[Congressional Record Volume 148, Number 37 (Tuesday, April 9, 2002)]
[Senate]
[Pages S2414-S2417]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BAUCUS:
  S. 2075. A bill to facilitate the availability of electromagnetic 
spectrum for the deployment of wireless based services in rural areas, 
and for other purposes; to the Committee on Commerce, Science, and 
Transportation.
  Mr. BAUCUS. Madam President, I rise today to introduce the Rural 
Spectrum Access Act, RESA, of 2002. Wireless communications is 
revolutionizing the way we communicate. It allows us to place calls 
from anywhere in the world to anywhere in the world. We can check our 
favorite websites, and even stay in touch with family and friends 
through email, all without a phone line. It's empowering to know that 
we can do all this and more while sitting on top of a mountain in 
Montana.
  However, these services require spectrum, the wireless waves that 
give us this freedom. Due to the way the FCC distributes spectrum, 
rural America is finding it more and more difficult to get quality 
wireless service. The current system distributes spectrum on very large 
geographic areas, which in effect, inhibits certain carriers from 
participating in wireless auctions. Since the geographic licensing 
areas are so large and the price for the spectrum is equally as large, 
rural carriers often find it difficult bidding on the spectrum. My 
legislation will correct this inequity.
  RESA requires the Federal Communications Commission, in future 
auctions, to distribute spectrum on smaller geographic levels. It does 
not favor one type of carrier over another, or pick which carrier can 
serve which areas. Rather, it simply allows carriers to bid on spectrum 
that they find difficult under today's system.
  It is my hope that this bill will allow more of our rural 
telecommunication carriers to participate in future auctions. The RESA 
Act will bring more choices, better service and lower prices for those 
of us living in rural America.
                                 ______
                                 
      By Mr. DORGAN:
  S. 2076. A bill to prohibit the cloning of humans; to the Committee 
on the Judiciary.
  Mr. DORGAN. Madam President, the Senate will soon start debating the 
issue of human cloning. I want to state unequivocally that I am against 
the cloning of a human being. The cloning of a human being raises 
serious moral and ethical questions about society's perception of human 
life.
  Today, I am introducing legislation that prohibits the cloning of a 
human being. It is a simple bill, but it reflects my view and a view 
that is held by almost everyone. My bill reflects the common ground 
that we can all agree to in this debate. My legislation makes it 
illegal to clone a human being and imposes strict penalties against 
anyone who violates this prohibition.
  I urge my colleagues to support a ban on the cloning of a human 
being, and encourage their cosponsorship of my legislation.
                                 ______
                                 
      By Ms. COLLINS:
  S. 2077. A bill to make grants to improve public safety in order to 
prepare for and respond to terrorist threats; to the Committee on 
Environment and Public Works.
  Ms. COLLINS. Madam President, today I am introducing the Securing Our 
States Act. As the tragic terrorist attacks of September 11 taught us 
all too well, our Nation is not as prepared for widespread emergencies 
as it should be. The legislation I am introducing today, Securing Our 
States Act, or SOS Act, will help make our Nation more secure by 
strengthening our first line of defense, the first responders in our 
States and communities.
  As the Presiding Officer is well aware, when a terrorist attack or 
other disaster occurs, it is the State and local police, firefighters, 
and emergency medical personnel who are first on the scene. Nearly 2 
million State and local police, firefighters, emergency medical 
personnel, and others are closest to these challenges. They understand 
best what is needed to respond effectively, and they tell me they need 
improved training, more and better equipment, greater coordination, and 
more exercises. They need them as soon as possible. They are the ones 
who are always on the front lines when disaster strikes.
  Properly trained and equipped, first responders have the greatest 
potential to save lives and limit casualties after a terrorist attack. 
Currently, however, our capabilities for responding to a terrorist 
attack vary widely from community to community, State to State, across 
this great country. Many areas simply have very little capacity to 
respond to a terrorist attack. In fact, most localities could not 
respond effectively to a terrorist attack if weapons of mass 
destruction were used. Even the best prepared States and communities do 
not possess adequate resources to respond to the full range of possible 
terrorist attacks.
  This legislation I am introducing will help by providing much needed 
resources. The SOS Act, which is consistent with the first responders 
proposal in President Bush's budget, will provide $4 billion in 
critically needed funding, an increase of more than 1,000 percent in 
Federal resources that will flow to State and local governments.

