[Congressional Record Volume 144, Number 28 (Monday, March 16, 1998)]
[Senate]
[Pages S1990-S1996]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BAUCUS (for himself and Mr. Burns):
  S. 1762. A bill to amend the Agricultural Market Transition Act to 
authorize the Secretary of Agriculture to extend the term of marketing 
assistance loans; to the Committee on Agriculture, Nutrition, and 
Forestry.


                 THE EMERGENCY MARKETING ASSISTANCE ACT

  Mr. BAUCUS. Mr. President, I rise today to introduce the Emergency 
Marketing Assistance Act of 1998. I am pleased to be joined in this 
effort by the rest of the Montana delegation--Senator Burns and 
Congressman Hill. The Emergency Marketing Assistance Act is the product 
of cooperation between our Montana delegation, local communities, and 
agricultural producers in our state.
  Farming is never easy. It is a challenge that requires work, 
knowledge, faith and courage. But this year has been a particularly 
difficult time for producers. A large number of wheat growers in our 
state and across America are facing a bleak market year.
  Many have not even sold their 1997 crop. Instead, they have taken out 
nine-month USDA Marketing Assistance Loans which will soon come due. 
But unless there is a dramatic upsurge in our current prices, they will 
be forced to sell at a low price, inadequate to cover their debts.
  Currently, the total volume of grain under loan in Montana is 43.5 
million bushels. This is not an unusual figure during normal marketing 
years when farmers know they'll get a fair price for their product.
  Two years ago we could get over five dollars a bushel for our wheat. 
But today the current price languishes under the three dollar mark. 
Couple that with our abnormally high shipping rates, and it is no 
wonder our farmers are reluctant to sell. They would a serious hit. And 
some might lose the farm.
  However, it is important to remember, Mr. President, this difficult 
situation is temporary. In time, prices will rebound and wheat 
producers will be able to sell their grain at a fair price. That is why 
we are asking the Secretary of Agriculture to extend these loans for up 
to six months. Our producers would be able to weather the storm of 
these dreadful prices.
  For many of our farmers, this is a make-it or break-it year. They 
have survived tough winters and dry summers. They compete with the 
monopolistic practices of the Canadian Wheat Board. They struggle to 
overcome the high cost of shipping. And they are completely shut out of 
China's market.
  But we expect them to somehow go into the field day after day, season 
after season, to make certain that we have an abundant supply of food 
at a fair price. A six-month marketing assistance loan extension is a 
partial solution to the problems our farmers are facing. And that is 
why I am speaking here today.
  We also need to take immediate action to ensure that this price 
depression does not happen again. As we give our producers this tool to 
stay on their farms, we must also work to improve markets and stimulate 
prices. I am constantly reminded that many of our producers got behind 
the Freedom to Farm bill with the express understanding that the U.S. 
Department of Agriculture would aggressively seek export markets.
  Clearly, we need to do a better job of moving our products, 
especially wheat. I believe that by using a combination of the Export 
Enhancement Program, food aid and credit programs available through the 
USDA, we can assist our farmers during this difficult period. If we do 
not take action now, the results will be disastrous in farm country.
  I would like to thank my Montana colleagues for their assistance in 
this endeavor. I also want to recognize the efforts of our producers 
back home who have worked hard to make ends meet this past winter and 
brought this idea forward. You do a good job, and we are pulling for 
you.
  Mr. President, I strongly encourage my fellow senators to join me in 
supporting this important effort.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1762

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

     SECTION 1. EXTENSION OF MARKETING ASSISTANCE LOANS.

       Section 133 of the Agricultural Market Transition Act (7 
     U.S.C. 7233) is amended by striking subsection (c) and 
     inserting the following:
       ``(c) Extension.--The Secretary may extend the term of a 
     marketing assistance loan made to producers on a farm for any 
     loan commodity for 1 6-month period.''.

  Mr. BURNS. Mr. President, I rise today and join with my colleague 
from Montana, Senator Baucus, to introduce an amendment to the current 
farm program. The amendment will assist our farmers in Montana. I think 
we have sort of an isolated circumstance in Montana. But I think it 
will also help others, too, because of the depressed price in wheat.
  This bill is not a fix. It doesn't do everything maybe that we want 
to do. But it will assist many of our farmers in getting back in the 
fields this season, and it will also allow a little time to deal with 
some of the pressures that

[[Page S1991]]

