DSHEA Full Implementation and Enforcement Act of 2003

Mr. President, it is our intention to move next to the amendment of the Senator from Hawaii, Mr. Akaka; and, after that, to the amendment of Senator Cantwell. However, Senator Specter from Pennsylvania has an amendment which he wishes to propose. The time will not be long and he has another time commitment. I ask unanimous consent that Senator Specter be recognized before we proceed in the manner that I have outlined.

Mr. President, I suggest the absence of a quorum.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, it would be my intention on this side to accept this amendment.

I assumed we would go to the amendment from the Senator from Washington.

I ask unanimous consent that this amendment be set aside.

Mr. President, quick housekeeping.

Amendment No. 2088

Mr. President, I ask unanimous consent that we go back to the Akaka amendment.

I call for a vote on the Akaka amendment.

I move to reconsider the vote and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 2087

Mr. President, I move that we go back to the Cantwell amendment.

Mr. President, I am not familiar with this issue, but I have asked members of the Energy Committee about it, and they have indicated opposition to the Cantwell amendment. There are some members of that committee who are on their way here. In the meantime, I will share with my colleagues the contents of a memorandum with respect to the Cantwell amendment that has been provided to Senator Domenici.

In this memorandum, the following objections are raised.

First:

FERC has and is using its authority to stop fraud and

manipulation. . . .

FERC has demonstrated that it will use the full extent of

its authority to assure honest, fair wholesale electricity

markets.

FERC has taken a number of initiatives which are listed in the memo and which I will share with Members if the appropriate members of the Energy Committee do not arrive.

The second objection to the Cantwell amendment is that it is too vague. It is suggested that:

It is written in such general terms that it will lead to

greater uncertainty. A general ban on manipulation will not

help companies determine what conduct amounts to manipulation

and what conduct is appropriate behavior in a competitive

market. . . . [A] blanket prohibition on ``manipulation,''

without defining the elements of what constitutes

manipulation . . . could have a chilling effect on the market

without meaningfully adding to the protections already

available to electricity customers under existing law.

The third objection is that:

The Cantwell Amendment could lead to duplication and

confusion among the agencies.

The enabling statutes of the Commodity and Futures Trading

Commission (CFTC) and the Securities Exchange Commission

(SEC) already contain broad prohibitions against conduct that

is intended to manipulate markets. Adding such another broad

general prohibition to the Federal Power Act would only lead

to unnecessary duplication and potential conflict between

various enforcement agencies.

In addition, the Federal Power Act already prohibits

wholesale electricity prices that are not ``just and

reasonable.'' Therefore, FERC has the authority to

investigate electricity prices and to require refunds if

prices are not ``just or reasonable'' or modify contracts if

it is in the public interest to do so.

The House and Senate Energy bills both would enhance FERC's

existing refund authority and increase civil and criminal

penalties for violations of the Federal Power Act.

The memo makes the point that this issue has been addressed in the Energy bill, and that is the place for it to be done.

The next objection raised is:

The number of Federal investigations and prosecutions by a

broad array of agencies demonstrates there is no need for the

Cantwell Amendment.

Federal agencies have been and continue to be active in

investigating criminal offenses in the energy industry.

These agencies as listed in the memorandum include the President's Corporate Fraud Task Force, the Federal Bureau of Investigation, the Federal Energy Regulatory Commission, the Securities and Exchange Commission, the Commodity Futures Trading Commission, the United States Postal Service, and numerous U.S. Attorney's offices across the country.

Through ``cooperative enforcement,'' these agencies have

focused on investigations of possible round trip trading,

false reporting and fraud and manipulation by energy

companies and their affiliates, employees and agents. There

have been a number of arrests, settlements and continued

investigations and prosecutions reported based on these

agencies' efforts.

And the argument is made that:

The Cantwell Amendment will not improve or change these

actions.

Then reference is made to:

The Domenici Electricity Amendment effectively deals with

market manipulation.

This is the amendment that is part of the Energy bill that is now in conference. The memo outlines all the reasons why that particular amendment is sufficient.

As I say, I am waiting for a member of the Energy Committee to come make these arguments with perhaps a little more background than I have. I would like to move to a vote on this amendment, so I ask, before I would suggest the absence of a quorum, if the Senator from Washington would agree to a vote, let us say, at 4:20. Would that be a sufficient period of time for the Senator?

The Senator is suggesting we vote right now? I am willing. I am anxious to move as much time as possible. If the Senator is ready, if there is no one else who wants to speak on this issue----

I see the Senator from Nevada is on the floor, and he may wish to speak.

I would ask, then, following the remarks of the Senator from Nevada, if no other Senator has come wishing to speak, we proceed directly to the vote.

Mr. President, will the Senator yield for another unanimous consent request?

I would propound a unanimous consent request that the vote occur at 4:30.

I thank the Senator.

Mr. President, I would be happy to vote on the Cantwell amendment immediately and then go on to other business connected to the bill.

Mr. President, I understand there are several Senators who have amendments they would like to offer. Senator Dayton has one. Senator Bingaman has one. We have not yet had an opportunity to go through the Bingaman amendment which came to us relatively recently. So I would prefer to go to Senator Dayton to give us a little more time to examine the Bingaman amendment, but that could be the decision of the minority. I prefer to go to Senator Dayton's amendment next if that is agreeable.

