Buy American Improvement Act of 2003

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, how much time remains for me to discuss the Levin-Bond amendment and the Durbin amendment under the unanimous consent agreement?

Mr. President, let me speak for that 4 minutes to indicate my opposition to the Levin-Bond amendment. As I see that amendment, by adopting it, we would do two things. First, we would be erecting new barriers to the development of meaningful fuel economy standards. Secondly, we would be effectively walking away from an opportunity to do something right about decreasing our growing oil consumption. In both cases, we would be making a mistake.

The Bond-Levin amendment establishes additional criteria that would impose unnecessary hurdles to any significant increase in fuel efficiency standards. There are multiple new factors such as the effect of CAFE standards on the relative competitiveness of manufacturers and levels of U.S. employment. Those kinds of criteria are

being added to the current rulemaking process. In my view, adding those kinds of criteria will only cause the courts to revisit the careful balance that is already struck in the present statute.

NHTSA already considers in-depth evaluations of the impact of a standard on safety, on the environment, and on American jobs. And the Levin-Bond amendment complicates the agency's task by providing a lengthy list of 13 items which, in my view, are unnecessary and deliberately vague new statutory provisions that have to be considered.

This is not progress. We need to be honest with the American people and ourselves and recognize that if Alan Greenspan cannot even tell us the effect of a small drop in interest rates on the economy in the near future--as it is clear that he cannot and has not been able to, and he readily admits has not been able to--how can we expect the National Highway Transportation Safety Administration to possibly determine with accuracy the effect of any change in CAFE standards on employment levels or on relative competitiveness?

Passenger vehicles today already use more petroleum than is currently produced in the United States. The Energy Information Agency projects consumption to increase an additional 2 million barrels per day before the end of this decade. Consumer preference has switched to light trucks and sport utility vehicles in recent years, and this has caused the average fuel economy in the U.S. passenger fleet to actually drop rather than improve. We are going backward with regard to fuel efficiency in vehicles.

Today, we have the lowest fuel efficiency we have had since the early 1980s in our entire fleet of vehicles. A decision not to increase CAFE standards significantly is a decision to become more and more dependent on foreign energy sources.

I just returned from a meeting in the White House, where the President met with many of us, including my colleague from New Mexico, myself, the majority leader, the Democratic leader, and all of us were talking about how important it is that we move ahead with progressive energy legislation, and that we do so in order to reduce our dependence on foreign oil. The biggest factor causing an increased dependence on foreign oil is the increase in the use of oil and gasoline in motor vehicles. Instead of increasing the efficiency with which we reduce the efficiency of our motor vehicles, we are moving in just the opposite direction.

Despite what automakers are saying, new engines, transmission, and hybrid technologies are now available to give automakers the means to increase gas mileage over the next 10 years without reducing either vehicle size or weight. Mr. President, we drove to the White House a few minutes ago in a new Honda Civic that is a hybrid. The average miles per gallon of that vehicle is between 45 and 50 miles.

It is very unfortunate, in my view, that the only hybrid vehicles available to a U.S. consumer today are Japanese vehicles. They are the hybrid that is produced by Honda and the hybrid produced by Toyota.

I see that my time is up. I urge my colleagues to oppose the Levin- Bond amendment. I do support Senator Durbin's amendment. I hope we can adopt that amendment and make some significant progress toward increasing vehicle fuel efficiency.

I yield the floor.

Madam President, I send the amendment to the desk and ask for its immediate consideration.

Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

The amendment Senator Domenici has now offered is a substitute for the entire electricity title of the Energy bill. It purports to contain consumer protections in order to compensate for the fact that in this bill we are also proposing to repeal PUHCA. What is PUHCA? That is the Public Utility Holding Company Act.

I have to agree the substitute amendment Senator Domenici has provided does contain some increase in the authority the Federal Energy Regulatory Commission will have to review mergers and dispositions; that is, some increase in the authority of FERC to review mergers and acquisitions compared to the previous bill. I also concluded the substitute does not do enough to solve the problem.

The amendment I am offering contains the language we passed in last year's Senate Energy bill, language we believe fills this inadequacy, solves this problem in the underlying provision. Not only did the amendment pass the Senate last year, there was an amendment that would have removed this language. That amendment lost in the Senate by a vote of 67-29. Forty Senators voted for much stronger merger review authority than the provision contains.

FERC's merger review authority is essential in this industry which has been based on a system of local and regional monopolies. It is essential that authority be vested in FERC. The industry we are talking about historically has been based on local and regional monopolies and is moving toward depending much more on a competitive wholesale market for electricity generation. The industry is highly concentrated. Consolidation of generation and distribution transmission can prevent the development of a genuinely competitive market.

There are two big problems in the substitute provision Senator Domenici has provided with relation to merger and acquisition authority. Let me try to explain those.

First, this proposal does not cover the generation of energy. Everyone understands there are various parts to the energy industry. There are generation companies involved in generation, there are those involved in transmission, those that are involved in distribution, and some that are involved in all. However, generation is not covered under this language.

The second big problem is there are no real protections against cross-subsidies or encumbrance of assets owned by utilities. That raises a real prospect that people who pay utility bills will wind up subsidizing nonprofitable, unprofitable ventures that companies get into, particularly in the case where there are holding companies involved.

Let me talk about each of these issues. The first key failure I have talked about in the Domenici substitute is it does not make generation acquisitions or dispositions jurisdictional under the law. That means it does not give FERC authority over those. There is no requirement anyone oversee it at the Federal level and sign off on it.

For generation mergers, while it is true most activities in this area are divestiture of generation by vertically integrated utilities at this time, that may not always be the case. Utilities getting rid of generation do tend toward deconcentration of the market but not if they sell to large and growing generation companies. Instead of leading to less concentration, it can lead to more concentration, depending upon who is buying these generation facilities.

Without the authority provided in my amendment, FERC, which is charged with making sure the competitive market produces just and reasonable rates, would have to stand by and watch while the industry reconcentrates rather than deconcentrates. A single company could acquire every generator in this country and FERC could do nothing about it under the Domenici substitute. This is not compatible with the development of a competitive market. Even when the transaction is only the sale of generation facilities, there are serious issues at stake.

Many of the utilities in the headlines lately because they are either facing bankruptcy or have deep financial troubles have come as a result of the utility spinning off its generation to an affiliate who then gets into the unregulated electricity market. As a result, there are companies such as Xcel and Allegany that are experiencing serious financial distress because of the activities of their generation and marketing affiliates, but these affiliates are not under the jurisdiction of the FERC, so there will be no Federal oversight.

The second failure in the Domenici substitute is it does not require the FERC to create real protection against cross-subsidy or against encumbrance of assets in the new merged company. My amendment strengthens the standards under which FERC reviews mergers. Our provision requires the transactions can be shown to do no harm, either to competition, to consumers, or to the capacity of regulators to regulate. Further, it requires that FERC determine there will not be any cross-subsidy of affiliate companies and there will not be any encumbrance of assets for the benefits of the affiliate. This is essential if we are going to protect ratepayers. We did not allow that cross-subsidy to exist. The underlying Domenici amendment does not require that of the Federal Regulatory Commission.

Essentially, our provision requires that FERC create some way to determine the goals of the requirement be met. Perhaps the only way to accomplish this is to create real corporate insulation between the utility affiliate of a holding company and its unregulated affiliates. That could be done by creating firewalls around the utility affiliate, by enacting rules about transactions between affiliates or in a combination of the two.

The purposes behind the Public Utility Holding Company Act which we are ready to repeal as part of this overall Energy bill are to ensure consumers are not harmed by the complexity of corporate structure, that regulation not be made too difficult by that complexity, and that utility affiliates not be allowed to benefit from cross-subsidization or to cross-subsidize nonutility affiliates so that resources of the utility wind up being drained away from service to the customers. This is exactly what the bill requires FERC to do before approving a merger. That is what our amendment requires FERC to ensure before approving a merger.

I have three charts that will try to make this clearer. This is complex. Frankly, one of the difficulties of trying to begin in the evening at 6 p.m. with this very difficult, complex subject, there is an awful lot of knowledge Senators need to have in order to vote intelligently on these issues. Let me try to go through it with the charts.

The first chart is FERC jurisdiction at the present time. The Federal Energy Regulatory Commission, FERC, has jurisdiction over mergers of two different utilities. We are talking about, under the Federal Power Act, utilities that are vertically integrated. That is the traditional utility, the utility that provides electricity to my home in New Mexico, provides electricity to my home in Washington, DC, and to homes all around this country. Utilities own the generation capacity, own the transmission, and own the distribution. If two utilities want to merge, they have to present their proposal to merge to the Federal Energy Regulatory Commission, and the Federal Energy Regulatory Commission looks at that and says this is OK or this is not OK because we have determined it is not going to adversely affect the ratepayers. The people at home who are being served by one or the other of these utilities will not have to pay more if we approve this

merger. That is what FERC has to determine at this point.

In the past, all generation was owned by jurisdictional utility companies. This is the way the system was operated. If you had a plant to generate power, almost certainly that plant was owned by a utility company. There were no independent companies out there saying all we want to do is generate power and then we will sell it to utilities. It was all owned by utilities. If a utility merged with another utility, the merger was jurisdictional at FERC under the Federal Power Act. That means that FERC had to sign off on the deal, essentially, and that was the protection that was built into the law for consumers.

Since all generation except for small renewable generators and cogenerators under the Public Utility Regulatory Policy Act was owned by utilities that were, in fact, under FERC jurisdiction, all mergers involving generation came under the jurisdiction of FERC.

That was a good system as far as it went, but that was the system which made sense when the Federal Power Act was enacted because then we were dealing with vertically integrated utilities.

The world has changed, so let me go to chart No. 2.

Before I talk about the changed world, let me describe this second chart. The title of this chart is ``PUHCA Jurisdiction.'' I said before, PUHCA is the Public Utility Holding Company Act, and the Public Utility Holding Company Act provides essentially a set of restrictions on what holding companies are able to do, and particularly what holding companies are able to do with regard to purchase or acquisition of utilities. If a holding company acquired a utility company, then the Securities and Exchange Commission under PUHCA, the Public Utility Holding Company Act, had jurisdiction and authority to review that acquisition. The relationships between the utility and all of its new affiliates were governed by the Public Utility Holding Company Act.

The proposal we have here before us in the Senate is let's repeal this entire thing. All of the restrictions under which holding companies operate today would no longer apply. The question is, If we do that, what are we going to substitute for that jurisdiction or for that oversight to ensure that consumers are not adversely affected? This shows the holding company over here on the right, and under it you see it owns a utility, it owns other affiliates, it owns perhaps another utility, generation and marketing affiliate--it has a variety of companies it holds as a holding company. The question is, Who is going to have the responsibility to be sure there will not be cross- subsidy so that ratepayers of utilities are not adversely affected if we eliminate the Public Utility Holding Company Act?

Let me move to the third chart to try to explain this. In the new world in which we now find ourselves, we no longer have as many vertically integrated utility companies. More and more we are seeing generation of electric power done by other companies which are not vertically integrated utilities. In this new world, generation is separated from the utility company, and it is either sold to a stand- alone generation company or spun off as an affiliate of a holding company that owns a utility. The sales or the spinoff would not be under FERC jurisdiction under the Federal Power Act, since generation facilities were not specifically put under FERC's authority. Generation facilities wound up under FERC's authority because they were part of integrated utilities. Now we are saying: OK, what do we put in place to live with this new world?

