[Congressional Record Volume 150, Number 128 (Saturday, October 9, 2004)]
[Senate]
[Pages S10967-S10978]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  UNANIMOUS-CONSENT AGREEMENT--S. 2845

  Mr. STEVENS. Mr. President, I brought this to the Senate floor 
because, as I stated previously, I was informed that tonight the moneys 
for distribution in the hurricane area that FEMA supports will expire. 
We have to pass the MilCon bill and we have to pass the Homeland 
Security bill as rapidly as possible.
  We do not have copies of the intelligence bill that was passed. All 
of us have had requests for it.
  I ask unanimous consent that the intelligence reform bill, S. 2845, 
be printed as passed so we may distribute copies of that and so that 
the conference committee can have copies of that bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. LANDRIEU. I don't see anyone wanting to speak. I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that the Senator 
from Ohio, Senator DeWine, be recognized for up to 12 minutes.
  Ms. LANDRIEU. Reserving the right to object, only for the purposes of 
his statement, and then I would like to be recognized. Otherwise, I 
will object.
  Mr. REID. Otherwise what?
  Ms. LANDRIEU. I am going to object. Only to be recognized for the 
purposes of reading a statement, after which the Senator from Louisiana 
be recognized; otherwise, I will object.
  Mr. REID. I will not agree to that.
  The PRESIDING OFFICER. Is there objection?
  Mr. DeWINE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I rise this evening to thank----
  Ms. LANDRIEU. We are in a quorum call.
  Mr. REID. There was an objection.
  The PRESIDING OFFICER. We were out of a quorum call.
  Ms. LANDRIEU. I note the absence of a quorum.
  The PRESIDING OFFICER. The Senator from Ohio has the floor.
  Ms. LANDRIEU. We were in a quorum call.
  Mr. REID. There was a request for the Senator from Ohio to be 
recognized. The Senator from Louisiana asked that it be modified so she 
would be recognized afterwards. I said I wouldn't agree to that.
  The PRESIDING OFFICER. The Senator is correct. But the Senator then 
yielded the floor. The Senator from Ohio sought recognition and had 
been recognized.
  The Senator from Ohio.
  (The remarks of Mr. DeWINE are printed in today's Record under 
``Morning Business.'')
  Mr. DeWINE. Mr. President, I thank the Chair and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, I ask unanimous consent that I be allowed 
to

[[Page S10968]]

speak for 12 minutes and that immediately after I speak Senator 
Landrieu be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Justice For All Act

  Mr. DeWINE. Mr. President, several hours ago, Senator Hatch came to 
the floor to discuss the DNA bill that we have been able to pass. I 
congratulate him for the fine work on that bill. A number of people 
have worked on that bill.
  I became interested in this issue a number of years ago. I have been 
interested in the whole area of crime technology, frankly, going back 
to my work as county prosecuting attorney in Greene County, OH, many 
years ago.
  In those days, we did not have DNA. We did not have a lot of the 
technology we have today. I have been able to watch over the years, as 
I know the current occupant of the chair has, the great development of 
technology which has revolutionized what we can do today in law 
enforcement to solve crime. It has been one of the things I have worked 
on since I have been in public office--first, my time in the State 
legislature, then in the House of Representatives, and when I was 
Lieutenant Governor of the State of Ohio, and now, in the last decade, 
in the Senate.
  I specifically became interested in what turned out to be this bill 
we have been talking about today, the DNA bill, several years ago when 
I met with the BCI back in Ohio, which is our State lab and State 
bureau, and went out there to find out some of the things that needed 
to be done. I had a long discussion with them in London, OH, about the 
real problem we have in Ohio and the problem we have across this 
country.
  It is a problem of what we call rape kits; where there is a rape 
victim, the police go in, they take evidence from that victim, and then 
many times, tragically, I have learned--I know my colleague who is in 
the chair understands this--these rape kits are stored, they are never 
processed, and that information never gets into any central database. 
There is a tremendous backlog of this across this country.
  Because of this, to try to help clear up this backlog, I introduced 
S. 149, the Rape Kits and DNA Evidence Backlog Elimination Act of 2003. 
About the same time, roughly the same time, Senator Biden introduced a 
bill which had the same intent to deal with this problem. Chairman 
Hatch asked me later on to combine my bill with his and those of other 
Members to create the bill we have today. When he asked me to do that, 
I gladly agreed.
  Today, we all proudly stand as cosponsors of this bipartisan 
legislation. I know my colleague in the chair has worked on this 
legislation. I think it is a piece of legislation that all Americans 
can be proud of and that will help Americans be safer. The provisions 
of my original bill that are included in the legislation we passed 
today will protect innocent victims and will, in fact, put criminals 
behind bars. It will do both.
  This bill includes my language to authorize over $1 billion to 
eliminate the backlog of over half a million rape kits that are sitting 
on the shelves of evidence lockers in police stations across this 
Nation.
  Let me emphasize again that there are over half a million rape kits 
that have not been tested and therefore have not been put into a 
central database. How many of these rape kits contain evidence that 
would take a rapist off the streets? Well, we can't be sure, but we do 
know statistically that approximately one in eight of all kits 
currently tested in Ohio do, in fact, result in a match in our DNA 
database to a rapist. That is an unbelievable figure, one in eight will 
result in this statistical match.
  In fact, approximately the same number will link the rape to another 
crime scene, giving our law enforcement officers one more piece of 
critical evidence that may, in fact, lead to the arrest of a criminal 
and the prevention of future crimes.
  If you add these two figures together, you can see that nearly one in 
four of all rape kits tested will result in key evidence for law 
enforcement. That is a staggering statistic and demonstrates the power 
of modern technology when, in fact, it is used to fight crime.
  This bill also includes my language that will expand the number of 
criminals that we put in our Federal DNA database. Very simply, this 
language will expand the current reporting requirement to include all 
Federal felons, not just a few specific felons as required under 
current law. Of course, the more information that goes into the DNA 
database, the more likely it becomes that we will match evidence from 
the crime scene to the DNA profile of the criminal in the database.
  Additionally, this language will permit States to cross-reference DNA 
information from people under State indictment with the current Federal 
database. For example, if a criminal is arrested and indicted in New 
York, and the New York law enforcement officers enter the DNA 
information in their State database, this law permits New York to share 
this information with the Federal database so all participating States 
can access the information.
  This means that a police officer could link DNA evidence from a crime 
in Ohio to an arrestee in New York. Again, by realizing the full 
potential of available technology, we will identify more criminals, 
prevent more crimes, and protect more innocent victims.
  Finally, this bill includes my language that will extend the period 
of time in which law enforcement officers can utilize DNA evidence to 
solve crimes. Under current law, the statute of limitations for all 
Federal offenses starts when the crime is committed.
  Under my language, if DNA evidence is found at the crime scene, the 
statute of limitations for most crimes does not start to run until the 
DNA evidence is matched to a criminal in the database. This means that 
criminals will not be able to escape justice merely because they were 
able to avoid capture for a specific period of time.
  This bill also contains the Crime Victims Act for which I am an 
original cosponsor. This act provides victims with the right to be 
heard and considered during Federal criminal prosecutions.
  As I know everyone here agrees, we owe it to rape victims, crime 
victims in our society as a whole, to do all we can to apprehend 
violent criminals. This bill takes a significant step in that 
direction.
  I thank Senator Hatch for his excellent leadership, being so 
steadfast in doggedly pursuing the agreement necessary in the Senate to 
pass this bill. Passage of this bill is a testament to his leadership 
as chairman of our committee. I also thank Senators Leahy, Biden, and 
Feinstein for working tirelessly to achieve this momentous outcome.
  I thank Chairman Sensenbrenner, as well as Representative Delahunt in 
the House for their outstanding leadership that resulted in a nearly 
unanimous vote of support by that body.
  Our great Nation will be safer and our confidence in our standing 
judicial system will be reinforced as a result of this timely and much 
needed legislation.
  I would also like to thank the many staff who worked on this bill. 
Specifically, I would like to recognize the Chief Counsels of the 
Senate and House Judiciary Committees for their commitment to get this 
bill done: Bruce Artim and Phil Kiko. I also thank Brett Tolman, who 
crafted a key compromise in the bill that allowed the parties to come 
together; Katy Crooks, who worked tirelessly to better this bill; Jay 
Apperson and Mark Agrast, who brought their outstanding wisdom to the 
process, Julie Katzman, Neil McBride, Jon Meyer, Christine Leonard, 
Louisa Terrell, Bruce Cohen, Tara Magner, David Brog, Ted Lehman and 
David Hantman for their strong knowledge of critical issues; and my 
exceptional legislative team that worked so very hard on this for me 
and the people of Ohio: Paul Palagyi, Peter Levitas, Robin Blackwell, 
Ann O'Donnell and my Crime Counsel Robert Steinbuch. And my former 
Crime Counsel Evelyn Fortier.
  The PRESIDING OFFICER (Mr. Hatch). Under the previous order, the 
Senator from Louisiana is recognized.
  Ms. LANDRIEU. Mr. President, under the previous order, I asked to be 
recognized after the remarks of Senator DeWine. I really appreciate the 
leadership trying to work out our schedule. It has been a long couple 
of days. It is getting late into the night. I really appreciate 
everybody trying to work forward to getting some of these bills

