Federal Advisory Committee ed— Congress that— Act (5 U.S.C. App.) shall apply to the pro- (1) by inserting ‘‘(a) INTERFERENCE WITH (1) evaluates blast-resistant cargo con- gram required by this section. SECURITY SCREENING PERSONNEL.—’’ before tainer technology to protect against explo- TITLE III—PASSENGER IDENTIFICATION ‘‘An individual’’; and sives in passenger luggage and cargo; SEC. 301. PASSENGER IDENTIFICATION. (2) by adding at the end the following new (2) examines the advantages associated (a) IN GENERAL.—Subchapter I of chapter subsection: with this technology in preventing the dam- 449, as amended by title II of this Act, is fur- ‘‘(b) UNAUTHORIZED CIRCUMVENTION OF SE- age and loss of aircraft from terrorist action, ther amended by adding at the end the fol- CURITY SYSTEMS AND PROCEDURES.—An indi- any operational impacts which may result lowing: vidual in an area within a commercial serv- (particularly added weight and costs) and ice airport in the United States who inten- ‘‘§ 44923. Passenger identification whether alternatives exist to mitigate such tionally circumvents, in an unauthorized impacts, and options available to pay for ‘‘(a) IN GENERAL.—Not later than 180 days manner, a security system or procedure in this technology; and after the date of enactment of the Aviation the airport shall be fined under title 18, im- (3) provides recommendations on what fur- Security Improvement Act, the Under Sec- prisoned for not more than 10 years, or retary of Transportation for Security, in ther action, if any, should be taken with re- both.’’. consultation with the Administrator of the spect to the use of blast-resistant cargo con- (b) CONFORMING AND CLERICAL AMEND- Federal Aviation Administration, appro- tainers on passenger aircraft. MENTS.— priate law enforcement, security, and ter- TITLE VII—FLIGHT SCHOOLS (1) The section heading of that section is rorism experts, representatives of air car- amended to read as follows: SEC. 701. MODIFICATION OF REQUIREMENTS RE- riers and labor organizations representing GARDING TRAINING TO OPERATE individuals employed in commercial avia- ‘‘§ 46503. Interference with security screening AIRCRAFT. personnel; unauthorized circumvention of tion, shall develop protocols to provide guid- (a) ALIENS COVERED BY WAITING PERIOD.— ance for detection of false or fraudulent pas- security systems or procedures’’. Subsection (a) of section 44939 is amended— senger identification. The protocols may (2) The item relating to that section in the (1) by resetting the text of subsection (a) after consider new technology, current identifica- table of sections at the beginning of chapter ‘‘(a) WAITING PERIOD.—’’ as a new paragraph 2 tion measures, training of personnel, and 465 is amended to read as follows: ems from the left margin; issues related to the types of identification ‘‘46503. Interference with security screening (2) by striking ‘‘A person’’ in that new para- available to the public. personnel; unauthorized cir- graph and inserting ‘‘(1) IN GENERAL.—A per- ‘‘(b) AIR CARRIER PROGRAMS.—Within 60 cumvention of security systems son’’; days after the Under Secretary issues the or procedures.’’. protocols under subsection (a) in final form, (3) by redesignating paragraphs (1) and (2) as the Under Secretary shall provide them to TITLE V—WAR RISK INSURANCE subparagraphs (A) and (B), respectively; each air carrier. The Under Secretary shall SEC. 501. WAR RISK INSURANCE FOR CERTAIN (4) by striking ‘‘any aircraft having a max- establish a joint government and industry AIRCRAFT. imum certificated takeoff weight of 12,500 council to develop recommendations on how Section 44302 is amended by adding at the pounds or more’’ and inserting ‘‘an aircraft’’; to implement the protocols. The Under Sec- end the following: (5) by striking ‘‘paragraph (1)’’ in paragraph retary shall report to the Senate Committee ‘‘(f) WAR RISK INSURANCE.— (1)(B), as redesignated, and inserting on Commerce, Science, and Transportation ‘‘(1) IN GENERAL.—Not later than 30 days ‘‘subparagraph (A)’’; and and the House of Representatives Committee after the date of enactment of the Aviation (6) by adding at the end the following: on Transportation and Infrastructure within Security Improvement Act, the Secretary ‘‘(2) EXCEPTION.—The requirements of para- 1 year after the date of enactment of the shall— graph (1) shall not apply to an alien who— Aviation Security Improvement Act on the ‘‘(A) extend for 270 days from such date of ‘‘(A) has earned a Federal Aviation Adminis- actions taken under this section.’’. enactment the termination date of any avia- tration type rating in an aircraft; or

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00068 Fmt 4637 Sfmt 6333 E:\CR\FM\A18NO6.101 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11299

‘‘(B) holds a current pilot’s license or foreign (b) WAIVERS.—Beginning no earlier than 180 ‘‘(i) is a national of the United States (as de- equivalent commercial pilot’s license that per- days after the date of enactment of this Act, the fined in section 101(a)(22) of the Immigration mits the person to fly an aircraft with a max- Secretary may modify or terminate such restric- and Nationality Act (8 U.S.C. 1101(a)(22))); imum certificated takeoff weight of more than tions, or issue waivers or exemptions from such ‘‘(ii) was born in a territory of the United 12,500 pounds as defined by the International restrictions, if the Secretary promulgates, after States; Civil Aviation Organization in Annex 1 to the public notice and an opportunity for comment, ‘‘(iii) was honorably discharged from service Convention on International Civil Aviation.’’. a rule under which the Secretary may grant a in the Armed Forces of the United States; or (b) COVERED TRAINING.—Section 44936(c) is waiver or exemption only if— ‘‘(iv) is an alien lawfully admitted for perma- amended to read as follows: (1) the application for the waiver or exemption nent residence, as defined in section 101(a)(20) ‘‘(c) COVERED TRAINING.— was received by the Secretary not less than 5 of the Immigration and Nationality Act and was ‘‘(1) IN GENERAL.—For purposes of subsection days (excluding Saturdays, Sundays, and holi- employed to perform security screening services (a), training includes in-flight training, training days) before the proposed operation for which it at an airport in the United States on the date of in a simulator, and any other form or aspect of is requested; enactment of the Aviation and Transportation training. (2) the application is for a specific stadium or Security Act (Public Law 107–71).’’; and ‘‘(2) EXCEPTION.—For the purposes of sub- venue, during a specified period of time, for a ø(2)¿ (4) by redesignating the second sub- section (a), training does not include classroom specific aircraft, and contains the names of the section (i) as subsection (k). instruction (also known as ground training), pilot, crew, and passengers who will be aboard (j) Section 44936(a)(1)(A) is amended by which may be provided to an alien during the the aircraft; striking ‘‘Transportation Security,,’’ and in- 45-day period applicable to the alien under that (3) the pilot and each crewmember have serting ‘‘Security,’’. subsection.’’. passed a fingerprint-based criminal history (k) Section 44940 is amended— (c) PROCEDURES.— records check by the Federal Bureau of Inves- (1) by striking ‘‘Federal law enforcement (1) IN GENERAL.—Not later than 30 days after tigation; personnel pursuant to section 44903(h).’’ in the date of enactment of this Act, the Attorney (4) the names of all individuals aboard the subsection (a)(1)(G) and inserting ‘‘law en- General shall promulgate regulations to imple- aircraft have been compared with names on ap- forcement personnel pursuant to this title.’’; ment section 113 of the Aviation and Transpor- propriate security watch lists; (2) by inserting ‘‘FOR’’ after ‘‘RULES’’ in the tation Security Act. (5) access to the aircraft will be secured before caption of subsection (d)(2); and (2) USE OF OVERSEAS FACILITIES.—In order to the proposed operation; and (3) by striking subsection (d)(4) and insert- implement the amendments made to section (6) timely notice has been, or will be, given to ing the following: 44939 of title 49, United States Code, by this sec- the operators of the affected stadium or other ‘‘(4) FEE COLLECTION.—Fees may be col- tion, United States Embassies and Consulates venue. lected under this section as provided in ad- that have fingerprinting capability shall provide TITLE øVII¿ IX—TECHNICAL vance in appropriations Acts.’’. (l) Section 46301(a) is amended by adding at fingerprinting services to aliens covered by that CORRECTIONS section if the Attorney General requires their the end the following: SEC. ø701.¿ 901. TECHNICAL CORRECTIONS. fingerprinting in the administration of that sec- ‘‘(8) AVIATION SECURITY VIOLATIONS.— tion, and transmit the fingerprints to the De- (a) Section 114(j)(1)(D) is amended by in- Notwithstanding paragraphs (1) and (2) of partment of Justice and any other appropriate serting ‘‘Under’’ before ‘‘Secretary’’. this subsection, the maximum civil penalty (b) Section 115(c)(1) is amended— agency. The Attorney General of the United for violating chapter 449 or another require- (1) by striking ‘‘and ratify or disapprove’’; States shall cooperate with the Secretary of ment under this title administered by the and State to carry out this paragraph. Under Secretary of Transportation for Secu- (2) by striking ‘‘security’’ the second place (d) EFFECTIVE DATE.—Not later than 120 days rity is $10,000, except that the maximum after the date of enactment of this Act, the At- it appears and inserting ‘‘Security’’. civil penalty is $25,000 in the case of a person (c) Section 40109(b) is amended by striking torney General shall promulgate regulations to operating an aircraft for the transportation ‘‘40103(b)(1) and (2), 40119, 44901, 44903, 44906, implement the amendments made by this section. of passengers or property for compensation and 44935—44937’’ and inserting ‘‘40103(b)(1) The Attorney General may not interrupt or pre- (except an airman serving as an airman).’’. vent the training of any person described in sec- and (2) and 40119’’. (m) Section 46301(d)(2) is amended— (d) Section 44901(a) is amended by inserting tion 44939(a)(1) of title 49, United States Code, (1) by striking ‘‘46302, 46303,’’ in the first ‘‘or, in the case of United States mail, by an who commenced training on aircraft with a sentence; officer or employee of the United States maximum certificated takeoff weight of 12,500 (2) by striking the second sentence and in- Postal Service under standards and proce- pounds or less before, or within 120 days after, serting ‘‘The Under Secretary of Transpor- dures established by the Under Secretary,’’ the date of enactment of this Act unless the At- tation for Security may impose a civil pen- after ‘‘ Code),’’. torney General determines that the person rep- alty for a violation of section 114(l), section (e) Section 44901(e) is amended by striking resents a risk to aviation or national security. 40113, 40119, chapter 449 (except sections ‘‘subsection (b)(1)(A)’’ and inserting (e) REPORT.—Not later than 1 year after the 44902, 44903(d), 44907(a)–(d)(1)(A), ‘‘subsection (d)(1)(A)’’. date of enactment of this Act, the Secretary of 44907(d)(1)(C)–(F), 44908, and 44909), section (f) Section 44901(g)(2) is amended by strik- Transportation and the Attorney General shall 46302, 46303, or 46318 of this title, or a regula- ing ‘‘Except at airports required to enter jointly submit to the Senate Committee on Com- tion prescribed or order issued under any of into agreements under subsection (c), the’’ merce, Science, and Transportation and the those provisions.’’. and inserting ‘‘The’’. (n) Section 46301(g) is amended by striking House of Representatives Committee on Trans- (g) Section 44903 is amended— ‘‘Secretary’’ and inserting ‘‘Secretary, the portation and Infrastructure a report on the ef- (1) by striking ‘‘Administrator’’ in sub- Under Secretary of Transportation for Secu- fectiveness of the activities carried out under section (c)(3) and inserting ‘‘Under Sec- section 44939 of title 49, United States Code, as rity,’’. retary’’; and (o) Chapter 465 is amended— amended by this section, in reducing risks to (2) by redesignating the second subsection aviation and national security (1) by striking ‘‘screening’’ in the caption (h), subsection (i), and the third subsection of section 46503; and TITLE VIII—MISCELLANEOUS (h) as subsections (i), (j), and (k), respec- (2) by striking ‘‘screening’’ in the item re- SEC. 801. APPLICATIONS FOR NONLETHAL COCK- tively. lating to section 46503 in the chapter anal- PIT WEAPONS. (h) Section 44909 is amended— ysis. The Secretary of Transportation shall act ex- (1) by striking ‘‘Not later than March 16, (p) Section 47115(i) is amended by striking peditiously on any pending application by an 1991, the’’ in subsection (a)(1) and inserting ‘‘non-federal’’ each place it appears and in- air carrier seeking authority for the use of less- ‘‘The’’; and serting ‘‘non-Federal’’. than-lethal-weapons by its flight crews. (2) by inserting ‘‘of Transportation for Se- (q) Section 48107 is amended by striking SEC. 802. FAA NOTICES TO AIRMEN FDC 1/3353 curity’’ after ‘‘Under Secretary’’ in sub- ‘‘section 44912(a)(4)(A).’’ and inserting AND 2/95823. section (c)(2)(F). ‘‘section 44912(a)(5)(A).’’. (a) IN GENERAL.—The Secretary of Transpor- (i) Section 44935 is amended— (r) Sections 44903(i)(1) (as redesignated), tation— ø(1) by striking ‘‘States;’’ in subsection 44942(b), and 44943(c) are each amended by (1) shall maintain in full force and effect the (e)(2)(A)(ii) and inserting ‘‘States or a na- striking ‘‘Under Secretary for Transpor- restrictions imposed under Federal Aviation Ad- tional of the United States, as defined in sec- tation Security’’ each place it appears and ministration Notices to Airmen FDC 1/3353 and tion 1101(a)(22) of the Immigration and Na- inserting ‘‘Under Secretary’’. 2/9583 (including any local Notices to Airmen of tionality Act (8 U.S.C. 1101(a)(22));’’; and¿ (s) Section 44936 is amended by adding at similar effect or import) as those restrictions are (1) by striking ‘‘States;’’ in subsection the end the following: in effect on the date of enactment of this Act for (e)(2)(A)(ii) and inserting ‘‘States or described in ‘‘(f) PROTECTION OF PRIVACY OF APPLICANTS a period of 180 days after that date; subparagraph (C);’’; AND EMPLOYEES.—The Under Secretary shall (2) may not grant any waivers or exemptions (2) by redesignating subparagraph subsection formulate and implement procedures that from those restrictions, except as authorized by (e)(2)(C) as subparagraph (D); are designed to prevent the transmission of air traffic control for operational or safety pur- (3) by inserting after subsection (e)(2)(B) the information not relevant to an applicant’s or poses; and following: employee’s qualifications for unescorted ac- (3) shall rescind immediately any waivers or ‘‘(C) OTHER INDIVIDUALS.—An individual is cess to secure areas of an airport when that exemptions from those restrictions that are in ef- described in this subparagraph if that indi- applicant or employee is undergoing a crimi- fect on the date of enactment of this Act. vidual— nal history records check.’’.

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00069 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.101 S18PT1 S11300 CONGRESSIONAL RECORD — SENATE November 18, 2002 (t) Sections 44942(a)(1) and 44943(a) are each (The amendment is printed in today’s Sec. 907. Definitions. amended by striking ‘‘Under Secretary for RECORD under ‘‘Text of Amendments.’’) Sec. 908. Authorization of appropriations. Transportation Security’’ and inserting The bill (S. 2949), as amended, was TITLE I—AIR CARGO SECURITY ‘‘Under Secretary of Transportation for Se- read the third time and passed, as fol- SEC. 101. INSPECTION OF CARGO CARRIED curity’’. lows: ABOARD PASSENGER AIRCRAFT. (u) Subparagraphs (B) and (C) of section Section 44901(f) is amended to read as fol- 44936(a)(1) are each amended by striking S. 2949 lows: ‘‘Under Secretary of Transportation for Be it enacted by the Senate and House of Rep- ‘‘(f) CARGO.— Transportation Security’’ and inserting resentatives of the United States of America in ‘‘(1) IN GENERAL.—The Under Secretary of ‘‘Under Secretary’’. Congress assembled, Transportation for Security shall establish (v) Section 44943(c) is amended by inserting SECTION 1. SHORT TITLE; AMENDMENT OF TITLE systems to screen, inspect, or otherwise en- ‘‘and Transportation’’ after ‘‘Aviation’’. 49. sure the security of all cargo that is to be (w) Section 44942(b) is amended— (a) SHORT TITLE.—This Act may be cited as transported in— ERFORMANCE PLAN AND (1) by striking ‘‘(1) P the ‘‘Aviation Security Improvement Act’’. ‘‘(A) passenger aircraft operated by an air REPORT.—’’; (b) AMENDMENT OF TITLE 49.—Except as carrier or foreign air carrier in air transpor- (2) redesignating subparagraphs (A) and (B) otherwise expressly provided, whenever in tation or intrastate air transportation; or as paragraphs (1) and (2), respectively; and this Act an amendment or repeal is ex- ‘‘(B) all-cargo aircraft in air transpor- (3) redesignating clauses (i) and (ii) of pressed in terms of an amendment to, or a tation and intrastate air transportation. paragraph (1), as redesignated, as subpara- repeal of, a section or other provision, the ‘‘(2) STRATEGIC PLAN.—The Under Sec- graphs (A) and (B), respectively. reference shall be considered to be made to a retary shall develop a strategic plan to carry (x) The chapter analysis for chapter 449 is section or other provision of title 49, United out paragraph (1).’’. amended by inserting after the item relating States Code. SEC. 102. AIR CARGO SHIPPING. to section 44941 the following: SEC. 2. TABLE OF CONTENTS. (a) IN GENERAL.—Subchapter I of chapter ‘‘44942. Performance goals and objectives. 449, is amended by adding at the end the fol- The table of contents for this Act is as fol- ‘‘44943. Performance management plans.’’. lowing: lows: (y) Section 44944(a)(1) is amended by strik- ‘‘§ 44921. Regular inspections of air cargo Sec. 1. Short title; amendment of title 49. ing ‘‘Under Secretary of Transportation for shipping facilities Sec. 2. Table of contents. Transportation Security’’ and inserting ‘‘The Under Secretary of Transportation ‘‘Under Secretary of Transportation for Se- TITLE I—AIR CARGO SECURITY for Security shall establish a system for the curity’’. Sec. 101. Inspection of cargo carried aboard regular inspection of shipping facilities for (z) Section 106(b)(2)(B) of the Aviation and passenger aircraft. shipments of cargo transported in air trans- Transportation Security Act is amended by Sec. 102. Air cargo shipping. portation or intrastate air transportation to inserting ‘‘Under’’ before ‘‘Secretary’’. Sec. 103. Cargo carried aboard passenger air- ensure that appropriate security controls, (aa) Section 119(c) of the Aviation and craft. systems, and protocols are observed, and Transportation Security Act is amended by Sec. 104. Training program for cargo han- shall enter into arrangements with the civil striking ‘‘section 47192(3)(J)’’ and inserting dlers. aviation authorities, or other appropriate of- ‘‘section 47102(3)(J)’’. Sec. 105. Cargo carried aboard all-cargo air- ficials, of foreign countries to ensure that in- (bb) Section 132(a) of the Aviation and craft. spections are conducted on a regular basis at Transportation Security Act is amended by TITLE II—PASSENGER IDENTIFICATION shipping facilities for cargo transported in striking ‘‘12,500 pounds or more.’’ and insert- air transportation to the United States.’’. ing ‘‘more than 12,500 pounds.’’. Sec. 201. Passenger identification. (b) ADDITIONAL INSPECTORS.—The Under Mrs. HUTCHISON. Mr. President, I Sec. 202. Passenger identification Secretary may increase the number of in- ask unanimous consent that the com- verification. spectors as necessary to implement the re- mittee-reported amendments be agreed TITLE III—CIRCUMVENTION OF AIRPORT quirements of title 49, United States Code, as to; I understand that Senators SECURITY amended by this subtitle. (c) CONFORMING AMENDMENT.—The chapter HOLLINGS and MCCAIN have an amend- Sec. 301. Prohibition on unauthorized cir- analysis for chapter 449 is amended by add- ment at the desk, and I ask that the cumvention of airport security systems and procedures. ing at the end the following: amendment be considered; that the ‘‘44921. Regular inspections of air cargo ship- Hollings-Rockefeller-McCain amend- TITLE IV—BLAST RESISTANT CARGO CONTAINER TECHNOLOGY ping facilities’’. ment, which is at the desk, be consid- SEC. 103. CARGO CARRIED ABOARD PASSENGER ered and agreed to; that the substitute Sec. 401. Blast-resistant cargo container AIRCRAFT. amendment, as amended, be agreed to; technology. (a) IN GENERAL.—Subchapter I of chapter that the motions to reconsider be laid TITLE V—FLIGHT SCHOOLS 449, is further amended by adding at the end upon the table, en bloc; that the bill, as Sec. 501. Modification of requirements re- the following: amended, be read three times, passed, garding training to operate air- ‘‘§ 44922. Air cargo security and the motion to reconsider be laid craft ‘‘(a) DATABASE.—The Under Secretary of upon the table; that any statements re- TITLE VI—MISCELLANEOUS Transportation for Security shall establish Sec. 601. FAA Notice to Airmen FDC 2/0199. an industry-wide pilot program database of lating thereto be printed in the known shippers of cargo that is to be trans- RECORD, without intervening action or TITLE VII—TECHNICAL CORRECTIONS ported in passenger aircraft operated by an debate. Sec. 701. Technical corrections. air carrier or foreign air carrier in air trans- The PRESIDING OFFICER. Without TITLE VIII—NTSB AUTHORIZATION portation or intrastate air transportation. objection, it is so ordered. Sec. 801. Short title. The Under Secretary shall use the results of The committee amendments were Sec. 802. Authorization of appropriations. the pilot program to improve the known agreed to. Sec. 803. Assistance to families of pas- shipper program. ‘‘(b) INDIRECT AIR CARRIERS.— AMENDMENT NO. 4969 TO AMENDMENT NO. 4968 sengers involved in aircraft ac- ‘‘(1) RANDOM INSPECTIONS.—The Under Sec- cidents. (Purpose: To add the text of S. 2950, entitled retary shall conduct random audits, inves- Sec. 804. Relief from contracting require- ‘‘A bill To amend title 49, United States tigations, and inspections of indirect air car- ments for investigations serv- Code, to authorize appropriations for the rier facilities to determine if the indirect air ices. National Transportation Safety Board for carriers are meeting the security require- fiscal years 2003, 2004, and 2005, and for TITLE IX—CHILD PASSENGER SAFETY ments of this title. other purposes’’, as reported by the Com- Sec. 901. Short title. ‘‘(2) ENSURING COMPLIANCE.—The Under mittee on Commerce, Science, and Trans- Sec. 902. Improvement of safety of child re- Secretary may take such actions as may be portation) straints in passenger motor ve- appropriate to promote and ensure compli- The amendment (No. 4969) was agreed hicles. ance with the security standards established to. Sec. 903. Report on development of crash under this title. (The amendment is printed in today’s test dummy simulating a 10- ‘‘(3) NOTICE OF FAILURES.—The Under Sec- RECORD under ‘‘Text of Amendments.’’) year old child. retary shall notify the Secretary of Trans- Sec. 904. Requirements for installation of portation of any indirect air carrier that AMENDMENT NO. 4968 lap and shoulder belts. fails to meet security standards established (Purpose: To provide for enhanced aviation Sec. 905. Two-year extension of child pas- under this title. security, and for other purposes) senger protection education ‘‘(4) SUSPENSION OR REVOCATION OF CERTIFI- The amendment (No. 4968), in the na- grants program. CATE.—The Secretary, as appropriate, shall ture of a substitute, as amended, was Sec. 906. Grants for improving child pas- suspend or revoke any certificate or author- agreed to. senger safety programs. ity issued under chapter 411 to an indirect

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00070 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.101 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11301 air carrier immediately upon the rec- (5) security procedures for cargo placed on establish and carry out a program to require ommendation of the Under Secretary. Any all-cargo aircraft as provided in section the installation and use at airports in the indirect air carrier whose certificate is sus- 44901(f)(1)(B) of title 49, United States Code; United States of such identification pended or revoked under this subparagraph and verification technologies as the Under Sec- may appeal the suspension or revocation in (6) additional measures deemed necessary retary considers appropriate to assist in the accordance with procedures established and appropriate by the Under Secretary. screening of passengers boarding aircraft at under this title for the appeal of suspensions (c) CONFIDENTIAL INDUSTRY REVIEW AND such airports. and revocations. COMMENT.— ‘‘(b) TECHNOLOGIES EMPLOYED.—The identi- ‘‘(5) INDIRECT AIR CARRIER.—In this sub- (1) CIRCULATION OF PROPOSED PROGRAM.— fication verification technologies required as section, the term ‘indirect air carrier’ has The Under Secretary shall— part of the program under subsection (a) the meaning given that term in part 1548 of (A) propose a program under subsection (a) may include identification scanners, bio- title 49, Code of Federal Regulations. within 90 days after the date of enactment of metrics, retinal, iris, or facial scanners, or ‘‘(c) CONSIDERATION OF COMMUNITY this Act; and any other technologies that the Under Sec- NEEDS.—In implementing air cargo security (B) distribute the proposed program, on a retary considers appropriate for purposes of requirements under this title, the Under Sec- confidential basis, to those air carriers and the program. retary may take into consideration the ex- other employers to which the program will ‘‘(c) COMMENCEMENT.—If the Under Sec- traordinary air transportation needs of small apply. retary determines that the implementation or isolated communities and unique oper- (2) COMMENT PERIOD.—Any person to which of such a program is appropriate, the instal- ational characteristics of carriers that serve the proposed program is distributed under lation and use of identification verification those communities.’’. paragraph (1) may provide comments on the technologies under the program shall com- mence as soon as practicable after the date (b) ASSESSMENT OF INDIRECT AIR CARRIER proposed program to the Under Secretary of that determination.’’. PROGRAM.—The Under Secretary of Trans- not more than 60 days after it was received. (b) CONFORMING AMENDMENT.—The chapter portation for Security shall assess the secu- (3) FINAL PROGRAM.—The Under Secretary analysis for chapter 449 is amended by add- rity aspects of the indirect air carrier pro- of Transportation shall issue a final program ing at the end the following: gram under part 1548 of title 49, Code of Fed- under subsection (a) not later than 45 days eral Regulations, and report the result of the after the last date on which comments may ‘‘44924. Passenger identification verifica- assessment, together with any recommenda- be provided under paragraph (2). The final tion’’. tions for necessary modifications of the pro- program shall contain time frames for the TITLE III—CIRCUMVENTION OF AIRPORT gram to the Senate Committee on Com- plans to be implemented by each air carrier SECURITY merce, Science, and Transportation and the or employer to which it applies. SEC. 301. PROHIBITION ON UNAUTHORIZED CIR- House of Representatives Committee on (4) SUSPENSION OF PROCEDURAL NORMS.— CUMVENTION OF AIRPORT SECU- Transportation and Infrastructure within 45 Neither chapter 5 of title 5, United States RITY SYSTEMS AND PROCEDURES. days after the date of enactment of this Act. Code, nor the Federal Advisory Committee (a) PROHIBITION.—Section 46503 is amend- The Under Secretary may submit the report Act (5 U.S.C. App.) shall apply to the pro- ed— and recommendations in classified form. gram required by this section. (1) by inserting ‘‘(a) INTERFERENCE WITH (c) REPORT TO CONGRESS ON RANDOM AU- TITLE II—PASSENGER IDENTIFICATION SECURITY SCREENING PERSONNEL.—’’ before DITS.—The Under Secretary of Transpor- ‘‘An individual’’; and SEC. 201. PASSENGER IDENTIFICATION. (2) by adding at the end the following new tation for Security shall report to the Sen- (a) IN GENERAL.—Subchapter I of chapter subsection: ate Committee on Commerce, Science, and 449, as amended by title II of this Act, is fur- ‘‘(b) UNAUTHORIZED CIRCUMVENTION OF SE- Transportation and the House of Representa- ther amended by adding at the end the fol- CURITY SYSTEMS AND PROCEDURES.—An indi- tives Committee on Transportation and In- lowing: frastructure on random screening, audits, vidual in an area within a commercial serv- ‘‘§ 44923. Passenger identification and investigations of air cargo security pro- ice airport in the United States who inten- ‘‘(a) IN GENERAL.—Not later than 180 days grams based on threat assessments and other tionally circumvents, in an unauthorized after the date of enactment of the Aviation relevant information. The report may be manner, a security system or procedure in Security Improvement Act, the Under Sec- submitted in classified form. the airport shall be fined under title 18, im- retary of Transportation for Security, in (d) AUTHORIZATION OF APPROPRIATIONS.— prisoned for not more than 10 years, or consultation with the Administrator of the There are authorized to be appropriated to both.’’. Federal Aviation Administration, appro- the Secretary of Transportation such sums (b) CONFORMING AND CLERICAL AMEND- priate law enforcement, security, and ter- as may be necessary to carry out this sec- MENTS.— rorism experts, representatives of air car- tion. (1) The section heading of that section is riers and labor organizations representing amended to read as follows: (e) CONFORMING AMENDMENT.—The chapter individuals employed in commercial avia- analysis for chapter 449, as amended by sec- ‘‘§ 46503. Interference with security screening tion, shall develop protocols to provide guid- tion 102, is amended by adding at the end the personnel; unauthorized circumvention of ance for detection of false or fraudulent pas- following: security systems or procedures’’. senger identification. The protocols may ‘‘44922. Air cargo security’’. consider new technology, current identifica- (2) The chapter analysis for chapter 465 is SEC. 104. TRAINING PROGRAM FOR CARGO HAN- tion measures, training of personnel, and amended by striking the item relating to DLERS. issues related to the types of identification section 46503 and inserting the following: The Under Secretary of Transportation for available to the public. ‘‘46503. Interference with security screening Security shall establish a training program ‘‘(b) AIR CARRIER PROGRAMS.—Within 60 personnel; unauthorized cir- for any persons that handle air cargo to en- days after the Under Secretary issues the cumvention of security systems sure that the cargo is properly handled and protocols under subsection (a) in final form, or procedures’’. safe-guarded from security breaches. the Under Secretary shall provide them to TITLE IV—BLAST RESISTANT CARGO SEC. 105. CARGO CARRIED ABOARD ALL-CARGO each air carrier. The Under Secretary shall CONTAINER TECHNOLOGY AIRCRAFT. establish a joint government and industry SEC. 401. BLAST-RESISTANT CARGO CONTAINER (a) IN GENERAL.—The Under Secretary of council to develop recommendations on how TECHNOLOGY. Transportation for Security shall establish a to implement the protocols. The Under Sec- Not later than 6 months after the date of program requiring that air carriers oper- retary shall report to the Senate Committee enactment of this Act, the Under Secretary ating all-cargo aircraft have an approved on Commerce, Science, and Transportation of Transportation for Security, and the Ad- plan for the security of their air operations and the House of Representatives Committee ministrator of the Federal Aviation Admin- area, the cargo placed aboard such aircraft, on Transportation and Infrastructure within istration, shall jointly submit a report to and persons having access to their aircraft 1 year after the date of enactment of the Congress that— on the ground or in flight. Aviation Security Improvement Act on the (1) evaluates blast-resistant cargo con- (b) PLAN REQUIREMENTS.—The plan shall actions taken under this section.’’. tainer technology to protect against explo- include provisions for— (b) CONFORMING AMENDMENT.—The chapter sives in passenger luggage and cargo; (1) security of each carrier’s air operations analysis for chapter 449, is amended by add- (2) examines the advantages associated areas and cargo acceptance areas at the air- ing at the end the following: with this technology in preventing the dam- ports served; ‘‘44923. Passenger identification’’. age and loss of aircraft from terrorist action, (2) background security checks for all em- SEC. 202. PASSENGER IDENTIFICATION any operational impacts which may result ployees with access to the air operations VERIFICATION. (particularly added weight and costs) and area; (a) REQUIREMENT.—Subchapter I of chapter whether alternatives exist to mitigate such (3) appropriate training for all employees 449, is further amended by adding at the end impacts, and options available to pay for and contractors with security responsibil- the following: this technology; and ities; ‘‘§ 44924. Passenger identification verifica- (3) provides recommendations on what fur- (4) appropriate screening of all flight crews tion ther action, if any, should be taken with re- and persons transported aboard all-cargo air- ‘‘(a) PROGRAM REQUIRED.—The Under Sec- spect to the use of blast-resistant cargo con- craft; retary of Transportation for Security may tainers on passenger aircraft.

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.102 S18PT1 S11302 CONGRESSIONAL RECORD — SENATE November 18, 2002 TITLE V—FLIGHT SCHOOLS frastructure a report on the effectiveness of (1) by striking ‘‘Not later than March 16, SEC. 501. MODIFICATION OF REQUIREMENTS RE- the activities carried out under section 44939 1991, the’’ in subsection (a)(1) and inserting GARDING TRAINING TO OPERATE of title 49, United States Code, as amended ‘‘The’’; and AIRCRAFT. by this section, in reducing risks to aviation (2) by inserting ‘‘of Transportation for Se- (a) ALIENS COVERED BY WAITING PERIOD.— and national security. curity’’ after ‘‘Under Secretary’’ in sub- Subsection (a) of section 44939 is amended— TITLE VI—MISCELLANEOUS section (c)(2)(F). (1) by resetting the text of subsection (a) SEC. 601. FAA NOTICE TO AIRMEN FDC 2/0199. (h) Section 44935 is amended— after ‘‘(a) WAITING PERIOD.—’’ as a new para- (1) by striking ‘‘States;’’ in subsection (a) IN GENERAL.—The Secretary of Trans- graph 2 ems from the left margin; (e)(2)(A)(ii) and inserting ‘‘States or de- (2) by striking ‘‘A person’’ in that new portation— (1) shall maintain in full force and effect scribed in subparagraph (C);’’; paragraph and inserting ‘‘(1) IN GENERAL.—A (2) by redesignating subparagraph sub- person’’; the restrictions imposed under Federal Avia- tion Administration Notice to Airmen FDC section (e)(2)(C) as subparagraph (D); (3) by redesignating paragraphs (1) and (2) (3) by inserting after subsection (e)(2)(B) as subparagraphs (A) and (B), respectively; 2/0199 (including any local Notices to Airmen of similar effect or import), as those restric- the following: (4) by striking ‘‘any aircraft having a max- ‘‘(C) OTHER INDIVIDUALS.—An individual is imum certificated takeoff weight of 12,500 tions are in effect on the date of enactment of this Act, for a period of 180 days after that described in this subparagraph if that indi- pounds or more’’ and inserting ‘‘an aircraft’’; vidual— (5) by striking ‘‘paragraph (1)’’ in para- date; (2) shall rescind immediately any waivers ‘‘(i) is a national of the United States (as graph (1)(B), as redesignated, and inserting defined in section 101(a)(22) of the Immigra- ‘‘subparagraph (A)’’; and or exemptions from those restrictions that are in effect on the date of enactment of this tion and Nationality Act (8 U.S.C. (6) by adding at the end the following: 1101(a)(22))); ‘‘(2) EXCEPTION.—The requirements of para- Act; and (3) may not grant any waivers or exemp- ‘‘(ii) was born in a territory of the United graph (1) shall not apply to an alien who— States; ‘‘(A) has earned a Federal Aviation Admin- tions from those restrictions, except— (A) as authorized by air traffic control for ‘‘(iii) was honorably discharged from serv- istration type rating in an aircraft; or ice in the Armed Forces of the United ‘‘(B) holds a current pilot’s license or for- operational or safety purposes; (B) for operational purposes of an event, States; or eign equivalent commercial pilot’s license ‘‘(iv) is an alien lawfully admitted for per- that permits the person to fly an aircraft stadium, or other venue, including (in the case of a sporting event) equipment or parts, manent residence, as defined in section with a maximum certificated takeoff weight 101(a)(20) of the Immigration and Nationality of more than 12,500 pounds as defined by the transport of team members, officials of the governing body and immediate family mem- Act and was employed to perform security International Civil Aviation Organization in screening services at an airport in the Annex 1 to the Convention on International bers of team members and officials to and from the event, stadium, or other venue; United States on the date of enactment of Civil Aviation.’’. the Aviation and Transportation Security (b) COVERED TRAINING.—Section 44936(c) is (C) for broadcast coverage for any broad- Act (Public Law 107–71).’’; amended to read as follows: cast rights holder; (4) by inserting ‘‘and’’ after the semicolon ‘‘(c) COVERED TRAINING.— (D) for safety and security purposes of the in subsection (e)(2)(A) (iii); ‘‘(1) IN GENERAL.—For purposes of sub- event, stadium, or other venue; or (5) by striking ‘‘establish; and’’ in sub- section (a), training includes in-flight train- (E) to operate an aircraft in restricted air- section (e)(2)(A)(iv) and inserting ing, training in a simulator, and any other space to the extent necessary to arrive at or ‘‘establish.’’; form or aspect of training. depart from an airport using standard air (6) by striking subsection (e)(2)(A)(v); ‘‘(2) EXCEPTION.—For the purposes of sub- traffic procedures. (7) by adding at the end of subsection (f)(1) section (a), training does not include class- (b) WAIVERS.—Beginning no earlier than the following: room instruction (also known as ground 180 days after the date of enactment of this ‘‘(E) The individual shall be able to dem- training), which may be provided to an alien Act, the Secretary may modify or terminate onstrate daily a fitness for duty without any during the 45-day period applicable to the such restrictions, or issue waivers or exemp- impairment due to illegal drugs, sleep depri- alien under that subsection.’’. tions from such restrictions, if the Secretary (c) PROCEDURES.— promulgates, after public notice and an op- vation, medication, or alcohol.’’; and (1) IN GENERAL.—Not later than 30 days portunity for comment, a rule setting forth (8) by redesignating the second subsection after the date of enactment of this Act, the the standards under which the Secretary (i) as subsection (k). Attorney General shall promulgate regula- may grant a waiver or exemption. Such (i) Section 44936(a)(1)(A) is amended by tions to implement section 113 of the Avia- standards shall provide a level of security at striking ‘‘Transportation Security,,’’ and in- tion and Transportation Security Act. least equivalent to that provided by the serting ‘‘Security,’’. (2) USE OF OVERSEAS FACILITIES.—In order waiver policy applied by the Secretary as of (j) Section 44940 is amended— to implement the amendments made to sec- the date of enactment of this Act. (1) by striking ‘‘Federal law enforcement tion 44939 of title 49, United States Code, by (c) BROADCAST CONTRACTS NOT AFFECTED.— personnel pursuant to section 44903(h).’’ in this section, United States Embassies and Nothing in this section shall be construed to subsection (a)(1)(G) and inserting ‘‘law en- Consulates that have fingerprinting capa- affect contractual rights pertaining to any forcement personnel pursuant to this title.’’; bility shall provide fingerprinting services to broadcasting agreement. (2) by inserting ‘‘FOR’’ after ‘‘RULES’’ in the aliens covered by that section if the Attor- TITLE VII—TECHNICAL CORRECTIONS caption of subsection (d)(2); and ney General requires their fingerprinting in (3) by striking subsection (d)(4) and insert- SEC. 701. TECHNICAL CORRECTIONS. the administration of that section, and ing the following: (a) Section 114(j)(1)(D) is amended by in- transmit the fingerprints to the Department ‘‘(4) FEE COLLECTION.—Fees may be col- serting ‘‘Under’’ before ‘‘Secretary’’. of Justice and any other appropriate agency. lected under this section as provided in ad- (b) Section 115(c)(1) is amended— The Attorney General of the United States vance in appropriations Acts.’’. shall cooperate with the Secretary of State (1) by striking ‘‘and ratify or disapprove’’; and (k) Section 46301(a) is amended by adding to carry out this paragraph. at the end the following: (d) EFFECTIVE DATE.—Not later than 120 (2) by striking ‘‘security’’ the second place ‘‘(8) AVIATION SECURITY VIOLATIONS.— days after the date of enactment of this Act, it appears and inserting ‘‘Security’’. Notwithstanding paragraphs (1) and (2) of the Attorney General shall promulgate regu- (c) Section 40109(b) is amended by striking this subsection, the maximum civil penalty lations to implement the amendments made ‘‘40103(b)(1) and (2), 40119, 44901, 44903, 44906, for violating chapter 449 or another require- by this section. The Attorney General may and 44935—44937’’ and inserting ‘‘40103(b)(1) not interrupt or prevent the training of any and (2) and 40119’’. ment under this title administered by the person described in section 44939(a)(1) of title (d) Section 44901(e) is amended by striking Under Secretary of Transportation for Secu- 49, United States Code, who commenced ‘‘subsection (b)(1)(A)’’ and inserting rity is $10,000, except that the maximum training on aircraft with a maximum certifi- ‘‘subsection (d)(1)(A)’’. civil penalty is $25,000 in the case of a person cated takeoff weight of 12,500 pounds or less (e) Section 44901(g)(2) is amended by strik- operating an aircraft for the transportation before, or within 120 days after, the date of ing ‘‘Except at airports required to enter of passengers or property for compensation enactment of this Act unless the Attorney into agreements under subsection (c), the’’ (except an airman serving as an airman).’’. General determines that the person rep- and inserting ‘‘The’’. (l) Section 46301(d)(2) is amended— resents a risk to aviation or national secu- (f) Section 44903 is amended— (1) by striking ‘‘46302, 46303,’’ in the first rity. (1) by striking ‘‘Administrator’’ in sub- sentence; (e) REPORT.—Not later than 1 year after section (c)(3) and inserting ‘‘Under Sec- (2) by striking the second sentence and in- the date of enactment of this Act, the Sec- retary’’; and serting ‘‘The Under Secretary of Transpor- retary of Transportation and the Attorney (2) by redesignating the second subsection tation for Security may impose a civil pen- General shall jointly submit to the Senate (h), subsection (i), and the third subsection alty for a violation of section 114(l), section Committee on Commerce, Science, and (h) as subsections (i), (j), and (k), respec- 40113, 40119, chapter 449 (except sections Transportation and the House of Representa- tively. 44902, 44903(d), 44907(a)—(d)(1)(A), tives Committee on Transportation and In- (g) Section 44909 is amended— 44907(d)(1)(C)—(F), 44908, and 44909), section

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00072 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.102 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11303 46302, 46303, or 46318 of this title, or a regula- 2003, $84,999,000 for fiscal year 2004, and SEC. 804. RELIEF FROM CONTRACTING REQUIRE- tion prescribed or order issued under any of $89,687,000 for fiscal year 2005. Such sums MENTS FOR INVESTIGATIONS SERV- those provisions.’’. shall’’. ICES. Section 1113(b) of title 49, United States (m) Section 46301(g) is amended by striking (b) EMERGENCY FUND.—Section 1118(b) of ‘‘Secretary’’ and inserting ‘‘Secretary, the Code, is amended— such title is amended by striking the second (1) by striking ‘‘Statutes;’’ in paragraph Under Secretary of Transportation for Secu- sentence and inserting the following: ‘‘In ad- rity,’’. (1)(B) and inserting ‘‘Statutes, and, for inves- dition, there are authorized to be appro- tigations conducted under section 1131, enter (n) Chapter 465 is amended— priated such sums as may be necessary to in- (1) by striking ‘‘screening’’ in the caption into such agreements or contracts without crease the fund to, and maintain the fund at, regard to any other provision of law requir- of section 46503; and a level not to exceed $3,000,000.’’. (2) by striking ‘‘screening’’ in the item re- ing competition if necessary to expedite the lating to section 46503 in the chapter anal- (c) NTSB ACADEMY.—Section 1118 of such investigation;’’; and ysis. title is amended by adding at the end the fol- (2) by adding at the end the following: (o) Section 47115(i) is amended by striking lowing: ‘‘(3) The Board, as a component of its an- ‘‘non-federal’’ each place it appears and in- ‘‘(c) ACADEMY.— nual report under section 1117, shall include serting ‘‘non-Federal’’. ‘‘(1) AUTHORIZATION.—There are authorized an enumeration of each contract for $25,000 (p) Section 48107 is amended by striking to be appropriated to the Board for necessary or more executed under this section during ‘‘section 44912(a)(4)(A).’’ and inserting expenses of the National Transportation the preceding calendar year.’’. ‘‘section 44912(a)(5)(A).’’. Safety Board Academy, not otherwise pro- TITLE IX—CHILD PASSENGER SAFETY (q) Sections 44903(i)(1) (as redesignated), vided for, $3,347,000 for fiscal year 2003, SEC. 901. SHORT TITLE. 44942(b), and 44943(c) are each amended by $4,896,000 for fiscal year 2004, and $4,995,000 This title may be cited as ‘‘Anton’s Law’’. striking ‘‘Under Secretary for Transpor- for fiscal year 2005. Such sums shall remain SEC. 902. IMPROVEMENT OF SAFETY OF CHILD tation Security’’ each place it appears and available until expended. RESTRAINTS IN PASSENGER MOTOR inserting ‘‘Under Secretary’’. ‘‘(2) FEES.—The Board may impose and col- VEHICLES. (r) Section 44936 is amended by adding at lect such fees as it determines to be appro- (a) IN GENERAL.—Not later than 12 months the end the following: priate for services provided by or through after the date of the enactment of this Act, ‘‘(f) PROTECTION OF PRIVACY OF APPLICANTS the Academy. the Secretary of Transportation shall ini- AND EMPLOYEES.—The Under Secretary shall ‘‘(3) RECEIPTS CREDITED AS OFFSETTING COL- tiate a rulemaking proceeding to establish formulate and implement procedures that LECTIONS.—Notwithstanding section 3302 of performance requirements for child re- are designed to prevent the transmission of title 31, any fee collected under this para- straints, including booster seats, for the re- information not relevant to an applicant’s or graph— straint of children weighing more than 50 employee’s qualifications for unescorted ac- ‘‘(A) shall be credited as offsetting collec- pounds. cess to secure areas of an airport when that tions to the account that finances the activi- (b) ELEMENTS FOR CONSIDERATION.—In the applicant or employee is undergoing a crimi- ties and services for which the fee is im- rulemaking proceeding required by sub- nal history records check.’’. posed; section (a), the Secretary shall— (s) Sections 44942(a)(1) and 44943(a) are each ‘‘(B) shall be available for expenditure only (1) consider whether to include injury per- amended by striking ‘‘Under Secretary for to pay the costs of activities and services for formance criteria for child restraints, in- Transportation Security’’ and inserting which the fee is imposed; and cluding booster seats and other products for ‘‘Under Secretary of Transportation for Se- ‘‘(C) shall remain available until expended. use in passenger motor vehicles for the re- curity’’. ‘‘(4) REFUNDS.—The Board may refund any straint of children weighing more than 40 (t) Subparagraphs (B) and (C) of section fee paid by mistake or any amount paid in pounds, under the requirements established 44936(a)(1) are each amended by striking excess of that required.’’. in the rulemaking proceeding; ‘‘Under Secretary of Transportation for (2) consider whether to establish perform- (d) REPORT ON ACADEMY OPERATIONS.—The Transportation Security’’ and inserting ance requirements for seat belt fit when used National Transportation Safety Board shall ‘‘Under Secretary’’. with booster seats and other belt guidance transmit an annual report to the Congress on (u) Section 44943(c) is amended by inserting devices; the activities and operations of the National ‘‘and Transportation’’ after ‘‘Aviation’’. (3) consider whether to develop a solution (v) Section 44942(b) is amended— Transportation Safety Board Academy. for children weighing more than 40 pounds (1) by striking ‘‘(1) PERFORMANCE PLAN AND SEC. 803. ASSISTANCE TO FAMILIES OF PAS- who only have access to seating positions REPORT.—’’; SENGERS INVOLVED IN AIRCRAFT with lap belts, such as allowing tethered (2) redesignating subparagraphs (A) and (B) ACCIDENTS. child restraints for such children; and as paragraphs (1) and (2), respectively; and (a) RELINQUISHMENT OF INVESTIGATIVE PRI- (4) review the definition of the term (3) redesignating clauses (i) and (ii) of ORITY.—Section 1136 of title 49, United States ‘‘booster seat’’ in Federal motor vehicle safe- paragraph (1), as redesignated, as subpara- Code, is amended by adding at the end the ty standard No. 213 under section 571.213 of graphs (A) and (B), respectively. following: title 49, Code of Federal Regulation, to deter- (w) The chapter analysis for chapter 449 is mine if it is sufficiently comprehensive. ‘‘(j) RELINQUISHMENT OF INVESTIGATIVE PRI- amended by inserting after the item relating (c) COMPLETION.—The Secretary shall com- ORITY.— to section 44941 the following: plete the rulemaking proceeding required by ‘‘(1) GENERAL RULE.—This section (other subsection (a) not later than 30 months after ‘‘44942. Performance goals and objectives than subsection (g)) shall not apply to an the date of the enactment of this Act. ‘‘44943. Performance management plans’’. aircraft accident if the Board has relin- (x) Section 44944(a)(1) is amended by strik- quished investigative priority under section SEC. 903. REPORT ON DEVELOPMENT OF CRASH ing ‘‘Under Secretary of Transportation for TEST DUMMY SIMULATING A 10- 1131(a)(2)(B) and the Federal agency to which YEAR OLD CHILD. Transportation Security’’ and inserting the Board relinquished investigative priority ‘‘Under Secretary of Transportation for Se- Not later than 120 days after the date of is willing and able to provide assistance to the enactment of this Act, the Secretary of curity’’. the victims and families of the passengers (y) Section 106(b)(2)(B) of the Aviation and Transportation shall submit to the Com- involved in the accident. mittee on Commerce, Science, and Transpor- Transportation Security Act is amended by ‘‘(2) BOARD ASSISTANCE.—If this section inserting ‘‘Under’’ before ‘‘Secretary’’. tation of the Senate and the Committee on does not apply to an aircraft accident be- Energy and Commerce of the House of Rep- (z) Section 119(c) of the Aviation and cause the Board has relinquished investiga- Transportation Security Act is amended by resentatives a report on the current schedule tive priority with respect to the accident, and status of activities of the Department of striking ‘‘section 47192(3)(J)’’ and inserting the Board shall assist, to the maximum ex- ‘‘section 47102(3)(J)’’. Transportation to develop, evaluate, and cer- tent possible, the agency to which the Board tify a commercially available dummy that (aa) Section 132(a) of the Aviation and has relinquished investigative priority in as- Transportation Security Act is amended by simulates a 10-year old child for use in test- sisting families with respect to the acci- ing the effectiveness of child restraints used striking ‘‘12,500 pounds or more.’’ and insert- dent.’’. ing ‘‘more than 12,500 pounds.’’. in passenger motor vehicles. (b) REVISION OF MOU.—Not later than 1 TITLE VIII—NTSB AUTHORIZATION SEC. 904. REQUIREMENTS FOR INSTALLATION OF year after the date of enactment of this Act, LAP AND SHOULDER BELTS. SEC. 801. SHORT TITLE. the National Transportation Safety Board (a) IN GENERAL.—Not later than 24 months This title may be cited as the ‘‘National and the Federal Bureau of Investigation after the date of the enactment of this Act, Transportation Safety Board Reauthoriza- shall revise their 1977 agreement on the in- the Secretary of Transportation shall com- tion Act of 2002’’. vestigation of accidents to take into account plete a rulemaking proceeding to amend SEC. 802. AUTHORIZATION OF APPROPRIATIONS. the amendments made by this section and Federal motor vehicle safety standard No. (a) FISCAL YEARS 2003–2005.—Section 1118(a) shall submit a copy of the revised agreement 208 under section 571.208 of title 49, Code of of title 49, United States Code, is amended— to the Committee on Transportation and In- Federal Regulations, relating to occupant (1) by striking ‘‘and’’; and frastructure of the House of Representatives crash protection, in order to— (2) by striking ‘‘such sums to’’ and insert- and the Committee on Commerce, Science, (1) require a lap and shoulder belt assembly ing the following: ‘‘$73,325,000 for fiscal year and Transportation of the Senate. for each rear designated seating position in a

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00073 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.103 S18PT1 S11304 CONGRESSIONAL RECORD — SENATE November 18, 2002 passenger motor vehicle with a gross vehicle or Indian tribe, as the case may be, under SEC. 908. AUTHORIZATION OF APPROPRIATIONS. weight rating of 10,000 pounds or less, except this section to carry out child passenger pro- There are authorized to be appropriated to that if the Secretary determines that instal- tection programs for children under the age the Secretary of Transportation such sums lation of a lap and shoulder belt assembly is of 16 years, including programs for purposes as may be necessary to carry out this title, not practicable for a particular designated as follows: including the making of grants under section seating position in a particular type of pas- ‘‘(A) To educate the public concerning the 412 of title 23, United States Code, as added senger motor vehicle, the Secretary may ex- proper use and installation of child re- by section 906. clude the designated seating position from straints, including booster seats. Mrs. HUTCHISON. Mr. President, I the requirement; and ‘‘(B) To train and retain child passenger appreciate the fact that we have now (2) apply that requirement to passenger safety professionals, police officers, fire and passed an air cargo security bill that I motor vehicles in phases in accordance with emergency medical personnel, and educators think will move the ball a long way subsection (b). concerning all aspects of the use of child re- down the road toward ensuring the (b) IMPLEMENTATION SCHEDULE.—The re- straints. safety of the traveling public and our quirement prescribed under subsection (a)(1) ‘‘(C) To provide child restraint systems, in- aviation industry. shall be implemented in phases on a produc- cluding booster seats and the hardware need- tion year basis beginning with the produc- Since the 9/11 terrorist attacks, we ed for their proper installation, to families have spent a tremendous amount of tion year that begins not later than 12 that cannot otherwise afford such systems. months after the end of the year in which ‘‘(D) To support enforcement of the child time, effort, and resources improving the regulations are prescribed under sub- restraint law concerned. our passenger aviation security sys- section (a). The final rule shall apply to all ‘‘(2) LIMITATION ON FEDERAL SHARE.—The tem. In fact, tomorrow we have a very passenger motor vehicles with a gross vehi- Federal share of the cost of a program under important deadline that will be met. cle weight rating of 10,000 pounds or less that paragraph (1) that is carried out using All of the airport screeners in our are manufactured in the third production amounts from a grant under this section country will be Federal employees who year of the implementation phase-in under may not exceed 80 percent of the cost of the have met a series of stringent require- the schedule. program. (c) REPORT ON DETERMINATION TO EX- ments, undergone mandatory training, ‘‘(e) ADMINISTRATIVE EXPENSES.—The and passed performance and written ex- CLUDE.— amount of administrative expenses under (1) REQUIREMENT.—If the Secretary deter- this section in any fiscal year may not ex- aminations. mines under subsection (a)(1) that installa- ceed the amount equal to five percent of the I am proud of the work we have done tion of a lap and shoulder belt assembly is amount available for making grants under in this area, but I am also concerned not practicable for a particular designated this section in the fiscal year. that we have been neglecting other seating position in a particular type of ‘‘(f) APPLICABILITY OF CHAPTER 1.—The pro- modes of transportation as we continue motor vehicle, the Secretary shall submit to visions of section 402(d) of this title shall to focus on passenger aircraft. 1 year the Committee on Commerce, Science, and apply to funds authorized to be appropriated ago, Congress created the Transpor- Transportation of the Senate and the Com- to make grants under this section as if such mittee on Energy and Commerce of the tation Security Administration to im- funds were highway safety funds authorized plement and oversee security on our House of Representatives a report specifying to be appropriated to carry out section 402 of the reasons for the determination. this title. highways, in our airports, on trains, (2) DEADLINE.—The report under paragraph ‘‘(g) DEFINITIONS.—In this section: and in our ports. However, until now, (1) shall be submitted, if at all, not later ‘‘(1) CHILD RESTRAINT LAW.—The term we only gave to the TSA the tools to than 30 days after the date on which the Sec- ‘child restraint law’ means a law that— do the job with respect to passenger retary issues a final rule under subsection ‘‘(A) satisfies standards established by the aviation security. (a). Secretary under Anton’s Law for the proper Last week, we finally passed the port SEC. 905. TWO-YEAR EXTENSION OF CHILD PAS- restraint of children who are over the age of security bill. Now we need to take an- SENGER PROTECTION EDUCATION 3 years or who weigh at least 40 pounds; other step toward transportation secu- GRANTS PROGRAM. ‘‘(B) prescribes a penalty for operating a Section 2003(b)(7) of the Transportation Eq- rity. While I am confident that our ef- passenger motor vehicle in which any occu- uity Act for the 21st Century (23 U.S.C. 405 pant of the vehicle who is under the age of 16 forts have dramatically improved avia- note; 112 Stat. 328) is amended by striking years is not properly restrained in an appro- tion security, we have not closed all ‘‘and 2001.’’ and inserting ‘‘through 2004.’’ priate restraint system (including seat belts, the loopholes in our air cargo oper- SEC. 906. GRANTS FOR IMPROVING CHILD PAS- booster seats used in combination with seat ations. This issue must be addressed. SENGER SAFETY PROGRAMS. belts, or other child restraints); and Twenty-two percent of all air cargo (a) IN GENERAL.—Chapter 4 of title 23, United States Code, is amended by adding at ‘‘(C) meets any criteria established by the in the United States is carried on pas- the end the following new section: Secretary under subsection (a) for purposes senger flights, but only a tiny percent- of this section. ‘‘§ 412. Grant program for improving child age of this cargo is inspected. There is ‘‘(2) PASSENGER MOTOR VEHICLE.—The term passenger safety programs no point to carefully screening every ‘passenger motor vehicle’ has the meaning piece of luggage if the cargo placed ‘‘(a) STANDARDS AND REQUIREMENTS RE- given that term in section 405(f)(5) of this GARDING CHILD RESTRAINT LAWS.—Not later title. aboard the same flight is not inspected than October 1, 2003, the Secretary shall es- ‘‘(3) STATE.—The term ‘State’ has the at all. That is why I introduced the Air tablish appropriate criteria applicable to meaning given in section 101 of this title and Cargo Security Act with my friend child restraint laws for purposes of eligi- includes any Territory or possession of the from California, Senator DIANNE FEIN- bility for grants under this section. The cri- United States.’’. STEIN. We reasoned it was pointless to teria shall be consistent with the provisions (b) CLERICAL AMENDMENT.—The table of require air passengers to wait in long of Anton’s Law. sections at the beginning of that chapter is ‘‘(b) REQUIREMENT TO MAKE GRANTS.— security lines, undergo rigorous amended by inserting after the item relating searches, which all of us have certainly ‘‘(1) IN GENERAL.—The Secretary shall to section 411 the following new item: make a grant to each State and Indian tribe had the privilege of suffering through, that, as determined by the Secretary, has a ‘‘412. Grant program for improving child pas- if we then allow packages to travel on senger safety programs.’’. child restraint law in effect on September 30, the very same flight with no inspec- 2004. SEC. 907. DEFINITIONS. tions whatsoever. Ignoring this prob- In this title: ‘‘(2) LIMITATION ON NUMBER OF GRANTS.— lem could be an invitation to disaster. Not more than one grant may be made to a (1) CHILD RESTRAINT.—The term ‘‘child re- straint’’ means any product designed to pro- My legislation was the subject of a State or Indian tribe under this section. closed-door hearing of the Aviation ‘‘(3) COMMENCEMENT.—The requirement in vide restraint to a child (including booster paragraph (1) shall commence on October 1, seats and other products used with a lap and Subcommittee. Without going into de- 2004. shoulder belt assembly) that meets applica- tails, it was apparent there are signifi- ‘‘(c) GRANT AMOUNT.—The amount of the ble Federal motor vehicle safety standards cant vulnerabilities in our existing sys- grant to a State or Indian tribe under this prescribed by the National Highway Traffic tem of air cargo security. The Trans- section shall be the amount equal to five Safety Administration. portation Security Administration is times the amount provided to the State or (2) PRODUCTION YEAR.—The term doing the best it can with limited re- Indian tribe, as the case may be, under sec- ‘‘production year’’ means the 12-month pe- sources. But clearly, legislation is re- riod between September 1 of a year and Au- tion 2003(b)(7) of the Transportation Equity quired. Act for the 21st Century (23 U.S.C. 405 note) gust 31 of the following year. in fiscal year 2003. (3) PASSENGER MOTOR VEHICLE.—The term I modified the bill in response to ‘‘(d) USE OF GRANT AMOUNTS.— ‘‘passenger motor vehicle’’ has the meaning those weaknesses and the recommenda- ‘‘(1) IN GENERAL.—A State or Indian tribe given that term in section 405(f)(5) of title 23, tions made by the Transportation Se- shall use any amount received by the State United States Code. curity Administration, as well as the

