Floor Statements

Mr. President. I rise along with Senator Fitzgerald to reintroduce the Infant Crib Safety Act. This legislation is designed to reduce injuries and deaths that come from infant crib accidents.

Earch year, about 11,500 children ages 2 and under are injured in cribs seriously enough to require hospital treatment. Approximately, 26 children die a year from such injuries, the highest number of deaths caused by nursery-related products.

In fact, according to the Consumer Product Safety Commission, cribs cause more deaths than all other nursery items combined.

While strict guidelines exist on the manufacture of and sale of new cribs, there are millions of cribs sold throughout the U.S. in ``secondary markets'' such as thrift stores and resale furniture stores.

As many as half of the 4 million infants born in this country each year are placed in second hand cribs. Many of these used cribs are unsafe and should be taken off the market and either repaired or destroyed.

These used cribs can have dangerous features such as protruding corner post extensions, missing or broken parts, excessive slat width, poor fitting crib sheets, inadequate mattress supports, latches that do not prevent unintentional collapse of the crib. Cribs built before 1978 have a higher lead content than current regulations allow.

Let me give you some of the real life examples of the tragedies caused by unsafe cribs.

At the age of 23 months, Danny Lineweaver was injured during an attempt to climb out of his crib. Danny caught his shirt on a decorative knob on the cornerpost of his crib and hanged himself. Though his mother was able to perform CPR the moment she found him, Danny lived in a semi-comatose state for 9 years and died in 1993.

In another case, Luke Torgerson, a 13-month-old infant, died due to an unsafe crib at this daycare facility in Minnesota.

Parents should have confidence that a crib is a safe place to leave an infant. The design and construction of a baby crib must ensure that it is safe to leave an infant while sleeping.

Since cribs are the only juvenile product manufactured expressly for leaving a child unattended, every necessary measure should be taken to ensure that the crib is the safest possible environment.

The Infant Crib Safety Act keeps unsafe secondhand or hand-me-down cribs out of the stream of commerce by prohibiting their sale, resale, lease, and use in lodging facilities or day care centers.

This bill does not apply to individuals who provide cribs to their friends, or to any type of individual sale of a crib such as at a garage sale. The bill focuses on commercial users. And currently, controls over cribs provided by transient public lodging establishments or sold at thrift stores are non-existent.

Studies have shown that hotels and motels continue to use unsafe cribs and thrift stores continue to sell them. In the year 2000, the National Safe Kids Campaign did an investigation of cribs used by hotels and motels. Spot checks by the Campaign identified unsafe cribs in 80 percent of the cribs visited.

A year earlier, the Consumer Product Safety Commission found that 12 percent of the cribs sold in a survey of thrift stores did not meet existing voluntary industry or Federal safety standards for new cribs.

Comparable legislation has already been adopted by a number of States. Eleven States including Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Oregon, Pennsylvania, Vermont, and Washington have already passed legislation prohibiting the sale of cribs that do not meet current safety standards.

There is no good reason why cribs in all 50 States should not meet these reasonable safety standards.

The legislation is supported by the Consumer Federation of America and the Danny Foundation.

I look forward to working with my Senate colleagues to turn this common-sense legislation into law.

Mr. President. I rise along with Senator Fitzgerald to reintroduce the Infant Crib Safety Act. This legislation is designed to reduce injuries and deaths that come from infant crib accidents.

Earch year, about 11,500 children ages 2 and under are injured in cribs seriously enough to require hospital treatment. Approximately, 26 children die a year from such injuries, the highest number of deaths caused by nursery-related products.

In fact, according to the Consumer Product Safety Commission, cribs cause more deaths than all other nursery items combined.

While strict guidelines exist on the manufacture of and sale of new cribs, there are millions of cribs sold throughout the U.S. in ``secondary markets'' such as thrift stores and resale furniture stores.

As many as half of the 4 million infants born in this country each year are placed in second hand cribs. Many of these used cribs are unsafe and should be taken off the market and either repaired or destroyed.

These used cribs can have dangerous features such as protruding corner post extensions, missing or broken parts, excessive slat width, poor fitting crib sheets, inadequate mattress supports, latches that do not prevent unintentional collapse of the crib. Cribs built before 1978 have a higher lead content than current regulations allow.

Let me give you some of the real life examples of the tragedies caused by unsafe cribs.

At the age of 23 months, Danny Lineweaver was injured during an attempt to climb out of his crib. Danny caught his shirt on a decorative knob on the cornerpost of his crib and hanged himself. Though his mother was able to perform CPR the moment she found him, Danny lived in a semi-comatose state for 9 years and died in 1993.

In another case, Luke Torgerson, a 13-month-old infant, died due to an unsafe crib at this daycare facility in Minnesota.

Parents should have confidence that a crib is a safe place to leave an infant. The design and construction of a baby crib must ensure that it is safe to leave an infant while sleeping.

Since cribs are the only juvenile product manufactured expressly for leaving a child unattended, every necessary measure should be taken to ensure that the crib is the safest possible environment.

The Infant Crib Safety Act keeps unsafe secondhand or hand-me-down cribs out of the stream of commerce by prohibiting their sale, resale, lease, and use in lodging facilities or day care centers.

This bill does not apply to individuals who provide cribs to their friends, or to any type of individual sale of a crib such as at a garage sale. The bill focuses on commercial users. And currently, controls over cribs provided by transient public lodging establishments or sold at thrift stores are non-existent.

Studies have shown that hotels and motels continue to use unsafe cribs and thrift stores continue to sell them. In the year 2000, the National Safe Kids Campaign did an investigation of cribs used by hotels and motels. Spot checks by the Campaign identified unsafe cribs in 80 percent of the cribs visited.

A year earlier, the Consumer Product Safety Commission found that 12 percent of the cribs sold in a survey of thrift stores did not meet existing voluntary industry or Federal safety standards for new cribs.

Comparable legislation has already been adopted by a number of States. Eleven States including Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Oregon, Pennsylvania, Vermont, and Washington have already passed legislation prohibiting the sale of cribs that do not meet current safety standards.

There is no good reason why cribs in all 50 States should not meet these reasonable safety standards.

The legislation is supported by the Consumer Federation of America and the Danny Foundation.

I look forward to working with my Senate colleagues to turn this common-sense legislation into law.

Madam President, I rise today to cosponsor S. 1999, the Medicare Prescription Drug Price Reduction Act, which strikes language known as the ``noninterference clause'' included in the recently passed conference report accompanying the Medicare Prescription Drug and Modernization Act of 2003.

I believe that language preventing the Secretary from leveraging the enormous purchasing power of the Federal Government will mean our seniors may pay more for their drugs than they could be if that language was modified to allow the Secretary negotiating ability. America's seniors already pay the highest drug prices in the world, even though American taxpayers subsidize the research that produces many of those drugs.

So this legislation gives the Secretary of the Department of Health and Human Services, HHS, authority to negotiate contracts with manufacturers of covered Medicare Part D prescription drugs in order to ensure that enrollees in Medicare prescription drug plans, PDPs, pay the lowest possible price. The authority given to the HHS Secretary is similar to that given to other Federal entities that purchase prescription drugs in bulk.

I voted for the Medicare prescription drug conference report because it delivered voluntary prescription drug coverage to this Nation's 41 million Medicare beneficiaries. Too many Americans today face the terrible choice of paying for rent or groceries or paying for their prescription drugs. In fact, some of my constituents have resorted to skipping doses in an attempt to manage prescription drug prices.

One of the strongest features of the Medicare bill is the assistance it provides for low-income Medicare recipients through the elimination or reduction of premiums, deductibles and copays. For those low-income Medicare recipients whose prescription drug spending exceeds the catastrophic limit, or $5,100 in total drug spending, Medicare will pay all of their drug costs. For seniors who do not qualify for the low- income assistance, they will pay no more than 5 percent of their prescription drug costs above the catastrophic limit.

The Medicare prescription drug bill includes essential increases in funding for California's health care providers. California's hospitals are facing financial crises across the State. In fact, over the past 7 years, more than 62 hospitals have been forced to close.

The bill will help hospitals meet the needs of California's communities by providing $882 million in additional Medicare and Medicaid payments over the next 10 years. Physicians will now receive an increase of 1.5 percent per year in Medicare payments in 2004 and 2005, rather than the 4.5 percent payment cut they were expected to incur.

However, one of the most troubling aspects of the bill was language intended to promote competition among prescription drug plans in order to lower prescription drug prices. Section 1860D-11(i) says:

The Secretary may not interfere with the negotiations

between drug manufacturers and pharmacies and Prescription

Drug sponsors.

I believe that this language actually takes away one of the best tools the Medicare program could use to bring down prescription drug prices by denying the Government the ability to negotiate price discounts on behalf of Medicare recipients.

The Veterans' Affairs, VA, system negotiates prescription drug prices. This negotiating authority has been a terrific success in bringing down the cost of drugs purchased by the VA. Why would we prevent the Secretary of HHS from doing the same on behalf of our 41 million Medicare recipients?

Some argue that this noninterference language will spur competing prescription drug plans to drive down the cost of prescription drugs in an effort to secure contracts with the Federal Government. However, since the Secretary may not require a particular formulary or institute a price structure for covered Part D drugs, seniors may be unprotected from escalating drug costs in regions without plan competition.

Here is the most recent picture of health care spending in the United States: Health care spending in the United States increased 9.3 percent to $1.55 trillion in 2002, the largest increase in 11 years. It now accounts for 15 percent of the Nation's gross domestic product. Prescription drug spending rose 15.3 percent to $162.4 billion in 2002, accounting for 16 percent of the overall health care spending increase.

Spending on prescription drugs is often cited as a key contributor to rising health care costs. Unfortunately, the Medicare bill missed a significant opportunity to reign in the escalating cost of prescription drugs in the U.S.

I believe the Medicare Prescription Drug Price Reduction Act will bring real prescription drug cost relief to seniors in California and across the country.

I urge my colleagues to join me in supporting this important legislation.

Yes, we have heard this criticism often during the debate. And I believe it is important to clarify that this bill will ensure that seniors pay less for prescription drugs than they pay today.

Isn't it also true that if a plan chooses to use a formulary, it must include at least two drugs in each therapeutic category or class, unless the category or class only has one drug and that the plan must use pharmacy and therapeutic committees that consist of practicing physicians and pharmacists to design their formularies?

In addition, I also think it is important to note that the Congressional Budget Office has estimated that the net price increase for prescription drugs under this bill will be 3.5 percent. CBO also found that drug plans bearing full statutory risk levels are estimated to produce an overall higher cost savings of 20 to 25 percent for prescription drugs under this bill, as compared to the 12 to 15 percent that CBO believes is achieved by private prescription benefit managers today. According to CBO, prescription drug prices would be cheaper under this bill. I would like my colleagues to know that should CBO's estimates of the higher savings by drug plans in this bill prove to overestimate prescription drug savings to seniors, I intend to introduce legislation that will provide seniors with lower drug prices.

Mr. President, the Medicare conference report, which includes a reform of the Part B drug payment system, includes significant payment reductions to providers of cancer care. I understand that Senator Grassley does not intend for these payment reductions to force efficient cancer clinics to close, jeopardizing access to care for thousands of cancer patients.

Many physicians depend on overpayments on Part B drugs to make up for inadequate practice expenses. Is it the intent of the Senator from Montana that physicians' practice expenses will be increased sufficient to ensure access to care?

Is it the intent that if this new payment system does not suffice to ensure access to care, that you will revisit the system and revise the payment methodology?

Finally, it is my understanding that practice expense increases for oncology are expected to be about $500 million in 2004, $600 million in 2005, and $560 million in 2006, as shown in the summary which I will submit for the Record. Is it your understanding that the payment expense increases will allow efficient cancer care providers to continue serving cancer patients and not close their doors?

I ask unanimous consent to print the following in the Record.

Mr. President, I am concerned about the impact the Medicare conference report will have on low-income Medicare beneficiaries who are living with HIV/AIDS. I have heard a lot of opposition to this bill from the HIV/AIDS community. My concern is with their access to drug treatment therapy under the Medicare prescription drug benefit. Is it your understanding that the Medicare conference report will not prevent low-income Medicare beneficiaries who are living with HIV/AIDS from getting all the drugs they need through Medicare Part D?

Victims of HIV/AIDS are somewhat unique since the

treatment for HIV/AIDS varies with the individual. To be clear, no low- income Medicare beneficiaries who have HIV/AIDS will be denied access to the drugs they need in Medicare Part D?

Will that apply to all covered drugs required by a person with HIV/AIDS and in all cases?

I would like to quote from a letter I received from Secretary of Health and Human Services Tommy Thompson, the full text of which I will include for the Record. Secretary Thompson says, ``I would not approve a plan for participation in the Part D program if I found that the design of the plan and its benefits, including any formulary and any tiered formulary structure, would substantially discourage enrollment in the plan by any group of individuals. If a plan, however, complies with the USP guidelines then it would be considered to be in compliance with this requirement. Thus, if a plan limited drugs for a group of patients (individuals living with HIV/AIDS) it would not be permitted to participate in Part D.'' Secretary Thompson goes on to say, ``Under the Conference Report, the beneficiary protections in the Medicare drug benefit are more comprehensive than the protections now required of State Medicaid programs. This will ensure access to a wide range of drugs. For example, there are extensive information requirements so that beneficiaries will know the drugs the plan covers before they enroll in the plan. Beneficiaries can also appeal to obtain coverage for a drug that is not on their plan's formulary if the prescribing physician determines that the formulary drug is not as effective for the individual as another drug, or if there are adverse effects. As a result, access to all drugs in a category or class will be available to a beneficiary when needed.''

Is this your understanding as well?

I thank the distinguished Senators from Montana and Iowa.

I ask unanimous consent to print the above-referenced letter in the Record.

Mr. President, I listened to the distinguished Democratic leader and find that I agree with much of what he said. This may not be a perfect bill, but clearly there are positive and negative features to the bill.

I worked a year ago, and through an individual's help, was able to run the numbers with respect to a prescription drug plan and tried to make them come in within $400 billion and found it to be extraordinarily difficult. In my view, the most positive feature of this bill is that it delivers voluntary prescription drug coverage to this Nation's Medicare beneficiaries. I find the low-income benefits of this bill to be one of its biggest strengths. It is better than anything we ran that came in at $400 billion or below last year.

These benefits affect about 1.4 million Californians who have limited savings and low incomes and who will qualify for prescription drug benefits under this bill. Some of these are low-income seniors who do not qualify for Medicaid. Because of $3,000 in savings, they are ineligible to receive prescription drug coverage through the California Medicaid Program. They will now have prescription drug coverage which is much better than I had hoped. So 351,000 low-income Californians who are not eligible for Medicaid and have no prescription drug benefits now will have them under this bill. This was important to me. It is one of the strengths of the bill.

Analysis shows that this bill will increase the percentage of Medicare beneficiaries with prescription drug coverage from 79 percent to approximately 95 percent.

To begin with, this bill, as I said, expands the drug coverage to the 351,000 Californians who are not eligible for Medicaid. The reason it does that is because it has a much more relaxed assets test. So where the assets tests were so stringent for Medicaid, they are more relaxed here; and, therefore, those 351,000 people who found themselves without Medicaid coverage will now have coverage under this bill.