[[Page S2415]]

  This bill is designed to accomplish the following objectives: First, 
more resources to States and communities to conduct important planning 
and exercises, purchase equipment, and better train their personnel.
  Second, it would provide flexibility for States and localities to 
address whatever the needs of their particular locality may be. States 
differ in their preparedness, and this would allow flexibility in the 
use of funds.
  Third, another important feature of this bill is its simplicity. We 
need to speed the disbursement of Federal funds to States and 
communities without further delay.
  Fourth, this legislation is designed to promote cooperation across 
the Nation so local, State, Federal, and volunteer networks can operate 
together effectively.
  To achieve these objectives, the Federal Emergency Management Agency, 
known as FEMA, will implement a streamlined and simple procedure 
designed to speed the flow of resources to States and communities. The 
funds may be used for a variety of activities, including planning to 
develop comprehensive plans to prepare for and respond to a terrorist 
attack; equipment to respond more effectively to terrorist attack, 
including personal protective equipment, chemical, and biological 
detectors and interoperable communications gear.
  We want to make sure our emergency personnel can communicate with one 
another. We have learned from the lessons of September 11 that can be a 
devastating problem.
  The legislation would also allow funds to be used for more training 
to enable firefighters, police officers, and emergency medical 
professionals to respond and operate in a chemical or biological 
environment, even a very dangerous environment.
  We need to have more exercises to improve response capabilities, 
practice mutual aid and assess operational improvements and 
deficiencies.
  The legislation I am introducing will help make our Nation safer. 
Nearly 2 million first responders are always there, willing to put 
their lives at risk to save the lives of others and to make our country 
safer. This bill will help these brave men and women do their jobs 
better and will help all of our communities be more secure. The 
benefits of the Securing Our States Act are immediate and widespread 
and the goal is one we can all embrace, the goal of making our Nation 
safer from terrorist attacks while also bolstering everyday response 
capabilities.
  I urge my colleagues to join me in supporting this legislation.
  I yield the floor.
                                 ______
                                 
      By Mrs. HUTCHISON (for herself, Mr. Lieberman, Mr. McCain, Mr. 
        Feingold, and Mr. Levin):
  S. 2078. A bill to amend section 527 of the Internal Revenue Code of 
1986 to eliminate notification and return requirements for State and 
local political committees and candidate committees and avoid duplicate 
reporting by certain State and local political committees of 
information required to be reported and made publicly available under 
State law, and for other purposes; to the Committee on Finance.
  Mrs. HUTCHISON. Madam President, today I am pleased to again be 
offering legislation that will solve a significant issue for State and 
local legislators and candidates across the country and which I know is 
of serious concern.
  Two years ago, Congress enacted the Full and Fair Political 
Activities Disclosure Act of 2000, Public Law 106-230, a law that 
imposed new IRS reporting requirements on political organizations 
claiming tax-exempt status under Section 527 of the Internal Revenue 
Code. The purpose of this law was to uncover so-called ``stealth 
PACs,'' tax-exempt groups which, prior to the enactment of this law, 
did not have to disclose any contributions or expenditures and were 
free to influence elections in virtual anonymity. While Public Law 106-
230 was intended to target ``stealth PACs,'' it has had the unintended 
consequence of imposing burdensome and duplicative reporting 
requirements on State and local candidates who are not involved in any 
federal election activities. In many States like Texas, state and local 
candidates already file detailed reports with their state election 
officials.
  To correct this problem, I have worked closely with Senator 
Lieberman, among others, to develop legislation that would exempt state 
and local candidates from some of the IRS reporting requirements of 
Public Law 106-230. We have done this in a way that solves the problem 
but without creating new loopholes that would allow ``stealth'' 
organizations to reemerge. This legislation is the product of 
bipartisan and I would like to thank those who have supported our 
efforts, including Senator McCain, Senator Feingold, and Senator Levin 
who join me and Senator Lieberman on this bill today. I originally 
offered legislation on this issue last year and it was included in the 
tax cut bill, the Economic Growth and Tax Relief Reconciliation Act of 
2001. Unfortunately, our provision was dropped from the bill in 
conference.
  Since then, P.L. 106-230 has created an increasingly heavy burden on 
local and State candidates. This is exacerbated by the fact that many 
candidates were not aware of the notification requirements and could 
now face severe penalties. It is time to take action and get this issue 
resolved. The bill we introduce today solves this problem while also 
addressing some issues that have been raised since we first made this 
effort last year. The deadline for the most burdensome reporting 
requirements is fast approaching in May. Congress has delayed too long. 
I again urge my colleagues to support this bill and to solve the 
problem that we created and to do so now.
                                 ______
                                 