we are experiencing along the Canadian border.
  As we enter a week commemorating agriculture and celebrate what 
agriculture provides for us, I am glad to come to the floor and help in 
the introduction of this bill.
  America and the general public need to learn more about this great 
industry. It is the largest industry in our country--and again, with 
insight into the role that agriculture plays in our everyday lives--not 
only from an economic standpoint, but at least three times a day for 
most of us, and some of us more, for the role that it also plays.
  Two years ago we passed the freedom-to-farm bill--the Federal 
Agricultural Improvement and Reform Act. We anticipated at that time 
that it would give us the flexibility on the farm to do some things 
that we want to do. That was only a year ago. Now, with that 
flexibility, of course, farmers operate on a big calendar called a 
year. Sometimes that flexibility takes a little bit longer than 
planned. We have some circumstances that are beyond the control of our 
grain farmers. Everything that we had hoped would occur has not 
happened. One is the Canadian situation. Prices have continued to drop, 
making it very difficult for our operators to meet their commitments on 
time.
  So this amendment would not give them anything extra. It will just 
give them a chance to make those payments in a timely manner.
  Today, Senator Baucus and I, with our colleague in the House, 
Representative Hill, are moving forward to correct a portion of that 
contract we made with our agricultural producers. We are seeking a 
minor adjustment in the law that passed Congress and was signed by this 
President. The portion that we seek to correct is the timeframe for 
repayment on marketing loans. We are not seeking a major change in that 
portion of the contract--just a minor adjustment. This adjustment will 
provide farmers with a slightly larger window in which to repay their 
marketing loans--an extension of only 6 months; nothing major; just 
enough for the producers to contract with purchasers to move their 
grain into the market.
  A large number of our producers have not yet priced their 1997 wheat 
crop--the one harvested last fall. Many have taken out loans with the 
Commodity Credit Corporation and USDA-sponsored programs to assist 
farmers with marketing their wheat. A large number of these loans are 
coming due in May and June of this year. With the world wheat market 
already being depressed due to additional grain on the domestic market, 
it will do nothing but really compound the whole problem. The farmer 
deserves just this little bit of assistance. They will provide us with 
a reliable, safe, and inexpensive food supply all around this country, 
and now I think they need just a little relief.
  This is a minor step that we are making today with the introduction 
of this bill. The legislation will help a little, but it will not solve 
the major problem that we face in agriculture. The plain and simple 
fact is we need to move our grain into world markets.
  Unfortunately, the Department of Agriculture seems determined not to 
assist our producers in this endeavor. In 1996 Congress made a contract 
with the farmer in exchange for reducing the amount of money they 
receive from the Government for their crops. We contracted with them to 
move grain into the market--namely, the world market.
  So the farmer in Montana and across the Nation accepted this 
contract. They have done their part. Now it is time for Congress and 
the Department of Agriculture and this administration to live up to 
their end of the deal.
  As a member of the Subcommittee on Agriculture Appropriations, I have 
made my thoughts known to the committee and to the administration. 
However, this past week, while I visited with the wheatgrowers in 
Montana, I learned one thing that would ease the burden. Today, we 
stand before the Senate, and I call for the administration to move at 
least 100 million tons of grain as soon as possible. This will not 
solve the problem we face on the farm. But it will ease the pressure 
and allow farmers to think about the future. Today they think only 
about the future and about how it would be like without the farm.
  So, I call on President Clinton, the Secretary of Agriculture 
Glickman, and the U.S. Trade Representative to make an effort to assist 
the man and woman on the ground, to do something to show that you are 
concerned about them.
  We had a situation last fall that was not the making of our 
producers. In the railroad industry, Houston was tied up so badly that 
it left us without any way to ship grain. We still received tons and 
tons of grain from Canada in this country. We have to deal with these 
measures.
  The legislation will allow us some time to do that and also will 
allow our farmers to get back in the fields. It is my hope that the 
legislation that we introduce today will assist in some little measure 
to give the farmer the hope to continue. I also hope that the 
administration will see their role in this and move forward in 
providing what they can to make life a little more bearable for our 
agricultural producers in our country.
  There is also another situation that was not created by us or the 
farmers; that is, we are not allowed to access about 11 percent of the 
world market due to embargoes--by governments and countries that 
probably have some problems in the area which the State Department 
usually handles. And, denied that market, there are other producers in 
other nations taking advantage of that. They get a premium for their 
grain and then dump the rest of theirs onto the world market for which 
we have to compete at a lower price. We have to address that problem 
also.
  Mr. President, I join with my colleague in introducing this 
legislation.
                                 ______
                                 
      By Mr. WELLSTONE:
  S. 1763. A bill to restore food stamp benefits for aliens; to the 
Committee on Agriculture, Nutrition, and Forestry.


       the food stamp benefits for aliens restoration act of 1998

  Mr. WELLSTONE. Mr. President, the bill I offer today will restore 
food stamps for all legal immigrants who lost eligibility under the 
1996 welfare reform law. Representative Guiterrez and I began 
developing this legislation last fall, and in the second week of March 
he introduced an identical bill in the House. Today I introduce our 
legislation in the Senate.

  This bill is more comprehensive than the proposal included by the 
President in his budget request for FY 1999. I commend the President 
for making the effort to address this problem, but his proposal does 
not go far enough. It overlooks 100,000 immigrants who were formerly 
eligible. It seems to me wholly unreasonable to leave these people out, 
given their relatively small number.
  I say we must go further. It was a mistake to deny food stamp 
eligibility in the first place, and now is the time to make amends. The 
legislation Congressman Gutierrez and I have developed will restore 
eligibility for all legal immigrants. While the President proposes 
spending $2.43 billion dollars over the next 5 years, the cost of our 
bill would be only marginally higher--closer to $3 billion.
  The 1996 welfare bill denied legal immigrants the means to meet basic 
nutritional needs in order to save some money. But I believe that, in 
the end, this provision will not save us any money at all. In the long 
run, we as a society will have to pay this bill, and pay it in full. We 
will pay with more family conflict, more medical problems, and lower 
student achievement. The cost of this mistake will far outweigh the 
money saved. Indeed, I believe we are already paying the price.
  In searching for ways to save money, Congress conveniently chose to 
target a group of people who do not vote. On one level, it is easy to 
understand the politics of this decision. But on another level, I find 
it incomprehensible. Consider how much these hard-working people 
contribute to our society and our economy. They pay taxes and often 
perform jobs that American citizens refuse to do. The fact that they 
have no right to vote should not mean that we single them out for this 
kind of treatment.
  It was especially irresponsible to deny eligibility knowing that two 
thirds of those affected would be children. Denying basic nutrition to 
children is not what this country is about, nor should it be. But that 
is essentially what Congress did in 1996. An estimated 900,000 legal 
immigrants lost