Secondly, the bill provides a 16-percent increase in Medicaid disproportionate-share hospital payments in fiscal year 2004. This has always been important to me. Every year we have had to fight for it because these are the payments that go to our county hospitals. In California, the county hospitals receive most of the people who have no coverage who are bereft and who are extraordinarily low income. California hospitals who qualified to receive Medicaid DSH money lost $184 million this year due to cuts enacted in the Balanced Budget Act in 1997.

This bill restores $600 million to California's hospitals over the next 10 years. I must tell you, with about 25 hospitals that have closed in my State in the last few years, this is a major item for me. The DSH money in this bill will go a long way toward protecting California's fragile health care safety net, which is dependent on a complex combination of local, State, and Federal funding.

Thirdly, the bill improves payments for indirect medical education in fiscal year 2004 and beyond. Teaching hospitals will receive a 6- percent increase in payments in the second half of fiscal year 2004 and will have their payments spelled out in future years so they can begin to plan ahead. Now, they do go down in some years. So there will be advanced knowledge of that so hospitals can begin to plan for that.

This is money that reimburses teaching hospitals. My State has some of the greatest teaching hospitals in the Nation. This money would reimburse those hospitals for costs associated with educating our Nation's next generation of physicians. That is important to me. I think it is essential funding, and it will allow our major hospitals to continue training tomorrow's caregivers.

Fourthly, the hospitals and physicians in California will benefit from this bill. Hospitals will see a full market basket update for fiscal year 2004 and have the opportunity to receive a full market basket update for the 3 years that follow. With more than 58 percent of California's hospitals losing money treating Medicare beneficiaries,

and all hospitals facing Federal and State unfunded mandates, the full market basket update is vital to my hospitals as they struggle to meet staffing, seismic, and privacy compliance requirements.

I have heard overwhelming opposition from doctors in my State to the projected 4.5-percent payment cut that physicians and other health care providers would have faced in fiscal year 2004. In other words, without this bill, doctors in my State--and I do not know about elsewhere--but doctors in my State were going to face a projected 4.5-percent payment cut.

This bill prevents that payment cut from happening, and it includes an increase in payments for fiscal years 2004 and 2005 of 1.5 percent each year. This means that doctors in my State will be paid more for their services. It may not sound like a lot, but we have doctors leaving California and going to other States because they cannot meet the high cost of living in the State of California and practicing medicine. So even a small amount helps them stay in business.

In my State, approximately 33 percent of all Medicare beneficiaries get their health care coverage from Medicare+Choice. Now, Medicare+Choice has not been a positive experience in every case. I think we all know this. This bill, though, strengthens the Medicare+Choice Program, renames it Medicare Advantage, and it provides payment increases to HMOs. Some find that objectionable. I, frankly, do not, because these increased payments to HMOs and preferred provider organizations should provide some premium stability throughout the State. I intend to watch and see if, in fact, it does happen.

Now, I have many concerns about this bill. The Democratic leader pointed out some of them. This is certainly not a perfect bill. I am not on the committee. I did not write the bill. I struggled to have a little bit of input into the bill, probably much less than I would have liked.

I am deeply concerned about the number of Californians, though, who have lost their retiree health benefits as a result of rising health care costs. This is happening right now without a bill. It is projected that 10 to 12 percent of retirees who have private health care plans are losing their benefits each year. That is happening without this bill. The reality is--and I know people do not like to look at this--if we do not pass this bill, employers in my State will continue to drop coverage for their retirees at this estimated rate of 10 to 12 percent a year. Many of these employers who have chosen to retain coverage for their retirees have required their retirees to pay higher copayments and premiums--not under this bill but today.

Through direct subsidies and tax provisions, this bill actually reduces the number of seniors in California who will lose their retiree health coverage from approximately 431,420 in the Medicare bill that passed the Senate, that a majority of us voted for, to approximately 198,000 in this bill. These are California numbers, true. I cannot speak to other States. But what I am saying is, because of this bill, the number of retirees in California who would lose their retirement benefits will drop from 431,420 to 198,000.

Now, I wish the number were zero, but the point is, the bill makes it better, not worse. I think that is a good thing.

Now, I find it very difficult that this bill does not restore access to Medicaid and SCHIP for legal immigrant children and pregnant women at the State's option. The Senator from Florida, Mr. Graham, authored legislation which I voted for which did do this. I intend to introduce--and I hope with him--legislation to restore Medicaid and SCHIP benefits to California's legal immigrant children and pregnant women next year.

I find it, frankly, troubling that this bill actually provides $250 million per year for 4 years to reimburse hospitals for providing emergency care services for undocumented immigrants, and California's hospitals will receive approximately $72 million a year to reimburse them for their care to undocumented immigrants, but we take away the coverage for legal immigrants.

I expressed my concern to Senator Breaux, to Senator Baucus, to Senator Frist about this issue. I was told the House would not accept this language. I hope next year the Senate will once again pass a bill to restore these benefits. This is a big item in California, and I deeply believe people who come to this country legally should be entitled to these benefits.

My State spent $3.7 billion in 2002 in uncompensated care, so the additional money that California gets for the care of illegal immigrants of $72 million a year at least will go some distance in covering that deficit.

In my role as vice chair of the National Dialogue on Cancer and cochair of the Senate Cancer Coalition, I have a very serious concern about this bill's Medicare reimbursement cuts for cancer care, particularly oncology physicians. It is my strong view that every suffering cancer patient should be able to have a so-called quarterback physician, an oncologist, someone who is with them who can go through all of the terrible choices and decisions that have to be made by a cancer patient and stay with them through it all.

I have talked to both Senators Baucus and Breaux and also to Senator Frist. They have all said this bill will leave the oncology community better off. I don't see that, candidly. In looking at this complicated Average Sales Price versus Average Wholesale Price issue, I don't see where they will be better off. I want the Record to reflect that I have received those assurances. I don't know whether they are true or not, but I can promise my colleagues, I intend to follow very closely the impact this bill will have on cancer care up and down the State of California. My staff and I will be watching the cancer care situation, and I am certainly prepared to introduce legislation making technical corrections to Medicare reimbursement for cancer care if the bill has the impact the oncology community predicts it will.

It is my understanding that our leadership will appoint an independent commission to be headed by my good friend, former Senator Connie Mack. The commission will monitor the impact of this bill on cancer care throughout the country and will report and make policy recommendations to Congress.

I am also concerned about the impact this bill will have on 50,000 low-income Californians who are living with HIV/AIDS. We have heard a lot from the HIV/AIDS community. My concern is with their access to drug treatment therapy under the Medicare prescription drug benefit.

What happens in AIDS/HIV treatment is that very often a cocktail of drugs, three or four different drugs, proves to be the most beneficial. The type of drugs varies with the individual, just as any drug would with any of us.

I have shared this belief, and the concern is that the formularies would limit an individual to two drugs. I spoke at length with Health and Human Services Secretary Tommy Thompson Friday night about it and asked him to put in writing exactly what would happen. Directly following my remarks, I ask unanimous consent to print in the Record his Department's response to my concerns.

I will read just a couple of key points made by the Secretary in response. Let me quote the Secretary:

The Secretary may only approve a plan for participation in

the Part D program if the Secretary does not find that the

design of the plan and its benefits, including any formulary

and any tiered formulary structure, will substantially

discourage enrollment in the plan by certain classes of

eligible Medicare beneficiaries. Thus, if a plan limits drugs

for a group of patients (such as AIDS patients), it would not

be permitted to participate in Part D.

I also note that upon completion of this bill, Senators Grassley and Baucus and I will enter a colloquy into the Record to emphasize this point.

This bill says that if a plan doesn't carry or doesn't treat a drug that is needed by a person with AIDS as a preferred drug, a simple note from a doctor explaining the medical need for that particular drug would get that drug covered at the preferred price. It cannot take more than 72 hours for seniors to get a drug under this expedited appeals process. This is my understanding based on conversations

with the Secretary. I am delighted this understanding is now in the Congressional Record so that we can all follow it.

I want to say a word about something that is very controversial in the bill that I happen to support and why I support it. That is income relating the Medicare Part B premium. Let me tell you why I support it. I have a great fear that as I watch entitlement spending grow, and I have watched that happen for a decade in the Senate, our children and our grandchildren will not have access to Social Security or Medicare. Let me tell you why I believe this.

Since 1993, at my constituent breakfasts we have been using charts to illustrate outlays, meaning the money the Federal Government spends every year. I believe they are the truest way to judge Federal spending. When I began this, in 1993, entitlement spending was $738 million. About 50 percent of the outlays in a given year were entitlement spending. That was welfare, veterans benefits, Social Security, Medicare, et cetera. Interest on the debt was 13 percent. So 63 percent of the outlays in a given year could not be controlled by our budget.

This year, entitlement spending is $1.174 billion. Entitlements have risen to 54.4 percent, a 4.4 percent increase. Interest has dropped some, to 7.5 percent.

Now, if we look at the projection--and this is with the $400 billion prescription drug plan--if you look at entitlement spending in 2013, 10 years from now, you see that it is $2.048 billion. So in 10 years it has gone from $738 billion to $2.48 billion. That is the problem. Entitlements will be 58 percent of the outlays, and interest on the debt, 11.6 percent. What does that mean? That means 70 percent of everything that is spent by the Federal Government in fiscal year 2013 cannot be controlled.

The other two pieces, of course, are defense, projected at about 16.9 percent, and discretionary spending, dropping from 20 percent this year down to 13.6 percent. Discretionary spending is everything else we have to do. It is everything in the Justice Department, the Education Department, the Park Service. All the rest of the Federal Government in 10 years will be about 13 percent of what is being spent. That is the enormity of the entitlement picture.

I know it is hard for people to look at this because those people who had the dream of Medicare decades ago looked at it as a program that everyone who paid in got out the same benefit. But what the income relating in this bill talks about is just the Part B Medicare premium, the cost of which today is $3,196.80. That is the full cost of the Medicare Part B premium in 2004.

Now, what is Part B? Part B is physician care, other medical services; it is outpatient hospital care, ambulatory surgical services, X-rays, durable medical equipment, physical occupational and speech therapy, clinical diagnostics, lab services, home health care, and outpatient mental health service.

The premium is $3,196.80. The income-relating provisions in this bill are very mild, much milder than what Senator Nickles and I presented on the Senate floor.

In this bill, beginning in 2007, individuals with incomes of more than $80,000, or couples with incomes of more than $160,000, will have, instead of 75 percent of their Medicare Part B premium subsidized, 65 percent of it will be subsidized by the Federal Government.

This goes up four tiers so that individuals with incomes of more than $200,000 a year, or a couple with an income of more than $400,000 a year, will have just 20 percent of their Medicare Part B premium subsidized by the Federal Government. Why should hard-working taxpayers pay for a millionaire's health care? That is my view.

I don't see income relating as bringing about the downfall of Medicare. I see it as making the program more solvent.

There is one significant missed opportunity in this bill that concerns me deeply, and that is the whole area of the cost of prescription drugs. I am particularly concerned about the amount of money spent on prescription drug promotion by pharmaceutical companies. Perhaps I have reached the age where I remember when there was no advertising of prescription drugs. We were just as well off then as now, and without huge costs.

Let me give you some examples. Promotional spending by pharmaceutical manufacturers has more than doubled, from $9.2 billion in 1996 to $19.1 billion in 2001. That is an annual increase of 16 percent.

Most troubling to me is the rapid spending growth of direct-to- consumer advertising of prescription drugs, which has increased an average of 28 percent.

Bottom line, Mr. President: I intend to support this bill, and not because it is perfect, but because I believe it brings substantial help to people who need that help in my State of California.

I yield the floor.

Exhibit 1

Access to Drugs for Aids Patients Under the Bipartisan Agreement

Question: Will AIDS patients have access to all drugs

within a therapeutic class under the Bipartisan Agreement?

Can a PDP limit the number of drugs that are covered within a

therapeutic class? Are dual eligibles in a Medicare drug

plans losing coverage available to them in Medicaid?

Answer. In the Bipartisan Agreement there are significant

safeguards in the development of plan formularies that will

ensure that a wide range of drugs will be available to

Medicare beneficiaries.

Plans have the option to use formularies but they are not

required to do so. If a plan uses a formulary, it must

include ``drugs'' in each therapeutic category and class

under section 1860D-4(b)(3)(C)(i). A formulary must include

at least two drugs in each therapeutic category or class

unless the category or class only has one drug.

The Secretary will request the U.S. Pharmacopoeia, a

nationally recognized clinically based independent

organization, to develop, in consultation with other

interested parties, a model guideline list of therapeutic

categories and classes. How categories and classes are

designed is essential in determining which drugs are included

on a plan's formulary. USP is clinically based and will be

cognizant of the needs of patients. We expect they will

design the categories and classes in a way that will meet the

needs of patients.

In designing formularies, plans must use pharmacy and

therapeutic committees that consist of practicing physicians

and pharmacists who are independent and free of conflict with

respect to the plan, and that have expertise in care of

elderly and disabled. The committee has to use scientific

evidence and a scientific basis for making its decisions

relating to formularies.

Further, the Secretary may only approve a plan for

participation in the Part D program if the Secretary does not

find that the design of the plan and its benefits, including

any formulary and any tiered formulary structure, will

substantially discourage enrollment in the plan by certain

classes of eligible Medicare beneficiaries. If a plan

complies with the USP guidelines it will be considered to be

in compliance with this requirement. Thus, if a plan limited

drugs for a group of patients (such as AIDS patients) it

would not be permitted to participate in Part D.

Under the Bipartisan Agreement, the beneficiary protections

in the Medicare drug benefit are extremely comprehensive to

ensure access to a wide range of drugs and are more

comprehensive than the protections now required of state

Medicaid programs.

For example, there are extensive information requirements

in Part D so beneficiaries will know what drugs the plan

covers before they enroll in the plan.

The plans must set up a process to respond to beneficiary

questions on a timely basis.

Beneficiaries can also appeal to obtain coverage for a drug

that is not on their plan's formulary if the prescribing

physician determines that the formulary drug is not as

effective for the individual or has adverse effects. As a

result, there should be access to all drugs in a category or

class when needed.

Because the Medicare drug benefit will be offered through

private plans, plans will have an incentive to offer multiple

drugs in a therapeutic class in order to attract Medicare

beneficiaries to join their plans.

Becuase of the optional nature of the Medicaid drug benefit

today, states can drop their coverage entirely. According to

a recent Office of the Inspector General report, states have

identified prescription drugs as the top Medicaid cost driver

(FY 2002, Medicaid prescription drug expenditures totaled

approximately $29 billion or 12% of the Medicaid budget).

From 1997 to 2001, Medicaid expenditures for prescription

drugs grew at more than twice the rate of total Medicaid

spending.

Pressures on state budgets have led to Medicaid coverage

restrictions for drugs and the use of cost control measures

that will not be used in the Part D program.

Eighteen states contain Medicaid drug costs by limiting the

number of prescriptions filled in a specified time period,

limiting the maximum daily dosage or limiting the frequency

of dispensing a drug. Some states also limit the number of

refills.

Six states have pharmacy lock-in programs, which require

beneficiaries to fill their prescriptions in one designated

pharmacy.