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00074 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.103 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11305 Department of Transportation Inspec- tion security. It defines circumvention passenger cabin is today. All of us want tor General. of airport security as a Federal crime. that to happen. I appreciate This bill was unanimously passed by It authorizes a study on blast-resistant everybody’s cooperation in passing this the Commerce Committee in Sep- cargo containers, and it strengthens se- very important piece of legislation. Mr. tember as part of a larger package of curity at flight schools. These nec- President, I look forward to chairing aviation security measures. Some of essary measures fine-tune the com- the Aviation Subcommittee next year, these provisions made their way into prehensive security legislation we working with Senator ROCKEFELLER, the homeland security compromise passed last year. I am pleased we have my ranking member, with whom I have draft, but air cargo security is too im- cleared this legislation, and I urge my had a great working relationship. We portant to simply wait until next year. colleagues in the House to follow suit. have passed the aviation security The bill before us will establish a Mr. President, I would make a par- measure that is the law today. We more reliable and accountable known liamentary inquiry. Am I correct in worked together to pass the port secu- shipper program, with frequent inspec- concluding that all of the necessary rity bill. tions of shipping facilities, tamper- steps and procedures have occurred to Senator ROCKEFELLER and I have a proof identification cards for employ- assure that this bill has been passed great vision for what we can do in avia- ees, and an accessible shipper database. and that Senate action on S. 2949 is tion to make our system not only se- For the first time, the Transpor- now complete? cure and safe for the traveling public, tation Security Administration will The PRESIDING OFFICER. The Sen- but also economically viable. Without have the power to revoke the license of ator is correct. an aviation industry, this country a shipper or freight forwarder whose Ms. HUTCHISON. I thank the Chair. would lose in commerce and in the practices are unsound or who has en- I appreciate the cooperation of my freedom of our people to travel. Our gaged in illegal activity. colleagues. I thank Senator REID for country is vast and we need aviation. I The bill also requires the Transpor- helping me in this wrap-up. I know he am looking forward to chairing that tation Security Administration to con- has not yet come to the floor, but I Subcommittee with Senator duct regular inspections of foreign know that he helped us in clearing this ROCKEFELLER and working to try to shipping facilities. Freight forwarders bill. This bill has been cleared by unan- make sure that we maintain an eco- will have to submit to random inspec- imous consent. It is a very important nomically viable aviation industry tions, and the TSA must also imple- step in securing our homeland. We have that is safe and secure for the traveling ment a training program for cargo pro- taken great strides to secure our air- public, and for the goods that comprise fessionals. All cargo facilities must ports and the passenger screening is our commerce. have an improved security plan. quite thorough. Everybody has to smile Mr. President, I yield the floor. While we tighten these rules and pro- when you say that, because anyone Mr. MCCAIN. Mr. President, I rise to cedures, we must be careful not to who has flown in America in the last 6 speak on S. 2949, the Aviation Security cause any economic damage to an air- months has certainly been subjected to Improvement Act. This bill builds and line industry that is already in dire a lot of scrutiny. I have certainly been improves upon work that began last straits. It is critical that the measures frisked. I have had my shoes taken off, year when Congress passed the Avia- tion and Transportation Security Act, we impose allow both passenger and all of those things that drive people ATSA, P.L. 107–71. During the 10 cargo carriers to compete on an equal crazy. But the bottom line is, we do months since that law’s enactment, footing. We drafted this bill in con- have a safer system. We got the wake- there has been a significant change in sultation with air cargo carriers and up call on 9/11 of 2001. We have taken the way aviation security is handled. the airlines. I am pleased that we have extraordinary steps to secure our coun- However, there is a long way to go gained their support, because it is im- try and our aviation system. Anyone until we achieve all our aviation secu- portant we have the regulators and the who says our system is not safer today rity goals. I believe the bill before us aviation industry working together to than it was on September 10 of 2001 ei- would make many positive steps in the make the most seamless security sys- ther has not flown or is being disingen- continuing effort to protect the na- tem possible, not only in our country uous. tion’s air transportation system. This I would like to thank Admiral Loy at but throughout the world. bill also contains the text of S. 2950, I also want to point out that the bill the Transportation Security Adminis- the National Transportation Safety before us would accomplish several tration, and certainly Secretary Mi- Board Reauthorization. other goals. These provisions have all neta and President Bush for their I want to begin by commending Sen- been approved by the Commerce Com- strong leadership in homeland and ators HUTCHISON and SNOWE for their mittee, and I thank Senators HOLLINGS transportation security. We are going work on the air cargo security issue and MCCAIN for their leadership. to do everything we can to make sure addressed in this legislation. The cargo The bill reauthorizes the National our people are safe. provisions flow directly from their bills Transportation Safety Board through The port security bill was a huge step and would bolster an aspect of aviation fiscal year 2005. I was proud to serve as in the right direction. I have one of the security that was not addressed in vice chair of the National Transpor- largest petrochemical complexes in the great detail in last year’s law. This is tation Safety Board before I came to world in Houston, TX. I want to make one area in which we can and should be the Senate. This agency investigates sure they had all the authority and re- proactive to get ahead of potential civil aviation accidents and significant sources they need to secure that port. problems or vulnerabilities. incidents in other modes of transpor- In fact, just this week, I talked to the There is a particular issue in this bill tation: railroad, highway, marine, and people from the Port of Houston, and that I want to discuss briefly. In last pipeline. The NTSB also issues safety they are taking steps on their own. We year’s security bill, we mandated that recommendations aimed at preventing need to help them at the Federal level airport screeners had to be U.S. citi- future accidents. This reauthorization to improve security, but they are not zens. While imposing that requirement also strengthens performance require- waiting for us to act. They know the was an understandable impulse, it had ments for booster seats for children importance of this issue because they some negative ramifications that were weighing more than 50 pounds. The are on the front lines, hearing of new not clear at the time. For example, NTSB’s important work is completed threats from just re- American Samoans are not now eligi- on a very reasonable budget. I am cently. So they are battening down the ble to be screeners because they are pleased to support this reauthorization hatches. considered nationals, not citizens. bill. We are going to do the same thing S. 2949 includes a provision to allow The bill before us also makes tech- with air cargo in the bill we just nationals of the U.S., honorably dis- nical corrections to last year’s Avia- passed. If the House does come back charged veterans of the U.S. military, tion and Transportation Security Act. this year, I will urge my colleagues in and lawful permanent residents who It allows TSA to use biometric identi- the House to look at this bill and try were employed as airport security fication technologies such as retina to work with us to make sure the belly screeners at the time of ATSA’s enact- scans and fingerprints to assist in avia- of the airplane is just as safe as the ment, to be eligible to compete for jobs

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00075 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.137 S18PT1 S11306 CONGRESSIONAL RECORD — SENATE November 18, 2002 as federal security screeners. The pro- strong personal opposition to abortion personal views on abortion and on ra- vision would not require that these in- to Roe v. Wade, to the clinic access cial discrimination in religious institu- dividuals be hired, but give TSA the law. He has testified before the Con- tions from his decisions as a judge, and discretion to hire them if they meet all gress against the Violence Against that he will act to uphold existing law. the other statutory requirements con- Women Act on the grounds that it was I trust that he will not seek to cir- cerning the hiring of screeners. This is unconstitutional. cumvent the doctrine of stare decisis a fair and reasonable expansion of the Each of these issues was explored to and that he will not work to change existing provision. some degree at his hearing before the the law through activism on the bench. A similar provision was added to the Judiciary Committee and in follow up There are already admirers who pre- Homeland Security bill. However, the written questions. No one doubts that dict that Professor McConnell is des- provision in the Homeland Security Professor McConnell is personable and tined for a short stop at the 10th Cir- bill only expands the definition to in- intelligent. No one doubts that he is an cuit on the way to a Supreme Court clude U.S. nationals. It would still ex- outstanding and provocative professor. nomination. I do not speculate about clude an important segment of the pop- I see why so many of his law professor such things. Professor McConnell has ulation-legal permanent residents. colleagues like him and have endorsed yet to create a record on the 10th Cir- LPRs as they are known, can join the his nomination. But the Judiciary cuit. I mention it only to note that no military and risk giving up their lives Committee also received letters from one should confuse my support of Pro- fighting for our country. Yet, to date, hundreds of law professors reminding fessor McConnell’s nomination to the they cannot be hired as security us that the burden of persuasion on 10th Circuit as an endorsement or ap- screeners. This is wrong, and we should lifetime judicial appointments should proval for any other position. correct it now. be on the nominee, as well as a recent f In addition, S. 2949 would reauthorize letter signed by hundreds of law profes- IN REMEMBRANCE OF PAUL the National Transportation Safety sors opposing confirmation of Professor WELLSTONE Board. The NTSB is an independent McConnell. Federal agency charged with inves- The question I was left with after his Ms. SNOWE. Mr. President, like all tigating every civil aviation accident nomination hearing was whether we of my colleagues, I was shocked and in the United States. It also inves- had witnessed another confirmation deeply saddened by the tragic accident tigates significant accidents in the conversion. Stated another way, I re- that claimed the life of Senator Wellstone, his wife Sheila, their daugh- other modes of transportation— main very concerned that Professor ter Marcia, two pilots, and three mem- railorad, highway, marine, and pipe- McConnell may turn out to be an activ- bers of Paul’s staff. My heart goes out line—and issuing safety recommenda- ist on the 10th Circuit. to the families and they will remain in tions intended to prevent future acci- For instance, I still have a hard time reading his writing on the actions of my thoughts and prayers. dents. We are all aware of the impor- It was always a privilege working Federal District Court Judge John tant role the NTSB plays in the safety with Senator Wellstone. In fact, one of Sprizzo in acquitting abortion pro- of our transportation system, and it is the last images I have of him was in important that we move ahead with testers as anything other than praise the final days of the session, when I en- this reauthorizing legislation. for the extra-legal behavior of both the countered him coming up the aisle in A key element of this bill involves defendants and the judge. Even though the Senate Chamber after a vote with authorization for the NTSB’s new Professor McConnell has now been con- his typical boundless energy, warm Training Academy, which will be the firmed, I continue to be concerned that smile, and friendly greeting. He was a centerpiece of its teaching and training he appeared to commend a judge and compassionate, honorable man—and it of transportation accident investiga- regard him as a hero for not following was obvious to all of us that, together, tors worldwide. It also will provide the law. Paul and Sheila made an extraordinary state-of-the-art classrooms and labora- I find his responses regarding the Vi- and loving team. tory space for accident investigation. olence Against Women Act convenient. As a public servant, Senator Well- This is especially important with the I see his refusal to take responsi- stone’s most enduring legacy will sure- advent of new technology that is being bility for his harsh criticism of the Su- ly be his career of conscience in elec- used to build, fuel, and more all modes preme Court’s decision in the Bob tive office. With his unwavering pas- of transportation. Jones case as an attempt to distance sion and integrity, he was highly re- The legislation also would streamline himself from his prior approval of the spected and will be long remembered. the NTSB’s procurement process dur- ability of religious institutions to dis- With both of us hailing from north- ing accident investigations and allow criminate on the basis of race, even if ern border States, we shared the same the Board to transfer its family assist- they are receiving benefits from the perspective on a number of issues such ance responsibilities to any Federal Government. as the reimportation of prescription agency that takes over an investiga- At his hearing, and in follow-up writ- drugs, and we worked together over the tion, such as the FBI, provided that the ten questions, Professor McConnell years to ensure the critical low-income other agency is willing and able to han- sought to assure us that he under- energy program, LIHEAP, would be dle those duties. Finally the bill would stands the difference between his role there for the people of Maine and Min- reauthorize the NTSB’s funding for its as a teacher and advocate and his fu- nesota. day to day activities. ture role as a judge. He assured us that I was proud to serve with him on the The importance of the agency is well he respects the doctrine of stare deci- Small Business Committee where I saw known to all. I urge the support of this sis, and that as a Federal appeals court his diligence and tenaciousness first- bill. judge, he will be bound to follow Su- hand, and to work with him on issues f preme Court precedent. of importance to our veterans such as a Although many of President Clin- bill establishing July 16 as a National THE CONFIRMATION OF MICHAEL ton’s nominees who assured the Senate Day of Remembrance for Atomic Vet- McCONNELL TO THE 10TH CIRCUIT of these same things when they were erans, as well as a measure providing Mr. LEAHY. Mr. President, last Fri- nominated were discredited and not for increases in veterans spending. I day, the Senate approved the nomina- considered, this nomination has moved was also pleased to help champion his tion of Michael McConnell to and been approved. and Senator DOMENICI’s legislation to United States Court of Appeals for the I reluctantly supported this nomina- create mental health parity—a perfect Tenth Circuit. As a professor, first at tion to the 10th Circuit based on Pro- illustration of his compassion and the the University of Chicago, and then at fessor McConnell’s assurances. I trust causes for which he felt duty-bound to the University of Utah, Mr. McConnell that he will not seek to undermine fight. has been a strong voice for reexam- women’s reproductive rights derived Indeed, all of us and, most impor- ining First Amendment jurisprudence from the Constitution and articulated tantly, the people of could of Free Exercise Clause and the Estab- in Roe v. Wade. I trust that as an ap- count on Paul to stand up for his deep- lishment Clause. He has expressed peals court judge he will divorce his ly held beliefs, speaking always from

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00076 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.118 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11307 the courage of his convictions. He per- cies on the Sixth Circuit were perpet- On February 9, 2000, I was the President’s sonified the notion of being able to dis- uated during the last several years of first judicial nominee in that calendar year. agree—even vehemently—without the Clinton administration when the And then the waiting began. . . . being disagreeable. Republican majority refused to hold At the time my nomination was pending, despite lower vacancy rates than the 6th Cir- In fact, I cannot help but recall that hearings on the nominations of Judge cuit, in calendar year 2000, the Senate con- when Senators were offering their ap- , Kathleen McCree Lewis firmed circuit nominees to the 3rd, 9th and preciation to Senator HELMS upon the and Professor Kent Markus to vacan- Federal Circuits. . . . No 6th circuit nominee occasion of his retirement, Senator cies in the Sixth Circuit. had been afforded a hearing in the prior two Wellstone offered very heartfelt and One of those seats has been vacant years. Of the nominees awaiting a Judiciary touching words. He acknowledged that since 1995, the first term of President Committee hearing, there was no circuit he and Senator HELMS often differed on Clinton. Judge Helene White of the with more nominees than the 6th Circuit. the issues. But Paul respected the pu- With high vacancies already impacting the Michigan Court of Appeals was nomi- 6th Circuit’s performance, and more vacan- rity of the convictions of his colleague nated in January 1997 and did not re- cies on the way, why, then, did my nomina- across the aisle—and he wished him ceive a hearing on her nomination dur- tion expire without even a hearing? To their well. ing the more than 1,500 days before her credit, Senator DEWINE and his staff and Now, it is who has nomination was withdrawn by Presi- Senator HATCH’s staff and others close to left our midst, and the entire Senate dent Bush in March of last year. Judge him were straight with me. family shares in the sense of loss. We White’s nomination may have set an Over and over again they told me two things: 1. There will be no more confirma- have a desk that was once filled with unfortunate record. Paul’s irrepressible spirit, and it tions to the 6th Circuit during the Clinton Her nomination was pending without administration[.] 2. This has nothing to do strikes me that Paul Wellstone per- a hearing for over four years—51 with you; don’t take it personally—it doesn’t ished in pursuit of the very ideal he months. She was first nominated in matter who the nominee is, what credentials held to be so noble and worthy—public January 1997 and renominated and re- they may have or what support they may service. nominated through March of last year have—see item number 1. . . . This institution is always at its when President Bush chose to with- The fact was, a decision had been made to hold the vacancies and see who won the pres- strongest when it is populated with draw her nomination. Under Repub- men and women of Paul Wellstone’s au- idential election. With a Bush win, all those lican control, the Committee averaged seats could go to Bush rather than Clinton thenticity. We are diminished by his hearings on only about eight Courts of passing, and he will be missed. nominees. Appeals nominees a year and, in 2000, As Professor Markus identified, some f held only five hearings on Courts of on the other side of the aisle held these CONFIRMATION OF JOHN ROGERS Appeals nominees all year. seats open for years for another Presi- Mr. LEAHY. Mr. President, last week In contrast, Professor Rogers was the dent to fill, instead of proceeding fairly the Senate voted to confirm the nomi- fifteenth Court of Appeals nominee of on the consensus nominees pending be- nation of John Rogers who is nomi- President Bush to receive a hearing by fore the Senate. Some were unwilling nated to the U.S. Court of Appeals for the Committee in less than a year to move forward, knowing that retire- the Sixth Circuit. By confirming this since the reorganization of the Senate ments and attrition would create four nomination, we are trying to move for- Judiciary Committee. In 16 months we additional seats that would arise natu- ward in providing help to the Sixth Cir- held hearings on 20 circuit court nomi- rally for the next President. That is cuit. Earlier this year, we held a hear- nations. Professor Rogers was being why there are now so many vacancies ing for Judge Julia Gibbons to a seat treated much better than Kathleen on the Sixth Circuit. on the Sixth Circuit, who was con- McCree Lewis, a distinguished African Had Republicans not blocked Presi- firmed by the Senate on July 29, 2002 American lawyer from a prestigious dent Clinton’s nominees to this court, by a vote of 95 to 0. With last night’s Michigan law firm. She never had a if the three Democratic nominees had vote, the Democratic-led Senate con- hearing on her 1999 nomination to the been confirmed and President Bush ap- firmed the 15th judge to our federal Sixth Circuit during the years it was pointed the judges to the other vacan- Courts of Appeal and our 98th judicial pending before it was withdrawn by cies on the Sixth Circuit, that court nominee since the change in Senate President Bush in March 2001. would be almost evenly balanced be- majority in July 2001. I have placed a Professor Kent Markus, another out- tween judges appointed by Republicans separate statement in the RECORD on standing nominee to a vacancy on the and Democrats. That is what Repub- the occasion of confirming that many Sixth Circuit that arose in 1999, never lican obstruction was designed to of this President’s judicial nominees in received a hearing on his nomination avoid, balance. The same is true of a just 16 months. before his nomination was returned to number of other circuits, with Repub- Republicans often say that almost President Clinton without action in licans benefitting from their obstruc- half of the seats on the Sixth Circuit December 2000. While Professor tionist practices of the preceding six are vacant but what they fail to ac- Markus’ nomination was pending, his and a half years. This combined with knowledge is that most of those vacan- confirmation was supported by individ- President Bush’s refusal to consult cies arose during the Clinton adminis- uals of every political stripe, including with Democratic Senators about these tration and before the change in major- 14 past presidents of the Ohio State Bar matters is particularly troubling. ity last summer. None, zero, not one of Association and more than 80 Ohio law Long before some of the recent voices the Clinton nominees to those current school deans and professors. of concern were raised about the vacan- vacancies on the Sixth Circuit received Others who supported Professor cies on that court, Democratic Sen- a hearing by the Judiciary Committee Markus include prominent Ohio Repub- ators in 1997, 1998, 1999, and 2000 im- under Republican leadership. With the licans, including Ohio Supreme Court plored the Republican majority to give confirmation of Professor Rogers, we Chief Justice Thomas Moyer, Ohio Su- the Sixth Circuit nominees hearings. have reduced the number of vacancies preme Court Justice Evelyn Stratton, Those requests, made not just for the on that court to six, but four of those Congresswoman DEBORAH PRYCE, and sake of the nominees but for the sake remaining lack home-State consent Congressman DAVID HOBSON, the Na- of the public’s business before the due to the President’s failure to ad- tional District Attorneys Association, court, were ignored. Numerous articles dress the legitimate concerns of Sen- and virtually every major newspaper in and editorials urged the Republican ators in that circuit whose nominees the state. leadership to act on those nominations. were blocked by Republicans during In his testimony to the Senate in Fourteen former presidents of the the period of Republican control of the May, Professor Markus summarized his Michigan State Bar pleaded for hear- Senate. experience as a Federal judicial nomi- ings on those nominations. The former The Sixth Circuit vacancies are a nee, demonstrating how the ‘‘history Chief Judge of the Sixth Circuit, Judge prime and unfortunate legacy of the regarding the current vacancy backlog Gilbert Merritt, wrote to the Judiciary past partisan obstructionist practices is being obscured by some.’’ Here are Committee Chairman years ago to ask under Republican leadership. Vacan- some of things he said: that the nominees get hearings and

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00077 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.116 S18PT1 S11308 CONGRESSIONAL RECORD — SENATE November 18, 2002 that the vacancies be filled. The Chief 33, more than doubling. Democrats his academic notion that a judge Judge noted that, with four vacancies, have broken with that recent history should diverge from precedent when he the four vacancies that arose in the of inaction. In the last 16 months, we anticipates that the Supreme Court Clinton Administration, the Sixth Cir- have held 26 judicial nominations hear- may eventually do so. cuit ‘‘is hurting badly and will not be ing, including 20 hearings for circuit Professor Rogers has assured us that able to keep up with its work load due court nominees. he would follow precedent and not to the fact that the Senate Judiciary Professor Roger’s nomination was overrule higher courts, despite his Committee has acted on none of the also the fourth judicial nomination clear advocacy of that position in his nominations to our Court.’’ He pre- from Kentucky to be considered by the writings as a scholar. He has sworn dicted: ‘‘By the time the next Presi- Committee in its first year, and the under oath that he would not follow dent in inaugurated, there will be six eighth nomination from Kentucky the approach that he long advocated. vacancies on the Court of Appeals. Al- overall. There are no judicial vacancies As with President Bush’s Eighth Cir- most half of the Court will be vacant left in the State. cuit nominee , who was and will remain so for most of 2001 due Professor Rogers of the University of confirmed earlier this summer, I am to the exigencies of the nomination Kentucky College of Law has experi- hopeful that Professor Rogers will be a process. Although the President has ence as an appellate litigator and a person of his word: that he will follow nominated candidates, the Senate has teacher, and is a prolific author on a the law and not seek out opportunities refused to take a vote on any of them.’’ number of difficult legal topics. It is to overturn precedent or decide cases However, no Sixth Circuit hearings important to note that aspects of his in accord with his private beliefs rath- were held in the last three full years of record raise concerns. As a professor, er than his obligations as a judge. the Clinton Administration (almost his he has been a strong proponent of judi- I would also note that during his ten- entire second presidential term), de- cial activism. No Clinton judicial ure at the Justice Department, Pro- spite these pleas. Not one. Since the nominee with such published views fessor Rogers appeared to support an shift in majority last summer, the situ- would ever have been confirmed during expansive view of the power of the Ex- ecutive Branch vis-a-vis Congress. I am ation has been exacerbated further as the period of Republican control. In his hopeful, however, that Professor Rog- two additional vacancies have arisen. writings, Professor Rogers has called The Committee’s April 25th hearing on lower court judges to reverse higher ers will recognize the important dif- on the nomination of Judge Gibbons to court precedents, if the lower court ference between being a zealous advo- the Sixth Circuit was the first hearing judge thinks the higher court will ulti- cate for such positions and being a fair on a Sixth Circuit nomination in al- mate reverse its own precedent. Such and impartial judge sworn to follow most five years, even though three out- an activist approach is inappropriate in precedents and the law. When he was asked to describe any standing, fair-minded individuals were the lower Federal courts. The Supreme work he had handled which was not nominated to the Sixth Circuit by Court itself has noted that lower courts should follow Supreme Court popular but was nevertheless impor- President Clinton and pending before tant, he said that the case which came precedent and not anticipate future de- the Committee for anywhere from one to mind was one in which he defended cisions in which the Supreme Court year to over four years. Judge Gibbons the CIA against a lawsuit seeking dam- may exercise its prerogative to over- was confirmed by the Senate on July ages for the CIA’s illegal opening of the rule itself. 29, 2002, by a vote of 95 to 0. We did not private mail of tens of thousands of stop there, but proceeded to hold a Prognostications about how the Su- preme Court will rule often turns out U.S. citizens during this 1970s or 1980s. hearing on a second Sixth Circuit Those were dark days of overreaching nominee, Professor Rogers, just a few to be wrong. For example, some pre- dicted that the Supreme Court would by the intelligence community against short months later in June. the rights of ordinary law-abiding overturned Miranda, but the Supreme Just as we held the first hearing on a American citizens. Although times Court, in an opinion by Chief Justice Sixth Circuit nominee in many years, have changed forever since the tragic Rehnquist, declined to do so. Similarly, the hearing we held on the nomination events of September 11, I think it is people like Professor Rogers have of Judge Edith Clement to the Fifth important that the American people called on the Supreme Court to over- Circuit last year was the first on a have access to judges who will uphold turn Roe v. Wade, but thus far the Su- Fifth Circuit nominee in seven years the Constitution against government preme Court has rejected calls to re- and she was the first new appellate excesses while also giving acts of Con- verse itself in this important decision judge confirmed to that Court in six gress the presumption of constitu- regarding the rights of women and has years. tionality to which our laws are entitled When we held a hearing on the nomi- resisted calls to return this country to by precedent. nation of Judge to the the awful period of dangerous back Professor Rogers has repeatedly as- Tenth Circuit last year, it was the first alley abortions. sured the Committee, however, that he hearing on a Tenth Circuit nominee in Professor Rogers also suggested in would follow precedent and not seek to six years and he was the first new ap- his academic writings that lower court overturn decisions affecting the pri- pellate judge confirmed to that Court judges should consider the political vacy of women or any other decision of in six years. When we held the hearing views of Justices in making the deter- the Supreme Court. Senator mination of when lower courts should on the nomination of Judge Roger MCCONNELL has also personally assured Gregory to the Fourth Circuit last overrule Supreme Court precedent. In me that Professor Rogers will not be year, it was the first hearing on a his answers to the Committee, Pro- an activist but is sincerely committed Fourth Circuit nominee in three years fessor Rogers acknowledged that he to following precedent if he is con- and he was the first appellate judge had taken that position but he now firmed. I sincerely hope that his deci- confirmed to that court in three years. says that lower courts should not look sions on the Sixth Circuit do not prove A number of vacancies continue to to the views of Justices expressed in us wrong. exist on many Courts of Appeals, in speeches or settings other than their f large measure because the recent Re- opinions. Also, in his answers to the publican majority was not willing to Committee, Professor Rogers said he LOCAL LAW ENFORCEMENT ACT hold hearings or vote on half—56 per- would give great weight to Supreme OF 2001 cent—of President Clinton’s Courts of Court dicta, or arguments that are not Mr. SMITH of Oregon. Mr. President, Appeals nominees in 1999 and 2000 and part of the holding of the case. I would I rise today to speak about hate crimes was not willing to confirm a single like to take this opportunity to urge legislation I introduced with Senator judge to the Courts of Appeals during him to take seriously the obligation of KENNEDY in March of last year. The the entire 1996 session. a judge to follow precedent and the Local Law Enforcement Act of 2001 From the time the Republicans took holdings of the Supreme Court, rather would add new categories to current over the Senate in 1995 until the reor- than to look to dicta for views that hate crimes legislation sending a sig- ganization of the Committee last July, may support his own personal views. I nal that violence of any kind is unac- circuit vacancies increased from 16 to would also urge him resist acting on ceptable in our society.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00078 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.123 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11309 I would like to describe a terrible ing to experts, delaying the onset and more than 4 million, with an additional 19 crime that occurred April 29, 2002 in In- progression of Alzheimer’s for even 5 million family members suffering the emo- dianapolis, IN. A self-proclaimed neo- years could save as much as $50 billion tional and financial impact—24 hours a day, seven days a week, 365 days a year. Nazi shot a 13-year-old black teenager in annual health care costs. President Unfortunately, over the next 50 years, as as she walked with friends outside a Reagan’s son-in-law, Dennis C. Revell, many as 14 million baby boomers will be the convenience store. Investigators say makes an excellent case for investing next large pool of victims, unless we find that the assailant, who has tattoos of more money in Alzheimer’s research in ways to further slow down or stop the swastikas, argued with several black an op-ed in today’s Washington Times. changes in their brains that might already men about the insignias and then went In the meantime, we are fortunate be taking place. on a mission to hurt someone who was that so many people across this coun- The threat to so many American families black. The victim recovered from her try are working to support Alzheimer’s should be enough to urge us to action, but the economic impact of the disease drives us injury, but surgeons did not remove research and care. I have worked for as well. In just 10 years, the annual cost of the bullet from her body. many years with the national Alz- Alzheimer’s disease to Medicare and Med- I believe that Government’s first heimer’s Association, as well as with icaid will rise from $50 billion to more than duty is to defend its citizens, to defend their local chapters in , and I can $82 billion. Since 1998, estimates of the an- them against the harms that come out tell you firsthand that they will not nual cost of Alzheimer’s disease to American of hate. The Local Law Enforcement rest until scientists find a cure. As the business have risen from $33 billion to more Enhancement Act of 2001 is now a sym- Nation recognizes Alzheimer’s Disease than $61 billion. bol that can become substance. I be- Awareness Month throughout Novem- During this Alzheimer’s Awareness Month, we reflect upon the extraordinary progress lieve that by passing this legislation ber, I thank them for their dedication. we have made as a nation these past 20 years: and changing current law, we can I ask unanimous consent that the ar- Twenty years ago, there were no treat- change hearts and minds as well. ticle be printed in the RECORD. ments for Alzheimer’s disease; today, four f There being no objection, the mate- Alzheimer drugs have been approved, and re- rial was ordered to be printed in the searchers are working to bring even more NATIONAL ALZHEIMER’S RECORD, as follows: promising treatments, including a potential AWARENESS WEEK vaccine, to market. ALZHEIMER’S DISEASE Twenty years ago, we had little informa- Mr. HARKIN. Mr. President, 20 years (By Dennis C. Revell) ago, President Reagan signed a procla- tion on risk factors to point the way to pre- ‘‘That’s the worst part of this disease. vention; today, there is growing evidence mation designating the first National There’s nobody to exchange memories with.’’ that known risk factors for heart disease, in- Alzheimer’s Awareness Week. Today, (Nancy Reagan, Sept. 25, ‘‘60 Minutes II.’’) cluding high blood pressure and high choles- as part of this year’s National Alz- Alzheimer’s disease doesn’t make special terol, may also increase the risk for Alz- heimer’s Disease Awareness Month, I arrangements for anyone, even for the leader heimer’s. would like to commend and thank all of the free world. In tragic irony, 20 years Twenty years ago, only a handful of sci- those who have worked to battle this ago this week President Reagan launched a entists were studying Alzheimer’s; now, national campaign against Alzheimer’s dis- terrible disease. thousands of scientists around the world are ease. In a historic White House ceremony, he racing to find the answers. As the chairman of the Appropria- drew national attention to Alzheimer’s and Twenty years ago, Alzheimer scientists tions subcommittee that oversees fund- defined it as a major health menace. He pro- were working in isolation; today, 33 Alz- ing for the National Institutes of claimed November National Alzheimer’s Dis- heimer’s disease centers are funded by the Health, and someone who has watched ease Awareness Month, warning the Amer- National Institute on Aging, where scientists many close friends succumb to Alz- ican people of ‘‘the emotional, financial and collaborate to speed the search. heimer’s over the years, I have learned social consequences of Alzheimer’s disease.’’ We are so close. Thanks to the dynamics perhaps more than I wish I knew about With vision and leadership, he argued for re- set in motion two decades this disease. In 1982, 2 million people search as ‘‘the only hope for victims and ago, science has changed the view of Alz- families.’’ heimer’s disease from one of helplessness to suffered from Alzheimer’s; today, the The brain is a miracle when it works, and one of hope. But this is no time to sit back number is 4 million. By the year 2050, a mystery when it fails. One of the most and rest on a sense of accomplishment. that number will rise to 14 million, and haunting, puzzling, and soon to be most cost- The answer is still research, research, and we will be paying $357 billion a year in ly of the brain’s failures is Alzheimer’s—a more research. Individuals and families liv- health care costs, unless science can degenerative, progressive, and terminal ing with the disease research. Individuals find a way to prevent or delay this dis- brain disorder. and families living with the disease have ease. Most people think of Alzheimer’s strictly joined the Alzheimer’s Association in chal- as memory loss. It is much more, although Fortunately, that goal is in sight. lenging Mr. Bush and Congress to increase memory loss alone would be scary enough. the federal commitment to Alzheimer re- Researchers are finally closing in on Memories are the records of our lives—the search. what causes Alzheimer’s; they are essential stuff of our identities and personal- We call on Congress to increase funding for using cutting-edge brain imaging to ities—the very essence of what we share with the National Institutes of Health to $1 bil- figure out how to diagnose it; and they those we love. lion a year to continue the momentum in are studying everything from folic acid On Nov. 5, 1994, Ronald Reagan wrote a Alzheimer research. We call upon Mr. Bush and statins to Advil and gingko biloba courageous letter to the American people to make this important cause his own by in- to see if any of these drugs and supple- about his own diagnosis of Alzheimer’s, and cluding in his budget for next year the nec- his 1982 presidential campaign against the ments can help delay it. essary funds to accelerate the pace of re- disease became his family’s personal strug- search. Much of that research would not gle. We are in a race against time. Without suf- have been possible without the sub- We have made giant strides toward ful- ficient research resources now, we will lose stantial increase in Federal funding filling his vision, and now this Congress and that race. that Senator SPECTER and I, working President Bush have the opportunity to fin- We can change the course of Alzheimer’s together on the Senate Labor, Health ish the battle he began. Congress has stead- disease, for the 4 million people suffering and Human Services, and Education ily invested public funds in Alzheimer’s re- today, for the 19 million family members Appropriations Subcommittee, have se- search over the past 20 years and the Alz- who are caring for them, and for up to 14 heimer’s Association has added millions in million Americans who today face the fate cured for NIH. In fiscal year 1998, when private funds. that befell a man who means so much to us we began our bipartisan effort to dou- That investment in research is now paying and to the world. ble the NIH’s budget, NIH spent $356 off. Science is at the point where effective Testifying before the Senate about Alz- million on Alzheimer’s disease. When treatment and prevention of Alzheimer’s is heimer’s disease shortly before her own Congress completes the doubling effort within reach. The research infrastructure is death, Maureen Reagan took up her father’s this year, that number will rise to al- in place; the paths for further investigation mission, calling upon Congress to ‘‘make most $650 million. are clear. The missing ingredient is money. this the last generation that would live with- But it is still not enough. We need to A $1 billion federal investment now will pay out hope.’’ big dividends in the future. Both Ronald Reagan and Maureen always raise that total to $1 billion as soon as When Ronald Reagan sounded his battle looked to a brighter horizon. Congress and possible, if we’re really going to be se- cry against Alzheimer’s, an estimated 2 mil- Mr. Bush can ensure that we reach that hori- rious about reducing the physical and lion people were suffering from this awful zon before the sun sets on another genera- economic costs of Alzheimer’s. Accord- disease. Today, the number has grown to tion with Alzheimer’s disease.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00079 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.121 S18PT1 S11310 CONGRESSIONAL RECORD — SENATE November 18, 2002 THE SCHOLAR RESCUE FUND powerful free-thinking scholars can be? And d’Estang, former President of France; Mar- ALUMNI RESEARCH how they must intimidate them into silence. garet Thatcher, former Prime Minister of ‘‘They kill your voice even before their kill England; 10 Heads of State, 56 Ambassadors, Mr. LEAHY. Mr. President, next year you,’’ said Maimul Khan, a rescued scholar 44 Nobel Laureates, 115 University presi- I intend to speak more about the from Bangladesh who is here with us to- dents, and 400,000 more men and women who Scholar Rescue Fund Alumni Research night. have been educationally enriched by the ex- Program. I learned a lot from Allan’s first reaction. perience we helped them to have. I am aware of this through my It made me understand how important it The accomplishments of the IIE Alumni friendship with Dr. Henry Jarecki. I be- would be to find financial and popular sup- Network have indeed been so illustrious that port for IIE programs that did not yet have their stories seemed to me a natural way to lieve that it is something more Sen- explain to the world just why international ators should be aware of, and some- endowment or government backing. Back in the 30’s when we were raising money on our education was so valuable and to obtain pop- thing that would appeal to Senators in own, we made and carried out the decision to ular support for our educational and humani- both parties. Perhaps one of the best bring European scholars to the States. We tarian programs. To make sure that an un- ways to describe it would be to include only had enough money to bring out 300 of derstanding of this network was available to in the Record remarks, by Dr. Jarecki, them but that was enough to help found a us all, I accepted Tom Russo’s and Allan and I so ask unanimous consent to graduate facility at the New School here in Goodman’s challenge to establish and codify New York. an IIE Alumni database. have those remarks printed. We will use this database to let the world There being no objection, the mate- This story from the thirties was just one of the many stories I heard when I first joined know about the kinds of people who have rial was ordered to be printed in the made good, in part because of the programs the Board of IIE a few years ago. I was im- designed and administered by the Institute. RECORD, as follows: pressed with the history of the Institute That awareness will help us to develop sup- Allan Goodman has, in introducing me, which has undertaken hundreds of edu- port for additional programs that are respon- spoken of the fact that I accepted Henry cational programs in its 80 years of exist- sive to the needs of the current moment— Kaufman’s mandate to help develop the IIE’s ence, including the ‘‘crown jewel’’ of such like the Scholar Rescue initiative I and oth- newly-established Scholar Rescue Fund. programs, the Fulbright Program that it has Doing what Henry tells me to do is easy for ers have told you about. administered on behalf of the Department of I encouraged Dan Greespahn, who has done me and this mandate was even easier: I have State since that program’s inception. With been a refugee and I am an academic; and the a terrific job heading the Alumni Research the help of its sponsors and donors, the IIE Program, to find out as much a he could risks of free speech are tattooed on the skin has had an essential role in the growth and about our alumni, both so that we could of my relatives and on my mind. I wanted to development of hundreds of thousands of learn about them and so that they could help start immediately. people who are today leaders in every field of When I came to talk to Allan about the us develop our new programs. It was in the endeavor—be it government, science, aca- course of developing this Alumni Database program, he was as enthusiastic as I was but deme or business. that we encountered Ruth Gruber, about wondered whether we should wait with the Just two weeks ago, three scientists were whom you will hear more momentarily. start until we had the endowment funds to awarded the Nobel Prize; two of them for And so there was a wonderful confluence of make sure that the program would last. His their work on neutrinos, particles so small events: My mentor and close friend, Fritz comments sounded so sensible that I didn’t that they are virtually impossible to detect. Redlich, who led Yale University to the at first know what to say. But that, as peo- The one from Japan and the one from heights of scholarly achievement through ple who know me, didn’t last too long. were Fulbrighters who studied here in the encouraging the free flow of ideas, and Ruth I told him how, in 1937, Franklin Roosevelt Fifties. Last year, too, two Nobel Prize win- Gruber, an outstanding humanitarian, jour- had convened a conference of representatives ners for economics were Fulbrighters. nalist and author: both IIE alumni—Fritz from 80 countries in Evian, France, to en- In your program this evening is a list of all coming here and Ruth going there, both in courage them to accept Hitler’s Jews, and of the Fulbrighters and other IIE partici- 1930. how speaker after speaker had praised Presi- pants who, like our founders Elihu Root and Henry Kaufman, on whose vision all of this dent Roosevelt’s wonderful idea but said Nicholas Murray Butler, have been awarded rests, suggested that we create an award to that, unfortunately, his particular country the Nobel Prize. It is an impressive roster of recognize some of the most accomplished of could not take part at that moment because a small subset of the IIE alumni network. those alumni. What better way to do so than of a unique problem they were having in his While I was learning about our history, I to name the award for someone who, for me particular country just at that particular discovered that my mentor and Chairman at at least, is the paradigm of what IIE strive time. Finally, the representative of Rafael Yale, the renowned psychiatrist Fritz for—Fritz Redlich. Trujillo, then known as the Butcher of Santo Redlich, had first visited the United States (Fritz, will you please stand and be recog- Domingo for having machine-gunned hun- in 1930 on an IIE program which brought him nized.) dreds of Haitian refugees who tried to cross for a year from Vienna to the University of Fritz, in appreciation of what you have the border into the Dominican Republic, got Iowa. Fritz told me that in 1938, when he rec- meant to me and to your thousands of stu- up to speak. Trujillo was, understandably ognized that he had to leave Vienna or go to dents and in recognition of IIE’s role in en- enough, in bad odor all over the world and so a concentration camp, his sponsor at Iowa suring your safety here in the United States, he tried to make amends by letting his rep- was the only American he knew who could we want to name our annual award the Fritz resentative announce that Trujillo had provide him the ‘‘affidavit’’ required by the Redlich Alumni Award. Thank you for let- agreed to let 100,000 of the refugees settle in U.S. government—the document that I and ting us do so. Tonight we present the first Fritz Redlich the Dominican Republic. all other refugees knew so well as commit- The world’s refugee organizations then set Alumni Award to Ruth Gruber. ting the person who signed it to not letting Our efforts to tell you about Ruth are to work to make sure that it all went well. the recipient end up on welfare, a charge to made somewhat easier by our friends in the They started by developing precise criteria: the state. film industry who, in 2001, made a CBS tele- how many merchants, how many farmers, Fritz came here, became a professor at vision mini-series that detailed Ruth’s res- and what ages they should be; how many Yale, then head of the Department of Psychi- cue of 1000 refugees form Europe in 1944. In married and unmarried and a lot more. By atry and eventually Dean of the Yale Med- that film, the part of Ruth Gruber was the middle of 1938 they had developed their ical School. He was a brilliant and caring played by the highly accomplished actress criteria and started to interview prospective doctor who wrote extensively on whether the Natasha Richardson. candidates for the trip. By that time, it was poor got the same treatment, or even the Ms. Richardson’s performances on stage, a lot easier to interview candidates because same diagnoses, as the rich. And he was, like screen and televsion—both here and abroad— many of them were already in concentration me, an iconoclast. It was he who brought me have been recognized by the most prestigious camps. Over the next 9 months, these careful to Yale, a fact that has had such a strong in- awards in the entertainment industry. They choosers found 900 who could go to the Do- fluence on my own life. began in 1986 when she received the minican Republic, where most of them set- Fritz was, of course, not the only scholar Drama Critics’s Most Promising Newcomer tled in a small town called Sosua and sur- who was rescued from Hitler’s Germany and Award. In 1992, she received the London vived the war. Over 99,000 were left behind to the countries falling to Nazi control. As I Drama Critics Best Actress Award. She re- die. mentioned before, the Institute’s ceived a Tony for her performance as Sally When I got through with my story, Allan ‘‘University in Exile’’ program brought more Bowles in , as well as Outer Critics told me to get on with it and get on with it scholars to America, enough indeed to form Circle, Drama League and Drama Desk we have after I found generous kindred spir- the graduate faculty of the New School Uni- Awards for Best Actress. And there are its in my fellow Trustee and versity here in New York, a university which many, many more. in George Soros, both of whom I want not to to this day remains a vibrant academic insti- Natasha Richardson is with us this evening thank in the name of persecuted scholars in tution. to introduce Ruth Gruber and to present her over 60 countries from whom we now have re- The list of IIE alumni is not limited to with the Fritz Redlich Alumni Award. Let’s quests for help. Sixty countries! What are scholars fleeing persecution or Nobel Prize start Natasha’s introduction of Ruth by tak- they thinking of? How can benighted tyrants winners, however; it would fill a ‘‘Who’s ing a look at Natasha playing her in the film and despots be smart enough to know how Who’’ of world leaders: Valery Giscard I told you about.

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00080 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.108 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11311 ADDITIONAL STATEMENTS United States Senate. I am pleased he sound, timely, and cogent advice in re- will continue to serve our country by solving a host of complex issues. returning to the FDIC, which is lucky I am pleased to have this opportunity TRIBUTE TO N. JACK TAYLOR, JR. to have him.∑ to commend Colonel Willging for his ∑ Mr. JOHNSON. Mr. President, I rise f many years of selfless service to the today to pay tribute to N. Jack Taylor, United States of America.∑ TRIBUTE TO COLONEL JOSEPH M. Jr., who has worked as a Congressional f Fellow in my office since January of WILLGING ∑ Mr. THOMPSON. Mr. President, I REMARKS OF AMBASSADOR REED 2002. On behalf of my staff and the peo- AT THE 9/11 SYMPOSIUM ple of South Dakota, I would like to rise to pay tribute to a U.S. Air Force ∑ thank Jack for his hard work, his dedi- officer, Colonel Joseph M. Willging. Mr. ENZI. Mr. President, I rise to cation, and his considerable contribu- Colonel Willging currently serves as recognize an important and moving tions to my state and to this great na- the Chief of the Environmental Law statement made by Ambassador Joseph tion. Division of the Judge Advocate Gen- Verner Reed, Under-Secretary-General Jack joined our staff to work on eral’s Department in Arlington, Vir- of the United Nations, on September banking issues at a troubled time here ginia. He will retire on May 1, 2003 11, 2002. Ambassador Reed’s remarks in the Senate, when we faced signifi- from the Air Force after 25 years of are a true example of the national cant physical threats in the wake of 9/ service. Today, it is my privilege to strength, personal mourning, and 11 and the Senate scares. Nev- recognize some of Colonel Willging’s international support that we all have ertheless, Jack left the Federal Deposit accomplishments, and to commend his experienced since September 2001. I ask Insurance Corporation, his home for service to the Air Force and our na- that his remarks be printed in the the past 15 years, to spend a year learn- tion. RECORD. The remarks follow. ing about the legislative process. And Colonel Willging was born in Min- what a year it was. neapolis, MN, and entered the Air REMARKS BY AMBASSADOR JOSEPH VERNER Jack was on the front lines during Force through the Air Force Reserve REED, UNDER-SECRETARY-GENERAL OF THE UNITED NATIONS the Senate debate over accounting re- Officer Training Corps program. His early assignments included George Air On behalf of the Secretary-General of the form, and he played a key role in our United Nations Kofi A. Annan, I bring greet- office’s involvement in the Sarbanes- Force Base, California, Royal Air Force ings and good wishes on this solemn anniver- Oxley Accounting Reform and Bentwaters Air Base, United Kingdom, sary commemorating September 11, 2001—9/ Protection Act. He got a bit more than Grand Forks Air Force Base, ND, and 11—The Day of Terror. he bargained for by playing the lead Offutt Air Force Base, Nebraska. He The Secretary-General regrets that he staff role during floor action and the later served as the Staff Judge Advo- could not be with us today. He is very much cate for Castle Air Force Base, Cali- involved, as you know, with preparations of conference committee, but he per- the 57th General Assembly as well as the on- formed with great aplomb and profes- fornia, Chief of the Environmental Law going task of pursuing the course of peace in sionalism. Division, Headquarters, Air Combat the 17 Peace Keeping Missions around our Jack has also been immensely valu- Command, Langley Air Force Base, troubled globe. able in raising our awareness of Native Virginia, and the Deputy Legal Counsel The Secretary-General is presiding at a American banking issues. He took the to the Chairman of the Joint Chiefs of commemoration of 9/11 on the Great Lawn at lead in conceptualizing and organizing Staff at the Pentagon before arriving the United Nations with 191 member states participating. a hearing in the Senate Banking Fi- in 2000 in Arlington, VA for his current First, allow me to salute the organizers of nancial Institutions Subcommittee on assignment. this International Symposium. The mission ways we might increase private capital Throughout his career, Colonel of the Virtue Foundation is as laudable as it in Indian Country. He brought together Willging has received numerous mili- is imperative. an impressive group of witnesses whose tary decorations including the Defense ‘‘From Tragedy to Unity: A Celebration of ideas I hope we can implement in the Superior Service Medal, the Meri- the Human Spirit.’’ That is the theme of this torious Service Medal with four oak- Symposium. future. Jack also provided valuable as- None of us can ever forget the tragedy and sistance on a number of other tribal-re- leaf clusters, the Joint Service Com- terror and sadness that 9/11 brought upon our lated housing and banking issues. mendation Medal, the Air Force Com- nation, our society and the world. But, the Another noteworthy contribution of mendations Medal, the Joint Service prominent panelists in today’s discussions in Jack’s was his hard work in putting to- Achievement Medal, and the Southwest this hallowed Museum will not dwell on the gether S. 3034, the Check Truncation Asia Service Medal. Additionally, he past horror. Rather, their focus will be on Act. While it may not be the most holds a law degree from the William healing and renewal and rekindling strength in our citizenry. high-profile subject, check truncation Mitchell College of Law in Saint Paul With this lofty, indeed noble—yet irref- would modernize our financial system and a Master of Laws in Environmental utably appropriate—purpose in mind, today’s in significant ways, and be particularly Law from George Washington Univer- Symposium will inspire all of us to rebuild helpful in rural areas such as South sity. He is also a graduate of Air Com- and create a more cohesive and caring com- Dakota where the physical transpor- mand and Staff College, and Air War munity. tation of checks is often difficult and College, Maxwell Air Force Base, Ala- Amid sorrow we will create anew. That is bama, and earned the degree of Master what our world needs now. Whether a life or expensive. Jack helped us to lead the a building or a spirit—there is a call now to charge to modernize our system, and I of Science from the National War Col- rebuild—a need for a new beginning. am hopeful we can complete action on lege, Fort McNair, Washington, DC. This anniversary day is also very much a that bill next year. Colonel Willging is admitted to prac- Time of Remembrance. Finally, I would be remiss if I did not tice before the Supreme Court of Min- None of us here in the Rainey Auditorium mention Jack’s role in our continued nesota. and across the length and breadth of our efforts to pass comprehensive deposit As Chief of the Environmental Law beautiful nation will ever forget that hor- Division of the United States Air Force rible moment a year ago today when we insurance reform. Jack, who came to heard the unspeakable news. We will never us from the FDIC’s division of insur- Judge Advocate General’s Department, forget where we were, whom we were with or ance, proved to be an invaluable in- Colonel Willging has led an impressive what we were doing. 9/11 was the Opening house resource for my staff on matters organization of military and civilian Day of the 56th General Assembly of the related to deposit insurance. He was lawyers, paralegals, and support per- United Nations. It was the day the United also willing to travel out to South Da- sonnel. Colonel Willging’s leadership, Nations celebrates the International Day of kota to meet with bankers throughout judgment, and unwavering devotion to Peace. I was on my way to Headquarters. On the State to ensure that our bill re- duty were instrumental in the success- hearing the news of the first crash I returned ful resolution of numerous difficult to our house joining my stunned wife in star- flects the needs of Main Street bankers ing at the television. We shared the national across this country. issues facing the Air Force. At the experience of a quantum leap into a new, It is my pleasure and honor to stand same time, he was a key and trusted frightening and uncertain world. We imme- before the Senate today to thank Jack advisor to the Air Force engineering diately sensed this was the world we would Taylor publicly for his service to the community, which relied heavily on his now live in for the rest of our lives.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00081 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.125 S18PT1 S11312 CONGRESSIONAL RECORD — SENATE November 18, 2002 This past year has been a period of na- who will be with us today I salute each of Hochman said doctors often tell families tional mourning. you. not to treat the condition. I hesitate to say but reality makes me do Let us find healing and strength in remem- ‘‘The prevailing advice parents get is to so—A sense of dread and sadness has gripped brance. I pray that the coming year will leave it alone, it will go away.’’ he said. our nation in the searing emotional after- bring us closer together—within our families While that may be the right advice for some math of the Day of Terror. and our communities—and ever more com- patients, Hochman said, he often sees chil- The world must never forget that Sep- mitted to caring for one another. dren and adults who have been waiting for tember 11, 2001 was the bloodiest day on May we enjoy years of peace for our chil- years for it to go away. American soil since our civil war. Our flags dren, for the future, for all mankind. ‘‘What we’re trying to do is change the way are half-staff. The Congress has designated Peace!∑ the primary care physicians see these le- sions,’’ he said. ‘‘There is hope for treat- today Patriot Day to honor the sacrifice f made by 3,000 innocent citizens on that trag- ment. It is very common and lots of things ic day. National character does not change TRIBUTE TO DR. MARCELO can be done.’’ in a day. 9/11 did not alter the American HOCHMAN OF CHARLESTON, SC, The Itkus are staying at the Ronald character, it merely revealed it—it forced— FOR HIS HUMANITARIAN EF- McDonald House downtown as Batuhan re- the emergency of a bedrock America of cour- FORTS covers from his first surgery. His stitches come out Monday. age, resolve, resourcefulness and, above all, ∑ resilience. What the enemy did not know or Mr. HOLLINGS. Mr. President, the Levent Itku said Batuhan is aware of ev- anticipate was that beneath the outward headlines always are the Israelis and erything Hochman did. After the surgery, he normality of America in post-Cold War the Arabs at each other’s throats, so woke up one morning and patted his face, repose lay a sleeping giant that Admiral it’s noteworthy when a Jewish doctor saying ‘‘Dr. Hochman did this to my face.’’ ‘‘He has a chance in his future life,’’ Yamamoto knew he had awakened on De- treats a Muslim child—gratis. I know cember 7, 1941 and that Osama bin Laden had Levent Itku said. of the expertise of Dr. Marcelo At the Ronald McDonald House, Batuhan— no inkling he had awakened on September Hochman and I know of his humani- a bright, cheerful child—plays with a bag of 11, 2001. toys and books. He finds a plastic drill, The world then witnessed an astonishing tarianism. He has been doing it for which he proceeds to use while making drill- demonstration of resilience, the kind only a years. I ask unanimous consent that like sounds on every piece of furniture avail- nation of continental size and prodigious this article from the November 17th able. He grins and laughs as his parents and productivity, of successful self-government Charleston Post and Courier be printed others join in making the sounds with him. and self-conscious spirituality could sum- in the RECORD. He waves at people he knows at the house mon. The article follows. and constantly talks with his parents and The anniversary of this stunning national LOCAL SURGEON HELPING TURKISH BOY FACE guests. ‘state change’; will be respectfully cele- WORLD His face shows signs of the first surgery. brated in tears, sorrow and reflection. The (By Allison L. Bruce) Hochman created an eye lid for Batuhan so death toll of the 9/11 attacks did not just af- he can close his eye for the first time. The BOY’S FAMILY SEARCHES WORLD FOR AID; FIND fect New York and the United States. cleft lip is also repaired so that he can eat COMMUNITY OF HELP IN CHARLESTON Though the overwhelming number of those better. who died was American citizens there were For 4-year-old Batuhan Itku, a trip to Batuhan’s trip to Charleston for the sur- victims from 36 countries around the world. Charleston marks a new beginning. gery took a lot of coordination. Aside from Our neighbor to the south, Mexico, with 27 The Turkish boy was born with a birth- Hochman donating his services, St Francis who died, was the hardest hit of the foreign mark covering more than half of his face and Hospital and local business owners also con- lands. causing severe disfigurement. He couldn’t tributed. Patricia Dwight arranged for The old diplomatic refrain that ‘‘one man’s shut his right eye and a cleft lip make eating Batuhan and his family to get to the United terrorist is another man’s freedom fighter’’ difficult. States by collecting frequent flier miles do- can no longer be argued. Ladies and Gentle- After more than 30 doctors told Batuhan’s nations. Dwight owns Adventure Travel and men—let me be perfectly clear: September 11 parents, Levent and Ayla Itku, that they has lived in Turkey. After hearing about proved once and for all that ‘‘Terror is ter- could not operate on Batuhan, Levent Itku Batuhan’s case, she made a point to visit the ror.’’ Terror is inexcusable, it is indefensible, said he and a friend from work created a Web Itkus while she was visiting Istanbul. it is wrong. page to see if other doctors elsewhere in the ‘‘After meeting the family and seeing what That Day of Terror transformed world could help. incredible people the mother and father ‘‘terrorism.’’ In the past, in their madness, Doctors from Canada, Germany and the were, I was more inspired to help,’’ she said. terrorists yearned for a lot of people watch- United States responded to the site, but ‘‘They’re dealing with it in such a remark- ing, not a lot of people dead. Last year, the after Levent Itku sent medical information able way. Without them being the way they rules changed. Those terrorists—those assas- to them, only Dr. Marcelo Hochman re- are, this would not have happened either.’’ sins—sought to kill thousands as hundreds of mained. On the Internet, she found out about a millions watched in horror. Hochman is a facial plastic and reconstruc- United Way program that uses frequent flier The murderers got what they wanted. tive surgeon and a leading expert in treating miles to provide transportation. With the But, they and the rest of Osama bin hemangiomas. His practice is The Facial help of several local donations, including a Laden’s al-Qaeda network miscalculated Surgery Center in Charleston. large donation of miles from Henry Cheves America’s might and resolve. He not only was willing to operate on Jr., Dwight was able to bring the Itkus to This September 11 marks not just a day of Batuhan but also agreed to donate his serv- the United States. infamy, but also the close of Year One of the ices. She also is leading the effort to create The War on Terrorism. And to win the war we Levent Itku said he and his wife ‘‘couldn’t Hemangioma Treatment Foundation. The need to demonstrate—as America has done believe what they heard . . . until the mo- foundation would help provide treatment of in other great wars of necessity—patience, ment they came here and saw him children and adults with vascular birth- endurance, determination, and a willingness (Hochman),’’ according to interpreter Yesim marks and training for doctors in other com- to bear any burden. Otay. ‘‘At the beginning, they didn’t have panies. Their attack on the symbols of United any hope. They thought it would be the same Dwight said Batuhan’s case was the cata- States economic and military power stirred thing they heard before,’’ Otay said, trans- lyst for creating the foundation, which is the world’s only superpower to place ter- lating for Itku. Now, she said, ‘‘they have a currently under Trident United Way until it rorism at the heart of its—and the world’s— great hope.’’ receives non-profit status. foreign and domestic policy. Batuhan’s vascular birthmark is called a A large part of Hochman’s efforts in the The message today is clear. The United hemangioma, a condition that Hochman said last decade has been to educate other doctors States will not negotiate terrorism. Nor will affects about 10 percent of the population. about treating hemangiomas. it compromise with terrorists. Rather she They range from a pinpoint to large, severe During the past 12 years, Hochman has will destroy them and all the evil for which deformations that usually affect the face, traveled to other countries to operate on they stand. Of that, I have no doubt. head and neck. children with hemangiomas. He has traveled We will never forget 9/11. About 30 percent of hemangiomas require to , Latin America and Mexico repeat- Today’s Symposium, then, is an important medical attention, Hochman said. edly. one. Today is the day to begin to move from Common names for some forms of the Aside from demonstrating for doctors in this tragedy to ‘‘unity and a celebration of birthmark include a portwine stain or straw- other countries how the surgeries can be the human spirit.’’ berry. done, Hochman has edited a textbook on Thank you Director de Montebello for For Batuhan, the hemangioma is severe hemangiomas and hopes that more doctors making this great Museum the home of this and will require more than one operation. in the United States also will explore the dif- gathering. Thank you Dr. Salim and Dr. ‘‘Had we seen him early on with aggressive ferent kinds of treatment available. LaRovere for your initiative. To all the orga- medical treatment and laser treatment, per- He said he receives thousands of e-mails nizers, musicians, members of the staff of haps he could have avoided this horrific dis- each year. Many of those come from over- the Met and the distinguished participants figurement,’’ Hochman said. seas.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00082 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.113 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11313 Two Costa Rican girls are coming to accompanying papers, reports, and doc- tration, Department of Transportation, Hochman for treatment for hemangiomas uments, which were referred as indi- transmitting, pursuant to law, the report of this week. cated: a rule entitled ‘‘Airworthiness Directives: Another 35 children in Costa Rica are wait- EC–9596. A communication from the Presi- Model HH–1K, TH–1F, TH–1L, UH–1A, UH–1B, ing for treatment, as well as more children dent of the United States, transmitting, con- UH–1E, UH–1F, UH–1H, UH–1L, UH–1P and in Turkey. sistent with the War Powers Act, a report Southwest Florida Aviation Model SW204, Levent Itku said he wanted to thank all of relative to NATO-led international security SW204HP, SW205, and SW205A–1 the people who had helped his family, includ- force in Kosovo (KFOR) received on Novem- manufactured by Textron, Inc. for the armed ing Hochman, Dwight, the Ronald McDonald ber 15, 2002; to the Committee on Foreign Re- forces of the United States; Docket No. 2001– House and the Turkish community in SW–41 [10–2–10–10]’’ ((RIN2120–AA64)(2002– Charleston, including Otay and Carol Arkok, lations. EC–9597. A communication from the Assist- 0429)) received on October 15, 2002; to the who also helped with translation and took ant Secretary of Legislative Affairs, Depart- Committee on Commerce, Science, and the family to dinner and shopping. ment of State, transmitting, pursuant to Transportation. Dwight said at a time when Muslims and EC–9606. A communication from the Para- Jews are often in conflict, ‘‘here we have a law, a report entitled ‘‘Cuban Immigration Policies’’; to the Committee on Foreign Re- legal Specialist, Federal Aviation Adminis- marvelous example of interfaith cooperation tration, Department of Transportation, . . . We have a marvelous man of one faith lations. EC–9598. A communication from the Assist- transmitting, pursuant to law, the report of helping this needy child of another faith.’’ a rule entitled ‘‘Airworthiness Directives: Hochman said that had never crossed his ant Secretary, Bureau of Land Management, Boeing Model 767–200 and 300 Series Air- mind. Department of the Interior, transmitting, planes Powered by Pratt & Whitney JT9D se- ‘‘I didn’t even think about it until Patricia pursuant to law, the report of a rule entitled said, ‘Isn’t it wonderful that a Jewish doctor ‘‘Coal Management: Noncompetitive Leases; ries Engines; Docket No. 2001–NM–268 [10–1– is treating a Muslim child? ’’’ he said. ‘‘These Coal Management Provisions and Limita- 10–10]’’ ((RIN2120–AA64)(2002–0426)) received people need help, and if we have the exper- tions’’ (RIN1004–AD43) received October 15, on October 15, 2002; to the Committee on tise, it’s a privilege to help take care of 2002; to the Committee on Energy and Nat- Commerce, Science, and Transportation. EC–9607. A communication from the Para- them.’’ ural Resources. ‘‘These families endure so much. It feels EC–9599. A communication from the Fed- legal Specialist, Federal Aviation Adminis- good to be able to change that.’’∑ eral Register Liaison Officer , Office of the tration, Department of Transportation, transmitting, pursuant to law, the report of f Secretary, Department of Defense, transmit- ting, pursuant to law, the report of a rule en- a rule entitled ‘‘Airworthiness Directives- MESSAGE FROM THE HOUSE titled ‘‘Enhancement of Dental Benefits Boeing Model 747—200B, 300, 400, 400D, and under the TRICARE Retiree Dental Program 400F Series Airplanes Docket No. 2001–NM–22 At 5:07 p.m., a message from the [10–1–10–10]’’ ((RIN2120–AA64)(2002–0427)) re- House of Representatives, delivered by (TRDP)’’ (RIN0720–AA61) received on October 9, 2002; to the Committee on Armed Services. ceived on October 15, 2002; to the Committee Mr. Hays, one of its reading clerks, an- EC–9600. A communication from the Gen- on Commerce, Science, and Transportation. nounced that the House agrees to the eral Counsel, Department of Commerce, EC–9608. A communication from the Para- legal Specialist, Federal Aviation Adminis- amendment of the Senate to the bill transmitting, the draft of a bill entitled tration, Department of Transportation, (H.R. 2621) to amend title 18, United ‘‘Marine Mammal Protection Act Amend- transmitting, pursuant to law, the report of ments of 2002’’ received on October 15, 2002; States Code, with respect to consumer a rule entitled ‘‘Airworthiness Directives: to the Committee on Commerce, Science, product protection. Request for Comments; Sikorsky Aircraft The message also announced that the and Transportation. EC–9601. A communication from the Para- Corporation Model S76A, B, and C Heli- House agrees to the amendment of the copters Docket No. 2002–SW–40 [10–3–10–10]’’ Senate to the bill (H.R. 3609) to amend legal Specialist, Federal Aviation Adminis- tration, Department of Transportation, ((RIN2120–AA64)(2002–0432)) received on Octo- ber 15, 2002; to the Committee on Commerce, title 49, United States Code, to enhance transmitting, pursuant to law, the report of Science, and Transportation. the security and safety of pipelines. a rule entitled ‘‘Airworthiness Directives: EC–9609. A communication from the Para- The message further announced that Boeing Model 737 Series Airplanes Docket the House agrees to the amendment of legal Specialist, Federal Aviation Adminis- No. 2001–NM–251’’ ((RIN2120–AA64)(2002–0435)) tration, Department of Transportation, the Senate to the bill (H.R. 3833) to fa- received on October 15, 2002; to the Com- transmitting, pursuant to law, the report of cilitate the creation of anew, second- mittee on Commerce, Science, and Transpor- a rule entitled ‘‘Airworthiness Directives; level Internet domain within the tation. SOCATA Groupe AEROSPATIALE Model TB EC–9602. A communication from the Para- United States country code domain 21 Airplanes Docket No. 2002–CE–16 [10–3–10– legal Specialist, Federal Aviation Adminis- 10’’ ((RIN2120–AA64)(2002–0434)) received on that will be haven for material that tration, Department of Transportation, October 15, 2002; to the Committee on Com- promotes positive experiences for chil- transmitting, pursuant to law, the report of dren and families using the Internet, merce, Science, and Transportation. a rule entitled ‘‘Airworthiness Directives: EC–9610. A communication from the Para- provides a safe online environment for Eurocopter France Model AS332C, L, L1, and legal Specialist, Federal Aviation Adminis- children, and helps to prevent children L2; AS350B, BA, B1, B2, B3, and D; AS355E, F, tration, Department of Transportation, from being exposed to harmful mate- F1, F2, and N; AS–365N2; AS–365N3; SA330F, transmitting, pursuant to law, the report of rial on the Internet, and for other pur- G, and J; SA–365C, C1, and C2; SA.316B and C a rule entitled ‘‘Airworthiness Directives: poses. and SA. 319B Helicopters Docket No. 2000– breeze Eastern Aerospace Rescue hoists, Se- The message also announced that the SW–55 [10–2–10–10]’’ ((RIN2120–AA64)(2002– ries BL–16600–160. Augusta A109, Bell 206, Bell House agrees to the amendments of the 0430)) received on October 15, 2002; to the 222, Bell 407, Europcopter France AS332, Committee on Commerce, Science, and McDonnell Douglas MD–500, and Sikorsky S– Senate to the bill (H.R. 3908) to reau- Transportation. thorize the North American Wetlands 61 Helicopters Docket No. 98–ANE–37 [10–3– EC–9603. A communication from the Para- 10–10]’’ ((RIN2120–AA64)(2002–0433)) received Conservation Act, and for other pur- legal Specialist, Federal Aviation Adminis- on October 15, 2002; to the Committee on poses. tration, Department of Transportation, Commerce, Science, and Transportation. The message further announced that transmitting, pursuant to law, the report of EC–9611. A communication from the Chief the House agrees to the amendments of a rule entitled ‘‘Airworthiness Directives: of Regulations and Administrative Law, the Senate to the bill (H.R. 4664) to au- Bell Textron A division of tectron United States Coast Guard, Department of thorize appropriations for fiscal years Canada model 222, 222B, 222U, 230, and 430 Transportation, transmitting, pursuant to 2003, 2004, and 2005 for the National Helicopters Docket No. 2001–SW–73’’ law, the report of a rule entitled ‘‘Regatta ((RIN2120–AA64)(2002–0431)) received on Octo- Science Foundation, and for other pur- Regulations; SLR; Columbus Day Regatta, ber 15, 2002; to the Committee on Commerce, Biscayne Bay, Miami, Florida’’ ((RIN2115– poses. Science, and Transportation. AE46)(2002–0033)) received October 15, 2002; to The message also announced that the EC–9604. A communication from the Para- the Committee on Commerce, Science, and House agrees to the amendment of the legal Specialist, Federal Aviation Adminis- Transportation. Senate to the bill (H.R. 5469) to amend tration, Department of Transportation, EC–9612. A communication from the Chief title 17, United States Code, with re- transmitting, pursuant to law, the report of of Regulations and Administrative Law, spect to the statutory license for a rule entitled ‘‘Airworthiness Directives: United States Coast Guard, Department of webcasting, and for other purposes. Air Tractor, Inc. Models AT–402, AT–402A, Transportation, transmitting, pursuant to AT–402B, AT–602, AT–802, and AT–802A Air- law, the report of a rule entitled f planes Docket No. 2002–CE–03 [10–1–10–10]’’ ‘‘Drawbridge Regulations; (Including 2 regu- EXECUTIVE AND OTHER ((RIN2120–AA64)(2002–0428)) received on Octo- lations)’’ ((RIN2115–AE47)(2002–0085)) received COMMUNICATIONS ber 15, 2002; to the Committee on Commerce, on October 15, 2002; to the Committee on Science, and Transportation. Commerce, Science, and Transportation. The following communications were EC–9605. A communication from the Para- EC–9613. A communication from the Chief laid before the Senate, together with legal Specialist, Federal Aviation Adminis- of Regulations and Administrative Law,