      By Mr. ROCKFELLER:
  S. 2079. A bill to amend title 38, United States Code, to facilitate 
and enhance judicial review of certain matters regarding veterans' 
benefits, and for other purposes; to the Committee on Veterans' 
Affairs.
  Mr. ROCKEFELLER. Madam President, I am today introducing legislation 
which responds to concerns relating to judicial review of VA benefits 
expressed by the authors of the Independent Budget for Veteran's 
Programs for fiscal year 2003. I am doing this in order to provide a 
vehicle for further discussion on these and related matters.
  The Independent Budget, the IB, is the collaborative effort of a 
coalition of four veterans service organizations, AMVETS, Disabled 
American Veterans, Paralyzed Veterans of America, and Veterans of 
Foreign Wars, which is endorsed by dozens of other veterans' groups and 
others. This is the sixteenth year that the these organizations have 
drafted an independent budget to advocate for the funding that they 
feel is necessary to properly provide care and benefits to our 
veterans.
  This bill proposes three amendments to title 38, United States Code, 
and a free-standing provision relating to the Equal Access to Justice 
Act. Section 1 of this legislation would amend section 502 of title 38 
to allow the United States Court of Appeals for the Federal Circuit, 
the Federal Circuit, to review and set aside VA changes to the schedule 
for rating disabilities found to be arbitrary and capricious or in 
violation of statute. Section 2 would amend section 7261 of title 38 to 
specify that the United States Court of Appeals for Veteran Claims, the 
CAVC, shall apply a preponderance of the evidence standard when 
reviewing findings of fact made by the Board of Veterans Appeals. 
Section 3 would amend section 7292 of title 38 to permit the Federal 
Circuit to review CAVC decisions on questions of law. The final section 
of this legislation would allow the CAVC, when awarding attorneys fees 
under the Equal Access to Justice Act to award compensation to 
qualified non-attorney representatives before the CAVC.
  Current section 502 of title 38, provides for judicial review of VA 
rules and regulations in the Federal Circuit, but expressly precludes 
review of VA actions relating to the adoption or revision of the so 
called ``rating schedule'' made pursuant to section 1155 of title 38. 
This rating schedule is the system by which VA categorizes types and 
levels of disability by percentages and, as noted by the IB authors, 
this preclusion of review was based on the view that VA has specific 
expertise in this area, an expertise not found in most courts. However, 
while the IB authors recognize the importance of VA's particularly 
informed judgment in this

[[Page S2416]]

