[Congressional Record Volume 141, Number 25 (Wednesday, February 8, 1995)]
[Senate]
[Pages S2332-S2341]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. HEFLIN:
  S. 369. A bill to designate the Federal Courthouse in Decatur, AL, as 
the ``Seybourn H. Lynne Federal Courthouse,'' and for other purposes; 
to the Committee on Environment and Public Works.


                  seybourn h. lynne federal courthouse

  Mr. HEFLIN. Mr. President, I rise today to introduce legislation 
designating the Federal courthouse in Decatur, AL, as the ``Seybourn H. 
Lynne Federal Courthouse.'' Judge Seybourn Harris Lynne was appointed 
to the Federal bench by President Harry S. Truman in 1946, and he is 
the most senior judge in the Federal court system. He has dedicated 
over 53 years of distinguished service to the judicial system, with 46 
of those years spent on the U.S. District Court for the Northern 
District of Alabama.
  Judge Lynne is a native of Decatur, AL, and Auburn University--at 
that time known as the Alabama Polytechnic Institute--where he 
graduated with highest distinction. He earned his law degree from the 
University of Alabama in 1930. While in law school, he served as track 
coach and assistant football coach at the university. Upon graduation 
from law school, Judge Lynne practiced law in a partnership formed with 
his father, Mr. Seybourn Arthur Lynne.
  In 1934, Seybourn Lynne was elected judge of Morgan County court. He 
remained in that position until January 1941, when he took over the 
duties of judge of the Eighth Judicial Circuit of Alabama. In December 
1942, he resigned from the bench to voluntarily enter the military. 
After earning the rank of lieutenant colonel, he was relieved of active 
duty in November 1945 and awarded the Bronze Star Medal for gallant 
service against the enemy.
  When an opening occurred on the Federal bench, Alabama Senators 
Lister Hill and John Bankhead were called up to recommend an 
appropriate individual to be considered by the White House for 
judgeship. In January 1946, President Truman appointed Judge Lynne to 
the U.S. District Court for the Northern District of Alabama. In 1953, 
he became the chief judge, and in 1973, the senior judge.
  As chief judge for the northern district of Alabama, Judge Lynne has 
been known as an outstanding leader. His knowledge and management 
skills ensured a solid, working relationship between the Federal bench 
and the bar. The northern district has not been burdened with a stale 
and over-ripe docket, and the court's caseload was kept timely and 
current, thanks to the Judge Lynne's leadership.
  In addition to his leadership responsibilities, Judge Lynne worked 
hard and carried a full caseload. In fact, even in senior status, he 
continues to work long hours and keeps a complete docket of cases. Over 
the years, Judge 
[[Page S2333]] Lynne has been recognized as an outstanding mediator who 
often was able to reconcile competing interests in order to forge a 
thoughtful compromise. A number of businesses and individuals in 
Alabama are growing and thriving today due to his abilities as an 
arbiter who was able to settle complex and difficult disputes.
  The judge has also been a notable community leader, serving in 
church, civic, and professional activities. He is a lifetime deacon, 
Bible class teacher, and a trustee of Southside Baptist Church. He has 
served both the crippled children's clinic of Birmingham and the Eye 
Foundation Hospital of Birmingham as trustee. In 1967, he served as the 
president of the University of Alabama's Alumni Association.
  Mr. President, it is indeed fitting to honor Judge Lynne for his many 
years of tireless work on behalf of the State and Federal benches. He 
shines as a living example of the late President Truman's rich legacy, 
and designating the Federal courthouse in Decatur, AL in his honor will 
remain generations to come of his service to our country.
                                 ______

      By Mr. HEFLIN:
  S. 370. A bill to provide guidelines for the membership of committees 
making recommendations on the rules of procedure appointed by the 
Judicial Conference, and for other purposes; to the Committee on the 
Judiciary.


                  U.S. Judicial Conference Legislation

  Mr. HEFLIN. Mr. President, sections 2071 through 2077 of title 28 of 
the United States Code are the cluster of statutory provisions 
authorizing the Supreme Court to issue the rules under which the 
various Federal courts function. While there have been many amendments 
to these sections over the years, the group is commonly referred to as 
the Rules Enabling Act. The original act, adopted in 1934, did not 
provide for committees to aid the Supreme Court in exercising this 
responsibility, but Chief Justice Hughes decided to appoint an advisory 
committee, whose original membership consisted of 13 members. Former 
Attorney General William Mitchell chaired the committee, which 
contained four law professors and eight very distinguished lawyers, 
including the president of the American Bar Association and the 
president of the American Law Institute. Between 1935 and the final 
promulgation of the rules in 1938, there were some changes in the 
personnel. Four practicing lawyers, two professors, and one district 
court judge became members of the committee. For the stupendous impact 
on the legal system of America, no subsequent rules have had the 
dynamic quality of those original rules.
  Over time, Congress has refined the system. The assistance of the 
committees is now regularized by statute--see 28 U.S.C. section 
2073(a)(2)--and this section of the statute provides that the various 
committees, like the early committee, ``shall consist of members of the 
bench and the professional bar and trial and appellate judges.'' The 
members are appointed by the Chief Justice of the United States.
  The rulemaking system, as spread over the various branches of the 
court system with rules of civil, criminal, appeals, evidence, 
bankruptcy, and so forth, has on the whole worked fairly well. Suffice 
it to say that today the rules pass from advisory committees to a 
central standing committee, and from there go to the Judicial 
Conference of the United States, which does in fact exercise a 
meaningful supervisory function. For example, last year the conference 
deleted a rule which had been recommended to it by the committee 
structure in the civil field. After the conference approves a rule, it 
then passes to the Supreme Court of the United States, whose members 
have somewhat differing views as to what function they can be expected 
actually to perform; there is some sentiment for letting the process 
stop with the Judicial Conference. Next, the rules pass to Congress, 
and if it does not disapprove them within 180 days, they become 
effective.
  I turn now to the exact matter at issue. I can most easily do so by 
quoting from a statement by the American Bar Association, dated March 
28, 1994, to the relevant committee of the Judicial Conference:

       In 1935, when work was begun on the Federal rules, the 
     advisory committee that did the drafting was comprised of 
     nine lawyers and four academics; there were no judges 
     involved. In 1960, when the advisory committee was 
     reconstituted, a majority of its members were practicing 
     lawyers. As late as 1981, 40 percent of the advisory 
     committee were practitioners. Today, no more than 4 members 
     of the key panel of 13 civil rules drafters are trial 
     lawyers. While the inclusion of judges in the process has had 
     undoubted benefit, the near-total exclusion of practicing 
     trial lawyers has skewed the process and its product. We are 
     not confident, as a consequence, that the process has 
     produced rules that respond to the concerns of litigants and 
     the lawyers who represent them in court. This trend must be 
     reversed and lawyers restored to a position of real 
     responsibility in the rules drafting process. In order to do 
     this most effectively, and to benefit from the positive and 
     valuable contributions of practicing lawyers to the rules 
     process, the membership on all the advisory committees should 
     be expanded to include more bar representation.

  I believe this position is well taken. Clearly a gulf has arisen 
between the rulemakers and the bar, which must live under those rules. 
In connection with the civil rules of last year, the Judiciary 
Subcommittee on Courts and Administrative Practice, which I chair, held 
hearings on the proposed rules changes, and we were overwhelmed by 
representatives of the bar strenuously objecting to several of the 
proposed rule changes. Both the House and Senate relevant committees 
concluded that the bar protests should be honored and that the rules 
should be changed; however, tangles in our own procedures prevented the 
more objectionable proposals from being deleted and all of the proposed 
changes went into effect on December 1, 1993.
  The bill I offer today will restore the composition of these 
committees which existed from the original rules in 1935 until 
approximately 1980 and which have been altered only in very recent 
times.
  This bill provides that a majority of all the rules committees shall 
be drawn from the practicing bar. It by no means diminishes the 
valuable role of academics and of judges, but it would restore to the 
bar a voice of responsibility.
  At the present time, under our statutes, the rules committees conduct 
extensive hearings. These become so crowded that individual 
presentations are necessarily brief, but they are balanced in the sense 
of giving broad scope to those who may participate. What is presented 
at those hearings, what is developed by the committee reporters and 
staff, and what is proposed by the various committee members themselves 
are all put into a mix which must be finally shaped by the committee 
itself. In my judgment, those committees are seriously lacking in 
balance. Their work product goes to the Judicial Conference, by 
definition composed entirely of judges; and assuming that the Supreme 
Court stays in the process, then to that body which is of course 
composed entirely of judges. Somewhere in the process, making rules 
under which the courts shall function and the bar of the country shall 
do its business, there should be more room for the effective voice of 
the bar itself.
  My proposal does not limit the broad discretion of the Chief Justice 
of the United States, who will continue to select the membership of the 
various committees subject only to the restriction that a majority 
should be members of the bar. I comfortably leave it to his good 
judgment as to how to achieve balanced committees.
  I offer this bill, to provide that the majority of the various 
committees shall be composed of practicing lawyers, in order to restore 
that balance, and I urge its consideration by my colleagues in the 
Senate. Mr. President, I request unanimous consent that the text of the 
bill be included in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 370

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. MEMBERSHIP OF COMMITTEES MAKING RECOMMENDATIONS ON 
                   RULES OF PROCEDURE.