[[Page S10969]]

passed. But as I said, one of the most important bills that we have 
remaining to pass is a $137 billion tax relief bill.
  There are many good provisions in this bill. There are many 
industries, large and small, in Louisiana that are going to be helped 
by it. I would have liked to have voted for the bill. There are energy 
tax breaks. There are shipping interests that are bolstered and 
supported in here, which means a lot of jobs to Louisiana. I would have 
wanted to vote for this bill.
  I am not going to be able to vote for the bill, and won't vote for 
the bill unless we have some specific action on one provision--not the 
Landrieu provision, as some of the others have said, not an individual, 
personal Landrieu provision, but the provision for the Guard and 
Reserve, the men and women on the front line fighting for us whom every 
Republican and every Democrat in this body voted to support. Everyone, 
all of the Senators, from both parties, by unanimous vote, voted to 
send that provision over to the House to give modest tax relief to 
businesses, the small businesses and medium- and large-size businesses 
that are keeping those paychecks going to the front line.
  We thought it was a good idea to take $2 billion of the $137 billion 
to provide some tax relief for those employers so that the Guard and 
Reserve that make up 40 percent of our armed services that are picking 
up more of the burden and are taking all the bullets on the front line, 
whether it is in Iraq or Afghanistan or somewhere else, so their 
paychecks could be made whole.
  I want people to understand. The Senate of the United States felt 
strongly about that. But we sent the provision over. And when it got 
over to the House, it was summarily, unjustly, unconscionably cut out 
by the House Republican leadership. And it is a shame.
  So over the course of the last few days, as we have tried to have 
debates about this bill in the morning and the afternoon and into the 
evening, I have spoken about this issue. The reason this poster is up 
is because it is a visual of what is in the bill and what is out of the 
bill. Ceiling fans are in the bill. Ceiling fans are really important 
in Louisiana. I know they are to the Senator from Nevada because we are 
from States that are very hot. We like air-conditioning, and we like 
ceiling fans. I am not picking on the ceiling fan industry. It is an 
important industry, and I am sure there is a good reason. I can't 
articulate what it is because it wasn't my provision. But someone could 
probably give a good explanation as to why the ceiling fan industry is 
getting a tax break.
  But the Guard and Reserve, going to Iraq, taking the bullets, 
fighting on the front line, were left out of the bill, and ceiling fans 
are in the bill.
  That is the truth. It is a shame. Many of us believe strongly that 
this injustice needs to be corrected.
  I see the Senator from Iowa, Mr. Harkin, has raised other issues that 
he feels very strongly about that were either not addressed 
appropriately or properly in either this bill or several others. I want 
my constituents to know, and I would like my colleagues to know, I do 
not want to make these schedules difficult. I do not. I understand the 
pressures that are on the Members of this body.
  But I also understand the pressures that are on the families who have 
their father or mother or brother or sister or husband or wife on the 
front line. I understand the pressures of these families. So do many 
other colleagues in this Chamber. If we can do something to help them, 
then we should. Maybe we cannot get them in this bill. But I have had 
conversations with the good leadership on the Republican and Democratic 
side, who are working as we speak to find a way to help the Guard and 
Reserve so they are not left out of this $137 billion tax bill with 
over 509 items. But they are not an item, they are not a line, they are 
not a paragraph or diddly-squat in the bill. So we are talking about 
how we could possibly get them included in some other bill that might 
pass before we go home for the election.
  I can promise you, in the elections that we are getting ready to 
have, Members of Congress, Members of the Senate, the President, and 
the challenger for the Presidency, our nominee, Senator Kerry--
everybody is going to be taking pictures with the troops. I guess that 
is appropriate. But this Senator thinks that is enough of the pictures. 
Could we please put them in the budget?
  I am not up for reelection this year, so this is not a campaign 
speech. The people in Louisiana have been supporting our troops. Our 
Guard and Reserve are the best in the Nation. Maybe a Senator would 
argue, but we have awards to prove it. We win awards. We are about the 
best--in the top 5 in the Nation. I know these men and women. They 
don't ask for much. They don't ask to be on the front of every tax 
break and giveaway. They are willing to sacrifice. But for Heaven's 
sake, we are going to pass a tax bill and give everybody in America 
$137 billion and leave them out? I don't think that is right. I don't 
think my colleagues think it is right or just.
  I hope that sometime over the next 3 or 4 days that we are here--I 
know it is Saturday night. I have two small children. I had to make 
arrangements so I could be on the floor. I have a husband at home. I 
know everybody is going to go to church tomorrow, and people were at 
synagogue today and yesterday. I understand that. But I think we need 
to spend a little time talking about this issue. Why were they left 
out? How could we afford $137 billion and not afford a tax cut for 
them? Was it too complicated to figure out?
  There are a lot of complicated things in here. It would make people's 
eyes twist if I explained how we were giving tax credits to foreign 
corporations so they could close down here and go to the Bahamas and 
open a post office box and get a tax check. There are more complicated 
things in here than saying to businesses in America: Thank you for 
being patriotic and for voluntarily sending that paycheck to the front 
line, closing the gap between what the reservists make as part of the 
Reserve and what they made for your company. We would like to honor 
that and give you a tax credit. You can pick up 50 percent of the 
burden, and the Government can pick up the other half.
  Evidently, this is too much for us to pick up. It is not too much for 
me to stand here. I know the hour is getting late. The Senator from 
Iowa wants to speak. I just say again that I am going to get to the 
floor over the course of the next few days and I will speak about this 
issue. I thank the leadership for working in a cooperative manner to 
allow that to happen because I am still hopeful that we can fix this 
bill. Maybe the President will veto the bill when he finds out it is 
not in there. Maybe it could be fixed in a different way. Maybe another 
bill could be attached. I know if there is a way the leadership in this 
body wants to fix this, they could. I think the men and women on the 
front line deserve our best effort in that regard.

  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Tobacco Regulation

  Mr. HARKIN. Mr. President, first of all, I want to thank a number of 
people. I thank Senator DeWine for his dynamic and great leadership on 
the issue of FDA regulation of tobacco products. He has been in the 
forefront of this fight for a long time. I thank him for his 
leadership, working again with Senator Kennedy on this issue and so 
many others on both sides of the aisle to get that position established 
by the Senate, which we did, and that was that we would have a tobacco 
buyout but also FDA regulation of tobacco, finally. We spoke on that, 
but, of course, the House didn't go along, and we find ourselves now 
with this great big tax bill of around 630 pages we have on our desk. 
Guess what. No FDA regulation of tobacco.
  I thank Senator DeWine and I thank Senator Landrieu for her strong 
and dynamic leadership in being here on a Saturday night to continue to 
make the point about what happened to our guardsmen and reservists in 
the United States. It is unconscionable what the House and the 
President did on this issue. We ought to put the blame where it really 
lies; it is at the White House. That is where it lies. I might say the 
House, but they are just doing what the White House wants them to do. 
They

[[Page S10970]]

are just a rubberstamp for the White House. It is the White House that 
called the shots on that one.
  I thank Senator Landrieu for sticking up for our people in uniform, 
for those all over the country who have been shortchanged by this so-
called tax bill.
  Mr. President, I want to take some time here to speak about tobacco 
and how unconscionable it is that this bill does not have FDA 
regulation of tobacco included. Over the last several days, we have 
heard a great deal about the dangers of smoking and the devastation 
caused to millions of families every year. With the results of the 
conference report on Wednesday, I fear colleagues have not been 
listening to the details of the public health crisis our Nation faces 
regarding tobacco and smoking.
  Let me repeat them loudly and clearly so Members understand what they 
are opposing and why we so urgently need FDA regulation of tobacco.
  One, smoking kills more than 450,000 Americans every year.
  Over the last 10 years, smoking has claimed more than 4.4 million 
lives.
  Smoking is the leading cause of preventable death in this country.
  Smoking causes heart disease, cancer, emphysema, and a host of other 
related illnesses.
  Two-thousand kids start smoking every day, and, ultimately, one in 
three will die of smoking-related causes.
  Smoking-related medical expenditures have indirect costs resulting 
from lost work activity.
  There are 250 chemicals in tobacco smoke that are toxic or cause 
cancer in humans.
  Tobacco use accounts for at least 30 percent of all cancer deaths.
  Smoking causes nearly 87 percent of all lung cancers, which is the 
leading cause of cancer deaths.
  Last year, nearly 70,000 women died from lung cancer in the United 
States. That is more deaths than from breast cancer and all 
gynecological cancers combined--70,000 women.
  If these facts don't paint a stark picture of the urgency for FDA 
regulation of tobacco, I don't know what will. You know, when there is 
an outbreak of food poisoning in a local school, we move Heaven and 
Earth to find the source and take appropriate action to make sure our 
kids don't get sick again. But somehow, when it comes to protecting our 
kids from a known toxin--tobacco--we find our hands tied. Why? Well, it 
is because of big tobacco. There is too much at stake in terms of 
profit loss for tobacco companies to allow this regulation to go 
through. They have been fighting it for years.
  I introduced the first-ever comprehensive bipartisan FDA regulation 
with, I might say, Senator Bob Graham and former Senator John Chafee of 
Rhode Island.
  That bill was introduced almost 6 years ago. I heard the same reasons 
then that I do now on how unnecessary FDA regulation is. Quite frankly, 
our bill went much further and was much tougher than this one. Creating 
a more sensible policy for tobacco has been a goal of mine for many 
years. It was in 1977, in my second term in the House of 
Representatives, over 21 years ago, that I first introduced legislation 
calling for repeal of the tax deductibility of tobacco advertising and 
marketing.
  Unfortunately, victories in the tobacco wars for consumers and for 
our kids have come few and far between. Tobacco wins every time.
  With the mounting evidence we have today about the absolute dangers 
of smoking, it is paramount we pass a comprehensive plan that would 
once and for all change how this Nation deals with tobacco and 
dramatically cut the number of our kids addicted to this deadly 
product.
  That said, I am afraid the power of big tobacco has once again 
superseded the need to protect public health. The fact is we know now 
that 90 percent of current smokers became hooked on tobacco as kids. 
That should sound alarms that something needs to be done to stop this 
from happening, and to prevent senseless disease and death that is 
linked with this addiction. This is a drug addiction. Tobacco is a 
drug. It is addictive, just like methamphetamine, cocaine, and heroin. 
It is addictive and it kills you.
  For too long, kids have been getting an unfiltered message from the 
tobacco industry: Smoking is cool. Smoking is harmless. Smoking is 
glamorous. Smoking is for active young people and will make you look 
more attractive.
  Today, big tobacco companies spend more than $11.5 billion a year in 
advertising and marketing their products. Children are exposed to 
messages that are deliberately designed to attract a new generation to 
the smoking habit. The motivations are clear: Anything to make more 
money for big tobacco.
  Now we hear from tobacco companies all the time that, oh, no, their 
advertising is to get people to shift brands, go from one brand to the 
other. Well, I will illustrate here very shortly that is not what they 
are up to.
  Many think regulation is unwarranted after some of the restrictions 
that were agreed to as part of the master settlement agreement a few 
years ago. The good old MSA, the master settlement agreement. Yes, 
there are billboard restrictions and a few things such as that, but now 
we have much more sophisticated mechanisms.
  Let me refresh some memories. Here is Joe Camel, a smooth character, 
Joe, flying his jet airplane with the afterburners going. He has a 
beautiful young woman looking over her shoulder, looking at Joe Camel 
with his Camel cigarette.
  Who is this appealing to? Kids.
  Now, there is another Joe Camel here. Here is Joe Camel, with Camel 
Lights, cool Joe. He has his red convertible and black T-shirt and 
Levi's, and Joe is cool. Joe Camel is a neat guy.
  Well, we forced big tobacco to get rid of Joe. They did. We do not 
see Joe Camel any longer so we can take old Joe down. Joe Camel is 
gone. I want to refresh memories. I want to refresh memories, because 
there was a time--and I will repeat this, there was a time--a study was 
done that kids in America recognized Joe Camel more than 
they recognized Mickey Mouse. It is true. But we got rid of Joe Camel.