Mr. President, I ask Senator Dayton if he would give us some indication of how long he thinks he will take on his amendment and see if we cannot enter into a time agreement so that we can know when we might be able to vote.

Mr. President, I ask unanimous consent then that we vote on the Dayton amendment at 5:15.

I ask the Senator if he would withhold for just a moment. We are trying to pull a few things together. But I am more than happy to have the time appropriately spent other than in a quorum call.

If the Senator will withhold for just a few moments, I will be in a position to respond.

Mr. President, the chairman of the Budget Committee is anxious to come over to develop the issue of the budget point of order for emergency designation with respect to the amendment offered by Senator Dayton. As he has indicated, it is $6.3 billion, and there is no offset in the bill. Our bill is $1 billion below last year's fiscal year 302(b) allocation, and therefore this is obviously a very significant number.

Until the Senator from Oklahoma, the chairman of the Budget Committee, has an opportunity to be here to review this matter with us, I would be willing to allow the Senator from New Mexico to begin the description of his amendment because I understand he would like to get that done. He has a timeframe tonight. And we could view the possibility of voting on both amendments at some point when the debate on both amendments has subsided rather than keeping the time tied up in a quorum call.

With recognition of the pressures the Senator from New Mexico is under, I would like to perhaps move ahead on both of those amendments on a double track situation.

All right. There is objection. Therefore, I do not pursue that. I suggest to the Senator from Illinois this might be a good time to hear from him.

Madam President, I see no other Senators wishing to speak on this matter. The chairman of the Budget Committee has not presented himself. But speaking on his behalf, I will raise a budget point of order about the emergency designation.

Utah is at the bull's eye of the drought. We have more drought problems in Utah perhaps than any other State, and it is with some reluctance that I raise this point of order. But this is $6.3 billion, and there is no offset for it.

I think if it is of value, it is of sufficient value that it is worthwhile to have a supermajority to support going $6.3 billion into an emergency. I think an emergency designation for this much money is something for which this procedure is designed.

Therefore, I raise a point of order against the emergency designation contained in the pending amendment, that it violates section 502 of the concurrent budget resolution on the budget for fiscal year 2004, and therefore is not in order.

Madam President, the amendment is still pending. It is now $6.3 billion for which there is no offset. Therefore, I believe we should vote the amendment down. We have already said this was the last vote today, but if the Senator wants a vote, I suppose there could be one. This is now $6.3 billion for which there is no offset with the emergency designation stricken.

Under those circumstances, Madam President, I raise the point of order that this is in violation of the Budget Act since there is no emergency designation and urge a ``no'' vote on this amendment.

Madam President, we now have a group of amendments which have been offered by a number of Senators and examined by a number of Senators on both sides of the aisle, all of which have been agreed to and cleared. I would like to send them to the desk, asking for a voice vote on each one. In every case, the amendment is in behalf of myself and Senator Kohl--I apologize, Madam President, there are other Senators involved. It is just the first amendment that is in behalf of myself and Senator Kohl.

Amendment No. 2091

Madam President, I send an amendment to the desk on behalf of myself and Senator Kohl and ask for its immediate consideration.

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

Madam President, due to increased projections of unemployment which result in higher participation and food inflation, it is necessary that we increase the Food Stamp Program by $2.2 billion, and this amendment will enable all qualified applicants to participate in this mandatory program. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senator Durbin and ask for its immediate consideration.

Madam President, this amendment will ensure that USDA funding is not used to promote the sale or export of tobacco or tobacco products. This provision was inadvertently left out of the subcommittee bill. I ask for a voice vote.

Madam President, this technical amendment clarifies the statutory authority for special assistance to the nuclear affected islands. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senators Murkowski, Stevens, Inouye, and Akaka, and ask for its immediate consideration.

Madam President, this amendment will prohibit the food stamp benefit for participants in Alaska and Hawaii from decreasing in the fiscal year 2004. The amendment has been cleared by the Agriculture Committee, and I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senators Snowe and Dorgan and ask for its immediate consideration.

Madam President, this amendment would expand the boundaries of the Arrostook Empowerment Zone in the State of Maine and the Griggs-Steele Empowerment Zone in the State of North Dakota to encompass the remaining area of the respective counties not currently included in the empowerment zone designation. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senator Levin and ask for its immediate consideration.

Madam President, this amendment prohibits APHIS from requiring affected States to match emergency funding provided by the Federal Government. Many States are currently experiencing their own fiscal problems and may not have sufficient funds to provide a match. If a State is unable to provide matching funds, Federal funds would not be released to address the emergency situation under this proposed rule. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senator Inhofe and ask for its immediate consideration.

This amendment would allow three communities in the State of Oklahoma to be eligible for the Rural Community Advancement Program. I ask for a voice vote.

Madam President, the amendment would allow rural communities with a population of less than 20,000 people to be eligible for broadband grants and loans. This amendment has been cleared by the Senate Agriculture Committee. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senator Inouye and ask for its immediate consideration.

The amendment allows the Secretary of Agriculture to designate any portion of Honolulu County as a rural area for purposes of programs under the rural development mission area. I ask for a voice vote.