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00083 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.125 S18PT1 S11314 CONGRESSIONAL RECORD — SENATE November 18, 2002 United States Coast Guard, Department of The closure will remain in effect until the Pollution’’ received on October 28, 2002; to Transportation, transmitting, pursuant to reallocation of the remaining portion of the the Committee on Environment and Public law, the report of a rule entitled coast wide harvest guideline is required by Works. ‘‘Drawbridge Regulations; Mystic River, the Coastal Pelagics Species Fishery Man- EC–9629. A communication from the Acting MA’’ ((RIN2115–AE47)(2002–0086) received on agement Plan (FMP). That reallocation is Principle Deputy Associate Administrator, October 15, 2002; to the Committee on Com- expected to occur on or about October 1, 2002. Environmental Protection Agency, transmit- merce, Science, and Transportation. The purpose of this action is to comply with ting, pursuant to law, the report of a rule en- EC–9614. A communication from the Chief the allocation procedure mandated by the titled ‘‘Revisions to the California State Im- of Regulations and Administrative Law, FMP.’’ received on October 15, 2002; to the plementation Plan, Imperial County Air Pol- United States Coast Guard, Department of Committee on Commerce, Science, and lution Control District, Ventura County Air Transportation, transmitting, pursuant to Transportation. Pollution Control District, and Santa Bar- law, the report of a rule entitled EC–9621. A communication from the Assist- bara County Air Pollution Control District’’ ‘‘Drawbridge Regulations; Miami River, ant Administrator, Office of Sustainable received on October 28, 2002; to the Com- Miami-Dade County, Florida’’ ((RIN2115– Fisheries, National Marine Fisheries Serv- mittee on Environment and Public Works. AE47)(2002–0087)) received on October 15, 2002; ice, Department of Commerce, transmitting, EC–9630. A communication from the Acting to the Committee on Commerce, Science, pursuant to law, the report of a rule entitled Principle Deputy Associate Administrator, and Transportation. ‘‘Fisheries off West Coast States and in the Environmental Protection Agency, transmit- EC–9615. A communication from the Acting Western Pacific; Coastal Pelagic Species ting, pursuant to law, the report of a rule en- Director, Office of Sustainable Fisheries, Na- Fisheries; Reallocation of Pacific Sardine’’ titled ‘‘OMB Approvals Under the Paperwork tional Marine Fisheries Service, Department (RIN0648–AQ47) received on October 15, 2002; Reduction Act, Technical Amendment’’ re- of Commerce, transmitting, pursuant to law, to the Committee on Commerce, Science, ceived on October 28, 2002; to the Committee the report of a rule, entitled ‘‘NMFS is pro- and Transportation. on Environment and Public Works. hibiting fishing with trawl gear in the Chum EC–9622. A communication from the Dep- EC–9631. A communication from the Acting Salmon Savings Area of the Bering Sea and uty Assistant Administrator for Satellite Principle Deputy Associate Administrator, Aleutian Islands Management area (BSAI). and Information Services, National Oceanic Environmental Protection Agency, transmit- This action is necessary to prevent exceeding and Atmospheric Administration, Depart- ting, pursuant to law, the report of a rule en- the 2002 limit of non-chinook salmon caught ment of Commerce, transmitting, pursuant titled ‘‘: Extension of Interim by vessels using trawl gear in the Catcher to law, the report of a rule entitled ‘‘NOAA/ Authorization of State Hazardous Waste Vessel Operation Area (CVOA)’’ received on NASA Joint Center for Satellite Data As- Management Program Revision’’ received on October 15, 2002; to the Committee on Com- similation Notice of Availability of Finan- October 28, 2002; to the Committee on Envi- merce, Science, and Transportation. cial Assistance’’ (RIN0648–ZB24) received on ronment and Public Works. EC–9632. A communication from the Acting EC–9616. A communication from the Acting October 15, 2002; to the Committee on Com- Principle Deputy Associate Administrator, Director, Office of Sustainable Fisheries, Na- merce, Science, and Transportation. Environmental Protection Agency, transmit- tional Marine Fisheries Service, Department EC–9623. A communication from the Prin- ting, pursuant to law, the report of a rule en- of Commerce, transmitting, pursuant to law, cipal Deputy Associate Administrator, Envi- titled ‘‘Approval and Promulgation of Imple- the report of a rule entitled ‘‘Fisheries of the ronmental Protection Agency, transmitting, mentation Plans North Carolina: Approval of Exclusive Economic Zone Off Alaska-Closes a report entitled ‘‘Revised Model Adminis- Revisions to Inspection and Maintenance (I/ Atka Mackerel Fishery in the Western Aleu- trative Order on Consent for Removal Ac- M) Regulations within the North Carolina tian District of the Bering Sea and Aleutian tions’’ received on October 28, 2002; to the State Implementation Plan’’ received on Oc- Islands Management Area’’ received on Octo- Committee on Environment and Public tober 28, 2002; to the Committee on Environ- ber 15, 2002; to the Committee on Commerce, Works. ment and Public Works. EC–9624. A communication from the Acting Science, and Transportation. EC–9633. A communication from the Acting EC–9617. A communication from the Acting Principle Deputy Associate Administrator, Assistant Secretary, Department of the Director, Office of Sustainable Fisheries, Na- Environmental Protection Agency, transmit- Army, transmitting, a report relative to the tional Marine Fisheries Service, Department ting , pursuant to law, a report entitled Water Resources Development Act (WRDA) of Commerce, transmitting, pursuant to law, ‘‘Memorandum of Understanding between of 2000; to the Committee on Environment the report of a rule entitled ‘‘Closure of the EPA and NRC: Consultation and Finality on and Public Works. thornyhead rockfish fishery in the Western Decommissioning and Decontamination of EC–9634. A communication from the Direc- Area of the Gulf of Alaska (GOA)’’ received Contaminated Sites’’ received on October 28, tor, Office of Congressional Affairs, Office of on October 15, 2002; to the Committee on 2002 ; to the Committee on Environment and the Chief Financial Officer, Nuclear Regu- Commerce, Science, and Transportation. Public Works. latory Commission, transmitting, pursuant EC–9618. A communication from the Direc- EC–9625. A communication from the Assist- to law, the report of a rule entitled ‘‘Cost tor, Regulations Policy and Management ant Secretary, Fish & Wildlife Service, De- Recovery for Contested Hearing Involving Staff, Department of Health and Human partment of the Interior, transmitting, pur- U.S. Government National Security Initia- Services, transmitting, pursuant to law, the suant to law, the report of a rule entitled tives’’ (RIN3150–AH03) received on October report of a rule entitled ‘‘Clinical Chemistry ‘‘Endangered and Threatened Wildlife and 17, 2002; to the Committee on Environment and Clinical Toxicalogy Devices; Reclassi- Plants; Final Designation of Critical Habitat and Public Works. fication of Cyclosporine and Tacrolimus As- for Chlorogalum purpureum, a Plant from EC–9635. A communication from the Acting says’’ received on October 15, 2002; to the the South Coast Ranges of California’’ Principle Deputy Associate Administrator, Committee on Commerce, Science, and (RIN1018–AG75) received on October 21, 2002; Environmental Protection Agency, transmit- Transportation. to the Committee on Environment and Pub- ting, pursuant to law, a report relative to EC–9619. A communication from the Direc- lic Works. the Uniform Resource Locators (URLs) for a tor, Office of Sustainable Fisheries, National EC–9626. A communication from the Regu- document entitled ‘‘Consolidated Guidance Marine Fisheries Service, Department of lations Officer, Federal Highway Adminis- on the Establishment, Management and Use Commerce, transmitting, pursuant to law, tration, Department of Transportation, of CERCLA Special Accounts’’ received on the report of a rule entitled ‘‘NMFS an- transmitting, pursuant to law, the report of November 7, 2002; to the Committee on Envi- nounces changes to the regulations for the a rule entitled ‘‘Discretionary Bridge Can- ronment and Public Works. Area 2A sport halibut fisheries off the cen- didate Rating Factor’’ (RIN2125–AE88); to EC–9636. A communication from the Acting tral coast of Oregon. This Action opens the the Committee on Environment and Public Principle Deputy Associate Administrator, all-depth sport halibut fisheries off the cen- Works. Environmental Protection Agency, transmit- tral Oregon coast for additional days on Sep- EC–9627. A communication from the Acting ting, pursuant to law, a report relative to tember 18 and 19. The intention of this ac- Principle Deputy Associate Administrator, the Uniform Resource Locators (URLs) for a tion is to give Oregon anglers access to re- Environmental Protection Agency, transmit- document entitled ‘‘Memo encourages use of maining 2002 halibut quota before the closure ting , pursuant to law, the report of a rule ‘comfort/status’ letters at RCRA facilities, of West Coast sport halibut fisheries on Sep- entitled ‘‘Unregulated Contaminant Moni- where appropriate, and provides examples of tember 30, 2002’’ received on October 15, 2002; toring Regulations: Approval of Analytical Regional RCRA comfort/status letter’’ re- to the Committee on Commerce, Science, Method for Aeromonas. National Primary ceived on November 7, 2002; to the Com- and Transportation. and Secondary Drinking Water Regulations: mittee on Environment and Public Works. EC–9620. A communication from the Direc- Approval of Analytical Methods for Chem- EC–9637. A communication from the Acting tor, Office of Sustainable Fisheries, National ical and Microbiological Contaminants’’ re- Principle Deputy Associate Administrator, Marine Fisheries Service, Department of ceived on October 28, 2002; to the Committee Environmental Protection Agency, transmit- Commerce, transmitting, pursuant to law, on Environment and Public Works. ting, pursuant to law, a report relative to the report of a rule entitled ‘‘NMFS an- EC–9628. A communication from the Acting the Uniform Resource Locators (URLs) for a nounces the closure of the fishery for Pacific Principle Deputy Associate Administrator, document entitled ‘‘Superfund Accounts Re- sardine in the U.S. exclusive economic zone Environmental Protection Agency, transmit- ceivable: Collection Action for Delinquent off the Pacific coast north of Pt. Piedras ting , pursuant to law, the report of a rule Accounts’’ received on November 7, 2002; to Blanacas, CA (35 degrees 40 Minutes N. lat.) entitled ‘‘Revision to the California State the Committee on Environment and Public at 12:01 am local time on September 14, 2002. Implementation Plan, Ventura County Air Works.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00084 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.043 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11315 EC–9638. A communication from the Chair- Whereas the American Flag symbolizes the ronment and Public Works pursuant to man of the Nuclear Regulatory Commission, ideals that good and decent people fought for the order of November 18, 2002: transmitting, pursuant to law, the Commis- in Vietnam, often at the expense of their sion’s monthly report on the status of licens- lives or at the cost of cruel condemnation APPALACHIAN REGIONAL COMMISSION ing and regulatory duties for August 2002; to upon their return home; and Anne B. Pope, of Tennessee, to be Federal the Committee on Environment and Public Whereas the American Flag symbolizes the Cochairman of the Appalachian Regional Works. sacred values for which loyal Americans Commission. EC–9639. A communication from the Assist- risked and often lost their lives in securing Richard J. Peltz, of Pennsylvania, to be Al- ant Secretary of Legislative Affairs, Depart- civil rights for all Americans, regardless of ternative Federal Cochairman of the Appa- ment of State, transmitting, pursuant to race, sex, or creed; and lachian Regional Commission. section 417 of the USA-PATRIOT Act (P.L. Whereas the American Flag was carried to The following nomination was dis- the moon as a banner of goodwill, vision, and 107–56), the report relative to the ‘‘status of charged from the Committee on Com- the implementation of machine-readable triumph on behalf of all mankind; and passports (MRPs) in countries participating Whereas the American Flag was raised by merce, Science, and Transportation in the ’’ received on No- fire fighters atop the rubble pursuant to the order of November 18, vember 7, 2002; to the Committee on the Ju- of the World Trade Center and became the 2002: diciary. symbol of a nation challenged as it had never DEPARTMENT OF TRANSPORTATION EC–9640. A communication from the Comp- been before; and troller General of the United States, General Whereas the American Flag to this day is James M. Loy, of Virginia, to be Under Accounting Office, transmitting, pursuant to a most honorable and worthy banner of a na- Secretary of Transportation for Security for law, a report relative to Reports, Testimony, tion that is thankful for its strengths and a term of five years. Correspondence, and Other Publications for committed to curing its faults and remains f August 2002; to the Committee on Govern- the destination of millions of immigrants at- mental Affairs. tracted by the universal power of the Amer- ADDITIONAL COSPONSORS ican ideal; and EC–9641. A communication from the Chair- S. 549 man, Consumer Product Safety Commission, Whereas the law as interpreted by the At the request of Mr. CRAPO, the transmitting, pursuant to law, the report United States Supreme Court no longer ac- relative to the U.S. consumer Product Safety cords to the Stars and Stripes that rev- name of the Senator from Connecticut Commission’s (CPSC) inventory of commer- erence, respect, and dignity befitting the (Mr. DODD) was added as a cosponsor of cial activities for 2002; to the Committee on banner of that most noble experiment of a S. 549, a bill to ensure the availability Governmental Affairs. nation-state; and of spectrum to amateur radio opera- EC–9642. A communication from the Comp- Whereas House Joint Resolution 36, which tors. passed the United States House of Represent- troller General of the United States, General S. 2581 Accounting Office, transmitting, pursuant to atives and has been referred to the United law, a report relative to Reports, Testimony, States Senate, proposes an amendment to At the request of Mr. MILLER, the Correspondence, and Other Publications for the United States Constitution stating, ‘‘The name of the Senator from Virginia (Mr. September 2002; to the Committee on Gov- Congress shall have power to prohibit the WARNER) was added as a cosponsor of S. ernmental Affairs. physical desecration of the flag of the United 2581, a bill to conduct a study on the ef- States’’; and fectiveness of ballistic imaging tech- f Whereas Senate Joint Resolution 7, intro- nology and evaluate its effectiveness as PETITIONS AND MEMORIALS duced in the United States Senate, proposes an amendment to the United States Con- a law enforcement tool. The following petition or memorial stitution stating, ‘‘The Congress shall have S. 2721 was laid before the Senate and was re- LR 59 power to prohibit the physical desecra- At the request of Mr. SARBANES, the ferred or ordered to lie on the table as tion of the flag of the United States’’; and name of the Senator from Louisiana indicated: Whereas it is only fitting that people ev- erywhere should lend their voices to a force- (Ms. LANDRIEU) was added as a cospon- POM–360. A joint resolution adopted by the sor of S. 2721, a bill to improve the Alaska State Legislature relative to the ful call for restoration to the Stars and Stripes of a proper station under law and de- voucher rental assistance program desecration of the United States Flag; to the under the United States Housing Act of Committee on the Judiciary. cency; be it Resolved by the Alaska State Legislature, 1937, and for other purposes. LEGISLATIVE RESOLVE NO. 59 That the Congress of the United States is re- S. 3000 Be it resolved by the Legislature of the quested to pass House Joint Resolution 36 or State of Alaska: Senate Resolution 7, or comparable legisla- At the request of Mr. HARKIN, the Whereas certain actions, although argu- tion, and present to the legislatures of the name of the Senator from Vermont ably related to one person’s free expression, several states an amendement to the Con- (Mr. JEFFORDS) was added as a cospon- nevertheless raise issues concerning public stitution of the United States that would sor of S. 3000, a bill to enhance and fur- decency, public peace, and the rights of ex- specifically provide the Congress power to ther research into paralysis and to im- pression and sacred values of others; and prohibit the physical desecration of the Flag prove rehabilitation and the quality of Whereas there are symbols of our national of the United States; this request does not life for persons living with paralysis soul, such as the Washington Monument, the constitute a call for a constitutional conven- and other physical disabilities, and for United States Capitol Building, and memo- tion; and be it further rials to our greatest leaders, that are the Resolved, That the legislatures of the sev- other purposes. property of every American and are there- eral states are invited to join with Alaska to S. 3018 fore worthy of protection from desecration secure ratification of the proposed amend- At the request of Mr. BAUCUS, the and dishonor; and ment. names of the Senator from Texas (Mrs. Whereas the American Flag was most f HUTCHISON) and the Senator from Min- nobly born in the struggle for independence that began with ‘‘The Shot Heard Round the REPORTS OF COMMITTEES nesota (Mr. DAYTON) were added as co- sponsors of S. 3018, a bill to amend title World’’ on a bridge in Concord, Massachu- The following reports of committees XVIII of the Social Security Act to en- setts; and were submitted: Whereas, in the War of 1812, the American hance beneficiary access to quality Flag stood boldly against foreign invasion, By Mr. HOLLINGS, from the Committee health care services under the medi- on Commerce, Science, and Transportation, symbolized the stand of a young and brave care program, and for other purposes. nation against the mighty world power of with an amendment in the nature of a sub- S. 3114 that day and, in its courageous resilience, in- stitute: S. 2862: A bill to provide for the establish- spired our national anthem; and At the request of Mr. LEAHY, the Whereas, in the Second World War, the ment of a scientific basis for new firefighting names of the Senator from New York technology standards, improve coordination American Flag was the banner that led the (Mrs. CLINTON), the Senator from Flor- among Federal, State, and local fire officials American battle against facist imperialism ida (Mr. NELSON) and the Senator from in training for and responding to terrorist from the depths of Pearl Harbor to the Maryland (Mr. SARBANES) were added mountaintop on Iwo Jima, and from defeat attacks and other national emergencies, and for other purposes. (Rept. No. 107–344). as cosponsors of S. 3114, a bill to ensure in North Africa’s Kasserine Pass to victory that a public safety officer who suffers in the streets of Hitler’s Germany; and f a fatal heart attack or stroke while on Whereas Alaska’s star was woven into the NOMINATIONS DISCHARGED fabric of the Flag in 1959, and that 49th star duty shall be presumed to have died in has become an integral part of the Union; The following nominations were dis- the line of duty for purposes of public and charged from the Committee on Envi- safety officer survivor benefits.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00085 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.045 S18PT1 S11316 CONGRESSIONAL RECORD — SENATE November 18, 2002

S. CON. RES. 138 On page 3, line 23, strike ‘‘Infrastructure.’’ TITLE II—PROGRAM PROTECTIONS At the request of Mr. REID, the name and insert ‘‘Infrastructure, and the House of Sec. 201. Issuance by Commissioner of Social of the Senator from Maine (Ms. SNOWE) Representatives Committee on Science.’’. Security of receipts to ac- was added as a cosponsor of S. Con. On page 4, strike lines 18 through 23, and knowledge submission of re- Res. 138, a concurrent resolution ex- insert the following: ports of changes in work or pressing the sense of Congress that the The Federal Aviation Administration Ad- earnings status of disabled Secretary of Health and Human Serv- ministrator shall continue the program to beneficiaries. consider awards to nonprofit concrete and Sec. 202. Denial of title II benefits to persons ices should conduct or support research asphalt pavement research foundations to fleeing prosecution, custody, or on certain tests to screen for ovarian improve the design, construction, rehabilita- confinement, and to persons cancer, and Federal health care pro- tion, and repair of concrete and asphalt air- violating probation or parole. grams and group and individual health field pavements to aid in the development of Sec. 203. Requirements relating to offers to plans should cover the tests if dem- safer, more cost-effective, and more durable provide for a fee a product or onstrated to be effective, and for other airfield pavements. service available without purposes. On page 5, beginning in line 22, strike charge from the Social Security ‘‘Transportation and’’ and insert Administration. f ‘‘Transportation,’’. Sec. 204. Refusal to recognize certain indi- AMENDMENTS SUBMITTED & On page 5, line 24, strike ‘‘Infrastructure.’’ viduals as claimant representa- PROPOSED and insert ‘‘Infrastructure, and the House of tives. Representatives Committee on Science.’’. Sec. 205. Penalty for corrupt or forcible in- SA 4965. Mr. REID (for Mr. HATCH (for him- terference with administration self and Mr. LEAHY)) proposed an amendment On page 8, strike lines 9 through 13, and in- sert the following: of Social Security Act. to the bill S. 754, to enhance competition for Sec. 206. Use of symbols, emblems, or names (b) REPORT.—A report containing the re- prescription drugs by increasing the ability in reference to social security of the Department of Justice and Federal sults of the assessment shall be provided to the Senate Committee on Commerce, or medicare. Trade Commission to enforce existing anti- Sec. 207. Disqualification from payment dur- trust laws regarding brand name drugs and Science, and Transportation, the House of Representatives Committee on Transpor- ing trial work period upon con- generic drugs. viction of fraudulent conceal- SA 4966. Mr. REID (for Mr. ROCKEFELLER tation and Infrastructure, and the House of ment of work activity. (for himself, Mr. HOLLINGS, Mr. MCCAIN, and Representatives Committee on Science not Mrs. HUTCHISON)) proposed an amendment to later than 1 year after the date of enactment TITLE III—ATTORNEY FEE PAYMENT the bill S. 2951, to authorize appropriations of this Act. SYSTEM IMPROVEMENTS for the Federal Aviation Administration, and Sec. 301. Cap on attorney assessments. for other purposes. SA 4967. Mr. REID (for Mr. BAUCUS TITLE IV—MISCELLANEOUS AND SA 4967. Mr. REID (for Mr. BAUCUS (for (for himself and Mr. GRASSLEY)) pro- TECHNICAL AMENDMENTS himself and Mr. GRASSLEY)) proposed an amendment to the bill H.R. 4070, to amend posed an amendment to the bill H.R. Subtitle A—Amendments Relating to the the Social Security Act and the Internal 4070, to amend the Social Security Act Ticket to Work and Work Incentives Im- Revenue Code of 1986 to provide additional and the Internal Revenue Code of 1986 provement Act of 1999 safeguards for Social Security and Supple- to provide additional safeguards for So- Sec. 401. Application of demonstration au- mental Security Income beneficiaries with cial Security and Supplemental Secu- thority sunset date to new representative payees, to enhance program rity Income beneficiaries with rep- projects. protections, and for other purposes. resentative payees, to enhance pro- Sec. 402. Expansion of waiver authority SA 4968. Mrs. HUTCHISON (for Mr. available in connection with gram protections, and for other pur- HOLLINGS (for herself and Mr. MCCAIN)) pro- demonstration projects pro- posed an amendment to the bill S. 2949, to poses; as follows: viding for reductions in dis- provide for enhanced aviation security, and Strike all after the enacting clause and in- ability insurance benefits based for other purposes. sert the following: on earnings. SA 4969. Mrs. HUTCHISON (for Mr. SECTION 1. SHORT TITLE AND TABLE OF CON- Sec. 403. Funding of demonstration projects HOLLINGS (for herself, Mr. ROCKEFELLER, and TENTS. provided for reductions in dis- Mr. MCCAIN)) proposed an amendment to ability insurance benefits based (a) SHORT TITLE.—This Act may be cited as amendment SA 4968 proposed by Mrs. the ‘‘Social Security Program Protection on earnings. HUTCHISON (for Mr. HOLLINGS (for himself Act of 2002’’. Sec. 404. Availability of Federal and State and Mr. McCAIN)) to the bill S. 2949, supra. work incentive services to addi- (b) TABLE OF CONTENTS.—The table of con- tional individuals. f tents is as follows: Sec. 405. Technical amendment clarifying TEXT OF AMENDMENTS Sec. 1. Short title and table of contents. treatment for certain purposes SA 4965. Mr. REID (for Mr. HATCH TITLE I—PROTECTION OF of individual work plans under (for himself and Mr. LEAHY)) proposed BENEFICIARIES the Ticket to Work and Self- Sufficiency Program. an amendment to the bill S. 754, to en- Subtitle A—Representative Payees Subtitle B—Miscellaneous Amendments hance competition for prescription Sec. 101. Authority to reissue benefits mis- drugs by increasing the ability of the used by organizational rep- Sec. 411. Elimination of transcript require- Department of Justice and Federal resentative payees. ment in remand cases fully fa- vorable to the claimant. Trade Commission to enforce existing Sec. 102. Oversight of representative payees. Sec. 412. Nonpayment of benefits upon re- Sec. 103. Disqualification from service as antitrust laws regarding brand name moval from the United States. representative payee of persons drugs and generic drugs; as follows: Sec. 413. Reinstatement of certain reporting convicted of offenses resulting On page 11, line 17, strike ‘‘or’’. requirements. in imprisonment for more than On page 11, line 18, strike the period and Sec. 414. Clarification of definitions regard- 1 year, of persons fleeing pros- insert ‘‘; or’’. ing certain survivor benefits. ecution, custody, or confine- On page 11, after line 18, insert the fol- Sec. 415. Clarification respecting the FICA ment, and of persons violating lowing: and SECA tax exemptions for probation or parole. (D) packaging and labeling contracts. an individual whose earnings On page 13, line 17, strike all beginning Sec. 104. Fee forfeiture in case of benefit are subject to the laws of a to- with ‘‘Equitable’’ through line 23. misuse by representative pay- talization agreement partner. ees. SA 4966. Mr. REID (for Mr. Sec. 416. Coverage under divided retirement Sec. 105. Liability of representative payees system for public employees in ROCKEFELLER (for himself, Mr. for misused benefits. Kentucky. HOLLINGS, Mr. MCCAIN, and Mrs. Sec. 106. Authority to redirect delivery of Sec. 417. Compensation for the Social Secu- HUTCHISON)) proposed an amendment to benefit payments when a rep- rity Advisory Board. the bill S. 2951, to authorize appropria- resentative payee fails to pro- Sec. 418. 60-month period of employment re- tions for the Federal Aviation Admin- vide required accounting. quirement for application of istration, and for other purposes; as Subtitle B—Enforcement government pension offset ex- emption. follows: Sec. 111. Civil monetary penalty authority On page 3, beginning in line 21, strike with respect to wrongful con- Subtitle C—Technical Amendments ‘‘Transportation and’’ and insert versions by representative pay- Sec. 421. Technical correction relating to re- ‘‘Transportation,’’. ees. sponsible agency head.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00086 Fmt 4637 Sfmt 0655 E:\CR\FM\A18NO6.056 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11317 Sec. 422. Technical correction relating to re- verts such payment, or any part thereof, to (B) in paragraph (3)(F), by striking tirement benefits of ministers. a use other than for the use and benefit of ‘‘community-based nonprofit social service Sec. 423. Technical corrections relating to such other qualified individual. The Commis- agencies’’ and inserting ‘‘certified commu- domestic employment. sioner of Social Security may prescribe by nity-based nonprofit social service agencies Sec. 424. Technical corrections of outdated regulation the meaning of the term ‘use and (as defined in paragraph (9))’’; references. benefit’ for purposes of this subsection.’’. (C) in paragraph (4)(B), by striking ‘‘any Sec. 425. Technical correction respecting (3) TECHNICAL AMENDMENT.—Section 807(a) community-based nonprofit social service self-employment income in of such Act (42 U.S.C. 1007(a)) is amended, in agency which is bonded or licensed in each community property States. the first sentence, by striking ‘‘for his or her State in which it serves as a representative Sec. 426. Technical amendments relating to benefit’’ and inserting ‘‘for his or her use and payee’’ and inserting ‘‘any certified commu- the Railroad Retirement and benefit’’. nity-based nonprofit social service agency Survivors Improvement Act of (c) TITLE XVI AMENDMENTS.— (as defined in paragraph (9))’’; and 2001. (1) REISSUANCE OF BENEFITS.—Section (D) by adding after paragraph (8) (as added 1631(a)(2)(E) of such Act (42 TITLE I—PROTECTION OF BENEFICIARIES by section 101(a)(2) of this Act) the following U.S.C. 1383(a)(2)(E)) is amended by inserting Subtitle A—Representative Payees new paragraph: after the first sentence the following new ‘‘(9) For purposes of this subsection, the SEC. 101. AUTHORITY TO REISSUE BENEFITS MIS- sentences: ‘‘In any case in which a represent- term ‘certified community-based nonprofit USED BY ORGANIZATIONAL REP- ative payee that— social service agency’ means a community- RESENTATIVE PAYEES. ‘‘(i) is not an individual (regardless of based nonprofit social service agency which (a) TITLE II AMENDMENTS.— whether it is a ‘qualified organization’ with- is in compliance with requirements, under (1) REISSUANCE OF BENEFITS.—Section in the meaning of subparagraph (D)(ii)); or regulations which shall be prescribed by the 205(j)(5) of the Social Security Act (42 ‘‘(ii) is an individual who, for any month Commissioner, for annual certification to U.S.C. 405(j)(5)) is amended by inserting during a period when misuse occurs, serves the Commissioner that it is bonded in ac- after the first sentence the following new 15 or more individuals who are beneficiaries cordance with requirements specified by the sentences: ‘‘In any case in which a represent- under this title, title II, title VIII, or any Commissioner and that it is licensed in each ative payee that— combination of such titles; State in which it serves as a representative ‘‘(A) is not an individual (regardless of misuses all or part of an individual’s benefit payee (if licensing is available in such State) whether it is a ‘qualified organization’ with- paid to the representative payee, the Com- in accordance with requirements specified by in the meaning of paragraph (4)(B)); or missioner of Social Security shall pay to the the Commissioner. Any such annual certifi- ‘‘(B) is an individual who, for any month beneficiary or the beneficiary’s alternative cation shall include a copy of any inde- during a period when misuse occurs, serves representative payee an amount equal to the pendent audit on such agency which may 15 or more individuals who are beneficiaries amount of the benefit so misused. The provi- have been performed since the previous cer- under this title, title VIII, title XVI, or any sions of this subparagraph are subject to the tification.’’. combination of such titles; limitations of subparagraph (H)(ii).’’. (2) TITLE XVI AMENDMENTS.—Section XCLUSION OF REISSUED BENEFITS FROM misuses all or part of an individual’s benefit (2) E 1631(a)(2) of such Act (42 U.S.C. 1383(a)(2)) is RESOURCES.—Section 1613(a) of such Act (42 paid to such representative payee, the Com- amended— U.S.C. 1382b(a)) is amended— missioner of Social Security shall certify for (A) in subparagraph (B)(vii), by striking ‘‘a (A) in paragraph (12), by striking ‘‘and’’ at payment to the beneficiary or the bene- community-based nonprofit social service the end; ficiary’s alternative representative payee an agency licensed or bonded by the State’’ in (B) in paragraph (13), by striking the pe- amount equal to the amount of such benefit subclause (I) and inserting ‘‘a certified com- riod and inserting ‘‘; and’’; and so misused. The provisions of this paragraph munity-based nonprofit social service agency (C) by inserting after paragraph (13) the are subject to the limitations of paragraph (as defined in subparagraph (I))’’; following new paragraph: (7)(B).’’. (B) in subparagraph (D)(ii)— (2) MISUSE OF BENEFITS DEFINED.—Section ‘‘(14) for the 9-month period beginning after the month in which received, any (i) by striking ‘‘or any community-based’’ 205(j) of such Act (42 U.S.C. 405(j)) is amend- and all that follows through ‘‘in accordance’’ ed by adding at the end the following new amount received by such individual (or spouse) or any other person whose income is in subclause (II) and inserting ‘‘or any cer- paragraph: tified community-based nonprofit social ‘‘(8) For purposes of this subsection, mis- deemed to be included in such individual’s (or spouse’s) income for purposes of this title service agency (as defined in subparagraph use of benefits by a representative payee oc- (I)), if the agency, in accordance’’; curs in any case in which the representative as restitution for benefits under this title, title II, or title VIII that a representative (ii) by redesignating items (aa) and (bb) as payee receives payment under this title for subclauses (I) and (II), respectively (and ad- the use and benefit of another person and payee of such individual (or spouse) or such other person under section 205(j), 807, or justing the margination accordingly); and converts such payment, or any part thereof, (iii) by striking ‘‘subclause (II)(bb)’’ and to a use other than for the use and benefit of 1631(a)(2) has misused.’’. ISUSE OF BENEFITS DEFINED.—Section inserting ‘‘subclause (II)’’; and such other person. The Commissioner of So- (3) M 1631(a)(2)(A) of such Act (42 (C) by adding at the end the following new cial Security may prescribe by regulation U.S.C. 1383(a)(2)(A)) is amended by adding at subparagraph: the meaning of the term ‘use and benefit’ for the end the following new clause: ‘‘(I) For purposes of this paragraph, the purposes of this paragraph.’’. ‘‘(iv) For purposes of this paragraph, mis- term ‘certified community-based nonprofit (b) TITLE VIII AMENDMENTS.— use of benefits by a representative payee oc- social service agency’ means a community- (1) REISSUANCE OF BENEFITS.—Section 807(i) curs in any case in which the representative based nonprofit social service agency which of the Social Security Act (42 U.S.C. 1007(i)) payee receives payment under this title for is in compliance with requirements, under is amended by inserting after the first sen- the use and benefit of another person and regulations which shall be prescribed by the tence the following new sentences: ‘‘In any converts such payment, or any part thereof, Commissioner, for annual certification to case in which a representative payee that— to a use other than for the use and benefit of the Commissioner that it is bonded in ac- ‘‘(1) is not an individual; or such other person. The Commissioner of So- cordance with requirements specified by the ‘‘(2) is an individual who, for any month cial Security may prescribe by regulation Commissioner and that it is licensed in each during a period when misuse occurs, serves the meaning of the term ‘use and benefit’ for State in which it serves as a representative 15 or more individuals who are beneficiaries purposes of this clause.’’. payee (if licensing is available in the State) under this title, title II, title XVI, or any (d) EFFECTIVE DATE.—The amendments in accordance with requirements specified by combination of such titles; made by this section shall apply to any case the Commissioner. Any such annual certifi- misuses all or part of an individual’s benefit of benefit misuse by a representative payee cation shall include a copy of any inde- paid to such representative payee, the Com- with respect to which the Commissioner pendent audit on the agency which may have missioner of Social Security shall pay to the makes the determination of misuse on or been performed since the previous certifi- beneficiary or the beneficiary’s alternative after January 1, 1995. cation.’’. representative payee an amount equal to the SEC. 102. OVERSIGHT OF REPRESENTATIVE PAY- (3) EFFECTIVE DATE.—The amendments amount of such benefit so misused. The pro- EES. made by this subsection shall take effect on visions of this paragraph are subject to the (a) CERTIFICATION OF BONDING AND LICENS- the first day of the thirteenth month begin- limitations of subsection (l)(2).’’. ING REQUIREMENTS FOR NONGOVERNMENTAL ning after the date of enactment of this Act. (2) MISUSE OF BENEFITS DEFINED.—Section ORGANIZATIONAL REPRESENTATIVE PAYEES.— (b) PERIODIC ONSITE REVIEW.— 807 of such Act (42 U.S.C. 1007) is amended by (1) TITLE II AMENDMENTS.—Section 205(j) of (1) TITLE II AMENDMENT.—Section 205(j)(6) adding at the end the following new sub- the Social Security Act (42 U.S.C. 405(j)) is of such Act (42 U.S.C. 405(j)(6)) is amended to section: amended— read as follows: ‘‘(j) MISUSE OF BENEFITS.—For purposes of (A) in paragraph (2)(C)(v), by striking ‘‘a ‘‘(6)(A) In addition to such other reviews of this title, misuse of benefits by a representa- community-based nonprofit social service representative payees as the Commissioner tive payee occurs in any case in which the agency licensed or bonded by the State’’ in of Social Security may otherwise conduct, representative payee receives payment under subclause (I) and inserting ‘‘a certified com- the Commissioner shall provide for the peri- this title for the use and benefit of another munity-based nonprofit social service agency odic onsite review of any person or agency qualified individual under this title and con- (as defined in paragraph (9))’’; located in the United States that receives

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00087 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 S11318 CONGRESSIONAL RECORD — SENATE November 18, 2002 the benefits payable under this title (alone to be taken to correct such problems, and SEC. 103. DISQUALIFICATION FROM SERVICE AS or in combination with benefits payable shall include— REPRESENTATIVE PAYEE OF PER- SONS CONVICTED OF OFFENSES RE- under title VIII or title XVI) to another indi- ‘‘(A) the number of such reviews; vidual pursuant to the appointment of such SULTING IN IMPRISONMENT FOR ‘‘(B) the results of such reviews; MORE THAN 1 YEAR, OF PERSONS person or agency as a representative payee ‘‘(C) the number of cases in which the rep- FLEEING PROSECUTION, CUSTODY, under this subsection, section 807, or section resentative payee was changed and why; OR CONFINEMENT, AND OF PER- 1631(a)(2) in any case in which— ‘‘(D) the number of cases involving the ex- SONS VIOLATING PROBATION OR PA- ROLE. ‘‘(i) the representative payee is a person ercise of expedited, targeted oversight of the who serves in that capacity with respect to (a) TITLE II AMENDMENTS.—Section 205(j)(2) representative payee by the Commissioner 15 or more such individuals; of the Social Security Act (42 conducted upon receipt of an allegation of ‘‘(ii) the representative payee is a certified U.S.C. 405(j)(2)) is amended— misuse of funds, failure to pay a vendor, or a community-based nonprofit social service (1) in subparagraph (B)(i)— similar irregularity; agency (as defined in paragraph (9) of this (A) by striking ‘‘and’’ at the end of sub- subsection or section 1631(a)(2)(I)); or ‘‘(E) the number of cases discovered in clause (III); ‘‘(iii) the representative payee is an agency which there was a misuse of funds; (B) by redesignating subclause (IV) as sub- (other than an agency described in clause ‘‘(F) how any such cases of misuse of funds clause (VI); and (ii)) that serves in that capacity with respect were dealt with by the Commissioner; (C) by inserting after subclause (III) the to 50 or more such individuals. ‘‘(G) the final disposition of such cases of following new subclauses: ‘‘(B) Within 120 days after the end of each misuse of funds, including any criminal pen- ‘‘(IV) obtain information concerning fiscal year, the Commissioner shall submit alties imposed; and whether such person has been convicted of to the Committee on Ways and Means of the ‘‘(H) such other information as the Com- any other offense under Federal or State law House of Representatives and the Committee missioner deems appropriate.’’. which resulted in imprisonment for more on Finance of the Senate a report on the re- (3) TITLE XVI AMENDMENT.—Section than 1 year, sults of periodic onsite reviews conducted 1631(a)(2)(G) of such Act (42 ‘‘(V) obtain information concerning wheth- during the fiscal year pursuant to subpara- U.S.C. 1383(a)(2)(G)) is amended to read as er such person is a person described in clause graph (A) and of any other reviews of rep- follows: (iv) or (v) of section 202(x)(1)(A), and’’. resentative payees conducted during such (2) in subparagraph (C)(i)(II), by striking fiscal year in connection with benefits under ‘‘(G)(i) In addition to such other reviews of ‘‘subparagraph (B)(i)(IV),,’’ and inserting this title. Each such report shall describe in representative payees as the Commissioner ‘‘subparagraph (B)(i)(VI)’’ and striking detail all problems identified in such reviews of Social Security may otherwise conduct, ‘‘section 1631(a)(2)(B)(ii)(IV)’’ and inserting and any corrective action taken or planned the Commissioner shall provide for the peri- ‘‘section 1631(a)(2)(B)(ii)(VI)’’; and to be taken to correct such problems, and odic onsite review of any person or agency (3) in subparagraph (C)(i)— shall include— that receives the benefits payable under this (A) by striking ‘‘or’’ at the end of sub- ‘‘(i) the number of such reviews; title (alone or in combination with benefits clause (II); (B) by striking the period at the end of ‘‘(ii) the results of such reviews; payable under title II or title VIII) to an- ‘‘(iii) the number of cases in which the rep- subclause (III) and inserting a comma; and other individual pursuant to the appoint- resentative payee was changed and why; (C) by adding at the end the following new ‘‘(iv) the number of cases involving the ex- ment of the person or agency as a represent- subclauses: ercise of expedited, targeted oversight of the ative payee under this paragraph, section ‘‘(IV) such person has previously been con- representative payee by the Commissioner 205(j), or section 807 in any case in which— victed as described in subparagraph conducted upon receipt of an allegation of ‘‘(I) the representative payee is a person (B)(i)(IV), unless the Commissioner deter- misuse of funds, failure to pay a vendor, or a who serves in that capacity with respect to mines that such certification would be ap- similar irregularity; 15 or more such individuals; propriate notwithstanding such conviction, ‘‘(v) the number of cases discovered in ‘‘(II) the representative payee is a certified or which there was a misuse of funds; community-based nonprofit social service ‘‘(V) such person is person described in ‘‘(vi) how any such cases of misuse of funds agency (as defined in subparagraph (I) of this clause (iv) or (v) of section 202(x)(1)(A).’’. were dealt with by the Commissioner; paragraph or section 205(j)(9)); or (b) TITLE VIII AMENDMENTS.—Section 807 ‘‘(vii) the final disposition of such cases of ‘‘(III) the representative payee is an agen- of such Act (42 U.S.C. 1007) is amended— misuse of funds, including any criminal pen- cy (other than an agency described in sub- (1) in subsection (b)(2)— alties imposed; and clause (II)) that serves in that capacity with (A) by striking ‘‘and’’ at the end of sub- paragraph (C); ‘‘(viii) such other information as the Com- respect to 50 or more such individuals. missioner deems appropriate.’’. (B) by redesignating subparagraph (D) as ‘‘(ii) Within 120 days after the end of each (2) TITLE VIII AMENDMENT.—Section 807 of subparagraph (F); and such Act (as amended by section 101(b)(2) of fiscal year, the Commissioner shall submit (C) by inserting after subparagraph (C) the this Act) is amended further by adding at the to the Committee on Ways and Means of the following new subparagraphs: end the following new subsection: House of Representatives and the Committee ‘‘(D) obtain information concerning wheth- ‘‘(k) PERIODIC ONSITE REVIEW.—(1) In addi- on Finance of the Senate a report on the re- er such person has been convicted of any tion to such other reviews of representative sults of periodic onsite reviews conducted other offense under Federal or State law which resulted in imprisonment for more payees as the Commissioner of Social Secu- during the fiscal year pursuant to clause (i) rity may otherwise conduct, the Commis- than 1 year; and of any other reviews of representative sioner may provide for the periodic onsite re- ‘‘(E) obtain information concerning wheth- view of any person or agency that receives payees conducted during such fiscal year in er such person is a person described in para- the benefits payable under this title (alone connection with benefits under this graph (2) or (3) of section 804(a); and’’; and or in combination with benefits payable title. Each such report shall describe in de- (2) in subsection (d)(1)— under title II or title XVI) to another indi- tail all problems identified in the reviews (A) by striking ‘‘or’’ at the end of subpara- vidual pursuant to the appointment of such and any corrective action taken or planned graph (B); person or agency as a representative payee to be taken to correct the problems, and (B) by striking the period at the end of under this section, section 205(j), or section shall include— subparagraph (C) and inserting a semicolon; 1631(a)(2) in any case in which— ‘‘(I) the number of the reviews; and ‘‘(A) the representative payee is a person ‘‘(II) the results of such reviews; (C) by adding at the end the following new who serves in that capacity with respect to ‘‘(III) the number of cases in which the rep- subparagraphs: 15 or more such individuals; or resentative payee was changed and why; ‘‘(D) such person has previously been con- ‘‘(B) the representative payee is an agency victed as described in subsection (b)(2)(D), ‘‘(IV) the number of cases involving the ex- that serves in that capacity with respect to unless the Commissioner determines that ercise of expedited, targeted oversight of the 50 or more such individuals. such payment would be appropriate notwith- representative payee by the Commissioner ‘‘(2) Within 120 days after the end of each standing such conviction; or fiscal year, the Commissioner shall submit conducted upon receipt of an allegation of ‘‘(E) such person is a person described in to the Committee on Ways and Means of the misuse of funds, failure to pay a vendor, or a paragraph (2) or (3) of section 804(a).’’. House of Representatives and the Committee similar irregularity; (c) TITLE XVI AMENDMENTS.—Section on Finance of the Senate a report on the re- ‘‘(V) the number of cases discovered in 1631(a)(2)(B) of such Act (42 sults of periodic onsite reviews conducted which there was a misuse of funds; U.S.C. 1383(a)(2)(B)) is amended— during the fiscal year pursuant to paragraph ‘‘(VI) how any such cases of misuse of (1) in clause (ii)— (1) and of any other reviews of representative funds were dealt with by the Commissioner; (A) by striking ‘‘and’’ at the end of sub- payees conducted during such fiscal year in ‘‘(VII) the final disposition of such cases of clause (III); connection with benefits under this misuse of funds, including any criminal pen- (B) by redesignating subclause (IV) as sub- title. Each such report shall describe in de- alties imposed; and clause (VI); and tail all problems identified in such reviews ‘‘(VIII) such other information as the Com- (C) by inserting after subclause (III) the and any corrective action taken or planned missioner deems appropriate.’’. following new subclauses:

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00088 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11319 ‘‘(IV) obtain information concerning vidual’s benefit, and any amount so collected section (i) may not exceed the total benefit whether the person has been convicted of by the qualified organization for such month amount misused by the representative payee any other offense under Federal or State law shall be treated as a misused part of the indi- with respect to such individual.’’. which resulted in imprisonment for more vidual’s benefit for purposes of subpara- (c) TITLE XVI AMENDMENTS.—Section than 1 year; graphs (E) and (F). The Commissioner’’. 1631(a)(2) of such Act (42 U.S.C. 1383(a)(2)) (as ‘‘(V) obtain information concerning wheth- (c) EFFECTIVE DATE.—The amendments amended by section 102(b)(3)) is amended fur- er such person is a person described in sec- made by this section shall apply to any ther— tion 1611(e)(4); and’’; month involving benefit misuse by a rep- (1) in subparagraph (G)(i)(II), by striking (2) in clause (iii)(II)— resentative payee in any case with respect to ‘‘section 205(j)(9)’’ and inserting ‘‘section (A) by striking ‘‘clause (ii)(IV)’’ and insert- which the Commissioner of Social Security 205(j)(10)’’; and ing ‘‘clause (ii)(VI)’’; and or a court of competent jurisdiction makes (2) by striking subparagraph (H) and in- (B) by striking ‘‘section 205(j)(2)(B)(i)(IV)’’ the determination of misuse after December serting the following: and inserting ‘‘section 205(j)(2)(B)(i)(VI)’’; 31, 2002. ‘‘(H)(i) If the Commissioner of Social Secu- and SEC. 105. LIABILITY OF REPRESENTATIVE PAY- rity or a court of competent jurisdiction de- (3) in clause (iii)— EES FOR MISUSED BENEFITS. termines that a representative payee that is (A) by striking ‘‘or’’ at the end of sub- (a) TITLE II AMENDMENTS.—Section 205(j) of not a Federal, State, or local government clause (II); the Social Security Act (42 U.S.C. 405(j)) (as agency has misused all or part of an individ- (B) by striking the period at the end of amended by sections 101 and 102) is amended ual’s benefit that was paid to the representa- subclause (III) and inserting a semicolon; further— tive payee under this paragraph, the rep- and (1) by redesignating paragraphs (7), (8), and resentative payee shall be liable for the (C) by adding at the end the following new (9) as paragraphs (8), (9), and (10), respec- amount misused, and the amount (to the ex- subclauses: tively; tent not repaid by the representative payee) ‘‘(IV) the person has previously been con- (2) in paragraphs (2)(C)(v), (3)(F), and shall be treated as an overpayment of bene- victed as described in clause (ii)(IV) of this (4)(B), by striking ‘‘paragraph (9)’’ and in- fits under this title to the representative subparagraph, unless the Commissioner de- serting ‘‘paragraph (10)’’; payee for all purposes of this Act and related termines that the payment would be appro- (3) in paragraph (6)(A)(ii), by striking laws pertaining to the recovery of the over- priate notwithstanding the conviction; or ‘‘paragraph (9)’’ and inserting ‘‘paragraph payments. Subject to clause (ii), upon recov- ‘‘(V) such person is a person described in (10)’’; and ering all or any part of the amount, the section 1611(e)(4).’’. (4) by inserting after paragraph (6) the fol- Commissioner shall make payment of an (d) EFFECTIVE DATE.—The amendments lowing new paragraph: amount equal to the recovered amount to made by this section shall take effect on the ‘‘(7)(A) If the Commissioner of Social Secu- such individual or such individual’s alter- first day of the thirteenth month beginning rity or a court of competent jurisdiction de- native representative payee. after the date of enactment of this Act. termines that a representative payee that is ‘‘(ii) The total of the amount paid to such not a Federal, State, or local government (e) REPORT TO CONGRESS.—The Commis- individual or such individual’s alternative agency has misused all or part of an individ- sioner of Social Security, in consultation representative payee under clause (i) and the ual’s benefit that was paid to such represent- with the Inspector General of the Social Se- amount paid under subparagraph (E) may ative payee under this subsection, the rep- curity Administration, shall prepare a report not exceed the total benefit amount misused resentative payee shall be liable for the evaluating whether the existing procedures by the representative payee with respect to amount misused, and such amount (to the and reviews for the qualification (including such individual.’’. extent not repaid by the representative disqualification) of representative payees are (d) EFFECTIVE DATE.—The amendments payee) shall be treated as an overpayment of sufficient to enable the Commissioner to made by this section shall apply to benefit benefits under this title to the representa- protect benefits from being misused by rep- misuse by a representative payee in any case tive payee for all purposes of this Act and re- resentative payees. The Commissioner shall with respect to which the Commissioner of lated laws pertaining to the recovery of such submit the report to the Committee on Ways Social Security or a court of competent ju- overpayments. Subject to subparagraph (B), and Means of the House of Representatives risdiction makes the determination of mis- upon recovering all or any part of such and the Committee on Finance of the Senate use after December 31, 2002. amount, the Commissioner shall certify an no later than 270 days after the date of en- SEC. 106. AUTHORITY TO REDIRECT DELIVERY amount equal to the recovered amount for actment of this Act. The Commissioner shall OF BENEFIT PAYMENTS WHEN A payment to such individual or such individ- REPRESENTATIVE PAYEE FAILS TO include in such report any recommendations ual’s alternative representative payee. PROVIDE REQUIRED ACCOUNTING. that the Commissioner considers appro- ‘‘(B) The total of the amount certified for (a) TITLE II AMENDMENTS.—Section 205(j)(3) priate. payment to such individual or such individ- of the Social Security Act (42 SEC. 104. FEE FORFEITURE IN CASE OF BENEFIT ual’s alternative representative payee under U.S.C. 405(j)(3)) (as amended by sections MISUSE BY REPRESENTATIVE PAY- subparagraph (A) and the amount certified 102(a)(1)(B) and 105(a)(2)) is amended— EES. for payment under paragraph (5) may not ex- (1) by redesignating subparagraphs (E) and (a) TITLE II AMENDMENTS.—Section ceed the total benefit amount misused by the (F) as subparagraphs (F) and (G), respec- 205(j)(4)(A)(i) of the Social Security Act (42 representative payee with respect to such in- tively; and U.S.C. 405(j)(4)(A)(i)) is amended— dividual.’’. (2) by inserting after subparagraph (D) the (1) in the first sentence, by striking ‘‘A’’ (b) TITLE VIII AMENDMENT.—Section 807 of following new subparagraph: and inserting ‘‘Except as provided in the such Act (as amended by section 102(b)(2)) is ‘‘(E) In any case in which the person de- next sentence, a’’; and amended further by adding at the end the scribed in subparagraph (A) or (D) receiving (2) in the second sentence, by striking following new subsection: payments on behalf of another fails to sub- ‘‘The Secretary’’ and inserting the following: ‘‘(l) LIABILITY FOR MISUSED AMOUNTS.— mit a report required by the Commissioner ‘‘A qualified organization may not collect a ‘‘(1) IN GENERAL.—If the Commissioner of of Social Security under subparagraph (A) or fee from an individual for any month with Social Security or a court of competent ju- (D), the Commissioner may, after furnishing respect to which the Commissioner of Social risdiction determines that a representative notice to such person and the individual en- Security or a court of competent jurisdiction payee that is not a Federal, State, or local titled to such payment, require that such has determined that the organization mis- government agency has misused all or part person appear in person at a field office of used all or part of the individual’s benefit, of a qualified individual’s benefit that was the Social Security Administration serving and any amount so collected by the qualified paid to such representative payee under this the area in which the individual resides in organization for such month shall be treated section, the representative payee shall be order to receive such payments.’’. as a misused part of the individual’s benefit liable for the amount misused, and such (b) TITLE VIII AMENDMENTS.—Section for purposes of paragraphs (5) and (6). The amount (to the extent not repaid by the rep- 807(h) of such Act (42 U.S.C. 1007(h)) is Commissioner’’. resentative payee) shall be treated as an amended— (b) TITLE XVI AMENDMENTS.—Section overpayment of benefits under this title to (1) by redesignating paragraphs (3) and (4) 1631(a)(2)(D)(i) of such Act (42 the representative payee for all purposes of as paragraphs (4) and (5), respectively; and U.S.C. 1383(a)(2)(D)(i)) is amended— this Act and related laws pertaining to the (2) by inserting after paragraph (2) the fol- (1) in the first sentence, by striking ‘‘A’’ recovery of such overpayments. Subject to lowing new paragraph: and inserting ‘‘Except as provided in the paragraph (2), upon recovering all or any ‘‘(3) AUTHORITY TO REDIRECT DELIVERY OF next sentence, a’’; and part of such amount, the Commissioner shall BENEFIT PAYMENTS WHEN A REPRESENTATIVE (2) in the second sentence, by striking make payment of an amount equal to the re- PAYEE FAILS TO PROVIDE REQUIRED ACCOUNT- ‘‘The Commissioner’’ and inserting the fol- covered amount to such qualified individual ING.—In any case in which the person de- lowing: ‘‘A qualified organization may not or such qualified individual’s alternative scribed in paragraph (1) or (2) receiving ben- collect a fee from an individual for any representative payee. efit payments on behalf of a qualified indi- month with respect to which the Commis- ‘‘(2) LIMITATION.—The total of the amount vidual fails to submit a report required by sioner of Social Security or a court of com- paid to such individual or such individual’s the Commissioner of Social Security under petent jurisdiction has determined that the alternative representative payee under para- paragraph (1) or (2), the Commissioner may, organization misused all or part of the indi- graph (1) and the amount paid under sub- after furnishing notice to such person and