area, they are concerned that, ``without any constraints or oversight 
whatsoever, VA is free to promulgate rules to rating disabilities that 
do not have as their basis reduction in earning capacity.'' To remedy 
this concern, the authors of the IB propose an amendment to section 502 
of title 38 which would authorize Federal Circuit review of rating 
schedule decisions. This is the intent of section 1 of this bill.
  A second concern of the authors of the IB relates to the scope of 
review applied by the CAVC to factual determinations of the Board of 
Veterans' Appeal. Under current law, section 5107(b) of title 38, VA is 
required to give a claimant the benefit of the doubt when ``there is an 
approximate balance of positive and negative evidence regarding the 
merits'' of an issue material to the claim. However, as noted in the IB 
for fiscal year 2003, the CAVC, in reviewing a VA decision on a factual 
issue, is required to apply a ``clearly erroneous'' standard. Under 
this standard, which is the same as applied by Federal appellate courts 
in their review of factual determinations of trial courts, if there is 
a plausible basis for a factual finding, it can not be clearly 
erroneous. This results in the CAVC having to accord significant 
deference to findings of fact made by the Board. As the IB authors 
note, this approach of requiring the CAVC to uphold a Board decision 
based on only the lower ``plausible basis'' undermines the statutory 
``benefit of the doubt'' rule. Section 2 of this legislation would 
protect the ``benefit of the doubt'' rule by amending section 7261 of 
title 38 to specify that the CAVC is to apply a preponderance of the 
evidence standard when reviewing factual determinations of the Board.
  Another concern of the IB authors is the present limit on Federal 
Circuit's authority to review CAVC precedential decisions on questions 
of law. Under section 7292 of title 38, the Federal Circuit is 
authorized to review CAVC findings on questions of statutory or 
regulatory interpretation, but is not authorized to review such 
decisions based on questions of law not rooted on a constitutional, 
statutory, or regulatory interpretation. In a 1992 case, Livingston v. 
Derwinski, 959 F.2d 224, the Federal Circuit has described this 
limitation as follows: ``The interpretation of the board's decision is 
unquestionably a matter of law, but that is not enough to bring the 
appeal within this court's statutory jurisdiction. In the absence of a 
challenge to the validity of a statute or a regulation, or the 
interpretation of a constitutional or statutory provision or a 
regulation, we have no authority to consider the appeal.'' The IB 
authors express the concern that this ``unavailability of Federal 
Circuit review, has, in many instances, undesirable consequences'' and 
urge that the law be amended to give the Federal Circuit jurisdiction 
to review all CAVC decisions on questions of law. Section 3 would 
modify section 7292 of title 38 to accomplish that result.
  A final issue raised by the authors of the Independent Budget is not 
one of procedural fairness, but rather of equality of access to the 
administrative and judicial structures of the veterans' appeals 
process. Currently, veterans who enlist the aid of attorneys, and non-
attorney practitioners supervised by attorneys, who are successful in 
their claims and satisfy the other requirements, can avail themselves 
of the benefits of the Equal Access to Justice Act, the EAJA. The EAJA 
shifts the burden of attorney fees from the citizen to the government 
in cases where the citizen successfully challenges an unreasonable 
government action. In the case of VA claims, however, claimants often 
turn to qualified, non-attorney representatives of the many veterans 
service organizations to represent them, up to and through the CAVC. 
Based upon the prior long standing limitation on paying attorney fees 
in veterans' benefits cases, there had not been an active veterans' 
bar. As a result, veterans service organizations developed expertise to 
enable them to effectively represent claimants before VA. VA does not 
require that these representatives be attorneys, only credentialed by a 
VA-recognized veterans service organization. Therefore, when the court 
was created, certain non-attorney practitioners were allowed to 
represent appellants at the court. However, as currently interpreted, 
these non-attorney practitioners are not eligible to receive 
compensation under the EAJA, despite the fact that they are doing the 
same work as their attorney counterparts. The authors of the 
Independent Budget, representatives of the organizations which are 
affected by this limitation, ask that unsupervised, non-attorneys be 
given access to fee compensation under the EAJA. They believe that this 
change would allow veterans organizations to represent even more 
veterans. Section 4 of the bill would provide for this change.
  As a new generation is called to sacrifice in service of our country 
it is imperative that we ensure the fairness and accessibility of the 
benefits that they so richly deserve and it is for this reason that I 
introduce this bill. As I noted earlier in my statement, I am doing so 
in order to provide a vehicle for detailed discussion of these and 
other issues related to the judicial review of VA claims. I look 
forward to working with my colleagues on these matters in the months 
ahead.
                                 ______
                                 
      By Mrs. BOXER:
  S. 2080. A bill to designate a United States courthouse to be 
constructed in Fresno, California, as the ``Robert E. Coyle United 
States Courthouse''; to the Committee on Environment and Public Works.
  Mrs. BOXER. Madam President, I am pleased to introduce legislation to 
name the Federal courthouse building to be constructed at Tulare and 
``O'' Streets in downtown Fresno, CA the ``Robert E. Coyle United 
States Courthouse.''
  It is fitting that the Federal courthouse in Fresno be named for 
Senior U.S. District Judge Robert E. Coyle, who is greatly respected 
and admired for his work as a judge and for his foresight and 
persistence which contributed so much to the Fresno Courthouse project. 
Since prior to 1994, Judge Coyle has been a leader in the effort to 
build a new courthouse in Fresno. In the course of his work, Judge 
Coyle, working with the Clerk of the United States District Court for 
the Eastern District, conceived and founded a program called ``Managing 
a Capitol Construction Program'' to help others understand the process 
of having a courthouse built. This Eastern District program was so well 
received by national court administrators that it is now a nationwide 
program run by Judge Coyle. In addition to meeting the needs of the 
court for additional space, the courthouse project has become a key 
element in the downtown revitalization of Fresno. Judge Coyle's 
efforts, and those in the community with whom he worked, produced a 
major milestone when the groundbreaking for the new courthouse took 
place earlier this month.
  Judge Coyle has had a distinguished career as an attorney and on the 
bench. Appointed to California's Eastern District bench by President 
Ronald Reagan in 1982, Judge Coyle has served as a judge for the 
Eastern District for 20 years, including 6 years as senior judge. Judge 
Coyle earned his law degree from University of California, Hastings 
College of the Law in 1956. He then worked for Fresno County as a 
Deputy District Attorney before going into private practice in 1958 
with McCormick, Barstow, Sheppard, Coyle & Wayte, where he remained 
until his appointment by President Reagan. He is very active in the 
community and has served in many judicial leadership positions, 
including: Chair, Space and Security Committee; Chair, Conference of 
the Chief District Judges of the Ninth Circuit; President of the Ninth 
Circuit District Judges Association; Member of the Board of Governors 
of the State Bar of California and President of the Fresno County Bar. 
My hope is that, in addition to serving the people of the Eastern 
District as a courthouse, this building will stand as a reminder to the 
community and people of California of the dedicated work of Judge 
Robert E. Coyle.
                                 ______
                                 