       Section 2073(a)(2) of title 28, United States Code, is 
     amended by striking out the second sentence and inserting in 
     lieu thereof ``Each such committee shall have a majority of 
     members of the practicing bar, and also shall have members of 
     the bench (including trial and appellate judges) and 
     academics.''.

[[Page S2334]]

      By Mr. HEFLIN:
  S. 371. A bill to make administrative and jurisdictional amendments 
pertaining to the United States Court of Federal Claims and the judges 
thereof in order to promote efficiency and fairness, and for other 
purposes; to the Committee on the Judiciary.


                   FEDERAL CLAIMS ADMINISTRATION ACT
  Mr. HEFLIN. Mr. President, I rise today to introduce legislation to 
amend title 28 of the United States Code to improve the Federal Claims 
litigation process before the United States Court of Federal Claims and 
to assist the court in providing complete justice in cases that come 
before it. This legislation will also insure fair treatment for the 
regular and senior judges of the court by providing certain benefits 
equivalent to those available to other Federal trial judges. Enactment 
of this bill will provide the citizens of the United States with a more 
fair and complete remedy and the United States with a more effective 
forum for the resolution of claims against the Government.
  The Court of Federal Claims is the Nation's primary forum for 
monetary claims against the Federal Government. The court has 
jurisdiction to entertain suits for money against the United States 
that are founded upon the Constitution, an act of Congress, an 
Executive order, a regulation of an executive department, or contract 
with the United States and that do not sound in tort. The court hears 
major patent cases, Government contract suits, tax refund suits, fifth 
amendment takings cases and Indian claims, among other types of 
lawsuits. This national court and its judges hear cases in every State 
and territory of the United States for the convenience of the 
litigants, the witnesses and the Government. This benefits our judicial 
system and Nation by making the promise of fair dealing a reality.
  The legislation that I am introducing today will make administrative 
and jurisdictional changes with the result that the court's resources 
are preserved and utilized to the maximum extent and the jurisdiction 
of the court is clarified for the benefit of all. The ultimate result 
will be a more user-friendly forum which gets to the merits of 
controversies faster. In a moment, I will comment on all of the various 
sections of the bill, but first I would like to take this opportunity 
to comment on the need for the jurisdictional provisions of the bill.
  A potential litigant should be able to examine chapter 91 of title 
28, United States Code, which commences with the Tucker Act, section 
1491, and to determine whether the court has jurisdiction of his claim 
and what relief is available. Of course, there are miscellaneous other 
provisions extending jurisdiction to the Court of Federal Claims, for 
example, 28 U.S.C. section 1346(a)(1), tax refund suits; 42 U.S.C. 
section 300aa-11, Vaccine-injury compensation cases; and 50 U.S.C. app. 
section 1989b-4(h), Japanese internment compensation appeals.
  Chapter 91 of title 28 should be sufficiently clear so that even 
lawyers throughout the country who rarely handle claims against the 
Government could consult the code and find reliable answers. 
Regrettably, this is not the current situation. Instead, a typical 
claimant is met with a barrage of assertions that the court lacks 
jurisdiction to address the claim and/or lacks power to award relief 
requested even in those cases where jurisdiction is conceded.
  The amendments relating to jurisdiction in section 8 of the bill will 
result in clarity that will make access to the courts less costly by 
permitting the court to get to the real merits of the cases, rather 
than waste resources dealing with
 preliminary and peripheral issues, and these changes will result in 
real civil justice reform.

  The legislation that I am introducing today will repeal 28 U.S.C. 
1500, which has heretofore denied Court of Federal Claims jurisdiction 
over any claim with respect to which the plaintiff has pending a suit 
in any other court. Although, on its face, section 1500 may appear to 
prevent wasteful duplication, in practice it has had precisely the 
opposite effect. Elimination of this jurisdictional bar to suits 
related to cases in other courts will eliminate much wasteful 
litigation over nonmerits issues and will leave the court free to deal 
with potential duplication through the discretionary means of staying 
arguable duplicative litigation, if the matter is being addressed in 
another forum, or of proceeding with the case, if the matter appears to 
be stalled in the other forum.
  As currently construed section 1500 does not permit duplication of 
suits even if the Court of Federal Claims action was filed first and 
has received concentrated attention over a number of years. This 
situation can result in a major waste of resources by litigants and the 
court. Repeal of section 1500 will also allow the plaintiff to protect 
itself against the running of the statue of limitations by the wrong 
initial choice in this confusing area.
  In this day of electronic communication, computer tracking of cases 
and centralized docket control by the justice department, the 
Government will always know if a related claim is pending in two 
different courts and can request exercise of discretion by one or both 
courts to prevent duplicative litigation. Repeal of section 1500 would 
save untold wasted effort litigating over such marginal issues as 
whether a claim in the district court really is the same as one in the 
Court of Federal Claims.
  Further, in cases which constitute review of administrative agency 
action, the potential litigant should be able to know with absolute 
certainty what standard of review will be applied. In the proposed 
bill, the standard of review in the Administrative Procedure Act of 
1946 will be made explicitly applicable. Although one would naturally 
assume from the face of 5 U.S.C. section 706 that these standards 
already apply in the Court of Federal Claims, there is some doubt and 
confusion over precisely which standards apply and the source of such 
standards. The proposed bill will end this confusion so that potential 
and actual litigants can know with certainty which standards will apply 
and where to find them.
  No legitimate interests are served by having the parties guess and 
litigate about the extent of the court's jurisdiction and powers or 
over the standard of review applicable in agency-review cases. 
Enactment of this bill will end such waste and keep everyone's focus on 
the merits of a given case and effective steps toward resolution of 
controversy. It will instill confidence that in the Court of Federal 
Claims, and every litigant, including the Government, will receive 
prompt and efficient justice.
  Let me provide a brief summary of my bill:
  Section 1 states that this act shall be cited as the ``Court of 
Federal Claims Administration Act.''
  Section 2 will provide that in the event a judge is not reappointed, 
the judge will nonetheless remain in regular active status until his or 
her successor is appointed and takes office, thus insuring that the 
court will always have a full compliment of regular active judges.
  Section 3 will provide that judges of the Court of Federal Claims 
shall have authority to serve on the territorial courts when, and only 
when, their services are needed and are requested by or on behalf of 
such courts.
  Section 4 will simply clarify what is already assumed by all 
concerning the official duty station of retired judges on senior 
status. It will provide that the place where a retired judge of the 
Court of Federal Claims maintains his or her actual residence shall be 
deemed to be his or her official duty station. This is consistent with 
the current provision applicable to other Federal trial courts.
  Section 5 will provide for Court of Federal Claims membership on the 
Judicial Conference of the United States. Currently, there is no Court 
of Federal Claims representation on the judicial conference, even 
though the court is within the jurisdiction of the conference and 
derives its funding and administrative support from the administrative 
office of the U.S. courts which in turn operates under the supervision 
and direction of the judicial conference.
  Section 6 will provide that the chief judge of the Court of Federal 
Claims may call periodic judicial conferences, which will include 
active participation of the bar, to consider the business of the court 
and improvements in the administration of justice in the court. This 
will make explicit the authority 
[[Page S2335]] which has traditionally been assumed and exercised by 
the court in conducting its business.
  Section 7 will amend section 797 of title 28 to provide that the 
chief judge of the Court of Federal Claims is authorized to recall a 
formerly disabled judge who retires under the disability provisions of 
court's judicial retirement system if there is adequate demonstration 
of recovery from disability. This provision will match one currently 
applicable to formerly disabled judges of other Federal courts and will 
ensure maximum use of all available resources to deal with the court's 
caseload.
  Section 8 makes several modifications to statutory provisions 
pertaining to Court of Federal Claims jurisdiction in order to save 
recurring litigation regarding where claims should be filed, to define 
what judicial powers the court may exercise, and to specify what 
standards of review will apply in certain cases. Together, these 
changes will save untold resources of litigants and the court, and will 
make the court a more efficient forum for lawyers and parties to 
litigate their monetary claims against the Government.
  In addition, this section would extend to the court ancillary 
jurisdiction under the Federal Tort Claims Act when such a claim is 
directly related to one otherwise plainly within the subject-matter 
jurisdiction of the court. This will avoid wasteful and duplicative 
litigation by authorizing the Federal Claims Court to address and 
dispose of the entire controversy in cases within its jurisdiction when 
a related claim, although sounding in tort, may fairly be deemed to 
arise from the same operative facts as the primary claim within the 
court's jurisdiction.
  Section 9 will ensure that Court of Federal Claims judges over age 65 
who are on senior status will receive the same treatment as other 
Federal trial judges on senior status insofar as Social Security taxes 
and payments are concerned.
  Section 10 amends title 28 to clarify that the judges of the Court of 
Federal Claims are judicial officers eligible for coverage under 
annuity, insurance, and other programs available under title 5 of the 
United States Code and will extend to those judges the opportunity to 
continue Federal life insurance coverage after retirement in the same 
manner as all other Federal trial judges in the judicial branch.
  In summary, this bill will make the Court of Federal Claims more 
efficient and productive, resulting in benefits to the litigating 
public, the Government and the country as a whole. The United States 
Court of Federal Claims is an important part of the Federal court 
system. The creation of this court by the Congress responds to a very 
basic democratic imperative--fair dealing by the Government in disputes 
between the Government and the private citizen. As Abraham Lincoln 
noted: ``It is as much the duty of the Government to render prompt 
justice against itself, in favor of citizens, as it is to administer 
the same, between private individuals.'' These amendments will allow it 
to better comply with its mandate and assist it in providing improved 
service to litigants and to the entire country.
  I urge my colleagues to support this legislation.
  Mr. President, I request unanimous consent that the text of the bill 
be included in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
                                 S. 371