We are saying we need to specify that generation facilities are under FERC authority. They clearly would not be covered--there is no jurisdiction under FERC for the generation affiliate down below, or the generation affiliate of this utility. If those generation affiliates decide to merge, there is no prohibition against that. There is no requirement that any Federal agency review that to see whether it helps or hurts utility payers, ratepayers.

We get back to the point I was trying to make at the very beginning of my comments, which is you could see a company come along and buy up this generation affiliate, that generation affiliate, buy up all the generation affiliates in a region of the country, and do whatever it wished with regard to their rates for electricity, and nobody at the Federal level has oversight to review that.

I do not think that is in the best interests of consumers. I do not think that is in the best interests of ratepayers. Accordingly, I think we should fix it.

There are some horror stories that should make the point that what I am talking about is not just academic. This isn't something we dreamed up in some ivory tower somewhere. These are horror stories that can be read about in the mainstream press, in the trade press; in fact, it is hard to pick up a news publication that does not tell a new story about how some utility or other is in trouble because of its investments in and involvement in nonutility businesses. That is a very common problem that has arisen.

This is a quote from the December Wall Street Journal.

Energy companies burned by disastrous forays into

commodities trading and other unregulated businesses are

increasingly seeking to pass some of the financial burden

onto their utility units. This could lead to higher

electricity rates for consumers in coming years.

That is the Wall Street Journal, which is not a left-wing publication. According to the Journal:

Utilities are being nudged to buy assets from affiliates,

to make loans to down-at-the-heels siblings, or to pass more

money to their parent companies.

Then the story goes on to say:

In many cases, regulators can do little to prevent energy

holding companies from milking their utility units.

What my amendment is trying to do is put in place some protections against this milking of utility units. When you talk about milking a utility unit, that is easily translated into raising electricity rates, raising the rates of the ratepayers in order to compensate for bad business judgments, unprofitable investments in other areas.

It is not enough for us to have in place some vague idea that we want to be helpful to consumers. What we want to say is the Federal Energy Regulatory Commission needs to make a finding when it approves one of these acquisitions or mergers. It needs to make a finding that there is not going to be a cross-subsidy, that we are not going to see the assets of the utility encumbered in order to help some other part of this business, some other part of this holding company. That is what we are saying.

All of these stories result in negative effects on ratepayers and consumers.

When the utility is downgraded, its consumers pay increased costs of capital. Where the utility itself is facing bankruptcy, the effects on consumers can be even worse than that.

Wesstar is one example. Wesstar's regulators have been left with the unpleasant alternative of saddling the utility's ratepayers with $100 million per year, which is the cost that is required to pay down the debt the company caused by its investment in unregulated ventures.

It is clear that utility customers need to be protected against these excesses; that firewalls need to be built between the utility affiliates of a holding company and its unregulated affiliates.

These are not stories from the distant past. These are stories from today's headlines. Let me go into a little more detail on a few of them. Let me mention Wesstar. Wesstar I just mentioned. Let me go into a little more detail about the problem.

Wesstar is the largest utility in the State of Kansas. It is owned by a holding company, WRI, that also owns KP&L, the other large utility in the State. It owns a variety of nonutility companies and holdings. All of these together used to be the Kansas City Power and Light and Kansas Gas and Electric.

Wesstar came under scrutiny last year because of its problems caused by nonutility affiliates. Wesstar had invested in a number of unregulated ventures, including a home security company. That investment did not turn out well. The holding company shifted $1.5 billion of debt from the unregulated companies to the utility.

The Kansas Corporation Commission began an investigation. The Justice Department began an investigation last summer. The Federal investigation

resulted in the indictment of the CEO of the company for bank fraud. The Kansas Corporation Commission investigation resulted in a dramatic restructuring of the company to separate the utility from the unregulated companies of the holding company.

The utility customers, in spite of all that has since happened--these investigations occurred after the fact--are still left with an obligation to reduce the debt of the utility by $100 million a year because of the activities of the unregulated affiliates. Ratings agencies have reduced the debt rating of the company to below investment grade at this time. That is one example.

Let me mention another. AES is a holding company that owns generation assets and marketing assets around the world. In 2000, AES acquired Indiana Power and Light, which is a regulated utility in Indiana. Because of the difficulties in wholesale electricity markets, the utility has been propping up the debt of the parent company over the last 2 years. For the 2 years of 2000 and 2001, the utility's dividend payments to the parent exceeded its earnings by over $100 million. The parent company's rating has dropped from AA minus to double B since 2001. The utility's IPL is at the lowest investment grade. The Indiana Utility Regulatory Commission had no jurisdiction to review the acquisition of the utility by the holding company.

Let me give one more example. That is Portland General Electric. Portland General Electric is a regulated utility in Oregon. PG&E in the late 1990s was acquired by Enron Corporation. The Oregon Public Utility Commission required a number of conditions before it agreed to approve that acquisition. As a result of the corporate separation required by the public utility commission, the effect of Enron's bankruptcy has been less than other similar acquisitions in other States. But even so, PG&E is now a parentless company. It is in danger of being taken over by another company. The fate of the parent company has also had an effect on the ability of the company to gain access to capital markets.

I think the Senators from Oregon are probably better qualified than I to talk in detail about the frustration and dissatisfaction that utility ratepayers in Oregon have felt as a result of their unfortunate circumstance after being purchased by Enron.

The amendment I have offered is straightforward. In my view, it closes a very significant loophole that still exists in the electricity title and substitute electricity title Senator Domenici has presented to the Senate. It will help us head off the kinds of crises and the kinds of inflation or dramatic increase in utility rates that unfortunately have been seen in some parts of the country.

This is one of these issues where I think 2, 3, or 5 years from now people may look back and say, I wonder why I didn't vote for that amendment when we had a chance to plug that loophole. Those of us on the Energy Committee, quite frankly, will be saying, OK, who do we call before the Senate Energy Committee to hold accountable when these problems arise? The reality is it is going to be very hard to call anyone before the Senate Energy Committee unless we strengthen this legislation and put in there some very clear, bright-line tests that ensure we don't have crossover, to ensure the Federal Energy Regulatory Commission is held responsible for overseeing the acquisition, sale, or purchase of generation facilities. If we make a decision here to not vest that responsibility somewhere in the Federal Government--and obviously the place to do it would be the Federal Energy Regulatory Commission--then I think we will rue the day we stopped short of doing that.

I hope my colleagues will support this amendment. It goes to the very heart of the electricity title of this bill. It would correct a very major deficiency in the electricity title of the bill as it now comes before the Senate.

I yield the floor. I urge my colleagues to support the amendment.

Mr. President, let me make a few comments in response to my colleague, my good friend from Wyoming. I do think that he is in an awkward position because he was cosponsor with me of this exact language in the consideration of the Energy bill in the last Congress-- the exact language that I am now proposing by way of amendment. I thought it was the right policy then. I still think it is the right policy. I hope very much we can persuade Senators to adopt it as part of this bill.

His statement was that we are preempting State authority if we adopt the language that I have offered by way of amendment. The National Association of Regulatory Utility Commissioners--those are the State commissioners--characterized the bill we had last year that had this provision in it, the provision I am now offering, as ``an admirable compromise between Federal and State jurisdictional issues.''

That does not sound like the words of an entity that believes it has been preempted to the point that it is unable to do its job. While it is true that States have some ability to deal with some of these problems, it is almost always the case that their statutes do not reflect the degree of protection that is currently in the law in the Public Utility Holding Company Act. They have not needed to have laws to provide those protections because PUHCA was in place. It has been Federal law for many years.

It is also true that many States that have found their customers to be victims of such abuse have not had the ability to deal with the problems. I gave you a couple of examples before where the States came along after the fact and tried to investigate, tried to find some way to make their consumers or their ratepayers whole, and found that they are not really able to do that. Some are trying. Some are trying in the face of tremendous opposition from their utilities to get the necessary authority from their State legislatures.

Do we have to wait for every State in the country to realize that their protections are inadequate once we repeal the Public Utility Holding Company Act or should we not here in the Congress provide at least some minimum protection at the Federal level to replace the protections we are eliminating as we repeal the Public Utility Holding Company Act?

I think we owe it to those who sent us here to provide this minimal protection. PUHCA broke up the industry into manageable chunks and focused on its core business--that is, the provision of a monopoly electric provision service by requiring that utilities either operate primarily in a single State or be regulated stringently at the Federal level by the Securities and Exchange Commission.

Utilities were also forbidden to engage in businesses that were not directly related to their monopoly electric service without explicit approval from the SEC. Large utilities were forbidden from such activities completely. A holding could not acquire more than one utility company in more than one State without coming under these very severe bans.

So the sprawling empires of interconnected corporations owning electricity utilities were broken up. Companies were required to choose between their other businesses--staying in those other businesses or staying in the electric industry.

If we are going to repeal the Public Utility Holding Company Act, as we are proposing to do in this bill, then it is essential that we lodge the consumer protections that are so important to all Americans in a meaningful place. We have seen, over the last few years, how far astray from the goals of providing electricity to consumers at affordable prices our industry can wander. As we move forward, we must be sure that consumers are protected.

Let me make a comparison between the language that I proposed by way of amendment and the underlying language. The reason I am offering my amendment is that the Domenici substitute has in it, in my view, very inadequate language to ensure that consumers are protected. It says:

After notice and opportunity for a hearing, the Commission

shall approve the proposed disposition, consolidation,

acquisition, or change of control--

That is any merger or acquisition anyone proposes and brings before the commission--

if it finds that the proposed transaction will be consistent

with the public interest.

Well, that is fine. I certainly want everything to be consistent with the public interest. But that is somewhat in the eye of the beholder as to what is meant by that phrase. It goes on to say:

In evaluating whether a transaction will be consistent with

the public interest, the Commission shall consider whether

the proposed transaction will adequately protect consumers,

will be consistent with the competitive wholesale markets,

will not impair the ability of the Commission or State

commission from having jurisdiction following the completion

of their transaction over any public utility, and will not

impair the financial integrity of any public utility that is

a party to the transaction, or an associate company or any

part of the transaction, and satisfies such other criteria as

they think is consistent with the public interest.

Essentially, it is going back and saying the Commission has tremendous

authority to decide what is consistent with the public interest and what is not consistent with public interest. Whatever they decide pretty much controls.

What I have proposed in the amendment that I have sent to the desk, and what we had in our bill last year, which my good friend from Wyoming supported last year, was much more specific. It said:

After notice and opportunity for a hearing, the Commission

shall approve the disposition, or consolidation, or

acquisition of control if it finds that the proposed

transaction, No. 1, will be consistent with the public

interest; second, will not adversely affect interests of

consumers of electric energy; third, will not impair the

ability of the Commission or the State Commission; and,

finally, will not lead to cross subsidization of associate

companies or encumber any utility assets for the benefit of

an associate company.

It seems clear to me that we should want to be sure that cross- subsidy will not occur. That is a bedrock requirement, as I see it, if FERC is going to sign off on these acquisitions and mergers. That is why we proposed this amendment.

The other thing we propose in this amendment, which I think is also bedrock, is that companies involved with generation--the purchase and sale of those companies should also be under the jurisdiction of the Federal Energy Regulatory Commission. The FERC has not had to have that authority up until now because we have had the Public Utility Holding Company Act, which ensured there was oversight. There was regulation of those generation companies. That will no longer be the case once the Public Utility Holding Company Act is repealed.

The question is, Who is going to oversee the purchase and sale of generation companies? Who is going to try to ensure that electric utility rates in a region, in a State, in a particular area do not go up because of the noncompetitive merger, or acquisition, or purchase of various generation facilities?