I send an amendment to the desk on behalf of myself and Senator Kohl and ask for its immediate consideration.

The amendment would allow the Government National Mortgage Association, Ginnie Mae, to join other financial institutions in participating in the Multifamily Housing Guarantee Program. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senator Kohl and ask for its immediate consideration.

This amendment would allow a small town which does not have sufficient internal resources to utilize an outside not-for-profit party to perform the service for which the grant was made. For instance, if a community received a grant for a childcare facility, the community could contract with a third party to provide the childcare.

I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senator Brownback and ask for its immediate consideration.

This amendment adds four flood control structures in Kansas to the list of projects which may receive financial and technical assistance through the Watershed and Flood Prevention Operations Program. I ask for a voice vote.

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

This amendment adds the State of Utah to the list of States in which a processing worker demonstration pilot project is to be initiated. I ask for a voice vote.

This amendment directs the Secretary to move forward with the implementation of the Rural Economic Development Loan and Grant Program authorized in the 2002 farm bill. I ask for a voice vote.

Madam President, I send an amendment to the desk on behalf of Senators Grassley and Dorgan and ask for its immediate consideration.

Madam President, in recognition that this is the last one of this stack, I ask for a voice vote.

I would be happy to yield.

Mr. President, I say to the Senator and to all Senators that I was prepared to go on further tonight but I have been informed that no amendments will be offered tonight. Therefore, no more debate and certainly no more votes. I would be happy to welcome the amendment from the Senator when he is prepared to offer it. It is certainly my intention to go forward tomorrow. I hope the decision not to offer any amendments tonight will be lifted by tomorrow and that we will have amendments before us and therefore items to debate and vote on.

Mr. President, I say to the Senator, if he wanted to offer that amendment tonight and debate it tonight, certainly that would be very much in order. It has been made very clear there will be no further votes tonight.

I suggest the absence of a quorum.

Mr. President, I send an amendment to the desk on behalf of Senator Craig.

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

Mr. President, I ask for a voice vote.

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

Mr. President, I call up an amendment which is at the desk on behalf of Senator Durbin.

Mr. President, I send an amendment to the desk on behalf of Senator Schumer.

Mr. President, I send an amendment to the desk on behalf of Senator Miller.

Mr. President, I send an amendment to the desk on behalf of Senators Frist and Daschle.

Mr. President, I call up amendment No. 2090.

Mr. President, I ask for a voice vote.

This language has been cleared by both sides.

I thank the distinguished Senator from Maine for bringing this issue to my attention. It is evident that the funding used for Maine's Cooperative Beaver Management Program has been used wisely. I expect APHIS to continue its cooperative wildlife agreements with the funding provided by the fiscal year 2004 Agriculture appropriations bill, and I will work in conference to see that these funds continue to be available for the State of Maine.

Improving Emergency Communications Systems

Mr. President, I appreciate my colleague from Mississippi bringing these changes to my attention and will work with him to incorporate them in the statement of managers.

Yes, I will work with the House of Representatives during conference negotiations to ensure that the $800,000 is provided to address animal fighting.

I appreciate you bringing this to my attention and I agree our intention was to maintain increased funding for studies and evaluations.

rus telemedicine language

Mr. President, I appreciate my colleague from Mississippi bringing this language to my attention and will work with him to incorporate it in the statement of the managers.

I understand the Senator's interest in this important survey. The Senator is correct that the committee intends that the Department maintain this important work. We will continue to work with the Senator in this area as this bill moves forward.

I would be pleased.

That is correct.

How does the Senator from Georgia wish to proceed since $268,000 has been designated in this bill for the Alliance for Food Protection project?

I thank the Senator from Georgia for his explanation, and I will be happy to work with him during conference to address his concerns.

That is my understanding as well.

I was not.

I agree.

I thank the Senator from New Mexico and will encourage the Department of Agriculture to review the current situation. If the review warrants a testing facility, I will suggest that the Department of Agriculture consider establishing a testing facility in the State of New Mexico.

NutriCore Northeast and Geisinger Rural Aging Study (GRAS)

Mr. President, I am more than willing to acknowledge my colleague from Pennsylvania with regard to his two projects.

I thank my distinguished colleague for bringing these important projects to my attention. While this committee is working within a very tight budget, I will give your requests all due consideration.

I understand the Senator's concern and would also like to see that USDA make that distinction.

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

I ask the chairman if this is an appropriate time for me to make a 10- or 15-minute statement relative to an amendment which you have accepted on the FDA and dietary supplements.

I thank the Chair and I suggest the absence of a quorum.

I thank the Chair of the committee and the ranking member, Senator Kohl of Wisconsin, for agreeing to an amendment which will be offered here in a moment as part of a managers' amendment, to my understanding. This is an amendment with which I tried to construct a deal, facing what I consider to be an extremely serious situation.

We now have a body of law in America relative to products which are sold for human consumption, and there are different laws and standards for different products. The ordinary American walking into a pharmacy or drugstore or health food store or nutrition store may not know that, depending on which product you take off the shelf, there is a different standard of care, a different legal requirement.

I would like to spend a moment to discuss the differences.