States already have the authority to limit the number of

drugs that may be provided in a therapeutic class, and

nineteen states are using preferred drug lists in their

Medicaid programs. Thus, dual eligible beneficiaries will

have the same access in Part D that they have in Medicaid,

with expanded beneficiary protections and appeal rights.

Concerns have been expressed that the Medicare benefit will

result in a loss of coverage for dual eligibles. This is not

the case for low-income beneficiaries, the Bipartisan

Agreement provides generous coverage.

The Bipartisan Agreement preserves the universality of

Medicare for all eligible beneficiaries including those now

dually eligible for both Medicare and Medicaid. Unlike

Medicaid, the new Medicare Part D benefit will provide a

guaranteed benefit to all eligible seniors--a benefit they

can count on without fear of loss of benefits when state

budgets become tight.

Dual eligibles, who currently have full Medicaid benefits,

will automatically be given generous subsidies and pay no

premium, no deductible and minimal cost-sharing regardless of

their actual income (which can be higher than 135% of poverty

based on states' special income rules).

In addition, full dual eligibles with incomes under 100% of

the Federal Poverty Level (FPL) will pay no premiums, no

deductible sand only nominal copayments of $1 for generic and

other multiple source preferred drugs and $3 for all other

drugs. These copayments will increase only at the rate of

inflation, the same rate as the Supplemental Security Income

(SSI) payments on which many low-income individuals rely.

Dual eligible nursing home patients and other

institutionalized persons who only have a small personal

needs allowances will be exempt from copayments altogether.

The copayment levels in the Bipartisan Agreement are

similar to what dual eligibles now pay in what is an optional

Medicaid benefit in their states. In fact, because of the

optional nature of the Medicaid drug benefit today, states

can drop their coverage entirely. Current regulations permit

states to increase coinsurance to 5%, which is more than what

will be permitted for dual eligibles under the new Medicare

benefit.

Mr. President, today's vote to pass the Healthy Forests legislation is a major bipartisan victory. This is not just because it is the first major forest bill in 27 years.

Much more significantly, we have nourished the middle ground in the forest debate that is so often lost in the partisan rhetoric.

We actually can create good rural jobs, protect our communities, and restore our forest environment at the same time.

Let me repeat this: we can create rural jobs, protect our communities, and take action to restore the health of our forests at the same time.

Ever since I cosponsored the Herger-Feinstein Quincy Library Group Act 5 years ago, I have been working to bring together the rural, forest-dependent communities--rather than unnecessarily dividing them.

This bill goes a long way to that end throughout the West and the Nation.

There are many people who deserve credit for this bill, but there are a few Senators in particular to whom I want to give special thanks. Senators Pete Domenici and Larry Craig were the best bipartisan allies I could ever ask for in terms of how they approached this issue.

Even though they are in the majority, Senators Domenici and Craig realized that a forestry bill needed a bipartisan coalition. They worked in good faith with me and Senator Wyden from start to finish, and I am deeply grateful for it.

I also want to thank Senator Cochran, the chairman of the conference on this bill, for his leadership throughout the process. Senator Cochran ably and skillfully represented the Senate position in the negotiations. I particularly want to emphasize that his staff conducted the conference in a fine and fair manner throughout, and it's a credit to his leadership.

There are many others Senators who played critical roles in this process, including Senators Crapo, Kyl, Lincoln, McCain, Baucus, and Bingaman.

I finally want to thank Senator Wyden, the ranking member on the Forestry Subcommittee of the Energy Committee. He is as good a ranking member and as good a leader on forestry as the Democrats could ever have.

I also want to say that I second his views on the meaning of the different parts of the bill in his statement today. As the two principal Democratic negotiators of this bill, he and I are in complete accord as to the meaning of its contents.

This legislation H.R 1904, approved by a House-Senate conference committee today is very similar to a bill passed by the Senate last month, with priority given toward removing dead and dying trees and dangerously thick underbrush in areas nearest communities as well as targeting areas where insects have devastated forests. This is especially important in California, where hundreds of thousands of trees have been killed by the bark beetle, creating tinderbox conditions.

While the recent wildfires in Southern California have been contained, these deadly fires consumed a total of 738,158 acres, killed 23 people, and destroyed approximately 3,626 residences and 1,184 other structures. Clearly, we must do everything we can to avert such a catastrophe in the future. The National Forest Service estimates that 57 million acres of Federal land are at the highest risk of catastrophic fire, including 8.5 million in California, so it is critical that we protect our forests and nearby communities.

More than 57 million acres of Federal land at the highest risk of catastrophic fire, including 8.5 million in California. In the past 5 years alone, wildfires have raged through over 27 million acres, including nearly 3 million acres in California. It is critical that Congress acts to protect our forests and nearby communities.

The House-Senate agreement both speeds up the process for reducing hazardous fuels and provides the first legal protection for old growth in our nation's history.

Let me describe what the legislation would do.

Critically, it would establish an expedited process so the Forest Service and the Department of the Interior can get to work on brush- clearing projects to minimize the risk of catastrophic wildfire.

Up to 20 million acres of lands near communities, municipal watersheds and other high-risk areas can be treated. This includes lands that have suffered from serious wind damage or insect epidemics, such as the bark beetle.

We made an important change to the bill's language in section 102(a)(4) in the conference report. In the Senate-passed bill, the insect and disease exception was related to infestations, whereas in the conference bill, the exception has been clarified to apply only where there is a presence of an epidemic of insects or disease. By its own terms, an insect or disease-related event of ``epidemic'' proportions is different from ``endemic'' insects and disease, which are present in a naturally functioning forest ecosystem.

Under the final bill, only epidemics are given special treatment. This is an important distinction.

A total of $760 million annually for hazardous fuel reduction is authorized by the legislation, a $340 million increase over current funding.

At least 50 percent of the funds would be used for fuels reduction near communities.

The legislation also requires that large, fire-resilient, old-growth trees be protected from logging immediately.

It mandates that forest plans that are more than 10 years old and most in need of updating must be updated with old growth protection consistent with the national standard within 2 to 3 years.

Without this provision in the amendment, we would likely have to wait a decade or more to see improved old-growth protection. And even then there would be no guarantee that this protection--against the threat of both logging and catastrophic fire--would be very strong.

In California, the amendment to the Sierra Nevada Framework that is currently in progress will have to comply with the new national standard for old-growth protection.

Let me explain how the agreement improves and shortens the administrative review process and makes it more collaborative and less confrontational. It is critical that the Forest Service can spend the scarce dollars in the federal budget in doing vital work on the ground, rather than being mired in endless paperwork.

The legislation fully preserves multiple opportunities for meaningful public involvement. People can attend a public meeting on every project, and they can submit comments during both the preparation of the environmental impact statement and during the administrative review process. I guarantee you the public will have a meaningful say in these projects.

The legislation changes the environmental review process so the Forest Service still considers the effects of the proposed project in detail, but can focus its analysis on the project proposal, one reasonable alternative that meets the project's goals and the alternative of not doing the project, instead of the 5-9 alternatives now often required.

In the highest priority areas within 1\1/2\ miles of communities, the Forest Service need only study the proposed action and not alternatives. There is no relaxation from current law, however, in how closely the Forest Service must study the environmental effects of the project it is proposing to undertake.

The legislation replaces the current Forest Service administrative appeals with an administrative review process that will occur after the Forest Service finishes its environmental review of a project, but before it reaches its decision. This new approach is similar to a process adopted by the Clinton administration in 2000 for review of forest plans and amendments to those plans. The process will be speedier and less confrontational than the current administrative appeal process.

Next I want to turn to judicial review. I want to emphasize that cases will be heard more quickly under the legislation and abuses of the process will be checked, but nothing alters citizens' opportunity for fair and thorough court review.

Parties can sue in Federal court only on issues raised in the administrative review process. This is a commonsense provision that allows agencies the opportunity to correct their own mistakes before everything gets litigated.

Lawsuits must be filed in the same jurisdiction as the proposed project.

Courts are encouraged to resolve the case as soon as possible.

Preliminary injunctions are limited to 60 days, although they can be extended if appropriate. This provision sends a signal to courts not to delay important brush-clearing projects indefinitely unless there really is a good reason to do so.

The court must weigh the environmental benefit of doing a given project against its environmental risks as it reviews the case.

In closing, I want to say that my colleagues and I have been trying to come to an agreement on a forest bill for several years. We finally broke through the deadlock.

I am deeply pleased that we are enacting this legislation to give the residents of southern California and elsewhere a better chance against the fires that will come next time.

Section 105(c)(3)(B)

I have a question for the Senator from Oregon as to the meaning of one specific provision of the conference report on the Healthy Forests Restoration Act of 2003. This provision is section 105(c)(3)(B), which sets forth an exception to the general requirement that parties must participate in the administrative review process before raising claims in Federal court. I don't understand the conference report and statement of the managers as doing anything to change the parties' preexisting obligations as to environmental review except as explicitly provided in the statute. Do you agree, as the ranking member on the Subcommittee on Public Lands and Forests of the Senate Committee on Energy and Natural Resources?

Mr. President, I am pleased to join with the distinguished Senator from Pennsylvania, Senator Santorum, to introduce legislation that will promote the American dream of homeownership.

Our legislation will specify that providing homeownership down payment assistance to American families constitutes a charitable activity under the regulations of the Internal Revenue Service.

As the cornerstone of middle-class wealth in our nation, we should be doing everything possible to promote broad investment in owner-occupied housing. Today, we have that chance.

It should not be a surprise that homeownership among low to moderate income families is lower than for those with higher incomes. The single biggest obstacle to achieving this dream is the lack of a downpayment.

Across America there are organizations that assist low to moderate income families with that first important step toward homeownership. In California, one of these groups, the Nehemiah Corporation, helps literally thousands of families each year by providing down payments.

While the Federal Government provides tax incentives for increased homeownership, we should make it easier for the private sector to provide their own brand of incentives. Importantly, this legislation will do several things to ensure that the private sector continues to have the tools it needs to provide this important assistance.

One, our legislation will specify that homeownership down payment assistance to American families constitutes a charitable activity.

Currently, Internal Revenue Service regulations do not clearly address the special circumstances of those organizations that provide downpayment assistance to families.

Two, our bill is structured to ensure that a charitable down payment assistance program is not used to support the purchase of rental properties or expensive homes.

Three, our legislation is designed so that the taxpayers do not pick- up the tab. Since, home sellers often contribute to charitable down payment assistance providers in connection with the sale of a home, those contributions are not charitable in nature; they are an expense related to selling a home.

This legislation clarifies that a party to a home sale transaction may not claim a charitable contribution deduction for a contribution to a down payment assistance organization made in connection with the sale.

And, although Internal Revenue Service regulations do not specifically address down payment assistance programs, our legislation merely codifies current practice.

This legislation will ensure the continued growth of this essential segment of the financial services market at no cost to the taxpayers.

And, as my friend from Pennsylvania has said, equity in homes is the leading source for collateral for small business start-up borrowing.

At a time when the economy still fails to produce jobs, the expansion of small business and the employment they provide is essential to the health of our economy.

It is a win-win situation in the truest sense of the term and I urge my colleagues to support it.

Mr. President, I am pleased to join with the distinguished Senator from Pennsylvania, Senator Santorum, to introduce legislation that will promote the American dream of homeownership.

Our legislation will specify that providing homeownership down payment assistance to American families constitutes a charitable activity under the regulations of the Internal Revenue Service.

As the cornerstone of middle-class wealth in our nation, we should be doing everything possible to promote broad investment in owner-occupied housing. Today, we have that chance.

It should not be a surprise that homeownership among low to moderate income families is lower than for those with higher incomes. The single biggest obstacle to achieving this dream is the lack of a downpayment.

Across America there are organizations that assist low to moderate income families with that first important step toward homeownership. In California, one of these groups, the Nehemiah Corporation, helps literally thousands of families each year by providing down payments.

While the Federal Government provides tax incentives for increased homeownership, we should make it easier for the private sector to provide their own brand of incentives. Importantly, this legislation will do several things to ensure that the private sector continues to have the tools it needs to provide this important assistance.

One, our legislation will specify that homeownership down payment assistance to American families constitutes a charitable activity.

Currently, Internal Revenue Service regulations do not clearly address the special circumstances of those organizations that provide downpayment assistance to families.

Two, our bill is structured to ensure that a charitable down payment assistance program is not used to support the purchase of rental properties or expensive homes.

Three, our legislation is designed so that the taxpayers do not pick- up the tab. Since, home sellers often contribute to charitable down payment assistance providers in connection with the sale of a home, those contributions are not charitable in nature; they are an expense related to selling a home.

This legislation clarifies that a party to a home sale transaction may not claim a charitable contribution deduction for a contribution to a down payment assistance organization made in connection with the sale.

And, although Internal Revenue Service regulations do not specifically address down payment assistance programs, our legislation merely codifies current practice.

This legislation will ensure the continued growth of this essential segment of the financial services market at no cost to the taxpayers.

And, as my friend from Pennsylvania has said, equity in homes is the leading source for collateral for small business start-up borrowing.

At a time when the economy still fails to produce jobs, the expansion of small business and the employment they provide is essential to the health of our economy.

It is a win-win situation in the truest sense of the term and I urge my colleagues to support it.

Mr. President, I have come to the floor as a Californian to say there is very little in this Energy bill for California. There is very little to prevent future blackouts. There is nothing to protect consumers from manipulation and gaming of the system that we experienced a few years ago.

There is nothing to improve our Nation's energy security by increasing fuel economy standards. In short, from a California perspective, I see this bill as one giant giveaway to special interests, particularly the ethanol, the MTBE, the oil, the gas, and the nuclear power industries of this country.

I had hoped that this Congress, and in particular the Energy Committee on which I serve, following the Western energy crisis and last summer's blackout in the Northeast, would pass a sensible bill that would improve our Nation's energy supply while protecting consumers, the environment, and the economy. But as I read this bill, that is not the case. This Energy bill was drafted behind closed doors, without any input from Democratic conferees or from those of us on my side of the aisle on the Energy Committee. Simply put, it is one of the worst pieces of legislation I have seen in my time in the Senate.

It is interesting that today on every Member's desk is a summary of editorials. There are over 100 editorials from newspapers, large and small, all across this great country saying ``oppose this bill.'' In fact, 100 newspapers around the country have come out opposed to the bill and editorialized against it. I will quote from one of them. Let me begin with the newspaper whose editorial policy is generally very conservative, and that is the Wall Street Journal. Let me read what the Wall Street Journal says about this legislation:

We realize that making legislation is never pretty, but

this exercise is uglier than most.

The fact that it's being midwifed by Republicans, who claim

to be free marketers, arguably makes it worse. By claiming

credit for passing this comprehensive energy reform,

Republicans are now taking political ownership of whatever

blackouts and energy shortages ensue. Good luck.

Now I will go to yesterday's Denver Post. The editorial is entitled ``Energy Bill Full of Pork.''

The bill does include funds for energy conservation,

including some incentives for ``green'' construction, but

some sound suspicious. Some $180 million will pay for a

development in Shreveport, LA. That project will use federal

tax money to subsidize the city's first-ever Hooters

restaurant. What a new Hooters has to do with America's

energy situation may be best known to U.S. Rep. Bill Tauzin,

a Louisiana Congressman and key player in the secret

conference committee talks.