So, clearly, our amendment tries to plug some major loopholes. It is exactly the language we offered in the debate last year. It was adopted at that time by a substantial majority of Senators. It was supported by my good friend from Wyoming last year. It is good policy. It was good policy then, it is good policy now, and it is the kind of test which, if we don't adopt it, we will regret that we did not. It is another one of these circumstances where at some future date we will be giving speeches on the Senate floor saying let's tighten up the regulation, strengthen the regulation; we don't want to see somewhere around the country any more of those problems like we just saw.

I think the opportunity is here today. We know enough about the problem of cross-subsidization. We know enough about the economic difficulties, the financial difficulties that lead to cross- subsidization to anticipate this problem and to get ahead of it and deal with it. That is what my amendment does. I urge adoption of my amendment.

I yield the floor.

Mr. President, I would like to say a few more things about the pending amendment.

Then I do have a second amendment which I am glad to offer this evening as well.

I indicated there are several organizations that have supported the amendment I have sent to the desk, the American Association for Retired Persons, AARP, the Air Conditioning Contractors of America, Consumers for Fair Competition, the Consumers Union, the National Association of State Utility Consumer Advocates, National Electrical Contractors Association, Plumbing, Heating and Cooling Contractors, National Association of Public Citizens, U.S. PIRG. All of those groups support the amendment I have offered.

In addition to that, we have a statement from the Bush administration

which was from last year supporting FERC review of transfers of generation assets, which is part of what the amendment does that I have sent to the desk. I ask unanimous consent that this letter be printed in the Record.

The administration includes language in its draft Electric Reliability Transmission Act to clarify the commission's authority over holding company mergers, and mergers and asset sales involving generation facilities. In another place in the administration's statement it says they support clarifying FERC authority over holding company mergers and mergers and asset dispositions involving generation facilities.

What I am proposing is not a radical policy proposal. It is exactly what we adopted last Congress. It was adopted by a substantial majority of the Senate. It was supported by the Bush administration. Now we are backing away from that.

I am told the Senator from New Mexico, my good friend Mr. Domenici, says this is agreed to by the Public Power Association and by the Rural Electric Cooperative Association. That is fine. I can understand that there are other things in the bill, in the overall electricity title, which cause them to believe this is something they should be quiet about or be willing to support--swallow hard and support, I would add-- but the reality is, it is not good policy for us to leave this issue unaddressed, this issue of adequate authority of the Federal Energy Regulatory Commission to oversee the acquisition or sale of generation facilities. That ought to be covered if we are going to pass an electricity title.

Clearly, there should be authority and an enforceable responsibility on the part of FERC to ensure cross-subsidy does not occur. Those are the two primary things my amendment tries to deal with. I think they are very important.

I have a letter from MBIA, Richard L. Weill, who is the vice chairman of MBIA Insurance Corporation. I will read portions of that for my colleagues, because I think it is instructive. He says:

I am writing on behalf of the MBIA Insurance Corporation in

support of your proposed amendment to the Energy Policy Act

of 2003 that would strengthen the regulatory framework of

utility mergers.

MBIA Insurance Corporation is the largest financial

guaranty insurance company in the world. We have guaranteed

the timely payment of principal and interest on more than $14

billion of electric utility debt. Our guarantee is

unconditional and irrevocable, even in the event of fraud. In

that context, we are profoundly concerned about the strength

and integrity of the regulatory scheme of electric utilities.

We are, in a sense, a gatekeeper to the capital markets for

these utilities. We provide investors with our unconditional

and irrevocable guarantee and, as a result, provide the

utilities with the lowest possible cost of access to the

capital markets. Our Triple-A rating by all major rating

agencies enables the utilities to sell debt at the lowest

interest rate. We can continue to serve these investors and

this industry only if we can be assured of the probity,

comprehensiveness and fairness of the regulatory framework.

Your amendment would require that proposed mergers promote

the public interest that is defined as encompassing the

effects on competition, economic efficiency and regulatory

oversight. It would also close loopholes that enable certain

corporate combinations to avoid being characterized as

mergers.

We believe that this amendment will be viewed favorably by

the capital markets.

We are trying to close loopholes that enable certain corporate combinations to avoid being characterized as mergers. That is exactly the problem with the substitute proposal Senator Domenici has laid before the Senate.

By adopting the language in my amendment--that was in the bill last year--we close those loopholes, we guarantee consumers will be protected, we guarantee these utilities will get the lowest possible interest rates and that this insurance arrangement can remain in effect.

This is a very good amendment. I hope my colleagues will support it. It will strengthen this bill. This is not an amendment offered with the intent of undermining the electricity title. This is an amendment offered with the intent of strengthening the electricity title. It is very well crafted, in my view, to accomplish that.

I yield the floor, and at the appropriate time I will offer another amendment on a different aspect of the electricity title.

Mr. President, I ask unanimous consent to set aside the amendment that I just sent to the desk.

Mr. President, I send an amendment to the desk.

Mr. President, my colleague from Wyoming is here. I mentioned to him that this is an issue which I would like us to try to find some way to resolve. This is something that we may well be able to avoid having a vote on tomorrow, if we can find a way to resolve it.

The amendment I have sent to the desk tries to clarify something in the bill that I think is very important. Senator Domenici's substitute contains a delay in the issuance of the Federal Energy Regulatory Commission's standard market design rulemaking until July 2005. I understand that. That is fine. I am not trying to disturb that. I believe the rule goes too far and should be dramatically modified or completely abrogated.

I know there are Members of the Senate who think 2005 is the wrong date, that we ought to go to 2008 or some other date. Others believe FERC should be permitted to go ahead, and as quickly as they would like. I am not taking a position on that issue with my amendment. I, frankly, can see both sides of the argument.

My amendment leaves the delay of the standard market design rule that Senator Domenici has included in his substitute in place. However, in an effort to prevent the Federal Energy Regulatory Commission from renaming the rule and issuing it under a new title, the bill also goes on to prohibit ``any rule or order of general applicability on matters within the scope of the rule.''

That means the Federal Energy Regulatory Commission cannot issue a rule or order of general applicability on any issue that is dealt with in the proposed rule during the 2 years of the delay.

What kind of actions would this prevent? That is the obvious question.

I think it would prevent the Commission from doing its job. The Federal Energy Regulatory Commission currently has a rule in the process on interconnections to the transmission grid. No matter what that rule says, the Federal Energy Regulatory Commission would be prohibited from issuing it under this language that we have in the Domenici substitute.

Other matters dealt with in the rule that the Federal Energy Regulatory Commission would be prevented from dealing with in a generic manner are such issues as market oversight, market litigation, transmission pricing, the scope of regional transmission organizations--RTOs--the adequacy of rules or transactions across RTO boundaries, and, in short, just about anything that the Commission does about transmission or markets because the proposed rule touches on all of those issues.

There are even rules that the Commission is required to issue by other provisions in this Domenici substitute that they would be prohibited from issuing because of this provision that I am here trying to change. There are a number of rules necessary to get the reliability section to work. The bill requires rules on mergers, on transmission access by public power entities, on participant funding, and other matters.

The provision that I am here trying to modify or change would prohibit the issuance of those rules whereas in another place in the same title we are saying the Commission is directed to issue.

It would be ironic, indeed, if the rule's opponents who want stronger participant funding language in the rule were to have prevented the Federal Energy Regulatory Commission from issuing this rule related to participant funding that they want to see issued because of their zeal to prevent the standard market design from being issued.

I also believe that some of the orders that the Federal Energy Regulatory Commission issued in the Western market crises would be defined as orders of general applicability and would have been prohibited.

If we have another crisis which occurs during these upcoming 2 years,

would we not want the Federal Energy Regulatory Commission to bring order to those markets the way they finally did in the West 2 years ago in the summer?

Everybody, both the opponents and the supporters of the standard market design, should support the amendment I am offering. It is an amendment to clarify that the Federal Energy Regulatory Commission is not banned from issuing any orders or rules that deal with any matter in the proposed rule; that they should only, instead, be prohibited from issuing a standard market design rule by any other name.

So I believe what I am proposing is something that all colleagues who have looked at this issue would agree with. We are just trying to clarify the language so we do not wind up prohibiting the Federal Energy Regulatory Commission from doing the very things we are going to be calling upon them to get done, and that is the effect of the language that is in the Domenici substitute at this time.

So that is the thrust of my amendment. As I say, this is an issue which, frankly, we should not have to be dealing with by amendment on the Senate floor. I would hope we could just get this resolved at a staff level. We have not been able to. I hope that can still happen and that we can avoid having to go to a vote on this question because I think in the final analysis, if anybody will spend a little bit of time trying to understand this issue, they will agree with this change in language that I am proposing. And they will agree that is, in fact, what the Senate would like to see done.

So, Mr. President, with that, let me yield the floor. My colleague may want to speak on this same amendment.

Mr. President, I appreciate the comments of my friend from Wyoming. Now that we know the procedure--that this will not be voted on until tomorrow at some point--therefore, there will be an opportunity, perhaps this evening or early tomorrow, when our staffs can get together to see if there is any way to accommodate this concern I am trying to deal with in this amendment. As I say, it is a concern which I think many Senators will share if they will focus on what we are trying to deal with.

So the amendment is pending. If we have to, we can have a vote on it, but I would hope we could find another way to deal with this issue that will be acceptable to the chairman of the committee and to my colleague from Wyoming and to all Senators.

Mr. President, that is the only other amendment I intended to offer this evening.

With that, I yield the floor.

Mr. President, parliamentary inquiry: I just returned, and I apologize. Where are we now? As I understand it, some time was used on a matter other than this bill charged to other matters. How much time is left now, and who has the time?

I note the distinguished minority whip is here.

He did. Yes.

We object to granting you that privilege at this point. We understand the time will come, but it isn't certain that she will have the next amendment. That is the point.

We have no objection. I misunderstood. I apologize. If you want the Record to reflect that the next Democratic amendment will be Senator Feinstein's amendment on CAFE, we have no objection.

That is correct; whenever you do.

So you don't have any misunderstanding either, we will be finished with the debate and, as we understand it, we will then vote.

That is correct.

We want to accommodate. If there was any misunderstanding, it perhaps was on my part. I have no objection.

I yield the floor and suggest the absence of a quorum, and I ask unanimous consent that the time be charged equally to the remaining three Senators.

That is fine. I was going to make sure he got it by giving him some of mine. I appreciate that very much. It is hard to say who should speak last because the first amendment to be voted on is Senator Bond's amendment. Maybe he should be speaking last. If that is the way we are going to do it----

Well, look, Senator Durbin has 15 minutes. We don't need to give him any more time. He can save 2 of that for just before the vote. We need to save Senator Bond 2 minutes. We need to give Senator Bond 2 minutes to speak in opposition. Senator Durbin doesn't need any additional minutes beyond the 15.

I thought you had been speaking all afternoon--but it is eloquent.

Mr. President, I have how many minutes?

Mr. President, I will try to do it in that period of time. I ask unanimous consent for 3 minutes instead of the 2 minutes and something.

Mr. President, I think I am going to do it in 2 minutes and whatever few seconds.

First, I have been looking forward to this debate all day because it is a very mature debate. The Senate spent a good deal of time last year discussing these two amendments, as well as others. The Feinstein amendment we agreed to and that we will be talking about, I think we discussed it heretofore also, but in any event, a lot of time has been spent discussing these amendments.

In addition to these amendments, I remind Senators that we have already adopted an amendment, that came as quite a surprise, by Senator Landrieu that would require the President to develop a plan to reduce domestic petroleum consumption by 1 million barrels a day by 2013. Since major reductions in oil consumption are most likely going to be achieved through reductions in the use of transport fuels, the President, as a result of the Landrieu amendment, will probably have to focus on measures to increase fuel economy.