If you were to go into your local pharmacy and have a prescription filled--which many of us have--this is what you know. This prescription drug has been tested for three things before it was sold to you. First, that it is safe, that you can consume it without injuring yourself; second, that it is efficacious, meaning it will do what it is supposed to do; and, third, it has been packaged and manufactured in a fashion so when they say it is 200 milligrams, it is in fact 200 milligrams. You know that. The Food and Drug Administration has required clinical tests to make sure it is safe--efficacious--and packaged in a fashion as it is represented. With that assurance, your doctor prescribes it and you take the medicine.

Now you walk down from the pharmacy counter in the drugstore and you decide to pick up some cough syrup such as this. You have bought this cough syrup. The question is: What standard of care, what body of law governed the manufacture of this over-the-counter drug, in this case, Robitussin DM, which was previously a prescription drug. It went through the same test for safety and efficacy to determine whether or not it met those tests and could be sold. Then it reached a point where a medical decision was made that you no longer needed a prescription and the component parts of this drug meet the same test of safety and efficacy and it is packaged in such a fashion that you know what you are buying.

I might also add for both the prescription drug and the over-the- counter drugs, which I have just described, if something happens--if you take this prescription, for example, and have a bad health result or this over-the-counter drug with a bad health report and you report it to the company or to your doctor, it is expected and required that adverse event, as it is known, will be reported to the Food and Drug Administration. They keep track of those. If they find out what they thought was a safe drug turns out to have a bad reaction, they will pull it from the market. The same is true with an over-the-counter drug. You know the standard of care for both prescription drugs and over-the-counter drugs.

We have other things which you will find in that same drugstore. One of them would be ordinary vitamin pills, the kind I took this morning. What are the standards for these vitamins--vitamin C or ordinary multivitamins? Unfortunately, the standards are much different. In this case, they are basically being manufactured and sold without the same clinical tests. No one has tested them for safety, for efficacy. Frankly, the standards for many are questionable as to even how they are packaged and sold to the public. But the belief is most of these naturally occurring minerals and vitamins and this type of supplement are generally good for your health. Those who believe in them take them for a variety of conditions. It is believed they cause no great harm; in fact, that they may have real health benefits.

We passed a law about 9 years ago which established a standard for something we call dietary supplements which are also for sale in the same drugstore with prescription drugs, over-the-counter drugs, and vitamins. These dietary supplements might be one such as this, natural herbal formula to promote energy and diet. What kind of standard of testing went into this product? The answer is none. There was no testing in advance required by law that what is included in this bottle is safe for human consumption or in fact even helps you when it comes to your energy or diet, and few, if any, standards about whether or not when they say this is 200 grams of one thing or another, in fact, are included. When you buy a dietary supplement, frankly, there are no standards of testing and care before the product is put on the shelf for the consumers.

I tell you this by way of background because that is why this amendment is important. When we passed the Dietary Supplement Health Education Act, we said we were dealing with natural supplements like vitamin C and garlic, multivitamins and the like. What has happened over the past 8 or 9 years is we have gone way beyond the basic vitamins. We now find a witches brew of a variety of different dietary supplements way beyond vitamins and minerals that are being sold under the same law with no testing standards, with no establishment of their safety or efficacy, no standards as to how they are packaged, and no requirement that they report adverse events to the FDA. As you walk into the drugstore and fill your prescription and walk past the counters, the American consumer has no idea that at end of the counter, the standard of protection and care changes depending on what you are buying.

That is why I am offering an amendment to this bill which earmarks $250,000 for the Food and Drug Administration to examine one particular compound being sold in dietary supplements. The compound is ephedrine. Ephedrine is a naturally occurring chemical that one finds similar to the synthetic chemical ephedra. Ephedrine is very closely monitored by FDA in

both prescription drugs and over-the-counter drugs. But when it is sold in these types of dietary supplements, it isn't tested for safety, it isn't tested for efficacy, and it isn't tested in terms of how much is included in the bottle, and certainly no requirement for adverse events to be reported to the FDA.

Sadly, this product I have in my hand, known as Yellow Jackets, is sold as an extreme energizer, an herbal dietary supplement containing ephedrine. The reason I have kept this bottle is because 30 miles from my hometown in Springfield, IL, just last year a young man who was a high school senior and a football player in preparation for a football game decided he needed a shot of energy, a boost of strength to go out and play for his team. He went into a local gas station and bought these Yellow Jacket energizers and washed them down with Mountain Dew, which is heavy in caffeine, had a heart attack, and died. Ephedra products, as a consequence, have been under suspicion for a long time.

The sad reality is the United States is almost last in the world when it comes to dealing with ephedra products. You may not know it, but almost 2 years ago Canada banned ephedra products for sale in their country. They said it is too dangerous. Over a year ago, the American Medical Association said to the Food and Drug Administration, take these ephedra products off the shelf; they are dangerous. After 30 service men and women had serious adverse health effects, we have removed all ephedra products from military commissaries across the United States. The National Football League, the NCAA, the National Basketball Association, and major league baseball have banned the use of these products. You can't use them if you want to compete in Olympic competition. Yet kids in junior high and high school can walk into a gas station and still buy this in most States, with the exception of Illinois, and I believe New York and California have joined suit in banning ephedra products.

Over a year ago, I wrote to Secretary Tommy Thompson of Health and Human Services and said you have to do something. If Canada believes they are dangerous, if we think they are dangerous for service men and women, if the American Medical Association says they are dangerous, and if major sports have banned them, why in the world do we allow them to be sold in America?