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Court of Federal Claims 
     Administration Act of 1995''.

     SEC. 2. EXTENDED SERVICE.

       Section 172(a) of title 28, United States Code, is amended 
     by adding at the end thereof the following new sentence: ``If 
     a judge is not reappointed, such judge may continue in office 
     until a successor is appointed and takes office.''.

     SEC. 3. SERVICE ON TERRITORIAL COURTS.

       Section 174 of title 28, United States Code, is amended by 
     adding at the end thereof the following new subsection:
       ``(c) Upon request by or on behalf of a territorial court 
     and with the concurrence of the chief judge of the Court of 
     Federal Claims and the chief judge of the judicial circuit 
     involved based upon a finding of need, judges of the Court of 
     Federal Claims shall have authority to conduct proceedings in 
     the district courts of territories to the same extent as duly 
     appointed judges of those courts.''.

     SEC. 4. RESIDENCE OF RETIRED JUDGES.

       Section 175 of title 28, United States Code, is amended by 
     adding at the end thereof the following new subsection:
       ``(c) Retired judges of the Court of Federal Claims are not 
     subject to restrictions as to residence. The place where a 
     retired judge maintains the actual abode in which such judge 
     customarily lives shall be deemed to be the judge's official 
     duty station for the purposes of section 456 of this 
     title.''.

     SEC. 5. JUDICIAL CONFERENCE PARTICIPATION.

       Section 331 of title 28, United States Code, is amended--
       (1) by inserting in the first sentence of the first 
     undesignated paragraph ``the chief judge of the United States 
     Court of Federal Claims,'' after ``Court of International 
     Trade,'';
       (2) by inserting in the first sentence of the third 
     undesignated paragraph ``the chief judge of the United States 
     Court of Federal Claims,'' after ``the chief judge of the 
     Court of International Trade,''; and
       (3) by inserting in the first sentence of the third 
     undesignated paragraph ``or United States Court of Federal 
     Claims,'' after ``any other judge of the Court of 
     International Trade,''.

     SEC. 6. COURT OF FEDERAL CLAIMS JUDICIAL CONFERENCE.

       (a) In General.--Chapter 15 of title 28, United States 
     Code, is amended by adding at the end thereof the following 
     new section:

     ``Sec. 336. Judicial Conference of the Court of Federal 
       Claims

       ``(a) The chief judge of the Court of Federal Claims is 
     authorized to summon annually the judges of such court to a 
     judicial conference, at a time and place that such chief 
     judge designates, for the purpose of considering the business 
     of such court and improvements in the administration of 
     justice in such court.
       ``(b) The Court of Federal Claims shall provide by its 
     rules or by general order for representation and active 
     participation at such conference by members of the bar.''.
       (b) Technical and Conforming Amendments.--The table of 
     sections of chapter 15 is amended by adding the following new 
     item:
``336. Judicial Conference of the Court of Federal Claims.''.
     SEC. 7. RECALL OF JUDGES ON DISABILITY STATUS.

       Section 797(a) of title 28, United States Code, is 
     amended--
       (1) by inserting ``(1)'' after ``(a)''; and
       (2) by adding at the end thereof the following new 
     paragraph:
       ``(2) Any judge of the Court of Federal Claims receiving an 
     annuity pursuant to section 178(c) of this title (relating to 
     disability) who, in the estimation of the chief judge, has 
     recovered sufficiently to render judicial service, shall be 
     known and designated as a senior judge and may perform duties 
     as a judge when recalled pursuant to subsection (b) of this 
     section.''.

     SEC. 8. JURISDICTION.

       (a) Claims Against the United States Generally.--Section 
     1491(a) of title 28, United States Code, is amended--
       (1) in paragraph (1)--
       (A) by inserting ``for monetary relief'' after ``any claim 
     against the United States''; and
       (B) by striking out ``or for liquidated or unliquidated 
     damages'';
       (2) in paragraph (2)--
       (A) by inserting ``(A) In any case within its jurisdiction, 
     the Court of Federal Claims shall have the power to grant 
     injunctive and declaratory relief when appropriate.'' after 
     ``(2)'';
       (B) by striking out the last sentence; and
       (C) by adding at the end thereof the following new 
     subparagraph:
       ``(B) The Court of Federal Claims shall have jurisdiction 
     to render judgment upon any claim by or against, or dispute 
     with, a contractor arising under section 10(a)(1) of the 
     Contract Disputes Act of 1978 (41 U.S.C. 609(a)(1)), 
     including a dispute concerning termination of a contract, 
     rights in tangible or intangible property, compliance with 
     cost accounting standards, and other nonmonetary 
     disputes on which a decision of the contracting officer has 
     been issued under section 6 of that Act (41 U.S.C. 605).''; 
     and
       (3) by adding at the end thereof the following new 
     paragraphs:
       ``(4) In cases otherwise within its jurisdiction, the Court 
     of Federal Claims shall also have ancillary jurisdiction, 
     concurrent with the courts designated in section 1346(b) of 
     this title, to render judgment upon any related tort claim 
     authorized by section 2674 of this title.
       ``(5) In cases within the jurisdiction of the Court of 
     Federal Claims which constitute judicial review of agency 
     action, the provisions of section 706 of title 5 shall 
     apply.''.
       (b) Pending Claims.--(1) Section 1500 of title 28, United 
     States Code, is repealed.
       (2) The table of sections for chapter 91 of title 28, 
     United States Code, is amended by striking out the item 
     relating to section 1500.

     SEC. 9. SENIOR STATUS PROVISION.

       Section 178 of title 28, United States Code, is amended by 
     adding at the end thereof the following new subsection:
       ``(m) For the purposes of applying section 3121(i)(5) of 
     the Internal Revenue Code of 1986 and section 209(h) of the 
     Social Security Act (42 U.S.C. 409(h)), the annuity of a 
     Court of 
     [[Page S2336]] Federal Claims judge on senior status after 
     age 65 shall be deemed to be an amount paid under section 
     371(b) of this title for performing services under the 
     provisions of section 294 of this title.''.

     SEC. 10. MISCELLANEOUS PROVISION.

       (a) In General.--Chapter 7 of title 28, United States Code, 
     is amended by adding after section 178 the following new 
     section:

     ``Sec. 179. Court of Federal Claims judges as officers of the 
       United States

       ``(a) For the purpose of applying the provisions of title 
     5, a judge of the United States Court of Federal Claims shall 
     be deemed to be an ``officer'' as defined under section 
     2104(a) of title 5.
       ``(b) For the purpose of applying chapter 87 of title 5, a 
     judge of the United States Court of Federal Claims who is 
     retired under section 178 of this title shall be deemed to be 
     a judge of the United States as defined under section 
     8701(a)(5)(ii) of title 5.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 7 of title 28, United States Code, is 
     amended by adding at the end thereof the following new item:
``179. Court of Federal Claims judges as officers of the United 
              States.''.
     SEC. 11. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect on the date of the enactment of this Act.
                                 ______

      By Mr. HEFLIN:
  S. 372. A bill to provide for making a temporary judgeship for the 
northern district of Alabama permanent, and creating a new judgeship 
for the middle district of Alabama; to the Committee on the Judiciary.