The bill provides no real vision, represents no real

improvement in policies and laws. It is vexing that Congress

did not seize an opportunity to improve the national energy

picture. Congress should start over next year.

Let me now go to the Northeast, a large newspaper, the New York Times:

The oil and gas companies were particularly well rewarded--

hardly surprising in a bill that had its genesis partly in

Vice President Dick Cheney's secret task force. Though they

did not win permission to drill in the Arctic National

Wildlife Refuge, they got a lot of other things, not only tax

breaks but also exemptions from the Clean Water Act,

protection against lawsuits for fouling underground water and

an accelerated process for leasing and drilling in sensitive

areas at the expense of environmental reviews and public

participation. Meanwhile, the bill imposes new reliability

standards on major electricity producers, but it is not clear

whether it would encourage new and badly needed investment in

the power grid.

Now let me go to the Midwest to the Chicago area, the Chicago Tribune.

Despite all the years of partisan haggling that preceded

it, the approximately 1,400-page energy bill that Republicans

unveiled over the weekend, and which Congress is expected to

vote on this week, is no masterpiece of compromise or even

effective legislation.

It is more like a jigsaw puzzle with hundreds of unrelated

pieces crammed together. A few initiatives are worthwhile,

most look more like a laundry list of special-interest

subsidies. Together, they don't add up to a policy that will

promote energy self-sufficiency or stable prices.

Then let's go to one of the Chair's own newspapers, the Anchorage Daily News, which states:

What's left is a grab bag of lesser measures and pet

projects patched together in hopes of gaining enough votes to

pass in the House and Senate. The result is an energy bill

that likely will pass--but not a coherent energy policy for a

nation critically dependent on imported energy supplies.

Then let's go to the Houston Chronicle, and I will not read it all:

The most pressing problem facing the Nation is its

increasing reliance on imported oil and gas. Yet the bill

ignores several obvious avenues for progress.

The Republican draft of the bill set no standard for

renewable sources of power, such as solar and wind. The

latter will provide 2 percent of Texas' electricity supply

and one day could spell the difference between air

conditioning and brownout. There is no reason for Congress to

ignore these pollution-free, alternative energy sources, and

the conference committee should adopt a Senate amendment

requiring expanded production of renewable energy.

Now, let me take a moment here to elaborate on this point. On Monday, during the Energy Conference, I was pleased an amendment requiring utilities to generate 10 percent of their energy from renewable sources was included in the bill. Unfortunately, this provision was stripped out of the conference report by the House just hours later. Although the bill does have requirements for renewable energy in government buildings, that is not enough. We need to encourage the use of this clean technology at a national level.

Finally, I would like to move to the west coast, to the largest newspaper, the Los Angeles Times. Their editorial is entitled ``An Energy Throwback.'' They say:

It's clear why Republican leaders in Congress kept their

national energy policy bill locked up in a conference

committee room for the last month, safe from review by the

public. Taxpayers, had they been given time to digest the

not-so-fine print in the pork-laden legislation, would have

revolted.

Let me begin my impression of the bill with its costs. The editorials from around the country show that this bill increases energy production at the expense of both the taxpayers and the environment. A group called the Taxpayers for Common Sense has estimated that this bill will cost $72 billion in authorized spending, and $23 billion in tax giveaways. That is $95 billion in spending over the next 10 years.

I ask unanimous consent to have that report printed in the Record following my remarks.

Taxpayers for Common Sense points out that there is nearly $13 billion for the oil and gas industry, $5.4 billion for coal, $1.4 billion for the nuclear power industry, $4.16 billion for ethanol, $4.9 billion in energy efficiency, $1.7 billion for auto efficiency and fuels--that includes ethanol--$11 billion for LIHEAP and weatherization, $21 billion for science research and development, $2.15 billion for freedom car and hydrogen research, and $764 million for miscellaneous provisions.

Now, I am in favor of some of these programs, but the cost of this is enormous. The Senate should think twice about these massive spending increases, especially given our rising Federal deficit. I do not want to leave my children and my grandchildren saddled with these debts.

Let's also consider the fact that this bill does not deal with global warming, does not deal with fuel efficiency standards, does not deal with consumer protections, and does not deal with energy security.

From a western perspective, and particularly a California perspective, we have to look at the western energy crisis and ask the question: Will this bill help in the future? My analysis of the bill leaves me with the conclusion that the answer is no.

I have often pointed out in this Chamber that the cost of energy directly before the crisis was $7 billion. That was in 1999. It rose to $27 billion in 2000, and $26.7 billion in 2001. In 1 year, the cost went up 400 percent in California. There are Members of this body who said: Oh, California, it is your fault, you have a broken system, you don't have adequate supply to meet demand. A 400 percent increase is not the product of supply and demand, it is the product of gaming and manipulation.

Now, 3 years later and after $45 billion in costs, we have learned how the energy markets were gamed and abused. In March of 2003, the Federal Energy Regulatory Commission issued its final report on price manipulation in the western markets, and what did it find? It confirmed that there was widespread and pervasive fraud and manipulation during the western energy crisis.

The abuse in our energy markets was in fact pervasive and unlawful. So you would think an Energy bill coming out a few years after this crisis would take a look and say we ought to prevent this from ever happening again, we ought to put policies and those procedures in this bill to prevent it, we ought to strengthen the Federal Energy Regulatory Commission's ability to produce just and reasonable rates and ensure that rates remain just and reasonable across this Nation. But this bill does not do this. Rather, this bill actually impedes the ability of Federal and State agencies to investigate and prosecute fraud and price manipulation in energy markets. These provisions would make it easier to manipulate energy markets, not harder to manipulate energy markets.

This bill sends this country in the wrong direction. Rather than preventing Enron-type schemes, such as Fat Boy, Ricochet, Death Star, and Get Shorty, this bill weakens the oversight over energy markets. It guts the Federal Energy Regulatory Commission's ability to enforce just and reasonable rates.

Between now and 2007, the FERC will be in court, litigating the meaning of this electricity title rather than enforcing the State administration of just and reasonable rates to electricity customers. FERC will be powerless to respond to market crises like the one that occurred in the West between 2000 and 2001.

I am also particularly concerned about the provision in the bill which directly affects the so-called sanctity of contract provision. California was overcharged by as much as $9 billion for the cost of energy as a result of long-term electricity contracts that were entered into under desperate circumstances at the height of a gamed

energy crisis. These contracts were not based on just and reasonable rates, they were based on rates that were inflated as a result of gaming and manipulation. California has filed at FERC for refunds.

This sanctity of contract provision, however, would mean FERC would never provide any further refund in the California case. So it shuts out California from any further recourse. No one from California should vote for this Energy bill. The provision places the importance of the physical contract above the importance of enforcing just and reasonable rates. In other words, it says even if you signed a contract in a situation that has been gamed and manipulated by fraud, you are still bound to that fraud-inspired contract. That is what we are doing in this bill.

In my view, this is simply absurd. We need to be strengthening FERC's ability to enforce just and reasonable rates, particularly in a deregulated market, not weakening it. And the irony is that FERC recently announced a settlement in which El Paso Corporation and its subsidiaries would pay $1.6 billion to resolve a complaint that the company withheld supplies of natural gas into California, driving up prices for gas and electricity during the State's energy crises in 2000 and 2001.

This was precisely the incident about which I tried to see the President--he wouldn't see me at that time--because we knew that the price from San Juan, NM, to southern California, which should have been $1 per dekatherm, was $60 per dekatherm, which was a manipulated price based on the withholding of space in the El Paso pipeline. We now know that that was correct because El Paso has paid $1.6 billion: Fact.

This bill does nothing to prevent gaming and manipulation in the natural gas market. The bill does increase penalties for electricity gaming and fraud, but does nothing to increase the low penalties for manipulation of the natural gas market. It is estimated that El Paso's price manipulation cost consumers and businesses $3.7 billion, yet this bill fails to give the FERC the power it needs to ensure that this kind of price manipulation does not happen again.

Now I would like to speak about what should be for the east coast and the west coast one of the most egregious provisions in the bill, and that is this ethanol mandate. This mandate is essentially a hidden gas tax. It will increase automobile emissions in the most polluted areas of the country and will not reduce our dependence on oil. Not only is this mandate unnecessary but it may have serious unintended environmental consequences because the environmental studies on ethanol have not been done. Yet this bill forces consumption of ethanol beyond that which is needed. So this bill is pushing an untested product that States such as mine don't need to meet clean air standards.

There are several reasons I am adamantly opposed to mandating the increase in ethanol consumption from 3.1 billion gallons a year to 5 billion gallons over the next 7 years. Not only do I believe the mandate is unnecessary but I am concerned about unintended environmental consequences. Let me tell you why. This is not just off the top of my head. This summer, for the first time, 70 percent of southern California's gasoline was blended with ethanol. Partially as a result, southern California endured its worst smog season since 1998. Why? Ethanol produces smog.

For the first time in 5 years, southern California experienced a stage 1 smog alert. As of September, the greater Los Angeles metropolitan area had experienced 63 days of unhealthy air quality, when ozone levels exceeded Federal standards. That number far exceeds the 49 days of unhealthy air quality during 2002 and the 36 days in 2001.

That is with 70 percent of its gasoline blended with ethanol. So the air got worse; it didn't get better.

The number of unhealthy days this year was almost more than twice that of two other of the smoggiest areas of the country, the San Joaquin Valley and Houston, TX, which exceeded the Federal health standards for 32 days and 25 days, respectively. What ethanol has done for southern California is make it more smoggy, not less smoggy. It is a culprit. It is worsening smog. I think we are mandating it in this bill willy-nilly because of greed.

The Secretary of the California EPA concluded, and this is his direct quote:

Our best estimate is that the increase in the use of

ethanol-blended gasoline has likely resulted in a 1-percent

increase in emissions of volatile organic gases in the South

Coast Air Quality Management District in the summer of 2003.

Given the very poor air quality in the region, and the great

difficulty of reaching the current Federal ozone standard by

the required attainment date of 2010, an increase of this

magnitude is of great concern. Clearly, these emission

increases have resulted in higher ozone levels this year than

what would have otherwise occurred and are responsible for at

least some of the rise of ozone levels that have been

observed.

Not only does this bill do harm to California, it increases the use of ethanol-blended gasoline, and that will threaten my State's long- term trend toward cleaner air. It will make it more difficult, and it may well make it impossible.

Without major emission reduction in the next several years, air quality officials warn that the region may miss a 2010 clean air deadline to virtually eliminate smoggy days. If the deadline isn't met, the Los Angeles region could face Federal sanctions amounting to billions of dollars.

That is why I oppose this ethanol mandate. That is why I say to those who are supporting it that you are doing us grievous injury.

Furthermore, the bill as written threatens the highway trust fund, the funding stream that allows States to construct and maintain our roads.

Let me tell you how. Gasoline taxes generate about $20 billion per year for the highway trust fund, and they comprise about 90 percent of the overall money for the fund. Because this bill subsidizes ethanol with transportation dollars, any increase in the use of ethanol will mean a decrease in the amount of money going into the highway trust fund. In fact, California will lose approximately $900 million over the next 7 years just because of this provision. The loss of highway funds for the entire country will amount to $10 billion over the next 7 years because of this ethanol mandate. It is egregious public policy.

I am also concerned about the price impact this mandate will have on the cost of gasoline at the pump.

Proponents of the ethanol mandate argue that gas price increases will be minimum, but the projections don't take into consideration the real world infrastructure constraints and concentration in the marketplace that can lead to high price hikes. We all know that when one entity controls most of the marketplace, that entity can move price as it sees fit. And that is the situation we have here.

Everyone outside of the Midwest will have to grapple with how to bring ethanol to their States in amounts prescribed and mandated since the Midwest controls most of the ethanol production. California has done more analysis than any other State on what it will take to get ethanol to our State. The bottom line is that it can't happen without raising gas prices. Our analysis shows that we can't bring ethanol to our State without increasing gas prices.

As I said, California has done more analysis on what it will take to bring the required amount of ethanol to our State than any other State, and has found that it will have cost consequences at the pump. Proponents of the ethanol mandate argue that gas price increases will be minimal. But the projections don't take into consideration the infrastructure and strength and the concentration in the marketplace that exists. Everyone outside of the Midwest will have to grapple with how to bring ethanol to their States since the Midwest controls most of the production.

I am also concerned about the limited number of ethanol suppliers in the market today. This high market concentration will leave consumers vulnerable to price hikes as it did when electricity and natural gas prices soared in the West because of a few out-of-State generating firms dominating the market.

As I have watched all of this, every time you have out-of-State companies dealing with an unregulated energy-related marketplace you have problems. I don't know why. But I suspect there really isn't the connection with the consumer. Many of the companies driving the energy crisis in California

weren't in California. I wonder if they would do the same thing to their State that they did to our State. I am not a fan of the way the marketplace is structured today. And into this lack of structure and lack of price responsibility, we bring a whole new component. That component is that one company is the dominant producer in the highly concentrated ethanol market.

ADM today controls 46 percent of the ethanol market. That is only what is produced today. The company has an even greater control over how ethanol is distributed and marketed. ADM does not have a sterling record. It is an admitted price fixer and three of its executives have served prison time for colluding with competitors. I cannot look at ADM and say we have a pristine corporate citizen who controls this marketplace, its production, its distribution and will have any compassion for price responsibility. I do not believe giving firms such as this, this kind of control, is good public policy.

One could ask, Do I have any more grievous complaints? The answer is yes. The list goes on and on.

Let me take up MTBE. In this bill, there is a liability waiver so nobody can sue for the fact that MTBE has been found to be defective by a court of law. Not only that, it is a retroactive liability protection for MTBE producers. This provision offers them immunity from claims that the additive is defective in design or manufacture. It makes this liability protection retroactive to September 5 of this year thereby wiping out hundreds of lawsuits brought by local jurisdictions all across America. This retroactive immunity is a perverse incentive to those who pollute because it says to them, OK, you have done all of this damage; nonetheless, it does not really matter. You do not really have any liability. All these suits will be wiped out.

This bill does not ban MTBE nationwide despite what has happened in huge numbers of States, including my own. It gives MTBE producers $2 billion in what is called ``transition assistance'' to transition out of a product they are allowed to continue to produce and export. So they can accept $2 billion and continue to produce a flawed product that we know contaminates ground water, that we know leaches out of ground water wells, creates plumes of benzene, could possibly be carcinogenic, and pollutes drinking water so it is undrinkable and what do they get for doing this? $2 billion in this bill. Now I ask, is that good public policy? Remember, the courts have already found it to be a defective product. This is not me speaking; it is the courts.

I first learned about MTBE when the mayor of Santa Monica came to see me and told me that one-half of their entire water supply was contaminated with MTBE and could not be used. As I delved into it and investigated the claims further, I came to learn there were at least 10,000 sites contaminated in California. Since then, about a year ago, it is now 15,000 sites in California.

California is not alone. Last year the EPA estimated there are 15,051 sites in California. Nationally there are 153,000 contaminated ground water sites.