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00089 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 S11320 CONGRESSIONAL RECORD — SENATE November 18, 2002 the qualified individual, require that such Publicly Funded Institutions, and Fugi- ‘‘(ii) complies with standards prescribed by person appear in person at a United States tives’’; the Commissioner of Social Security respect- Government facility designated by the So- (2) in paragraph (1)(A)(ii)(IV), by striking ing the content of such notice and its place- cial Security Administration as serving the ‘‘or’’ at the end; ment, visibility, and legibility. area in which the qualified individual resides (3) in paragraph (1)(A)(iii), by striking the ‘‘(B) Subparagraph (A) shall not apply to in order to receive such benefit payments.’’. period at the end and inserting a comma; any offer— (c) TITLE XVI AMENDMENT.—Section (4) by inserting after paragraph (1)(A)(iii) ‘‘(i) to serve as a claimant representative 1631(a)(2)(C) of such Act (42 the following: in connection with a claim arising under U.S.C. 1383(a)(2)(C)) is amended by adding at ‘‘(iv) is fleeing to avoid prosecution, or cus- title II, title VIII, or title XVI; or the end the following new clause: tody or confinement after conviction, under ‘‘(ii) to prepare, or assist in the prepara- ‘‘(v) In any case in which the person de- the laws of the place from which the person tion of, an individual’s plan for achieving scribed in clause (i) or (iv) receiving pay- flees, for a crime, or an attempt to commit self-support under title XVI.’’; and ments on behalf of another fails to submit a a crime, which is a felony under the laws of (2) in the heading, by striking ‘‘PROHIBITION report required by the Commissioner of So- the place from which the person flees, or OF MISUSE OF SYMBOLS, EMBLEMS, OR NAMES IN cial Security under clause (i) or (iv), the which, in the case of the State of New Jer- REFERENCE’’ and inserting ‘‘PROHIBITIONS RE- Commissioner may, after furnishing notice sey, is a high misdemeanor under the laws of LATING TO REFERENCES’’. to the person and the individual entitled to such State, or (b) EFFECTIVE DATE.—The amendments the payment, require that such person ap- ‘‘(v) is violating a condition of probation or made by this section shall apply to offers of pear in person at a field office of the Social parole imposed under Federal or State law. assistance made after the sixth month end- Security Administration serving the area in In the case of an individual from whom such ing after the Commissioner of Social Secu- which the individual resides in order to re- monthly benefits have been withheld pursu- rity promulgates final regulations pre- ceive such payments.’’. ant to clause (iv), the Commissioner may, for scribing the standards applicable to the no- (d) EFFECTIVE DATE.—The amendment good cause shown, pay such withheld bene- tice required to be provided in connection made by this section shall take effect 180 fits to the individual.’’; and with such offer. The Commissioner shall pro- days after the date of enactment of this Act. (5) in paragraph (3), by adding at the end mulgate such final regulations within 1 year Subtitle B—Enforcement the following new subparagraph: after the date of enactment of this Act. SEC. 111. CIVIL MONETARY PENALTY AUTHORITY ‘‘(C) Notwithstanding the provisions of sec- SEC. 204. REFUSAL TO RECOGNIZE CERTAIN IN- WITH RESPECT TO WRONGFUL CON- tion 552a of title 5, United States Code, or DIVIDUALS AS CLAIMANT REP- VERSIONS BY REPRESENTATIVE any other provision of Federal or State law RESENTATIVES. PAYEES. (other than section 6103 of the Internal Rev- Section 206(a)(1) of the Social Security Act (a) IN GENERAL.—Section 1129(a) of the So- enue Code of 1986 and section 1106(c) of this (42 U.S.C. 406(a)(1)) is amended by inserting cial Security Act (42 U.S.C. 1320a–8) is Act), the Commissioner shall furnish any after the second sentence the following: amended by adding at the end the following Federal, State, or local law enforcement offi- ‘‘Notwithstanding the preceding sentences, new paragraph: cer, upon the written request of the officer, the Commissioner, after due notice and op- ‘‘(3) Any person (including an organization, with the current address, Social Security portunity for hearing, (A) may refuse to rec- agency, or other entity) who, having re- number, and photograph (if applicable) of ognize as a representative, and may dis- ceived, while acting in the capacity of a rep- any beneficiary under this title, if the officer qualify a representative already recognized, resentative payee pursuant to section 205(j), furnishes the Commissioner with the name any attorney who has been disbarred or sus- 807, or 1631(a)(2), a payment under title II, of the beneficiary, and other identifying in- pended from any court or bar to which he or VIII, or XVI for the use and benefit of an- formation as reasonably required by the she was previously admitted to practice or other individual, converts such payment, or Commissioner to establish the unique iden- who has been disqualified from participating any part thereof, to a use that such person tity of the beneficiary, and notifies the Com- in or appearing before any Federal program knows or should know is other than for the missioner that— or agency, and (B) may refuse to recognize, use and benefit of such other individual shall ‘‘(i) the beneficiary— and may disqualify, as a nonattorney rep- be subject to, in addition to any other pen- ‘‘(I) is described in clause (iv) or (v) of resentative any attorney who has been dis- alties that may be prescribed by law, a civil paragraph (1)(A); and barred or suspended from any court or bar to money penalty of not more than $5,000 for ‘‘(II) has information that is necessary for which he or she was previously admitted to each such conversion. Such person shall also the officer to conduct the officer’s official practice. A representative who has been dis- be subject to an assessment, in lieu of dam- duties; and qualified or suspended pursuant to this sec- ages sustained by the United States result- ‘‘(ii) the location or apprehension of the tion from appearing before the Social Secu- ing from the conversion, of not more than beneficiary is within the officer’s official du- rity Administration as a result of collecting twice the amount of any payments so con- ties.’’. or receiving a fee in excess of the amount au- verted.’’. (b) REGULATIONS.—Not later than the first thorized shall be barred from appearing be- (b) EFFECTIVE DATE.—The amendment day of the first month that begins on or after fore the Social Security Administration as a made by this section shall apply with respect the date that is 9 months after the date of representative until full restitution is made to violations committed after the date of en- enactment of this Act, the Commissioner of to the claimant and, thereafter, may be con- actment of this Act. Social Security shall promulgate regulations sidered for reinstatement only under such TITLE II—PROGRAM PROTECTIONS governing payment by the Commissioner, for rules as the Commissioner may prescribe.’’. good cause shown, of withheld benefits, pur- SEC. 201. ISSUANCE BY COMMISSIONER OF SO- SEC. 205. PENALTY FOR CORRUPT OR FORCIBLE CIAL SECURITY OF RECEIPTS TO AC- suant to the last sentence of section INTERFERENCE WITH ADMINISTRA- KNOWLEDGE SUBMISSION OF RE- 202(x)(1)(A) of the Social Security Act (as TION OF SOCIAL SECURITY ACT. PORTS OF CHANGES IN WORK OR amended by subsection (a)). Part A of title XI of the Social Security EARNINGS STATUS OF DISABLED (c) EFFECTIVE DATE.—The amendments Act (42 U.S.C. 1301 et seq.) is amended by in- BENEFICIARIES. made by subsection (a) shall take effect on serting after section 1129A the following new Effective as soon as possible, but not later the first day of the first month that begins section: than 1 year after the date of enactment of on or after the date that is 9 months after ‘‘ATTEMPTS TO INTERFERE WITH this Act, until such time as the Commis- the date of enactment of this Act. ADMINISTRATION OF SOCIAL SECURITY ACT sioner of Social Security implements a cen- SEC. 203. REQUIREMENTS RELATING TO OFFERS ‘‘SEC. 1129B. Whoever corruptly or by force tralized computer file recording the date of TO PROVIDE FOR A FEE A PRODUCT the submission of information by a disabled OR SERVICE AVAILABLE WITHOUT or threats of force (including any threat- beneficiary (or representative) regarding a CHARGE FROM THE SOCIAL SECU- ening letter or communication) attempts to change in the beneficiary’s work or earnings RITY ADMINISTRATION. intimidate or impede any officer, employee, status, the Commissioner shall issue a re- (a) IN GENERAL.—Section 1140 of the Social or contractor of the Social Security Admin- ceipt to the disabled beneficiary (or rep- Security Act (42 U.S.C. 1320b–10) is amend- istration (including any State employee of a resentative) each time he or she submits doc- ed— disability determination service or any other umentation, or otherwise reports to the (1) in subsection (a), by adding at the end individual designated by the Commissioner Commissioner, on a change in such status. the following new paragraph: of Social Security) acting in an official ca- ‘‘(4)(A) No person shall offer, for a fee, to pacity to carry out a duty under this Act, or SEC. 202. DENIAL OF TITLE II BENEFITS TO PER- SONS FLEEING PROSECUTION, CUS- assist an individual to obtain a product or in any other way corruptly or by force or TODY, OR CONFINEMENT, AND TO service that the person knows or should threats of force (including any threatening PERSONS VIOLATING PROBATION know is provided free of charge by the Social letter or communication) obstructs or im- OR PAROLE. Security Administration unless, at the time pedes, or attempts to obstruct or impede, the (a) IN GENERAL.—Section 202(x) of the So- the offer is made, the person provides to the due administration of this Act, shall be fined cial Security Act (42 U.S.C. 402(x)) is amend- individual to whom the offer is tendered a not more than $5,000, imprisoned not more ed— notice that— than 3 years, or both, except that if the of- (1) in the heading, by striking ‘‘Prisoners’’ ‘‘(i) explains that the product or service is fense is committed only by threats of force, and all that follows and inserting the fol- available free of charge from the Social Se- the person shall be fined not more than lowing: ‘‘Prisoners, Certain Other Inmates of curity Administration, and $3,000, imprisoned not more than 1 year, or

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00090 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11321 both. In this subsection, the term ‘threats of ceed the greater of $75 or the adjusted SEC. 404. AVAILABILITY OF FEDERAL AND STATE force’ means threats of harm to the officer or amount as provided pursuant to the fol- WORK INCENTIVE SERVICES TO AD- employee of the United States or to a con- lowing two sentences’’ after ‘‘subparagraph DITIONAL INDIVIDUALS. tractor of the Social Security Administra- (B)’’; and (a) FEDERAL WORK INCENTIVES OUTREACH tion, or to a member of the family of such an (2) by adding at the end the following new PROGRAM.— officer or employee or contractor.’’. sentence: ‘‘In the case of any calendar year (1) IN GENERAL.—Section 1149(c)(2) of the beginning after 2003, the dollar amount spec- Social Security Act (42 U.S.C. 1320b–20(c)(2)) SEC. 206. USE OF SYMBOLS, EMBLEMS, OR NAMES is amended to read as follows: IN REFERENCE TO SOCIAL SECU- ified in the preceding sentence (including a ‘‘(2) DISABLED BENEFICIARY.—The term RITY OR MEDICARE. previously adjusted amount) shall be ad- ‘disabled beneficiary’ means an individual— (a) IN GENERAL.—Section 1140(a)(1) of the justed annually under the procedures used to ‘‘(A) who is a disabled beneficiary as de- Social Security Act (42 U.S.C. 1320b–10(a)(1)) adjust benefit amounts under section fined in section 1148(k)(2) of this Act; is amended— 215(i)(2)(A)(ii), except such adjustment shall ‘‘(B) who is receiving a cash payment de- (1) in subparagraph (A), by inserting be based on the higher of $75 or the pre- scribed in section 1616(a) of this Act or a sup- ‘‘ ‘Centers for Medicare & Medicaid Serv- viously adjusted amount that would have plementary payment described in section ices’,’’ after ‘‘ ‘Health Care Financing Ad- been in effect for December of the preceding 212(a)(3) of Public Law 93–66 (without regard ministration’,’’, by striking ‘‘or year, but for the rounding of such amount to whether such payment is paid by the Com- ‘Medicaid’, ’’ and inserting ‘‘ ‘Medicaid’, pursuant to the following sentence. Any missioner pursuant to an agreement under ‘Death Benefits Update’, ‘Federal Benefit In- amount so adjusted that is not a multiple of section 1616(a) of this Act or under section formation’, ‘Funeral Expenses’, or ‘Final $10 shall be rounded to the next lowest mul- 212(b) of Public Law 93–66); Supplemental Plan’,’’ and by inserting tiple of $10, but in no case less than $75.’’. ‘‘(C) who, pursuant to section 1619(b) of ‘‘ ‘CMS’,’’ after ‘‘ ‘HCFA’,’’; (b) EFFECTIVE DATE.—The amendment this Act, is considered to be receiving bene- (2) in subparagraph (B), by inserting made by this section shall apply with respect fits under title XVI of this Act; or ‘‘Centers for Medicare & Medicaid Services,’’ to fees for representation of claimants which ‘‘(D) who is entitled to benefits under part after ‘‘Health Care Financing Administra- are first required to be certified or paid A of title XVIII of this Act by reason of the tion,’’ each place it appears; and under section 206 of the Social Security Act penultimate sentence of section 226(b) of this (3) in the matter following subparagraph on or after the first day of the first month Act.’’. (B), by striking ‘‘the Health Care Financing that begins after 180 days after the date of (2) EFFECTIVE DATE.—The amendment Administration,’’ each place it appears and enactment of this Act. made by this subsection shall apply with re- inserting ‘‘the Centers for Medicare & Med- TITLE IV—MISCELLANEOUS AND spect to grants, cooperative agreements, or icaid Services,’’. TECHNICAL AMENDMENTS contracts entered into on or after the date of (b) EFFECTIVE DATE.—The amendments enactment of this Act. made by this section shall apply to items Subtitle A—Amendments Relating to the Ticket to Work and Work Incentives Im- (b) STATE GRANTS FOR WORK INCENTIVES sent after 180 days after the date of enact- ASSISTANCE.— provement Act of 1999 ment of this Act. (1) DEFINITION OF DISABLED BENEFICIARY.— SEC. 207. DISQUALIFICATION FROM PAYMENT SEC. 401. APPLICATION OF DEMONSTRATION AU- Section 1150(g)(2) of such Act (42 DURING TRIAL WORK PERIOD UPON THORITY SUNSET DATE TO NEW U.S.C. 1320b–21(g)(2)) is amended to read as PROJECTS. CONVICTION OF FRAUDULENT CON- follows: CEALMENT OF WORK ACTIVITY. Section 234 of the Social Security Act (42 ‘‘(2) DISABLED BENEFICIARY.—The term (a) IN GENERAL.—Section 222(c) of the So- U.S.C. 434) is amended— ‘disabled beneficiary’ means an individual— cial Security Act (42 U.S.C. 422(c)) is amend- (1) in the first sentence of subsection (c), ‘‘(A) who is a disabled beneficiary as de- ed by adding at the end the following new by striking ‘‘conducted under subsection (a)’’ fined in section 1148(k)(2) of this Act; paragraph: and inserting ‘‘initiated under subsection (a) ‘‘(B) who is receiving a cash payment de- ‘‘(5) Upon conviction by a Federal court on or before December 17, 2004’’; and scribed in section 1616(a) of this Act or a sup- that an individual has fraudulently con- (2) in subsection (d)(2), by amending the plementary payment described in section cealed work activity during a period of trial first sentence to read as follows: ‘‘The au- 212(a)(3) of Public Law 93–66 (without regard work from the Commissioner of Social Secu- thority to initiate projects under the pre- to whether such payment is paid by the Com- rity by— ceding provisions of this section shall termi- missioner pursuant to an agreement under ‘‘(A) providing false information to the nate on December 18, 2004.’’. section 1616(a) of this Act or under section Commissioner of Social Security as to SEC. 402. EXPANSION OF WAIVER AUTHORITY 212(b) of Public Law 93–66); whether the individual had earnings in or for AVAILABLE IN CONNECTION WITH ‘‘(C) who, pursuant to section 1619(b) of a particular period, or as to the amount DEMONSTRATION PROJECTS PRO- this Act, is considered to be receiving bene- thereof; VIDING FOR REDUCTIONS IN DIS- fits under title XVI of this Act; or ‘‘(B) receiving disability insurance benefits ABILITY INSURANCE BENEFITS BASED ON EARNINGS. ‘‘(D) who is entitled to benefits under part under this title while engaging in work ac- A of title XVIII of this Act by reason of the Section 302(c) of the Ticket to Work and tivity under another identity, including penultimate sentence of section 226(b) of this Work Incentives Improvement Act of 1999 (42 under another social security account num- Act.’’. U.S.C. 434 note) is amended by striking ‘‘(42 ber or a number purporting to be a social se- (2) ADVOCACY OR OTHER SERVICES NEEDED TO U.S.C. 401 et seq.),’’ and inserting ‘‘(42 curity account number; or MAINTAIN GAINFUL EMPLOYMENT.—Section U.S.C. 401 et seq.) and the requirements of ‘‘(C) taking other actions to conceal work 1150(b)(2) of such Act (42 U.S.C. 1320b–21(b)(2)) section 1148 of such Act (42 U.S.C. 1320b–19) activity with an intent fraudulently to se- is amended by striking ‘‘secure or regain’’ as they relate to the program established cure payment in a greater amount than is and inserting ‘‘secure, maintain, or regain’’. under title II of such Act,’’. due or when no payment is authorized, (3) EFFECTIVE DATE.—The amendments no benefit shall be payable to such individual SEC. 403. FUNDING OF DEMONSTRATION made by this subsection shall apply with re- under this title with respect to a period of PROJECTS PROVIDED FOR REDUC- spect to payments provided after the date of TIONS IN DISABILITY INSURANCE disability for any month before such convic- BENEFITS BASED ON EARNINGS. enactment of this Act. tion during which the individual rendered Section 302(f) of the Ticket to Work and SEC. 405. TECHNICAL AMENDMENT CLARIFYING services during the period of trial work with TREATMENT FOR CERTAIN PUR- Work Incentives Improvement Act of 1999 (42 respect to which the fraudulently concealed POSES OF INDIVIDUAL WORK PLANS U.S.C. 434 note) is amended to read as fol- work activity occurred, and amounts other- UNDER THE TICKET TO WORK AND lows: wise due under this title as restitution, pen- SELF-SUFFICIENCY PROGRAM. ‘‘(f) EXPENDITURES.—Administrative ex- (a) IN GENERAL.—Section 1148(g)(1) of the alties, assessments, fines, or other repay- penses for demonstration projects under this Social Security Act (42 U.S.C. 1320b–19) is ments shall in all cases be in addition to any section shall be paid from funds available for amended by adding at the end, after and amounts for which such individual is liable the administration of title II or XVIII of the below subparagraph (E), the following new as overpayments by reason of such conceal- Social Security Act, as appropriate. Benefits sentence: ment.’’. payable to or on behalf of individuals by rea- (b) EFFECTIVE DATE.—The amendment ‘‘An individual work plan established pursu- son of participation in projects under this made by subsection (a) shall apply with re- ant to this subsection shall be treated, for section shall be made from the Federal Dis- spect to work activity performed after the purposes of section 51(d)(6)(B)(i) of the Inter- ability Insurance Trust Fund and the Fed- date of the enactment of this Act. nal Revenue Code of 1986, as an individual- eral Old-Age and Survivors Insurance Trust ized written plan for employment under a TITLE III—ATTORNEY FEE PAYMENT Fund, as determined appropriate by the State plan for vocational rehabilitation serv- SYSTEM IMPROVEMENTS Commissioner of Social Security, and from ices approved under the Rehabilitation Act SEC. 301. CAP ON ATTORNEY ASSESSMENTS. the Federal Hospital Insurance Trust Fund of 1973.’’. (a) IN GENERAL.—Section 206(d)(2)(A) of the and the Federal Supplementary Medical In- (b) EFFECTIVE DATE.—The amendment Social Security Act (42 U.S.C. 406(d)(2)(A)) is surance Trust Fund, as determined appro- made by subsection (a) shall take effect as if amended— priate by the Secretary of Health and Human included in section 505 of the Ticket to Work (1) by inserting ‘‘, except that the max- Services, from funds available for benefits and Work Incentives Improvement Act of imum amount of the assessment may not ex- under such title II or XVIII.’’. 1999 (Public Law 106–170; 113 Stat. 1921).

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00091 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 S11322 CONGRESSIONAL RECORD — SENATE November 18, 2002 Subtitle B—Miscellaneous Amendments ‘‘(D) the prior wife continued to remain in- ferences of the Board or otherwise engaged SEC. 411. ELIMINATION OF TRANSCRIPT RE- stitutionalized up to the time of her death, in the business of the Board, be compensated QUIREMENT IN REMAND CASES and at the daily rate of basic pay for level IV of FULLY FAVORABLE TO THE CLAIM- ‘‘(E) the individual married the surviving the Executive Schedule for each day during ANT. wife within 60 days after the prior wife’s which the member is engaged in performing (a) IN GENERAL.—Section 205(g) of the So- death.’’. a function of the Board. While serving on cial Security Act (42 U.S.C. 405(g)) is amend- (b) WIDOWERS.—Section 216(g) of such Act business of the Board away from their homes ed in the sixth sentence by striking ‘‘and a (42 U.S.C. 416(g)) is amended— or regular places of business, members may transcript’’ and inserting ‘‘and, in any case (1) by redesignating subclauses (A) through be allowed travel expenses, including per in which the Commissioner has not made a (C) of clause (6) as subclauses (i) through diem in lieu of subsistence, as authorized by decision fully favorable to the individual, a (iii), respectively; section 5703 of title 5, United States Code, for transcript’’. (2) by redesignating clauses (1) through (6) persons in the Government employed inter- (b) EFFECTIVE DATE.—The amendment as clauses (A) through (F), respectively; mittently.’’. made by this section shall apply with respect (3) in clause (E) (as redesignated), by in- (b) EFFECTIVE DATE.—The amendment to final determinations issued (upon remand) serting ‘‘except as provided in paragraph made by this section shall be effective as of on or after the date of enactment of this Act. (2),’’ before ‘‘he was married’’; January 1, 2002. SEC. 412. NONPAYMENT OF BENEFITS UPON RE- (4) by inserting ‘‘(1)’’ after ‘‘(g)’’; and SEC. 418. 60-MONTH PERIOD OF EMPLOYMENT MOVAL FROM THE UNITED STATES. (5) by adding at the end the following new REQUIREMENT FOR APPLICATION OF GOVERNMENT PENSION OFFSET (a) IN GENERAL.—Paragraphs (1) and (2) of paragraph: EXEMPTION. section 202(n) of the Social Security Act (42 ‘‘(2) The requirements of paragraph (1)(E) (a) WIFE’S INSURANCE BENEFITS.—Section U.S.C. 402(n)(1), (2)) are each amended by in connection with the surviving husband of 202(b)(4)(A) of the Social Security Act (42 striking ‘‘or (1)(E)’’. an individual shall be treated as satisfied if— U.S.C. 402(b)(4)(A)) is amended by striking (b) EFFECTIVE DATE.—The amendment ‘‘(A) the individual had been married prior ‘‘if, on’’ and inserting ‘‘if, during any portion made by this section to section 202(n)(1) of to the individual’s marriage to the surviving of the last 60 months of such service prior the Social Security Act shall apply to indi- husband, to’’. viduals with respect to whom the Commis- ‘‘(B) the prior husband was institutional- (b) HUSBAND’S INSURANCE BENEFITS.—Sec- ized during the individual’s marriage to the sioner of Social Security receives a removal tion 202(c)(2)(A) of such Act (42 U.S.C. prior husband due to mental incompetence notice from the Attorney General after the 402(c)(2)(A)) is amended by striking ‘‘if, on’’ or similar incapacity, date of enactment of this Act. The amend- and inserting ‘‘if, during any portion of the ‘‘(C) during the period of the prior hus- ment made by this section to section last 60 months of such service prior to’’. band’s institutionalization, the individual 202(n)(2) of the Social Security Act shall (c) WIDOW’S INSURANCE BENEFITS.—Section would have divorced the prior husband and apply with respect to removals occurring 202(e)(7)(A) of such Act (42 U.S.C. 402(e)(7)(A)) married the surviving husband, but the indi- after the date of enactment of this Act. is amended by striking ‘‘if, on’’ and inserting vidual did not do so because such divorce SEC. 413. REINSTATEMENT OF CERTAIN REPORT- ‘‘if, during any portion of the last 60 months would have been unlawful, by reason of the ING REQUIREMENTS. of such service prior to’’. prior husband’s institutionalization, under Section 3003(a)(1) of the Federal Reports (d) WIDOWER’S INSURANCE BENEFITS.—Sec- Elimination and Sunset Act of 1995 (31 the laws of the State in which the individual tion 202(f)(2)(A) of such Act (42 U.S.C. U.S.C. 1113 note) shall not apply to any re- was domiciled at the time (as determined 402(f)(2)(A)) is amended by striking ‘‘if, on’’ port required to be submitted under any of based on evidence satisfactory to the Com- and inserting ‘‘if, during any portion of the the following provisions of law: missioner of Social Security), last 60 months of such service prior to’’. (1)(A) Section 201(c)(2) of the Social Secu- ‘‘(D) the prior husband continued to re- (e) MOTHER’S AND FATHER’S INSURANCE rity Act (42 U.S.C. 401(c)(2)). main institutionalized up to the time of his BENEFITS.—Section 202(g)(4)(A) of the such (B) Section 1817(b)(2) of the Social Security death, and Act (42 U.S.C. 402(g)(4)(A)) is amended by Act (42 U.S.C. 1395i(b)(2)). ‘‘(E) the individual married the surviving striking ‘‘if, on’’ and inserting ‘‘if, during (C) Section 1841(b)(2) of the Social Security husband within 60 days after the prior hus- any portion of the last 60 months of such Act (42 U.S.C. 1395t(b)(2)). band’s death.’’. service prior to’’. (2)(A) Section 221(c)(3)(C) of the Social Se- (c) CONFORMING AMENDMENT.—Section (f) EFFECTIVE DATE.—The amendments curity Act (42 U.S.C. 421(c)(3)(C)). 216(k) of such Act (42 U.S.C. 416(k)) is amend- made by this section shall apply with respect (B) Section 221(i)(3) of the Social Security ed by striking ‘‘clause (5) of subsection (c) or to applications for benefits under title II of Act (42 U.S.C. 421(i)(3)). clause (5) of subsection (g)’’ and inserting the Social Security Act filed on or after the ‘‘clause (E) of subsection (c)(1) or clause (E) SEC. 414. CLARIFICATION OF DEFINITIONS RE- first day of the first month that begins after GARDING CERTAIN SURVIVOR BENE- of subsection (g)(1)’’. the date of enactment of this Act, except FITS. (d) EFFECTIVE DATE.—The amendments that such amendments shall not apply to in- (a) WIDOWS.—Section 216(c) of the Social made by this section shall be effective with dividuals whose last day of employment Security Act (42 U.S.C. 416(c)) is amended— respect to applications for benefits under while in the service of any State (or political (1) by redesignating subclauses (A) through title II of the Social Security Act filed dur- subdivision thereof, as defined in section (C) of clause (6) as subclauses (i) through ing months ending after the date of enact- 218(b)(2) of the Social Security Act (42 U.S.C. (iii), respectively; ment of this Act. 418(b)(2))) constitutes covered employment (2) by redesignating clauses (1) through (6) SEC. 415. CLARIFICATION RESPECTING THE FICA (as defined in section 210 of such Act (42 as clauses (A) through (F), respectively; AND SECA TAX EXEMPTIONS FOR AN U.S.C. 410)) and occurs on or before June 30, (3) in clause (E) (as redesignated), by in- INDIVIDUAL WHOSE EARNINGS ARE 2003, provided that such period of covered SUBJECT TO THE LAWS OF A TOTAL- employment for such governmental entity serting ‘‘except as provided in paragraph IZATION AGREEMENT PARTNER. began on or before December 31, 2002. (2),’’ before ‘‘she was married’’; Sections 1401(c), 3101(c), and 3111(c) of the (4) by inserting ‘‘(1)’’ after ‘‘(c)’’; and Internal Revenue Code of 1986 are each Subtitle C—Technical Amendments (5) by adding at the end the following new amended by striking ‘‘to taxes or contribu- SEC. 421. TECHNICAL CORRECTION RELATING TO paragraph: tions for similar purposes under’’ and insert- RESPONSIBLE AGENCY HEAD. ‘‘(2) The requirements of paragraph (1)(E) ing ‘‘exclusively to the laws applicable to’’. Section 1143 of the Social Security Act (42 in connection with the surviving wife of an U.S.C. 1320b–13) is amended— individual shall be treated as satisfied if— SEC. 416. COVERAGE UNDER DIVIDED RETIRE- MENT SYSTEM FOR PUBLIC EMPLOY- (1) by striking ‘‘Secretary’’ the first place ‘‘(A) the individual had been married prior EES IN KENTUCKY. it appears and inserting ‘‘Commissioner of to the individual’s marriage to the surviving (a) IN GENERAL.—Section 218(d)(6)(C) of the Social Security’’; and wife, Social Security Act (42 U.S.C. 418(d)(6)(C)) is (2) by striking ‘‘Secretary’’ each subse- ‘‘(B) the prior wife was institutionalized amended by inserting ‘‘Kentucky,’’ after quent place it appears and inserting during the individual’s marriage to the prior ‘‘,’’. ‘‘Commissioner’’. wife due to mental incompetence or similar (b) EFFECTIVE DATE.—The amendment SEC. 422. TECHNICAL CORRECTION RELATING TO incapacity, made by subsection (a) takes effect on Janu- RETIREMENT BENEFITS OF MIN- ‘‘(C) during the period of the prior wife’s ary 1, 2003. ISTERS. institutionalization, the individual would (a) IN GENERAL.—Section 211(a)(7) of the have divorced the prior wife and married the SEC. 417. COMPENSATION FOR THE SOCIAL SECU- Social Security Act (42 U.S.C. 411(a)(7)) is RITY ADVISORY BOARD. surviving wife, but the individual did not do amended by inserting ‘‘, but shall not in- (a) IN GENERAL.—Subsection (f) of section so because such divorce would have been un- clude in any such net earnings from self-em- 703 of the Social Security Act (42 U.S.C. lawful, by reason of the prior wife’s institu- ployment the rental value of any parsonage 903(f)) is amended to read as follows: tionalization, under the laws of the State in or any parsonage allowance (whether or not which the individual was domiciled at the ‘‘Compensation, Expenses, and Per Diem excluded under section 107 of the Internal time (as determined based on evidence satis- ‘‘(f) A member of the Board shall, for each Revenue Code of 1986) provided after the indi- factory to the Commissioner of Social Secu- day (including traveltime) during which the vidual retires, or any other retirement ben- rity), member is attending meetings or con- efit received by such individual from a

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00092 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11323

church plan (as defined in section 414(e) of (b) INTERNAL REVENUE CODE OF 1986 SEC. 2. TABLE OF CONTENTS. such Code) after the individual retires’’ be- AMENDMENT.—Section 1402(a)(5)(A) of the In- The table of contents for this Act is as fol- fore the semicolon. ternal Revenue Code of 1986 is amended by lows: (b) EFFECTIVE DATE.—The amendment striking ‘‘all of the gross income’’ and all Sec. 1. Short title; amendment of title 49. made by this section shall apply to years be- that follows and inserting ‘‘the gross income Sec. 2. Table of contents. ginning before, on, or after December 31, and deductions attributable to such trade or Title I—Air Cargo Security 1994. business shall be treated as the gross income SEC. 423. TECHNICAL CORRECTIONS RELATING and deductions of the spouse carrying on Sec. 101. Inspection of cargo carried aboard TO DOMESTIC EMPLOYMENT. such trade or business or, if such trade or passenger aircraft. (a) AMENDMENT TO INTERNAL REVENUE business is jointly operated, treated as the Sec. 102. Air cargo shipping. CODE.—Section 3121(a)(7)(B) of the Internal gross income and deductions of each spouse Sec. 103. Cargo carried aboard passenger air- Revenue Code of 1986 is amended by striking on the basis of their respective distributive craft. ‘‘described in subsection (g)(5)’’ and inserting share of the gross income and deductions; Sec. 104. Training program for cargo han- ‘‘on a farm operated for profit’’. and’’. dlers. (b) AMENDMENT TO SOCIAL SECURITY ACT.— SEC. 426. TECHNICAL AMENDMENTS RELATING Sec. 105. Cargo carried aboard all-cargo air- Section 209(a)(6)(B) of the Social Security TO THE RAILROAD RETIREMENT craft. Act (42 U.S.C. 409(a)(6)(B)) is amended by AND SURVIVORS IMPROVEMENT ACT Title II—Passenger Identification striking ‘‘described in section 210(f)(5)’’ and OF 2001. Sec. 201. Passenger identification. inserting ‘‘on a farm operated for profit’’. (a) QUORUM RULES.—Section 15(j)(7) of the (c) CONFORMING AMENDMENT.—Section Railroad Retirement Act of 1974 (45 U.S.C. Sec. 202. Passenger identification 3121(g)(5) of such Code and section 210(f)(5) of 231n(j)(7)) is amended by striking ‘‘entire verification. such Act (42 U.S.C. 410(f)(5)) are amended by Board of Trustees’’ and inserting ‘‘Trustees Title III—Circumvention of Airport Security striking ‘‘or is domestic service in a private then holding office’’. Sec. 301. Prohibition on unauthorized cir- home of the employer’’. (b) TRANSFERS.— cumvention of airport security SEC. 424. TECHNICAL CORRECTIONS OF OUT- (1) Section 15(k) of the Railroad Retire- systems and procedures. DATED REFERENCES. ment Act of 1974 (45 U.S.C. 231n(k)) is amend- Title VI—Blast Resistant Cargo Container (a) CORRECTION OF TERMINOLOGY AND CITA- ed by adding at the end the following: ‘‘At Technology TIONS RESPECTING REMOVAL FROM THE the direction of the Railroad Retirement UNITED STATES.—Section 202(n) of the Social Board, the National Railroad Retirement In- Sec. 401. Blast-resistant cargo container Security Act (42 U.S.C. 402(n)) (as amended vestment Trust shall transfer funds to the technology. by section 412) is amended further— Railroad Retirement Account.’’. Title V—Flight Schools (1) by striking ‘‘deportation’’ each place it (2) Section 15A(d)(2) of the Railroad Retire- Sec. 501. Modification of requirements re- appears and inserting ‘‘removal’’; ment Act of 1974 (45 U.S.C. 231n–1(d)(2)) is garding training to operate air- (2) by striking ‘‘deported’’ each place it ap- amended— craft. pears and inserting ‘‘removed’’; (A) by inserting ‘‘or the Railroad Retire- Title VI—Miscellaneous (3) in paragraph (1) (in the matter pre- ment Account’’ after ‘‘National Railroad Re- ceding subparagraph (A)), by striking ‘‘under tirement Investment Trust’’ the second place Sec. 601. FAA Notice to Airmen FDC 2/0199. section 241(a) (other than under paragraph it appears; Title VII—Technical Corrections (1)(C) thereof)’’ and inserting ‘‘under section (B) by inserting ‘‘or the Railroad Retire- Sec. 701. Technical corrections. 237(a) (other than paragraph (1)(C) thereof) ment Board’’ after ‘‘National Railroad Re- or 212(a)(6)(A)’’; tirement Investment Trust’’ the third place TITLE I—AIR CARGO SECURITY (4) in paragraph (2), by striking ‘‘under any it appears; and SEC. 101. INSPECTION OF CARGO CARRIED of the paragraphs of section 241(a) of the Im- (C) by inserting ‘‘or the Railroad Retire- ABOARD PASSENGER AIRCRAFT. migration and Nationality Act (other than ment Board’’ after ‘‘the Trust’’. Section 44901(f) is amended to read as fol- under paragraph (1)(C) thereof)’’ and insert- (c) INVESTMENT AUTHORITY.—Section lows: ‘‘(f) CARGO. ing ‘‘under any of the paragraphs of section 15(j)(4) of the Railroad Retirement Act of ‘‘(1) IN GENERAL.—The Under Secretary of 237(a) of the Immigration and Nationality 1974 (45 U.S.C. 231n(j)(4)) is amended by strik- Transportation for Security shall establish Act (other than paragraph (1)(C) thereof) or ing ‘‘shall’’ and inserting ‘‘may’’. systems to screen, inspect, or otherwise en- under section 212(a)(6)(A) of such Act’’; (d) CLERICAL.— sure the security of all cargo that is to be (5) in paragraph (3)— (1) Subparagraphs (C) and (D) of section transported in— (A) by striking ‘‘paragraph (19) of section 15(j)(4) of the Railroad Retirement Act of ‘‘(A) passenger aircraft operated by an air 241(a)’’ and inserting ‘‘subparagraph (D) of 1974 (45 U.S.C. 231n(j)(4)) are each amended carrier for foreign air carrier in air transpor- section 237(a)(4)’’; and by striking ‘‘assets in the Trust’’ and insert- tation or intrastate air transportation; or (B) by striking ‘‘paragraph (19)’’ and in- ing ‘‘assets of the Trust’’. ‘‘(B) all-cargo aircraft in air transpor- serting ‘‘subparagraph (D)’’; and (2) Paragraph (5) of section 15(j) of the tation and intrastate air transportation. (6) in the heading, by striking Railroad Retirement Act of 1974 (45 U.S.C. ‘‘(2) STRATEGIC PLAN.—The Under Sec- ‘‘Deportation’’ and inserting ‘‘Removal’’. 231n(j)(5)) is amended— retary shall develop a strategic plan to carry (b) CORRECTION OF CITATION RESPECTING (A) in subparagraph (B), by striking out paragraph (1).’’. THE TAX DEDUCTION RELATING TO HEALTH IN- ‘‘trustee’s’’ each place it appears and insert- SEC. 102. AIR CARGO SHIPPING. SURANCE COSTS OF SELF-EMPLOYED INDIVID- ing ‘‘Trustee’s’’; (a) IN GENERAL.—Subchapter I of chapter UALS.—Section 211(a)(15) of such Act (42 (B) in subparagraph (C), by striking 449, is amended by adding at the end the fol- U.S.C. 411(a)(15)) is amended by striking ‘‘trustee’’ and ‘‘trustees’’ each place it ap- lowing: ‘‘section 162(m)’’ and inserting ‘‘section pears and inserting ‘‘Trustee’’ and § 44921. Regular inspections of air cargo ship- 162(l)’’. ‘‘Trustees’’, respectively; and ping facilities (c) ELIMINATION OF REFERENCE TO OBSO- (C) in the matter preceding clause (i) of LETE 20-DAY AGRICULTURAL WORK TEST.— subparagraph (D), by striking ‘‘trustee’’ and ‘‘The Under Secretary of Transportation Section 3102(a) of the Internal Revenue Code inserting ‘‘Trustee’’. for Security shall establish a system for the of 1986 is amended by striking ‘‘and the em- regular inspection of shipping facilities for ployee has not performed agricultural labor SA 4968. Mrs. HUTCHISON (for Mr. shipments of cargo transported in air trans- portation or intrastate air transportation to for the employer on 20 days or more in the HOLLINGS (for himself and Mr. calendar year for cash remuneration com- ensure that appropriate security controls, MCCAIN)) proposed an amendment to puted on a time basis’’. systems, and protocols are observed, and the bill S. 2949, to provide for enhanced SEC. 425. TECHNICAL CORRECTION RESPECTING shall enter into arrangements with the civil SELF-EMPLOYMENT INCOME IN aviation security, and for other pur- aviation authorities, or other appropriate of- COMMUNITY PROPERTY STATES. poses; as follows: ficials, of foreign countries to ensure that in- (a) SOCIAL SECURITY ACT AMENDMENT.— SECTION 1. SHORT TITLE; AMENDMENT OF TITLE spections are conducted on a regular basis at Section 211(a)(5)(A) of the Social Security 49. shipping facilities for cargo transported in Act (42 U.S.C. 411(a)(5)(A)) is amended by (A) SHORT TITLE.—This Act may be cited air transportation to the United States.’’. striking ‘‘all of the gross income’’ and all as the ‘‘Aviation Security Improvement (b) ADDITIONAL INSPECTORS.—The Under that follows and inserting ‘‘the gross income Act’’. Secretary may increase the number of in- and deductions attributable to such trade or (b) AMENDMENT OF TITLE 49.—Except as spectors as necessary to implement the re- business shall be treated as the gross income otherwise expressly provided, whenever in quirements of title 49, United States Code, as and deductions of the spouse carrying on this Act an amendment or repeal is ex- amended by this subtitle. such trade or business or, if such trade or pressed in terms of an amendment to, or a (c) CONFORMING AMENDMENT.—The chapter business is jointly operated, treated as the repeal of, a section or other provision, the analysis for chapter 449 is amended by add- gross income and deductions of each spouse reference shall be considered to be made to a ing at the end the following: on the basis of their respective distributive section or other provision of title 49, United ‘‘44921. Regular inspections of air cargo share of the gross income and deductions;’’. States Code. shipping facilities’’.

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00093 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.054 S18PT1 S11324 CONGRESSIONAL RECORD — SENATE November 18, 2002 SEC. 103. CARGO CARRIED ABOARD PASSENGER the Secretary of Transportation such sums Federal Aviation Administration, appro- AIRCRAFT. as may be necessary to carry out this sec- priate law enforcement, security, and ter- (a) IN GENERAL.—Subchapter I of chapter tion. rorism experts, representatives of air car- 449, is further amended by adding at the end (e) CONFORMING AMENDMENT.—The chapter riers and labor organizations representing the following: analysis for chapter 449, as amended by sec- individuals employed in commercial avia- § 44922. Air cargo security tion 102, is amended by adding at the end the tion, shall develop protocols to provide guid- ‘‘(a) DATABASE.—The Under Secretary of following: ance for detection of false or fraudulent pas- Transportation for Security shall establish ‘‘44922. Air cargo security’’. senger identification. The protocols may an industry-wide pilot program database of SEC. 104. TRAINING PROGRAM FOR CARGO HAN- consider new technology, current identifica- known shippers of cargo that is to be trans- DLERS. tion measures, training of personnel, and ported in passenger aircraft operated by an The Under Secretary of Transportation for issues related to the types of identification air carrier or foreign air carrier in air trans- Security shall establish a training program available to the public. portation or intrastate air transportation. for any persons that handle air cargo to en- ‘‘(b) AIR CARRIER PROGRAMS.—Within 60 The Under Secretary shall use the results of sure that the cargo is properly handled and days after the Under Secretary issues the the pilot program to improve the known safe-guarded from security breaches. protocols under subsection (a) in final form, the Under Secretary shall provide them to shipper program. SEC. 105. CARGO CARRIED ABOARD ALL-CARGO each air carrier. The Under Secretary shall ‘‘(b) INDIRECT AIR CARRIERS. AIRCRAFT. establish a joint government and industry ‘‘(1) RANDOM INSPECTIONS.—The Under Sec- (a) IN GENERAL.—The Under Secretary of retary shall conduct random audits, inves- Transportation for Security shall establish a council to develop recommendations on how tigations, and inspections of indirect air car- program requiring that air carriers oper- to implement the protocols. The Under Sec- rier facilities to determine if the indirect air ating all-cargo aircraft have an approved retary shall report to the Senate Committee carriers are meeting the security require- plan for the security of their air operations on Commerce, Science, and Transportation ments of this title. area, the cargo placed abroad such aircraft, and the House of Representatives Committee on Transportation and Infrastructure within ‘‘(2) ENSURING COMPLIANCE.—The Under and persons having access to their aircraft Secretary may take such actions as may be on the ground or in flight. 1 year after the date of enactment of the Aviation Security Improvement Act on the appropriate to promote and ensure compli- (b) PLAN REQUIREMENTS.—The plan shall ance with the security standards established include provisions for— actions taken under this section.’’. (b) CONFORMING AMENDMENT.—The chapter under this title. (1) security of each carrier’s air operations analysis for chapter 449, is amended by add- ‘‘(3) NOTICE OF FAILURES.—The Under Sec- areas and cargo acceptance areas at the air- ing at the end the following: retary shall notify the secretary of Trans- ports served; ‘‘44923. Passenger identification’’. portation of any indirect air carrier that (2) background security checks for all em- fails to meet security standards established ployees with access to the air operations SEC. 202. PASSENGER IDENTIFICATION VERIFICATION. under this title. area; (a) REQUIREMENT.—Subchapter I of chapter ‘‘(4) SUSPENSION OR REVOCATION OF CERTIFI- (3) appropriate training for all employees 449, is further amended by adding at the end CATE.—The Secretary, as appropriate, shall and contractors with security responsibil- the following: suspend or revoke any certificate or author- ities; ity issued under chapter 411 to an indirect (4) appropriate screening of all flight crews ‘‘§ 44924. Passenger identification verification air carrier immediately upon the rec- and persons transported abroad all-cargo air- ‘‘(a) PROGRAM REQUIRED.—The Under Sec- ommendation of the Under Secretary. Any craft; retary of Transportation for Security may indirect air carrier whose certificate is sus- (5) security procedures for cargo placed on establish and carry out a program to require pended or revoked under this subparagraph all-cargo aircraft as provided in section the installation and use at airports in the may appeal the suspension or revocation in 44901(f)(1)(B) of title 49, United States Code; United States of such identification accordance with procedures established and verification technologies as the Under Sec- under this title for the appeal of suspensions (6) additional measures deemed necessary retary considers appropriate to assist in the and revocations. and appropriate by the Under Secretary. screening of passengers boarding aircraft at ‘‘(5) INDIRECT AIR CARRIER.—In this sub- (e) CONFIDENTIAL INDUSTRY REVIEW AND such airports. section, the term ‘indirect air carrier’ has COMMENT. ‘‘(b) TECHNOLOGIES EMPLOYED.—The identi- the meaning given that term in part 1548 of (1) CIRCULATION OF PROPOSED PROGRAM. fication verification technologies required as title 49, Code of Federal Regulations. The Under Secretary shall— part of the program under subsection (a) ‘‘(c) CONSIDERATION OF COMMUNITY (A) propose a program under subsection (a) may include identification scanners, bio- NEEDS.—In implementing air cargo security within 90 days after the date of enactment of metrics, retinal, iris, or facial scanners, or requirement under this title, the Under Sec- this Act; and any other technologies that the Under Sec- retary may take into consideration the ex- (B) distribute the proposed program, on a retary considers appropriate for purposes of traordinary air transportation needs of small confidential basis, to those air carriers and the program. or isolated communities and unique oper- other employers to which the program will ‘‘(c) COMMENCEMENT.—If the Under Sec- ational characteristics of carriers that serve apply. retary determines that the implementation those communities.’’. (2) COMMENT PERIOD.—Any person to which of such a program is appropriate, the instal- (b) ASSESSMENT OF INDIRECT AIR CARRIER the proposed program is distributed under lation and use of identification verification PROGRAM.—The Under Secretary of Trans- paragraph (1) may provide comments on the technologies under the program shall com- portation for Security shall assess the secu- proposed program to the Under Secretary mence as soon as practicable after the date rity aspects of the indirect air carrier pro- not more than 60 days after it was received. of that determination.’’. gram under part 1548 of title 49, Code of Fed- (3) FINAL PROGRAM.—The Under Secretary (b) CONFORMING AMENDMENT.—The chapter eral Regulations, and report the result of the of Transportation shall issue a final program analysis for chapter 449 is amended by add- assessment, together with any recommenda- under subsection (a) not later than 45 days ing at the end the following: tions for necessary modifications of the pro- after the last date on which comments may ‘‘44924. Passenger identification gram to the Senate Committee on Com- be provided under paragraph (2). The final verification’’. merce, Science, and Transportation and the program shall contain time frames for the TITLE III—CIRCUMVENTION OF AIRPORT House of Representatives Committee on plans to be implemented by each air carrier SECURITY or employer to which it applies. Transportation and the House of Representa- SEC. 301. PROHIBITION ON UNAUTHORIZED CIR- tives Committee on Transportation and In- (4) SUSPENSION OF PROCEDURAL NORMS.— CUMVENTION OF AIRPORT SECU- frastructure within 45 days after the date of Neither chapter 5 of title 5, United States RITY SYSTEMS AND PROCEDURES. enactment of this Act. The Under Secretary Code, nor the Federal Advisory Committee (a) PROHIBITION.—Section 46503 is amend- may submit the report and recommendations Act (5 U.S.C. App.) shall apply to the pro- ed— in classified form. gram required by this section. (1) by inserting ‘‘(a) INTERFERENCE WITH (c) REPORT TO CONGRESS ON RANDOM AU- TITLE II—PASSENGER IDENTIFICATION SECURITY SCREENING PERSONNEL.—’’ before DITS.—The Under Secretary of Transpor- SEC. 201. PASSENGER IDENTIFICATION. ‘‘An individual’’; and tation of Security shall report to the Senate (2) by adding at the end the following new (a) IN GENERAL.—Subchapter I of chapter Committee on Commerce, Science, and subsection: 449, as amended by title II of this Act, is fur- Transportation and House of Representatives ‘‘(b) UNAUTHORIZED CIRCUMVENTION OF SE- ther amended by adding at the end the fol- Committees on Transportation and Infra- CURITY SYSTEMS AND PROCEDURES.—An indi- lowing: structure on random screening, audits, and vidual in an area within a commercial serv- investigations of air cargo security programs ‘‘§ 44923. Passenger identification ice airport in the United States who inten- based on threat assessments and other rel- ‘‘(a) IN GENERAL.—Not later than 180 days tionally circumvents, in an unauthorized evant information. The report may be sub- after the date of enactment of the Aviation manner, a security system or procedure in mitted in classified form. Security Improvement Act, the Under Sec- the airport shall be fined under title 18, im- (d) AUTHORIZATION OF APPROPRIATIONS.— retary of Transportation for Security, in prisoned for not more than 10 years, or There are authorized to be appropriated to consultation with the Administrator of the both.’’.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00094 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.071 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11325

(b) CONFORMING AND CLERICAL AMEND- (c) PROCEDURES. promulgates, after public notice and an op- MENTS.— (1) IN GENERAL.—Not later than 30 days portunity for comment, a rule setting for the (1) The section heading of that section is after the date of enactment of this Act, the standards under which the Secretary may amended to read as follows: Attorney General shall promulgate regula- grant a waiver or exemption. Such standards ‘‘§ 46503. Interference with security screening tions to implement section 113 of the Avia- shall provide a level of security at least personnel; unauthorized circumvention of tion and Transportation Security Act. equivalent to that provided by the waiver security systems or procedures’’. (2) USE OF OVERSEAS FACILITIES.—In order policy applied by the Secretary as of the to implement the amendments made to sec- (2) The chapter analysis for chapter 465 is date of enactment of this Act. tion 44939 of title 49, United States Code, by (c) BROADCAST CONTRACTS NOT AFFECTED.— amended by striking the item relating to this section, United States Embassies and Nothing in this section shall be construed to section 46503 and inserting the following: Consulates that have fingerprinting capa- affect contractual rights pertaining to any ‘‘46503. Inference with security screening per- bility shall provide fingerprinting services to broadcasting agreement. sonnel; unauthorized cir- aliens covered by that section if the Attor- TITLE VII—TECHNICAL CORRECTIONS cumvention of security systems ney General requires their fingerprinting in SEC. 701. TECHNICAL CORRECTIONS. or procedures’’. the administration of that section, and (a) Section 114(j)(1)(D) is amended by in- TITLE IV—BLAST RESISTANT CARGO transmit the fingerprints to the Department serting ‘‘Under’’ before ‘‘Secretary’’. CONTAINER TECHNOLOGY of Justice and any other appropriate agency. (b) Section 115(c)(1) is amended— SEC. 401. BLAST RESISTANT CARGO CONTAINER The Attorney General of the United States (1) by striking ‘‘and ratify or disapprove’’; TECHNOLOGY shall cooperate with the Secretary of State and Not later than 6 months after the date of to carry out this paragraph. (2) by striking ‘‘security’’ the second place enactment of this Act, the Under Secretary (d) EFFECTIVE DATE.—Not later than 120 it appears and inserting ‘‘Security’’. of Transportation for Security, and the Ad- days after the date of enactment of this Act, (c) Section 40109(b) is amended by striking ministrator of the Federal Aviation Admin- the Attorney General shall promulgate regu- ‘‘40103(b)(1) and (2), 40119, 44901, 44903, 44906, istration, shall jointly submit a report to lations to implement the amendments made and 44935–44937’’ and inserting ‘‘40103(b)(1) Congress that— by this section. The Attorney General may and (2) and 40119’’. (1) evaluates blast-resistant cargo con- not interrupt or prevent the training of any (d) Section 44901(e) is amended by striking tainer technology to protect against explo- person described in section 44939(a)(1) of title ‘‘subsection (b)(1)(A)’’ and inserting sives in passenger luggage and cargo; 49, United States Code, who commenced ‘‘subsection (d)(1)(A)’’. (2) examines the advantages associated training on aircraft with a maximum certifi- (e) Section 44901(g)(2) is amended by strik- with this technology in preventing the dam- cated takeoff weight of 12,500 pounds or less ing ‘‘Except at airports required to enter age and loss of aircraft from terrorist action, before, or within 120 days after, the date of into agreements under subsection (c), the’’ any operational impacts which may result enactment of this Act unless the Attorney and inserting ‘‘the’’. (particularly added weight and costs) and General determines that the person rep- (f) Section 44903 is amended— whether alternatives exist to mitigate such resents a risk to aviation or national secu- (1) by striking ‘‘Administrator’’ in sub- impacts, and options available to pay for rity. section (c)(3) and inserting ‘‘Under Sec- this technology; and (e) REPORT.—Not later than 1 year after retary’’; and (3) provides recommendations on what fur- the date of enactment of this Act, the Sec- (2) by redesignating the second subsection ther action, if any, should be taken with re- retary of Transportation and the Attorney (h), subsection (i), and the third subsection spect to the use of blast-resistant cargo con- General shall jointly submit to the Senate (h) as subsections (i), (j), and (k), respec- tainers on passenger aircraft. Committee on Commerce, Science, and tively. Transportation and the House of Representa- (g) Section 44909 is amended— TITLE V—FLIGHT SCHOOLS tives Committee on transportation and In- (1) by striking ‘‘Not later than March 16, SEC. 501 MODIFICATION OF REQUIREMENTS RE- frastructure a report on the effectiveness of 1991, the’’ in subsection (a)(1) and inserting GARDING TRAINING TO OPERATE the activities carried out under section 44939 ‘‘The’’; and AIRCRAFT. of title 49, United States Code, as amended (2) by inserting ‘‘of Transportation for Se- (a) ALIENS COVERED BY WAITING PERIOD.— by this section, in reducing risks to aviation curity’’ after ‘‘Under Secretary’’ in sub- Subsection (a) of section 44939 is amended— and national security. section (c)(2)(F). (1) by resetting the text of subsection (a) TITLE VI—MISCELLANEOUS (h) Section 44935 is amended— after (1) by striking ‘‘States;’’ in subsection ‘‘(a) WAITING PERIOD.—’’ as a new para- SEC. 601. FAA NOTICE TO AIRMEN FDC 2/0199. (e)(2)(a)(ii) and inserting ‘‘States or de- graph 2 ems from the left margin; (a) IN GENERAL.—The Secretary of Trans- scribed in subparagraph (C);’’; (2) by striking ‘‘A person’’ in that new portation— (2) by redesignating subparagraph sub- paragraph and inserting ‘‘(1) IN GENERAL.—A (1) shall maintain in full force and effect section (e)(2)(C) as subparagraph (D); person’’; the restrictions imposed under Federal Avia- (3) by inserting after subsection (e)(2)(B) (3) by redesignating paragraphs (1) and (2) tion Administration Notice to Airmen FDC the following: as subparagraphs (A) and (B), respectively; 2/0199 (including any local Notices to Airmen ‘‘(C) OTHER INDIVIDUALS.—An individual is (4) by striking ‘‘any aircraft having a max- of similar effect or import), as those restric- described in this subparagraph if that indi- imum certificated takeoff weight of 12,500 tions are in effect on the date of enactment vidual— pounds or more’’ and inserting ‘‘an aircraft’’; of this Act, for a period of 180 days after that ‘‘(i) is a national of the United States (as (5) by striking ‘‘paragraph (1)’’ in para- date; defined in section 101(a)(22) of the Immigra- graph (1)(B), as redesignated, and inserting (2) shall rescind immediately any waivers tion and Nationality Act (8 U.S.C. ‘‘subparagraph (A)’’ and or exemptions from those restrictions that 1101(a)(22))); (6) by adding at the end the following: are in effect on the date of enactment of this ‘‘(ii) was born in a territory of the United ‘‘(2) EXCEPTION.—The requirements of para- Act; and States; graph (1) shall not apply to an alien who— (3) may not grant any waivers or exemp- ‘‘(iii) was honorably discharged from serv- ‘‘(A) has earned a Federal Aviation Admin- tions from those restrictions, except— ice in the Armed Forces of the United istration type rating in an aircraft; or (A) as authorized by the air traffic control States; or ‘‘(B) holds a current pilot’s license or for- for operational or safety purposes; ‘‘(iv) is an alien lawfully admitted for per- eign equivalent commercial pilot’s license (B) for operational purposes of an event, manent residence, as defined in section that permits the person to fly an aircraft stadium, or other venue, including (in the 101(a)(20) of the Immigration and Nationality with a maximum certificated takeoff weight case of a sporting event) equipment or parts, Act and was employed to perform security of more than 12,500 pounds as defined by the transport of team members, officials of the screening services at an airport in the International Civil Aviation Organization in governing body and immediate family mem- United States on the date of enactment of Annex 1 to the Convention on International bers of team members and officials to and the Aviation and Transportation Security Civil Aviation.’’. from the event, stadium, or other venue; Act (Public Law 107–71).’’; (b) COVERED TRAINING.—Section 44936(c) is (C) for broadcast coverage for any broad- ‘‘(4) by inserting ‘‘and’’ after the semicolon amended to read as follows: cast rights holder; in subsection (e)(2)(A) (iii); ‘‘(c) COVERED TRAINING. (D) for safety and security purposes of the ‘‘(5) by striking ‘‘establish; and’’ in sub- ‘‘(1) IN GENERAL.—For purposes of sub- event, stadium, or other venue; or section (e)(2)(A)(iv) and inserting ‘‘establish; section (a), training includes in-flight train- (E) to operate an aircraft in restricted air- ‘‘(6) by striking subsection (e)(2)(A)(v); ing, in a simulator, and any other form or space to the extent necessary to arrive at or ‘‘(7) by adding at the end of subsection aspect of training. depart from an airport using standard air (f)(1) the following: ‘‘(2) EXCEPTION.—For the purposes of sub- traffic procedures. ‘‘(E) The individual shall be able to dem- section (a), training does not include class- (b) WAIVERS.—Beginning no earlier than onstrate daily a fitness for duty without any room instruction (also known as ground 180 days after the date of enactment of this impairment due to illegal drugs, sleep depri- training), which may be provided to an alien Act, the Secretary may modify or terminate vation, medication, or alcohol.’’; and during the 45-day period applicable to the such restrictions, or issue waivers or exemp- ‘‘(8) by redesignating the second subsection alien under that subsection.’’. tions from such restrictions, if the Secretary (i) as subsection (k).

