E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 108 CONGRESS, FIRST SESSION

Vol. 149 WASHINGTON, THURSDAY, FEBRUARY 6, 2003 No. 22 House of Representatives The House was not in session today. Its next meeting will be held on Friday, February 7, 2003, at 10:00 a.m. Senate THURSDAY, FEBRUARY 6, 2003

The Senate met at 9:30 a.m. and was lic for which it stands, one nation under God, EXECUTIVE SESSION called to order by the President pro indivisible, with liberty and justice for all. tempore (Mr. STEVENS). f NOMINATION OF MIGUEL A. PRAYER ESTRADA, OF VIRGINIA, TO BE The Chaplain, Dr. Lloyd John UNITED STATES CIRCUIT JUDGE RESERVATION OF LEADERSHIP Ogilvie, offered the following prayer: FOR THE DISTRICT OF COLUM- TIME Almighty God, who never sends trag- BIA CIRCUIT edies or trouble but is with us in the The PRESIDENT pro tempore. Under The PRESIDING OFFICER (Ms. MUR- midst of nerve-stretching times to give the previous order, leadership time is KOWSKI). Under the previous order, the us courage, we fall on the knees of our reserved. Senate will return to executive session hearts seeking the peace and hope only to resume consideration of Executive You can provide. When there is no- f Calendar No. 21, which the clerk will where else to turn it’s time to return report. to You. With the untimely death of the The legislative clerk read the nomi- heroic astronauts, we are reminded of RECOGNITION OF THE ACTING MAJORITY LEADER nation of Miguel A. Estrada, of Vir- the shortness of our lives and the ginia, to be United States Circuit length of eternity. The PRESIDENT pro tempore. The Judge for the District of Columbia Cir- Yesterday we listened to Secretary of acting majority leader is recognized. cuit. State Colin Powell and realized again The PRESIDING OFFICER. The Sen- that we face a treacherous enemy with f ator from Colorado. formidable, destructive power. For the Mr. ALLARD. Madam President, it is sake of the safety of humankind and SCHEDULE ironic that one of the arguments the world, grant the President, his ad- against Miguel Estrada, the President’s visors, and this Senate Your strategy Mr. ALLARD. Mr. President, on be- nominee for the D.C. Circuit Court, and strength for the crucial decisions half of the majority leader, I have some center around prior judicial experience. confronting them. information for Senators. The Senate This argument is nothing but hollow And now for the work of this day, will resume debate on the nomination political rhetoric aimed at obstructing keep the Senators and all of us who of Miguel Estrada this morning. We the Senate’s constitutional duty to work with and for them mindful that had a productive debate on the Estrada confirm judges. It is also a double You are Sovereign of this land, and nomination on yesterday afternoon, standard of the highest order. To illus- that we are accountable to You for all and it is the majority leader’s objec- trate this point, I bring a Colorado leg- that is said and done. May the bond of tive to arrive at an agreement with the patriotism that binds us together al- end to the attention of my colleagues. other side of the aisle regarding the Byron ‘‘Whizzer’’ White may have ways be stronger than any issue that consideration and vote on the nomina- threatens to divide us. You are our passed away almost a year ago, but the tion in the near future. Lord and Saviour. Amen. Centennial State will forever feel his As previously announced, there will commanding presence. Mr. White was f be no rollcall votes today. It is antici- born in Fort Collins, CO, not far from PLEDGE OF ALLEGIANCE pated that the Senate will adjourn where I live and where my family lives, The Honorable TED STEVENS led the around noon. Therefore, Senators who and was raised in nearby Wellington. Pledge of Allegiance, as follows: wish to speak on the Estrada nomina- He went on to become his high school’s I pledge allegiance to the Flag of the tion are encouraged to make arrange- valedictorian, All-American football United States of America, and to the Repub- ments to do so earlier in the day. star, college valedictorian, Rhodes

∑ 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 Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00001 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2022 CONGRESSIONAL RECORD — SENATE February 6, 2003 scholar, professional football player, I suggest the absence of a quorum. the tactic of alleging that he did not and a decorated World War II soldier. The PRESIDING OFFICER. The say enough. That is ridiculous. They Noting his many significant achieve- clerk will call the roll. controlled everything. They could have ments, President John F.Kennedy nom- The legislative clerk proceeded to asked him anything, and I think they inated him to the Supreme Court in call the roll. did. Now, he didn’t say enough. 1962, saying, Byron White ‘‘excelled at Mr. DORGAN. Madam President, I The fact is that Mr. Estrada cor- everything he has ever attempted.’’ ask unanimous consent that the order rectly refused to answer questions that White, at only 44 years of age, ascended for the quorum call be rescinded. called upon him to prejudge issues that to the bench of our Nation’s highest The PRESIDING OFFICER. Without may very well come before him as a court and went on to serve for three objection, it is so ordered. judge. That is what every nominee decades. Mr. DORGAN. Madam President, I with any brains has done from time im- Why is this significant? It is signifi- ask unanimous consent that I be able memorial. No nominee wants to have cant because had President Kennedy to proceed for 20 minutes as in morning to recuse himself in a serious case later adhered to such a rigid litmus test, business. because of something he said before the Byron White would never have been The PRESIDING OFFICER. Without Senate Judiciary Committee. Well, let seated on the bench of the United objection, it is so ordered. me repeat that. The fact is that Mr. States Supreme Court. Adherence to (The remarks of Mr. DORGAN are Estrada correctly refused to answer the experience litmus test would mean printed in today’s RECORD under questions that called upon him to pre- that five of the eight judges currently ‘‘Morning Business.’’) judge issues that may very well come serving on the D.C. Circuit would not The PRESIDING OFFICER. The Sen- before him as a judge. This includes his have been confirmed because they had ator from Utah is recognized. opinion on whether established prece- no previous judicial experience—in- Mr. HATCH. Madam President, I am dent was correctly decided and how he cluding two of President Clinton’s happy to be able to take the floor this would decide these cases if he were nominees, Merrick Garland and David morning to argue in favor of Miguel working from a clean slate. Tatel, and one appointed by President Estrada. Miguel is one of the finest Lloyd Cutler, who was the White Carter, Judge Harry Edwards, who was lawyers in the country. He has arrived House chief counsel in both the Carter younger than Mr. Estrada currently is. at this position and status, where he is and Clinton administrations, and one It is obvious that the opposition to approved by the American Bar Associa- of the premier lawyers in the country— Miguel Estrada is not concerned with tion as ‘‘unanimously well qualified,’’ certainly in this town—and one of the merit or intellect. They are more con- the highest rating that the American great public servants of all time, in my cerned with partisan politics. Their Bar Association can give. He has had opinion, put it best when he said: work is concentrated on holding our his critics, but only in generalized [I]t would be a tragic development if ide- Nation hostage to their rigid ideology, terms. He has had his critics who I ology became an increasingly important con- unprecedented in the consideration of don’t think have a leg to stand on in sideration in the future. To make ideology judges. While caseloads in the Federal the criticism they are raising. an issue in the confirmation process is to courts continue to increase dramati- One of the more ridiculous assertions suggest that the legal process is and should cally and filings reach all-time highs, that I have heard about Miguel is that be a political one. This is not only wrong as he was not especially or sufficiently re- a matter of political science; it also serves to the opposition pursues an agenda of ob- weaken public confidence in the courts. Just struction, aimed at disrupting the jus- sponsive at his hearing and therefore as candidates should put aside their partisan tice that is guaranteed by our Con- we need to have a second hearing to political views when appointed to the bench, stitution, and creating a vacancy crisis evaluate him. Keep in mind, the Demo- so too should they put aside ideology. in the Federal courts. Chief Justice crats were in control of the Judiciary This is Lloyd Cutler, who was chief William Rehnquist recently warned Committee. They called the hearing, White House counsel for Presidents that the current number of vacancies, they controlled the hearing, they con- Carter and Clinton. He goes on to say: combined with the rising caseloads, trolled the timing of the hearing, they To retain either is to betray dedication to threatens the proper functioning of the controlled the time for questions by the process of impartial judging. Men and Federal courts. Senators. And at least one Democrat women qualified by training to be judges This is a time in our Nation’s history said the hearing was conducted in a generally do not wish to and do not indulge when our courts ought to be fully up fair and responsible manner, and I per- in partisan or ideological approaches to their and functioning. It is a time when sonally agree with that. Senator SCHU- work. there are lots of national security con- MER was the person who chaired that Mr. Cutler concluded: cerns centered around terrorist particular hearing. I give him a lot of Candidates should decline to reply when ef- threats. These extraordinary delays credit because it was a fair hearing and forts are made to find out how they would must end. Miguel Estrada is a highly they asked every question they wanted decide a particular case. qualified and respected individual who to ask. I agree with him, and so did all the deserves the Senate’s consideration. Secondly, after the hearing, on the Democrats on the committee when Mr. Estrada is a man of legal experi- Judiciary Committee we have a right President Clinton’s nominees came be- ence, a man of keen intellect and to ask questions in writing. Only two fore the committee. Now all of a sud- strong character. He has argued 15 Democrats asked questions in writing. den, they are applying a double stand- cases before the Supreme Court and Miguel Estrada had waited 631 days be- ard or a different standard to Miguel has served both as a Federal prosecutor fore he was given the privilege of hav- Estrada and, I might add, other Repub- and Assistant United States Solicitor ing a hearing. Then the hearing was lican nominees who are coming before General. If confirmed, he will be the held. the committee. first Hispanic to serve on the DC Cir- Now we are hearing the same old We should be commending Mr. cuit. I think that is significant. And he wornout complaints that he wasn’t suf- Estrada for refusing to take the bait will be a principal asset to our system ficiently responsive and that, there- and answer these questions. Instead he of justice. fore, we need a second hearing to is being criticized for it and, I think, in Miguel Estrada has received the evaluate him. the view of any impartial observer, is highest rating from the American Bar Since Mr. Estrada didn’t say any- being criticized unfairly for one reason: Association. He has received strong thing at the hearing that could be used They just do not want a Republican support from those who know him the to besmirch him—that is the real prob- conservative Hispanic to sit on the Cir- best—the Hispanic legal community, lem; they could not find anything cuit Court of Appeals in this country. including the Hispanic National Bar wrong with him; there is not one thing That is wrong. We all know it is wrong, Association. I believe he has earned a that anybody has said, other than gen- and yet that is what is behind much of vote in the Senate. He has earned my eralizations, that has any merit at the antagonism toward Mr. Estrada. respect and my support, and I plan to all—since they could not find anything As a fundamental matter, I am per- vote for Miguel Estrada. at his hearing that could be used to plexed by the charges that Mr. I thank the Chair. criticize him, his opponents resorted to Estrada’s record is blank. That is what

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2023 we call bullcorn out in Utah. The truth stand important lawyers and under- the Second Circuit Court of Appeals in is, Mr. Estrada’s record is replete with stand the success of lawyers—working 1961. Justice Marshall had served in material we used to evaluate his quali- with one of the most important law private practice and as special counsel fications for the bench and how he firms in the country as a full partner, and director of the NAACP prior to his would go about deciding cases. He has and he has both Democrat and Repub- appointment. I do not think anybody written numerous complex and thor- lican partners. I might add, some of the would doubt he made a very important ough briefs for the courts, and he has leading people in support of Mr. contribution to the jurisprudence of argued on a wide range of subjects. Estrada today are Democratic attor- this country. His briefs, all of which are publicly neys—not just attorneys, but top attor- Several well-respected members of available—and I know the Democrat neys—and we have mentioned them, the DC Circuit, including two of Presi- staffers have pored over every one of from Ron Klain to Seth Waxman, Klain dent Clinton’s three appointments to them—provide tremendous insight into having been Vice President Gore’s chief that court, arrived with no prior judi- his legal reasoning and thinking on counsel, both as Vice President and in cial experience. constitutional and statutory interpre- his campaigns. Ron Klain used to work Merrick Garland: I have a lot of re- tation. His achievement of having ar- on the Judiciary Committee as one of gard for Merrick Garland. I helped to gued 15 cases before the U.S. Supreme the top judiciary staff people. He is an see him get through when there was Court provides a record of how he has excellent lawyer and a wonderful per- some opposition to him. He was a Clin- responded to focused interrogation on son. We all care for him. I personally ton appointee. He served at the Depart- the most important matters to Amer- care for him, and one reason I do is be- ment of Justice and was in private ica’s highest court. The transcripts cause he is honest, not just honest practice. He was never on the bench from these oral arguments are also enough to say how good Miguel prior to his appointment. publicly available. Where is the legiti- Estrada is and to back him, but honest David Tatel, also a Clinton ap- mate complaint by the other side about in his dealings in legal matters as well. pointee, had served in private practice this blank-slate business? for 15 years prior to his appointment. Still further, Mr. Estrada not only I have a lot of respect for him. Seth In fact, only three of 18 judges con- said at his hearing he would support es- Waxman is one of the premier lawyers firmed to the DC Circuit before Presi- tablished law, but he proved this when in the country, no question about it. dent Carter’s term began in 1977 pre- he wrote an amicus brief at the Solic- He knows I have a lot of respect for him, and it is not just because of work viously served as judges. itor General’s office in support of the For example, Abner Mikva, appointed National Organization for Women. I do on the Judiciary Committee. He is a by President Carter, was in private not hear any compliments from the fine lawyer, one of the best and former practice for 16 years in Chicago, served other side on his work there. His sup- Solicitors General of the United States in the Illinois Legislature and in the port of a law that backed a reproduc- in the Clinton administration. U.S. Congress and had no judicial expe- tive choice side in that case indicates Some have advanced the prepos- rience prior to his appointment in 1979 there is no reason to expect he would terous argument that Miguel Estrada to the Circuit Court of Appeals for the not follow Roe and Casey as a DC Cir- is not qualified to serve on the DC Cir- District of Columbia. cuit Court judge, and yet that has un- cuit because he has no prior judicial Other Democrat-appointed DC Cir- derlined many of the complaints by my experience. That is one of the most ri- cuit judges with no prior judicial expe- friends on the other side. They are so diculous arguments of all. Of all the ri- rience include Harry Edwards, Patricia afraid that somebody on these Circuit diculous arguments his opponents have Wald, and notably Ruth Bader Gins- Courts of Appeals might possibly do drummed up, to me this is the most lu- burg, now sitting on the Supreme something to overrule Roe v. Wade or dicrous. There are literally hundreds of Planned Parenthood v. Casey, two very examples of judicial nominees who Court. Several other Clinton appointees to important abortion cases. have gone on to serve as great Federal I have not heard one President Bush judges at both the Court of Appeals and the Courts of Appeals received their ap- nominee say he or she will not uphold Supreme Court levels despite having no pointments despite having no prior ju- the laws of this land, including Roe v. prior judicial experience. dicial experience: Ninth Circuit ap- Wade and Planned Parenthood v. Chief Justice Rehnquist in his 2001 pointees Richard Tallman, Marsha Casey. The truth is, many on the other yearend report on the Federal judiciary Berzon, Ronald Gould, Raymond Fish- side have not even liked Planned Par- noted: er, William Fletcher—who was a law enthood v. Casey because it does take a The Federal judiciary has traditionally professor at Boalt Hall at Berkeley— more moderate position with regard to drawn from a wide diversity of professional Margaret McKeown, Sidney Thomas, abortion. Now it is the law of the land backgrounds with many of our well-re- and Michael Hawkins all had no judi- and, of course, it is one of the cases spected judges coming from private practice. cial experience prior to taking the they certainly do not want to have Such Justices included Louis Bran- bench. overruled. deis, who spent his whole career in pri- Seven of these eight, all but Fletch- Mr. Estrada’s opponents are so eager vate practice before he was named to er, were in private practice when they to distort his record that they do not the U.S. Supreme Court in 1916 and were nominated by President Clinton. mention this case or any one of many came to be known as ‘‘the people’s at- Second Circuit appointees Robert other cases which reveal his legal rea- torney’’ for his pro bono work. Katzmann, Robert David Sack, and soning and willingness to follow the Supreme Court Justice Byron Chester Straub had no judicial experi- law. White—I knew Byron White very well. ence prior to their appointments. Third It needs to be explained to everybody He was very friendly to me throughout circuit nominee Thomas Ambro, that not only do they have access to all my career. He spent 14 years in private Fourth Circuit nominees Robert King these briefs he has written, both in the practice and 2 years at the Justice De- and Blane Michael, and Sixth Circuit Supreme Court and other courts of the partment before his appointment to nominee Eric Clay and Karen Moore land, but they could have asked any the Court by President Kennedy in also had no prior judicial experience. question they wanted of Mr. Estrada. 1962. He is a wonderful man. Byron What is the point? Is it that it is all Any member of the committee can do White served this country well and his right for Democrat Presidents to ap- that. Some may be ill-advised and not memory will always be a good memory. point people without prior judicial ex- very fair, but we allow them to ask any Byron White moved from the left to perience, who become very good judges questions they want. Then they can the center to even a little bit to the on the bench, but it is not all right for ask any questions in writing. In almost right on the Court, and that did not Republican Presidents to do so? Is it every case, Mr. Estrada asked to meet please a lot of our friends on the other all right to have more moderate-to-lib- with individual Senators beforehand so side. eral appointees who have never had they could meet privately and ask any Supreme Court Justice Thurgood any judicial experience, but it is not all questions they had. Marshall had no judicial experience right to have moderate-to-conservative Mr. Estrada today is known all over when President Kennedy recess-ap- appointees appointed by a Republican the country by those who really under- pointed him to his first judgeship in President? It is all right to have liberal

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2024 CONGRESSIONAL RECORD — SENATE February 6, 2003 Hispanics appointed to the courts—I not being very fair, when there was they can raise that might make the agree with that—but it is not all right bias and bigotry, but there is none of process better in some cases or that to have a Republican Hispanic who, that now. I think they are doing a ter- might scuttle a President’s nominee in perish the thought, Democrats think rific job now, and as long as they do it other cases. There is a lot of partisan- may be conservative? fairly and down the middle, without ship sometimes. That is not all bad be- Given this illustrious group of former bias and without being political, they cause we want the best people we can practitioners like Mr. Estrada, who are going to have my support, and I get to serve on the Federal bench in were not Federal judges, I find it hard support them right now. But we then this country. to swallow that Mr. Estrada’s lack of have the American Bar Association This editorial indicates this is just a prior judicial service should somehow look into these people and they go steamrolling of nominees. Now, that is be counted as a strike against him. right into the person’s hometown. crazy. In the case of Estrada, his nomi- I noticed this morning in the New They talk to the attorneys who know nation has been pending for 631 days, York Times—now, I read the New York him. They talk to their top attorneys having had every aspect of his life Times regularly. It is a very important whom they know are people of integ- combed over and because they cannot paper in this country, and I have a rity and ability and leaders in the bar find anything to smear him with or great deal of respect for most of the in their community. They talk to just find fault with—it depends on who the people who work at the New York about everybody who has any interest person is—or to criticize, all of a sud- Times, but their editorial department in the nominee, and this has all been den he is being steamrolled. has been almost amazingly inac- done for Mr. Estrada. Then they sit Well, 631 days is almost 2 years. It is curate—not almost amazingly, it has down and they have their standing way too long. I have to admit, there been amazingly inaccurate. committee make an evaluation of were some mistakes when I was chair- Today, they have an editorial dated these nominees. man during the Clinton years, but no- February 6, 2003, entitled ‘‘Steam- These evaluations are tough evalua- body should doubt for a minute that rolling Judicial Nominees.’’ They say: tions, especially on those who do not President Clinton was treated fairly. President Reagan was the all-time con- The new Senate Republican majority is come out of them very well. In this ushering in an era of conveyer-belt confirma- case, Mr. Estrada has a ‘‘unanimously firmation champion with 382 judges tions of Bush administration judicial nomi- well-qualified’’ rating from the Stand- confirmed in his 8 years, and he had a nations. No matter which party holds the ing Committee of the American Bar Republican Senate to help him do it. gavel, the Federal courts are too important Association—I should say from the President Clinton had virtually the for the Senate to give short shrift to its con- American Bar Association because same number, 377, as the all-time stitutional role of advice and consent. they represent the whole bar. That is champion, and he had 6 years of an op- I agree with that. I do not think we something that does not always hap- position party to help him do it. I should give short shrift to any degree. pen. In fact, it does not happen very know. I was the chairman during that These are important positions. They often, to have ‘‘unanimously well- time, and I did everything I could per- are lifetime appointments. We ought to qualified.’’ sonally to help the President because do a thorough examination of them. All of that is unbelievably difficult he was our President. There was only So everybody understands, and I for the nominee. The nominee has to one person voted down in that whole want the New York Times editorial sign a disclosure form that just about time, and I have to admit I do not feel board to understand, before a person lays bare everything in that nominee’s good about that. And there were less even comes up to the Senate, that per- life. One can see why some people do people left holding at the end than son has been evaluated by the White not even want to become judges any- there were when Democrats had con- House, by the White House Counsel’s more. Some of the greatest lawyers in trol of the committee. Office, by the Justice Department. the country, who would serve on the Going back to this editorial, because I want to help my friends at the New There has been a complete FBI review bench, do not want to go through this York Times to be a little more accu- of that person’s life. The FBI inter- process. The investigation of the nomi- rate—frankly, I think they can use views just about everybody who wants nee includes Finances and everything, some help because their editorials, es- to be interviewed and some who do not it is all laid out; cases are laid out. pecially in this area, have been awful. want to be interviewed. The interviews They are asked questions that are very range from people who love the can- And this is a perfect illustration. intrusive into their lives. I think the Going to the second paragraph: didate or the nominee to people who questionnaire is too strong, but it has hate his or her guts. Republicans on the Judiciary Committee been very difficult to change over the held a single hearing last week for three con- There are people who make scur- years. That is what they go through. troversial appeals court nominees. rilous comments, all kinds of anony- Then they are nominated. The Judici- Just for information, that was Jef- mous things. These are raw reports ary Committee then starts its work, frey Sutton. That was John Roberts, that come into the FBI file. They re- and we go through every one of these and a wonderful woman named Cook— port it all. Then it comes to the Judici- documents. Sutton and Cook and Bill Roberts from ary Committee, and the chairman and We go through that FBI report with a DC Court of Appeals. ranking member and our staffs go fine-tooth comb. If there is anything By the way, all three are well known. through those FBI reports with a fine- left undone, we then ask the FBI to fol- Sutton is one of the top appellate law- tooth comb. low up. We do not leave anything un- yers in the country; Roberts, who was To the credit of both the Republicans done to the extent that we can. If there considered if not the top, one of the and Democrats—or Democrats and Re- are some particular problems, we bring two top appellate lawyers before the publicans, I should say—both sides both sides of the Judiciary Committee Supreme Court of the United States; have worked very well to get rid of the together and tell them these are prob- and Cook is a Supreme Court justice in chaff and to do what is in the best in- lems. We disclose it to the members of Ohio. terest of this country and to be fair to the Judiciary Committee. The ranking Republicans on the Judiciary Committee these nominees. That is a very arduous member will disclose it to his side. The held a single hearing last week for three con- process. The minute they decide to Chairman discloses it to his or her side. troversial appeals court nominees. There was pick one of these people, or even maybe Once that is done, then we set it for no way, given the format, for Senators to before sometimes, they then tell the a hearing. The hearings usually do not consider each nominee with care. American Bar Association—not be- last days at a time for circuit court We held one of the longest hearings cause they have a formal role in the nominees or district court nominees. ever on record, from 9:30 in the morn- process but because we want to have They are generally a 1-day affair, as ing until 9:30 that night. I was willing the leading bar association in the coun- they should be, because we have all to stay longer. I told the Committee we try involved. At least the Democrats this information. Anybody can cull would finish that hearing that day and have always wanted to have them in- through all that information, and their I would stay as long as it took. volved. I have to admit I did not want staffs really do. Sometimes they are There was no way, given the format, for to have them involved when they were looking for dirt, looking for things senators to consider each nominee with care.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2025 A fourth nominee had a hearing yesterday, one that is good, is settled before it tion.’’ Give me a break. He did answer. and a fifth is likely to have one next week. gets to court. It is only the hard cases He said that he would apply the law re- What is wrong with that? They have that basically have to be tried. And in gardless of his personal viewpoints. been sitting there for months and many instances, those cases are not This is a man who argued the case for months and they are high-quality peo- good cases. Some on the other side NOW. Who knows where he stands—I ple. They have gone through this hor- seem to think, well, she sides with cor- don’t know. All I can say is that is a ri- rendous process to get to where they porations. My gosh, she sides with who diculous statement. I guess editorials have a hearing. is right. And that is what we should do. can be ridiculous, but this one is par- During the Clinton years, the committee Admittedly, sometimes it was a dis- ticularly. took six months or more to consider the sent, and she was known for the dis- Meanwhile, the White House refused to number of appeals court nominees this com- sent. That is not bad. Dissenting judges hand over memos Mr. Estrada wrote as a mittee is hearing from in two weeks. play a noble role. You can disagree government lawyer that could have shed I would add that many nominees with cases but you cannot disagree light on his beliefs. have been waiting longer, not 6 months with her integrity. No one would at- They wanted memos on that side be- or more, 2 years, in the ones we have tack her integrity. cause they could not find anything else to give him a rough time about. They called up. In one case she maintained that a worker By the way, Mr. ROBERTS had been whose employer lied to him about his expo- wanted memos on that side from the sitting there since 1990 or 1991 or 1992. sure to dangerous chemicals should not be Solicitor General’s office and seven I know he has been sitting there for at able to sue for his injuries. former Solicitors General, four of least 11 years. He has been nominated That is the most oversimplification I whom are Democrats, came in and said three times. This is too much of a have ever seen. It is wrong. that would be a very inadvisable thing rush? Give me a break. They took a lot Jay Bybee, who was heard from yesterday, to do because it would chill the work of longer than 6 months to consider the has argued that United States senators the Solicitor General’s office. People Bush nominees. should be elected by state legislators, not would not give their honest opinions if The nominees being whisked through all the voters. they knew that later they would be pil- have records that cry out for greater scru- That is purely wrong; it is bunk. The loried with those in the Senate of the tiny. fact is, this system we have is a good United States. I have covered how scrutinizing we system. But we know one time Sen- Meanwhile, the White House refused to ators were elected by State legisla- hand over memos Mr. Estrada wrote as a are in the committee. We do not miss government lawyer that could shed light on anything. My friends on the other side tures. He has expounded on that. his beliefs. do not miss anything. We don’t either. Questions have also been raised about Mr. Estrada said it would have been whether, as a White House aide, Mr. Bybee One, Jeffrey Sutton, is a leading states’ all right with him. He is proud of his rights advocate who in 2001 persuaded the attempted to suppress a criminal investiga- tion of financing of Iraqi weapons purchases. work. Supreme Court to rule against a nurse with I have to say that the greater ap- breast cancer on the ground that the Ameri- Come on. That is totally bunk. They proach would be to recognize that cans With Disabilities Act does not apply to have not talked to Mr. Bybee and given state employers. there are some things that have to be him any consideration. That, first, privileged. As I say, all seven living I was one of the authors of the Amer- should never have been disclosed. But former Solicitors General have said icans with Disabilities Act. I was not it was. And not one person asked a that. enthused about that case. But the fact question about it. I am sure they will ‘‘The Bush administration is natu- is, it was a legitimate legal matter and say they were watching Colin Powell’s rally going to nominate candidates for he had every right to represent the speech. I was not. I was sitting there in the bench who are more conservative States in that matter. The attitude committee, making sure they had a than some Democrats would like,’’— around here is, if he represented the chance to ask any questions they want- that is fair—‘‘and the Republican ma- States, it must have been wrong. Or, if ed. We delayed the committee until jority in the Senate is going to approve he represents big corporations, he must after Colin Powell finished to enable them.’’ That is fair. ‘‘That does not be wrong. any Democrat to come, and at least mean, however, that the administra- Sometimes the States are right. two said they would come, to come tion should be allowed to act without Sometimes the corporations are right. back and question. They did not come scrutiny,’’—that is not fair, because it Mr. SESSIONS. Will the Senator back. is tremendously scrutinized—‘‘and yield? The committee’s new leadership showed pack the courts with new judges who There is some statement in there similar recklessness when it waved Miguel hold views that are out of whack with that sounds odd to me. They criticize Estrada through on a straight party-line those of the vast majority of Ameri- Mr. Sutton for persuading the Supreme vote. cans.’’ Court, like it is something bad. And I What are we suppose to do if the Now, come on. make a note that the Supreme Court other side plays politics with the We fear that that is what the hasty hear- ruled with him and agreed with his po- judges? They did not have one good ar- ing process is trying to— sition. gument through the whole process, and Come on. Hasty—631 days before he I know the Senator is so knowledge- we have had a horrendous process to even gets a hearing with all of that able about these issues. I just ask, Is begin with that took 631 days before he scrutinization that has gone on? It is there something wrong, is it disquali- came to the committee. The only rea- not fair. This editorial is not fair. fying for an attorney to prevail on the son he came then was because the Re- I call on my friends at the New York Supreme Court? publicans took control of the Senate. Times: be fair about the judges. I know Mr. HATCH. Apparently to the New Thank goodness for that or he would the paper is more liberal than I, and I York Times. The fact is, that case was never have come up. He would never expect you to be more liberal. But I ex- written by the Supreme Court. He ad- have had a chance. We all know it pect you to be fair. This business about vocated, as any advocate, and he was around here. three judges being called at one time— representing, as I recall, one of the ‘‘Mr. Estrada, a conservative law- they have been sitting there for 631 States. yer’’—who knows if he is. I don’t know days or more; actually more. They Another, Deborah Cook, regularly sides, as his ideology. I know he is a great law- have been sitting there since May 9, a state judge, with corporations. yer. And I presume, as I am sure the 2001. They have been scrutinized to Oh, my goodness. You mean we have President does, that he is probably death. We gave every opportunity to somebody who will be on the Federal moderate to conservative. question and every opportunity to file bench who occasionally finds corpora- ‘‘Mr. Estrada, a conservative lawyer additional questions. tions might be right? What a terrible with almost no paper trail,’’—I just By the way, I remember during the thing that must be, that corporations made the case there is a paper trail on Carter years, when Senator KENNEDY are right? Let’s be honest about it. A him—‘‘refused to answer senators’ was chairman of the committee, if I re- lot of employment cases, almost every questions on crucial issues like abor- call correctly we had seven circuit

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2026 CONGRESSIONAL RECORD — SENATE February 6, 2003 nominees on one hearing. Is it wrong should be held up, why he does not of the nominees we had last week who for Republicans to try to move these qualify for the bench, and why there is were nominated with him in May 2 judges after all of these delays when something wrong with an individual years ago got their first hearing just they have the opportunity to do so, but who was given the highest possible rat- last week. He was not part of that not wrong for the Democrats to move ing, unanimously, by the American Bar group. the judges they want moved when they Association. Mr. Estrada came to this country at have control of the White House and Having said that, I withdraw my ob- 17. He went to Columbia College where the Judiciary Committee? I don’t think jection to the unanimous consent re- he graduated with honors magna cum there should be a double standard. I quest. laude. Then he went on to Harvard Law wanted to move as many of those May The PRESIDING OFFICER. Without School. He grew up in Honduras. His 9 judges as we could. If you will take objection, it is so ordered. The Senator mother came here. She could not speak note, the next week we had only one from Washington. English. He has done exceedingly well. and that was Jay Bybee. That was this (The remarks of Mrs. MURRAY are He is a tremendous American success week. And next week we will probably printed in today’s RECORD under story. He is a great American, the kind only have one more. ‘‘Morning Business.’’) of person we all respect because of his We are doing the best we can to try Mrs. MURRAY. I yield the floor. merit, his humility, his strength of help solve judicial problems in this The PRESIDING OFFICER (Mr. character, his hard work, and his intel- country. Just for the information of BURNS). The Senator from Alabama. lect. the New York Times, there are around Mr. SESSIONS. Mr. President, I as- After going to the Harvard Law 25 judicial emergencies in this coun- sume we are on the business of the School, which many consider the most try—emergencies. The Circuit Court of Estrada nomination. prestigious law school in the world, he Appeals for the District of Columbia is The PRESIDING OFFICER. The Sen- not only finished at the top of his one. The Sixth Circuit Court of Appeals ator is correct. class, he was chosen to be editor of the in Ohio is another. We need to do some- Mr. SESSIONS. Mr. President, that Harvard Law Review. The editor of the thing about that if we want justice in is the pending business before the Sen- Harvard Law Review or any law review this country, if we want to have cases ate today. It is a matter of importance. at a good law school is considered to be heard and tried and resolved—and that The Court of Appeals of the United one of the most outstanding honors a is what we want. That is what good States are important judicial offices. graduate can have. It is probably more lawyers want, fair judges who will fair- We need good people for those offices. significant in the minds of many peo- ly listen to their case and give them a There is no doubt in my mind that ple than who had the highest grade fair trial. And these judges will. That Miguel Estrada is one of the finest point average, who finished No. 1 in the is why they are so highly rated by the nominees we have seen in years. He has class. Being editor of the law review is American Bar Association and that is an impeccable record, with extreme ca- something you are chosen for by your why Miguel Estrada has the highest pability, and wonderful integrity. He classmates and the faculty. It is a rating possible. had a great demeanor in the committee great honor. It requires exceptional I think it is time for the New York when he testified. So I am very im- academic excellence. He finished Times to be more fair in its reporting pressed with him. magna cum laude at Harvard. It also on these judges. I noticed the day be- It is very disturbing to me that we requires leadership skills and analysis, fore they were reporting as though would have a blockage, an obstruction the kind of skills that most people Paul Bender’s opinion really amounted being carried on here by the members think make a good lawyer. He was suc- to something. It may in some areas, of the Democratic Party. They stalled cessful in that. but certainly I think the opinions he him in committee. They failed to give After doing that, he was an assistant gave at the Solicitor’s office are more him and several other superb President U.S. attorney in the Southern District important than politically motivated Bush nominees to the court of appeals of New York. I was an assistant U.S. opinions that he gives later as a liberal a hearing at all—over 600 days. It attorney in my prior life, and a U.S. at- Democrat—and, I might add, a very lib- would have been 2 years in May since torney. But those in the Southern Dis- eral Democrat. they were nominated, and there was trict of New York, rightly or wrongly, I have taken enough time. I yield the not a hearing even held. considers themselves to be the premier floor. So when the majority switched, Sen- U.S. attorney’s office in the country. The PRESIDING OFFICER. The Sen- ator HATCH had hearings on Mr. They hire only the highest achieving ator from Washington. Estrada. I thought he testified just su- assistant U.S. attorneys. They are very Mrs. MURRAY. Madam President, I perbly, with such a winning manner. proud of that. Just being chosen at ask unanimous consent to speak as in He is a low-key person, but he has a that office is a great honor. I would morning business for 25 minutes. brilliant mind. He analyzed the ques- suspect there are more than 100 appli- The PRESIDING OFFICER. Is there tions carefully, and gave responsible cants for every vacancy they have. It is objection? answers time and again in a way that an office that handles complex mat- Mr. SESSIONS. Madam President, re- few could disagree with, in my view. ters. Some of the biggest financial and serving the right to object, I assume If we are going to slow down the international matters often get han- the Senator will be speaking on a sub- work of the Senate, if we are going to dled in the Southern District of New ject other than the Estrada nomina- stop what we are doing to talk about a York. tion? nominee for the court of appeals, I While he was there, he became active Mrs. MURRAY. That is correct. would like to hear people step up to the in and chairman of the appellate litiga- Mr. SESSIONS. I will say, I was down plate and talk about that nominee. tion section. That means he wrote here to speak on the Estrada nomina- Let’s see what the problems are. I briefs that would be presented to the tion. I think the individuals who op- haven’t seen them. We have had two Second Circuit Court of Appeals in New pose him say they want to talk about speakers today from the other side who York. The Second Circuit is considered it. I would like to hear what they have talked about asbestos and hydrogen one of the great circuits in America. So to say. This morning there is nobody automobiles, not the subject at hand. he was chosen to represent the United down from the other side, the opposi- We have agreed to that. I don’t know States in the attorney’s office, to write tion, to speak against him. I don’t how long we ought to agree to that. their appellate briefs before one of the know what they could say if they Maybe we should just say, if you want great circuit courts. came. So it is frustrating to me. to slow down the Senate, then so be it. One reason he was chosen for that is I know the Senator has some issues We will just talk about that day after that Miguel Estrada, after graduating she cares about deeply and wants to day. I am concerned about that. from Harvard, clerked for a U.S. Court talk. I suppose that is appropriate at I did misspeak in saying that Estrada of Appeals judge for the Second Circuit this time, although in reality I think didn’t have a nomination hearing there in New York and had a good we ought to be engaged in a debate under the Democratic majority. He did record. After having clerked for the about this nomination and why it get a hearing late in the process. Three Second Circuit, he was chosen to be a