The States with the most pollution include California and Florida. Florida has 20,273 contaminated ground water sites--more than California. Florida is heavily impacted with MTBE pollution. Illinois has 9,546 contaminated sites. Michigan has 9,087 sites. Texas has 5,678 sites. Wisconsin has 5,567 sites. New York has 3,290 polluted sites. Pennsylvania has 4,723. It is State after State after State. They total 153,000 polluted drinking water sites. This bill does not make MTBE illegal; this bill gives MTBE $2 billion, and they cut out the ability of local jurisdictions to sue to be able to clean up these sites with the money. If that is not perverse public policy, if that does not create an incentive to do bad things, I don't know what does.

As I said, the courts ruled that MTBE is a defective product. Actually, this relates to a case in my State so I think it is relevant to mention this case. It is a case brought by the South Lake Tahoe Public Utility District. The court held Shell, Texaco, Tosco, Lyondell Chemical, which is ARCO Chemical, and Equilon Enterprises liable for selling a defective product, gasoline with MTBE, while failing to warn of its pollution hazard. The court forced these MTBE producers to pay the water district of South Lake Tahoe $60 million to clean up the mess.

The industry, in fact, knew of the problems with MTBE yet decided to include it in gasoline. They deny all of this, but a court has found it to be the case. In fact, let me read a comment from Exxon employee Barbara Mickelson from 1984:

Based on higher mobility and at the same time/odor

characteristics of MTBE, Exxon's experience with

contaminations in Maryland, and our knowledge of Shell's

experience with MTBE contamination incidents, the number of

well contamination incidents is estimated to increase three

times following the widespread introduction of MTBE into

Exxon gasoline.

This is 1984. The company went ahead and included it in their gasoline. Now, no one can sue them for a defective product in this bill.

Let me also give you an excerpt from a 1987 memorandum circulated within the Environmental Protection Agency:

Concern about MTBE in drinking water surfaced after the

Interagency Testing Committee report was published. Known

cases of drinking water contamination have been reported in 4

states. These cases affect individual families as well as

towns of up to 20,000 people. It is possible that this

program could rapidly mushroom due to leaking underground

storage tanks at service stations. The tendency for MTBE to

separate from the gasoline mixture into ground water could

lead to widespread drinking water contamination.

That is what indeed happened as illustrated by the fact that today we have 153,000 drinking water sites contaminated with MTBE across this Nation. This bill does not make its use illegal. It gives the companies $2 billion, and it prevents water districts from suing because the product was knowingly defective. There is no way you can look at a provision like this and not say this is a bad bill.

What adds insult to injury is this bill says they can continue to produce MTBE and export it to other countries so the drinking water of other countries can be polluted. How perverse can public policy be?

I am also disappointed that the conference report does nothing to increase fuel economy standards of our Nation's fleet of automobiles. We have an Energy bill. The largest contributor to global warming is carbon dioxide. The largest producer of carbon dioxide is the automobile. This bill does nothing to make automobiles more fuel efficient. What kind of an energy policy is that? In fact, the bill, again, perversely, makes it more difficult for the Department of Transportation to encourage fuel efficiency standards in the future by including a new list of criteria the Department must consider when revising standards.

I believe increasing the fuel economy of SUVs and light trucks is the single easiest step the Nation can take to reduce the emission of carbon dioxide into the atmosphere. It is the biggest single shot at reducing global warming. Yet we refuse to do it.

Earlier this year, Senator Snowe and I introduced bipartisan legislation to close what is called the SUV loophole. We were unable to offer this legislation as an amendment to the Senate version of the Energy bill when it was on the floor.

But our bill had been evaluated by the National Academy of Sciences, that has released a study on this issue, and said it was technologically feasible to do this, and that over the next 10 years it would save the United States a million barrels of oil a day and reduce our dependence on foreign oil by 10 percent. It said it would prevent 240 million tons of carbon dioxide, the top greenhouse gas, as I have said, from entering the atmosphere each year, and it would save SUV and light-duty truck owners hundreds of dollars, ranging anywhere from $300 a year to $600 a year at the pump in the cost of gasoline.

CAFE standards were first established in 1975. They were fought by Detroit, just as seatbelts were fought by Detroit. At that time light trucks made up only a small percentage of the vehicles on the road. They were used mostly for agriculture and commerce. Today they are used mostly as passenger cars. Our roads look much different. SUVs and light-duty trucks comprise more than half of new car sales in the United States.

As a result, the overall fuel economy of our Nation's fleet is the lowest it has been in two decades, largely because fuel economy standards for SUVs

and light trucks are so much lower than they are for other passenger vehicles. They are 22 miles per gallon. We could have them equal to sedans and have all the savings I have just cited.

Additionally, what is interesting is that others are moving rapidly to retrofit automobiles with new fuel savings technology that is available today for use by car manufacturers. Toyota recently announced improvements in its hybrid vehicle, the Prius, making it more powerful and more fuel efficient. Toyota has announced a hybrid version of its Lexus RX 330 SUV, which is scheduled to be released in early next year.

Meanwhile, instead of moving forward, some U.S. automakers are moving backward. I was very disappointed by the announcement made by the Ford Motor Company stating Ford would not be meeting its self-imposed goal of raising the fuel economy in its SUVs by 25 percent by 2005. Additionally, Ford announced it is delaying the sale of its hybrid SUV, the Escape, another year until 2004.

Yet China has announced it is going to move quickly on imposing fuel efficiency standards on its automobiles. Of course, any American companies that produce for Chinese consumption will have to conform.

I am so disappointed to see this Energy bill does not address global climate change. We are 5 percent of the world's population. We use 25 percent of its energy. We produce the world's most greenhouse gas emissions. We are the most significant culprit driving global warming.

Despite the fact that climate change threatens our environment and our economy, this bill does nothing to address it. I think that is a major mistake. Energy and climate are inextricably linked. A truly comprehensive energy policy cannot ignore that issue. As a nation, we ignore it at our peril.

The scientific evidence of global warming is real. The problem is getting worse. People are seeing mosquitos in areas of the Arctic for the first time. Glaciers are melting around the world, from Glacier National Park to the slopes of Mount Kilimanjaro. The largest ice shelf in the Arctic is disintegrating. This ice shelf covers 150 square miles. It is 100 feet thick.

The hole in the ozone layer, which decreased in size last year, grew to its largest level earlier this year.

Climate change is also affecting some of our most treasured places. Over a century ago, 150 magnificent glaciers could be seen on the high cliffs and jagged peaks of the surrounding mountains of Glacier National Park. Today, there are only 35. The 35 glaciers that remain today are disintegrating so quickly that scientists estimate the park will have no glaciers in 30 years.

Glaciers in the Sierra Nevada, in my State, are disappearing. Many of these have been there for the last thousand years.

We are seeing similar melting around the world, from Mount Kilimanjaro in Tanzania to the ice fields beneath Mount Everest in the Himalayas.

Dwindling glaciers offer a clear and visible sign of climate change in America and the rest of the world. We are seeing these changes. Scientists tell us to expect more. Yet this bill is silent.

We have reports from the National Academy of Sciences, the Intergovernmental Panel on Climate Change, and the Congressional Budget Office.

Let me quote the CBO report in May:

Scientists generally agree that continued population growth

and economic development . . . will result in substantially

more greenhouse gas emissions and further warming unless

actions are taken to control those emissions.

The place to take those actions is in an Energy bill, and yet this conference report is silent.

Let me tell you what the actual effect is in my State.

Sea level has risen 6 inches in San Francisco since 1850, with the greatest change happening since 1925. As sea level rises, the salt water permeates into the delta, contaminating drinking water and ground water further upstream.

Even without climate change, it would be a struggle to supply enough water for all of the people that live in California. But report, after report, after report indicates that climate change will further threaten a water supply that is already tight.

Models from NASA, the Lawrence Livermore National Laboratories, and the Union of Concerned Scientists all indicate that climate change is likely to increase winter rain and decrease snowfall in my State.

More winter rain means winter flooding. Less snow means less water for the rest of the year. California's water supply depends on gradual snow runoff. We have spent billions of dollars on water infrastructure that depends on this runoff, and yet we still have to struggle to provide enough water for our farms, our cities, our fish, and our wildlife. This bill does nothing to help California's situation.

In 1910, half of the Sacramento River's annual runoff took place between April and July. Today that number is 35 percent, and it is continuing to decline. We can't count on this runoff. It is clearly in our best interest to address climate change. Our environment is clearly at risk. Our relations with our allies are at risk because of our reluctance to address it.

The Foreign Relations Committee has recognized the need for the United States to act. We should do so in this bill. Yet we do not. How can I, representing the largest State in the Union, support a bill that does nothing for my State--nothing?

Let me now deal with the sensitive issue of coastal protection. On the positive side, the bill no longer includes another inventory of oil and gas resources on the Outer Continental Shelf. However, this conference report takes away the States' input into an important set of energy development projects, including liquefied natural gas facilities and other oil- and gas-related projects. These States need input into these decisions. For coastal States, this is a significant weakness in this bill, particularly States such as Florida and California and for your own State of Oregon, Mr. President. Time after time, we have said we do not want offshore energy development. This bill opens that door, and it reduces the States' input into decisions which directly affect our coastal zone waters.

The Energy bill also fails to include the renewable portfolio provision which was included in the Senate-passed bill. I heartened when the ranking member, the Senator from New Mexico, announced earlier this week that it was in. Apparently, it is now out. Solar, wind, geothermal, and biomass are generating electricity for homes and businesses nationwide. It is working in California. We need an energy policy that not only provides tax incentives for their continued development but also requires their use. I believe it is in the public interest for our Nation to require a greater development of renewable resources.

The tax provision of this bill implies that nuclear power is a form of renewable power, and it places this form of power on an equal footing in the Tax Code with traditional renewables. This production tax credit for nuclear power is the largest energy tax credit in the bill and would be the largest one in the code, equaling $6 billion. As a nation, we still can't properly dispose of nuclear waste. This waste has a half-life of an eternity, yet we are going to produce more of it. I strongly believe this is a mistake.

This bill also weakens the Clean Air Act. Upon reviewing the bill, I was most disappointed to learn that the legislation that has really cleaned up our air, the Clean Air Act, is weakened. The 1990 amendments to the Clean Air Act, signed by the first President Bush, implemented timelines for cities to clean their air. This bill undermines the intent of those amendments by no longer requiring communities to clean up their air if they can claim that part of its pollution is a result of transported air pollution.

Most of California--all the inland areas--is a product of transported, to some degree, air pollution. Seventy percent of our State does not meet national air quality standards. So California is probably more adversely impacted by this than any other State because of strong prevailing westerly winds which drive the pollution from the big coastal areas into the valley areas. This will result in a major weakening of the Clean Air Act. Huge areas of the State, such as the Central Valley and the Inland Empire, will have reduced cleanup requirements.

Our Nation needs an energy policy that will protect consumers, reduce our dependence on foreign oil, and produce

new energy development while protecting our environment. This bill does not do that. This bill deserves to be defeated. This bill is a bad bill.

I strongly urge my colleagues to vote against this poorly crafted legislation.

Exhibit 1

Mr. President, I thank the leader. It, indeed, is good news that this bill is coming over. It is my understanding that we have had successful negotiations. I am very hopeful there will be a bill before us shortly.

I yield the floor.

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

Mr. President, is the Senate in morning business?

Mr. President, I will make my remarks as if in morning business, but my remarks pertain to the HUD-VA bill, and in particular to the small engine provision of that bill.

If Members will remember, the Senator from Missouri, in the Appropriations Committee, placed an environmental rider into the HUD-VA bill which would prevent California from moving forward with its regulation to regulate off-road engines under 175 horsepower. The State has developed a regulatory scheme to do so because these engines were a substantial part--17 percent--of the mobile source pollution in the State, and it was believed by the California Air Resources Board that regulation of these engines could be achieved and, in fact, could reduce pollutants considerably.

On the floor of the Senate, the Senator from Missouri offered an amendment to his amendment from committee. The new language which changed the amendment, in my view, making it better, by only affecting engines under 50 horsepower. I spoke against his amendment in the Appropriations Committee. I did not press for a vote on the small engine amendment which he offered on the floor largely because I thought we would lose it and that we had a better chance of trying to remove the language from the bill in conference.

The bill has been preconferenced. Sadly, we have not been able to remove that language from the bill. I am told today that if I were to submit the amendment we had prepared which would eliminate the Bond amendment in its entirety, I would not be allowed a vote on that amendment. I believe the rationale is because I agreed to go to conference. I had only because I didn't want to lose on the floor and I thought I didn't have the votes.

Since that time, a number of States have realized that their regulatory schemes would also be impacted by this provision. Other States would be affected because the 1990 amendments to the Clean Air Act essentially said that California has the ability to regulate these engines, and other States may then take various components of that regulation and enact them as their own State law if they so choose. Since last week, a number of States have weighed in indicating they have regulatory regimes underway that would be affected and that they are opposed to the Bond amendment. Nonetheless, we are where we are.

I have come to the floor today simply to speak about why I think this is so egregious--and I do think it is egregious. I believe it is the first major setback from the clean air amendments of 1990, and specifically from the amendments allowing States to regulate air quality for the protection of their own people. By eliminating this, we are taking important rights away from the States certain rights and diminishing the States' ability to take care of their own people.

As the fire chiefs have said to me in a letter, if they waited for the Federal Government to regulate bedding and upholstery, they would be still be waiting for that regulation. Instead, the States have taken it on their own to make those regulations. The people of California are much safer because of it.

Let there be no doubt. I believe very strongly that this small engine provision should be removed from the bill and that we should restore the States' rights to protect public health under the Clean Air Act.

On the surface, the amendment that was adopted on Wednesday looked like a substantial improvement. At the time I thought it was an improvement simply because it dropped from 175 horsepower to 50 horsepower. However, the amendment still blocks all States from regulating some of the dirtiest engines out there.

The States will lose the ability to reduce pollution from all spark- ignition engines smaller than 50 horsepower. This includes lawn and garden equipment, some forklifts, recreational boats, off-road motorcycles, and all-terrain vehicles. The original small engine provision would not have affected boats or off-road motorcycles. But the amendment adopted on Wednesday is broad enough to affect a whole new group of engines.

This provision will take four California regulations off the books. My State will lose regulations on lawn and garden equipment, recreational boats, and off-road motorcycles.

I don't know whether the effects on additional engines were intentional or not. We told the Senator from Missouri about them and the language did not change.

But I want to point out another important fact about the amendment adopted on Wednesday. The language requires the U.S. Environmental Protection Agency to propose a new national regulation by December 1, 2004. It does not require the EPA to finalize that regulation, ever. They could propose a regulation and never finalize it. The one promising part of this amendment guarantees nothing. The States need to reduce these emissions now.

I want to remind my colleagues just how dirty these engines are. You will see here that mowing the lawn produces as much pollution as driving a car for 13 hours. I didn't know that before. I didn't know that if you mow your lawn for 1 hour it is like driving the automobile for 13 hours.

This chart shows how long you would have to drive a car to produce as much pollution as when you operate various types of equipment for one hour.

In other words, using a weed trimmer for 1 hour produces as much pollution as driving a car for 8 hours, mowing a lawn for 1 hour produces as much pollution as driving a car for 13 hours, and operating a forklift for 1 hour produces as much pollution as driving a car for a full 17 hours.