[[Page S1992]]

their eligibility with passage of welfare reform. Another 600,000 
children--children who are American citizens but whose parents are 
legal immigrants--have seen their family's food stamps reduced. Denying 
nutrition to parents will affect these children. Nutrition is a basic 
need which, if denied or reduced, has enormous negative effects on a 
family. This is no way for a country with a proud history of compassion 
and community to go about reducing the deficit.
  Today I offer legislation that would recognize this mistake and 
correct it. Ending hunger, whether among legal residents or anybody 
else, should remain a national responsibility. It cannot be done on a 
piecemeal basis. As of today, only three states have provided full 
eligibility for legal immigrants. A total of eleven states are 
providing coupons or the equivalent for some or all legal immigrants. 
Two states have set up independent programs to serve some of the legal 
immigrant population. But each of these thirteen states has the option 
and ability to change or terminate these commendable efforts at any 
time. That's not good enough.
  In my own state of Minnesota, food stamp cuts have had a major impact 
on our immigrant communities. While the state has offered temporary and 
partial food assistance for legal immigrants to make up for the loss of 
federal benefits, it has not been enough. Food banks have experienced a 
noticeable increase in demand for their services, especially in the 
Hmong and Somali communities. In fact, all across this nation the need 
for food assistance is on the rise, especially among immigrants.
  We can alleviate at least some of this problem by passing the bill I 
offer today. I believe we have a responsibility to both the children 
suffering under this new law who are American citizens, and to the 
legal immigrants who lost coverage. If we reinstate food stamp 
eligibility, these immigrants will once again be able to provide 
adequate nutrition for themselves and for their children. I believe 
this is what we must do to meet our responsibility, and it is the right 
thing to do.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1763

       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 ``Food Stamp Benefits for 
     Aliens Restoration Act of 1997''.

     SEC. 2. LIMITED ELIGIBILITY OF QUALIFIED ALIENS FOR CERTAIN 
                   FEDERAL PROGRAMS.

       (a) In General.--Section 402(a) of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (8 U.S.C. 1612(a)) (as amended by section 5301, 5302(a), 
     5303(a), and 5304 of the Balanced Budget Act of 1997 (Public 
     Law 105-33; 111 Stat. 597, 598, 600)) is amended--
       (1) in paragraph (2)--
       (A) in subparagraph (A)--
       (i) by striking clause (ii);
       (ii) by striking ``Asylees.--'' and all that follows 
     through ``paragraph (3)(A)'' and inserting ``Asylees.--With 
     respect to the specified Federal program described in 
     paragraph (3)''; and
       (iii) by redesignating subclauses (I) through (IV) as 
     clauses (i) through (iv) and indenting appropriately;
       (B) in subparagraph (D)--
       (i) by striking clause (ii); and
       (ii) in clause (i)--

       (I) by striking ``(i) SSI.--'' and all that follows through 
     ``paragraph (3)(A)'' and inserting the following:

       ``(i) In general.--With respect to the specified Federal 
     program described in paragraph (3)'';

       (II) by redesignating subclauses (II) through (IV) as 
     clauses (ii) through (iv) and indenting appropriately;
       (III) by striking ``subclause (I)'' each place it appears 
     and inserting ``clause (i)''; and
       (IV) in clause (iv) (as redesignated by subclause (II)), by 
     striking ``this clause'' and inserting ``this subparagraph''; 
     and

       (C) in subparagraphs (E) through (H), by striking 
     ``paragraph (3)(A)'' each place it appears and inserting 
     ``paragraph (3)''; and
       (2) in paragraph (3)--
       (A) by striking ``means any'' and all that follows through 
     ``The supplemental'' and inserting ``means the 
     supplemental''; and
       (B) by striking subparagraph (B).
       (b) Conforming Amendments.--
       (1) Section 402(b)(2)(F) of the Personal Responsibility and 
     Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 
     1612(b)(2)(F)) (as added by section 5305(b) of the Balanced 
     Budget Act of 1997 (Public Law 105-33; 111 Stat. 601)) is 
     amended by striking ``subsection (a)(3)(A)'' and inserting 
     ``subsection (a)(3)''.
       (2) Section 403(d) of the Personal Responsibility and Work 
     Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(d)) (as 
     added by section 5303(c) of the Balanced Budget Act of 1997 
     (Public Law 105-33; 111 Stat. 600)) is amended by striking 
     ``subsections (a)(3)(A)'' and inserting ``subsections 
     (a)(3)''.

     SEC. 3. FIVE-YEAR LIMITED ELIGIBILITY OF QUALIFIED ALIENS FOR 
                   FEDERAL MEANS-TESTED PUBLIC BENEFIT.

       Section 403(c)(2) of the Personal Responsibility and Work 
     Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(c)(2)) 
     is amended by adding at the end the following:
       ``(L) Assistance or benefits under the Food Stamp Act of 
     1977 (7 U.S.C. 2011 et seq).''.

     SEC. 4. AUTHORITY FOR STATES TO PROVIDE FOR ATTRIBUTION OF 
                   SPONSORS INCOME AND RESOURCES TO THE ALIEN WITH 
                   RESPECT TO STATE PROGRAMS.