            JUDGESHIPS FOR U.S. DISTRICT COURTS LEGISLATION

  Mr. HEFLIN. Mr. President, I rise today to offer a bill to provide 
for making a temporary judgeship for the northern district of Alabama 
permanent, and creating a new judgeship for the middle district of 
Alabama. The need for these judgeships has arisen pursuant to an 
increase in cases filed in both of these districts, as well as the 
filings as projected in the future. Further, the need is intensified by 
the judges, who are currently in a senior status in these districts, 
reducing their caseloads as they move toward full retirement.
  Currently the 2 districts are served by 10 permanent district judges; 
7 in the northern district and 3 in the middle district. The bill I am 
introducing would make permanent a temporary judgeship, authorized in 
1990, in the northern district. This conversion from a temporary 
judgeship to a permanent position was approved by the Judicial 
Conference in September 1994. The addition of one more permanent 
position to the middle district of Alabama's district court is 
warranted, among other factors, due to the increased case filings which 
have been experienced in that district over the past several years.
  In the past few years the increasing case filings and caseloads of 
all of the district court judges has been managed well by the courts 
using their available judicial resources. As the senior judges take on 
less cases, the remaining judges find themselves in situations in which 
they find it more and more difficult to manage their growing dockets in 
a timely manner. This not only affects the day-to-day operations of the 
court, but it also will inevitably affect litigants, by lengthening the 
time for disposition of a case, from what is now one of the fastest 
disposition periods in the Nation to a significantly slower pace.
  I would like to identify several factors which are similar in both 
districts and will result in loss of judicial expediency unless 
addressed. First, the reduced role of senior judges has increased the 
actual volume of cases which each district judge must handle; each 
district judge will have less time available to spend on each assigned 
case. Second, the increasing number of case filings will further reduce 
the capacity of the judges to devote time and attention to each case. 
And finally, both districts forecast an increase in the total number of 
criminal felony cases as well as the number of multidefendant criminal 
felony cases. To maintain the outstanding case management that 
litigants have come to expect in these courts, and rightly deserve in 
the all Federal courts, the factors stated above can be dealt with by 
making permanent the position in the northern district and by creating 
one new position for the middle district.
  Although these two districts have many concerns which are similar, 
they also are facing problems unique to each respective court. In the 
northern district of Alabama, we are asking that the temporary 
judgeship, authorized in 1990, be made permanent. This district had the 
highest pending cases per judge, according to the latest official data. 
Furthermore, it had the highest civil filings in the Nation for the 12-
month period ending in September 1993. This high number of case filings 
along with the previous caseloads, actually support a request for a 
ninth judgeship, but we believe that the conversion of the temporary 
judgeship to the eight permanent judgeships will enable the district to 
competently handle its caseload.
  The middle district faces substantial problems in caseloads per 
judge. For the year ending June 30, 1994, the weighted case filing per 
judge had increased to 556, representing a 12.5-percent increase over a 
5-year period. Weighted case filings of 556 cases per judge places that 
court second within the eleventh circuit and ninth in the Nation. 
During the statistical year ending June 30, 1994, the judges of the 
middle district averaged 650 case terminations per judge, which places 
that court first in the circuit and first in the Nation. With only 
three full-time judges and the near full retirement of the two senior 
judges the middle district may soon face dire consequences.
  The judges in both the middle and northern districts of Alabama have 
proven, that even with what some court would consider impossible 
caseloads, they have had the ability to dispose of cases in periods 
equal or better than the national average. To allow these district 
courts to continue their work and avoid substantial impairment in their 
ability to deliver justice we need to be assured that they have the 
necessary judicial resources. My bill, which provides for a fourth 
judgeship in the middle district and conversion of the northern 
district's temporary judgeship to a permanent position, supplies these 
resources.
                                 ______

      By Mr. BREAUX:
  S. 373. A bill to amend the Solid Waste Disposal Act to provide for 
State management of solid waste, to reduce and regulate the interstate 
transportation of solid wastes, and for other purposes; to the 
Committee on Environment and Public Works.


     THE STATE REGULATION AND MANAGEMENT OF SOLID WASTE ACT OF 1995

 Mr. BREAUX. Mr. President, I am today introducing--for the fourth 
Congress in a row--legislation that would grant States the authority to 
regulate the flow of solid waste across their borders and meet the 
environmental objectives of increased recycling and waste reduction.
  In 1978, the U.S. Supreme Court ruled that the shipment of garbage 
across State lines for the purposes of disposal is a form of commerce 
and thus entitled to protection under the commerce clause of the 
Constitution. Due to the fact that States cannot control shipments of 
imported garbage, the States have no ability to plan for the disposal 
of solid waste generated within their own borders or to preserve 
landfill capacity for their own future needs. The only way for States 
to regulate the flow of garbage is for Congress to explicitly grant 
them that authority. That is what the legislation I am introducing 
today would do.
  For years now, the United States overall landfill capacity has been 
shrinking. From 1988 to 1991 the number of operating landfills dropped 
from 8,000 to 5,812, a 27-percent decrease. At the same time, the 
amount of solid waste that is shipped across State borders for disposal 
has grown. The more heavily populated regions of the country produce 
more solid waste and have less capacity for additional landfill sties. 
These States have been shipping solid wastes out of their own 
jurisdictions and into landfills in States, like my State of Louisiana, 
which, for the moment, have some capacity to receive it. However, this 
capacity will continue to disappear so long as States have no ability 
to control the amount of waste that comes into their territory for 
disposal.
  My State of Louisiana has had some experiences of its own related to 
the interstate shipment of municipal wastes. The most infamous incident 
was that of the so-called poo poo choo choo that brought 63 carloads of 
municipal waste--in this case stinking 
[[Page S2337]] sewage sludge--from Baltimore to railroad sidings near 
Shriever, Labadieville, and Donaldsonville, LA in 1989. These 63 open 
cars full of rehydrated sludge were to be disposed of in a landfill. 
Instead, they sat on sidings near these towns for weeks. Finally, the 
private landfill operator in question found an alternative disposal 
site and the train cars headed out of town.
  The legislation I am introducing today would provide States with the 
authority they need to regulate incoming shipments of garbage in return 
for a commitment by the States to plan for the disposal of their own 
wastes and a commitment to increased recycling and waste reduction 
efforts. Each State would be required to develop a solid waste 
management plan that would include a 20-year projection of how solid 
wastes generated within their own borders would be managed. The plan 
must demonstrate that solid waste will be managed in accordance with 
the following priorities; First, States must take steps to reduce the 
amount of waste generated within their own borders; second, States must 
encourage recycling, energy and resource recovery. Only as a third and 
final option should States consider landfills, incinerators and other 
options of disposal.
  Each State will be required to demonstrate that is complies with this 
waste management hierarchy and has issued all appropriate permits for 
capacity sufficient to manage their own solid wastes for a rolling 
period of 5 years.
  The Federal Government, working with the States, will be required to 
provide technical and financial assistance to local communities to meet 
the requirements of the plan. Any out-of-State wastes must be managed 
in accordance with State plans and may not impede the ability of States 
to manage their own solid waste.
  Only after a State has an approved plan in place, will it be granted 
the authority to refuse to accept waste from out-of-State sources and 
to charge higher disposal fees for a load of garbage based on its State 
of origin. Half of the proceeds from high out-of-State fees will go the 
locality where the garbage is being disposed of and may only be used 
for solid waste management activities.
  Mr. President, a number of similar bills have been introduced on this 
same subject over the last several years. Most of these measures did 
not adequately address all of the issues surrounding the disposal of 
solid waste and shipments across State borders. I strongly believe that 
a planning process and the priorization of waste reduction, recycling 
and disposal options on a State-by-State basis should be a part of the 
solution to the ongoing controversy over interstate garbage shipments.
  I hope that we will be able to finally dispose of this issue this 
year. I encourage my colleagues to address it in the comprehensive 
manner outlined in this legislation. I ask unanimous consent that a 
copy of the bill appear in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
                                 S. 373

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``State Regulation and 
     Management of Solid Waste Act of 1995''.
                      TITLE I--GENERAL AMENDMENTS

     SEC. 101. FINDINGS.

