Protection of Lawful Commerce in Arms Act

Mr. President, the leader has obviously taken time. We thought we were going to have an hour on each side. Is the vote still scheduled for 10:30, or does the leader's time count in that?

I think we can live with that.

I believe several of my colleagues will want to be on the floor to speak prior to the cloture vote. As the leadership has said, there is a cloture vote on the motion to proceed to S. 1805, the Protection of Lawful Commerce in Arms Act. We will vote on that at 10:30 this morning.

I regret that a few of our colleagues are forcing us to go through this procedural step instead of simply moving to the bill. This bill is supported by a strong bipartisan majority in the Senate, and I believe as we work our way through it, that kind of bipartisan relationship will clearly demonstrate itself. More than half the Senators, as I have said, both Republicans and Democrats, are cosponsors of our legislation, including the leadership of both parties. A very similar bill passed in the House nearly a year ago by a 2-to-1 vote margin, or nearly that margin.

Some of our colleagues have already announced they intend to play politics with this bill instead of debating its merits. They have already announced their intention to throw a variety of nonrelated bills or amendments at this important--the legislation my guess is to attempt to divert the legislation and delay the completion of its consideration. However, I believe this morning's vote will demonstrate that a majority of the Senate is, indeed, ready to proceed to this bill and to debate it, as we should, offer legitimate amendments, debate those amendments fully, and vote them up or down if necessary.

This legislation addresses a crisis in our courts and the integrity of our courts because our courts are now threatened by the kind of lawsuits that are simply not necessary but politically motivated. For a long time, the trial bar has attempted to use the court system to legislate social policy or legal activity in this country. What this bill does, and what we have worked to do and why it has gained the support it has, is craft a very narrow exception in the law so that we still hold those responsible accountable for their actions under all laws.

What we have always said within the law is that someone cannot be held accountable for someone else's actions, and if someone is attempting to reach back through the law when someone is innocent and legal in their acts, then that kind of thing ought to stop. That is why we have worked hard to craft it narrowly.

I think Americans clearly understand what we are attempting to do, and that is our goal. I hope my colleagues will vote in favor of cloture so that we can get into the full and robust debate of this legislation. It is important.

I will turn to my colleague, Senator Reed, who will be handling the opposition, and then I believe at that time we will probably have several of our colleagues who wish to speak to it.

I reserve the remainder of my time.

Mr. President, before I yield to the Senator from Texas, let me make a couple of comments in response to what my colleagues have been saying this morning.

Let's take the gun dealer in Tacoma, WA who is alleged to have sold to the sniper who held this area hostage for a time with a gun. His license has been revoked. There is a criminal investigation, and BATF has asked the Justice Department to file felony charges against the dealer. The business is now closed and broke.

In other words, what I am saying is if this licensed gun dealer violated current law, he will be shut down. What we are talking about here again is a narrow piece of legislation that deals with civil liability--not product liability--and in the case of current Federal law it does not touch it. The day in court comes.

But what the Senator from Connecticut didn't say is even his own gun manufacturers and their associations in those some 30-plus lawsuits have spent millions and millions of dollars before the court system defending themselves, and to date the judges have thrown them out. This is called ``death through attrition'' by simply taking to the courts and constantly bringing to the courts these kinds of arguments. Here is the reality.

I can't yield at this time. My time is limited. We are going to be on this for days, as the Senator knows. We will debate it thoroughly.

But what he is suggesting is running the risk of losing all of his gun manufacturers and the hundreds of jobs that are out there. He is concerned about jobs. I think he would be concerned about keeping the jobs he has in his home State. That is part of this discussion.

I can't yield. Time is limited.

I did it fairly. You are here on the floor. We will talk about this more in the hours to come.

Let me yield to my colleague from the great State of Texas.

Mr. President, I thank the Senator.

May I inquire of the time remaining for both sides?

I will reserve the remainder of my time.

Mr. President, if the Senator wants to make his closing comments before I make mine, what time does he have left?

All right. It is obvious, Mr. President, by those who have already come to the floor, that this will be a very spirited debate. The great tragedy of debates such as this is that they oftentimes fail to read the bill before them, and they make the kinds of salient political statements that have nothing to do with the legislation at all.

I invite my colleagues, on S. 1805, to go to section 4 of the bill and see how narrowly we have crafted this bill to go directly at civil lawsuits that involve a third party criminal act and trying to reach back through the courts and back through the law to say to a licensed, legitimate, legal firearms dealer or a licensed, legal gun manufacturer that they have to be responsible for the criminal act of another. That simply has not been the basis of law in our country ever, nor should it be allowed to be the basis of law today.

But if that gun manufacturer and if that licensed gun dealer violate civil law, violate the law of the land, then this bill does not hold them harmless. That is the crux of the issue. That is what is important about this legislation.

There are a lot of ways to achieve a political goal in this country. Many have found that you can file frivolous and junk lawsuits in the court, and you

can slowly but surely bleed down those who you file them against because they have to come and defend themselves, even though the courts constantly throw out these lawsuits. Hundreds of millions of dollars have already been spent by legitimate gun manufacturers that make those fine weapons for our men and women in Iraq, that make those fine weapons for our civil law enforcement officers wearing the blue uniforms on the streets of America.

They would say to them: No, we are going to bust those companies. And guess where that cop is going to get his gun. From China or Yugoslavia. Or our men and women in uniform are going to have to rely on foreign gun manufacturers because we have bankrupt and thrown out of this country those acting under the law in a legitimate way.

That is what S. 1805 is about. It is not about the political agenda of many. It is about what we have said in this country is a legitimate product. We even said so in the Constitution. Most other products we do not talk about in the Constitution. They were not invented. But we did speak to guns and their value in this country. Now we are saying: No, we are going to play the political game. We are going to drag them through the courts. And they are going to spend all kinds of money to do so.

I am not willing to hold anybody harmless who violates the law. I am not willing to hold anybody harmless who allegedly acts in a criminal way. Let's find out if they did. The courthouse door is not locked by S. 1805. The courthouse door is still open. This law will be applied in arguments before the court. A judge will make the determination of whether S. 1805 fits or it does not fit. Was the licensed dealer or the gun manufacturer acting in a legal way or acting against current Federal law? That is how narrowly we have defined it.

Even the minority leader, Senator Daschle, has joined with me to clarify and refine this bill even more--he will be to the floor to speak to that issue--as we worked to make sure we are on point directing this specifically at those who continually play the game at the legal bar of this country to file the frivolous or the junk lawsuits to drive a legitimate operating American company and industry out of business.

I hope my colleagues will come now and vote on the cloture motion to allow us to proceed so we can fully debate the bill, bring the necessary amendments that others will have for or against the purpose of this legislation. We will vote them up or down and move it through the Senate. That is our job. I know there are a lot of issues that are important. But there are a lot of Americans who view this as a very important issue for our country.

I yield back the remainder of my time.

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

Madam President, I hope now, with a vote of 75 to 22, we could move on to the bill. Certainly, it is our intent to allow this bill to be debated fully and for amendments to be offered. Time is running. Some Senators spoke this morning to the urgency of time to get on to other issues. Certainly, that is important to all of us. So I hope we would be able to do so. I hope now that Senators could come to the floor with their arguments, but most importantly I hope we could move to the bill itself.

As you know, under the cloture rule there would be allowed 30 hours. I hope those in opposition would not take that 30 hours and allow us to get to the bill. What we are trying to do in S. 1805 is very narrowly go through the law and allow law-abiding gun manufacturers and law- abiding dealers to be exempt from the kind of harassment and junk lawsuits that we have now seen filed in over 30-plus different venues over the last several years. All those cases then brought to court were thrown out of the court, and the reason was quite simple. The judge looked at them and said: This lawsuit is of no value.

Here you had a law-abiding manufacturer, adhering to the laws of the United States, making a legitimate product, and that person cannot be responsible for a third party action that might have been a criminal action and the trial bar trying to reach through that person to a legitimate gun manufacturer or to a licensed gun dealer.

In doing so I believe these suits were intended, of course, to drive the gun industry out of business by holding manufacturers and dealers liable for the intention and the criminal acts of that third party over whom we all know they have had absolutely no control.

Lawsuits have been filed in multiple States with demands of massive monetary damages on a broad and varying range of injunctive relief relating to the design, manufacture, distribution, marketing, and the sale of firearms. These demands, if granted, would create major judicially imposed restrictions on interstate commerce in firearms and ammunition.

Let me, though, say with that comment, this deals with civil cases, not product liability. If a gun malfunctions and someone is damaged, or if the gun manufacturer and the gun dealer were violating civil law, then, of course, this issue that we are debating today has no value. We have clearly narrowed it and cleanly gone after the very kind of lawsuit that we have, as I mentioned, seen over the last several years.

The bill does something very important to the underlying principles of our country. It reinforces centuries of legal precedent based on individual responsibility, not responsibility for actions of third parties. Law is based on the act of the individual, and that ought to be the basis of all law. Yet what these lawsuits would argue is that somehow a legitimate, legal manufacturer of a product is liable for the way the product is used. I have oftentimes said: What about an automobile? Certainly that is a legitimate product on the road. What about an automobile dealer licensed in his State to sell automobiles? If someone takes the automobile designed to give ultimate pleasure and to move people from one point to another and they get drunk and go out and get in their vehicle and kill someone, does the trial bar then say that it is the automobile dealer and the automobile manufacturer who are liable for the drunk driver who killed someone? That is what they are trying to say and that is exactly the fundamental argument here. That is why we think it is time this Congress deal with it in a forthright way.

The House argued this issue over a year ago and, by a 2-to-1 vote said: No, we are not going to let this kind of lawsuit go forward.

But they did something our bill also does. We didn't lock the courthouse door. Some will argue this simply locks any person out of the courthouse who might place an argument against a gun manufacturer or licensed firearm dealer. The answer to that is absolutely not. This will be a basis in the law by which lawyers will argue before a judge whether these kinds of charges can legitimately be brought based on the evidence at hand. The judge will then make the decision based on the law as to how we proceed.

Many judges, as I have mentioned, have outright rejected these suits already. They literally clutter up the judicial system. Antigun activists are trying to destroy tort law by creating totally new and expansive theories of liability to win restrictions that have been rejected in the legislative process. What does that mean? If you can't win it on the floor of the U.S. Senate or in the legislatures of your States, then you get a good attorney and you go before the court and try to argue it there and establish some kind of judicial precedent.

I have already suggested that we do not lock the courthouse door, that we simply allow the argument to be placed. We think that, of course, is important to all citizens, having their day in court and their right to argue it.

Would this bill affect several high-profile cases such as the lawsuit against a gun dealer in Takoma, WA, a store where the DC snipers, John Muhammad and Lee Malvo, got their rifle?

Well, it won't, and here is the reason it won't. In the case of that situation, Malvo himself said he stole the gun.

What we are also finding is that this particular gun dealer may not have operated in the most legitimate of ways, even though the case will not be brought.

There is a criminal investigation underway. The BATF has jerked the license of the gun dealer. The business is now out of business, and it is my understanding that the BATF has asked the Justice Department to file felony charges against the gun dealer. Even within that argument, you have the contradiction of the person who did the shooting saying: I stole the gun. And, of course, you have a gun dealer who may have operated illegally. Certainly that is a case in action, although what is important is this particular bill won't affect that. If that gun dealer in Takoma, WA, is found liable, if he acted in a criminal way, if he mismanaged his records that he must keep in a way that distorted what he had and guns were stolen and he never allowed that to be known, then he is at risk.

I am not a lawyer. So I can't go to the next step of that argument, and I will not. But what I do know and what we have insisted on in the crafting of S. 1805 is that it be very straightforward and very clear. Senator Daschle has incorporated within this an amendment that I have accepted. He may bring some fine-tuning to the floor. He, too, believes we need to deal with this issue. But he is fine-tuning to make sure what I just said is absolutely clear in the law. There will be no arbitrary way for someone to wiggle through the law.

Does the bill wipe out century-old tort law principles? The answer is quite simply, no. The bill reinforces the century-old legal tenet of personal responsibility that underlies all of our judicial system. Individuals and businesses are responsible for the harm they cause.

Let me repeat that. Individuals and businesses are responsible for the harm they cause--not for the action of third parties beyond their control.

The bill protects the rights of truly injured parties. The exceptions allow for legitimate and recognized causes of action. Manufacturers or sellers of firearms or ammunition could still be sued if they violated Federal or State law, manufactured defective products, violated contracts or warranties, or knowingly sold guns to irresponsible and/or dangerous individuals.

The law is still out there. The law still provides recourse for an individual who would fall within those categories.

But to suggest that the actions of a third party, or the criminal act of a third party, is the opportunity to reach through the court by the trial bar to go after the manufacturer of a legitimate legal, law- abiding approach or product simply should not be allowed.

Most importantly, antigun activist lawyers are the ones who are trying to distort the law by fabricating new theories for imposing liability only after having repeatedly failed to cast their political agenda right here or in our State legislatures.

Just a few years ago, they admitted this when their legislative allies introduced a bill that would have expressly created a new Federal cause of action against a manufacturer, a dealer, or importer who knew or reasonably should have known that its design, manufacturing, marketing, importation, sale, or distribution practices would likely result in gun violence.

How can anyone suggest that any action of the sale of a gun, if it is done legally, results in violence? That is the reality of what we dealt with.

There are a good many more issues that we will have an opportunity to discuss in the course of this.

It looks as if Senator Kennedy is on the floor to debate the bill.

I reserve my time. I suggest the absence of a quorum.

Mr. President, the Senator from California is now in the Chamber to discuss this bill. We are not on the bill yet. I hope we can get there.

The Senator from Massachusetts has taken ample time to discuss the bill, I guess, and other issues. I would like to talk about jobs. I think the Senator is right to talk about jobs, but what he didn't talk about were the jobs in Westfield, MA, at Savage Firearms. They used to be a total of 500 high-paying union jobs strong. They have spent over half a million dollars fighting the lawsuits that we would like to prohibit. Now there they are 160 strong. They have lost jobs in Massachusetts. I want the Senator from Massachusetts to stand with me and protect the hard-working men and women at Savage Firearms.

The bill is about jobs, I say to the Senator from Massachusetts. That is what this issue is all about.

Why is our bill endorsed by the United Steelworkers and by the United Auto Workers? The reason it is endorsed is because these high-paying jobs at law-abiding gun manufacturing locations are being eliminated by the glut of a thousand lawsuits--in this case over 30--where they have had to go to court, spend a lot of money, and the court threw it out because it was frivolous, but the company was less viable because these are really not big companies.

If we took all of the firearms manufacturers in the United States today and brought them all into one company, they would be smaller than a Fortune 500 company.

Let me read a great quote from the Colt manufacturers, Colt firearms. They are located in Connecticut:

We today have 383 members from the Colt workforce. By

comparison, about 5 years ago, we had over 600 Colt workers

who were members of our local. Our members built the finest

small arms in the world, including the M-4 carbine, the M-16

rifle, and the M-203 grenade launcher.

I believe those are the firearms of our military.

Many of them were shipped to the U.S. military and lawfully

provided for the principles of democracy.

That company is at risk today unless we pass the kind of legislation about which we are talking.

I do believe the working men and women of this country are a special interest. I think the tens of millions of law-abiding gun owners in our country are a special interest. So it is really a matter of how you define ``special interest.'' If it has been said once on the floor, it has been said 15 times in the last 45 minutes: special interest, special interest, special interest.

Let's talk about the working men and women of the firearms industry. Let's talk about the law-abiding gun owners of America as a special interest of us, this country, all Americans. You are darn right we debate special interests on the floor of the Senate, but it really is a matter of definition.

Time limit? We are not proposing a time limit. Senators can speak for up to an hour on this issue now, and if they want to, they have 30 hours postcloture before we get to the bill. I hope we don't spend all of that time doing that. I would like to get to the bill. I know the Senator from California has talked about an amendment. I think she would probably want to offer that amendment and have it amply debated.

We do not want to limit time, but we do want to talk about special interests: law-abiding gun owners in our country, working men and women of the law-abiding gun manufacturers, the people who work at legal gun shops all over this country that by law are licensed and that by law carry out the law. That is what we are talking about today. Call them a special interest, if you will. I do. My job is to try, under the law, to protect them from the kinds of frivolous lawsuits the trial bar has decided to bring in court after court because they couldn't gain legislation on the floor to change the character of our country. That is the issue at hand.

I am glad the Senator from Massachusetts has come to talk about special interests. I wish he would understand that the hard-working men and women in Westfield, MA, for Savage Firearms are, in fact, a special interest--a special interest of mine and, I am quite confident, a special interest of his.

I yield the floor.

Mr. President, I will be brief. The Senator from Ohio has been on the floor a good long while and deserves to be heard.

As you know, we are in a postcloture environment on a motion to proceed. I would hope by early afternoon we can actually get on the bill and begin to consider some amendments on this critical piece of legislation. It has been portrayed by many in many different ways. I would ask the Senators to pick up this very small document, 1805. In fact, there are exactly 11 pages of big print so all of us can clearly read it.

I ask Senators to go to section 4 of the bill and read what we are doing. In a very narrow way, we are denying a third party the ability to reach through the law and say to a law-abiding gun manufacturer and a law-abiding firearms dealer: When you sold that weapon, it down the road got misused in a criminal act and, therefore, you are responsible.

Shame on us for suggesting that as a basis of law today in our country. We have denied it. We have always held the individual responsible. That is clearly where we ought to go. That is why I think this ought to be a clean bill. There are some who want to offer different amendments. We can deal with them on a different day in a different way. Let's keep this bill clean. This is tort reform in the very narrowest of margins, and I hope Senators can work with us to make sure that in final passage we have a clean bill.

I yield the floor.

Mr. President, let me remind my colleagues again that we are in a postcloture environment. We are hoping we can get on the bill and hoping we can look at some amendments. I do have to respond to try to keep this debate clear and honest and the Record representing what it ought to represent.

My colleague from Illinois says the reason we have this debate today is because of George W. Bush. He forgot that 10 Democrat cosponsors and his own leadership are cosponsoring this bill and are openly advocating its passage. This is not about George W. Bush. This is about the rights of Americans under existing law, and also frivolous third-party lawsuits that we ought to block. That is what the essence of this debate is about.

Now, certainly the Senator from Illinois can say what he wishes to say on the floor. Will George W. Bush sign this bill if it gets to his desk? He says he will. I would think any law-abiding American U.S. President would want to preserve law in this country, the kind of law that would suggest that any President would want to reinforce centuries of legal precedents based on one premise, individual responsibility.

Are we suggesting that, as the Senator from Illinois suggests, a gun manufacturer ought to be liable for a criminal act of a third party? Well, he used the word--let me see; I have written it down here-- ``establish a standard of use.'' I believe that was the term used.

How many automobile dealers establish this standard of use of their product when it is manufactured in his State and sold in the marketplace, that it will be used safely and lawfully? Now, would any automobile manufacturer intentionally sell a car knowing a drunk was going to get in it and wipe out a teenager or a teenager wipe out an adult?

Not at the moment. I want to be quick here so I can yield to one of your colleagues.

Of course they would not.

Does any manufacturer of a legal firearm make the clear assumption

that it is going to be used illegally? Of course they do not. They make them under the guidelines of the law. They abide by the law. And we protect those who do. We do not--we do not--protect those who do not abide by the law.

The Senator also went on to say that this would somehow protect trade associations. Go to the bill. You have held it up. I wish you would read it in detail. It is not the intent of our bill to do so. In fact, the Daschle amendment clarifies that we do not necessarily protect trade associations. Well, then you better talk to Senator Daschle. He is the amender of the legislation that is before us to clarify that point. We believe we have effectively clarified it, and the Congressional Research Service says we have done just that.

So if a trade association acts negligently, acts outside the letter of the law, then they are every bit as liable as they would be under current law. So we do not reach out to do that.

Do we close the courthouse door? Absolutely not. The plaintiff makes it to the courthouse, with his or her attorney. They argue it before the judge. The judge weighs it in light of the law--if this were to become law--and makes the decision as to whether that case can go forward. I think that is clearly an important argument that needs to be established.

As to the argument about lawsuits involving, what they describe as, high volume gun sales--I think he spoke to a tragic situation in Illinois--the regulations of the numbers of guns that can be sold in a single transaction, however, are not the job of the courts. They are the job of the legislators. They are that Senator's job and this Senator's job, if you can gain a majority of the votes to establish a certain number of gun sales per day. The job of the dealer is to check the background, to check the legality, and to do so openly and knowingly.

Now, having said that, let's talk about the dealer. In S. 1805, we exclude from its protection actions brought against a transferer convicted under section 924(h), title 18 of the United States Code, or a comparable State felony law. 18 U.S.C., section 924(h), provides: whoever knowingly transfers a firearm knowing that such firearm will be used to commit a crime of violence or drug trafficking crime shall be imprisoned not more than 10 years, fined in accordance with this title.

S. 1805 does not wipe out this provision of the United States Code. We intentionally narrowed its focus so that would not happen.

The Senator from Illinois is rightfully concerned about the trafficking of firearms, as am I. I certainly do not want that to happen. But what I do not want to happen either is for hard-working men and women of this country--many of them union men and women--who are working in firearms production in this country today for civilian use and for military use, to lose their jobs because their company has simply been strangled to death by lawsuit after lawsuit after lawsuit. That is what is happening.

We have lost thousands of legitimate jobs in this country because this industry is a very small industry in total. Put it all together, and it is less than a Fortune 500 company. That is why it is extremely cautious about how it operates within the law, and it is why our judges have recognized the frivolous character of these lawsuits and have thrown them all out.

The problem is simply this: It costs hundreds of millions of dollars to argue the law and to argue before the courts and to continue this legal dance that certainly those who are now engaged in it put law- abiding manufacturers and dealers through. Well, that is going to be part of the argument we look at here.

But I do ask our colleagues to focus on the bill, to understand how narrowly it has been designed. It is a product of a bipartisan effort, not a single-interest effort but a bipartisan effort, to reform our tort process in a way to deny a very particular frivolous kind of lawsuit of the kind that is addressed in S. 1805.

I yield the floor.

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

Mr. President, again, I remind our colleagues that we are in a postcloture environment. What does that mean? It means we could actually debate the broad issue of the bill for upwards of 30 hours before we actually get to the bill, even though 75 of us have said let's move on, let's get to this legislation, debate it, offer amendments, and bring it to final passage.

My colleague from Montana is leaving. I thank him for his statement of the work he has done in behalf of gun owners and manufacturers and law-abiding gun dealers. I thank him for being an original cosponsor and working with me to get S. 1805 to the floor.

I thought what I might do for a few moments, while we are waiting for leadership on both sides of the aisle to see if we can't find an agreement on how to proceed to this legislation, is to deal with some finer points that are involved in the legislation. My guess is, over the course of this week and probably the next week, you are going to hear a great deal said about the bill--11 pages, a relatively small bill--and what it does or does not do.

S. 1805 has basically two substantive provisions. First, section 3(a) states that:

A qualified civil liability action may not be brought in a

Federal or State court.

A qualified action may not be brought.

Second, section 3(b) orders the immediate dismissal of a qualified civil liability action pending on the date of enactment of S. 1805. The key to S. 1805, therefore, is the definition of ``qualified civil liability action.'' That is what most of our colleagues, I hope, would focus on, even though the issue spirals around the use of a gun and that brings about substantial heated debate and political decisions.

Key in S. 1805, again, is the definition of a civil liability action which is addressed in the definition section, then, in section 4(5). A qualified civil liability action is defined as a lawsuit:

. . . brought by any person against a manufacturer or

seller of a qualified product, or a trade association, for

damages resulting from the criminal or unlawful misuse of a

qualified product by the person or a third party. . . .

Subsection (5), the definition, then excludes five categories of lawsuits from coverage under S. 1805:

First:

(i) an action brought against a transferor convicted under

section 924(h) of title 18, United States Code, or a

comparable or identical State felony law, by a party directly

harmed by the conduct of which the transferee is so

convicted.

In other words, we don't exempt that. We exclude these categories from that definition so you can still go to court, you can still gain redress from that.

The second one is:

(ii) an action brought against a seller for negligent

entrustment or negligence per se.

Negligent entrustment is defined:

. . . the supplying of a qualified product by a seller for

use by another person when the seller knows, or should know,

the person to whom the product supplied is likely to, or

does, use the product in a manner involving unreasonable

risk of physical injury to the person or others.

In other words, if the seller knows that this is going to be used for criminal intent or for misuse, then of course that provision is exempt from the protection under 1806.