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2027 clerk for the U.S. Supreme Court, Jus- preme Court. You could count on both fied rating. Very few people get the tice Anthony Kennedy. hands probably the number of prac- well-qualified rating. This is what it For lawyers graduating from Har- ticing lawyers today who have ever ar- requires to get it, according to the vard, or from any law school in Amer- gued 15 cases before the Supreme ABA manual: ica, being chosen to be a law clerk for Court. To merit a rating of well qualified, the a Justice on the Supreme Court is an That is a reflection of the confidence nominee must be at the top of the legal pro- exceedingly great honor. It is sought that clients and his law firm had in fession in his or her legal community . . . by thousands and thousands, and very him. This isn’t politics. When you have The ‘‘top’’ of the profession . . . few are selected. He was selected be- a big case before the Supreme Court of . . . have outstanding legal ability, cause of his excellent record, his back- the United States and you have to have breadth of experience, the highest reputation ground, and expertise. It is a great somebody there arguing that case, you for integrity, and either have demonstrated compliment to him that he was chosen don’t want second rate, you want the or exhibited the capacity for judicial tem- to clerk for Justice Anthony Kennedy, best person you can get. The Supreme perament. who is considered to be a swing Justice Court hears less than 100 cases per That is what is required for a person on the Court. year. They select only a very few. to get the well-qualified rating. They After that, he went to the U.S. attor- Whenever your case is chosen for the have 15 of so lawyers study and talk to ney’s office, where they prosecute Supreme Court, there is no doubt about judges and to the lawyers in the firm criminal cases and work on the appeals it, the clients start looking around for with the person, and they talk to law- that arise from those kind of cases and superior appellate lawyers to represent yers on the other side of cases from the other matters relating to U.S. litiga- their interests in a case that may set nominee; they make the nominee list tion in court. That is what they do national policy for generations to the top 10 or so cases they have han- there. He did a good job there. come. We still cite many of those Su- dled, and they talk to the lawyers and Then he was chosen to come to the preme Court cases time and again to judges to see how well they performed Solicitor General’s Office of the U.S. indicate the importance of them and in handling those cases, and so forth. Department of Justice. Inside the De- how much they impact our daily lives. When all of that was done, Miguel partment of Justice, one of the oldest So he was chosen 15 times to appear be- Estrada was unanimously voted well Cabinet positions in our Government, fore the Supreme Court. I think that is qualified, which is the highest possible one of the founding Cabinet positions, a tremendous testament to his merit, rating for the court of appeals. In fact, there is the Litigation Division. Inside his capability. he is one of the finest young lawyers in the appellate litigation section is the I will tell you something else. You America today, a man of extraordinary Solicitor General’s Office. The Solic- don’t hotdog before the Supreme Court capabilities, and I think a man who itor General has often been referred to of the United States. You have to know would be perfect for the court of ap- as the Government’s lawyer. The posi- what you are talking about. You have peals. He will be handling cases in a tion of Solicitor General has been to be disciplined and you must under- number of different aspects. These will called one of the finest lawyer jobs in stand the rulings of the Supreme be the kinds of matters he has spent the world, because the Solicitor Gen- Court, how they impact the case at his life handling, because the kinds of eral and his team get to appear before hand, and you have to argue to the Jus- cases they have here in DC are cases he the Supreme Court and represent the tices within the realm of their existing has worked with both as an Assistant United States. philosophy and the existing status of U.S. Attorney when he represented the I used to be thrilled when I could the case law as to why you think your United States of America, and at the stand in a courtroom in the Southern client should prevail or why the oppo- Solicitor General’s office, and also the District of Alabama and say: I rep- nent should not prevail. That is a great kind of appellate cases he has had in resent the United States of America. compliment to him. private practice before the Supreme The United States is ready, Your Now, for some time, our Democratic Court. I am proud of him. I have ob- Honor. colleagues have complained we did not That was a great honor for me. To be served no complaint that in any way give enough prominence to the opin- able to do that in the highest court in damages his qualities and capabilities. Miguel Estrada has support across the land and represent the United ions of the American Bar Association. the aisle from Democrats and Repub- States before the Supreme Court is a They evaluate judges. They are not any licans. He is the kind of person who premier honor for any lawyer. official body. The American Bar Asso- Miguel Estrada was chosen for that. ciation is just an institution out there ought to move forward. I remain ut- He served over 5 years in that capacity. that does legal matters and represents terly baffled about why such a fine During that time, overwhelmingly, he lawyers as a group. They evaluate nominee would be given the kind of served in the Clinton Department of these judges. So they want to do it and grief he has gotten so far, and to be Justice. During that time, every single they do it. They have every right to do held up the way he has been held up, year while he served in the Department it. I, frankly, value their opinions. I and how people say they are going to of Justice, he got the highest possible have always thought they were good. fight it for weeks, perhaps. I hope that evaluation that the Department of Jus- Some have felt they were biased a bit is not so. I hope we don’t have a fili- tice evaluators give—year after year. to the left. The positions the ABA buster. At the time the Republicans They said he was cooperative, a leader; takes at conferences consistently are had the majority in the Senate, and he inspired other lawyers to do their liberal positions, which irritates a lot when President Clinton was nomi- best. They said he followed the policies of lawyers and conservatives in the nating judges, we never had a fili- of the Department of Justice, not country. They have felt the ABA could buster. During that time, we confirmed someone running off doing independent not be trusted to evaluate judges objec- 377 of President Clinton’s nominees and things and nutty things. tively. In fact, I have noted some tend- voted only one down. Not one nominee He was a solid, committed attorney ency to be less favorable to conserv- was ever blocked in committee, and in to the Solicitor General’s Office, to the ative judges than to liberal judges, but less than 2 years we have had two ideals of the Solicitor General’s Office. I feel their contributions are valuable— nominees blocked in the committee al- He was commended in his evaluations I always have—and I continue to be- ready, when the Democrats had the for following the policies of that office. lieve they are valuable. So that was a majority. That is quite an achievement. He left complaint from our friends on the Regardless of that, this nominee there and joined the prestigious law other side of the aisle, that we ought to ought to move forward. He is the kind firm of Gibson, Dunn & Crutcher, one listen to them more. of person we need on the bench. We of the great law firms in the world, no The ABA has reviewed Miguel should celebrate the fact that an indi- doubt. He has been highly successful Estrada’s nomination. They have con- vidual of his quality, with his potential there, and the President has now nomi- ducted a thorough review of it. They to create high income in one of the fin- nated him for the court of appeals. give several different kinds of ratings. est law firms in the country, right here He has, in the course of his career, They give ratings of nonqualified, un- in one of the most prestigious practices argued 15 cases before the U.S. Su- qualified, qualified, and a well-quali- in the country, is willing to give that

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2028 CONGRESSIONAL RECORD — SENATE February 6, 2003 up for public service because he loves The Senators are exercising their We simply ask that the President nomi- his country and the principles of our rights. I do not object to them exer- nate qualified candidates with reasonable country. cising their rights, but I do ask them promptness and that the Senate act within a I think he is the kind of person we very respectfully to tell us the nature reasonable time to confirm or reject them. need on the bench, and I think it is of the test they are applying to these I cannot imagine a clearer signal to time for us to give him a vote. I am nominees so that we can know in ad- the Senate to fulfill its responsibility sure we will and, when we do, I believe vance in future circumstances which to confirm judges. President Bush has done his part in he will be confirmed. nominees will not pass their test, nominating candidates of the highest I thank the Chair and yield the floor. which nominees will fail that test. In moral integrity and legal expertise. The PRESIDING OFFICER. The Sen- order to do that, we need to know what Each of his nominees has been care- ator from Utah is recognized. that test is. Mr. BENNETT. Mr. President, I have fully selected, and each deserves a The PRESIDENT pro tempore. The been an observer of all of these debates hearing and a vote, which leads us to Senator from Kentucky. about judges because I am not a lawyer the nomination before us today. Mr. BUNNING. Mr. President, I ask and I don’t sit on the Judiciary Com- Mr. Estrada was nominated by Presi- unanimous consent that further mate- mittee, but I have been interested to dent Bush in early 2001. Although he rials be printed in the RECORD fol- note that when President Bush became did get a hearing in the Judiciary Com- the President, he announced he would lowing my remarks. mittee after well over a year, he was The PRESIDENT pro tempore. With- not allow the American Bar Associa- not granted a vote. It took almost 2 tion to, in effect, veto Presidential out objection, it is so ordered. years for him just to get his day in (See exhibit 1.) nominees. He said the Constitution court. In fact, when the 107th Congress Mr. BUNNING. I thank the Chair. doesn’t give the American Bar Associa- ended last year, 31 nominees were still Mr. President, today I rise in support tion any right to determine who should waiting in committee for a vote. We of the nomination of Miguel Estrada to be on the Federal bench and who had not even had hearings in the Judi- sit on the DC Circuit Court of Appeals. should not, and that he would not bow ciary Committee. to the American Bar Association for As has been said many times in this Twelve of the 14 pending nominees their recommendations. Chamber, Mr. Estrada is highly quali- for the court of appeals were nomi- Our friends on the Democratic side of fied to sit on this court and deserves a nated in 2001, and six of them, includ- the aisle, in the popular phrase of the fair hearing and a vote in the Senate. ing Miguel Estrada, were among the teenagers, went ballistic. They said the There are four vacancies on the DC first group of nominees submitted to American Bar Association was the gold Circuit’s 12 seats. Most lawyers con- the Senate nearly 2 years ago. standard by which everybody should be sider the DC Circuit to be the second The judicial nomination situation in judged. And Senator LEAHY, when he most important court in the United the Senate is totally unacceptable. Fif- was chairman of the Judiciary Com- States. That means the court is miss- teen of President Bush’s appellate mittee, made it very clear that even ing one-third of its judges. nominees have had to wait more than a though a recommendation from the That is alarming. The seat for which year for a hearing—not even a vote, American Bar Association is Mr. Estrada has been nominated has just a hearing. According to the Jus- extraconstitutional, he would apply been designated as a judicial emer- tice Department, 15 of President Bush’s that extraconstitutional test to every- gency by the Judicial Conference of the appellate court nominees have had to one who came up; and if they did not United States. To leave the seat empty wait over a year for a hearing. This is pass that test—extraconstitutional for any longer is unacceptable and dan- a higher total than the combined total though it is—they could not be con- gerous. that had to wait over a year for the firmed. He made that very clear. I am In Kentucky, we know a little bit past 50 years. grateful to him for his candor. I appre- about vacancies. We are part of the Almost 90 percent of the appellate ciate the fact he was open with this Sixth Circuit Court of Appeals, and court nominees made in the first 2 body and the American public that that panel has 6 vacancies right now years of the Reagan, George H. W. that particular test was being added to out of 16 total seats. That is a little Bush, and Clinton administrations the constitutional test that a nominee better from not too long ago when we were confirmed by the Senate. But in should pass. had 8 openings, but it is not much bet- the first 2 years of this administration, Now we have someone before us who ter. In all, the U.S. Courts of Appeals only 54 percent were confirmed. passes not only the constitutional test have 25 vacancies, totaling 15 percent Chief Justice Rehnquist is not exag- but the extraconstitutional test laid of the entire system. gerating when he says the status of ju- down by the Democrats. He is not only The situation is so bad the American dicial nominations threatens the very qualified—according to the American Bar Association has described it as an function of our court system and jus- Bar Association, ‘‘well qualified’’—he emergency. Fortunately, the Judiciary tice itself. was found unanimously well qualified Committee held hearings on four appel- As for Mr. Estrada, he is a fitting by the American Bar Association. Yet late court nominees recently, and one nominee to break this logjam. Mr. Senator LEAHY is leading a form of fili- of those nominees is now before the Estrada is an inspiration. He has lived buster against this nominee that gives Senate. At least we are starting to see the American dream. He will become rise to this question, which I have some progress. the first Hispanic to serve on that pres- asked on the floor before and, undoubt- Recently, Chief Justice Rehnquist de- tigious court. He is a fine example of edly, in this extended debate I will ask livered his annual report on the state the quality nominees President Bush again. I would ask Senator LEAHY, Sen- of the Federal judiciary. One of the key has sent to the Senate. ator KENNEDY, and the others: What points he emphasized was promptly Mr. Estrada came to the United additional, extraconstitutional test filling vacancies. With this nomina- States when he was 17 years old, grow- have you devised that you are applying tion, we have the opportunity to begin ing up in Honduras. He spoke little to nominees for the judiciary? You filling empty seats on the bench. English when he arrived in America, have told us the first one. You have Case filings in the Federal court sys- but that did not keep him from grad- been very up front about it and tell us tem hit a new record high last year, uating magna cum laude from Colum- what additional, extraconstitutional and I believe that trend will continue bia College and Harvard Law School. test you have determined must be this year also. The record number of He is no stranger to the appellate court passed by a nominee because there is cases in the court system, combined system. no obvious reason this nominee should with judicial vacancies, led the Chief After law school, he clerked for a be objected to; there is no obvious rea- Justice to warn Congress that proper judge at the Second Circuit Court of son every single Democrat on the Judi- functioning of the court system is in Appeals. After that, he was a clerk for ciary Committee should have voted jeopardy. The Senate cannot and must Justice Kennedy at the Supreme Court. against him and we should see the com- not allow that to happen. Mr. Estrada then served as an assistant ing of a filibuster against his nomina- In concluding his remarks on judicial U.S. attorney in New York and a dep- tion. vacancies, the Chief Justice said: uty chief of the appellate section of the

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2029 U.S. Attorney’s Office. Those jobs re- eral’s Office in 1992. He stayed with that of- to uphold the law regardless of his personal quired him to try cases in the district fice for most of the Clinton Administration. convictions. I have no doubt that Mr. courts and argue before the Second Cir- When he left that office in 1997, he joined the Estrada will be one of the most brilliant fed- Washington, D.C., office of Gibson, Dunn & eral appellate judges of our time, and I urge cuit Court of Appeals. Crutcher, where he has continued to excel as you to join me in voting to confirm him. Next, he served in the Office of the a partner. He has argued an impressive 15 Sincerely, Solicitor General during William Jef- cases before the United States Supreme ORRIN G. HATCH, ferson Clinton’s administration. Now Court, and the non-partisan American Bar Chairman. he is a partner in the Washington, DC, Association has bestowed upon him its high- law firm of Gibson, Dunn, & Crutcher. est rating of Unanimously Well Qualified. LATINO COALITION It has been said many times, but I I take the time to offer up this brief recita- FOR MIGUEL ESTRADA, think it is worth repeating, Mr. tion of Mr. Estrada’s personal and profes- Washington, DC, February 5, 2003. sional history because I think it illustrates Estrada earned the American Bar Asso- Hon. JIM BUNNING, that he is, in fact, far from the right-wing Member, U.S. Senate, ciation’s highest rating for a nominee, ideologue that some have portrayed him to Washington, DC. a ‘‘unanimously well-qualified’’ rating. be. He clerked for Judge Kearse, a Carter ap- DEAR SENATOR BUNNING: At a time of a se- He has been endorsed by a long list of pointee, then Justice Kennedy, a moderate rious judicial vacancy crisis in our country, political, business, and civil rights or- by any standard. He joined the Solicitor it is simply disingenuous that the Senate ganizations. I have yet to hear any de- General’s Office during the first Bush Ad- Democratic leadership is threatening to fili- tractors make credible arguments that ministration, but stayed on through much of buster a nominee to the U.S. Court of Ap- he is not qualified. I can see no obsta- the Clinton Administration. His supporters peals, with impeccable credentials and a include a host of well-respected Clinton Ad- cle to his being confirmed. He is sup- unanimous ‘‘well qualified’’ rating from the ministration lawyers, including Ron Klain, American Bar Association. ported by Seth Waxman, a Solicitor former Vice President Gore’s Chief of Staff; On May 9, 2001, President Bush nominated General under former President Clin- Robert Litt, head of the Criminal Division in Miguel A. Estrada to fill a vacancy on the ton, as well as the former chief legal the Reno Justice Department; Randolph United States Court of Appeals for the Dis- counsel to Vice President Gore. There Moss, former Assistant Attorney General; trict of Columbia Circuit. Mr. Estrada would is no question in my mind that Mr. and Seth Waxman, former Solicitor General be the first Hispanic in history to sit on that Estrada will make a fine judge once for President Clinton. He has defended pro court, which is widely viewed as the most important and prestigious Court of Appeals confirmed. His life story is an inspira- bono convicted criminals, including a death row inmate whom he represented before the in the nation. No wonder George Herrera, tion for minorities, and all of us, Supreme Court in an effort to overturn his President and Chief Executive Officer of the throughout America. His hard work death sentence. He has broad support from United States Hispanic Chamber of Com- and dedication is obvious. His aca- the Hispanic community, including the en- merce, concludes that ‘‘Estrada’s nomina- demic and legal achievements cannot dorsement of the League of United Latin tion can be a historic event for the Hispanic be denied. American Citizens (which is the country’s community. Latinos in this country have I urge the Senate to quickly hold a oldest Hispanic civil rights organization), worked hard to break the barriers and obsta- vote on this nomination, and I urge my the Hispanic National Bar Association, the cles that have stood in our way for too long colleagues to support Miguel Estrada. U.S. Hispanic Chamber of Commerce, the and we now have the opportunity to do so. I yield the floor. Hispanic Business Roundtable, the Latino Estrada’s appointment will also be a role Coalition, and many others. model for Latino youth by demonstrating EXHIBIT 1 Mr. Estrada has been unfairly criticized by that a Latino can be appointed to one of the U.S. SENATE, some for declining to answer questions at his highest courts in the nation.’’ He is just one Washington, DC, February 4, 2003. hearing about whether particular Supreme of the overwhelming majority of national DEAR COLLEAGUE: I write to urge you to Court cases were correctly decided. Lloyd Hispanic grassroots organizations that are support the confirmation of Miguel A. Cutler, who was White House counsel to both enthusiastically supporting his nomination, Estrada, who has been nominated for a seat President Carter and President Clinton, put not just because he is Hispanic, but because on the United States Court of Appeals for it best when he testified before a Judiciary he is superbly qualified. the District of Columbia Circuit. If he is con- Committee subcommittee in 2001. He said, Mr. Estrada is unique in another respect, firmed, he will be the first Hispanic to sit on ‘‘Candidates should decline to reply when ef- too. As his colleagues can attest, both con- this court, which is widely considered to be forts are made to find out how they would servatives and liberals alike, Mr. Estrada is the second most important court in the decide a particular case.’’ He further ex- one of the most brilliant and effective appel- country. plained, ‘‘What is most important is the ap- late lawyers in the country. Having worked Mr. Estrada represents an immigrant suc- pointment of judges who are learned in the at the Justice Department under Republican cess story. Born in Tegucigalpa, Honduras, law, who are conscientious in their work and Democratic Administrations, he has his parents divorced when he was only four ethic, and who possess what lawyers describe demonstrated a commitment to upholding years old. Mr. Estrada remained in Honduras as ‘judicial temperament.’’ ’ Mr. Estrada’s the integrity of the law and a dedication to with his father while his sister immigrated academic achievement, his professional ac- public service. During his career, he has ar- to the United States with his mother. Years complishments, and the letters of bipartisan gued fifteen cases before the Supreme later, as a teenager, Mr. Estrada joined his support we have received from his colleagues Court—all before reaching the age of 40. He mother in the United States. Although he all indicate that Mr. Estrada fits this de- richly deserves the unanimous ‘‘well quali- had taken English classes during school in scription. fied’’ rating the American Bar Association Honduras, he actually spoke very little Several opponents of Mr. Estrada have at- bestowed on him—the organization’s highest English when he immigrated. He neverthe- tempted to block his confirmation by boldly possible evaluation. less taught himself the language well enough demanding that the Department of Justice Miguel Estrada is more than just a tal- to earn a B¥ in his first college English release internal memoranda he authored ented lawyer. He represents the potential of course. In a matter of years, he not only per- while he was an Assistant to the Solicitor a growing population and what is possible in fected his English skills, but he exceeded the General. All seven living former Solicitors the United States. A native of Honduras, Mr. achievements of many persons for whom General—four Democrats and three Repub- Estrada arrived in the United States at age English is their native tongue. He graduated licans—oppose this request. Their letter to 17, unable to speak much English. Yet he with a bachelor’s degree magna cum laude the Committee explains that the open ex- graduated magna cum laude from Columbia and Phi Beta Kappa in 1983 from Columbia change of ideas upon which they relied as So- University and magna cum laude from Har- College, then received a J.D. degree magna licitors General ‘‘simply cannot take place if vard Law School, where he was an editor of cum laude in 1986 from Harvard Law School, attorneys have reasons to fear that their pri- the Harvard Law Review. He clerked for Su- where he was editor of the Harvard Law Re- vate recommendations are not private at all, preme Court Justice Anthony Kennedy—one view. but vulnerable to public disclosure.’’ They of the more moderate Republican appointees Mr. Estrada’s professional career has been concluded that ‘‘any attempt to intrude into who continues to be Estrada’s mentor. Mr. marked by one success after another. He the Office’s highly privileged deliberations Estrada’s own journey from immigrant to clerked for Second Circuit Judge Amalya would come at a cost of the Solicitor Gen- successful attorney has inspired him to de- Kearse—a Carter appointee—then Supreme eral’s ability to defend vigorously the United vote much of his career to serving his fellow Court Justice Anthony Kennedy. He worked states’ litigation interests cost that also Americans. Both in government service and as an associate at Wachtell Lipton in New would be borne by Congress itself.’’ The Wall in private practice, he has sought to ensure York—as high powered a law firm as they Street Journal and the Washington Post that all citizens receive the law’s fullest pro- come. He then worked as a federal pros- have also criticized the attempts to obtain tections and benefits, whether they are ecutor in Manhattan, rising to become dep- these memoranda. death-row inmates or abortion clinics tar- uty chief of the appellate division. In rec- These misguided efforts should not prevent geted by violent protestors. ognition of his appellate skills, he was hired our confirmation of a well-qualified nominee Never has a judicial nominee that has been by the Department of Justice Solicitor Gen- who has pledged to be fair and impartial, and voted out of the Judiciary Committee been

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2030 CONGRESSIONAL RECORD — SENATE February 6, 2003 successfully filibustered in the Senate. country, we urge the leadership of both par- Columbia and then Harvard Law Estrada’s opponents argue that he is a His- ties in the U.S. Senate to put partisan poli- School. He was on Law Review, it is panic in name only and is an ideologue. This tics aside so that Hispanics are no longer de- my understanding, at Harvard Law is absolute non-sense. nied representation in one of the most pres- School. These are truly lofty attain- Miguel Estrada is considered by all who tigious courts in the land. have worked with him to be a brilliant attor- Sincerely, ments and a demonstration of not only ney who has demonstrated the ability to set League of United Latin Americans Citi- a powerful intellect but a rigorous atti- aside any personal beliefs he may have and zens, the Hispanic National Bar Association, tude toward his studies and a commit- effectively argue cases based on the US con- the U.S. Hispanic Chamber of Commerce, the ment to excellence. stitution and the law. Perhaps the most Association for the Advancement of Mexican He clerked for the appellate court, compelling praise in support of Mr. Estrada’s Americans, The Latino Coalition, Mexican which is a high honor very rarely be- nomination has come from Democratic polit- American Grocers Association, the Hispanic stowed upon graduates of law school, ical appointees who worked with him in the Contractors Association, the Interamerican and even a more rare honor is to clerk Clinton Administration. College of Physicians & Surgeons, the Amer- Prominent Democrats including Ron ican G.I. Forum, the Federation of Mayors of for a Supreme Court Justice. He obvi- Klain, the former Chief of Staff of Vice Puerto Rico, the Casa De Sinaloense, the ously has the intellectual capability, President Gore; Seth Waxman, Clinton’s So- Cuban American National Foundation, the even at a young age; that was estab- licitor General; Robert Litt, Associate Dep- Hispanic Business Roundtable, the Cuban lished. He has gone on with a distin- uty Attorney General in the Criminal Divi- Liberty Council, the Congregacion Cristiana guished career in law, public service, sion; Drew Days III, Solicitor General; and y Misionera ‘‘Fe y Alabanza’’, the MANA, a and in the private sector. He has ar- Randolph Moss, Assistant Attorney General National Latina Organization, theNueva gued numerous cases before the Su- in the Office of Legal Counsel have all Esperanza Inc. Cuban American Voters Na- preme Court, which, frankly, standing praised Miguel Estrada for his brilliance, tional Community, the Puerto Rican Amer- compassion, fairness and respect for prece- ican Foundations up before a panel of Supreme Court dent (quotes attached). Justices is hard enough but, in all can- It would be an ironic travesty of justice for The PRESIDENT pro tempore. The dor, standing up when you have a any member of the US Senate—a body with- Senator from Pennsylvania. speech impediment has to be a thor- out a single Hispanic member—to vote Mr. SANTORUM. Mr. President, I oughly paralyzing experience. To have against Mr. Estrada with the excuse that he compliment the Senator from Ken- the courage to persuasively make argu- is a Hispanic in name only or that he does tucky for his excellent remarks. He not understand or represent the values of our ments, nonetheless, and deal with the said much of what I wanted to say, out- bench under this context is a testa- community? Under normal circumstances, lining the extraordinary qualifications this argument would be so absurd that we ment not only to his intellectual capa- would have ignored it. But under the current of Miguel Estrada. He very clearly laid bility and to the hard work he puts partisan environment, we cannot stand by out the case that there is no legitimate into his job but to the personal courage and allow Mr. Estrada’s ethnic background reason to filibuster his nomination, but and determination this man has. to be used against him. that appears to be the tactic that is So we have in this nominee someone Miguel Estrada was nominated on May 9, being contemplated and maybe even who has overcome adversity in lan- 2001. He did not receive his first hearing being engaged in by many on the other until September 26, 2002, 16 months after his guage, adversity in disability, and per- side of the aisle, certainly not all on formed at the highest levels of the nomination. Now his opponents complain the other side of the aisle. We are cer- that they have not enough time to evaluate legal profession in this country. his record and that his nomination should tainly grateful for Members who are As the Senator from Kentucky men- not be rushed to a vote. We believe that a discerning enough to understand, as tioned, he has a unanimous well-quali- nominee should not have to wait for 21 has been quoted many times—the fied rating. I am sure this has been re- months for a vote and that the Senate has Washington Post has suggested that peated many times, but the other side had plenty of opportunity to consider Miguel filibustering this nomination would be has said this is the gold standard, this Estrada’s qualifications. This same tactic unjustifiable, I think is their term, and was used to delay Richard Paez’s nomination is the stamp of approval, getting a certainly beneath the standards in the qualified rating from the American Bar for more than 4 years. It was unfair then and Senate. The standard is that we do not it is unfair now. Association. Any attorney who has argued 15 cases be- filibuster judges for the circuit courts, This was not a qualified rating. This fore the US Supreme Court has an extensive that it would be an unprecedented was not a well-qualified rating. This legal track record that can be analyzed for move to filibuster a judge. was a unanimously well-qualified rat- accuracy, quality, effectiveness and bias. In the 220-odd-year history of the ing. Yet, incredibly, Mr. Estrada’s detractors Senate, what makes this judge so So what is it? What could it possibly claim that his legal record is too skimpy for unique? And that is what it would be, be that this nominee has done in his them to make an informed decision on his it would be unique because it is the nomination. This ridiculous claim under- life to potentially warrant the first scores the opposition’s real problem . . . that first time in the history of this country ever filibuster of a circuit court judge there is nothing in Miguel Estrada’s record a filibuster would be conducted on a in the history of the Senate? What has that would lead a reasonable person to con- circuit court nominee. he done? What are the arguments on clude anything other than this nominee is an What makes this nominee so unique the other side? exceptionally well qualified, highly prin- to warrant—and I am not using this One of the arguments on the other cipled attorney, who will make a fine judge term in a pejorative sense but in a fac- side is he does not have sufficient expe- on the DC Circuit. tual context—an extreme reaction, ex- The Hispanic National Bar Association, rience. Well, I am a lawyer, and I can the League of United Latin American Citi- treme by the definition that it is the say I do not have near the experience zens (LULAC), The Latino Coalition, the first time in almost 230 years of Amer- Miguel Estrada has. I have not per- United States Hispanic Chamber of Com- ican history that this would occur, formed nearly in the arena of the law merce, the American Association for the Ad- that this would be an extreme reaction he has. His experience is abundant. vancement of Mexican Americans, MANA—a because it has never been done before. He has never been a judge. He is national Latina organization, and the Mexi- What has this nominee done, or what being nominated for a position on a can American Grocers Association are about this nominee causes such an court where there are eight judges among the many Hispanic organizations sup- overreaction, or extreme reaction, that right now. Five of the eight confirmed porting the nomination of Miguel Estrada. Miguel Estrada is a perfect example of an raises the bar to this high level? by this Senate had no prior judicial ex- American success story, who deserves an up Let’s look at this nominee. The Sen- perience. So if judicial experience was or down vote on the Senate floor. He brings ator from Kentucky noted he is intel- so important for this court, then why to the court a distinguished and extensive lectually clearly qualified. He got into do over half the members on this court legal record based on his many years of work colleges I was not able to get into, I have no prior judicial experience? One in the public and private sector. Mr. Estrada can say that. As the Senator from Ken- could make that argument, but the cup also brings unique perspective and human tucky said, he is a man who was raised the water is being held in is as empty experience understood only by those who in Honduras. English was not his first have migrated to a foreign land. as the top. It flows straight through. It It is for this cultural depth and his unique language. He was able to perform at does not hold any water. legal qualifications that on behalf of an the highest levels at some of the most He has refused to disclose his judicial overwhelming majority of Hispanics in this rigorous universities in the country, philosophy. Since when do we expect

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2031 people who are applying for judicial threaten the viability of the Solicitor would be consistent. Either minority nominations to tell us how they would General’s office if this information status does not matter or it does, and rule on future cases? That would truly were discoverable through this nomina- if it does, as they insist, it should be a be an extreme view, an unprecedented tion process. reason for them to vote for this nomi- view, for the consideration of judges in Mr. BENNETT. If I could comment nee. the Senate. We do not require people to on the question, I find it interesting for Mr. SANTORUM. I stand here, as the prejudge cases. In fact, part of the can- those who supported Janet Reno for Senator from Kentucky and the Sen- ons is one does not prejudge cases. So Attorney General and supported Presi- ator from Utah, and ask the question, to ask a judge-nominee how he would dent Clinton’s Presidential nominees in Why this nominee? The Senator may rule or what his feeling is on these that office, which nominees, after con- have—I hope he has not—may have un- matters is inappropriate and that is firmed, are saying Estrada’s notes covered what may be the underlying why most judges, if not—well, maybe should not be made public, are saying cause of this obstruction. We have some give opinions, but most nominees those nominees are wrong. passed and considered judges who, who come before the Senate for con- Mr. SANTORUM. I find that incon- through their nominating process, have firmation do not answer that question. gruous. I find, frankly, all of the argu- disclosed their conservative ideology They can talk general judicial philos- ments to be specious, at best. equal to Miguel Estrada. It is accepted ophy, but to go through and talk about What is confounding is that such an that Miguel Estrada is conservative in how they would rule on certain cases is extreme measure appears to be in the answering his questions and how he in- something that is an inappropriate offing, which is a filibuster, on such a terprets the law. It seems to be con- question, in my mind, and should not pathetically weak case against this sistent with, frankly, most if not all of be answered. nominee. President Bush’s nominees. President The other side is saying he did not So one has to step back and ask, Bush believes in commonsense judges turn over his work papers. Now, I did Why? What is going on here? Why is who take the Constitution for what it practice a little bit of law, and there is this nominee being singled out? What says and who follow the law. a privileged work product of lawyers is it about this nominee that is un- As Miguel Estrada has said in his tes- that is not available to the other side usual, that has raised the fear or the timony, he would follow the law. The in a case. Generally speaking, it is not ire of so many in this Chamber? Supreme Court says this is the law; he available for discovery. Why? Because Mr. BENNETT. Will the Senator will follow the law. That is all this when you are working on a case—hav- yield? President wants. That is all most Mem- ing worked in my capacity for a senior Mr. SANTORUM. I am happy to bers, certainly on our side, would like partner in most cases, as is the case yield. to see—which is, judges who are not here, because Miguel Estrada was an Mr. BENNETT. I recall in the last Supreme Court Judges now, because Assistant Solicitor; he was not the So- Congress where the Democratic mem- they are making more law than fol- licitor General; he was working for bers of the Judiciary Committee, and lowing law—judges on the district someone in the capacity of the Solici- particularly the Democratic leader, court and appellate courts and their re- tor’s office—you are preparing the case then majority leader, along with the sponsibility to follow the higher court. and trying to share his opinions, his then-chairman of that committee, Sen- Miguel Estrada said, without question, candid opinions about what his boss ator LEAHY, attacked Republicans for he will do so. should do. being insufficiently supportive of It is not that he will not follow His boss may make a different deci- nominees who were women or members precedent. The objection must be phi- sion, but his boss needs, as my senior of minorities. We were given quotas, if losophy. If it is philosophy, look at all partner needed, my candid opinion you will, at least the language of the nominees of this President. They about what I thought of the merits of quotas, that we should have so many are overwhelmingly almost universally our argument or the facts in the case women and so many minorities, and we more conservative than they are lib- or whatever the case may be. He need- were attacked in the strongest possible eral. I don’t know how you measure ed my candid assessment. Why? Be- language. Indeed, it came close to vio- conservatism, but certainly they are cause I understood the issue better lating Senate rules, of implying that almost all generally right around than he or she did. That work product everyone on this side of the aisle was where Miguel Estrada is as far as his was essential for coming to the deci- either sexist or racist because we did philosophy is concerned of government sionmaking with all the best informa- not support a sufficient number of mi- and of jurisprudence. Yet none of them tion that decisionmaker needed to nority nominees or female nominees. have been filibustered on the floor of make the property assessment of the Mr. SANTORUM. I suggest it went the Senate. case and to move forward. further. We were accused, if we voted So, again, you come back: What is Mr. BENNETT. Will the Senator against any minority—they would sin- different about Miguel Estrada than all yield? gle out any negative vote against any the other conservative district court Mr. SANTORUM. I am happy to minority member—it was the equiva- judges, appellate court judges, who yield. lent of having some sort of antiracial have been confirmed by the Senate? Mr. BENNETT. It is my under- agenda; that somehow we harbored ill They have been given a vote. I won’t standing that Mr. Estrada was em- feelings toward whatever particular even go to confirmed. They have just ployed during the Reno Justice Depart- race or gender happened to be the sub- been given the opportunity for a vote. ment; is that the Senator’s under- ject of that nominee. I can speak from personal experience, standing? Mr. BENNETT. The Senator’s mem- one I know very well. We had probably Mr. SANTORUM. That is correct. ory is correct. We were told if we voted the most contentious nominee to hit Mr. BENNETT. Is it not then the against any nominee who happens to be the floor the last session of Congress, a case that some of these papers the either a woman or a minority, we were, judge from Pennsylvania, Judge committee is demanding are papers indeed, guilty. Brooks Smith. He was from the west- that were submitted to a Clinton Presi- Now we have one who happens to be ern district of Pennsylvania. Judge dential appointee who acted as Solic- a minority. I do not believe nomina- Brooks Smith is a conservative judge, itor General; is that not the case? tions should be made on the basis of very much in the mainstream of ide- Mr. SANTORUM. That is correct. gender or minority status. But when ology on the court and America. But he Mr. BENNETT. So is it not true that we have a nominee based on quality, tracks more conservatively in his opin- it is a Clinton appointee, former Solic- who happens to be in a minority status, ions than those more activist in na- itor General, who is now saying it I find it disingenuous of those who ture, or more liberal. would be inappropriate for Mr. made the point of the minority status. Did they oppose him on that? No, Estrada’s material to be made public? We didn’t; they did. Those who made they found a few issues having to do Mr. SANTORUM. That is correct, in- the point of the minority status now with him being involved with a club, cluding, I believe, six other Solicitor are insisting that the minority status years ago, that excluded women. So Generals who have said it would should not be considered. I wish they they began to make this case that he

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2032 CONGRESSIONAL RECORD — SENATE February 6, 2003 was antiwoman. So that was the reason son to go to such an extreme unprece- whether or not there will be a fili- for this whole thing, even though we dented measure of filibustering an ob- buster, but that decision has not been had the local chapter of NOW in his viously competent, well-qualified— made, to my knowledge. own county come out and suggest this unanimously supported by the Amer- Let me say there are people who care is a good guy. It didn’t matter. They ican Bar Association—nominee for the a great deal about our country who op- had a hook. So they stuck the hook in. circuit court. pose this nomination. There are people But they gave him a vote. They re- I would just say this in closing. It is who care a great deal about our coun- ported him out of committee and we my intention as a Senator to see this try who favor this nomination. That is gave him a vote on the Senate floor nominee through to a vote. I think this the reason our Founding Fathers estab- and he passed with 60-plus votes here nominee deserves a vote. There has lished the Senate of the United States. on the floor of the Senate. been no reason, no legitimate judicial We do not live in a dictatorship. I know Judge Smith well and have reason why this nominee should not be President Bush is President Bush, not tremendous respect for him. But I sug- given an opportunity to be voted on. So King George. He knows that, I hope, gest Judge Smith and Miguel Estrada, I will make this statement. It is this and I am confident he does. when it comes to judicial philosophy, Senator’s intention to do everything I Take, for example, the New York are pretty much two peas in a pod. It’s can do to keep the Senate on this issue Times which said, among other things: pretty hard to tell the difference be- for as long as it takes for a vote to The Senate Judiciary Committee is sched- occur. uled to vote tomorrow on Miguel Estrada, a tween how they would approach the nominee to the D.C. Circuit Court of Ap- issues. Judge Smith got a vote, even When I say ‘‘as long as it takes,’’ let me underscore what I mean: As long as peals. Mr. Estrada comes with a scant paper though, arguably—even though I think trail but a reputation for taking extreme po- it was a red herring—he had some it takes. sitions on important legal questions. He other issue out there that could have If the other side likes to stand up and stonewalled when he was asked at his con- been used to discolor or discredit him. criticize Miguel Estrada and wants to firmation hearings last fall to address con- What issue does Miguel Estrada have filibuster his nomination, let me assure cerns about his views. Given these concerns, that could potentially disqualify him? you, we will provide you plenty of op- and given the thinness of the record he and portunity and time to do that if that is his sponsors in the administration have cho- What has he done in his legal career sen to make available, the Senate should that could be used against him? I have what you want to do. If you want to make the next days, weeks, months, vote to reject his nomination. not heard anything that, through his Mr. President, this is the New York experience or education or actions, has years an opportunity to talk about Judge Estrada’s qualifications for this Times. It is a newspaper that has cir- disqualified him from this position. I job, it is this Senator’s intention to culation not in the tens of thousands or haven’t heard of any clubs he belonged give you the opportunity to do that. He hundreds of thousands but in the mil- to. He is a minority, so it’s hard to be- deserves, through his outstanding lions. long to a club that excluded minorities, record of accomplishment, overcoming Among other things, this editorial if he was one, so we can’t run into that language, disability, and prejudice states: problem. heretofore and potentially now, to get Mr. Estrada has put few of his views in the Maybe that is the problem. Maybe this vote. public record. One way to begin to fill this that is the problem, that we have I yield the floor. gap, and give the Senate something to work with, would be to make available the numer- someone who is a conservative and a The PRESIDING OFFICER (Mr. GRA- minority. Is that the combination that ous memorandums of law that Mr. Estrada HAM of South Carolina). The Senator wrote when he worked for the solicitor gen- is lethal? from Nevada. Mr. BENNETT. Will the Senator eral’s office, as other nominees have done. Mr. REID. Mr. President, because of But the White House has refused senators’ yield? the statements made by my friends on reasonable requests to review these docu- Mr. SANTORUM. I am happy to the other side of the aisle relative to ments. yield. Mr. Estrada, I would like to take a few Mr. Estrada, now a lawyer in Washington, Mr. BENNETT. As the Senator from minutes and rebut some of what they also had an opportunity to elaborate on his Pennsylvania seeks to find a reason for have stated during today’s session of views, and assuage senators’ concerns, at his confirmation hearing, but he failed to do so. opposing Mr. Miguel Estrada, I suggest the Senate. to him one that comes out of yester- When asked his opinion about important It is true there is a conflict in our legal questions, he dodged. Asked his views day’s editorial in the Washington Post, country as to whether or not he should of Roe v. Wade, the landmark abortion case, as the Washington Post points out that be approved by the Senate. We have Mr. Estrada responded implausibly that he Mr. Estrada did not cooperate with the newspapers saying yes, newspapers say- had not given enough thought to the ques- Democrats in producing a case against ing no. My friend from Pennsylvania, tion. Mr. Estrada’s case is particularly trou- him. Then it says, the junior Senator from Pennsylvania, bling because the administration has more Because it stems from his own and the ad- who stated he could not understand information about his views, in the form of ministration’s discourteous refusal to arm his solicitor general memos, but is refusing why there was a filibuster, first has to to share it with the Senate. Democrats with examples of the extremism understand there has never been a Finally, the article says: that would justify their opposition, they are statement on the floor to the effect opposed to him. there is a filibuster. A decision has not The very absence of a paper trail on mat- The editorial concludes: ters like abortion and civil liberties may be been made by the leadership on this one reason the administration chose him. It Such circular logic should not stall Mr. side as to whether or not there will be is also a compelling—indeed necessary—rea- Estrada’s confirmation any longer. a filibuster. But let me just say I think son to reject him. I agree with the Washington Post in something as controversial as this It is not as if the objection to this this circumstance. It may be they were nomination should have some consider- man is out of nowhere. We have edi- hoping he would be cooperative enough ation. torials and newspapers that are trans- to give them something to use against We just started this process at 2:45 mitted to millions of people every day him and when he refused to do that, p.m. yesterday. There was good debate that take the position this man and indeed his background says there on Wednesday. We had a memorial shouldn’t be confirmed as a circuit is nothing in there he could have given service for the Columbia this week in court judge. We can’t discount those them, in anger they decided to turn Houston. We had another one this opinions, or think there are some left- against him. morning. Many Senators attended the wing kooks who have decided for rea- As the Senator looks for some reason two services. There is no session this sons which are not substantive not to why they are opposed to him, maybe afternoon or Friday because of the ma- go with this man. they are just disappointed over the fact jority being engaged in a retreat. There I would also say that there have been he passed? is nothing wrong with having a retreat. a number of Senators talking about Mr. SANTORUM. I know when you We are going to have one in May. We how unusual it is—how unusual it is— try to bully someone into doing some- will have to take some time off. that we are talking about a judge’s thing and they don’t do it, it can be But we should not rush to judgment. qualifications. I think if there is any- pretty frustrating. But that is no rea- There will be a decision made as to thing in the extreme, all we need to do