       (a) Solid Waste.--Section 1002(a)(4) of the Solid Waste 
     Disposal Act (42 U.S.C. 6901(a)) is amended to read as 
     follows:
       ``(4) that while the collection and disposal of solid waste 
     should continue to be primarily the function of State, 
     regional, and local agencies, the problems of waste disposal 
     described in this subsection have become a matter national in 
     scope and in concern and necessitate Federal action by--
       ``(A) requiring that each State develop a program for the 
     management and disposal of solid waste generated within each 
     State by the year 2015;
       ``(B) authorizing each State to restrict the importation of 
     solid waste from a State of origin for purposes of solid 
     waste management other than transportation; and
       ``(C) providing financial and technical assistance and 
     leadership in the development, demonstration, and application 
     of new and improved methods and processes to reduce the 
     quantity of waste and unsalvageable materials and to provide 
     for proper and economical solid waste disposal practices.''.
       (b) Environment and Health.--Section 1002(b) of the Solid 
     Waste Disposal Act (42 U.S.C. 6901(b)) is amended--
       (1) by striking ``and'' at the end of paragraph (7);
       (2) by striking paragraph (8) and inserting the following:
       ``(8) alternatives to existing methods of land disposal 
     must be developed, because it is estimated that 80 percent of 
     all permitted landfills will close by the year 2015; and''; 
     and
       (3) by adding at the end the following new paragraph:
       ``(9) the transportation of solid waste long distances 
     across country for purposes of solid waste management and, in 
     some cases, in the same vehicles that carry consumer goods is 
     harmful to the public health and measures should be adopted 
     to ensure public health is protected when the goods are 
     transported in the same vehicles as solid waste is 
     transported.''.

     SEC. 102. OBJECTIVES AND NATIONAL POLICY.

       (a) Objectives.--Section 1003(a) of the Solid Waste 
     Disposal Act (42 U.S.C. 6902(a)) is amended--
       (1) by striking paragraph (1) and inserting the following:
       ``(1) ensuring that each State has a program to manage 
     solid waste generated within its borders and providing 
     technical and financial assistance to State and local 
     governments and interstate agencies for the development of 
     solid waste management plans (including recycling, resource 
     recovery, and resource conservation systems) that will 
     promote improved solid waste management techniques (including 
     more effective organization arrangements), new and improved 
     methods of collection, separation, and recovery of solid 
     waste, and the environmentally safe disposal of 
     nonrecoverable residues;'';
       (2) by striking ``and'' at the end of paragraph (10);
       (3) by striking the period at the end of paragraph (11) and 
     inserting a semicolon; and
       (4) by adding at the end the following new paragraphs:
       ``(12) promoting the use of regional and interstate 
     agreements for economically efficient and environmentally 
     sound solid waste management practices, and for construction 
     and operation of solid waste recycling and resource recovery 
     facilities; and
       ``(13) promoting recycling and resource recovery of solid 
     waste through the development of markets for recycled 
     products and recovered resources.''.

     SEC. 103. DEFINITIONS.

       Section 1004 of the Solid Waste Disposal Act (42 U.S.C. 
     6903) is amended--
       (1) by striking paragraph (12) and inserting the following:
       ``(12) The term `manifest' means the form used for 
     identifying the quantity, composition, and the origin, 
     routing, and destination of solid and hazardous waste during 
     its transportation from the point of generation to the point 
     of disposal, treatment, storage, recycling, and resource 
     recovery.'';
       (2) in paragraph (28), by inserting ``recycling, resource 
     recovery,'' before ``treatment,'';
       (3) in paragraph (29)(C), by inserting ``recycling,'' 
     before ``treatment'';
       (4) in paragraph (32)--
       (A) by striking ``means any'' and inserting ``means--
       ``(A) any'';
       (B) by striking the period at the end and inserting ``; 
     and''; and
       (C) by adding at the end the following:
       ``(B) refuse (or refuse-derived fuel) collected from the 
     general public more than 30 percent of which consists of 
     paper, wood, yard wastes, food waste, plastics, leather, 
     rubber, and other combustible materials and noncombustible 
     materials such as glass and metal including household wastes, 
     sludge and waste from institutional, commercial, and 
     industrial sources, but does not include industrial process 
     waste, medical waste, hazardous waste, or `hazardous 
     substance', as those terms are defined in section 1004 or in 
     section 101 of the Comprehensive Environmental Response, 
     Compensation and Liability Act (42 U.S.C. 6901).''; and
       (5) by adding at the end the following new paragraphs:
       ``(42) The term `recycling' means any use, reuse or 
     reclamation of a solid waste.
       ``(43) The term `State of final destination' means a State 
     that authorizes a person to transport solid waste from a 
     State of origin into the State for purposes of solid waste 
     management other than transportation.
       ``(44) The term `State of origin' means a State that 
     authorizes a person to transport solid waste generated within 
     its borders to a State of final destination for purposes of 
     solid waste management other than transportation.''.
              TITLE II--STATE SOLID WASTE MANAGEMENT PLANS

     SEC. 201. OBJECTIVES OF SUBTITLE D.

       Section 4001 of the Solid Waste Disposal Act (42 U.S.C. 
     6941) is amended to read as follows:

     ``SEC. 4001. OBJECTIVES OF SUBTITLE.

       ``(a) In General.--The objectives of this subtitle are to 
     reduce to the maximum extent practicable the quantity of 
     solid waste generated and disposed of prior to the year 2015 
     by requiring each State to develop a program that--
       ``(1) meets the objectives set out in section 102;
     [[Page S2338]]   ``(2) reduces the quantity of solid waste 
     generated in the State and encourages resource conservation; 
     and
       ``(3) facilitates the recycling of solid waste and the 
     utilization of valuable resources, including energy and 
     materials that are recoverable from solid waste.
       ``(b) Means.--The objectives stated in subsection (a) are 
     to be accomplished through--
       ``(1) Federal guidelines and technical and financial 
     assistance to States;
       ``(2) encouragement of cooperation among Federal, State, 
     and local governments and private individuals and industry;
       ``(3) encouragement of States to enter into interstate or 
     regional agreements to facilitate environmentally sound and 
     efficient solid waste management; and
       ``(4) approval and oversight of the implementation of solid 
     waste management plans.''.

     SEC. 202. STATE SOLID WASTE MANAGEMENT PLANS.