Third:

(iii) an action in which a manufacturer or seller of a

qualified product [knowingly and willfully] violated a State

or Federal statute applicable to the sale or marketing of the

product, and the violation was a proximate cause of the harm

for which the relief is sought. . . .

Again, the courthouse door is open to that.

(iv) an action for breach of contract or warranty in

connection with the purchase of the product.

That is available.

(v) an action for physical injuries or property damage

resulting directly from a defect in design or manufacture of

the product, when used as intended or in a manner that is

reasonably foreseeable.

Those are really the key points here that we do not in any way exempt. What we are doing in S. 1805 is very simple. We are trying to reinforce centuries of legal precedent, based on individual responsibilities, not responsible for actions of third parties. In other words, once again the trial bar is trying to suggest that a criminal act is the responsibility of the person who manufactured the product that the criminal may use in that act. We have never allowed that to stand in our courts, and now we are trying to assure that a very small industry in this country can be protected from the kinds of frivolous lawsuits filed that are draining them of their very livelihood.

Earlier this afternoon I talked about the hundreds of jobs that have been lost. Some scoffed and said, ``This is a jobs bill?''

You bet it is a jobs bill. If you destroy that industry, thousands of high-paying jobs will be lost across the United States in an industry that is legal, that is law abiding, that one might argue is even enshrined in the Constitution under the second amendment. That is why we are here today.

Is it important? You bet it is important. Is it a part of what our Senate ought to be debating? Absolutely.

If we are able to do this, we establish extremely important precedent that other manufacturers of law-abiding products will look at, and should look at. Why should the trial bar be allowed to suggest that the maker of a Chevrolet, Ford, Dodge, or Toyota pickup used by a drunk driver that ended up killing someone be responsible for it? Because they manufactured it? Since when is this country going to exempt the actions of the individual and say, Oh, no, it really wasn't his fault; it was the fault of the vehicle. It was the fault of an inanimate object known as a gun.

That is the issue today and it really is fundamental. You hear a great many arguments. One of them is that we are locking the courthouse door. No, all those principles I talked about are exempt and can be tried and can be argued before the courts. Even in S. 1805, somebody who by definition brings a junk lawsuit gets to argue the case before the judge. They get through the courthouse door. The judge then listens, applies the law, and makes a determination whether this is a legitimate case that should go forward or it was an illegitimate case.

Will this bill affect several high profile cases such as the lawsuit against a gun dealer in Tacoma, WA, from whose store the DC snipers, John Muhammad and Lee Malvo, got their rifle? Does it exempt that dealer if he acted unlawfully? We don't know that yet. We know that BATF has investigated it and jerked his firearm license and the store is now closed. We are told that BATF has asked the Justice Department to file criminal charges against him.

But we do know one thing. We do know that Lee Malvo has admitted to

stealing the gun from that dealer. Therefore, there is a principle in tort law that says that a manufacturer is not liable if the product used, being his, was stolen before it was used. That we do know. And now we have an admission by the person who pulled the trigger that the Bushman rifle used in those tragic incidents here that kept this city rivetted for a tremendous amount of time and took numerous lives was a stolen weapon.

Having said all of that, the case is yet to be investigated. The facts are yet to be truly known. Allegedly, guns went missing. Allegedly, they were not reported.

If all of that is true, then the owner of this particular gun shop in Tacoma, WA could well be liable and could well come under the criminal laws of today, and S. 1805 would do nothing about that and shouldn't do anything about that.

Once again, as I have already said numerous times today--and I am sure I will repeat it over the course of a good number of days--this is a very narrow approach. It is an important one.

Senator Daschle, the minority leader, and I joined in his amendment embodied in S. 1805 to ensure that we refine it even more to make it very clear exactly what and who might be exempt and for what reason. We think we have so effectively narrowed it that it has met the broad acceptance of our colleagues in the Senate.

I hope the cloture vote today is reflective of some of that acceptance as we work and debate through this issue. I hope leadership on both sides can get us to an agreement so we might proceed and get on the bill and deal with some of the amendments at hand. I hope we can defeat them. I would like a clean bill. The administration would like a clean bill. There is ample time to debate other issues. There is ample time to debate extension of the assault ban. I strongly oppose that. That was legislation I called a political placebo at a time when everybody wanted to try to do something, even though they knew it was impossible to control the criminal element in this country unless you got tough on crime. So we passed that legislation.

History shows the assault weapon ban did little to no good--except it did one thing. It kept law-abiding citizens from buying certain types of firearms even though our second amendment would suggest they have the right to own them.

That is why I hope the assault weapon ban as it expires can be left to its expiration. I hope we can defeat that.

The other issue, the gun show loophole: Is there a loophole in gun shows?

Let me set the stage for that. I would like to compare a gun show and an auto show. If you are a licensed car dealer or a licensed manufacturer of automobiles--I don't know that you have to be licensed to manufacture automobiles--then you can put all kinds of auto shows together, and you can sell from those shows. You can demonstrate your product. You can sell all kinds of things with no prohibition. In Idaho, the only prohibition, if you sell more than five a year, is you have to get a license to be an auto dealer. What we say in gun shows is if you are a licensed gun dealer at a show, then you must comply with all laws during that show in the sale of a firearm. But if you are an individual who sells very few firearms but you might sell one to a friend or someone else on occasion, and you sell at a gun show, or you met a friend at a gun show and you tell him about a gun you have and the transaction occurs, you don't have to comply with a background check; You are not a licensed dealer.

Someone would suggest that is a loophole. I don't see that as a loophole because outside of gun shows it is not considered one--only if it is inside.

What this is all about is establishing a Federal regulation to control gun shows. This will be a new entity of Federal control over something that is clearly a free market process. Do we want Federal regulations over the control of auto shows? Do we want Federal regulations in control over new-clothing shows? No. That is the marketplace at work. But if there are Federal laws that control these different products and/or sale, then they comply. They comply inside the show or outside the show. That is standard today.

What our colleagues are trying to do in suggesting there is a loophole, which I believe I have suggested by demonstration of facts does not exist, is to control the gun show, and to suggest if you are an individual and you make a sale at a gun show, you then must do background checks and all other due diligence you would not do if you were outside the gun show, speaking neighbor to neighbor, friend to friend, and were not viewed as a licensed dealer, or not a gun dealer in any way.

That is the reality of what we are talking about. Those are some of the amendments we will have which we will be dealing with on the floor. I hope as we deal with those, we might deal with others such as concealed carry. We might look at the gun ban of Washington, DC, where law-abiding citizens cannot legitimately own firearms, and a variety of other issues.

The President asked--and I would like to honor that because I believe strongly in it, too--that we produce a clean bill just exactly like the House did on a better than 2-to-1 margin--285 to 140--that we produce a clean bill and get it to the President's desk; wipe out these frivolous lawsuits but still allow law-abiding citizens who might be injured by illegal action of a gun dealer or illegal action of a gun manufacturer their day in court without the kind of frivolous and/or junk lawsuits-- the kind that are costing the industry millions upon millions of dollars right now and slowly but surely diminishing them.

Lastly, if we are not successful and if the trial bar is at some day and at some point successful, my guess is this relatively small industry in our country will not be here. What happens when we no longer produce high-quality firearms in this country for our military or for our police? Do we rely on China or Yugoslavia or Hungary or some other foreign country to produce the firearms our men and women in Iraq use to defend themselves and to enforce the law? Do we put them at risk? Do we say to our good law enforcement officers, You are going to have a foreign firearm on your hip and it will not be produced by a legitimate company in this country as a part of our national protection and our freedoms and rights?

That is ultimately what could happen because already we have seen these industries go out of business because of the risk of doing business and the liability involved based on these types of lawsuits we are now trying to shape and limit. That is the essence of S. 1805.

I hope we can soon move to the bill and begin debating it in its entirety, and certainly any amendments that would then come forward, debate those, get an up-or-down vote and move toward final passage.

With that, I yield the floor and suggest the absence of a quorum.

Mr. President, I thank Senator Daschle, our minority leader, the Senator from South Dakota, for the cooperative way in which he has worked with us to, in his own words, improve, narrow, clean up this piece of legislation.

As I have already said on the floor today, a good number of times, the Daschle amendment--the effort that S. 1805 seeks to accomplish--is a very narrow way of protecting law-abiding, legitimate firearm manufacturers and dealers, but not to stand in the way of access to the courts as a result of somebody being harmed by somebody who has acted illegally as a licensed dealer or a firearms manufacturer.

I truly appreciate the Senator's efforts in behalf of this very small community of folks in the industry of manufacturing quality firearms. It is critical for our Nation, for law-abiding citizens, and for our national security. The Senator has seen that and understood it, and we will work now to hopefully get this bill before us soon this afternoon so amendments can be offered. I think the Senator has been

ready to do that. That will move us down the road toward hopefully final debate and a vote on this legislation.

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

Mr. President, the leadership of both sides of the aisle, at the moment, is working to try to see if we can gain a unanimous consent request that would bring us to the bill hopefully within the hour and possibly deal with one or two amendments, and at least one amendment voted up or down; and then the laying down of another amendment at least this evening and starting debate on that.

So I thought for a few moments I would give a little background as to what has brought us to this point in time and S. 1805.

Senator Daschle was in the Chamber a few moments ago to visit with the Senate about his amendments and what we effectively incorporated in the bill. He has some fine-tuning he may offer as one of the first amendments this evening.

But when Senator Baucus and I introduced S. 695 back in the spring, more than half of the Senate--Republicans and Democrats--became original cosponsors. Today we have 55 cosponsors, including the leadership on both sides. A similar bill, H.R. 1036, was passed in the House of Representatives by a 2-to-1 margin over a year ago.

Now we have before us S. 1805, again, very similar to what we did in 1995, but with some adjustments made with the Senator from South Dakota. This is an extraordinary showing of support for a bill. I believe it is a testament to the gravity of the threat addressed by this legislation: The abuse of our courts through lawsuits filed to force law-abiding businesses to pay for criminal acts by individuals beyond their control.

The businesses I am talking about are collectively known as the U.S. firearms industry. The lawsuits I am talking about claim that even though these businesses complied with all of the laws and sell a legitimate product, they should be responsible for the misuse or the illegal use of the firearm they produce, misused by a criminal. These actions are pursued with the intent of driving this industry out of business--regardless of the thousands of jobs that would be lost in the process and the impact on citizens across the Nation who would never contemplate committing a crime with a gun.

Let's be very clear about this. These lawsuits are not brought by individuals seeking relief for injuries done to them by anyone in the industry. Instead, this is a politically inspired initiative trying to force social goals through an end run around the Congress and the State legislatures.

I believe that is worth repeating because it is the essence of the legislation. Instead, I believe these lawsuits are politically inspired initiatives trying to force social goals, or public policy, if you will, through an end run around the Congress and the State legislatures.

The theory on which these lawsuits are based would be laughable if it were not so dangerous: To pin the responsibility for a criminal act on an innocent party who was not there and had nothing to do with the act. They argue that merely by virtue of the fact that a gun was present, those who were part of the commercial distribution chain should be held responsible for the gun's misuse.

Earlier today, I talked about all kinds of chains in commerce-- automobiles, and other vehicles, and other tools that are used tragically enough sometimes or misused in a way that they take a human life. What about a baseball bat? We hear, every so often, of a baseball bat used in the commission of a crime in which the baseball bat or the use of it struck a person and killed them. Should we make a person who manufactured that baseball bat liable or should we do that which we have always done in this country: made the individual responsible for his or her action?

This is not a legal theory. It is just the latest twist in the gun controller's notion that it is the gun, and not the criminal, that causes the crime; it is the car, and not the drunk driver, that kills the child it runs over.

The truth is, there are millions of firearms in this country today. Yet only a very tiny fraction of them are ever used in the commission of a crime. The truth is, again and again law-abiding firearms owners are using their guns, often without ever firing a shot, to defend their life or the lives of their family and their property. That is what the second amendment is all about. That is why this right is ingrained within the character and the culture of this country. The truth is, the intent of the user, not the gun, is what determines whether that gun will be used in a crime. A gun can be nothing but a piece of metal until it is used carefully and wisely by an individual in defense of themselves or in hunting by the expertise of the shooter, or it can become a very lethal weapon in the hands of a criminal in the taking of a life.

The trend of abusive litigation targeting the firearms industry not only defies common sense and concepts of fundamental fairness, but it would do nothing to curb criminal gun violence.

Let me repeat that. Does it stop gun violence in this country? No, it does not. The only way you do that is to sweep our country clean of the millions of firearms that are owned out there, and certainly take them out of the hands of criminals. But we know that is a near impossible task, too. Furthermore, the trend jeopardizes America's constitutionally protected access to firearms for defense and other lawful uses.

The bill that more than half of the Senate has already endorsed is a measured response that would put a stop to this abusive trend without endangering legitimate claims of relief. Let me emphasize that it does not insulate the firearms industry from lawsuits or deprive legitimate victims of their day in court, as some critics have already charged.

Nowhere in S. 1805 is there a padlock on the courthouse door. Quite the opposite. If this becomes law, this is the law that will be argued in court by some as to why a given lawsuit ought to be thrown out. And we trust the judge, wise and learned, will listen to all of those arguments and make a decision as to whether the lawsuit goes forward because it is legitimate within the law or it is simply just that, frivolous, it is not legitimate within the law, and it ought to be denied or cast aside.

Again, let me emphasize, it does not insulate the firearms industry from all lawsuits or deprive legitimate victims of their day in court, as some critics would, in fact, argue, and has been already argued several times on the floor today. In fact, it specifically provides that some actions can be brought against those in the business of manufacturing and selling firearms when they violate the law or act wrongfully themselves.

Earlier today, I went through those five areas that we have clearly identified in the law where action can be taken. Senator Daschle has even refined that a little more to make sure all is clear in this given area. Actions based on breaches of contract, defects in firearms, negligent entrustment, criminal behavior--these actions would not be affected by this legislation. The laws there are already clear. People are

being tried today in the courts based on those laws, and S. 1805 in no way would wipe them aside or cause a different action.

S. 1805 is solely directed at stopping frivolous politically driven legislation against law-abiding individuals for the misbehavior of criminals over whom they have no control. The courts of our Nation are supposed to be forums for resolving controversies between citizens and providing relief where warranted, not a mechanism for achieving political ends that are rejected by the people's representatives--the Congress or the State legislatures.

I believe that is the fundamental essence of 1805. It is direct. It is clearly to the point. It ought to be. I am pleased that 75 Members of the Senate earlier today said let's move this legislation to the floor. Let's begin the process. Let's vote up or down. Let's keep the bill clean and deal with this critical issue.

Once again, let me talk for a few moments about those exceptions we have carved out or defined within the law in the bill to make sure there is no question. The key to S. 1805 is the definition of qualified civil liability action which is addressed in the definitions section, section 4. I ask all of my colleagues to go there and read it. It is a simple bill, an easy bill to read, of 11 pages. But we made sure that we clearly spelled out a qualified civil liability action, which is defined as a lawsuit brought by any person against a manufacturer or a seller of a qualified product or a trade association for damages resulting from the criminal or unlawful misuse of a qualified product by a person or a third party.

Section 4, subsection 5, the definition then excludes five categories of lawsuits from coverage under 1805. In other words, we make very clear these following areas:

No. 1, an action brought against a transfer convicted under section 924(h) of title 18 United States Code, or a comparable or identical State felony law, by a party directly harmed by the transferee's conduct. In other words, illegal movement of the weapon itself.

An action brought against a seller--this is the second one--for negligent entrustment of negligence per se. Negligent entrustment is defined in section 4, subsection 5(a), as the supplying of a qualified product by a seller for use by another person when the seller knows, or should know, the person to whom the product supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person and others. Misuse of the firearm, knowing that is going to happen. That is what Senator Daschle spoke to so clearly today in his clarifying amendment.

The third item, an action in which a manufacturer or seller of a qualified product knowingly and willfully violated a State and Federal statute applicable to the sale or marketing of the product and the violation was a proximate cause of the harm for which relief is sought.

No. 4, the action for breach of contract or warranty in connection with the purchase of the product.

No. 5, an action for physical injury or property damage resulting directly from a defect in the design or manufacturing of the product-- in other words, product liability--when used as intended or in a manner that is reasonable and foreseeable.

And then, as I mentioned, the Daschle language amends the text to permit suits against manufacturers or dealers engaging in straw purchase transactions. That is, when one individual purchases a firearm on behalf of a third party.

Why did we spell these out? We wanted the Senate and the citizens of our country to understand that this was not broad, nor was it sweeping. At the same time we wanted everyone to understand that what we were saying very clearly is something that has been said time and time again as it relates to the value of this legislation; that is, the reenforcement of centuries of legal precedent based on individual responsibility, not responsibility for actions of third parties. In other words, if you manufacture a product legally in our economy and it sells and someone misuses it and a life is taken with the misuse of that product, should we be able to come back through the court to the person who produced it when they abided by the law and in no way knew that the product would be used with the intent of harming someone?

That is the basis of individual responsibility in our country and, as I said, of centuries of legal precedent based on individual responsibility and not the responsibility of the actions of third parties. Many judges have already rejected these suits that have been brought. Antigun activists are trying to distort tort law by creating totally new and expansive theories of liability to win restrictions that have been rejected in the legislative process.

I ask unanimous consent that I be yielded Senator Nickles' hour under rule XXII.

Mr. President, I thank Senator Nickles for generously yielding me his hour. In a postcloture environment, the sponsors of the legislation are allowed 2, individual Senators are allowed 1. I didn't realize I had already spoken that much today.

Having said what I have just said, I hope I have laid a clear and unambiguous basis to why we are here today and why this legislation is sponsored and supported by so many groups across the United States: the United States Chamber of Commerce; the United Mine Workers of America; National Association of Wholesaler Distributors--and the list goes on-- the National Association of Manufacturers; the Boone and Crockett Club; the Buckmasters American Deer Foundation; the Campfire Clubs of America; Congressional Sportsmen's Foundation; Council of Wildlife Management and Education; Dallas Safari Club; Foundation for North American Wild Sheep; Hunting and Shooting Sports Heritage Foundation; International Association of Fish and Wildlife Agencies; International Hunter Education Association; Izaak Walton League of America; Mule Deer Foundation; National Rifle Association; National Shooting Sports Foundation; National Trappers Association; National Wild Turkey Federation; Pheasants Forever; Pope and Young Club; Quail Unlimited, Rocky Mountain Elk Foundation; Ruffed Grouse Society; Safari Club International; Texas Wildlife Association; the Wildlife Society; U.S. Sportsmen's Alliance; White Tail Unlimited; Wildlife Forever; Wildlife Management Institute; the Sports Fishing Association of America; America Tort Reform Association; National Association of Independent Insurers; National Alliance of American Insurers.

Here is something I found most interesting. We began to debate it on the floor today. Representatives from the International Association of Machinists and Aerospace Workers of East Alton, IL. Why? Because many of their members are employed in the Savage Arms Company in Westfield, MA, where they have already lost some 340 jobs over the last few years because that arms company has been so weakened by some of these lawsuits. They have had to pay out since 1999 over $425,000 as the cost of being at court with some of these lawsuits.

They are obviously concerned about their jobs. Somebody scoffed a bit this afternoon that I am standing here talking about jobs, that this is some kind of a jobs bill. It is just that. These industries are at risk today. They are not huge, deep-pocket industries. If we put every gun manufacturer in this country all together, they would make up, in total assets, less than a Fortune 500 company. So they are extremely concerned.

The aerospace workers in Waltham, MA, in Chicopee, MA, along with Westfield, MA, the United Mine Workers, again the United Steelworkers from Gainseville, FL--all of them have spoken to it. The United Auto Workers have employees at the Colt plant in Newington, CT. Today they say, and I read from their letter:

We have 383 members from the Colt workforce. By comparison,

about 5 years ago, we had over 600 Colt workers who were

members of our local. Our members built the finest small arms

in the world, including M-4 carbines, M-16 rifles, and M-203

grenade launchers.

Obviously, those are not civilian weapons, they are military weapons. Those are the kinds of tools that our men and women use in Iraq today in defense of themselves and in defense of our freedoms. Many of them provide

the U.S. military and law enforcement. Our law enforcement people carry, in most instances, American firearms at their side.

Do we really want, by forcing these industries out of business, Chinese or Yugoslavian or Hungarian firearms to be packed by our military? Some would say: Senator Craig, you are just exaggerating. No, I am not. If ever one of these frivolous lawsuits would find root and grow, the kinds of millions of dollars in potential settlement for an argument that a criminal act caused by a third party was ultimately the result of an individual manufacturer who operated in a legal way could easily put them out of business because they simply do not have the kind of depth that, for example, the tobacco industry had years ago when these kinds of lawsuits began to be won against that industry.

Others have been tried in a variety of industries, but there is a reality, and that is why unions are now stepping forward as strong supporters of this legislation saying: Wait a moment, enough is enough. As long as our companies are legal and responsible and producing quality products, leave us alone, unless we act in a criminal fashion or in violation of Federal law in this country.

I cannot blame them for asking it. I believe they should ask it, and I believe we ought to grant that right. That is what S. 1805 does.

There are a good many issues we will be discussing over the course of this debate. My guess is there will be a variety of amendments offered. I find it interesting that this debate gets us to where we are today.

Let me cite something that is interesting, and I will bring some charts to the Chamber probably within the next day. Here is a question asked by the political studies at Southern Methodist University and the Zogby poll people in examining the differences in thinking between people who lived in the States who voted for George Bush in 2000, the red States, and those who voted for Al Gore, the blue States. Think red and blue here for a moment. We all saw those maps after the election, so we begin to think in reds and blues.

Here was the question asked by the Zogby poll people. I don't think you would call Zogby a conservative pollster. He is either center left or is certainly viewed by most as not being conservative. Let me stop there.

Here is a question asked by the Zogby pollster:

Do you agree or disagree that American firearm

manufacturers who sell a legal product that is not defective

should be allowed to be sued if a criminal uses their product

in a crime?

The answer came back showing a phenomenal result. Opposition in the States that voted for President Bush, the red States, was 74 percent. In other words, 74 percent said that gun manufacturers that operate in legal ways ought to be protected. And in Al Gore States, 72 percent, a 2-percent difference. One could almost say that a vast majority of Americans agree with the essence and the principles of S. 1805. I found that very interesting.

Interestingly, across the board, those most strongly opposed to these lawsuits against the firearms industry are currently members of the military and their families.

There has been a lot of talk about our military these days because we have phenomenally brave men and women standing in harm's way in Iraq, Afghanistan, and other parts of the world. Our military said: We oppose frivolous lawsuits of our gun manufacturers by 83 percent. That was a Zogby poll taken earlier this year of 1,200 voters nationwide. So I find it interesting that opposition occurs to the very narrow approach we have taken when all of these large numbers begin to appear.

Zogby also asked this question:

Which of the following two statements regarding gun control

comes closer to your opinion? Statement 1: There needs to be

new and tougher gun law legislation to help in the fight

against gun crime. Statement No. 2: There are enough laws on

the books. What is needed is better enforcement of current

laws regarding gun control.

By a better than 2-to-1 margin, 66 to 31, voters nationwide agreed on statement 2; that is, there are enough laws on the books. What is needed is better enforcement of current laws regarding gun control.

Overwhelmingly, Americans are now speaking out very clearly on gun issues. They are also overwhelmingly speaking out against frivolous lawsuits of the kind that we have seen now launched against this industry. Some 30-plus have been filed. Some are still pending. Some are on appeal. Some have already been thrown out by judges.

That is why we are here today. It is time that Congress stands up and speaks to clarify and disallow the gaming of the system, if you will, by some who want to line their pockets first and, oh, if there is a little bit left, maybe the victim or at least the person in the name the suit was brought would gain some benefit, but large compensation to those who have a license to argue before the courts of the land. That is the reality of what we are dealing with.

I close by saying that we do not block lawsuits that are responsible, that are within the law as we see it today and that we understand have a legitimacy because some manufacturer or some dealer acted beyond and outside the law in a criminal fashion that causes us to suggest that their misaction means they ought to pay the price for that misaction because someone else paid dearly by the use of that firearm.

Those are the fundamental issues before us in this debate, and I think it is important we have these votes. I hope within the next few minutes or within the hour we will have an agreement that allows us to move forward and possibly go to an amendment tonight, and then we will be back tomorrow for the balance of at least Thursday dealing with other critical votes on this issue.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, we are hoping in a few moments that we might have a unanimous consent request to allow us to get to this bill.