I suggest to Senators that the Landrieu amendment may obviate the need for further debate. Nonetheless, we are debating and we will continue to debate. It seems to me the Landrieu amendment gives the President the kind of authority and flexibility needed in this country if, in fact, this issue is as important as it is being alluded to.

Keeping that in mind, if the Senate must choose among the offered CAFE amendments, I must lend my support to the amendment offered by Senator Bond and Senator Levin. Under Bond-Levin, standards will be based upon sound science and solid technical advice. Their amendment mandates that NHTSA experts set a new CAFE number considering jobs, safety, technology, and other key factors.

The Bond-Levin amendment passed overwhelmingly last year. I do not think much has changed. As a matter of fact, we are a little bit more secure in terms of energy now. We are still using a lot, maybe more, but the world is a little more secure in terms of oil dependence. The amendment they have offered is what I would call a commonsense amendment. It would not adversely affect employment, safety, or consumer choice, but it would do the job.

Incidentally, the amendment is supported by the United Auto Workers, the National Chamber of Commerce, the AFL-CIO, the Association of Manufacturers, the Farm Bureau of America, and over 30 additional associations.

When combined with the considerable tax incentives for advanced vehicle technology in the Finance Committee package, the Bond-Levin amendment offers a sensible way to achieve fuel efficiency gains and to reduce our dependence on foreign oil. It does so in a way that would not hurt the United States economy, increase vehicle cost to consumers, and cost American jobs or endanger lives.

I understand the distinguished Senator from Illinois has about 3 minutes, after which time we will start a vote.

Have the yeas and nays been ordered?

I ask for the yeas and nays.

Mr. President, we are going to vote on this amendment, and then immediately following that, the next amendment will be the Bond-Levin amendment, which will be preceded by 2 minutes of debate on the part of Senator Durbin in opposition and Senator Bond in favor. So Senators should know we have one vote, with 4 minutes of debate followed by another vote. I ask unanimous consent that the second vote be a 10-minute vote.

Madam President, I move to reconsider the vote.

Madam President, fellow Senators, if you will not leave, we will vote again very shortly. There are 4 minutes with 2 minutes on each side, and then we will vote on the Bond-Levin amendment. The Senator from Illinois has the first 2 minutes and Senator Bond wraps it up. Then we will vote.

Madam President, if I may have the attention of Senators, please, there are two amendments. One is a Durbin amendment, which Senator Durbin indicated when he sent it to the desk was sent up by mistake. It is a so-called Durbin No. 2 tax amendment. He said, then, that he would like to withdraw it.

I ask unanimous consent that he be permitted to withdraw that amendment.

Madam President, I move to table the Durbin amendment.

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Parliamentary inquiry: Is a motion to set aside the Durbin tax amendment the pending business?

A motion to table.

Let's go.

That having been done, I move to set the amendment aside.

The amendment is withdrawn?

The amendment is still pending. I move to set the amendment of Senator Durbin aside.

I want to set both amendments aside so that I can proceed with another amendment. I ask unanimous consent that the Durbin amendment be set aside and that the Campbell amendment be set aside so that we may proceed with the electricity amendment.

I thank Senator Cantwell for her cooperation. First, I assure her that what we have just done in no way jeopardizes her rights to offer amendments. She has not only one but maybe a number of amendments she wants to offer to the so-called electricity provisions. That will be offered next, and clearly we are going to be on it until Senators have no more amendments. So we are going to be here long enough for the amendments of Senator Cantwell to be offered, whatever they are and however many there are.

Amendment No. 1412

I send the electricity amendment to the desk and ask for its immediate consideration.

Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

The electricity amendment pending at the desk has 13 cosponsors. I thank the cosponsors, Senator Landrieu, Senator Thomas, Senator Murkowski, Senator Campbell, Senator Smith, Senator Alexander, Senator Kyl, Senator Nelson of Nebraska, Senator Hagel, Senator Talent, Senator Bunning, and Senator Coleman.

I have a very brief statement, and I trust Senators will listen. It is to the point. We will be on this until there are no more amendments to offer to this title.

I will be pleased to yield.

Madam President, I can guarantee Senators that the Senator from New Mexico has worked for the last 7 months on this bill. The electricity amendment is a compromise supported by a broad array of stakeholders, much broader than I ever would have thought when I assumed the chairmanship of this committee. I believe that, per se, assumes that this amendment plugs all the so-called loopholes so there will not be any Enron end runs.

I repledge that I will work with any Senator who has an amendment that they think improves upon this bill. That does not mean, however, that every amendment that comes along, that says it makes this bill better, is going to be one that this Senator accepts. I do not want to return to the regulation of PUHCA as a way of protecting the consumers. Quite to the contrary. I believe its day has come. It has served its purpose.

There are a number of letters of support for this electricity amendment which I am offering. Let me start with the administration. They say they support the substitute electricity amendment and believe it will effectively modernize our Nation's antiquated electricity laws.

The National Rural Electric Cooperative Association:

Supports passage of the carefully crafted Domenici

amendment without modification.

The American Public Power Association:

Strongly supports the compromise in its totality without

modification.

The Large Public Power Council:

Supports the electricity substitute without modification.

Electric utility companies such as Mid-America, Allegheny, and Xcel, have offered their support for the Domenici electricity amendment, and I have now told my colleagues that it is supported by 13 Senators.

Because it is bipartisan, we might call it the Domenici-Landrieu amendment. For those who claim we need a balanced energy policy, here is a balanced electric title with wide support that needs to be included in our final bill. Some would add changes to it, and we are willing to look at them, but those who understand the complexities of the issues known as the Domenici electricity amendment know it represents a fair common ground. That is why there is support for this amendment without modification.

I know there will be a number of second-degree amendments, and I am willing to look at them. I have already said I am willing to look specifically at amendments from the distinguished Senator from Washington, Ms. Cantwell. I will look at them carefully. I understand the significance of the problem she confronts. I do not support any amendments yet, and obviously if they disturb the delicate and sometimes gentle balance in this bill, I will have to oppose them. I will look with genuine interest, with the best talent I have, at amendments that Senators have if they think they really address the issues that have beset this country over the past 25, 26 months in terms of natural gas, utility prices, and utility companies and their shenanigans, such as at Enron.

The amendment is now pending. I am very proud of it, and I am pleased to be at this point. I thank the Chair for recognition, and I thank the Senate for paying attention. We are going to be open to amendments, and I understand my friend and colleague from New Mexico, Senator Bingaman, will probably have an amendment shortly.

I yield the floor.

Mr. President, first, I congratulate my colleague from New Mexico on his superb argument and presentation. I regret that I have to disagree. But before I state a few remarks, because I believe my friend from Wyoming has done a very good job of telling the Senate why we don't need this amendment, I would like to ask the Senate and all the Senators and their staffs, who were paying attention on their behalf, to remember now that we are on that very important part of this legislation--the electricity section--which we understood many Senators were worried about, and we understood a number of Senators had amendments.

I have known from the beginning that my friend, Senator Bingaman, had one or two amendments. But I heard other people saying: We don't want to hurry along here because this is a very important piece of legislation and we want to have a chance to offer amendments.

Well, the time is now. I am very hopeful, and the majority leader has told me it is up to me. I look at my distinguished friend, who is very much on top of things in the Senate, the Senator from Nevada, and say that he told me and our leader to stay here as late as we can tonight to get all the amendments we possibly can on this subject.

We know a lot of Senators are busy, but we know they were told we were going to be in session every day this week. We are going to work day and evening. Every evening we work, it takes away an extra day at the end of the week that will detract from our recess. So if Senators have amendments, get them ready. We want them after this amendment.

When I am finished, and after my friend from Wyoming has another chance to speak, if he wishes, I am going to ask the minority side what they would like to do next.

Mr. President, I say to Senator Reid, my desire is that we not vote immediately on the Bingaman amendment, although I am perfectly willing. It is 20 minutes of 7. There is nobody on our side saying we should not. Maybe Senator Reid knows some reasons. I much prefer Senators keep doing what they are doing but that somebody come down and offer another amendment. Then I prefer not to vote on that amendment. I prefer another amendment until we have as many amendments as we can get in by late tonight.

Why do I want to work late tonight? Besides it being Tuesday and we want to finish this bill by Friday, it is the unspoken word that the other side of the aisle, more so than we do, wants to offer some clean- air type amendments that really do not belong on this bill but have historically or traditionally found their way on it because they do not have any other place to go. They want to offer some amendments.

There are apparently two amendments on that side, at least, plus a couple of other amendments in the same vein. They wanted to offer them tomorrow, which can be nicknamed ``environmental day.'' We want to cooperate. To the extent we have to use more of the day for electricity amendments, we use less time for other amendments.

I will in a very few words state my case. In 1935, I was 3 years old. I am not a student of what happened in the world during the Great Depression, but PUHCA was passed. It is funny sounding. It is terrible it had to have such an acronym, PUHCA, Public Utility Holding Company Act. It is almost one of those acronyms that cries out to never be called by an acronym, and it is better to be called the Public Utility Holding Company Act than PUHCA.

Over the years, I have heard that funny word, and I did not even want to find out what it meant, but Public Utility Holding Company was a protective mechanism to make sure that during an era of pyramiding, where big money would buy up utilities, there was somebody watching. As an example, if one very rich bank out of Chicago, IL, started buying up companies all over the country and became a holding company--thus the title.

Nobody is crying for the retention of PUHCA because there are so many other protections for that which it was invented. It is time for that funny name to disappear, and then it will not be used so much. We can then just say ``used to be PUHCA,'' and we will not have to talk about it.

The truth is, as Senator Thomas said--and I agree--expanding FERC's authority to cover acquisition of generating facilities, which is part of Senator Bingaman's amendment, is unnecessary. Furthermore, this amendment preempts States' abilities to protect consumers. Repealing PUHCA will not preclude State and Federal regulators from protecting ratepayers. Access to books and records, as well as rules, regarding debt acquisition will protect investment made on behalf of ratepayers.

Also, the Department of Justice and the Federal Trade Commission will continue to protect against antitrust violations, and the Securities and Exchange Commission, which currently oversees PUHCA, has recommended on a number of occasions that it be repealed with certain consumer protections transferred to FERC and State regulatory commissions, as noted above.

What we are doing is getting rid of PUHCA, the 1935 antiquated law. In place of it, we clarify the jobs FERC does today and expand it only in a limited fashion. Our amendment let's PUHCA review utility transactions. The new authority is granted over gas

acquisitions of utility companies by an electric utility company. This protects consumers and promotes investment in that regard.

Clearly, if ever there was a case where we are overprotecting, it is the utility companies. I mentioned how many protections already exist. PUHCA started disappearing into the woodwork and became subservient and almost consumed by the SEC--they run it. SEC said they do not need PUHCA anymore.

Believe it or not, it is pretty certain, when we finally vote, we are going to get rid of PUHCA. It is like certain past Presidents recommended getting rid of PUHCA and 40 years later something happens. That reminds me of something interesting and funny. About 8 years ago, I was heralded as one who had passed the largest single sale of public property, and all I had done was to take the U.S. Government's ownership of converting highly enriched uranium for use by nuclear powerplants, which is owned by the public, which had been recommended 30 years before to be privatized, and I privatized it. I was heralded for having passed the first multibillion-dollar sale of property of the Federal Government. It is nothing new. It sure did not take any ingenuity, just like it takes no ingenuity to know that PUHCA ought to get out of here.