What happened in the meantime is the Government did absolutely nothing--issued a press release and did nothing to take these products off the shelf.

What happened was a lot of the victims and their families went into courtrooms. A lot of people are critical of people filing lawsuits. This is a clear example where that was the only place to turn to protect innocent families and victims across America. Because of the class action lawsuits that were filed, we have now determined there were over 16,500 adverse events reports related to ephedra products that had been accumulated by all the companies that were selling them. Now they had to turn them over and disclose them.

Within those 16,500 adverse events there were events including seizures, strokes, and 155 deaths. I think, frankly, we all know what is at stake here. We realize major drugstores see liability if they continue to sell products like these Yellow Jackets and they will take them off the shelf. Walgreen's, CVS, Eckerd, Rite Aid, and Wal-Mart, representing 17,300 stores nationwide, have pulled these ephedra- containing dietary supplements from shelves. GNC, the largest specialty retailer of nutritional supplements in the country, with 5,300 stores nationwide, stopped selling ephedra products in June.

One of the largest sellers of ephedra products, Metabolite--I am sure you have heard that name--sold ephedra compounds and was sued right and left because of these compounds. They said at one point they didn't have any adverse event reports. After they were pressed in a lawsuit they turned over thousands of examples of people who had bad health events because they took Metabolite's ephedra products.

Metabalife is now advertising what they are selling is ``Ephedra free.'' Despite all this having taken place, our Government has done nothing, absolutely nothing. I have written over and over again to Secretary Thompson. I have met with Dr. McClellan, the doctor in charge of the Food and Drug Administration, and asked: When are you going to start protecting Americans? We have a clinical trial in America today. We are selling Ephedra to innocent people and seeing if they have a seizure or heart attack.

Secretary Thompson, in April, said he was concerned about Ephedra and had taken more and stronger actions to address public health issues raised by Ephedra alkaloid than in the previous decade.

That was his letter to me in April. Since Secretary Thompson wrote that letter to me, another 38 reports of death related to Ephedra have been accumulated, bringing the total to 155.

A representative of the FDA spoke in front of the Senate Commerce Committee last week and said the Agency is in the process of analyzing 30,000 comments they have received in response to the reopening of the 1997 proposed rule on Ephedra and they are reviewing scientific evidence. Of course, delay means death, delay means injury, and delay is evidence that the Food and Drug Administration is not meeting its obligation under the law to protect American families from dangerous products.

We had a hearing in the Senate Commerce Committee before Senator McCain last week. A case was made very clearly that it is time to change the law. But first, get Ephedra off the shelves. That is why I introduced this amendment, put $250,000 in the FDA, earmarked to deal with Ephedra, to get an answer, get a conclusion and get it off the shelf as quickly as possible.

When that is done, we will have made progress. But we need to do more. The makers of dietary supplements such as this one must be required by law to report to the Food and Drug Administration if people are dying from their products. That is not too much to ask in this society. Those who say that, because I am going after a deadly product like yellow jackets, that my real war is against vitamin C just do not understand the reality. The reality is vitamin C can help. Vitamin C is not going to kill you.

This product killed a 16-year-old high school football player in Lincoln, IL. It has been attributed to the death of a Major League baseball player of the Baltimore Orioles.

I asked the committee to earmark this money. I am glad the chairman has accepted. I hope that finally this will push Health and Human Services into doing the right thing and banning this dangerous substance.

I yield the floor.

Mr. President, I call up my amendment and I send it to the desk.

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

I ask unanimous consent that Senators Bingaman, Hollings, Jeffords, Dorgan, and Feingold be added as cosponsors to this amendment.

Mr. President, I appreciate the time to discuss this issue.

Some colleagues may wonder why we are talking about energy legislation and market manipulation on the Agriculture appropriations bill. As my colleague from California pointed out in the previous amendment on derivatives legislation and market manipulation prevention, this was part of an agreement that the Western Senators worked out when we were discussing the Energy bill prior to our August recess. The fact that we were willing to move off that debate on a variety of amendments was because we had a commitment for a chance to have further discussion on important issues that impacted the economies of Western States.

That was the agreement made at that time, and today is the moment in which Senator Feinstein and I both have our opportunities to discuss what we consider very important legislation and to get the Congress on the record and make sure the Senate takes a stand against market manipulation.

Many Members know a lot has happened since the time of discussion of these issues about the energy crisis and what we should do. But we should be clear about the sequencing of things that the United States now knows and understands. The Senate knows and understands that Enron has admitted market manipulation. They have executives who have said, yes, these contracts were manipulated and prices were faulty.

We have a report by the Federal Energy Regulatory Commission so thick it is hard for me to hold in one hand that goes through a variety of issues in relation to market manipulation in which FERC found there was not only manipulation, but a demonstration for the need of explicit prohibitions on this kind of harmful and fraudulent market behavior.

That is exactly what this amendment tries to address. The amendment I have offered, and Senator Bingaman and others have offered, says something very basic and simple that probably many Americans, and I guarantee many Washingtonians, assumed would

already be in a Federal statute such as the Federal Power Act. The amendment simply says that manipulation or manipulated contracts under the Federal Power Act cannot be just and reasonable.