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2033 is look at the newspaper of today—the ranking member or their designees, ers who wish to have the opportunity Roll Call: ‘‘GOP Calls on K Street to and that following the conclusion of to speak. And certainly to cut off de- Boost Estrada.’’ that time, the Senate proceed to a vote bate prior to the time they have had What this is all about is getting the on the confirmation of the nomination, that occasion, especially with a nomi- lobbyists involved—to put pressure on with no intervening action or debate. nation of this import, would be unwise. Senators to move forward on this nom- Mr. DASCHLE. Mr. President, I ob- But there is no filibuster as we speak. ination and approve him. This Roll Call ject. Mr. FRIST. Mr. President, I very story documents special interests being The PRESIDING OFFICER. Objec- much appreciate the comments made told by members of the Republican tion is heard. by the assistant Democratic leader and leadership that they have a stake in Mr. FRIST. Given the objection, Mr. the Democratic leader on the impor- this nomination process. President, I ask my colleagues on the tance of this nomination and the im- I think if there is anything untoward, other side of the aisle if they need addi- portance of having adequate time for it is the pressure being put on these tional time, which I assume they do? debate and discussion, in part because people. And if so, would they be willing for me this is the first judge to come through I also note that one of the Senators to modify the request to 8 hours or 10 in this Congress, and it is important in the majority complained today hours or 12 hours? that it be handled well and it be han- about vacancies in the Federal court The PRESIDING OFFICER. The dled fairly and it be handled in a coop- system. We are talking about the D.C. Democratic leader. erative spirit, which has been dem- Court of Appeals. We Democrats tried Mr. DASCHLE. Mr. President, I onstrated over the last 2 days. to fill those. We were not allowed to do would be happy to respond to the dis- The reason for extending the unani- so. Why? Among other reasons, we were tinguished Republican leader, the ma- mous consent request for Monday, told by the majority that the D.C. jority leader. As he knows, we began which was objected to—I do want to Court of Appeals was too big and the this debate yesterday afternoon. We state very clearly we need to have peo- people we wanted to put on would be had a good debate yesterday, I think, ple on the floor talking and debating just unnecessary baggage; that it for 3 or 4 hours. I thought it was a con- and discussing as much as possible for wasn’t necessary to fill those vacan- structive debate. the times that are made available. I cies. There are strong feelings on both will shortly announce we will come What our friend on the other side of sides of the aisle with regard to this back Monday. I would hope we could go the aisle complained about was OK, but nomination. I think our colleagues, of through Monday and Monday evening, he failed to explain that the vacancies course, would have been prepared to if necessary, and use that time effec- on the two courts he mentioned—the continue the debate this week, and, for tively so we do have adequate discus- D.C. Court of Appeals and the Sixth good reason, we are unable to do that sion and debate. Circuit—were caused by the Repub- because of the Republican conference. This is an important nomination. licans’ failure to act, or their success Our conference is later on this spring. There has been good debate to date. I in blocking nominees to the DC court. Theirs is now. That precludes our op- encourage all of our colleagues to take Allen Snyder, who was a nominee portunity to continue the debate. But advantage of the opportunity we are voted qualified by the ABA, was never clearly, very few Senators have had a making available. We will extend the given a hearing, and never had a com- chance to be heard. Few Senators have hours, starting earlier and going later, mittee vote for a seat on the District of had the occasion to look more care- in order to make sure people do have Columbia Circuit. fully at these facts. that ample opportunity. Elena Kagan, a well-respected law We cannot prescribe a particular In terms of the allegations of a fili- professor, was never given a hearing time, at least at this point. We will buster—and certainly even the use of and was never given a committee vote continue to discuss this matter with the term yet—individual Senators can for her nomination to the District of our colleagues, and I will be in touch express themselves, but I think it does Columbia Circuit Court. with the distinguished Republican show the desire to have good debate, On the Sixth Circuit, Kathleen leader at a later date. But clearly this useful debate, to have the points made McCree Lewis—I am only giving you nomination deserves careful consider- on both sides of the aisle, and then to examples—waited for more than a year, ation, with ample time for debate. allow an up-or-down vote on this nomi- was never given a hearing, and was I would hope colleagues on both sides nee. I think we are on course for that. never given a committee vote on the of the aisle could be afforded their I would appreciate, in the early part of Sixth Circuit. chance to speak to this nomination. It next week—after checking with your Kent Markus—no hearing and no is a controversial nomination and, side of the aisle; and I will do like- vote; Helene White waited 4 years—no therefore, requires perhaps more time wise—for us to try to get some sort of hearing and no vote. than others. So for that reason, I ob- time certain so we can further plan the We have said here—Senator DASCHLE ject. business of the Senate. when he was majority leader and I have I, of course, would not be able to say Mr. REID. Mr. President, can I ask said—that this isn’t get even time for how much additional time we would re- the distinguished majority leader a when we were in the majority. We tried quire, but certainly some time next couple questions? to treat the minority then as we want- week will be required. Mr. FRIST. Yes. ed to be treated when we were in the Mr. REID. Will the majority leader Mr. REID. First question. I believe minority. We expect to be treated as yield so I can ask a question of the you will announce it later. Do you ex- we treated the minority when we were Democratic leader? pect any votes on Monday? in the majority for approximately 18 Mr. FRIST. I am happy to yield, Mr. Mr. FRIST. Yes. We will have votes months. That is what we are asking. President. on Monday. Mr. President, the majority leader is Mr. REID. I say to the distinguished Mr. REID. Second question: Let’s say on the floor. I would be happy to yield Senator from South Dakota, there has there is something worked out and we to the majority leader and then would been talk here by the majority that have a vote on this on Tuesday. What retain the floor when the majority there is a filibuster taking place. I are we going to take up after that? leader completes his statement. said, just a few minutes ago, unless I Mr. FRIST. We will have other judges The PRESIDING OFFICER. Without missed something you said, there has we will go to, and there are a number objection, the majority leader is recog- been no decision made from you as to of bills that are being considered. nized. whether or not there is going to be a There is a children’s bill that is related Mr. FRIST. Mr. President, I ask filibuster. Is that a fair statement? to pornography we will be taking up at unanimous consent that on Monday Mr. DASCHLE. I say to the Senator some point. There are other bills that there be an additional 6 hours for de- from Nevada, that is correct. As I said, have come through. There is an bate on the Estrada nomination; pro- I think I recall there were only three antitheft bill that is being considered vided further that the time be equally or four Senators who were able to right now we might be able to take up divided between the chairman and speak yesterday. There are many oth- on Monday.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2034 CONGRESSIONAL RECORD — SENATE February 6, 2003 Mr. REID. Those bills have been re- Mr. DASCHLE. Reserving the right On Tuesday, former Assistant Sec- ported out of committee? to object, I know Senator BIDEN had retary of Defense and Korea expert Mr. FRIST. The military tax bill has hoped to be heard. Ashton Carter called these events ‘‘a been reported out. We have the Moscow Mr. FRIST. Mr. President, if the huge foreign policy defeat for the treaty, which is very important, that Democratic leader will hold it for just United States and a setback for dec- we passed through the Foreign Rela- one second, we will allow plenty of op- ades of U.S. non-proliferation policy.’’ tions Committee. We would like to ad- portunity. Be thinking of the time that He is right. But it is potentially even dress that as soon as possible. There you need. worse. North Korea could have six to are other pieces of legislation that are The PRESIDING OFFICER. Without eight additional nuclear weapons be- being looked at now. So we do have a objection, it is so ordered. fore autumn. number of items we can go to. f And we know, when it comes to nu- Mr. REID. One final question, Mr. THE ONGOING CRISIS IN NORTH clear weapons—it only takes one. Re- President: What time do you expect the KOREA member, everything North Korea vote to be on Monday? We have people makes, North Korea sells. on our side, and I am sure on your side, Mr. DASCHLE. Mr. President, I com- Those scuds we intercepted on a ship who are interested in that. mend the Secretary of State for the to Yemen—and then inexplicably re- Mr. FRIST. Approximately 5 o’clock. strong presentation to the United Na- turned—weren’t a gift. They were an Mr. REID. I would just say, if we tions Security Council that he made example of business as usual from what could make that 5:15, it helps one of yesterday. He confirmed what many of even this administration has acknowl- our Senators. us already knew—that Saddam Hussein edged is the world’s worst proliferator. Mr. DASCHLE. Mr. President, I is a threat who has, once again, failed As alarming as this information is, thank the distinguished assistant to live up to his commitments to the the administration’s reaction is even Democratic leader. I know that our Re- international community. more troubling. The President said in publican colleagues are hoping to ad- And he did it at a place many of us the State of the Union: had been pressing him and the adminis- journ shortly so they can accommodate the gravest danger in the war on terror . . . their schedule. I want to respect that, tration to do it—at the United Nations. is outlaw regimes that seek and possess nu- but I know Senator BIDEN also wanted I hope that President Bush will use clear, chemical, and biological weapons. Secretary Powell’s presentation to to come to the floor for some brief re- As the chronology of events I de- build a broad international coalition to marks with regard to North Korea, tailed above indicates, the administra- confront Iraq. Our national security is which is why I originally came to the tion knew about North Korea’s plans floor. better served if he does. But, as the world’s attention was fo- on enriching uranium as early as No- I wish to comment for a moment and vember 2001, and yet it has said little, thank the distinguished Senator from cused on Secretary Powell and his pres- entation, an even more ominous devel- and done less, to stop these plans. Nevada for his comments on the We have heard the administration— opment regarding weapons of mass de- Estrada nomination. I think it may ar- through leaks in the press from struction was taking place in North guably be the most serious of all nomi- unnamed sources—suggest that we can- nations which has been presented to Korea. Yesterday, North Korea announced not focus on North Korea because it the Senate by this administration—the will distract attention from Iraq. seriousness of knowing so little with so that it had flipped the switch and re- started a power plant that can be used And we have even heard—and this is little information having been pro- on the record—that some in the admin- vided, and with so significant a level of to produce plutonium for nuclear weap- ons. istration believe that North Korea’s ex- intransigency with regard to a willing- pansion of its nuclear arsenal is not ness to provide the information we This is but the latest in a series of aggressive steps North Korea has taken even necessarily a problem. seek. We have a constitutional obliga- Proliferators with nuclear weapons tion to advise and consent. to kick into gear its programs to de- velop weapons of mass destruction and are a problem—a serious one. And our For the life of me, I don’t understand attention should be focused on all the how anybody could be called upon to the means to deliver them—steps that our intelligence community believes threats we face. It is well past time vote on the qualifications of this or that the administration develop a clear any other individual with so little in- indicate that Iraq is months, if not years, away from being able to take. policy on North Korea. formation provided, and with the arro- Earlier this week, an administration gance demonstrated by this nominee At the U.N., Colin Powell talked about the potential that Iraq may official testified before the Senate that and in this case by the administration we will have to talk directly to the with regard to our right to that infor- build a missile that could travel 1,200 kilometers. In 1998, North Korea fired a North Koreans. But he went on to say mation. that the administration had not I am very troubled. I know when you multi-stage rocket over Japan, proving they are capable of hitting one of reached out to the North Koreans to look at the array of Hispanic organiza- schedule talks and did not know when tions that have now publicly declared America’s closest allies—and soon, America itself. that might happen. their opposition to a Hispanic nominee, In the State of the Union, the Presi- you get some appreciation of the depth In November 2001, intelligence ana- lysts presented a report to senior ad- dent stated that the United States is of feeling about this issue, about this ‘‘working with the countries of the re- candidate, about his qualifications, and ministration officials that concluded North Korea had begun construction of gion . . . to find a peaceful solution.’’ about the stakes as we consider filling All indications, however, suggest that a position in the second highest court a plant to enrich uranium for use in nuclear weapons. the countries in the region appear to be in the land. taking a course directly at odds with I will have a lot more to say about In October 2002, North Korea in- the administration’s latest pronounce- this next week. formed visiting U.S. officials that it had a covert nuclear weapons program. ments. f In December 2002, North Korea North Korea is a grave threat that LEGISLATIVE SESSION turned off cameras that were being seems to grow with each day that used to ensure that 8,000 spent nuclear passes without high-level U.S. engage- fuel rods were not being converted into ment. It is one the President must re- MORNING BUSINESS weapons-grade material. double his efforts to confront. Mr. FRIST. Mr. President, I ask Days later, North Korea kicked out The President should stop unanimous consent that the Senate an international team of weapons in- downplaying this threat, start paying now return to legislative session and spectors. more attention to it, and immediately proceed to a period for morning busi- And, within the past week, the ad- engage the North Koreans in direct ness. ministration confirmed that North talks. The PRESIDING OFFICER. Is there Korea has begun moving these fuel rods Secretary Powell was very effective objection? to an undisclosed location. in outlining the threats Iraq poses. But

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2035 we need a comprehensive strategy to running gasoline through the carbu- Our top supplier of oil is Saudi Ara- effectively deal with ‘‘all’’ the threats retors of our vehicles, it is time for our bia. That is not exactly describing a re- we face. country to think in different ways, gion of stability. Saudi Arabia is our Given the stakes of this situation about how can technology change our top supplier. And then you have Mex- and the ongoing confusion about the energy future. I would like to talk a bit ico, Canada, Venezuela, Nigeria, Iraq, President’s and the administration’s about that. Angola, Norway, Colombia. Mr. Presi- policy, we should expect no less. Again, let me say that I credit the dent, 3.4 million barrels are imported f President for talking about it in his into this country from these countries. State of the Union Address. I think And you understand—everyone under- ENERGY POLICY this is a step forward on the part of the stands—that Venezuela is in trouble. Mr. DORGAN. Mr. President, midday administration—a baby step to be There is enormous turmoil in the coun- today President Bush is going to give a sure—but an important step. try of Venezuela. Saudi Arabia, Iraq— speech here in Washington, DC, on the Mr. President, $1.2 billion is what the these are areas of the world where subject of the development of fuel cell President announced last week and is there is not great stability. vehicles and moving to a hydrogen talking about today. That is not all It makes no sense to continue along, economy. new money. In fact, the majority of it merrily whistling our way into the fu- I was glad to hear the President ex- is not new money. So it is a timid, ture, believing that our country will be press support for the concept of hydro- small step forward, but, nonetheless, a just fine even as our economy is so de- gen and fuel cells in his State of the step in the right direction, for which I pendent on sources of oil from outside Union Address. After his speech, I gave give this President credit. our borders. him credit for discussing that with the Let me talk a bit about why we need One-third of our oil comes from the American people. to take strong action. I have in the Middle East. Iraq is the sixth largest Since last year, I have made a num- Chamber a chart that shows oil con- supplier of oil; Venezuela is the fourth; ber of presentations on the Senate sumption—in millions of barrels per Angola and Colombia, the seventh and floor about fuel cells. Today, I would day. This shows total demand, and you ninth—both countries are also plagued like to share with my colleagues my see the line going up, up, up, and up. It with difficulties. thoughts about the development of a also shows transportation demand, and Hydrogen fuels offer a way out. The hydrogen economy and the use of fuel that growth in transportation demand supply of hydrogen is inexhaustible. It cells in our future. is the bulk of the growth in energy is everywhere. It is in water. The issue I have told all my colleagues pre- needs and energy usage in our country. of hydrogen fuels is an interesting one. viously that my first vehicle when I As you can see from the chart, shown The notion of using hydrogen and the was a kid was an antique car I pur- here is domestic production. Domestic development of fuel cells is not new. In chased for $25. It was a 1924 Model T production does not come close to fact, a man named William Robert Ford. I am sure people are tired of meeting the demand that exists in our Grove was one of those larger-than-life hearing me talk about it. I was 16 years country. So what do we do to meet the characters who in the 19th century old, and I was the owner of an antique difference? What we do is we import oil could do almost anything. He studied 1924 Model T Ford. I restored it. It took from other parts of the world. law at Oxford, became a barrister and a me a year and a half to 2 years to do The issue of energy security is a sig- judge. In his spare time, he was also a that. I lovingly restored this old Model nificant issue for all of us. The White professor of physics. He ran into a T. Then I sold it. I discovered, later in House issued a press release on that patch of ill health and had his legal ca- high school, that I wanted to date, and subject in connection with its hydro- reer interrupted, so he turned to a Model T was not exactly a modern gen proposal, noting the gap between science to occupy his time, and he de- way to date. our projected demand for oil and our veloped what he called a gas voltaic The point of the story is, when I was domestic supply. And that gap is going battery, the forerunner of modern fuel a kid I put gasoline in a Model T to increase, not decrease—even if we cells. Ford—a 1924 Model T Ford—the same would drill in ANWR, which I do not He based his experiment on the no- way you put gasoline in a 2003 Ford. think this Congress will decide to do. tion that sending an electric current Nothing has changed in three-quarters This is what the White House had to through water splits water into oxygen of a century. You pull up to a pump. say in proposing development of fuel and hydrogen. He figured if you could You pull the hose and put the nozzle in cells: reverse the reaction, combining hydro- the tank and pump gas. The core tech- America’s energy security is threatened by gen and oxygen, you can produce elec- nology has not changed. our dependence on foreign oil. tricity and water. In effect, he burned Over the years, however, our depend- Absolutely. There is no question the hydrogen to produce electricity. ence on a foreign source of that petro- about that. Hydrogen can be derived from all leum has worsened, and become very America imports 55 percent of the oil it sorts of energy sources. You take the dangerous for our economy. consumes; that is expected to grow to 68 per- hydrogen from water and use it to Yesterday, the Secretary of State cent by the year 2025. Nearly all of our cars move through a fuel cell and use it to made a presentation at the United Na- and trucks run on gasoline. They are the power an automobile and out the back tions about the country of Iraq. Frank- main reason America imports so much oil. tailpipe, you get water vapor. What a ly, Iraq produces a lot of oil. So do Two-thirds of the 20 million barrels of oil wonderful thing. other countries in that region. Americans use each day is used for transpor- This is a picture of a Daimler-Chrys- It is a very troubled region. Yet our tation. ler fuel cell vehicle that in June of last economy is dependent on foreign The President went on to say: year went from San Francisco to Wash- sources of energy, much of it from that Fuel cell vehicles offer the best hope of ington, DC. This technology exists. It region. Is that something that makes dramatically reducing our dependence on is being perfected. sense for us, for the American econ- foreign oil. The next chart shows a Ford fuel cell omy, for the American people? The an- If tonight, God forbid, a network of vehicle ready for production, a proto- swer is no. terrorists interrupted the supply of im- type, in autumn 2002. This is not a fu- By talking about a technological ported oil to this country, tomorrow turistic technology; there are fuel cell change to a hydrogen economy and to morning this economy would be in des- cars on the road today. I have driven a the use of fuel cells, I am not sug- perate, desperate trouble. That is the fuel cell car out in front of the Capitol gesting we should not and will not jeopardy we have in this country with Building, a car that is run by batteries mine for coal, drill for oil and natural our dependence—overdependence—on powered by a fuel cell, that is using hy- gas. I believe we will continue to use foreign sources of energy. drogen as a fuel source. fossil fuel in our economy for a long Let me describe where this depend- The challenge is to make this tech- while. And I believe we need to do that. ence resides. And one can make one’s nology cost effective. I have been meet- But we also need to understand that own judgment about the stability of it ing with the CEOs and representatives it is time to change. After a century of all. of companies, Shell Hydrogen,

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2036 CONGRESSIONAL RECORD — SENATE February 6, 2003 Methenex, UTC Fuel Cells, Union of We need an Apollo-type project—not Is $6.5 billion a significant invest- Concerned Scientists, Siemens Wes- timid, not baby steps, bold, big steps— ment? Absolutely. But over 10 years, tinghouse, just to name a few, to get that says: Here is our goal. Here is my plan would cost an amount equal to their ideas. A broad coalition of inter- what our country intends to do, and less than 1 percent of the President’s ests is coming together because they here is how. proposed $675 billion tax cut. recognize the promise of a hydrogen The President has proposed $1.2 bil- Now, in our debate over energy, there technology, going to a hydrogen econ- lion over 5 years for this fuel cell ini- will be discussion about where we omy using fuel cells in our future. tiative. About $700 million at most is should drill for oil. As I said before, my I mentioned a Ford Focus fuel cell new spending. And his proposal has State produces oil, coal, and natural car. Here is a picture of Ford Focus substantial redirection of funds from a gas. I believe we are going to continue fuel cell car that is being filled at a hy- range of other technologies we also to do that, and we should. But if our drogen fuel station. If we were to con- need to be developing: solar energy, strategy in energy is only to dig and wind energy, biomass, and the other re- vert the automobile fleet to fuel cells, drill, then our strategy should be newable and limitless sources of energy what would we have to do? We would called ‘‘yesterday forever.’’ And that is that exist. We need to continue to fund have to build vehicles with fuel cells. not going to solve the problem of de- the research that is so important on We would have to find a reliable supply pendence on foreign oil. of hydrogen, determine how we will get those limitless sources. In 2000, the president of Shell Oil at- the hydrogen, and then we have to have This initiative—one the President tended the World Petroleum Congress, the infrastructure, fueling infrastruc- supports, one I credit him for sup- and this is what he said: ture and stations and technology to porting—in my judgment deserves a make this a commercial reality. That strong financial commitment and ag- If the world thinks that carbon dioxide is one of the issues we have to deal gressive and strong goals to be set. It emissions should be reduced, I see this as an with. should not come at the expense of re- opportunity. The stone age didn’t end be- Fuel cell cars don’t have to be lim- search into other renewable sources of cause they ran out of stones, but as a result ited in size to a Ford Focus. For exam- energy. of competition from the bronze tools which better meet people’s needs. I feel there is ple, Nissan has another fuel cell proto- The Europeans are investing big in hydrogen. As discussed in a New York something in the air. People are ready to say type car—we are seeing more and more this is something we should do. companies involved in this—the Nissan Times article in October, the European Xterra, fueled by compressed hydrogen, Commission has committed $2 billion You know, that is what our charge is tested on California roads in the year over 5 years. They want to have a hy- at this point—to think ahead. We 2000. drogen economy. The Japanese are bet- should not develop a policy and debate General Motors now has an innova- ting big on hydrogen, as discussed in a a policy that is simply ‘‘yesterday for- tive prototype called the Hy-wire. This Business Week article. The Business ever,’’ and not to ignore the needs of particular car has a detachable exte- Week article says that: those that produce coal, natural gas, rior so you can buy multiple exteriors Tokyo’s fuel cell initiative has all the hall- and oil. We need to work with industry marks of a farsighted strategy and calls to leaders to make them part of the solu- with one chassis so you can switch be- mind Tokyo’s blossoming success in hybrids. tween an SUV or sedan. It has no steer- tion, part of the answer, part of the Americans are snapping up these fuel-effi- cutting-edge change that will lead us ing wheel or pedal. It is operated with cient, environmentally friendly cars. Fuel a joystick. This is a fuel-cell-powered cells could turn out to be a bigger, more im- to a hydrogen-based economy, with vehicle. portant chapter in the same book. fuel cells powering not only stationary To make this vision a reality, the I propose legislation that is bold. It engines, but especially that part of our private sector is going to need public is an Apollo-type project that says: energy usage that is growing so rap- investment. You might ask, why is Let’s set bold goals, $6.5 billion in a 10- idly, transportation. that the case? Virtually all of the new year program for hydrogen fuel cell re- I started by talking about my old technologies, the pole vaulting to new search, development, and infrastruc- Model T that I bought as a young boy. technologies, requires Federal involve- ture. I have been working with a num- I am hoping that in years to come, ment, requires governmental involve- ber of industry leaders in natural gas, someone walking into a showroom to ment. People these days forget, when oil, energy, methanol renewables, and buy a new car will be able to buy a they go on their computers and on to fuel cell industries. Interestingly really ‘‘new’’ vehicle, powered by fuel the Internet, they don’t remember that enough, the very companies that are cells, a vehicle that is part of a new hy- the Internet exists because the Govern- now involved in the development of oil drogen-based economy, one that can ment developed a project to create the and natural gas and electricity are the move this country into the future, Internet. Otherwise, the Internet would companies that are going to be in- strengthen its economy, and rescue us not exist. That was a government cre- volved in this technology. They are the from dependence on a supply of oil ation that then became privatized, de- ones on the leading edge, involved in from such enormously troubled parts of mocratized, and is now a ubiquitous cutting-edge technology with respect our world. presence all around the world. to a hydrogen economy. Will Rogers used to say: If we are going to change the basic This initiative will not displace cur- construct of our vehicle fleet—and yes, rent energy firms. They will be very When there is no place left to spit, you ei- stationary engines and other ap- actively involved in the creation and ther have to swallow your tobacco juice or change with the times. proaches to the use of power as well— development of this new future. but especially with respect to vehicles, What I propose is a substantial boost On energy, there is ‘‘no place left to because of what I described with the in- over what the President is proposing to spit,’’ in the vernacular. We have to creased use of oil in our transportation date, saying it is the right direction, change. We need to move beyond the fleet, the only way that will happen is but it is many steps short. Let’s do this same tired debate of where are we if we do what we have done in other and do it boldly. We need to fund infra- going to dig and drill. Let’s work with major technological challenges: We structure, fund research, and set goals. those that produce fossil fuels and say need to think big. We need to be bold. R&D funding, pilot projects, yes, tax you are valuable to this country and to When we decided we were going to ex- incentives for consumers who buy fuel our economy and will always be. Let’s plore space, President John F. Kennedy cell vehicles, all of that is necessary. work with them to say you will also be said, we will put a man on the Moon, But it needs to be broad, bold, new the pioneers in the development of a and he set a time deadline. America is money, not reprogrammed money, hydrogen economy, developing fuel going to put a man on the Moon. something that catches the imagina- cells for our future. We can do that. We need an Apollo-type project with tion of the American people that we This President says, let’s move in that respect to the development of a hydro- can make a change and decide our direction. I say, absolutely, good for gen-based economy and the use of fuel country will not be held hostage by oil you. But I say let’s do more than just cells, especially in our transportation coming from unstable regions of the move. Let’s be bold, establish a na- fleet. world. tional goal, and make this happen.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2037 ASBESTOS IN ATTIC INSULATION by exposure to asbestos-tainted I am glad that EPA has taken aggres- Mrs. MURRAY. Mr. President, I rise vermiculite, and hundreds more people sive steps to protect people in that today to share a story with my col- from the town are sick. small Montana town. leagues. It’s a true story about a fam- When inhaled, asbestos can cause Senator BAUCUS deserves tremendous ily who happened to live in a neighbor- deadly diseases, from asbestosis to credit for the work he has done to hood in Spokane, WA. They could have mesothelioma, a deadly cancer of the bring Federal resources to Montana to easily been in Memphis or Minneapolis lining of the lung that is almost always help people in Libby. or Midland as well. But they lived in fatal. In fact, mesothelioma kills at And EPA deserves credit for doing my State, in Spokane, a typical Amer- least 2,000 people each year and is the right thing, and going in to remove ican city in Eastern Washington. caused only by asbestos. the insulation from Libby. The diseases induced by exposure to Mr. President, as part of realizing But what about the rest of the coun- asbestos result in horrible deaths and their American dream, Ralph Busch try? What about the millions of other they are nearly always fatal. Treat- and his wife Donna bought a house. homes with Zonolite insulation? ment is harsh and debilitating. Since EPA decided to help Libby, the They were newlyweds, and this was the These diseases can take years to agency anticipated the logical follow- home they bought after getting mar- strike. The late Congressman Bruce up question of what about the millions ried. They soon discovered that it need- Vento and the father of the modern of homes nationwide that contain the ed roof repairs, and so Ralph spent Navy, Admiral Elmo Zumwalt both same Zonolite insulation as homes in quite a bit of time in the attic, work- died from asbestos they had been ex- Libby. ing on his roof. posed to years earlier. According to the St. Louis Post-Dis- The following year they found they The asbestos-tainted insulation man- patch, the EPA had drafted news re- had to renovate an addition that was ufactured by the W.R. Grace Company leases, and drawn up lists of public offi- put on the house in the 1950s. was used in homes throughout the cials to notify. The agency was pre- They both had full-time jobs, so they country for decades. paring to embark on an outreach and spent many nights and weekends work- Vermiculite from Libby first started education campaign to let people know ing on their home. They knocked down being sold commercially in 1921, and about this hazard in their homes. walls and tore through the old insula- W.R. Grace bought the mine in 1963. But what stopped EPA from fol- tion, drywall and wood. They sanded Reviews of invoices indicate that more lowing through with its warning? and hammered and spent two entire than 6 million tons of Libby ore was It may have been the same person or years fixing up the place. shipped to hundreds of sites nationwide people who blocked another govern- One morning, Ralph was reading the for processing over the decades. ment health agency from warning newspaper. Just by chance, he came This chart behind me shows more workers about asbestos exposure. across a story about a company that than 300 sites across the Nation, where Last April, the National Institute for manufactured a household insulation ore was processed, in many cases to Occupational Safety and Health— called Zonolite. This insulation, he make Zonolite insulation. NIOSH—was preparing to release new read, was tainted with deadly asbestos. In internal memos and e-mails, the guidance for workers who come into Ralph suddenly realized that Environmental Protection Agency has contact with insulation in the course Zonolite was in his home. estimated that as many as 35 million of their daily work. Ralph Busch was stunned as it homes, schools and businesses may NIOSH was preparing to alert work- dawned on him. He had just spent two still contain this insulation. Moreover, ers, such as electricians, plumbers and years in his own home handling W.R. Grace knew the Libby mine con- maintenance workers, about how they Zonolite insulation and he and his wife tained asbestos when the company pur- can better protect themselves from ex- may have unknowingly been exposed to chased it in 1963. But Grace made mil- posure to asbestos in Zonolite insula- deadly asbestos. lions of tons of Zonolite anyway and tion. What would happen from his and his unabashedly marketed it as ‘‘safe.’’ These materials were prepared last wife’s exposure? If the manufacturer of this insulation April, but they still have not been re- How come no one had told him he knew it was contaminated with asbes- leased. had asbestos in his attic? tos, why didn’t it or the Federal Gov- Let me read from a ‘‘Pre-Decisional The Zonolite insulation was a prod- ernment make sure that Ralph Busch Draft’’ of a NIOSH Fact Sheet dated uct from the little town of Libby, MT. and millions of others across the coun- April 11, 2002. It was produced by the W.R. Grace try knew to leave it alone? I ask unanimous consent that it be Company. The answer to the first question is printed in the RECORD in its entirety. W.R. Grace mined vermiculite from that W.R. Grace still claims its product There being no objection, the mate- the hillside near Libby. The company isn’t harmful. The answer to the sec- rial was ordered to be printed in the turned the ore into insulation known ond question is more complicated. RECORD, as follows: as Zonolite by heating vermiculite to According to published reports and NIOSH RECOMMENDATIONS FOR REDUCING expand it into light granules. internal EPA documents, the EPA was RISK OF WORKER EXPOSURES TO The process was similar to popping preparing to tell the American people VERMICULITE THAT MAY BE CONTAMINATED popcorn. After sorting the popped about the dangers of Zonolite insula- WITH ASBESTOS vermiculite, W.R. Grace poured it into tion. But it didn’t happen. A vermiculite deposit formerly mined in bags and sold it to use as insulation. An investigation by Pulitzer Prize- Libby, Montana was contaminated with as- The company marketed Zonolite as winning reporter Andrew Schneider bestos, raising concerns about occupational ‘‘perfectly safe’’. . . found that last spring while it was ad- and public health risks to former miners, But laced throughout the vermiculite residents of Libby, and to workers and con- dressing the public health crisis in sumers who come in contact with in the ground near Libby, another min- Libby, MT, the EPA was preparing to eral was present: asbestos. W.R. vermiculite end-products, such as insulation tell the American people about the and potting soil. This fact sheet summarizes Grace’s process to make Zonolite and dangers of Zonolite insulation in mil- existing recommendations by the U.S. Cen- other products could not, and did not, lions of homes across this country. But ters for Disease Control’s (CDC) National In- remove all the asbestos from the end first, EPA had to deal with Libby. EPA stitute for Occupational Safety and Health product. Zonolite insulation contains decided it needed to minimize the expo- (NIOSH) for reducing risk of worker expo- between .5 percent and 8 percent asbes- sure of Libby residents to asbestos-con- sures to asbestos or to materials that may be tos. contaminated with asbestos. These rec- taminated vermiculite, and the agency ommendations serve as interim guidance The community of Libby has suffered drafted a press release announcing its immensely from decades of mining the from NIOSH for employers and workers in- decision. volved at sites where vermiculite used as deadly vermiculite ore used to make This document said that EPA: attic insulation or for other purposes may be Zonolite insulation and other con- . . . will spend $34 million to remove dan- contaminated with asbestos. NIOSH is con- sumer products. gerous asbestos-contaminated vermiculite ducting further research on vermiculite to At least 200 men and women from insulation from 70 percent of residential and provide more information on exposures that Libby have died from diseases caused commercial buildings in Libby. may pose the highest risks to workers.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2038 CONGRESSIONAL RECORD — SENATE February 6, 2003 How can a worker or an employer know if Employ wet methods or wetting agents, posed to vermiculite that may be contami- vermiculite they have is contaminated with unless wetting is not feasible or creates a nated with asbestos. Current plans are to: (1) asbestos? greater hazard (wetting absorbent conclude field exposure sampling, (2) send The only way to determine conclusively vermiculite materials in an attic may not be company-specific reports to each of the sur- whether vermiculite is contaminated is to feasible or advisable); veyed sites, and (3) prepare a summary of the have it analyzed by a trained microscopist. Use negative pressure air units, which are overall result of exposure assessments. (Any suggestions by NIOSH beyond OSHA large mobile units that combine a fan and a (Question will NIOSH be performing any 1910 regarding methods for bulk analysis HEPA filter critical for preventing other ex- field investigations to evaluate the occupa- would be extremely helpful and reduce much posures to non-workers, to keep airborne as- tional exposures to airborne asbestos associ- of the confusion we are seeing as polarized bestos levels to a minimum. Combined with ated with Vermiculite Attic Insulation light microscopy (PLM) has not been useful temporary barriers or enclosures, they can among commonly exposed workers (i.e. home in evaluating and predicting airborne levels be set up to make sure fibers do not contami- reconstruction workers, electricians, cable generated from VAI). nate other areas. TV workers) ?) As a rule, we believe that any vermiculite Dispose of wastes and debris contaminated Has NIOSH been involved in the public that originated in Libby, Montana, before with asbestos in leak-tight containers; health response for Libby community? NIOSH has been providing technical assist- 1990 should be regarded as potentially con- Never use compressed air to remove asbes- ance to the U.S. Environmental Protection taminated. It is known that vermiculite tos-containing materials; Agency (EPA) and the Agency for Toxic Sub- from Libby was sold as attic insulation Avoid dry sweeping, shoveling, or other stances and Disease Registry (ATSDR) which dry clean-up methods for dust and debris under the product name Zonolite Attic Insu- are the lead agencies for the Federal govern- containing vermiculite that is potentially lation, and that this product is still in homes ment in assessing current concerns about po- contaminated with asbestos without envi- throughout the United States. tential community health risks from asbes- (Comment: WR Grace estimates several ronmental controls to avoid spreading con- tos exposures in Libby. million homes contain VAI, which is most tamination; likely very conservative. If we don’t wish to Use proper respiratory protection. Mrs. MURRAY. Mr. President, provide any indication of the magnitude of Are there regulations that pertain to as- NIOSH recommended that workers: the potential VAI exposure in number of bestos-contaminated vermiculite? . . . should isolate the work area from homes, we should be clear about the poten- Yes, the Occupational Safety and Health other areas in order to avoid spreading fi- tial situation to provide a more accurate pic- Administration (OSHA) asbestos regulations bers, use local exhaust ventilation to reduce ture and warning. Also, it is uncertain (29 CFR 1910.1001 and 1926.1101) for general in- dust exposures, and use appropriate res- whether other vermiculite products not orig- dustry and construction should be consulted piratory protection. inating in Libby contain potentially haz- to determine if there are specific require- If the employer or worker is concerned ardous concentrations of asbestos, until we ments that need to be followed when han- about potential exposure, and if at all pos- have definitive information to the contrary dling asbestos-contaminated materials or po- sible, the vermiculite should not be dis- these materials should also be treated with tential asbestos-containing materials. Rel- turbed. caution) evant information is posted on the OSHA But, astonishingly, this guidance was How can workers be protected from asbes- Internet page at: http://www.osha.gov/SLTC/ never released. How many of the con- tos-contaminated vermiculite? asbestos/index.html. struction workers, maintenance people, They should isolate the work area from What should you do if you believe you have electricians, plumbers and homeowners been exposed to asbestos-containing other areas in order to avoid spreading fi- across the country know they should bers, use local exhaust ventilation to reduce vermiculite? dust exposures, and use appropriate res- Workers who believe they have had signifi- ‘‘avoid spreading fibers, use local ex- piratory protection. If the employer or work- cant past exposure to asbestos-containing haust ventilation or appropriate res- er is concerned about potential exposure, and vermiculite, should consider getting an ap- piratory protection?’’ if at all possible, the vermiculite should not propriate medical check up. The appendices I suspect that like Mr. Ralph Busch, be disturbed. to the OSHA asbestos standard describe the thousands of people across the U.S. are Which respirators are appropriate to pro- types of tests a physician will need to pro- not taking these important pre- tect workers from asbestos exposure? vide. cautions because they are simply un- If asbestos cannot be contained to below What did NIOSH find from past studies at aware of the danger. 0.1 fibers per cubic centimeter of air (fiber/ Libby, Montana? I would like to read to my colleagues 3 NIOSH has responded to past and current cm ) by engineering controls and good work another section from the never-re- practices, or when engineering controls are concerns about worker health by conducting being installed or maintained, appropriate needed research and disseminating its find- leased NIOSH Fact Sheet. This was in respirators should be provided to workers. ings. In the 1980s, NIOSH conducted research response to the question about how When respirators are worn, it is advisable to and communicated findings about job-re- workers can know if the vermiculite wear a fit-tested, tight fitting half-mask air- lated exposures and health effects among they have is contaminated with asbes- purifying particulate respirator (not a dis- workers employed in mining and milling tos. It says: posable dust mask) equipped with an N–100 vermiculite in Libby, Montana. As a rule, we believe that any vermiculite filter or better, because of the potential for Our past studies identified asbestos con- that originated in Libby, Montana, before episodic exposure to 1 fiber/cm 3. A tight-fit- tamination in the vermiculite mined and 1990 should be regarded as potentially con- ting powered air-purifying respirator should milled in Libby. taminated . . . be provided instead of a negative-pressure We determined, from examination of x- It is known that vermiculite from Libby respirator whenever an employee chooses to rays of Libby miners, that the miners was sold as attic insulation under the prod- use this type of respirator. Tight fitting res- showed evidence of adverse health effects as- uct name Zonolite Attic Insulation and that pirators should be used in conjunction with a sociated with asbestos exposure. this product is still in homes throughout the comprehensive respiratory protection pro- In a review of death certificates of former United States. gram under the direction of a health and Libby vermiculite miners, we identified an But especially interesting is the next excess of deaths from lung cancer, and other safety professional. Further information section, which is in parentheses as a concerning respirator selection can be found lung diseases that are known to be related to on the NIOSH web site at: http:// asbestos exposure. comment by the author: www.cdc.gov/niosh; or the OSHA web site at: We made our findings available in 1985 W.R. Grace estimates several million http://www.osha.gov. through meetings in Libby with workers and homes contain ‘‘vermiculite attic insula- What can workers do to protect themselves their representatives, employer representa- tion,’’ which is most likely very conserv- from exposure to asbestos-contaminated tives, and members of the community. We ative. vermiculite? also published the results in peer-reviewed If we don’t wish to provide any indication If at all possible, avoid handling or dis- scientific journals. of the magnitude of the potential VAI (or turbing loose vermiculite that is not con- Is NIOSH planning further occupational vermiculite attic insulation) exposure in tained in a manner that will prevent the re- health research on vermiculite? number of homes, we should be clear about lease of airborne dust. NIOSH is currently conducting research to the potential situation to provide a more ac- Workers should guard against bringing help determine whether the processing of curate picture and warning. dust home to the family on clothes by using vermiculite produced by mines other than I must ask my colleagues, why disposable protective clothing or clothing the Libby mine results in workplace expo- wouldn’t NIOSH or others in the Ad- that is left in the workplace. Do not launder sure to asbestos. Vermiculite is used in a va- ministration—when they are taking riety of occupational settings including con- work clothing with family clothing. great pains to do the job right in Some measures can be used to avoid struction, agriculture, horticulture, and for spreading potentially contaminated dusts: miscellaneous industrial applications. Libby—want to share with workers and Use vacuum cleaners equipped with High- Through carefully designed sampling, NIOSH the public an indication of the mag- Efficiency Particulate Air (HEPA) filters to will be better able to define the extent to nitude of the number of homes with as- collect asbestos-containing debris and dust; which workers may be occupationally ex- bestos-tainted vermiculite?