       Section 422(b) of the Personal Responsibility and Work 
     Opportunity Reconciliation Act of 1996 (8 U.S.C. 1632(b)) is 
     amended by adding at the end the following:
       ``(8) Programs comparable to assistance or benefits under 
     the Food Stamp Act of 1977 (7 U.S.C. 2011 et seq).''.

     SEC. 5. DERIVATIVE ELIGIBILITY FOR BENEFITS.

       Section 436 of the Personal Responsibility and Work 
     Opportunity Reconciliation Act of 1996 (8 U.S.C. 1646) (as 
     added by section 5305(a) of the Balanced Budget Act of 1997 
     (Public Law 105-33; 111 Stat. 601)) is repealed.

     SEC. 6. REQUIREMENTS FOR SPONSOR'S AFFIDAVIT OF SUPPORT.

       Section 213A of the Immigration and Nationality Act (8 
     U.S.C. 1183a) is amended--
       (1) in subsection (a)(1)(B), by striking ``(as defined in 
     subsection (e) of this section)''; and
       (2) by inserting after subsection (f) the following:
       ``(g) Means-Tested Public Benefit Defined.--In this 
     section, the term `means-tested public benefit' does not 
     include assistance or benefits provided under the Food Stamp 
     Act of 1977 (7 U.S.C. 2011 et seq).''.

     SEC. 7. STATUS OF CUBAN AND HAITIAN ENTRANTS.

       Section 6(f) of the Food Stamp Act of 1977 (7 U.S.C. 
     2015(f)) is amended in the first sentence by inserting before 
     the period at the end the following: ``; or (G) an alien who 
     is a Cuban and Haitian entrant (as defined in section 501(e) 
     of the Refugee Education Assistance Act of 1980 (Public Law 
     96-422; 8 U.S.C. 1522 note))''.

     SEC. 8. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall be 
     effective as if included in the enactment of the Personal 
     Responsibility and Work Opportunity Reconciliation Act of 
     1996 (Public Law 104-193; 110 Stat. 2105).
                                 ______
                                 
      By Mr. THURMOND (for himself and Mr. Lott):
  S. 1764. A bill to amend sections 3345 through 3349 of title 5, 
United States Code (commonly referred to as the ``Vacancies Act'') to 
clarify statutory requirements relating to vacancies in certain Federal 
offices, and for other purposes; to the Committee on Governmental 
Affairs.


                the vacancies clarification act of 1998

  Mr. THURMOND. Madam President, I rise today to introduce legislation 
to address a serious, ongoing problem between the Executive and 
Legislative branches of our government. I am pleased to do so on behalf 
of myself and our distinguished majority leader, Senator Lott.

  The issue is the advice and consent role of the Senate under the 
Constitution, and the failure of the Administration to properly respect 
this authority in Presidential appointments. Too often, when an 
official holding an advice and consent position leaves the 
Administration, the President or lesser officials will appoint someone 
to serve in the vacancy on an acting basis for a long period of time 
without submitting a nomination to the Senate. The Administration 
routinely disregards the advice and consent role of the Senate in this 
manner.
  The Framers of the Constitution surely would not be pleased. The 
Appointments Clause of Article II, Section 2, of the Constitution is 
one of the fundamental checks and balances included within our great 
system of government. As Justice Scalia stated for the Supreme Court 
last year, ``[T]he Appointments Clause . . . is more than a matter of 
etiquette or protocol; it is among the significant structural 
safeguards of the constitutional scheme.''
  The Congress has long recognized the danger of the Executive Branch 
ignoring its role. The Vacancies Act was enacted to prevent this 
problem, and it has existed with few revisions since at least 1868. The 
Act sets forth limitations on acting appointments. It sets forth a 
logical procedure whereby the first assistant or another confirmed 
appointee takes over until a new nominee is confirmed. Importantly, it 
limits the

[[Page S1993]]