In getting rid of PUHCA, the test that FERC applies is:

Consistent with the public interest, we do not add new

tests.

Senator Bingaman's amendment does. I do not think we need to add new tests. I believe what is in the bill is adequate for the governance of FERC in that regard.

When I introduced the bill, I told the Senate all the groups that liked this bill--the public-private ownership, all of them. And it is most interesting, they all think we adequately protect against whatever the evils might have been that PUHCA might have covered: Municipalities, the APRAs, the large public power companies. They think there is a pretty good balance just like it is.

At some point in time I hope when we vote on this that Senator Bingaman will understand there are those of us who think what we put in the bill is perfectly adequate and well balanced with reference to protection in this area.

I ask Senator Bingaman and Senator Reid if they are finished? Are we ready for another amendment?

I say to the Senator truthfully, it is not understood how hard I worked and how much I worried and sweated to get to where we are, which is the pending matter. I want Senators to understand we have to get rid of it.

So I do not want to do that. I want Senators to get their amendments, even if it takes us a little while longer. The Senator is implying there may be four, maybe five. I do not know.

Might I ask Senator Bingaman if he has another amendment?

My pleasure is that we have votes tonight, unless the Senate sends word, in its inimicable way, that we are going to get all the amendments on electricity in due course this evening, in which event I would say we will not have any votes.

When does the Senator think she might know?

Could the Senator inquire? What we could do then, while the Senator is inquiring, we could go with the second Bingaman amendment and we will stack them with a clear understanding that when we are ready, we will proceed in the same order they have been offered to vote on them.

To the extent the Senator from Nevada desires and can be helpful--and that is strictly up to him--I would rather we get other Senators to offer amendments. Senator Bingaman has one. Are there any others?

We know Senator Cantwell wants a lot of time and we would say to her she could be last tonight and take as long as she wants. We could then come in in the morning and take some more. I do not think we ought to have her come up and then say the only thing we did tonight was the Bingaman No. 1 and Cantwell all evening. I think we ought to be doing a little more than that.

Let's try to do this: Let us assume that we had Bingaman No. 2 and the Senator from Nevada went off and tried to discern how many other amendments on this subject we have, and that he return and say what they are. I am perfectly willing then to try to set in motion an agreement that some of them would be taken up in the morning.

If we do not know, we are going to stay here and see how many we can flush out.

Does Senator Bingaman want to proceed?

Sure.

First, I thank the Senator for the hard work he is doing, trying to ascertain from Senators at this hour--although we have all been telling them we are working, and this is the work part of the day, it is not hard to find out what they want to do. I thank you for the obviously successful effort you made so far.

Might I say to the distinguished Senator from Nevada, all I want to try to do is move this bill along, as you know, and to do that in a way that is consistent with Senators having ample time to prepare and to present their amendments properly. You indicated to me, without certainty but relatively close, that you probably--we are probably looking at eight amendments, five Senators, with one of them who has three.

I might ask, Is Senator Bingaman's No. 2 included in that?

No. So it is the possibility of nine amendments. I want to tell the Senator from the start that, as far as the distinguished Senator Maria Cantwell, I certainly do not have any objection to 1 hour tonight and 2 hours tomorrow morning. We can start with that. But what I do have some concern about is trying to determine when we would be finished with amendments to the electricity title. I tell you that as much because I have been hearing from your side of the aisle of the great desire to take up two amendments that have to do with climate change. I have been told the only way that can be done, and done right, is tomorrow because everybody will be here. That is two.

I have been told that--and I know--Senator Bingaman wants to offer his amendment with reference to a 10 percent mandatory renewable portfolio, and that belongs in the same package.

I have been told the distinguished Senator has a new source performance review; is that correct? Is that what it is called?

I remember that when I was on the committee--new source review. He had that up once. A couple of Senators came back who were not here then. That may well be why. But that is another one we have to look at.

I guess what I am wondering is, if it would be asking you too much to suggest the following; that Senator Bingaman offer his amendment--I am not suggesting, I am not proposing this officially--he offer his second amendment here, and that Senator Cantwell offer her amendment tonight and debate it for an hour; that you try to find one more amendment to be offered tonight, and then that we reach agreement, come back tomorrow, reconvene at 9 o'clock in the morning, at which time Senator Cantwell would have her time, and all the remaining amendments--that is 9, 10, 11--remaining amendments in this area would be finished by 1 o'clock in the afternoon.

What time would you think?

What would you like, 2:30; 3?

I would like to do this, with your concurrence. Why don't we proceed with the Bingaman amendment, tell Senator Maria Cantwell she will be next for an hour tonight. In the meantime, would you let us work on the unanimous consent request proposal so your staff and ours----

Unless an agreement is worked out, Senator, we are going to have a vote tonight.

Would the Senator like to work on a unanimous consent request that includes Senator Maria Cantwell?

Let us make this effort: That Senator Bingaman would proceed for as long as it takes, Senator Cantwell will offer her amendment and take an hour tonight, and that we work on a UC request together while that is occurring. She will get her 2 hours tomorrow, and we will try to get a consent as to when we might finish. If not, I will go along and say we won't have any votes tonight.

I want to say now--and I will say it three more times tonight before we finish--to Senators wherever they are that we are not quitting tomorrow night at 7:20. If there are Senators who want to be off the Hill, they can be off. We are going to be here tomorrow night voting on amendments that your side wants. We are just about out of amendments on our side of the aisle. I am not sure of any really important ones left. Your side has been telling me they want these very important amendments that they claim are related to this bill. A whole bunch of amendments that are left don't even belong on this Energy bill and are not even within this committee's jurisdiction. This Senator stands up and argues against them but, as a matter of fact, they ought to be argued by another committee chairman. I am not even the one who takes care of them. But I will have to do that.

As long as everybody understands, Senator Cantwell will be taking 2 hours tomorrow. We are going to start at 9 o'clock. We are still going to be on these amendments to this bill. We need Senators to get ready tomorrow morning with additional amendments in this arena. Then we will proceed quickly to the amendments such as the one Senator Feinstein has and all the others. But we will be here tomorrow evening. We will be here plenty late as we take those amendments, as long as we understand we are ready to do what you recommend.

We will stay right on electricity in the morning and try to finish it as soon as we can. I am hoping that it doesn't take all day so we can go to the other issues. But at this point, could we just, so as to protect you, agree that if you will move as follows tonight, we will set aside the current Bingaman amendment so that the second Bingaman amendment can be taken up. Then it will be set aside so we can take up first the Cantwell. She will use 1 hour tonight. We will answer, if we see fit. If not, we will debate it tomorrow. Nonetheless, we will come in tomorrow at 9 o'clock, and when we get on this bill, Senator Cantwell will be up and she will have an additional 2 hours on her amendment. I am merely adding as a matter of discussion that further amendments on this section of the bill will be in order at that time.

Is that fair enough?

Senators understand that means we are not going to vote tonight. But you certainly can look to a late night tomorrow night with votes.

I yield the floor and thank the distinguished Senator.

I say to my friend, Senator Bingaman, perhaps, with a little bit of time, we can work on it and see if there is some way we can avoid an amendment. If not, clearly, you understand yours, and we understand our reasoning why we do not need it; that it should not be an amendment; that it should not be raised to that level; that it is not needed in terms of the full amendment. But we will work on it.

Now, I understand the time has arrived when I would make a request because I don't think I did the other in the form of a unanimous consent request.

I ask unanimous consent that the second Bingaman amendment be set aside so that the distinguished Senator, Maria Cantwell, can offer her amendment, and that she would use up to 1 hour tonight and have up to 2 hours tomorrow on that same amendment.

I ask Senator Cantwell, that is correct, is it not, that you would like up to an hour tonight and up to 2 hours tomorrow on this amendment?

I just wanted to make it clear we are not trying to deny you anything. We just have to have some idea what comes next so other people can be ready. And if it looks as if we come in at 9, you would still have up to 2 hours for further discussion by you and others regarding that amendment.

Mr. President, I thank the Senator from Nevada for the courtesy of allowing me to move ahead with some additional remarks on the Chilean and Singaporean free-trade agreements and on the immigration policy that is attached to those agreements. I have expressed my deep concern about the temporary entry provisions of the free-trade agreements on which we are about to vote. I was prepared to support the trade agreements. However, I believe the USTR has made a terrible mistake in negotiating immigration provisions in these trade agreements, and, thus, delving into areas of authority that should have been left to the Congress.

I spoke to this to some extent on Friday, and I would like to speak again today because I think this is like peeling an onion. The more you look at it, if you look at immigration law, the more you see the major loophole this agreement is creating.

This agreement would create new categories for nonimmigrant visas for free-trade professionals. It would permit the admission, on its face, of up to 5,400 professionals from Singapore and up to 1,400 from Chile each year. That is on its face.

It would require the entry for their spouses and children, so they could join foreign workers in the United States. That, of course, makes it less of a temporary visa program. Those visas can be extended indefinitely. They can be renewed year after year after year ad infinitum. The bill would require without a numerical limit the entry of business persons under categories that parallel three other current visa categories: The B-1 visitor visa, the E-1 trader or investor visa, and the L-1 intercompany transfer visa.

In fiscal year 2002, the State Department issued more than a total of 5,232,492 visas to foreign nationals under the current temporary visa category that parallels those in the free-trade agreement--5.2 million individuals from foreign countries who come here each year and replace American workers in various pursuits.

How many more do we need? This legislation requires the entry of foreign workers in a new way on L-1 visas regardless of whether they are nationals of Singapore or Chile.

I don't think most Members realize that. You can get an L-1 visa now under this trade agreement just if you have been employed by a Chilean or Singaporian country. You don't have to be a citizen of that country. This is particularly egregious, and I will explain why a little later.

The bill would permit but not require the United States to deny the entry of a free-trade professional if his or her entry would adversely affect the settlement of a labor dispute. It would require the United States to submit the dispute about whether it should grant certain individuals entry to an international tribunal. An international tribunal for the first time that I can recall would determine now under this treaty a sovereign right which belongs to the United States of America.

In enacting the Trade Promotion Act, the Congress did not provide the USTR authority to negotiate new visa categories or immigration programs or to impose new requirements on the existing temporary entry system. In fact, the USTR has taken that upon itself.

In negotiating these agreements, the USTR has negotiated a perpetual visa category that we as Members will not be able to modify no matter what the circumstances or the economic consequences may be. Employers can renew these new employee visas each and every year under the agreement with no limit while also bringing in every year an additional crop of new entrants to fill up the annual numerical limits for new visas.

This makes it possible for foreign employees entering the country on a supposedly temporary basis at the age of 22 to remain until he or she is ready to retire at the age of 70.

That is not what temporary visas aim to do.

In effect, by voting for these provisions we are adding to the U.S. labor market a continuous supply of 6,800 guest workers a year in addition to the more than 40,000 from Chile and the 30,000 from Singapore who came in last year under the existing temporary work categories.

In other words, this is in addition to the 50,000 workers who have already come in from these two countries. I don't believe Members realize that.

These workers come in without taking into account the potential impact on U.S. workers.

By voting on this agreement, we as Members of Congress are effectively ceding our authority to limit the duration of these visas when it is in the national interest to do so because we can't change a thing. We can't change a comma. We can't dot an ``i''. We can't cross a ``t''. That is fast track.

Another problematic provision--and we should be very concerned about this--is that the unlimited L-1 visa category included in the Chile and Singapore agreement does not require that these workers be citizens of either Chile or Singapore. They can be from anywhere as long as they are working for a company right now located either in Chile or Singapore.