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2039 Isn’t it our government’s job to pro- An internal e-mail from John F. health risk has been criticized by a former tect people from risks associated with Wood, the Deputy General Counsel at EPA administrator under two Republican hazardous substances such as asbestos? OMB, to staff at EPA contained details presidents, a Democratic U.S. senator and Don’t we need to know the scope of about finalizing the Action Memo for physicians and scientists who have treated victims of the contamination. the problem in order to help gauge the Libby. The announcement to warn the public was extent of the potential risks? Also copied on the e-mail were OMB expected in April. It was to accompany a Why aren’t we warning workers and Deputy Director Nancy Dorn and Asso- declaration by the EPA of a public health giving them the new guidance that has ciate Director of Natural Resources emergency in Libby, Mont. In that town near already been drafted by NIOSH? Programs Marcus Peacock. the Canadian border, ore from a vermiculite Interestingly enough, on April 10, Here’s what OMB’s lawyer wrote to mine was contaminated with an extremely 2002, the day before the date on this EPA. I ask unanimous consent that lethal asbestos fiber called tremolite that has killed or sickened thousands of miners NIOSH Fact Sheet, EPA received a let- this e-mail be printed in the RECORD. and their families. ter from W.R. Grace defending their There being no objection, the mate- Ore from the Libby mine was shipped harmful product. rial was ordered to be printed in the across the nation and around the world, end- The letter read: RECORD, as follows: ing up in insulation called Zonolite that was Zonolite Attic Insulation (ZAI) has been John—thank you for your efforts to allevi- used in millions of homes, businesses and insulating homes for over 60 years and there ate my concerns. Here are just a few edits, schools across America. is no credible reason to believe that ZAI has which are necessary to avoid the problems A public health emergency declaration had ever caused an asbestos-related disease in we discussed earlier. Please be sure to ob- never been issued by any agency. It would anyone who has used it in his/her home. serve the deletion of the citation of Sect. have authorized the removal of the disease- 104(a)(4). causing insulation from homes in Libby and How then does Grace explain the fact also provided long-term medical care for that the company has settled at least Mrs. MURRAY. Mr. President, it says: those made sick. Additionally, it would have 25 bodily injury claims caused by expo- triggered notification of property owners sure to Zonolite? Thank you for your efforts to alleviate my elsewhere who might be exposed to the con- Make no mistake. W.R. Grace is a concerns. Here are just a few edits, which are taminated insulation. company with one of the worst public necessary to avoid the problems we discussed Zonolite insulation was sold throughout earlier. Please be sure to observe the dele- North America from the 1940s through the health and environmental records in tion of the citation of Sect. 104 (a) (4). America. I draw my colleague’s atten- 1990s. Almost all of the vermiculite used in the insulation came from the Libby mine, tion to a 1998 article by Dr. David What is Section 104 (a) (4)? It is a clause in the Superfund law, last owned by W.R. Grace & Co. Egilman, Wes Wallace and Candace which enables the EPA to declare a In a meeting in mid-March, EPA Adminis- Hom published in the journal Account- public health emergency. trator Christie Todd Whitman and Marianne ability in Research entitled ‘‘Corporate Horinko, head of the Superfund program, And why did OMB tell the EPA to Corruption of Medical Literature: As- met with Paul Peronard, the EPA coordi- ‘‘delete the citation’’ to Section 104 (a) bestos Studies Concealed by W.R. nator of the Libby cleanup and his team of (4)? health specialists. Whitman and Horinko Grace & Co.’’ We don’t know for sure, but if EPA I will read briefly from the abstract asked tough questions, and apparently got had issued the public health emergency the answers they needed. They agreed they of this article: for Libby under Superfund, then the had to move ahead on a declaration, said a In 1963, W.R. Grace acquired the mine (in agency would have had to answer ques- participant in the meeting. Libby) and employee health problems at the tions about asbestos-tainted insulation By early April, the declaration was ready mine became known to W.R. Grace execu- to go. News releases had been written and re- tives and to Grace’s insurance company, from every other homeowner in the written. Lists of governors to call and politi- Maryland Casualty. country. cians to notify had been compiled. Internal In 1976, in response to tighter federal regu- Here is what the St. Louis Post-Dis- e-mail shows that discussions had even been lation of asbestos and asbestos-containing patch investigation concluded: held on whether Whitman would go to Libby products, W.R. Grace funded an animal study The Environmental Protection Agency was for the announcement. of tremolite toxicity. on the verge of warning millions of Ameri- But the declaration was never made. They hoped to prove that tremolite did not cans that their attics and walls might con- DERAILED BY WHITE HOUSE cause mesothelioma, the cancer uniquely as- tain asbestos-contaminated insulation. But, Interviews and documents show that just sociated with asbestos exposure. However, at the last minute, the White House inter- days before the EPA was set to make the the study showed that tremolite did cause vened, and the warning has never been declaration, the plan was thwarted by the mesothelioma. issued. White House Office of Management and W.R. Grace never disclosed the results of The Post-Dispatch got reaction from Budget, which had been told of the proposal this animal study, nor did they disclose their months earlier. knowledge of lung disease in the Libby work- an EPA staffer about OMB’s interven- Both the budget office and the EPA ac- ers, either to the workers themselves or to tion: knowledge that the White House agency was regulatory agencies. It was like a gut shot,’’ said one of those actively involved, but neither agency would These actions were intentional, and were senior staffers involved in the decision. ‘‘It discuss how or why. motivated by Grace’s conscious decision to wasn’t like they ordered us not to make the The EPA’s chief spokesman Joe Martyak prioritize corporate profit over human declaration, they just really, really strongly said, ‘‘Contact OMB for the details.’’ health. suggested against it. Really strongly. There Budget office spokesperson Amy Call said, Given the facts that W.R. Grace has was no choice left. ‘‘Those questions will have to be addressed knowingly manufactured and sold an Mr. President, I ask unanimous con- to the EPA.’’ asbestos-tainted product, has sup- sent that the St. Louis Post-Dispatch Call said the budget office provided word- pressed research findings showing that article be printed in the RECORD. ing for the EPA to use, but she declined to tremolite asbestos causes cancer, and There being no objection, the mate- say why the White House opposed the dec- rial was ordered to be printed in the laration and the public notification. has denied that their product is poten- ‘‘These are part of our internal discussions tially dangerous, the company is woe- RECORD, as follows: with EPA, and we don’t discuss predecisional fully lacking for credibility. [From the St. Louis Post-Dispatch, Dec. 29, deliberations,’’ Call said. Which brings us to our question: If 2002] Both agencies refused Freedom of Informa- EPA was planning to warn the Amer- WHITE HOUSE OFFICE BLOCKED EPA’S tion Act requests for documents to and from ican public about the dangers of ASBESTOS CLEANUP PLAN the White House Office of Management and Zonolite insulation, what stopped EPA (By Andrew Schneider) Budget. The budget office was created in 1970 to WASHINGTON.—The Environmental Protec- from following through with its plan? evaluate all budget, policy, legislative, regu- tion Agency was on the verge of warning Why aren’t we warning homeowners latory, procurement and management issues millions of Americans that their attics and nationwide about Zonolite insulation? on behalf of the president. Why aren’t we warning workers and walls might contain asbestos-contaminated insulation. But, at the last minute, the OFFICE INTERFERED BEFORE giving them new safety guidelines? White House intervened, and the warning has Former EPA administrator William The answers might lie, not with the never been issued. Ruckelshaus, who worked for Presidents EPA, but with the White House Office The agency’s refusal to share its knowl- Richard Nixon and Ronald Reagan, called of Management and Budget, OMB. edge of what is believed to be a widespread the decision not to notify homeowners of the

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2040 CONGRESSIONAL RECORD — SENATE February 6, 2003 dangers posed by Zonolite insulation ‘‘the declaration, they just really, really strongly meant increased disturbance of the insula- wrong thing to do.’’ suggested against it. Really strongly. There tion in the homes there. ‘‘When the government comes across this was no choice left.’’ It’s ‘‘a shallow argument,’’ the memo said. kind of information and doesn’t tell people She and other staff members said Whitman ‘‘There are older homes which exist in harsh about it, I just think it’s wrong, unconscion- was personally interested in Libby and the or harsher conditions across the country. able, not to do that,’’ he said. ‘‘Your first ob- national problems spawned by its asbestos- Residents in Maine and Michigan might find ligation is to tell the people living in these tainted ore. The EPA’s inspector general had this argument flawed.’’ homes of the possible danger. They need the reported that the agency hadn’t taken action No one knows precisely how many dwell- information so they can decide what actions more than two decades earlier when it had ings are insulated with Zonolite. Memos are best for their family. What right does the proof that the people of Libby and those from the EPA and the Agency for Toxic Sub- government have to conceal these dangers? using asbestos-tainted Zonolite products stances and Disease Registry repeatedly cite It just doesn’t make sense.’’ were in danger. an estimate of between 15 million and 35 mil- But, he added, pressure on the EPA from Whitman went to Libby in early Sep- lion homes. the budget office or the White House is not tember 2001 and promised the people it would A government analysis of shipping records unprecedented. never happen again. from W.R. Grace show that at least 15.6 bil- Ruckelshaus, who became the EPA’s first ‘‘We want everyone who comes in contact lion pounds of vermiculite ore was shipped administrator when the agency was created with vermiculite—from homeowners to from Libby to 750 plants and factories by Nixon in 1970, said he never was called by handymen—to have the information to pro- throughout North America. the president directly to discuss agency deci- tect themselves and their families,’’ Whit- Between a third and half of that ore was sions. He said the same held true when he man promised. popped into insulation and usually sold in 3- was called back to lead the EPA by Reagan SUITS, BANKRUPTCIES GROW foot-high kraft paper bags. after Anne Gorsuch Burford’s scandal- Political pragmatists in the agency knew Government extrapolations and interviews plagued tenure. the administration was angered that a flood with former W.R. Grace Zonolite salesmen Calls from a White House staff member or of lawsuits had caused more than a dozen indicate that Illinois may have as many as the Office of Management and Budget were major corporations—including W.R. Grace— 800,000 homes with Zonolite, Michigan as another matter. to file for bankruptcy protection. The suits many as 700,000. Missouri is likely to have ‘‘The pressure could come from industry sought billions of dollars on behalf of people Zonolite in 380,000 homes. pressuring OMB or if someone could find a injured or killed from exposure to asbestos With four processing plants in St. Louis, it friendly ear in the White House to get them in their products or workplaces. is estimated that more than 60,000 homes, of- to intervene,’’ Ruckelshaus said. ‘‘These Republicans on Capitol Hill crafted legisla- fices and schools were insulated with issues like asbestos are so technical, often so tion—expected to be introduced next Zonolite in the St. Louis area alone. convoluted, that industry’s best chance to month—to stem the flow of these suits. Eventually, the internal documents show, stop us or modify what we wanted to do Nevertheless, Whitman told her people to acceptance grew that the agency should de- would come from OMB.’’ move forward with the emergency declara- clare a public health emergency. The question about what to do about tion. Those in the EPA who respect their In a confidential memo dated March 28, an Zonolite insulation was not the only asbes- boss fear that Whitman may quit. EPA official said the declaration was ten- tos-related issue in which the White House She has taken heat for other White House tatively set for April 5. intervened. decisions such as a controversial decision on But the declaration never came. Instead, In January, in an internal EPA report on levels of arsenic in drinking water, easing Superfund boss Horinko on May 9 quietly or- problems with the agency’s much-criticized regulations to allow 50-year-old power plants dered that asbestos be removed from con- response to the terrorist attacks in New to operate without implementing modern taminated homes in Libby. There was no na- York City, a section on ‘‘lessons learned’’ pollution controls and a dozen other actions tional warning of potential dangers from said there was a need to release public health which environmentalists say favor industry Zonolite. And there was no promise of long- and emergency information without having over health. term medical care for Libby’s ill and dying. it reviewed and delayed by the White House. Newspapers in her home state of New Jer- The presence of the White House budget of- ‘‘We cannot delay releasing important pub- sey ran front page stories this month saying fice is noted throughout the documents. The lic health information,’’ said the report. Whitman had told Bush she wanted to leave press announcement of the watered-down de- ‘‘The political consequences of delaying in- the agency. cision was rewritten five times the day be- formation are greater than the benefit of Spokesman Martyak said his boss is stay- fore it was released to accommodate budget centralized information management.’’ ing on the job. office wording changes that played down the It was the White House budget office’s Of- changes that played down the dangers. EPA WAS POISED TO ACT fice of Information and Regulatory Affairs DANGERS OF ZONOLITE that derailed the Libby declaration. The reg- In October, the EPA complied with a free- The asbestos in Zonolite, like all asbestos ulatory affairs office is headed by John Gra- dom of Information Act request and gave the products, is believed to be either a minimal ham, who formerly ran the Harvard Center Post-Dispatch access to thousands of docu- risk or no risk if it is not disturbed. The as- for Risk Analysis. ments—in nine large file boxes. There were bestos fibers must be airborne to be inhaled. His appointment last year was denounced hundreds of e-mails, scores of ‘‘action The fibers then become trapped in the lungs, by environmental, health and public advo- memos’’ describing the declaration and piles where they may cause asbestosis, lung can- cacy groups, who claimed his ties to industry of ‘‘communication strategies’’ for how the cer and mesothelioma, a fast-moving cancer were too strong. Graham passes judgment announcement would be made. of the lung’s lining. over all major national health, safety and The documents illustrated the internal and The EPA’s files are filled with studies doc- environmental standards. external battle over getting the declaration umenting the toxicity of tremolite, how even Sen. Dick Durbin, D–Ill., urged colleagues and announcement released. minor disruptions of the material by moving to vote against Graham’s appointment, say- One of the most contentious concerns was boxes, sweeping the floor or doing repairs in ing Graham would have to recuse himself the anticipated national backlash from the attics can generate asbestos fibers. from reviewing many rules because affected Libby declaration. EPA officials knew that if This also has been confirmed by simula- industries donated to the Harvard University the agency announced that the insulation in tions W.R. Grace ran in Weed-sport, N.Y. in Center. Montana was so dangerous that an emer- July 1977; by 1997 studies by the Canadian Thirty physicians, 10 of them from Har- gency had to be declared, people elsewhere Department of National Defense; and by the vard, according to The Washington Post, whose homes contained the same contami- U.S. Public Health Service, which reported wrote the committee asking that Graham nated Zonolite would want answers or per- in 2000, that ‘‘even minimal handling by not be confirmed because of ‘‘a persistent haps demand to have their homes cleaned. The language of the declaration was mold- workers or residents poses a substantial pattern of conflict of interest, of obscuring ed to stress how unique Libby was and to health risk.’’ and minimizing dangers to human health play down the national problem. Last December, a study by Christopher with questionable cost-benefit analyses, and But many in the agency’s headquarters Weis, the EPA’s senior toxicologist sup- of hostility to governmental regulation in and regional offices didn’t buy it. porting the Libby project, reported that ‘‘the general.’’ In a Feb. 22 memo, the EPA’s Office of Pol- concentrations of asbestos fibers that occur Repeated requests for interviews with Gra- lution Prevention and Toxics said ‘‘the na- in air following disturbance of (insulation) ham or anyone else involved in the White tional ramifications are enormous’’ and esti- may reach levels of potential human health House budget office decision were denied. mated that if only 1 million homes have concerns.’’ ‘‘IT WAS LIKE A GUT SHOT’’ Zonolite ‘‘(are) we not put in a position to Most of those who have studied the needle- Whitman, Horinko and some members of remove their (insulation) at a national cost sharp tremolite fibers in the Libby ore con- their top staff were said to have been out- of over $10 billion?’’ sider them far more dangerous than other as- raged at the White House intervention. The memo also questioned the agency’s bestos fibers. ‘‘It was like a gut shot.’’ said one of those claim that the age of Libby’s homes and se- In October, the EPA team leading the senior staffers involved in the decision. ‘‘It vere winter conditions in Montana required a cleanup of lower Manhattan after the at- wasn’t that they ordered us not to make the higher level of maintenance, which in turn tacks of Sept. 11 went to Libby to meet with

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2041 Peronard and his crew. The EPA had re- contain vermiculite insulation even Again, thank you for your support of versed an early decision and announced that though HER OWN AGENCY has esti- EPA’s cleanup efforts in Libby, Montana and it would be cleaning asbestos from city mated it may be between 15 and 35 mil- your commitment to making sure that peo- apartments. lion homes, schools, and businesses. ple nationwide are not at risk from asbestos. Libby has been a laboratory for doing just The Agency looks forward to working with that. Mr. President, I ask unanimous con- you and your staff to continue our mutual Peronard told the visitors from New York sent that Administrator Whitman’s goal to protect the health and welfare of the just how dangerous tremolite is. He talked letter be printed in the RECORD. residents of Libby, Montana, and of the about the hands-on research in Libby of Dr. There being no objection, the mate- United States. If you have further questions Alan Whitehouse, a pulmonologist who had rial was ordered to be printed in the or concerns, please contact me, or your staff worked for NASA and the Air Force on ear- RECORD, as follows: may contact Betsy Henry in the Office of lier projects before moving to Spokane, U.S. ENVIRONMENTAL Congressional and Intergovernmental Rela- Wash. PROTECTION AGENCY, tions at (202) 564–7222. ‘‘Whitehouse’s research on the people here Washington, DC, January 16, 2003. Sincerely yours, gave us our first solid lead of how bad this Hon. PATTY MURRAY, CHRISTINE TODD WHITMAN. tremolite is,’’ Peronard said. U.S. Senate, Whitehouse has not only treated 500 people Washington, DC. from Libby who are sick and dying from ex- DEAR SENATOR MURRAY: Thank, you for ENCLOSURE: EPA OFFICE OF SOLID WASTE AND posure to tremolite. The chest specialist also your letters dated January 3, 2003, to me and EMERGENCY RESPONSE AND OFFICE OF PRE- has almost 300 patients from Washington Mitch Daniels, Director of the Office of Man- VENTION, PESTICIDES AND TOXIC SUB- shipyards and the Hanford, Wash., nuclear agement and Budget (OMB), regarding EPA’s STANCES facility who are suffering health effects from efforts to address asbestos contamination in exposure to the more prevalent chrysotile DETAILED RESPONSES TO SENATOR PATTY the town of Libby, Montana. I am responding asbestos. MURRAY’S QUESTIONS ON VERMICULITE ATTIC for both OMB and the Environmental Protec- Comparing the two groups, Whitehouse has INSULATION AND THE LIBBY, MONTANA CLEAN- tion Agency (EPA). demonstrated that the tremolite from Libby UP I assure you that since my tenure at the is 10 times as carcinogenic as chrysotile and Agency, every action regarding Libby, Mon- probably 100 times more likely to produce What were EPA’s recommendations on forma- tana has been taken with the goal of pro- mesothelioma than chrysotile. tion of a policy to inform consumers of po- W.R. Grace has maintained that its insula- tecting the health of Libby residents from tential dangers from exposure to Zonolite tion is safe. On April 3 of this year, the com- further harm. After visiting with the resi- insulation? dents of Libby Montana in September 2001, I pany wrote a letter to Whitman again insist- The Agency’s activity in Libby reflects a ing its product was safe and that no public committed to have EPA do everything as quickly and comprehensively as possible to unique situation where citizens have been health declaration or nationwide warning exposed for many years to widespread, high was warranted. remove the multiple sources of asbestos ex- posure of Libby residents. The Action Memo levels of asbestos contamination, and suffer Dr. Brad Black, who runs the asbestos clin- unprecedented rates of asbestos related ill- ic in Libby and acts as health officer for signed on May 9, 2002, authorized significant ness. After extensive consideration of sci- Montana’s Lincoln County, says ‘‘people additional measures in Libby, including the entific and health-related information, the have a right to be warned of the potential removal of attic insulation. Cleanup work Agency concluded that residents in Libby danger they may face if they disturb that has proceeded at an aggressive pace and sub- were a sensitive population, and asbestos ex- stuff.’’ stantial sources of exposure have already posure which would otherwise present an ac- Marytak, chief EPA spokesman, argues been removed. ceptable risk to a healthy population may that the agency has informed the public of While enclosed are EPA’s Office of Solid cause an increase in disease for a highly im- the potential dangers. ‘‘It’s on our Web site,’’ Waste and Emergency Response detailed re- pacted community like Libby. EPA decided he said. sponses to your questions, I want to make it Sen. Patty Murray, D-Wash., is sponsoring clear that neither OMB nor any other Fed- to remove all potential sources of exposure legislation to ban asbestos in the United eral agencies directed EPA to take a specific to asbestos in Libby, including asbestos con- States. She said the Web site warning is a course of action regarding whether to em- tamination in yards, playgrounds, parks, in- joke. ploy the public health emergency provision dustrial sites, the interiors of homes and ‘‘EPA’s answer that people have been of the Comprehensive Environmental Re- businesses, and vermiculite attic insulation. warned because it’s on their Web site is ri- sponse and Liability Act (‘‘CERCLA’’, or the The Agency’s guidance to consumers out- diculous,’’ she said. ‘‘If you have a computer, Superfund Law). The Agency made its deci- side of Libby has consistently been to man- and you just happened to think about what’s sion regarding the removal of asbestos con- age in place asbestos or asbestos containing in your attic, and you happen to be on EPA’s taminated vermiculite attic insulation from products found in the home. Based on cur- Web page, then you get to know. This is not Libby homes in order to reduce the cumu- rently available information and studies the the way the safety of the public is handled. lative exposure to residents as quickly as Agency continues to believe that, absent the ‘‘We, the government, the EPA, the admin- possible. EPA based this decision on many unique conditions present at Libby, istration have a responsibility to at least let factors, including legal, scientific, and prac- vermiculite insulation poses minimal risk if people know the information so they can tical considerations. The Agency concluded left undisturbed. If removal of the insulation protect themselves if they go into those at- that asbestos contaminated vermiculite in- is desired, the Agency recommends that this tics,’’ she said. sulation found in homes in Libby could be re- work be done professionally. moved without a public health emergency. Mrs. MURRAY. Mr. President, be- To better understand the potential risks of cause of OMB’s involvement, EPA Ultimately, EPA chose not to rely upon CERCLA’s health emergency provision, in asbestos contaminated vermiculite attic in- never conducted the planned outreach part, to minimize the possibility of removal sulation, EPA’s Office of Prevention, Pes- to warn people about Zonolite. work being delayed by possible legal chal- ticides and Toxic Substances (OPPTS) initi- NIOSH’s guidance to workers about lenges to this untested approach, and instead ated the first phase of a limited study to how to protect themselves was never fi- relied upon more traditional removal au- evaluate the level of asbestos in vermiculite nalized. thorities. attic insulation in homes in the Spring of 2001. The study included six homes in In response to these shocking re- Additional, I want to clarify that the deci- sion to proceed with the cleanup in Libby is Vermont and simulations in an enclosure. ports, on January 3, 2003, I wrote to This preliminary study will be used to help EPA Administrator Whitman and OMB unrelated to the larger issue of whether as- bestos contaminated vermiculite insulation the Agency design the next phase of a more Director Daniels to get some answers. poses a risk outside of Libby, Montana. Sev- comprehensive study and to help determine Mr. Daniels has not yet responded to eral questions in your letter imply that in- whether the Agency’s guidance in place for the allegations that his office blocked voking the public health provision in many years—to manage asbestos contami- the announcement. CERCLA for the situation in Libby would nated material in place or hire professionals Ms. Whitman wrote that she is re- give the Agency additional authority or im- to conduct removals—is still appropriate or sponding on behalf of OMB. I can only pose additional requirements to inform the should be revised. Formal external peer re- public nationwide about the health risks as- view is finished for the first phase of the ascribe this to OMB’s desire to remain study. The Agency’s Office of Research and unaccountable and to hide the role it sociated with asbestos contaminated vermiculite attic insulation. This is not the Development (ORD), as well as others, are played in these decisions. currently reviewing the preliminary study. Ms. Whitman’s response was woefully case. While the experience and data collected in Libby are important to a larger national Based on the findings from this study, EPA inadequate. She failed to explain the evaluation, the Libby cleanup and the Agen- will revise or supplement the existing guid- nature or the substance of OMB’s in- cy’s national evaluation of the potential ance and outreach materials as necessary, volvement. She also wrote that it is risks of asbestos contaminated attic insula- and further inform the public about how best not possible to know how many homes tion are on parallel but different tracks. to manage vermiculite attic insulation.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2042 CONGRESSIONAL RECORD — SENATE February 6, 2003 2. Top what extent were OMB and other federal 4. Which outside parties, such as corporations, This issue is important to me be- agencies and departments involved in the non-governmental organizations or associa- cause residents in my State are being decision whether to declare a public health tions, did EPA consult with on these deci- exposed to asbestos from Zonolite. emergency in Libby or to notify people na- sions? And, Mr. President, constituents in tionwide of the dangers potentially posed by During the more than two years in which exposure to Zonolite? your state and every other State in EPA has been working on Libby, Agency of- America may also have this insulation. ficials have met with the Libby community EPA consulted extensively with other fed- I am deeply concerned that most peo- eral and state partners in determining the and its Technical Assistance Group, other best course of action to address all sources of agencies, businesses in Libby and inter- ple with Zonolite in their homes are asbestos contamination in Libby. This in- national corporations, various associations, completely unaware of this problem. I cluded the Office of Management and Budget the State and subcommittees of both houses am afraid most will not learn of it (OMB), the Department of Health and of the U.S. Congress. Community members, until they have already been exposed Human Services, the Center for Disease Con- the Vermiculite Association, and W.R. Grace to dangerous levels of asbestos. And I trol, the Agency for Toxic Substances and Corporation have all corresponded with the am most concerned that this adminis- Disease Registry, U.S. Geological Survey, Agency to state their opinions or to ask for tration may be stifling EPA’s efforts to information about our work at the site. Occupational Safety and Health Administra- warn homeowners, consumers, and tion, the State of Montana, and many others. 5. What was OMB’s final recommendation to workers because of pressure from W.R. These consultations focused on scientific EPA? What recommendations, if any, did issues associated with asbestos contami- EPA receive from other federal agencies and Grace. nated vermiculite exposure, not to discuss departments? And I must remind my colleagues: public health emergency declarations. The Neither OMB, nor any other federal agency there is no safe known level of expo- Agency was also contacted by several mem- directed EPA to use a specific course of ac- sure to asbestos. Deadly diseases such bers of Congress who wished to express the tion regarding whether to employ the health as asbestosis, lung cancer and mesothe- depth of their concern and share their views emergency provision of CERCLA. As stated lioma can develop decades after just regarding this matter. In general, EPA tries previously, EPA consulted extensively with brief exposures to high concentrations to share information and discuss potential other federal partners, including OMB, in de- of asbestos. response decisions with interested parties, termining the best course of action to ad- Ultimately, I believe Administrator especially those with expertise in the area, dress all sources of asbestos contamination. so it can make the most informed decision. Whitman wanted to do the right thing 6. Who ultimately directed EPA not to issue a After consulting broadly with experts in by warning homeowners nationwide to public health emergency in Libby last spring be careful if they have Zonolite in their the field, the Agency determined a course of nor to proactively notify the public in a action regarding both the removal of asbes- proper manner? homes when the agency began remov- tos contaminated vermiculite attic insula- ing Zonolite from homes in Libby, MT. No one directed the Agency. The decision tion and the public outreach to be conducted But she was stopped. The reasons may beyond Libby, Montana. These decisions was made by EPA. After searching broadly for input from the many agencies within the never be known—the excuse may be were made by the Administrator, in close buried in ‘‘executive privilege.’’ consultation with the Office of Solid Waste Executive Branch with expertise to inform and Emergency Response, the Office of En- our thinking, the Agency decided to perform So where do we go from here? forcement and Compliance Assurance, the the cleanup under traditional Superfund pro- First, I hope my colleagues will sup- Office of General Counsel, the Office of Pre- gram removal authorities. Furthermore, re- port efforts to get to the bottom of vention, Pesticides and Toxic Substances, garding outreach on the Libby decision, the what stopped the EPA from warning and EPA Region 8. Agency has conducted many public meetings the public. We have to increase pres- concerning the Libby cleanup, and testified 3. What process did the Administration use in before Congress in July, 2001. Since the sure on EPA, NIOSH, and other public making these decisions? Specifically what Agency’s first removal actions, the On-Scene health agencies to raise public aware- roles did individual agencies play and who Coordinator in Libby has been in regular ness about Zonolite. in these agencies was involved in the proc- contact with the citizens of Libby discussing Second, I hope my colleagues will ess? the progress of the cleanup and commu- support legislation to ban asbestos in EPA’s primary focus was on protecting the nicating about the issues of the vermiculite America and to warn people about the residents of Libby by removing the multiple attic insulation. The Administrator also potential dangers posed by Zonolite in- sources of asbestos exposure as quickly as spoke extensively on issues concerning sulation. possible. EPA considered many factors, in- vermiculite contamination during her visit I appreciate the support for this leg- cluding the National Oil and Hazardous Sub- to Libby, Montana in September of 2001. islation I have received from Senators stances Pollution Contingency Plan. Ulti- 7. What are EPA’s most current estimates of BAUCUS, CANTWELL, DAYTON, and our mately, the Agency chose not to rely upon how many homes, businesses and schools CERCLA’s health emergency provision, in still contain Zonolite? How did EPA derive late colleague, Senator Wellstone, who part, to minimize the possibility of removal these numbers? were original cosponsors. work being delayed by possible legal chal- Over the years several attempts have been I have been working to raise aware- lenges to this novel approach, and instead re- made to estimate the number of homes that ness about the current dangers of as- lied upon more traditional removal authori- may contain vermiculite attic insulation. bestos for over 2 years. ties. EPA concluded that homes in Libby While numbers have been included in at least In July of 2001, I chaired a Senate contained vermiculite attic insulation that one study conducted for the Agency in 1985, Health, Education, Labor and Pensions did not constitute a ‘‘product.’’ The Agency the Agency does not believe that these esti- Committee hearing on asbestos and therefore could clean up the insulation with- mates are reliable. EPA recently again tried out addressing the question of whether it workplace safety. to estimate the number of homes, businesses In June of 2002, 2 days after intro- constituted a public health emergency. and schools that may still contain In making its response decisions in Libby, vermiculite attic insulation but again deter- ducing the Ban Asbestos in America EPA engaged in a major effort to discuss and mined that this task was virtually impos- Act, I testified at a Senate Environ- consider the issues associated with its ap- sible to complete because there is little in- ment and Public Works Committee proach to cleaning up asbestos contamina- formation about how many homes contain hearing on Libby held by Senator BAU- tion, both in Libby and at more than 20 con- vermiculite insulation (outside of Libby) as CUS. taminated sites out of the 241 domestic well as little data about what happens to My colleagues may wonder whatever vermiculite processing facilities. Although homes after they are built. Any numbers de- happened to Ralph Busch and his wife 175 of these sites had processed Libby rived from such an effort would be inac- vermiculite, EPA’s sampling confirmed that Donna. curate and misleading. After reading about Zonolite in the contamination only remained at 22 sites. To In the Libby valley, the Agency is identi- date, EPA or the responsible parties have fying which homes contain asbestos con- Seattle Post-Intelligencer, Mr. Busch cleaned up or have cleanup underway at 10 of taminated vermiculite insulation in the went to get the asbestos removed from these sites and the remaining 12 sites are ei- attic and wall space by visually inspecting his home. He learned it would cost ther being addressed or are under further in- homes. The good news is that EPA is finding $32,000 to do so. vestigation and response planning. This ef- vermiculite insulation in fewer homes than When he tried to secure compensa- fort has been one of the most significant ac- the Agency anticipated in this region. tion from his homeowners insurance to tions ever taken under the Superfund pro- gram, and has involved the participation and Mrs. MURRAY. Mr. President, my pay to clean up the contamination, his collaboration of a great many people and or- colleagues may be curious about why I insurance company rejected the claim. ganizations at the local, state and federal am so interested in EPA’s decisions re- He got nowhere with the company level. garding vermiculite from Libby. that had inspected the home before he