time this acting person may serve to 120 days unless the President has 
submitted a nomination to the Senate.
  There are two problems with the Vacancies Act today. The first is 
that it is being ignored. The second is that there is no enforcement 
mechanism to prevent the Administration from ignoring it.
  Today, vacancies in advice and consent positions are a serious 
problem in this Administration, and many of the people who are serving 
in these positions in an acting capacity are doing so in violation of 
the Vacancies Act. Consider the Department of Justice. The President 
has just nominated someone to head the Criminal Division. That position 
has been vacant since August 31, 1995, which is for two and one-half 
years. Also, when the Solicitor General left in June 1996, Walter 
Dellinger was made Acting Solicitor General without any effort to seek 
Senate confirmation. He then served for an entire term of the Supreme 
Court before the President nominated the current Solicitor General.
  The issue that has pushed the Vacancies Act into the headlines in 
recent months is the President's designation of Bill Lann Lee to serve 
as chief of the Civil Rights Division in an acting capacity. After 
allowing the position to remain vacant for six months, which itself 
violated the Act, the President nominated Mr. Lee. The Judiciary 
Committee could not support sending his nomination to the Senate floor. 
However, rather than sending a new, consensus candidate for 
confirmation, the President blatantly circumvented the confirmation 
process by appointing Mr. Lee in an acting capacity.
  I believe it is essential that the Senate act to stop the ongoing 
abuse of its confirmation role. Today, I am introducing the Vacancies 
Clarification Act of 1998 to help preserve our role by addressing two 
primary problems with the Act today: its alleged coverage and its 
enforcement.
  The Administration has an explanation for ignoring the Vacancies Act. 
The Department of Justice says the Act does not apply to it because of 
the administrative authorizing statutes that reorganized the Department 
in the 1950s. In my view, this argument has no merit. These statutes 
make no mention of vacancies and were certainly never intended to cover 
what the Vacancies Act already clearly covered. The most obvious flaw 
in Justice's argument is that all Executive departments have similar 
authorizing statutes. Therefore, if Justice is not bound by the Act, 
the other departments are equally free to ignore it, as many of them 
do. To address this, I propose that the Vacancies Act provide that it 
is applicable to all advise and consent appointments, unless a 
different statute provides that the Act is not applicable to a 
particular position.
  The second problem is that the Vacancies Act has no enforcement 
mechanism. There is no way to force the Administration to comply except 
to retaliate against it or to sue in court. Thus, I propose that any 
person who serves in violation of the Vacancies Act may not be paid 
while they are in violation of the law. This would be a simple but 
effective way to bring the Administration into compliance.
  My bill accomplishes these objectives by rewriting the Vacancies Act. 
The current language is somewhat intricate and dated. After all, the 
Act has existed with few revisions since 1868. Thus, I have attempted 
to rewrite the statute as it currently exists but in language that 
makes its requirements and exceptions as clear as possible. Hopefully, 
this will close any loopholes that lawyers have created in the words of 
the Act in its current form.
  It is my hope that this bill can serve as a starting point for 
bipartisan discussions on reform in this area. It is possible that the 
Administration may raise legitimate concerns with some of the 
requirements in the current law, such as that the 120 day period to 
submit a nomination is not enough time. This is an issue that could be 
discussed in hearings.
  Indeed, I am very pleased that the Governmental Affairs Committee has 
scheduled a hearing on the Vacancies Act this week. It is important 
that the Senate study this matter and address the flaws in the current 
process.
  Madam President, this is a matter of great Constitutional 
significance. We cannot allow the Administration to continue to 
disregard the advise and consent role of the Senate. By revitalizing 
the Vacancies Act, we can require the Administration to respect the 
Senate's Constitutional duty.
  At this time, I ask 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. 1764

       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 ``Vacancies Clarification Act 
     of 1998''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) Congress enacted the Act entitled ``An Act to authorize 
     the temporary supplying of vacancies in the executive 
     departments'', approved July 23, 1868 (commonly referred to 
     as the ``Vacancies Act''), to--
       (A) preclude the extended filling of a vacancy in an office 
     of an executive or military department subject to Senate 
     confirmation, without the submission of a Presidential 
     nomination;
       (B) provide an exclusive means to temporarily fill such a 
     vacancy; and
       (C) clarify the role of the Senate in the exercise of the 
     Senate's constitutional advice and consent powers in the 
     Presidential appointment of certain officers;
       (2) subchapter III of chapter 33 of title 5, United States 
     Code, includes a codification of the Vacancies Act, and 
     (pursuant to an amendment on August 17, 1988, to section 3345 
     of such title) specifically applies such vacancy provisions 
     to all Executive agencies, including the Department of 
     Justice;
       (3) the legislative history accompanying the 1988 amendment 
     makes clear in the controlling committee report that the 
     general administrative authorizing provisions for the 
     Executive agencies, which include sections 509 and 510 of 
     title 28, United States Code, regarding the Department of 
     Justice, do not supersede the specific vacancy provisions in 
     title 5, United States Code;
       (4) there are statutory provisions of general 
     administrative authority applicable to every Executive 
     department and other Executive agencies that are similar to 
     sections 509 and 510 of title 28, United States Code, 
     relating to the Department of Justice;
       (5) despite the clear intent of Congress, the Attorney 
     General of the United States has continued to interpret the 
     provisions granting general administrative authority to the 
     Attorney General under sections 509 and 510 of title 28, 
     United States Code, to supersede the specific vacancy 
     provisions in title 5, United States Code;
       (6) the interpretation of the Attorney General would--
       (A) virtually nullify the vacancy provisions under 
     subchapter III of chapter 33 of title 5, United States Code;
       (B) circumvent the clear intention of Congress to preclude 
     the extended filling of certain vacancies and provide for the 
     temporary filling of such vacancies; and
       (C) subvert the constitutional authority and responsibility 
     of the Senate to advise and consent in certain appointments;
       (7) it is necessary to further clarify the intention of 
     Congress to reject the interpretation of the Attorney General 
     by modernizing the intricate language of the long-standing 
     Vacancies Act; and
       (8) to ensure compliance by the executive branch with the 
     Vacancies Act, the Act needs an express enforcement 
     mechanism.

     SEC. 3. FEDERAL VACANCIES.

       (a) In General.--Chapter 33 of title 5, United States Code, 
     is amended by striking sections 3345 through 3349 and 
     inserting the following:

     ``Sec. 3345. Acting officer

       ``(a)(1) If an officer of an Executive agency (other than 
     the General Accounting Office) whose appointment to office is 
     by the President, by and with the advice and consent of the 
     Senate, dies, resigns, or is otherwise unable to perform the 
     functions of the office, the President may direct a person 
     described under paragraph (2) to perform the functions and 
     duties of the office temporarily in an acting capacity, 
     subject to the time limitations of section 3346.
       ``(2) The person referred to under paragraph (1) is any 
     person who on the date of death, resignation, or the 
     beginning of inability to perform serves--
       ``(A) in the position of first assistant to the officer who 
     dies, resigns, or is otherwise unable to perform; or
       ``(B) in an office for which appointment by the President, 
     by and with the advice and consent of the Senate is required.
       ``(b) With respect to the office of the Attorney General of 
     the United States, the provisions of section 508 of title 28 
     shall be applicable.