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00095 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.075 S18PT1 S11326 CONGRESSIONAL RECORD — SENATE November 18, 2002 ‘‘(i) Section 44936(a)(1)(A) is amended by (2) redesignating subparagraphs (A) and (B) ‘‘(C) shall remain available until expended. striking ‘‘Transportation Security,,’’ and in- as paragraphs (1) and (2), respectively; and ‘‘(4) REFUNDS.—The Board may refund any serting ‘‘Security,’’. (3) redesignating clauses (i) and (ii) of fee paid by mistake or any amount paid in ‘‘(j) Section 44940 is amended— paragraph (1), as redesignated, as subpara- excess of that required.’’. ‘‘(1) by striking ‘‘Federal law enforcement graphs (A) and (B), respectively. (d) REPORT ON ACADEMY OPERATIONS.—The personnel pursuant to section 44903(h).’’ in (w) The chapter analysis for chapter 449 is National Transportation Safety Board shall subsection (a)(1)(G) and inserting ‘‘law en- amended by inserting after the item relating transmit an annual report to the Congress on forcement personnel pursuant to this title.’’; to section 44941 the following: the activities and operations of the National ‘‘(2) by inserting ‘‘FOR’’ after ‘‘RULES’’ in ‘‘44942. Performance goals and objectives Transportation Safety Board Academy. the caption of subsection (d)(2); and ‘‘44943. Performance management plans’’. SEC. 803. ASSISTANCE TO FAMILIES OF PAS- ‘‘(3) by striking subsection (d)(4) and in- SENGERS INVOLVED IN AIRCRAFT (x) Section 44944(a)(1) is amended by strik- serting the following: ACCIDENTS. ing ‘‘Under Secretary of Transportation for ‘‘(4) FEE COLLECTION.—Fees may be col- (a) RELINQUISHMENT OF INVESTIGATIVE PRI- Transportation Security’’ and inserting lected under this section as provided in ad- ORITY.—Section 1136 of title 49, United States vance in appropriations Acts.’’. ‘‘Under Secretary of Transportation for Se- Code, is amended by adding at the end the ‘‘(k) Section 46301(a) is amended by adding curity’’. following: at the end the following: (y) Section 106(b)(2)(B) of the Aviation and ‘‘(j) RELINQUISHMENT OF INVESTIGATIVE PRI- Transportation Security Acts is amended by ‘‘(8) AVIATION SECURITY VIOLATIONS.—Not- ORITY.— withstanding paragraphs (1) and (2) of this inserting ‘‘Under’’ before ‘‘Secretary’’. ‘‘(1) GENERAL RULE.—This section (other subsection, the maximum civil penalty for (z) Section 119(c) of the Aviation and than subsection (g)) shall not apply to an violating chapter 449 or another requirement Transportation Security Act is amended by aircraft accident if the Board has relin- under this title administered by the Under striking ‘‘section 47192(3)(J)’’ and inserting quished investigative priority under section Secretary of Transportation for Security is ‘‘section 47102(3)(J)’’. 1131(a)(2)(B) and the Federal agency to which $10,000, except that the maximum civil pen- (aa) Section 132(a) of the Aviation and the Board relinquished investigative priority alty is $25,000 in the case of a person oper- Transportation Security Act is amended by is willing and able to provide assistance to ating an aircraft for the transportation of striking ‘‘12,500 pounds or more.’’ and insert- the victims and families of the passengers passengers or property for compensation ing ‘‘more than 12,500 pounds.’’. involved in the accident. (except an airman serving as an airman).’’. ‘‘(2) BOARD ASSISTANCE.—If this section (l) Section 46301(d)(2) is amended— SA 4969. Mrs. HUTCHISON (for Mr. does not apply to an aircraft accident be- (1) by striking ‘‘46302, 46303,’’ in the first HOLLINGS (for himself, Mr. cause the Board has relinquished investiga- sentence; ROCKEFELLER, and Mr. MCCAIN)) pro- tive priority with respect to the accident, (2) by striking the second sentence and in- posed an amendment to amendment SA the Board shall assist, to the maximum ex- serting ‘‘The Under Secretary of Transpor- 4968 proposed by Mrs. HUTCHISON (for tent possible, the agency to which the Board has relinquished investigative priority in as- tation for Security may impose a civil pen- Mr. HOLLINGS (for himself, and MR. alty for a violation of section 114(l), section sisting families with respect to the acci- MCCAIN)) to the bill S. 2949, to provide 40113, 40119, chapter 449 (except sections dent.’’. 44902, 44903(d), 44907(a)–(d)(1)(A), for enhanced aviation security, and for (b) REVISION OF MOU.—Not later than 1 44907(c)(1)(C)–(F), 44908, and 44909), section other purposes; as follows: year after the date of enactment of this Act, 46302, 463403, or 46318 of this title, or a regula- At the end of the bill, add the following: the National Transportation Safety Board and the Federal Bureau of Investigation tion prescribed or order issued under any of TITLE VIII—NTSB AUTHORIZATION those provisions.’’. shall revise their 1977 agreement on the in- SEC. 801. SHORT TITLE. (m) Section 46301(g) is amended by striking vestigation of accidents to take into account This title may be cited as the ‘‘National ‘‘Secretary’’ and inserting ‘‘Secretary, the the amendments made by this section and Transportation Safety Board Reauthoriza- Under Secretary of Transportation for Secu- shall submit a copy of the revised agreement tion Act of 2002’’. rity,’’. to the Committee on Transportation and In- (n) Chapter 465 is amended— SEC. 802. AUTHORIZATION OF APPROPRIATIONS. frastructure of the House of Representatives (1) by striking ‘‘screening’’ in the caption (a) FISCAL YEARS 2003–2005.—Section 1118(a) and the Committee on Commerce, Science, of section 46503; and of title 49, United States Code, is amended— and Transportation of the Senate. (2) by striking ‘‘screening’’ in the item re- (1) by striking ‘‘and’’; and SEC. 804. RELIEF FROM CONTRACTING REQUIRE- lating to section 46503 in the chapter anal- (2) by striking ‘‘such sums to’’ and insert- MENTS FOR INVESTIGATIONS SERV- ysis. ing the following: ‘‘$73,325,000 for fiscal year ICES. (o) Section 47115(i) is amended by striking 2003, $84,999,000 for fiscal year 2004, and Section 1113(b) of title 49, United States ‘‘non-federal’’ each place it appears and in- $89,687,000 for fiscal year 2005. Such sums Code, is amended— serting ‘‘non-Federal’’. shall’’. (1) by striking ‘‘Statutes;’’ in paragraph (p) Section 48107 is amended by striking (b) EMERGENCY FUND.—Section 1118(b) of (1)(B) and inserting ‘‘Statutes, and, for inves- ‘‘section 44912(a)(4)(A).’’ and inserting such title is amended by striking the second tigations conducted under section 1131, enter ‘‘section 44912(a)(5)(A).’’. sentence and inserting the following: ‘‘In ad- into such agreements or contracts without (q) Sections 44903(i)(1) (as redesignated), dition, there are authorized to be appro- regard to any other provision of law requir- 44942(b), and 44943(c) are each amended by priated such sums as may be necessary to in- ing competition if necessary to expedite the striking ‘‘Under Secretary for Transpor- crease the fund to, and maintain the fund at, investigation;’’; and tation Security’’ each place it appears and a level not to exceed $3,000,000.’’. (2) by adding at the end the following: inserting ‘‘Under Secretary’’. (c) NTSB ACADEMY.—Section 1118 of such ‘‘(3) The Board, as a component of its an- (r) Section 44936 is amended by adding at title is amended by adding at the end the fol- nual report under section 1117, shall include the end the following: lowing: an enumeration of each contract for $25,000 ‘‘(f) PROTECTION OF PRIVACY OF APPLICANTS ‘‘(c) ACADEMY.— or more executed under this section during AND EMPLOYEES.—The Under Secretary shall ‘‘(1) AUTHORIZATION.—There are authorized the preceding calendar year.’’. formulate and implement procedures that to be appropriated to the Board for necessary TITLE IX—CHILD PASSENGER SAFETY are designed to prevent the transmission of expenses of the National Transportation SEC. 901. SHORT TITLE. information not relevant to an applicant’s or Safety Board Academy, not otherwise pro- This title may be cited as ‘‘Anton’s Law’’. employee’s qualifications for unescorted ac- vided for, $3,347,000 for fiscal year 2003, SEC. 902. IMPROVEMENT OF SAFETY OF CHILD cess to secure areas of an airport when that $4,896,000 for fiscal year 2004, and $4,995,000 RESTRAINTS IN PASSENGER MOTOR applicant or employee is undergoing a crimi- for fiscal year 2005. Such sums shall remain VEHICLES. nal history records check.’’. available until expended. (a) IN GENERAL.—Not later than 12 months (s) Sections 44942(a)(1) and 44943(a) are each ‘‘(2) FEES.—The Board may impose and col- after the date of the enactment of this Act, amended by striking ‘‘Under Secretary for lect such fees as it determines to be appro- the Secretary of Transportation shall ini- Transportation security’’ and inserting priate for services provided by or through tiate a rulemaking proceeding to establish ‘‘Under Secretary of Transportation for Se- the Academy. performance requirements for child re- curity’’. ‘‘(3) RECEIPTS CREDITED AS OFFSETTING COL- straints, including booster seats, for the re- (t) Subparagraphs (B) and (C) of section LECTIONS.—Notwithstanding section 3302 of straint of children weighing more than 50 44936(a)(1) are each amended by striking title 31, any fee collected under this para- pounds. ‘‘Under Secretary of Transportation for graph— (b) ELEMENTS FOR CONSIDERATION.—In the Transportation Security’’ and inserting ‘‘(A) shall be credited as offsetting collec- rule-making proceeding required by sub- ‘‘Under Secretary’’. tions to the account that finances the activi- section (a), the Secretary shall— (u) Section 44943(c) is amended by inserting ties and services for which the fee is im- (1) consider whether to include injury per- ‘‘and Transportation’’ after ‘‘Aviation’’. posed; formance criteria for child restraints, in- (v) Section 44942(b) is amended— ‘‘(B) shall be available for expenditure only cluding booster seats and other products for (1) by striking ‘‘(1) PERFORMANCE PLAN AND to pay the costs of activities and services for use in passenger motor vehicles for the re- REPORT.—’’; which the fee is imposed; and straint of children weighing more than 40

VerDate 0ct 31 2002 03:37 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00096 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.080 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11327 pounds, under the requirements established retary issues a final rule under subsection ‘‘(A) satisfies standards established by the in the rulemaking proceeding; (a). Secretary under Anton’s Law for the proper (2) consider whether to establish perform- SEC. 905. TWO-YEAR EXTENSION OF CHILD PAS- restraint of children who are over the age of ance requirements for seat belt fit when used SENGER PROTECTION EDUCATION 3 years or who weigh at least 40 pounds; with booster seats and other belt guidance GRANTS PROGRAM. ‘‘(B) prescribes a penalty for operating a devices; Section 2003(b)(7) of the Transportation Eq- passenger motor vehicle in which any occu- (3) consider whether to develop a solution uity Act for the 21st Century (23 U.S.C. 405 pant of the vehicle who is under the age of 16 for children weighing more than 40 pounds note; 112 Stat. 328) is amended by striking years is not properly restrained in an appro- who only have access to seating positions ‘‘and 2001.’’ and inserting ‘‘through 2004.’’ priate restraint system (including seat belts, with lap belts, such as allowing tethered SEC. 906. GRANTS FOR IMPROVING CHILD PAS- booster seats used in combination with seat child restraints for such children; and SENGER SAFETY PROGRAMS. belts, or other child restraints); and (4) review the definition of the term (a) IN GENERAL.—Chapter 4 of title 23, ‘‘(C) meets any criteria established by the ‘‘booster seat’’ in Federal motor vehicle safe- United States Code, is amended by adding at Secretary under subsection (a) for purposes ty standard No. 213 under section 571.213 of the end the following new section: of this section. title 49, Code of Federal Regulation, to deter- ‘‘§ 412. Grant program for improving child ‘‘(2) PASSENGER MOTOR VEHICLE.—The term mine if it is sufficiently comprehensive. passenger safety programs ‘passenger motor vehicle’ has the meaning (c) COMPLETION.—The Secretary shall com- ‘‘(a) STANDARDS AND REQUIREMENTS RE- given that term in section 405(f)(5) of this plete the rulemaking proceeding required by GARDING CHILD RESTRAINT LAWS.—Not later title. subsection (a) not later than 30 months after than October 1, 2003, the Secretary shall es- ‘‘(3) STATE.—The term ‘State’ has the the date of the enactment of this Act. tablish appropriate critiera applicable to meaning given in section 101 of this title and SEC. 903. REPORT ON DEVELOPMENT OF CRASH child restraint laws for purposes of eligi- includes any Territory or possession of the TEST DUMMY SIMULATING A 10- United States.’’. YEAR OLD CHILD. bility for grants under this seciton. The cri- teria shall be consistent with the provisions (b) CLERICAL AMENDMENT.—The table of Not later than 120 days after the date of sections at the beginning of that chapter is the enactment of this Act, the Secretary of of Anton’s Law. EQUIREMENT TO MAKE GRANTS. amended by inserting after the item relating Transportation shall submit to the Com- ‘‘(b) R ‘‘(1) IN GENERAL.—The Secretary shall to section 411 the following new item: mittee on Commerce, Science, and Transpor- make a grant to each State and Indian tribe tation of the Senate and the Committee on ‘‘412. Grant program for improving child pas- that, as determined by the Secretary, has a Energy and Commerce of the House of Rep- senger safety programs.’’. child restraint law in effect on September 30, resentatives a report on the current schedule SEC. 907. DEFINITIONS. 2004. and status of activities of the Department of In this title: ‘‘(2) LIMITATION ON NUMBER OF GRANTS. Not (1) CHILD RESTRAINT.—The term ‘‘child re- Transportation to develop, evaluate, and cer- more than one grant may be made to a State straint’’ means any product designed to pro- tify a commercially available dummy that or Indian tribe under this section. simulates a 10-year old child for use in test- vide restraint to a child (including booster ‘‘(3) COMMENCEMENT.—The requirement in seats and other products used with a lap and ing the effectiveness of child restraints used paragraph (1) shall commence on October 1, shoulder belt assembly) that meets applica- in passenger motor vehicles. 2004. ble Federal motor vehicle safety standards SEC. 904. REQUIREMENTS FOR INSTALLATION OF ‘‘(c) GRANT AMOUNT.—The amount of the LAP AND SHOULDER BELTS grant to a State or Indian tribe under this prescribed by the National Highway Traffic (a) IN GENERAL.—Not later than 24 months section shall be the amount equal to five Safety Administration. RODUCTION YEAR.—The term after the date of the enactment of this Act, times the amount provided to the State or (2) P ‘‘production year’’ means the 12-month pe- the Secretary of Transportation shall com- Indian tribe, as the case may be, under sec- riod between September 1 of a year and Au- plete a rulemaking proceeding to amend tion 2003(b)(7) of the Transportation Equity gust 31 of the following year. Federal motor vehicle safety standard No. Act for the 21st Century (23 U.S.C. 405 note) (3) PASSENGER MOTOR VEHICLE.—The term 208 under section 571.208 of title 49, Code of in fiscal year 2003. ‘‘passenger motor vehicle’’ has the meaning Federal Regulations, relating to occupant ‘‘(d) USE OF GRANT AMOUNTS.— crash protection, in order to— ‘‘(1) IN GENERAL.—A State or Indian tribe given that term in section 405(f)(5) of title 23, (1) require a lap and shoulder belt assembly shall use any amount received by the State United States Code. for each rear designated seating position in a or Indian tribe, as the case may be, under SEC. 908. AUTHORIZATION OF APPROPRIATIONS. passenger motor vehicle with a gross vehicle this section to carry out child passenger pro- There are authorized to be appropriated to weight rating of 10,000 pounds or less, except tection programs for children under the age the Secretary of Transportation such sums that if the Secretary determines that instal- of 16 years, including programs for purposes as may be necessary to carry out this title, lation of a lap and shoulder belt assembly is as follows: including the making of grants under section not practicable for a particular designated ‘‘(A) To educate the public concerning the 412 of title 23, United States Code, as added seating position in a particular type of pas- proper use and installation of child re- by section 906. senger motor vehicle, the Secretary may ex- straints, including booster seats. f clude the designated seating position from ‘‘(B) To train and retain child passenger the requirement; and safety professionals, police officers, fire and PRIVILEGE OF THE FLOOR (2) apply the requirement to passenger emergency medical personnel, and educators Mr. LEAHY. Mr. President, I ask motor vehicles in phases in accordance with concerning all aspects of the use of child re- the subsection (b). straints. unanimous consent that Marit Delozier (b) IMPLEMENTATION SCHEDULE.—The re- ‘‘(C) To provide child restraint systems, in- and Brian Greer, law clerks with the quirement prescribed under subsection (a)(1) cluding booster seats and the hardware need- Judiciary Committee, be allowed floor shall be implemented in phases on a produc- ed for their proper installation, to families privileges during the pendency of and tion year basis beginning with the produc- that cannot otherwise afford such systems. vote on the Shedd nomination. tion year that begins not later than 12 ‘‘(D) To support enforcement of the child The PRESIDING OFFICER. Without months after the end of the year in which restraint law concerned. objection, it is so ordered. the regulations are prescribed under sub- ‘‘(2) LIMITATION ON FEDERAL SHARE.—The section (a). The final rule shall apply to all Federal share of the cost of a program under Mr. REID. Mr. President, I ask unan- passenger motor vehicles with a gross vehi- paragraph (1) that is carried out using imous consent that Alaine Perry, a cle weight rating of 10,000 pounds or less that amounts from a grant under this section detailee with the Finance Committee, are manufactured in the third production may not exceed 80 percent of the cost of the be granted floor privileges for the dura- year of the implementation phase-in under program. tion of consideration of H.R. 4070. the schedule. ‘‘(e) ADMINISTRATIVE EXPENSES.—The The PRESIDING OFFICER. Without (c) REPORT ON DETERMINATION TO EXCLUDE. amount of administrative expenses under objection, it is so ordered. (1) REQUIREMENT.—If the Secretary deter- this section in any fiscal year may not ex- mines under subsection (a)(1) that installa- ceed the amount equal to five percent of the f tion of a lap and shoulder belt assembly is amount available for making grants under EXECUTIVE SESSION not practicable for a particular designated this section in the fiscal year. seating position in a particular type of ‘‘(f) APPLICABILITY OF CHAPTER 1.—The pro- motor vehicle, the Secretary shall submit to visions of section 402(d) of this title shall the Committee on Commerce, Science, and apply to funds authorized to be appropriated EXECUTIVE CALENDAR Transportation of the Senate and the Com- to make grants under this section as if such Mr. REID. Mr. President, I ask unan- mittee on Energy and Commerce of the funds were highway safety funds authorized imous consent that the Senate proceed House of Representatives a report specifying to be appropriated to carry out section 402 of to executive session and that the Envi- the reasons for the determination. this title. (2) DEADLINE.—The report under paragraph ‘‘(g) DEFINITIONS.—In this section: ronment Committee be discharged (1) shall be submitted, if at all, not later ‘‘(1) CHILD RESTRAINT LAW.—The term from further consideration of the fol- than 30 days after the date on which the Sec- ‘child restraint law’ means a law that— lowing nominations: Ann Pope to be

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00097 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.068 S18PT1 S11328 CONGRESSIONAL RECORD — SENATE November 18, 2002 Federal Cochairman of the Appa- øWhereas a just and lasting resolution of and providing social security), citizens’ rights lachian Regional Commission; Richard the Cyprus problem, on the basis of United (voting), and justice (holding a fair trial); Peltz to be alternative Federal Co- Nations Security Council resolutions, must Whereas membership in the European Union chairman of the Appalachian Regional safeguard the security and fundamental will guarantee each citizen of the Republic of Commission; that the Senate proceed rights of all citizens of Cyprus, Greek-Cyp- Cyprus important legal, civil, and human rights, riots and Turkish-Cypriots alike; as well as the means and legal recourse nec- to the consideration of the nominees; øWhereas Cyprus is among the leading can- essary to secure the full application of these the nominees be confirmed; the mo- didate countries for accession to the Euro- fundamental individual rights, and to promote tions to reconsider be laid on the table, pean Union, in recognition of its commit- the respect of cultural diversity and traditions; any statements thereon be printed at ment to free markets, human rights, democ- Whereas membership in the European Union the appropriate place in the RECORD as racy, and the rule of law; will bring significant benefits to both Greek- if read, and that the President be im- øWhereas the European Union guarantees Cypriots and Turkish-Cypriots, including new mediately notified of the Senate’s ac- to all its citizens the indivisible universal economic opportunities, access to new markets, tion. values of human dignity (supporting fair and a freer exchange of goods and services, balanced The PRESIDING OFFICER. Without equal treatment of all), freedom (right to se- and sustainable development as well as the free objection, it is so ordered. curity, marriage, family, among others), movement of persons, goods, and services and The nominations were considered and equality (celebrating cultural, religious, and capital; linguistic diversity), solidarity (protecting confirmed, as follows: Whereas the European Council in its Summit Anne B. Pope, of Tennessee, to be Federal workers’ rights and providing social secu- Conclusions of December 1999, in Helsinki, stat- Cochairman of the Appalachian Regional rity), citizens’ rights (voting), and justice ed that ‘‘a political settlement [of the Cyprus Commission. (holding a fair trial); problem] will facilitate the accession of Cyprus Richard J. Peltz, of Pennsylvania, to be Al- øWhereas membership in the European to the European Union . . . [i]f no settlement has ternative Federal Cochairman of the Appa- Union will guarantee each citizen of Cyprus been reached by the completion of accession ne- lachian Regional Commission. important legal, civil, and human rights, as gotiations, the Council’s decision on accession f well as the means and legal recourse nec- will be made without the above being a pre- essary to secure the full application of these NOMINATION OF JAMES M. LOY, condition...[i]n this the Council will take ac- fundamental individual rights, and to pro- count of all relevant factors’’; TO BE UNDER SECRETARY OF mote the respect of cultural diversity and Whereas both the United States and the Euro- TRANSPORTATION FOR SECU- traditions; pean Union in their summit statement on the ø RITY Whereas membership in the European New Transatlantic Agenda of June 14, 2001, Union will bring significant benefits to both pledge to continue to work together to support Mr. REID. Mr. President, I ask unan- the Greek-Cypriot and Turkish-Cypriot com- imous consent that the Commerce the efforts of the United Nations Secretary Gen- munities, including new economic opportuni- eral to achieve a comprehensive settlement with Committee be discharged from further ties, access to new markets, a freer exchange consideration of the following nomina- respect to Cyprus in full consideration of rel- of goods and services, balanced and sustain- evant United Nations Security Council resolu- able development as well as the free move- tion: James M. Loy, to be Under Sec- tions and international treaties; ment of persons, goods, and services and cap- retary of Transportation for Security; Whereas the Greek and Turkish Cypriot lead- ital; that the Senate proceed to the imme- ership began direct talks on January 16, 2002, øWhereas the European Council in its Sum- diate consideration of the nomination; with the United Nations Special Advisor in at- mit Conclusions of December 1999, in Hel- that the nomination be confirmed; the tendance and the European Council at the Se- sinki, stated that ‘‘a political settlement [of ville Conference in June 2002 called on the motion to reconsider be laid on the the Cyprus problem] will facilitate the acces- Greek and Turkish Cypriot leaders to intensify table; that any statements thereon be sion of Cyprus to the European Union . . . [i]f and expedite their talks in order to seize the printed in the RECORD as if read; that no settlement has been reached by the com- unique opportunity to reach a comprehensive the President be immediately notified pletion of accession negotiations, the Coun- settlement; and of the Senate’s action, and that the cil’s decision on accession will be made with- Whereas resolution of the Cyprus problem is out the above being a precondition’’; Senate return to legislative session. also consistent with American values, as en- øWhereas both the United States and the The PRESIDING OFFICER. Without shrined in the rights guaranteed by the Con- European Union in their summit statement objection, it is so ordered. stitution of the United States, which guarantees on the New Transatlantic Agenda of June 14, The nomination was considered and the right to life, liberty, and the pursuit of hap- 2001, pledge to continue to work together to confirmed, as follows: piness: Now, therefore, be it James M. Loy, of Virginia, to be Under support the efforts of the United Nations Secretary of Transportation for Security for Secretary General to achieve a comprehen- Resolved by the Senate (the House of Rep- a term of five years. sive settlement with respect to Cyprus con- resentatives concurring), ƒThat it is the sense of f sistent with relevant United Nations Secu- Congress that— ø(1) the unacceptable status quo on Cyprus EXPRESSING THE SENSE OF CON- rity Council resolutions and to continue to work toward the resumption of talks; must be ended and the island and its people GRESS REGARDING SECURITY, øWhereas resolution of the Cyprus problem be reunited, in a bizonal, bicommunal federal RECONCILIATION, AND PROS- is in the strategic interests of the United Cyprus, on the basis of United Nations Secu- PERITY FOR ALL CYPRIOTS States, given the important location of Cy- rity Council resolutions; ø Mr. REID. Mr. President, I ask unan- prus at the crossroads of Europe, Africa, and (2) the accession of Cyprus to the Euro- imous consent that the Senate proceed Asia; and pean Union would act as a catalyst for the ø solution of the Cyprus problem without the to the consideration of Calendar No. Whereas resolution of the Cyprus problem is also consistent with American values, as latter being a precondition for accession; 539, S. Con. Res. 122. ø(3) membership of Cyprus to the European The PRESIDING OFFICER. The enshrined in the rights guaranteed by the Constitution of the United States, which Union should be strongly supported; clerk will state the concurrent resolu- guarantees the right to life, liberty, and the ø(4) all Cypriots be urged to support and tion by title. pursuit of happiness: Now, therefore, be it¿ encourage efforts to bring Cyprus into the The legislative clerk read as follows: Whereas the current status quo on Cyprus re- European Union; and A concurrent resolution (S. Con. Res. 122) mains unacceptable and the reunification of Cy- ø(5) the various agencies of the United expressing the sense of the Congress that se- prus remains a desirable foreign policy objective; States Government should pursue vigorously curity, reconciliation, and prosperity for all Whereas a just and lasting resolution of the and as an issue of high and urgent priority Cypriots can be best achieved within the Cyprus problem, in full consideration of United new initiatives that will help promote and context of membership in the European Nations Security Council resolutions and inter- achieve reunification, reconciliation, sta- Union, which will provide significant rights national treaties, must safeguard the security bility, and prosperity on Cyprus.¿ and obligations for all Cypriots, and for and fundamental rights of the population of Cy- other purposes. That it is the sense of Congress that— prus, Greek-Cypriots and Turkish-Cypriots (1) the current status quo on Cyprus must be There being no objection, the Senate alike; proceeded to consider the resolution ended and the island and its people be reunited, Whereas Cyprus is among the leading can- in a bizonal, bicommunal federal Cyprus, with which had been reported from the Com- didate countries for accession to the European full consideration of United Nations Security mittee on Foreign Relations with an Union, in recognition of its commitment to free Council resolutions and international treaties; amendment and an amendment to the markets, human rights, democracy, and the rule of law; (2) the direct and intensive negotiations be- preamble, as follows: tween the Greek and Turkish Cypriot leaders, (Strike the parts shown in black Whereas the European Union guarantees to all its citizens the indivisible universal values of which began in January 2002, and which are brackets and insert the parts shown in human dignity (supporting fair and equal treat- continuing on a regular basis, have been most italic.) ment of all), freedom (right to security, mar- welcome and are encouraged to continue until a S. CON. RES. 122 riage, family, among others), equality comprehensive settlement has been achieved; øWhereas the status quo on Cyprus re- (celebrating cultural, religious, and linguistic (3) while a successful resolution of the Cyprus mains unacceptable; diversity), solidarity (protecting workers’ rights problem would facilitate the accession of Cyprus

VerDate 0ct 31 2002 03:53 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00098 Fmt 4637 Sfmt 6333 E:\CR\FM\G18NO6.140 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11329 to the European Union, in the absence of such Whereas the European Council in its Sum- the administration of benefits for vet- a resolution, the accession of Cyprus to the Eu- mit Conclusions of December 1999, in Hel- erans, and for other purposes. ropean Union could act as a further catalyst for sinki, stated that ‘‘a political settlement [of The PRESIDING OFFICER laid be- the solution of the Cyprus problem without the the Cyprus problem] will facilitate the acces- fore the Senate the following message latter being a precondition for accession and sion of Cyprus to the European Union . . . [i]f from the House of Representatives. with all relevant factors being considered; no settlement has been reached by the com- (4) membership of the Republic of Cyprus in pletion of accession negotiations, the Coun- Resolved, That the bill from the Senate (S. the European Union should be strongly sup- cil’s decision on accession will be made with- 2237) entitled ‘‘An Act to amend title 38, ported; out the above being a precondition...[i]n United States Code, to modify and improve (5) all Cypriots be urged to support and en- this the Council will take account of all rel- authorities relating to compensation and courage efforts to bring the Republic of Cyprus evant factors’’; pension benefits, education benefits, housing into the European Union; and Whereas both the United States and the benefits, and other benefits for veterans, to improve the administration of benefits for (6) the various agencies of the United States European Union in their summit statement veterans, and for other purposes’’, do pass Government in support of United Nations efforts on the New Transatlantic Agenda of June 14, with the following amendments: to facilitate a settlement should pursue as an 2001, pledge to continue to work together to Strike out all after the enacting clause and issue of high priority new initiatives that will support the efforts of the United Nations insert: help promote and achieve reunification, rec- Secretary General to achieve a comprehen- SECTION 1. SHORT TITLE; TABLE OF CONTENTS. onciliation, stability, and prosperity on Cyprus. sive settlement with respect to Cyprus in (a) SHORT TITLE.—This Act may be cited as Mr. REID. Mr. President, I ask unan- full consideration of relevant United Nations the ‘‘Veterans Benefits Act of 2002’’. imous consent that the substitute Security Council resolutions and inter- amendment to the concurrent resolu- (b) TABLE OF CONTENTS.—The table of con- national treaties; tents for this Act is as follows: tion be agreed to; the concurrent reso- Whereas the Greek and Turkish Cypriot Sec. 1. Short title; table of contents. leadership began direct talks on January 16, lution be agreed to, as amended; the Sec. 2. References to title 38, United States 2002, with the United Nations Special Advi- amendment to the preamble be agreed Code. to; the preamble, as amended, be sor in attendance and the European Council at the Seville Conference in June 2002 called TITLE I—COMPENSATION AND BENEFITS agreed to; the motion to reconsider be IMPROVEMENTS laid upon the table; and that any state- on the Greek and Turkish Cypriot leaders to intensify and expedite their talks in order to Sec. 101. Retention of CHAMPVA for surviving ments relating thereto be printed in seize the unique opportunity to reach a com- spouses remarrying after age 55. the RECORD. prehensive settlement; and Sec. 102. Clarification of entitlement to special The PRESIDING OFFICER. Without Whereas resolution of the Cyprus problem monthly compensation for women objection, it is so ordered. is also consistent with American values, as veterans who have service-con- The committee amendment was enshrined in the rights guaranteed by the nected loss of breast tissue. Sec. 103. Specification of hearing loss required agreed to. Constitution of the United States, which for compensation for hearing loss The concurrent resolution (S. Con. guarantees the right to life, liberty, and the in paired organs. pursuit of happiness: Now, therefore, be it Res. 122), as amended, was agreed to. Sec. 104. Assessment of acoustic trauma associ- Resolved by the Senate (the House of Rep- The amendment to the preamble was ated with military service from resentatives concurring), That it is the sense agreed to. World War II to present. of Congress that— The preamble, as amended, was TITLE II—MEMORIAL AFFAIRS agreed to. (1) the current status quo on Cyprus must be ended and the island and its people be re- Sec. 201. Prohibition on certain additional ben- The concurrent resolution, as amend- efits for persons committing cap- ed, with its preamble, as amended, united, in a bizonal, bicommunal federal Cy- prus, with full consideration of United Na- ital crimes. reads as follows: tions Security Council resolutions and inter- Sec. 202. Procedures for disqualification of per- S. CON. RES. 122 national treaties; sons committing capital crimes for interment or memorialization in Whereas the current status quo on Cyprus (2) the direct and intensive negotiations between the Greek and Turkish Cypriot lead- national cemeteries. remains unacceptable and the reunification Sec. 203. Application of Department of Veterans of Cyprus remains a desirable foreign policy ers, which began in January 2002, and which are continuing on a regular basis, have been Affairs benefit for Government objective; markers for marked graves of vet- Whereas a just and lasting resolution of most welcome and are encouraged to con- tinue until a comprehensive settlement has erans at private cemeteries to vet- the Cyprus problem, in full consideration of erans dying on or after September United Nations Security Council resolutions been achieved; (3) while a successful resolution of the Cy- 11, 2001. and international treaties, must safeguard Sec. 204. Authorization of placement of a memo- prus problem would facilitate the accession the security and fundamental rights of the rial in Arlington National Ceme- of Cyprus to the European Union, in the ab- population of Cyprus, Greek-Cypriots and tery honoring World War II vet- sence of such a resolution, the accession of Turkish-Cypriots alike; erans who fought in the Battle of Cyprus to the European Union could act as a Whereas Cyprus is among the leading can- the Bulge. further catalyst for the solution of the Cy- didate countries for accession to the Euro- TITLE III—OTHER MATTERS pean Union, in recognition of its commit- prus problem without the latter being a pre- Sec. 301. Increase in aggregate annual amount ment to free markets, human rights, democ- condition for accession and with all relevant available for State approving racy, and the rule of law; factors being considered; agencies for administrative ex- Whereas the European Union guarantees to (4) membership of the Republic of Cyprus penses for fiscal years 2003 all its citizens the indivisible universal val- in the European Union should be strongly through 2007. ues of human dignity (supporting fair and supported; (5) all Cypriots be urged to support and en- Sec. 302. Authority for Veterans’ Mortgage Life equal treatment of all), freedom (right to se- Insurance to be carried beyond curity, marriage, family, among others), courage efforts to bring the Republic of Cy- prus into the European Union; and age 70. equality (celebrating cultural, religious, and Sec. 303. Authority to guarantee hybrid adjust- linguistic diversity), solidarity (protecting (6) the various agencies of the United States Government in support of United Na- able rate mortgages. workers’ rights and providing social secu- Sec. 304. Increase in amount payable as Medal tions efforts to facilitate a settlement rity), citizens’ rights (voting), and justice of Honor special pension. (holding a fair trial); should pursue as an issue of high priority Sec. 305. Extension of protections under the Whereas membership in the European new initiatives that will help promote and Soldiers’ and Sailors’ Civil Relief Union will guarantee each citizen of the Re- achieve reunification, reconciliation, sta- Act of 1940 to National Guard public of Cyprus important legal, civil, and bility, and prosperity on Cyprus. members called to active duty human rights, as well as the means and legal f under title 32, United States Code. recourse necessary to secure the full applica- Sec. 306. Extension of income verification au- tion of these fundamental individual rights, VETERANS BENEFITS ACT OF 2002 thority. and to promote the respect of cultural diver- Mr. REID. Mr. President, I ask the Sec. 307. Fee for loan assumption. sity and traditions; Chair lay before the Senate a message Sec. 308. Technical and clarifying amendments. Sec. 309. Codification of cost-of-living adjust- Whereas membership in the European from the House of Representatives on Union will bring significant benefits to both ment provided in Public Law 107– the bill (S. 2237) to amend title 38, 247. Greek-Cypriots and Turkish-Cypriots, in- United States Code, to modify and im- cluding new economic opportunities, access TITLE IV—JUDICIAL MATTERS to new markets, a freer exchange of goods prove authorities relating to com- Sec. 401. Standard for reversal by Court of Ap- and services, balanced and sustainable devel- pensation and pension benefits, edu- peals for Veterans Claims of erro- opment as well as the free movement of per- cation benefits, housing benefits, and neous finding of fact by Board of sons, goods, and services and capital; other benefits for veterans, to improve Veterans’ Appeals.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00099 Fmt 4637 Sfmt 6343 E:\CR\FM\A18NO6.115 S18PT1 S11330 CONGRESSIONAL RECORD — SENATE November 18, 2002 Sec. 402. Review by Court of Appeals for the World War II to the date of the enactment of ‘‘(c) A certificate may not be furnished under Federal Circuit of decisions of law this Act. the program under subsection (a) on behalf of a of Court of Appeals for Veterans (2) Identify the different sources of acoustic deceased person described in section 2411(b) of Claims. trauma that members of the Armed Forces could this title.’’. Sec. 403. Authority of Court of Appeals for Vet- reasonably be expected to have been exposed to (b) FLAG TO DRAPE CASKET.—Section 2301 is erans Claims to award fees under during the period from the beginning of World amended— Equal Access to Justice Act for War II to the date of the enactment of this Act (1) by redesignating subsection (g) as sub- non-attorney practitioners. (3) Determine how much exposure to each section (h); and source of acoustic trauma identified under para- SEC. 2. REFERENCES TO TITLE 38, UNITED (2) by inserting after subsection (f) the fol- STATES CODE. graph (2) is required to cause or contribute to lowing new subsection (g): Except as otherwise expressly provided, when- hearing loss, hearing threshold shift, or ‘‘(g) A flag may not be furnished under this ever in this Act an amendment or repeal is ex- tinnitus, as the case may be, and at what noise section in the case of a person described in sec- level. pressed in terms of an amendment to, or repeal tion 2411(b) of this title.’’. (4) Determine whether or not such hearing of, a section or other provision, the reference (c) HEADSTONE OR MARKER FOR GRAVE.—Sec- loss, hearing threshold shift, or tinnitus, as the tion 2306 is amended by adding at the end the shall be considered to be made to a section or case may be, is— other provision of title 38, United States Code. following new subsection: (A) immediate or delayed onset; ‘‘(g)(1) A headstone or marker may not be fur- TITLE I—COMPENSATION AND BENEFITS (B) cumulative; nished under subsection (a) for the unmarked IMPROVEMENTS (C) progressive; or (D) any combination of subparagraph (A), grave of a person described in section 2411(b) of SEC. 101. RETENTION OF CHAMPVA FOR SUR- (B), and (C). this title. VIVING SPOUSES REMARRYING ‘‘(2) A memorial headstone or marker may not AFTER AGE 55. (5) Identify age, occupational history, and other factors which contribute to an individ- be furnished under subsection (b) for the pur- (a) EXCEPTION TO TERMINATION OF BENEFITS ual’s noise-induced hearing loss. pose of commemorating a person described in UPON REMARRIAGE.—Paragraph (2) of section (6) Identify— section 2411(b) of this title. 103(d) is amended— (A) the period of time at which audiometric ‘‘(3) A marker may not be furnished under (1) by inserting ‘‘(A) after ‘‘(2)’’; and measures used by the Armed Forces became ade- subsection (d) for the grave of a person de- (2) by adding at the end the following: quate to evaluate individual hearing threshold scribed in section 2411(b) of this title.’’. ‘‘(B) The remarriage after age 55 of the sur- shift; and (d) EFFECTIVE DATE.—The amendments made viving spouse of a veteran shall not bar the fur- (B) the period of time at which hearing con- by this section shall apply with respect to nishing of benefits under section 1781 of this servation measures to prevent individual hear- deaths occurring on or after the date of the en- title to such person as the surviving spouse of ing threshold shift were available to members of actment of this Act. the veteran.’’. the Armed Forces, shown separately for each of SEC. 202. PROCEDURES FOR DISQUALIFICATION (b) APPLICATION FOR BENEFITS.—In the case the Army, Navy, Air Force, Marine Corps, and OF PERSONS COMMITTING CAPITAL of an individual who but for having remarried Coast Guard, and, for each such service, shown CRIMES FOR INTERMENT OR MEMO- would be eligible for medical care under section separately for members exposed to different RIALIZATION IN NATIONAL CEME- 1781 of title 38, United States Code, and whose sources of acoustic trauma identified under TERIES. remarriage was before the date of the enactment paragraph (2). Section 2411(a)(2) is amended— of this Act and after the individual had at- (c) REPORT.—Not later than 180 days after the (1) by striking ‘‘The prohibition’’ and insert- tained age 55, the individual shall be eligible for date of the entry into the agreement referred to ing ‘‘In the case of a person described in sub- such medical care by reason of the amendments in subsection (a), the National Academy of section (b)(1) or (b)(2), the prohibition’’; and made by subsection (a) only if an application Sciences shall submit to the Secretary a report (2) by striking ‘‘or finding under subsection for such medical care is received by the Sec- on the activities of the National Academy of (b)’’ and inserting ‘‘referred to in subsection retary of Veterans Affairs during the one-year Sciences under the agreement, including the re- (b)(1) or (b)(2), as the case may be,’’. period ending on the effective date specified in sults of the activities required by subsection (b). SEC. 203. APPLICATION OF DEPARTMENT OF VET- subsection (c). (d) REPORT ON ADMINISTRATION OF BENEFITS ERANS AFFAIRS BENEFIT FOR GOV- ERNMENT MARKERS FOR MARKED (c) EFFECTIVE DATE.—The amendments made FOR HEARING LOSS AND TINNITUS.—(1) Not later GRAVES OF VETERANS AT PRIVATE by this section shall take effect on the date that than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall CEMETERIES TO VETERANS DYING is 60 days after the date of the enactment of this ON OR AFTER SEPTEMBER 11, 2001. Act. submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives a (a) IN GENERAL.—Subsection (d) of section 502 SEC. 102. CLARIFICATION OF ENTITLEMENT TO of the Veterans Education and Benefits Expan- SPECIAL MONTHLY COMPENSATION report on the claims submitted to the Secretary for disability compensation or health care for sion Act of 2001 (Public Law 107–103; 115 Stat. FOR WOMEN VETERANS WHO HAVE 995; 38 U.S.C. 2306 note) is amended by striking SERVICE-CONNECTED LOSS OF hearing loss or tinnitus. BREAST TISSUE. (2) The report under paragraph (1) shall in- ‘‘the date of the enactment of this Act’’ and in- Section 1114(k) is amended by striking ‘‘one or clude the following: serting ‘‘September 11, 2001’’. (b) EFFECTIVE DATE.—The amendment made both breasts (including loss by mastectomy)’’ (A) The number of decisions issued by the Sec- by subsection (a) shall take effect as if included and inserting ‘‘25 percent or more of tissue from retary in each of fiscal years 2000, 2001, and in the enactment of such section 502. a single breast or both breasts in combination 2002 on claims for disability compensation for (including loss by mastectomy or partial mastec- hearing loss, tinnitus, or both. SEC. 204. AUTHORIZATION OF PLACEMENT OF A tomy) or has received radiation treatment of (B) Of the decisions referred to in subpara- MEMORIAL IN ARLINGTON NA- TIONAL CEMETERY HONORING breast tissue’’. graph (A)— (i) the number in which compensation was WORLD WAR II VETERANS WHO SEC. 103. SPECIFICATION OF HEARING LOSS RE- awarded, and the number in which compensa- FOUGHT IN THE BATTLE OF THE QUIRED FOR COMPENSATION FOR tion was denied, set forth by fiscal year; and BULGE. HEARING LOSS IN PAIRED ORGANS. (ii) the total amount of disability compensa- The Secretary of the Army is authorized to Section 1160(a)(3) is amended— tion paid on such claims during each such fiscal place in Arlington National Cemetery a memo- (1) by striking ‘‘total deafness’’ the first place year. rial marker honoring veterans who fought in the it appears and inserting ‘‘deafness compensable (C) The total cost to the Department of Vet- battle in the European theater of operations to a degree of 10 percent or more’’; and erans Affairs of adjudicating the claims referred during World War II known as the Battle of the (2) by striking ‘‘total deafness’’ the second to in subparagraph (A), set forth in terms of Bulge. place it appears and inserting ‘‘deafness’’. full-time employee equivalents (FTEEs). TITLE III—OTHER MATTERS (D) The total number of veterans who sought SEC. 104. ASSESSMENT OF ACOUSTIC TRAUMA AS- SEC. 301. INCREASE IN AGGREGATE ANNUAL SOCIATED WITH MILITARY SERVICE treatment in Department of Veterans Affairs AMOUNT AVAILABLE FOR STATE AP- FROM WORLD WAR II TO PRESENT. health care facilities during fiscal years speci- PROVING AGENCIES FOR ADMINIS- (a) ASSESSMENT BY NATIONAL ACADEMY OF fied in subparagraph (A) for hearing-related TRATIVE EXPENSES FOR FISCAL SCIENCES.—The Secretary of Veterans Affairs disorders, set forth by the number of veterans YEARS 2003 THROUGH 2007. shall seek to enter into an agreement with the per year. The first sentence of section 3674(a)(4) is National Academy of Sciences for the Academy (E) The health care furnished to veterans re- amended by inserting before the period at the to perform the activities specified in this section. ferred to in subparagraph (D) for hearing-re- end the following: ‘‘, for fiscal year 2003, The Secretary shall seek to enter into the agree- lated disorders, including the number of vet- $14,000,000, for fiscal year 2004, $18,000,000, for ment not later than 60 days after the date of the erans furnished hearing aids and the cost of fiscal year 2005, $18,000,000, for fiscal year 2006, enactment of this Act. furnishing such hearing aids. $19,000,000, and for fiscal year 2007, (b) DUTIES UNDER AGREEMENT.—Under the TITLE II—MEMORIAL AFFAIRS $19,000,000’’. agreement under subsection (a), the National SEC. 201. PROHIBITION ON CERTAIN ADDITIONAL SEC. 302. AUTHORITY FOR VETERANS’ MORTGAGE Academy of Sciences shall do the following: BENEFITS FOR PERSONS COMMIT- LIFE INSURANCE TO BE CARRIED BE- (1) Review and assess available data on hear- TING CAPITAL CRIMES. YOND AGE 70. ing loss that could reasonably be expected to (a) PRESIDENTIAL MEMORIAL CERTIFICATE.— Section 2106 is amended— have been incurred by members of the Armed Section 112 is amended by adding at the end the (1) in subsection (a), by inserting ‘‘age 69 or Forces during the period from the beginning of following new subsection: younger’’ after ‘‘any eligible veteran’’; and

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00100 Fmt 4637 Sfmt 6333 E:\CR\FM\A18NO6.122 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11331 (2) in subsection (i), by striking paragraph (2) special pension payable under subsection (a) as actment of this Act and ends on September 30, and redesignating paragraphs (3) and (4) as of November 30 of such year by the same per- 2003. paragraphs (2) and (3), respectively. centage as the percentage by which benefit SEC. 308. TECHNICAL AND CLARIFYING AMEND- SEC. 303. AUTHORITY TO GUARANTEE HYBRID AD- amounts payable under title II of the Social Se- MENTS. JUSTABLE RATE MORTGAGES. curity Act (42 U.S.C. 401 et seq.) are increased (a) ELIGIBILITY OF CERTAIN ADDITIONAL VIET- (a) TWO-YEAR DEMONSTRATION PROJECT TO effective December 1 of such year as a result of NAM ERA VETERANS FOR EDUCATION BENEFITS.— GUARANTEE CERTAIN ADJUSTABLE RATE MORT- a determination under section 215(i) of that Act Section 3011(a)(1)(C)(ii) is amended by striking GAGES.—Chapter 37 is amended by inserting (42 U.S.C. 415(i)).’’. ‘‘on or’’. after section 3707 the following new section: (c) PAYMENT OF LUMP SUM FOR PERIOD BE- (b) ACCELERATED PAYMENT OF ASSISTANCE ‘‘§ 3707A. Hybrid adjustable rate mortgages TWEEN ACT OF VALOR AND COMMENCEMENT OF FOR EDUCATION LEADING TO EMPLOYMENT IN ‘‘(a) The Secretary shall carry out a dem- SPECIAL PENSION.—That section is further HIGH TECHNOLOGY INDUSTRY.—(1) Subsection onstration project under this section during fis- amended by adding after subsection (e), as (b)(1) of section 3014A is amended by striking cal years 2004 and 2005 for the purpose of guar- added by subsection (b) of this section, the fol- ‘‘employment in a high technology industry’’ anteeing loans in a manner similar to the man- lowing new subsection: and inserting ‘‘employment in a high technology ner in which the Secretary of Housing and ‘‘(f)(1) The Secretary shall pay, in a lump occupation in a high technology industry’’. Urban Development insures adjustable rate sum, to each person who is in receipt of special (2)(A) The heading for section 3014A is mortgages under section 251 of the National pension payable under this section an amount amended to read as follows: Housing Act in accordance with the provisions equal to the total amount of special pension ‘‘§ 3014A. Accelerated payment of basic edu- of this section with respect to hybrid adjustable that the person would have received during the cational assistance for education leading to rate mortgages described in subsection (b). period beginning on the first day of the first employment in high technology occupation ‘‘(b) Adjustable rate mortgages that are guar- month beginning after the date of the act for in high technology industry’’. which the person was awarded the Medal of anteed under this section shall be adjustable (B) The table of sections at the beginning of Honor and ending on the last day of the month rate mortgages (commonly referred to as ‘hybrid chapter 30 is amended by striking the item relat- preceding the month in which the person’s spe- adjustable rate mortgages’) having interest rate ing to section 3014A and inserting the following cial pension in fact commenced. adjustment provisions that— new item: ‘‘(2) For each month of a period referred to in ‘‘(1) specify an initial rate of interest that is ‘‘3014A. Accelerated payment of basic edu- fixed for a period of not less than the first three paragraph (1), the amount of special pension payable to a person shall be determined using cational assistance for education years of the mortgage term; leading to employment in high ‘‘(2) provide for an initial adjustment in the the rate of special pension that was in effect for such month, and shall be payable only if the technology occupation in high rate of interest by the mortgagee at the end of technology industry.’’. the period described in paragraph (1); and person would have been entitled to payment of ‘‘(3) comply in such initial adjustment, and special pension for such month under laws for (c) SOURCE OF FUNDS FOR INCREASED USAGE any subsequent adjustment, with subsection (c). eligibility for special pension (with the exception OF MONTGOMERY GI BILL ENTITLEMENT UNDER ‘‘(c) Interest rate adjustment provisions of a of the eligibility law requiring a person to have ENTITLEMENT TRANSFER AUTHORITY.—(1) Sec- mortgage guaranteed under this section shall— been awarded a Medal of Honor) in effect at the tion 3035(b) is amended— ‘‘(1) correspond to a specified national interest beginning of such month.’’. (A) in paragraph (1), by striking ‘‘paragraphs rate index approved by the Secretary, informa- (d) EFFECTIVE DATE.—(1) Except as provided (2) and (3) of this subsection,’’ and inserting tion on which is readily accessible to mortgagors in paragraph (2), the amendments made by sub- ‘‘paragraphs (2), (3), and (4),’’; and from generally available published sources; sections (a) and (b) shall take effect on Sep- (B) by adding at the end the following new ‘‘(2) be made by adjusting the monthly pay- tember 1, 2003. No payment may be made pursu- paragraph: ment on an annual basis; ant to subsection (f) of section 1562 of title 38, ‘‘(4) Payments attributable to the increased ‘‘(3) be limited, with respect to any single an- United States Code, as added by subsection (c) usage of benefits as a result of transfers of enti- nual interest rate adjustment, to a maximum in- of this section, before October 1, 2003. tlement to basic educational assistance under crease or decrease of 1 percentage point; and (2) The Secretary of Veterans Affairs shall not section 3020 of this title shall be made from the ‘‘(4) be limited, over the term of the mortgage, make any adjustment under subsection (e) of Department of Defense Education Benefits to a maximum increase of 5 percentage points section 1562 of title 38, United States Code, as Fund established under section 2006 of title 10 or above the initial contract interest rate. added by subsection (b) of this section, in 2003. from appropriations made to the Department of ‘‘(d) The Secretary shall promulgate under- SEC. 305. EXTENSION OF PROTECTIONS UNDER Transportation, as appropriate.’’. writing standards for loans guaranteed under THE SOLDIERS’ AND SAILORS’ CIVIL (2) The amendments made by this subsection this section, taking into account— RELIEF ACT OF 1940 TO NATIONAL shall take effect as if included in the enactment ‘‘(1) the status of the interest rate index re- GUARD MEMBERS CALLED TO AC- of the National Defense Authorization Act for ferred to in subsection (c)(1) and available at TIVE DUTY UNDER TITLE 32, UNITED Fiscal Year 2002 (Public Law 107–107), to which the time an underwriting decision is made, re- STATES CODE. such amendments relate. gardless of the actual initial rate offered by the Section 101(1) of the Soldiers’ and Sailors’ (d) LICENSING OR CERTIFICATION TESTS.—Sec- lender; Civil Relief Act of 1940 (50 U.S.C. App. 511(1)) is tion 3689(c)(1)(B) is amended by striking ‘‘the ‘‘(2) the maximum and likely amounts of in- amended— test’’ and inserting ‘‘such test, or a test to cer- creases in mortgage payments that the loans (1) in the first sentence— tify or license in a similar or related occupa- would require; (A) by striking ‘‘and all’’ and inserting ‘‘all’’; tion,’’. ‘‘(3) the underwriting standards applicable to and (e) PERIOD OF ELIGIBILITY FOR SURVIVORS’ (B) by inserting before the period the fol- adjustable rate mortgages insured under title II AND DEPENDENTS’ ASSISTANCE EDUCATION BENE- lowing: ‘‘, and all members of the National of the National Housing Act; and FITS.—(1) Section 3512(a) is amended— ‘‘(4) such other factors as the Secretary finds Guard on service described in the following sen- (A) in paragraph (3)— appropriate. tence’’; and (i) by striking ‘‘paragraph (4)’’ in the matter ‘‘(e) The Secretary shall require that the mort- (2) in the second sentence, by inserting before preceding subparagraph (A) and inserting gagee make available to the mortgagor, at the the period the following: ‘‘, and, in the case of ‘‘paragraph (4) or (5)’’; and time of loan application, a written explanation a member of the National Guard, shall include (ii) by striking ‘‘subsection (d)’’ in subpara- of the features of the adjustable rate mortgage, service under a call to active service authorized graph (C)(i) and inserting ‘‘subsection (d), or including a hypothetical payment schedule that by the President or the Secretary of Defense for any date between the two dates described in displays the maximum potential increases in a period of more than 30 consecutive days under subsection (d)’’; monthly payments to the mortgagor over the section 502(f) of title 32, United States Code, for (B) by redesignating paragraphs (4), (5), (6), first five years of the mortgage term.’’. purposes of responding to a national emergency and (7) as paragraphs (5), (6), (7), and (8), re- (b) CLERICAL AMENDMENT.—The table of sec- declared by the President and supported by Fed- spectively; tions at the beginning of chapter 37 is amended eral funds’’. (C) by inserting after paragraph (3) the fol- by inserting after the item relating to section SEC. 306. EXTENSION OF INCOME VERIFICATION lowing new paragraph (4): 3707 the following new item: AUTHORITY. ‘‘(4) if the person otherwise eligible under ‘‘3707A. Hybrid adjustable rate mortgages.’’. Section 6103(l)(7)(D) of the Internal Revenue paragraph (3) fails to elect a beginning date of Code of 1986 is amended by striking ‘‘September SEC. 304. INCREASE IN AMOUNT PAYABLE AS entitlement in accordance with that paragraph, MEDAL OF HONOR SPECIAL PEN- 30, 2003’’ in the second sentence after clause (ix) the beginning date of the person’s entitlement SION. and inserting ‘‘September 30, 2008’’. shall be the date of the Secretary’s decision that (a) INCREASE IN AMOUNT.—Subsection (a) of SEC. 307. FEE FOR LOAN ASSUMPTION. the parent has a service-connected total dis- section 1562 is amended by striking ‘‘$600’’ and (a) IN GENERAL.—For the period described in ability permanent in nature, or that the par- inserting ‘‘$1,000, as adjusted from time to time subsection (b), the Secretary of Veterans Affairs ent’s death was service-connected, whichever is under subsection (e)’’. shall apply section 3729(b)(2)(I) of title 38, applicable;’’; and (b) ANNUAL ADJUSTMENT.—That section is fur- United States Code, by substituting ‘‘1.00’’ for (D) in paragraph (6), as so redesignated, by ther amended by adding at the end the fol- ‘‘0.50’’ each place it appears. striking ‘‘paragraph (4)’’ and inserting lowing new subsection: (b) PERIOD DESCRIBED.—The period referred ‘‘paragraph (5)’’. ‘‘(e) Effective as of December 1 each year, the to in subsection (a) is the period that begins on (2) The amendments made by this subsection Secretary shall increase the amount of monthly the date that is 7 days after the date of the en- shall take effect November 1, 2000.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00101 Fmt 4637 Sfmt 6333 E:\CR\FM\A18NO6.122 S18PT1 S11332 CONGRESSIONAL RECORD — SENATE November 18, 2002

(f) LOAN FEES.—(1) Section 3703(e)(2)(A) is (4) by striking ‘‘$439’’ in subsection (d) and (e) DEPENDENCY AND INDEMNITY COMPENSA- amended by striking ‘‘3729(b)’’ and inserting inserting ‘‘$445’’; TION FOR CHILDREN.—(1) Section 1313(a) is ‘‘3729(b)(2)(I)’’. (5) by striking ‘‘$625’’ in subsection (e) and in- amended— (2) The amendment made by paragraph (1) serting ‘‘$633’’; (A) by striking ‘‘$397’’ in paragraph (1) and shall take effect as if included in the enactment (6) by striking ‘‘$790’’ in subsection (f) and in- inserting ‘‘$402’’; of section 402 of the Veterans Benefits and serting ‘‘$801’’; (B) by striking ‘‘$571’’ in paragraph (2) and Health Care Improvement Act of 2000 (Public (7) by striking ‘‘$995’’ in subsection (g) and in- inserting ‘‘$578’’; Law 106–419; 114 Stat. 1861). serting ‘‘$1,008’’; (C) by striking ‘‘$742’’ in paragraph (3) and (8) by striking ‘‘$1,155’’ in subsection (h) and (g) ADDITIONAL MISCELLANEOUS TECHNICAL inserting ‘‘$752’’; and AMENDMENTS TO TITLE 38, UNITED STATES inserting ‘‘$1,171’’; (9) by striking ‘‘$1,299’’ in subsection (i) and (D) by striking ‘‘$742’’ and ‘‘$143’’ in para- CODE.—(1)(A) The tables of chapters preceding graph (4) and inserting ‘‘$752’’ and ‘‘$145’’, re- part I and at the beginning of part IV are each inserting ‘‘$1,317’’; (10) by striking ‘‘$2,163’’ in subsection (j) and spectively. amended by striking ‘‘5101’’ in the item relating (2) Section 1314 is amended— to chapter 51 and inserting ‘‘5100’’. inserting ‘‘$2,193’’; (A) by striking ‘‘$234’’ in subsection (a) and (B) The table of parts preceding part I is (11) in subsection (k)— (A) by striking ‘‘$80’’ both places it appears inserting ‘‘$237’’; amended by striking ‘‘5101’’ in the item relating and inserting ‘‘$81’’; and (B) by striking ‘‘$397’’ in subsection (b) and to part IV and inserting ‘‘5100’’. (B) by striking ‘‘$2,691’’ and ‘‘$3,775’’ and in- (2) Section 107(d)(2) is amended by striking inserting ‘‘$402’’; and serting ‘‘$2,728’’ and ‘‘$3,827’’, respectively; ‘‘the date of the enactment of this subsection’’ (C) by striking ‘‘$199’’ in subsection (c) and (12) by striking ‘‘$2,691’’ in subsection (l) and and inserting ‘‘November 1, 2000,’’. inserting ‘‘$201’’. inserting ‘‘$2,728’’; (3) Section 1701(10)(A) is amended by striking (13) by striking ‘‘$2,969’’ in subsection (m) and TITLE IV—JUDICIAL MATTERS ‘‘the date of the enactment of the Veterans’ Mil- inserting ‘‘$3,010’’; SEC. 401. STANDARD FOR REVERSAL BY COURT lennium Health Care and Benefits Act’’ and in- (14) by striking ‘‘$3,378’’ in subsection (n) and OF APPEALS FOR VETERANS CLAIMS serting ‘‘November 30, 1999,’’. inserting ‘‘$3,425’’; OF ERRONEOUS FINDING OF FACT (4) Section 1705(c)(1) is amended by striking (15) by striking ‘‘$3,775’’ each place it appears BY BOARD OF VETERANS’ APPEALS. ‘‘Effective on October 1, 1998, the Secretary’’ in subsections (o) and (p) and inserting (a) STANDARD FOR REVERSAL.—Paragraph (4) and inserting ‘‘The Secretary’’. ‘‘$3,827’’; of subsection (a) of section 7261 is amended— (5) Section 1707(a) is amended by inserting (16) by striking ‘‘$1,621’’ and ‘‘$2,413’’ in sub- (1) by inserting ‘‘adverse to the claimant’’ ‘‘(42 U.S.C. 14401 et seq.)’’ before the period at section (r) and inserting ‘‘$1,643’’ and ‘‘$2,446’’, after ‘‘material fact’’; and the end. respectively; and (2) by inserting ‘‘or reverse’’ after ‘‘and set (6) Section 1710(e)(1)(D) is amended by strik- (17) by striking ‘‘$2,422’’ in subsection (s) and aside’’. ing ‘‘the date of the enactment of this subpara- inserting ‘‘$2,455’’. (b) REQUIREMENTS FOR REVIEW.—Subsection graph’’ and inserting ‘‘November 11, 1998’’. (b) ADDITIONAL COMPENSATION FOR DEPEND- (b) of that section is amended to read as follows: (7) Section 1729B(b) is amended by striking ENTS.—Section 1115(1) is amended— ‘‘(b) In making the determinations under sub- ‘‘the date of the enactment of this section’’ and (1) by striking ‘‘$124’’ in subparagraph (A) section (a), the Court shall review the record of inserting ‘‘November 30, 1999,’’. and inserting ‘‘$125’’; proceedings before the Secretary and the Board (8) Section 1781(d) is amended— (2) by striking ‘‘$213’’ in subparagraph (B) of Veterans’ Appeals pursuant to section 7252(b) (A) in paragraph (1)(B)(i), by striking ‘‘as of and inserting ‘‘$215’’; of this title and shall— the date’’ and all that follows through ‘‘of 2001’’ (3) by striking ‘‘$84’’ in subparagraph (C) and ‘‘(1) take due account of the Secretary’s appli- and inserting ‘‘as of June 5, 2001’’; and inserting ‘‘$85’’; cation of section 5107(b) of this title; and (B) in paragraph (4), by striking ‘‘paragraph’’ (4) by striking ‘‘$100’’ in subparagraph (D) ‘‘(2) take due account of the rule of preju- and inserting ‘‘subsection’’. and inserting ‘‘$101’’; (9) Section 3018C(e)(2)(B) is amended by strik- (5) by striking ‘‘$234’’ in subparagraph (E) dicial error.’’. ing the comma after ‘‘April’’. and inserting ‘‘$237’’; and (c) APPLICABILITY.—(1) Except as provided in (10) Section 3031(a)(3) is amended by striking (6) by striking ‘‘$196’’ in subparagraph (F) paragraph (2), the amendments made by this ‘‘the date of the enactment of this paragraph’’ and inserting ‘‘$198’’. section shall take effect on the date of the en- and inserting ‘‘December 27, 2001’’. (c) CLOTHING ALLOWANCE FOR CERTAIN DIS- actment of this Act. (11) Section 3485(a)(4) is amended in subpara- ABLED VETERANS.—Section 1162 is amended by (2) The amendments made by this section shall graphs (A), (C), and (F), by striking ‘‘the five- striking ‘‘$580’’ and inserting ‘‘$588’’. apply with respect to any case pending for deci- year period beginning on the date of the enact- (d) DEPENDENCY AND INDEMNITY COMPENSA- sion before the United States Court of Appeals ment of the Veterans Education and Benefits TION FOR SURVIVING SPOUSES.—(1) Section for Veterans Claims other than a case in which Expansion Act of 2001’’ and inserting ‘‘the pe- 1311(a) is amended— a decision has been entered before the date of riod preceding December 27, 2006’’. (A) by striking ‘‘$935’’ in paragraph (1) and the enactment of this Act. (12) Section 3734(b)(2) is amended— inserting ‘‘$948’’; and SEC. 402. REVIEW BY COURT OF APPEALS FOR (A) by striking subparagraph (B); and (B) by striking ‘‘$202’’ in paragraph (2) and THE FEDERAL CIRCUIT OF DECI- (B) by redesignating subparagraphs (C), (D), inserting ‘‘$204’’. SIONS OF LAW OF COURT OF AP- (E), and (F) as subparagraphs (B) (C), (D), and (2) The table in section 1311(a)(3) is amended PEALS FOR VETERANS CLAIMS. (E), respectively. to read as follows: (a) REVIEW.—Section 7292(a) is amended by (13) Section 7315(a) is amended by inserting inserting ‘‘a decision of the Court on a rule of ‘‘Veterans Health’’ in the first sentence after law or of’’ in the first sentence after ‘‘the valid- ‘‘in the’’. Monthly Monthly ity of’’. (h) PUBLIC LAW 107–103.—Effective as of De- ‘‘Pay rate Pay rate (b) APPLICABILITY.—The amendment made by grade grade subsection (a) shall apply with respect to any cember 27, 2001, and as if included therein as E–1 .. $948 W–4 .... $1,134 originally enacted, section 103(c) of the Veterans E–2 .. 948 O–1 ..... 1,001 appeal— Education and Benefits Expansion Act of 2001 E–3 .. 948 O–2 ..... 1,035 (1) filed with the United States Court of Ap- E–4 .. 948 O–3 ..... 1,107 (Public Law 107–103; 115 Stat. 979) is amended E–5 .. 948 O–4 ..... 1,171 peals for the Federal Circuit on or after the date by inserting closing quotation marks at the end E–6 .. 948 O–5 ..... 1,289 of the enactment of this Act; or of the text inserted by the amendment made by E–7 .. 980 O–6 ..... 1,453 (2) pending with the United States Court of E–8 .. 1,035 O–7 ..... 1,570 paragraph (2). E–9.. 11,080 O–8 ..... 1,722 Appeals for the Federal Circuit as of the date of (i) PUBLIC LAW 102–86.—Section 403(e) of the W–1 1,001 O–9 ..... 1,843 the enactment of this Act in which a decision Veterans’ Benefits Programs Improvement Act of W–2 1,042 O–10 ... 22,021 has not been rendered as of that date. 1991 (Public Law 102–86; 105 Stat. 424) is amend- W–3 1,072 ‘‘1If the veteran served as sergeant major of the Army, SEC. 403. AUTHORITY OF COURT OF APPEALS FOR ed by striking ‘‘section 321’’ and all that follows senior enlisted advisor of the Navy, chief master ser- VETERANS CLAIMS TO AWARD FEES through ‘‘and 484)’’ and inserting ‘‘subchapter geant of the Air Force, sergeant major of the Marine UNDER EQUAL ACCESS TO JUSTICE II of chapter 5 of title 40, United States Code, Corps, or master chief petty officer of the Coast Guard, ACT FOR NON-ATTORNEY PRACTI- at the applicable time designated by section 1302 of this TIONERS. sections 541 through 555 and 1302 of title 40, title, the surviving spouse’s rate shall be $1,165. United States Code’’. ‘‘2If the veteran served as Chairman or Vice-Chairman The authority of the United States Court of SEC. 309. CODIFICATION OF COST-OF-LIVING AD- of the Joint Chiefs of Staff, Chief of Staff of the Army, Appeals for Veterans Claims to award reason- Chief of Naval Operations, Chief of Staff of the Air able fees and expenses of attorneys under sec- JUSTMENT PROVIDED IN PUBLIC Force, Commandant of the Marine Corps, or Com- LAW 107–247. mandant of the Coast Guard, at the applicable time des- tion 2412(d) of title 28, United States Code, shall (a) VETERANS’ DISABILITY COMPENSATION.— ignated by section 1302 of this title, the surviving include authority to award fees and expenses, Section 1114 is amended— spouse’s rate shall be $2,168.’’. in an amount determined appropriate by the (1) by striking ‘‘$103’’ in subsection (a) and (3) Section 1311(b) is amended by striking United States Court of Appeals for Veterans inserting ‘‘$104’’; ‘‘$234’’ and inserting ‘‘$237’’. Claims, of individuals admitted to practice be- (2) by striking ‘‘$199’’ in subsection (b) and in- (4) Section 1311(c) is amended by striking fore the Court as non-attorney practitioners serting ‘‘$201’’; ‘‘$234’’ and inserting ‘‘$237’’. under subsection (b) or (c) of Rule 46 of the (3) by striking ‘‘$306’’ in subsection (c) and in- (5) Section 1311(d) is amended by striking Rules of Practice and Procedure of the United serting ‘‘$310’’; ‘‘$112’’ and inserting ‘‘$113’’. States Court of Appeals for Veterans Claims.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00102 Fmt 4637 Sfmt 6333 E:\CR\FM\A18NO6.122 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11333 Amend the title so as to read ‘‘An Act to earlier times. Last year, I proudly au- claims for hearing disorders submitted amend title 38, United States Code, to im- thored legislation to allow survivors of to VA continues to climb. Many vet- prove authorities of the Department of Vet- severely disabled veterans to continue erans who left service decades ago re- erans Affairs relating to veterans’ compensa- receiving VA healthcare coverage ceived an ineffective hearing examina- tion, dependency and indemnity compensa- tion, and pension benefits, education bene- through the program called CHAMPVA tion at separation, or no evaluation at fits, housing benefits, memorial affairs bene- after age 65. Section 101 of the Com- all, leaving VA with a legacy of incom- fits, life insurance benefits, and certain promise Agreement would take this plete records and uncertain clinical other benefits for veterans, to improve the further, allowing the eligible surviving evidence. This affects not only vet- administration of benefits for veterans, to spouses of veterans who died from serv- erans with hearing loss, but all vet- make improvements in procedures relating ice-connected disabilities or in the line erans who must wait for VA to process to judicial review of veterans’ claims for of duty to retain their eligibility for a staggering burden of hearing loss benefits, and for other purposes.’’. CHAMPVA benefits even if they re- Mr. REID. Mr. President, I ask unan- claims without a clear scientific stand- marry after age 55. Those who sac- ard on past exposures. imous consent that the Senate concur rificed so much for their Nation in the amendment of the House, and throughout their lives should not be Section 104 of the Compromise Agree- that a statement of Senator further penalized by losing the special ment would require VA to contract ROCKEFELLER be printed in the RECORD healthcare safety net that CHAMPVA with the National Academy of Sciences as if read. offers. to review evidence on hearing damage The PRESIDING OFFICER. Without Mr. President, Congress last year au- suffered during military service from objection, it is so ordered. thorized VA to offer special monthly World War II to the present. As part of Mr. ROCKEFELLER. Mr. President, compensation to women who had lost this study, scientists would determine as Chairman of the Committee on Vet- one or both breasts as a result of mili- when the audiometric testing and hear- erans’ Affairs, I urge the Senate to pass tary service. VA’s subsequently pro- ing conservation programs initiated by S. 2237, the proposed ‘‘Veterans Bene- mulgated regulations limited eligi- the military services became adequate fits Act of 2002.’’ bility for this benefit to women who for VA to assess whether an individual Mr. President, the pending measure had undergone simple or radical mas- veteran had hearing loss at or prior to is the final compromise version of an tectomy. Even if this restriction plays separation. The Compromise Agree- omnibus bill that would improve a va- no role in a woman’s medical decisions, ment would also require VA to review riety of veterans benefits, from pen- it implies unfairly that tissue-sparing its own records on hearing loss or sions for heroes awarded the Medal of treatments create no physical, emo- tinnitus in veterans, including the cost Honor to fairness in evaluating the dis- tional, or financial obstacles to a wom- of adjudicating these claims under the abilities of veterans with hearing loss. an’s health. Section 102 of the Com- current system and the cost of treating I will briefly highlight some of the pro- promise Agreement would extend this hearing disorders. These reports to- visions of which I am most proud, and eligibility to women veterans who have gether should provide VA’s Secretary refer my colleagues seeking more de- endured service-connected loss of 25 with critical tools to decide how to as- tail to the Joint Explanatory State- percent or more of a breast’s tissue, or sist veterans whose hearing loss may ment accompanying this statement. radiation treatment to a breast. As have resulted from damage suffered S. 2237, which I will refer to as the women comprise a growing percentage years ago quickly and fairly. ‘‘Compromise Agreement,’’ would of our Armed Services, we must ensure Mr. President, Section 304 of the eliminate many inequities and obsta- that they receive fair recognition for Compromise Agreement would increase cles that affect veterans and their fam- their sacrifices, and equitable assist- the special pension granted to recipi- ilies. I thank Ranking Member ARLEN ance in overcoming the medical chal- ents of the Medal of Honor as a token SPECTER and his staff for their efforts lenges that they face. of recognition for their extraordinary on behalf of our Nation’s veterans, and I am enormously proud that the heroism from $600 to $1000, and adjust my colleagues in the House for working Compromise Agreement would help this pension annually with inflation. with our Committee staff to craft this veterans who have both service-con- The agreement would also provide a agreement. nected and unrelated hearing loss ex- one-time payment to Medal of Honor I would also like to take this mo- pect a fair disability rating. Currently, recipients who—due to a time lag be- ment to note the loss of a dear col- VA can consider whether a veteran has tween the date of the act of valor and league, a dedicated advocate for vet- bilateral damage to ‘‘paired’’ organs or the actual awarding of the Medal of erans. Many have eulogized Senator extremities—such as kidneys, lungs, Honor—received this pension only after Paul Wellstone in the past few weeks, feet, or hands—when rating the vet- a delay. and I do not need to tell my colleagues eran’s disability, even if only one of of his passion, his energy, and his un- the paired organs was injured through The next section of the Compromise wavering commitment to shout on be- military service. However, VA can only Agreement grew from legislation intro- half of those who cannot speak for consider how non-service-connected duced by Senator Paul Wellstone, an- themselves. However, few have noted hearing loss might further disable a other example of his advocacy on be- his work on behalf of America’s vet- veteran if he or she suffers total deaf- half of those who serve this Nation. erans, particularly those most ne- ness in both ears. Section 103 of the The Soldiers’ and Sailors’ Relief Act of glected by a Nation that has not al- Compromise Agreement would allow 1940 (SSCRA) applies to ways kept its promises. Senator VA to consider whether a veteran suf- servicemembers, including National Wellstone worked on behalf of home- fers from partial non-service-connected Guard Members, who serve on active less veterans, veterans suffering from hearing loss in one ear when evaluating duty under title 10 of the United States the mental illnesses that can be the si- disability caused by compensable serv- code. It suspends enforcement of cer- lent legacy of the battlefield, and for ice-connected hearing loss in the other tain civil liabilities against those who returned from war to fight ear. This would not only extend the servicemembers on active duty so that their own government’s denials about same special consideration to damage they can devote their concentration to the invisible wounds caused by chemi- to the ears that VA gives to other their duties. cals and radiation. Paul Wellstone may paired organs, but would assist vet- National Guard members may also be have launched his political career in erans whose hearing loss has been called to active duty by their State protest of the , but as a made even worse due to military serv- Governors under title 32. National Senator, he chose to fight for those ice. Guard missions under title 32 are fund- who served. It is up to all of us now to This provision represents an impor- ed by the federal government ‘‘to per- carry on his work. tant step for veterans with hearing form training and other duty.’’ How- As veterans and their families—like loss, but other challenges remain. ever, if the National Guard members the rest of Americans expect to enjoy— America’s aging veterans suffer in- are called up under title 32, rather than lengthening life spans, we must regu- creasingly from hearing loss and title 10, they are not entitled to larly review and update laws crafted in tinnitus, and the number of disability SSCRA protections.