Some of my colleagues may have remembered an earlier amendment where we prescribed some solutions. This amendment has been compromised and offers no specific remedies to the legislation but is specific in saying that market manipulation, in fact, is not something that can be just and reasonable under the Federal Power Act and it is not the kind of activity that the Commission should consider as lawful activity.

Most of my colleagues would say that manipulation and fraud surely has no place in the Federal Power Act; sanctioning those activities is somehow legal. But the absence of that prohibition in the Federal Power Act is leaving some doubt in people's minds that, in fact, manipulation is unlawful.

I bring that up because Washingtonians--as Ohio, Indiana, Nevada, California, Utah--have been suffering from high energy costs related to these manipulations of Enron contracts. Not only will they be stuck with paying those Enron contracts over a long period of time, but my State, the State of Washington, had utilities as much as a 50-percent rate increase because of Enron's contracts, and we will be stuck with those contracts over 5 years.

While Ken Lay remains uncharged, or at least not paying any dues for the crime he perpetrated, and he keeps the millions of dollars of money that he has gotten from Enron, my ratepayers in Washington State for the next 5 years will end up paying the high prices of those manipulated contracts. Not only will we end up paying the high prices of those manipulated contracts, but the utilities in my State and other States--Nevada, California, Oregon, some of the other Midwest States I mentioned--have tried to basically deal with Enron. They have been basically sued by the company. So not only is my ratepayer stuck with paying those high utility bills, they are actually trying to fight the legal battle against Enron, which is turning around and suing them.

My amendment does something very simple today. It basically says in the Federal Power Act that for the prospective issue of making sure it is clear to people throughout the country that the Senate does not tolerate market manipulation.

I have to say we have done great work on this issue as it relates to the Securities and Exchange Commission, and as it relates to making sure that accounting practices have been changed. But nowhere have we been specific in saying that market manipulation is an unlawful practice and cannot be just and reasonable under the Power Act. That is simply what we are trying to say today.

Why is that needed? I have a letter I circulated to my colleagues from one of the newest nominees to the Federal Energy Regulatory Commission, a Republican nominee who spent many hours in the legislative branch working under Energy Secretary Abraham and spent time in the House Energy and Commerce Committee, to whom I posed this question as a nominee before FERC because I wanted to understand where FERC nominees were going in the future.

Mr. Kelliher responded exactly where I think the input needs to be to the Senate. He said:

I agree with much of what you have said. I agree that the

markets subject to manipulation cannot operate properly and

there is an urgent need to proscribe manipulation of

electricity markets.

He further states:

You have correctly noted that there is no express

prohibition of market manipulation in the Federal Power Act

and have proposed legislation to establish that prohibition.

This is a critical point. The Federal Regulatory Commission

only has the tools Congress chooses to give it, and Congress

has never given the Commission express authority to prohibit

market manipulation. I believe the time has come for Congress

to take that step.

That is an exact quote from a letter by the FERC nominee Joseph Kelliher from the administration saying, ``You want me to be a FERC commissioner? I am telling you exactly what I think about the FERC rules. And I am telling you we need the language that is in this amendment.''

I ask unanimous consent that letter be printed in the Record.

Mr. President, I think the Kelliher letter and the report we have seen by the Federal Energy Regulatory Commission on price manipulation in western markets is the evidence we need. We have all admitted this manipulation has taken place. What is not clear to the American public is if we plan to do anything about it or if we plan to prohibit it in the future.

I think we need to be clear. The language I have offered in this amendment, as I said, is very simple and straightforward. It is that way because we want to make sure the Federal Energy Regulatory Commission does not misinterpret the intent of Congress, that Congress needs to say manipulating prices cannot be just and reasonable or in the public interest, and their job is to basically protect electric ratepayers from these kinds of manipulation.

I am not going to continue to take up the time of my colleagues who have heard about this amendment and have had an opportunity to review it. I urge them, as part of our further understanding of where the Energy bill is, that it is being set aside. This is the opportunity before us to make sure we

take a stand against market manipulation and we need to make it clear to the Federal Energy Regulatory Commission, which seems to be unclear about what authority they currently have, and to make it explicit that market manipulation cannot be tolerated.

I yield the floor.

Mr. President, I ask for the yeas and nays.

Mr. President, I have not taken up a significant amount of time because I think Members have been educated on this issue, so I would suggest we just go ahead and vote on the issue and move ahead.

Mr. President, I am sure there are Members who, if they had the time, would come and speak, but I think to make this process move as smoothly as possible, I see no need to continue to wait for Members of the Energy Committee to show up. If Members are here who want to speak on behalf of the amendment, one way or another----

Mr. President, I move to reconsider the vote.

Mr. President, I thank the managers, Chairman Bennett and Senator Kohl, for agreeing to the amendment that Senators Harkin, Durbin and I offer today.

The purpose of our amendment is simple. The Food and Drug Administration has advised us that, in fiscal year 2004, it will spend $10.4 million to regulate dietary supplements. The Hatch-Harkin-Durbin amendment would increase those activities by 10 percent, or $1 million.

Let me explain why this amendment is necessary. First, I will explain the pertinent law that the FDA administers.