     ``Sec. 3346. Time limitation

       ``(a) The person serving as an acting officer as described 
     under section 3345 may serve in the office--
       ``(1) for no longer than 120 days; or
       ``(2) if any nomination for the office is submitted to the 
     Senate within the 120-day period beginning on the date the 
     vacancy occurs, for the period that the nomination is pending 
     in the Senate.

[[Page S1994]]

       ``(b)(1) If the nomination for the office is rejected by 
     the Senate or withdrawn, the person may continue to serve as 
     the acting officer for no more than 120 days after the date 
     of such rejection or withdrawal.
       ``(2) Notwithstanding paragraph (1), if a second nomination 
     for the office is submitted to the Senate during the 120-day 
     period after the rejection or withdrawal of the first 
     nomination, the person serving as the acting officer may 
     continue to serve--
       ``(A) until the second nomination is confirmed; or
       ``(B) for no more than 120 days after the second nomination 
     is rejected or withdrawn.
       ``(c) If a person begins serving as an acting officer 
     during an adjournment of the Congress sine die, the 120-day 
     period under subsection (a) shall begin on the date that the 
     Senate first reconvenes.

     ``Sec. 3347. Application

       ``Sections 3345 and 3346 are applicable to any office of an 
     Executive agency (other than the General Accounting Office) 
     for which appointment by the President, by and with the 
     advice and consent of the Senate, is required, unless--
       ``(1) another statutory provision expressly provides that 
     such provision supersedes sections 3345 and 3346; or
       ``(2) the President makes an appointment to fill a vacancy 
     in such office during a recess of the Senate.

     ``Sec. 3348. Vacant office

       ``Subject to section 3347, if an office is not temporarily 
     filled under sections 3345 and 3346 within 120 days after the 
     date on which a vacancy occurs, the office shall remain 
     vacant until a person is appointed by the President, by and 
     with the advice and consent of the Senate.

     ``Sec. 3349. Enforcement

       ``(a)(1) An acting officer who serves in a position in 
     violation of section 3345 or 3346 may not receive pay for any 
     day of service in violation of section 3345 or 3346.
       ``(2) Pay not received under paragraph (1) shall be 
     forfeited and may not be paid as backpay.
       ``(3) Notwithstanding section 1342 of title 31, paragraph 
     (1) shall apply regardless of whether such acting officer is 
     performing the duties of another office or position in 
     addition to performing the duties of the vacant office.
       ``(b) The head of an affected Executive agency (other than 
     the General Accounting Office) shall submit to the 
     Comptroller General of the United States and to each House of 
     Congress--
       ``(1) notification of a vacancy and the date such vacancy 
     occurred immediately upon the occurrence of the vacancy;
       ``(2) the name of any person serving in an acting capacity 
     and the date such service began immediately upon the 
     designation;
       ``(3) the name of any person nominated to the Senate to 
     fill the vacancy and the date such nomination is submitted 
     immediately upon the submission of the nomination; and
       ``(4) the date of a rejection or withdrawal of any 
     nomination immediately upon such rejection or withdrawal.
       ``(c) If the Comptroller General of the United States makes 
     a determination that an officer is serving longer than the 
     120-day period including the applicable exceptions to such 
     period as provided under section 3346, the Comptroller 
     General shall report such determination to each House of 
     Congress, the President, the Secretary of the Treasury, and 
     the Office of Personnel Management.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 33 of title 5, United States Code, is 
     amended by striking the items relating to sections 3345 
     through 3349 and inserting the following:

``3345. Acting officer.
``3346. Time limitation.
``3347. Application.
``3348. Vacant office.
``3349. Enforcement.''.

     SEC. 4. EFFECTIVE DATE AND APPLICATION.

       This Act shall take effect on the date of enactment of this 
     Act and shall apply to any office that--
       (1) becomes vacant after such date; and
       (2) is vacant on such date, except sections 3345 through 
     3349 of title 5, United States Code (as amended by this Act), 
     shall apply as though such office first became vacant on such 
     date.
                                 ______
                                 
      By Mr. McCAIN:
  S. 1766. A bill to amend the Communications Act of 1934 to permit 
Bell operating companies to provide interstate and intrastate 
telecommunications services within one year after the date of enactment 
of this Act; to the Committee on Commerce, Science, and Transportation.