       (a) Minimum Requirements.--Section 4003 of the Solid Waste 
     Disposal Act (42 U.S.C. 6943) is amended--
       (1) in subsection (a)--
       (A) in the matter preceding paragraph (1), by striking 
     ``each State plan must comply with the following minimum 
     require- ments--'' and inserting ``each State 
     Solid Waste Management Plan must comply with the following 
     minimum requirements:'';
       (B) by striking paragraphs (5) and (6) and inserting the 
     following:
       ``(5) The plan shall identify the quantities, types, 
     sources, and characteristics of solid wastes that are 
     reasonably expected to be generated within the State or 
     transported to the State from a State of origin during each 
     of the 20 years following the year 1995 and that are 
     reasonably expected to be managed within the State during 
     each of those years.
       ``(6) The plan shall provide that the State acting 
     directly, through authorized persons, or through interstate 
     or regional agreements, will ensure the availability of solid 
     waste management capacity to manage the solid waste described 
     in paragraph (5) in a manner that is environmentally sound 
     and that meets the objectives of this subtitle.''; and
       (C) by adding at the end the following new paragraphs:
       ``(7) When identifying the quantity of solid waste 
     management capacity necessary to manage the solid waste 
     described in paragraph (5), the State shall take into account 
     solid waste management agreements in effect upon the date of 
     enactment of this paragraph that exist between a person 
     operating within the State and any person in a State or 
     States contiguous with the State.
       ``(8) The plan shall provide for the identification and 
     annual certification to the Administrator concerning--
       ``(A) how the State has met the objectives of this 
     subtitle;
       ``(B) whether the State has issued permits consistent with 
     all the requirements of this Act for capacity sufficient to 
     manage the solid waste described in paragraph (5) for an 
     ensuing 5-year period; and
       ``(C) identification and approval by the State of the sites 
     for capacity described in paragraph (5) for an ensuing 8-year 
     period.
       ``(9) The plan shall provide that all solid waste 
     management facilities located in the State meet all 
     applicable Federal and State laws and for the enactment of 
     such State and local laws as may be necessary to fulfill the 
     purposes of this Act.
       ``(10)(A) The plan shall provide for a program that 
     requires all solid waste management facilities located or 
     operating in the State to register with the State and that 
     only registered facilities may manage solid waste described 
     in paragraph (5).
       ``(B) Registration of facilities for the purpose of 
     subparagraph (A) shall at a minimum include--
       ``(i) the name and address of the owner and operator of the 
     facility;
       ``(ii) the address of the solid waste management facility;
       ``(iii) the type of solid waste management used at the 
     facility; and
       ``(iv) the quantities, types, and sources of waste to be 
     managed by the facility.
       ``(11) The plan shall provide for technical and financial 
     assistance to local communities to meet the requirement of 
     the plan.
       ``(12) The plan shall--
       ``(A) specify the conditions under which the State will 
     authorize a person to accept solid waste from a State of 
     origin for purposes of solid waste management other than 
     transportation; and
       ``(B) ensure that the waste is managed in accordance with 
     the plan and that acceptance of the waste will not impede the 
     ability of the State of final destination to manage solid 
     waste generated within its borders.''; and
       (2) by adding at the end the following new subsection:
       ``(e) Prohibition.--Upon the expiration of 180 days after 
     the date of approval of a State's Solid Waste Management Plan 
     required by this section or on the date on which a State plan 
     becomes effective pursuant to section 4007(d), it shall be 
     unlawful for a person to manage solid waste within that 
     State, to transport solid waste generated in that State to a 
     State of final destination, and to accept solid waste from a 
     State of origin for purposes of solid waste management other 
     than transportation unless the activities are authorized and 
     conducted pursuant to the approved plan.''.
       (b) Procedure.--Section 4006 of the Solid Waste Disposal 
     Act (42 U.S.C. 6946) is amended by adding at the end the 
     following new subsection:
       ``(d) Submission of Plans.--Not later than 4 years after 
     the date of enactment of this subsection, each State shall, 
     after consultation with the public, other interested parties, 
     and local governments, submit to the Administrator for 
     approval a plan that complies with the requirements of 
     section 4003(a).''.
       (c) Approval.--Section 4007 of the Solid Waste Disposal Act 
     (42 U.S.C. 6947) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1) and inserting the following:
       ``(1) it meets the requirements of section 4003(a);''.
       (B) by striking the period at the end of paragraph (2) and 
     inserting ``; and'';
       (C) by inserting after paragraph (2) the following new 
     paragraph:
       ``(3) it furthers the objectives of section 4001.''; and
       (D) by striking the third sentence and inserting the 
     following: ``Upon receipt of each State's certification 
     required by section 4003(a)(8), the Administrator shall 
     determine whether the approved plan is in compliance with 
     section 4003, and if the Administrator determines that 
     revision or corrections are necessary to bring the plan into 
     compliance with the minimum requirements promulgated under 
     section 4003 (including new or revised requirements), the 
     Administrator shall, after notice and opportunity for public 
     hearing, withhold approval of the plan.''; and
       (2) by adding at the end the following new subsection:
       ``(d) Failure of the Administrator To Act on a State 
     Plan.--If the Administrator fails to approve or disapprove a 
     plan within 18 months after a State plan has been submitted 
     for approval, the State plan as submitted shall go into 
     effect at the expiration of 18 months after the plan was 
     submitted, subject to review by the Administrator and 
     revision in accordance with section 4007(a).''.
                TITLE III--INTERSTATE TRANSPORT OF WASTE

     SEC. 301. AUTHORITY OF STATES TO CONTROL INTERSTATE SHIPMENT 
                   OF SOLID WASTE.

       Subtitle D of the Solid Waste Disposal Act (42 U.S.C. 6941 
     et seq.) is amended by adding at the end the following new 
     sections:

     ``SEC. 4011. AUTHORITY TO RESTRICT INTERSTATE TRANSPORT OF 
                   SOLID WASTE.

       (a) In General.--Upon the expiration of 180 days after the 
     date on which the Administrator approves a Solid Waste 
     Management Plan required by section 4003 or after the date a 
     State plan becomes effective in accordance with section 
     4007(d), a State with an approved or effective State plan may 
     prohibit or restrict a person from importing solid waste from 
     a State of origin for purposes of solid waste management 
     (other than transportation).
       ``(b) Limitation.--A State may authorize a person to import 
     solid waste from a State of origin for purposes of solid 
     waste management (other than transportation) only in 
     accordance with section 4003(a)(12).

     ``SEC. 4012. FEES.

       ``(a) In General.--A State may levy fees on solid waste 
     that differentiate rates or other aspects of payment on the 
     basis of solid waste origin.
       ``(b) Allocation.--At least 50 percent of the revenues 
     received from the fees collected shall be allocated by the 
     State to the local government of the jurisdictions in which 
     the solid waste will be managed. The fees shall be used by 
     local governments for the purpose of carrying out an approved 
     plan.''.
                     TITLE IV--FINANCIAL ASSISTANCE

     SEC. 401. FEDERAL ASSISTANCE.

       Section 4008(a) of the Solid Waste Disposal Act (42 U.S.C. 
     6948) is amended--
       (1) in paragraph (1), by striking ``appropriated'' and all 
     that follows through ``1988'' and inserting ``appropriated 
     $100,000,000 for each of fiscal years 1996, 1997, and 1998''; 
     and
       (2) by adding at the end of paragraph (2) the following new 
     subparagraph:
       ``(E) There are authorized to be appropriated $25,000,000 
     for each of fiscal years 1996 through 1998 for the purposes 
     of providing grants to States for the encouragement of 
     recycling, resource recovery, and resource conservation 
     activities. The activities shall include licensing and 
     construction of recycling, resource recovery, and resource 
     conservation facilities within the State and the development 
     of markets for recycled products.''.

     SEC. 402. RURAL COMMUNITIES ASSISTANCE.

       Section 4009(d) of the Solid Waste Disposal Act (42 U.S.C. 
     6949) is amended--
       (1) in subsection (a), by striking ``section 4005'' and 
     inserting ``sections 4004 and 4005''; and
       (2) by striking subsection (d) and inserting the following:
       ``(d) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section 
     $50,000,000 for each of fiscal years 1996, 1997, and 1998.''.
                                 ______

      By Mr. KOHL:
  S. 374. A bill to amend chapter 111 of title 28, United States Code, 
relating to protective orders, sealing of cases, disclosures of 
discovery information in civil actions, and for other purposes; to the 
Committee on the Judiciary.
              [[Page S2339]] THE COURT SECRECY ACT OF 1995

  Mr. KOHL. Mr. President, I rise to introduce legislation that I first 
presented in the last Congress, legislation that addresses the 
troubling use of secrecy in our courts, which we have been studying in 
the Judiciary Committee since 1990.
  Far too often, the court system allows vital information that is 
discovered in litigation, and which directly bears on public health and 
safety, to be covered up: to be shielded from mothers, fathers, and 
children whose lives are potentially at stake, and from the public 
officials we have appointed to protect our health and safety.
  This happens because of the use of so-called protective orders--
really gag orders issued by courts--that are designed to keep 
information discovered in the course of litigation secret and 
undisclosed.
  Mr. President, these secrecy arrangements are far from benign. Last 
year, the manufacturers of silicon breast implants agreed to a record 
$4 billion settlement of product liability claims. Most Americans do 
not know that studies indicating the hazards of breast implants were 
uncovered as early as 1984 in litigation. But the sad truth is that 
because of a protective order that was issued when that case was 
settled, in the mid 1980's this critical knowledge remained buried, 
hidden from public view, and from the FDA.
  Ultimately, it wasn't until 1992--more than 7 years and literally 
tens of thousands of victims later--that the real story about silicon 
implants came out. How can anyone tell the countless thousands of 
breast implant victims that court secrecy isn't a real problem that 
demands our attention?
  And there are other unfortunate examples of court secrecy. For over a 
decade, Miracle Recreation, A U.S. playground equipment company, 
marketed a merry-go-round that caused serious injuries to scores of 
small children, including severed fingers and feet.
  Lawsuits brought against the manufacturer were confidentially 
settled, preventing the public and the Consumer Products Safety 
Commission from learning about the hazard. It took more than a decade 
for regulators to discover the defeat, and for the company to recall 
the merry-go-round.
  There are yet more cases which we have detailed in past hearings. But 
perhaps the more troubling question is, What other secrets, currently 
held under lock and key, could be saving lives if they were made 
public?
  Having said all this, we must in fairness recognize that there is 
another side to this problem. Privacy is a cherished possession, and 
business information is an important commodity. For this reason, the 
courts must, in some cases, keep trade secrets and other business 
information confidential.
  But, in my opinion, today's balance of these interests is entirely 
inadequate. Our legislation will ensure that courts do not carelessly 
and automatically sanction secrecy when the health and safety of the 
American public is at stake. At the same time, the bill will allow 
defendants to obtain secrecy orders when the need for privacy is 
significant and substantial.
  The thrust of our legislation is straightforward. In cases affecting 
public health and safety, courts would be required to apply a balancing 
test: They could permit secrecy only if the need for privacy outweighs 
the public need to know about potential health or safety hazards.
  Moreover, courts could not, under the measure, issue protective 
orders that would prevent disclosures to regulatory agencies. In this 
way, our bill will bring crucial information out of the darkness and 
into the light.
  I should note that we have made progress in this issue in the past 
year. A majority of members of the Judiciary Committee voted last year 
for a court secrecy proposal that was essentially identical to the bill 
we introduce today. And even the Federal judiciary has attempted to 
tackle the problem, through the proposal they are now advancing is, in 
my view, an incomplete solution.
  To attack the problem of excessive court secrecy is not to attack the 
business community. Most of the time, businesses seek protective orders 
for legitimate reasons. And although some critics may dispute that 
businesses care about public health and safety, as a former 
businessman, I know that they do.
  In closing, Mr. President, let me note that we in the country take 
pride in our judicial system for many good reasons. Our courts are 
among the finest, and the fairest in the world. But the time has come 
for us to ask: Fair to whom?
  Yes, the courts must be fair to defendants, and that is why I support 
product liability reform. But because the courts as public 
institutions, and because justice is a public good, our court system 
must also do its part to help protect the public when appropriate, and 
not just individual plaintiffs and defendants.
  The bill we introduce today helps achieve this important goal; it 
helps ensure that the public and regulators will learn about hazardous 
and defective products.
  So I look forward to the support of my colleagues--on both sides of 
the aisle--who believe, as I do, that when health and safety are at 
stake, there must be reasonable limit to the use of secrecy in our 
courts.
                                 ______