This means under the agreement, a Chinese or Indian or any other country's multinational corporation with offices in Singapore, for example, can transfer an unlimited number of Chinese or Indian employees to the United States.

What happens if the corporation also has offices in countries hostile to the United States or are state sponsors of terrorism?

Under these agreements, the corporation may send an unlimited number of such nationals to the United States under the E-1 trader visa and the L-1 intercompany transferee visa category.

In other words, these trade agreements create a major loophole through which thousands of foreign workers can come into the country with little scrutiny.

I don't believe there is anybody virtually in this Senate who understands that.

This is the problem of having the USTR negotiate an immigration agreement. They don't understand it either. And I don't think they really understand what has been accomplished here.

Effectively, these agreements permit unlimited entry through Singapore and Chile under the L-1 visa category for any worker anywhere.

In negotiating these agreements, the USTR has eviscerated existing requirements that U.S. corporations first demonstrate that there is a shortage of domestic workers in an industry seeking foreign workers. Every one of us knows that unemployment rates are on the rise. In professional and technical services, it is over 6 percent. In computer and mathematical occupations, it is 5 percent. In architecture and engineering occupations, it is 4 percent. In informational technology, it is 7 percent. In financial services, it is about 4 percent. In business and professional services, it is almost 9 percent.

When there are all of these vacancies, why are we allowing new sources of low-wage labor into this country when we are not facing a labor shortage in any of these industries today? There is no public interest in keeping Americans unemployed in order to accommodate new guest worker programs that would be established by these trade agreements. Quite the contrary. We face the highest unemployment rate in almost a decade, and I can tell you it is high among these worker categories as well.

I think these agreements are going to do no more than foster a race to the bottom where American workers are forced to compete with whatever foreign workers will accept in the lowest wage categories. That is wrong. This trend should be stopped, not exacerbated.

In negotiating these agreements, the USTR has expanded the types of occupations currently covered under the H-

1B visa to include management consultants, disaster relief claims adjusters, physical therapists, and agricultural managers--professions that do not require a bachelors degree. This a weakening of what are supposed to be highly qualified and highly skilled workers. Now they are amending this to permit a whole host of unskilled categories. You don't even have to have a higher education to qualify to come in as a skilled worker in a technical field.

These agreements lower the skill level in another way, too. In negotiating the agreements, the USTR has lowered the standards for which foreign professionals could enter the United States to work. Under current law, H-1B professionals must exhibit--and this is a term of art--highly specialized knowledge in the occupation for which he or she is seeking a visa. This agreement would require the applicant only to possess specialized knowledge. In other words, they are weakening the requirement. You don't need to be highly specialized, just specialized. And then for some, you don't even need to have a higher education.

This distinction is critical because the highly specialized knowledge criteria used under the H-1B program was designed to ensure that employers don't abuse the program to undercut American workers in occupations where there is no skill shortage. I assume that this is a crucial point.

To back that up, neither the trade agreement nor the implementing language would enable the Department of Labor to have the authority to investigate or conduct spot checks at worker sites, as they do now with H-1B visas, to uncover instances of U.S. worker displacement and other labor violations pertaining to the entry of foreign workers. So what this agreement is doing is handcuffing the Labor Department and removing from it specific authority that it has now to go out to investigate and to see whether the law is being abused and domestic workers are being replaced purposefully with foreign workers.

You would say: Well, is this really necessary for them to have this authority? The answer is absolutely. There have been labor violations involving H-1B visas, and not a few but a lot. These violations have jumped more than fivefold since 1998, according to the Labor Department. Back pay awards for such employees who have been replaced have soared by more than 10 times, jumping from about $365,000 in 1998 to over $4 million in 2002. So we know there is fraud going on. What this bill does is just simply eliminate the regulations to eliminate any investigation as to whether the fraud exists or not.

In response to what I have just said about the soaring awards because of fraudulent uses of visas, Labor Department officials have stepped up H-1B investigations. They say there really could be thousands of H-1B workers today who don't file complaints because they fear the loss of their visa.

In the last 5 years, Labor investigated 656 complaints involving H-1B visas. What did they find? They found that out of 308 cases that have become final, the Labor Department found 261 H-1B violations. That is almost a two-thirds rate of violation. Of that number, 227 employers owed 1,413 domestic workers who were replaced by foreign workers almost $8 million in back wages.

This temporary work visa system gives employers tremendous power over immigrants. More than 1 million people already are employed in the United States under visas for skilled workers. The growing trend in H- 1B violations is proof that some companies will, in fact, violate and have violated the worker protection laws to protect their bottom line. This is happening now, and in a tough economy it is going to happen more often. Those of us who are elected by workers to protect them, if we vote for this agreement, fail to do our job because this agreement weakens protections. The most offensive aspect of these provisions is that the USTR has bargained away our sovereign right to set the criteria for admitting foreign visitors and workers to our country. Under the agreement, if Congress determines that the visa categories in this agreement should be subject to numerical limits or labor certification, we could well be subject to defending that decision before an international tribunal. So an international tribunal would decide the sovereignty of the United States of America to make these decisions.

During a time when our country is preoccupied with the threat of terrorism on our soil, what protection do we have to prevent individuals from purposely utilizing and abusing this visa process?

In essence, control over employment-based visas will effectively be taken out of the hands of Congress and placed in the hands of corporate executives, the USTR, and countries that are parties to these types of agreements. That is, frankly, unacceptable to me, and such proposals should be rejected by Congress.

I don't think this Congress should relinquish its plenary authority over immigration to any administration, whether it be Democratic or Republican, nor to any country that is party to a trade agreement. It is hard to imagine that against the backdrop of the highest unemployment rate in almost a decade, this administration has negotiated what, in essence, is a permanent guest worker program. That is the hard fact of what is in this bill.

Today in our Nation, 15 million people are unemployed, underemployed in part-time jobs out of economic necessity, or have given up looking for work altogether; 9.4 million are considered officially unemployed. In California, 1.1 million are out of jobs. The average person has been out of work for 20 weeks, a phenomenon this country has not seen since 1948, in over 50 years.

Yet while we are faced with unprecedented unemployment, we are negotiating and accepting a permanent guest worker program.

Beneath the aggregate unemployment numbers is an even more disturbing trend. Unlike past instances of high unemployment, the ranks of the jobless are increasingly populated by highly skilled, college-educated workers. Workers who typically had little difficulty finding a new job are becoming discouraged by their lengthy stay on the unemployment roll.

A recent CBS news segment on the Nation's unemployed captured so poignantly the lives behind the numbers. The Presiding Officer should know that this CBS clip was actually done in his State. The news footage shows a line of cars stretching out of sight down a flat two- lane road in Logan, OH, where the jobless and struggling families were waiting for the twice-a-month distribution of free food by the local office of America's Second Harvest. The head of the agency said: We are now seeing a new phenomenon. Last year's food bank donors are now this year's food bank clients.

CBS reporter Cynthia Bowers observed:

You could call it a line of the times, because in a growing

number of American communities these days, making ends meet

means waiting for a handout.

There are many reasons for the persistent weakness in the labor market. But I think we are making the situation worse by agreeing to the immigration provisions set out in these trade agreements. Increasingly, American workers have expressed fears of losing their positions to foreign workers who are paid considerably less and whose ability to remain in the United States is often contingent upon their not making trouble from their employer. I must tell you, I didn't believe this 5 or 6 years ago because I was importuned by one CEO after another to vote to increase the quota on H-1B visas.

They all supported me, that there was no abuse. It was only when we began to look deeply into it that we found there was abuse.

Today, more and more out-of-work technology workers are filing complaints with the Government or going to court to protest perceived abuses of temporary visa programs. We cannot simply blame the foreign workers for causing Americans to lose their jobs. It is shortsighted, behind-the-scenes policies such as these visa provisions, negotiated in secret, without any meaningful public hearing, included in trade agreements in small print, that invite a dependence on cheaper, more pliable foreign labor, and thus threaten American jobs.

The scarcity of jobs has left many skilled immigrants more dependent on their employer and less willing to quit if trouble starts. The abuses have been particularly widespread in the high-tech industry, which used H-1B visas to

bring in tens of thousands of programmers and other professionals. Remember, it is not just these workers; there are another 5.2 million coming in each and every year. They come in and companies seize upon them.

Let me give you an example of testimony that is going on right now in the Judiciary Committee in the Immigration Subcommittee. A woman named Pat Fluno, a computer programmer and former Siemens employee, is testifying that she and 14 of her colleagues were required to train their foreign worker replacements before U.S. workers were laid off. Their replacements were foreign nationals on L-1 visas. That is exactly the visa program we are establishing in this trade agreement. They were paid one-third the salary the U.S. workers were making. There is no requirement that L-1 visa employers pay the prevailing wage. Ms. Fluno was making $98,000 a year. Her replacement is making $32,000 a year. This is Siemens, and that is what it did to 15 workers.

Unlike U.S. workers, foreign workers on L-1 visas don't pay income tax. Ms. Fluno, before the Immigration Subcommittee of Judiciary right now, estimates that the Federal Government and the State of Florida would lose over $1.1 million in income taxes as a result of layoffs of the 15 employees.

The international consulting firm that Siemens used to obtain the foreign workers knew that the U.S. workers would be laid off, so they did not use the H-1B visas to bring the workers in; they used the underregulated L-1 visa to get around the existing employer protection of the H-1B visa program. That is what we are creating more of in this bill.

This type of abuse really should stop because if we don't stop it, it is going to go on. Look, if you pay an American worker $98,000 and you can bring in a technical worker and pay them $32,000, and it is OK, how would any of our workers ever be able to own a home and raise their kids?

Temporary professional workers are often paid less than American workers despite requirements that they be paid prevailing wage rates. Employers seeking to hire H-1B workers can base their prevailing wage rates on third party salary surveys up to 2 years old. An H-1B worker in a job since the beginning of 2003 might still be getting the 2001 prevailing rate.

I only use this because H-1B is a much more regulated program than the L-1 visa program that is in this bill. You see how they can kind of gerrymander this program by using out-of-date prevailing wage rates.

In December of last year, a New Jersey-based company, Pegasus Consulting Group, was ordered to pay $231,279 in back wages to 19 former employees. Most of them were Indian nationals. The judge also required the company to pay $40,000 in civil money penalties for violating the prevailing wage provisions of the H-1B visa rules. The judge found that some of the employees had gone several months without being paid. So this is happening today.

Our Nation's growing dependence on foreign workers is not--and I originally thought it was--spurred by a lack of skills or education in the United States. In June of this year, an estimated 1.286 million bachelor's degrees were conferred all across the United States, along with 436,000 master's degrees, 80,400 professional degrees, and 46,700 doctoral degrees. In addition, an estimated 633,000 associate's degrees were awarded. We have told, and continue to tell, our young people to acquire more education, to get a skill, to remain competitive in the job market, and they are doing so.

If an advanced degree, years of experience, and a good work ethic are not enough to land a job and to keep a job, what does the future hold for the American worker? Now, for some, the answer to that question is really pretty tragic.

Just in April of this year, Kevin Flanagan, a 41-year-old software programmer, took his life in the parking lot of Bank of America's Concord Technology Center on the afternoon he was told he lost his job. His father said it was the ``straw that broke the camel's back.'' Flanagan knew that his employer, Bank of America Corporation, as other corporations weathering the economic storm, was cutting high-tech jobs and sending them overseas. He applied for other jobs at the bank but didn't receive responses. His father said: ``He felt like he was fighting a large corporation that pretty much didn't care.''