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2043 purchased it. They hadn’t known about Mr. BAUCUS. Mr. President, I would important part of this clean-up effort Zonolite, either. just like to follow up on the state- included removing asbestos-contami- When he talked to his realtor about ments regarding asbestos-contami- nated materials from Libby homes. trying to sell his house, Mr. Busch’s re- nated insulation made by my good People in Libby used vermiculite insu- altor emphasized that Mr. Busch and friend from Washington, Senator MUR- lation, raw vermiculite tailings, or his wife would be responsible under the RAY. The issues she raises are ex- other vermiculite material that they law for disclosing the presence of tremely important, and I applaud her brought home from W.R. Grace to fill Zonolite to any potential buyer. for her determined efforts on behalf of their walls and attics. According to Mr. Busch, even his re- her constituents, and her dedication to Last year, I personally urged the altor—and I quote—‘‘. . . expressed ap- raising the profile of the continued EPA to leave no stone unturned as it prehension over entering the house hazards associated with asbestos. sought to determine how to best begin saying he has young children and was I was very moved by Senator MUR- an expeditious removal of contami- fearful of asbestos exposure without a RAY’s description of what happened to nated materials from homes in Libby, proper respirator . . . this about a her constituent in Spokane, WA. I in an effort to continue to reduce the house we were living in every day.’’ agree with her 100 percent that the exposure of Libby residents to deadly In the end, having exhausted all of Government should not be in the busi- tremolite asbestos. The EPA responded his options, Ralph Busch and his wife ness of keeping important health-re- admirably to my requests, and as Sen- Donna sacrificed their home to fore- lated information from the public, in- ator MURRAY mentioned, the agency is closure, having lost thousands of dol- cluding information about the health currently removing asbestos-contami- lars and their good credit rating. They risks posed by Zonolite insulation. nated vermiculite material from homes didn’t feel that it was safe to live there Again, I commend the Senator from in Libby. anymore, or to bring other people into Washington for her leadership in cham- I only highlight these issues because I believe the timing and scope of the their home. Finally, they decided to pioning this important public health EPA’s decision to go into Libby homes move out of their ‘‘dream house’’ in and safety issue. and remove the vermiculite in their Spokane. To this day, that home re- I just believe it is important for me walls and ceilings was absolutely ap- mains vacant. to speak directly to the experience of propriate and necessary given the sheer Apart from the tremendous economic my constituents in Libby, MT, to put volume of asbestos to which the people loss, Mr. Busch and his wife are con- some of this into perspective. The experience of the residents of in Libby have been exposed. cerned for their health. They are left Should the EPA have issued a public Libby is truly, tragically, unique. This wondering what long-term negative health emergency declaration in Libby little town in northwestern Montana, health effects they may suffer as a re- prior to taking that action? I don’t surrounded by millions of acres of Fed- sult of their exposure to asbestos fibers know. What I do know is that the deci- eral forest lands, has lost over 200 peo- from the insulation. sion was made and the correct on-the- ple to asbestos-related diseases and Mr. Busch has told me, ‘‘I feel like ground result is happening in Libby. I cancers. Hundreds more are sick, and the poster-child for the unsuspecting have recently written to Administrator thousands more may become sick. homeowner who unknowingly set off a Whitman asking her to explain to me time bomb in the process of remodeling Libby doesn’t have that many people. any health care benefits that may or his home.’’ The magnitude of this tragedy is stag- may not be available to the people of To this day, Mr. Busch is haunted by gering. Libby in the event that a public health The vermiculite mining and milling words he read in the Spokesman-Re- emergency is declared in Libby. At this operations of W.R. Grace belched thou- view almost three years ago. The point, that is the most important issue sands and thousands of pounds of asbes- March 12, 2000, article, entitled, to the people in Libby. ‘‘Zonolite’s Effects Outlive Plant,’’ said tos-contaminated dust into the air in In fact, the Montana delegation, the this about mesothelioma. and around Libby, coating the town State of Montana, the community of [The disease] inflicts one of the most tor- and its inhabitants with the deadly Libby, and many concerned private turous deaths known to humankind. Some substance. Folks used raw vermiculite citizens have been working hard to people require intravenous morphine to ore or expanded vermiculite to fill bring new economic development and numb mesothelioma’s pain. Some need part their gardens, their driveways, the much-needed health care resources to of their spinal cord severed. Some are driven high school track, the little league to suicide. Libby. It is amazing to see how every- field, in their homes and attics. W.R. one has come together to create some- If there is a role for Government in Grace mineworkers brought the dust thing positive from a terrible situa- people’s lives, then it should include home with them on their clothing and tion. protecting the public health. We have contaminated their own families, with- The people in Libby are proud folks. an opportunity to protect the public’s out knowing the dust was poison. As- They have had more than their share of health so that Ralph Busch and thou- bestos was absolutely everywhere in hard knocks, and they just keep on sands—perhaps millions—of other Libby, for decades. going—getting up and trying. They are Americans won’t have to be needlessly It is also becoming more and more survivors, and I am privileged to know exposed to the time bomb sitting in clear that the fibers unique to Libby, them so well. In January of 2000, I trav- their homes, schools, and businesses. including tremolite asbestos fibers, are eled to Libby to meet with 25 ex- And meanwhile, if you are planning particularly deadly—more so than tremely ill people for the first time. to do work in your attic, look at your other forms of asbestos, such as I had been briefed a number of times insulation carefully first to see if it is chrysotile asbestos. Senator MURRAY is on what I might expect to hear that vermiculite. You can see pictures of absolutely right to be concerned about night. These kind men and women— what this insulation looks like by insulation manufactured from some whom are no longer with us— going to EPA’s web site, which is vermiculite ore mined and milled in gathered to share huckleberry pie and www.epa.gov/asbestos/insulation.html. Libby. coffee in the home of Gayla Benefield. If you think you have Zonolite, im- But let me also be clear, that the sit- They opened their hearts and poured mediately contact EPA to get addi- uation in Libby demanded a unique, de- out unimaginable stories of suffering tional advice about how to handle it. termined, and coordinated response and tragedy on a scale I was absolutely According to EPA’s web site, if you from the Environmental Protection stunned and unprepared to hear: entire think you have Zonolite insulation, Agency, other Federal agencies, the families—fathers, mothers, uncles, leave it alone and not disturb it. And State, and the community itself just to aunts, sons, and daughters all dead and then contact your Representative in address the enormous task of cleaning all bound by their exposure to Congress and ask him or her to pass up the town because, as I just men- tremolite asbestos, mined by W.R. legislation to ban asbestos, something tioned, the contaminated vermiculite Grace in this isolated, community of we all should have done decades ago. was everywhere. several thousand—located as far away We can make a difference, but we must Because of the extraordinary levels from Washington, DC, as one can be, act today. of asbestos contamination in Libby, an with a foot still in Montana.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2044 CONGRESSIONAL RECORD — SENATE February 6, 2003 I will never forget meeting another and support asbestos cleanup efforts by REMEMBERING ASTRONAUT gentleman who has become my dear the Environmental Protection Agency. WILLIAM MCCOOL friend, Les Skramstad. Les watched me At the first field hearing I held in Mr. ENSIGN. Mr. President, I rise closely all evening. He was wary and Libby of the Committee for Environ- today to extend my deepest condo- approached me after his friends and ment and Public Works, Dr. Blad lences to the families of the seven as- neighbors had finished speaking. He Black, now the director of the Libby tronauts whose lives were lost on Feb- said to me, Senator, a lot of people Clinic for Asbestos Related Disease, ruary 1. To Nevadans Audrey and Barry have come to Libby and told us they called for developing a research facility McCool, whose son William piloted the would help, then they leave and we so that Libby’s tragedy could be used final Columbia mission, I offer my sym- never hear from them again. to protect the health of men, women, pathy and the sincere gratitude of an ‘‘Max,’’ he said, ‘‘please, as a man and children. entire nation. like me—as someone’s father too, as The wheels are on the cleanup and You raised an incredible human someone’s husband, as someone’s son, health screening, and the time for being. William McCool represented the help me. Help us. Help us make this making Brad’s vision a reality is here. best and the brightest of this country. town safe for Libby’s sons and daugh- Working together with Montana Con- Though his life was taken prematurely, ters not even born yet. They should not gressional delegation and our State’s his legacy will be felt indefinitely. suffer my fate too. I was a miner and Governor to develop a leading edge, William was incredibly smart, a tal- breathed that dust in. And what hap- world class research facility with the ented athlete, and a true patriot. The pened to me and all the other men who mission of one day developing cures for combination of these traits, along with mined wasn’t right—but what has hap- asbestos-related disease is exactly devoted parents and religious convic- pened to the others is a sin. what Les called for that evening more tion, produced an American hero. We ‘‘Every day, I carried that deadly than 3 years ago as well. He and the mourn that hero today, as Audrey and dust home on my clothes. I took it into hundreds and thousands who suffer like Barry McCool mourn their son. And our house, and I contaminated my own Les and his family have my commit- while we stand with them in grief, we wife and each of my babies with it, too. ment. should also express our admiration for Just like me, they are sick, and we will the type of son they raised. each die the same way. I just don’t f Many children dream of one day be- know how to live with the pain of what coming an astronaut. A very elite few I have done to them. If we can make ever make that dream a reality. For something good come of this, maybe EXPLANATION OF ABSENCE William McCool, his dream was his des- I’ll stick around to see that, maybe Mr. DASCHLE. Mr. President, on be- tiny. As a child, he looked up to his that could make this worthwhile. half of Senator GRAHAM, I ask unani- Marine and Navy pilot father, built ‘‘Find someone to use me, to study mous consent that a letter from Sen- model airplanes, and became an Eagle me, to learn something about this dust ator GRAHAM to Senator FRIST and my- Scout. As a young man, he excelled by that is still in my lungs right now.’’ I self be printed in the RECORD. graduating second in his class at the told him I would do all that I could and There being no objection, the mate- Naval Academy, maintaining a 4.0 that I wouldn’t back down and that I rial was ordered to be printed in the grade point average, and earning ad- wouldn’t give up. Les accepted my offer RECORD, as follows: vanced degrees in computer science and then pointed his finger and said to U.S. SENATE, and aeronautical engineering. Not ap- me, ‘‘I’ll be watching Senator.’’ Washington, DC, January 31, 2003. plying to be an astronaut until his Les is my inspiration. He is the face Hon. BILL FRIST, of hundreds and thousands of sick and thirties, by the time of his last mission U.S. Senate, William had logged more than 2,800 exposed folks in this tiny Montana Washington, DC. hours of flight experience in 24 aircraft, community. When I get tired, I think Hon. TOM DASCHLE, of Les, and I can’t shake what he asked U.S. Senate, including more than 400 landings on me to do. In all of my years as an elect- Washington, DC. aircraft-carrier decks. ed official, this issue of doing what is DEAR SENATOR FRIST AND SENATOR As a pilot, William McCool risked his right for Libby is among the most per- DASCHLE: The purpose of this letter is to life often for this country. On January sonally compelling things I have ever share with you and my colleagues a develop- 16, he left his wife, sons, parents, and ment regarding my health. been called on to do. siblings grounded on Earth while he Doing what is right for the commu- This morning at the National Naval Med- soared toward his lifetime dream ical Center in Bethesda, Maryland, I under- among the stars. William was kept nity and making something good come went successful surgery to replace the aortic of it, is my mission in Libby, and I from completing his journey home, but valve in my heart. My doctors advised me to our gratitude for his service must not thank Les Skramstad every day for have this procedure now to correct a deterio- handing me out my marching orders. rating condition that could have led to per- be short lived. My staff and I have worked tirelessly manent damage of my heart muscle. We must ensure that these 7 astro- in Libby—not for thanks or recognition Accordingly, under Senate Rule VI(2), I nauts, and the 10 other NASA astro- but because the tragedy is just that will be necessarily absent from the floor and nauts who died in pursuit of knowl- gripping. committee activities until my doctors clear edge, did not do so in vain. We ow it to The ‘‘something good,’’ Les chal- me for a return to work. I ask that this let- their children to continue the quest of lenged me to deliver keeps our eye on ter be inserted in the Congressional Record space science, and we owe it to all our of this date to explain my absence. the ball. I secured the first dollars from children to continue reaching for the Given the overall excellent state of my stars. HHS 3 years ago to establish the Clinic health, the doctors tell me that I should for Asbestos Related to Disease, to have renewed vigor and energy following a f allow the Agency for Toxic Substances short hospitalization and recovery period. TRADE ADJUSTMENT ASSISTANCE and Disease Registry to begin the nec- With the extremely competent medical essary screening of folks who had been care I am receiving, as well as the loving FOR FARMERS exposed to Libby’s asbestos. Federal support of my wife Adele and our family, I Mr. BAUCUS. Mr. President, I rise dollars have flowed to Libby for clean- am confident that my absence will be brief. today to express my disappointment up, healthcare, and revitalizing the I look forward to rejoining you in the very and dismay that the Secretary of Agri- economy. near future to resume work on the agenda culture has failed to meet the deadline that is so important to my state of Florida, Last Congress, I was pleased to intro- our nation and the world. mandated by Congress to establish a duce the Libby Health Care Act, to se- program of Trade Adjustment Assist- Thank you for your good wishes, your un- cure longterm health funding for sick derstanding and your support. ance for Farmers. people in Libby, and I will introduce With kind regards, In the Trade Act of 2002, Congress di- similar legislation this year. We seek Sincerely, rected the Secretary to get this pro- ongoing funding for asbestos patient BOB GRAHAM, gram running by no later than this care and continue to closely monitor U.S. Senator. week, February 3, 2003.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2045 It is running? No. Is it even close to our trade adjustment programs. It as- Vanport—a combination of the names running? No. sists the farmer, rancher, or fisherman Vancouver and Portland—was built. At In fact, the Department of Agri- to adjust to import competition, to re- the time, it was the largest public culture tells me that their anticipated train, to obtain technical assistance, housing project in the Nation, and it startup date is still another six months and to have access to income support became home to thousands of Black Or- away. Meanwhile, the $90 million that to tide them over during the process. egonians. Congress set aside for this program in And the income support is capped to Due to the housing shortage in Port- fiscal year 2003 has no way of reaching make sure that the program is not land after the war, the temporary its intended beneficiaries. This is sim- being abused. housing at Vanport was allowed to lin- ply unacceptable. So last summer the President made a ger on long past its original intended Senators GRASSLEY and CONRAD re- commitment—to the Congress and to purpose. Restrictive policies of the cently joined me in a letter making the American agricultural commu- local real estate industry, as well the this very point to secretary Veneman. nity—to make this program a reality. I hostility to be found in Portland’s We told her then—and I repeat it now— think it is fair to say that this was one White neighborhoods, kept Black resi- that we hold her personally account- of just a few key elements that got the dents largely confined to Vanport. On able for dropping the ball on TAA for President those critical few votes he Memorial Day 1948, the Columbia River Farmers. Frankly, I expected better. needed to pass TPA in the House and overflowed its banks and washed away The Trade Act of 2002 renewed the the pass it with a strong bipartisan Vanport City, leaving behind a large President’s trade promotion authority vote in the Senate. lake and thousands of homeless people. after a lapse of 8 years. In exchange for And now I say to the President, and White residents of Vanport could be Congress’, and the Nation’s, renewed to Secretary Veneman: the farmers and fairly easily absorbed into the larger commitment to trade liberalization, ranchers of Montana—and indeed fabric of the White community with the President agreed to expand the throughout America—continue to wait minimal disruption; however, the re- trade adjustment assistance program for your administration to fulfill this sponse to the plight of Vanport’s Black to better meet the needs of those who commitment. residents presented a dramatic chal- might be negatively impacted by trade. I hope this will happen sooner, rather lenge to the previous patterns of racial A critical part of the President’s than later. thought and action in the city. commitment was the creation of a Indeed, there is absolutely no excuse According to Dr. Darrell Millner, pro- trade adjustment assistance program for a 6-month delay in getting this pro- fessor at Portland State University, for farmers, ranchers, and other agri- gram off the ground. There certainly Portland generally rose to meet the cultural producers. wasn’t a 6-month delay in launching challenge of the flood in a display of We all know that opening foreign negotiations for four new free-trade admirable humanitarianism. While markets to American agricultural agreements under TPA. There some distinctions related to color were products can provide great advantages shouldn’t be a delay here either. made in the aftermath of the disaster, to U.S. farmers and ranchers. Already, My staff and I stand ready to assist other new interracial dynamics nearly one-fifth of Montana’s agricul- in any way we can to kick start this emerged from the event that, in the tural production is exported. For Mon- process. But Secretary Veneman needs long term, helped change the course of tana wheat, a full two-thirds is ex- to do the heavy lifting here. And that Portland race relations. ported. And opening foreign markets is is my challenge to her today. H.J. Belton Hamilton, a former chair the best way to create new opportuni- f of the Urban League of Portland’s ties for our farmers and ranchers. board, recalls, ‘‘A lot of people got to This is one reason I have always been BLACK HISTORY MONTH know each other then.’’ Many White a strong supporter of trade liberaliza- Mr. SMITH. Mr. President, each year families took displaced Vanport Blacks tion and an equally strong advocate for I come to the floor during the month of into their homes after the flood, and a level playing field for our farmers in February to celebrate Black History the old artificial boundaries of the Af- world markets. Month and to discuss many of the con- rican-American community were But trade liberalization can have a tributions made by Black Americans to stretched to accommodate the reloca- downside as well. It can leave our farm- my home State of Oregon. Today, at tion of residents. ‘‘The Vanport flood ers and ranchers more vulnerable to the beginning of this year’s celebration had a major impact on Portland,’’ said sudden import surges, devastating of Black History Month, I would like to Bobbie Nunn, and early activist in the commodity price swings, and other begin another series of floor state- NAACP and Urban League. The city of countries’ unfair trading practices. ments with a short discussion of a sig- Portland had to accommodate its That is why they need this TAA pro- nificant event in Oregon’s history, the Black citizens, and the movement for gram. Vanport flood. positive racial change was on the rise. The Department of Labor’s TAA pro- In 1929, Dr. DeNorval Unthank moved We can see the changes in Portland gram for workers has nominally cov- to Portland, OR from Pennsylvania, be- by looking back again on the life of Dr. ered family farmers, ranchers, and fish- coming one of the city’s first black Unthank. Not only did Dr. Unthank ermen all along. But hardly any have physicians. When he moved into a seg- cofound the Urban League of Portland, participated. They usually can’t qual- regated, nearly all-White neighbor- but by 1958, the Oregon State Medical ify because they don’t become unem- hood, he and his family were greeted by Society named him Doctor of the Year. ployed in the traditional sense. rocks thrown through the windows of Four years later, he was named Citizen After decades of trying without suc- his home. When he replaced those win- of the Year by the Portland Chapter of cess to squeeze farmers into eligibility dows, more rocks were thrown. Phone the National Conference of Christians rules designed for manufacturing work- calls threatening his family were also and Jews. In 1969, DeNorval Unthank ers, it was time to try something new, common. Ultimately, Dr. Unthank was Park was dedicated in Portland. Forty something that would help farmers ad- forced to move to another part of town. years before, rocks had been thrown just to import competition before they The city of Portland was highly seg- through the windows of his Portland lost their farms. regated in its early history, and, al- home. What the Trade Act does is create a though experiences like Dr. Unthank’s Portland and the entire State of Or- TAA program tailored to the needs of were not uncommon, there were very egon went through as many changes in farmers, ranchers, and fishermen. Basi- few Black Portlanders. World War II the middle part of the 20th century as cally, the program creates a new trig- changed all that. Between 1941 and did most other parts of our country. In ger for eligibility. Instead of having to 1943, the African-American population the case of Portland, it was a major ca- show a layoff, the farmer, rancher, or in Portland increased tenfold, from tastrophe, the Vanport flood, that fisherman has to show commodity roughly 2,000 to over 20,000. People served as one of the major catalysts for price declines related to imports. came from all over the country to work positive change. During Black History The trigger is different, but the pro- in Portland’s shipyards, and to accom- Month, I think it is important that we gram serves the same purpose as all modate this influx of labor, the city of remember the people and events, like

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2046 CONGRESSIONAL RECORD — SENATE February 6, 2003 Dr. Unthank and the Vanport flood, Chairman of the Committee and the Ranking order of seniority, all members of the Com- that helped shape the history of Or- Member of the Committee or by a majority mittee have chosen assignments to one Sub- egon. I will come back to the floor each vote of the Committee. committee, and no member shall receive as- week this month to talk more about [c] Confidential testimony. No confidential signment to a third Subcommittee until, in testimony taken or confidential material order of seniority, all members have chosen why Black History Month is important presented at an executive session of the assignments to two Subcommittees. to Oregonians. Committee or any report of the proceedings [c] Investigations. No investigation shall f of such executive session shall be made pub- be initiated by a Subcommittee unless the lic either in whole or in part or by way of Senate or the full Committee has specifi- LOCAL LAW ENFORCEMENT ACT summary, unless specifically authorized by cally authorized such investigation. OF 2001 the Chairman of the Committee and the [d] Hearings. No hearing of a Sub- Mr. SMITH. Mr. President, I rise Ranking Member of the Committee or by a committee shall be scheduled outside the today to speak about the need for hate majority vote of the Committee. District of Columbia without prior consulta- [d] Interrogation of witnesses. Committee crimes legislation. In the last Con- tion with the Chairman and then only by interrogation of a witness shall be conducted agreement between the Chairman of the Sub- gress, Senator KENNEDY and I intro- only by members of the Committee or such committee and the Ranking Member of the duced the Local Law Enforcement Act, professional staff as is authorized by the Subcommittee or by a majority vote of the a bill that would add new categories to Chairman or the Ranking Member of the Subcommittee. current hate crimes law, sending a sig- Committee. [e] Confidential testimony. No confidential nal that violence of any kind is unac- [e] Prior notice of markup sessions. No ses- testimony taken or confidential material ceptable in our society. sion of the Committee or a Subcommittee presented at an executive session of the Sub- I would like to describe a terrible for marking up any measure shall be held committee or any report of the proceedings unless [1] each member of the Committee or of such executive session shall be made pub- crime that occurred April 26, 2001, in the Subcommittee, as the case may be, has Los Angeles, CA. A college student as- lic, either in whole or in part or by way of been notified in writing of the date, time, summary, unless specifically authorized by saulted a police officer outside a frater- and place of such session and has been fur- the Chairman of the Subcommittee and the nity. The student, Adam Guerrero, 23, nished a copy of the measure to be consid- Ranking Member of the Subcommittee, or by threw objects and shouted racial slurs ered at least 3 business days prior to the a majority vote of the Subcommittee. at a Black traffic officer who was commencement of such session, or [2] the [f] Interrogation of witnesses. Sub- standing outside the fraternity house. Chairman of the Committee or Sub- committee interrogation of a witness shall The student was charged with counts of committee determines that exigent cir- be conducted only by members of the Sub- cumstances exist requiring that the session committee or such professional staff as is au- committing a hate crime, battery on a be held sooner. peace officer, and assault on a peace of- thorized by the Chairman or the Ranking [f] Prior notice of first degree amend- Member of the Subcommittee. ficer. ments. It shall not be in order for the Com- [g] Special meetings. If at least three I believe that government’s first duty mittee or a Subcommittee to consider any members of a Subcommittee desire that a is to defend its citizens, to defend them amendment in the first degree proposed to special meeting of the Subcommittee be against the harms that come out of any measure under consideration by the called by the Chairman of the Sub- hate. The Local Law Enforcement En- Committee or Subcommittee unless fifty committee, those members may file in the hancement Act is a symbol that can written copies of such amendment have been offices of the Committee their written re- delivered to the office of the Committee at become substance. I believe that by quest to the Chairman of the Subcommittee least 2 business days prior to the meeting. It for that special meeting. Immediately upon passing this legislation and changing shall be in order, without prior notice, for a current law, we can change hearts and the filing of the request, the Clerk of the Senator to offer a motion to strike a single Committee shall notify the Chairman of the minds as well. section of any measure under consideration. Subcommittee of the filing of the request. If, f Such a motion to strike a section of the within 3 calendar days after the filing of the measure under consideration by the Com- RULES OF THE COMMITTEE ON request, the Chairman of the Subcommittee mittee or Subcommittee shall not be amend- does not call the requested special meeting, BANKING, HOUSING, AND URBAN able. This section may be waived by a major- to be held within 7 calendar days after the AFFAIRS ity of the members of the Committee or Sub- filing of the request, a majority of the mem- committee voting, or by agreement of the Mr. SHELBY. Mr. President, in ac- bers of the Subcommittee may file in the of- Chairman and Ranking Member. This sub- fices of the Committee their written notice cordance with Rule XXVI.2. of the section shall apply only when the conditions Standing Rules of the Senate, I ask that a special meeting of the Subcommittee of subsection [e][1] have been met. will be held, specifying the date and hour of unanimous consent to have printed in [g] Cordon rule. Whenever a bill or joint that special meeting. The Subcommittee the RECORD the rules of the Committee resolution repealing or amending any stat- shall meet on that date and hour. Imme- on Banking, Housing, and Urban Af- ute or part thereof shall be before the Com- diately upon the filing of the notice, the fairs, as unanimously adopted by the mittee or Subcommittee, from initial consid- Clerk of the Committee shall notify all eration in hearings through final consider- committee on January 30, 2003. members of the Subcommittee that such spe- ation, the Clerk shall place before each cial meeting will be held and inform them of There being no objection, the mate- member of the Committee or Subcommittee rial was ordered to be printed in the its date and hour. If the Chairman of the a print of the statute or the part or section Subcommittee is not present at any regular RECORD, as follows: thereof to be amended or repealed showing or special meeting of the Subcommittee, the RULES OF PROCEDURE FOR THE COMMITTEE ON by stricken-through type, the part or parts Ranking Member of the majority party on BANKING, HOUSING, AND URBAN AFFAIRS to be omitted, and in italics, the matter pro- the Subcommittee who is present shall pre- [Adopted in executive session, January 30, posed to be added. In addition, whenever a side at that meeting. 2003] member of the Committee or Subcommittee [h] Voting. No measure or matter shall be offers an amendment to a bill or joint resolu- recommended from a Subcommittee to the RULE 1. REGULAR MEETING DATE FOR tion under consideration, those amendments COMMITTEE Committee unless a majority of the Sub- shall be presented to the Committee or Sub- committee are actually present. The vote of The regular meeting day for the Com- committee in a like form, showing by typo- the Subcommittee to recommend a measure mittee to transact its business shall be the graphical devices the effect of the proposed or matter to the Committee shall require the last Tuesday in each month that the Senate amendment on existing law. The require- concurrence of a majority of the members of is in Session; except that if the Committee ments of this subsection may be waived the Subcommittee voting. On Subcommittee has met at any time during the month prior when, in the opinion of the Committee or matters other than a vote to recommend a to the last Tuesday of the month, the regular Subcommittee Chairman, it is necessary to measure or matter to the Committee no meeting of the Committee may be canceled expedite the business of the Committee or record vote shall be taken unless a majority at the discretion of the Chairman. Subcommittee. of the Subcommittee is actually present. RULE 2. COMMITTEE RULE 3. SUBCOMMITTEES Any absent member of a Subcommittee may [a] Investigations. No investigation shall [a] Authorization for. A Subcommittee of affirmatively request that his or her vote to be initiated by the Committee unless the the Committee may be authorized only by recommend a measure or matter to the Com- Senate, or the full Committee, or the Chair- the action of a majority of the Committee. mittee or his vote on any such other matters man and Ranking Member have specifically [b] Membership. No member may be a on which a record vote is taken, be cast by authorized such investigation. member of more than three Subcommittees proxy. The proxy shall be in writing and [b] Hearings. No hearing of the Committee and no member may chair more than one shall be sufficiently clear to identify the shall be scheduled outside the District of Co- Subcommittee. No member will receive as- subject matter and to inform the Sub- lumbia except by agreement between the signment to a second Subcommittee until, in committee as to how the member wishes his

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2047 or her vote to be recorded thereon. By writ- Committee to report a measure or matter 7. Federal monetary policy, including Fed- ten notice to the Chairman of the Sub- shall require the concurrence of a majority eral Reserve System. committee any time before the record vote of the members of the Committee who are 8. Financial aid to commerce and industry. on the measure or matter concerned is present. 9. Issuance and redemption of notes. taken, the member may withdraw a proxy Any absent member may affirmatively re- 10. Money and credit, including currency previously given. All proxies shall be kept in quest that his or her vote to report a matter and coinage. the files of the Committee. be cast by proxy. The proxy shall be suffi- 11. Nursing home construction. RULE 4. WITNESSES ciently clear to identify the subject matter, 12. Public and private housing [including veterans’ housing]. [a] Filing of statements.—Any witness ap- and to inform the Committee as to how the member wishes his vote to be recorded there- 13. Renegotiation of Government con- pearing before the Committee or Sub- tracts. committee [including any witness rep- on. By written notice to the Chairman any time before the record vote on the measure 14. Urban development and urban mass resenting a Government agency] must file transit. with the Committee or Subcommittee [24 or matter concerned is taken, any member may withdraw a proxy previously given. All [2] Such committee shall also study and re- hours preceding his or her appearance] 75 view, on a comprehensive basis, matters re- copies of his or her statement to the Com- proxies shall be kept in the files of the Com- mittee, along with the record of the rollcall lating to international economic policy as it mittee or Subcommittee, and the statement affects United States monetary affairs, cred- must include a brief summary of the testi- vote of the members present and voting, as an official record of the vote on the measure it, and financial institutions; economic mony. In the event that the witness fails to growth, urban affairs, and credit, and report file a written statement and brief summary or matter. [b] Vote on matters other than to report a thereon from time to time. in accordance with this rule, the Chairman measure or matter.—On Committee matters of the Committee or Subcommittee has the COMMITTEE PROCEDURES FOR PRESIDENTIAL other than a vote to report a measure or discretion to deny the witness the privilege NOMINEES matter, no record vote shall be taken unless of testifying before the Committee or Sub- Procedures formally adopted by the U.S. a majority of the Committee are actually committee until the witness has properly Senate Committee on Banking, Housing, and present. On any such other matter, a mem- complied with the rule. Urban Affairs, February 4, 1981, establish a [b] Length of statements. Written state- ber of the Committee may request that his uniform questionnaire for all Presidential ments properly filed with the Committee or or her vote may be cast by proxy. The proxy nominees whose confirmation hearings come Subcommittee may be as lengthy as the wit- shall be in writing and shall be sufficiently before this Committee. ness desires and may contain such docu- clear to identify the subject matter, and to In addition, the procedures establish that: ments or other addenda as the witness feels inform the Committee as to how the member [1] A confirmation hearing shall normally is necessary to present properly his or her wishes his or her vote to be recorded there- be held at least 5 days after receipt of the views to the Committee or Subcommittee. on. By written notice to the Chairman any completed questionnaire by the Committee The brief summary included in the state- time before the vote on such other matter is unless waived by a majority vote of the Com- ment must be no more than 3 pages long. It taken, the member may withdraw a proxy mittee. shall be left to the discretion of the Chair- previously given. All proxies relating to such [2] The Committee shall vote on the con- man of the Committee or Subcommittee as other matters shall be kept in the files of the firmation not less than 24 hours after the to what portion of the documents presented Committee. Committee has received transcripts of the to the Committee or Subcommittee shall be RULE 6. QUORUM hearing unless waived by unanimous con- published in the printed transcript of the No executive session of the Committee or a sent. hearings. Subcommittee shall be called to order unless [3] All nominees routinely shall testify [c] Ten-minute duration. Oral statements a majority of the Committee or Sub- under oath at their confirmation hearings. of witnesses shall be based upon their filed committee, as the case may be, are actually This questionnaire shall be made a part of statements but shall be limited to 10 min- present. Unless the Committee otherwise the public record except for financial infor- utes duration. This period may be limited or provides or is required by the Rules of the mation, which shall be kept confidential. extended at the discretion of the Chairman Senate, one member shall constitute a Nominees are requested to answer all ques- presiding at the hearings. quorum for the receipt of evidence, the tions, and to add additional pages where nec- [d] Subpoena of witnesses. Witnesses may swearing in of witnesses, and the taking of essary. be subpoenaed by the Chairman of the Com- testimony. f mittee or a Subcommittee with the agree- RULE 7. STAFF PRESENT ON DAIS ment of the Ranking Member of the Com- HEALTH CARE IN THE 108TH mittee or Subcommittee or by a majority Only members and the Clerk of the Com- CONGRESS vote of the Committee or Subcommittee. mittee shall be permitted on the dais during public or executive hearings, except that a Mr. SMITH. Mr. President, this Con- [e] Counsel permitted. Any witness subpoe- gress will address a number of very se- naed by the Committee or Subcommittee to member may have one staff person accom- a public or executive hearing may be accom- pany him or her during such public or execu- rious issues this year, but there is per- panied by counsel of his or her own choosing tive hearing on the dais. If a member desires haps no issue we will discuss with who shall be permitted, while the witness is a second staff person to accompany him or greater long-term implications than testifying, to advise him or her of his or her her on the dais he or she must make a re- health care. legal rights. quest to the Chairman for that purpose. Last year, my colleagues and I came [f] Expenses of witnesses. No witness shall RULE 8. COINAGE LEGISLATION to the Senate floor to talk about and be reimbursed for his or her appearance at a At least 67 Senators must cosponsor any debate the pressing need for an afford- public or executive hearing before the Com- gold medal or commemorative coin bill or able, universal, and voluntary prescrip- mittee or Subcommittee unless such reim- resolution before consideration by the Com- bursement is agreed to by the Chairman and mittee. tion drug benefit for America’s seniors. Unfortunately, our efforts were not Ranking Member of the Committee. EXTRACTS FROM THE STANDING RULES OF THE [g] Limits of questions. Questioning of a SENATE—RULE XXV, STANDING COMMITTEES successful, and our Nation’s seniors witness by members shall be limited to 5 continue to live in fear that the loss of 1. The following standing committees shall minutes duration when 5 or more members their health could lead to the loss of are present and 10 minutes duration when be appointed at the commencement of each Congress, and shall continue and have the their homes. less than 5 members are present, except that For the past several years, I have if a member is unable to finish his or her power to act until their successors are ap- questioning in this period, he or she may be pointed, with leave to report by bill or other- also tried to address the growing prob- permitted further questions of the witness wise on matters within their respective ju- lem of the uninsured: Every day, 41 after all members have been given an oppor- risdictions: million Americans live, work, and go [d][1] Committee on Banking, Housing, and tunity to question the witness. to school without health coverage. Urban Affairs, to which committee shall be Additional opportunity to question a wit- While the economic downturn this past ness shall be limited to a duration of 5 min- referred all proposed legislation, messages, petitions, memorials, and other matters re- year has caused many families to utes until all members have been given the tighten their belts, it has had more se- opportunity of questioning the witness for a lating to the following subjects: 1. Banks, banking, and financial institu- rious results for almost 2 million men, second time. This 5–minute period per mem- tions. ber will be continued until all members have women, and children who have lost 2. Control of prices of commodities, rents, exhausted their questions of the witness. their health insurance along with their and services. jobs. RULE 5. VOTING 3. Deposit insurance. [a] Vote to report a measure or matter. No 4. Economic stabilization and defense pro- Last year, the Senate Budget Com- measure or matter shall be reported from the duction. mittee chairman’s mark included a $500 Committee unless a majority of the Com- 5. Export and foreign trade promotion. billion health fund, to be used to mod- mittee is actually present. The vote of the 6. Export controls. ernize Medicare with the addition of a

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2048 CONGRESSIONAL RECORD — SENATE February 6, 2003 prescription drug benefit, and to reduce has tried his hand at a few other retail leges formed to meet the higher edu- the number of uninsured in this coun- businesses as well. From his letter, it cation needs of American Indians. try. With annual prescription drug cost is obvious he has faced both good times Without the college, the dream of a inflation, any legislation to address the and bad times with his businesses. Un- college education would have been out long-neglected need of Medicare sen- fortunately, the recent trends have not of reach for so many on the reserva- iors for an affordable prescription drug been positive. He currently employs be- tion. benefit this year will consume at least tween 13 and 20 people, depending upon It is quite exciting to see how this as much. Additionally, growing State the season, and he worries that these college has evolved over the past 30 fiscal woes coupled with the increase in people, who depend on him, might find years. The college started from very the number of uninsured Americans themselves out of a job if conditions do humble beginnings. On the third floor will require a substantial Federal re- not soon improve. Mr. Davis under- of an abandoned Catholic convent, with sponse. stands all too well the pressures that fewer than 60 students and only 3 full- With the threat of war and ongoing face all small business owners. time faculty members, the college of- economic downturn, it may be difficult In his letter to me, Mr. Davis makes fered its first course to those on the to consider new initiatives this year. a point that is extremely important to reservation. Today, the college has But we must. The current economic the current debate on taxes and jobs— grown to serve over 650 students, with climate is all the more reason to focus that if high taxes force the small busi- more than 150 courses and 65 full- and attention and resources on covering ness person to go out of business, the part-time faculty members. Addition- the uninsured now, when the need is U.S. Government will not get any tax ally, the college serves more than 250 great. In addition, every year that money. adults who are working to earn their passes without adding a prescription As simple and obvious as that con- general equivalency degree. drug benefit to Medicare, seniors con- cept sounds, I fear it might be one who Turtle Mountain Community College tinue to suffer, and the cost of adding is sometimes lost on those of us in Con- was the first tribal college to be grant- such a benefit increases substantially. gress. Taxes and other government re- ed 10-year accreditation by the North We must make every effort to provide quirements have a real cost on small Central Association of Colleges and a very real benefit for our Nation’s sen- businesses in this country, many of Schools and was the one of the first to iors and uninsured, and I urge my col- which are right at the edge of viability. fully integrate traditional culture leagues to support a sufficient sum to In the case of businesses in many throughout the curriculum. make these goals a reality this year. towns in Utah and around the country, By far one of the largest accomplish- f things have been really tough for the ments for the college was the opening past couple of years. The one-two of its new campus building in 1999. The TAX CUTS AND JOBS punch of a slowing economy and the college worked for years to raise the Mr. HATCH. Mr. President, I rise greatly reduced travel resulting from needed funds to construct this facility. today to make a suggestion about how the events of September 11 have moved Located on a 234-acre site, the 105,000- we can work more effectively to get many thousands of small businesses in square-foot facility includes state-of- the engine of our economy running on Utah and around the Nation right to the art technology, general classroom all of its cylinders again. the edge of going out of business. This space, science and engineering labs, a We have heard a great deal this week is especially true of businesses in library, learning resource center, and a about the current state of our economy towns that depend heavily on tourism, gymnasium. and whether the President’s growth such as Moab. Over 2,000 tribal members have grad- plan, which he released this past Mon- Tax cuts, such as the President is uated from the college since its cre- day, will be effective in putting Ameri- proposing, can make the difference be- ation, a truly commendable accom- cans who have lost their jobs back to tween a small business surviving and it plishment. Nearly half of the graduates work. Many of my colleagues on the closing its doors. We must keep in have gone on to other institutions to other side of the aisle are questioning mind that a high percentage of small earn a 4-year degree. Last spring, the whether there is a link between high businesses pay taxes at the individual college graduated the first group of taxes and jobs. rates. students to earn a bachelor of science The current debate has featured As we debate the best way to deal degree in elementary education. quotations and commentary from some with our slow recovery over the next For the past 30 years, the college has of the most prominent economists and weeks, we will surely hear a great deal also played a critical role in reserva- tax experts in America. Both sides rely more from economists and experts on tion life, supporting tribal business de- on knowledgeable and learned authori- the macro effect of various plans and velopment, worker training to meet ties to make their case that the Bush how gross domestic product will be af- the needs of local industries, and year- growth plan will or will not be effective fected by enacting one idea or another. round activities for elementary, mid- in creating jobs. And, as the old saying These opinions and analyses are a dle, and high school students. goes, you can find an expert to prove very much needed and welcome part of I congratulate the college, its fac- any point you wish. the political process. But I urge my ulty, and students on this momentous But too often, I think we tend to colleagues to not forget to also con- occasion and wish them much success overlook the wisdom of people on the sider the wisdom of those back home in in the next 30 years.∑ front lines of the U.S. economy. Some- their States, who, like Jeffrey Davis of f times these people can provide answers Moab, UT, face the real world effects of ARTHUR ASHE with clarity and common sense. our decisions. A few months ago, a small business ∑ Mrs. CLINTON. Mr. President, Ar- f owner in Moab, UT, Jeffrey Davis, sent thur Ashe said: ‘‘True heroism is re- me a very heartfelt letter, and his sen- ADDITIONAL STATEMENTS markably sober, very undramatic. It is timent has stuck in my mind. I want to not the urge to surpass all others at share it with my colleagues here today. whatever cost, but the urge to serve Moab is a relatively small town in 30th ANNIVERSARY OF THE TUR- others at whatever cost.’’ This is more southeastern Utah whose economy is TLE MOUNTAIN COMMUNITY than an eloquent definition of heroism; greatly dependent on tourism. Within COLLEGE it was how Arthur Ashe lived his life. just a few miles of this town lies some ∑ Mr. CONRAD. Mr. President, I rise Ashe emerged from segregated Rich- of the most spectacular scenery on today to congratulate the Turtle mond, VA, to become one of the finest Earth. However, the people who make Mountain Community College located individuals to play the game of tennis. Moab their home face the same eco- on the Turtle Mountain Indian Res- He shattered barrier after barrier and nomic realities with which everyone ervation in my State of North Dakota showed the world that anyone who else in America deals. on its 30th anniversary. worked hard enough and trained could Mr. Davis owns and operates a res- Turtle Mountain Community College rise to the top. Ashe’s triumphs began taurant in Moab, and over the years he was one of the six original tribal col- in Maryland in 1957 when he was the