      By Mr. ABRAHAM:
  S. 375. A bill to impose a moratorium on sanctions under the Clean 
Air Act with respect to marginal and moderate ozone nonattainment areas 
and with respect to enhanced vehicle inspection and maintenance 
programs, and for other purposes; to the Committee on Environment and 
Public Works.


             CLEAN AIR ACT SANCTIONS MORATORIUM LEGISLATION

  Mr. ABRAHAM. Mr. President, today I am introducing a bill that 
provides a much needed respite for the States from the onerous and 
inappropriate sanctions of the Clean Air Act. In its bureaucratic 
fervor to implement regulations and administrative procedures, the EPA 
has shown a near complete disregard of the States' interests or the 
actual facts of the situation at hand. This bill prohibits the 
implementation of these draconian sanctions and will give us time to 
analyze more fully the Clean Air Act and the method of its 
implementation.
  The Clean Air Act is a well-intentioned attempt to resolve the 
competing interests of ecological preservation and economic growth. But 
as is usually the case with complex and patronizing Federal attempts to 
solve local problems from Washington, it misses the mark. Throughout 
this country communities are revolting against the EPA's enforcement of 
the Clean Air Act and their edicts that States and localities must 
implement a series of centralized automobile tailpipe testing 
procedures. Unfortunately, the EPA has allowed its enforcement 
bureaucrats concentrate solely on the means of this act rather than the 
ends.
  A particularly egregious example of this lock of regulatory good 
sense occurred in my State of Michigan. Three western Michigan counties 
were previously found by EPA to exceed the national ambient air quality 
standards for ozone, which is a product of chemical reactions between 
volatile organic compounds such as petroleum vapors, and oxygenated 
nitrogen, with summer sun and heat acting as the catalyst. Now I am 
heartened by EPA Administrator Browner's decision last night to 
redesignate these counties as in attainment. But I believe it was only 
the threat of legislative action like this that forced the EPA to 
revisit its strategy of enforcement.
  Because of these ozone levels, the EPA previously directed Michigan 
to implement by July 1995 an ozone reduction plan that would reduce by 
at least 15 percent the ozone producing volatile organic compound 
emissions. As part of this reduction plan, the EPA determined that only 
centralized automobile tailpipe exhaust inspection and maintenance 
procedures--otherwise known as IM240 tests, because the test takes 240 
seconds to administer--are 100 percent effective in reducing emissions. 
These tests require the local citizens to travel as far as 50 miles to 
testing facilities, then to another facility to repair the exhaust 
system determined by this test to be defective, and then back to the 
first testing facility for another test, possibly to start the whole 
process again.
  The EPA unilaterally decided that any State's testing procedure that 
allows for testing and repair at the same facility is only 50 percent 
as effective as test-only facility procedures. Their 
[[Page S2340]] decision was based upon the idea that test-and-repair 
facilities are rife with corruption and therefore pass automobiles 
which have defective exhaust systems. But the evidence shows otherwise. 
In Georgia, where both test-and-repair and test-only facilities 
operate, the two procedures were shown to have nearly identical rates 
of properly identifying vehicles with faulty exhaust systems, tampered 
exhaust systems, and that the test-and-repair facilities effectively 
discovered tampered vehicles. Furthermore, the General Accounting 
Office reported in 1992 that 25 percent of the vehicles tested by EPA 
using the IM240 procedures failed an initial emissions test but passed 
a second, even though no repairs were made to the vehicles. This 
phenomenon of flipper vehicles, where the same vehicle can have 
radically differing emission levels at different times, contributes as 
much as 20 percent of overall tailpipe emissions. As Douglas Lawson of 
the Desert Research Institute has determined through exhaustive 
analysis of I&M procedures, ``As long as there are vehicles with 
emissions variability on the road, an I/M program that relies upon 
scheduled testing is likely not be very effective.'' Which brings me to 
the critical point of analysis which EPA consistently missed: how much 
do test-only facility procedures actually reduce emissions over test-
and-repair facility procedures?
  The answer is ``not much.'' In fact, Mr. Lawson's previous comment is 
consistently supported by the evidence at hand, including a very 
comprehensive policy analysis by the Rand Corp. It states:

       Existing national data, limited as it is, suggest little 
     difference in measures of effectiveness between centralized 
     and decentralized I/M programs. There is no empirical basis 
     to choose between different program types. And, no single 
     component, be it centralized IM240 or remote sensing 
     technology is likely to be the ``silver bullet'' that lowers 
     emission levels for a significant faction of gross polluting 
     vehicles.

  It goes on to point out: ``The centralized/decentralized debate is 
less significant than a serious effort to rethink the entire Smog Check 
system and more generally, all programs to enhance Inspection and 
Maintenance.'' It is not an issue of test-and-repair facilities versus 
test-only facilities, but rather an issue of the whole inspection and 
maintenance process mentality.
  The EPA nevertheless stuck doggedly by its centralized test-only 
procedures. When my staff requested a summary of EPA's analysis of this
 issue, EPA sent 28 pages of data analyzing the differing rates of 
tampering detection and testing efficiency between centralized and 
decentralized programs. Only one-half page, however, examined the 
crucial issue of whether test-only procedures reduced overall 
emissions. EPA's analysis compared Arizona's emission levels under 
test-only procedures to Indiana's emission levels with no I&M 
procedures at all. From the data that Arizona has lower emission 
levels, the EPA concludes test-only is superior to test-and-repair. 
These leaps of logic, although convenient for pressing forth 
undesirable regulations, make for poor public policy.

  Such serious breaks in logic highlight the EPA's inability to view 
this issue in its totality. It is apparently paralyzed in its analysis 
by an overwhelming desire to implement centralized I&M procedures. 
Assistant EPA Administrator for Air Mary Nichols said as much before my 
senior Michigan colleague's hearing on this issue last fall. She 
stated:

       . . . anybody who has bothered to buy a car that meets 
     current emissions standards is owed an opportunity to have a 
     good inspection test done to make sure that car is 
     maintaining the emissions that it was designed to meet, 
     because if it is not, it should be getting repaired, and if 
     it is repaired, they are likely to experience better 
     performance and better fuel economy.