  One might ask, what now do you need? I will show my colleagues why we 
need to have FDA regulation, because tobacco has gotten smart. They are 
now spending more than ever on predatory marketing since the MSA was 
agreed to. Big tobacco is spending 60 percent more on marketing than 
they were before the master settlement agreement.
  Again, are they trying to get people to switch? Let us take a look. 
Here is Liquid Zoo. Now, I had a pack of those with me when we were in 
conference. I was one of the conferees arguing to keep the FDA 
regulation that we had in the Senate, and I had strawberry flavor. This 
was Liquid Zoo, strawberry flavor. When you smell it, why, you would 
swear you were in a strawberry patch. It smelled wonderful. It smelled 
like strawberries.
  This is the tobacco. Liquid Zoo-flavored cigarettes are an exotic 
blend of strawberry-flavored tobaccos for a sweet, fresh taste and 
aroma.
  Do they really think they are trying to get someone to switch from 
Marlboros or Winstons or Camels to that? That is going right to our 
kids. That is what this is about.
  Then we have Kool Rapper here. We have another one. Here is the Kool 
Rapper. Here is a rapper. He is cool. He has his mike and he is 
spinning the disk or CD or whatever it is there, and everyone is 
dancing and that is called Kool Rapper.
  Now, do my colleagues think they are trying to go after adults with 
that? Do my colleagues think they are trying to go after 40 and 50-
year-old people to get them to switch from Marlboro or Winston or Camel 
to that? No. This is for kids. They are getting to young people. They 
are spending 60 percent more on marketing now than they did before the 
master settlement agreement, and we took away Joe Camel on billboards, 
but now they are spending 60 percent more and this is where it is 
going.
  Because what do they know? They know 90 percent of all tobacco 
smokers today started when they were young. They get them hooked early.
  I have another Kool Rapper here. This is just, again, special edition 
packs. Now, they do not any longer have the little coupons where you 
can get gear and all that kind of stuff. That is gone, but now they 
have special edition packs: Celebrate the sound track to the streets. 
It does not take a genius to figure out who they are targeting with 
that.

[[Page S10971]]

  So big tobacco has found tricks and dodges to circumvent the law, and 
they have been very effective. From the birth of Joe Camel to the birth 
of Liquid Zoo and Kool Rapper, we have seen broken promises and bad 
faith again and again from big tobacco.
  Giving the FDA the power it needs to end these false messages is 
exactly what is needed to stop big tobacco's exploitation of our kids. 
The only message our young kids should hear about tobacco is the truth: 
Smoking is a killer. It is a drug. It is addictive. It causes cancer. 
It causes emphysema. It causes a lot of other illnesses. That message 
needs to come through loudly and clearly. Since industry will not 
convey that message, we need strong FDA regulation to make it happen.
  Instead, what do we do here now with this big tax bill we have? We 
allow big tobacco to further confuse kids when it comes to the actual 
safety of cigarettes.
  This morning I got up and I had my Cheerios. I actually had a bowl of 
Cheerios this morning. Now, the bowl of Cheerios I ate this morning had 
to go through a multistep process set up by the Food and Drug 
Administration to earn its health claims that it is heart healthy and 
lowers cholesterol. It had to go through certain steps.
  Somehow tobacco, a known health risk, does not have to go through any 
of those steps whatsoever. In fact, tobacco companies are free to add 
anything they want to their product without having to inform consumers 
or without any regard to the health effects of those additives.
  For example, tobacco companies have added ammonia to their products. 
I do not know if my colleagues have ever smelled ammonia, but they get 
an idea of what it is like. They add ammonia to tobacco products on the 
ground that it improves ``tobacco satisfaction.'' They add the ammonia 
in order to create a ``free base'' form of nicotine that creates the 
highly addictive quick delivery form of nicotine to the brain. It goes 
from your lungs to your brain in 8 to 10 seconds when they add ammonia. 
We know this. So tobacco companies add ammonia so that you get a bigger 
kick right away, in 8 to 10 seconds. Adding ammonia to cigarettes is 
analogous to what crack cocaine was to cocaine--it just gives you a 
faster high, it goes to your brain quicker. But guess what. The tobacco 
companies do not have to tell you that. They just tell you have a Kool 
Wrapper there. They don't have to tell you anything else.

  The industry claims that many of its ingredients are benign flavoring 
agents like strawberry that are on the FDA GRAS list. That stands for 
Generally Recognized As Safe. The tobacco companies say we put these 
ingredients in and they are benign; however, those ingredients such as 
chocolate, licorice, and other flavors are not safe when they are 
combusted, and they often create toxic chemicals when they are inhaled 
by the smoker. So, yes, maybe licorice is safe to eat, but when you 
combust it, then it creates toxics that you inhale. The industry will 
not tell you that either.
  No other industry in America is allowed to add ingredients to their 
products without first having them tested and approved by the Federal 
Drug Administration for safety. For example, Kraft Foods, a subsidiary 
of Altria Group along with Philip Morris, could not add ammonia to 
Kraft macaroni and cheese on the grounds that it improves cheese 
satisfaction for its customers. Why can't they add ammonia to macaroni 
and cheese? They can't add ammonia to macaroni and cheese because it is 
not on the FDA list of products that are generally recognized as safe. 
They can add ammonia to cigarettes; they can't add it to Kraft macaroni 
and cheese. The FDA has more authority to regulate macaroni and cheese 
than it does cigarettes. Imagine that.
  I have this to show what I mean by that. Here is something called 
Omni cigarettes. Here is what it reads:

       Omni is the first premium cigarette created to 
     significantly reduce carcinogenic PAHs and nitrous amines, 
     which are the major causes of lung cancer in smoking.''

  That is what they say.
  Says who? The tobacco company says that. But we have no way of 
verifying that. They can make all the claims they want, like low tar, 
light, less carcinogenic, but we the public have no way to verify that 
because the Federal Food and Drug Administration has no authority to 
regulate tobacco or to go in and tell us what is in there or to make 
the tobacco companies verify what they say.
  I have an Eclipse one here, too. Here is an Eclipse. This is 
interesting:

       The best choice for smokers who worry about their health is 
     to quit. Here is the next best choice. Are you ready for 
     Eclipse? Get the facts.
       I have the support of my wife..if I'm going to smoke, she'd 
     prefer I smoke Eclipse.
       A better way to smoke.

  Talk about a warped message:

       Omni, there is no better way to smoke.

  A better way to smoke? There is a better way to get cancer. There is 
a better way to get emphysema. This cigarette will give it to you 
faster. They don't tell you that, but that is what is happening.
  During debate in the conference committee, one of my colleagues on 
the House side mentioned that the Founding Fathers would be shocked if 
they knew that Congress was trying to regulate an industry that was in 
part responsible for the early prosperity of our country. It is more 
likely that they are rolling over in their graves at the fact that we 
have known for more than 30 years that tobacco kills and that we have 
not done one thing about it. They didn't know it in the 1700s. They 
didn't know, but we know now.