VerDate 0ct 31 2002 03:53 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00103 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.122 S18PT1 S11334 CONGRESSIONAL RECORD — SENATE November 18, 2002 In the days following September 11, vide special emphasis during the judi- Mr. President, in conclusion, I want 2001, under the direction of the Presi- cial process to the ‘‘benefit of the to thank Senator SPECTER and his ben- dent, the Federal Aviation Administra- doubt’’ provisions of section 5107(b) as efits staff—Bill Tuerk, Jon Towers, tion and the Secretary of Defense co- CAVC makes findings of fact in review- David Goetz, and Chris McNamee—for ordinated the use of National Guard ing BVA decisions. The combination of diligently working with me and my members at commercial airports. these changes is intended to provide for benefits staff—Mary Schoelen, Julie These National Guard members, called more searching appellate review of Fischer, Chris Reinard, and Dahlia to active duty from four to six months, BVA decisions, and thus give full force Melendrez—to craft this legislation clearly served a national mission. How- to the ‘‘benefit of doubt’’ provision. during such an incredible year. I urge ever, because they were called up under The addition of the words ‘‘or reverse’’ my colleagues to support this bipar- title 32, they were not entitled to after ‘‘and set aside’’ in section tisan commitment to our Nation’s vet- SSCRA protections. 7261(a)(4) is intended to emphasize that erans, and to send a strong message of Section 305 of the Compromise Agree- CAVC should reverse clearly erroneous support to the men and women who ment would extend SSCRA protections findings when appropriate, rather than now serve in uniform by caring for to include National Guard members remand the case. This new language in those who served before. called to active service for more than section 7261 would overrule the recent I ask unanimous consent that the 30 consecutive days in response to a na- U.S. Court of Appeals for the Federal joint explanatory statement be printed tional emergency declared by the Circuit decision of Hensley v. West, in the RECORD. President, even if they serve under which emphasized that CAVC should There being no objection, the mate- title 32. This provision is intended to perform only limited, deferential re- rial was ordered to be printed in the protect members of the National Guard view of BVA decisions, and stated that RECORD, as follows: when called up under circumstances BVA fact-finding ‘‘is entitled on review EXPLANATORY STATEMENT ON HOUSE similar to those following last Septem- to substantial deference.’’ However, AMENDMENT TO SENATE BILL, S. 2237 ber’s terrorist attacks. nothing in this new language is incon- S. 2237, as amended, the ‘‘Veterans Benefits Mr. President, it is time to amend sistent with the existing section Act of 2002,’’ reflects a Compromise Agree- the Soldiers’ and Sailors’ Relief Act of 7261(c), which precludes the court from ment the Senate and House Committees on 1940 to reflect the critical role that Na- conducting trial de novo when review- Veterans’ Affairs have reached on the fol- tional Guard members now play in pro- ing BVA decisions, that is, receiving lowing bills considered in the House and Sen- tecting this Nation. These National evidence that is not part of the record ate during the 107th Congress: S. 2237 Guard members have increasingly been before BVA. (‘‘Senate Bill’’), H.R. 2561, H.R. 3423, H.R. called onto active duty since Sep- Section 402 of the Compromise Agree- 4085, H.R. 4940, and H.R. 5055 (‘‘House Bills’’). tember 11th. Like all active duty ment would also expand the Federal S. 2237, as amended, passed the Senate on September 26, 2002; H.R. 2561 and H.R. 3423, as servicemembers, National Guard mem- Circuit’s authority to review CAVC de- amended, passed the House on December 20, bers deserve these rights and legal pro- cisions based on rules of law that are 2001; H.R. 4085, as amended, passed the House tections to allow them to concentrate not derived from a specific statute or on May 21, 2002; and H.R. 4940, as amended, on national defense. Paul Wellstone regulation. This change would allow and H.R. 5055 passed the House on July 22, recognized this, and took steps to the Federal Circuit to review com- 2002. make sure that those who don the uni- prehensively any CAVC decisions of The Senate and House Committees on Vet- form to protect our freedoms—at home law that adversely affect appellate re- erans’ Affairs have prepared the following or abroad—have earned our protection. views of veterans’ claims. explanation of S. 2237, as amended, The Compromise Agreement would Currently, attorneys and non-attor- (‘‘Compromise Agreement’’). Differences be- tween the provisions contained in the Com- also ensure that veterans receive a full ney practitioners supervised by attor- promise Agreement and the related provi- judicial review when appealing claims neys who represent certain claimants sions of S. 2237, H.R. 2561, H.R. 3423, H.R. denied by VA. The ‘‘benefit of the may receive compensation for their 4085, H.R. 4940, H.R. 5055, are noted in this doubt’’ rule, the standard applicable to services under the Equal Access to Jus- document, except for clerical corrections, proceedings before VA, states that a tice Act. Section 403 of the Com- conforming changes made necessary by the veteran’s claim is granted unless the promise Agreement would allow non- Compromise Agreement, and minor drafting, preponderance of the evidence is attorney practitioners admitted to technical, and clarifying changes. against the claimant. This rule, unique practice before the CAVC, such as vet- TITLE I—COMPENSATION AND BENEFITS in administrative law, recognizes the erans service organization representa- IMPROVEMENTS tremendous sacrifices made by the men tives, to be awarded fees under this act RETENTION OF CIVILIAN HEALTH AND MEDICAL and women who have served in our without the signature of a supervising PROGRAM OF THE DEPARTMENT OF VETERANS Armed Forces. A number of veterans attorney. This would make organiza- AFFAIRS FOR SURVIVING SPOUSES REMARRY- ING AFTER AGE 55 service organizations have expressed tions that provide invaluable assist- concern that the current appellate ance to veterans eligible for richly de- Current law process is overly deferential to VA served compensation. Section 103(d) of title 38, United States findings of fact that are adverse to vet- The Joint Explanatory Statement Code, prohibits a surviving spouse who has contains language responding to the remarried from receiving dependency and in- eran claimants. Specifically, these demnity compensation (‘‘DIC’’), VA health groups argue that the ‘‘clearly erro- Executive Branch’s interpretation that insurance under the Civilian Health and neous’’ standard applied by the U.S. the CAVC is part of the Executive Medical Program of the Department of Vet- Court of Appeals for Veterans Claims Branch, and subject to rescissions of erans Affairs (‘‘CHAMPVA’’), home loan, and (CAVC) when reviewing Board of Vet- budget pursuant to section 1403 of Pub- education benefits. These benefits may be re- erans’ Appeals (BVA) cases results in lic Law 107–206. I wish to reiterate that instated in the event the subsequent remar- veterans’ claims receiving only cursory it is the Committees’ intent to clarify riage is terminated. review on appeal, not allowing for full that the CAVC is not part of the Exec- House bill application of the ‘‘benefit of the utive Branch. The Committees have Section 3 of H.R. 4085 would allow a sur- doubt’’ rule. previously stated as much, finding in viving spouse who remarries after attaining Section 401 of the Compromise Agree- reports in both the House and Senate age 65 to retain DIC, CHAMPVA health in- ment would maintain the current that the ‘‘Court, established by the surance, home loan, and education benefits. ‘‘clearly erroneous’’ standard of review, Congress under Article I of the Con- Spouses who remarried at age 65 or older prior to enactment of the bill would have one but modify the requirements of the re- stitution to exercise judicial power, year from the date of enactment to apply for view the court must perform when has unusual status as an independent reinstatement of DIC and related benefits. making determinations under section tribunal that is not subject to the con- The amount of DIC would be paid with no re- 7261(a) of title 38. CAVC would be spe- trol of the President or the executive duction of certain other benefits to which cifically required to examine the branch.’’ It is my hope that the Com- the surviving spouse might be entitled. record of proceedings—that is, the mittees will not have to address this SENATE BILL record on appeal—before the Secretary issue again through legislation or The Senate Bill contains no comparable and BVA. Section 401 would also pro- other means. provision.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00104 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.145 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11335 Compromise agreement kidney as a result of service-connected dis- VA to enter into a contract with NAS, but Section 101 of the Compromise Agreement ability and involvement of the other kidney would change the focus of the study to as- would provide that a surviving spouse, upon as a result of non-service-connected dis- sessment of acoustic trauma associated with remarriage after attaining age 55, would re- ability,’’ is specifically provided for in sub- military service from World War II to tain CHAMPVA eligibility. Surviving sections (2), (4), and (5) of section 1160(a) of present. spouses who remarried after attaining age 55 title 38, United States Code. However, total The Compromise Agreement would strike but prior to enactment of this Act would deafness in both ears is required under sec- sections 103(c)(2)(B), 103(c)(2)(D), 103(c)(2)(E), have one year to apply for reinstatement of tion 1160(a)(3) of title 38, United States Code, and all references to military occupational this benefit. The Committees expect the Sec- for special consideration of hearing loss. specialties. The Compromise Agreement fol- retary will maintain data concerning the Senate bill lows the Senate language requiring NAS to determine how much exposure to acoustic number of surviving spouses who become eli- Section 102 of S. 2237 would eliminate the trauma or noise damage during military gible or retain eligibility under this provi- word ‘‘total’’ from section 1160(a)(3) of title service might cause or contribute to hearing sion. 38, United States Code, and allow VA to con- loss, hearing threshold shift, or tinnitus, and The Committees intend in the 108th Con- sider partial non-service-connected hearing whether this damage may be immediate- or gress to consider full restoration of benefits loss in one ear when rating disability for vet- delayed-onset, cumulative, progressive, or a for surviving spouses who remarry after at- erans with compensable service-connected combination of these. taining age 55. hearing loss in the other ear. The Compromise Agreement would pre- CLARIFICATION OF ENTITLEMENT TO SPECIAL House bill serve provisions requiring NAS to assess MONTHLY COMPENSATION FOR WOMEN VET- The House Bills contain no comparable when audiometric measures became ade- ERANS WHO HAVE SERVICE-CONNECTED LOSS provision. quate to assess individual hearing threshold OF BREAST TISSUE Compromise agreement shift reliably and when sufficiently protec- Current law Section 103 of the Compromise Agreement tive hearing conservation measures became Section 1114(k) of title 38, United States follows the Senate language. available. It would also add a third provision Code, authorizes the Department of Veterans requiring NAS to identify age, occupational ASSESSMENT OF ACOUSTIC TRAUMA ASSOCIATED Affairs (‘‘VA’’) to provide special monthly history, and other factors which could con- WITH MILITARY SERVICE FROM WORLD WAR II compensation to any woman veteran who tribute to an individual’s noise-induced hear- TO PRESENT ‘‘has suffered the anatomical loss of one or ing loss. both breasts (including loss by mastec- Current law In assessing when audiometric data col- tomy)’’ as a result of military service. Regu- There is no applicable current law. lected by the military became adequate for lations published at section 4.116 of title 38, Senate bill VA to evaluate if a veteran’s hearing thresh- Code of Federal Regulations, have limited old shift could be detected at or prior to sep- Section 103(a) of S. 2237 would authorize aration, the Committees intend for NAS to this compensation to ‘‘Anatomical loss of a the Secretary to establish a presumption of breast exists when there is complete surgical review and report on a representative sample service connection for hearing loss or of individual records. This should reflect not removal of breast tissue (or the equivalent tinnitus in veterans who served in certain loss of breast tissue due to injury). As de- only an appropriate distribution of individ- military occupational specialties during spe- uals among the various Armed Forces, but fined under this section, radical mastec- cific periods of time if VA finds that evi- tomy, modified radical mastectomy, and within each military service branch so that dence warrants such a presumption. Section these records represent servicemembers who simple (or total) mastectomy result in ana- 103(b) would extend presumption rebuttal tomical loss of a breast, but wide local exci- might reasonably be expected to have dif- provisions in title 38, United States Code, to ferent levels of noise exposure in the course sion, with or without significant alteration cover service-connected hearing loss, should of size or form, does not.’’ of their duties. The representative sample such a presumption be established. should also include records of Senate bill Section 103(c) of the Senate Bill would re- servicemembers discharged during or after quire VA to enter into a contract with the Section 101 of S. 2237 would amend section distinct periods of war or conflict and con- National Academy of Sciences (‘‘NAS’’) or an 1114(k) of title 38, United States Code, to sider the environment in which they served equivalent scientific organization to review specify that women veterans who have suf- in order to gauge how adequately each scientific evidence on forms of acoustic trau- fered the anatomical loss of half of the tissue branch collected audiometric data following ma that could contribute to hearing dis- of one or both breasts in or as a result of World War II, the Korean conflict, the Viet- orders for personnel serving in specific mili- military service may be eligible for special nam era, and during and following the Per- tary occupational specialties. Section monthly compensation. sian Gulf War. House bill 103(c)(2)(B) of the Senate Bill would direct The Compromise Agreement would gen- NAS to identify forms of acoustic trauma erally follow the Senate language requiring The House Bills contain no comparable likely to cause hearing damage in provision. VA to report on hearing loss claims and med- servicemembers, and, in section 103(c)(2)(C), ical treatment for hearing disorders. The Compromise agreement to determine whether such damage would be Compromise Agreement would amend this Section 102 of the Compromise Agreement immediate, cumulative, or delayed. Section language to refer to the number of decisions follows the Senate language, and would 103(c)(2)(D) of the Senate Bill would require issued and their results, rather than claims amend it to extend eligibility to women vet- NAS to assess when audiometric data col- submitted in fiscal years 2000 through 2002, erans who have suffered the anatomical loss lected by the military services became ade- and would remove references to military oc- of 25 percent or more of tissue from one or quate to allow an objective assessment of in- cupational specialties. both breasts (including loss by mastectomy dividual exposure by VA, examining a rep- TITLE II—MEMORIAL AFFAIRS or partial mastectomy) or who received radi- resentative sample of records from World ation treatment of breast tissue. The Com- War II to present by period of service. Sec- PROHIBITION ON CERTAIN ADDITIONAL BENEFITS mittees intend that this change should ex- tion 103(c)(2)(E) of the Senate Bill would re- FOR PERSONS COMMITTING CAPITAL CRIMES tend eligibility for special monthly com- quire NAS to identify military occupational Current law pensation to women veterans whose medical specialties in which servicemembers are Sections 2411 and 2408(d) of title 38, United treatments (other than ‘‘cosmetic surgery’’) likely to be exposed to sufficient acoustic States Code, prohibit persons who are con- or injuries have resulted in a significant trauma to cause hearing disorders. victed of capital crimes from interment or change in size, form, function, or appearance Section 103(d) of S. 2237 would require VA memorialization in National Cemetery Ad- of one or both breasts. to report on medical care provided to vet- ministration cemeteries, Arlington National erans for hearing disorders from fiscal years SPECIFICATION OF HEARING LOSS REQUIRED FOR Cemetery (‘‘ANC’’), or a State cemetery that 1999–2001; on the number of disability com- COMPENSATION FOR HEARING LOSS IN PAIRED receives VA grant funding. Section 5313 of pensation claims received and granted for ORGANS title 38, United States Code, further limits hearing loss, tinnitus, or both during those VA benefits available to veterans who die Current law years; and an estimate of the total cost to while fleeing prosecution or after being con- Under section 1160 of title 38, United States VA of adjudicating those claims in full-time victed of a capital crime. Code, special consideration is extended to a employee equivalents. Senate bill veteran’s service-connected disabilities in House bill ‘‘paired organs or extremities,’’ such as kid- Section 402 of S. 2237 would prohibit the The House Bills contain no comparable neys, lungs, feet, or hands. For these paired issuance of Presidential Memorial Certifi- provision. organs or extremities, VA is authorized when cates, flags, and memorial headstones or rating disability to consider any degree of Compromise agreement grave markers to veterans convicted of or damage to both organs, even if only one re- Section 104 of the Compromise Agreement fleeing from prosecution for a State or Fed- sulted from military service. Total impair- would strike sections 103(a) and 103(b) of the eral capital crime. ment is not a requirement for kidneys, Senate Bill authorizing a presumption of House bill hands, feet, or lungs. Proportional impair- service connection. The Compromise Agree- The House Bills contain no comparable ment, such as ‘‘the loss or loss of use of one ment follows the Senate language requiring provision.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00105 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.146 S18PT1 S11336 CONGRESSIONAL RECORD — SENATE November 18, 2002 Compromise agreement Compromise agreement guarantee hybrid ARMs and reauthorize a Section 201 of the Compromise Agreement Section 204 of the Compromise Agreement fiscal year–1993 to 1995 pilot program to follows the Senate language. would authorize the Secretary of the Army guarantee conventional ARMs. This author- PROCEDURES FOR DISQUALIFICATION OF PER- to place in ANC a new memorial marker hon- ity would begin in fiscal year 2003 and expire SONS COMMITTING CAPITAL CRIMES FOR IN- oring veterans who fought in the Battle of at the end of fiscal year 2005. TERMENT OR MEMORIALIZATION IN NATIONAL the Bulge. House bill CEMETERIES TITLE III—OTHER MATTERS The House Bills contain no comparable Current Law INCREASE IN AGGREGATE ANNUAL AMOUNT provision. Section 2411 of title 38, United States Code, AVAILABLE FOR STATE APPROVING AGENCIES Compromise agreement prohibits interment or memorialization in FOR ADMINISTRATIVE EXPENSES FOR FISCAL Section 303 of the Compromise Agreement National Cemetery Administration ceme- YEARS 2003, 2004, 2005, 2006, AND 2007 would authorize VA to guarantee hybrid teries or in Arlington National Cemetery Current law ARMs for a period of two years. The effective (‘‘ANC’’) of any person convicted of a capital date of this provision would be October 1, Section 3674(a)(4) of title 38, United States crime. This section further prohibits inter- 2003. ment or memorialization of persons found by Code, funds State approving agencies. From INCREASE IN THE AMOUNT PAYABLE AS MEDAL the Secretary of Veterans Affairs or the Sec- fiscal years 1995 to 2000, State approving retary of the Army to have committed cap- agency (‘‘SAA’’) funding was capped, with no OF HONOR SPECIAL PENSION ital crimes but who avoided conviction of the annual increase, at $13 million. Public Law Current law crime through flight or death preceding pros- 106–419 increased SAA funding to $14 million Section 1562 of title 38, United States Code, ecution. In such cases, the Secretary of Vet- for fiscal years 2001 and 2002. Under current provides a special pension of $600 per month erans Affairs or the Secretary of the Army law, the authorization amount was reduced to recipients of the Medal of Honor. Eligi- must receive notice from the Attorney Gen- to $13 million as of October 1, 2002. SAAs are bility to receive the Medal of Honor special eral of the United States, or the appropriate the agencies that determine which schools, pension is contingent upon having first been State official, of the Secretary’s own finding courses, and training programs qualify as el- awarded the Medal of Honor. before the prohibition shall apply. igible for veterans seeking to use their GI Senate bill Bill benefits. Senate bill Section 104 of S. 2237 would increase the Section 403 of S. 2237 would eliminate the Senate bill Medal of Honor special pension from $600 to requirement that the Secretary of Veterans Section 201 of S. 2237 would restore SAA $1,000 per month. Beginning in January 2003, Affairs or the Secretary of the Army be noti- funding to $14 million per year and would in- the pension amount would be adjusted annu- fied of a finding by the Attorney General or crease it to $18 million per year during fiscal ally to maintain the value of the pension in the appropriate State official in cases of per- years 2003, 2004, and 2005. the face of the rising cost of living. The sons who are found to have committed cap- House bill amount of this adjustment would match the ital crimes but who avoided conviction of the percentage of the cost-of-living adjustment Section 6 of H.R. 4085 contains an identical crime through flight or death preceding pros- paid to Social Security recipients. The Sen- provision. ecution. ate Bill would also provide for a one-time, House bill Compromise agreement lump-sum payment in the amount of special The House Bills contain no comparable Section 301 of the Compromise Agreement pension the recipient would have received provision. would restore SAA funding at $14 million for between the date of the act of valor and the Compromise agreement fiscal year 2003, $18 million for fiscal year date that the recipient’s pension actually Section 202 of the Compromise Agreement 2004, $18 million for fiscal year 2005, $19 mil- commenced. follows the Senate language. lion for fiscal year 2006, and $19 million for House bill fiscal year 2007. APPLICATION OF DEPARTMENT OF VETERANS AF- H.R. 2561 would increase the special pen- FAIRS BENEFIT FOR GOVERNMENT MARKERS AUTHORITY FOR VETERANS’ MORTGAGE LIFE sion payable to Medal of Honor recipients FOR MARKED GRAVES OF VETERANS AT PRI- INSURANCE TO BE CARRIED BEYOND AGE 70 from $600 to $1,000 per month, and provide a VATE CEMETERIES TO VETERANS DYING ON OR Current law lump sum payment for existing Medal of AFTER SEPTEMBER 11, 2001 Section 2106(i)(2) of title 38, United States Honor recipients in an amount equal to the Current law Code, provides that Veterans’ Mortgage Life total amount of special pension that the per- Section 2306(d)(1) provides that the Sec- Insurance (‘‘VMLI’’) shall be terminated on son would have received had the person re- retary shall furnish a government marker to the veteran’s seventieth birthday. VMLI is ceived special pension during the period be- those families who request one for the designed to provide financial protection to ginning the first day of the month that marked grave of a veteran buried at a pri- cover eligible veterans’ home mortgages in began after the act giving rise to the receipt vate cemetery, who died on or after Decem- the event of death. VMLI is issued only to of the Medal of Honor, and ending with the ber 27, 2001. those severely disabled veterans who have last day of the month preceding the month House bill received grants for Specially Adapted Hous- that such person’s special compensation commenced. H.R. 2561 also would provide Section 6 of H.R. 4940 would make section ing from the Department of Veterans Affairs. criminal penalties for the unauthorized pur- 2306(d)(1) retroactive to veterans who died on House bill chase or possession of the Medal and for or after September 11, 2001. Section 5(b) of H.R. 4085 would permit vet- making a false representation as a Medal re- Senate bill erans eligible for specially-adapted housing cipient. grants to continue their VMLI coverage be- The Senate Bill contains no comparable Compromise agreement provision. yond age 70. No new policies would be issued Section 304 of the Compromise Agreement Compromise agreement after age 70. follows the Senate language, but would mod- Section 203 of the Compromise Agreement Senate bill ify the effective date of the provision to Sep- follows the House language. The Senate Bill contains no comparable tember 1, 2003. It is the Committee’s under- AUTHORIZATION OF PLACEMENT OF MEMORIAL IN provision. standing that the first month a Medal of ARLINGTON NATIONAL CEMETERY HONORING Compromise agreement Honor recipient would receive special pen- WORLD WAR II VETERANS WHO FOUGHT IN THE Section 302 of the Compromise Agreement sion is October 2003. BATTLE OF THE BULGE follows the House language. It is the Committees’ intent that the lump Current law sum payment of special pension be deter- AUTHORITY TO GUARANTEE HYBRID ADJUSTABLE Section 2409 of title 38, United States Code, mined using the rates of special pension and RATE MORTGAGES authorizes the Secretary of Army to erect the laws of eligibility in effect (including ap- appropriate memorials or markers in Arling- Current law plicable age requirements) for months begin- ton National Cemetery to honor the memory There is no authorization in current law ning after an individual’s act of gallantry. of members of the Armed Forces. for VA to guarantee adjustable rate mort- Excluded from this rule would be the law of House bill gages (‘‘ARMs’’) and hybrid adjustable rate eligibility requiring an individual to have H.R. 5055 would authorize the Secretary of mortgages (‘‘hybrid ARMs’’). A hybrid ARM been awarded a Medal of Honor. the Army to place in ANC a new memorial combines features of fixed rate mortgages EXTENSION OF PROTECTIONS UNDER SOLDIERS’ marker honoring veterans who fought in the and adjustable rate mortgages. A hybrid AND SAILORS’ CIVIL RELIEF ACT OF 1940 TO NA- Battle of the Bulge during World War II. The ARM has a fixed rate of interest for at least TIONAL GUARD MEMBERS CALLED TO ACTIVE Secretary of the Army would have exclusive the first 3 years of the loan, with an annual DUTY UNDER TITLE 32, UNITED STATES CODE authority to approve an appropriate design interest rate adjustment after the fixed rate Current law has expired. and site within ANC for the memorial. The Soldiers’ and Sailors’ Civil Relief Act Senate bill Senate bill of 1940 (‘‘SSCRA’’), sections 510 et seq., of The Senate Bill contains no comparable Section 301 of S. 2237 would authorize VA title 50, United States Code Appendix, sus- provision. to establish a three-year pilot program to pends enforcement of certain civil liabilities

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00106 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.148 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11337 and provides certain rights and legal protec- for active-duty servicemembers, veterans, from ‘‘clearly erroneous’’ to ‘‘unsupported by tions to servicemembers who have been Reservists, and others participating in loan substantial evidence.’’ Section 502 would also called up to active duty under title 10, assumptions under section 3714. cross-reference section 5107(b) in order to United States Code. However, these protec- Senate bill emphasize that the Secretary’s application tions do not extend to National Guard mem- of the ‘‘benefit of the doubt’’ to an appel- The Senate Bill contains no comparable bers called to duty under section 502(f) of lant’s claim would be considered by CAVC on language. title 32, United States Code, ‘‘to perform appeal. training or other duty.’’ Certain homeland House bill House bill security duties performed under title 32, The House Bills contain no comparable United States Code, such as protecting the language. The House Bills contain no comparable nation’s airports, have been carried out at Compromise agreement provision. the request and expense of the Federal gov- Section 307 of the Compromise Agreement Compromise agreement ernment with National Guard members would increase the loan fee for assumptions under the command of their state governors. Section 401 of the Compromise Agreement for loans closed more than 7 days after en- Senate bill follows the Senate language with the fol- actment in fiscal year 2003 from 0.50 percent lowing amendments. Section 401 of S. 2237 would expand SSCRA to 1.0 percent. The Committees intend this The Compromise Agreement would modify protections to include those National Guard fee increase to expire at the end of fiscal the standard of review in the Senate bill in members serving full-time, upon an order of year 2003. subsection (a) by deleting the change to a the Governor of a State at the request of the TITLE IV—JUDICIAL MATTERS head of a Federal law enforcement agency ‘‘substantial evidence’’ standard. It would and with the concurrence of the Secretary of The U.S Court of Appeals for Veterans modify the requirements of the review the Defense, under 502(f) of title 32, United Claims (‘‘CAVC’’) is an Article I Court of Court must perform when it is making deter- States Code for homeland security purposes. limited jurisdiction. It has come to the Com- minations under section 7261(a) of title 38, mittees’ attention that the Administration United States Code. Since the Secretary is House bill has disregarded Congressional intent in in- precluded from seeking judicial review of de- The House Bills contain no comparable terpreting the CAVC to be part of the Execu- cisions of the Board of Veterans Appeals, the provision. tive Branch and subject to rescissions of Ex- addition of the words ‘‘adverse to the claim- Compromise agreement ecutive Branch agency budgets, pursuant to ant’’ in subsection (a) is intended to clarify Section 305 of the Compromise Agreement section 1403 of Public Law 107–206. The Com- that findings of fact favorable to the claim- would provide that when members of the Na- mittees note that while the budget for the ant may not be reviewed by the Court. Fur- tional Guard are called to active service for Court is included in the President’s budget, ther, the addition of the words ‘‘or reverse’’ more than 30 consecutive days under section the Executive Branch has no authority to re- after ‘‘and set aside’’ is intended to empha- 502(f) of title 32, United States Code, to re- view it. Public Law 100–687, section 4082(a). It size that the Committees expect the Court to spond to a national emergency declared by is the Committees’ intent to clarify that the reverse clearly erroneous findings when ap- the President, coverage under the provisions CAVC is not part of the Executive Branch. propriate, rather than remand the case. of the SSCRA would be available. The Com- The Committees have so stated on other oc- New subsection (b) would maintain lan- mittees note that this provision is intended casions, e.g., ‘‘The Court, established by the guage from the Senate bill that would re- to extend protections of the SSCRA to mem- Congress under Article I of the Constitution quire the Court to examine the record of pro- bers of the National Guard when called to to exercise judicial power, has unusual sta- ceedings before the Secretary and BVA and duty under circumstances similar to those tus as an independent tribunal that is not the special emphasis during the judicial following the terrorist attacks of September subject to the control of the President or the process on the benefit of the doubt provi- 11, 2001. executive branch.’’ House of Representatives sions of section 5107 (b) as it makes findings EXTENSION OF INCOME VERIFICATION Report 107–156, July 24, 2001, and Senate Re- of fact in reviewing BVA decisions. This AUTHORITY port 107–86, October 15, 2001. would not alter the formula of the standard Current law STANDARD FOR REVERSAL BY COURT OF AP- of review on the Court, with the uncertainty of interpretation of its application that Section 6103(l)(7)(D) of the Internal Rev- PEALS FOR VETERANS CLAIMS OF ERRONEOUS would accompany such a change. The com- enue Code gives the Internal Revenue Serv- FINDING OF FACT BY BOARD OF VETERANS’ AP- bination of these changes is intended to pro- ice (‘‘IRS’’) authority to furnish income in- PEALS vide for more searching appellate review of formation to the VA from IRS records so Current law BVA decisions, and thus give full force to the that VA might determine eligibility for VA Under section 7261(a)(4) of title 38, United ‘‘benefit of doubt’’ provision. need-based pension, parents dependency and States Code, the Court of Appeals for Vet- indemnity compensation, and priority for erans Claims applies a ‘‘clearly erroneous’’ The Compromise Agreement would also VA health-care services. This provision cur- standard of review to findings of fact made modify the effective date of this provision to rently expires on September 30, 2003, pursu- by the Board of Veterans’ Appeals (‘‘BVA’’). apply to cases that have not been decided ant to Public Law 105–33. The ‘‘clearly erroneous’’ standard has been prior to the enactment of this Act. This pro- Section 5317 of title 38, United States Code, defined as requiring CAVC to uphold BVA vision would not apply to cases in which a provides parallel authority for VA to use IRS findings of fact if the findings are supported decision has been made, but are not final be- information and requires VA to notify appli- by ‘‘a plausible basis in the record . . . even cause the time to request panel review or to cants for needs-based benefits that income if [CAVC] might not have reached the same appeal to the U.S. Court of Appeals for the information furnished by the applicant may factual determinations.’’ Wensch v. Principi, Federal Circuit (‘‘Federal Circuit’’) has not be compared with the information obtained 15 Vet. App. 362, 366–68 (2001). The recent U.S. expired. from the Departments of Health and Human Court of Appeals for the Federal Circuit deci- REVIEW BY COURT OF APPEALS FOR THE Services and Treasury under section sion of Hensley v. West, 212 F.3d 1255 (Fed. FEDERAL CIRCUIT OF DECISIONS OF LAW 6103(l)(7)(D). This parallel authority is sched- Cir. 2000) emphasized that CAVC should per- Current law uled to expire on September 30, 2008, pursu- form only limited, deferential review of BVA ant to Public Law 106–409. decisions, and stated that BVA fact-finding Under section 7292(a) of title 38, United Senate bill ‘‘is entitled on review to substantial def- States Code, the Federal Circuit may only Section 106(a) of S. 2237 would extend sec- erence.’’ Id. at 1263. review CAVC decisions involving questions tion 6103(l)(7)(D) of the Internal Revenue Section 5107(b) of title 38, United States of law ‘‘with respect to the validity of any Code through September 30, 2011. Section Code, provides that VA must find for the statute or regulation.’’ It does not explicitly 106(b) would extend section 5317 of title 38, claimant when, in considering the evidence have the authority to hear appeals of CAVC United States Code, through September 30, of record, there is an approximate balance of decisions that are not clearly legal interpre- 2011. positive and negative evidence regarding any tations of statutes or regulations. House bill material issue including the ultimate merits Senate bill of the claim. This ‘‘benefit of the doubt’’ The House Bills contain no comparable standard applicable to proceedings before VA Section 502 of S. 2237 would amend sections provision. is unique in administrative law. Under the 7292(a) and (c) of title 38, United States Code, Compromise agreement benefit of the doubt rule, unless the prepon- to specifically provide for appellate review of Section 306 of the Compromise Agreement derance of the evidence is against the claim- a CAVC decision on any rule of law. would extend section 6103(l)(7)(D) of the In- ant, the claim is granted. Gilbert v. House bill ternal Revenue Code through September 30, Derwinski, 1 Vet. App. 49 (1990) and Forshey v. 2008. Principi, 284 F.3d 1335 (Fed. Cir. 2002). The House Bills contain no comparable provision. FEE FOR LOAN ASSUMPTION Senate bill Current law Section 501 of S. 2237 would amend section Compromise agreement Section 3729(b)(2)(1) of title 38, United 7261(a)(4) of title 38 to change the standard of Section 402 of the Compromise Agreement States Code, requires a 0.50 percent loan fee review CAVC applies to BVA findings of fact follows the Senate language.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00107 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.150 S18PT1 S11338 CONGRESSIONAL RECORD — SENATE November 18, 2002

AUTHORITY OF COURT OF APPEALS FOR VET- the Armed Forces, including reservists who veterans for VA home loans. The fee would ERANS CLAIMS TO AWARD FEES UNDER EQUAL served on active duty; members or former be reduced for the period beginning on Octo- ACCESS TO JUSTICE ACT TO NON-ATTORNEY members of a reserve component who, but ber 1, 2002, and ending on September 30, 2005. PRACTITIONERS for age, would have been eligible for retired Senate bill Current law pay; members of a reserve component who die in the performance of duty while on ac- The Senate Bill contains no comparable Currently, section 2412(d) of title 28, United tive duty training or inactive duty training; provision. States Code, the Equal Access to Justice Act former members of the Armed Forces who (‘‘EAJA’’), shifts the burden of attorney fees PROHIBIT ASSIGNMENT OF MONTHLY VETERANS have been awarded the Medal of Honor, Dis- from the citizen to the government in cases BENEFITS AND CREATE AN EDUCATION AND tinguished Service Cross (Air Force Cross or where the government’s litigation position is OUTREACH CAMPAIGN ABOUT FINANCIAL SERV- Navy Cross), Distinguished Service Medal, not substantially justified and the citizen ICES AVAILABLE TO VETERANS , or Purple Heart; former pris- qualifies under certain income and asset cri- Current law oners of war who die on or after November teria. Qualified non-attorneys admitted to 30, 1993; the President or any former Presi- Section 5301 of title 38, United States Code, practice before theCAVC may only receive dent; members of the Guard or Reserves who currently prohibits the assignment or at- fees if the EAJA application is signed by an served on active duty, who are eligible for re- tachment of a veteran’s disability compensa- attorney. tirement, but who have not yet retired; the tion or pension benefits. In recent years, pri- Senate bill spouse, surviving spouse, minor child and at vate companies have offered contracts to Section 503 of S. 2237 would allow qualified the discretion of the Superintendent of Ar- veterans that exchange up-front lump sums non-attorneys admitted to practice before lington, certain unmarried adult children. for future benefits. the CAVC to be awarded fees under EAJA for Veterans who do not meet these require- Senate bill representation provided to VA claimants ments might qualify for the placement of without the requirement that an attorney their cremated remains in Arlington’s col- Section 105 of S. 2237 would clarify the ap- sign the EAJA application. umbarium. plicability of the prohibition on assignment House bill H.R. 4940 would also provide the President of veterans benefits through agreements re- the authority to grant a waiver for burial at garding future receipt of compensation, pen- The House Bills contain no comparable sion, or dependency and indemnity com- provision. Arlington in the case of an individual not otherwise eligible for burial under the cri- pensation. This provision would make viola- Compromise agreement teria outlined above but whose acts, service, tion of this prohibition punishable by a fine Section 403 of the Compromise Agreement or contributions to the Armed Forces were and up to one year in jail. This provision follows the Senate language. so extraordinary as to justify burial at Ar- would also require VA to create a five-year The Committees expect that in deter- lington. The President would be allowed to education and outreach campaign to inform mining the amount of reasonable fees pay- delegate the waiver authority only to the veterans about available financial services. able to non-attorney practitioners, the Court Secretary of the Army. House bill will apply the usual rules applicable to fees H.R. 4940 would codify existing regulatory The House Bills contain no comparable for the work of other non-attorneys such as eligibility for interment of cremated re- provision. paralegals and law students based upon pre- mains in the columbarium at Arlington vailing market rates for the kind and quality (generally, this includes all veterans with CLARIFICATION OF RETROACTIVE APPLICATION of the services furnished. 28 U.S.C. 2412 (d) honorable service and their dependents), OF PROVISIONS OF THE VETERANS CLAIMS AS- (2)(A). See, Sandoval v. Brown, 9 Vet. App. 177, clarify that only memorials honoring mili- SISTANCE ACT 181 (1996). tary service may be placed at Arlington and Current law LEGISLATIVE PROVISIONS NOT set a 25-year waiting period for such memo- Public Law 106–475, the Veterans Claims ADOPTED rials, and clarify that in the case of individ- Assistance Act of 2000 (‘‘VCAA’’), restored ARLINGTON NATIONAL CEMETERY uals buried in Arlington before the date of enactment, the surviving spouse is deemed and enhanced VA’s duty to assist claimants Current law to be eligible if buried in the same gravesite. in developing their claims for veterans bene- fits. Specifically, section 3(a) of the VCAA Eligibility for burial at Arlington National Senate bill Cemetery is governed by federal regulations requires VA to take certain steps to assist at section 553.15 of title 32, Code of Federal The Senate Bill contains no comparable claimants. Regulations. The following categories of per- provision. Two recent decisions by the U.S. Court of sons are eligible for in-ground burial: active INCREASE OF VETERANS’ MORTGAGE LIFE Appeals for the Federal Circuit have found duty members of the Armed Forces, except INSURANCE (‘‘VMLI’’) COVERAGE TO $150,000 that the provisions in the VCAA pertaining those members serving on active duty for Current law to VA’s duty to assist cannot be applied training; retired members of the Armed Section 2106(b) of title 38, United States retroactively to claims pending at the time Forces who have served on active duty, are Code, provides that VMLI may not exceed of its enactment. In Dyment v. Principi, 287 on a retired list and are entitled to receive $90,000. F.3d 1377 (Fed. Cir. 2002), the Federal Circuit retirement pay; former members of the stated: ‘‘The Supreme Court has held that a Armed Forces discharged for disability be- House bill federal statute will not be given retroactive fore October 1, 1949, who served on active Section 5(a) of H.R. 4085 would increase the effect unless Congress has made its contrary duty and would have been eligible for retire- maximum amount of coverage available intention clear. There is nothing in the ment under 10 U.S.C. 1202 had the statute under Veterans’ Mortgage Life Insurance VCAA to suggest that section 3(a) was in- been in effect on the date of separation; hon- from $90,000 to $150,000. This would increase tended to applied [sic] retroactively.’’ In orably discharged members of the Armed the amount of the outstanding mortgage, Bernklau v. Principi, 291 F.3d 795, 806 (Fed. Forces awarded the Medal of Honor, Distin- which would be payable if the veteran were Cir. 2002), the Court again concluded: guished Service Cross, Air Force Cross or to die before the mortgage is paid in full. ‘‘[S]ection 3(a) of the VCAA does not apply Navy Cross, Distinguished Service Medal, Senate bill retroactively to require that proceedings Silver Star, or Purple Heart; former pris- The Senate Bill contains no comparable that were complete before the Department of oners of war who served honorably and who provision. Veterans Affairs and were on appeal to the died on or after November 30, 1993; provided Court of Appeals for Veterans Claims or this UNIFORM HOME LOAN GUARANTY FEES FOR they were honorably discharged from the court be remanded for readjudication under QUALIFYING MEMBERS OF THE SELECTED RE- Armed Forces, elected federal officials (the the new statute.’’ SERVE AND ACTIVE DUTY VETERANS President, Vice President, and Members of Senate bill Congress), federal cabinet secretaries and Current law deputies, agency directors and certain other Section 3729(b) of title 38, United States Section 504 of S. 2237 would apply section 3 high federal officials (level I and II execu- Code, provides the amounts in fees to be col- of VCAA retroactively to cases that were on- tives), Supreme Court Justices, and chiefs of lected from each person participating in going either at various adjudication levels certain diplomatic missions; the spouse, VA’s Home Loan Guaranty Program. within VA or pending at the applicable Fed- widow or widower, minor child (under 21 Currently, members of the Selected Re- eral courts prior to the date of VCAA’s en- years of age) and, at the discretion of the serve pay a 0.75 percent higher funding fee actment. Section 505 of the Senate Bill Secretary of the Army, certain unmarried under the home loan program than other eli- would provide for claims decided between the adult children, and certain surviving gible veterans. handing down of the Dyment case and enact- ment of this provision to receive the full no- spouses. House bill tice, assistance, and protection afforded House bill Section 4 of H.R. 4085 would amend the under the VCAA. H.R. 4940 would codify eligibility criteria Loan Fee Table in section 3729(b) of title 38, for in-ground burial at Arlington National United States Code, to provide for uni- House bill Cemetery: members of the Armed Forces formity in the funding fees charged to mem- The House Bills contain no comparable who die on active duty; retired members of bers of the Selected Reserve and active duty provision.

VerDate 0ct 31 2002 03:53 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00108 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.152 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11339 MEASURES INDEFINITELY POST- øSECTION 1. SHORT TITLE. product that could be approved for sale by PONED—S. 2828, S. 2840, S. 2918, S. øThis Act may be cited as the ‘‘Drug Com- the FDA pursuant to the ANDA; or 2929, S. 2931 petition Act of 2001’’. ø(2) the research, development, manufac- øSEC. 2. FINDINGS. ture, marketing or selling of a generic drug Mr. REID. Mr. President, I ask unan- øCongress finds that— product that could be approved by the FDA; imous consent that the following cal- ø(1) prescription drug costs are increasing øboth shall file with the Commission and the endar items be indefinitely postponed: at an alarming rate and are a major worry of Attorney General the text of the agreement, Calendar Nos. 711, 712, 713, 714, and 715. senior citizens and American families; an explanation of the purpose and scope of The PRESIDING OFFICER. Without ø(2) there is a potential for drug companies the agreement and an explanation of wheth- objection, it is so ordered. owning patents on brand-name drugs to er the agreement could delay, restrain, limit, Mr. REID. Mr. President, for the in- enter into private financial deals with ge- or in any way interfere with the production, manufacture or sale of the generic version of formation of the Senate, these items neric drug companies in a manner that could tend to restrain trade and greatly reduce the drug in question. are Senate-numbered items and are competition and increase prescription drug øSEC. 6. FILING DEADLINES. Post Office designations. The House costs for American citizens; and øAny notice, agreement, or other material version of the bills have passed the ø(3) enhancing competition between ge- required to be filed under section 5 shall be Senate and been signed into law. neric drug manufacturers and brand name filed with the Attorney General and the FTC f manufacturers can significantly reduce pre- not later than 10 business days after the date scription drug costs to American families. the agreements are executed. SUPPORTING GOALS OF RED RIB- øSEC. 3. PURPOSE. øSEC. 7. ENFORCEMENT. BON WEEK IN PROMOTING DRUG- øThe purposes of this Act are— ø(a) CIVIL FINE.—Any person, or any offi- FREE COMMUNITIES ø(1) to provide timely notice to the Depart- cer, director, or partner thereof, who fails to Mr. REID. Mr. President, I ask unan- ment of Justice and the Federal Trade Com- comply with any provision of this Act shall mission regarding agreements between com- be liable for a civil penalty of not more than imous consent that the HELP Com- panies owning patents on branded drugs and $20,000 for each day during which such person mittee be discharged from further con- companies who could manufacture generic or is in violation of this Act. Such penalty may sideration of H. Con. Res. 84, and that bioequivalent versions of such branded be recovered in a civil action brought by the the Senate proceed to its immediate drugs; and United States, or brought by the Commis- consideration. ø(2) by providing timely notice, to— sion in accordance with the procedures es- The PRESIDING OFFICER. Without ø(A) enhance the effectiveness and effi- tablished in section 16(a)(1) of the Federal objection, it is so ordered. The clerk ciency of the enforcement of the antitrust Trade Commission Act (15 U.S.C. 56(a)). ø will report the concurrent resolution laws of the United States; and (b) COMPLIANCE AND EQUITABLE RELIEF.— ø If any person, or any officer, director, part- by title. (B) deter pharmaceutical companies from engaging in anticompetitive actions or ac- ner, agent, or employee thereof, fails to com- The legislative clerk read as follows: tions that tend to unfairly restrain trade. ply with the notification requirement under A concurrent resolution (H. Con. Res 84) øSEC. 4. DEFINITIONS. section 5 of this Act, the United States dis- supporting the goals of Red Ribbon Week in øIn this Act: trict court may order compliance, and may promoting drug-free communities. ø(1) AGREEMENT.—The term ‘‘agreement’’ grant such other equitable relief as the court There being no objection, the Senate means an agreement under section 1 of the in its discretion determines necessary or ap- proceeded to consider the concurrent Sherman Act (15 U.S.C. 1) or section 5 of the propriate, upon application of the Commis- resolution. Federal Trade Commission Act (15 U.S.C. 45). sion or the Assistant Attorney General. Mr. REID. Mr. President, I ask unan- ø(2) ANTITRUST LAWS.—The term ‘‘antitrust øSEC. 8. RULEMAKING. ø imous consent that the concurrent res- laws’’ has the same meaning as in section 1 The Commission, with the concurrence of the Assistant Attorney General and by rule olution and the preamble be agreed to of the Clayton Act (15 U.S.C. 12), except that such term includes section 5 of the Federal in accordance with section 553 of title 5, con- en bloc; that the motions to reconsider Trade Commission Act (15 U.S.C. 45) to the sistent with the purposes of this Act— be laid upon the table en bloc, without extent that such section applies to unfair ø(1) may require that the notice described any intervening action or debate; and methods of competition. in section 5 of this Act be in such form and that any statements relating to the ø(3) ANDA.—The term ‘‘ANDA’’ means an contain such documentary material and in- concurrent resolution be printed in the Abbreviated New Drug Application, as de- formation relevant to the agreement as is RECORD. fined under section 505(j) of the Federal necessary and appropriate to enable the The PRESIDING OFFICER. Without Food, Drug and Cosmetic Act. Commission and the Assistant Attorney objection, it is so ordered. ø(4) BRAND NAME DRUG COMPANY.—The term General to determine whether such agree- The concurrent resolution (H. Con. ‘‘brand name drug company’’ means a person ment may violate the antitrust laws; engaged in the manufacture or marketing of ø(2) may define the terms used in this Act; Res. 84) was agreed to. ø(3) may exempt classes of persons or The preamble was agreed to. a drug approved under section 505(b) of the Federal Food, Drug and Cosmetic Act. agreements from the requirements of this f ø(5) COMMISSION.—The term ‘‘Commission’’ Act; and ø DRUG COMPETITION ACT OF 2001 means the Federal Trade Commission. (4) may prescribe such other rules as may ø(6) FDA.—The term ‘‘FDA’’ means the be necessary and appropriate to carry out Mr. REID. Mr. President, I ask unan- United States Food and Drug Administra- the purposes of this Act. imous consent that the Senate proceed tion. øSEC. 9. EFFECTIVE DATES. to the immediate consideration of Cal- ø(7) GENERIC DRUG.—The term ‘‘generic øThis Act shall take effect 90 days after endar No. 431, S. 754. drug’’ is a product that the Food and Drug the date of enactment of this Act.¿ The PRESIDING OFFICER. The Administration has approved under section SECTION. 1. SHORT TITLE. clerk will report the bill by title. 505(j) of the Federal Food, Drug and Cos- This Act may be cited as the ‘‘Drug Competi- The legislative clerk read as follows: metic Act. tion Act of 2001’’. ø A bill (S. 754) to enhance competition for (8) GENERIC DRUG APPLICANT.—The term SEC. 2. FINDINGS. prescription drugs by increasing the ability ‘‘generic drug applicant’’ means a person Congress finds that— of the Department of Justice and Federal who has filed or received approval for an (1) prescription drug prices are increasing at Trade Commission to enforce existing anti- ANDA under section 505(j) of the Federal an alarming rate and are a major worry of trust laws regarding brand name drugs and Food, Drug and Cosmetic Act. many senior citizens and American families; (2) there is a potential for companies with pat- generic drugs. ø(9) NDA.—The term ‘‘NDA’’ means a New Drug Application, as defined under section ent rights regarding brand name drugs and com- There being no objection, the Senate 505(b) et seq. of the Federal Food, Drug and panies which could manufacture generic proceeded to consider the bill which Cosmetic Act (21 U.S.C. 355(b) et seq.) versions of such drugs to enter into financial had been reported from the Committee øSEC. 5. NOTIFICATION OF AGREEMENTS AF- deals that could tend to restrain trade and on the Judiciary, with an amendment FECTING THE SALE OR MARKETING greatly reduce competition and increase pre- to strike all after the enacting clause OF GENERIC DRUGS. scription drug expenditures for American citi- and insert in lieu thereof the following: øA brand name drug manufacturer and a zens; and [Strike the part shown in black generic drug manufacturer that enter into (3) enhancing competition among these com- panies can significantly reduce prescription brackets and insert the part shown in an agreement regarding the sale or manufac- ture of a generic drug equivalent of a brand drug expenditures for Americans. Italic.] name drug that is manufactured by that SEC. 3. PURPOSES. S. 754 brand name manufacturer and which agree- The purposes of this Act are— Be it enacted by the Senate and House of Rep- ment could have the effect of limiting— (1) to provide timely notice to the Department resentatives of the United States of America in ø(1) the research, development, manufac- of Justice and the Federal Trade Commission re- Congress assembled, ture, marketing or selling of a generic drug garding agreements between companies with

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patent rights regarding brand name drugs and (2) OTHER AGREEMENTS.—The generic drug tion of any violation of any antitrust or com- companies which could manufacture generic applicant and the brand name drug company petition laws. versions of such drugs; and entering into an agreement described in sub- SEC. 11. EFFECTIVE DATE. (2) by providing timely notice, to enhance the section (a)(2) shall file with the Assistant Attor- This Act shall— effectiveness and efficiency of the enforcement ney General and the Commission the text of any (1) take effect 30 days after the date of enact- of the antitrust and competition laws of the other agreements not described in subsection ment of this Act; and United States. (a)(2) between the generic drug applicant and (2) shall apply to agreements described in sec- SEC. 4. DEFINITIONS. the brand name drug company which are con- tion 5 that are entered into 30 days after the In this Act: tingent upon, provide a contingent condition date of enactment of this Act. (1) ANDA.—The term ‘‘ANDA’’ means an Ab- for, or are otherwise related to an agreement Mr. LEAHY. Mr. President, I am breviated New Drug Application, as defined which must be filed under this Act. pleased that the Senate has, at long under section 201(aa) of the Federal Food, (3) DESCRIPTION.—In the event that any last, taken up the Drug Competition Drug, and Cosmetic Act (21 U.S.C. 321(aa)). agreement required to be filed by paragraph (1) Act of 1002, S. 754. Prescription drug (2) ASSISTANT ATTORNEY GENERAL.—The term or (2) has not been reduced to text, both the ge- prices are rapidly increasing, and are a ‘‘Assistant Attorney General’’ means the Assist- neric drug applicant and the brand name drug company shall file written descriptions of the source of considerable concern to many ant Attorney General in charge of the Antitrust Americans, especially senior citizens Division of the Department of Justice. non-textual agreement or agreements that must (3) BRAND NAME DRUG.—The term ‘‘brand be filed sufficient to reveal all of the terms of and families. Generic drug prices can name drug’’ means a drug approved under sec- the agreement or agreements. be as much as 80 percent lower than tion 505(c) of the Federal Food, Drug, and Cos- SEC. 6. FILING DEADLINES. the comparable brand name version. metic Act (21 U.S.C. 355(c)). Any filing required under section 5 shall be While the Drug Competition Act is a (4) BRAND NAME DRUG COMPANY.—The term filed with the Assistant Attorney General and small bill in terms of length, it is a ‘‘brand name drug company’’ means the party the Commission not later than 10 business days large one in terms of impact. It will en- that received Food and Drug Administration ap- after the date the agreements are executed. sure that law enforcement agencies can proval to market a brand name drug pursuant SEC. 7. DISCLOSURE EXEMPTION. take quick and decisive action against to an NDA, where that drug is the subject of an Any information or documentary material companies that are driven more by ANDA, or a party owning or controlling en- filed with the Assistant Attorney General or the forcement of any patent listed in the Approved greed than by good sense. It gives the Commission pursuant to this Act shall be exempt Federal Trade Commission and the Drug Products With Therapeutic Equivalence from disclosure under section 552 of title 5, and Evaluations of the Food and Drug Administra- no such information or documentary material Justice Department access to informa- tion for that drug, under section 505(b) of the may be made public, except as may be relevant tion about secret deals between drug Federal Food, Drug, and Cosmetic Act (21 to any administrative or judicial action or pro- companies that keep generic drugs off U.S.C. 355(b)). ceeding. Nothing in this section is intended to the market. This is a practice that (5) COMMISSION.—The term ‘‘Commission’’ prevent disclosure to either body of Congress or hurts American families, particularly means the Federal Trade Commission. to any duly authorized committee or sub- senior citizens, by denying them access (6) GENERIC DRUG.—The term ‘‘generic drug’’ committee of the Congress. means a product that the Food and Drug Ad- to low-cost generic drugs, and further ministration has approved under section 505(j) SEC. 8. ENFORCEMENT. inflating medical costs. of the Federal Food, Drug, and Cosmetic Act (21 (a) CIVIL PENALTY.—Any brand name drug This has been a genuine bipartisan U.S.C. 355(j)). company or generic drug applicant which fails effort, and I must thank all my col- to comply with any provision of this Act shall be (7) GENERIC DRUG APPLICANT.—The term leagues, including Senator HATCH who liable for a civil penalty of not more than ‘‘generic drug applicant’’ means a person who has a long-standing interest in these has filed or received approval for an ANDA $11,000, for each day during which such entity is in violation of this Act. Such penalty may be issues, subcommittee Chairman KOHL under section 505(j) of the Federal Food, Drug, who has worked with me from the start and Cosmetic Act (21 U.S.C. 355(j)). recovered in a civil action brought by the United (8) NDA.—The term ‘‘NDA’’ means a New States, or brought by the Commission in accord- on this effort, and particularly Senator Drug Application, as defined under section ance with the procedures established in section GRASSLEY, who has worked hard to 505(b) et seq. of the Federal Food, Drug, and 16(a)(1) of the Federal Trade Commission Act (15 reach consensus on this bill that will Cosmetic Act (21 U.S.C. 355(b) et seq.) U.S.C. 56(a)). help protect consumers. (b) COMPLIANCE AND EQUITABLE RELIEF.—If SEC. 5. NOTIFICATION OF AGREEMENTS. The issue of drug companies paying any brand name drug company or generic drug (a) IN GENERAL.— applicant fails to comply with any provision of generic companies not to compete was (1) REQUIREMENT.—A generic drug applicant this Act, the United States district court may exposed in recent years by the FTC, that has submitted an ANDA containing a cer- order compliance, and may grant such other eq- and by articles in major newspapers, tification under section 505(j)(2)(vii)(IV) of the uitable relief as the court in its discretion deter- including an editorial in the July 26, Federal Food, Drug, and Cosmetic Act (21 mines necessary or appropriate, upon applica- 2000, the New York Times, titled U.S.C. 355(j)(2)(vii)(IV)) and a brand name drug tion of the Assistant Attorney General or the ‘‘Driving Up Drug Prices.’’ This edi- company that enter into an agreement described Commission. Equitable relief under this sub- in paragraph (2), prior to the generic drug that torial concluded that the problem section may include an order by the district ‘‘needs help from Congress to close is the subject of the application entering the court which renders unenforceable, by the market, shall each file the agreement as required brand name drug company or generic drug ap- loopholes in federal law.’’ And while by subsection (b). plicant failing to file, any agreement that was the FTC has sued pharmaceutical com- (2) DEFINITION.—An agreement described in not filed as required by this Act for the period panies that have made such secret and this paragraph is an agreement regarding— of time during which the agreement was not anticompetitive deals, as the then-Di- (A) the manufacture, marketing or sale of the filed by the company or applicant as required by rector of the Bureau of Competition brand name drug that is the subject of the ge- this Act. neric drug applicant’s ANDA; Molly Boast testified before the Judici- (B) the manufacture, marketing or sale of the SEC. 9. RULEMAKING. ary Committee in May 2001, the anti- generic drug that is the subject of the generic The Commission, with the concurrence of the trust enforcement agencies are only drug applicant’s ANDA; or Assistant Attorney General and by rule in ac- finding out about such deals by luck, (C) the 180-day period referred to in section cordance with section 553 of title 5 United States or by accident. Most recently, the FTC 505(j)(5)(B)(iv) of the Federal Food, Drug, and Code, consistent with the purposes of this Act— (1) may define the terms used in this Act; has issued a comprehensive study of Cosmetic Act (21 U.S.C. 355(j)(5)(B)(iv)) as it ap- the generic pharmaceutical industry plies to such ANDA or to any other ANDA based (2) may exempt classes of persons or agree- on the same brand name drug. ments from the requirements of this Act; and which explicitly supported passage of (b) FILING.— (3) may prescribe such other rules as may be S. 754. (1) AGREEMENT.—The generic drug applicant necessary and appropriate to carry out the pur- Under current law, the first generic and the brand name drug company entering poses of this Act. manufacturer that gets permission to into an agreement described in subsection (a)(2) SEC. 10. SAVINGS CLAUSE. sell a generic drug before the patent on shall file with the Assistant Attorney General Any action taken by the Assistant Attorney the brand-name drug expires, enjoys and the Commission the text of any such agree- General or the Commission, or any failure of the protection from competition for 180 ment, except that the generic drug applicant Assistant Attorney General or the Commission to days—a headstart on other generic and the brand-name drug company shall not be take action, under this Act shall not bar any companies. That was a good idea—but required to file an agreement that solely con- proceeding or any action with respect to any cerns— agreement between a brand name drug company the unfortunate loophole exploited by a (A) purchase orders for raw material supplies; and a generic drug applicant at any time under few is that secret deals can be made (B) equipment and facility contracts; or any other provision of law, nor shall any filing that allow the manufacturer of the ge- (C) employment or consulting contracts. under this Act constitute or create a presump- neric drug to claim the 180-day grace