I will respond only briefly to the Senator from New Jersey and his comments because he did suggest that I had implied something that is not fact on the floor of the Senate today. I want to make sure the record is clear because I don't want in any way to mislead any of my colleagues.

I said that the Bull's Eye gun store was closed. It, in fact, did close. The license of the dealer at the time the weapon was stolen was jerked. He could no longer conduct the business. He sold the business to a new licensed dealer. What the Senator from New Jersey failed to recognize is that licenses aren't given to locations; they are given to individuals, and those individuals must qualify. A condition of the new license also was all new personnel in the gunshop.

The Senator is accurate in suggesting that he might have called today and the gunshop is open under new management and new license and new people. The person who I said this morning had lost his license because BATF had jerked it and he had to close his business is, in fact, a legitimate and valid statement. That did happen. It is also my understanding that the criminal investigation is now underway, and that BATF is recommending to Justice that they file felony charges against this particular dealer. I do not know anything more about the facts. But I do know one thing.

Let me complete this thought, and I would be happy to yield.

I do know one thing. Lee Malvo himself said: I stole the weapon. That is very important. But the Senator suggested--and his words were: Well, maybe an under-the-table deal. I do not know that stealing is under the table, and the man who pulled the trigger admitted he had stolen the weapon. You can imply anything you want. I can't. I have to use factual statements given by, in this case, a man who has been apprehended and we now believe by all evidence committed that tremendously tragic crime and was one of the District of Columbia snipers. That is the reality. I believe those are the facts. I believe them to be honest and straightforward facts.

I would be happy to yield to the Senator.

I did yield for the sake of a question and not a comment. I would like to reclaim the floor.

I didn't inquire about friendships or relationships. I inquired about the legality of the license that operates the store, and whether the store is still in business, and whether the owner who is alleged to have mishandled records owns it today; does he operate it. The answer is no.

Let me also add that I appreciate the Senator's logic about the stealing of a weapon. Automobiles are stolen from automobile lots and the thieves are caught on camera. The last I checked, an automobile is substantially larger than a rifle. Is it possible that Lee Malvo picked up a gun and walked out of the store? He says he did. He says he did. He stole the weapon.

I am not going to in any way attempt to defend the man who once owned the Bull's Eye gunshop. He may be indefensible. He may have violated the law. If he did--and he is being investigated for it--S. 1805 does not immune him from any of those actions. That is what is important to understand as we debate the bill. His acts were criminal. If he is in violation of the Federal firearm license, if he has mishandled his records, and if he had, in fact, seen a robbery and failed to report it, then this man is in trouble because that is the law. We would not protect him nor does this bill protect him from that law.

I yield the floor.

If the Senator will yield, I think that is a valid analysis and I certainly did not intend to misportray that.

Again, let's go back to the law. Are you suing the store if there are lawsuits, or are you suing the individual who had the Federal firearms license? Is it the physical structure that is liable or is it the individual who owned the structure who is liable? We know

what the law is. It is the individual and not the store.

I cannot, nor do I, know the details of the relationship. What I do know is that he cannot sell firearms today. His license has been pulled. That is what the law requires, and a criminal investigation proceeds at this moment. I believe that is the essence of the argument.

If the Senator will further yield, I did use the phrase ``store closed.'' I meant the ownership, as it was; he closed. It reopened. Whether it was 24 hours or 48 hours, he could no longer operate it when his license was revoked. We understood he sold it to a new operator who is licensed.

Hope springs eternal that we might, sometime in the late of the afternoon--I guess it is now described as early evening--see a unanimous consent agreement that would take us into tomorrow and the remainder of the week as to how we are able to move to and deal with S. 1805 and its amendments.

I am going to respond only briefly to what my colleague has just said because I am not an attorney and I am not going to attempt to outlawyer the lawyers. Mr. Cutler is a fine lawyer. There are many other fine lawyers who disagree with Mr. Cutler. It is not our job to outlawyer the lawyers, but it is our job to write law as clearly as we can and then allow judges, listening to

the arguments of lawyers as they relate to how a given situation might fit in a suit, to make the determination as to the applicability of the law.

Now, having said that, I would like to refer to another lawyer. Is he as recognized as is Mr. Cutler? No, probably not. But this does come from the Congressional Research Service, and it is one of those services that we utilize. The Senator has, I think, the same work product I have. We are talking about the Daschle-Craig-Baucus amendment that Senator Daschle came to the floor to speak to a few moments ago.

The Daschle-Craig-Baucus Amendment would strike ``knowingly

and willfully'' in the preceding sentence--

That we are talking about--

potentially increasing the likelihood that [certain

exceptions] to the general immunity afforded under the [law]

would be applicable in any given case.

They looked at it in relationship to the Bull's Eye case to which the Senator was referring.

Now, these are not my words. I am not this good. I am not an attorney. But I do listen to them, and I seek out their advice when it comes to writing law and making sure that it is clear and unambiguous.

They cite two examples and they say:

Applying these changes to the scenario at issue--

We are talking about Bull's Eye--

it would appear that the Amendment could have the effect of

making it more likely that this exception to immunity would

be applicable, if certain facts are established.

``If certain facts are established.'' Those facts have not yet been established. They were not established for Attorney Cutler. He is simply looking at the broad presence of the law, or application of it, as are we.

If certain facts are established in an investigation and charges are brought against an owner, then we believe our amendment clarifies and does not provide the immunity, if those facts are established.

Now, the changes we are talking about are twofold:

(I) any case in which the manufacturer or seller knowingly

made any false entry in, or failed to make appropriate entry

in, any record which he is required to keep pursuant to State

or Federal law--

If weapons are stolen and they fail to note it, fail to report it to the police, that fits that area--

or aided, abetted or conspired with any person in making

any false or fictitious oral or written statement with

respect to any fact material to the lawfulness or the sale or

other disposition of a qualified product.

``Other disposition''--theft. At least this is my interpretation now. I am not a lawyer. Secondly:

[A]ny case in which the manufacturer or seller aided,

abetted or conspired with any other person to sell or

otherwise dispose of a qualified product, knowing or having

reasonable cause to believe that the actual buyer of the

qualified product was prohibited from possessing or receiving

a firearm or ammunition under section 922(g) or (n) of title

18, United States Code. . . .

That is what the Congressional Research Service says. Then it draws that conclusion I gave earlier:

Applying these changes to the scenario at issue--

That is what the Daschle-Craig-Baucus amendment does. ``The scenario at issue,'' the arguments put forth, the concern about somehow, if the facts are established, this firearms dealer being immune by S. 1805--

it would appear that the Amendment could have the effect--

The amendment is in large part incorporated in S. 1805 now, and Senator Daschle is going to offer another amendment that we know will be accepted and will clarify it even more--

of making it more likely that this exception to immunity

would be applicable, [again] if certain facts are

established.

That is the argument at hand. We can trade arguments of attorneys. We will place all these kinds of things in the Record so our colleagues can understand them and hopefully sort them out, but it is my opinion that we are not exempting this formerly licensed gun dealer who has now had his license revoked. Because if an investigation goes forward, and charges are filed against him, I believe we have clearly not granted him immunity under S. 1805 if it, in fact, becomes law. I do believe that is the strength of our argument, and one that certainly is believed to be what we represent here. It is certainly from the Congressional Research Service, which has very active attorneys who deal constantly with the law as we shape it and form it and look at arguments that are placed out there in the public arena in relation to the legislation that we bring before the Senate.

I yield the floor.

Mr. President, we hope we are narrowing down to a time when we will have a unanimous consent request which then--and I can't judge this yet--might conclude our efforts today. We will be back early tomorrow morning to resume. I thank my colleague for his arguments. We are not going to try this case here on the floor of the Senate because we don't have a judge. I am not a lawyer. He is; I am not. But I would also ask him to look at another provision we have in the bill as he argues the case. That is that a lawsuit could also be allowed under the bill's exception allowing actions for negligence per se or for negligent entrustment, depending on, of course, the condition of the dealer and the dealer's knowledge, if any, of the suspects.

Having said that, let's remember to address these issues, the victim would need to get his day in court. The case will be filed. The defendant would file a motion to dismiss based on provisions of 1805. And if the judge--remember there is going to be the impartial judge weighing all the law and the findings--decides this case did not fall under those exceptions, then the litigation would proceed. That is the essence. We are not going to argue the case effectively here because, frankly, we don't know all of the facts. We are not a part of ATF's investigation, and all of those facts are not yet public. They will not be public until charges are filed, a suit is brought, and that day in court I just spoke of is at hand.

Obviously, the Senator and I can disagree on what the meanings are, but I do believe the arguments we put forth are extremely valid. Certainly, the minority leader, myself, and others, in a very bipartisan fashion, have worked tremendously hard to craft this bill in a way that is as narrow as I expressed it to be earlier in the day to deal only in the protection of law-abiding dealers, law-abiding manufacturers who make a legitimate product, and to deny the kind of lawsuits we have seen that are more intent on bankrupting the manufacturer than they are in bringing resolution to or, if you will, dealing with the victims and rewarding them in any fashion.

I yield the floor.

Will the Senator yield?

Let me thank both the leadership on our side of the aisle and certainly the minority leader and the minority whip for the work they have done in trying to bring this together.

Is this something that I wholeheartedly support? Well, let me put it this way: It is something I support because it gets us to a final vote, which is very important, in a timely way.

But something is absent from this unanimous consent agreement that is very important: to allow the underlying bill, however it is changed, to become law. That is why we are here on the floor. Not that this is how we get to conference, which oftentimes is agreed to. When we craft a bill and arrive at a time of final passage, we almost always include in it the procedure by which we will get to conference.

I hope that our minority leader, in good faith, would work to help us get to that point so we can work out the differences between the House and the Senate. There will be differences; that is quite obvious now. Some of these amendments could pass. It is important we work that out.

We saw the underlying bill gain a substantial bipartisan majority support in the Senate, and therefore it is

incumbent upon all of us, I trust, to get this bill to a conference between the House and the Senate, work out our differences so we can vote on a conference report and allow this underlying bill now changed to get to our President's desk.

Having said that, let me thank everyone for the work they have done. This is a very busy schedule. But let me also echo what the minority leader said. It does not stop other Members who feel they must offer amendments from bringing those to the floor. I said early on today we wanted an open process, amendments voted on, but at the end of the day we wanted to vote on final passage. We helped facilitate that by this agreement, and I appreciate the work done by our leaders.

Mr. President, I rise in strong opposition to the so-called Protection of Lawful Commerce in Arms Act. At a time when this country is faced with extraordinary problems--with economic problems, international problems--we are devoting very precious time to legislation that is in behalf of a special interest rather than dealing with the broader public interest, the economy of this country and the international position and status of this country.

This is not legislation that is designed to protect the courts. This is legislation that is designed to protect gun dealers, the gun industry, manufacturers, and trade associations such as the National Rifle Association. To suggest this is simply a response to politically motivated cases flies in the face of cases that have been filed, like the cases of the victims of the sniper shootings here in Washington, DC; people like Bernice Johnson, whose husband was sitting on a bus reading his paper waiting to go on and run his route that day and was killed. It subsequently turns out the weapon that was used in this crime came from a dealer in Washington State who apparently couldn't account for 238 weapons. Mrs. Johnson is not suing to make a political point. She is suing simply because she lost her husband, the father of her children, and she would like to hold responsible those people who were negligent.

The suggestion that this is a minor exception to the law when people are acting legally, following a statute, flies in the face of our concept of civil liability. It is not a question of just following the law. It is also a question of being responsible for your actions, of not being negligent, of taking due care in the performance of your legal duties. This whole approach is something I think flies in the face of basic common sense and the basic law of this country.

We are struggling with huge problems across this Nation. Yet we are spending precious time here to try to deal with the interests of a special group of people, a very influential group of people. We are not out protecting the rights of Mrs. Johnson and others bringing this suit. We are protecting the rights, frankly, of the gun industry to be negligent and harm people through their negligence.

This legislation is not a minor, carefully crafted exception. It would wipe out virtually every opportunity to assess whether a gun dealer, a gun manufacturer, or a trade association was negligent in their activities. It would bar virtually all negligence for product liability in State and Federal courts and throw out all pending cases, cases that have already been filed prior to this date, prior to the potential enactment of this legislation. It is a sweeping immunity to gun dealers, gun manufacturers, and even trade associations such as the National Rifle Association.

It is no wonder the gun lobby dropped this legislation in the 107th Congress, because we were paralyzed here in Washington by a sniper--two snipers, it turns out--who killed people with weapons that were obtained through the apparent negligence of a gun dealer. Yet these individuals, these victims and their families, would be denied the right to go to court because of this legislation.

It is also ironic that this would be the first gun bill to be enacted since Columbine, a situation in which, again, young people, disturbed young people, were able to go to a gun show using a straw purchaser, using the loophole that exists in buying weapons without a background check, and then went into a high school in Colorado and wreaked havoc. Instead of closing the gun show loophole, we are now trying to open up a huge highway for the negligence of gun dealers, negligence of the gun industry.

Talking about the procedural correctness of this approach, this legislation did not go through the Senate Judiciary Committee. There were no hearings, no committee markups were ever scheduled. This very complicated issue of balancing the rights of plaintiffs versus the rights of defendants in the context of civil litigation was never fully assessed through hearings. Now we are here and now we must have a vigorous debate on this legislation. We must not only look to the specifics of this legislation but also to its impact across the country and address some larger issues of gun violence in the United States.

Two years ago or so, it was the Washington area snipers who paralyzed this country, certainly paralyzed this area of the country. Today there is apparently one or perhaps more gunmen who are stalking innocent people on the highways of Ohio.

Gun violence exists and we should do more to stop it. We should use this opportunity to pass provisions that will close the gun show loophole, that would reauthorize the ban on assault weapons that has operated in the last few years at least to keep the most dangerous weapons out of the hands of some very dangerous people. We should require effective safety locks on handguns. We should improve the national instant criminal background check system so there is a more accurate and more effective system of checking.

These are the things we should be doing and I hope we can have an opportunity to offer amendments in this regard. Every day there are hundreds of thousands, millions of families who struggle to do all they can to protect their children and themselves. Here we are telling the gun industry: Don't join that effort to make people safer. You can ignore reasonable, responsible actions. You can be negligent and you will not be brought to justice.

I think that is wrong. I think that is bad law, bad public policy. I urge my colleagues to oppose this legislation, to

oppose this motion to go forward. There are much more pressing demands in this country we should address today: the unemployed, those who are struggling to find jobs in a jobless economy; funding fully our national defense. We have a budget that was presented to us that does not include any money for Iraq and Afghanistan. That is something we should be focused on today.

I am happy to yield.

Reclaiming my time, I agree entirely with the Senator from Connecticut. Rhode Island, like Connecticut, is seeing its manufacturing base evaporate. These are real problems. These are problems that affect families throughout this country. This is truly in the public interest, finding an answer to disappearing jobs throughout the country. Yet today we want to protect one very special interest.

Let me add, too, as the Senator points out, not only are we trying to give an unprecedented immunity to one industry, this industry is virtually unregulated in the sense of other industries. It is not controlled by the Product Safety Commission, which would look at the product design. So one of the only recourses an individual has with respect to negligence claims is through the courts. Here we are eroding that avenue.

I will.

Mr. President, the Senator is right. There have been no hearings. This bill has been brought to the floor directly. That is why it is incumbent for us to take a greater amount of time to look over the bill.

The only exception other than Price-Anderson I can think of is General Aviation Aircraft, over 18 years old, that has special protection. That is a very narrow protection, and I think it is nothing like contemplated in this legislation.

I must also note those aircraft are supervised by the FAA. There is significant Federal involvement in the design and airworthiness, things that do not apply at all to a weapon.

That is my understanding. It is not only my understanding, but it is the understanding of various counsel who looked closely at this legislation and rendered an opinion to that effect.

That is my view entirely. That is what this legislation will accomplish. It will not only prospectively provide barriers to the courts for victims of negligence like this, but it will reach back and protect these individuals who apparently--at least arguably--were negligent in not properly controlling over 230 weapons, not just the one the snipers used, which disappeared.

I think the Senator is entirely correct. His insight also is accurate in that I cannot see that other industries, if we pass this, won't come to us and say, We have very valid reasons, too. We are being assailed every day by these claims. This sets a very dangerous and very unfortunate precedent.

Mr. President, how much time do I have remaining?

Very few suits have been filed. There is not an epidemic throughout the Nation, but probably the best evidence is from the companies themselves. Let me make reference to the 10-K report on weapons.

In the opinion of management, after consultation with

special counsel, it is not probable and is unlikely that the

outcomes of these claims will have a material adverse effect

on the results of the operations or the financial condition

of the company as managers believe it has provided adequate

reserves.

So in 10 cases, in the statement required to be sworn to under the securities laws, Smith & Wesson and other companies have essentially said there is not a material problem.

At this point, because I know there are other speakers who would like to respond----

I am aware of it. The Senator is correct. We think there are less than 100 cases.

I am aware of that. In the course of this debate, I hope we can emphasize that point.

I retain the remainder of my time and yield the floor.

Mr. President, I yield such time as he may consume to the Senator from Massachusetts.

Mr. President, the legislation before us is a benefit to special interests, the gun lobby. It will deny individual Americans the right to go to court to challenge the conduct of individuals who negligently or allegedly negligently sold weapons. It would be a great distortion of the law. I hope my colleagues will resist this legislation.

Cloture Motion

I ask unanimous consent the call of the quorum be rescinded.

Mr. President, this legislation before the Senate has been described as necessary for the gun industry. It is nothing at all like that. There is no crisis with respect to lawsuits aimed against the gun industry.

This legislation, though, poses a very serious risk to the rights of an individual citizen who is a victim of gun violence to go to a court of law in the United States and to simply ask on the facts whether the conduct of the individual gun dealer and the manufacturer represents the standard of care that is expected of every individual and corporation in this country. That is very simply what we think is inherent in our rights as citizens. This law will strike at those rights on behalf of a powerful and influential industry, in this case the gun industry.

There has been some suggestion we are trying to protect the courts from third party lawsuits when, in fact, the reality is these actions are based on the actions of the manufacturers and the dealers, not the actions of someone with a gun. This is based upon the standard of care of the manufacturer and the dealer, not what an individual may or may not have done with a firearm. These are not third party lawsuits. These are lawsuits brought by victims, Americans who have suffered themselves personally or suffered through the death or injury of their

family members. They are going to court and they are simply saying these manufacturers or these gun dealers have violated their duty to be reasonable, their duty to be prudent, the duty of every individual who lives in an organized society to behave in a way that does not unnecessarily bring harm to others. That is the essence of our law.

This legislation turns all of that on its head and says for a very special class, the gun lobby, the rules of the game do not apply. And if there is a citizen who seeks redress, then do not go to the courts of the United States.

They tried to make the point that this does not close the door on the courthouses of America. No, this bill goes much further. It takes individuals who already have cases in courts and throws them out the door. Page 5 of the bill:

DISMISSAL OF PENDING ACTIONS.--a qualified civil liability

action that is pending on the date of enactment of this Act

shall be immediately dismissed by the court in which the

action was brought.

Not shall be considered in light of this legislation and the judge may make a determination that the suit can go forward, immediately dismissed.

That is not just shutting the court door; that is evicting the plaintiffs from the court, through the door. That is just one aspect of the legislation.

There is a discussion, too, about exemptions, talk about knowing that if a gun dealer or manufacturer knowingly does something, of course, they might be liable. That is a criminal element because in our criminal law we do not choose to punish people who unwittingly or unknowingly do something. There has to be, in most cases, some intent, some knowledge. Otherwise, the criminal law is absolutely arbitrary. It captures people simply for making a mistake. That is the criminal side.

What we are talking about here is civil jurisprudence, the ability of an individual to go to court to get damages for harm against that person. That is not a criminal case; that is a civil case. That is not enforcing the criminal laws of the Nation which rest upon knowledge and intent; that is seeking redress based upon the standard of conduct, the obligation to care, to exercise an appropriate degree of care.

The opponents of this bill are bringing those two issues together, confusing and mixing them up. But there is no confusion about this bill. It takes away the civil rights of an individual to go to court and a judge and jury to decide whether the individual, the defendant, has harmed them through negligence, through their inability to actually conform to a recognized standard of care. It is an extraordinary assault on basic legal rights.

I find it amazing that at this time when there are so many problems facing this country, we are looking at legislation that is not just so overwhelmingly slanted to a particular special interest but one that disregards these basic rights that we all take for granted.

There is also a suggestion in this legislation that there is a crisis because of these suits that are driving the gun manufacturers out of business. That is not what the gun manufacturers are telling their shareholders. That is not what they are telling the Securities and Exchange Commission under the penalty of perjury. This is an excerpt from the April 30, 2001, report of Smith & Wesson:

In the opinion of management, after consultation with

special counsel, it is not probable and it is unlikely that

the outcome of these claims will have a material adverse

effect on the result of operations or the financial condition

of the company as management believes it has provided

adequate reserve.

Under the penalty of perjury, the industry is telling the SEC and the shareholders, do not worry; these are not material claims. This is nothing that is going to put us out of business. This is nothing that is going to bankrupt us. Buy our stock. We are a good deal.

But here people seem to be suggesting that they are on the verge of collapse because these lawsuits are creating so much liability for the companies that they cannot bear it. I tend to believe their own statements in their SEC filings. As a result, this is not a crisis with respect to the gun industry in the United States. This is an industry that is extremely well-heeled and very zealous in protecting their own rights and interests.

In 1999, the National Shooting Sports Foundation, an industry group, and others created the Hunting and Shooting Sports Heritage Fund. By all accounts, this fund has raised as much as $100 million. They are engaged in lobbying activities. They are engaged in promoting this legislation. They are also engaged in ensuring that their internal documents are protected from discovery by lodging them in a California attorney's office. They are guarding, in a secretive way, their activities. This is not the case of a poor victim of a sniper or an aberrant gunman who does not have $100 million, who does not have a large organization. They have one thing: Their right to go into court, as every American citizen can do, and make a simple claim. If they have been negligent, I have been harmed, they must compensate me for my damages. This bill strikes that. It tears it out of our law.

Now, this is a situation where there is no financial threat of a great magnitude to the industry. In fact, some of these suits do not even talk about monetary damages. They are asking for injunctive relief. I think it is interesting that in the other body they struck out the ability to get even injunctive relief to change the practices of these companies. So this is not about a financial crisis. This is simply about providing remarkable, unprecedented protections for one industry at the expense of the average person on the street.

Again, the suggestion that this is a situation that is required because we have to protect the whole industry from these suits that paint everyone the same way disregards the nature of our tort laws. You have to allege specific facts against a specific individual or personality or corporation--their actions. This is based upon their conduct, not some type of blanket attack on the gun industry.

But if this law passes, we will limit the rights of American citizens. We will disrupt and overturn our system of tort law, which rests upon State action as well as Federal action. This will preempt causes of action that are entirely recognized and permissible in many State courts throughout the country. We will be disregarding the States, their legal systems, their knowledge of local conditions. That is another casualty of this legislation if it passes.

But this, ultimately, is not just about the niceties of tort law and federalism and the financial impact on industries. This is about real people.

I had occasion to meet one of these individuals when I met Denise Johnson. Denise was the wife of the late Conrad Johnson. Conrad was a busdriver and was the final victim of the Washington area snipers. The snipers' Bushmaster assault rifle was one of more than 230 weapons that disappeared from Bull's Eye Shooter Supply gun store in Washington State.

Now, at a minimum, the gun store's very careless oversight of firearms raises obvious questions of negligence and deserves to be explored by the civil courts. The actions which the gun manufacturer took in placing those weapons in the hands of Bulls Eye also are appropriate for scrutiny in the courts. Yet Mrs. Johnson's case would be thrown out by S. 1805.

Now, consider also the case of David Lemongello and Ken McGuire. These are two young police officers from New Jersey, the city of Orange. On January 12, 2001, they responded to a call, as police officers do every day throughout our country. Every day they risk their lives. What they encountered in a backyard was a gunman armed with a weapon. They were both grievously wounded.

It turns out that this individual went into a store in West Virginia with a straw purchaser--a woman without a criminal record--who purchased 12 guns at one time--he was a felon--and then took those guns and went off and became involved in these crimes, became involved in the disposition of these weapons.

This individual seller in West Virginia failed to follow the guidelines that even the trade association, the National Shooting Sports Foundation, has. So here is the seller, who is not at all averse to selling 12 firearms, in cash, to an individual, who walks in, who refuses to buy them himself but has a younger person, a woman in this case, make the purchase in name because of background checks, who disregards the guidelines of the industry,

and yet this legislation would say that those two police officers, who suffered grievously, cannot seek to be compensated by that dealer. It defies common sense as well as our legal tradition.