  The Congress is now considering, one more time, giving immunity to 
big tobacco and turning a blind eye to their responsibility to protect 
our kids and the public health. That is what is not in this tax bill. 
There are tax breaks for all kinds of things. There are tax breaks in 
here for gamblers who come from foreign countries to gamble here. 
Imagine that, they need a tax break. There is a tax break in here for 
people who import ceiling fans from China.
  Lord only knows what else is in this tax bill. No one has really read 
it. No one knows what all these numbers and staff mean. There is a tax 
break here and a tax gimmick there; a tax break here and a tax gimmick 
there.
  When this bill was before the Senate, this Senate added a provision 
that did two things. It allowed for a buyout of tobacco farmers' 
quotas--which I have been in favor of for years, by the way. Coupled 
with that is FDA regulation of tobacco.
  Again, as someone who sits on the Agriculture Committee and also on 
the HELP Committee, I have been involved in both sides. I have espoused 
for a long time that we have a tobacco buyout, that we buy out these 
quotas. Why should we do that? These quotas were put on 60 or 70 years 
ago. They have been built into the price of the land. I can't go back 
and undo that. It is a fact of life. Many farmers in tobacco growing 
States--some of them are small farmers. All they have is that quota. 
They don't have anything else. The land is really not worth that much. 
So it is like taking away their income base. So I have always said we 
need to buy these quotas out and get rid of this tobacco program for 
once and for all. On the HELP Committee side, I have also said, if we 
are going to do that, then we ought to have FDA jurisdiction over 
tobacco.
  This debate went on and on for years, and final we agreed. I might 
say that Philip Morris was one of those who agreed with us. I commend 
them for that. So we got it through the Senate.
  It goes to the House. Guess what the House did. The tobacco buyout 
that we passed in the Senate, the money that is going to go to those 
tobacco farmers did not come from the taxpayers. It came from the 
tobacco companies. Of course, the tobacco companies will pass that on 
to tobacco smokers, so the smokers were going to pay for the buyout of 
the quotas. That is as it should be. Why should the taxpayers pay for 
it? We agreed on that. Philip Morris agreed on that. We agreed that we 
would have FDA jurisdiction.
  Here is what the House did. They broke that agreement. First of all, 
the House of Representatives, and I am sure with the approval of the 
Bush White House because they wouldn't have done it unless the White 
House agreed, they made the buyout of the quotas paid for by the 
taxpayers of the country. All of you who do not smoke, you are now 
going to pay to buy out those tobacco farmers. That is what was in the 
House bill, plus they took away the FDA jurisdiction over tobacco.

[[Page S10972]]

  In the final analysis, they put back in the companies paying for the 
buyout, but they left out the FDA regulation of tobacco. So here we 
are. No FDA regulation. That is what is not in this FSC bill.
  It was my understanding the purpose of this bill was to repeal an 
illegal export subsidy. Now it has morphed into a big special interest 
giveaway that will help everyone from restaurant owners to makers of 
bows and arrows, tackle boxes, sonar fishfinders, NASCAR track owners, 
Alaskan whalers, foreign gamblers, as I mentioned, who win at U.S. 
horse and dog tracks.
  I want to repeat that.
  In this bill, there are provisions to give tax breaks to foreign 
gamblers who win at U.S. horse and dog tracks. Those interests trump 
the 2,000 kids hooked on smoking every day by the big tobacco 
companies. Imagine that.
  What are our priorities around here? What is the priority of the 
White House? I am telling you it could never have happened unless the 
President signed off on it.
  You go out there, Mr. President. You have some more days before the 
election. Go out there and tell the American people how you pulled the 
rug from underneath FDA regulations of tobacco, how you sided with the 
big tobacco companies to get our kids hooked on tobacco every day--
2,000 every day. Go out and look those mothers and fathers in the eye 
and tell them your priority is the big tobacco companies and not their 
kids.
  Yes. This would never have been done if the White House had not OK'd 
taking FDA jurisdiction away. Shame on the White House.
  We had the opportunity here to pass this legislation once and for 
all, and to stamp out youth smoking in this country and protect kids 
from joining the ranks of the 450,000 who die from smoking each year. 
The tobacco industry has been engaged in a systematic campaign of 
distortion and deceit to hook kids and hide the facts from the American 
people for far too long.
  I met a fifth grader, Ted Stanton, from Des Moines, IA, a few months 
ago who reminded me how important regulation is. Ted won a statewide 
poster contest sponsored by the American Academy of Family Physicians 
for his efforts to raise awareness about smoking. He is a fifth grader. 
What happened was Ted has had to watch his dad struggle with the habit 
of smoking for years. He drew a poster. His poster is an attempt to 
warn kids about smoking.
  Here is his poster and here is why he won the prize. ``Invest in your 
future.'' He has the date 2054. ``Pay to the order of big tobacco 
companies $73,000.'' That is $4 a pack every day times 50 years. In 
other words, you smoke a pack a day for 53 years and you will pay big 
tobacco companies $73,000.
  I thought Ted Stanton, a fifth grader, really pointed it out. That is 
what you are doing when you start smoking. You are going to smoke for 
50 years, if you are a teenager, a pack a day, $73,000.
  We do have some kids like Ted and others who realize they are being 
targeted by big tobacco, but they are defenseless. What are we doing to 
help them? What we are doing is protecting big tobacco--the same guys 
who conspired years ago to hide the truth about tobacco and instead 
pushed their deadly products on our most valued treasure, our kids.
  It is disgraceful that this body has not acted yet. It is disgraceful 
that we are getting half of the deal we had worked on for years, the 
tobacco buyout of the quotas. Guess what happened. The way they worked 
this tobacco quota buyout is you are going to buy out the quotas, but 
now tobacco will be growing cheaper. Now the tobacco companies will be 
able to buy tobacco cheaper than they had before, making more money, 
hooking more kids, without FDA authority.
  The reason I say that is because when we passed the bill in the 
Senate, we had a provision that provided for a licensing program that 
would prohibit more and more people growing tobacco in this country. 
The House took that out. So we got the worst of all possible worlds--no 
FDA regulation, a buyout of the quotas, more people will be able to 
grow tobacco, and the tobacco companies will get it cheaper and make 
more money to hook our kids. What a deal. Yet we can take care of 
foreign gamblers who come to bet on horses. But we can't take care of 
our kids. Shame on us.

  (Mr. HATCH assumed the Chair.)
  I know the hour is getting late. I see the occupant of the Chair, 
someone for whom I have great respect, the Senator from Utah.
  I will state publicly that the senior Senator from Utah has also been 
in the forefront of the fight against tobacco. He always has been. I 
compliment him for that. I know he feels as strongly about antismoking 
and stopping kids from smoking as I do, or as Senator DeWine does, or 
Senator Kennedy, or anybody else does. The Senator from Utah has been 
stalwart in his support for getting FDA regulation of tobacco. I thank 
him for that. I encourage him to keep up his leadership on that because 
we have not yet fired the last shot. We are going to be back.
  I wish the President of the United States, using the bully pulpit of 
the White House, had come out in an address to the Nation and said we 
need FDA regulations for tobacco, we need to stop our kids from getting 
hooked, and call upon the House and the Senate and say he will not sign 
this bill, he will veto this bill unless we protect our kids.
  Think of what would have happened if the President of the United 
States had said that. We would have a tax bill here, but we would have 
FDA regulation of tobacco in here. I am sorry the President missed a 
golden opportunity and thus we have missed a golden opportunity. Thus, 
tomorrow and the day after, and next month, and next month, and next 
year, thousands of kids every day might pick up a pack of Liquid Zoo, 
because it smells nice. It tastes like strawberries. They will say, 
There is no harm in that, plus it makes me look glamorous. That is what 
all the ads say.
  Think about it. That is what is going to happen. Shame on us.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. I see the occupant of the chair, and I know he wants to 
go home. But I said to the managers I can be interrupted when they are 
ready to wrap up. I want the occupant to know I am not holding him 
here.
  I will talk about one other item that is not in this FSC bill that we 
got stiffed on. We passed it four times in the Senate and twice in the 
House. I am talking about overturning the regulations that this 
administration put out that will deny overtime rights to over 6 million 
people.
  Again, just last week, in a replay of what happened a year ago, the 
Bush administration used the conference to kill my provision to stop 
the Department of Labor's new rule on overtime pay that if allowed to 
stand will strip 6 million people of their right to time and a half 
overtime.
  The bill before the Senate today serves the simplest of purposes. 
This tax bill has everything in it for everyone, but what is not in it 
is protection for the workers of America, protection for those who make 
over $23,660 a year. Actually, for some below because of little 
gimmicks that can be used to deny them their right to overtime.
  Again, this is simply a matter of fairness. People believe if they 
put in more than 40 hours of work a week, they are giving up premium 
time, time with their family. I had a woman who wrote me and said: 
Look, I go home from work and my second job starts. I go home, take 
care of my kids, I get dinner ready, help them with their homework, and 
then I have to do washing, and this and that. But my time with my 
family is my premium time. If I am asked to give up my premium time 
with my family to work on my job, I ought to get premium pay.
  What the Bush administration has done is said: No, sorry, we will ask 
you to work overtime and we will not pay you one cent more.
  Again, a little history. It has been sacrosanct since 1938, the Fair 
Labor Standards Act. If you work over 40 hours a week, you get time-
and-a-half pay. It has been that way since 1938. We

[[Page S10973]]

have modified it a little bit here, a little bit there, but every 
single time we have changed the Fair Labor Standards Act, we have 
enlarged the pool of people who get covered by time and a half. This is 
the first time where up to 6 million people will lose their right to 
overtime pay.
  Now, some will say but they raised the base to $23,660. In other 
words, anyone who earns under that is automatically eligible for 
overtime. Quite frankly, most people working there are already eligible 
because they are not salaried, they are hourly workers. While that is 
fine, we should raise the base. The administration then went and took 
away overtime pay rights for anyone making over $23,660 a year. If you 
are making $23,661, you are in a separate category. Just barely over--
well, that is poverty wages--and you still are not eligible for time 
and a half overtime.
  I also say every time since 1938 when we have changed the Fair Labor 
Standards Act, it has come to Congress. We go through the committees, 
the committees have hearings, we bring in witnesses, they draft a bill, 
it is debated in the Senate, and it finally goes to the President. That 
is the way it ought to be. That is transparent; it is open; everyone 
gets their say. We can debate it and amend it. We, the elected 
representatives of the people, get to debate and amend it--a strange 
concept, I guess, to this administration.