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00110 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.139 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11341 period—to block other generic drugs (3) enhancing competition among these (1) AGREEMENT.—The generic drug appli- from entering the market—while, at companies can significantly reduce prescrip- cant and the brand name drug company en- the same time, getting paid by the tion drug expenditures for Americans. tering into an agreement described in sub- brand-name manufacturer to not sell SEC. 3. PURPOSES. section (a)(2) shall file with the Assistant At- torney General and the Commission the text the generic drug. The purposes of this Act are— (1) to provide timely notice to the Depart- of any such agreement, except that the ge- The bill closes this loophole for those ment of Justice and the Federal Trade Com- neric drug applicant and the brand-name who want to cheat the public, but mission regarding agreements between com- drug company shall not be required to file an keeps the system the same for compa- panies with patent rights regarding brand agreement that solely concerns— nies engaged in true competition. The name drugs and companies which could man- (A) purchase orders for raw material sup- deals would be reviewed only by those ufacture generic versions of such drugs; and plies; agencies—the agreements would not be (2) by providing timely notice, to enhance (B) equipment and facility contracts; available to the public. I think it is im- the effectiveness and efficiency of the en- (C) employment or consulting contracts; or (D) packaging and labeling contracts. portant for Congress not to overact and forcement of the antitrust and competition laws of the United States. (2) OTHER AGREEMENTS.—The generic drug throw out the good with the bad. Most SEC. 4. DEFINITIONS. applicant and the brand name drug company generic companies want to take advan- In this Act: entering into an agreement described in sub- tage of this 180-day provision and de- (1) ANDA.—The term ‘‘ANDA’’ means an section (a)(2) shall file with the Assistant At- liver quality generic drugs at much Abbreviated New Drug Application, as de- torney General and the Commission the text lower costs for consumers. We should fined under section 201(aa) of the Federal of any other agreements not described in not eliminate the incentive for them. Food, Drug, and Cosmetic Act (21 U.S.C. subsection (a)(2) between the generic drug Instead, we should let the FTC and 321(aa)). applicant and the brand name drug company (2) ASSISTANT ATTORNEY GENERAL.—The which are contingent upon, provide a contin- Justice look at every deal that could gent condition for, or are otherwise related lead to abuse, so that only the deals term ‘‘Assistant Attorney General’’ means the Assistant Attorney General in charge of to an agreement which must be filed under that are consistent with the intent of the Antitrust Division of the Department of this Act. that law will be allowed to stand. This Justice. (3) DESCRIPTION.—In the event that any bill accomplishes precisely that goal, (3) BRAND NAME DRUG.—The term ‘‘brand agreement required to be filed by paragraph and helps ensure effective and timely name drug’’ means a drug approved under (1) or (2) has not been reduced to text, both access to generic pharmaceuticals that section 505(c) of the Federal Food, Drug, and the generic drug applicant and the brand can lower the cost of prescription drugs Cosmetic Act (21 U.S.C. 355(c)). name drug company shall file written de- (4) BRAND NAME DRUG COMPANY.—The term scriptions of the non-textual agreement or for seniors, for families, and for all of agreements that must be filed sufficient to us. ‘‘brand name drug company’’ means the party that received Food and Drug Adminis- reveal all of the terms of the agreement or Mr. REID. Mr. President, I ask unan- tration approval to market a brand name agreements. imous consent that the Hatch-Leahy drug pursuant to an NDA, where that drug is SEC. 6. FILING DEADLINES. amendment which is at the desk be the subject of an ANDA, or a party owning or Any filing required under section 5 shall be agreed to; that the committee amend- controlling enforcement of any patent listed filed with the Assistant Attorney General ment, as amended, be agreed to; that in the Approved Drug Products With Thera- and the Commission not later than 10 busi- the bill, as amended, be read the third peutic Equivalence Evaluations of the Food ness days after the date the agreements are time, passed, and the motion to recon- and Drug Administration for that drug, executed. sider be laid upon the table, with no in- under section 505(b) of the Federal Food, SEC. 7. DISCLOSURE EXEMPTION. Drug, and Cosmetic Act (21 U.S.C. 355(b)). tervening action or debate; and that Any information or documentary material (5) COMMISSION.—The term ‘‘Commission’’ any statements relating to the bill be filed with the Assistant Attorney General or means the Federal Trade Commission. the Commission pursuant to this Act shall printed in the RECORD. (6) GENERIC DRUG.—The term ‘‘generic The PRESIDING OFFICER. Without be exempt from disclosure under section 552 drug’’ means a product that the Food and of title 5, and no such information or docu- objection, it is so ordered. Drug Administration has approved under mentary material may be made public, ex- The amendment (No. 4965) was agreed section 505(j) of the Federal Food, Drug, and cept as may be relevant to any administra- to, as follows: Cosmetic Act (21 U.S.C. 355(j)). tive or judicial action or proceeding. Noth- (7) GENERIC DRUG APPLICANT.—The term AMENDMENT NO. 4965 ing in this section is intended to prevent dis- ‘‘generic drug applicant’’ means a person closure to either body of Congress or to any On page 11, line 17, strike ‘‘or’’. who has filed or received approval for an On page 11, line 18, strike the period and duly authorized committee or subcommittee ANDA under section 505(j) of the Federal of the Congress. insert ‘‘; or’’. Food, Drug, and Cosmetic Act (21 U.S.C. On page 11, after line 18, insert the fol- 355(j)). SEC. 8. ENFORCEMENT. lowing: (D) packaging and labeling con- (8) NDA.—The term ‘‘NDA’’ means a New (a) CIVIL PENALTY.—Any brand name drug tracts. Drug Application, as defined under section company or generic drug applicant which On page 13, line 17, strike all beginning 505(b) et seq. of the Federal Food, Drug, and fails to comply with any provision of this with ‘‘Equitable’’ through line 23. Cosmetic Act (21 U.S.C. 355(b) et seq.) Act shall be liable for a civil penalty of not The committee amendment in the SEC. 5. NOTIFICATION OF AGREEMENTS. more than $11,000, for each day during which such entity is in violation of this Act. Such nature of a substitute, as amended, was (a) IN GENERAL.— penalty may be recovered in a civil action agreed to. (1) REQUIREMENT.—A generic drug appli- The bill (S. 754), as amended, was cant that has submitted an ANDA con- brought by the United States, or brought by read the third time and passed, as fol- taining a certification under section the Commission in accordance with the pro- lows: 505(j)(2)(vii)(IV) of the Federal Food, Drug, cedures established in section 16(a)(1) of the Federal Trade Commission Act (15 U.S.C. S. 754 and Cosmetic Act (21 U.S.C. 355(j)(2)(vii)(IV)) and a brand name drug company that enter 56(a)). Be it enacted by the Senate and House of Rep- into an agreement described in paragraph (2), (b) COMPLIANCE AND EQUITABLE RELIEF.—If resentatives of the United States of America in prior to the generic drug that is the subject any brand name drug company or generic Congress assembled, of the application entering the market, shall drug applicant fails to comply with any pro- SECTION. 1. SHORT TITLE. each file the agreement as required by sub- vision of this Act, the United States district This Act may be cited as the ‘‘Drug Com- section (b). court may order compliance, and may grant petition Act of 2002’’. (2) DEFINITION.—An agreement described in such other equitable relief as the court in its SEC. 2. FINDINGS. this paragraph is an agreement regarding— discretion determines necessary or appro- Congress finds that— (A) the manufacture, marketing or sale of priate, upon application of the Assistant At- (1) prescription drug prices are increasing the brand name drug that is the subject of torney General or the Commission. at an alarming rate and are a major worry of the generic drug applicant’s ANDA; SEC. 9. RULEMAKING. many senior citizens and American families; (B) the manufacture, marketing or sale of The Commission, with the concurrence of (2) there is a potential for companies with the generic drug that is the subject of the ge- the Assistant Attorney General and by rule patent rights regarding brand name drugs neric drug applicant’s ANDA; or in accordance with section 553 of title 5 and companies which could manufacture ge- (C) the 180-day period referred to in section United States Code, consistent with the pur- neric versions of such drugs to enter into fi- 505(j)(5)(B)(iv) of the Federal Food, Drug, and poses of this Act— nancial deals that could tend to restrain Cosmetic Act (21 U.S.C. 355(j)(5)(B)(iv)) as it (1) may define the terms used in this Act; trade and greatly reduce competition and in- applies to such ANDA or to any other ANDA (2) may exempt classes of persons or agree- crease prescription drug expenditures for based on the same brand name drug. ments from the requirements of this Act; American citizens; and (b) FILING.— and

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00111 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.141 S18PT1 S11342 CONGRESSIONAL RECORD — SENATE November 18, 2002 (3) may prescribe such other rules as may FEDERAL AVIATION ADMINISTRA- SEC. 2. AUTHORIZATION OF APPROPRIATIONS. be necessary and appropriate to carry out TION RESEARCH, ENGINEERING (a) AMOUNTS AUTHORIZED.—Section 48102(a) the purposes of this Act. AND DEVELOPMENT ACT OF 2002 of title 49, United States Code, is amended— SEC. 10. SAVINGS CLAUSE. (1) by striking ‘‘and’’ at the end of para- Any action taken by the Assistant Attor- Mr. REID. Mr. President, I ask unan- graph (7); ney General or the Commission, or any fail- imous consent that the Senate proceed (2) by striking the period at the end of ure of the Assistant Attorney General or the to the immediate consideration of Cal- paragraph (8) and inserting a semicolon; and Commission to take action, under this Act endar No. 697, S. 2951, a bill to author- (3) by adding at the end the following: shall not bar any proceeding or any action ize appropriations for the Federal Avia- ‘‘(9) for fiscal year 2003, $261,000,000, includ- with respect to any agreement between a ing— tion Administration. ‘‘(A) $211,000,000 to improve aviation safe- brand name drug company and a generic The PRESIDING OFFICER. The ty; drug applicant at any time under any other clerk will report the bill by title. ‘‘(B) $18,000,000 to improve the efficiency of provision of law, nor shall any filing under The legislative clerk read as follows: the air traffic control system; this Act constitute or create a presumption ‘‘(C) $16,000,000 to reduce the environ- of any violation of any antitrust or competi- A bill (S. 2951) to authorize appropriations mental impact of aviation; and tion laws. for the Federal Aviation Administration, and for other purposes. ‘‘(D) $16,000,000 to improve the efficiency of SEC. 11. EFFECTIVE DATE. mission support; This Act shall— There being no objection, the Senate ‘‘(10) for fiscal year 2004, $274,000,000, in- (1) take effect 30 days after the date of en- proceeded to consider the bill. cluding— actment of this Act; and Mr. REID. I understand Senators ‘‘(A) $221,000,000 to improve aviation safe- (2) shall apply to agreements described in ROCKEFELLER, HOLLINGS, MCCAIN, and ty; section 5 that are entered into 30 days after HUTCHISON of Texas have an amend- ‘‘(B) $19,000,000 to improve the efficiency of the date of enactment of this Act. ment at the desk, and I ask that the the air traffic control system; f amendment be considered and agreed ‘‘(C) $17,000,000 to reduce the environ- to; the bill, as amended, be read three mental impact of aviation; and CONSUMER PRODUCT SAFETY ACT ‘‘(D) $17,000,000 to improve the efficiency of AMENDMENT times, passed, and the motion to recon- mission support; and sider be laid upon the table; that any Mr. REID. Mr. President, I ask unan- ‘‘(11) for fiscal year 2005, $287,000,000, in- statements relating thereto be printed imous consent that the Commerce cluding— in the RECORD, with no intervening ac- ‘‘(A) $231,000,000 to improve aviation safe- Committee be discharged from further tion or debate. ty; consideration of H.R. 727 and that the The PRESIDING OFFICER. Without ‘‘(B) $20,000,000 to improve the efficiency of Senate proceed to its consideration. objection, it is so ordered. the air traffic control system; The PRESIDING OFFICER. Without The amendment (No. 4966) was agreed ‘‘(C) $18,000,000 to reduce the environ- mental impact of aviation; and objection, it is so ordered. The clerk to, as follows: will report the bill by title. ‘‘(D) $18,000,000 to improve the efficiency of AMENDMENT NO. 4966 The legislative clerk read as follows: mission support.’’. (Purpose: To include the House of Represent- SEC. 3. COORDINATION OF NATIONAL AVIATION A bill (H.R. 727) to amend the Consumer atives Committee on Science as a recipient SAFETY AND SECURITY RESEARCH Product Safety Act to provide that low-speed of each of all the required reports, and to PROGRAMS. electric bicycles are consumer products sub- make other minor changes) (a) DEVELOPMENT OF PLAN.—Not later than ject to such Act. June 30, 2003, the National Aeronautics and On page 3, beginning in line 21, strike Space Administration Administrator, the There being no objection, the Senate ‘‘Transportation and’’ and insert proceeded to consider the bill. Federal Aviation Administration Adminis- ‘‘Transportation,’’. trator, and the Under Secretary of Transpor- Mr. REID. Mr. President, I ask unan- On page 3, line 23, strike ‘‘Infrastructure.’’ tation for Security shall prepare and trans- imous consent that the bill be read and insert ‘‘Infrastructure, and the House of mit an updated integrated civil aviation re- three times, passed, and the motion to Representatives Committee on Science.’’. search and development plan to the Senate On page 4, strike lines 18 through 23, and reconsider be laid upon the table, with Committee on Commerce, Science, and insert the following: Transportation, the House of Representa- no intervening action or debate; and The Federal Aviation Administration Ad- that any statements relating to the tives Committee on Transportation and In- ministrator shall continue the program to frastructure, and the House of Representa- bill be in the RECORD. consider awards to nonprofit concrete and tives Committee on Science. The PRESIDING OFFICER. Without asphalt pavement research foundations to (b) CONTENTS.—The updated integrated objection, it is so ordered. improve the design, construction, rehabilita- civil aviation research and development plan The bill (H.R. 727) was read the third tion, and repair of concrete and asphalt air- shall include— time and passed. field pavements to aid in the development of (1) identification of the respective aviation safer, more cost-effective, and more durable research and development requirements, f airfield pavements. roles, and responsibilities of the National CHILD SAFETY ENHANCEMENT On page 5, beginning in line 22, strike Aeronautics and Space Administration, the ACT OF 2002 ‘‘Transportation and’’ and insert Federal Aviation Administration, and the ‘‘Transportation,’’. Transportation Security Administration; Mr. REID. Mr. President, I ask unan- On page 5, line 24, strike ‘‘Infrastructure.’’ and imous consent that the Senate proceed and insert ‘‘Infrastructure, and the House of (2) review of steps they could take to facili- to the immediate consideration of H.R. Representatives Committee on Science.’’. tate the transfer and adoption of new tech- 5504. On page 8, strike lines 9 through 13, and in- nologies in an operational environment, in- sert the following: cluding consideration of increasing the ex- The PRESIDING OFFICER. The (b) REPORT.—A report containing the re- clerk will report the bill by title. change of research staff, providing greater sults of the assessment shall be provided to details on funding at the project level in The legislative clerk read as follows: the Senate Committee on Commerce, joint plans, and providing for greater use of A bill (H.R. 5504) to provide for the im- Science, and Transportation, the House of technology readiness in program plans and provement of the safety of child restraints in Representatives Committee on Transpor- budgets to help frame the maturity of new passenger motor vehicles, and for other pur- tation and Infrastructure, and the House of technologies and determine when they can poses. Representatives Committee on Science not be implemented. There being no objection, the Senate later than 1 year after the date of enactment SEC. 4. RESEARCH PROGRAM TO IMPROVE AIR- of this Act. proceeded to consider the bill. FIELD PAVEMENTS. The bill (S. 2951), as amended, was The Federal Aviation Administration Ad- Mr. REID. Mr. President, I ask unan- read the third time and passed, as fol- ministrator shall continue the program to imous consent that the bill be read a lows: consider awards to nonprofit concrete and third time, passed, and the motion to S. 2951 asphalt pavement research foundations to reconsider be laid upon the table; and improve the design, construction, rehabilita- Be it enacted by the Senate and House of Rep- tion, and repair of concrete and asphalt air- that any statements relating to the resentatives of the United States of America in bill be printed in the RECORD. field pavements to aid in the development of Congress assembled, safer, more cost-effective, and more durable The PRESIDING OFFICER. Without SECTION 1. SHORT TITLE. airfield pavements. The Administrator may objection, it is so ordered. This Act may be cited as the ‘‘Federal use grants or cooperative agreements in car- The bill (H.R. 5504) was read the third Aviation Administration Research, Engi- rying out this section. Nothing in this sec- time and passed. neering, and Development Act of 2002’’. tion requires the Administrator to prioritize

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00112 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.140 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11343 an airfield pavement research program above (2) research and development objectives SOCIAL SECURITY PROGRAM safety, security, Flight 21, environment, or that should be part of Federal Aviation Ad- PROTECTION ACT OF 2002 energy research programs. ministration’s proposed program; SEC. 5. ENSURING APPROPRIATE STANDARDS (3) proposed research and development pro- Mr. REID. Mr. President, I ask unan- FOR AIRFIELD PAVEMENTS. gram’s ability to achieve the goals and ob- imous consent that the Finance Com- (a) IN GENERAL.—The Federal Aviation Ad- jectives of the Federal Aviation Administra- mittee be discharged from further con- ministration Administrator shall review and tion, and of the National Research Council, sideration and the Senate proceed to determine whether the Federal Aviation Ad- the schedule, and the level of resources need- the consideration of H.R. 4070. ministration’s standards used to determine ed; and The PRESIDING OFFICER. Without the appropriate thickness for asphalt and (4) the roles other Federal agencies, such objection, it is so ordered. The clerk concrete airfield pavements are in accord- as National Aeronautics and Space Adminis- will report the bill by title. ance with the Federal Aviation Administra- tration and the National Oceanic and Atmos- A bill (H.R. 4070) to amend the Social Secu- tion’s standard 20-year-life requirement pheric Administration, should play in wake rity Act and the Internal Revenue Code of using the most up-to-date available informa- turbulence research and development, and 1986 to provide additional safeguards for So- tion on the life of airfield pavements. If the coordination of these efforts. cial Security and Supplemental Security In- Administrator determines that such stand- (b) REPORT.—A report containing the re- come beneficiaries with representative pay- ards are not in accordance with that require- sults of the assessment shall be provided to ment, the Administrator shall make appro- ees, to enhance program protections, and for the Senate Committee on Commerce, other purposes. priate adjustments to the Federal Aviation Science, and Transportation, the House of Administration’s standards for airfield pave- Representatives Committee on Transpor- There being no objection, the Senate ments. tation and Infrastructure, and the House of proceeded to consider the bill. (b) REPORT.—Within 1 year after the date Representatives Committee on Science not Mr. BAUCUS. Mr. President, I rise of enactment of this Act, the Administrator later than 1 year after the date of enactment today to urge my colleagues to support shall report the results of the review con- of this Act. the Senate version of H.R. 4070, the ducted under subsection (a) and the adjust- (c) AUTHORIZATION OF APPROPRIATIONS.— ments, if any, made on the basis of that re- ‘‘Social Security Program Protection There are authorized to be appropriated to Act of 2002.’’ H.R. 4070 is bipartisan leg- view to the Senate Committee on Commerce, the Federal Aviation Administration Admin- Science, and Transportation, the House of islation developed by Ways and Means istrator for fiscal year 2003, $500,000 to carry Social Security Subcommittee Chair- Representatives Committee on Transpor- out this section. tation and Infrastructure, and the House of man SHAW and ranking member Representatives Committee on Science. SEC. 8. DEVELOPMENT OF ANALYTICAL TOOLS AND CERTIFICATION METHODS. MATSUI. H.R. 4070 passed the House SEC. 6. AIR TRAFFIC MANAGEMENT RESEARCH The Federal Aviation Administration may unanimously by a vote of 425 to 0. In AND DEVELOPMENT INITIATIVE. conduct research to promote the develop- keeping with the bipartisan tradition (a) OBJECTIVE.—The Federal Aviation Ad- of the Senate Finance Committee and ministration Administrator, in coordination ment of analytical tools to improve existing with the National Aeronautics and Space Ad- certification methods and to reduce the with the bipartisan origins of this leg- ministration Administrator, shall partici- overall costs to manufacturers for the cer- islation, Senator GRASSLEY and I have pate in a national initiative with the objec- tification of new products. worked together to further refine this tive of defining and developing an air traffic SEC. 9. CABIN AIR QUALITY RESEARCH PRO- legislation for Senate consideration. management system designed to meet na- GRAM. The House-passed version of H.R. 4070 tional long-term aviation security, safety, In accordance with the recommendation of makes a number of important changes and capacity needs. The initiative should re- the National Academy of Sciences in its re- to the Social Security and Supple- sult in a multiagency blueprint for acquisi- port entitled ‘‘The Airliner Cabin Environ- ment and the Health of Passengers and mental Security Income, SSI, pro- tion and implementation of an air traffic grams. These changes will accomplish management system that would— Crew’’, the Federal Aviation Administration (1) build upon current air traffic manage- may establish a research program to answer a number of important goals: they will ment and infrastructure initiatives; questions about cabin air quality of aircraft. enhance the financial security of some (2) improve the security, safety, quality, SEC. 10. RESEARCH TO IMPROVE CAPACITY AND of the most vulnerable beneficiaries of and affordability of aviation services; REDUCE DELAYS. these programs, increase protections to (3) utilize a system of systems approach; The Administrator may include, as part of seniors from deceptive practices by in- (4) develop a highly integrated, secure the Federal Aviation Administration re- dividuals in the private sector, improve common information network to enable search program, a systematic review and as- program integrity, thereby saving common situational awareness for all appro- sessment of the specific causes of airport money for the Social Security and delay at the 31 airports identified in the Air- priate system users; and Medicare Trust Funds and taxpayers, (5) ensure seamless global operations for port Benchmarking Study, on an airport-by- system users. airport basis. and reduce disincentives to employ- (b) IMPLEMENTATION.—In implementing ment for disabled individuals. subsection (a), the Federal Aviation Admin- f One of the most important results of istration Administrator, in coordination this legislation will be to enhance the with the National Aeronautics and Space Ad- DIRECTING LAND CONVEYANCE TO financial security of the almost 7 mil- ministration Administrator, shall work with CHATHAM COUNTY, GEORGIA lion Social Security and SSI bene- other appropriate Government agencies and ficiaries who are not capable of man- industry to— Mr. REID. Mr. President, I ask unan- aging their own financial affairs due to (1) develop system performance require- imous consent that the Senate proceed advanced age or disability. The Social ments; to the consideration of Calendar No. (2) determine an optimal operational con- Security Administration, SSA, cur- 615, H.R. 2595. rently appoints individuals or organi- cept and system architecture to meet such The PRESIDING OFFICER. The requirements; zations to act as ‘‘representative pay- (3) utilize new modeling, simulation, and clerk will report the bill by title. ees’’ for such beneficiaries. Most of analysis tools to quantify and validate sys- The legislative clerk read as follows: these representative payees perform tem performance and benefits; A bill (H.R. 2595) to direct the Secretary of their roles conscientiously. However, (4) ensure the readiness of enabling tech- the Army to convey a parcel of land to Chat- some do not. Indeed, there have even nologies; and ham County, Georgia. been instances of terrible abuse in this (5) develop a transition plan for successful There being no objection, the Senate program. implementation into the National Airspace proceeded to consider the bill. It is imperative that Congress take System. Mr. REID. I ask unanimous consent action to guard vulnerable seniors and SEC. 7. ASSESSMENT OF WAKE TURBULENCE RE- SEARCH AND DEVELOPMENT PRO- that the bill be read three times, disabled individuals from such abuse. GRAM. passed, the motion to reconsider be This legislation increases requirements (a) ASSESSMENT.—The Federal Aviation laid upon the table, and that any state- for SSA to provide restitution to bene- Administration Administrator shall enter ments relating thereto be printed in ficiaries when representative payees into an arrangement with the National Re- the RECORD, with no intervening action defraud the beneficiaries of their bene- search Council for an assessment of the Fed- or debate. fits. The legislation also tightens the eral Aviation Administration’s proposed wake turbulence research and development The PRESIDING OFFICER. Without qualifications for representative pay- program. The assessment shall address— objection, it is so ordered. ees, increases oversight of the program, (1) research and development goals and ob- The bill (H.R. 2595) was read the third and imposes stricter penalties on those jectives; time and passed. who violate their responsibilities.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00113 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.145 S18PT1 S11344 CONGRESSIONAL RECORD — SENATE November 18, 2002 The legislation expands the protec- I believe that each of the provisions tion (SSA) negligently failed to investigate tion to seniors and disabled individuals of H.R. 4070, as passed by the House, and monitor the payee. by increasing the list of references to and each of the provisions that Senator Explanation of provision Social Security, Medicare and Med- GRASSLEY and I have added deserve the The new provision eliminates the require- icaid which cannot be used by private- support of the Senate. Moreover, in an ment that benefits be reissued only upon a sector individuals, companies and orga- attempt to expedite congressional pas- finding of SSA negligence in the case of mis- use by an organizational payee or an indi- nizations to give a false impression of sage of this legislation, the changes vidual payee representing 15 or more bene- Federal endorsement. The legislation that Senator GRASSLEY and I want to ficiaries. Thus, the Commissioner would re- also protects seniors from those who make to the House-passed bill have al- issue benefits under Titles II, VIII and XVI deceptively attempt to charge them for ready been worked out with both the in any case in which a beneficiary’s funds are services that the seniors could receive chairman and the ranking member of misused by an organizational payee or an in- for free from SSA. the Social Security Subcommittee of dividual payee representing 15 or more bene- H.R. 4070 improves program integrity ficiaries. the House Ways and Means Committee. The new provision defines misuse as any by expanding the current prohibition Indeed, I have a statement that has case in which a representative payee con- against paying benefits to fugitive fel- been agreed to by the chairman and the verts the benefits entrusted to his or her ons. As part of the 1996 welfare reform ranking member of the Social Security care for purposes other than the ‘‘use and law, Congress banned the payment of Subcommittee, as well as by the chair- benefit’’ of the beneficiary, and authorizes SSI benefits to these individuals. How- man and ranking member of the Senate the Commissioner to define ‘‘use and ben- ever, under current law, fugitive felons Finance Committee. This statement efit’’ in regulation. can still receive Social Security bene- In crafting a regulatory definition for ‘‘use provides details about each of the pro- and benefit,’’ the Commissioner should take fits under title II. This legislation pro- visions of the legislation, as well as the special care to distinguish between the situa- hibits the payment of title II Social rationale behind each provision. I am tion in which the representative payee vio- Security benefits to fugitive felons. submitting this full statement for the lates his or her trust responsibility by con- H.R. 4070 also includes technical record. verting the benefits to further the payee’s amendments to improve the effective- I would also like to point out that own self interest, and the situation in which ness of the Ticket to Work and Work the legislation as a whole has net sav- the payee faithfully serves the beneficiary Incentives Improvement Act, legisla- by using the benefits in a way that prin- ings of more than $500 million over ten cipally aids the beneficiary but which also tion passed in 1999 to help beneficiaries years for taxpayers, according to the incidentally aids the payee or another indi- with disabilities become employed and non-partisan Congressional Budget Of- vidual. For instance, cases in which a rep- move toward self-sufficiency. fice. As a result, the Social Security resentative payee uses the benefits entrusted To these House-passed provisions, and Medicare Trust Fund balances will to his or her care to help pay the rent on an Senator GRASSLEY and I have added increase by more than $500 million over apartment that he or she and the beneficiary some new provisions that we feel are that period, excluding increases from share should not be considered misuse. This provision applies to benefit misuse by very important. increased interest income. Moreover, First, we added a program integrity a representative payee as determined by the over the next 75 years, this legislation Commissioner on or after January 1, 1995. provision which will give the SSA In- will decrease—not increase—the long- Reason for change spector General additional tools to pur- run actuarial deficit for the Social Se- sue individuals who commit by There have been a number of highly pub- curity Trust Funds, although by a neg- licized cases involving organizational rep- concealing work activity while they ligible amount. This information resentative payees that have misused large are receiving disability benefits. comes from Office of sums of monies paid to them on behalf of the Second, we included a provision to Chief Actuary for the Social Security Social Security and Supplemental Security make uniform an exemption to the Administration. I am submitting the Income (SSI) beneficiaries they represented. Government Pension Offset. The Gov- estimate from the office of the Chief In most instances, these organizations oper- ated as criminal enterprises, bent not only ernment Pension Offset, GPO, was en- Actuary of the Social Security Admin- acted in order to equalize the treat- on stealing funds from beneficiaries, but also istration for the RECORD. I will submit on carefully concealing the evidence of their ment of workers in jobs not covered by the official written estimate from the wrongdoing. These illegal activities went un- Social Security and workers in jobs Congressional Budget Office for the detected until large sums had been stolen. If covered by Social Security, with re- RECORD as soon as I receive it. the Social Security Administration is not spect to spousal and survivors benefits. This legislation contains the types of shown to be negligent for failing to inves- The GPO reduces the Social Security improvements we can all agree on, as tigate and monitor the payee, affected bene- ficiaries may never be repaid or may be re- spousal or survivors benefit by an demonstrated by the overwhelming bi- amount equal to two-thirds of the gov- paid only when the representative payee partisan vote in the House, and the bi- committing misuse makes restitution to ernment pension. However, as a recent partisan, bicameral agreement of the SSA. GAO report highlighted, State and chairman and ranking members of the Requiring the SSA to reissue benefit pay- local government workers are exempt committees of jurisdiction. I whole- ments to the victims of misuse by organiza- from the GPO if their job on their last heartedly urge my colleagues in the tional payees or individual payees serving 15 day of employment was covered by So- Senate to approve these sensible and or more beneficiaries protects beneficiaries who are among the most vulnerable because cial Security. In contrast, Federal important changes. workers who switched from the Civil they may have no family members or friends Mr. President, I ask unanimous con- who are willing or able to manage their ben- Service Retirement System, CSRS, a sent that a summary of the bill and a efits for them. With respect to individual system that is not covered by Social memorandum from the Social Security representative payees, the provision applies Security, to the Federal Employee Re- Administration be printed in the only to representative payees serving 15 or tirement System, FERS, a system that RECORD. more beneficiaries. As with many cases in- is covered by Social Security, must There being no objection, the mate- volving organizational representative pay- work for 5 years under FERS in order rial was ordered to be printed in the ees, these are cases which may be the hard- to be exempt from the GPO. Our Sen- est to detect. Moreover, extending the provi- RECORD, as follows: sion to cases involving individual payees ate version of H.R. 4070 makes the ex- ‘‘THE SOCIAL SECURITY PROGRAM PROTECTION serving fewer beneficiaries may lead to emption to the Government Pension ACT OF 2002’’ SUMMARY fraudulent claims of misuse. These claims, Offset the same for State and local gov- TITLE I. PROTECTION OF BENEFICIARIES which often turn on information available ernment workers as for Federal Gov- SUBTITLE A. REPRESENTATIVE PAYEES only from close family members, would be ernment workers. difficult to assess. Similarly, extension of SECTION 101. AUTHORITY TO REISSUE BENEFITS this provision to these cases could poten- Finally, we added four technical re- MISUSED BY ORGANIZATIONAL REPRESENTA- tially encourage misuse or poor money man- finements to the Railroad Retirement TIVE PAYEES agement by these individual representative and Survivors’ Improvement Act of Present law 2001. These changes will help to pro- payees if they believed that the beneficiary The Social Security Act requires the re- could eventually be paid a second time by mote the efficient implementation of issuance of benefits misused by any rep- SSA. that important legislation which be- resentative payee when the Commissioner The effective date would protect the inter- came law last year. finds that the Social Security Administra- ests of beneficiaries affected by these cases

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00114 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.154 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11345 of egregious misuse that have been identified The new provision requires the Commis- beneficiary pursuant to section 101 of this in recent years. sioner to submit a report to the Committee legislation would be reissued to either the SECTION 102. OVERSIGHT OF REPRESENTATIVE on Ways and Means of the House of Rep- beneficiary or their alternate representative PAYEES resentatives and the Committee on Finance payee, up to the total amount misused. This Present law of the Senate evaluating existing procedures provision applies to benefit misuse by a rep- and reviews conducted for representative resentative payee in any case where the Present law requires non-governmental payees to determine whether they are suffi- Commissioner of Social Security makes a de- fee-for-service organizational representative cient to protect benefits from being misused. termination of misuse after December 31, payees to be licensed or bonded. Periodic on- This provision is effective on the first day 2002. site reviews of representative payees by SSA of the 13th month beginning after the date of Reason for change is not required. enactment, except that the report to Con- Although the SSA has been provided with Explanation of provision gress is due no later than 270 days after the expanded authority to recover overpay- The new provision requires non-govern- date of enactment. ments, these tools cannot be used to recoup mental fee-for-service organizational rep- Reason for change benefits misused by a representative payee. resentative payees to be both licensed and Prohibiting persons convicted of offenses Treating benefits misused by non-govern- bonded (provided that licensing is available resulting in imprisonment for more than one mental organization representative payees in the State). In addition, such representa- year, of persons fleeing prosecution, custody and all individual payees as overpayments to tive payees must submit yearly proof of or confinement, and of persons violating pro- the representative payee would provide the bonding and licensing, as well as copies of bation or parole from serving as representa- SSA with additional means for recovering any available independent audits that were tive payees, not just prohibiting those con- misused payments. performed on the payee in the past year. victed of fraud under the Social Security The new provision also requires the Com- SECTION 106. AUTHORITY TO REDIRECT DELIVERY Act, decreases the likelihood of mismanage- missioner of Social Security to conduct peri- OF BENEFIT PAYMENTS WHEN A REPRESENTA- ment or abuse of beneficiaries’ funds. Also, odic onsite reviews of: (1) a person who TIVE PAYEE FAILS TO PROVIDE REQUIRED AC- allowing such person to serve as representa- serves as a representative payee to 15 or COUNTING tive payees places beneficiary payments in more beneficiaries, (2) non-governmental fee- potential jeopardy and could raise serious Present law for-service representative payees (as defined questions about the SSA’s stewardship of The Social Security Act requires rep- in Titles II and XVI), and (3) any agency that taxpayer funds. The agency’s report to Con- resentative payees to submit accounting re- serves as the representative payee to 50 or gress will assist the committees of jurisdic- ports to the Commissioner of Social Security more beneficiaries. In addition, the Commis- tion in both the House and Senate in their detailing how a beneficiary’s benefit pay- sioner is required to submit an annual report oversight of the representative payee pro- ments were used. A report is required at to the Committee on Ways and Means of the gram. least annually, but may be requested by the House of Representatives and the Committee The criminal background information pro- Commissioner at any time if the Commis- on Finance of the Senate on the reviews con- vided by those who apply to be representa- sioner has reason to believe the representa- ducted in the prior fiscal year. tive payees should be the same as the infor- tive payee is misusing benefits. The bonding, licensing, and audit provi- mation considered by the Commissioner to sions are effective on the first day of the 13th Explanation of provision implement this provision. month following enactment of the legisla- The new provision authorizes the Commis- tion. The periodic on-site review provision is SECTION 104. FEE FORFEITURE IN CASE OF sioner of Social Security to require a rep- effective upon enactment. BENEFIT MISUSE BY REPRESENTATIVE PAYEES resentative payee to receive any benefits Reason for change Present law under Titles II, VIII, and XVI in person at a Social Security field office if the representa- Strengthening the bonding and licensing Certain organizational representative pay- tive payee fails to provide an annual ac- requirements for representative payees ees are authorized to collect a fee for their counting of benefits report. The Commis- would add further safeguards to protect services. The fee, which is determined by a sioner would be required to provide proper beneficiaries’ funds. State licensing provides statutory formula, is deducted from the notice and the opportunity for a hearing for some oversight by the State into the fee- beneficiary’s benefit payments. prior to redirecting benefits to the field of- for-service organization’s business practices, Explanation of provision fice. This provision is effective 180 days after and bonding provides some assurances that a The new provision requires representative the date of enactment. surety company has investigated the organi- payees to forfeit the fee for those months Reason for change zation and approved it for the level of risk during which the representative payee mis- associated with the bond for community- used funds, as determined by the Commis- Accounting reports are an important based non-profit social service agencies serv- sioner of Social Security or a court of com- means of monitoring the activities of rep- ing as representative payees. petent jurisdiction. This provision applies to resentative payees to prevent fraud and On-site periodic visits should be conducted any month involving benefit misuse by a rep- abuse. Redirecting benefit payments to the regularly to reduce misuse of funds. To the resentative payee as determined by the Com- field office would enable the agency to degree possible, appropriate auditing and ac- missioner after December 31, 2002. promptly address the failure of the rep- counting standards should be utilized in con- resentative payee to file a report. Reason for change ducting such reviews. SUBTITLE B: ENFORCEMENT Payees who misuse their clients’ funds are SECTION 103. DISQUALIFICATION FROM SERVICE not properly performing the service for SECTION 111. CIVIL MONETARY PENALTY AUTHOR- AS REPRESENTATIVE PAYEE OF PERSONS CON- which the fee was paid and therefore such ITY WITH RESPECT TO WRONGFUL CONVER- VICTED OF OFFENSES RESULTING IN IMPRISON- fees should be forfeited. Permitting the SIONS BY REPRESENTATIVE PAYEES MENT FOR MORE THAN ONE YEAR, OF PERSONS payee to retain the fees is tantamount to re- Present law FLEEING PROSECUTION, CUSTODY OR CONFINE- warding the payee for violating his or her re- MENT, AND OF PERSONS VIOLATING PROBA- The Social Security Act authorizes the sponsibility to use the benefits for the indi- TION OR PAROLE Commissioner to impose a civil monetary vidual’s needs. Present law penalty (of up to $5,000 for each violation) SECTION 105. LIABILITIES OF REPRESENTATIVE along with an assessment (of up to twice the Sections 205, 807, and 1631 of the Social Se- PAYEES FOR MISUSED BENEFITS amount wrongly paid), upon any person who curity Act disqualify individuals from being Present law knowingly uses false information or know- representative payees if they have been con- ingly omits information to wrongly obtain Although the SSA has been provided with victed of fraud under the Social Security Title II, VIII or XVI benefits. Act. expanded authority to recover overpayments Explanation of provision Explanation of provision (such as the use of tax refund offsets, referral to contract collection agencies, notification The new provision expands the application The new provision expands the scope of dis- of credit bureaus, and administrative offsets of civil monetary penalties to include misuse qualification to prohibit an individual from of future federal benefits payments), these of Title II, VIII or XVI benefits by represent- serving as a representative payee if he or tools cannot be used to recoup benefits mis- ative payees. A civil monetary penalty of up she: (1) has been convicted imprisonment for used by a representative payee. to $5,000 may be imposed for each violation, more than one year; (2) is fleeing to avoid along with an assessment of up to twice the prosecution, or custody or confinement after Explanation of provision amount of misused benefits. This provision conviction; or (3) violated a condiction of The new provision treats benefits misused applies to violations occurring after the date probation or parole. An exception applies if by a non-governmental representative payee of enactment. the Commissioner of Social Security deter- (including all individual representative pay- mines that a person who has been convicted ees) as an overpayment to the representative Reason for change of any offense resulting in imprisonment for payee, rather than the beneficiary, thus sub- Providing authority for SSA to impose more than one year would, notwithstanding jecting the representative payee to current civil monetary penalties along with an as- such conviction, be an appropriate represent- overpayment recovery authorities. Any re- sessment of up to twice the amount of mis- ative payee. covered benefits not already reissued to the used benefits, in addition to the SSA’s

VerDate 0ct 31 2002 03:53 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00115 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.156 S18PT1 S11346 CONGRESSIONAL RECORD — SENATE November 18, 2002

present authority permitting recovery of SECTION 202. DENIAL OF TITLE II BENEFITS TO SECTION 203. REQUIREMENTS RELATING TO OF- misused funds, would provide the SSA with PERSONS FLEEING PROSECUTION, CUSTODY, OR FERS TO PROVIDE FOR A FEE A PRODUCT OR an additional means of addressing misuse by CONFINEMENT, AND TO PERSONS VIOLATING SERVICE AVAILABLE WITHOUT CHARGE FROM representative payees. PROBATION OR PAROLE THE SOCIAL SECURITY ADMINISTRATION TITLE II. PROGRAM PROTECTIONS Present law Present law Section 1140 of the Social Security Act pro- SECTION 201. ISSUANCE BY COMMISSIONER OF SO- The welfare reform law (‘‘Personal Respon- hibits or restricts various activities involv- CIAL SECURITY OF RECEIPTS TO ACKNOWL- sibility and Work Opportunity Reconcili- ing the use of Social Security and Medicare EDGE SUBMISSION OF REPORTS OF CHANGES IN ation Act of 1996,’’ P.L. 104–193) included pro- symbols, emblems, or references which give WORK OR EARNINGS STATUS visions making persons ineligible to receive a false impression that an item is approved, Present law SSI benefits during any month in which they endorsed, or authorized by the Social Secu- are fleeing to avoid prosecution for a felony rity Administration, the Health Care Fi- Changes in work or earnings status can af- or to avoid custody or confinement after fect a Title II disability beneficiary’s right nancing Administration (now the Centers for conviction for a felony, or are in violation of Medicare and Medicaid Services), or the De- to continued entitlement to disability bene- a condition of probation or parole. However, fits. Changes in the amount of earned income partment of Health and Human Services. It the same prohibition does not apply to So- also provides for the imposition of civil mon- can also affect an SSI recipient’s continued cial Security benefits under Title II. eligibility for SSI benefits or his or her etary penalties with respect to violations of monthly benefit amount. Explanation of provision the section. The Commissioner has promulgated regu- The new provision makes persons ineli- Explanation of provision lations that require Title II disability bene- gible to receive Social Security benefits Several individuals and companies offer ficiaries to report changes in work or earn- under Title II during any month in which Social Security services for a fee even ings status (20 CFR, 404.1588), and regulations they are fleeing to avoid prosecution for a though the same services are available di- that require SSI recipients (or their rep- felony or to avoid custody or confinement rectly from SSA free of charge. The new pro- resentative payees) to report any increase or after conviction for a felony, or are in viola- vision requires persons or companies offering decrease in income (20 CFR, 416.704—416.714). tion of a condition of probation or parole. such services to include in their solicitations Explanation of provision However, the Commissioner may, for good a statement that the services which they cause, pay withheld benefits to persons flee- provide for a fee are available directly from The new provision requires the Commis- ing to avoid prosecution for a felony or to SSA free of charge. The statements would be sioner to issue a receipt to a disabled bene- avoid custody or confinement after convic- required to comply with standards promul- ficiary (or representative of a beneficiary) tion for a felony. Finally, the Commissioner, gated through regulation by the Commis- who reports a change in his or her work or upon written request by law enforcement of- sioner of Social Security with respect to earnings status. The Commissioner is re- ficials, shall assist such officials in appre- their content, placement, visibility, and leg- quired to continue issuing such receipts hending fugitives by providing them with the ibility. The amendment applies to solicita- until the Commissioner has implemented a address, Social Security number, and, if tions made after the 6th month following the centralized computer file that would record available to SSA, a photograph of the fugi- issuance of these standards. The new provi- the date on which the disabled beneficiary tive. sion requires that the Commissioner promul- (or representative) reported the change in gate regulations within 1 year after the date work or earnings status. This provision is effective on the first day of the first month that begins on or after the of enactment. This provision requires the Commissioner date that is 9 months after the date of enact- Reason for change to begin issuing receipts as soon as possible, ment. Several individuals and companies offer but no later than one year after the date of Social Security services for a fee even enactment. The Committees with jurisdic- Reason for change though the same services are available di- tion over the Social Security Administra- The Inspector General has estimated that rectly from SSA free of charge. For example, tion, the House Committee on Ways and persons fleeing to avoid prosecution for a fel- SSA’s Inspector General has encountered Means and the Senate Committee on Finance ony or to avoid custody or confinement after business entities that have offered assistance (the Committees), are aware that SSA has conviction for a felony, or in violation of a to individuals in changing their names (upon developed software known as the Modernized condition of probation or parole, receive at marriage) or in obtaining a Social Security Return to Work System (MRTW). This soft- least $39 million in Title II Social Security number (upon the birth of a child) for a fee. ware will assist SSA employees in recording benefits annually. The Inspector General has These practices can mislead and deceive sen- information about changes in work and earn- recommended that the law be changed to ior citizens, newlyweds, new parents, and ings status and in making determinations of prohibit these individuals from receiving other individuals seeking services who may whether such changes affect continuing enti- such benefits. not be aware that SSA provides these serv- tlement to disability benefits. The software ices for free. also has the capability of automatically Under this provision, the Commissioner issuing receipts. SSA has informed the Com- would be required to develop regulations SECTION 204. REFUSAL TO RECOGNIZE CERTAIN mittees that this software is already in use within one year of the date of enactment INDIVIDUALS AS CLAIMANT REPRESENTATIVES in some of the agency’s approximately 1300 with regard to the use of the ‘‘good cause’’ Present law exception to withholding Title II benefits local field offices, and that SSA expects to An attorney in good standing is entitled to from persons fleeing to avoid prosecution for put it into operation in the remainder of the represent claimants before the Commis- a felony or to avoid custody or confinement field offices over the next year. The Commit- sioner of Social Security. The Commissioner after conviction for a felony. The good cause tees expect that SSA field offices that are al- may prescribe rules and regulations gov- exception will provide the Commissioner ready using the MRTW system will imme- erning the recognition of persons other than with the ability to pay benefits under un- diately begin issuing receipts to disabled attorneys representing claimants before the usual circumstances in which the Commis- beneficiaries who report changes in work or Commissioner. Under present law, attorneys sioner deems the withholding of benefits to earnings status, and that SSA will require disbarred in one jurisdiction, but licensed to be inappropriate. The Committees expect the other field offices to begin issuing re- practice in another jurisdiction, must be rec- that one of the uses to be made by the Com- ceipts as these offices begin using the MRTW ognized as a claimant’s representative. missioner of this discretionary authority system over the next year. For disabled Title Explanation of provision XVI beneficiaries, if SSA issues a notice to will be to deal with situations that arise when Social Security beneficiaries are found The new provision authorizes the Commis- the beneficiary immediately following the sioner to refuse to recognize as a representa- report of earnings that details the effect of to be in flight from a warrant relating to a crime for which the beneficiary is ultimately tive, or disqualify as a representative, an at- the change in income on the monthly benefit torney who has been disbarred or suspended amount, this notice would serve as a receipt. not convicted. In such circumstances, it is expected that the absence of a conviction from any court or bar, or who has been dis- Reason for change should serve as a basis for paying any bene- qualified from participating in or appearing Witnesses have testified before the Social fits withheld from the beneficiary during a before any Federal program or agency. Due Security Subcommittee and the Human Re- period of flight. process (i.e., notice and an opportunity for a sources Subcommittee of the House Ways The Committees have been made aware of hearing) would be required before taking and Means Committee that SSA does not situations in which the violation of a condi- such action. Also, if a representative has currently have an effective system in place tion of probation or parole could involve been disqualified or suspended as a result of for processing and recording Title II and mitigating circumstances that may warrant collecting an unauthorized fee, full restitu- Title XVI disability beneficiaries’ reports of further examination regarding the denial of tion is required before reinstatement can be changes in work and earnings status. Issuing benefits created by this section. The Com- considered. This provision is effective upon receipts to disabled beneficiaries who make mittees plan to work with the Commissioner the date of enactment. such reports would provide them with proof of Social Security to further examine such Reason for change that they had properly fulfilled their obliga- situations in order to evaluate whether the This provision would provide additional tion to report these changes. current good faith exception is sufficient. protections for beneficiaries who may rely

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00116 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.157 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11347 on representatives during all phases of their Services) or the Department of Health and which fraud cases to prosecute. As benefits benefit application process. As part their on- Human Services. received during the trial work period are not going oversight of claimant representatives, Explanation of provision included in the dollar-loss totals, the dollar the Committees intend to review whether op- The new provision expands the prohibition loss to the government may fall below the tions to establish protections for claimants in present law to several other references to thresholds set by the United States Attor- represented by non-attorneys should be con- Social Security and Medicare. This provision neys in cases involving fraudulent conceal- sidered. applies to items sent after 180 days after the ment of work by Title II disability bene- SECTION 205. PENALTY FOR CORRUPT OR FORC- date of enactment. ficiaries. In such situations, the case would IBLE INTERFERENCE WITH ADMINISTRATION OF Reason for change not be prosecuted even if the evidence of THE SOCIAL SECURITY ACT Expansion of this list helps to ensure that fraud was very clear. Present law individuals receiving any type of mail, so- This provision rectifies this situation by No provision. licitations or flyers bearing symbols, em- establishing that individuals convicted of Explanation of provision blems or names in reference to Social Secu- fraudulently concealing work activity dur- rity or Medicare are not misled into believ- The new provision imposes a fine of not ing the trial work period are not entitled to ing that these agencies approved or endorsed more than $5,000, and imprisonment of not receive a benefit for trial work period the services or products depicted in the so- more than 3 years, or both, for attempting to months prior to the conviction (but within licitations. intimidate or impede—corruptly or by using the same period of disability). As a result, in SECTION 207. DISQUALIFICATION FROM PAYMENT force or threats of force—any Social Secu- such cases the total dollar loss to the gov- DURING TRIAL WORK PERIOD UPON CONVICTION rity Administration (SSA) officer, employee ernment that is calculated will be greater OF FRAUDULENT CONCEALMENT OF WORK AC- or contractor (including State employees of and more likely to meet the United States TIVITY disability determination services and any in- Attorneys’ thresholds for prosecution. dividuals designated by the Commissioner) Present law while they are acting in their official capac- An individual entitled to disability bene- TITLE III—ATTORNEY REPRESENTATIVE ities under the Social Security Act. If the of- fits under Title II is entitled to a ‘‘trial work FEE PAYMENT SYSTEM IMPROVEMENTS fense is committed only by threats of force, period’’ to test his or her ability to work. SECTION 301. CAP ON ATTORNEY however, the offender is subject to a fine of The trial work period allows beneficiaries to REPRESENTATIVE ASSESSMENTS not more than $3,000 and/or no more than one work with earnings above the substantial year in prison. This provision is effective gainful activity level for up to 9 months Present law upon enactment. (which need not be consecutive) without any Reason for change loss of benefits. A month counts as a trial The Social Security Act allows the fees of work period month if the individual earns claimant representatives who are attorneys This provision extends to SSA employees above a level established by regulation (in to be paid by the SSA directly to the attor- the same protections provided to employees 2002, this amount is $560 a month). If the in- ney out of the claimant’s past-due benefits of the Internal Revenue Service under the dividual does not use the full 9 months with- Internal Revenue Code of 1954. These protec- for Title II claims. The SSA, by law, is per- in a 60 month period, he or she is entitled to tions will allow SSA employees to perform mitted to charge an assessment at a rate not another 9 month trial work period. to exceed 6.3% of approved attorney fees, for their work with more confidence that they SSA’s Inspector General has pursued pros- will be safe from harm. the costs of determining, processing, with- ecution of Title II disability beneficiaries holding and distributing attorney represent- The Internal Revenue Manual defines the who fraudulently conceal work activity by ative fees for Title II claims. term ‘‘corruptly’’ as follows: ‘‘’Corruptly’ applying several criminal statutes, including characterizes an attempt to influence any of- section 208(a) of the Social Security Act and Explanation of provision ficial in his or her official capacity under sections 371 and 641 of Title 18 of the United this title by any improper inducement. For States Code (Crimes and Criminal Proce- The new provision imposes a cap of $75 on example, an offer of a bribe or a passing of a dures). the 6.3% assessment on approved attorney bribe to an Internal Revenue employee for Explanation of provision representative fees for Title II claims, and the purpose of influencing him or her in the this cap is indexed for inflation. This provi- performance of his or her official duties is Under the new provision, an individual who is convicted of fraudulently concealing work sion is effective 180 days after the date of en- corrupt interference with the administration actment. of federal laws.’’ (Internal Revenue Manual, activity during the trial work period would [9.5] 11.3.2.2, 4–09–1999). not be entitled to receive a disability benefit Reason for change The Committees expect that judgment will for trial work period months that occur prior be used in enforcing this section. Social Se- to the conviction but within the same period Testimony was given at a House oversight curity and SSI disability claimants and of disability. If the individual had already hearing in May 2001 on Social Security’s beneficiaries, in particular, are frequently been paid benefits for these months, he or processing of attorney representative’s fees subject to multiple, severe life stressors, she would be liable for repayment of these that the amount of the fee assessment is un- which may include severe physical, psycho- benefits, in addition to any restitution, pen- fair to these attorneys, who provide an im- logical, or financial difficulties. In addition, alties, fines, or assessments that were other- portant service to claimants. The attorneys disability claimants or beneficiaries who en- wise due. who receive fee payments from the agency counter delays in approval of initial benefit In order to be considered to be fraudu- have their gross revenue reduced by 6.3%, applications or in post-entitlement actions lently concealing work activity under this which is about a 20% reduction in the net provision, the individual must have: (1) pro- may incur additional stress, particularly if revenue for most attorneys. As a result of vided false information to SSA about his or they have no other source of income. Under this revenue loss and the time it takes for her earnings during that period; (2) worked such circumstances, claimants or bene- the SSA to issue the fee payments to attor- under another identity, including under the ficiaries may at times express frustration in neys, a number of attorneys have decided to an angry manner, without truly intending to social security number of another person or a false social security number; or (3) taken take fewer or none of these cases. The cap on threaten or intimidate SSA employees. In the amount of the assessment would help en- addition, approximately 25% of Social Secu- other actions to conceal work activity with the intent to fraudulently receive benefits sure that enough attorneys remain available rity disability beneficiaries and 35% of dis- to represent claimants before the Social Se- abled SSI recipients have mental impair- that he or she was not entitled to. This provision is effective with respect to curity Administration. ments, and such individuals may be less able work activity performed after the date of en- to control emotional outbursts. These fac- The Committees continue to be concerned actment. tors should be taken into account in enforc- about the agency’s processing time for attor- ing this provision. Reason for change ney representative fee payments and expect Under current law, if an individual is con- SECTION 206. USE OF SYMBOLS, EMBLEMS OR the SSA to further automate the payment victed of fraudulently concealing work activ- NAMES IN REFERENCE TO SOCIAL SECURITY OR process as soon as possible. ity, the dollar loss to the government is cal- MEDICARE The Committee on Ways and Means of the culated based on the benefits that the indi- House of Representatives and the Committee Present law vidual would have received had he or she not Section 1140 of the Social Security Act pro- concealed the work activity. During the trial on Finance of the Senate will request the hibits (subject to civil penalties) the use of work period, disability beneficiaries con- General Accounting Office to conduct a Social Security or Medicare symbols, em- tinue to receive their monthly benefit study of claimant representation in the So- blems and references on any item in a man- amount no matter how much they earn. cial Security and Supplemental Security In- ner that conveys the false impression that Therefore, benefits received during the trial come programs. The study will include an such item is approved, endorsed or author- work period are not included in calculating evaluation of the potential advantages and ized by the Social Security Administration, the total dollar loss to the government. disadvantages of extending the fee with- the Health Care Financing Administration Many United States Attorneys set dollar- holding process to non-attorney representa- (now the Centers for Medicare and Medicaid loss thresholds that they use in determining tives.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00117 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.159 S18PT1 S11348 CONGRESSIONAL RECORD — SENATE November 18, 2002 TITLE IV: MISCELLANEOUS AND Reason for change include: (1) information and advice about ob- TECHNICAL AMENDMENTS This additional waiver authority is needed taining vocational rehabilitation (VR) and SUBTITLE A: AMENDMENTS RELATING TO THE to allow the Commissioner to effectively test employment services; and (2) advocacy or TICKET TO WORK AND WORK INCENTIVES IM- the $1-for-$2 benefit offset in combination other services that a disabled beneficiary PROVEMENT ACT OF 1999 with return to work services under the Tick- may need to secure or regain employment. et to Work Program. Under the $1-for-$2 ben- SSA has established the Protection and Ad- SECTION 401. APPLICATION OF DEMONSTRATION vocacy to Beneficiaries of Social Security AUTHORITY SUNSET DATE TO NEW PROJECTS efit offset, earnings of many beneficiaries may not be sufficient to completely elimi- (PABSS) Program pursuant to this author- Present law nate benefits. However, under section 1148 of ization. Section 234 of the Social Security Act pro- the Social Security Act, benefits must be To be eligible for services under either the vides the Commissioner with general author- completely eliminated before employment BPAO or PABSS programs, an individual ity to conduct demonstration projects for networks participating in the Ticket to must be a ‘‘disabled beneficiary’’ as defined the disability insurance program. These Work Program are eligible to receive out- under section 1148(k) of the Act. Section 1148(k) defines a disabled beneficiary as an projects can test: (1) alternative methods of come payments. Therefore, employment net- individual entitled to Title II benefits based treating work activity of individuals enti- works are likely to be reluctant to accept on disability or an individual who is eligible tled to disability benefits; (2) the alteration tickets from beneficiaries participating in for federal Supplemental Security Income of other limitations and conditions that the $1-for-$2 benefit offset demonstration, (SSI) cash benefits under Title XVI based on apply to such individuals (such as an in- making it impossible for SSA to effectively disability or blindness. crease in the length of the trial work period); test the combination of the benefit offset and (3) implementation of sliding scale ben- and these return to work services. Addition- Explanation of provision efit offsets. To conduct the projects, the ally, section 1148 waiver authority was pro- The new provision expands eligibility for Commissioner may waive compliance with vided for the broad Title II disability dem- the BPAO and PABSS programs under sec- the benefit requirements of Title II and Sec- onstration authority under section 234 of the tion 1149 and 1150 of the Act to include not tion 1148, and the HHS Secretary may waive Social Security Act, but not for this man- just individuals who are ‘‘disabled bene- the benefit requirements of Title XVIII. The dated project. ficiaries’’ under section 1148(k) of the Act, Commissioner’s authority to conduct dem- but also individuals who (1) are no longer eli- SECTION 403. FUNDING OF DEMONSTRATION onstration projects terminates on December gible for SSI benefits because of an increase PROJECTS PROVIDING FOR REDUCTIONS IN DIS- 17, 2004, five years after its enactment in the in earnings, but remain eligible for Medicaid; ABILITY INSURANCE BENEFITS BASED ON ‘‘Ticket to Work and Work Incentives Im- (2) receive only a State Supplementary pay- EARNINGS provement Act of 1999’’(P.L. 106–170, ‘‘Ticket ment (a payment that some States provide to Work Act’’). Present law as a supplement to the federal SSI benefit); The Ticket to Work Act provides that the Explanation of provision or (3) are in an extended period of Medicare benefits and administrative expenses of con- eligibility under Title XVIII after a period of The new provision clarifies that the Com- ducting the $1-for-$2 demonstration projects Title II disability has ended. The new provi- missioner is authorized to conduct dem- will be paid out of the Old-Age, Survivors, sion also expands the types of services a P&A onstration projects that extend beyond De- and Disability Insurance (OASDI) and Fed- system may provide under section 1150 of the cember 17, 2004, if such projects are initiated eral Hospital Insurance and Federal Supple- Act. Currently P&A systems may provide on or before that date (i.e., initiated within mentary Medical Insurance (HI/SMI) trust ‘‘advocacy or other services that a disabled the five-year window after enactment of the funds, to the extent provided in advance in beneficiary may need to secure or regain em- Ticket to Work Act). This provision is effec- appropriations acts. ployment,’’ while the new provision allows tive upon enactment. Explanation of provision them to provide ‘‘advocacy or other services Reason for change that a disabled beneficiary may need to se- The new provision establishes that admin- cure, maintain, or regain employment.’’ The current five-year limitation on waiver istrative expenses for the $1-for-$2 dem- authority restricts the options that may be The amendment to section 1149, which af- onstration project will be paid out of other- fects the BPAO program, is effective with re- tested to improve work incentives and re- wise available annually-appropriated funds, turn to work initiatives, as several potential spect to grants, cooperative agreements or and that benefits associated with the dem- contracts entered into on or after the date of options the Commissioner may test would onstration project will be paid from the extend past the current five-year limit. As enactment. The amendments to section 1150, OASDI or HI/SMI trust funds. This provision which affect the PABSS program, are effec- developing a well-designed demonstration is effective upon enactment. tive for payments provided after the date of project can require several years, the current Reason for change the enactment. five-year authority may in some cases not allow sufficient time to both design the For demonstration projects conducted Reason for change project and to conduct it long enough to ob- under the broader Title II demonstration The Committees recognize that Social Se- tain reliable data. project authority under section 234 of the So- curity and SSI beneficiaries with disabilities cial Security Act, administrative costs are face a variety of barriers and disincentives SECTION 402. EXPANSION OF WAIVER AUTHORITY paid out of otherwise available annually-ap- to becoming employed and staying in their AVAILABLE IN CONNECTION WITH DEMONSTRA- propriated funds, and benefits associated jobs. The intent of this provision, as with the TION PROJECTS PROVIDING FOR REDUCTIONS with the demonstration projects are paid Ticket to Work Act, is to encourage disabled IN DISABILITY INSURANCE BENEFITS BASED ON from the OASDI or HI/SMI trust funds. This individuals to work. EARNINGS provision would make funding sources for The definition of ‘‘disabled beneficiary’’ Present law the $1 for $2 demonstration project under the under section1148(k) of the Act does not in- Section 234 of the Social Security Act pro- Ticket to Work Act consistent with funding clude several groups of beneficiaries, includ- vides the Commissioner with general author- sources for other Title II demonstration ing individuals who are no longer eligible for ity to conduct demonstration projects for projects. SSI benefits because of an earnings increase the disability insurance program. In addi- SECTION 404. AVAILABILITY OF FEDERAL AND but remain eligible for Medicaid; individuals tion, the Ticket to Work Act specifically di- STATE WORK INCENTIVE SERVICES TO ADDI- receiving only a State Supplementary pay- rects the Commissioner to conduct dem- TIONAL INDIVIDUALS ment; and individuals who are in an extended period of Medicare eligibility. The Commit- onstration projects for the purpose of evalu- Present law ating a program for Title II disability bene- tees believe that BPAO and PABSS services Section 1149 of the Social Security Act (the ficiaries under which benefits are reduced by should be available to all of these disabled Act), as added by the Ticket to Work Act, di- $1 for each $2 of the beneficiary’s earnings beneficiaries regardless of Title II or SSI rects SSA to establish a community-based above a level determined by the Commis- payment status. Beneficiaries may have pro- work incentives planning and assistance pro- sioner. To permit a thorough evaluation of gressed beyond eligibility for federal cash gram to provide benefits planning and assist- alternative methods, section 302 of the Tick- benefits but still be in need of information ance to disabled beneficiaries. To establish et to Work Act allows the Commissioner to about the effects of work on their benefits, this program, SSA is required to award coop- waive compliance with the benefit provisions or in need of advocacy or other services to erative agreements (or grants or contracts) of Title II and allows the Secretary of Health help them maintain or regain employment. to State or private entities. In fulfillment of and Human Services to waive compliance Extending eligibility for the BPAO and this requirement, SSA has established the with the benefit requirements of Title XVIII. PABSS programs to beneficiaries who are re- Benefits Planning, Assistance, and Outreach ceiving State Supplemental payments or are Explanation of provision (BPAO) program. BPAO projects now exist in still eligible for Medicare or Medicaid, but The new provision allows the Commis- every state. who are no longer eligible for federal cash sioner to also waive requirements in Section Section 1150 of the Act authorizes SSA to benefits, will help to prevent these bene- 1148 of the Social Security Act, which gov- award grants to State protection and advo- ficiaries from returning to the federal cash erns the Ticket to Work and Self-Sufficiency cacy (P&A) systems so that they can provide benefit rolls and help them to reach their op- Program (Ticket to Work Program), as they protection and advocacy services to disabled timum level of employment. relate to Title II. This provision is effective beneficiaries. Under this section, services The Committees also intend that PABSS upon enactment. provided by participating P&A systems may services be available to provide assistance to