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2049 first African American to ever partici- RETIREMENT OF MR. DAVID B. in a manner which best meets the spe- pate in the Maryland boy’s tennis HARRITY cific needs of New Hampshire’s resi- championships. After graduating first ∑ Mr. SUNUNU. Mr. President, I rise dents. Because of Dave’s leadership in his high school class, he attended today on behalf of myself and my good skills, a recent Quality Management UCLA. At UCLA, he helped his team friend and colleague, the senior Sen- Review of the Manchester office re- win the NCAA Championship in 1965 by ator from New Hampshire, JUDD sulted in one of the highest overall rat- winning the individual championship. GREGG, to extend our congratulations ings of any HUD office in the Nation. Ashe became the first African Amer- to Mr. David B. Harrity on the occa- Besides the help he provides the men ican ever to be appointed to the Davis sion of his retirement from the U.S. and women of New Hampshire through Cup Team and played for the team Department of Housing and Urban De- his service at HUD, Dave’s philosophy from 1963 to 1970, and also in 1975, 1976, velopment. of giving is reflected in a number of and 1978, and served as captain in 1980. Dave has had an exemplary career in other community activities. He is The world also admired Ashe for his Federal service, devoting more than 34 president of the board of directors of great individual victories. He won the years to our Nation. Because of his ‘‘The CareGivers, Inc.’’ a nonprofit or- U.S. Open in 1968, the Australian Open dedication to duty, Dave rose through ganization serving the Manchester and in 1970, the French Open in 1971, and no the ranks at HUD and retires today as Nashua areas of the Granite State and one can forget his victory over Jimmy director of the New Hampshire field of- whose mission is ‘‘helping the frail, el- Connors in the Wimbledon Champion- fice. Dave’s accomplishments are not derly and disabled to maintain their ship of 1975. Each victory, from the limited to his decades of Federal serv- independence and dignity.’’ He is also Maryland boy’s championship to the ice, but extend to the difference he has the past president of the New Hamp- triumph at Wimbledon, earned Arthur made in the lives of countless citizens. shire Federal Executive Association Ashe a spot in the International Tennis His years of leadership and generosity and is a leader within the Greater Man- Hall of Fame in 1985. have helped make Manchester, NH, the chester Chamber of Commerce. As an- But tennis is just one part of Ashe’s strong and vibrant community it is other part of his community participa- legacy. He was in the military. He was today. tion, Dave serves as a ‘‘Granite State an author, a husband, and a father. He Dave began his service with HUD at Ambassador,’’ greeting visitors to New understood that with great success its inception in 1965, starting in the Hampshire at information kiosks in came even greater responsibility. And Philadelphia field office where he pro- both the airport and downtown Man- in the early 1970s he denounced apart- vided assistance to the people of Penn- chester. He is also a member of the heid and worked tirelessly for South sylvania and southern New Jersey. board of directors of the Manchester Africa’s expulsion from the Inter- From there, Dave moved to HUD’s Bos- Rotary Club. national Lawn Tennis Association. ton regional office where, in 1971, he Dave’s career has truly been an inspi- Ashe was the first African-American became the first low-rent housing spe- ration to those who look to form a bet- professional to play in South Africa’s cialist in New England and worked in ter future through active participation national tennis championships. He close concert with all of the local hous- in the community. While Senator seized that moment in the spotlight to ing authorities in each of the six New GREGG and I trust Dave will enjoy his highlight the struggle of the South Af- England States. retirement with his wife Patricia, and rican people against the terrible op- When HUD created the Executive being able to spend more time with his pression of apartheid. And when the Identification and Development Pro- daughters Suzanne and Tracey and his South African Government refused re- gram in 1974, Dave was one of only 21 grandsons Ryan and Thomas, we also forms, Ashe refused to play and was individuals selected from a national know he will not cease giving of him- even arrested in 1985 outside the South competition of more than 700 to par- self in service to his fellow man. African Embassy while protesting ticipate in the leadership training. On behalf of the citizens of Man- apartheid. After completing and receiving a cer- chester and of the Granite State, Sen- Ashe never wavered in his commit- tificate from the Urban Executive Pro- ator GREGG and I congratulate David ment to use his position to help further gram of the Sloan Management School Harrity and thank him for all he has important causes. Whether it was the at the Massachusetts Institute of Tech- done for his community, the State of plight of Haitian refugees or creating nology, Dave was appointed special as- New Hampshire, and the Nation.∑ the USTA National Junior Tennis sistant to the Regional Administrator League to help young inner-city ath- in 1975. f letes, each effort was a measure of a In 1978, Dave was tapped to serve as MESSAGES FROM THE PRESIDENT man determined to make this world a the director of the Housing Develop- Messages from the President of the better place. ment and Management Divisions of the Then the news came in 1992 that Ashe Hartford, CT, HUD Field Office. Dave’s United States were communicated to was HIV positive. As the news traveled team of staff professionals worked the Senate by Ms. Evans, one of his to all who were inspired by Ashe, sad- closely with HUD customers, providing secretaries. ness spanned the globe. But once again, mortgage insurance, housing subsidies, f Ashe used his position in the world to and management oversight of federally EXECUTIVE MESSAGES REFERRED further one last cause. He went before assisted housing. In 1988, Dave moved the General Assembly of the United on to an opportunity with the State of As in executive session the Presiding Nations and called for an increase in Connecticut’s Department of Housing. Officer laid before the Senate messages AIDS funding and research, and he In this position, he administered HUD’s from the President of the United started the Arthur Ashe foundation to Section 8 Existing Certificate and the States submitting sundry nominations promote these and other causes. Ar- Small Cities Community Development which were referred to the appropriate thur Ashe passed away on February 6, Block Grant Programs. committees. 1993, but his legacy continues thanks In October of 1992, Dave was ap- (The nominations received today are to his dedicated wife Jeanne who serves pointed Manager of HUD’s Manchester printed at the end of the Senate pro- as the chairperson of the Arthur Ashe office by then-Secretary Jack Kemp. ceedings.) Endowment for the Defeat of AIDS, his Dave’s managerial style has been and f daughter Camera, and all of those who continues to be, one of working with, admired this truly heroic individual. and in support of, local officials to en- MESSAGE FROM THE HOUSE A decade ago, the world lost one of sure that each city and town in New its great heroes. And on this day, in Hampshire receives the maximum ben- recognition of all of his accomplish- efit from HUD’s programs. While pro- ENROLLED JOINT RESOLUTION ment for athletes, and the exemplary tecting the Federal Government’s in- SIGNED role he fulfilled as activist, author, terests, Dave has instilled in his staff a At 11:15 a.m., a message from the husband, father, and individual, we sa- willingness to find ways to allow local House of Representatives, delivered by lute Arthur Robert Ashe, Jr.∑ officials to administer HUD’s programs one of its clerks, announced that the

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2050 CONGRESSIONAL RECORD — SENATE February 6, 2003 Speaker has signed the following en- ting, pursuant to law, the report of a docu- EC–1009. A communication from the Acting rolled joint resolution: ment entitled ‘‘Method for Evaluating Wet- Principal Deputy Associate Administrator, lands Condition: #9 Developing an Inverte- Environmental Protection Agency, transmit- H.J. Res. 18. A joint resolution making fur- brate Index of Biological Integrity’’ received ting, pursuant to law, the report of a docu- ther continuing appropriations for the fiscal on February 5, 2003; to the Committee on En- ment entitled ‘‘Ambient Water Quality Cri- year 2003, and for other purposes. vironment and Public Works. teria Recommendations: Lakes and Res- The enrolled joint resolution was EC–1000. A communication from the Acting ervoirs in Ecoregion V’’ received on Feb- signed subsequently by the President Principal Deputy Associate Administrator, ruary 5, 2003; to the Committee on Environ- pro tempore (Mr. STEVENS). Environmental Protection Agency, transmit- ment and Public Works. ting, pursuant to law, the report of a docu- EC–1010. A communication from the Acting f ment entitled ‘‘Methods for Evaluating Con- Principal Deputy Associate Administrator, EXECUTIVE AND OTHER dition: #12 Using Amphibians in Bioassess- Environmental Protection Agency, transmit- COMMUNICATIONS ments of Wetlands’’ received on February 5, ting, pursuant to law, the report of a docu- 2003; to the Committee on Environment and ment entitled ‘‘Ambient Water Quality Cri- The following communications were Public Works. teria Recommendations: Lakes and Res- laid before the Senate, together with EC–1001. A communication from the Acting ervoirs in Ecoregion XIV’’ received on Feb- accompanying papers, reports, and doc- Principal Deputy Associate Administrator, ruary 5, 2003; to the Committee on Environ- uments, which were referred as indi- Environmental Protection Agency, transmit- ment and Public Works. cated: ting, pursuant to law, the report of a docu- EC–1011. A communication from the Acting EC–991. A communication from the Assist- ment entitled ‘‘Methods for Evaluating Wet- Principal Deputy Associate Administrator, ant Secretary, Fish and Wildlife Service, De- lands Condition: #16 Vegetation-Based Indi- Environmental Protection Agency, transmit- partment of the Interior, transmitting, pur- cators of Wetland Nutrient Enrichment’’ re- ting, pursuant to law, the report of a docu- suant to law, the report of a rule ‘‘Endan- ceived on February 5, 2003; to the Committee ment entitled ‘‘Ambient Water Quality Cri- gered and Threatened wildlife and plants ; on Environment and Public Works. teria Recommendations: Rivers and Stream EC–1002. A communication from the Acting final designation or non designation of crit- in Ecoregion VIII’’ received on February 5, Principal Deputy Associate Administrator, ical habitat for 95 plant species from the is- 2003; to the Committee on Environment and Environmental Protection Agency, transmit- lands of Kauai and Niihau, Hawaii; final rule Public Works. ting, pursuant to law, the report of a docu- EC–1012. A communication from the Acting (RIN1018-AG71)’’ received on February 5, 2003; ment entitled ‘‘Methods for Evaluating Wet- Principal Deputy Associate Administrator, to the Committee on Environment and Pub- lands Condition: #17 Land-Use Characteriza- Environmental Protection Agency, transmit- lic Works. tion for Nutrient and Sediment Risk Assess- ting, pursuant to law, the report of a docu- EC–992. A communication from the Acting ment’’ received on February 5, 2003; to the ment entitled ‘‘Ambient Water Quality Cri- Principal Deputy Associate Administrator, Committee on Environment and Public teria Recommendations: Rivers and Streams Environmental Protection Agency, transmit- Works. in Ecoregion X’’ received on February 5, 2003; ting, pursuant to law, the report of a docu- EC–1003. A communication from the Acting to the Committee on Environment and Pub- ment entitled ‘‘Nutrient Criteria Technical Principal Deputy Associate Administrator, lic Works. Guidance Manual: Estuarine and Coastal Ma- Environmental Protection Agency, transmit- EC–1013. A communication from the Acting rine Waters’’ received on February 5, 2003; to ting, pursuant to law, the report of a docu- Principal Deputy Associate Administrator, the Committee on Environment and Public ment entitled ‘‘Methods for Evaluating Wet- Environmental Protection Agency, transmit- Works. lands Condition: #11 Using Algae to Assess ting, pursuant to law, the report of a docu- EC–994. A communication from the Acting Environmental Conditions in Wetlands’’ re- ment entitled ‘‘Ambient Water Quality Cri- Principal Deputy Associate Administrator, ceived on February 5, 2003; to the Committee teria Recommendations: Lakes and Res- Environmental Protection Agency, transmit- on Environment and Public Works. ervoirs in Ecoregion III’’ received on Feb- ting, pursuant to law, the report of a docu- EC–1004. A communication from the Acting ruary 5, 2003; to the Committee on Environ- ment entitled ‘‘Ambient Water Quality Cri- Principal Deputy Associate Administrator, ment and Public Works. teria Recommendations: Rivers and Streams Environmental Protection Agency, transmit- EC–1014. A communication from the Assist- in Ecoregion V’’ received on February 5, 2003; ting, pursuant to law, the report of a docu- ant Secretary, Fish and Wildlife Service , to the Committee on Environment and Pub- ment entitled ‘‘Methods for Evaluating Wet- Department of the Interior, transmitting, lic Works. lands Condition: #13 Biological Assessment pursuant to law, the report of a rule entitled EC–995. A communication from the Acting for Birds’’ received on February 5, 2003; to ‘‘Endangered and Threatened Wildlife and Principal Deputy Associate Administrator, the Committee on Environment and Public Plants ; Designation of Critical Habitat for Environmental Protection Agency, transmit- Works. the Rio Grande Silvery Minnow (RIN1018- ting, pursuant to law, the report of a docu- EC–1005. A communication from the Acting AH91)’’ received on February 5, 2003; to the ment entitled ‘‘Amboemt Water Quality Cri- Principal Deputy Associate Administrator, Committee on Environment and Public teria Recommendation: Rivers and Streams Environmental Protection Agency, transmit- Works. in Ecoregion I’’ received on February 5, 2003; ting, pursuant to law, the report of a docu- EC–1015. A communication from the Acting to the Committee on Environment and Pub- ment entitled ‘‘Methods for Evaluating Wet- Principal Deputy Associate Administrator, lic Works. lands Condition: #6 Developing Metrics and Environmental Protection Agency, transmit- EC–996. A communication from the Acting Indexes of Biological Integrity’’ received on ting, pursuant to law, the report of a rule en- Principal Deputy Associate Administrator, February 5, 2003; to the Committee on Envi- titled ‘‘Approval and Promulgation of State Environmental Protection Agency, transmit- ronment and Public Works. Plans for Designated Facilities and Pollut- ting, pursuant to law, the report of a docu- EC–1006. A communication from the Acting ants: New Hampshire; Plan for Controlling ment entitled ‘‘Method for Evaluating Wet- Principal Deputy Associate Administrator, emmissions from Existing Commercial and land Condition: #10 Using Vegetation to As- Environmental Protection Agency, transmit- Industrial Solid Waste Incinerators sess Environment Conditions in Wetlands’’ ting, pursuant to law, the report of a docu- (FRL7447-6)’’ received on February 5, 2003; to received on February 5, 2003; to the Com- ment entitled ‘‘Methods for Evaluating Wet- the Committee on Environment and Public mittee on Environment and Public Works. lands Conditions: #8 Volunteers and Wetland Works. EC–997. A communication from the Acting Biomonitoring’’ received on February 5, 2003; EC–1016. A communication from the Acting Principal Deputy Associate Administrator, to the Committee on Environment and Pub- Principal Deputy Associate Administrator, Environmental Protection Agency, transmit- lic Works. Environmental Protection Agency, transmit- ting, pursuant to law, the report of a docu- EC–1007. A communication from the Acting ting, pursuant to law, the report of a rule en- ment entitled ‘‘Method for Evaluating Wet- Principal Deputy Associate Administrator, titled ‘‘Control of Emmission from New Ma- lands Conditions: #1 Introduction to Wetland Environmental Protection Agency, transmit- rine Compression-Ignition Engines at or Biological Assessment’’ received on Feb- ting, pursuant to law, the report of a docu- Above Liters per Cylinder (FRL7448-9)’’ re- ruary 5, 2003; to the Committee on Environ- ment entitled ‘‘Methods for Evaluating wet- ceived on February 5, 2003; to the Committee ment and Public Works. lands Conditions: #7 Wetlands Classifica- on Environment and Public Works. EC–998. A communication from the Acting tion’’ received on February 5, 2003; to the EC–1017. A communication from the Ad- Principal Deputy Associate Administrator, Committee on Environment and Public ministrator, Environmental Protection Environmental Protection Agency, transmit- Works. Agency , transmitting, pursuant to law, the ting, pursuant to law, the report of a docu- EC–1008. A communication from the Acting Fiscal Year 2002 Annual Report of the Envi- ment entitled ‘‘Method for Evaluating Wet- Principal Deputy Associate Administrator, ronmental Protection Agency, received on lands Condition: #4 Study Design for Moni- Environmental Protection Agency, transmit- February 1, 2003; to the Committee on Envi- toring Wetlands’’ received on February 5, ting, pursuant to law, the report of a docu- ronment and Public Works. 2003; to the Committee on Environment and ment entitled ‘‘Ambient Water Quality Cri- EC–1018. A communication from the Chair- Public Works. teria Recommendations: Lakes and Res- man of the Council of the District of Colum- EC–999. A communication from the Acting ervoirs in Ecoregion IV’’ received on Feb- bia, transmitting, pursuant to law, the re- Principal Deputy Associate Administrator, ruary 5, 2003; to the Committee on Environ- port on D .C. ACT 14-89 ‘‘Independence of the Environmental Protection Agency, transmit- ment and Public Works. Chief Financial Officer Establishment Act of

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2051 2001’’ received on February 1, 2003; to the By Mr. EDWARDS: of immigrant visas to, and the admis- Committee on Governmental Affairs. S. 329. A bill to assist the Neighborhood sion to the United States for perma- EC–1019. A communication from the Dep- Watch program to empower communities nent residence of, certain scientists, uty Secretary of Defense, transmitting, pur- and citizens to enhance awareness about engineers, and technicians who have suant to law, the Department of Defense Fis- threats from terrorism and weapons of mass cal Year (FY) 2002 Performance and Account- destruction, and encourage local commu- worked in Iraqi weapons of mass de- ability Report, received on January 31, 2003; nities to better prepare to respond to ter- struction programs. to the Committee on Governmental Affairs. rorist attacks; to the Committee on the Ju- S. 207 f diciary. At the request of Mr. SMITH, the By Mr. CAMPBELL (for himself, Mr. name of the Senator from Washington REPORTS OF COMMITTEES COCHRAN, Mr. MILLER, Mr. JOHNSON, (Ms. CANTWELL) was added as a cospon- Mr. INOUYE, Mr. CONRAD, Mr. BINGA- The following reports of committees sor of S. 207, a bill to amend the Inter- were submitted: MAN, Mr. LEAHY, Mr. BUNNING, Mr. DOMENICI, Ms. MURKOWSKI, and Mr. nal Revenue Code of 1986 to provide a By Mr. HATCH, without amendment and CRAIG): 10-year extension of the credit for pro- with a preamble: S. 330. A bill to further the protection and ducing electricity from wind. S. Res. 49. A resolution designating Feb- recognition of veterans’ memorials, and for S. 245 ruary 11, 2003, as ‘‘National Inventors’ Day.’’ other purposes; to the Committee on the Ju- At the request of Mrs. DOLE, her f diciary. By Mr. DASCHLE (for himself, Mr. name was added as a cosponsor of S. EXECUTIVE REPORTS OF MCCAIN, Mr. INOUYE, Mr. BAUCUS, Mr. 245, a bill to amend the Public Health COMMITTEES JOHNSON, Mr. DOMENICI, Mr. BINGA- Service Act to prohibit human cloning. The following executive reports of MAN, Mr. COCHRAN, and Ms. STABE- S. 250 committees were submitted: NOW): At the request of Mr. DURBIN, the S. 331. A bill to amend part E of title IV of By Mr. HATCH for the Committee on the name of the Senator from Louisiana the Social Security Act to provide equitable Judiciary. access for foster care and adoption services (Ms. LANDRIEU) was added as a cospon- John R. Adams, of Ohio, to be United for Indian children in tribal areas; to the sor of S. 250, a bill to address the inter- States District Judge for the Northern Dis- Committee on Finance. national HIV/AIDS pandemic. trict of Ohio. By Mr. DORGAN (for himself, Mr. S. James Otero, of California, to be United S. 287 DASCHLE, Mr. LEVIN, Mr. BAUCUS, and States District Judge for the Central Dis- At the request of Mr. LEAHY, the Mr. CONRAD): trict of California. S. 332. A bill to amend the Federal Insecti- name of the Senator from New York Robert A. Junell, of Texas, to be United cide, Fungicide, and Rodenticide Act to per- (Mrs. CLINTON) was added as a cospon- States District Judge for the Western Dis- mit a State to register a Canadian pesticide sor of S. 287, a bill to amend the Inter- trict of Texas. for distribution and use within that State; to nal Revenue Code of 1986 to provide (Nominations without an asterisk the Committee on Agriculture, Nutrition, that a deduction equal to fair market were reported with the recommenda- and Forestry. value shall be allowed for charitable tion that they be confirmed.) f contributions of literary, musical, ar- f ADDITIONAL COSPONSORS tistic, or scholarly compositions cre- ated by the donor. INTRODUCTION OF BILLS AND S. 50 S. 300 JOINT RESOLUTIONS At the request of Mr. JOHNSON, the At the request of Mr. KERRY, the The following bills and joint resolu- name of the Senator from Vermont name of the Senator from Georgia (Mr. tions were introduced, read the first (Mr. JEFFORDS) was added as a cospon- MILLER) was added as a cosponsor of S. and second times by unanimous con- sor of S. 50, a bill to amend title 38, 300, a bill to award a congressional gold sent, and referred as indicated: United States Code, to provide for a medal to Jackie Robinson (post- By Mr. LEVIN (for himself, Ms. STABE- guaranteed adequate level of funding humously), in recognition of his many NOW, and Mr. SCHUMER): for veterans health care, and for other contributions to the Nation, and to ex- S. 324. A bill to amend the National Trails purposes. System Act to clarify Federal authority re- press the sense of Congress that there S. 113 lating to land acquisition from willing sell- should be a national day in recognition ers for certain trails in the National Trails At the request of Mr. KYL, the name of Jackie Robinson. ES System; to the Committee on Energy and of the Senator from Alabama (Mr. S - S. 303 SIONS) was added as a cosponsor of S. Natural Resources. At the request of Mr. HATCH, the By Mr. GRASSLEY (for himself and 113, a bill to exclude United States per- names of the Senator from California Mr. FEINGOLD): sons from the definition of ‘‘foreign (Mrs. BOXER) and the Senator from S. 325. A bill to amend the Agricultural power’’ under the Foreign Intelligence New Jersey (Mr. LAUTENBERG) were Marketing Act of 1946 to increase competi- Surveillance Act of 1978 relating to added as cosponsors of S. 303, a bill to tion and transparency among packers that international terrorism. purchase livestock from producers; to the prohibit human cloning and protect Committee on Agriculture, Nutrition, and S. 150 stem cell research. Forestry. LLEN At the request of Mr. A , the S. RES. 48 By Mr. NELSON of Florida: name of the Senator from New Hamp- At the request of Mr. AKAKA, the S. 326. A bill to amend the Uniform Code of shire (Mr. GREGG) was added as a co- name of the Senator from Massachu- Military Justice to apply to prosecutions of sponsor of S. 150, a bill to make perma- setts (Mr. KENNEDY) was added as a co- child abuse cases in courts-martial an ex- nent the moratorium on taxes on Inter- tended statute of limitations applicable to sponsor of S. Res. 48, A resolution des- net access and multiple and discrimi- prosecutions of child abuse cases in United ignating April 2003 as ‘‘Financial Lit- natory taxes on electronic commerce States District Courts, and for other pur- eracy for Youth Month’’. poses; to the Committee on Armed Services. imposed by the Internet Tax Freedom By Mr. LEVIN (for himself and Mr. Act. f JEFFORDS): S. 196 STATEMENTS ON INTRODUCED S. 327. A bill to amend part A of title IV of At the request of Mr. ALLEN, the BILLS AND JOINT RESOLUTIONS the Social Security Act to allow up to 24 months of vocational educational training to name of the Senator from Illinois (Mr. By Mr. LEVIN (for himself, Ms. be counted as a work activity under the tem- FITZGERALD) was added as a cosponsor STABENOW, and Mr. SCHUMER): porary assistance to needy families program; of S. 196, a bill to establish a digital S. 324. A bill acquisition from willing to the Committee on Finance. and wireless network technology pro- sellers for certain trails in the Na- By Mr. SARBANES (for himself and gram, and for other purposes. tional Trails System; to the Com- Ms. MIKULSKI): S. 205 mittee on Energy and Natural Re- S. 328. A bill to designate Catoctin Moun- tain Park in the State of Maryland as the At the request of Mr. BIDEN, the sources. ‘‘Catoctin Mountain National Recreation name of the Senator from Michigan Mr. LEVIN. Mr. President, I ask Area,’’ and for other purposes; to the Com- (Mr. LEVIN) was added as a cosponsor of unanimous consent that the Willing mittee on Energy and Natural Resources. S. 205, a bill to authorize the issuance Seller bill be printed in the RECORD.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2052 CONGRESSIONAL RECORD — SENATE February 6, 2003 There being no objection, the bill was The past CEO of IBP in 1994 explained I ask unanimous consent that the ordered to be printed in the RECORD, as that the reason packers own livestock text of the bill be printed in the follows: is that when the price is high the pack- RECORD. S. 324 ers use their own livestock for the lines There being no objection, the bill was Be it enacted by the Senate and House of Rep- and when the price is low the packers ordered to be printed in the RECORD, as resentatives of the United States of America in buy livestock. This means that inde- follows: Congress assembled, pendent producers are most likely S. 325 SECTION 1. NATIONAL TRAILS SYSTEM. being limited from participating in the Be it enacted by the Senate and House of Rep- (a) ACQUISITION OF LAND FROM WILLING most profitable ranges of the live mar- resentatives of the United States of America in SELLERS.—Section 5(a) of the National Trails ket. This is not good for the survival of Congress assembled, System Act (16 U.S.C. 1244(a)) is amended— SECTION 1. SPOT MARKET PURCHASES OF LIVE- (1) in paragraph (8), by adding at the end the independent producer. STOCK BY PACKERS. the following: ‘‘No land or interest in land This bipartisan legislation would Chapter 5 of subtitle B of the Agricultural outside the exterior boundaries of any feder- guarantee that independent producers Marketing Act of 1946 (7 U.S.C. 1636 et seq.) ally administered area may be acquired by have a share in the market place while is amended by adding at the end the fol- the Federal Government for the trail with- assisting the Mandatory Price Report- lowing: out the consent of the owner of the land or ing system. The proposal would require ‘‘SEC. 260. SPOT MARKET PURCHASES OF LIVE- interest.’’; that 25 percent of a packer’s daily kill STOCK BY PACKERS. ‘‘(a) DEFINITIONS.—In this section: (2) in paragraph (10), by adding at the end comes from the spot market. By re- the following: ‘‘No land or interest in land ‘‘(1) COOPERATIVE ASSOCIATION OF PRO- outside the exterior boundaries of any feder- quiring a 25 percent spot market pur- DUCERS.—The term ‘cooperative association ally administered area may be acquired by chase daily, the mandatory price re- of producers’ has the meaning given the term the Federal Government for the trail with- porting system, which has been criti- in section 1a of the Commodity Exchange out the consent of the owner of the land or cized due to reporting and accuracy Act (7 U.S.C. 1a). interest.’’; and problems, would have consistent, reli- ‘‘(2) COVERED PACKER.— (3) in the fourth sentence of paragraph able numbers being purchased from the ‘‘(A) IN GENERAL.—The term ‘covered pack- (11)— spot market, improving the accuracy er’ means a packer that is required under this subtitle to report to the Secretary each (A) by striking ‘‘No lands or interests and transparency of daily prices. In ad- therein outside the exterior’’ and inserting reporting day information on the price and ‘‘No land or interest in land outside the exte- dition, independent livestock producers quantity of livestock purchased by the pack- rior’’; and would be guaranteed a competitive po- er. (B) by inserting before the period at the sition due to the packers need to fill ‘‘(B) EXCLUSION.—The term ‘covered pack- end the following: ‘‘without the consent of the daily 25 percent spot/cash market er’ does not include a packer that owns only the owner of the land or interest’’. requirement. 1 livestock processing plant. (b) CONFORMING AMENDMENT.—Section The packs required to comply would ‘‘(3) NONAFFILIATED PRODUCER.—The term 10(c)(1) of the National Trails System Act (16 be the same packs required to report ‘nonaffiliated producer’ means a producer of U.S.C. 1249(c)(1)) is amended by striking ‘‘the under the Mandatory Price Reporting livestock— North Country National Scenic Trail, The ‘‘(A) that sells livestock to a packer; Ice Age National Scenic Trail,’’. system. Those are packs that kill ei- ‘‘(B) that has less than 1 percent equity in- ther 125,000 head of cattle, 100,000 head terest in the packer, which packer has less By Mr. GRASSLEY (for himself of hogs, or 75,000 lambs annually, over than 1 percent equity interest in the pro- and Mr. FEINGOLD): a 5 year average. ducer; S. 325. A bill to amend the Agricul- Packers are arguing that this will ‘‘(C) that has no officers, directors, em- tural Marketing Act of 1946 to increase hurt their ability to offer contracts to ployees, or owners that are officers, direc- competition and transparency among producers, but the fact of the matter is tors, employees, or owners of the packer; packers that purchase livestock from that the majority of livestock con- ‘‘(D) that has no fiduciary responsibility to the packer; and producers; to the Committee on Agri- tracts pay out on a calculation incor- ‘‘(E) in which the packer has no equity in- culture, Nutrition, and Forestry. porating Mandatory Price Reporting terest. Mr. GRASSLEY. Mr. President, dur- data. If the Mandatory Price Reporting ‘‘(4) SPOT MARKET SALE.— ing the last Congress Senator FEINGOLD data is not accurate, or open to pos- ‘‘(A) IN GENERAL.—The term ‘spot market and I sponsored the Transparency for sible manipulation because of low num- sale’ means a purchase and sale of livestock Independent Livestock Producers Act, bers on the spot market, contracts are by a packer from a producer— or what we have generally referred to not beneficial tools for producers to ‘‘(i) under an agreement that specifies a as the ‘‘Transparency Act’’. Today we manage their risk. This legislative pro- firm base price that may be equated with a fixed dollar amount on the date the agree- are once again working together in a posal will hopefully give confidence to ment is entered into; bipartisan fashion to re-introduce this independent livestock producers by im- ‘‘(ii) under which the livestock are slaugh- important legislation. proving the accuracy and viability of tered not more than 7 days after the date on As everyone knows, I introduced the the Mandatory Price reporting system which the agreement is entered into; and packer ban this Congress because I and secure fair prices for contracts ‘‘(iii) under circumstances in which a rea- want more competition in the market- based on that data. sonable competitive bidding opportunity ex- place. While I don’t think packers It’s just common sense, when there ists on the date on which the agreement is should be in the same business as inde- aren’t a lot of cattle and pigs being entered into. pendent livestock producers, it’s not purchased on the cash market, it’s ‘‘(B) REASONABLE COMPETITIVE BIDDING OP- PORTUNITY.—For the purposes of subpara- the fact that the packers own the live- easier for the Mandatory Price report- graph (A)(iii), circumstances in which a rea- stock that bothers me as much as the ing data to be inaccurate or manipu- sonable competitive bidding opportunity fact that the packers’ livestock com- lated. The majority of livestock pro- shall be considered to exist if— petes for shackle space and adversely duction contracts are based on that ‘‘(i) no written or oral agreement precludes impacts the price independent pro- data, so if that information is wrong the producer from soliciting or receiving ducers receive. the contract producers suffer. bids from other packers; and My sponsorship of the packer ban is This legislation will guarantee inde- ‘‘(ii) no circumstance, custom, or practice based on the belief that independent pendent livestock producers market exists that— producers should have the opportunity access and a fair price. It will accom- ‘‘(I) establishes the existence of an implied contract (as determined in accordance with to receive a fair price for their live- plish these goals by making it more the Uniform Commercial Code); and stock. The last few years have led to difficult for the Mandatory Price Re- ‘‘(II) precludes the producer from soliciting widespread consolidation and con- porting System to be manipulated be- or receiving bids from other packers. centration in the packing industry. cause of low numbers being reported by ‘‘(b) GENERAL RULE.—Of the quantity of Add on the trend toward vertical inte- the packs. The Transparency Act is livestock that is slaughtered by a covered gration among packers and there is no crucial legislation to guarantee live- packer during each reporting day in each plant, the covered packer shall slaughter not question why independent producers stock producers receive a fair shake at less than the applicable percentage specified are losing the opportunity to market the farm gate and I am looking forward in subsection (c) of the quantity through their own livestock during profitable to working on this legislation in a bi- spot market sales from nonaffiliated pro- cycles in the live meat markets. partisan fashion. ducers.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2053 ‘‘(c) APPLICABLE PERCENTAGES.— Justice serious crimes against children ‘‘(3) Section 3283 of title 18, relating to an ‘‘(1) IN GENERAL.—Except as provided in are now out of military prosecutors’ extension of a period of limitation for pros- paragraph (2), the applicable percentage reach. ecution of an offense involving sexual or shall be— This loophole became tragically ap- physical abuse of a child under the age of 18 ‘‘(A) in the case of a covered packer that is years, shall apply to liability of a person for not a cooperative association, 25 percent; parent to me after I was contacted by trial for such an offense by a court-martial and the father of a young girl who was sex- and liability of a person for punishment for ‘‘(B) in the case of a covered packer that is ually abused by a member of the mili- such an offense under section 815 of this title a cooperative association, 12.5 percent. tary. The victim’s father called my of- (article 15).’’. ‘‘(2) EXCEPTIONS.— fice to express his frustration that the ‘‘(A) COVERED PACKERS WITH A HIGH PER- Air Force couldn’t properly prosecute By Mr. LEVIN (for himself and CENTAGE OF CAPTIVE SUPPLY CATTLE.—In the the man for molesting his daughter Mr. JEFFORDS): case of a covered packer (other than a cov- over a 7-year period. The military S. 327. A bill to amend part A of title ered packer described in subparagraph (B)) couldn’t convict the offender on the IV of the Social Security Act to allow that reported to the Secretary in the 2001 an- up to 2 months of vocational edu- nual report that more than 75 percent of the worst counts levied against him be- cattle of the covered packer were captive cause of the insufficient 5-year statute cational training to be counted as a supply cattle, the applicable percentage of limitations provided by the Uniform work activity under the temporary as- shall be the greater of— Code of Military Justice. sistance to needy families program; to ‘‘(i) the difference between the percentage Air Force prosecutors originally used the Committee on Finance. of captive supply so reported and 100 percent; the extended statute of limitations Mr. LEVIN. Mr. President, I am and provided by the Victims of Child Abuse pleased to be joined by the Senator ‘‘(ii)(I) during each of calendar years 2004 Act to convict the defendant of several JEFFORDS in reintroducing legislation and 2005, 5 percent; crimes, but the most serious convic- that seeks to add an important meas- ‘‘(II) during each of calendar years 2006 and ure of flexibility to a provision of the 2007, 15 percent; and tions were overturned by the U.S. ‘‘(III) during calendar year 2008 and each Court of Appeals for the Armed Forces Temporary Assistance for Needy Fami- calendar year thereafter, 25 percent. which determined that the shorter lies program, TANF, under the Per- ‘‘(B) COOPERATIVE ASSOCIATIONS WITH HIGH statute of limitations provided by the sonal Responsibility and Work Oppor- PERCENTAGE OF CAPTIVE SUPPLY CATTLE.—In UCMJ applied to the case instead of tunity Reconciliation Act of 1996. The the case of a covered packer that is a cooper- the extended prosecution period pro- legislation we are introducing in- ative association and that reported to the vided by the VCAA. creases from 12 to 24 months the limit Secretary in the 2001 annual report that The Court’s narrow interpretation of on the amount of vocational education more than 87.5 percent of the cattle of the training that a State can count to- covered packer were captive supply cattle, the VCAA means this sex offender will the applicable percentage shall be the great- do a very short sentence at best, even wards meeting its work participation er of— though he abused this young girl for rate. ‘‘(i) the difference between the percentage years. Under the pre-1996 Aid to Families of captive supply so reported and 100 percent; The bill I introduce today is designed with Dependent Children program, wel- and to ensure that kids aren’t denied jus- fare recipients could participate in ‘‘(ii)(I) during each of calendar years of tice just because the defendant happens post-secondary vocational training or 2004 and 2005, 5 percent; to be a member of the military. Mili- community college programs for up to ‘‘(II) during each of calendar years of 2006 24 months while receiving assistance. and 2007, 7.5 percent; and tary prosecutors need the power to put ‘‘(III) during calendar year 2008 and each these criminals away for a long time. While I support TANF’s emphasis on calendar year thereafter, 12.5 percent. The statute of limitations provided moving welfare recipients into jobs, I ‘‘(d) NONPREEMPTION.—Notwithstanding by the VCAA allows prosecutions until am troubled by the restriction on post- section 259, this section does not preempt the victim’s 25th birthday. My bill secondary education training, limiting any requirement of a State or political sub- clarifies that the VCAA’s statute of it to 12 months. Only one year of voca- division of a State that requires a covered limitations applies to courts martial tional education counts as an approved packer to purchase on the spot market a work activity. The second year of post- greater percentage of the livestock pur- whenever a case arises involving the chased by the covered packer than is re- sexual or physical abuse of a child. secondary education study does not. quired under this section. Child victims of sexual crimes some- The limitation on post-secondary ‘‘(e) RELATIONSHIP TO OTHER PROVISIONS.— times struggle to come to terms with education and training raises a number Nothing in this section affects the interpre- the crimes committed against them of concerns, not the least of which is tation of any other provision of this Act, in- and often are not willing, or able, to whether individuals may be forced into cluding section 202.’’. bring the crime to the attention of au- low-paying, short-term employment By Mr. NELSON of Florida: thorities until they are much older. that will lead them back onto public S. 326. A bill to amend the Uniform Applying the longer statute of limita- assistance because they are unable to Code of Military Justice to apply to tions provided by the VCAA to courts support themselves or their families. prosecutions of child abuse cases in martial will allow military prosecutors According to recent studies, this is ex- courts-martial an extended statute of to throw the book at sexual predators. actly what has happened in far too limitations applicable to prosecutions I strongly urge my colleagues to sup- many cases. of child abuse cases in United States port this simple, but very important, A March 13, 2001, report of the Con- District Courts, and for other purposes; change to the law. Our kids deserve gressional Research Service, indicates to the Committee on Armed Forces. this protection and we should give it to that the average hourly wage for these Mr. NELSON of Florida. Mr. Presi- them without delay. former welfare recipients ranged from dent, I rise today to introduce legisla- I ask unanimous consent that the $5.50 to $8.80 per hour. According to the tion to close a gaping loophole in the text of the bill be printed in the U.S. Census Bureau, the mean earnings Victims of Child Abuse Act that cur- RECORD. of adults with an associate degree are rently ties the hands of military pros- There being no objection, the bill was 20 percent higher than adults who have ecutors. ordered to be printed in the RECORD, as not achieved such a degree. Congress passed the Victims of Child follows: A majority of the Senate has pre- Abuse Act to extend the statute of lim- S. 326 viously voted to make 24 months of itations for prosecuting offenses in- Be it enacted by the Senate and House of Rep- post-secondary education a permissible volving the sexual or physical abuse of resentatives of the United States of America in work activity under TANF. The Levin- minor children. But the military’s Congress assembled, Jeffords amendment to the 1997 Rec- highest court recently said the VCCA’s SECTION 1. EXTENDED LIMITATION PERIOD FOR onciliation bill, permitting up to 24 PROSECUTION OF CHILD ABUSE months of post-secondary education, extended statute of limitations doesn’t CASES IN COURTS-MARTIAL. apply to courts martial. Section 843(b) of title 10, United States received 55 votes—falling five votes Because Congress did not expressly Code (article 43 of the Uniform Code of Mili- short of the required procedural vote of address the relationship of this provi- tary Justice, is amended by adding at the 60. I must note the efforts of our dear sion to the Uniform Code of Military end the following new paragraph: friend and colleague Senator Paul