  What this administration did 1\1/2\ years ago, sort of in the stealth 
of night without having one public hearing, they promulgated these new 
rules on overtime.
  Some might say: Well, they have had hearings since then. Yes, thanks 
a lot, after the horse is out of the barn and they closed the door. 
Fine. But that is not the way it should have been.
  So now we have a situation where they finalize the rules on August 
23. We have never really debated or amended that in the Senate. I have 
on four different occasions in the Senate offered amendments to 
overturn those rules, to go back to square one, to start over. Let's do 
it the right way. We have passed them here, but the administration says 
no every time.
  I watched the debate last night, and I heard the President talking 
about domestic policies and jobs and economic growth. And I thought, 
wait a minute, he even talked about overtime. He said people are 
working overtime. I heard him say it last night. I thought, they are 
working overtime, but what the administration wants to do is take away 
their overtime pay.
  That is exactly what is happening. We have facts. We have the data. 
People are now being denied time and a half overtime for working over 
40 hours a week because they are being ``reclassified.'' Guess who is 
getting hit first. Women. Why do I say that? Many women raise families, 
start later in life, and start at lower income jobs. Many of these are 
salaried positions. Because they are on a salary, they will be 
reclassified. As they get reclassified, they will be exempt from the 
overtime laws. If overtime is free to the employer, it will be 
overused.
  This chart shows a study by the Center for Women's Work at Rutgers 
University. The chart shows those who are eligible for overtime, in the 
green, are protected; the red are not protected. Those protected by 
overtime work are about 20 percent of workers working 40 hours a week. 
If they are protected, chances are 20 percent of these people work over 
40 hours a week. If they are not protected by overtime, 44 percent of 
these people work over 40 hours a week--twice as many. So now we will 
take away this protection from this 20 percent. Then they will be 
working overtime, and they will not get paid for it.
  Right now, if they are covered by overtime protection, only 5 percent 
work over 50 hours a week. If they are not covered by overtime, 15 
percent, three times as many people not covered by overtime laws work 
over 50 hours a week.
  That says it right there. If the employer does not have to pay you 
time and a half, work them more, and they will not hire any new 
workers.
  It is interesting to note--the occupant of the chair will find this 
interesting--in 1933, 5 years before the Fair Labor Standards Act was 
signed into law, the Senate voted 53 to 30 to set a cap on the number 
of hours in a workweek. Was the cap 50 hours? Was it 40 hours? No, it 
was 30 hours. Imagine in 1933, this Senate, in this Chamber, voted 53 
to 30 to say that the workweek would be 30 hours. You could not pass 60 
hours here now. Imagine that. In 1933, this Senate voted 53 to 30 to 
set a 30-hour workweek. Amazing. The compromise was reached 5 years 
later at 40 hours a week, and that is what it has been ever since.

  Again, we know what the intent of this proposed rule is. The intent 
of this proposed rule is to allow employers to work employees longer 
than 40 hours a week and not have to pay them time and a half. And we 
have a final rule on that, a final rule. These are going to be low- to 
middle-income workers. They are not organized. They do not have a 
strong voice. So the administration feels they can run roughshod over 
their rights.
  For the life of me, I cannot understand this. People work hard. Many 
families are working two jobs where the husband and wife are both 
working, trying to make ends meet, trying to save a little money to put 
away for the kid's college education, maybe to buy a better house, move 
up the ladder a little bit. For those who work overtime, 25 percent of 
their income comes from overtime.
  I see the managers are here to wrap up. I will just conclude by 
saying that, again, just as it is a shame and a shame on us that we do 
not have FDA control of tobacco, shame on us also, and shame on this 
administration, for taking away the overtime rights of 6 million people 
in this country.
  With that, I yield the floor.
  Mr. HATCH. Mr. President, I express my strong support for the 
conference report to accompany the American Jobs Creation Act. In order 
to protect our domestic manufacturers, strengthen our economy, better 
help U.S.-based multinational firms compete globally, and honor our 
trade obligations, the Senate must pass this critically important and 
overdue legislation before recessing for the elections.
  I wish to start by congratulating the chairman of the conference 
committee on this bill, Congressman Bill Thomas, and the cochairman, 
Senator Chuck Grassley, for their leadership and exceptional 
cooperation in finishing the conference on this bill in time to bring 
it to the House and Senate floor this week. Many thought completion of 
this task would be difficult or impossible, given the large differences 
in the Senate and House versions and the time constraints the 
conference committee faced.
  The innovative conference process developed by the chairman and 
cochairman made success possible. Conferencing a large and diverse pair 
of tax bills in the usual fashion could have taken many weeks and led 
to a likely failure to finish this bill before sine die adjournment of 
the 108th Congress. Again, I recognize the extraordinary achievement of 
this conference committee and thank its leaders and my fellow conferees 
for their hard and dedicated work.
  This conference report represents what we hope will be the 
culmination of a very lengthy and fascinating issue that had its 
genesis decades ago but has festered into a growing problem over the 
past several years.
  I will leave to others to go into detail about the long history of 
the export subsidies in our tax law that gave rise to this conference 
report, but the unusual nature of this bill and its difficulty in 
passing the Congress are reflections of the complexity of this issue.
  The crux of the difficulty of the bill is that the rulings of the 
World Trade Organization on the trade-legality of our export tax 
subsidies put the Congress in a very tough position. In essence, we 
found ourselves needing to repeal these export subsidies, known as the 
Foreign Sales Corporation, FSC, provision and its replacement regime 
known as the Extraterritorial Income, ET, exclusion.
  By repealing these provisions, which we must do in order to honor our 
trade obligations, we effectively raise taxes by almost $6 billion per 
year on thousands of U.S. businesses that manufacture goods for export.
  Leaving it at this is simply unacceptable. Why should we have to 
convert a provision designed to help U.S. manufacturers compete in an 
ever-increasingly difficult global marketplace to a

[[Page S10974]]

situation where they suffer a competitive disadvantage?
  Yet, this is exactly the problem the Congress faces now that it is 
forced to repeal the export tax benefits.
  When confronted with a similar problem in 2000 after the WTO ruled 
the FSC provision to be in violation of international trade rules, 
Congress passed the ETI in its place. With the ETI, we were able 
largely to replicate the benefits of the FSC regime, so that exporting 
taxpayers paid few if any extra taxes with the repeal of FSC. 
Unfortunately, the WTO subsequently ruled that the ETI provision also 
was an illegal trade subsidy that also must be repealed.
  So, the conundrum facing the Congress with this situation was to find 
a way to enact other tax cut benefits for exporting manufacturers, to 
offset the increase from repealing ETI, without violating the WTO 
rules.
  Unfortunately, this has proven impossible, so both the Senate and 
House bills attempted to find rough justice for business taxpayers by 
finding other ways to deliver tax benefits besides basing them on 
exports. Such attempts gave rise to the political and practical 
difficulties of this bill, including the fact that it took many months 
of hard effort to reach the point we are today.
  For example, my own bill to address the FSC/ETI problem was S. 1475, 
the Promote Growth and Jobs in the USA Act, which I introduced in July 
2003. This bill would have delivered rough justice tax relief in two 
ways.
  First, it would simplify and rationalize the international tax rules 
that currently harm the ability of U.S. firms to compete globally, and 
second, it would provide incentives for companies to increase their 
ability to produce goods by acquiring new equipment and engaging in 
more research and development.
  Other FSC/ETI solution bills were also introduced. On the same day I 
introduced S. 1475, Chairman Thomas introduced H.R. 2896, the American 
Jobs Creation Act. The two bills were similar in many ways, and both 
included international tax reforms. The Thomas bill, however, included 
a number of other provisions designed to help U.S. businesses create 
jobs and better compete.
  Another bill, introduced last year by Congressmen Crane, Rangel, and 
Manzullo, offered a different direction still. This bill provided a 
deduction equal to 10 percent of a company's production activities.
  In the Senate, Senators Grassley and Baucus introduced a bill that 
included some of the best elements of all the other bills. Even though 
I preferred the solution set forth in my bill, I cosponsored the 
Grassley-Baucus bill because it represents a solid and reasonable 
solution to the problem. This bill, as modified, became the legislation 
reported by the Finance Committee and passed by the Senate.
  After a great deal of travail and adjustments, the House also passed 
a FSC/ETI bill, and it was quite similar in many respects to the first 
Thomas American Jobs Creation Act. These are the bills the conference 
committee had to combine into one.
  The result, as we all know, is a bill that is far from perfect. Its 
enactment will result in a net tax increase for some exporting 
companies that now use the ETI provision, and in a net tax cut for many 
other U.S. manufacturing firms that may have not taken advantage of the 
ETI exclusion.
  And while the bill includes many important other provisions, it 
leaves out some very important provisions that the Senate conferees 
agreed with me should be in there. Unfortunately, the House conferees 
disagreed and they were omitted from the final product.
  For example, I am personally very disappointed that the House 
conferees voted against including the CLEAR ACT in this conference 
report. This bill, which has passed the Senate at least three times and 
also has passed the House, would transform our auto industry by 
granting strong tax incentives for consumers who buy alternative fueled 
and advance technology vehicles, such as hybrid electric cars.
  Moreover, it would move us to a more responsible age of cleaner air 
and less fuel dependency on the Middle East by simultaneously breaking 
down the three barriers that keep our nation from adopting the already-
existing technology to help us meet these goals--the higher cost of 
such vehicles, the higher cost of alternative fuel, and the lack of a 
refueling infrastructure.
  From a broader point of view, most of my fellow Senate conferees and 
I would have liked to see the entire set of energy tax provisions from 
the Senate-passed bill included in the conference report. It was a 
mistake to omit these important provisions.
  I also very much regret that the House conferees refused to adopt the 
amendment I offered, accepted by the Senate conferees, which would have 
bolstered our research tax credit. While it is true that the research 
credit was extended for a short time in the most recently passed tax 
bill dealing with individual tax cuts, that legislation left out an 
important element that was contained in the Senate FSC/ETI bill 
designed to improve the incentives this provision gives for companies 
to engage in R&D activities.
  Nevertheless, the conference report is worthy of our support. As I 
mentioned, as a nation we must honor the obligations under the World 
Trade Organization. Of more immediate importance is the fact that the 
Europeans are levying an increasing level of trade sanctions against 
certain of our products exported to the E. U. This level is currently 
at 12 percent and is growing by one percentage point per month and is 
definitely having a very serious negative effect on certain U.S. 
industries.
  Moreover, the trade sanctions are authorized to continue to increase 
until next March, when they will have reached 17 percent. After this, 
the E. U. may authorize even more serious sanctions against us that 
would surely harm our economic growth.
  As all of my colleagues well know, if we do not succeed in passing 
this conference report before sine die adjournment of the 108th 
Congress, we must start the process all over again next year.
  Will this result in a better bill?
  Perhaps, but such an outcome is far from certain. What is more likely 
is that the resolution to this issue would be delayed for many more 
months, giving the trade sanctions more time to damage our economy and 
harm U.S. businesses.