Clearly, this is a problem. In 8 hours a person can drive from Washington to Charleston, SC. Or he can mow the lawn for an hour and produce just as much pollution. The States need to be able to clean up these engines.

The small engine provision is bad for the States and for public health. The compromise from last week did not change the substantive issues.

The small engine provision is still using an appropriations bill to make fundamental changes to the Clean Air Act. It is an environmental rider on the HUD-VA bill. It has had no authorization. It has had no hearing. It does not belong in this bill.

The amendment from Wednesday still takes a longstanding right away from the States. States with serious air pollution need to be able to reduce emissions from these engines. The 1990 amendments to the Clean Air Act guarantee the States the right to do so. This provision overturns that right without even going through the proper channels.

Under the compromise, my State alone will lose the right to regulate over 4 million cars' worth of pollution. That is what is being taken away--access to 4 million cars' worth of pollution. That means the State is most likely going to have to tighten regulations on stationary sources, which is going to mean more expense to major industries in the State of California. That means job loss in other industries.

I cannot see how building cleaner engines should cost jobs to individuals at one company when every other company has said they will be able to build the engines without job loss. Because Briggs & Stratton does not like one California regulation, every State in the Union is going to permanently lose the right to reduce pollution from these engines. States with serious pollution problems need to be able to reduce these emissions or risk harming public health and losing transportation funds.

This provision affects every single State, not just California. For example, I understand that New York has already adopted the California regulation affecting recreational boat motors. New York will lose that regulation because of this provision.

Eight southeastern States--Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee--have all written a

letter opposing this provision. The letter clearly states that any compromise that does not fully restore the State's rights is unacceptable to those States.

Mr. President, I ask unanimous consent that the November 10 letter from the Southeastern States Air Resources Managers be printed in the Record following my remarks.

Thirdly, States still need flexibility to improve air quality. One size-fits-all solutions just do not work. We should not force every State to rely on national regulations. National regulations move too slowly and are often just not strong enough for States with a lot of pollution.

We have heard a lot about unfunded mandates lately in the Senate. We have given the States a duty to protect public health. The small engine provision does not change the States' responsibility but it takes away a mechanism by which they might comply with this mandate. This provision, in a sense, creates another unfunded mandate.

The amended provision still creates a very bad precedent. I don't think one company should be allowed to overturn States' rights under the Clean Air Act, especially when that company said on their annual report to the Securities and Exchange Commission on September 11, 2003, that the disputed regulation would not ``have a material effect on their financial condition or results of operations, given that California represents a relatively small percentage of Briggs & Stratton's engine sales and increased costs will be passed on to California consumers.''

This is their 10-K, their report to the Securities and Exchange Commission, from just 2 months ago. Where does the truth really lie? If California is just a small part of the company's market and the company will just pass on the costs, why does Briggs and Stratton object to the California regulation and insist on changing the Clean Air Act? It makes no sense.

I believe people will pay the necessary costs for cleaner engines. I believe that people will pay for cleaner lawnmowers when they learn that you have to drive your car for 13 hours to produce as much pollution as your lawn mower does in 1 hour.

Every company and every industry needs to do their part to protect public health. Briggs & Stratton should be no different. We should not allow them to pass the buck to other industries.

Once again I will quote from a letter from Allen Lloyd, the Chairman of the California Air Resources Board, about this provision. According to Mr. Lloyd,

. . . the aggregate impact of the 50 hp [horsepower]

preemption will be 70 tons per day of smog by 2010, the date

by which California's various offroad regulations would have

been fully effective. This tonnage impact is over and above

Federal regulations for the same emission sources and

reflects California's more health-protective rules. For

context, 70 tons per day is equivalent to adding 2.4 million

cars to California roadways . . .

So when the conference committee includes this provision in their conference report, they are effectively adding 70 tons of pollutants to California's air each day. The California Air Resources Board has also said that this provision could well result in the death of more than 300 people per year in California alone.

California already has seven nonattainment areas, more than any other State. My State has the worst air quality in the country, and now this provision is taking away the State's right to regulate some of the dirtiest engines available. It is a strike at the core of States' rights under the Clean Air Act.

The small engine provision also threatens our economy. California has to reduce emissions from these engines to comply with air quality requirements under the Clean Air Act. Taking away the State's right to reduce emissions threatens our State Implementation Plan, with serious economic consequences.

Violating the State's plan will jeopardize $1 billion in transportation funds per year in Southern California alone. The South Coast could lose those funds next summer. The South Coast has the worst air quality in the nation and cannot afford to lose $1 billion per year in transportation funds.

Statewide, this provision threatens $2.4 billion in transportation funds. And this is just in California.

So this has huge ramifications for my State and every other State facing serious pollution. They will all be in a serious situation in the future when the time comes and they find their hands are tied because one company did not want to build cleaner engines.

It has become clear that the supporters of the small engine provision have confused two very different ideas. Just because a group is concerned about the California regulation on lawn and garden equipment does not mean they support the small engine provision.

The California Association of Fire Chiefs has expressed important safety concerns about a specific regulation. But the chiefs have also clearly said they oppose the small engine provision because of its affect on States' rights. The Fire Chiefs understand the importance of state leadership on these issues. To quote the chiefs' November 11 letter in reference to the small engine provision:

We were never asked to comment on this matter, but for the

record, we do not support legislation that would interfere

with a state's ability to protect its own citizens.

Mr. President, I ask unanimous consent that the Fire Chiefs' letter from November 11 be printed in the Record following my remarks.

Mr. President, I do not quite know what to do. I would very much like to have a vote on this matter. I have tried to importune the conferees. I am told the Governor of California, Mr. Schwarzenegger, now inducted as Governor, has indicated his support for the removal of this amendment. It is my understanding that a whole panoply of States oppose this provision.

It is clear to me this is a bad thing. It is clear to me this is going to set back the cause of clean air. It is clear to me this is going to impact youngsters and the elderly with asthma and other lung diseases. It is clear to me that it is going to impact our transportation dollars. It is clear to me that by 2010, because of one company, California is going to have deal with 70 additional tons of smog per day. None of this needs to happen.

I regret that I cannot send an amendment to the desk. I regret I am not being allowed a vote on the amendment. But this is the wrong thing to do.

I yield the floor, Mr. President.

Exhibit 1

Southeastern States Air

Resource Managers, Inc.,

November 10, 2003.

Hon. Zell Miller,

Dirksen Senate Office Bldg.,

Washington, DC.

Dear Sen. Miller: Southeastern States Air Resource

Managers, Inc. (SESARM), representing the directors of the

southeastern state air pollution control agencies in Alabama,

Florida, Georgia, Kentucky, Mississippi, North Carolina,

South Carolina, and Tennessee, is writing this letter to

encourage your support of the removal of a position

introduced by Senator Bond in S. 1584, the Fiscal Year 2004

VA, HUD and Independent Agencies Appropriations Bill. The

provision would amend Section 209(e)(1)(A) of the Clean Air

Act to curtail a state's authority to reduce emissions from

diesel and gasoline off-road equipment and engines.

While Senator Bond's proposed provision regarding the off-

road engines apparently was intended to address rules adopted

only in California, it will limit the ability of all states

to solve serious public health-related air quality problems.

Senator Bond's proposal revises a very important provision of

the Clean Air Act which allows states to adopt engine

emission standards more stringent than the federal standards

as long as appropriate federal review processes are followed.

Congress wisely put this provision into the Act to give

states the ability to deal with serious air quality problems

across the country. SESARM opposes the impact of the Bond

proposal on this important provision.

Please note that other compromise amendments which fall

short of fully restoring Section 209(e)(1)(A) are, in our

opinion, unacceptable and will constrain states as discussed

above. SESARM and your state air pollution control agency

would appreciate your support of removal of the Bond

Amendment from S. 1584.

Sincerely,

John E. Hornback,

Executive Director.

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

Mr. President, I thank the Democratic whip for his concern and his words.

I want to correct a couple of things. The Senator from Missouri pointed out that catalytic converters are fire hazards. That may be true with some. But virtually every automobile, every pickup truck, every sport utility vehicle driving on the roads and highways of California today is equipped with a catalytic converter. It has been that way for a substantial period of time. Catalytic converters are nothing new.

Secondly, I want you to know that Honda has said that they would increase their U.S. production of these engines even with the California regulation. So, in other words, there are other companies manufacturing these engines in the United States that have said they would adhere to these new regulations and produce cleaner engines.

Thirdly, I want you to know that Briggs & Stratton has already moved some of its operations to China. I very much doubt that this California regulation has much to do with it. I am told they have been manufacturing in China since 1986, and in April of this year they increased their ownership share of two factories in China from 52 percent to a controlling 90 percent. I am also told that California regulators have incorporated Briggs & Stratton's own recommendations into its final rule issued in September. The Air Resources Board relaxed the regulation's exhaust emissions standard, relying instead on controlling evaporative emissions, as recommended by Briggs & Stratton.

So I don't know why this is being done. But I will tell you one thing: everybody who votes to sustain this will be also voting to put 70 more tons of smog into California's skies in 2010. That is how important this issue is to our State.

I yield the floor.

I did not send it to the desk.

Madam President, I rise to respond to the comments made by the Senator from Missouri, the chairman of the committee, in placing legislation, a rider, if you will, into the appropriations bill.

If ever there was a special interest provision in an appropriations bill, this is the mother and father of such a rider. I rise in opposition to what is called the small engine provision in the 2004 VA- HUD appropriations bill. I note that the Senator from Missouri did not send to the desk an amendment he plans to introduce to change the underlying amendment that was introduced in the Appropriations Committee markup. So I am going to try to address both pieces of legislation and indicate my opposition to both. Although the amendment that he says he is going to introduce is better than the language in the underlying bill, it is still unacceptable because it would effectively block any State regulation of small road engines anywhere in America. This provision was inserted into the chairman's mark at the request of a single engine manufacturing company, Briggs & Stratton from Missouri.

As originally written, the underlying bill would effectively preempt any State regulation of pollution from off-road engines smaller than 175 horsepower. I understand the Senator from Missouri now wants to narrow his provision to block any regulation of spark engines under 50 horsepower and not include diesel engines. This new provision is better but, as I said, still unacceptable.

Since the beginning, section 209 of the Clean Air Act has recognized that States, with extraordinary or extreme pollution, need flexibility to reduce pollution and protect public health. A California law actually served as the model for the original Clean Air Act. I think that is interesting. As a result, the Clean Air Act has always allowed California to set its own standards for some sources of pollution. Later changes in the law allowed other States to adopt the California standards, if they so chose.

The 1990 Clean Air Act amendments gave California the right to regulate emissions from off-road engines smaller than 175 horsepower, except for agricultural and construction equipment. So other States are currently free to adopt the California standards or not. The right of States to regulate small engines would quickly be taken away if the Bond provision is allowed to remain in this bill. Mr. President, individual States should have the right to regulate these small engines as they choose.

That is what States rights is all about. Many States have benefitted from the process established in section 209, and California's regulations often serve as models for the rest of the Nation. The small engine provision would amend section 209 and remove important rights from States. I oppose using the appropriations process to take away States rights under the Clean Air Act. This kind of change to a major law like the Clean Air Act deserves a full debate, hearing, and review in the Environment and Public Works Committee. It has had none of the above.

It is important for all of my colleagues to understand that one company is behind this so-called small engine provision. We are having this debate simply because Briggs & Stratton disagrees with a recently adopted California regulation which, incidentally, does not go into effect for another 5 years. I will explain why that becomes relevant later.

On September 25 of this year, California adopted a regulation reducing emissions from off-road engines smaller than 25 horsepower, mainly lawn and garden equipment. This is the interesting thing: This regulation is the equivalent of removing 1.8 million automobiles from California's roads by 2020. That is how big an item this is in my State. Once again, let me make it clear that we are talking about the equivalent of 1.8 million automobiles.

But the issue here is not whether we should support any particular regulation from the California Air Resources Board. The issue is whether we should permanently take away States rights to regulate these engines, period. Briggs & Stratton is using opposition to a single California regulation to block every State's efforts to regulate these engines anywhere in the future. I do not believe we should take such important changes to the Clean Air Act lightly, especially when such changes have been included in an appropriations bill without having adequately looked at the crucial stakes involved.

Briggs & Stratton has made a series of arguments in opposition to the California regulation. We heard the Senator from Missouri say the regulation would force the company to close plants, threaten thousands of American jobs, and for jobs to be moved to China. I don't know how the Senator from Missouri knows that they would move jobs to China unless Briggs & Stratton have told him that is what they plan to do.

At the very same time that Briggs & Stratton is lobbying this Senate to preempt California regulations, the company was telling the Securities and Exchange Commission an entirely different thing. On September 11 of this

year, while lobbying the Senate in support of the small engine provision, Briggs & Stratton filed their annual 10-K report with the Securities and Exchange Commission. Here is what they say in their report:

While Briggs & Stratton believes the cost of the proposed

regulation on a per engine basis is significant, Briggs &

Stratton does not believe that the [California Air Resources

Board] staff proposal will have a material effect on its

financial condition or results of operations, given that

California represents a relatively small percentage of Briggs

& Stratton's engine sales and that increased costs will be

passed on to California consumers.

So point 1, California is just a small part of the Briggs & Stratton market. Point 2, it will not affect the financial viability of that market. And point 3, they would only pass on the costs of retrofitting these engines to whomever would buy it, something that is fairly typical. Now why all this talk about moving 22,000 jobs to China if, in fact, what they said on their SEC statement is correct? The SEC statement is the be-all-and-end-all for a company's integrity and credibility.

If you lie on your SEC statement, you get into a lot of trouble with the Securities and Exchange Commission.

Section 209 of the Clean Air Act gives California the right to regulate these engines. The company is free to pass along these costs to Californians. My State will accept those costs because we need cleaner air. As far as I am concerned, this is the way regulations should work.

Since we brought the annual report to the attention of the public, Briggs & Stratton has argued that the annual report was simply discussing the company's bottom line and that sending jobs overseas would not affect the bottom line. But that is not what the company's annual report says. The report says, again, California is but a small share of the Briggs & Stratton market. Increased costs will simply be passed along to California consumers. It does not say that any increased costs will force jobs overseas.

So Briggs & Stratton is telling the Securities and Exchange Commission that everything is fine and at the same time telling the media, the public, and this body that the sky is falling.

Senator Boxer and I have asked the Securities and Exchange Commission to investigate whether Briggs & Stratton has broken any securities laws by telling such drastically different stories. We are still waiting for a response.

In terms of jobs, my colleagues should also know that Briggs & Stratton's SEC report is referring to the original regulation proposed by the Air Resources Board. Since the SEC report was filed, the California Air Resources Board has continued to work with the industry to modify the regulation to correct fire safety concerns and to reduce costs, and I believe they will get there. They have 5 years to do so.

Madam President, what I am going to be doing in this portion of my remarks is essentially showing that Briggs & Stratton really is an isolated company asking for this. By so asking for it, they are going to cause additional costs to other industries. So I hope to make that argument now.