             the telecommunications competition act of 1998

  Mr. McCAIN. Mr. President, today I am introducing the 
Telecommunications Competition Act of 1998. This legislation is aimed 
at encouraging the development of competition in telecommunications and 
thus allowing consumers to enjoy the benefits of competition including 
lower prices, universal availability, increased variety of new 
services.
  The Telecommunications Act of 1996 was enacted two years ago with 
great promise that increased competition would rapidly emerge on both 
the local and long distance telecommunications markets. The last two 
years have instead brought forth rampant litigation challenging 
everything from the constitutionality of the Act itself to the legality 
of the Federal Communications Commission's implementation rules. Within 
that same time frame, consumers have seen prices rise instead of fall, 
carriers merging instead of competing, and more regulation rather than 
deregulation.
  Mr. President, it is time to consider whether the Telecommunications 
Act of 1996, particularly section 271 of the Act that keeps Bell 
Operating Companies (BOCs) from competing in the interLATA 
telecommunications market prior to their fulfilling a set of market 
opening requirements, has been a success or failure.
  Section 271 requires BOCs to satisfy a detailed fourteen point 
competitive checklist that claims to guarantee that competitors have 
access to a BOC's services and facilities at rates, terms, and 
conditions that are nondiscriminatory. Section 271 also requires that 
BOCs seek approval for their applications from the Department of 
Justice, the relevant state commission, and the Federal Communications 
Commission; each of which may have a different interpretation of the 
requirements. Finally, beyond all of the other requirements a BOC must 
satisfy to gain section 271 approval, the Act gives the FCC the ability 
to reject an application based on a vague and undefined public 
interest, convenience, or necessity requirement.
  It is time to reevaluate whether the regulatory intensive approach to 
deregulation that was followed in section 271 is the best method for 
encouraging the development of competition. I realize that in 1996 
Congress passed the Telecommunications Act while reacting to pressure 
from all sides of the telecommunications industry. I understand that 
any modifications to the Act will require that we seek compromise from 
those same industry forces. I am thus currently working to find such 
compromises and hope to introduce a different bill that will further 
the goal of competition through a framework that will focus on the 
truly pertinent factors while minimizing current incentives to game the 
process for anticompetitive ends.
  The bill I introduce today is what I believe to be the most 
deregulatory approach to encouraging competition in telecommunications. 
This bill takes a straightforward approach to bringing the benefits of 
competition to consumers by permitting all carriers to enter each 
others' markets and compete to bring the best and lowest priced 
services to consumers.

  The bill requires that all providers of telecommunications and 
information services be subject to equivalent regulation. The bill also 
states that if all providers of telecommunications services do not have 
the opportunity to provide all telecommunications and information 
services, it would be in the public interest to remove barriers to 
entry to intrastate telecommunications services such as telephone 
exchange service, intrastate intraLATA telecommunications services, and 
telephone exchange access services.
  When barriers to entry to intrastate telecommunications services are 
removed, all lines of business restrictions should be eliminated for 
existing providers of these services. The elimination of such 
restrictions will result in the creation of substantial numbers of new 
jobs and the deployment of advanced telecommunications services. This 
will enhance the quality of life and promote economic development, job 
creation, and international competitiveness.
  Advancements in the nation's telecommunications infrastructure will 
enhance the public welfare by helping to speed the delivery of services 
such as telemedicine, distance learning, remote medical services, and 
distribution of health information.
  Rural and sparsely populated areas will not receive the benefits of 
advanced telecommunications services unless all providers of 
telecommunications services have eliminated the restrictions on the 
lines of business in which they may engage.
  Existing regulatory devices no longer work, and the regulatory 
asymmetries that exist today are inconsistent with competitive 
marketplaces. Oversight of the telecommunications industry

[[Page S1995]]

should be conducted from the perspective of the antitrust laws by the 
Department of Justice and from the regulatory perspective by the 
Commission for interstate telecommunications services and the states 
for intrastate telecommunications services.
  Finally Mr. President, this bill removes the current perverse 
incentives that some parties have to use the regulatory process to 
delay BOC entry into long entrance. By permitting all competitors to 
compete one year from the date of enactment, all parties will have the 
incentive to bring the benefits of competition to consumers as soon as 
possible.
  Mr. President, I ask unanimous consent that the text of the bill 
appear in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1766

       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 ``Telecommunications 
     Competition Act of 1998''.

     SEC. 2 FINDINGS.

       The Congress finds that--
       (1) competition in telecommunications will encourage 
     infrastructure development, have beneficial effects on the 
     price, universal availability, variety and quality of 
     telecommunications services, and improve our economy, our 
     culture, and our political system;
       (2) all telecommunications markets should be open to 
     competition and all providers of telecommunications services 
     should be able to provide such services and be subject to 
     equivalent regulation when offering such services;
       (3) all providers of telecommunications should be subject 
     to equivalent regulation;
       (5) the elimination of the restraints on the lines of 
     business will result in the creation of a substantial number 
     of new jobs;
       (6) if the removal of the restrictions on the lines of 
     business are delayed, the job creation resulting from the 
     removal of these constraints will also be delayed;
       (7) advanced telecommunications services can enhance the 
     quality of life and promote economic developments, job 
     creation, and international competitiveness;
       (8) advancements in the nation's telecommunications 
     infrastructure will enhance the public welfare by helping to 
     speed the delivery of services such as telemedicine, distance 
     learning, remote medical services, and distribution of health 
     information;
       (9) improvements in the telecommunications infrastructure 
     will be greatly enhanced if all providers of 
     telecommunications services are permitted to offer these 
     services on the same basis and subject to equivalent 
     regulatory requirements;
       (10) rural and sparsely populated areas will not receive 
     the benefits of advanced telecommunications services unless 
     all providers of telecommunications services have eliminated 
     the restrictions on the lines of business in which they may 
     engage;
       (11) existing regulatory devices no longer work, and the 
     regulatory asymmetries that exist today are inconsistent with 
     competitive marketplaces; and
       (12) oversight of the telecommunications industry should be 
     conducted from the perspective of the Antitrust Laws by the 
     Department of Justice and from the regulatory perspective by 
     the Commission for interstate telecommunications services and 
     the States for intrastate telecommunications services.

     SEC. 3. ONE-YEAR MAXIMUM START DATE FOR BOC INTERSTATE AND 
                   INTRASTATE SERVICES.

       Part III of title II of the Communications Act of 1934 (47 
     U.S.C. 271 et seq.) is amended by inserting before section 
     271 the following:

     ``SEC. 270. DATE CERTAIN FOR START OF BELL OPERATING COMPANY 
                   SERVICES.