Now, the manufacturer of those guns, Sturm, Ruger is a member of the Shooting Sports Federation. I would assume they take great pride in their advertisements and say: Look at the guidelines we have. Our sales people have to be reasonable. They have to exercise great scrutiny, good judgment, et cetera. Well, they do not really require that these guidelines be followed, even though their organization promulgated them.

Now, this case is in the courts of West Virginia. Judge Irene Berger of Kanawha County, WV, looked at the case, looked at the law of West Virginia, looked at the specific allegations against the dealers, and said this case should go forward, there are no grounds for summary dismissal. Yet this legislation, if passed, would summarily dismiss that case. It would fall, I think, squarely under section 3(b):

A qualified civil liability action that is pending on the

date of enactment of this Act shall be immediately dismissed.

. . .

Judge Berger will not have a chance to evaluate whether this legislation and the exemptions comply, not in any real sense, because the presumption, of course, is that all these suits would be barred. There are exceptions which she may consider, but, again, those exceptions are so narrowly constructed that they provide little relief, no practical relief.

Now, there is not just one case. There are multiple cases but not the thousands that the industry would lead you to believe they would be overwhelmed by--but a few cases, inconsequential in monetary effect for the industry, as they stated, but of immense consequences to the individual who has suffered financially, emotionally, personally, and to that individual's family.

This is another case. This is Guzman v. Kahr Arms, in Worcester, MA. Twenty-six-year-old Danny Guzman was fatally wounded with a 9 mm gun. It was stolen from the gun manufacturer's plant by a drug addicted employee who had a criminal record.

Stop and ask yourself: Does a gun manufacturer have a responsibility to the community to ensure that its employees who have access to firearms are not former felons or somehow at odds with the law or who is not currently addicted to drugs? Isn't that the expectation that everyone in that community and every community around the country has? Well, of course.

Any sensible employer would ensure that an employee who has access to firearms would have some type of check to ensure they are not drug addicts or former felons.

They would be amazed if this legislation passed because, frankly, what we are telling the Kahr Arms company is, no, hire anybody you want because you will have no civil liability, none whatsoever.

Now, this company had rudimentary and ineffective controls for these weapons. They had no metal detectors, security mirrors, none of these things. Is that something the citizens of Worcester, the citizens of Massachusetts, the citizens of America want?

That is common sense. These companies have to protect these weapons. They have an arsenal. They manufacture weapons.

Apparently, that was not the case. It turns out the guns were taken from the factory by felons they hired without conducting background checks.

The gun used to kill Danny Guzman was one of several stolen by Kahr Arms employees. This is not just one bad actor. And maybe that is the defense: We are really pretty good. We just made one mistake. And they were stolen before the serial numbers were etched into the weapons. They could not be traced. What kind of company is this?

But what we are telling them, if we pass this legislation, is go ahead, it is fine, no liability for that, do that every day, just one of those things.

These guns were taken and resold to criminals in exchange for money and drugs. Again, common sense suggests there has to be a civil right to go in and challenge the negligence of this company. The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting, so the gun was apparently tossed away and a 4-year-old found it. Mercifully, the child was not injured.

This company could have done a score of things to prevent the death of Danny Guzman: Screen their employees for felony convictions, screen their employees for drugs, install safety cameras. What we are telling them, if we pass this legislation, is you don't have to do any of those things, because you can do anything you want and you will never be liable in a court of law in the United States.

Will we tell that to the automobile manufacturers? Will we tell that to other industries? Absolutely not. It defies and insults common sense. But we are trying to do that today.

There is another suggestion that you are trying to punish a whole industry because of a few bad apples. Like any industry, there are some scrupulous dealers, and we hope it is the majority. In fact, it does turn out to be the majority. But according to Federal data, 1.2 percent of gun dealers account for 57 percent of all guns recovered in criminal investigations. So obviously we have a problem with a small group of dealers.

What are we telling those dealers today if we pass the legislation? Don't worry; you can't be sued. Even if you represent the worst possible dealers in the industry, even if you don't barely measure up to the standards of every other dealer, you are OK, because the rules of negligence don't apply.

This is something that confounds common sense--forget the niceties of corporate law, of consumer protection law, of the tort system.

Most people believe that if you are in the business of manufacturing and selling weapons, you have a very high standard of care, higher perhaps than other industries, because you are dealing with a weapon that has the potential to kill people, much more obviously and explicitly than perhaps any other product manufactured.

What are we telling the industry? Forget that high standard of care. Not only can you have a low standard of care, you can have no standard of care, because you can do the most outrageous things in the world and no one can sue you. There might be some criminal liability, but then again, there might not. But the people you have harmed through your negligence will remain harmed and uncompensated. Don't worry.

Most industries, manufacturers, are governed by the Consumer Product Safety Commission, which regulates the safety of nearly 15,000 consumer products used in and around the home. Guns are not regulated by the Consumer Product Safety Commission because when it was created in 1972, the gun lobby pressured Congress to specifically exempt guns and ammunition from its jurisdiction. So there is no regulation by the Consumer Product Safety Commission.

Now there is no civil liability. Whatever standard of care exists in this industry is going to further deteriorate. We are causing problems; we are not solving problems with this legislation.

There is another aspect, too. It is not just the criminal on the street who comes into control of a handgun, be it through the poor inventory controls of a Bull's Eye Shooters Company or through the lack of any apparent security procedures of the Kahr Arms Company. There were 9,485 people killed and another 127,000 wounded in unintentional shootings between 1993 and 2001. In about an 8-year period, 127,000 people were unintentionally wounded by weapons; the firearm was defective or the design was inappropriate and it contributed to their injury. Don't we want to at least ensure in the design of weapons that there is a higher standard of care?

For example, there is a case in California of a 15-year-old who was unintentionally shot and killed by a 14-year-old friend with a defectively designed gun--Kenzo Dix. His friend Michael thought he had unloaded his father's gun. He replaced it with an unloaded magazine, he thought. But he failed to realize that in the chamber of the weapon there was still one round, and when he fired the gun, it resulted in the death of his playmate.

Sadly, we read these stories too often. We read these stories about the individual who has a gun at home and

the kid find it. The kids don't realize it is loaded, and death or injury results.

Now Beretta, the manufacturer, could have easily designed the gun to have some type of indication whether there was a round in the chamber. They could have had some type of active device to prevent firing. None of that was done, and, frankly, if we pass this legislation, it will never be done because they don't have to worry about a parent coming and saying: If you had made these changes to that weapon, my son would be alive.

They don't have anything to worry about. We have to worry about it. If you are a parent and you have a firearm in your home, you have to worry about it especially. That is not right.

Again, this is not about sophisticated theories of liability, sophisticated theories of the history of tort law. It is about common sense, common decency, and common obligation. This bill violates all of them.

There are lots of experts about firearms, but there is one group that I think probably is more expert than others. That is the law enforcement community. Where do they stand on this legislation? More than 80 police chiefs, sheriffs, and State and national law enforcement organizations wrote to all of us on February 11 to express their opposition to this effort to strip away these legal rights. These are officers from Maine to Texas to Washington State to Virginia to my home State of Rhode Island, chiefs, rank-and-file police men and women.

I ask unanimous consent that a copy of this letter be printed in the Record at the conclusion of my remarks.

These law enforcement officers know a bit more about crime than we do. It is their job. They do it very well. They know about the damage to communities when guns fall into the hands of those who misuse them. They see it up close and personal.

Earlier this year, we were in a situation where previous to this bill there was an effort to destroy gun records, another effort launched on behalf of the gun lobby. These records are maintained for a few days, but they wanted to eliminate these records within 24 hours. Los Angeles Chief of Police William Bratton said: I just can't understand how Members of Congress can even consider this. Obviously, they haven't shown up to the scene of enough officer shootings.

This legislation is in a similar vein. It is not about destroying records of gun purchases. It is destroying the right of an individual to say: I have been harmed. I need redress.

Again, if you talk to the law enforcement community, they are opposed to this legislation. It is a free ride for the dealers, for the manufacturers, and for others.

In this discussion, we have heard a great deal about Bull's Eye Shooters Supply. There is some suggestion that we fixed that problem. They have closed it and everyone is being punished.

Here are the facts: Bull's Eye Shooters Supply is still open for business. The alcohol, tobacco, and firearms agency revoked the license of Bull's Eye prior owner, Mr. Brian Borgelt. Mr. Borgelt's friend, Kris Kindschuh, then took over operation of the store.

Mr. Borgelt is appealing his license revocation to the Federal district court, and that case is pending. Let me stop for a moment. This is an individual who allegedly was so negligent that he could not account for 238 weapons, a litany of problems in terms of following the law. His license is being revoked, but he has a right--and he should have the right--to go into court and say this revocation is not based upon the law or the facts.

The irony here, of course, is we are telling victims--perhaps his victims--that they do not have a right to go into court to seek redress. This, again, not only is unfortunate, it just defies a rough sense of justice and fairness.

I think Mr. Borgelt should have every opportunity to appeal this revocation to prevent an arbitration action by the Government, but don't the victims of gun violence have a right to claim they have lost a great deal and they need redress in the courts? We will protect his rights, as we should, but we are undermining the rights of so many others.

As far as we know, the ATF, the Department of Justice have not filed any criminal charges against Borgelt. So the idea that this situation has been resolved, that this is fine, justice has been done, frankly, is not the case at all.

Indeed, what I am told is Mr. Borgelt runs the shooting range upstairs above Bull's Eye Shooter Supply. The shooting range is not regulated. So for all intents and purposes, particularly if you are a victim of the sniper shootings in Washington, DC, it does not look as if much has changed out there at Bull's Eye Shooter Supply.

If the ATF had recommended to the Department of Justice that they file charges, it has been almost a year. I would hope the Department of Justice, in a case such as this, could move more promptly. But we have a situation, frankly, that even if the Justice Department acted, it still would not compensate and make whole the victims of this series of crimes in Washington.

Let me focus for a minute on some of the facts we know about Bull's Eye Shooter Supply because one of the key issues here is whether or not the Washington sniper victims will be able to go into court if this legislation passes.

Here are some of the things that have been established so far about this dealer in Washington State.

There are a large number of missing guns. Bull's Eye could not account for 238 guns that were missing from its inventory when the Bureau of Alcohol, Tobacco, Firearms and Explosives inspected the gun dealer in 2000 and 2002. Bull's Eye's missing gun rate was greater than at least 99.73 percent of all Federal firearms licensees.

There was no accounting for 238 weapons. A large number of guns from Bull's Eye appeared in crimes. Between 1997 and 2001, Bulls' Eye guns were involved in at least 52 crimes, including homicides, kidnappings, and assaults, placing Bull's Eye in the top 1 percent of all dealers nationwide in the supply of guns used in crimes. This appears to be a pretty good source of weapons for crime.

In addition, the time-to-crime ratio was less than 3 years for more than 70 percent of Bull's Eye guns that were used in crimes from 1997 to 2001. Quick time-to-crime--the time the gun leaves the store and shows up at a crime--suggests this store may be a highway for guns into the criminal system. And they have a high rate.

There were a large number of multiple firearm sales. Between 1997 and 2000, Bull's Eye sold 663 guns to 265 individual buyers, as many as 10 guns at a time. This is not the record of a scrupulous, sincere dealer who is looking to enforce the standards of the industry.

Then, of course, there were numerous ATF citations. ATF cited Bull's Eye for violations at least 15 times between 1997 and 2001 and, following the sniper attacks, revoked the license of Bull's Eye's former owner.

Bull's Eye was cited 15 times between 1997 and 2001. That is not an inspiring record of scrupulous enforcement of the laws of the country.

Yet what we are saying in this legislation is: Go ahead, you are fine; you might have your license revoked, but then you are upstairs in the shooting gallery. Or you might not. Maybe the Government will make an error. Maybe procedurally they have done something inappropriate, but certainly you are not going to be able to face justice in the sense of facing the victims of this negligence.

There is something else this record says. It begs the question, What about the manufacturer? Why did Bushmaster Firearms, the manufacturer of the sniper weapon used by the Washington area snipers, tolerate this? Don't they have an obligation to ensure that the dealers they entrust with their weapons are not violating ATF regulations--cited 15 times--that they are not selling multiple guns to individuals, sometimes 10 at a time? Apparently not. After this legislation passes, they won't have to worry at all.

Many people ask, Why would a manufacturer be involved in this issue? Why should we be able to sue a manufacturer? If a manufacturer, such as Bushmaster, not only keeps supplying weapons to dealers such as this, but then turns a blind eye to all this evidence, it suggests to me they are not conforming to a reasonable standard of commercial conduct. You would not exempt an automobile manufacturer

from potential liability if it was shown that they repeatedly sold cars to dealers that violated ATF--it would not be ATF regulations, but consistently violated regulations, that persistently allowed underage sales, for example, even though you could make the argument that as long as the 15-year-old does not drive the car, it is a legal sale. But I think they would be suspicious at least to what was happening.

As a result, there is not only a strong case but there is a necessary case that manufacturers have to be subject to a standard of care also. This legislation would strip that away.

My colleague from Idaho and my colleagues on this side who support this bill say: Listen, this is narrowly crafted; this is not going to throw any suits out of the courts. You cannot have it both ways. You cannot be claiming, on one hand, that we are protecting this industry from lawsuit and then, on the other hand, say everyone can still go to court after this legislation because they all qualify for the exemptions. It is nonsense. These exemptions have been made so they do not exempt very much, if anything at all.

There is an analysis--and I made reference to it in my discussion surrounding Bull's Eye Shooter Supply--by the law firm of Boies, Schiller & Flexner. I ask unanimous consent that at the conclusion of my remarks this analysis be printed in the Record.

Mr. President, this law firm analyzed the legislation, and their conclusion is, particularly with regard to the Washington area snipers, that their cases will be thrown out.

There are two sections of the law which provide an exemption from the categorical dismissal of these cases. They are section (5)(A)(ii) and (5)(A)(iii). Mr. President, (5)(A)(ii) says:

. . . actions against a seller for ``negligent

entrustment'' or ``negligence per se''. . . .

And (5)(A)(iii) says:

. . . actions against a manufacturer or seller who violated

a statute in the sale or marketing of a firearm or

ammunition, where that statutory violation was a proximate

cause of the plaintiff's injuries. . . .

Their analysis concludes that neither of these exemptions would apply in the case of the Washington area snipers. Those cases are already pending. They will be dismissed, thrown out.

It is interesting because we continue to talk about, well, these exemptions will take care of all these cases, but it turns out that they will not, that the various nuances, the wording, the knowing violation of a statute, for example, the arcane cases of negligence entrustment and negligence per se, which are constructs that only a lawyer could fully appreciate and enjoy, all of this is craftily designed to prevent people from going to court, not to give them a fair right in court.

Again, it goes down not to these nuances, to this legal terminology but simple common sense. How can one stand up and say this legislation is designed to protect and insulate injury from the wanton acts of these third party criminals and then also say but, by the way, all of these cases will still go through?

I suspect there are things we could do right now to help these cases go through. ``Dismissal of pending actions'' could be struck. Clearly, that would suggest that the sniper cases would be in order because this legislation is not retroactive.

The thrust is not to give people rights; it is to take them away. It is to protect this one industry at the expense of individual Americans. The legislation is unusually preferential to a small interest group. It defies my understanding of why we would try to protect this industry, which is not financially at risk by their own admissions, at the expense of individual Americans who have been harmed.

I conclude by saying I never met Conrad Johnson, but like all of us in this Chamber, I woke up one morning and read about a bus driver reading his paper, waiting to go to work. I, frankly, thought of my father, who was a school custodian who got up in the morning, read the paper, getting ready to go to work.

He was shot reading that paper, killed. He left a wife and small children. That wife and that family have gone to court to say: Where is our justice? Maybe somebody will be convicted for doing something wrong, but how are we going to live for the next 40 or 50 years? People have been negligent--at least we think they have. There is a Bull's Eye Shooters store that lost 238 weapons and was cited 15 times by the ATF. They are not going to have a day in court to answer to Mrs. Johnson? I cannot understand this legislation.

I yield the floor.

Exhibit 1

February 11, 2004.

Dear Senator: As active and retired law enforcement

officers, we are writing to urge your strong opposition to S.

659, the so-called ``Protection of Lawful Commerce in Arms

Act.'' This bill would strip away the legal rights of gun

violence victims, including law enforcement officers and

their families, to seek redress against irresponsible gun

dealers and manufacturers.

The impact of this bill on the law enforcement community is

well illustrated by the lawsuit brought by former Orange, New

Jersey police officers Ken McGuire and David Lemongello. On

January 12, 2001, officers McGuire and Lemongello were

seriously wounded in a shoot-out with a burglary suspect. The

Ruger pistol used by the suspect was one of twelve guns sold

by a West Virginia pawnshop, Will's Jewelry and Loan, to a

``straw purchaser'' for a gun trafficker. The all-cash sale,

for thousands of dollars, was so obviously suspicious that

Will's reported it to the Bureau of Alcohol, Tobacco and

Firearms, but only after the sale was consummated. The

pawnshop had every reason to believe that, as soon as the

guns left its premises, they would be sold into the

underground market, destined to threaten the lives of police

officers and ordinary citizens.

Officers McGuire and Lemongello are pursuing legal action

against Will's for negligent sales practices and against the

gun's manufacturer, Sturm, Ruger, for distributing guns

without requiring its dealers to adhere to a code of

responsible business practices that would prevent such

obvious sales to gun traffickers. A West Virginia judge

recently ruled that the officers' suit against Will's and

Sturm, Ruger is well-grounded in West Virginia law and should

be heard by a jury. If passed into law, S. 659 would override

this decision and deprive these brave officers of their day

in court.

Police officers like Ken McGuire and David Lemongello put

their lives on the line every day to protect the public.

Instead of honoring them for their service, S. 659 would

deprive them of their basic rights as American citizens to

prove their case in a court of law. We stand with officers

McGuire and Lemongello in urging you to oppose this bill.

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

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

Madam President, I ask unanimous consent, under rule XXII, that Senator Sarbanes' hour be yielded to me as manager on the Democratic side.

Madam President, may I inquire as to how much time is remaining overall?

Madam President, how much time is reserved for the Democratic side?

I yield the floor, retaining my time, and I suggest the absence of a quorum.

Mr. President, we have heard a lot today about the exceptions contained in that bill which, arguably, might result in liability to someone such as the dealer in the Bull's Eye Shooting Gallery store but legal analysis by eminent attorneys suggests they would not apply to that particular case.

Yes.

The Senator is accurate. The analysis by eminent attorneys looking at this legislation, looking at the exemptions, suggests in the case of Bull's Eye that this dealer would not be subject to liability; he would be immunized from liability because of this particular bill.

This is a situation that has to be made very clear to people. We are essentially giving this individual an opportunity to walk away from serious negligence. I don't think it is appropriate. In fact, I think it is unconscionable.

There is a factual discussion about the status of the Bull's Eye Shooting Gallery. My understanding is--and it is close, I think, to that of the Senator from Idaho with additional detail--as I understand it, the individual who was in fact the owner-operator, Brian Borgelt, had his license revoked. He is appealing that revocation in court. That is his right. He somehow transferred ownership of the store to someone we have been informed is a friend, a colleague, which is also permissible under the law. It appears, though, that Mr. Borgelt is operating a shooting gallery in the same building, but it does look as if this might be an entirely legal transaction.

The point was raised earlier, and Senator Lautenberg and I have tried to clarify, at least there was an impression this store was closed, out of business, and not operating. The agreement and the factual accuracy as of this point that we both share is the store is operating. The individual who owned it is no longer operating it because his license has been revoked and he is challenging the revocation.

That is an accurate description of the situation but, again, the imprecision was whether the store is operating, not who is operating it. The individual is not able to operate because he lost his license.

I think it is important to clarify that because it has been a matter of factual dispute.

The other issue which has to be clarified is the applicability of this legislation to that original owner-operator who had been accused of a laundry list of inappropriate actions. I had the opportunity to review some of them today.

With respect to the owner of the Bull's Eye Shooting Gallery at the time the Malvo gun was obtained, under his ownership and under his license, 238 guns were missing. Many guns between 1997 and 2001 found their way into crime scenes. A remarkable record of guns found their way from a licensed dealer to crime scenes. Many found themselves to crime scenes in a rapid period of time. The nomenclature is ``time to crime.'' Time to crime was remarkably narrow. The time to crime was less than 3 years in more than 70 percent of Bull's Eye cases between 1997 and 2001, suggesting this organization was a conduit for obtaining weapons for crimes.

There were large numbers of multiple firearms sales. Sometimes he would sell as many as 10 guns at a time. There were numerous ATF citations, at least 15 times between 1997 and 2001. That is the record of the individual whose license was suspended, finally, by the ATF.

But the issue is, with respect to this individual, if we pass this legislation, will he be immunized after this record of negligence, recklessness, irrational responsibility? Most people would say that is the record. The exemption provided by paragraph (5)(A)(iii) says, in effect, the action would be preserved in which a manufacturer or seller of a qualified product violated a State or Federal statute applicable to the sale or marketing of the product and the violation was a proximate cause of harm for which relief is sought.

Two elements: You have to violate Federal and State statutes; and that violation was the proximate cause of the damage to the individual. According to the well-settled tort law principle, proximate cause requires that the defendant's conduct was a substantial factor in bringing about the harm suffered by the plaintiff.

Remember, two elements: State and Federal statutes violated, and that violation being a proximate cause.

Here is the difficulty with respect to the situation at the Bull's Eye Shooting Gallery. Despite the evidence we have that there were certain violations, many of them record keeping, it is going to be virtually impossible that the plaintiffs in the sniper case will be able to show that Bull's Eye violated any State or Federal statute with respect to the particular gun that was used by the snipers or that any such statutory violation was a proximate cause of the sniper attacks.

The evidence concerning the acquisition of the snipers' weapon supports Bull's Eye's claim that Lee Boyd Malvo shoplifted the gun. That is not in dispute. Indeed, after his arrest, I believe Malvo admitted he shoplifted the gun from Bull's Eye. Although the plaintiffs or the family of the plaintiffs claim that Bull's Eye's lax security practice permitted Malvo to get the weapon, that would not establish a violation of any Federal or State statute.

Again, a reading of this exception would say that you have to show, first, a Federal or State statute was violated, and the violation of that statute was the proximate cause was reading to injury. It is virtually impossible in this case.

What is happening in all of these exceptions that are built into the bill is, this is a trapdoor, if you will. We have a general prohibition against any type of suit against these individuals, these dealers, these manufacturers, or trade associations; and then we have exceptions. And they point out within the exceptions, artfully constructed by very good lawyers, provisions for an escape clause for the potential defendants. Here it is, the combination of proximate cause and violation of Federal-State statute.

Again, close analysis of the evidence--and I don't think any of this evidence is in dispute; Malvo admitted he shoplifted the weapon-- suggests strongly this exception would not apply in the case of the Bull's Eye shooter. These sniper victims will be without relief. That is not just my view but the view of attorneys who have looked at it very carefully.

Now, this is a very detailed legal analysis. But, again, we so often--all of us--appeal to rather common, homely--in a literal sense-- illustrations, something with which we are comfortable. I was struck when the Senator from Idaho talked about, Goodness gracious, if someone stole a car off a lot and drove into another car and caused damage, that you could not hold that dealer responsible.

Well, I can conceive of a situation. For example, if a dealer ordinarily left the keys in all of the cars on his lot, and they were cited 15 or 20 times before for doing that, and people knew that the dealer's cars were available, and young kids came in and jumped into a car and drove off at 60 miles an hour careening into another car and killing someone, I will tell you what I think. You have a pretty good suit against that automobile dealer for negligence, for abandoning the care that any other dealer in the country would adopt. They would not be protected from a suit as we propose to protect the gun industry.

Again, this legislation is very troubling to me. I do not think it provides adequate protections for people who have legitimate claims, the most graphic example of which is the sniper victims in the Washington, DC, area. But they are not alone. Danny Guzman was killed in Worcester, MA, as a result of what I think is gross negligence. A gun manufacturer employed, without background checks, ex-convicts, drug addicts, allowing them to steal weapons from the production inventory of the company, and to sell them to criminals in exchange for cash and drugs. This involved a multiple of weapons. They got the weapons out of the factory before they could stamp the serial numbers on them. Again, common sense would say: My goodness gracious, somebody has to be able to go in and require that employer to be conscious of their weapons, their security procedures.