      By Mr. BINGAMAN (by request):
  S.J. Res. 34. A joint resolution approving the site at Yucca 
Mountain, Nevada, for the development of a repository for the disposal 
of high-level radioactive waste and spent nuclear fuel, pursuant to the 
Nuclear Waste Policy Act of 1982; to the Committee on Energy and 
Natural Resources.
  Mr. BINGAMAN. Madam President, yesterday, the Governor of the State 
of

[[Page S2417]]

Nevada submitted to the Senate and to the House of Representatives a 
notice of disapproval of the proposed nuclear waste repository at Yucca 
Mountain, pursuant to section 116 of the Nuclear Waste Policy Act. The 
notice was duly referred in the Senate to the Committee on Energy and 
Natural Resources under rule XXV of the Standing Rules of the Senate. 
Under section 115 of the Nuclear Waste Policy Act, it is my duty, as 
the chairman of the committee to which the notice of disapproval was 
referred, to introduce, by request, a resolution of repository siting 
approval not later than the first day of session following the day on 
which the Governor's notice of disapproval was submitted.
  In accordance with the statutory requirement, I am today introducing 
the resolution of repository siting approval. The text of the 
resolution is prescribed by the Nuclear Waste Policy Act. The 
resolution will be referred to committee for a period of up to 60 days. 
Under the terms of the Nuclear Waste Policy Act, the Governor's notice 
of disapproval will stand, and the Department of Energy will be 
prohibited from applying for a license to develop a nuclear waste 
repository at Yucca Mountain, unless both Houses of Congress pass the 
resolution of repository siting approval and it becomes law within 90 
days from yesterday.
  This is an extraordinary process. The 97th Congress, which prescribed 
this process for us to follow 20 years ago, did not do so lightly. The 
Members of the 97th Congress only arrived at this procedure after 
considerable debate. Representative Morris K. Udall, who was the 
principal architect of the Nuclear Waste Policy Act, explained the 
thinking of our predecessors. ``We are all agreed that the States ought 
to have a veto,'' Chairman Udall said. ``If you are going to put 
something as important, as a nuclear waste repository, in a State, then 
the State, through its Governor or legislature, ought to be able to say 
no thanks.'' But, he continued, ``we are also agreed that once the 
State has made that veto, that there ought to be mechanism so that, in 
the national interest, it could be overridden, as we do in war when we 
need an air base or at other times when we need Federal eminent 
domain.''
  The process upon which we are embarking today was designed to serve 
those two goals. It will afford the State of Nevada a fair hearing on 
its objections to the repository and will ensure that those objections 
stand unless the administration can persuade both Houses of Congress to 
override them. At the same time, it will give the administration an 
opportunity to present its case and to override the State's objections 
if it can show its decision was sound and in the national interest.
  It is my intention, once the Senate completes action on the energy 
bill, to schedule hearings before the Committee on Energy and Natural 
Resources to consider the President's recommendation of the Yucca 
Mountain site and the objections of the State of Nevada to the use of 
the site for the nuclear waste repository and to report the committee's 
recommendation to the Senate within the prescribed 60-day period as the 
97th Congress envisioned.

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