Kevin Flanagan's death, which is a suicide, underscores the anxiety that has swelled among technology workers throughout this land, at the Bank of America in particular, and elsewhere, as more businesses shift high-tech jobs to foreign workers, even as they cut those jobs in the United States. To add insult to injury, some employers are requiring U.S. workers to train their replacements before they are laid off, and then they see where their replacement worker earns one-third the salary.

So I don't think we should gamble with the lives and livelihoods of American workers with an agreement the consequences of which are so problematic. I really find expanding the least regulated of all the visa categories at a time of economic distress in the United States, at a time when we have so many of our own highly skilled domestic workers out of work and looking for a job, somewhat cynical.

To do this in secret, not do it by virtue of lawmakers who are elected, who know their States, who hold hearings, and then make adjustments to visas is really stealth and very ill advised.

We should never use immigration law as a bargaining chip to negotiate bad trade deals. We should never have offered visas to Chile and Singapore as part of these trade deals, and we should not trade American jobs as part of a free-trade agreement. That is what we are doing in this trade agreement.

Bear in mind, we already have tens of thousands of workers, highly skilled workers, coming in from Chile and Singapore every year under the H-1B visa. What is cynical here is that the L-1 visa does not have the protections the H-1B visa has, and the Labor Department cannot go out and do an investigation and, therefore, cannot certify that no American worker is being replaced in his or her job. So I have to accept that the reason they are doing the L-1 visa is because they want to do just that: replace American workers with foreign workers. Remember, you can have a Chilean-owned company or Singaporean-owned company, I believe, not necessarily in Singapore, that can qualify under this agreement.

The fast-track process should not undermine Congress's authority under the Constitution, and that is what this agreement does. This is a bad trade bill, a bad precedent, and if this Congress does not stand up for its right to protect the American people, who will?

We asked in the Judiciary Committee for more time. We were denied more time. We asked to send this bill back to the administration and ask them to sever the immigration provisions from the trade provisions, and we were refused in our request. I do not think because immigration law is complicated and every visa program has with it a different set of rules, regulations, procedures, and protocols and that creating more of one of the weakest, in terms of protecting American workers at a time when American workers need the most protection because of rampant unemployment--the highest unemployment in the 10 years I certainly have been in the Senate--seems to me it is not timely, it is not economically productive except for the bottom line of some companies.

I believe in these remarks I have shown where many of these visas are being misused. I have shown where there is fraud, where there have been back payments made. And I have shown where already without this program, year in, year out, 5.2 million technical foreign workers come into this country without this addition.

I conclude by saying that I think the real angst, if I may use that word, of this bill is for us to accept the abdication of our constitutional authority and power over immigration law. I cannot do that because I represent a very large State that is going to be affected by this trade agreement, and a State where we have 1,100,000 people out of work, a State where the unemployment insurance trust fund is going to be in deficit at the end of next year and workers will not get anything when unemployed.

I think it is not good public policy at a time of economic deprivation for millions of Americans to be bringing in workers who will take a third of the

salary of their American counterpart, displace that counterpart, not complain and to, by law, say to the Department of Labor of the United States of America: You cannot investigate any one of these complaints, and you cannot make a determination whether, in fact, an American worker has been replaced unfairly by a foreign worker. We should not do that.

I thank the Chair. I yield the floor.

Amendment No. 1386, As Modified

Mr. President, would you tell me how much time there is before the votes on the Durbin and Bond-Levin amendments?

Not on my time.

Mr. President, what is the regular order of the votes on the amendments?

If I understand the unanimous consent request by the Senator from Nevada, there will be 4 minutes before the vote on the amendment of the Senator from Missouri.

I probably have all I need.

Mr. President, please alert me when I have 3 minutes remaining.

Mr. President, before us is the most important single amendment on the question of energy security of the United States. That is quite a bold assertion but I stand by that because we understand how dependent we are on foreign oil. We understand that as long as the cars and trucks that we use in America are not fuel efficient, we will continue to have this dependence on foreign oil. So if we want to secure the Nation from an energy point of view, we have to show leadership on the floor of the Senate. We did that in 1975; 28 years ago, we established standards that said to those producing cars for sale in America: You are not doing a good enough job. Fourteen miles a gallon is unacceptable. You have to do better and we will give you 10 years to improve that. And they did.

At the end of 10 years, 27 and a half miles per gallon was the average fleet economy average across America. It was done because this Congress had the will. This Congress stood up to the special interest groups and said it is more important for the energy future of America and for families and businesses for us to have fuel efficiency. Look what we got for it: safe, fuel-efficient vehicles by 1985--double the fuel efficiency of just 10 years before.

Now I come to the floor and say, why haven't we done anything since 1985? Eighteen years of inaction. Isn't it time for us to show leadership again? You would think I was proposing the end of the automobile industry in America. Listen to the arguments we hear from the other side. A Senator came on the floor today and said: If Durbin has his way, we are all going to be driving golf carts.

Get real. The technology is there. Don't take my word for it. I am a liberal arts lawyer. What do I know about engineering?

In 2001, the National Research Council came out with a report specifying all the technologies currently available that could increase fuel efficiency in cars and trucks. Why aren't they being

put on those vehicles? Because Detroit doesn't have the will to do it. And because they don't, we continue to be sold heavier, more cumbersome, and, in many respects, more dangerous vehicles, with even worse fuel economy; we continue to import oil from overseas and be dependent on the Middle East; we continue to burn that oil, polluting the environment, creating greenhouse gases, resulting in public health problems and a degradation of the environment and, frankly, endangering species on Earth that could live, because they are God's creation, but will be destroyed because we are ignoring our responsibility today.

There are those who said: We cannot do this. We must understand that when it comes to this technology war between the United States and other countries, those who oppose this amendment say: Don't you understand, Senator Durbin, we are not up to this fight; we cannot win this fight; we have to find a way to avoid this battle. And I will say to them: That is not my point of view. I believe America can compete. We have proven it in the past. We proved it in 1975.

These people who are so afraid that we will be forced to put a more fuel efficient car on the road that is also safe have told us it is impossible, and leading that chorus is none other than the big three in Detroit, once again falling behind when it comes to a global challenge to do the right thing. That is sad.

For those of us who want to encourage American automobile manufacture, for those of us who want to stand behind those workers, I ask them the simple question: Why are they afraid to lead? Why are they afraid of a challenge to their creativity, to their innovation, to their leadership? Why must we always take second place when it comes to automobile technology? I think America is capable of much more. But those doubters, those who do not believe America is up to the challenge, say: Defeat the Durbin amendment. If you establish a standard of 40 miles a gallon, America is throwing in the towel; we are giving up; no way we can compete on that kind of a standard.

They also say--and this is the saddest part of their argument--we also know foreign countries can compete and will compete successfully against us. What a sad commentary on American industry for the critics of this amendment to come up with that argument. I do not stand by it. I think if we show our leadership, they will show theirs. They did it in 1975; they can do it again today.

There is an old story--and it is probably anecdotal--that after we passed the CAFE standards in 1975 and said we wanted better fuel efficiency in our cars, in Japan they got the message of the passage of this new law and they said: Go out and hire an army of engineers; we have to be ready to compete. When they got the news of the passage of this new law in Detroit, they called all their leaders together and said: Go out and hire an army of lawyers to fight this law. That is sadly reflective of the mentality that comes to the floor today.

Instead of saying American industry can do better, that American families can expect more, that the next generation will have more safe and fuel-efficient cars, the opponents of this amendment say it is impossible, it cannot be done, and it can only be achieved at the expense of the American automobile industry.

That is a sad commentary. Frankly, it is one we should reject. I say to my colleagues in the Senate: If this Energy bill that involves so much work by so many people, S. 14, is to have any value, aren't we going to address the most important single use of energy by American families and businesses today--our transportation sector and its utilization of the imports of oil? If we do not do that, this bill is just window dressing. It is nice.

There are some aspects of the bill I actually like, but it does not get to the heart of the issue. It fears the heart of the issue because there are people who are afraid of it, and I think they are just plain wrong.

Let me mention a couple of other arguments brought up by my opponents. They said the Durbin amendment achieving 40 miles a gallon by 2015 is too fast and too furious. I remind them, the Durbin amendment is an increase of less than 1 mile per gallon per year for the first 6 years. That is hardly fast and furious.

They say my amendment is going to terminate jobs, safety, and consumer choice. The same weak arguments were made in 1975, and they should be rejected today as they were in 1975.

They say my CAFE levels are arbitrary. Listen, we use a standard, not political argument. The National Academy of Sciences already identified the technologies that can be put in cars and trucks effectively. They also say the Bond-Levin amendment is a great leap forward, but it is a great leap forward for litigation.

The Bond-Levin amendment is not an invitation to innovation; it is an invitation to litigation. Let me tell my colleagues why I say that. They establish the standards by which we can improve fuel efficiency in America through the National Highway Traffic Safety Administration. On one side of this chart are the existing standards. There are a handful of them. The opponents of my amendment decided to add all of these items to the standards that have to be followed by NHTSA before they can improve fuel economy.

What does this mean? It means that if they ever muster the courage to say we can have more fuel efficient vehicles, they will be challenged in court on each and every one of these elements. They will be tied up in court for years. That is exactly what the opponents of the Durbin amendment want. They do not want to see more fuel efficiency. They want this delayed indefinitely. And that delay means more dependence on foreign oil. It means more pollution. It means less energy security for America.

To come up with all of these new categories that have to be met is just a guarantee that, in our lifetime, we will never see a change. For 18 years we have not. NHTSA, left on its own for the last 18 years, has nominally improved MPG, miles per gallon, in America by 1.5 miles per gallon--in 18 years. How long will it take us to reach 32 miles a gallon by that standard? We would not see it this century. That is how slow they are today.

In comes the Bond-Levin amendment and it says: Let's throw some other categories in here and obstacles to increasing fuel efficiency.

The American people get this. American businesses do, too. They understand that more fuel efficient vehicles are going to make a more productive economy, make certain that America is more competitive, make certain there are more and good paying jobs. We are not going to throw in the towel. With the Durbin amendment, we accept the challenge that we can keep our love affair with the automobile alive but do it in a responsible way. It is the kind of situation our Nation has responded to time and again, and I think we should today.

Mr. President, I understand I have 3 minutes to close the debate, is that right?

I ask unanimous consent that a list of organizations supporting the Durbin amendment, as well as a letter from Mr. Chuck Frank of Z. Frank, the world's largest Chevrolet dealer, who supports my amendment, be printed in the Record.

Mr. President, when one lists all of the groups that oppose

this, on business and labor, frankly, we would have found the same opposition in 1975. Those are the same groups that were arguing it is physically impossible for us to have more fuel-efficient cars. If they would have had their way, we would still all be driving cars at 14 miles a gallon or worse.

This Congress rejected those same groups and their positions 28 years ago, but we have not done a thing since. As a result, the fuel efficiency of our cars and trucks has gone down. Is that in the best interest of America? Is that as good as Congress can do, to abdicate our leadership and responsibility on something this essential?

I look at these automobile manufacturers--many of them are my friends and I have worked with them. Certainly, United Auto Workers has been one of my strongest supporting organizations since I have been involved in politics, but I just disagree with them. I believe America can do better. I think if we challenge American business and labor to work together for more fuel-efficient vehicles, they can rise to the challenge. But if we throw in the towel, as the Bond-Levin amendment does, then we know what is going to happen. We are going to continue to see this situation get worse.

The Senator from New Mexico talks about the Landrieu amendment, and I voted for it because it was a wonderful little message to include in this bill, but it does not have any teeth. It has no enforcement. What it basically says to the President is we hope he will see the light, we hope he will lead the way, and if he does, we would sure like to help him.