  To the EPA, the only way to create such an opportunity is for the 
Federal Government to force all car owners to have their cars tested 
and repaired, so that they can rest assured their cars are operating 
properly. Once again, members of the Clinton administration are out of 
touch and are missing the point. We must protect our constituencies and 
take the action necessary to stop this patronizing and intrusive 
behavior in the future.
  As a result of this convoluted logic, States are forced to adopt 
centralized test-only programs because the EPA halves the emission 
reduction credits for decentralized test-and-repair programs within the 
State's emission reduction programs. If they do not adopt these 
centralized procedures, the EPA will reject their emission reduction 
plan and place sanctions on the State. These sanctions include the 
withholding of millions in Federal highway funds and Federal pollution 
reduction program grants, Federal takeovers of State emission reduction 
plans, and two-for-one emission offset requirements where no new 
emission producing facilities can be constructed unless the expected 
new emissions are offset by two times that level of emissions at other 
facilities in the area. I assume no facility operates and produces 
emissions unless it does so at a profit, so I seriously doubt any 
facility will be shut down to make way for new facilities. These 
offsets would have effectively halted industrial growth in the area, 
and all because EPA wrongly wanted cars tested and repaired at separate 
facilities.
  This situation may even have seemed reasonable, given the existing 
law, if these areas were at fault for their allegedly high levels of 
ozone, but that was not the case. Because the emissions that chemically 
react to create ozone can travel in the air stream, the ozone levels 
experienced in one area may be the result of emissions from hundreds of 
miles away. Such was the case with the three counties in western 
Michigan. The three western Michigan counties of Kent, Ottawa, and 
Muskegon were all found by EPA to have ozone levels above the national 
ambient air quality standard of 120 parts per billion. The ozone 
contributions from the northern Indiana, northern Illinois, and 
Wisconsin, however, provided over 98 percent of the ozone that resulted 
in nonattainment. In fact, even if these three counties were to reduce 
their emission levels to zero, the ozone levels would actually increase 
as the overwhelming ozone transport from the West drifted into the 
region. Furthermore, even though the EPA claimed reducing western 
Michigan emissions would reduce ozone levels in northern Indiana during 
that four per cent of the year when winds are from the northeast, such 
emissions are irrelevant to that area. The Lake Michigan Air Directors 
Consortium executive director Stephen Gerritson told my colleague 
Senator Levin in hearings last fall that western Michigan emissions did 
not cause ozone nonattainment in northern Indiana. In fact, the area 
impacted by these very infrequent western Michigan transported 
emissions is currently in attainment. The regulatory actions of the 
EPA, in their misguided attempt to solve western Michigan's supposed 
ozone problem, would have actually made it worse.
  In light of this action, the Governor of Michigan halted the further 
implementation of such an unnecessary program last month. In the face 
of similarly bold exercises of States' rights, the EPA's Administrator 
reached out to the Governors in what I believe was an attempt to save 
the Clean Air Act from full congressional review. The EPA knows it is 
in trouble. When our loyal opposition held control of the Congress, the 
EPA would brook no complaints from the States that the EPA's tyrannical 
regulatory measures were unnecessary or ineffective. Instead, the EPA 
marched forward with an agenda to impinge States' rights, halt economic 
growth and force the citizenry to abide by their ideas as to what was 
in the citizenry's collective best interest.
  We must review the Clean Air Act in it totality. It is based upon bad 
science, bad procedures, and focuses on the wrong issues. The 
technology of emission detection, control, and abatement advances 
exponentially, and any legislation that attempts to protect our 
environment
 through invasive command and control techniques favored by anti-
industrialist, anti-growth, anti-business forces in the EPA is bound to 
fail. Such a review, however, will not be quick. The Clean Air Act is 
the longest, most complex piece of legislation ever passed, and took 
years to develop. It will take time to develop feasible replacements. 
Furthermore, as I have stated on this floor before, environmental 
legislation such as the Clean Air Act is one of the most notorious 
examples of an unfunded mandate. We must establish a window in which we 
can review this act and 
[[Page S2341]] know that our constituents will be safe from egregious 
EPA action.
  This bill establishes such a window. Upon its enactment, the EPA will 
be prohibited, for 2 years, from imposing sanctions under sections 
110(m) or 179 of the Clean Air Act, withhold pollution abatement grants 
section 105, or federalize a State's program under section 110(c). I 
explained the sanctions and enforcement actions before, but quickly, 
the section 100(m) and 179 sanctions include the loss of Federal 
highway funds and two-for-one emission offsets. These moratoria will 
apply to actions taken in response to a State's failure to submit or 
implement a pollution reduction plan in response to marginal or 
moderate ozone nonattainment. It will also prohibit both the EPA and 
the Highway Administration from taking similarly adverse action, such 
as withholding Federal highway funds, for failure to implement enhanced 
automobile inspection and maintenance procedures. The moratoria would 
exist for 2 years from enactment but would not apply to sanctions 
already applied. While these moratoria are in effect, we will have the 
time and liberty to analyze closely the Clean Air Act, and secure the 
assurances that our States will not be subject to these outrageous 
sanctions and actions. Last month, a bipartisan group of 33 State 
environmental directors, working through the National Association of 
Governors, called for such a moratorium while the States work with the 
EPA to define a more workable solution. Governor Engler of Michigan has 
fully supported such a moratorium.
  Although the EPA rectified the problem for my constituents last 
night, it still remains for other areas, such as in Virginia, Texas, 
and Rhode Island. Furthermore, there is no assurance that the EPA could 
not just as easily reverse this decision and put my constituents back 
in exactly the same quandary as before. I recommend that my colleagues 
join with me in preventing such a thing from happening.
  Mr. President, I ask unanimous consent that the text of this bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 376

       Be it enacted by the Senate and House of 
     Representatives of the United States of America in 
     Congress assembled,

     SECTION 1. OZONE NONATTAINMENT AREAS.

       (a) In General.--During the 2-year period beginning on the 
     date of enactment of this Act, the Administrator of the 
     Environmental Protection Agency shall take no enforcement 
     action with respect to an area designated nonattainment for 
     ozone that is classified as a Marginal Area or Moderate Area 
     under section 181 of the Clean Air Act (42 U.S.C. 7511).
       (b) Definition.--In this section, the term ``enforcement 
     action'' means--
       (1) the withholding of a grant under section 105 of the 
     Clean Air Act (42 U.S.C. 7405);
       (2) the promulgation of a Federal implementation plan under 
     section 110(c) of the Clean Air Act (42 U.S.C. 7410); and
       (3) the imposition of a sanction under section 110(m) or 
     179 of the Clean Air Act (42 U.S.C. 7410(m), 7509).
       (c) Applicability.--Subsection (a) does not preclude the 
     continued application of a sanction that was imposed prior to 
     the date of enactment of this Act.

     SEC. 2. ENHANCED VEHICLE INSPECTION AND MAINTENANCE PROGRAMS.

       During the 2-year period beginning on the date of enactment 
     of this Act, the Administrator of the Environmental 
     Protection Agency and the Administrator of the Federal 
     Highway Administration of the Department of Transportation 
     may not take any adverse action, against a State with respect 
     to a failure of an enhanced vehicle inspection and 
     maintenance program under section 182(c)(3) of the Clean Air 
     Act (42 U.S.C. 7511a(c)(3)), under--
       (1) section 176 of the Clean Air Act (42 U.S.C. 7506);
       (2) chapter 53 of title 49, United States Code;
       (3) subpart T of part 51, or subpart A of part 93, of title 
     40, Code of Federal Regulations (commonly known as the 
     ``transportation conformity rule''); or
       (4) part 6, 51, or 93 of title 40, Code of Federal 
     Regulations (commonly known as the ``general conformity 
     rule'').
                                 ______

      By Mr. KENNEDY:
  S. 376. A bill to resolve the current labor dispute involving major 
league baseball, and for other purposes; read the first time.


                      baseball strike legislation

  Mr. KENNEDY. Mr. President, President Clinton has submitted 
legislation to Congress to resolve the baseball strike by establishing 
a fair and equitable procedure for binding arbitration of the dispute.
  The legislation would establish a National Baseball Dispute 
Resolution Panel composed of three impartial individuals, appointed by 
the President, with expertise in the resolution of labor-management 
disputes. The panel would be empowered to take testimony, conduct 
hearings and compel the production of relevant financial information 
from all parties. At the conclusion of that process, the panel would 
issue a decision setting forth the terms of an agreement that would be 
binding on both sides of this dispute.
  Under the terms of the proposed legislation, the panel would be 
required, in making its decision, to take into account a number of 
factors, including the history of collective bargaining agreements 
between the parties, the owners' ability to pay, the impact on 
communities that benefit from major league baseball, the unique status 
of major league baseball, and the best interests of the game.
  President Clinton and his special baseball mediator, William J. 
Usery, deserve great credit for the efforts they have made in recent 
months, and especially in recent days, to achieve a satisfactory 
resolution of this long and bitter controversy.
  Clearly, at this moment in time, Members of Congress are divided 
about whether legislation is appropriate. A great deal will turn on 
developments in coming days, especially whether baseball fans across 
the country feel that action by Congress is needed.
  All of us hope that a way can still be found for the parties to 
resolve this controversy themselves. It is too early to tell whether 
the events of recent days have given enough new impetus to the parties 
to reach such a resolution.
  If not, then I believe Congress should act, and I look forward to 
working with others in the Senate and House to achieve the goal that 
all of us share--to save the 1995 baseball season, to do so in a way 
that is fair to owners and players alike, and do so in time for opening 
day--on schedule. Red Sox fans want baseball to begin on opening day as 
fans do all around the country. We should do all we can to make sure 
America's pastime goes on as scheduled.


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