I also understand--and again it is an understanding that is not shaped by a footnote at the moment--there are really no effective State or Federal laws about the security of weapons. I do not think there is any requirement specifying you have to have triple locks or double locks, et cetera. I think that is left to the reasonable business standards of an individual dealer. Again, if we do not have those rules and regulations or they are not effective, how do we then insist we cannot have a negligence action, as this legislation proposes?

For these reasons and many others I reiterate my opposition to the legislation.

I yield the floor.

Mr. President, I recognize there are different legal interpretations. I recognize also the Senator from Idaho has introduced an interpretation of the Congressional Research Service. I have one, too. Theirs is dated November 3, 2003. Mine is dated October 20, 2003. We made a request. They looked at the amendment, the perfecting amendment offered by Senators Craig, Daschle, and Baucus. In the context of that correcting amendment, they opined in October:

Again, you have specifically inquired as to whether the

Amendment would alter the bill to such a degree as to allow

the pursuit of a civil action against the gun dealer from

whom the weapon used in the D.C.-area sniper shootings was

stolen. A review of federal and Washington State law

indicates that there are no statutory requirements regarding

the storage and security of firearms by licensed firearm

dealers. Accordingly, it seems evident that there would be no

basis for the application for this exception in the case at

hand, irrespective of the presence of the ``knowing and

willfully'' requirement, given that there appears to be no

violation of a relevant underlying federal or state statute.

That is an October CRS.

Obviously a second opinion was sought. That is the nature of legal opinions many times. This opinion was premised on certain facts that are not yet obvious and perhaps never to be obvious.

In fact, in reference in the report Senator Craig referred to:

Thus, in the event that it is established that Bull's Eye

was aware that the firearm was missing from its inventory

more than 48 hours prior to November 5, 2002, the Amendment

would appear to lend further support to the application of

the exception to immunity . . . of the bill.

Essentially what was done in this latest CRS was to say: We will assume hypothetically that in fact they violated the Federal statute, i.e., the requirement to report a weapon within 48 hours of its disappearance. Well, if you assume a violation of the statute, you have gotten way over the curve, because once again, Federal statute or State statute has to be violated, proximate cause.

The problem is this assumption does not have much of an evidentiary base. The footnote to the report Senator Craig referred to suggests:

These examples are pertinent to the extent--

examples of potential violations--

they could be implicated in any hypothetical sale or transfer

to the D.C.-area sniper suspects. It should be noted,

however, that it does not appear that any evidence has been

produced of actual violations of these provisions by Bull's

Eye in the case at hand.

The answer to qualifying this exemption is not to assume a violation of Federal law. There has to be some evidence. But there does not appear to be any evidence of violations of Federal statutes. There are no Federal/State statutes with respect to security of firearms, the physical security. The slender reed--no pun intended--they might hang it upon is they somehow knew the weapon was missing a long time before November 5, 2002, and they failed to report it. No evidence from Malvo suggests that. I don't know if there is, frankly. The stories we have all heard from the operator were he didn't know the weapons were missing until the day they showed up, the ATF showed up and said the weapons were missing. The practical effect of this is a judge might have the opportunity for a few minutes to look at this record, but where is the evidence?

The practical effect of this legislation is these claims will be barred. That would be a great misfortune, not only for the families involved but a misfortune in terms of setting up a very bad precedent in terms of undermining the common law sense of responsibility for your actions. Senator Craig is a very articulate advocate for his position and has referred to that several times; this is just about maintaining centuries of legal precedent about individual responsibility. I disagree. I think it is about overturning centuries of legal precedent, the precedent that an individual is responsible

for their actions, that an individual, such as the licensee at Bull's Eye, is responsible for not securing the weapons, is responsible for not knowing he has lost weapons--according to his view at this point-- for days and weeks and weeks. If we immunize the individual, we will undercut that basic principle of individual responsibility.

One of the things I find amazing in this whole discussion of the security of weapons is, I commanded a paratrooper company at Fort Bragg. I worried every day about the weapons in my outfit. We had double locks on the doors, locks on the racks, individual accounting every day of weapons. One of the things that as a young airborne captain you are worried about was showing up one day and discovering a weapon or part of a weapon or even equipment associated with a weapon was missing. That was a big deal. That is a standard of the United States Army.

We are telling people who maintain large arsenals in commercial venues that the standard for them is nothing. Miss a few weapons, don't even pay attention because, frankly, knowledge will hurt you.

This goes also to the principle of why we have laws of negligence, tort laws. It is not just for individual compensation. That is an important part of giving an individual the right to make themselves whole after they have been harmed. It is something else. It is about having a system of standards that are self-enforcing, not because there are ATF agents walking around, but because in addition to that, an owner of one of these stores will simply say: You know, I better make sure all these weapons are accounted for at least every week. I better make sure they are secure. I better make sure if people walk in who might not be eligible to purchase a weapon I at least ask them what they are doing. None of that appears to be done.

In response to the specific question of the application of the exemption, I think the proponents have tried all they can to dress it up. It just doesn't work. There is a huge trapdoor when you put together violation of State or Federal statute and that violation causes proximate cause.

Someone could go in and show they didn't file the records properly. That is a violation of Federal and State regulation. They could show perhaps they were lax in some other capacity. Then you have to make the further showing that violation was directly connected. So literally in this case you are going to have to show that particular weapon that found its way into Malvo's hands was the subject or involved with a specific violation of Federal/State law. That is why this CRS report has to assume that particular weapon, of all the 248, was noted as missing more than 48 hours before November 5, 2002. That is an extra burden of proof. That is, again, why I don't think this will work for the victims of these crimes.

I yield the floor.

Mr. President, my colleague from Idaho has invited me to look at the theory of negligent entrustment and negligence per se. I will try to do that.

Again, this is not an attempt to dispose of a case before a court. But we all have an obligation to understand what we are voting on, what these provisions will do based on the plain language of the provisions and based upon the facts as we know them in certain cases. That is why I think this is a positive exercise. It is insufficient to say that we pass laws, but we do not have to know what they mean because some judge will figure out what they mean. No, no, I think we have to know what they mean because that should drive our decision about whether this legislation will pass or fail.

Let me turn for a moment to these two theories of negligent entrustment/negligence per se.

Negligent entrustment is generally understood as ``the supplying of a qualified product by a seller for use by another person when the seller knows, or should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.''

Again, the seller has to know, or is likely to know, that the person they transfer the weapon to or supplied it to is likely to harm himself or harm someone else.

The problem we have with respect to the sniper case is that the evidence the snipers' weapon was shoplifted from Bull's Eye would appear to preclude the plaintiffs from making the requisite showing under the statute that the gunshop knew or should have known that the recipient of the gun, Malvo, was likely to use the product in a criminal or otherwise unreasonably dangerous manner.

Malvo indicated he shoplifted the weapon. The owner said he must have taken it. He didn't know it was missing until ATF showed up.

The theory of negligent entrustment is fancy-sounding terminology, but it is another trapdoor from which the exception falls out.

Negligence per se, under most--I am a lawyer, but I am hesitant to say I am a lawyer who is familiar in every detail with Federal practice, but my assumption is since we are talking about Federal and State laws, this negligence per se is a State common law concept that would apply to the laws of Washington State because that is where the Bull's Eye shooting gallery is located.

In any event, with respect to negligence per se, it would not preserve the sniper case because even where that doctrine is recognized, it requires a violation of statute that is a proximate cause of the plaintiff's injury. Once again, you have to show not only the violation but that violation of that particular law was a proximate cause of injury. As discussed above--again I am borrowing from one of these legal analyses--that would be very difficult to show. In fact, also I think there is another problem in Washington State about the doctrine of negligence per se.

The negligence per se doctrine has been abrogated by statute in Washington State. It doesn't apply.

Once again, I think we have an exception that does not provide relief for these individuals.

I conclude by joining my colleague in hoping we have some resolution soon on the procedural process for this evening and tomorrow. I yield the floor.

Mr. President, America has a major flaw in its defenses against bioterrorism. Hearings I chaired in the Government Affairs Committee on bioterrorism demonstrated that America has not made a national commitment to research and development of treatments and cures for those who might be exposed to or infected by a biological agent, chemical toxin, or radiological material. Correcting this critical gap is the purpose of legislation we are introducing today.

This legislation is a refined and upgraded version of legislation I introduced last year, S. 1764, December 4, 2001, and S. 3148, October 17, 2002, and I am delighted that Senator Hatch has joined me as the lead cosponsor of the new bill.

Obviously, our first priority must be to attempt to prevent the use of these agents and toxins by terrorists, quickly assess when an attack has occurred, take appropriate public health steps to contain the exposure, stop the spread of contagion, and then detoxify the site. These are all critical functions, but in the end we must recognize that some individuals may be exposed or infected. Then the critical issue is whether we can treat and cure them and prevent death and disability.

In short, we need a diversified portfolio of medicines. In cases where we have ample advance warning of an attack and specific information about the agent, toxin, or material, we may be able to vaccinate the vulnerable population in advance. In other cases, even if we have a vaccine, we might well prefer to use medicines that would quickly stop the progression of the disease or the toxic effects. We also need a powerful capacity quickly to develop new countermeasures where we face a new agent, toxin, or material.

Unfortunately, we are woefully short of vaccines and medicines to treat individuals who are exposed or infected. We have antibiotics that seem to work for most of those infected in the current anthrax attack, but these have not prevented five deaths. We have no effective vaccines or medicines for most other biological agents and chemical toxins we might confront. We have very limited capacity to respond medically to a radiological attack. In some cases we have vaccines to prevent, but no medicines to treat, an agent. We have limited capacity to speed the development of vaccines and medicines to prevent or treat novel agents and toxins not currently known to us.

We have provided, and should continue to provide, direct Federal funding for research and development of new

medicines, however, this funding is unlikely to be sufficient. Even with ample Federal funding, many private companies will be reluctant to enter into agreements with government agencies to conduct this research. Other companies would be willing to conduct the research with their own capital and at their own risk but are not able to secure the funding from investors.

The legislation we introduce today would provide incentives for private biotechnology companies to form capital to develop countermeasures--medicines--to prevent, treat and cure victims of bioterror, chemical and radiological attacks. This will enable this industry to become a vital part of the national defense infrastructure and do so for business reasons that make sense for their investors on the bottom line.

Enactment of these incentives is necessary because most biotech companies have no approved products or revenue from product sales to fund research. They rely on investors and equity capital markets to fund the research. They must necessarily focus on research that will lead to product sales and revenue and, thus, to an end to their dependence on investor capital. There is no established or predictable market for countermeasures. These concerns are shared by pharmaceutical firms. Investors are justifiably reluctant to fund this research, which will present challenges similar in complexity to AIDS. Investors need assurances that research on countermeasures has the potential to provide a rate of return commensurate with the risk, complexity and cost of the research, a rate of return comparable to that which may arise from a treatment for cancer, MS, Cystic Fibrosis and other major diseases.

It is in our national interest to enlist these companies in the development of countermeasures as biotech companies tend to be innovative and nimble and intently focused on the intractable diseases for which no effective medical treatments are available.

The incentives we have proposed are innovative and some may be controversial. We invite everyone who has an interest and a stake in this research to enter into a dialogue about the issue and about the nature and terms of the appropriate incentives. We have attempted to anticipate the many complicated technical and policy issues that this legislation raises. The key focus of our debate should be how, not whether, we address this critical gap in our public health infrastructure and the role that the private sector should play. Millions of Americans will be at risk if we fail to enact legislation to meet this need.

On November 26 of 2001, the Centers for Disease Control issued its interim working draft plan for responding to an outbreak of smallpox. The plan does not call for mass vaccination in advance of a smallpox outbreak because the risk of side effects from the vaccine outweighs the risks of someone actually being exposed to the smallpox virus. At the heart of the plan is a strategy sometimes called ``search and containment.''

This strategy involves identifying infected individual or individuals with confirmed smallpox, identifying and locating those people who come in contact with that person, and vaccinating those people in outward rings of contact. The goal is to produce a buffer of immune individuals and was shown to prevent smallpox and to ultimately eradicate the outbreak. Priorities would be set on who is vaccinated, perhaps focusing on the outward rings before those at the center of the outbreak. The plan assumes that the smallpox vaccination is effective for persons who have been exposed to the disease as long as the disease has not taken hold.

In practice it may be necessary to set a wide perimeter for these areas because smallpox is highly contagious before it might be diagnosed. There may be many areas subject to search and containment because people in our society travel frequently and widely. Terrorists might trigger attacks in a wide range of locations to multiply the confusion and panic. The most common form of smallpox has a 30 percent mortality rate, but terrorists might be able to obtain supplies of ``flat-type'' smallpox with a mortality rate of 96 percent and hemorrhagic-type smallpox, which is almost always fatal. For these reasons, the CDC plan accepts the possibility that whole cities or other geographic areas could be cordoned off, letting no one in or out--a quarantine enforced by police or troops.

The plan focuses on enforcement authority through police or National Guard, isolation and quarantine, mandatory medical examinations, and rationing of medicines. It includes a discussion of ``population-wide quarantine measures which restrict activities or limit movement of individuals [including] suspension of large public gatherings, closing of public places, restriction on travel [air, rail, water, motor vehicle, and pedestrian], and/or `cordon sanitaire' [literally a `sanitary cord' or line around a quarantined area guarded to prevent spread of disease by restricting passage into or out of the area].'' The CDC recommends that states update their laws to provide authority for ``enforcing quarantine measures'' and it recommends that States in ``pre-event planning'' identify ``personnel who can enforce these isolation and quarantine measures, if necessary.'' Guide C--Isolation and Quarantine, page 17.

On October 23, 2001, the CDC published a ``Model State Emergency Health Powers Act.'' It was prepared by the Center for Law and the Public's Health at Georgetown and Johns Hopkins Universities, in conjunction with the National Governors Association, National Conference of State Legislatures, Association of State and Territorial Health Officials, National Association of City and County Health Officers, and National Association of Attorneys General. A copy of the model law is printed at www.publichealthlaw.net. The law would provide powers to enforce the ``compulsory physical separation (including the restriction of movement or confinement) of individuals and/or groups believed to have been exposed to or known to have been infected with a contagious disease from individuals who are believed not to have been exposed or infected, in order to prevent or limit the transmission of the disease to others.'' Federal law on this subject is very strong and the Administration can always rely on the President's Constitution authority as Commander in Chief.

Let us try to imagine, however, what it would be like if a quarantine is imposed. Let us assume that there is not enough smallpox vaccine available for use in a large outbreak, that the priority is to vaccinate those in the outward rings of the containment area first, that the available vaccines cannot be quickly deployed inside the quarantined area, that it is not possible to quickly trace and identify all of the individuals who might have been exposed, and/or that public health workers themselves might be infected. We know that there is no medicine to treat those who do become infected. We know the mortality rates. It is not hard to imagine how much force might be necessary to enforce the quarantine. It would be quite unacceptable to permit individuals to leave the quarantined area no matter how much panic had taken hold.

Think about how different this scenario would be if we had medicines that could effectively treat and cure those who become infected by smallpox. We still might implement the CDC plan but a major element of the strategy would be to persuade people to visit their local clinic or hospital to be dispenses their supply of medicine. We could trust that there would be a very high degree of voluntary compliance. This would give us more time, give us options if the containment is not successful, give us options to treat those in the containment area who are infected, and enable us to quell the public panic.

Because we have no medicine to treat those infected by smallpox, we have to be prepared to implement a plan like the one CDC has proposed. Theirs is the only option because our options are so limited. We need to expand our range of options.

We should not be lulled by the apparent successes with Cipro and the strains of anthrax we have seen in the recent attacks. We have not been able to prevent death in some of the patients with late-stage inhalation anthrax and Robert Stevens, Thomas Morris Jr., Joseph Curseen, Kathy Nguyen, and Ottilie Lundgren died. This legislation is named in honor of

them. What we needed for them, and did not have, is a drug or vaccine that would treat late stage inhalation anthrax.

As I have said, we need an effective treatment for those who become infected with smallpox. We have a vaccine that effectively prevents smallpox infection, and administering this vaccine within four days of first exposure has been shown to offer some protections against acquiring infection and significant protection against a fatal outcome. The problem is that administering the vaccine in this time frame to all those who might have been exposed may be exceedingly difficult. And once infection has occurred, we have no effective treatment options.

In the last century 500 million people have died of smallpox--more than have from any other infectious diseases--as compared to 320 million deaths in all the wars of the twentieth century. Smallpox was one of the diseases that nearly wiped out the entire Native American population in this hemisphere. The last naturally acquired case of smallpox occurred in Somalia in 1977 and the last case from laboratory exposure was in 1978.

Smallpox is a nasty pathogen, carried in microscopic airborne droplets inhaled by its victims. The first signs are headache, fever, nausea and backache, sometimes convulsions and delirium. Soon, the skin turns scarlet. When the fever lets up, the telltale rash appears--flat red spots that turn into pimples, then big yellow pustules, then scabs. Smallpox also affects the throat and eyes, and inflames the heart, lungs, liver, intestines and other internal organs. Death often came from internal bleeding, or from the organs simply being overwhelmed by the virus. Survivors were left covered with pockmarks--if they were lucky. The unlucky ones were left blind, their eyes permanently clouded over. Nearly one in four victims died. The infection rate is estimated to be 25-40 percent for those who are unvaccinated and a single case can cause 20 or more additional infections.

During the 16th Century, 3.5 million Aztecs--more than half the population died of smallpox during a two-year span after the Spanish army brought the disease to Mexico. Two centuries later, the virus ravaged George Washington's troops at Valley Forge. And it cut a deadly path through the Crow, Dakota, Sioux, Blackfoot, Apache, Comanche and other American Indian tribes, helping to clear the way for white settlers to lay claim to the western plains. The epidemics began to subside with one of medicine's most famous discoveries: the finding by British physician Edward Jenner in 1796 that English milkmaids who were exposed to cowpox, a mild second cousin to smallpox that afflicts cattle, seemed to be protected against the more deadly disease. Jenner's work led to the development of the first vaccine in Western medicine. While later vaccines used either a killed or inactivated form of the virus they were intended to combat, the smallpox vaccine worked in a different way. It relied on a separate, albeit related virus: first cowpox and the vaccinia, a virus of mysterious origins that is believed to be a cowpox derivative. The last American was vaccinated back in the 1970s and half of the US population has never been vaccinated. It is not known how long these vaccines provide protection, but it is estimated that the term is 3 to 5 years.

In an elaborate smallpox biowarfare scenario enacted in February 1999 by the Johns Hopkins Center for Civilian Biodefense Studies, it was projected that within two months 15,000 people had died, epidemics were out of control in fourteen countries, all supplies of smallpox vaccine were depleted, the global economy was on the verge of collapse, and military control and quarantines were in place. Within twelve months it was projected that eighty million people worldwide had died.

A single case of smallpox today would become a global public health threat and it has been estimated that a single smallpox bioterror attack on a single American city would necessitate the vaccination of 30 to 40 million people.

The US government is now in the process of purchasing substantial stocks of the smallpox vaccine. We then face a very difficult decision on deploying the vaccine. We know that some individuals will have an adverse reaction to this vaccine. No one in the United States has been vaccinated against smallpox in twenty-five years. Those that were vaccinated back then may not be protected against the disease today. If we had an effective treatment for those who might become infected by smallpox, we would face much less pressure regarding deploying the vaccine. If we face a smallpox epidemic from a bioterrorism attack, we will have no Cipro to reassure the public and we will be facing a highly contagious disease and epidemic. To be blunt, it will make the current anthrax attack look benign by comparison.

Smallpox is not the only threat. We have seen other epidemics in this century. The 1918 influenza epidemic provides a sobering admonition about the need for research to develop medicines. In two years, a fifth of the world's population was infected. In the United States the 1918 epidemic killed more than 650,000 people in a short period of time and left 20 million seriously ill, one fourth of the entire population. The average lifespan in the US was depressed by ten years. In just one year, the epidemic killed 21 million human beings worldwide--well over twice the number of combat deaths in the whole of World War I. The flu was exceptionally virulent to begin with and it then underwent several sudden and dramatic mutations in its structure. Such mutations can turn flu into a killer because its victims' immune systems have no antibodies to fight off the altered virus. Fatal pneumonia can rapidly develop.

Another deadly toxin, ricin toxin, was of interest to the al-Qaeda terrorist network. At an al-Qaeda safehouse in Saraq Panza, Kabul reporters found instructions for making ricin. The instructions make chilling reading. ``A certain amount, equal to a strong dose, will be able to kill an adult, and a dose equal to seven seeds will kill a child,'' one page reads. Another page says: ``Gloves and face mask are essential for the preparation of ricin. Period of death varies from 3 to 5 days minimum, 4 to 14 days maximum.'' The instructions listed the symptoms of ricin as vomiting, stomach cramps, extreme thirst, bloody diarrhea, throat irritation, respiratory collapse and death.

No specific treatment or vaccine for ricin toxin exists. Ricin is produced easily and inexpensively, highly toxic, and stable in aerosolized form. A large amount of ricin is necessary to infect whole populations--the amount of ricin necessary to cover a 100-km\2\ area and cause 50 percent lethality, assuming aerosol toxicity of 3 mcg/kg and optimum dispersal conditions, is approximately 4 metric tons, whereas only 1 kg of Bacillus anthracis is required. But it can be used to terrorize a large population with great effect because it is so lethal.

Use of ricin as a terror weapon is not theoretical. In 1991 in Minnesota, 4 members of the Patriots Council, an extremist group that held antigovernment and antitax ideals and advocated the overthrow of the US government, were arrested for plotting to kill a US marshal with ricin. The ricin was produced in a home laboratory. They planned to mix the ricin with the solvent dimethyl sulfoxide, DMSO, and then smear it on the door handles of the marshal's vehicle. The plan was discovered, and the 4 men were convicted. In 1995, a man entered Canada from Alaska on his way to North Carolina. Canadian custom officials stopped the man and found him in possession of several guns, $98,000, and a container of white powder, which was identified as ricin. In 1997, a man shot his stepson in the face. Investigators discovered a makeshift laboratory in his basement and found agents such as ricin and nicotine sulfate. And, ricin was used by the Bulgarian secret police when they killed Georgi Markov by stabbing him with a poison umbrella as he crossed Waterloo Bridge in 1978.

Going beyond smallpox, influenza, and ricin, we do not have an effective vaccine or treatment for dozens of other deadly and disabling agents and toxins. Here is a partial list of some of the other biological agents and chemical toxins for which we have no effective treatments: clostridium botulinum toxin, botulism, francisella tularensis, tularaemia, Ebola hemorrhagic fever, Marbug hemorrhagic fever, Lassa fever, Julin, Argentine

hemorrhagic fever, Coxiella burnetti, Q fever, brucella species, brucellosis, burkholderia mallei, glanders, Venezuelan encephalomyelitis, eastern and western equine encephalomyelitis, epsilon toxin of clostridium perfringens, staphylococcus entretoxin B, salmonella species, shigella dysenteriae, escherichia coli O157:H7, vibrio cholerae, cryptosporidium parvum, nipah virus, hantaviruses, tickborne hemorrhagic fever viruses, tickborne encephalitis virus, yellow fever, nerve agents, tabun, sarin, soman, GF, and VX, blood agents, hydrogen cyanide and cyanogens chloride, blister agents, lewisite, nitrogenadn sulfur mustards, and phosgene oxime, heavy metals, arsenic, lead, and mercury, and volatile toxins, benzene, chloroform, trihalomethanes, pulmonary agents, Phosgene, chlorine, vinly chloride, and incapacitating agents, BZ.

The naturally occurring forms of these agents and toxins are enough to cause concern, but we also know that during the 1980s and 1990s the Soviet Union conducted bioweapons research at forty-seven laboratories and testing sites, employed nearly fifty thousand scientists in the work, and that they developed genetically modified versions of some of these agents and toxins. The goal was to develop an agent or toxin that was particularly virulent or not vulnerable to available antibiotics.

The United States has publicly stated that five countries are developing biological weapons in violation of the Biological Weapons convention, North Korea, Iraq, Iran, Syria, and Libya, and stated that additional countries not yet named, possibly including Russia, China, Israel, Sudan and Egypt, are also doing so as well.

What is so insidious about biological weapons is that in many cases the symptoms resulting from a biological weapons attack would likely take time to develop, so an act of bioterrorism may go undetected for days or weeks. Affected individuals would seek medical attention not from special emergency response teams but in a variety of civilian settings at scattered locations. This means we will need medicines that can treat a late stage of the disease, long after the infection has taken hold.