  Now, I take a few minutes to discuss some of the specific provisions 
that did make it into the conference report and why I believe my 
colleagues should enthusiastically support them.
  First, let me express my satisfaction that this conference report has 
a good balance to it. In addition to the vital repeal of the ETI 
provision and the quite reasonable transition relief it provides for 
current ETI users, the bill offers significant provisions for both 
small businesses and large multinational firms. Mixed in is a generous 
portion of important tax relief for business interests of all kinds.
  Central among these relief provisions is the manufacturing deduction. 
This provision is designed to lower the tax burden of any business 
entity that engages in production activities in the United States. I am 
happy to see that the Senate provision allowing this deduction to be 
taken by unincorporated businesses was retained in conference.
  Also included in the conference report is a significant section of 
relief designed specifically for small businesses. Foremost in this 
category are the five sections that would simplify and reform the 
taxation of S corporations. These are changes I have long sought. Along 
with my colleagues, Senators Breaux, Smith, and Lincoln, we have 
attempted to get these and other S corporation improvements passed for 
several years now. I am gratified to see them included in the 
conference report.
  Other provisions that are very important to the balance of this bill 
are those designed to simplify and improve the rules by which this 
Nation taxes international business transactions. Quite simply, the 
current state of our international tax rules is appalling. This part of 
our Tax Code generally dates back to the early 1960s, and was designed 
for a different world from the one in which we live now.
  U.S. businesses, whether large, medium, or smaller, that decide to 
expand their markets beyond the borders of the United States confront a 
set of tax rules that are not only mind-numbingly complex, but far 
worse result in double taxation and often leave them on the down side 
of a tilted playing board when compared with competitors based in most 
other industrialized nations.

[[Page S10975]]

  Our rules governing the foreign tax credit, for example, which are 
designed to eliminate the double taxation of income, often are 
ineffective, some blatantly so. A provision added to the Internal 
Revenue Code in 1986 reduces the foreign tax credit by 10 percent to 
the extent it reduces the alternative minimum tax. There is little or 
no justification for this double taxation that I can see, and this 
conference report repeals this unfair provision.
  The bill includes about two dozen provisions that will help improve 
the tax law for our companies that have expanded their markets 
overseas. I have long been interested in getting this type of reform 
passed by the Congress, having introduced bills to do this since the 
mid-1990s. It is gratifying to finally see this long overdue relief 
come to pass.
  Some of my colleagues have incorrectly concluded that improving our 
rules on international taxation will give an incentive to U.S. 
companies to move their jobs overseas. This is unfortunate. Cross-
border investing is not only a necessity of our modern world, it is 
usually beneficial to both nations. Most U.S. companies that invest in 
expansion into markets in other nations do so to compete effectively 
with other suppliers in those markets and here at home.
  A fact of life of our modern economy is that our U.S.-based business 
enterprises face competition from all parts of the globe. It is 
unrealistic to think that an American business can simply focus on 
markets here at home and thrive. Instead, most of today's businesses 
must be mindful of both markets and material and labor supplies around 
the world if they are to stay in business very long.
  While no one likes to see U.S. jobs move overseas, we should be more 
concerned about creating and maintaining in the United States the kind 
of environment that attracts businesses. Part of that environment is 
ensuring that our tax system does not drive businesses offshore to 
other nations that tax them in a more favorable fashion. This bill 
moves our tax system a big step in that direction, and I am pleased to 
see these changes finally reach the point where they are about to 
become law.
  I now say a few words about the issues regarding tobacco associated 
with this conference report. I have not forgotten that at the center of 
the tobacco buyout is the tobacco farmer. I understand that the tobacco 
price support and tobacco quota programs have helped to secure a 
reasonable living for many family farmers.
  I have also come to the understanding that breaking the dependency of 
U.S. citizens and especially children on nicotine requires us to 
address the dependency of tobacco growers on the tobacco industry and 
on the government programs. It will not be an easy transition for many 
tobacco growers, and we need to help these families to survive it.

  Contrary to the belief of some, the United States Department of 
Agriculture, USDA, does not provide a direct subsidy to tobacco 
growers. However, the USDA does maintain artificially high prices for 
tobacco leaf by managing the loan, or-price support, program for 
tobacco growers which serves to maintain artificially high prices for 
tobacco and cigarettes in this country.
  The USDA also manages the tobacco quota system to keep down the 
amount of tobacco grown each year. This, again, keeps the price of 
tobacco and cigarettes high. All direct and administrative costs for 
these two programs are reimbursed to the USDA by tobacco farmers and 
their trade association. There is no net cost to the government as a 
result of the tobacco program. In fact, smokers carry most of the 
burden of the tobacco program through higher costs for the tobacco 
products they purchase.
  Shifting tobacco farming away from tight government management toward 
the free market has risks for our farmers. This proposal does a good 
job of getting the government out the farming business while making 
temporary assistance available to farmers as they adjust to the free 
market. And, it is at no cost to our government.
  As far as the provision requiring the Food and Drug Administration to 
regulate tobacco, let me say that I fully support measures to end 
tobacco use in the United States.
  I can think of few public health dangers worse than tobacco, and this 
is especially true for young people.
  I have heard from many concerned parents and health advocates in Utah 
who point out the need to stop the devastating health consequences of 
tobacco use.
  In many aspects, the DeWine/Kennedy language was written to achieve 
that goal, and in that spirit I supported it in conference. In fact, 
much of the bill is taken from a measure that I authored several years 
ago with Senator Dianne Feinstein.
  That being said, I am concerned about some aspects of the way the 
bill was written, and especially the impact of this language on the 
resources of the Food and Drug Administration.
  First, the Committee of jurisdiction, the HELP Committee, should have 
the opportunity to consider this legislation before it is brought to 
the full Senate for a vote the next time. Having been the chairman of 
that committee for several years, I know full well the complexities of 
the Federal Food, Drug and Cosmetic Act. Three hours of debate on the 
Senate floor was not enough time to consider legislation that made such 
dramatic changes to current law.
  I also want to make sure that we in the Congress are clear about the 
impact that such legislation would have on the Food and Drug 
Administration and whether or not the FDA has adequate resources to 
regulate tobacco, and, in addition, keep up with its other, extremely 
important responsibilities, such as the approval of drugs, medical 
devices, and protecting our food supply.
  While I understand that user fees were included in the legislation, I 
am not convinced that those user fees would have provided the FDA with 
sufficient resources to regulate tobacco. I am someone who has fought 
to provide FDA with adequate resources and have led the fight on 
unifying the FDA campus. I do not want anything to jeopardize the 
progress we have made in those areas so before we consider similar 
legislation again. I believe it is imperative to work closely with the 
FDA to find out exactly how much money is necessary for the agency to 
regulate tobacco, and whether or not the agency is capable of 
overseeing the regulation of tobacco.
  Again, let me make one thing perfectly clear--I believe that tobacco 
should be regulated, however, it needs to be a well-thought-out 
process. Therefore, allowing the proper committees of jurisdiction to 
review and consider the legislation and consultation with the FDA must 
take place before similar legislation is voted upon by the full Senate 
and House of Representatives before we consider another measure.
  Finally, I want to touch on some of the revenue offsets included in 
the conference report. I want to make it clear that I support the 
principle of keeping this bill revenue neutral, and I congratulate the 
conferees for doing so. This was a particularly sticky problem with the 
House Members, so I especially recognize their hard work in bowing to 
the Senate's demands that this bill be fully offset.
  I am very pleased to see that several revenue offset provisions that 
were in the Senate bill are not part of the conference report. One of 
these is the codification of the economic substance doctrine. I believe 
enactment of this provision would have led to a great deal of 
unnecessary conflicts between taxpayers and the Internal Revenue 
Service, and would have unfairly penalized companies for engaging in 
legitimate tax planning techniques.
  One provision that did make it into the conference report raises 
revenue in connection with the donation of used vehicles. In essence, 
the provision requires that taxpayers wait to take a deduction for the 
donation of a used vehicle until the donee charity has sold the item in 
an auction. Then, the deduction is limited to the actual purchase 
price.
  While this may appear to be a reasonable requirement, particularly in 
light of some of the alleged abuse surrounding the charitable donation 
of used vehicles, I am concerned that these changes will result in far 
fewer used vehicles being donated to charities. Some charities, such as 
the National Kidney Foundation of Utah, rely heavily on such donation 
programs for a great deal of their funding. A chilling