There is no question that tens of millions of Americans rely daily on safe dietary supplements to maintain and improve their healthy lifestyles. The popularity of these products and the concern over their regulation are what led to enactment of the Dietary Supplement Health and Education Act, DSHEA, in 1994, a bill that Senator Harkin and I were proud to author with now-Governor of New Mexico Bill Richardson. DSHEA is a strong law that properly implemented will protect the interests of consumers. But, as with any law, it has to be implemented for it to work.

Enactment of DSHEA followed literally decades of Food and Drug Administration animosity toward dietary supplement products. This animosity and the lack of a clear regulatory structure for supplements were clearly demonstrated prior to passage of DSHEA. That is why two- thirds of the Senate cosponsored our bill. That is why a majority of the House cosponsored the bill. And that is why it passed so overwhelmingly.

The basic structure of DSHEA allowed all products marketed as dietary supplements when the bill was enacted to stay on the market unless the FDA could show safety problems with a particular product or line of products--this is the so-called ``grandfather'' provision; manufacturers must notify the FDA before any new ingredients are marketed. At the same time, we provided the FDA with the full range of enforcement mechanisms to act against unsafe or misbranded supplements, including seizure, injunction, civil monetary penalties and even criminal penalties.

When Chairman Dingell and Chairman Waxman expressed lingering concerns that an unsafe product might be marketed and FDA would not have adequate authority to act against it, we added a new tool-- imminent hazard--so that the Secretary could take immediate action against a product that he believed poses an imminent hazard to public health. I might add, the definition as to what constitutes an ``imminent hazard'' is entirely up to the Department of Health and Human Services, so this is a very broad authority.

Even so, there are some who believe that dietary supplements should not be marketed in the United States without a preclearance similar to that for pharmaceuticals. We who drafted and passed DSHEA along with millions of Americans were persuaded that was not necessary.

First, most supplements cannot be patented, so there is little incentive for manufacturers to undergo the expensive and time-consuming FDA approval process.

Second, many supplements have been used safely for literally centuries, if not millennia, so it is not necessary to subject them to the approval process. That was why even the most liberal members felt comfortable with the grandfather structure.

Finally, we added a provision so that FDA would have the time to examine any ingredient not previously marketed and the evidence of its safety before that product actually reached the stores.

When we drafted DSHEA, ensuring the safety of products was at the forefront of our efforts. The law gives the FDA abundant tools to remove products that are unsafe from the market. It includes a safety standard that was carefully crafted with Senator Kennedy and Representatives Dingell and Waxman, the chairs of FDA-related panels in 1994.

There is no excuse for a supplement manufacturer to market products that are unsafe or inaccurately labeled or that make outlandish claims. Unfortunately, a small number of irresponsible supplement companies are taking advantage of consumers. I contend that the law is adequate to deal with them if FDA implements and enforces it. So, we come to the purpose of our amendment.

In the nine-plus years since DSHEA was enacted, there has been too much talk that the law handcuffs FDA and too little effort to apply the law.

It is impossible for this law to protect consumers if it is not enforced.

I am not here to criticize the FDA or throw barbs. Frankly, the FDA under Commissioner Mark McClellan has done more to enforce DSHEA than the previous administration had. I credit Commissioner McClellan for his commitment to implement the law fully. I truly believe he wants to make this law work. Congress must support him.

That is why I have joined with Senator Harkin to introduce the DSHEA Full Implementation and Enforcement Act of 2003, S. 1538. And that is why we are offering this amendment today, which we consider to be a down payment on S. 1538.

Yes, there is a small number of products that do raise serious concerns. Ephedra is one. As I have done for many years, I urge the FDA to act definitively on this issue based on the best available science, not politics. If the agency deems that ephedra poses a significant or unreasonable risk of illness or injury when used as labeled, than the agency can and must move to take the product off the market. This has gone on for too long. That is the reason I am happy to cosponsor the companion amendment offered by Senator Durbin.

Earlier this year, the FDA advised me it had received 3,000 comments and 12,000 letters in response to the agency's proposed rule-making on ephedra.

This has obviously placed a burden on this tiny agency, which needs funding to complete the job it has undertaken.

Indeed, as this example shows, the fight for resources is a huge challenge for FDA. The FDA simply does not have the staff or money it needs to do the job. In short, the agency is woefully underfunded, especially when it comes to dietary supplement regulation. That is the only reason I can see that the safety standard we enacted has never been invoked. That has to be the reason that it has taken almost a decade to promulgate the good manufacturing practice standards that can help guarantee the safety, the purity, and the accurate labeling of products. And that must be the reason that a product like androstenedione, which I believe is not even a dietary supplement, continues to be marketed in this country.

I have been very concerned about the safety of steroid precursor products like andro--and especially when they fall into the hands of our youth.

That is why I have joined with Senator Biden, Senator Harkin and Senator Grassley to cosponsor the Anabolic Steroid Control Act, S. 1780, that will add andro and other steroid precursors, as well as THG, to the list of controlled substances. I intend for the Judiciary Committee to make adoption of S. 1780 a priority, and I hope my colleagues will join me in supporting both S. 1780 and S. 1538.

We have a very solid dietary supplement law that can deal with problems that arise. But, the FDA must use that law for it to be effective, and Congress must support the agency in that effort.