Last month, the Outdoor Power Equipment Institute, the small engine industry's leading trade group of which Briggs & Stratton is a member issued a press release which said that the industry's input into the adopted regulation made the regulation acceptable. This press release details the concessions made by the State and said that the Air Resources Board largely adopted the industry's counterproposal. In other words, the industry trade council, of which Briggs & Stratton is a member, had their counterproposal adopted by the State Air Resources Board and yet Briggs & Stratton is still opposing the action.

I quote the release:

For the past 2 years, the Outdoor Power Equipment Institute

has been working proactively with the staff of the California

Air Resources Board to improve proposed catalyst base exhaust

standards for real problems.

The press release goes on to say:

In direct response to the Outdoor Power Equipment

Institute's advocacy, the California Air Resources Board

unanimously adopted on September 25 a modified framework

which, one, relaxes the stringency of the California Air

Resources Board's staff's proposed tier 3 exhaust standards

and, secondly, substantially improves the overall general

framework for the still-to-be-defined evaporative

regulations.

I ask unanimous consent that the text of the Outdoor Power Equipment Institute's press release be printed in the Record at the conclusion of my remarks.

Additionally, I have a September 26, 2003, letter from Alan Lloyd, the chairman of the California Air Resources Board, to the Senator from Missouri, detailing revisions that were made to the regulation. Referring to the modified regulation, Mr. Lloyd states as follows:

I believe the action taken by the Air Resources Board is a

win/win situation. We achieved our emission reduction goal.

The adopted regulation, based on an industry proposal, will

reduce costs, simplify compliance and avoid job losses.

So the Air Resources Board took the industry's proposal, the industry association of which Briggs & Stratton is a member. That is why this thing is so unfair.

I ask unanimous consent that the text of this letter from Mr. Lloyd to the Senator from Missouri be printed in the Record following my statement.

Briggs & Stratton also raised concerns about fire safety. The Senator from Missouri has placed a November 6 letter from the California Association of Fire Chiefs in the Record. That letter expressed concerns about the proposed California regulation. I take these concerns very seriously. The last thing I want to do is increase the risk of fire. So we need to make sure these engines are safe, and the regulation has 5 years to make adjustments before it goes into effect, ample time to make such changes as replacing heat shields and doing whatever else is necessary to ensure these engines are fire safe.

There is apparently some miscommunication between the fire chiefs and the Air Resources Board. I have just received a letter dated November 11. I want to read from this letter:

The fire safety issues we raised [and that would be the

November 6 letter that Senator Bond printed in the Record]

need more attention and require independent assessment before

engineering and production decisions are made [which they

have not been up to this time]. In our most recent

discussions with [the Air Resources Board], they support the

idea of an independent study, and have proposed moving

forward with a study, much the same as what is now underway

with catalytic converters being used in marine applications.

We enthusiastically support this idea, and will be working

closely with [the California Air Resources Board], the State

Fire Marshal, and the U.S. Environmental Protection Agency to

ensure that all fire safety concerns are addressed. We wish

to make clear that we regard fire safety and environmental

quality as being equally important, and wish to make it clear

that we support without reservation the air quality goals of

the proposed requirements. We support the regulation moving

forward as we have received assurances from CARB [the

California Air Resources Board] that our safety concerns will

be addressed through this independent study.

So I think the concerns of the Senator from Missouri are a bit overstated in view of the fact that the fire chiefs, the fire marshal, and anyone else will work closely with CARB in the ensuing 5 years to correct any safety problems that might exist. The letter goes on, and this is important:

Finally, we understand that, as a separate matter, the

Senate is debating the question of whether States are free to

develop safety and environmental standards. We were never

asked to comment on this matter but, for the record, we do

not support legislation that would interfere with a State's

ability to protect its own citizens. To the contrary, we have

had to count on the State of California to develop fire

safety standards for upholstered furniture, mattresses and

bedding, because the Federal Government has failed to do so.

The issues of air quality, as they relate to outdoor power

equipment, can be addressed, and I believe that working

closely with the Air Resources Board, we will find a solution

that will provide a high degree of fire safety while

maintaining the Board's goals for air quality.

I would like to work with the Senator from Missouri, the Air Resources Board, fire safety officials, and the small engine industry to make sure the California regulation is fire safe. We have 5 years do so. It is possible to do so. But what we cannot do is take away the State's rights to be concerned

about its citizens, and that is exactly what Senator Bond is trying to do.

He gives jurisdiction, for the regulation of small engines, to the EPA. What the fire chiefs have just said is the EPA has refused to move on areas such as bedding and other areas which cause fires, so the State has had to do it for themselves.

States rights are a major part of this issue and I thought these rights were part of everything we believed in--letting a State, where it can, regulate for itself. Again, I think it is unfortunate that Briggs and Stratton is using safety concerns about a single regulation to block all future efforts to reduce pollution from these engines in any State.

Let me tell you why this is so big for California. We have the worst air quality in the Nation. We have seven ozone nonattainment areas. That is more than any other State. Los Angeles is the Nation's only extreme ozone nonattainment area. The San Joaquin Valley is not far behind. This year has been the worst year for smog in southern California since 1997, and the San Joaquin Valley is in a similar situation.

This pollution has severe consequences for public health and for our economy in California. Let me tell you what the Air Resources Board says will be the result of the efforts of the Senator from Missouri. They say Senator Bond's provision could lead to 340 premature deaths per year in California due to deteriorating air quality.

I believe States with serious pollution problems need to be able to reduce emissions wherever possible. This small engine provision would place a very important source of pollution off limits to State regulation.

I understand a modifying amendment is going to be introduced on behalf of Senator Bond that will change the current bill language, which currently blocks the regulation of off-road engines smaller than 175 horsepower. All told, these engines alone emit as much pollution as 18 million automobiles. Can you believe that? Small off-road engines are emit as much pollution as 18 million automobiles. That is a big number for California and any reduction in this pollution would benefit California greatly.

The narrower version of this provision, which has yet to be introduced but I trust will be, would still block State regulation of spark engines smaller than 50 horsepower, which represents the majority of small engines that exist and operate in my home State. According to the California Air Resources Board, engines under 50 horsepower emit as much pollution as 4 million cars, just in California. This is more than 100 tons of smog-forming pollutants per day in my State alone.

The modifying amendment that we understand will be sent to the desk will essentially mandate 1,500 more tons of smog-producing pollutants a day in California--all to benefit one company that is not telling the truth on its SEC statement. These off-road engines are also among the least regulated and dirtiest engines around.

According to the California Air Resources Board again, operating the average gas-powered lawnmower for just 1 hour produces as much pollution as driving a car for 13 hours. I would hazard a guess that no one in this Senate knew that operating a lawnmower for 1 hour produces as much smog as operating a car for 13 hours. Keep in mind that the lawnmower is only about 5 horsepower and the car engine is far larger.

Even running a small string trimmer for an hour produces as much pollution as driving a car for 8 hours. Again, I hazard a guess that no one in this Senate knows that operating a small string trimmer for an hour produces as much pollution as 8 hours of driving a car. The bottom line: These are very dirty engines.

California is already struggling to comply with national air quality standards. We need every industry to do their fair share. According to the Air Resources Board, the State has to reduce emissions from these engines in order to achieve compliance with national air quality standards. In other words, if California is not allowed to proceed with the regulations they put forward on September 25, we will be violating clean air standards. What happens if we do it? What happens is that California loses $2.4 billion in highway transportation moneys. That is how important this issue is for the State of California and that is how dastardly this amendment--an authorization on an appropriations bill-- really is.

California cannot afford to remain out of compliance with national standards. We also can't afford to take tools away from States that are in this situation. If we can't reduce emissions from off-road engines, then we will have to cut pollution from other sources. What does that mean? Other sources are already facing heavier regulation, so cutting their pollution will be more expensive and place more burden on other industries.

On this point I would like to quote a September 25 letter from the Environmental Council of the States. That is an organization that represents environmental agencies in all 50 States. Let me read what they say:

Removal of this ability to regulate a substantial part of a

State's inventory, means that States will have to obtain

reductions from the stationary source area [key, from the

stationary source area], an area that is already heavily

regulated at substantially higher cost. Businesses facing

global competition will opt to either shift work to off-shore

facilities or to simply close, with concomitant negative

consequences on the local and national economy.

It is critical that this language be eliminated from the HUD-VA appropriations bill.

This is the environmental council to which every State belongs.

What does this mean? This means that every oil refinery will have to have tough requirements and that every utility will have to have tough requirements. The cost of gas will rise, and the cost of energy will rise. Every stationary source, if we can't tackle this area because it is so big, will have to have their standards tightened.

This is all for one company. Every other company that makes small engines has said they can comply, except one company in Missouri that says in their SEC report, no problem, and comes here and says, we are going to move our jobs to China. A whole series of companies will be disadvantaged, but one Missouri company will suffer no financial consequences.

I ask unanimous consent that the full text of this September 25 letter from the Environmental Council of States be printed in the Record following my remarks.

Mr. President, the debate over the small engine provisions is focused on California for this point. But it is also clear that the effects go far beyond California.

Remember that under the Clean Air Act, once California passes the regulation, other States can then replicate that to any degree they so choose. This is where it begins to affect a number of other States. The small engine provision in the VA/HUD appropriations bill is a problem for every State and for every Senator who believes individual States should be able to adopt their own rules and regulations on issues such as these. States with serious pollution problems include Texas, Tennessee, Pennsylvania, Illinois, North Carolina, New York, New Jersey, Maryland, and many others know they need to be able to reduce pollution from every possible source. Some States have already moved forward with regulations affecting off-road engines.

This legislation--the underlying bill, as well as the amendment that we understand will be sent to the desk shortly--will cut this off, remove the right from a State and give it to the EPA that historically has been a slow mover in this area.

According to the associations representing State and local pollution control officials, the original version of the small engine provision would have blocked the current program in seven States--Alaska, Connecticut, Massachusetts, Nevada, Texas, and Wisconsin.

The 175-horsepower engine would also block programs in at least eight States that are considering future regulations: Alabama, Illinois, Nebraska, New Jersey, Pennsylvania, South Carolina, Tennessee, and Virginia, in addition to the District of Columbia.

The States recognize this threat to their rights. I have already quoted a letter from Environmental Council of

the States. We have also received letters in opposition to the Bond provision from the National Conference of State Legislatures, the Southeastern State Air Resources Managers representing State air pollution control agencies in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee, and the associations representing State and local air pollution control officials from all 50 States.

I ask unanimous consent that the letters from these organizations be printed in the Record.

Mr. President, the States also propose compromise language that would still place some of these engines off limits. To quote the letter from the Southeastern States Air Managers:

Please note that other compromise amendments which fall

short of fully restoring section 209(e)(1)(a) are, in our

opinion, unacceptable and will constrain States as discussed

above. This association and your State air pollution control

agencies would appreciate your support of removal of the Bond

amendment from S. 1584, the HUD VA appropriations bill.

Many other States are just beginning to realize the importance of this small engine provision. As we move forward with more protective air quality standards, more and more States will need to reduce emissions to comply with national standards. Those States will also need to reduce pollution from these very engines because there are so many of them and they are so very dirty. I strongly believe we should protect a State's right to do so.

We should not use this appropriations bill to take rights away from the States without knowing what we are doing, without a hearing, and without review by the authorizing committee.

As I said, this rider is the mother and father of all riders because it authorizes a major reduction in States rights with no hearings whatsoever, no ability to question Briggs & Stratton, and no ability to ask them why they said on their SEC report that this would cause no financial disadvantage to the company, that California is such a small portion of their market, and they would just pass on any additional costs to the consumer.

Why would they tell the Senate or the Senator from Missouri they would move jobs to China if this passed? The statements of Briggs & Stratton make me very suspicious.

The Clean Air Act has long recognized that States with serious air pollution problems need to be able to set strong standards to protect public health. The hard-fought 1990 Clean Air Act amendments give the States the ability to regulate these off-road engines.

With respect to the California regulation, I will work with fire officials, air resources boards, the industry, and the Senator from Missouri to ensure that the final regulation is safe. But I believe it is clear that this should not be a debate about a specific State regulation. That is our problem. We will handle it. California is entirely able and capable of handling this problem. We don't need someone else to tell us what to do.

This is a debate about making sure the States have the flexibility necessary to protect the public health.

It is hard for me to understand why anyone would do this on an appropriations bill when the consequences are so dire, with over 300 premature deaths likely to be caused by worsening air pollution, or if the State moves to further tighten stationary sources and really send a whole magnitude of companies offshore.

I don't think in an appropriations bill we should take well-earned States rights away from every State in this Union to benefit one company. Remember, every other manufacturer of small engines is going along with what California is doing. They have all said they could do it. They have all said they could adapt these standards into their manufacturing. They have all said they could change. They have all said they can add adequate heat shields.

Furthermore, the pollution from these engines under 175 horsepower accounts for 17 percent of California's mobile smog emissions. This is not minor. We are talking about 17 percent of a State that has seven nonattainment areas in it, 17 percent of their pollution, and an Air Resources Board that has accepted the industry's proposal, an industry trade council, to which Briggs & Stratton belongs, submitted a proposal they could live with to the Air Resources Board. The Air Resources Board accepted it. And now Briggs & Stratton is coming back and saying: We do not agree; we will get our Senator to put a rider in a bill--with no hearing, without understanding the consequences that this provision will move the right for every single State to protect its citizens.

That is truly wrong. This morning, I ask my colleagues to stand up for their states rights. I ask them to stand up and protect public health. I ask them to oppose this special provision on this appropriations bill put there to benefit one company when every other company says they can comply.

Exhibit 1

[From the Outdoor Power Equipment Institute]

OPEI Succeeds in Dramatically Improving California Emission Regulations

For the last two years, OPEI has been working proactively

with the staff of the

California Air Resources Board (CARB) to improve proposed

catalyst-based Tier III exhaust standards for wheeled

products, as well as new evaporative emission regulations,

based on the use of carbon canisters and/or sealed fuel

tanks, as well as less-permeable fuel tank materials and fuel

lines. On August 8, 2003, CARB staff issued a proposed

regulation that would have required wheeled products to

install high-efficiency/high-heat generating catalysts in

order to meet exhaust standards that were 50% more stringent

than the current Tier II standards. CARB's August 8th

proposal would also have required all lawn and garden

equipment to be subject to shed-based performance testing to

demonstrate that the entire piece of equipment complied with

an overall evaporative/diurnal emission standard. CARB's

August 8th proposal evaporative compliance program and

exhaust stand would have: (1) imposed enormous compliance and

product integration problems for both engine companies and

OEMs; and (2) resulted in significant safety concerns as

well, principally because of the substantial heat generated

from the high-efficiency catalysts. Through written

correspondence, the U.S. Congressional House Committee on

Government Reform, the California Fire Chiefs Associations

(CFCA), the National Association of State Fire Marshals

(NASFM), and the U.S. Consumer and Product Safety Commission

(CPSC) have gone on record as strongly opposing CARB's August

8th proposal because of the unresolved safety issues with

high-efficiency/high-heat generating catalysts and

pressurized fuel systems.