[[Page S10976]]

effect on the donation of these used cars could leave many worthy 
charities short of vital funds needed to perform their invaluable 
services to needy citizens in Utah and elsewhere.
  I will keep a watchful eye over the implementation of this change in 
the law, to make certain it does not harm the charities that have 
relied on donated vehicles for funding. While I agree that we should 
preclude any real abuse of the law, I do not think we should create a 
burdensome new requirement that would discourage charitable giving. It 
may well be that we need to revisit this area of the law in the future.
  In conclusion, the conference report before us represents a good bill 
that deserves our support.
  As I have tried to indicate in these remarks, the bill is far from 
perfect. But given the very difficult political and other circumstances 
surrounding the issues this bill addresses, it is remarkable we were 
able to bring to the Senate floor a product that is as good as it is. I 
urge my colleagues to support the conference agreement.


                              section 422

  Mr. SMITH. Mr. President, I would like to ask if the Chairman of the 
Committee on Finance would entertain additional questions regarding the 
American Jobs Creation Act of 2004.
  Mr. GRASSLEY. Mr. President, I would be glad to take questions from 
the Senator from Oregon.
  Mr. SMITH. I ask for additional clarification regarding the 
conferees' intent with respect to the rule in section 422 of the 
American Jobs Creation Act of 2004 that disallows deductions for 
expenses ``properly allocated and apportioned to the deductible 
portion.'' I would ask for clarification of the type of expenses that 
may be ``properly allocated and apportioned''. Would it be reasonable 
to say that properly allocable and apportioned expenses would not 
include general and administrative costs not directly related to 
generating the income being repatriated and such indirect expenses as 
research and development costs, interest, state and local income taxes, 
sales and marketing costs, depreciation, and amortization.
  Mr. GRASSLEY. Yes, your understanding is correct. I would add that 
directly related expenses would include, but is not limited to, 
stewardship costs and directly related legal and accounting fees.
  Mr. SMITH. Thank you Mr. Chairman. Under the conference report's 
provision on the temporary dividends received deduction, the amount 
that may be brought back to the United States may be determined by the 
reference to the ``applicable financial statement''. In general, this 
term looks to the most recently certified financial statement filed on 
or before June 30, 2003. In the case of a taxpayer that subsequently 
re-filed or restated its pre-July 1, 2003 certified financial 
statement, it is not clear how this would be determined. Is it the 
legislative intent to lock in the earnings permanently reinvested 
amount from the most recent pre-June 30, 2003 financial statement, 
which had been certified, regardless of any subsequent restatement?
  Mr. GRASSLEY. The applicable financial statement is the most recent 
statement that had been certified, and filed with the Securities and 
Exchange Commission if required, on or before June 30, 2003. However, 
in the event of a subsequent restatement of a financial statement that 
had been certified, and filed if required, on or before June 30, 2003, 
if the subsequent restatement contains a lower permanently reinvested 
amount, then the lower amount shall apply.
  Mr. SMITH. I thank the chairman for this clarification.


                                  irs

  Mr. SANTORUM. Mr. President, I read with great interest an exchange 
of letters in the House between my colleague from Pennsylvania, Mr. 
English and the chairman of the Committee on Ways and Means, regarding 
regulations issued by the Internal Revenue Service under section 263(g) 
of the Internal Revenue Code in the context of the Conference Report on 
H.R. 4520.
  The issue raised in their discussion relates to the IRS decision in 
regulations published on January 17, 2001, to expand its authority 
under that section. Without at this point questioning the IRS 
interpretation of the law, the colloquy notes that the IRS has in some 
case imposed its new interpretation retroactively. The colloquy urges 
the Department of Treasury to take the position that the new 
interpretation should be applied only on a prospective basis.
  I rise to agree with my friends in the House. Our practice in 
Congress is to give taxpayers notice when we intend to change the law 
in ways that could affect ongoing transactions that were undertaken in 
reliance on the law as it existed. Certainly Treasury can and should 
follow the same rules.
  I hope the Treasury Department will take note and act accordingly.


                           business aircraft

  Mr. BROWNBACK. I want to thank the distinguished chairman of the 
Committee on Finance, as well as the chairman of the Ways & Means 
Committee, Mr. Thomas, and all the conferees on H.R. 4520, for 
retaining the provision allowing business aircraft purchased this year 
to qualify for bonus depreciation if the aircraft is delivered and 
placed in service in 2005.
  This provision is important to the hard-working Kansans who build 
these aircraft. Provisions such as this will help to further bolster 
our rebounding economy with respect to expensive and complicated 
equipment like business aircraft. Without bonus depreciation, there is 
a risk of a shortage of orders for delivery next year with a resulting 
impact on employment.
  It would have been better if this legislation had been enacted 
earlier this year, but, even now, this provision will allow 
manufacturers several extra weeks to take orders for delivery by the 
end of 2005. That should help to ensure that there will be planes to 
build in 2005.
  I ask the chairman a technical question on the effective date of this 
provision.
  Mr. GRASSLEY. I thank the Senator from Kansas for his kind words, and 
would be happy to respond
  Mr. BROWNBACK. The effective date of the placed-in-service-extension, 
section 336 of the conference report, states that the amendments 
``shall take effect as if included in the amendments made by section 
101 of the Job Creation and Worker Assistance Act of 2002.'' I believe 
that this means only that, if a purchaser orders a plane for delivery 
in 2005, the limitations on the amount of the deposit, time for 
construction and purchase price must be met. It does not mean that 
taxpayers who did not or will not take delivery and place the aircraft 
in service after December 31, 2004, would retroactively be subjected to 
these limitations. The limitations apply only if a taxpayer wishes to 
take advantage of the extended placed-in service period. Does the 
Chairman agree with this interpretation?
  Mr. GRASSLEY. The Senator is correct. The new provision is not 
intended to apply to aircraft placed in service before January 1, 2005 
and does not limit or deny bonus depreciation for aircraft or any other 
asset that would qualify under the general rules. I would refer the 
senator to page 30 of the Conference Report. On that page, the 
conferees clearly state that this provision ``will modify the treatment 
only of property placed in service during calendar year 2005,''
  Mr. BROWNBACK. I ask the chairman for a further clarification. 
Section 336 of the conference report includes amendment of clause (iv) 
of Internal Revenue Code section 168(k)(2)(A) to apply the additional 
year to place an asset in service to assets described in subparagraphs 
(B) and (C). Subparagraph (B) of the Code applies to certain property 
having longer production periods. Section 336 of the bill adds 
subparagraph (C). I would like to be sure that, by using the word 
``and'', the conferees did not intend that a business aircraft would 
have to be described in both the existing subparagraph (B) and the new 
subparagraph (C) in order to qualify for the additional year to place 
the aircraft in service. As the chairman knows, the standards for 
qualification are substantially different under the two subparagraphs.

  Mr. GRASSLEY. I agree that the drafting is not as clear as it might 
have been. However, it is very clear from all the legislative history 
that, by adding the new subparagraph, we intended to add a new class of 
property, business aircraft, to those assets which qualify for the 
additional year to be placed in service. We did not intend

[[Page S10977]]

that aircraft which qualify under subparagraph (C) must also qualify 
under subparagraph (B).
  Mr. BROWNBACK. I would like to ask the chairman to address one final 
point. As the chairman knows, an amendment added to the Senate bill 
during floor debate temporarily reversed a Tax Court decision, affirmed 
by the Eighth Circuit Court of Appeals, concerning the limitation of 
business deductions for personal entertainment use of a business 
aircraft. This provision was drastically expanded and made permanent in 
the conference report. I am very concerned that this provision will 
have a substantial negative impact on the sales of new aircraft 
because, much of the business deduction for a new aircraft in its first 
few years is depreciation. In the same bill that Congress extends the 
period to place an aircraft in service and still qualify for bonus 
depreciation, Congress also reverses current law and limits 
depreciation and other business deductions, even when an employee has 
income imputed to him for any personal use of the aircraft.
  I can understand that the facts of the tax court case that was 
intended to be reversed involved a high percentage of nonbusiness use. 
However, it would seem to me that some sort of de minimis amount of 
personal travel treated as taxable compensation should be allowed 
without reducing otherwise applicable business deductions. I can also 
understand limiting deductions for incremental operating costs incurred 
for a personal flight, but the aircraft depreciates whether it is in 
the air or on the ground. I do not see the rationale for this 
extraordinary provision in the conference agreement far beyond the 
scope of the original Senate provision. The section which the 
conference report amends concerns entertainment facilities such as 
hunting and fishing lodges which have no other use than for business or 
personal entertainment. An aircraft is purchased by a business because 
they have a business need to be served. It is not the same thing as a 
hunting lodge. It is difficult for me to believe that, if a court 
addressed the specific question of whether a business aircraft were an 
``entertainment facility'' under present law, that it would rule 
against the taxpayer.
  I hope that the chairman would be willing to consider a de minimis 
rule or other modification to limit the scope of this limitation in 
future tax legislation to allow occasional personal use without 
limiting otherwise deductible business expense deductions relating to 
the ownership and use of a business aircraft.
  Mr. GRASSLEY: I appreciate the Senator's concerns and will keep them 
in mind in the future, although I would not anticipate repeal of the 
full provision included in this conference report.