Madam President, thank you very much for this opportunity to speak on an issue important not only to my State but also to other States in my country as it continues to plague agricultural producers all over the United States. I thank Senator Dayton, my colleague from Minnesota, for offering this amendment and for his continuing good work on this important issue.

Last year at this time this Chamber had a prolonged debate on whether to provide much needed emergency drought assistance to those hurt by continuing record drought. Some argued that there should be no assistance; others argued that, unlike with every other national disaster, assistance for drought victims should be funded through offsets. Some even argued we could always come back to take care of these victims at a later date.

Still some argued that a drought is no less devastating than a hurricane or flood for those who are affected and it should be treated as we would treat other natural disasters, by providing full assistance, treat it as an emergency, which, in fact, it is.

It took a while to get any help to our agricultural producers. Despite the plague of bankruptcies and the anticipated loss of thousands of family farms across the country, we could not get drought assistance passed until last spring, nearly 2 years after the worst of the drought had begun. That assistance came at a cost.

It covered less than half of the damage the USDA estimated had been caused by the drought, and it was paid for out of elements of the new farm

bill, robbing Paul to pay Paul. To survive, our farmers would have to sacrifice their future for their present.

Despite all that, despite waiting months for Congress to act, despite getting what assistance was offered at the expense of the farm bill, even now, more than 7 months after the passage of that inadequate bill, many of those hurt are just beginning to receive emergency payments. Some have received nothing while the least fortunate went bankrupt during the wait.

The drought package passed last spring offered a little over $3 billion for drought losses, half the estimated $6 billion in actual damages. By October 1, $1.85 billion had been distributed, just over a quarter of actual damages through 2002. Nebraska, which alone had $1.2 billion in damages, has received only $138 million in crop disaster payments, barely 10 cents on the $1 of what it lost. As of September 15, the sugar beet program had not even been implemented, leaving those producers with nothing.

Still, the drought continues. That is why I am here today. And still, because that drought continues, our farmers and ranchers need help.

I am here today to remind those who settle for less that we still need to do more. This map reflects the current drought impact in the United States. The red and brown areas are those areas that have been labeled as a drought area by the U.S. Drought Monitor at the University of Nebraska. The red areas within the regions have been declared as drought areas by the State or Federal Government. The brown areas have not been declared. As I said, they are considered to be declared drought areas by the U.S. Drought Monitor. The green areas are recovering from drought but could be impacted by recurring or lingering conditions. The yellow areas are under drought watch.

This map is for the time period of September 5 through October 2 of this year, less than 60 days ago. We can see this drought continues.

As is clear from this map, 16 States have seen at least half of their counties declared drought disasters and another 5 have some declared drought area and 2 additional States are considered drought States by the U.S. Drought Monitor but not all declared drought regions. All told, 23 States at the present time have at least some drought regions as labeled by the U.S. Drought Monitor. Another six States have some areas under drought watch.

This map makes it very clear, and it should be clear for everyone to see, the drought has not ended. It remains a national problem and has taken another planting season, another growing season, and another harvest. We need to provide more assistance for our farmers and our ranchers. We need to do more to mitigate the effects of this drought.

Finally, we need to take seriously the fact that a drought is no less devastating to those afflicted than of any other natural disaster.

The unfortunate thing on a comparison basis, some natural disasters are immediate or nearly immediate. This natural disaster takes time to develop. In this case, it is continuing.

If some believe this drought is not as damaging as other natural disasters, I invite them to visit Nebraska and the other States, visit farmers and ranchers who are selling their lands, selling their herds or those who have already sold their land and herds. I invite them to tour our rural communities to see how damaging this drought has been to small businesses, Main Street America, small communities that comprise those Main Streets that are connected to the land and the economic activity that it produces. I invite them to talk to the Governor of Nebraska who a few days ago asked the Department of Agriculture to declare our entire State a disaster area because of drought damages.

I tried a number of measures to focus some attention on the plight of our agricultural producers. I even tried to name the drought, Drought David, thinking that would give it some sort of focus, just as we name hurricanes. I even brought drought ribbons that some of my colleagues were good enough to wear a year ago because they understood the national impact of this drought as well as the impact on their particular States. I worked with leaders in this area such as Senators Daschle, Harkin, Baucus, Dayton, and Johnson, who also pushed for comprehensive drought assistance. But still it has not been enough. We need to do more. With economic conditions being what they are, we cannot risk losing more family farms, we cannot risk losing rural businesses, and we cannot risk agricultural bankruptcies and foreclosures.

This issue has not been resolved--not through the rains these counties and States need, and not through the paltry assistance provided by the Federal Government. We need to do more.

So today I rise in support of Senator Dayton's amendment to provide more support for our family farmers. In fact, I considered offering an amendment myself on this very issue. And that, again, shows the breadth of the disaster. Such States as Nebraska and Minnesota, and everything in between, and all around, are still in dire trouble. Our Nation is at economic risk.

If we dislike importing 50 to 60 percent of our oil for our energy needs, let me assure you, we will hate importing our food if it ever gets to the point that we lose agriculture as we have it today.

So we must act. We must act now or it will be too late for tens of thousands of more family farms and the rural way of life.

I thank you, Madam President. I thank the chairman, and I yield the floor.