Congressional Record, Volume 141 Issue 25 (Wednesday, February 8, 1995)

[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.

____________________