We must recognize that the distinctive characteristic of biological weapons is that they are living micro-organisms and are thus the only weapons that can continue to proliferate without further assistance once released in a suitable environment.

The lethality of these agents and toxins, and the panic they can cause, is quite frightening. The capacity for terror is nearly beyond comprehension. We do not believe it is necessary to describe the facts here. Our point is simple: we need more than military intelligence, surveillance, and public health capacity. We also need effective medicines. We also need more powerful research tools that will enable us to quickly develop treatments for agents and toxins not on this or any other list.

We need to do whatever it takes to be able to reassure the American people that hospitals and doctors have powerful medicines to treat them if they are exposed to biological agents or toxins, that we can contain an outbreak of an infectious agent, and that there is little to fear. To achieve this objective, we need to rely on the entrepreneurship of the biotechnology industry.

In the summer of 200_, the Defense Science Board completed a study of the countermeasures we have available. It focused on countermeasures-- diagnostics, vaccines, and drugs--for the top nineteen bioterror threats, and estimated what we have available today, what we might have available in five years and what we might have available in ten years.

If one assumes that we need diagnostics, vaccines, and drugs for all nineteen of these bioterror threats, we need fifty-seven countermeasures (19 times 3). It found that today we have only one of these fifty-seven countermeasures, a drug for Chlamydia psittaci. It found that in five years we might have twenty of the fifty-seven countermeasures and in ten years we might have thirty-four of the fifty-seven. These are optimistic assessments.

It set reasonable criteria for what constitutes an effective countermeasure. For diagnostics, it said that we are unprepared if our diagnostic takes more than 24 hours, requires confirmatory testing and the patient must be symptomatic. If said we are somewhat prepared if the diagnostic takes 12 to 24 hours, requires confirmatory testing, and works in some cases where the patient is asymptomatic. It said we are only truly prepared if the test takes less than 12 hours, requires no confirmatory testing, and detects the disease when the patient is asymptomatic. It found that we have no diagnostics today that meet the top standard and might have diagnostics for seventeen of the nineteen terror threats in five years and eighteen of the nineteen in ten years.

For vaccines it found that we are unprepared if we have no vaccine. We are partially prepared if we have a vaccine but have production or use limitations. And we are fully prepared if we have a vaccine generally available. It found that we have no vaccines today that meet the top standard and might have vaccines for two of the terror threats in five years and nine in ten years.

For therapeutics it found that we are unprepared if we have no approved treatment. We are partially prepared if we have a treatment available but have production or use limitations. And we are fully prepared if we have a treatment available. It found that we have one treatment that meets the top standard and might have treatments for the same agent in five years and seven treatments in ten years.

Obviously, we are woefully unprepared. The Defense Science Board only focused on the top nineteen threats, and there are many others for which we are also unprepared.

My proposal would supplement direct Federal Government funding of research with incentives that make it possible for private companies to form the capital to conduct this research on their own initiative, utilizing their own capital, and at their own risk--all for good business reasons going to their bottom line.

The U.S. biotechnology industry, approximately 1,300 companies, spent $13.8 billion on research last year. Only 350 of these companies have managed to go public. The industry employs 124,000, Ernest & Young data, people. The top five companies spent an average of $89,000 per employee on research, making it the most research-intensive industry in the world. The industry has 350 products in human clinical trials targeting more than 200 diseases. Losses for the industry were $5.8 billion in 2001, $5.6 billion in 2000, $4.4 billion in 1999, $4.1 billion in 1998, $4.5 billion in 1997, $4.6 billion in 1996, and similar amounts before that. In 2000 fully 38 percent of the public biotech companies had less than 2 years of funding for their research. Only one quarter of the biotech companies in the United States are publicly traded and they tend to be the best funded.

There is a broad range of research that could be undertaken under this legislation. Vaccines could be developed to prevent infection or treat an infection from a bioterror attack. Broad-spectrum antibiotics are needed. Also, promising research has been undertaken on antitoxins that could neutralize the toxins that are released, for example, by anthrax. With anthrax it is the toxins, not the bacteria itself, that cause death. An antitoxin could act like a decoy, attaching itself to sites on cells where active anthrax toxin binds and then combining with normal active forms of the toxin and inactivating them. An antitoxin could block the production of the toxin.

We can rely on the innovativeness of the biotech industry, working in collaboration with academic medical centers, to explore a broad range of innovative approaches. This mobilizes the entire biotechnology industry as a vital component of our national defense against bioterror weapons.

The legislation takes a comprehensive approach to the challenges the biotechnology industry faces in forming capital to conduct research on countermeasures. It includes capital formation tax incentives, guaranteed purchase funds, patent protections, and liability protections. We believe we will have to include each of these types of incentives to ensure that we mobilize the biotechnology industry for this urgent national defense research.

Some of the tax incentives in this legislation, and both of the two patent incentives I have proposed, may be controversial. In our view, we can debate tax or patent policy as long as you

want, but let's not lose track of the issue here--development of countermeasures to treat people infected or exposed to lethal and disabling bioterror weapons.

We know that incentives can spur research. In 1983 we enacted the Orphan Drug Act to provide incentives for companies to develop treatments for rare diseases with small potential markets deemed to be unprofitable by the industry. In the decade before this legislation was enacted, fewer than 10 drugs for orphan diseases were developed and these were mostly chance discoveries. Since the Act became law, 218 orphan drugs have been approved and 800 more are in the pipeline. The Act provides 7 years of market exclusivity and a tax credit covering some research costs. The effectiveness of the incentives we have enacted for orphan disease research show us how much we can accomplish when we set a national priority for certain types of research.

The incentives we have proposed differ from those set by the Orphan Drug Act. We need to maintain the effectiveness of the Orphan Drug Act and not undermine it by adding many other disease research targets. In addition, the tax credits for research for orphan drug research have no value for most biotechnology companies because few of them have tax liability with respect to which to claim the credit. This explains why we have not proposed to utilize tax credits to spur countermeasures research. It is also clear that the market for countermeasures is even more speculative than the market for orphan drugs and we need to enact a broader and deeper package of incentives.

The government determines which research is covered by the legislation and which companies qualify for the incentives for this research. No company is entitled to utilize the incentives until the government certifies its eligibility.

These decisions are vested in the Secretary, Department of Homeland Security. In S. 1764, the decisions were vested in the White House Office of Homeland Security, but it is now likely that a Department will be created. I have strongly endorsed that concept and led the effort to enact the legislation forming the new Department.

The legislation confers on the Secretary, in consultation with the Secretary of Defense and Secretary of Health and Human Services, authority to set the list of agents and toxins with respect to which the legislation and incentives applies.

The Secretary determines which agents and toxins present a threat and whether the countermeasures are ``more likely'' to be developed with the application of the incentives in the legislation. The Secretary may determine that an agent or toxin does not present a threat or that countermeasures are not more likely to be developed with the incentives. It may determine that the government itself should fund the research and development effort and not rely on private companies. The Department is required to consider the status of existing research, the availability of non-countermeasure markets for the research, and the most effective strategy for ensuring that the research goes forward. The legislation includes an illustrative, non-binding list of fifty- four agents and toxins that might be included on the Secretary's list. The decisions of the Secretary are final and are not subject to judicial review.

The Department then must provide information to potential manufacturers of these countermeasures in sufficient detail to permit them to conduct the research and determine when they have developed the needed countermeasure. It may exempt from publication such information as it deems to be sensitive.

The Department also must specify the government market that will be available when a countermeasure is successfully developed, including the minimum number of dosages that will be purchased, the minimum price per dose, and the timing and number of years projected for such purchases. Authority is provided for the Department to make advance, partial, progress, milestone, or other payments to the manufacturers.

The Department is responsible for determining when a manufacturer has, in fact, successfully developed the needed countermeasure. It must provide information in sufficient detail so that manufacturers and the government may determine when the manufacturer has successfully developed the countermeasure the government needs. If and when the manufacturer has successfully developed the countermeasure, it becomes entitled to the procurement, patent, and liability incentives in the legislation.

Once the list of agents and toxins is set, companies may register with the Department their intent to undertake research and development of a countermeasure to prevent or treat the agent or toxin. This registration is required only for companies that seek to be eligible for the tax, purchase, patent, and liability provisions of the legislation. The registration requirement gives the Department vital information about the research effort and the personnel involved with the research, authorizes inspections and other review of the research effort, and the filing of reports by the company.

The Secretary then may certify that the company is eligible for the tax, purchase, patent, and liability incentives in the legislation. It bases this certification on the qualifications of the company to conduct the countermeasure research. Eligibility for the purchase fund, patent and liability incentives is contingent on successful development of a countermeasure according to the standards set in the legislation, as determined by the Secretary.

The legislation contemplates that a company might well register and seek certification with respect to more than one research project and become eligible for the tax, purchase, patent, and liability incentives for each. There is no policy rationale for limiting a company to one registration and one certification.

This process is similar to the current registration process for research on orphan, rare, diseases. In that case, companies that are certified by the FDA become eligible for both tax and market exclusivity incentives. This process gives the government complete control on the number of registrations and certifications. This gives the government control over the cost and impact of the legislation on private sector research.

The registration and certification process applies to research to develop diagnostics and research tools, not just drugs and vaccines.

Diagnostics are vital because healthcare professionals need to know which agent or toxin has been used in an attack. This enables them to determine which treatment strategy is likely to be most effective. We need quickly to determine which individuals have been exposed or infected, and to separate them from the ``worried well.'' It is likely in an attack that large numbers of individuals who have not been exposed or infected will flood into healthcare facilities seeking treatment. We need to be able to focus on those individuals who are at risk and reassure those who are not at risk.

In terms of research tools, it is possible that we will face biological agents and chemical agents we have never seen before. As I've mentioned, the Soviet Union bioterror research focused in part on use of genetic modification technology to develop agents and toxins that currently-available antibiotics can not treat. Australian researchers accidentally created a modified mousepox virus, which does not affect humans, but it was 100 percent lethal to the mice. Their research focused on trying to make a mouse contraceptive vaccine for pest control. The surprise was that it totally suppressed the ``cell- mediated response''--the arm of the immune system that combats viral infection. To make matters worse, the engineered virus also appears unnaturally resistant to attempts to vaccinate the mice. A vaccine that would normally protect mouse strains that are susceptible to the virus only worked in half the mice exposed to the killer version. If bioterrorists created a human version of the virus, vaccination programs would be of limited use. This highlights the drawback of working on vaccines against bioweapons rather than treatments.

With the advances in gene sequencing--genomics--we will know the exact genetic structure of a biological agent. This information in the wrong hands could easily be manipulated to design and possibly grow a lethal new bacterial and viral strains not found in nature. A scientist might be able to mix

and match traits from different microorganisms--called recombinant technology--to take a gene that makes a deadly toxin from one strain of bacteria and introduce it into other bacterial strains. Dangerous pathogens or infectious agents could be made more deadly, and relatively benign agents could be designed as major public health problems. Bacteria that cause diseases such as anthrax could be altered in such a way that would make current vaccines or antibiotics against them ineffective. It is even possible that a scientist could develop an organism that develops resistance to antibiotics at an accelerated rate.

This means we need to develop technology--research tools--that will enable us to quickly develop a tailor-made, specific countermeasure to a previously unknown organism or agent. These research tools will enable us to develop a tailor-made vaccine or drug to deploy as a countermeasure against a new threat. The legislation authorizes companies to register and receive a certification making them eligible for the incentives in the bill for this vital research.

The legislation includes four tax incentives to enable biotechnology and pharmaceutical companies to form capital to fund research and development of countermeasures. Companies must irrevocably elect only one of the incentives with regard to the countermeasure research.

Four different tax incentives are available so that companies have flexibility in forming capital to fund the research. Each of the options comes with advantages and limitations that may make it appropriate or inappropriate for a given company or research project. We do not now know fully how investors and capital markets will respond to the different options, but we assume that companies will consult with the investor community about which option will work best for a given research project. Capital markets are diverse and investors have different needs and expectations. Over time these markets and investor expectations evolve. If companies register for more than one research project, they may well utilize different tax incentives for the different projects.

Companies are permitted to undertake a series of discrete and separate research projects and make this election with respect to each project. They may only utilize one of the options with respect to each of these research projects.

The first option is for the company to establish an R&D Limited Partnership to conduct the research. The partnership passes through all business deductions and credits to the partners. For example, under this arrangement, the research and development tax credits and depreciation deductions for the company may be passed by the corporation through to its partners to be used to offset their individual tax liability. These deductions and credits are then lost to the corporation. This alternative is available only to companies with less than $750,000,000 in paid-in capital.

The second option is for the company to issue a special class of stock for the entity to conduct the research. The investors would be entitled to a zero capital gains tax rate on any gains realized on the stock held for at least three years. This is a modification of the current Section 1202 where only 50 percent of the gains are not taxed. This provision is adapted from legislation I have introduced, S. 1134, and introduced in the House by Representatives Dunn and Matsui, H.R. 2383. A similar bill has been introduced by Senator Collins, S. 455. This option also is available to small companies.

The third and fourth options grant special tax credits to the company for the research. The first credit is for research conducted by the company and the other for research conducted at a teaching hospital or similar institution. Tax credits are available to any company, but they only are useful to a company with tax liability against which to claim the credit. Very few biotechnology companies receive revenue from product sales and therefore have no tax liability. Companies with revenue may be able to fund the research from retained earnings rather than secure funding from investors.

A company that elects to utilize one of these incentives is not eligible to receive benefits of the Orphan Drug Tax Credit. Companies that can utilize tax credits--companies with taxable income and tax liability--might find the Orphan Credit more valuable. The legislation includes an amendment to the Orphan Credit to correct a defect in the current credit. The amendment has been introduced in the Senate as S. 1341 by Senators Hatch, Kennedy and Jeffords. The amendment simply states that the Credit is available starting the day an application for orphan drug status is filed, not the date the FDA finally acts on it. The amendment was one of many initiatives championed by Lisa J. Raines, who died on September 11 in the plane that hit the Pentagon, and the amendment is named in her honor. As we go forward in the legislative process, I hope we will have an opportunity to speak in more detail about the service of Ms. Raines on behalf of medical research, particularly on rare diseases.

The guaranteed purchase fund, and the patent protections, and liability provisions described below provide an additional incentive for investors and companies to fund the research.

The market for countermeasures is speculative and small. This means that if a company successfully develops a countermeasure, it may not receive sufficient revenue on sales to justify the risk and expense of the research. This is why the legislation establishes a countermeasures purchase fund that will define the market for the products with some specificity before the research begins.

The Secretary will set standards for which countermeasures it will purchase and define the financial terms of the purchase commitment. This will enable companies to evaluate the market potential of its research before it launches into the project. The specifications will need to be set with sufficient specificity so that the company--and its investors--can evaluate the market and with enough flexibility so that it does not inhibit the innovativeness of the researchers. This approach is akin to setting a performance standard for a new military aircraft.

The legislation provides that the Secretary will determine whether the government will purchase more than one product per class. It might make sense--as an incentive--for the government to commit to purchasing more than one product so that many more than one company conducts the research. A winner-take-all system may well intimidate some companies and we may end up without a countermeasure to be purchased. It is also possible that we will find that we need more than one countermeasure because different products are useful for different patients. We may also find that the first product developed is not the most effective.

The purchase commitment for countermeasures is available to any company irrespective of its paid-in capital.

Intellectual property protection of research is essential to biotechnology and pharmaceutical companies for one simple reason: they need to know that if they successfully develop a medical product another company cannot expropriate it. It's a simple matter of incentives.

The patent system has its basis in the U.S. Constitution where the federal government is given the mandate to ``promote the Progress of Science and the Useful Arts by securing for a limited time to Authors and Inventors the exclusive right to their respective Writings and Discoveries.'' In exchange for full disclosure of the terms of their inventions, inventors are granted the right to exclude others from making, using, or selling their inventions for a limited period of time. This quid pro quo provides investors with the incentive to invent. In the absence of the patent law, discoverable inventions would be freely available to anyone who wanted to use them and inventors would not be able to capture the value of their inventions or secure a return on their investments.

The patent system strikes a balance. Companies receive limited protection of their inventions if they are willing to publish the terms of their invention for all to see. At the end of the term of the patent, anyone can practice the invention without any threat of an infringement action. During the term of the patent, competitors can learn from the published description of the invention and may well find a new and distinct patentable invention.

The legislation provides two types of intellectual property protection. The

first simply provides that the term of the patent on the countermeasure will be the term of the patent granted by the Patent and Trademark Office without any erosion due to delays in approval of the product by the Food and Drug Administration. The second provides that a company that successfully develops a countermeasure will receive a bonus of two years on the term of any patent held by that company. Companies must elect one of these two protections, but only small biotechnology companies may elect the second protection. Large, profitable pharmaceutical companies may elect only the first of the two options.

The first protection against erosion of the term of the patent is an issue that is partially addressed in current law, the Hatch-Waxman Patent Term Restoration Act. That act provides partial protection against erosion of the term, length, of a patent when there are delays at the FDA in approving a product. The erosion occurs when the PTO issues a patent before the product is approved by the FDA. In these cases, the term of the patent is running but the company cannot market the product. The Hatch-Waxman Act provides some protections against erosion of the term of the patent, but the protections are incomplete. As a result, many companies end up with a patent with a reduced term, sometimes substantially reduced.

The issue of patent term erosion has become more serious due to changes at the PTO in the patent system. The term of a patent used to be fixed at 17 years from the date the patent was granted by the PTO. It made no difference how long it took for the PTO to process the patent application and sometimes the processing took years, even decades. Under this system, there were cases where the patent would issue before final action at the FDA, but there were other cases where the FDA acted to approve a product before the patent was issued. Erosion was an issue, but it did not occur in many cases.

Since 1995 the term of a patent has been set at 20 years from the date of application for the patent. This means that the processing time by the PTO of the application all came while the term of the patent is running. This gives companies a profound incentive to rush the patent through the PTO. Under the old system, companies had the opposite incentive. With patents being issued earlier by the PTO, the issue of erosion of patent term due to delays at the FDA is becoming more serious and more common.

The provision in the legislation simply states that in the case of bioterrorism countermeasures, no erosion in the term of the patent will occur. The term of the patent at the date of FDA approval will be the same as the term of the patent when it was issued by the PTO. There is no extension of the patent, simply protections against erosion. Under the new 20 year term, patents might be more or less than 17 years depending on the processing time at the PTO, and all this legislation says is that whatever term is set by the PTO will govern irrespective of the delays at the FDA. This option is available to any company that successfully develops a countermeasure eligible to be purchased by the fund.

The second option, the bonus patent term, is only available to small companies with less than $750,000,000 in paid-in capital. It provides that a company that successfully develops a countermeasure is entitled to a two-year extension of any patent in its portfolio. This does not apply to any patent of another company bought or transferred in to the countermeasure research company.

I am well aware that this bonus patent term provision will be controversial with some. A company would tend to utilize this option if it owned the patent on a product that still had, or might have, market value at the end of the term of the patent. Because this option is only available to small biotechnology companies, most of whom have no product on the market, in most cases they would be speculating about the value of a product at the end of its patent. The company might apply this provision to a patent that otherwise would be eroded due to FDA delays or it might apply it to a patent that was not eroded. The result might be a patent term that is no longer than the patent term issued by the PTO. It all depends on which companies elect this option and which patent they select. In some cases, the effect of this provision might be to delay the entry onto the market of lower priced generics. This would tend to shift some of the cost of the incentive to develop a countermeasure to insurance companies and patients with an unrelated disease.

My rationale for including the patent bonus in the legislation is simple: I want this legislation to say emphatically that we mean business, we are serious, and we want biotechnology companies to reconfigure their research portfolios to focus in part on development of countermeasures. The other provisions in the legislation are powerful, but they may not be sufficient.

This proposal protects companies willing to take the risks of producing anti-terrorism products for the American public from potential losses incurred from lawsuits alleging adverse reactions to these products. It also preserves the right for plaintiffs to seek recourse for alleged adverse reactions in Federal District Court, with procedural and monetary limitations.

Under the plan, the Secretary of HHS is required to indemnify and defend entities engaged in qualified countermeasure research through execution of ``indemnification and defense agreements.'' This protection is only available for countermeasures purchased under the legislation or to use of such countermeasures as recommended by the Surgeon General in the event of a public health emergency.

The legislation contains a series of provisions designed to enhance countermeasure research.

The legislation provides for accelerated approval by the FDA of countermeasures developed under the legislation. In most cases, the products would clearly qualify for accelerated approval, but the legislation ensures that they will be reviewed under this process.

It provides a statutory basis for the FDA approving countermeasures where human clinical trials are not appropriate or ethical. Rules regarding such products have been promulgated by the FDA.

It grants a limited antitrust exemption for certain cooperative research and development of countermeasures.

It provides incentives for the construction of biologics manufacturing facilities and research to increase the efficiency of current biologics manufacturing facilities.

It enhances the synergy between our for-profit and not for profit biomedical research entities. The Bayh-Dole Act and Stevenson-Wydler Act form the legal framework for mutually beneficially partnerships between academia and industry. My legislation strengthens this synergy and these relationships with two provisions, one to upgrade the basic research infrastructure available to conduct research on countermeasures and the other to increase cooperation between the National Institutes of Health and private companies.

Research on countermeasures necessitates the use of special facilities where biological agents can be handled safely without exposing researchers and the public to danger. Very few academic institutions or private companies can justify or capitalize the construction of these special facilities. The Federal government can facilitate research and development of countermeasures by financing the construction of these facilities for use on a fee-for-service basis. The legislation authorizes appropriations for grants to non-profit and for-profit institutions to construct, maintain, and manage up to ten Biosafety Level 3-4 facilities, or their equivalent, in different regions of the country for use in research to develop countermeasures. BSL 3-4 facilities are ones used for research on indigenous, exotic or dangerous agents with potential for aerosol transmission of disease that may have serious or lethal consequences or where the agents pose high risk of life-threatening disease, aerosol-transmitted lab infections, or related agents with unknown risk of transmission. The Director of the Office and NIH shall issue regulations regarding the qualifications of the researchers who may utilize the facilities. Companies that have registered with and been certified by the Director--to develop countermeasures under Section 5 (d) of the legislation--shall

be given priority in the use of the facilities.

The legislation also reauthorizes a very successful NIH-industry partnership program launched in FY 2000 in Public Law 106-113. The funding is for partnership challenge grants to promote joint ventures between NIH and its grantees and for-profit biotechnology, pharmaceutical and medical device industries with regard to the development of countermeasures, as defined in Section 3 of the bill, and research tools, as defined in Section 4(d)(3) of the bill. Such grants shall be awarded on a one-for-one matching basis. So far the matching grants have focused on development of medicines to treat malaria, tuberculosis, emerging and resistant infections, and therapeutics for emerging threats. My proposal should be matched by reauthorization of the challenge grant program for these deadly diseases.

The legislation also sets incentives for the development of adjuvents to enhance the potency, and efficacy of antigens in responding to a biological agent.

It requires the new Department to issue annual reports on the effectiveness of this legislation and these incentives, and directs it to host an international conference each year on countermeasure research.

This legislation is carefully calibrated to provide incentives only where they are needed. This accounts for the choices in the legislation about which provisions are available to small biotechnology companies and large pharmaceutical companies.

The legislation makes choices. It sets the priorities. It provides a dose of incentives and seeks a response in the private sector. We are attempting here to do something that has not been done before. This is uncharted territory. And it also an urgent mission.

There may be cases where a countermeasure developed to treat a biological toxin or chemical agent will have applications beyond this use. A broad-spectrum antibiotic capable of treating many different biological agents may well have the capacity to treat naturally occurring diseases.

This same issue arises with the Orphan Drug Act, which provides both tax and FDA approval incentives for companies that develop medicines to treat rare diseases. In some cases these treatments can also be used for larger disease populations. There are few who object to this situation. We have come to the judgment that the urgency of this research is worth the possible additional benefits that might accrue to a company.

In the context of research to develop countermeasures, I do not consider it a problem that a company might find a broader commercial market for a countermeasure. Indeed, it may well be the combination of the incentives in this legislation and these broader markets that drives the successful development of a countermeasure. If our intense focus on developing countermeasures, and research tools, provides benefits for mankind going well beyond terror weapons, we should rejoice. If this research helps us to develop an effective vaccine or treatment for AIDS, we should give the company the Nobel Prize for Medicine. If we do not develop a vaccine or treatment for AIDS, we may see 100 million people die of AIDS. We also have 400 million people infected with malaria and more than a million annual deaths. Millions of children die of diarrhea, cholera and other deadly and disabling diseases. Countermeasures research may deepen our understanding of the immune system and speed development of treatments for cancer and autoimmune diseases. That is not the central purpose of this legislation, but it is an additional rationale for it.