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00033 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2054 CONGRESSIONAL RECORD — SENATE February 6, 2003 Wellstone who was committed to this Mountain Park as the Catoctin Moun- between national and state park man- issue and who subsequently, in 1998, of- tain National Recreation Area. I first agement, has caused longstanding con- fered similar legislation as an amend- introduced this measure in October fusion for visitors to the area. Catoctin ment to the Higher Education Act re- 2002, but unfortunately it was not acted Mountain Park is continually authorization, which I cosponsored. upon during the closing days of the misidentified by the public as con- The Senate adopted his amendment, 107th Congress. It is my hope that the taining lake and beach areas associated however, the amendment was dropped legislation will receive full and prompt with Cunningham Falls State Park, during conference negotiations. consideration this year. being operated by the State of Mary- In June of last year, Senator JEF- I spoke last year about the need for land, or being closed to the public be- FORDS and I were very pleased that our this legislation and would like to un- cause of the presence of Camp David. proposal was included in the Senate Fi- derscore the principal arguments National Park employees spend count- nance Committee reported bill reau- today. Catoctin Mountain Park is a less hours explaining, assisting and re- thorizing TANF. It is our hope that the hidden gem in our National Park Sys- directing visitors to their desired des- Senate will again act favorably and ex- tem. Home to Camp David, the Presi- tinations. peditiously on this legislation and that dential retreat, it has been aptly de- My legislation would help to address the House will support this much-need- scribed as ‘‘America’s most famous un- this situation and clearly identify this ed state flexibility. We must do what is known park.’’ Comprising nearly 6000 park as a unit of the National Park necessary to achieve TANF’s intended acres of the eastern reach of the Appa- System by renaming it the Catoctin goal of getting families permanently lachian Mountains in Maryland, the Mountain National Recreation Area. off of welfare and onto self-sufficiency. park is rich in history as well as out- The mission and characteristics of this Finally, I would like to share with door recreation opportunities. Visitors park—which include the preservation my colleagues some examples of the can enjoy camping, picnicking, cross- of significant historic resources and difference that completion of two years country skiing, fishing, as well as the important natural areas in locations of vocational or community college solitude and beauty of the woodland that provide outdoor recreation for can make. The following are jobs that mountain and streams in the park. large numbers of people—make this an individual could prepare for in a Catoctin Mountain Park had its ori- designation appropriate. This measure structured two-year training or com- gins during the Great Depression as would not change access requirements munity college program, including the one of 46 Recreational Demonstration or current recreational uses occurring average starting salary, as provided by Areas, RDA, established under the au- within the park. But it would assist the the Bureau of Labor Statistics. thority of the National Industrial Re- visiting public in distinguishing be- covery Act. The Federal Government tween the many units of the State and AVERAGE STARTING SALARY NATIONWIDE purchased more than 10,000 acres of Federal systems. It will also, in my mountain land that had been heavily Respiratory Therapist ...... $29,700 judgment, help promote tourism by en- Occupational Therapy Assistant ...... 25,220 logged and was no longer productive to hancing public awareness of the Na- Electrician ...... 24,230 demonstrate how sub-marginal land tional Park unit. Physical Therapy Assistant ...... 23,590 could be turned into a productive rec- Computer Support Specialist ...... 22,710 The legislation is supported by the Interior Designer ...... 21,490 reational area and help put people back Board of County Commissioners and Legal Secretary ...... 22,360 to work. From 1936 through 1941, hun- Food Service Manager ...... 20,370 Tourism Council of Frederick County. I dreds of workers under the Works urge approval of this legislation. We must ensure that all citizens have Progress Administration and later the the opportunity to become productive Civilian Conservation Corps were em- By Mr. CAMPBELL (for himself, ployed in reforestation activities and and successful members of the work- Mr. COCHRAN, Mr. MILLER, Mr. in the construction of a number of force. Again, I urge my colleagues to JOHNSON, Mr. INOUYE, Mr. CON- camps, roads and other facilities, in- act with haste on this legislation. This RAD, Mr. BINGAMAN, Mr. LEAHY, cluding the camp now known as Camp modification will give the states the Mr. BUNNING, Mr. DOMENICI, Ms. David, and one of the earliest—if not flexibility they need to improve the MURKOWSKI, and Mr. CRAIG): economic status of families across the oldest—camp for disabled individ- S. 330. A bill to further the protec- America. uals. In November 1936, administrative tion and recognition of veterans’ me- I ask unanimous consent that the authority for the Catoctin RDA was morials, and for other purposes; to the text of the legislation Senator JEF- transferred to the National Park Serv- Committee on the Judiciary. FORDS and I are introducing be printed ice by Executive Order. Mr. CAMPBELL. Mr. President, in the RECORD. In 1942, concern about President Roo- There being no objection, the bill was sevelt’s health and safety led to the se- today I introduce legislation that would recognize and protect the sanc- ordered to be printed in the RECORD, as lection of Catoctin Mountain, and spe- follows: cifically Camp Hi-Catoctin as the loca- tity of veterans’ memorials standing tributes to the brave American men S. 327 tion for the President’s new retreat. Subsequently approximately 5,000 acres and women who have fought for our en- Be it enacted by the Senate and House of Rep- during freedom. I am pleased to be resentatives of the United States of America in of the area was transferred to the State Congress assembled, of Maryland, becoming Cunningham joined by eleven of my colleagues, who SECTION 1. INCREASE IN NUMBER OF MONTHS Falls State Park in 1954. The remain- are original cosponsors of this bill, the OF VOCATIONAL EDUCATIONAL ing 5,770 acres of the Catoctin Recre- ‘‘Veterans’ Memorial Preservation and TRAINING COUNTED AS A WORK AC- ation Demonstration Area was re- Recognition Act of 2003.’’ TIVITY UNDER THE TANF PROGRAM. named Catoctin Mountain Park by the This bill is based on legislation which Section 407(d)(8) of the Social Security Act passed the Senate in the 107th Con- (42 U.S.C. 607(d)(8)) is amended by striking Director of the National Park Service ‘‘12’’ and inserting ‘‘24’’. in 1954. Unfortunately, the Director gress, S.1644. When I introduced S.1644, failed to include the term ‘‘National’’ it was four days before Veterans’ Day— By Mr. SARBANES (for himself in the title and the park today remains an appropriate marker to honor those and Ms. MIKULSKI): one of 17 units in the entire National who so admirably served our country. S. 328. A bill to designate Catoctin Park System and one of 9 units in the Under my bill, someone who willfully Mountain Park in the State of Mary- National Capital Region that does not destroys any type of monument com- land as the Catoctin Mountain Na- have this designation. Those units in- memorating those in the Armed Serv- tional Recreation Area,’’ and for other clude four parkways, four wild and sce- ices on Federal property would be fined purposes; to the Committee on Energy nic rivers, the White House and Wolf or put in jail. The violator would be and Natural Resources. Trap Farm Park for the Performing subject to a civil penalty in addition to Mr. SARBANES. Mr. President, Arts. a fine, equal to the cost of repairing today I am re-introducing legislation, The proximity of Catoctin Mountain the damage. together with my colleague Senator Park, Camp David, and Cunningham The second part of this bill would MIKULSKI, to re-designate Catoctin Falls State Park, and the differences permit states to place supplemental

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00034 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2055 guide signs for veterans’ cemeteries on ‘‘§ 1369. Destruction of veterans’ memorials of the men and women who have served in Federal-aid highways. By allowing ‘‘(a) Whoever, in a circumstance described our Armed Forces. It is hard to believe that signs to be posted on well-traveled in subsection (b), willfully injures or de- certain individuals within our communities roads, these sites will gain the recogni- stroys, or attempts to injure or destroy, any would even consider the desecration of a me- structure, plaque, statue, or other monu- morial to those who defended freedom. Yet, tion they deserve. It is my goal to it unfortunately occurs. make cemeteries easily accessible to ment on public property commemorating the service of any person or persons in the armed AMVETS strongly supports the goals of those who want to pay their respect forces of the United States shall be fined your legislative proposal and endorses your there. Many Americans do stop and under this title, imprisoned not more than 10 effort to do more to protect our veterans’ recognize the sacrifice so many have years, or both. memorials and honor the memory of their made for our freedom, and I am con- ‘‘(b) A circumstance described in this sub- military service. We also give strong backing vinced many more would if they were section is that— to the provision in your proposal that identi- ‘‘(1) in committing the offense described in fies the need and importance of providing in- aware of where our memorials are lo- formation to travelers on our Nation’s high- cated. subsection (a), the defendant travels or causes another to travel in interstate or for- ways about the location of these beautiful Our veterans, living and lost, are re- eign commerce, or uses the mail or an in- memorials. minders of our national unity. Those strumentality of interstate or foreign com- We appreciate your steadfast support on who have served in our Armed Services merce; or issues important to the men and women who remind us of freedom and justice in the ‘‘(2) the structure, plaque, statue, or other have served in our Armed Forces. And, midst of conflict and during times of monument described in subsection (a) is lo- again, thank you for the leadership on vet- erans’ issues. peace. We are losing thousands of them cated on property owned by, or under the ju- risdiction of, the Federal Government.’’. Sincerely, forever, each year, as the veteran popu- RICHARD ‘‘RICK’’ JONES, lation ages. We have to honor their (b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 65 of National Legislative Director. sacrifices by protecting those sites title 18, United States Code, is amended by that recognize them. There are hun- adding at the end the following: PARALYZED VETERANS OF AMERICA, Washington, DC, January 8, 2003. dreds of veterans’ memorials, on Fed- ‘‘1369. Destruction of veterans’ memorials.’’. Hon. BEN NIGHTHORSE CAMPBELL, eral property, where we go to heal and SEC. 3. HIGHWAY SIGNS RELATING TO VETERANS to remember. As a veteran myself, I am U.S. Senate, CEMETERIES. Washington, DC. committed to seeing that not a single (a) IN GENERAL.—Notwithstanding the DEAR SENATOR CAMPBELL: On behalf of the one is stripped of its dignity. terms of any agreement entered into by the Paralyzed Veterans of America (PVA) I am I learned that approximately one Secretary of Transportation and a State writing to offer our support of the ‘‘Vet- month before introducing my bill, van- under section 109(d) or 402(a) of title 23, erans’ Memorial Preservation and Recogni- dals in Mead, CO, had stolen four United States Code, a veterans cemetery tion Act of 2003.’’ shall be treated as a site for which a supple- headstones and shattered another at a Memorials to the men and women who mental guide sign may be placed on any Fed- have served this Nation, in times of war and local cemetery. One of those eral-aid highway. in times of peace, are tokens of our gratitude headstones belonged to a Civil War vet- (b) APPLICABILITY.—Subsection (a) shall for this service, and their sacrifice. They are eran. I commend the Weld County apply to an agreement entered into before, tangible reminders of our past, and an inspi- Sheriff’s office for their work on the on, or after the date of the enactment of this ration for our future. For this reason they ongoing investigation into the crime, Act. are well worth protecting and preserving. as well as local residents who have vol- This legislation addresses both of these THE AMERICAN LEGION, unteered their time to rebuild the site. goals. Washington, DC, January 27, 2003. Again, thank you for introducing the ‘‘Vet- This was a local cemetery, which re- Hon. BEN NIGHTHORSE CAMPBELL, erans’ Memorial Preservation and Recogni- ceived overwhelming local support. Un- U.S. Senate, Russell Senate Office Building, tion Act of 2003.’’ fortunately, when heartbreaking inci- Washington, DC. Sincerely, dents like this happen on Federal land, DEAR SENATOR CAMPBELL: On behalf of the RICHARD B. FULLER, there currently is no comprehensive 2.9 million members of The American Le- National Legislative Director. law to protect the site nor to punish gion, I would like to express full support for ®, the perpetrators. the Veterans’ Memorial Preservation and ROLLING THUNDER INC, Recognition Act. We applaud your effort to NATIONAL CHAPTER 1, I encourage my colleagues to work prohibit the desecration of veterans’ memo- Neshanic Station, NJ, January 8, 2003. together for swift consideration of this rials, and to permit guide signs to veterans Senator BEN ‘‘NIGHTHORSE’’ CAMPBELL, important legislation. It doesn’t cost cemeteries on federal highways. Russell Senate Office Building, the taxpayers a thing, but it could save The American Legion recognizes the need Washington, DC. the American people from the injus- to preserve the sanctity and solemnity of HONORABLE BEN CAMPBELL: I am sending tices of thoughtless vandalism. I have veterans’ memorials. these historic monu- this letter in support of Bill, ‘‘Veterans Me- the support of several veterans’ organi- ments serve not only to honor the men and morial Preservation and Recognition Act of women of the Nation’s armed services, but to 2003. zations who have offered words of en- educate future generations of the sacrifices Rolling Thunder National and our mem- couragement for this bill. These Amer- endured to preserve the freedoms and lib- bers are in full support of this bill. Those icans know, first hand, the concept of erties enjoyed by all Americans. who destroy and deface any Veterans Memo- service. Let’s honor what they and Once again, The American Legion fully rial should be punished and made to pay full thousands of others have done so supports the Veterans’ Memorial Preserva- restitution for the damages they have bravely to preserve our freedom. tion and Recognition Act. We appreciate caused. Many Americans have fought and I ask unanimous consent that the bill your continued leadership in addressing the died for the Freedom of all Americans and and letters of support be printed in the issues that are important to veterans and their Memorials should be honored and re- their families. spected by all. RECORD. Sincerely, I thank you for all your help and support There being no objection, the mate- STEVE A. ROBERTSON, to all American Veterans. rials were ordered to be printed in the Director, National Legislative Commission. Sincerely, RECORD, as follows: SGT. ARTIE MULLER, S. 330 AMVETS, National President. Lanham, MD, January 14, 2003. Be it enacted by the Senate and House of Rep- Hon. BEN NIGHTHORSE CAMPBELL, By Mr. DASCHLE (for himself, resentatives of the United States of America in U.S. Senate, Russell Office Building, Wash- Mr. MCCAIN, Mr. INOUYE, Mr. Congress assembled, ington, DC. BAUCUS, Mr. JOHNSON, Mr. SECTION 1. SHORT TITLE. DEAR SENATOR CAMPBELL: On behalf of DOMENICI, Mr. BINGAMAN, Mr. This Act may be cited as the ‘‘Veterans’ AMVETS, I am writing to commend your in- COCHRAN, and Ms. STABENOW): Memorial Preservation and Recognition Act troduction of legislation to ban desecration S. 331. A bill to amend part E of title of 2003’’. of veterans’ memorials, provide for timely IV of the Social Security Act to pro- SEC. 2. CRIMINAL PENALTIES FOR DESTRUCTION repair of memorials, and ensure appropriate OF VETERANS’ MEMORIALS. placement of guide signs to veterans’ ceme- vide equitable access for foster care (a) IN GENERAL.—Chapter 65 of title 18, teries along federal highways. and adoption services for Indian chil- United States Code, is amended by adding at Our nation’s veterans’ memorials are na- dren in tribal areas; to the Committee the end the following: tional shrines to the bravery and dedication on Finance.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00035 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2056 CONGRESSIONAL RECORD — SENATE February 6, 2003 Mr. DASCHLE. Mr. President, today E law for tribes if those requirements ers more because they can. In agricul- I am reintroducing legislation to cor- are not in the best interest of Native tural policy, benefits from the North rect an inequity in the laws affecting children; and allow continuation of American Free Trade Agreement flow many Native American children. I am tribal-State IV–E agreements. the same direction as the Red River of joined by Senators MCCAIN, INOUYE, In a 1994 report, HHS found that the my State, north. This is especially true BAUCUS, JOHNSON, DOMENICI, BINGAMAN, best way to serve this underfunded of pesticide pricing. COCHRAN and STABENOW, in sponsoring group is to provide direct assistance to A recent survey completed by North this important piece of legislation. tribal governments qualified tribal Dakota State University surveyed 15 This effort is also supported by the Na- families. This bill would not result in different pesticides commonly used in tional Indian Child Welfare Associa- reduced funding for the States, as they both Canada and North Dakota. All tion, the American Public Human would continue to be reimbursed for would qualify for registration in North Services Association, and the National their expenses under the law. Dakota under this bill. Of the 15, not Congress of American Indians. I strongly believe Congress should one, not one, had a price differential in Every year, for a variety of often address this oversight and provide eq- favor of the American farmer. When tragic reasons, thousands of children uitable benefits to native American you totaled it all out, those 15 chemi- across the country are placed in foster children who are under the jurisdiction cals cost, in North Dakota alone, $23.7 care. To assist with the cost of food, of their tribal governments, and I urge million more, in 1 year, for the Amer- shelter, clothing, daily supervision and my colleagues to support this bill. ican producer. That’s just not right. school supplies, foster parents of chil- By Mr. DORGAN (for himself, Mr. If we’re going to have free trade, let’s dren who have come to their homes DASCHLE, Mr. LEVIN, Mr. BAU- make it fair trade. If we are going to through state court placement receive CUS, and Mr. CONRAD): open our borders to Canadian grain financial assistance through Title IV–E S. 332. A bill to amend the Federal grown with Canadian pesticides, we of the Social Security Act. Addition- Insecticide, Fungicide, and Rodenticide ought to open our borders to similar ally, States receive funding for admin- Act to permit a State to register a Ca- pesticides for U.S. producers at the istrative training and data collection nadian pesticide for distribution and same cost. It’s time to level the play- to support this program. Unfortu- use within that State; to the Com- ing field for American farmers, we nately, because of a legislative over- mittee on Agriculture, Nutrition, and must give them the same advantages sight, many Native American children Forestry. that Canadian producers have enjoyed who are placed in foster care by tribal Mr. DORGAN. Today I am intro- for years. If we’re going to have a free courts do not receive foster care and ducing legislation to correct a long- trade agreement with Canada, let’s all adoptive services and assistance to standing inequity that has caused sing from the same page, using the which all other income-eligible chil- hardship for American farmers. That same music. Because putting American dren are entitled. inequity is the pricing of agricultural farmers at a disadvantage in the world Not only are otherwise eligible Na- pesticides for American producers in marketplace over pesticide prices that tive children denied foster care mainte- relationship to Canadian pesticide pric- are not in harmony with our competi- nance payments, but this inequity also ing. My bill would solve this inequity tors is a practice that must be stopped. extends to children who are adopted by allowing individual States to label It must be stopped now. through tribal placements. Currently, Canadian pesticides that have the same Nothing in this legislation harms the the IV–E program offers limited assist- formula as those used in the U.S. for environment, unless you’re in the envi- ance for expenses associated with adop- use by American farmers. ronment of profits. This legislation tion and the training of professional Farmers combine land, water, com- would create a procedure whereby indi- staff and parents involved in the adop- mercial inputs, labor, and their man- vidual states could apply and receive tion. These circumstances, sadly, have agement skills into practices and sys- an Environmental Protection Agency made it even harder for Indian children tems to produce food and fiber. To sus- label for agricultural chemicals sold in to attain the permanency they need tain production over time, farmers Canada that are identical or substan- and deserve. must make a profit and preserve their tially similar to agricultural chemicals In many instances, these children resource and financial assets. Society used in the United States. Thus, U.S. face insurmountable odds. Many come wants food and fiber products that are producers and suppliers could purchase from abusive homes. Foster parents low-cost, safe to consume, and aesthet- such chemicals in Canada for use in the who open their doors to care for these ically pleasing, and wants production United States. special children deserve our help. systems that preserve or enhance the The new labels for the chemicals These generous people should not have environment. These often competing would still be under the strict scrutiny to worry about whether they have the goals and pressures are reflected not of the Environmental Protection Agen- resources to provide nourishing food or only in the inputs made available for cy as would their use. This would con- a warm coat, or even adequate shelter production, but also in how the inputs for these children. This legislation will are selected, combined, and managed tinue to insure safety in the food sup- go a long way to ease their concerns. at the farm level. ply. Food safety is a number one pri- Currntly, some tribes and states have Time and time again I have come to ority for all of us. Chemical safety is a entered into IV–E agreements, but Senate floor to point out the stark re- number one priority for all of us. This these arrangements are the exception. alities of free trade. I have talked at bill keeps those priorities intact. They also, by and large, do not include length about the flood of imported It is impossible to defend chemical funds to train tribal social workers and grain that streams across our border. price imbalance. You can’t defend it to foster and adoptive parents. This bill Come to my State of North Dakota. the growers, you can’t defend it to the would make it clear that tribes would Every day truckload after truckload of chemical distributor, and you can’t de- be treated like a state when they Canadian commodities, wheat, barley, fend it to the chemical retailer. Most choose to run their own programs durum, come across our border to com- importantly, you can’t defend it to the under the IV–E program. pete with commodities grown here at American consumer, who ultimately The bill we are introducing today home. These Canadian imports are pays the tab. would: extend the Title IV–E entitle- grown with the aid of pesticides, pes- Let’s be clear, this is not the end of ment programs to children placed by ticides of the same makeup and com- the journey but the beginning. We have tribal agencies in foster and adoptive position as those purchased in the a long way to go to cure the imbal- homes; authorize tribal governments to United States. Yet Canadian producers ances of trade between our nations. If receive direct funding from the Depart- have the luxury of buying those same we don’t begin the journey, we can’t ment of Health and Human Services for chemicals at prices substantially lower end it. This bill is a step in the right administration of IV–E programs than those American farmers have to direction. (tribes must have HHS-approved pro- pay. I request unanimous consent that the grams); allow the Secretary flexibility Why? The answer is simple; pesticide text of the bill be printed in the to modify the requirements of the IV– manufacturers charge American farm- RECORD.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00036 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2057 There being no objection, the bill was ‘‘(II) APPLICANT.—If a State registers a Ca- ‘‘(B) EFFECTIVE PERIOD.—If the Adminis- ordered to be printed in the RECORD, as nadian pesticide under this subsection on ap- trator disapproves a registration by a State follows: plication of any person, the person shall be under this subsection by the date that is 90 considered to be the registrant of the Cana- days after the date on which the State issues S. 332 dian pesticide for all purposes of this Act. the registration, the registration shall be in- Be it enacted by the Senate and House of Rep- ‘‘(3) REQUIREMENTS FOR REGISTRATION effective after the 90th day. resentatives of the United States of America in SOUGHT BY PERSON.—A person seeking reg- ‘‘(6) LABELING OF CANADIAN PESTICIDES.— Congress assembled, istration by a State of a Canadian pesticide ‘‘(A) IN GENERAL.—Each container con- SECTION 1. REGISTRATION OF CANADIAN PES- in a State under this subsection shall— taining a Canadian pesticide registered by a TICIDES BY STATES. ‘‘(A) demonstrate to the State that the Ca- State shall bear the label that is approved by (a) IN GENERAL.—Section 24 of the Federal nadian pesticide is identical or substantially the Administrator under this subsection. Insecticide, Fungicide, and Rodenticide Act similar in its composition to a comparable ‘‘(B) DISPLAY OF LABEL.—The label shall be (7 U.S.C. 136v) is amended by adding at the domestic pesticide; and securely attached to the container and shall end the following: ‘‘(B) submit to the State a copy of— be the only label visible on the container. ‘‘(d) REGISTRATION OF CANADIAN PESTICIDES ‘‘(i) the label approved by the Pesticide ‘‘(C) ORIGINAL CANADIAN LABEL.—The origi- BY STATES.— Management Regulatory Agency for the Ca- nal Canadian label on the container shall be ‘‘(1) DEFINITIONS.—In this subsection: nadian pesticide; and preserved underneath the label approved by ‘‘(A) CANADIAN PESTICIDE.—The term ‘Cana- ‘‘(ii) the label approved by the Adminis- the Administrator. dian pesticide’ means a pesticide that— trator for the comparable domestic pes- ‘‘(D) PREPARATION AND USE OF LABELS.— ‘‘(i) is registered for use as a pesticide in ticide. After a Canadian pesticide is registered Canada; ‘‘(4) STATE REQUIREMENTS FOR REGISTRA- under this subsection, the registrant shall— ‘‘(ii) is identical or substantially similar in TION.—A State may register a Canadian pes- ‘‘(i) prepare labels approved by the Admin- its composition to a comparable domestic ticide under this subsection if the State— istrator for the Canadian pesticide; and pesticide registered under section 3; and ‘‘(A) obtains the confidential statement of ‘‘(ii) conduct or supervise all labeling of ‘‘(iii) is registered in Canada by the reg- formula for the Canadian pesticide; the Canadian pesticide with the approved la- istrant of the comparable domestic pesticide ‘‘(B) determines that the Canadian pes- beling. or by an affiliated entity of the registrant. ticide is identical or substantially similar in ‘‘(E) REGISTERED ESTABLISHMENTS.—Label- ‘‘(B) COMPARABLE DOMESTIC PESTICIDE.— composition to a comparable domestic pes- ing of a Canadian pesticide under this sub- The term ‘comparable domestic pesticide’ ticide; section shall be conducted at an establish- means a pesticide— ‘‘(C) for each food or feed use authorized by ment registered by the registrant under sec- ‘‘(i) that is registered under section 3; the registration— tion 7. ‘‘(ii) the registration of which is not under ‘‘(i) determines that there exists an ade- ‘‘(7) REVOCATION.— suspension; quate tolerance or exemption under the Fed- ‘‘(A) IN GENERAL.—After the registration of ‘‘(iii) that is not subject to— eral Food, Drug, and Cosmetic Act (21 U.S.C. a Canadian pesticide, if the Administrator ‘‘(I) a notice of intent to cancel or suspend 301 et seq.) that permits the residues of the finds that the Canadian pesticide is not iden- under any provision of this Act; pesticide on the food or feed; and tical or substantially similar in composition ‘‘(II) a notice for voluntary cancellation ‘‘(ii) identifies the tolerances or exemp- to a comparable domestic pesticide, the Ad- under section 6(f); or tions in the notification submitted under ministrator may issue an emergency order ‘‘(III) an enforcement action under any subparagraph (E); revoking the registration of the Canadian provision of this Act; ‘‘(D) obtains a label approved by the Ad- pesticide. ‘‘(iv) that is used as the basis for compari- ministrator that— ‘‘(B) TERMS OF ORDER.—The order— son for the determinations required under ‘‘(i)(I) includes all statements, other than ‘‘(i) shall be effective immediately; paragraph (4); the establishment number, from the ap- ‘‘(ii) may prohibit the sale, distribution, ‘‘(v) that is registered for use on each site proved labeling of the comparable domestic and use of the Canadian pesticide; and of application for which registration is pesticide that are relevant to the uses reg- ‘‘(iii) may require the registrant of the Ca- sought under this subsection; istered by the State; and nadian pesticide to purchase and dispose of ‘‘(vi) for which no use is the subject of a ‘‘(II) excludes all labeling statements re- any unopened product subject to the order. pending interim administrative review under lating to uses that are not registered by the ‘‘(C) REQUEST FOR HEARING.—Not later than section 3(c)(8); State; 10 days after issuance of the order, the reg- ‘‘(vii) that is not subject to any limitation ‘‘(ii) identifies the State in which the prod- istrant of the Canadian pesticide subject to on production or sale agreed to by the Ad- uct may be used; the order may request a hearing on the ministrator and the registrant or imposed by ‘‘(iii) prohibits sale and use outside the order. the Administrator for risk mitigation pur- State identified under clause (ii); ‘‘(D) FINAL ORDER.—If a hearing is not re- poses; and ‘‘(iv) includes a statement indicating that quested in accordance with subparagraph (C), ‘‘(viii) that is not classified as a restricted it is unlawful to use the Canadian pesticide the order shall become final and shall not be use pesticide under section 3(d). in the State in a manner that is inconsistent subject to judicial review. ‘‘(2) AUTHORITY TO REGISTER CANADIAN PES- with the labeling approved by the Adminis- ‘‘(E) JUDICIAL REVIEW.—If a hearing is re- TICIDES.— trator under this subsection; and quested on the order, judicial review may be ‘‘(A) IN GENERAL.—A State may register a ‘‘(v) identifies the establishment number of sought only at the conclusion of the hearing Canadian pesticide for distribution and use the establishment in which the labeling ap- on the order and following the issuance by in the State if the registration— proved by the Administrator will be affixed the Administrator of a final revocation ‘‘(i) complies with this subsection; to each container of the Canadian pesticide; order. ‘‘(ii) is consistent with this Act; and and ‘‘(F) PROCEDURE.—A final revocation order ‘‘(iii) has not previously been disapproved ‘‘(E) not later than 10 business days after issued following a hearing shall be review- by the Administrator. the issuance by the State of the registration, able in accordance with section 16. ‘‘(B) PRODUCTION OF ANOTHER PESTICIDE.—A submit to the Administrator a written noti- ‘‘(8) SUSPENSION OF STATE AUTHORITY TO pesticide registered under this subsection fication of the action of the State that in- REGISTER CANADIAN PESTICIDES.— shall not be used to produce a pesticide reg- cludes— ‘‘(A) IN GENERAL.—If the Administrator istered under section 3 or subsection (c). ‘‘(i) a description of the determination finds that a State that has registered 1 or ‘‘(C) EFFECT OF REGISTRATION.—A registra- made under this paragraph; more Canadian pesticides under this sub- tion of a Canadian pesticide by a State under ‘‘(ii) a statement of the effective date of section is not capable of exercising adequate this subsection— the registration; controls to ensure that registration under ‘‘(i) shall be deemed to be a registration ‘‘(iii) a confidential statement of the for- this subsection is consistent with this sub- under section 3 for all purposes of this Act; mula of the registered pesticide; and section, other provisions of this Act, or the and ‘‘(iv) a final printed copy of the labeling Federal Food, Drug, and Cosmetic Act (21 ‘‘(ii) shall authorize distribution and use approved by the Administrator. U.S.C. 301 et seq.), or has failed to exercise only within that State. ‘‘(5) DISAPPROVAL OF REGISTRATION BY AD- adequate controls of 1 or more Canadian pes- ‘‘(D) REGISTRANT.— MINISTRATOR.— ticides registered under this subsection, the ‘‘(i) IN GENERAL.—A State may register a ‘‘(A) IN GENERAL.—The Administrator may Administrator may suspend the authority of Canadian pesticide under this subsection on disapprove the registration of a Canadian the State to register Canadian pesticides its own motion or on application of any per- pesticide by a State under this subsection if under this subsection until such time as the son. the Administrator determines that the reg- Administrator determines that the State can ‘‘(ii) STATE OR APPLICANT AS REGISTRANT.— istration of the Canadian pesticide by the and will exercise adequate control of the Ca- ‘‘(I) STATE.—If a State registers a Cana- State— nadian pesticides. dian pesticide under this subsection on its ‘‘(i) does not comply with this subsection ‘‘(B) NOTICE AND OPPORTUNITY TO RE- own motion, the State shall be considered to or the Federal Food, Drug, and Cosmetic Act SPOND.—Before suspending the authority of a be the registrant of the Canadian pesticide (21 U.S.C. 301 et seq.); or State to register a Canadian pesticide, the for all purposes of this Act. ‘‘(ii) is inconsistent with this Act. Administrator shall—