In direct response to OPEI advocacy, the California Air

Resources Board (CARB) unanimously adopted on September 25th

a modified alternative framework which: (1) relaxes the

stringency of CARB Staff's proposed Tier III

exhaust standards; and (2) substantially improves the

overall general framework for the still-to-be-defined

evaporative emission regulations. The CARB Board has

adopted industry's proposed exhaust standards which are

roughly 25% less stringent for Class I engines (less than

225 cc displacement) and 33% less stringent for Class II

engines (greater than 225 cc displacement). Based on an

economic study prepared for OPEI, the compliance costs of

the industry counterproposal should be roughly one-third

less than the costs associated with the August 8th CARB

proposal. CARB's August 8th exhaust and evaporative

proposed standards would have increased the average

compliance cost for lawn mowers by $106 and the average

compliance cost for riding mowers by $321. CARB's adopted

less stringent exhaust and more flexible evaporative

program are expected to result in an average total

compliance cost increase of $73 for walk-behind-mowers and

$189 for riding mowers.

The provisions in OPEI/EMA's counterproposal (as generally

adopted by the CARB Board) also establish a much more

straightforward and less burdensome, design-based (rather

than shed-testing) program (for all products others than

walk-behind-mowers) to demonstrate compliance with the

evaporative requirements. OPEI has also persuaded CARB to

allow the use of smaller and less-expensive carbon canisters.

The provisions in OPEI's/EMA's counterproposal (as generally

adopted by the CARB Board) provide industry with much longer

lead-time compared to the August 8th CARB proposal.

Specifically, industry has more than five years of additional

lead time to achieve the ultimate evaporative emission

requirements. This additional lead time should allow

manufacturers with adequate time to develop and use new low-

permeation barriers (such as co-extruded materials) in

constructing their fuel tanks.

The Outdoor Power Equipment Institute (OPEI) is the major

international trade association representing the

manufacturers and their suppliers of consumer and commercial

outdoor power equipment such as lawnmowers, garden tractors,

utility vehicles, trimmers, edgers, chain saws, snow

throwers, tillers, leaf blowers and other related products.

Founded in 1952, the Institute is dedicated to promoting the

outdoor power equipment industry by undertaking activities

that can be pursued more effectively by an association than

by individual companies.

Madam President, I thank the Senator from Maryland for her comments. She is a superior ranking member. When she is chairman of the subcommittee, she is a superior chairman of the subcommittee. I do not know any Senator who loves her assignment more than the Senator from Maryland. If we hear one thing from her, it is about her VA-HUD bill. She does a super job. I am just so grateful for her service to our country, to our veterans, and to housing. It has just been exemplary.

I yield the floor.

Will the Senator yield?

Or we can go back and forth through the Chair if the Senator is in agreement. The problem is that because of the severe conditions in the State, 7 nonattainment zones, this is 17 percent of mobile sources. If we do not deal with it, we cannot meet the clean air standards and we jeopardize our highway funds.

There is the rub, so to speak. States do not have to follow. Clearly, States have followed, a large number of them. I don't know what else to do. Every State's air, as we have discussed with forests, Senator, is different. Pollution comes from different kinds of sources in every State. That is why this ability of a State, particularly one as large as California, fifth largest economic engine on Earth, should have the right to protect its people.

The concern is that EPA, (a) won't move fast enough; (b) will not do enough to severely reduce the pollution to enable California to come within its containment standards.

Will the Senator yield?

The bulk of our problem, I am told by the Air Resources Board, otherwise I would not know, is under 50 horsepower. So it takes that right away.

Additionally, Senator, I guess what got my dander up, was the SEC filing of a company when they say this is not a financial problem. Actually, the finances drive everything in the country. We know that very well. This is not a financial problem. They will pass on added cost. California is a small part of the market. If the company is saying that is a 10(k) I would tend to believe the 10(k). Wouldn't you?

Not at all.

Madam President, I thank the chairman of the committee with whom I have had the pleasure of working now for a number of years. I want to say this: She has done a fine job. There was a very difficult conference situation. The House and the Senate bills were very different. In the first place, we received $1 billion less in allotment to work from; that is, 14 percent less. In the second place, the House bill went in one direction and our bill went in another. It is really thanks to the chairman for her very shrewd bargaining with the House that we have a bill and that we have a bill as good as this bill is.

This is a difficult time. We try to do the most we can with barracks and schools and centers for our troops both in this country and abroad.

I want to say to those Members who had adds and had to have those adds cut that I am very sorry. We had to reconcile the two bills, and that was very difficult.

But Senator Hutchison did a super job. I thank her very much.

At a time when American troops are continuing to fight the enemy in Iraq and Afghanistan, it is imperative that Congress do its part and provide the funds necessary to support the infrastructure requirements of our service members and their families.

I wish we could do more. The 2004 military construction conference report provides $9.3 billion for a myriad of mission-critical and quality-of-life construction projects in the United States and overseas, including barracks, schools, hospitals, and family housing units. That is the good news. The bad news is that this conference report is more than $1 billion below the amount Congress appropriated for military construction last year. And yet, as

old infrastructure continues to deteriorate and new missions require new facilities, the military's infrastructure requirements are growing, not declining.

In the process of completing this bill, the Senate conferees had to balance a number of meritorious projects against available funds and military priorities, and we had to make some tough cuts. Because of the scarcity of resources made available by the administration for military construction, and the differing philosophies between the House and Senate military construction subcommittees, this has been an especially difficult year. However, the House and Senate conferees were able to bridge most of their differences and provide the best package possible under the circumstances, and I commend Senator Hutchison for her perseverance in achieving that goal.

There are many good items in this legislation. The conference report provides more than $5 billion for military construction, including $730 million for the Guard and Reserve components, nearly double what the President had requested. The bill includes $1.2 billion for barracks, $176 million for hospitals and medical facilities, and $3.8 billion for family housing construction and maintenance.

The legislation also establishes an Overseas Basing Commission to assess the adequacy of U.S. military installations overseas and to review the Defense Department's planned restructuring of the deployment of U.S. forces overseas. This could not be a more timely initiative, given the Defense Department's plans to make sweeping changes in the U.S. military footprint in Europe and Korea.

Overseas basing issues were among the most difficult that the conference had to deal with this year. In the middle of the budget cycle, the Defense Department announced a sweeping restructuring of U.S. installations in Europe and Korea. I support the Defense Department's review of our overseas installation requirements--it is probably long overdue--but there are many, many elements to a restructuring of the magnitude envisioned by the Secretary of Defense, and it is not something that should be rushed. Senator Hutchison and I have discussed this issue at length, and I believe we both have strong reservations about committing billions of U.S. taxpayer dollars to a new overseas basing structure that is a radical departure from the existing footprint without first seeing a comprehensive plan for the redeployment of U.S. troops, and the impact it will have on installations here at home.

Given the current precarious state of America's diplomatic relations with a number of our traditional allies, I also think the administration should redouble its efforts to work with governments in Europe and Korea to gain their support--both political and financial-- for such a massive reshuffling of U.S. bases before embarking on this effort.

Even with those reservations, this conference report includes $354 million for projects at enduring installations in Europe, $169 million for the NATO Security Investment Program, which provides the U.S. share of funding for NATO construction projects, and $89 million for U.S. military projects in Korea.

As I said before, I wish we had more resources to devote to infrastructure requirements for our military. The need is real, and I hope that the administration will request more money for military construction next year, so that we do not have to continue to juggle priorities and postpone funding urgently needed facilities.

Again, I thank Senator Hutchison for her leadership on this subcommittee, and I also thank the subcommittee staff, including Christina Evans and B.G. Wright of the minority staff, Dennis Ward and Sean Knowles of the majority staff, and Chris Thompson of my staff.

I urge my colleagues to support this measure, and I yield the floor.

I thank the Chair.

Mr. President, I have served as a member of the Judiciary Committee since I came to the Senate. I take the job very seriously. I try to do my homework in looking at these judges. I very deeply believe that this election provided no mandate to skew the courts to the right. I deeply believe that judges should be in the mainstream of American legal thinking, that they should have the temperament and the wisdom and the intellect to represent us well on the highest courts of our land.

What I wanted to use my time for--and the 2\1/2\ minutes will not be enough to do it--is to indicate that during the

time I have been on the Judiciary Committee how I have seen the rules and the procedures of the committee change. Those changes have not been good. They have served to divide the committee more. They begin with changing the American Bar Association's 50-year tradition of rating the qualifications of potential nominees before the President nominates them, to after the President nominates them. I would like to say why I think that is important.

There have been changes made in the so-called blue slip policy so that concerns Senators from a nominee's home State are no longer given any consideration whatsoever. There has been a reinterpretation of a longstanding committee rule, rule 4, prohibiting the majority from prematurely cutting off debate over a nominee in committee. There has been the elimination of the tradition of holding a hearing on only one controversial nominee for appellate vacancies at one time. There have been changes to committee practice----

I hope in the next hour perhaps I might have more time. I yield the floor.

Mr. President, what I was trying to do was essentially trace changes in committee procedure with the difficulties the Judiciary Committee seems to be countenancing in present days. A good deal of it has to do with blue slip policy because it was the second tradition to fall by the wayside when President Bush took office.

Under the Clinton administration, nominees were often blocked not only by home State Senators but by any single Republican Senator. At the very least throughout the years preceding the Bush administration, a home State Senator's objection to a nominee would effectively stop that nominee from moving forward.

Let me show a copy of a blue slip used during the Clinton administration, starting in January of 1999, and sent to each home State Senator. The document itself specifically states that no proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home State Senators.

That policy was followed without fail and without question. Even before 1999, during the Clinton Presidency, the blue slip said ``unless a reply is received from you within a week from this date, it will be assumed that you have no objection to this nomination.''

But still, if there was an objection from a home State Senator, that nominee simply did not move, did not get a hearing, did not get a vote, did not get confirmed. It was, in fact, a filibuster of one.

Today, there is a new blue slip policy, one in which the objections of one or even both of the home State Senators is no longer dispositive. That is part of the problem. This keeps changing, dependent on who is President. This latest policy puts Democrats on the committee and in the Senate in a difficult position.

In the past, if a home State Senator objected to a nominee, that nominee did not proceed; there would be no committee vote and no filibuster on the floor. Fifty-five Clinton nominees did not receive a hearing. This well could have been a filibuster of one. The blue slip is secret; nobody knows.

Let me name some of the Clinton nominees who were filibustered by one or two members of the Judiciary Committee. Elena Kagen, nominated to the District of Columbia Circuit, nominated by Clinton, June 17, 1999. The nomination was returned December 15, 2000. She waited 547 days without getting a hearing or a vote in the Judiciary Committee. She is currently the dean of Harvard Law School.

Lynette Norton, nominated for the District Court for the Western District of Pennsylvania. Nominated by President Clinton on April 28, 1998, in the 105th Congress. Her nomination, which was submitted to the 105th and 106th Congresses, was returned both times without a hearing. She waited 961 days without a hearing or a vote in the Judiciary Committee. Again, a successful filibuster by one or two Senators, in secret.

Barry Goode, nominated for the Ninth Circuit. Goode was nominated by President Clinton on June 24, 1998. After 3 years of inaction, President Bush withdrew his nomination, on March 19, 2001. Mr. Goode waited 998 days without ever getting either a hearing or a vote in the Judiciary Committee. A filibuster of one or two, in secret--no hearing, no opportunity to read a transcript, no opportunity to go back and read writings, speeches, or look into a nominee's background. Just because of one or two Senators, a hearing is denied; the filibuster is complete.

H. Alston Johnson, nominated for the Fifth Circuit, a Louisiana slot. President Clinton nominated Johnson on April 22, 1999. His nomination was returned December 15, 2000. He waited almost 697 days without getting a hearing or a vote in the Judiciary Committee.

This goes on and on and on.

Now, the nominees before us today had hearings. There was debate. There was a markup. There was a debate. There was a vote. We did read their background. And based on knowledge, the minority of this body made a decision that we do not wish to proceed to affirm them. We have over 40 votes to do so. This is not the vote of one person in secret preventing a hearing from taking place. Now that is as much a filibuster as this is.

You are looking at me strangely, Mr. President?

And I don't want to use the time because I know Senator Durbin--how much time do we have remaining?

Thank you.

So my point is that much of what has been happening in the Judiciary Committee has been to make it more confrontational. The blue slips are an excellent case in point. Changing when the American Bar Association ratings are known is a good point.

I remember during the Clinton administration when the ratings were

done earlier and I had to call a nominee and tell them that because they had been out of the practice of law for a period of time, they were deemed unqualified by the American Bar Association and the President was not going to move their nomination. So without embarrassment to the individual, that nomination was withdrawn.

Today, you do not get the American Bar Association's qualified or partially qualified or unqualified rating until after the nominee is on the Hill.

Now there are those who do not think the American Bar Association's evaluation is worth anything. There are those on the committee who believe it is. So there is a difference in point of view. But at least have the qualification or nonqualification done early enough so that it can save the individual humiliation and also play a major role.

Let me talk for a minute about rule IV because I think rule IV again divided our committee in a way that it did not have to be. Rule IV has been a Senate tradition. It is a rule. It is a hard and fast rule. It prevents closing off debate on a nominee unless at least one member of the minority agrees to do so. Twice this rule has been reinterpreted, really violated, and votes have been forced on nominees well before debate has ended. The committee's rule in question contains the following language:

The chairman shall entertain a nondebatable motion to bring

a matter before the committee to a vote. If there is

objection to bringing the matter to a vote without further

debate, a rollcall of the committee shall be taken and debate

shall be terminated if the motion to bring the matter to a

vote without further debate passes with 10 votes in the

affirmative, 1 of which must be cast by the minority.

That enables the minority to delay a matter. It is in the rules of the committee to give it more time. This rule is not being followed.

This is one of the only protections the minority party has in the Judiciary Committee. Without it, there might never be debate at all. A chairman could convene a markup, demand a vote, and the entire process would take 2 minutes. This is not how a deliberative body should function. More importantly, it is contrary to our rules. That is one of the reasons we are where we are today.

This rule was first instituted in 1979 when Senator Kennedy was chairman of the Judiciary Committee. It has been followed to the letter until very recently.

This is a nation of laws. We expect these laws to be obeyed even if they are just Judiciary Committee rules.

Let me give another situation, and that is ignoring traditional State vacancies. There is also a willingness by this administration to simply change the playing field if they do not like a result. Fourth Circuit nominee Claude Allen is one such instance. He is from Virginia. He has been nominated for a position that has traditionally been filled from Maryland. Why? Because President Bush became frustrated that Maryland's two Democratic Senators would not sign off on the nominees he wanted for that position. So he decided to simply go where he could find more friendly company--Virginia's two Republican Senators.

This stark determination to simply fill the bench with conservative jurists at all costs is what gives the minority in the Senate pause when considering whether to simply approve every Bush judge who comes our way or make a stand on some. We have chosen to make a stand on some. There are other attempts to ignore the minority. There are little things as well, things that add up over time to give the clear impression that the majority does not care about the needs or the will of the minority. That simply serves to create, increasingly, a bunker mentality among Democrats in today's Senate.

For instance, earlier this session, the Judiciary Committee scheduled a hearing with three very controversial circuit court nominees on a single panel for an appellate court.

May I finish my statement?

The point is, these were all controversial nominees. A controversial nominee's hearing can run 8 hours. If you schedule three, you truncate the hearing for each, and you do not allow the minority to do their due diligence in terms of their homework.

I thank the Chair and I yield the floor.