The issue raised by my legislation is very simple: do we want the Federal government to fund and supervise much of the research to develop countermeasures or should we also provide incentives that make it possible for the private sector, at its own expense, and at its own risk, to undertake this research for good business reasons. The Frist- Kennedy law focuses effectively on direct Federal funding and coordination issues, but it does not include sufficient incentives for the private sector to undertake this research on its own initiative. That law and my legislation are perfectly complimentary. We need to enact both to ensure that we are prepared for bioterror attacks.

Mr. President, I ask unanimous consent that a summary of the bill be printed in the Record.

Mr. President, I rise today to speak on the bill that is before this body, and I wish to begin by saying that I have great respect and have enjoyed working with the Senator from Idaho on a number of issues, including Healthy Forests. But I also must say we profoundly disagree when it comes to guns. So it is probably no surprise to him that I rise to strenuously object to what I see happening here.

I think we have to recognize that guns in America are responsible for the deaths of 30,000 Americans a year. The question comes whether we should be giving the gun industry sweeping and unprecedented protection from the type of lawsuits that are available to every other victim involving every other industry in America.

The simple fact is that over the years, the gun industry has managed to lessen, avoid, or prevent any prudent regulation. For example, they are exempt from Consumer Product Safety Commission laws, thanks to the National Rifle Association's efforts over the years to keep it that way.

Secondly, the Federal Government cannot do much to police bad gun dealers--and we know there are some--or to enforce gun laws because the hands of the ATF, the Bureau of Alcohol, Tobacco and Firearms, are tied by limits to their authorities which have been put in place by the National Rifle Association. They can only do a once-a-year audit, for example. They only have limited options.

The number of ATF agents is kept so low they cannot possibly inspect all of the gun dealerships in this country. So today only the court system offers victims of negligent manufacturers, of which there are some, and dealers, of which there are some, the ability to receive compensation for their injuries. Only the court system provides a means for changing these negligent practices through the threat of legal liability.

I hope to show that the threat of legal liability has, in fact, resulted in more responsible manufacturing and selling principles by this industry. If we remove this one remaining avenue toward enforcing responsibility, victims will have no recourse. Gun owners and gun victims alike will be left virtually powerless against an industry that is already immune from so many other consumer protections. So we find ourselves today on the cusp of yet another NRA victory.

Let me be clear, this is not a victory for NRA members, most of whom are law-abiding gun owners who might some day benefit from the ability to sue a manufacturer that sold them a defective or dangerous gun. No, this will be a victory for those who have turned their organization into a political powerhouse, unconcerned with the rights of the majority of Americans who want prudent controls over firearms.

I do not support meritless lawsuits against the gun industry. I do not think anybody does. It is my belief gun manufacturers and dealers, though, should be held accountable for irresponsible marketing and distribution practices, just as anyone else would be,

particularly when these practices may cause guns to fall into the hands of criminals, juveniles, or mentally ill people.

This legislation has one simple purpose: to prevent lawsuits from those harmed by gun violence. These include: suits filed by cities and counties which face rising law enforcement and medical costs due to increased gun crimes, crimes often committed using guns that flood the illegal market with the full knowledge of the distributors that the legal market could not possibly be absorbing so many of these weapons; suits filed by organizations on behalf of their members; and victims of violent crimes and their families who are injured or killed as a result of gun violence or defective guns that malfunction due to negligent design or manufacture.

This issue is not an abstract one. When people vote for this gun liability absolution today, they are going to be hurting a lot of people all across this land, and I want to point out a few because this bill affects the lives of real gun victims, victims not simply of criminal misuse by a well-designed firearm, but victims of guns that have been designed poorly or marketed in ways which quite frankly should be illegal.

One of the cases that could be affected by this legislation, though this would ultimately be decided by a judge, is that of Brandon Maxfield, a 7-year-old from my State, Oakland, CA.

On April 6, 1994, Brandon was shot in the chin by his babysitter. The shooting left him a quadriplegic and he will never be able to walk again.

The babysitter, a friend of the family, was simply trying to remove a bullet from the chamber of a weapon that was found in the house, a .38 caliber Saturday night special, when the gun accidentally fired.

Here is the key: The weapon was clearly designed in an inherently dangerous way. It can only be unloaded when the safety is in the off position and can therefore fire.

Now common sense might say when you want to unload a gun you would first put the safety on. It defies common sense, on the other hand, to design a firearm so it can only be unloaded in the firing position. After all, one might expect the gun to accidentally fire as someone like Brandon's babysitter struggles to unload it.

Finally last year, after 9 years of litigation, a jury found the manufacturer and distributor of Saturday night specials partially liable for Brandon's injuries. This was a tremendous victory for Brandon and his family and a victory for all people who want to see guns made safer. This bill, however, would take away Brandon's right to sue, and I will explain why a bit later.

The bottom line, though, is Brandon's case was not frivolous. The jury did not think it was. Without the threat of lawsuits, companies like the one that made the gun in this case will have little incentive to change the design, but this legislation would remove the threat of that suit, depriving Brandon of compensation but, even worse, depriving the public of this key avenue to improving the habits of gun manufacturers.

I will quickly go through what the bill does. I know others have and will continue to speak to this, but I think it bears repeating because I do not think everybody supporting this bill really understands its full ramifications.

Essentially, this bill prohibits any civil liability lawsuit from being filed against the gun industry for damages resulting from the criminal or unlawful misuse of a gun, with a number of narrow exceptions.

In doing so, the bill effectively rewrites traditional principles of liability law, which generally hold that persons and companies may be liable for their negligence even if others are liable as well. This bill would essentially give the gun industry blanket immunity from civil liability cases, an immunity no other industry in America has today.

The bill does allow certain cases to move forward, as its supporters have pointed out, but these cases can proceed only on very narrow circumstances. Countless experts have now said this bill would stop virtually all of the suits against gun dealers and manufacturers filed to date, many of which are vital to changing industry practice and compensating victims who have been horribly injured through the clear negligence or even borderline criminal conduct of some gun dealers and manufacturers.

The exemptions in the bill, even the new bill, set a very high burden of proof of negligence for plaintiffs, allow for a very slight number of cases against gun manufacturers to be filed, and only protect a limited class of cases against sellers.

Under this bill, cases could only be filed in the following narrow circumstances. First, if a gun dealer transfers a firearm knowing the gun will be used to commit a violent or drug trafficking crime. In other words, a suit could go forward if a dealer gives a gun to someone who comes in and says, ``Give me a gun, I need to go kill someone.'' This provision only applies in the highly unlikely event a gun buyer clearly indicates his or her criminal intentions to the gun seller. Fat chance of that happening.

I am not a gun dealer, but I imagine most criminals do not make a habit of announcing their criminal intentions to gun dealers. So this exception to the immunity created by the bill is really no exception at all. It will apply to almost no cases.

Secondly, there is an exemption in the bill which applies if a dealer sells a gun to someone knowing the buyer will or is likely to misuse the firearm and that the individual buyer does indeed misuse it to commit a criminal offense. This provision is slightly more likely than the first exemption, but it still requires a very high burden of proof. Instead of common negligence, which might only require that the dealer did not take enough care in making sure that criminals did not obtain guns to commit crimes, what this provision requires is that the dealer actually know that the buyer is likely to use the gun to do harm.

How can this be proven? Mr. President, you are an attorney. How can this be proven? The difficulty in proving such a claim might all but bar this exemption from ever coming into play. It would have no effect on such practices as straw purchases and large volume sales--which, incidentally, are the two most common sources of crime guns--because in a straw purchase, the dealer could always claim that he or she had no idea what the buyer would be doing with the guns.

Third, the bill would allow suits to proceed where a defendant has violated a law or regulation in the sale of the specific gun that caused the damage or injury. This sets a very high burden of proof for negligence. Again, this would not affect dealers who conduct straw purchases or other dangerous distributing conduct because such conduct does not specifically violate any laws or regulations, although I must say it should.

Because there are so few real laws or regulations governing how guns are sold or manufactured, this provision, too, is relatively insignificant in terms of how it affects the underlying thrust of the bill.

Now I should point out that this provision is different than the provision in the original bill as passed by the House. Under the original bill, only knowing and willful violations of the law could be subject to suit, which is an even higher burden to reach. But even under this revised legislation, this standard is far higher than current law.

The simple truth is, negligence does not involve a violation of the law. Requiring a plaintiff to prove that a gun store, for example, was not only negligent in letting a criminal obtain a dozen guns, but the gun store actually violated a law in doing so, of which there are few, makes it very difficult to succeed.

So with any other business or product, in every other industry, a seller or manufacturer can be liable if it is negligent--but not here. Since money, rather than life or liberty is at stake in a civil case, the standard of proof is lower. There need not be a criminal violation to recover damages, and in the overwhelming majority of civil cases there is no criminal violation. So if, for instance, a crib manufacturer designs and markets a crib that results in the death of children who use the crib, we allow that manufacturer to be sued as one means of deterring such conduct and of compensating the families of the children who died from the defectively designed crib. The manufacturer need

not have committed any crime. It is the negligence in making a defective and dangerous crib that is enough. Here, contrary to general negligence law covering almost every other product, this bill allows negligent gun dealers and manufacturers to get off the hook unless they violated a criminal law. That is just dreadful. You are creating a special area of law for gun manufacturers and saying unless they violate a law they can manufacture a defective weapon.

The judge in Washington State presiding over the case brought against the DC area snipers has twice ruled that the dealer, Bull's Eye Shooters Supply, and the manufacturer, Bushmaster Firearms, may be liable in negligence for enabling the snipers to obtain their gun. But even with the new modifications, the sniper victims' case could very well be thrown out of court under this bill. So know what you are doing, Members who vote for it. The sniper victims' case could well be thrown out of court by this bill because there is no evidence that either the negligent dealer or manufacturer violated a criminal law.

Indeed, both Lloyd Cutler and David Boies, each prominent attorneys, recently stated unequivocally that the sniper case would have to be dismissed under this bill, and countless professors have written a letter agreeing with this interpretation of the law.

This is the most notorious sniper case in America. You have negligence on the part of the gun dealer who sold that gun, didn't report it until way late, allowed the snipers to get that gun, and now we are passing a law to prevent the victims from suing under civil liability. Nowhere else in the law does this exist.

In another case, a Massachusetts court has ruled that gun manufacturer Kahr Arms may be liable for negligently hiring drug- addicted criminals and enabling them to stroll out the plant door with unmarked guns to be sold to criminals. But with the proposed changes, the case against Kahr Arms would be dismissed. Its conduct, though outrageous, violated no law. Negligent? Yes. Criminal? No.

Members, know what you are doing when you vote for this bill.

The fourth exemption in the bill is when a dealer somehow violates a sales contract. An example of this would be the dealer failing to provide the gun for which the purchaser paid. This, too, is clearly a limited exception. Victims of defectively designed or negligently sold guns would not be allowed to file cases under this provision. Furthermore, the claims of gun purchasers would be limited to what they were entitled to under the scope of the contract or warranty.

The fifth exemption in the original bill allowed suits to go forward if the gun manufacturer has caused ``physical injuries or property damage resulting directly from a defect in design or manufacture of a product when used as intended.'' This provision altered generally accepted principles of products liability law which essentially state that a manufacturer must implement feasible safety features that would prevent injury caused by foreseeable use or misuse, even if that use is not ``intended.'' For instance, it might not be intended for a child to try to eat a small toy, but it is clearly foreseeable.

This new modified gun immunity legislation does add language allowing suits to go forward as long as the activity was ``reasonably foreseeable'' by the manufacturer or dealer, which appears to match current law. However, the devil is in the details because the bill then takes away any benefit that language might have by stating that the exemption will not apply to lawsuits that also involve criminal acts by the defendant.

The best example of how this provision would affect the case is the Brandon Maxfield babysitter shooting I mentioned earlier, where a child was accidentally shot by a babysitter because the chamber of the gun could not be checked without clicking the safety to ``off.'' In that case, the gun fired while the babysitter tried to check the chamber.

The problem is the bill prohibits suits involving even foreseeable accidents, if there are criminal charges. In the babysitter case, the babysitter could easily be, and indeed was, charged with manslaughter-- which is a crime. Thus, even this suit would still be barred by this revised bill.

Contrary to current law which allows judges and juries to apportion blame and damages, this bill would bar any damages against a manufacturer if another party was liable due to a criminal act.

Why should firearms get special treatment? In our society, we hold manufacturers liable for the damage their products cause. This is the case with automobiles. This is the case with cribs. It is the case with children's toys, and it should be the case with guns as well. Lawsuits filed against the gun industry provide a way for those harmed to seek justice from the damages and destruction caused by firearms. Just as important, they create incentives to reform the practices proven to be dangerous.

After all, this is the most dangerous consumer item found in a home.

According to statistics, there is a gun in 43 percent of the households with children in America. There is a loaded gun in 1 of 10 households with children, and a gun that is left unlocked or improperly stored in 1 of every 8 family homes.

More children and adult family members are killed each year by having a loaded gun at home than from incidents with criminal intruders. In fact, a gun in the home is 22 times more likely to lead to an accidental injury or death to family members than used against a criminal intruder. These are senseless actions that can be prevented by simply designing guns with technologically and economically feasible safety devices.

Recent cases have produced evidence from law enforcement investigations, as well as industry insiders, that the gun industry may be ignoring numerous patented safety devices for guns and intentionally flooding certain markets with guns knowingly, and also profiting from the fact that the excess weapons would make their way into the hands of criminals. We have seen gun dealers selling guns when they know these guns are being purchased to immediately resell to criminals--often to criminals who wait right outside the door or even inside the very store while the guns are being bought by someone who can pass a background check.

Lawsuits filed against the gun industry provide a way for victims and municipalities to seek justice from the damages and destruction caused by firearms.

Additionally, lawsuits provide this largely unregulated industry with incentives to reform irresponsible manufacturing and distributing practices proven to be dangerous.

According to Tom Gresham, a writer for the magazine Guns & Ammo, lawsuits have, in fact, proven effective in encouraging manufacturers to design their guns with proper safety devices. Even though guns are not required to be made with safety features, Gresham writes in the June 2002 edition of the magazine that lawsuits have spurred manufacturers to include them to avoid liability in future actions.

Don't we want this to take proven steps to improve the safety of their weapons?

Gresham claims, ``No matter what you think of them, you will find built-in locks on more and more guns in the future. I predict that in ten years, no firearm will be made without one.''

What does this bill do to that? It encourages the gun companies to do exactly the opposite--to not put better safety components on their weapons.

When this bill was introduced, its supporters spoke about the need to protect the industry from frivolous lawsuits and the need to protect the industry from the potential loss of jobs brought on by future lawsuits. These claims are unfounded. This bill is simply the latest attempt of the gun lobby to evade industry accountability. The suits against the gun industry come in varying forms, but they all have one goal in common--forcing the firearm industry to become more responsible.

In addition to ongoing cases filed by individual victims, there have been a handful of cases filed by private associations, such as the National Association for the Advancement of Colored People, and the National Spinal Cord Injury Association. These cases have been filed on behalf of groups of individuals who claim to have been harmed by the gun industry's bad behavior.

And there are government cases--at least 24 cases--that have been filed

against the gun industry on behalf of nearly three dozen cities and counties and one State attorney general claiming that the reckless conduct of the gun industry has threatened public safety and hindered the ability of municipalities to provide for the health and welfare of their citizens. A majority of these municipalities' lawsuits have successfully defeated industry attempts to dismiss their cases. This bill would kill that.

Last year, Dennis Herrera, City Attorney of San Francisco, said that, ``Cases being pursued by my office and some 30 other jurisdictions nationwide have already achieved important milestones in exposing gun industry recklessness, with mounting evidence and an increasing number of high-level whistle blowers revealing gross misconduct by manufacturers and dealers . . . I'm convinced that the City and its fellow plaintiffs have a compelling case against the gun industry.''

This legislation would prevent them from going ahead.

Let me describe a few representative cases that also could have been stopped by this bill.

The case of Cincinnati v. Beretta is one example of a legitimate and successful case filed against the gun industry. In this case, officials from the city of Cincinnati, OH, contended that the gun industry's reckless marketing and distribution of guns enabled them to wind up in the hands of criminals and children leading to murders, shootings, and suicides that imperil public safety. The city also argued that gun manufacturers were negligent in failing to design safer weapons and owed the city compensation for the cost of emergency responses to acts of gun violence.

The Supreme Court of Ohio agreed and ruled the issue deserved exploration at trial. The court found that under generally applicable principles of law, it is the duty of gun manufacturers to use reasonable care in their design and sales of guns, and they may be liable for damages arising from their negligent conduct and failure to equip their guns with practical safety features.

This is no different an analysis than would be used against the manufacturer of any product used by a consumer--whether a child's crib, a toothbrush, a chainsaw, or an automobile.

The Court also found that a manufacturer could be held liable for their role in creating and facilitating the criminal gun market through their failure to use reasonable care in their sale and distribution of guns. The Court specifically rejected the argument that those who irresponsibly sell guns cannot be liable if the damage foreseeably resulting from their negligence was ultimately caused by a criminal act.

Furthermore, the Court noted the socially beneficial role of lawsuits against gun sellers and manufacturers can play:

If as a result of both private and municipal lawsuits,

firearms are designed to be safer and new marketing practices

make it more difficult for criminals to obtain guns, some

firearm-related deaths and injuries may be prevented . . .

Such litigation may have an important role to play,

contemplating other interventions available to cities and

states.

This case could well be stopped in its tracks if this bill passes.

In another case, Hurst v. Glock, the New Jersey Court of Appeals also ruled in favor of the plaintiff. This products liability case centers on an incident in which a teenage boy, Tyrone Hurst, was seriously injured when his friend picked up a gun she thought was unloaded and fired at Tyrone. The Hurst family argued that the shooting could have been prevented had the gun manufacturer included a safety feature known as a magazine disconnect safety.

Again, the Court agreed and found that the gun manufacturer could be liable for injuries caused by the failure to include a safety feature on the firearm. Wiped out.

In 1994, Griffin and Lyn Dix from Berkeley, CA, lost their youngest son Kenzo after he was accidentally shot to death at the age of 15 by his best friend, Michael. Michael was showing his father's gun to Kenzo and, believing the gun to be unloaded, pointed it at his friend and fired. Michael did not realize there was a bullet hidden in the chamber of the gun.

In an interview after the incident, Michael described the situation after turning the gun on his friend:

I look down and I don't even aim. I heard a pop, my eyes

opened up and I was shocked. I look and saw Kenzo hunched

over, kind of moaning--a creepy moan you don't want to hear.

It just stays with you.

The bullet went straight into Kenzo's chest. Tragically, he was pronounced dead within the hour.

Kenzo's parents sued Beretta, the manufacturer of the gun that killed their son. They argued that the gun lacked adequate safety features and warnings and that is why it appeared unloaded despite the fact that a bullet lay in the chamber.

The case sent a necessary wake-up call through the industry that they could rightly be held accountable in future wrongful-death cases. Faced with the threat of litigation, a number of manufacturers have changed their design standards and designs to include proper and practical safety features. That is a positive benefit all across this Nation.

I ask my colleagues, how can we justify giving blanket immunity to the gun industry that manufactures and distributes products that kill 30,000 Americans a year, yet fail to provide the proper and practical safety features in their products?

Under the principles of common law, all individuals and industries have a duty to act responsibly. How can we give total legal immunity to an industry that time and time again has failed to act in such a manner?

This is not just about manufacturers and the design of products. It is also about gun dealers and distributors that know their guns are sold to be used in crime. This very bill was scheduled to come to the Senate for consideration during the 107th session of Congress. It was withheld in light of the sniper attacks that terrorized the Washington, DC area. I guess enough time has now passed that the bill's supporters think we will have forgotten those sniper victims. But we have not. We have already heard today that the victims of those attacks have filed one of the cases currently pending. The suit results from alleged negligent conduct of a gun dealer that has been accuse of some incredibly negligent conduct.

Mildred Denise Muhammad filed three restraining orders against her husband, John Allen Muhammad, one of the convicted snipers. Those restraining orders should have prohibited John Allen Muhammad from owning a gun.

However, nothing stopped him from obtaining the handgun he allegedly used to commit murder in Alabama, nor the Bushmaster XM-15 assault rifle used in the sniper attacks, in all likelihood because the dealer that had the Bushmaster assault rifle was either negligent or willful in allowing it to fall into Muhammad's hands.

The assault rifle used in the sniper attacks was one of 238 guns that have been reported missing from the Bull's Eye Shooters Supply store in Tacoma, WA. We learned about this dealer's dangerous inability to keep track of his guns not from the store itself but, rather, from audits performed by the ATF. The store had no record of purchase for the assault rifle used in the attacks and failed to report it stolen until after the ATF recovered the weapon from the snipers and traced it back to the store. Here is a store that has 238 guns that are missing and does not report them. That is class A evidence.

Even after this blatant display of negligent conduct, the rifles manufacturer announced that the gun store remained a ``good customer'' and it would continue to sell guns to the store. The manufacturers showed clear disregard for the victims, their families, and public safety.

And the store itself, in either failing to adequately account for its guns, or even worse, illegally selling the gun to a prohibited person, may well also be liable for its conduct. The alleged snipers were clearly aided and abetted by the irresponsible conduct of the owners of this gun shop that managed to simply lose hundreds of deadly weapons and the manufacturer that supplied serious combat weapons to a dealer with no questions asked.

If they are not liable, they will be found not liable by a jury; but if they are liable, should we not allow a court to decide? How can we, with a clear conscience, pass a bill that would deny the right of these victims of gun violence their day in court?

As I mentioned earlier, this case would almost certainly be dismissed if

the bill now before the Senate becomes law. With no liability threat, few ATF enforcement tools, and a blanket exemption from consumer laws, Bull's Eye will have no incentive to clean up its act.

Such disregard for public safety is identified in another case filed against the gun industry, Lemongello and McGuire v. Will's Jewelry & Loan. In this case, the argument that those who irresponsibly sell guns cannot be held liable if the guns were later used in a criminal act was again rejected, this time by West Virginia Circuit Court Judge Irene Berger.

As the Presiding Officer knows, a felon, fugitive, or stalker cannot legally buy guns. So sometimes the individuals will find someone also to help them evade the current gun laws and get their hands on a gun.

A straw purchase occurs when a buyer purchases guns on behalf of criminals or other individuals who are prohibited from purchasing guns. Federal law enforcement agencies estimate 46 percent of crime guns nationwide come from this type of purchase. I repeat, 46 percent of the guns used in crimes in America come from these straw purchases with gun dealers.

The National Shooting Sports Federation is the gun industry's leading trade association. It is fully aware of the reality that guns from straw purchases are often ultimately found in the hands of criminals. The Foundation also recognizes that these dangerous purchases can easily be prevented so long as dealers act responsibly.

To promote this policy, the Foundation provides training for gun dealers ``to help prevent and deter the illegal `strawman' purchase of firearms.'' In the brochure of its training campaign entitled ``Don't Lie for the Other Guy,'' the Foundation claims that it is the responsibility of the gun dealer to prevent these purchases from taking place by simply prohibiting any sale they suspect to be a straw purchase. Despite these warnings, a straw purchase is exactly what took place at Will's Jewelry & Loan, a West Virginia pawnshop, in the fall of 2000. James Grey, a felon and gun trafficker, came into the store accompanied by Tammi Lea Songer, a woman who had a clean background and thousands of dollars in cash. James Grey methodically selected 12 guns he wanted and Songer bought them, all in a single purchase, no questions asked.

The shop's employees were suspicious of Grey and Songer's actions. They contacted the ATF to notify them of the purchase.

The problem is that the call to the ATF was made after the guns were purchased, after the profits were made by the dealer and Sturm, Ruger. The warning signs were so obvious, yet proper actions were not taken until it was too late.

Just months later, one of these guns, a 9 mm semiautomatic Ruger handgun, was used by a convicted felon to shoot and seriously injure two New Jersey police officers in the line of duty.

Officers Dave Lemongello and Ken McGuire were shot with that handgun while responding to the scene of an attempted robbery. The shoot-out put an end to the careers of both men. The injuries they received were so debilitating they could no longer serve.

Those officers filed a lawsuit against the dealer and Sturm, Ruger, who both profited from their irresponsible conduct. Their claims were recently validated, and the West Virginia Circuit Court found the gun dealer could be liable under West Virginia law of negligence and public nuisance for failing to use reasonable care in its sales. As a result, a jury could find the subsequent criminal shooting was a foreseeable result caused by that negligent act.