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beneficiaries who have successfully obtained Under current law, an employer hiring a SECTION 413. REINSTATEMENT OF CERTAIN employment but who continue to encounter disabled individual referred by an employ- REPORTING REQUIREMENTS job-related difficulties. Therefore, the new ment network does not qualify for the WOTC Present law provision extends the current PABSS assist- unless the employment network is a State The Federal Reports Elimination and Sun- ance (which is available for securing and re- VR agency. set Act of 1995 ‘‘sunsetted’’ most annual or gaining employment) to maintaining em- Explanation of provision periodic reports from agencies to Congress ployment—thus providing a continuity of The new provision allows employers who that were listed in a 1993 House inventory of services for disabled individuals throughout hire disabled workers through referrals by congressional reports. the process of initially securing employ- employment networks under section 1148 of ment, the course of their being employed Explanation of provision the Social Security Act to qualify for the and, if needed, their efforts to regain em- The new provision reinstates the require- WOTC. Specifically, it provides that, for pur- ployment. This provision would ensure that ments for several periodic reports to Con- poses of section 51(d)(6)(B)(i) of the IRC of disabled individuals would not face a situa- gress that were subject to the 1995 ‘‘sunset’’ 1986, an IWP under section 1148 of the Social tion in which they would have to wait until Act, including annual reports on the finan- Security Act shall be treated as an individ- they lost their employment in order to once cial solvency of the Social Security and ualized written plan for employment under a again be eligible to receive PABBS services. Medicare programs (the Board of Trustees’ State plan for vocational rehabilitation serv- Payments for services to maintain employ- reports on the OASDI, HI, and SMI trust ices approved under the Rehabilitation Act ment would be subject to Section 1150(c) of funds) and annual reports on certain aspects of 1973. of the administration of the Title II dis- the Social Security Act. The Committees This provision is effective as if it were in- ability program (the SSA Commissioner’s re- will continue to monitor the implementation cluded in section 505 of the Ticket to Work ports on pre-effectuation reviews of dis- of PABSS programs to ensure that assist- Act. ance is directed to all areas in which bene- ability determinations and continuing dis- ficiaries face obstacles in securing, main- Reason for change ability reviews). The provision is effective taining, or regaining work. The Ticket to Work Program was designed upon enactment. SECTION 405. TECHNICAL AMENDMENT CLARI- to increase choice available to beneficiaries Reason for change when they select providers of employment FYING TREATMENT FOR CERTAIN PURPOSES OF The reports to be reinstated provide Con- services. Employers hiring individuals with INDIVIDUAL WORK PLANS UNDER THE TICKET gress with important information needed to disabilities should be able to qualify for the TO WORK AND SELF-SUFFICIENCY PROGRAM evaluate and oversee the Social Security and WOTC regardless of whether the employment Present law Medicare programs. referral is made by a public or private serv- Under section 52 of the Internal Revenue ice provider. This amendment updates eligi- SECTION 414. CLARIFICATION OF DEFINITIONS Code (IRC), employers may claim a Work Op- bility criteria for the WOTC to conform to REGARDING CERTAIN SURVIVOR BENEFITS portunity Tax Credit (WOTC) if they hire, the expansion of employment services and Present law among other individuals, individuals with the increase in number and range of VR pro- disabilities who have been referred by a Under the definitions of ‘‘widow’’ and viders as a result of the enactment of the ‘‘widower’’ in Section 216 of the Social Secu- State vocational rehabilitation (VR) agency. Ticket to Work Act. For an individual to qualify as a vocational rity Act, a widow or widower must have been rehabilitation referral under section SUBTITLE B. MISCELLANEOUS AMENDMENTS married to the deceased spouse for at least 51(d)(6)(B) of the IRC, the individual must be SECTION 411. ELIMINATION OF TRANSCRIPT RE- nine months before his or her death in order receiving or have completed vocational reha- QUIREMENT IN REMAND CASES FULLY FAVOR- to be eligible for survivor benefits. bilitation services pursuant to: (i) ‘‘an indi- ABLE TO THE CLAIMANT Explanation of provision vidualized written plan for employment Present Law The new provision creates an exception to under a State plan for vocational rehabilita- The Social Security Act requires SSA to the nine-month requirement for cases in tion services approved under the Rehabilita- file a hearing transcript with the District which the Commissioner finds that the tion Act of 1973;’’ or (ii) ‘‘a program of voca- Court for any SSA hearing that follows a claimant and the deceased spouse would have tional rehabilitation carried out under chap- court remand of an SSA decision. been married for longer than nine months ter 31 of title 38, United States Code.’’ (IRC, Explanation of provision but for the fact that the deceased spouse was section 51(d)(6)(B). legally prohibited from divorcing a prior The WOTC is equal to 40% of the first $6,000 The new provision clarifies that SSA is not spouse who was in a mental institution. The of wages paid to newly hired employees dur- required to file a transcript with the court provision is effective for benefit applications ing their first year of employment when the when SSA, on remand, issues a decision fully filed after the date of enactment. employee is retained for at least 400 work favorable to the claimant. This provision is Reason for change hours. As such, the maximum credit per em- effective upon enactment. ployee is $2,400, but the credit may be less Reason for change This provision allows the Commissioner to issue benefits in certain unusual cases in depending on the employer’s tax bracket. A A claimant whose benefits have been de- lesser credit rate of 25% is provided to em- which the duration of marriage requirement nied is provided a transcript of a hearing to could not be met due to a legal impediment ployers when the employee remains on the be used when the claimant appeals his case job for 120–399 hours. The amount of the cred- over which the individual had no control and in Federal District court. If the Administra- the individual would have met the legal re- it reduces the company’s deduction for the tive Law Judge issues a fully favorable deci- employee’s wages. quirements were it not for the legal impedi- sion, then transcribing the hearing is unnec- ment. The Ticket to Work Act established the essary since the claimant would not appeal Ticket to Work and Self-Sufficiency Pro- this decision. SECTION 415. CLARIFICATION RESPECTING THE gram (Ticket to Work Program) under sec- FICA AND SECA TAX EXEMPTIONS FOR AN INDI- SECTION 412. NONPAYMENT OF BENEFITS UPON tion 1148 of the Social Security Act. Under VIDUAL WHOSE EARNINGS ARE SUBJECT TO REMOVAL FROM THE UNITED STATES this program, SSA provides a ‘‘ticket’’ to eli- THE LAWS OF A TOTALIZATION AGREEMENT gible Social Security Disability Insurance Present law PARTNER beneficiaries and Supplemental Security In- In most cases, the Social Security Act pro- Present law come beneficiaries with disabilities that al- hibits the payment of Social Security bene- In cases where there is an agreement with lows them to obtain employment and other fits to non-citizens who are deported from a foreign country (i.e., a totalization agree- support services from an approved the United States. However, the Act does not ment), a worker’s earnings are exempt from ‘‘employment network’’ of their choice. Em- prohibit the payment of Social Security ben- United States Social Security payroll taxes ployment networks may include State, local, efits to non-citizens who are deported for when those earnings are subject to the for- or private entities that can provide directly, smuggling other non-citizens into the United eign country’s retirement system. or arrange for other organizations or entities States. Explanation of provision to provide, employment services, VR serv- Explanation of provision ices, or other support services. State VR The new provision clarifies the legal au- The new provision requires SSA to suspend agencies have the option of participating in thority to exempt a worker’s earnings from benefits of beneficiaries who are removed the Ticket to Work Program as employment United States Social Security tax in cases from the United States for smuggling aliens. networks. Employment networks must work where the earnings were subject to a foreign This provision applies to individuals for with each beneficiary they serve to develop country’s retirement system in accordance whom the Commissioner receives a removal an individual work plan (IWP) for that bene- with a U.S. totalization agreement, but the notice from the Attorney General after the ficiary that outlines his or her vocational foreign country’s law does not require com- date of enactment. goals, and the services needed to achieve pulsory contributions on those earnings. The those goals. For VR agencies that partici- Reason for change provision establishes that such earnings are pate in the Ticket to Work Program, the in- Individuals who are removed from the exempt from United States Social Security dividualized written plan for employment (as United States for smuggling aliens have tax whether or not the worker elected to specified under (i) in paragraph one above) committed an act that should prohibit them make contributions to the foreign country’s serves in lieu of the IWP. from receiving Social Security benefits. retirement system.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00119 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.161 S18PT1 S11350 CONGRESSIONAL RECORD — SENATE November 18, 2002 The provision is effective upon enactment. local government workers in an employer- of Social Security Advisory Board members Reason for change sponsored pension plan to elect Social Secu- with respect to compensation. In U.S. totalization agreements, a person’s rity coverage on an individual basis. Those SECTION 418. 60-MONTH PERIOD OF EMPLOYMENT work is generally subject to the Social Secu- who do not wish to be covered by Social Se- REQUIREMENT FOR APPLICATION OF GOVERN- rity laws of the country in which the work is curity would continue to participate exclu- MENT PENSION OFFSET EXEMPTION sively in the employer-sponsored pension performed. In most cases the worker, wheth- Present law plan. er subject to the laws of the United States or The Government Pension Offset (GPO) was the other country, is compulsorily covered The governments of the City of Louisville and Jefferson County will be merged in Jan- enacted in order to equalize treatment of and required to pay contributions in accord- workers in jobs not covered by Social Secu- ance with the laws of that country. In some uary 2003 and a new retirement system will be formed. Under the new provision, each rity and workers in jobs covered by Social instances, however, work that would be Security, with respect to spousal and sur- compulsorily covered in the U.S. is excluded employee under the new system could choose whether or not to participate in the Social vivors benefits. The GPO reduces the Social from compulsory coverage in the other coun- Security spousal or survivors benefit by two- try (such as Germany). In such cases, the Security system in addition to their em- ployer-sponsored pension plan. As under cur- thirds of the government pension. IRS has questioned the exemption from U.S. However, under what’s known as the ‘‘last Social Security tax for workers who elect rent law, all employees newly hired to the system after the divided system is in place day rule,’’ State and local government work- not to make contributions to the foreign ers are exempt from the GPO if their job on country’s retirement system. This provision would be covered automatically under Social Security. their last day of employment was covered by would remove any question regarding the ex- Social Security. In contrast, Federal work- emption and would be consistent with the This provision is effective on January 1, 2003. ers who switched from the Civil Service Re- general philosophy behind the coverage rules tirement System (CSRS), a system that is of totalization agreements. Reason for change not covered by Social Security, to the Fed- SECTION 416. COVERAGE UNDER DIVIDED RETIRE- The governments of the City of Louisville eral Employee Retirement System (FERS), a MENT SYSTEM FOR PUBLIC EMPLOYEES IN and Jefferson County, Kentucky will merge system that is covered by Social Security, KENTUCKY in January, 2003. Currently, some officers must work for 5 years under FERS in order Present law and firefighters in employer-sponsored pen- to be exempt from the GPO. sion plans provided by these governments Under Section 218 of the Social Security Explanation of provision are covered by Social Security, while others Act, a State may choose whether or not its are not. In order to provide fair and equi- The new provision requires that State and State and local government employees who table coverage to all officers and firefighters, local government workers be covered by So- are covered by an employer-sponsored pen- a divided retirement system, such as that cial Security during their last 5 years of em- sion plan may also participate in the Social currently authorized in 21 other states, was ployment in order to be exempt from the Security Old-Age, Survivors, and Disability seen as the best solution. Otherwise, upon GPO. The provision is effective for applica- Insurance program. (In this context, the creation of the new retirement system, a ref- tions filed after the month of enactment. term ‘‘employer-sponsored pension plan’’ re- erendum would be held to determine by ma- However, the provision would not apply to fers to a pension, annuity, retirement, or jority vote whether or not the group would individuals whose last day of employment similar fund or system established by a participate in Social Security. As the num- for the State or local governmental entity State or a political subdivision of a State ber of non-covered employees will exceed the was covered by Social Security and occurs such as a town. Under current law, State or number of Social Security-covered employ- on or before June 30, 2003, provided that such local government employees not covered by ees under the new retirement system, in the period of covered employment began on or an employer-sponsored pension plan already absence of this new provision, those employ- before December 31, 2002. are, with a few exceptions, mandatorily cov- ees covered by Social Security could lose Reason for change ered by Social Security.) Social Security coverage for employees that coverage. The Kentucky General As- The change will establish uniform applica- covered under a State or local government sembly has adopted a bill that will allow the tion of the GPO exemption for all local, employer-sponsored pension plan is estab- new divided retirement system to go forward State, and federal government workers. following enactment of this provision. lished through an agreement between the SUBTITLE C. TECHNICAL AMENDMENTS SECTION 417 COMPENSATION FOR THE SOCIAL State and the federal government. In most . SECTION 421. TECHNICAL CORRECTION RELATING SECURITY ADVISORY BOARD States, before the agreement can be made, TO RESPONSIBLE AGENCY HEAD employees who are members of the em- Present law Present law ployer-sponsored pension plan must agree to The Social Security Advisory Board is an Social Security coverage by majority vote in Section 1143 of the Social Security Act di- independent, bipartisan Board established by rects ‘‘the Secretary of Health and Human referendum. If the majority vote is in favor the Congress under section 703 of the Social of Social Security coverage, then the entire Services’’ to send periodic Social Security Security Act. The 7-member Board is ap- Statements to individuals. group, including those voting against such pointed by the President and the Congress to coverage, will be covered by Social Security. advise the President, the Congress and the Explanation of provision If the majority vote is against Social Secu- Commissioner of Social Security on matters The new provision makes a technical cor- rity coverage, then the entire group, includ- related to the Social Security and Supple- rection to this section by inserting a ref- ing those voting in favor of such coverage mental Security Income programs. Section erence to the Commissioner of Social Secu- and employees hired after the referendum, 703(f) of the Social Security Act provides rity in place of the reference to the Sec- will not be covered by Social Security. that members of the Board serve without retary of Health and Human Services. This In certain States, however, if employees compensation, except that, while engaged in provision is effective upon enactment. who already are covered in an employer- Board business away from their homes or Reason for change sponsored pension plan are not in agreement regular places of business, members may be The ‘‘Social Security Independence and about whether to participate in the Social allowed travel expenses, including per diem Security system, coverage can be extended Program Improvements Act of 1994’’ (P.L. in lieu of subsistence, as authorized by sec- 103–296) made the Social Security Adminis- only to those who choose it, provided that tion 5703 of title 5, United States Code for all newly hired employees of the system are tration an independent agency separate from persons in the Government who are em- the Department of Health and Human Serv- mandatorily covered under Social Security. ployed intermittently. To establish such a divided retirement sys- ices. This provision updates Section 1143 to tem, the state must conduct a referendum Explanation of provision reflect that change. among members of the employer-sponsored The new provision establishes that com- SECTION 422. TECHNICAL CORRECTION RELATING pension plan. After the referendum, the re- pensation for Social Security Advisory TO RETIREMENT BENEFITS OF MINISTERS tirement system is divided into two groups, Board members will be provided, at the daily Present law rate of basic pay for level IV of the Execu- one composed of members who elected Social Section 1456 of the ‘‘Small Business Job tive Schedule, for each day (including travel Security coverage and those hired after the Protection Act of 1996’’ (P.L. 104–188) estab- time) during which the member is engaged in referendum, and the other composed of the lished that certain retirement benefits re- performing a function of the Board. This pro- remaining members of the employer-spon- ceived by ministers and members of religious vision is effective on January 1, 2002. sored pension plan. Under Section 218(d)(6)(c) orders (such as the rental value of a parson- of the Social Security Act, 21 states cur- Reason for change age or parsonage allowance) are not subject rently have authority to operate a divided Other government advisory boards—such to Social Security payroll taxes under the retirement system. as the Employee Retirement Income Secu- Internal Revenue Code. However, under Sec- Explanation of provision rity Act Advisory Council, the Pension Ben- tion 211 of the Social Security Act, these re- The new provision permits the state of efit Guaranty Corporation Advisory Com- tirement benefits are treated as net earnings Kentucky to join the 21 other states in being mittee and the Thrift Savings Plan Board— from self-employment for the purpose of ac- able to offer a divided retirement system. provide compensation for their members. quiring insured status and calculating Social This system would permit current state and This provision allows for similar treatment Security benefit amounts.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00120 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.163 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11351

Explanation of provision SECTION 425. TECHNICAL CORRECTION RESPECT- SOCIAL SECURITY The new provision makes a conforming ING SELF-EMPLOYMENT INCOME IN COMMU- MEMORANDUM NITY PROPERTY STATES change to exclude these benefits received by Date: November 18, 2002 retired clergy from Social Security-covered Present law To: Stephen C. Goss, Chief Actuary earnings for the purpose of acquiring insured The Social Security Act and the Internal From: Chris Chaplain, Actuary, Alice H. status and calculating Social Security ben- Revenue Code provide that, in the absence of Wade, Deputy Chief Actuary efit amounts. This provision is effective for a partnership, all self-employment income Subject: Estimated Long-Range OASDI Fi- years beginning before, on, or after Decem- from a trade or business operated by a mar- nancial Effects of the Social Security ber 31, 1994. This effective date is the same as ried person in a community property State is Program Protection Act of 2002, as the effective date of Section 1456 of P.L. 104– deemed to be the husband’s unless the wife Amended by the Senate Finance Com- 188. exercises substantially all of the manage- mittee—Information. Reason for change ment and control of the trade or business. This memorandum provides long-range es- P.L. 104–188 provided that certain retire- timates of the financial effect on the Social Explanation of provision ment benefits received by ministers and Security (OASDI) program for enactment of members of religious orders are not subject Under the new provision, self-employment the Social Security Program Protection Act to payroll taxes. However, a conforming income from a trade or business that is not of 2002 (H.R. 4070), as passed by the House on change was not made to the Social Security a partnership, and that is operated by a mar- June 26, 2002 and amended by the Senate Fi- Act to exclude these benefits from being ried person in a community property State, nance Committee. This legislation contains counted as wages for the purpose of acquir- is taxed and credited to the spouse who is 35 provisions, including the following: ing insured status and calculating Social Se- carrying on the trade or business. If the Provide additional safeguards for Social curity benefit amounts. This income is trade or business is jointly operated, the Security beneficiaries with representative therefore not treated in a uniform manner. self-employment income is taxed and cred- payees, such as requiring periodic onsite re- This provision would conform the Social Se- ited to each spouse based on their distribu- views, holding payees liable or assessing pen- curity Act to the Internal Revenue Code tive share of gross earnings. This provision is alties for misused benefits. with respect to such income. effective upon enactment. Grant the authority to assess civil mone- tary penalties for corrupt or forcible inter- SECTION 423. TECHNICAL CORRECTION RELATING Reason for change ference with the administration of the Social TO DOMESTIC EMPLOYMENT Present law was found to be unconstitu- Security Act, and wrongful conversion by Present law tional in several court cases in 1980. Since representative payees. Present law is ambiguous concerning the then, income from a trade or business that is Deny title II benefits to fugitive felons, Social Security coverage and tax treatment not a partnership in a community property persons fleeing prosecution, and probation or of domestic service performed on a farm. Do- State has been treated the same as income parole violators. mestic employment on a farm appears to be from a trade or business that is not a part- Limit the amount of attorney fee assess- subject to two separate coverage thresholds nership in a non-community property ments to the lower of 6.3% of the fee or $75. (one for agricultural labor and another for State—it is taxed and credited to the spouse The $75 threshold would be indexed annually domestic employees). who is found to be carrying on the business. by cumulative changes in the Social Secu- Explanation of provision This change will conform the provisions in rity cost-of-living adjustment (COLA), but The new provision clarifies that domestic the Social Security Act and the Internal future threshold amounts would be rounded service on a farm is treated as domestic em- Revenue Code to current practice in both to the next lower multiple of $10. However, ployment, rather than agricultural labor, for community property and non-community the threshold amount would never go below Social Security coverage and tax purposes. property States. $75. Make several amendments to demonstra- This provision is effective upon enactment. SECTION 426. TECHNICAL CHANGES TO THE RAIL- tion projects under the Ticket to Work Act. Reason for change ROAD RETIREMENT AND SURVIVORS’ IMPROVE- Extend the right to have a divided retire- MENT ACT OF 2001 Prior to 1994, domestic service on a farm ment system for public employees in the was treated as agricultural labor and was Present law state of Kentucky. subject to the coverage threshold for agricul- See Public Law 107–90. Replace the ‘‘last day’’ requirement for ex- tural labor. According to SSA, in 1994, when emption from the Government Pension Off- Congress amended the law with respect to Explanation of provisions set with a ‘‘last 5 years’’ requirement—that domestic employment, the intent was that Quorum rules is, the beneficiary would have to work in a domestic employment on a farm would be position covered by Social Security and by subject to the coverage threshold for domes- This technical change clarifies that, under Section 105 of the Act, a vacancy on the the government pension plan for the last 5 tic employees instead of the threshold for ag- years of such employment, rather than the ricultural labor. However, the current lan- Board of National Railroad Retirement In- vestment Trust (NRRIT) does not preclude last day. guage is unclear, making it appear as if farm Make miscellaneous technical amend- domestics are subject to both thresholds. the Board from making changes in the In- vestment Guidelines with the unanimous ments. SECTION 424. TECHNICAL CORRECTION OF vote of all remaining Trustees. The estimated long-range OASDI financial OUTDATED REFERENCES effect of each provision of the legislation is Transfers Present law either no change or a change in the actuarial Section 202(n) and 211(a)(15) of the Social This technical change clarifies that under balance that is negligible (less than 0.0005 Security Act and Section 3102(a) of the Inter- Section 107 of the Act, the Railroad Retire- percent of taxable payroll). Taken as a nal Revenue Code of 1986 each contain out- ment Board (RRB) can require the NRRIT to whole, the legislation would result in an in- dated references that relate to the Social Se- transfer amounts necessary to pay benefits crease in the OASDI actuarial balance that curity program. to the Railroad Retirement Account (RRA) is estimated to be negligible. In addition, en- and that excess Social Security Equivalent actment of this legislation would change nei- Explanation of provision Benefits (SSEB) Account assets can be trans- ther the first year that annual costs are ex- The new provision corrects outdated ref- ferred to the RRA for investment in federal pected to exceed tax income (2017) nor the erences in the Social Security Act and the securities until used to pay benefits. year that the combined OASI and DI Trust Internal Revenue Code by: (1) in Section Investment authority Funds are expected to become exhausted 202(n) of the Social Security Act, updating (2041). The provisions in the legislation are references respecting removal from the This technical change clarifies that, under generally effective with the date of enact- United States; (2) in Section 211(a)(15) of the Section 105 of the Act, the Board of the ment of the legislation, which we assume to Social Security Act, correcting a citation re- NRRIT has the authority to invest the assets be January 1, 2003. All estimates included in specting a tax deduction related to health in- with the assistance of its own professional this memorandum are based on the inter- surance costs of self-employed individuals; staff or by retaining outside advisors and mediate assumptions of the 2002 Trustees Re- and (3) in Section 3102(a) of the Internal Rev- managers. port. enue Code of 1986, eliminating a reference to Clerical changes Mr. REID. I ask unanimous consent an obsolete 20-day agricultural work test. that the substitute amendment be This provision is effective upon enactment. This provision makes a number of gram- matical and typographical corrections to the agreed to; the bill, as amended, be read Reason for change Act. three times, passed, and the motion to Over the years, provisions in the Social Se- Reason for change reconsider be laid upon the table, with curity Act, the Internal Revenue Code and no intervening action or debate, and other related laws have been deleted, re-des- All four changes are purely technical in ignated or amended. However, necessary con- nature and are needed to promote the effi- that any statements relating thereto forming changes have not always been made. cient implementation of the Railroad Retire- be printed in the RECORD. Consequently, Social Security law contains ment and Survivors’ Improvement Act of The PRESIDING OFFICER. Without some outdated references. 2001. objection, it is so ordered.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00121 Fmt 4637 Sfmt 0634 E:\CR\FM\A18NO6.164 S18PT1 S11352 CONGRESSIONAL RECORD — SENATE November 18, 2002 The amendment (No. 4967) was agreed Frankly, I believe it is very valuable cases as a district judge. That will be to. to this process. I always have. I was more trial experience than any of the (The amendment is printed in today’s talking recently to Senator-elect other Federal judges on the Fourth Cir- RECORD under ‘‘Text of Amendments.’’) Lindsey Graham from South Carolina, cuit Court of Appeals. Trial experience The bill (H.R. 4070), as amended, was who will be replacing Senator is the crucible for training an appellate read the third time and passed. THURMOND. We were talking about Den- judge. Some can do well without it. As a practicing lawyer trying cases f nis Shedd. Lindsey has been a prac- ticing attorney for many years and had in Federal court full time as a U.S. at- ORDERS FOR TUESDAY, been in court a lot. What he said to me torney, and in private practice, as an NOVEMBER 19, 2002 was exactly the way I feel about these assistant U.S. attorney, I understand Mr. REID. I ask unanimous consent things. He said: You know, when a per- Federal judges. I respect Federal that when the Senate completes its son has been on the bench 12 years, ev- judges. I know they learn from that trial bench. That will help them better business today, it stand in adjourn- erybody knows whether they are any when they read a written record to see ment until 9 a.m., Tuesday, November good or not. In a State like South if a judge made a mistake or not. Trial 19; that following the prayer and the Carolina, there are not that many Fed- eral judges. Lawyers go into their experience is helpful. pledge, the morning hour be deemed They say this is some sort of a cir- courts all the time. The fact is, after a expired, the Journal of proceedings be cuit that is too conservative. I don’t few years, everybody knows whether approved to date, the time for the two believe this circuit is at all that way. I they are any good or not. These law- leaders be reserved for their use later note the last five judges appointed to yers support Judge Shedd. The Amer- in the day, and the Senate proceed the Fourth Circuit have been Demo- ican Bar Association has supported under the previous order; further, that crats. Some people have forgotten what the Senate recess from 12:30 to 2:15 to- Judge Shedd. I have looked at some of the com- President Bush did. Judge Gregory, morrow for party con- who had been nominated for the circuit plaints that have been made about his ferences, and if the Senate is pro- and who was not confirmed by this record. I find them not only wrong, but ceeding under cloture, this time be Senate before President Clinton left of- in fact he should have been commended charged against the cloture 30 hours. fice was renominated. President Bush, for the rulings he has made. I would The PRESIDING OFFICER. Without in extending his hand of bipartisanship, objection, it is so ordered. like to share a few thoughts on that. One is that he has served the Judicial reached out and took this African- f Conference of the United States during American jurist and renominated him to the court as an act of bipartisan- PROGRAM his tenure, 12 years as a Federal judge, ship. Judge Gregory was a Democrat, a serving on the Judicial Branch Com- Mr. REID. Under the previous order, Clinton nominee, and had not been con- mittee and the Subcommittee on Judi- there will be a series of rollcall votes firmed. President Bush, shortly after cial Independence. It is a mark of re- in relation to homeland security begin- he took office, renominated him. Of spect for a trial judge in the United ning at approximately 10:30 tomorrow course, he was confirmed just like that. morning. States to be chosen to serve on key The other judges who were nomi- committees of the Judicial Conference. f nated at the same time have not moved Most judges are not on these commit- so well. ORDER FOR ADJOURNMENT tees. But there are 11 cases that Judge From 1978 through 1988, he served on Shedd has ruled on that have been re- Mr. REID. I ask unanimous consent the Senate Judiciary Committee staff that if there is no further business to viewed by Judge Gregory. He has af- in this body. He is known by many of firmed all 11 of them. It is unfair to come before the Senate, the Senate the Senators. He served as chief coun- stand in adjournment following the suggest this is somehow a radical judge sel and staff director for the Senate Ju- who is out of step. One case, Crosby v. statement of the Senator from Ala- diciary Committee for Senator STROM bama. South Carolina Department of Health, THURMOND. According to the Almanac has been raised, that somehow he made The PRESIDING OFFICER. Without of Federal Judiciary, the attorneys objection, it is so ordered. a bad decision on that case. I don’t rate judges and make comments about think he did. But regardless of that, The Senator from Alabama is recog- judges. You go before a judge and want nized. people could have a different opinion. to know something about them. Law- That was one of the cases that went to f yers have books on them. This is what Judge Gregory, President Clinton’s they say about him. They say he has NOMINATION OF DENNIS SHEDD nominee. Many members of the Demo- outstanding legal skills and excellent cratic Party were most aggrieved he Mr. SESSIONS. Mr. President, in his judicial temperament. A few comments had not been confirmed by the time absence, I want to share some thoughts from South Carolinians were included: President Clinton left office. Judge I have about Judge Dennis Shedd, who ‘‘You are not going to find a better Gregory agreed with Judge Shedd. He has been nominated for the Fourth Cir- judge on the bench or one who works affirmed Judge Shedd’s opinion. cuit Court of Appeals. Judge Shedd is a harder.’’ ‘‘He is the best Federal judge That is just typical. Do 5,000 cases superb nominee. He served 12 years on we have,’’ said one attorney. ‘‘He gets and somebody will find something with the Federal bench as a Federal district an A all around,’’ said another. ‘‘It is a which to disagree. But, as Lindsey trial judge, hearing some 5,000 cases. great experience trying cases before Graham said: Judges have reputations. He was rated by the American Bar As- him,’’ said an attorney. And to me that means a lot. And this sociation, which goes around and inter- I like that. I tried a lot of cases and judge, through this career and back- views fellow judges, State court judges, some cases you go to trial before a ground, has a good reputation of capa- and lawyers on both sides of cases. judge and it is miserable. A good judge bility, experience, honesty, and a su- They get their opinions about how the can make the practice of law a pleas- perb demeanor, making it a pleasure to judge has performed and they issue an ure. practice before him. independent rating. ‘‘He is bright in business,’’ said an- I just want to say this. I attended the We conservatives have sometimes other. Everyone knows that is true. hearings in which Judge Shedd testi- complained about their ratings, saying Plaintiff lawyers who seem to be stir- fied, and he was there as long as they they tend to be more favorable to more ring this opposition up have com- wanted him to testify. They submitted liberal-type judges. But in this case, mended him for being evenhanded. ‘‘He all these questions to him, demanding they rated Judge Shedd the highest has always been fair.’’ Another plain- that he explain everything he has ever possible rating, well-qualified. They tiffs lawyer says: ‘‘I have no com- done. And I heard the complaints, and have about a 15-member committee plaints about him. He is nothing if not I read the complaints. I am just going that actually votes on all the paper- fair.’’ to tell you: They do not hold up. work that has been put together, and Judge Shedd will bring experience to He was criticized for doing the right the ABA investigation is quite a deal. the bench, having tried 4,000 to 5,000 thing. He didn’t do wrong things. He

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00122 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.156 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11353 was written up in those reports put out the defendant to file a brief addressing To expedite consideration of the by special interest advocacy groups, whether removal was timely and issues, he ordered the defendant to file the ones Senator HATCH calls the usual whether the court had the authority to a motion to dismiss based on the de- suspects, and they have abused him remain. He had a duty to raise the fenses and that the motion be filed and twisted his rulings. I am going to issue of removal because it was juris- with the judge. Ultimately, the defend- go through a few of them, and we are dictional. Federal courts are courts of ant was granted summary judgment on going to talk about them. It ought to limited jurisdiction. The general the grounds that the plaintiff could not be an embarrassment for any group to courts of jurisdiction are our State establish a prima facie case. So it ap- have submitted the smear sheets they courts. Federal courts have limited ju- pears the motion to dismiss was not submitted when allegation after allega- risdiction. So a good judge, the first eventually granted. But the case failed tion just gets knocked down. thing he does is looks at a case that on other motions. But how does it work around here? comes before him and he wants to Let me just say this. I am a lawyer. Unfortunately these attack groups file know whether or not it even ought to I love to practice law. I believe in the these sheets, and they make these alle- be in Federal court, and that is all he rule of law. I believe in the right of gations, and the press picks them up. was saying. people to go to court and to litigate. By the time somebody gets the case He is saying: I looked at the case But there is a growing concern in this and reads it and shows it is not true, here, counsel, and it looks like it is country about the expense and delay they don’t get nearly as much atten- outside the 30 days. Send me a brief on and time extensions of litigation. It is tion. The allegations get the attention why I ought not to remand it back to costing large amounts of money. Law- first. It is really sad. I have watched State court. You waited too long to yers—maybe a half dozen of them—are charging $200 an hour fiddling around this for many years. This is an abso- bring it to Federal court. All he asked with a case. One of the good govern- lute pattern. for was a brief on the law. So that is Judge Shedd has a very low reversal what Federal judges are supposed to ment reforms that virtually every judge I know of who amounts to any- rate by the court of appeals for the do. thing has bought into it. If the case thousands of cases he has handled. But Here is another one. Gilmore v. Ford fails on jurisdiction or has some other I will tell you one thing: If these advo- is a product liability case. Judge Shedd defect, it ought to be promptly ruled cacy groups, these usual suspects, if sanctioned the plaintiff for failure to on and ended. We ought not to have six their smear sheets were brought out in prosecute the case by dismissing the case. He dismissed the case for failure months of depositions and expenses the light of day and they were graded when the case never had a basis to go on them, they would get a big fat F. It to prosecute. He evaluated that deci- sion and tested it by each of the factors to trial, anyway. would come back off that court of ap- So that is what Judge Shedd was peals like a rubber ball off that wall. established by the Fourth Circuit in Ballard v. Carson, a 1989 case. Indeed, doing here. He was simply carrying out I am amazed that someone we know, good government and a good legal who has such a sound record, who has the plaintiff failed to respond to this motion to dismiss and for failure to basis. If you do not meet the standard served as a staffer in this Senate, has for jurisdiction, you don’t go to Fed- been put in the kind of grinder he has. prosecute, after earlier failing to re- spond to the defendant’s motion to eral court, and the clients don’t expend Not one of the allegations, once you thousands and thousands of dollars look at them in the slightest way, compel discovery. You are not entitled to go to court eaten up by lawyers and end up later would serve as the basis for rejecting and file lawsuits and continue lawsuits with the case being thrown out when it this superior judge. should have been thrown out to begin One of the things they said—and it if you don’t abide by the rules of the court. If you don’t answer discovery, with. was repeated earlier on the floor and if the judge sends you a warning In McCarter v. RHNB, an age and sex today—was that the judge acted sua that, I am going to dismiss the case discrimination case, Judge Shedd ini- sponte to throw out cases against and we are going to have a hearing, and tially granted summary judgment— plaintiffs. Oh, this is awful, they say. you fail to respond—and the plaintiff this has been complained of right here Sua sponte meaning he acts on his own doesn’t even respond to that motion— on the floor today—on the grounds that motion, meaning without anybody hav- the judge did the right thing, which the plaintiff was unable to provide any ing filed a motion. And this means he was, remove the case from the court. evidence of age and sex discrimination. is anti-plaintiff. That is not something he did wrong, it Following the entry of that judg- Have these people never been to is something he did right. ment, the plaintiff filed a motion to court? They don’t know what happens? Here is another one: Lowery v. Seam- alter or amend that judgment since it You can tell one thing, I submit. They less Sensations. The defendant raised was based on grounds not raised, it was scoured his record. If they are digging the defense that the plaintiff failed to asserted, in the defendant’s motion. up this kind of stuff, they have looked file a timely charge of discrimination The judge reconsidered it. at everything he has ever done. So if with the EEOC—this is a defendant Judge Shedd reconsidered his order, they found anything of real substance, being sued over a discrimination agreed with the plaintiff, and rein- we would have heard about it. charge—and he defended, saying the stated the motion. He wrote: Let’s look at these sua sponte rulings plaintiff did not file as required by law Although the Court believes that the de- that are supposed to be so bad and rep- with the Equal Employment Oppor- fendant’s motion for summary judgment and supporting memorandum may be fairly read resent a view that he is hostile to tunity Commission, the Federal agency plaintiffs. as raising the issue upon which the motion that is supposed to deal with that; and was granted, the Court will nevertheless give One of them is Coker v. Wal-Mart. In he failed to file a timely lawsuit and that case, the defendant removed the the plaintiff the benefit of the doubt and the jurisdictional prerequisites to any grant the motion to alter or to amend and case—Wal-Mart has the right, within Federal court action since that defense deny defendant’s motion for summary judg- certain rules and procedures, to remove called into question the court’s subject ment. the case to Federal court from State matter jurisdiction. So he says right there that he was court. Judge Shedd, sua sponte, ques- The court has no authority and juris- going to give the plaintiff the benefit tioned whether the removal was appro- diction over the case if the plaintiff of the doubt and allow the case to con- priate as it appeared the motion for re- hadn’t filed his claim and had a hear- tinue. moval had been filed outside the 30-day ing before the EEOC. That is what a good judge does. He time limitation established by 28 So the judge expedited consideration rules. If somebody shows he has made a U.S.C. 1446(b). There was a time limita- of those offenses as it would have mistake, or it is doubtful, he may re- tion. If you are sued in State court and served no purpose to proceed to the consider his ruling. you want to remove it out of State merits of a case in which there is no ju- That, to me, shows again good behav- court, you have a time limitation to do risdiction. ior, that he is thoughtful; that if some- so. Doubting whether he had the au- So you have to figure that out first. one raises something he didn’t fully thority to remand the case sua sponte, If the court does not have jurisdiction, understand, he will reconsider his deci- Judge Shedd stated he would permit it should not consider the case. sion and go forward.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00123 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.160 S18PT1 S11354 CONGRESSIONAL RECORD — SENATE November 18, 2002 In Shults v. Denny’s Restaurant, a Basically he said, Plaintiff, you can- spond to the satisfaction of the plain- disabilities and slander case, Judge not recover. If you recover on this com- tiff, the plaintiff can ask the EEOC to Shedd sua sponte considered summary plaint, the court of appeals will throw give them a right-to-sue letter. That judgment, and ordered the plaintiff to it out. You have to amend your com- allows them to get their attorney to file a memorandum in opposition to plaint and file it in the right fashion. sue the defendant and take it to Fed- the court’s motion for summary judg- I think that is an advantage to the eral court, to make a Federal case out ment. plaintiff. That was helping the plain- of it. This action by Judge Shedd was tiff. So the judge ordered the case dis- again based on jurisdictional defenses Yet, these groups—these attack orga- missed unless the plaintiff could show raised in the defendant’s answer. The nizations argue that Judge Shedd in cause why that action should not be allegation was that the plaintiff had his rulings show hostility to the plain- taken. I think that is what a judge failed to file within the 2-year statute tiffs before him. should do. That is the way he ought to of limitations, and he had failed to ex- That is one of the examples they cite. rule. When you have 5,000 cases, and haust administrative equal oppor- Smith v. Beck was a section 1983 gen- you go through these, I am not aware tunity commission review procedures. der discrimination case in which sev- that any of them have been reversed on In the order requesting the plaintiff eral women alleged discrimination appeal. And I think it is the right to file a memorandum, Judge Shedd when they were not admitted without thing. wrote that: male escorts to a nightclub featuring On the right of a judge to issue sua . . . although the express language of Rule nude female dancers. sponte actions, this is the law of the 56 provides only for the parties to move for Judge Shedd sua sponte questioned United States. This is a Supreme Court summary judgment, Federal district judges whether the plaintiffs’ allegations suf- case, the authoritative decision on the possess the inherent power to raise sua ficed to establish the defendant’s pri- matter issued in 1986. The Supreme sponte an issue for possible resolution by vate club’s actions were under color of Court said: summary judgment. State law. [D]istrict courts are widely acknowledged He cited appropriate authority of the It is a complex legal question. He to possess the power to enter summary judg- United States Supreme Court in raised that on his own. He says if it is ment sua sponte, so long as the losing party Celotex Corporation v. Catrett. was on notice that she had to come forward not under color of State law, this is a with all of her evidence. That is absolutely the law of Amer- private club, and you can’t recover. In each of these cases, the judge told ica. If a judge spots something that So the question dealt with whether the other party that was in trouble goes to the very nature of the jurisdic- or not merely operating an establish- their complaint was being questioned tion, he can assert a summary judg- ment that has a liquor license does or for jurisdiction matters, that they had ment motion and ask the plaintiff to does not transform the club into a an opportunity to file a brief, and any respond. State action. After consideration of the This is really not adversarial. Some other evidence as to why the case brief, he concluded that merely holding ought not to be dismissed. And that is people in this country think that a liquor license does not make it a the right way to handle it. judges decide cases on the length of State action when they said you The ninth circuit—this California their foot; that they decide cases on couldn’t have in the strip club women circuit that strikes down the Pledge of how they feel that day; or they look at coming in without male escorts. Allegiance—has declared: the plaintiff and they look at the de- We do have some interesting cases in District courts unquestionably have the fendant, they don’t like Celotex, but Federal court, as you can well see. power [to grant summary judgment sua they like the plaintiff, and so they rule I think that was a correct ruling, and sponte]. for them. apparently was not appealed and not That was in 1995. That is not what happens in America. reversed. The fourth circuit, of which District We have rules, and judges follow the Should he have allowed that case to Court Judge Shedd is a part, ruled: rules. They get the case to the jury, go on? Should he allow depositions to It is a fundamental precept that federal and the jury decides it, or the lawyers be taken for months? Should he allow courts are courts of limited jurisdiction, con- settle. expenses to be run up? Insurance com- strained to exercise only the authority con- I would point out that he acted with- panies pay, people say. Well, you know, ferred by Article III of the Constitution and in the law, and he raised those two fun- there is nothing wrong with that. The affirmatively granted by federal statute. damental questions. They were simple insurance company is going to pay the Many Federal judges forget that, but but very important. Had the 2-year lawyer. Who pays the insurance compa- that is the law of this country. Federal statute of limitations been violated? If nies? We pay the insurance companies. courts have limited jurisdiction, and it had, the case cannot be brought. Had It is a cost of doing business in Amer- they are empowered by the Constitu- they failed to seek the EEOC review re- ica. There is no free lunch and there is tion and Federal statutes to do certain quired by the procedures? If so, the no free legal work in America. Some- things, and only those things. case could not be brought. body pays. Continuing to quote the court: The sooner that is determined, the In Tessman v. Island Ford-Lincoln- A primary incident of that precept is our better off everybody is going to be. Mercury, Inc., this Title VII action, duty to inquire, sue sponte, whether a valid Simmons v. Coastal Contractors was Judge Shedd sua sponte challenged the basis for jurisdiction exists, and to dismiss a discrimination and retaliation-in-em- court’s subject matter jurisdiction the action if no such ground appears. ployment case in which both parties given the plaintiff’s apparent failure to The fourth circuit further said: were pro se. allege she had first presented her claim We have long held that receipt of, or at Both parties, the plaintiff and de- to the EEOC and received a right-to- least entitlement to, a right-to-sue letter is fendant, were representing themselves; sue letter. a jurisdictional prerequisite that must be al- leged in a plaintiff’s complaint. Thus, where that is, both had fools for clients, as The way this works, as I understand neither the complaint nor the amended com- they say. it, if you have a complaint about dis- plaint alleges that the plaintiff has complied Judge Shedd sua sponte brought the crimination in the workforce, you have with these prerequisites, the plaintiff has parties before the court. Traditionally to go and file your complaint with the not properly invoked the court’s jurisdiction you would not do this, perhaps. But he Equal Opportunity Employment Com- under Title VII. knew he had two nonlawyers. He or- mission. When you do that, they evalu- So in each of the cases I have cited, dered the plaintiff to cure specific defi- ate it, and you can settle it at that and those that have been complained of ciencies in his complaint or face dis- stage. Businesses, recognizing they by these scurrilous attack groups, missal. made a mistake or many times the Judge Shedd acted sua sponte, but he The decision really was an attempt complaint is shown to be worthless, provided proper notice and an oppor- to aid the plaintiff in properly drafting and it is settled right there, and it ends tunity to the plaintiff to respond, as his complaint and should not be viewed right there. the law requires. as anti-plaintiff, given the pro se na- But if the complaint is valid, and if None of these cases were reversed on ture of both parties. the business or defendant does not re- appeal. Trust me, had they been in

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00124 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.162 S18PT1 November 18, 2002 CONGRESSIONAL RECORD — SENATE S11355 error, it would have been taken up and in selecting candidates for those posi- Finally, I will just repeat, how do been reversed. I think this court is a tions. you know about all this? You hear great circuit. In addition, he has recommended an these things and some person says this Several years ago, we had hearings to African American female to serve as and some person says that, and what do address the caseloads of the federal chief of the Pretrial Services Division you believe? courts. Senator GRASSLEY as chairman in that district. Pretrial Services han- The Democrats have tenaciously ad- of the Courts Subcommittee of the dles all the arrest matters involving hered to the view that the ABA rating Senate Judiciary Committee, of which defendants who are arrested: whether is the gold standard, Democrats on our I am a member, called the hearings. He or not they should be allowed bail, committee. They really insisted on had the chief judge of the fourth cir- whether they are on drugs, whether that and placed the ABA review at the cuit appear and talk about his case- they ought to be locked up, how they center of our confirmation process. Of load. They have one of the highest ought to be treated, supervising them course, it is an unofficial thing. It is caseloads in America. Actually, not pretrial if they are released on bail. nothing in the official process, but one of the highest, I think their case- They do a lot of work. It is a pretty big they have asserted it as the gold stand- load, per circuit, based on the cases per deal. For the State of South Carolina, ard for determining whether or not a circuit for judges, was the highest in with one district, that is a big appoint- judge should be confirmed. This gold America. They had worked extremely ment. I just point those things out. His standard review process has been con- hard, and they had a good procedure critics didn’t raise those issues. ducted by the American Bar Associa- for managing their cases. It was really Judge Shedd has bipartisan support tion. Their team of lawyers and inves- a good example for the rest of the from both his home State Senators. Of tigators have talked to all the people courts around the country. course, Senator THURMOND admires down there who have practiced before So I think this allegation—that this Judge Shedd immensely. He has ob- his court. They talked to civil rights circuit is out of line—is something not served his career for many years. He groups. They talked to plaintiffs law- healthy about the fourth circuit. It is has observed with great pleasure Judge yers. They talked to defense lawyers. just wrong. It is a great circuit, doing Shedd’s success on the bench. And he is They talked to the community and fel- superb work, and the taxpayers are extremely proud, as he nears 100 years low judges. They have come back with benefitting from it greatly. of age, about to complete the longest the highest possible rating they give— There have been suggestions, al- term any Senator has ever served in well qualified—for Judge Shedd. though not anything of substance real- this body, that his former chief coun- He absolutely is well qualified for ly, but allegations that somehow Judge sel, when he was chairman of the Sen- this office. He ought to be confirmed. It Shedd is a white Southern male, and he ate Judiciary Committee, is now in a was a real disappointment to me to see is insensitive on the matters of race. position to be elevated to the Fourth a number of Senators in committee Those are serious matters. I think if Circuit Court of Appeals. That is not suggest that they might not be for him somebody had something to say about too much to ask, I submit. It is the or were not for him, even though we that, they would come forward, and we kind of thing we ought not to deny un- never had an official roll call vote. I would see it, and we would know about less there is a real basis to do so. it. But vague allegations of that kind He has both the support of Senator don’t see where they are coming from. This is a man we know. This is a man are not good. THURMOND and Senator We ought to take very seriously any from South Carolina. Before coming to with a record of integrity, judgment, good demeanor, experienced now to a thought that someone would have this body, Senator HOLLINGS was a real acted without a commitment to equal lawyer, a real litigator, a plaintiff’s large degree, the kind of capabilities justice. That would be wrong, and they lawyer, a former national president of that make for a great judge. ought not be on the Federal bench if the American Trial Lawyers Associa- He is going to be a great judge on the they do not treat people equally. tion. He gives no quarter in protecting Fourth Circuit Court of Appeals. I am I would like to say, his record shows the rights of plaintiffs on this floor. proud to support him. I believe the just the opposite. One of the things When somebody complained one time complaints against him are baseless that Judge Shedd did as a district about the plaintiffs trial lawyers get- and that he should be confirmed. judge—and district judges play a sig- ting so much money in these tobacco I yield the floor. nificant role in the hiring of United cases, he said they did so much good, States magistrates, who make about as far as he was concerned, they could f $1,000 less than they do per year. They have more. He supports Judge Shedd. do not have quite the lifetime appoint- He and his friends in the Trial Lawyers ADJOURNMENT UNTIL 9 A.M. ment, but it is a good appointment. Association—and I am sure he shares TOMORROW And magistrate judge positions are be- confidences with them—have agreed The PRESIDING OFFICER. Under coming highly sought after. A lot of that this is a good nomination. the previous order, the Senate stands good applications are made. There are I don’t understand where we are with adjourned until 9 a.m., Tuesday, No- a lot of superb lawyers who are acting this problem. Judge Shedd has been vember 19, 2002. as United States magistrate judges in completely forthcoming with the Sen- Thereupon, the Senate, at 9 p.m., ad- America. ate Judiciary Committee’s requests, journed until Tuesday, November 19, He led the effort in his district to re- many of them, for information. 2002, at 9 a.m. cruit an African American magistrate Earlier this year Judge Shedd sent for that district, Margaret Seymour. nearly 1,000 unpublished opinions for f She did a fine job as that magistrate. review immediately after Chairman Later on, President Clinton, a Demo- LEAHY requested them. They wanted to CONFIRMATIONS cratic President, appointed her to the plow through all his cases, the unpub- Executive nominations confirmed by Federal bench in that district. Mar- lished opinions, thinking they might the Senate November 18, 2002: garet Seymour is now a sitting Federal find a nugget there. Apparently they APPALACHIAN REGIONAL COMMISSION district judge. One of the main reasons haven’t because they haven’t raised Anne B. Pope, of Tennessee, to be Federal that occurred is because, years before, any of them. We would be hearing Cochairman of the Appalachian Regional Judge Shedd had gone out and sought about it. They would be blown up in Commission. her, and worked to have her selected as charts. Richard J. Peltz, of Pennsylvania, to be Al- that United States Federal magistrate. He continued to provide additional ternative Federal Cochairman of the Appa- He has worked actively to seek out unpublished opinions as well as other lachian Regional Commission. minority and female candidates for information the committee has re- DEPARTMENT OF TRANSPORTATION other magistrate judge positions, and quested regarding his rulings, opinions, James M. Loy, of Virginia, to be Under has directed the selection commission and judicial record generally. He has Secretary of Transportation for Security for in South Carolina to consider diversity been absolutely forthcoming. a term of five years.

VerDate 0ct 31 2002 02:29 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00125 Fmt 4637 Sfmt 0634 E:\CR\FM\G18NO6.165 S18PT1 Monday, November 18, 2002 Daily Digest Senate Reid (for Hatch/Leahy) Amendment No. 4965, to Chamber Action make certain technical amendments. Page S11341 Routine Proceedings, pages S11231–S11355 Consumer Product Safety Act: Committee on Measures Reported: Commerce, Science, and Transportation was dis- S. 2862, to provide for the establishment of a sci- charged from further consideration of H.R. 727, to entific basis for new firefighting technology stand- amend the Consumer Product Safety Act to provide ards, improve coordination among Federal, State, and that low-speed electric bicycles are consumer prod- local fire officials in training for and responding to ucts subject to such Act, and the bill was then terrorist attacks and other national emergencies, with passed, clearing the measure for the President. an amendment in the nature of a substitute. (S. Page S11342 Rept. No. 107–344) Page S11315 Child Safety Enhancement Act: Senate passed Measures Passed: H.R. 5504, to provide for the improvement of the safety of child restraints in passenger motor vehicles, Aviation Security Improvement Act: Senate clearing the measure for the President. Page S11342 passed S. 2949, to provide for enhanced aviation se- curity, after agreeing to committee amendments, and Federal Aviation Administration Research, En- gineering, and Development Act: Senate passed S. the following amendments proposed thereto: 2951, to authorize appropriations for the Federal Pages S11296–S11306 Aviation Administration, after agreeing to the fol- Hutchison (for Hollings/McCain) Amendment No. lowing amendment proposed thereto: Pages S11342–43 4968, in the nature of a substitute. Page S11300 Reid (for Rockefeller) Amendment No. 4966, to Hutchison (for Hollings/Rockefeller/McCain) include the House of Representatives Committee on Amendment No. 4969 (to Amendment No. 4968), Science as a recipient of each of all the required re- to authorize funds for fiscal years 2003, 2004, and ports, and to make other minor changes. Page S11342 2005 for the National Transportation Safety Board. Georgia Land Conveyance: Senate passed H.R. Page S11300 2595, to direct the Secretary of the Army to convey Cyprus Membership in the European Union: a parcel of land to Chatham County, Georgia, clear- Senate agreed to S. Con. Res. 122, expressing the ing the measure for the President. Page S11343 sense of Congress that security, reconciliation, and Social Security Program Protection Act: prosperity for all Cypriots can be best achieved with- Committee on Finance was discharged from further in the context of membership in the European consideration of H.R. 4070, to amend the Social Se- Union which will provide significant rights and ob- curity Act and the Internal Revenue Code of 1986 ligations for all Cypriots, after agreeing to a com- to provide additional safeguards for Social Security mittee amendment in the nature of a substitute. and Supplemental Security Income beneficiaries with Pages S11328–29 representative payees, to enhance program protec- Red Ribbon Week: Committee on Health, Edu- tions, and the bill was then passed, after agreeing to cation, Labor, and Pensions was discharged from fur- the following amendment proposed thereto: ther consideration of H. Con. Res. 84, supporting Pages S11343–52 the goals of Red Ribbon Week in promoting drug- Reid (for Baucus/Grassley) Amendment No. 4967, free communities, and the resolution was then agreed in the nature of a substitute. Pages S11343–52 to. Page S11339 Measures Indefinitely Postponed: Drug Competition Act: Senate passed S. 754, to Robert Wayne Jenkins Station U.S. Post Office: enhance competition for prescription drugs by in- S. 2828, to redesignate the facility of the United creasing the ability of the Department of Justice and States Postal Service located at 6910 South York- Federal Trade Commission to enforce existing anti- town Avenue in Tulsa, Oklahoma, as the ‘‘Robert trust laws regarding brand name drugs and generic Wayne Jenkins Station’’. Page S11339 drugs, after agreeing to a committee amendment in Rollan D. Melton Post Office Building: S. 2840, the nature of a substitute, and the following amend- to designate the facility of the United States Postal ment proposed thereto: Pages S11339–42 Service located at 120 North Main Street in Fallon, D1163

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Nevada, as the ‘‘Rollan D. Melton Post Office Build- Dennis W. Shedd, of South Carolina, to be United ing’’. Page S11339 States Circuit Judge for the Fourth Circuit be viti- Peter J. Ganci, Jr. Post Office Building: S. ated and that following today’s debate, the nomina- 2918, to designate the facility of the United States tion be laid aside and that upon the disposition of Postal Service located at 380 Main Street in Farm- H.R. 5005, Homeland Security Act, the Senate pro- ingdale, New York, as the ‘‘Peter J. Ganci, Jr. Post ceed to executive session and vote on confirmation of Office Building’’. Page S11339 the nominee; further, that if the nomination is con- firmed, the motion to reconsider be laid on the Nat King Cole Post Office: S. 2929, to designate table, the President be immediately notified of the the facility of the United States Postal Service lo- Senate’s action and that the Senate return to legisla- cated at 265 South Western Avenue, Los Angeles, tive session; and that if the nomination is not con- California, as the ‘‘Nat King Cole Post Office’’. firmed, the Senate return to legislative session with- Page S11339 out any intervening action or debate, and that the Francis Dayle ‘Chick’ Hearn Post Office: S. previous order with respect the Terrorism Conference 2931, to designate the facility of the United States Report (H.R. 3210) remain in effect following dis- Postal Service located at 5805 White Oak Avenue in position of the Shedd nomination. Encino, California, as the ‘‘Francis Dayle ‘Chick’ Pages S11242–43, S11244 Hearn Post Office’’. Page S11339 Nominations Confirmed: Senate confirmed the fol- Homeland Security Act: Senate continued consider- lowing nominations: ation of H.R. 5005, to establish the Department of Anne B. Pope, of Tennessee, to be Federal Co- Homeland Security, taking action on the following chairman of the Appalachian Regional Commission. amendments proposed thereto: (Prior to this action, Committee on Environment Pending: and Public Works was discharged from further con- Thompson (for Gramm) Amendment No. 4901, sideration.) in the nature of a substitute. Richard J. Peltz, of Pennsylvania, to be Alter- Daschle (for Lieberman) Amendment No. 4911 native Federal Cochairman of the Appalachian Re- (to Amendment No. 4901), to provide that certain gional Commission. (Prior to this action, Committee provisions of the Act shall not take effect. on Environment and Public Works was discharged Daschle (for Lieberman) Amendment No. 4953 from further consideration.) (to Amendment No. 4911), of a perfecting nature. James M. Loy, of Virginia, to be Under Secretary Senate will continue consideration of the bill on of Transportation for Security for a term of five Tuesday, November 19, 2002. years. (Prior to this action, Committee on Com- Veterans Benefits Improvement Act: Senate con- merce, Science, and Transportation was discharged curred in the amendments of the House to S. 2237, from further consideration.) Pages S11327–28, S11355 to amend title 38, United States Code, to improve Messages From the House: Page S11313 authorities of the Department of Veterans Affairs re- Executive Communications: Pages S11313–15 lating to veterans’ compensation, dependency and in- Petitions and Memorials: Page S11315 demnity compensation, and pension benefits, edu- cation benefits, housing benefits, memorial affairs Additional Cosponsors: Pages S11315–16 benefits, life insurance benefits, and certain other Additional Statements: Pages S11311–13 benefits for veterans, to improve the administration Amendments Submitted: Pages S11316–27 of benefits for veterans, and to make improvements in procedures relating to judicial review of veterans’ Privilege of the Floor: Page S11327 claims for benefits, clearing the measure for the Adjournment: Senate met at 11 a.m., and ad- President. Pages S11329–38 journed at 9 p.m. until 9 a.m., on Tuesday, Novem- Nomination Considered: Senate began consider- ber 19, 2002. (For Senate’s program, see the remarks ation of the nomination of Dennis W. Shedd, of of the Acting Majority Leader in today’s Record on South Carolina, to be United States Circuit Judge for page S11352). the Fourth Circuit. Pages S11247–96 A unanimous-consent agreement was reached pro- Committee Meetings viding that the cloture vote on the nomination of No committee meetings were held.

VerDate 0ct 31 2002 06:54 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00002 Fmt 5627 Sfmt 5627 E:\CR\FM\D18NO2.REC D18NO2 November 18, 2002 CONGRESSIONAL RECORD — DAILY DIGEST D1165 House of Representatives The House was not in session today. It will next COMMITTEE MEETINGS FOR TUESDAY, meet on Tuesday, Nov. 19 at noon. NOVEMBER 19, 2002 (Committee meetings are open unless otherwise indicated) Committee Meetings Senate No committee meetings were held. No meetings/hearings scheduled. House Committee on Government Reform, Subcommittee on Gov- ernment Efficiency, Financial Management and Intergov- ernmental Relations, oversight hearing on ‘‘Computer Se- curity in the Federal Government: How Do the Agencies Rate?’’ 10 a.m., 2154 Rayburn.

VerDate 0ct 31 2002 06:54 Nov 19, 2002 Jkt 019060 PO 00000 Frm 00003 Fmt 5627 Sfmt 0627 E:\CR\FM\D18NO2.REC D18NO2 D1166 CONGRESSIONAL RECORD — DAILY DIGEST November 18, 2002

Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9 a.m., Tuesday, November 19 12 noon, Tuesday, November 19

Senate Chamber House Chamber Program for Tuesday: Senate will continue consider- Program for Tuesday: Pro forma session. ation of H.R. 5005, Homeland Security Act, with votes to occur on amendments in the following order beginning at approximately 10:30 a.m.: Daschle (for Lieberman) Amendment No. 4953 (to Amendment No. 4911), Daschle (for Lieberman) Amendment no. 4911 (to Amendment No. 4901), Thompson (for Gramm) Amend- ment No. 4901, in the nature of a substitute, and a vote on the motion to invoke cloture on the bill. (Senate will recess from 12:30 p.m. until 2:15 p.m. for their respective party conferences.)

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