       ``(a) In General.--Notwithstanding any provision of this 
     Act to the contrary, on the date that is one year after the 
     date of enactment of the Telecommunications Competition Act 
     of 1998, a Bell operating company, and any affiliate of a 
     Bell operating company, may provide interstate and intrastate 
     telecommunications services.
       ``(b) State Law Superseded.--No State or local law may 
     prohibit or prevent a Bell operating company, or an affiliate 
     of a Bell operating company, from providing interstate and 
     intrastate telecommunications services after the date 
     specified in subsection (a).
       ``(c) Applicaiton with Other Provisions.--Any prerequisite 
     established by any other provision of this Act that 
     conditions the right to provide services regulated under this 
     Act in any area upon the satification by a Bell operating 
     company of any requirement under this Act shall be for all 
     purposes of this Act, deemed to have been met on the date 
     specified in subsection (a).''.
                                 ______
                                 
      By Mr. DODD:
  S. 1767. A bill to amend the Federal Food, Drug and Cosmetic Act to 
require notification of recalls of drugs and devices, and for other 
purposes; to the Committee on Labor and Human Resources.


            the drug and device recall reporting act of 1998

  Mr. DODD. Mr. President, I rise today to introduce a critical measure 
that has the potential to save many lives--``Matthew's Law.'' This bill 
is named after a very lucky third-grader from Bridgeport, Connecticut, 
whose life was endangered by the failure of his pharmacy to notify his 
family that an unsafe medical device had been pulled from the market.
  It is both unfortunate and remarkable that no Federal legislation 
currently exists that requires notification of consumers when unsafe 
drugs or devices are recalled. State laws also fail to guarantee 
consumers the right to know of recalls. Although 18 States recommend 
that pharmacists notify their patients of recalls, as part of 
professional standards of care, only one State (Vermont) explicitly 
requires that patients be contacted.
  This bill will amend the Federal Food, Drug, and Cosmetic Act to 
impose the commonsense requirement that when pharmacies are notified of 
a class I or II recall of a drug or device dispensed by prescription, 
they must notify their patients that the product has been pulled from 
the market.
  Class I recalls include those drugs and devices that could reasonably 
cause serious adverse effects on health or death. Class II recalls 
include drugs and devices that may cause temporary or medically 
reversible adverse effects on health.
  For over the counter drugs and devices, the bill requires that a 
notice regarding the recall be displayed in the pharmacy. Pharmacies 
that fail to comply will be subjected to fines of up to $10,000.
  Matthew McGarry, for whom this bill is named, has a life-threatening 
allergy to peanuts. In case he should accidentally eat one, he carries 
a device with him that injects a drug to counteract an allergic 
reaction, called an ``EPI-E-Z'' pen.
  When it was found that a few of the devices in one batch were leaking 
the life saving drug, all pharmacies were notified that the product was 
being recalled. And almost all pharmacies, acting in the best interest 
of their patients, in turn notified consumers. The McGarry's pharmacy, 
however, did not contact its patients.
  Thanks to the vigilance of his school's nurse, Betty Patterson, 
Matthew escaped unharmed--the defective device was replaced.
  Under current law, consumers have the right to be notified their 
automobiles are defective or when the toys that their children play 
with are found to be unsafe. It is only logical that we should have the 
same peace of mind when it comes to products like drugs and medical 
devices that directly affect our health.
  Most pharmacists do the right thing. Most pharmacists contact their 
customers when a drug or device is recalled. However, it takes just one 
incident, like that experienced by the McGarry family, to point out a 
dangerous loophole in the law.
  With Matthew's law, we will close that loophole and protect all 
American families from the McGarry's frightening experience.
  Mr. President, I ask unanimous consent that a copy of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1767

       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 ``Drug and Device Recall 
     Reporting Act of 1998''.

     SEC. 2. RECALLS.

       Subchapter E of chapter V of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 360bbb et seq.) is amended by adding 
     at the end the following:

     ``SEC. 564. NOTIFICATION OF RECALLS.

       ``(a) Notification to Customers.--A pharmacy that receives 
     notice from a recalling firm regarding a Class I or Class II 
     recall of a drug or device shall provide notification about 
     the recall to customers that received the drug or device as 
     follows:
       ``(1) In the case of a drug or device dispensed by the 
     pharmacy to customers on the prescription of a licensed 
     practitioner, by providing, at a minimum, written 
     notification to each of the customers.
       ``(2) In the case of another drug or device, by public 
     display in the pharmacy of a notice regarding the recall.
       ``(b) Civil Penalty.--Any pharmacy that violates subsection 
     (a) shall be liable to the United States for a civil penalty 
     in an

[[Page S1996]]

     amount not to exceed $10,000 for each such violation.
       ``(c) Definitions.--In this section:
       ``(1) Class i or class ii.--The term `Class I' or `Class 
     II' refers to the corresponding designation given recalls in 
     subpart A of part 7 of title 21, Code of Federal Regulations, 
     or a successor regulation.
       ``(2) Recall.--The term `recall' means--
       ``(A) a recall, as defined in subpart A of part 7 of title 
     21, Code of Federal Regulations, or a successor regulation; 
     and
       ``(B) a recall under section 518(e).
       ``(3) Recalling firm.--The term `recalling firm' means--
       ``(A) a recalling firm, as defined in subpart A of part 7 
     of title 21, Code of Federal Regulations, or a successor 
     regulation; and
       ``(B) a person subject to an order issued under section 
     518(e)(1).''.

                          ____________________