If that is the case, if that is all Congress is about, why do we have this bill? Why do we not say to the President of the United States, why doesn't he take care of the energy needs of America, and if he needs us, call us? Well, we do not say that. We say we accept our part of the responsibility to pass reasonable laws based on sound science to make America more energy secure.

I say to my colleagues, if we have an energy bill that does not address the fuel efficiency of vehicles, we have ignored the most important energy and environmental issue that should be debated under this bill. The special interests will have won the day again, as they failed in 1975, and as a result we will continue to see dependence on foreign oil, more air pollution, and less energy security for America.

That is not what we should promise to further generations, and I urge my colleagues to support my amendment.

Madam President, under the unanimous consent agreement, I have 2 minutes to speak in opposition to this amendment.

I understand some of my colleagues have offered this amendment in good faith in an effort to address the issue. The amendment which was just defeated addressed the issue. It would have increased fuel efficiency of cars. This Bond-Levin amendment establishes additional criteria for the National Highway Traffic Safety Administration to meet before they recommend and implement any increase in fuel efficiency.

What does this mean? Here are the existing standards that have to be met with the passage of this amendment. We add all of these new standards that have to be met. There are more hurdles to be cleared. It is an invitation for litigation because as the rules are announced those who oppose them will be able to step forward and say: you didn't meet this Bond-Levin criteria or you didn't meet this one. It just means further delay.

We know what NHTSA has done on its own. It has increased fuel efficiency by 1.5 miles per gallon in a span of 18 years. This is false hope. This is a figleaf for those who just voted no and say they want to vote yes. I encourage my colleagues to oppose this amendment.

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, there is an order floating around here on the floor that sets forth about 7 hours of debate on these two trade agreements, the

Singapore and Chilean trade agreements. Is that true?

It has been obtained?

It is my understanding the Senator from California, Senator Feinstein, has an hour under that agreement. Is that true?

I ask unanimous consent that Senator Feinstein be allowed to use her hour on the trade agreements at this time.

Mr. President, under the order now in effect, we have to take somebody's time.

To take whose time?

I have no objection.

Mr. President, pending are the Durbin amendment, the Levin amendment, another Durbin amendment, and the Campbell amendment. I ask unanimous consent that the Feinstein CAFE amendment be the next Democratic amendment in order. I recognize that the right of first recognition comes on the other side. I want there to be an agreement though that the next amendment we would offer would be that of Senator Feinstein dealing with CAFE.

Mr. President, I will yield in a brief minute to the junior Senator from Michigan. While the acting leader is here, I want the record to reflect we are doing everything we can to cooperate in the consideration of this Energy bill. There was an hour we could have done nothing because there was no one here to do anything because they are meeting at the White House. In an effort to expedite matters, there was an order pending on the Singapore and Chile trade agreements. There are 7 hours of debate in an order here before we vote on that; we used an hour of that time even though that was not anything we had to do.

If we were trying to ``slow walk,'' as was said here today, that would have been an easy way to slow walk. The Senator from California came to the floor and used her hour.

The record should reflect this Energy bill is a very complex bill. People in good faith have different views on the legislation. As I said this morning, there is not a single Democratic Senator who does not want an Energy bill.

No. He is not yielding back his time.

Mr. President, now that the manager of the bill is here, I renew a unanimous consent request that I made a short time ago. I ask unanimous consent that the Feinstein CAFE amendment be the next Democratic amendment in order. In addition to the unanimous consent request, I know the Republican manager has first right of recognition, but there is going to come a time when we offer our next amendment. I am alerting everyone that it will be the Feinstein CAFE amendment.

Mr. President, I have the floor.

I ask unanimous consent to have the Lautenberg time.

Mr. President, all day we have heard that we are slow- walking this bill. In an effort to help manage what goes on here, we have asked the Senator from California who has a CAFE amendment to be the next in order. We have 382 amendments. We have about half of them over here. Any one of the Senators can call up any one of their amendments. I think it would be in the best interest of the Senate if we have an orderly process for offering these amendments. This does not disadvantage the majority in any way. We have done what we can to help move this bill forward. Senator Feinstein spoke. She came over to offer this amendment and couldn't do it.

Mr. President, so there is no misunderstanding. I ask unanimous consent--this is for the Democratic Senators--that next Democratic amendment that we offer, whenever that might be, will be the Feinstein CAFE amendment.

That is right.

We will vote. Following that vote we have two amendments to dispose of--another Durbin amendment which may work out very easily, and the second is the Campbell amendment. Following that, we have been advised on several occasions that the majority who has first right of recognition wants to offer the new electricity section.

That is fine. Whenever we offer our next amendment, Senator Feinstein will offer her amendment on CAFE.

Will the Senator yield?

This will be off of Senator Lautenberg's time. The Senator from Missouri, Mr. Bond, has asked that the proponents of these amendments have some time to speak before the votes take place. Senator Durbin should be able to speak last, which is normal; it is his amendment. I want to make sure everybody has ample time to speak. The Senator from Missouri said he wants 2 or 3 minutes. Is that OK if Senator Bond has 2 minutes?

The Senator said you are going to be first.

Mr. President, I ask unanimous consent that there be 4 minutes equally divided.

I modify my request to that effect.

Reserving the right to object, the Senator from New Mexico, the manager of this bill, can have whatever time he wants.

I announce that the Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. Kerry), and the Senator from Connecticut (Mr. Lieberman) are necessarily absent.

I further announce that, if present and voting, the Senator from Massachusetts (Mr. Kerry) would vote ``yea''.

I announce that the Senator from North Carolina (Mr. Edwards), the Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. Kerry), and the Senator from Connecticut (Mr. Leberman) are necessarily absent.

I further announce that, if present and voting, the Senator from Massachusetts (Mr. Kerry) would vote ``nay''.

Objection. Madam President, I suggest the absence of a quorum.

Madam President, I suggest the absence of a quorum.

If I could ask the Senator from New Mexico a question?

As I understand it, the Senator indicated what he would like to do tonight on the electricity title is have people come and offer amendments on the electricity title.

Senator Bingaman has an amendment. Senator Cantwell perhaps has an amendment. There are a number of other Senators who wish to maybe offer amendments. The question I have to ask the Senator from New Mexico is, there are people who have amendments on other issues, separate and apart from the electricity title, and at least two Senators have asked if the Senator from New Mexico would allow the electricity title to be set aside and go to other areas.

I understand.

If I could respond, the manager of the bill on our side does have another amendment he could offer tonight. I would like to continue my colloquy with the Senator from New Mexico, through the Chair. We have people wondering, are we going to vote on the first Bingaman amendment now, the second Bingaman amendment; are we are going to have two votes? What is the pleasure of the Senator from New Mexico?

I respond to my friend from New Mexico, I do not think that is going to happen. Senator Cantwell, for example, has amendments she wants to offer. She wants to take a little time on the first amendment. It is going to be more than a few minutes. She has asked for some time on that. If we cannot agree on a time, I assume she would talk for a little while and then offer the amendment.

Well, she is ready to offer her first amendment but that is going to take some time. I do not know if she is willing to finish the debate on it tonight. I could call and ask her.

I say to my friend from New Mexico, I think realistically if Senator Cantwell's is going to be the next amendment, it will be very difficult to finish all of the electricity amendments tonight. There are other people who want to offer amendments.

I say to my friend from New Mexico, as I said earlier today, I know how hard he has worked to get the bill here and how important this bill is to him personally, and how important he believes this is for the country, but I say as sincerely as I can we are not going to be able to offer all the amendments on electricity tonight. I just do not think it will happen. I will go to the cloakroom and make some calls while the second Bingaman amendment is offered, but I think if the Senator's statement is that we are going to have to vote on the two Bingaman amendments unless we finish offering amendments tonight, we are going to have to vote on the two Bingaman amendments because I do not think we can get through all the amendments tonight.

I will be happy to respond to the Senator in the next little bit.

Mr. President, I need to confer with the Democratic leader about the question asked by the Senator from New Mexico. In the interim, I ask unanimous consent that the Senator from Illinois, Mr. Durbin, be recognized to speak for up to 5 minutes as in morning business regarding an unfortunate death of one of his close friends.

I indicated to my friend, the distinguished senior Senator from New Mexico, and Senator Bingaman, the manager on our side, that I would check to find out what we have in the way of amendments.

This is certainly an incomplete list. We have not hot-lined this, but we have had people call the cloakroom. We have five Senators who wish to offer amendments at this stage. We have at least one of those Senators who is going to offer multiple amendments--multiple means maybe three, maybe four amendments.

To make a long story short and not take undue time, we would be agreeable to having the second Bingaman amendment debated tonight. We would lay down the first Cantwell amendment with the understanding that she will lay that amendment down tonight and debate it for an hour tonight. She wants 2 hours on it tomorrow.

If the Senator from New Mexico, the chairman of the committee, does not want to agree to this, then we should have the two votes on Bingaman, and likely we will not offer any more amendments tonight.

If my friend will yield for one other thing I should have said before?

As the Senator from New Mexico knows, this electricity title is very important to some Members of the Senate. None of these amendments, I want the record to reflect, are done in any way to slow up, slow walk, or stop this bill. These amendments, as has been seen by the amendments of the Senator from New Mexico, are amendments offered in good faith to try to improve this bill.

That is true. New source review.

We couldn't agree to that.

If Senator Cantwell debates for 2 hours, that is 11 o'clock.

And we have three votes, that takes us to about 12 or 12:15. That would be almost humanly impossible.

I say to my friend, I have no authority. I am dealing with five Senators who are all Senators in their own right. I am here just trying to help a little and take phone calls from them, things of that nature. Some of them, frankly, are out doing other things tonight. We could not agree to that.

The Democratic leader, with whom I spoke just a few minutes ago, indicates he thinks, and I would acknowledge he is probably right in this regard, about as far as we can go tonight is lay Cantwell down, get a time agreement on hers. Maybe during--not maybe, but during the morning hours when she is debating hers, we would be able to try to come up with a list of amendments.

But any one of these Senators can object to a finite list. I just don't see anything happening in the next few hours.

I say to my friend, I am very happy to do that. One thing that people on my side--and, frankly, I have gotten a call from somebody on your side. Are there going to be any votes tonight?

Then there will be no Cantwell amendment offered tonight. As soon as Bingaman is offered, we can vote on that, and there will be no Cantwell amendments tonight.

I say, Senator Bingaman is going to take a little bit of time. He said he wouldn't take very long. But if he takes a half hour and there is response to that, we are not going to finish what we are doing now until 8:30, quarter to 9. Senator Cantwell is not going to offer an amendment at that time.

If you want to finish Bingaman, have Cantwell laid down tonight, and have Cantwell come in in the morning, that is fine. Have votes whenever you want them, but if we are going to have votes on Bingaman, we are not going to offer any more amendments tonight.

I say through the Chair to my dear friend, the senior Senator from New Mexico, that I don't think it is possible to get an agreement locking in these amendments. I just do not think it is possible. I don't want to act in bad faith. I would like to do that. I believe in an orderly body. But I just don't think I can get that done. We have people off the Hill and people just automatically object to things at this time of night. I don't think we can get it done.

If I could through the Chair, is the Senator from New Mexico saying that tomorrow we are going to move off of the electricity title into other areas?

I understand very clearly the chairman of the committee.

Very fair.

Mr. President, reserving the right to object, it is my understanding, then, that the request is that Senator Cantwell would be able to lay down her amendment tonight, that she would have up to 1 hour tonight, 2 hours tomorrow, and there would be no tabling motion before that 2 hours is up in the morning.