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00037 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2058 CONGRESSIONAL RECORD — SENATE February 6, 2003 ‘‘(i) notify the State that the Adminis- istrant that was necessary to make the de- ‘‘(c) Additional uses. trator proposes to suspend the authority and terminations required by paragraph (4); and ‘‘(1) In general. the reasons for the proposed suspension; and ‘‘(ii) the amount of the penalty. ‘‘(2) Disapproval. ‘‘(ii) before taking final action to suspend ‘‘(12) PENALTY FOR DISCLOSURE BY STATE.— ‘‘(3) Consistency with Federal authority under this subsection, provide the ‘‘(A) IN GENERAL.—The State shall not Food, Drug, and Cosmetic State an opportunity to respond to the pro- make public information obtained under Act. posal to suspend within 30 calendar days paragraph (10) or (11) that is privileged and ‘‘(4) Suspension of authority after the State receives notice under clause confidential and contains or relates to trade to register pesticides. (i). secrets or commercial or financial informa- ‘‘(d) Registration of Canadian pesticides by States. ‘‘(9) LIMITS ON LIABILITY.—No action for tion. monetary damages may be heard in any Fed- ‘‘(1) Definitions. ‘‘(B) DISCLOSURE.—Any State employee ‘‘(2) Authority to register Ca- eral court against— who willfully discloses information described ‘‘(A) a State acting as a registering agency nadian pesticides. in subparagraph (A) shall be subject to pen- under the authority of and consistent with ‘‘(3) Requirements for reg- alties described in section 10(f). this subsection for injury or damage result- istration sought by person. ‘‘(13) DATA COMPENSATION.—A State or per- ing from the use of a product registered by ‘‘(4) State requirements for son registering a Canadian pesticide under the State under this subsection; or registration. ‘‘(B) a registrant for damages resulting this subsection shall not be liable for com- ‘‘(5) Disapproval of registra- from adulteration or compositional alter- pensation for data supporting the registra- tion by Administrator. ation of a Canadian pesticide registered tion if the registration of the Canadian pes- ‘‘(6) Labeling of Canadian pes- under this subsection if the registrant did ticide in Canada and the registration of the ticides. not have and could not reasonably have ob- comparable domestic pesticide are held by ‘‘(7) Revocation. tained knowledge of the adulteration or the same registrant or by affiliated entities. ‘‘(8) Suspension of State au- compositional alteration. ‘‘(14) FORMULATION CHANGES.— thority to register Canadian ‘‘(10) DISCLOSURE OF INFORMATION BY AD- ‘‘(A) IN GENERAL.—The registrant of a com- pesticides. MINISTRATOR TO THE STATE.—The Adminis- parable domestic pesticide shall notify the ‘‘(9) Limits on liability. trator may disclose to a State that is seek- Administrator of any change in the formula- ‘‘(10) Disclosure of informa- ing to register a Canadian pesticide in the tion of a comparable domestic pesticide or a tion by Administrator to State information that is necessary for the Canadian pesticide registered by the reg- the State. State to make the determinations required istrant or an affiliated entity not later than ‘‘(11) Provision of information by registrants of com- by paragraph (4) if the State certifies to the 30 days before any sale or distribution of the parable domestic pesticides. Administrator that the State can and will pesticide containing the new formulation. ‘‘(12) Penalty for disclosure maintain the confidentiality of any trade se- ‘‘(B) STATEMENT OF FORMULA.—The reg- crets and commercial or financial informa- by State. istrant of the comparable domestic pesticide ‘‘(13) Data compensation. tion provided by the Administrator to the shall submit, with the notice required under State under this subsection to the same ex- ‘‘(14) Formulation changes.’’. subparagraph (A), a confidential statement tent as is required under section 10. (c) EFFECTIVE DATE.—This section and the of the formula for the new formulation if the ‘‘(11) PROVISION OF INFORMATION BY REG- amendments made by this section take ef- registrant has possession of or reasonable ac- ISTRANTS OF COMPARABLE DOMESTIC PES- fect 180 days after the date of enactment of cess to the information. TICIDES.— this Act. ‘‘(A) IN GENERAL.—On request by a State, ‘‘(C) SUSPENSION OF REGISTRATION FOR NON- the registrant of a comparable domestic pes- COMPLIANCE.— f ticide shall provide to the State that is seek- ‘‘(i) IN GENERAL.—If the registrant fails to ing to register a Canadian pesticide in the provide notice or submit a confidential AUTHORITY FOR COMMITTEES TO State under this subsection information that statement of formula as required by this MEET is necessary for the State to make the deter- paragraph, the Administrator may issue a COMMITTEE ON FOREIGN RELATIONS minations required by paragraph (4) if the notice of intent to suspend the registration State certifies to the registrant that the of the comparable domestic pesticide for a Mr. SESSIONS. Mr. President, I ask State can and will maintain the confiden- period of not less than 1 year. unanimous consent that the Com- tiality of any trade secrets and commercial ‘‘(ii) EFFECTIVE DATE.—The suspension mittee on Foreign Relations be author- and financial information provided by the shall become final not later than the end of ized to meet during the session of the registrant to the State under this subsection the 30-day period beginning on the date of Senate on Thursday, February 6, 2003, to the same extent as is required under sec- the issuance by the Administrator of the no- at 9:30 a.m., to hold a hearing on the tion 10. tice of intent to suspend the registration, foreign affairs budget. ‘‘(B) PENALTY FOR NONCOMPLIANCE.— unless during the period the registrant re- Witness: The Honorable Colin L. ‘‘(i) IN GENERAL.—If the registrant of a quests a hearing. comparable domestic pesticide fails to pro- Powell, Secretary, Department of ‘‘(iii) HEARING PROCEDURE.—If a hearing is vide to the State, not later than 15 days after State, Washington, DC. requested, the hearing shall be conducted in receipt of a written request by the State, in- The PRESIDING OFFICER. Without accordance with section 6(d). formation possessed by or reasonably acces- objection, it is so ordered. sible to the registrant that is necessary to ‘‘(iv) ISSUES.—The only issues for resolu- tion at the hearing shall be whether the reg- COMMITTEE ON THE JUDICIARY make the determinations required by para- Mr. SESSIONS. Mr. President, I ask graph (4), the Administrator may assess a istrant has failed to provide notice or submit penalty against the registrant of the com- a confidential statement of formula as re- unanimous consent that the Com- parable pesticide. quired by this paragraph.’’. mittee on the Judiciary be authorized ‘‘(ii) AMOUNT.—The amount of the penalty (b) CONFORMING AMENDMENTS.— to meet to conduct a markup on Thurs- shall be equal to the product obtained by (1) Section 24(c) of the Federal Insecticide, day, February 6, 2003, at 11:30 a.m., in multiplying— Fungicide, and Rodenticide Act (7 U.S.C. Dirksen Room 226. ‘‘(I) the difference between the per-acre 136v(c)) is amended— cost of the application of the comparable do- (A) in paragraph (1), by inserting ‘‘IN GEN- (Tentative) Agenda mestic pesticide and the application of the ERAL.—’’ after ‘‘(1)’’; Canadian pesticide, as determined by the Ad- I. Nominations (B) in paragraph (2), by inserting ‘‘DIS- ministrator; and APPROVAL.—’’ after ‘‘(2)’’; Deborah Cook to be U.S. Court of Ap- ‘‘(II) the number of acres in the State de- (C) in paragraph (3), by inserting ‘‘CONSIST- voted to the commodity for which the State peals Judge for the Sixth Circuit; John registration is sought. ENCY WITH FEDERAL FOOD, DRUG, AND COS- Roberts to be U.S. Court of Appeals METIC ACT.—’’ after ‘‘(3)’’; and ‘‘(C) NOTICE AND OPPORTUNITY FOR HEAR- Judge for the D.C. Circuit; Jeffrey Sut- ING.—No penalty under this paragraph shall (D) by striking ‘‘(4) If the Administrator’’ ton to be U.S. Court of Appeals Judge be assessed unless the registrant is given no- and inserting the following: for the Sixth Circuit; John Adams to tice and opportunity for a hearing in accord- ‘‘(4) SUSPENSION OF AUTHORITY TO REGISTER be U.S. District Court Judge for the ance with section 14(a)(3). PESTICIDES.—Except as provided in sub- section (d)(8), if the Administrator’’. Northern District of Ohio; Robert ‘‘(D) ISSUES AT HEARING.—The only issues Junell to be U.S. District Court Judge for resolution at the hearing shall be— (2) The table of contents in section 1(b) of ‘‘(i) whether the registrant of the com- the Federal Insecticide, Fungicide, and for the Western District of Texas; and parable domestic pesticide failed to timely Rodenticide Act (7 U.S.C. prec. 121) is amend- S. James Otero to be U.S. District provide to the State the information pos- ed by striking the item relating to section Court Judge for the Central District of sessed by or reasonably accessible to the reg- 24(c) and inserting the following: California.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00038 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2059 II. Bills and expectation to vote on a district U.S. Supreme Court. But in cases in S. 253, A bill to amend title 18, judge or one of the bills we are working the past when that has occurred, with United States Code, to exempt quali- towards clearing. Therefore, Members Rehnquist, Bork and, of course, an- fied current and former law enforce- should be on notice that the next roll- other important appointment, ment officers from State laws prohib- call vote can be expected approxi- Easterbrook, they were made available. iting the carrying of concealed hand- mately at 5:15 on Monday. We will alert And they should be made available guns. [Campbell/Leahy/Hatch/Grassley/ Members to the precise timing, but it here. DeWine/Kyl/Sessions/Craig/Cornyn/Gra- won’t be any earlier than 5:15 on Mon- There is no attorney-client privilege ham/Feinstein/Schumer] day. at work here. The courts have deter- S. 113, A bill to exclude United States Mr. REID. If I could interrupt the mined that applying that privilege to persons from the definition of ‘‘foreign majority leader, I wish to speak for up Congress would impede our work. Both power’’ under the Foreign Intelligence to 15 minutes, and then Senator BIDEN the House and the Senate have refused Surveillance Act of 1978 relating to wishes to speak for up to 15 minutes. to recognize the privilege in their international terrorism. [Kyl/Hatch/ f rules. Former Solicitors argue that the DeWine/Schumer/Chambliss] policy considerations of ensuring can- ORDER FOR ADJOURNMENT did advice outweighs the Senate’s in- III. Resolutions Mr. FRIST. Mr. President, if there is terest in examining this nominee. I S. , National Inventor’s Day [Hatch/ no further business, I ask unanimous don’t think that is valid. Leahy] consent that the Senate resume execu- As I mentioned, the precedent sup- The PRESIDING OFFICER. Without tive session, and that following the re- ports release of these memos to the objection, it is so ordered. marks of the assistant Democratic Senate. Further, the United States’ leader for 15 minutes and the Senator own Department of Justice guidelines f from Delaware for up to 15 minutes, from 2000 state: APPOINTMENT the Senate then stand in adjournment Our experience indicates that the Justice The PRESIDING OFFICER. The under the previous order. Department can develop accommodations Chair, on behalf of the Vice President, The PRESIDING OFFICER. Without with congressional committees that satisfy objection, it is so ordered. their needs for the information that may be pursuant to Public Law 93–642, appoints obtained in deliberative material while at f the Senator from Washington (Mrs. the same time protecting the Department’s MURRAY) to be a member of the Harry EXECUTIVE SESSION interest in avoiding a chill in the candor of S Truman Scholarship Foundation future deliberations. Board of Trustees, vice the former Sen- It is my understanding the Depart- ator from Missouri (Mrs. Carnahan). NOMINATION OF MIGUEL A. ment of Justice has made no attempt ESTRADA, OF VIRGINIA, TO BE f to reach such an accommodation with UNITED STATES CIRCUIT JUDGE the Judiciary Committee. The ORDERS FOR MONDAY, FEBRUARY FOR THE DISTRICT OF COLUM- stonewalling on the Estrada nomina- 10, 2003 BIA CIRCUIT—Continued tion is part of a larger systematic ef- Mr. FRIST. Mr. President, I ask The PRESIDING OFFICER. The fort by this administration to disable unanimous consent that when the Sen- Democratic whip. the Senate, to govern in secret, to ad- ate completes its business today, it Mr. REID. I apologize to the Chair. I vance the interests of big business over stand in adjournment until 11 a.m., know the Chair has things to do. We the public interests. Monday, February 10. I further ask have been in the same position. We I joined an amicus curiae brief in a unanimous consent that on Monday, know that it is not convenient some- matter where Vice President CHENEY following the prayer and pledge, the times to preside, but we were kind of had all these meetings with big oil morning hour be deemed expired, the dared to come out here today, even companies. It was determined that Journal of proceedings be approved to though there are a lot of things going there should be some divulging of date, the time for the two leaders be on. We had a number of people who whom he met with, when he met with reserved for their use later in the day, went to the memorial. Senators from them, and what they talked about. and the Senate then return to execu- the other side said: I am amazed there Litigation had to be filed on that, and tive session to resume consideration of are no Democrats here to debate I joined in that litigation, filing a the nomination of Miguel Estrada to be Estrada. We recognize there is going to friend of the court brief. It is not right a circuit judge for the DC Circuit. be other time to debate, but we do not that there be stonewalling. Here is an- The PRESIDING OFFICER. Without want the record to appear that we are other example of what has happened in objection, it is so ordered. not interested. That is the reason I this administration. f came down here, to offer my opinion. My colleague and a dear friend, the Migrada Estrada has literally had no chairman of the Judiciary Committee, PROGRAM paper trail. Despite what some of my Senator HATCH, has called the Demo- Mr. FRIST. For the information of colleagues have said on the other side cratic calls for more information about Senators, on Monday, the Senate will of the aisle, it is indisputable that So- Estrada ‘‘silly.’’ Well, we have a role as resume debate on the nomination of licitor General memoranda have been Members of the Senate to advise and Miguel Estrada. We have had a number turned over in the past. For example, give consent to nominations forwarded of Senators speak on the nomination the Department of Justice turned over to us by the White House. I don’t think over the past 2 days. The debate has Solicitor General memoranda for Bork, what we are asking is silly. been productive. I will continue to try Rehnquist, and Easterbrook. On execu- My friend may not agree with our po- to reach agreement with my colleagues tive branch appointments, the Depart- sition, but it is not a silly position. on the other side of the aisle to set a ment of Justice turned over memo- Here is a person about whom the His- time certain for a vote on the con- randa for Benjamin Civiletti. panic caucus of the Congress unani- firmation of this very important nomi- While my colleagues may note that mously said: We don’t want him. nation. former Solicitors General have written Here is a person about whom I put in In addition, I understand three addi- a letter opposing the release of these the RECORD over 50 organizations yes- tional district court judges were re- memos, they cite no legal authority for terday saying: We don’t want him. ported by the Judiciary Committee keeping these memos secret. Basically There are lots of different reasons or- today. We are also attempting to clear what they say is it would impede these ganizations give based on his qualifica- several important pieces of legislation people from writing their opinions. It tions, his temperament. We have one of that may require a small amount of de- doesn’t happen very often that these his former employers who said his tem- bate and a rollcall vote. If we are still people are asked to serve on the second perament, demeanor is not appropriate unable to vote on the Estrada nomina- highest court of the land. It is not to serve on a circuit court. In fact, he tion on Monday, it would be my hope often they are asked to serve on the said he was an ideologue.

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00039 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2060 CONGRESSIONAL RECORD — SENATE February 6, 2003 That is not silly. People may dis- lated at least some tentative notions that case of a person who is nominated for a agree with our position, but it is not a would influence them in their interpretation lifetime judicial appointment to the silly position. The Constitution’s con- of the sweeping clauses of the Constitution second highest court in our land. sent requirement is not just a and their interaction with one another. The PRESIDING OFFICER. The Sen- rubberstamp requirement, as my col- This nominee doesn’t fall under that. ator from Delaware is recognized. league himself once observed. When a He also commented: f Democratic President sat in the White It would not merely be unusual, but ex- traordinary if they had not at least given LEGISLATIVE SESSION House, my Republican colleagues opinions as to Constitutional issues in their Mr. BIDEN. I ask unanimous consent called for voluminous document pres- previous legal careers. that the Senate now return to legisla- entations from his judicial nominees, They are asking that the man be on tive session. and they got them. the second highest court in this land The PRESIDING OFFICER. Without Judge Paez, I talked to his mother, and he doesn’t have any opinion about objection, it is so ordered. trying to get him confirmed, and we fi- other opinions written by judges. I f nally did. Senator HATCH knows this. I think that really says it all—why there had his mother talk to Senator HATCH. CRISIS IN NORTH KOREA are questions being raised. Mr. BIDEN. Mr. President, I thank He was held up for 4 years. He was I am going to bring in here—I was the majority leader, Senator FRIST, for asked to provide documentation of hoping to do it today. Everybody accommodating my being able to speak every instance during his tenure as a brings in visual aids to the Senate, and at this moment. lower court judge where he reduced a there have been efforts to cut the size sentence downward from Federal sen- I rise today, after coming from a of them, or to cut them out. Anyway, hearing of my Foreign Relations Com- tencing guidelines. I had no problem that has not been done. Let’s assume with their asking for them. Why did he mittee, where Secretary Powell has we had a chart back here, a big white just testified. I note at the outset that do it? Was his judicial temperament, piece of cardboard, or posterboard, and his activism, as it is called by my I, for one—and I think my view is we had here the judicial experience of shared by many—think Secretary Pow- friend from Utah, so much that he Mr. Estrada. It would be blank. There couldn’t vote to confirm? That is a ell made a compelling and irrefutable would not be anything on it. We would case yesterday about Saddam Hussein’s right that he has. bring out another chart and on that it Judge Marcia Berzon was required to possession of and continued effort to would have Miguel Estrada and it provide the minutes from every single hide his weapons of mass destruction would have there the questions he an- California ACLU meeting that occurred and his desire to gain more. But I am swered for the Judiciary Committee. It while she was a member, regardless of fearful—that is the wrong word—I am would be blank. There would be noth- whether she had even attended the concerned that our understandable ing on it. focus on Iraq at this moment is taking meeting. Does it seem ‘‘silly’’ that we are ask- At that time, Chairman HATCH stat- focus off of what I believe to be an ing questions about this man? I don’t ed: equal, if not more immediate, threat to think so. So I would say that we have [T]he Senate can and should do what it can U.S. interests and those of our allies. I a right and an obligation to move for- to ascertain the jurisprudential views a speak of Korea. nominee will bring to the bench in order to ward the way we are. Last week we learned that North The administration’s secrecy is deep- prevent the confirmation of those who are Korea has moved plutonium fuel rods ly disturbing in all these areas. It is likely to be judicial activists. out of storage and possibly towards a more so in the case of Miguel Estrada. That is not a ‘‘silly’’ thing he is production—for everybody listening, I have talked about Vice President doing. He has a right to do that. Sen- this is complicated stuff and I will ex- CHENEY not giving us information ator HATCH continued: plain what I mean. They announced about the oil companies, and this nom- Determining which of President Clinton’s today they are beginning their 5 mega- nominees will become activists is com- ination is also very troubling to me. If watt nuclear powerplant. What hap- plicated and it will require the Senate to be I could file another court brief in this pens with that type of nuclear power- more diligent and extensive in its ques- instance, I would. It is not available. plant—which we, until now, had them tioning of nominees’ jurisprudential views. This is a different type of proceeding. He had a right to do that. I think the Senators have a constitutional duty shut down with the IAEA, when there Senate should be similarly diligent and to evaluate this nominee. This nominee were cameras and inspectors making probing in its review of Mr. Estrada’s has stayed silent, refusing the Amer- sure it was shut down. What happens is record. Basically, the Judiciary Com- ican people a window into his views, ju- they have fuel rods—as my friend mittee asked him roughly 80 questions dicial philosophy, and his manner of knows well, fuel is a nuclear power, and he didn’t give any answers. He thinking. The administration has simi- produces nuclear power. That spent gave answers such as ‘‘I have not read larly refused to turn over documents rod—in other words, the byproduct of the briefs;’’ ‘‘I wasn’t present during that would illustrate those things to that process of generating electricity arguments;’’ ‘‘I have to independently the Senate. through nuclear power—that so-called research the issue.’’ He was asked to Should we approve this nomination, spent rod is then taken out of that re- name three cases from the last 40 the Senate would be setting a dan- actor and, because of the type of reac- years—Supreme Court cases—of which gerous precedent that would greatly tor this is, it is the byproduct of that he was critical. He didn’t have any. narrow the scope of the important reactor. It is a spent rod that has plu- Even Chief Justice Rehnquist, who power vested in us by our Founding Fa- tonium in it. Plutonium—and I am giv- presided in the Senate during the im- thers. ing an unscientific analysis. Not that peachment trial—and the Presiding Of- It would serve neither the Senate, the American public could not under- ficer was one of the prosecutors—and, I the people of Nevada, nor the rest of stand it, but this is an unscientific thought, handled that impeachment the American people to confer such a analysis of how it works. proceeding with great solemnity—he rubber stamp on this or any adminis- That spent rod is then stored some- was diligent and fair. I may not agree tration, Republican or Democrat. where because it has a radioactive half with all of his legal opinions, but what The Founders carefully balanced the life that is longer than any of us, or a nice man. I was chairman of the powers of each branch of government, our grandchildren, or great-grand- Democratic Policy Committee, and I and the Senate’s role in approving a children are going to have. What we called the Chief Justice and said: Come President’s nominee is a critical part have always worried about is they visit with us at election time; would of that balance, this separation of pow- would take that spent rod and move it you do that? He did that. He answered ers. to a plant not far from the reactor that questions, was real funny, and he had a I submit that the examples I have generates electricity, such as the lights great sense of humor. So Chief Justice provided show that this administration that are on in this Chamber, and they Rehnquist, a person I have great re- has forgotten, or ignored, the impor- are put in a reprocessing plant. spect for, said: tance of that balance. The reprocessing plant is another Since most justices come to this bench no There is no more important a time to process by which that spent rod that no earlier than their middle years, it would be remind this administration of the im- longer generates electricity, that has unusual if they had not by that time formu- portance of that balance than in the the fissile material in it, essentially

VerDate Mar 15 2010 21:10 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00040 Fmt 0637 Sfmt 0634 E:\2003SENATE\S06FE3.REC S06FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 6, 2003 CONGRESSIONAL RECORD — SENATE S2061 takes that rod—it is a long rod and it Fine, Deterrence works, up to a can get your hands on them, and you looks like a big pole, sort of. When it is point, and I am not against reminding put it in a nuclear device they call a put in that reprocessing plant, within 1 North Korea of our military prowess. rifle device. If you can smash those two month there would be enough pluto- But only comprehensive negotiations pieces of plutonium together at the ap- nium—figuratively—that comes out of have a change to move Pyongyang propriate speed in the appropriate that rod that is in a different form— back from the precipice it is approach- sphere, you can have, with just those enough plutonium to construct one ad- ing. two small pieces, a 1-kiloton bomb. A ditional nuclear bomb. That material The administration should overcome nuclear chain reaction starts when does not lend itself to easy detection. its distaste for dealing with Kim those pieces collide in the right cir- Geiger counters don’t click when it Chong-il and engage the North in seri- cumstances. passes through a detection area. It is ous, high level, bilateral discussions to If one of those weapons is home- very hard to pick up, like we pick up end the North’s nuclear program once made—it does not have to be put in a knives in suitcases going through at and for all. missile. Because it is classified, I am the airport. That plutonium is export- Demanding that Pyongyang uncondi- not able to tell you, but I know my able and hardly detectable. It is the tionally surrender before the United friend knows because he has full ac- stuff of which a nuclear bomb is made. States will engage in talks is a nice cess, as I do. If we put that so-called Correct, and prophetic! How then, do fantasy policy, but it has absolutely no rifle device which is, like that old say- we explain the administration’s muted hope in the real world. ing, bigger than a bread box but small- response to the world’s worst We should instead adopt a posture of er than a Mack truck—it is somewhere proliferator taking concrete steps that ‘‘more for more.’’ The President is in between—if you put that in place in could permit it to build a nuclear arse- right when he resists ‘‘paying’’ North a stationary position and detonate it, nal? Korea to abide by the agreements it you would have been able to take down We can’t afford to put this problem has already signed. But that is not the World Trade Towers in, I believe it on the back burner just because we are what I’m talking about. The agreed was 3 seconds—do not hold me to that, preoccupied with Iraq and the war on framework left too much undone. Our but very few seconds—and kill about terrorism. The administration needs to objective should not be to restore the 100,000 people according to our experts. demonstrate the ability to walk, chew status quo ante. Because this material is highly tobacco, and spit at the same time. Rather, we need to seek the removal undetectable and moveable, it is of If we follow the hard-headed engage- of all of the spent fuel rods from the considerable concern. ment prescription, will it work? Will Yongbyon nuclear reactor. We need What does this have to do with any- the North change course? verifiably to dismantle the North’s thing? Why am I standing here when I don’t know. It’s impossible to know highly enriched uranium program. We we may be able to go to war in Iraq if for sure unless we try. I say the odds, need to account for the 8–9 kilograms Saddam does not make the right frankly, are stacked against us, and of plutonium ‘‘missing’’ since 1994, and choice? Why am I talking about this? would have been stacked against us do so sooner. rather than later. We What happened is, the North Kore- even if we hadn’t wasted the last 2 need to get North Korea back inside ans, who are trying to blackmail us years. the Nuclear Non-proliferation Treaty and the world, who are the bad guys, Pyongyang says it wants to resolve and return the inspectors to monitor who are doing the wrong thing and are all of the United States’ security con- the North’s conduct. doing it on their own—I am not sug- cerns, including the ‘‘nuclear issue,’’ Long term, we need to address the gesting anything we did produced that and will do so if the United States for- North’s development and export of bal- or made them do that—they are say- mally assures the DPRK of nonaggres- listic missiles and its abominable ing: We are going forward, and we just sion. Is this price too high? Can the human rights records. turned the light switch on in our 5- North be counted on to fulfill its side To get there, we must bring some- megawatt nuclear reactor that will of the bargain? thing to the table other than threats only produce more spent rods—follow Prior to his departure for Pyongyang and insults. me?—the stuff from which you get plu- in 1994, President Carter was briefed by The North isn’t looking for money tonium, but we have 8,000 of these the State Department on the current from us. That can come from South spent rods sitting in another location. situation in North Korea—its economy, Korea, Japan, our allies, in the form of But all we have to do is take these military capabilities, diplomatic ini- trade, aid, investment, and war repara- spent rods or the new ones we get and tiatives. He kept coming back to one tions. take them over to that reprocessing question, ‘‘What does North Korea The North is looking for respect and plant. We have not clicked the light want?’’ security. These are precious commod- switch on in that plant yet, but we He answered the question himself ities. The North must earn them. But promised you we would not switch the with one word: RESPECT. The under- in the end, it seems a small price to light on in our nuclear powerplant, and lying cause of the 1994 crisis and the pay if the outcome is a denuclearized we are saying: No, we are out; we are current one are the same. Peninsula with North and South living out of the arms control regime; we are North Korea is weak, isolated, and in peace. going ahead and switching the light on, incapable of rescuing itself. Largely If you have a piece of plutonium that and if you do not talk to us—basically, cut off from Chinese and Russian sup- has a base bigger in circumference than blackmail—we are going ahead and port, the DPRK is profoundly insecure. the bottom of the jar I am holding up switching the light on in the reprocess- South Korea’s economy has made pos- and about as half as thick and you ing facility. sible a revolution in military affairs, have the right instrument, the right ri- That puts the President in a very dif- and U.S. military prowess has been fling effect—you know how a bullet ficult position, and I am not suggesting proved repeatedly in the Gulf, the Bal- that has gunpowder in it and a piece of this is an easy call. At the end of De- kans, and most recently in Afghani- metal at the end of it, the stuff that cember, the administration indicated stan. By contrast the North’s conven- goes through your body, the bullet has that it intended to take a careful and tional military forces are obsolete, its to be directed some way; it has to be, deliberative approach to the emerging training budget minuscule. in effect, ignited some way. crisis on the peninsula. The North is one of the obvious tar- What happens is you have a rifle with The emerging crisis occurred when gets of a new so-called ‘‘preemptive’’ a firing pin. It has a long tube. You hit they blocked the cameras of the IAEA, military doctrine, and it is witnessing the back of it, and it explodes the gun- kicked the inspectors out, and they a military buildup in the Persian Gulf powder, fires this projectile through went dark; we did not know what they designed to oust Saddam Hussein from the rifle, through the long muzzle, and were doing. Fortunately, we have power in the very near future. it goes certain distances based on its COMINT and HUMINT, my friend The message to Pyongyang could not configuration. knows, a fancy way of saying human be more clear: ‘‘Be afraid. Be very That is what happens when you have intelligence on the ground and sat- afraid.’’ these two pieces of plutonium, if you ellites above, that give us a pretty

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I then ask the question, What hap- gard to Korea they want to be multi- Other administration officials, in- pens if they do not take this spent lateral, which is a good idea. They say cluding the President, conveyed the fuel? What happens if they do not take China, Russia, South Korea, and Japan importance of patience in assessing and it and put it in a weapon? What hap- have as much at stake as we do, even responding to North Korean threats. pens if they take this plutonium from more. Were North Korea 3 to 5 years away the spent fuel and put it in a little can- So what we are going to do—and it is from acquiring additional nuclear ister? I am told by my staff who is ex- correct if we can get it done—we are weapons, this patience in diplomacy pert on Korea that their total trade going to say we will negotiate or talk would be very appropriate. However, surplus is about $400 million a year. with North Korea only under the um- there are 8,000 spent-fuel rods in North If they have this spent fuel, I cannot brella of a multilateral meeting called Korea, which may now be moving out imagine they would not be able to find by the community I just named, where of storage, that can yield enough fissile buyers where they could pick up maybe we are one of the parties. material for five or six additional nu- $200 million for this. What would Iran What are the North Koreans saying? clear weapons. pay for this spent fuel? They are trying They are saying it does not matter The time line for reprocessing this to now generate the ability to reproc- what the rest of these guys think. We spent fuel is a mere 5 to 6 months, but ess their own fissile material. want to know what you think. We it gets worse. The North Koreans are What about al-Qaida, who I might know if we do not get a nonaggression likely to reprocess plutonium from note is alive and well, unfortunately? agreement in some form from you, our spent-fuel rods in small batches. They Damaged but well, damaged but in legitimacy continues to be at stake. Do we want to legitimize this illegit- do not have to take the 8,000 spent-fuel business. Remember when we saw those imate regime? No. But here is the rods and start to reprocess them, pictures as we took Kandahar, when we horns of the dilemma. If we do not talk meaning that the plutonium emerges a invaded Afghanistan with the multilat- to them about what it is we insist on in few grams at a time. Enough pluto- eral force? Remember a reporter—I for- order to suggest we get a nonaggres- nium to produce one nuclear weapon get which news organization it was, but sion pact or some version of it, if we do can be ready in less than 5 weeks, ac- I think it was one of the weekly maga- not let it be known, we will never know cording to our intelligence people and zines. I will not say which one. I re- whether there could have been an our scientists at the laboratories, after member clearly, and everyone else will agreement, and we almost certainly the initial spent fuel—those 8,000 remember when I say it, they went into know that in the near term there will rods—enter the reprocessing plant, not a safe house, I believe it was in be plutonium that is unaccounted for 8,000 of them but some of them. Kandahar, and came out with a dia- The clock is already ticking, and I gram—a safe house meaning a house coming out of that country. My colleagues might say, oh, that is think it is important that the adminis- occupied by al-Qaida—of an attempt at not true, Joe. All we have to do is we tration’s assessment of the recent re- what looked like how to produce a nu- can take out those reprocessing clear weapon. Then we got further in- ports that North Korea has begun re- plants—and we can, by the way. We can formation saying there was clear evi- moving some or all of those 8,000 spent- take them out in a heartbeat. We have dence that al-Qaida had been talking to fuel rods from those storage facilities— the capacity. We know where they are. two Pakistani nuclear scientists who tell us how this development will im- We can blow them up with our missiles, know how to and have made nuclear pact on the overall policy of the admin- our jets, our standoff bombers. istration in terms of patience. weapons. So obviously these boys are Guess what. There are roughly 8,000 Just restarting this reactor could trying to figure out how to make a pieces of artillery they have sitting produce another 6 kilograms of pluto- homemade nuclear device. within range of Seoul. One of our So I would like to think, and I agree nium, in addition to those that are sit- South Korean friends told us, we do not the probability is North Korea is not ting in these rods right now. If support you using force against the Pyongyang completes construction of likely to sell this—I should not say not North. two unfinished, but much larger nu- likely—may not sell this plutonium. How can we go to war with the North clear reactors, it could produce as They may use it all for their own pur- when the South will not support us? much as 275 kilograms of weapons- poses. Kind of fascinating, isn’t it? grade plutonium each year. What if we are wrong and the ability China says they are prepared to talk When the administration says North to account for this material is vir- with North Korea but you should not Korea’s reprocessing, if they started, is tually nonexistent, because it is so dif- waste any more time. Talk to them. not a crisis, it seems to me it makes a ficult to discern and determine where South Korea is saying you should talk very unhealthy suggestion, and that is it is? The reason why our intelligence to them. In a sense, the President is that the only use of this reprocessed service, even after the agreed frame- put on the horns of another dilemma. plutonium, the stuff that can go right work, is saying we think they have One says we should talk multilateral into a bomb, a nuclear weapon, that enough fuel, enough fissile material, because that is the best way to deal the only use they will use it for is to plutonium from the past to have made with this, and all our multilateral make another six or eight nuclear one or two nuclear bombs by 1994, we partners whom we say should be part of weapons. do not know that. So what happens if the discussion say, no, you talk, which They have, we think, one or two nu- we do not resolve this crisis, draw some is unfair because China will not step up clear bombs now, from the time we red lines, make it clear what our inten- to its obligations and its own interest, shut down the process. We worked out tion is and talk with these guys? What in my humble opinion. So much is at an agreement that they shut down the happens if 6 months down the road they stake for South Korea in terms of the process, and everybody agrees it was have started up the reprocessing plant potential carnage that would occur to shut down in 1994. and we know they have enough pluto- South Koreans, in addition to the 37,000 I would have to agree with the ad- nium for 6 new nuclear weapons, and American forces on the peninsula. ministration because I think deter- then we get an agreement? They are They are saying, whoa, we are not for rence works. They seem to have a dual going to say we did not really produce you taking out those reactors. We are standard here. They say the reason we X amount, we produced Y amount, or X not ready to have you call the bluff of have to build a national missile defense minus whatever. Are we ever going to the North. is if deterrence does not work, and now know where this material is? This is So what does the President do? Imag- they tell us basically: Do not worry, it dangerous stuff. ine being President of the United

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Accurate but provocative. such overwhelming damage to the—and What diplomatic efforts have we ex- The fifth recommendation by this we would win the war, by the way, but hausted? These are great questions, but committee that the notion of buying it would cause such overwhelming the administration has yet to answer time works in our favor is increasingly damage to the very people we went to them. Indeed, the administration can- dubious. Let me reiterate the fifth Korea in the first place to protect, the not seem to decide what it is about the point of the report signed by Carl Ford, South Koreans. north that bothers it the most. Is it No. 2, over at CIA, Wolfowitz, No. 2 at What do we do? I suggest the mem- human rights abuses or past support of Defense, Armitage, No. 2 at State: The bers of this administration have the terrorism, export of missiles, its mili- notion that buying time works in our answer if they listen to the people who tary threat, or its nuclear program? favor is increasingly dubious. are now in their administration. The To me, the priority must be a President Bush, please, even if you Bush administration claims the ball is verifiable ending of North Korea’s don’t want to enunciate it, in your in North Korea’s court. North Korea weapons program, particularly nuclear mind, treat this as a crisis because, if says the ball is in our court. From weapons. Everything else must be put it is not contained now, our options are where I sit, the ball is stuck some- off for another day. only diminished as time goes by, not where in the net, or not even in the The third recommendation of the increased. net. You know how once in awhile Armitage report: A U.S. point person when you were a kid you would fake a should be designated by the President f jumpshot from the corner and it would in consultation with congressional get wedged between the back corner leaders and should report directly to ADJOURNMENT UNTIL 11 A.M. and the rim? That is where the ball is the President. MONDAY, FEBRUARY 10, 2003 We have a fine man named Kelly out right now. Somebody has to jump up The PRESIDING OFFICER. Under of the State Department, but he has no and put the ball back in play. the previous order, the Senate stands How does the ball get put back in direct access to the President. This has in adjournment until 11 a.m, Monday, play? There was a report written not not been raised up to that level because February 10, 2003. long ago called The Armitage Report. we are being told—I don’t know why— Thereupon, the Senate, at 1:15 p.m., He happens to be the No. 2 guy at the that this is not a crisis. adjourned until Monday, February 10, State Department now. In that report, I think the American people and this 2003, at 11 a.m. Mr. Armitage and others—including Congress are fully capable of handling the following people: Paul Wolfowitz, more than one crisis at a time. Iraq is f the No. 2 guy at Defense; the former a crisis. So we are told. Well, it is. But Deputy Assistant Secretary of Defense, not in my view in terms of the imme- NOMINATIONS Peter Brookes; current Assistant Sec- diate threat to the United States. Or retary of Intelligence and Research, the crisis could be in North Korea. Why Executive nominations received by Carl Ford, among others. They are all can’t we do both? the Senate February 6, 2003: part of this Armitage Report filed be- President Bush has downgraded the THE JUDICIARY fore President Bush became Presi- special envoy position, thereby assur- EDWARD C. PRADO, OF TEXAS, TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, VICE ROBERT dent—called for a policy of hardheaded ing that we cannot gain access to Kim M. PARKER, RETIRED. engagement, developing close coordina- Chong-il, the only man in North Korea ROBERT ALLEN WHERRY, JR., OF COLORADO, TO BE A JUDGE OF THE UNITED STATES TAX COURT FOR A TERM tion with our allies and backed by a with whom we can get a deal, or at OF FIFTEEN YEARS, VICE LAURENCE J. WHALEN, TERM credible threat of military force. Their least figure out what he is about. EXPIRED. prescription was remarkably close to Fourth recommendation: Offer IN THE COAST GUARD that offered by former Secretary of De- Pyongyang clear choices in regard to THE FOLLOWING NAMED INDIVIDUAL FOR APPOINT- fense Perry, but has the tremendous the future. On the one hand, economic MENT AS PERMANENT COMMISSIONED REGULAR OFFI- CER IN THE UNITED STATES COAST GUARD IN THE political advantage of having been em- benefits, security assurances, political GRADE INDICATED UNDER SECTION 211, TITLE 14, U.S. braced by so many leading figures on legitimization. On the other hand, the CODE: the Bush foreign policy team, the peo- certainty of enhanced military deter- To be lieutenant ple running the show now. rence. SCOTT ATEN, 0000 What did Armitage advocate? Here For the United States and its allies, IN THE ARMY the package, as a whole, means we are are the key recommendations. THE FOLLOWING NAMED OFFICER FOR APPOINTMENT First, regain the diplomatic initia- prepared, if Pyongyang meets our con- IN THE RESERVE OF THE ARMY TO THE GRADE INDI- tive. U.S. policy toward North Korea cerns, to accept North Korea as a le- CATED UNDER TITLE 10, U.S.C., SECTION 12203: has ‘‘become largely reactive and pre- gitimate actor up to and including full To be brigadier general dictable with U.S. diplomacy charac- normalization of relations. COL. STEVEN J. HASHEM, 0000 terized by a cycle of North Korea prov- This is not JOE BIDEN writing this THE FOLLOWING ARMY NATIONAL GUARD OF THE recommendation; it is Paul Wolfowitz. UNITED STATES OFFICER FOR APPOINTMENT IN THE RE- ocation or demand and an American re- SERVE OF THE ARMY TO THE GRADE INDICATED UNDER sponse.’’ It is the Assistant Secretary of State, TITLE 10, U.S.C., SECTION 12203: Good idea. Now the Bush administra- Mr. Armitage. What happened in a year To be brigadier general tion claims the ball is in their court, as and a half? What happened to change COL. ALBERT A. RUBINO, 0000 I said. their mind? IN THE MARINE CORPS The second recommendation was ‘‘a The good idea of the administration THE FOLLOWING NAMED OFFICER FOR APPOINTMENT new approach must treat the agreed almost seems ready to be embraced. IN THE UNITED STATES MARINE CORPS RESERVE TO THE framework as the beginning of a policy The President has spoken about bold GRADE INDICATED UNDER TITLE 10, U.S.C., SECTION 12203: toward North Korea, not as an end to initiatives toward the north but talk of To be brigadier general the problem. It should clearly formu- carrots still has been undermined by COL. JAMES L. WILLIAMS, 0000 late answers to two key questions. the Bush administration’s insistence IN THE NAVY First, what precisely do we want from that incentives are the equivalent to THE FOLLOWING NAMED OFFICER FOR APPOINTMENT North Korea and what price are we pre- appeasement. TO THE GRADE INDICATED IN THE UNITED STATES NAVY pared to pay for it.’’ Before my committee today, the Sec- UNDER TITLE 10, U.S.C., SECTION 624: I am quoting from the Armitage re- retary of State says we have no inten- To be lieutenant commander port that Wolfowitz signed off on and tion to go to war with the north, et WAYMON J. JACKSON, 0000

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