The bill we are considering today would turn a blind eye to the reckless conduct shown by those in the industry that enabled this tragic incident to have taken place.

Last year, Officer Lemongello spoke before the House Judiciary Committee to protest this bill. In his testimony he stated:

The next disturbing news I heard was that some people in

Congress wanted to take away my right to present my case in

court and wanted to give that irresponsible dealer special

protection from the legal rules that apply to all other

businesses in this country. Other businesses have to use

reasonable care and may be liable for the consequences if

they don't. Those who sell lethal weapons that are highly

valued by criminals should have at least the same duty to use

reasonable care as businesses who sell BB guns or any other

product . . . Gun sellers have to be more responsible when

they sell guns to prevent guns from getting into criminals'

hands before they do their damage. What happened to me and

Ken is an example of what happens when gun sellers are

irresponsible.

As if the valuable lessons learned from the cases I have detailed were not convincing enough to prove that criminals are able to get guns on the black market due to the complicity of gun manufacturers and dealers, simply listen to the words of gun industry insider Robert Ricker.

Former Executive Director of the American Sport Shooting Council and former Assistant General Counsel for the NRA, Robert Ricker has testified in support of lawsuits against the gun industry--a brave man. In a recent affidavit, Ricker claimed:

Instead of requiring dealers to be proactive and properly

trained in an effort to stop questionable sales, it has been

common practice of gun manufacturers and distributors to

adopt a ``see-no-evil, speak-no-evil'' approach. This type of

policy encourages a culture of evasion of firearms laws and

regulations.

In the same affidavit, Ricker also claimed lawsuits provide a valuable tool for motivating the industry to reform and act responsibly. He stated:

Until faced with a serious threat of civil liability for

past conduct, leaders in the industry have consistently

resisted taking constructive voluntary action to prevent

firearms from ending up in the illegal gun market and have

sought to silence others within the industry who have

advocated reform.

That says it all. They will not move to do the right thing, and they will silence others. That is according to one of their own insiders, and we go along with it and are going to give them civil liability protection. I cannot believe it.

Again, I do not support meritless lawsuits against any industry, including the gun industry. But the fact of the matter is, this bill's goal of granting the gun industry blanket immunity would cause much greater harm to the American public than it could ever possibly prevent for an already under-regulated industry.

The right way for the gun industry to protect itself from liability for irresponsible conduct is simply to act responsibly, by manufacturing guns with safety devices and ensuring their products are going to reputable, law-abiding dealers.

Is that asking too much? Is it asking too much that dealers enforce the rules on the books and prohibit straw purchases? Straw purchases, remember, are responsible for the sale of 43 percent of the guns in this Nation that are used in crimes.

I think dealers should enforce the rules on the books and prohibit these purchases. If litigation is the only way to keep the gun industry in check, we should not give the gun industry total immunity. As I have pointed out, everything else is stretched thin.

This is an industry that is less accountable under law than any other in America. The only avenue of accountability left is the courtroom, and this bill attempts to slam the courtroom door in the face of those who would hold the industry responsible for its actions.

We ought to hold this industry accountable for product standards so that in the event a juvenile ends up with a gun, common sense safety devices will prevent senseless accidents.

We ought to hold this industry responsible for taking the proper precautions to ensure law-abiding citizens are able to obtain the guns they choose while criminals and other prohibited individuals do not.

Mr. President, I beg, I plead with this body. It is incomprehensible to me that the Senate of the United States is going to provide this kind of liability protection to an industry that does what I just laid out in these remarks. It is incomprehensible.

I have watched the NRA win time after time--the latest being the Federal database of gun sales being obliterated after 24 hours. If this bill passes, there will be no stay on the gun industry for responsible conduct because they can get away without doing it.

I implore my colleagues, please take a second look at this bill. Talk to attorneys like Lloyd Cutler and David Boies. Ask them what this bill will do to merit cases.

Mr. President, I yield the floor.

Will the Chair notify me when I have a half minute left?

Mr. President, at a time when capitulation to special interest groups is a major issue in the Presidential election campaign, it is difficult to believe that the Republican leadership in the Senate is serious in asking the Senate to accept this flagrant special interest legislation. I urge my colleagues to break the stranglehold of the gun industry and gun dealers and oppose proceeding to this shameful legislation.

The list of issues that demand the Senate's immediate attention is long. Unemployment is a crisis for millions of citizens. Retirement savings are disappearing. School budgets are plummeting. College tuition is rising. Health care costs and prescription drug costs are soaring. Federal budget deficits extend as far as the eye can see. The war in Iraq has brought new dangers, imposed new costs, and more and more American lives are being lost each week.

The well-being of most American families has declined at an alarming rate in the past 2 years. We can and should be acting to meet these challenges. Instead, the Republican leadership wants to spend time on this flagrant pro-special-interest, anti-victim, anti-law-enforcement legislation to give broad legal immunity to the gun industry.

This bill's proponents claim they are targeting ``frivolous lawsuits.'' But we all know that its real effect would be to prevent victims of gun violence--police officers, innocent bystanders, and their families--from pursuing valid claims in State and Federal courts.

This special interest bill is a direct attack on the interests of law enforcement. Police Chief William J. Bratton of the Los Angeles Police Department recently told it like it is:

To give gun manufacturers and gun dealers immunity from

lawsuits is crazy. If you give them immunity, what incentive

do they have to make guns with safer designs, or what

incentive do the handful of bad dealers have to follow the

law when they sell guns.

The bill would prevent the families of the victims of the DC snipers from holding accountable the gunshop in the State of Washington that somehow ``lost'' the assault rifle that was used in the attacks. Under current law, if negligence is proved, the families of the victims are entitled to seek redress. If this bill is enacted, the gunshop will be totally immunized from liability, and the families' lawsuits will be thrown out.

Unbelievably, the gun industry and the tobacco industry are the only two consumer industries that are not subject to Federal consumer safety regulations. America does more today to regulate the safety of toy guns than real guns, and it is a national disgrace.

The gun industry has worked hard to prevent Federal consumer safety legislation. At the same time, it has conspicuously failed to use technology to make guns safer, and it has attempted to insulate itself from its distributors and dealers, once the guns leave the factory.

Now it wants to become the only industry in the Nation exempt from lawsuits. The overwhelming majority of Americans believes that gun dealers and gun manufacturers should be held responsible for their irresponsible conduct, like everyone else.

Surely, the Republican leadership has higher domestic priorities than providing legal immunity for the gun industry. Surely, we can do better than debate this extraordinarily reckless and unprecedented special interest legislation.

I withhold the remainder of my time.

I suggest the absence of a quorum.

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

Madam President, just prior to the vote I addressed the Senate on a tight timeframe pointing out my concerns about why we were taking this action at this particular time. I have had the opportunity to travel the country.

We just ended the February recess where we had a chance to get around, as well. One of the things that has struck me over the course of those travels is the overwhelming concern working families have over the state of the economy. It is reflected in whether they are going to be able to retain their job; if they have a new job, the fact it does not pay as well as the old job; they are concerned about the cost of health care, the cost of prescription

drugs; and concern over the increase of tuition. These were the issues.

One concern I have meeting at this time is we are considering special interest legislation. We have heard a great deal both by the President and during the course of the election. Hopefully, we can free ourselves from special interest legislation.

Our Republican friends offer this legislation, put a cloture motion down immediately, limit the time for any debate and discussion that provides very special interest legislation for the gun manufacturers. That must concern millions of Americans, certainly those who are concerned about the state of the economy, those concerned by the failure of the Senate to increase minimum wage over 7 years. We have 7 million Americans making $5.15 an hour who have not had a raise for 7 years and we are considering special interest legislation to protect just a single industry, the gun manufacturing industry.

There are tens of thousands of Americans losing their unemployment compensation every single week yet we are not debating the question of the extension of the unemployment compensation--which is in surplus, close to $18 billion. Senator Cantwell has an amendment to extend that for a temporary period of time, give some relief for all of the workers who cannot find work.

Finally, the administration admits we will not have good jobs, good pay, good opportunities for the future. Finally, the President has agreed with that. He differs with his Council of Economic Advisers. For weeks we heard from the other side of the aisle: The economy is back. And now the President agrees the economy is not back.

We do not need much Senate time on the issue of a minimum wage increase. I would agree to an hour, half an hour on either side. Let's send to American workers working on the lower rung of the economic ladder a message that help is on their way. It will benefit primarily women because they are primarily the recipients of the minimum wage. It will go to mothers and children because many of the women have children. It is a children's issue, a women's issue. It is a minority issue because most of the minimum wage workers are men and women of color. It is a civil rights issue, a children's issue, and a women's issue. Most of all, it is a fairness issue.

People wonder why the Senate doesn't do something about increasing the minimum wage. We have the majority of votes but our Republican friends will not let us vote.

We hear the pious statements--look who is controlling the time--and can't we go ahead with the Nation's business. The Nation's business is increasing the minimum wage. No, no, we cannot deal with that this morning. No, we are not going to deal with that. We will have special interest legislation for just one industry--that is what the other side says--but not for the 7 million people who would be affected.

What about those in need of unemployment compensation? These men and women have paid into the unemployment compensation. Now they have lost their jobs through no fault of their own through basic mismanagement of the economy. They lose their jobs and as a result they have difficulty paying their mortgage, putting food on the table, making sure their children are going to be looked after. It is not because of them. They are hard-working Americans. They have a record of employment.

Under the Cantwell amendment, we extend the unemployment compensation. We did that in other times of our history. We did it in the previous Democratic administration before that Democratic President had created 2 million jobs. We still provided for those who had long- term unemployment, that they would be able to get unemployment compensation even after more job were created.

Now we have the loss of 3 million jobs, a sputtering return of 78,000, a total loss of 2 million jobs, and they are out there and losing every single day whatever unemployment insurance they have. We say, let us at least provide some temporary help.

Finally, our President has agreed we are not going to get the kind of recovery and create the 2.6 million jobs the Council of Economic Advisers said would occur. They finally admit that. And we are stonewalled to not work on unemployment in the Senate. No, let's look after one industry, not the tens and thousands and millions of hard- working Americans who have worked hard, played by the rules and need enough to be able to continue to pay their mortgages and look after their families. No, no, no, we cannot do that. It might take all of an hour. Everyone in this body knows what the issues are. We have to do special interest legislation.

That is not even the end of it. We have the clock ticking on unemployment. More than half of the unemployed adults have had to postpone medical treatment, 57 percent; or cut back on spending for food, 56 percent. One in four, 26 percent, has had to move to other housing or move in with friends or relatives; 38 percent have lost telephone service; 22 percent are worried they will lose their phone. More than a third, 36 percent, have had trouble paying gas or electric bills.

One of the principal reasons for the increase in bankruptcy is because of this kind of challenge. Our Republican friends want bankruptcy reform in order to expedite the pursuit of these unemployed people who are having difficult times paying their bills and mortgage. That is what the bankruptcy bill is all about: make the Federal Government collection agencies for special corporate interests. That is why they are trying to rush it through. And more and more are going into bankruptcy.

Unemployment benefits should be extended with the economy still down over 2 million jobs. This chart reflects where we are today, with a total loss of 2.4 million jobs. These figures are from the Department of Labor. The Republicans say, no, no, we have something more important to deal with, special interest legislation.

This chart shows during the previous administration, they created 2.9 million jobs, yet they still had the extension of the unemployment compensation for those out of work who had paid in over a long time. The unemployment compensation fund is in surplus, $17 billion. It will cost $7 billion and they say it will put a strain on the fund.

This is what is happening, the unemployment impact on the family. More than three in four, or 77 percent, of the unemployed Americans say the level of stress in their family is increased. I don't know how you put dollars and cents on that figure. Everything is dollars and cents around here. This is the kind of pressure and tension and anxiety these families are under, the 2.5 million.

Two-thirds, or 65 percent, of those with children have cut back on spending for their children. Those are working families trying to provide for their children clothes, or perhaps a birthday present, perhaps an outing, taking them to a baseball game in the spring, a hockey game or a basketball game in the winter. That is not there for any of these families.

Twenty-six percent say another family member has had to start a job or increase their working hours. Those are basically the women, the mothers, when they can find it. All those mothers are working twice as hard now as they did 20 years ago.

Twenty-three percent have had to interrupt their education. Imagine that, working families, the unemployed--2.4 million of them--and almost a quarter of their children have had to interrupt their education because their parents are unemployed through no fault of their own.

That is the pressure they are under. Do you think we can get an extension of the unemployment compensation? No, no. We have to deal with this special interest legislation.

This is the overall view of where we are in our country now. We have 13 million children who are going hungry. We have 8 million Americans who are unemployed. We have the 8 million Americans who will lose overtime pay under the Bush proposal. This is another interesting issue. There is no increase in the minimum wage, there is no extension on unemployment compensation for workers, and now we have the proposal to eliminate overtime for 8 million Americans.

Well, you have 13 million children who are going hungry, and the millions who are without work.

We have 7 million low-wage workers waiting 7 years for an increase in the

minimum wage. There are 3 million more Americans in poverty--3 million more Americans in poverty--since President Bush took office. Are we addressing this issue today? Oh, no, no, no, we do not have the time to do that. We have to rush through this special interest proposal. We do not have time out here on the floor of the Senate to address the issues of those who are living in poverty, or the 90,000 workers a week-- 90,000 workers a week; think of that: 90,000 workers a week.

Most of us are always impressed during Sunday football games that we watch in our stadiums when they have that incredible view from the airplanes or balloons or whatever that shows the stadiums packed with people. They will say: 89,000 people, 75,000 people. I guess it is 78,000 out in Lambeau Field out in Wisconsin, which I have been to recently. People look out there and they see the mass of people out there: 80,000, 90,000 people. Think of that number of people every single week--every single week--losing their coverage of unemployment compensation.

I want to mention one other area because I see good friends in the Chamber. My friend and colleague from Iowa will be offering an amendment on overtime. I know the Senator from the Washington, Ms. Cantwell, will be here soon to talk about her amendment on the unemployment compensation.

But one of the cruelest, cruelest, cruelest suggestions that has been made by any administration in the time I have been in the Senate is to effectively do away with overtime pay for 8 million Americans and for those who receive training in the Armed Forces and acquire special skills.

Now let us think about the administration's proposal and who they are talking about. Who would be affected by the proposal the administration is talking about? Shown on this chart is a list of the professions that would lose the coverage for overtime pay.

The idea of a 40-hour workweek has been at the heart and soul of our whole country's ethic. Certainly from the late 1930s it has been a part of it. There has been a recognition that if you are going to require people to work overtime, you are going to pay them time and a half. That has been accepted by Republicans and Democrats alike since the end of the 1930s. But not under this administration. They are talking about limiting overtime.

Who will be the groups that will be affected by the elimination of overtime? This is the group: It is going to be the policemen, it is going to be firefighters, it is going to be the nurses, among others. I mention policemen and firefighters and nurses because, as we know, they are the backbone of homeland security. If we are going to have a problem with chemical or biological warfare, it is going to be those policemen and firefighters and nurses who are going to be the first responders who are going to risk their lives locally in those communities to try to contain this kind of threat. They are the ones who are going to be on the front lines. Yet those are the very people who this administration feels are being overpaid. Even the police force that is here in the Senate in many functions would be affected.

There are a lot of things that are troubling in the United States of America today we should be and must be concerned about. I mentioned the number of children who are living in poverty and what is happening to these families who have seen their jobs outsourced. Many of these things we ought to be working on. But one of the great problems in our country today is not that our policemen, firefighters, and nurses are being overpaid. I have not heard anyone say that except the President of the United States or the Secretary of Labor. I have not heard anyone come up to me back in Massachusetts saying: You know something, Senator, those policemen and firefighters and nurses are being overpaid. Do something about it. Do something in Washington about it. I don't hear that. There is no question that some manufacturers believe that and feel that and have asked the administration to do something about it. No question about that. And they did, the administration has. I will give you an example.

But let me just conclude on this chart--police officers, nurses, firefighters. The interesting part is that women, by and large, are mostly in these areas and professions. This reduction in overtime primarily affects women in our workplace.

But something that just makes this extraordinary--and has been debated here on the floor of the Senate--this proposal was rejected by the Senate of the United States, rejected by the House, but this administration feels sufficiently strong about this issue that they insisted the Harkin-Kennedy language be taken out of the bill in the middle of the night behind closed doors--behind closed doors--at the insistence of the major manufacturing companies in this country. And we are going to face that. We are going to be facing that in these next few weeks as we have the reauthorization to do it.

Now let me point out something on the rates that have been proposed. These are the ones that have been proposed on the overtime. Listen to this. And I am talking about the kinds of skills, cumulative skills that will make people ineligible for overtime. I am reading right from the Federal Register, and I will include the appropriate reference in the Record:

However, the word ``customarily''--

That means the definition about the skills that will be excluded--

means that the exemption is also available to employees in

such professions who have substantially the same knowledge

level as the degreed employees, but who attained such

knowledge through a combination of work experience, training

in the armed forces. . . .

There it is, the Federal Register, volume 68, No. 61, Monday, March 31, administration's proposed regs. If you get the skills, training in the Armed Forces, if you happen to be over in Iraq today or Afghanistan and you have gone to some training programs in order to provide greater protection for your fellow troops in fighting for our country, maybe a member of the National Guard or Reserve, you get those kinds of training functions, you come back here, you are out of the Guard, you return to work, and your boss says: Hey, these new regs say you got the training in the Armed Forces. Too bad. You are not getting your increase.

That is what this says. A number of us raised this in the earlier debate. The Secretary of Labor in January sent a letter to the Speaker of the House, Dennis Hastert, saying--and I will include the letter in the Record; it is only a page and a half long--

I want to assure that your military personnel and veterans

are not affected by these proposed rules by virtue of their

military duties or training.

But that training in the Armed Forces can make a worker an overtime- ineligible, professional employee. This is new language. It is not in the current regulation, and its only purpose is to take away overtime for veterans.

Why don't they just drop the language and free us from any kind of ambiguity? Just say, this was brought to our attention, we are going to drop it, instead of trying to explain it away.

Continuing from the letter:

First, the Part 541 ``white collar exemptions'' do not

apply to the military. They cover only the civilian

workforce.

No one is complaining that the rule affects the military workforce. The issue is the veteran who leaves the military to work in the civilian workforce and would lose overtime protections. They are rather clever. They say the white-collar exemptions don't apply to the military. No one is suggesting it applies to the military. This letter is an attempt to mislead. It is very clear. If the administration does not intend to apply these overtime regulations to those who have been in the service, they ought to just eliminate it.

I ask unanimous consent to print the letter from which I have quoted in the Record.

The Bush overtime proposal denies overtime to veterans. The overtime proposal explicitly states that training in the Armed Forces could disqualify workers from the overtime protection. Many employers, such as Boeing, acknowledge that this will affect much of their workforce. According to Boeing's comments on the Bush proposal:

Boeing observes that many of its most skilled technical

workers received a significant portion of their knowledge and

training outside the university classroom, typically in a

branch of the military service. . . .

There it is. That is the reason. Because many manufacturers wanted that kind of savings for the bottom line. That is why that is in there. Because this company and others have hired people who have been in the military, and when they see they have these kinds of skills which are necessary for our Armed Forces, they are being penalized for it.

I would be interested in seeing the discussion between the Secretary of Defense and the Secretary of Labor in putting these out. So many of these training programs and education programs are programs that inspire young people to go in the Armed Forces. They are men and women of limited means but have ability and capabilities and understand that they cannot achieve their fullest potential unless they take these training programs or build the kind of credits in order to get advanced degrees.

They ought to be on warning now that if they go ahead and do that, they may very well be knocked out of any kind of overtime protection. That is what this basically says. It is a cruel hoax to so many who are in the National Guard now and are going to come back and be in the civilian workforce.

I want to read from a letter:

My name is Randy Fleming. I live in Haysville, Kansas--

outside of Wichita--and I work as an Engineering Technician

in Boeing's Metrology lab.

I'm also proud to say that I'm a military veteran. I served

in the U.S. Air Force from August 1973 until February 1979.

I've worked for Boeing for 23 years. During that time I've

been able to build a good, solid life for my family and I've

raised a son who now has a good career and children of his

own. There are two things that helped make that possible.

First, the training I received in the Air Force made me

qualified for a good civilian job. That was one of the main

attractions when I enlisted as a young man back in Iowa. I

think it's still one of the main reasons young people today

decide to enlist. Military training opens up better job

opportunities--and if you don't believe me, just look at the

recruiting ads on TV.

The second thing is overtime pay. That's how I was able to

give my son the college education that has opened doors for

him. Some years, when the company was busy and I had those

college bills to pay, overtime pay was probably 10% or more

of my income. My daughter is next. Danielle is only 8, but

we'll be counting on my overtime to help her get her college

degree, too, when that time comes. For my family overtime pay

has made all the difference.

That's where I'm coming from. Why did I come to Washington?

I came to talk about an issue that is very important back

home and to me personally as a working man, a family man, and

a veteran. The issue is overtime rights.

The changes that this administration is trying to make in

the overtime regulations would break the government's bargain

with the men and women in the military and would close down

opportunities that working vets and their families thought

they could count on.

When I signed up back in 1973, the Air Force and I made a

deal that I thought was fair. They got a chunk of my time and

I got training to help me build the rest of my life. There

was no part of that deal that said I would have to give up my

right to overtime pay. You've heard of the marriage penalty?

Well I think that what these new rules do is to create a

military penalty. If you got your training in the military,

no matter what your white collar profession is, your employer

can make you work as many hours as they want and not pay you

a dime extra.

If that's not a bait and switch, I don't know what is.

You can't make the case any better--no matter how long we speak, how many charts we have--you can't make the case any better than is being made by this former serviceman.

And I don't have any doubt that employers will take

advantage of this new opportunity to cut our overtime pay.

They'll tell us they have to in order to compete. They'll say

if they can't take our overtime pay, they'll have to

eliminate our jobs.

It won't be just the bad employers either--because these

rules will make it very hard for companies to do the right

thing. If they can get as many overtime hours as they want

for free instead of paying us time-and-a-half, they'll say

they owe it to the stockholders. And the veterans and other

working people will be stuck with less time, less money, and

a broken deal.

I'm luckier than some other veterans because I have a union

contract that will protect my rights for a while anyway. But

we know the pressure will be on, because my employer is one

that pushed for these new rules and they've been trying hard

to get rid of our union.

And for all of those who want to let these military penalty

rules go through, I have a deal I'd like to propose. If you

think it's okay for the government to renege on its deals, I

think it should be your job to tell our military men and

women in Iraq that when they come home, their service of

their country will be used as a way to cut their overtime

pay.

Madam President, is there anyone in this body who doesn't believe that eliminating that possibility isn't of greater urgency than the special interest provision presently before us in the Senate?

Why don't we clear this up once and for all? Why don't we take an hour or so and debate the Harkin-Kennedy amendment on this issue? Why don't we vote on that amendment and send it over to the House? Let's send a message to families, nurses, police officers, and firefighters. Let's send a message to those who have gotten skills in the National Guard. Let's send a message that we stand with them, that we believe their service is of importance to us in the Senate. Let's put aside the speeches for a little while that will be made by political leaders all over the country about how much we appreciate the service of men and women and do something for them in the Senate now? Now.

There are a number of other issues that we could be talking about in terms of the state of our economy. I have taken a short period of time. I see others in the Chamber who wish to address the Senate. It does seem to me that the matters I have mentioned, no matter how you come out on them, are of importance to working families in this country. And, the working families in this country are faced with economic challenges.

It is not just the questions about outsourcing, although that is enormously important and a matter of great and expanding concern. It is what is happening with the failed increase in the minimum wage, the failure of providing unemployment compensation, the failure to do the overtime provisions, the failure to deal with the high

cost of prescription drugs. There is another amendment we could do to permit the Secretary of Health and Human Services to actually negotiate and do something about lowering prescription drugs for people. We could do that pretty quickly.

People are concerned about the high cost of tuition in colleges, and there are things we can do on that.

I say these are the matters that are of principal concern to working families across this country. We have seen the loss of manufacturing jobs, the concerns that working families have. They want some action. They don't want us to yield to special interest provisions. Not only do they not want us to yield to them, but those who have been victims of violence and violent gun activity don't want us to throw their cases away, and leading law enforcement officers of this country understand that we should not yield to the special interests as well.

I look forward to the opportunity for some discussion and some action on these issues prior to the time we have a vote. I yield the floor.