                              section 422

  Mr. SMITH. Mr. President, I ask if the chairman of the Committee on 
Finance would entertain additional questions regarding the American 
Jobs Creation Act of 2004.
  Mr. GRASSLEY. Mr. President, I would be glad to take a question from 
the Senator from Oregon.
  Mr. SMITH. Mr. President, I have a question about how to interpret 
one of the rules contained in section 422 of the conference agreement 
for the American Jobs Creation Act. Would the chairman please clarify 
what the rule that disallows deductions for expenses ``properly 
allocated and apportioned to the deductible portion'' of the dividend 
is intended to cover?
  Mr. GRASSLEY. I thank the Senator from Oregon for his question. The 
rule and the statement of managers contain some ambiguity as to which 
deductions are disallowed. The intent of the rule is to disallow only 
deductions for expenses that relate directly to generating the dividend 
income in question.
  Mr. SMITH. I thank the chairman.
  Mr. McCONNELL. The tobacco buyout is very important to Kentucky, and 
it is also important that the provisions of the buyout included in the 
conference report are interpreted and implemented properly. The 
conference report provides financial assistance for producers in return 
for the termination of tobacco marketing quotas and related price 
support. For kinds of tobacco other than fluecured and burely tobacco, 
the payments to producers will reflect ``the basic tobacco farm acreage 
allotment for the 2002 marketing year established by the secretary for 
quota tobacco produced on the farm.''
  My understanding is that for this calculation, the secretary will 
take into account non-disaster transfer of allotments that were made 
for the 2002 marketing year. As the Chairman of the Agriculture 
Committee, is that correct?
  Mr. COCHRAN. Yes. For producer payments, such transfers for these 
crops will be taken into account as they are for the other tobaccos. 
The payments will be based on the actual amount available on the farm 
after those transfers.
  Mr. McCONNELL. I thank the Chairman of the Agriculture Committee for 
clarifying this point for me on this important aspect of the conference 
report.
  Mr. LAUTENBERG. Mr. President, I rise to discuss the FSC/ETI 
conference report. What the Republican Leadership did to this bill in 
conference is downright shameful.
  In July, I supported an amendment Senators DeWine and Kennedy offered 
to this bill that combined a tobacco buyout with a provision giving the 
Food and Drug Administration regulatory authority over tobacco.
  The Senate passed the FDA amendment by a vote of 78-15. That is a 
strong show of support.
  But something strange happened in conference. The FDA portion 
disappeared. So in this conference report we have the buyout, but not 
FDA authority over tobacco products. That is unacceptable.
  It is nothing more than a sweetheart deal for tobacco companies. They 
get cheaper tobacco and continue to avoid FDA regulation.
  I have a long history of working on tobacco control. As a former 
smoker, this is a personal issue to me. And the more I learn about that 
menace the happier I am for myself and my loved ones.
  I have worked hard in the Senate to protect Americans--especially 
children--from the deadly effects of cigarettes and other tobacco 
products.
  In 1987, long before tobacco control became a mainstream issue, I 
worked with then Congressman Durbin to author the law banning smoking 
on airplanes. That law brought about a seachange in our society's 
attitudes about smoking.
  Once non-smokers could experience a smoke-free environment--in this 
instance, the cabin of an airplane--they began to demand it.
  I also wrote the law banning smoking in all federally-funded places 
that serve children. And I have long supported FDA jurisdiction over 
this deadly addiction.
  I am deeply disappointed that the Republican leadership is putting 
politics ahead of the health of our children by opposing FDA authority 
over tobacco.
  Make no mistake: tobacco addiction is still a huge problem in 
America. Tobacco continues to be the number one cause of preventable 
death and disease in our Nation. Each year, tobacco claims an estimated 
440,000 lives prematurely here in the United States.
  According to the Centers for Disease Control, if current tobacco use 
patterns continue in the United States, over five million children 
alive today will die prematurely from a smoking-related disease. That 
is because nearly 4,000 young people try cigarettes for the first time 
each and every day--a statistic I find mind-boggling.
  In addition to the terrible human costs, there are massive economic 
costs to our Nation. It is estimated that direct medical expenditures 
attributed to smoking now total more than 75 billion dollars per year.
  Despite all of this, the FDA has not been able to take actions to 
reduce tobacco's harm on society.
  A pro-tobacco Congressman recently said:

       Tobacco faces enough federal regulation.

  But that is a joke. Cigarettes are essentially unregulated. When you 
go in a grocery store, the only consumable product you can't find a 
listing of the ingredients for is what's in cigarettes.
  The Republican leadership is throwing away an historic opportunity to 
give the FDA the legal authority it needs to protect the public's 
health.
  Today, we have worthless health warnings on cigarettes, no control 
over what tobacco companies claim about the relative health effects of 
their products, no authority to curtail marketing tobacco to kids, and 
no ability

[[Page S10978]]

to order the industry to remove especially hazardous ingredients.
  The bottom line is: FDA authority will protect kids and save lives.
  The 1998 legal settlement between the States and the tobacco 
companies prohibited the companies from taking ``any action, directly 
or indirectly, to target youth . . . in the advertising, promotion or 
marketing of tobacco products.''
  But the tobacco companies are ignoring these promises.
  Since the settlement, the tobacco companies have actually increased 
their marketing expenditures by 66 percent. According to the Federal 
Trade Commission, the tobacco industry spends more than $11.2 billion 
per year--over $30.7 million a day--marketing its deadly products just 
in the United States alone, often targeting youth.
  For example, in 2002, Brown & Williamson unveiled a new marketing 
promotion for their Kool brand of cigarettes called Kool Mixx. This 
advertising campaign was designed with one simple goal: target young 
African-Americans and addict them to nicotine.
  The ``Kool Mixx'' campaign included new cigarette packages with 
images of young DJs and dancers:
  It is an outrageous attempt to addict youth.
  Brown & Williamson doesn't even bother to be subtle when it comes to 
targeting African-American youth in this campaign.
  The press release from Brown & Williamson announcing the campaign 
contained almost comical sentences revealing their racial targeting.
  This is what the company's press release said:

       Kool understands the vibrant urban world of the 
     trendsetting, multicultural smoker.

  It goes on to say:

       Kool keeps it real and remains linked to the latest urban 
     trends.

  This campaign to addict young African Americans to cigarettes doesn't 
stop at product packaging and slick ads. Kool is sponsoring a 
nationwide ``DJ Competition'' in cities such as New York, Atlanta, 
Washington, St. Louis, and Chicago.
  It seems that ``Kool Mixx'' is the new ``Joe Camel'' for minority 
teenagers.
  This overt racial targeting of youth shows that the tobacco industry 
has not really changed its ways since its settlement with the State 
attorneys general.
  The big tobacco companies have reverted back to the same atrocious 
behavior we all saw before they promised they would become good 
``corporate citizens.''
  Here is something even more outrageous difficult as that is to 
believe: one of the tobacco industry's new tactics is the introduction 
of candy-flavored cigarettes and other sweet-flavored tobacco products.
  R.J. Reynolds--the same company that once marketed cigarettes to kids 
with the infamous cartoon character, Joe Camel has launched a series of 
flavored cigarettes,
  One flavor is a pineapple and coconut cigarette called ``Kauai 
Kolada''; another is a citrus-flavored cigarette called ``Twista 
Lime.''
  These names sound more like bubble gum flavors than deadly 
cigarettes--which is the point.
  These new marketing techniques aimed at kids are especially 
troubling, given that over 550,000 children will become regular smokers 
this year alone.
  FDA regulation is critical for many reasons. One reason--as we see 
with these candy-flavored cigarettes--is to keep kids away from these 
deadly products. Another reason we need FDA regulation is to make sure 
that preventable dangers in cigarettes are removed.
  There are thousands of products for sale in America that people 
consume, but tobacco products are the only ones--the only ones--which 
don't have their ingredients disclosed.
  That is amazing when you consider that cigarettes are by far the most 
deadly product you can buy in a grocery store.
  Right now, the FDA can regulate a box of macaroni and cheese, but not 
a pack of cigarettes. If you wanted to know the ingredients of macaroni 
and cheese, they're listed on the package. But for cigarettes, there is 
no information whatsoever on the ingredients, toxins, chemicals, etc. 
It makes no sense.
  When a smoker lights a cigarette, the burning ingredients create 
other chemicals. Some of these are carcinogenic. But tobacco 
manufacturers are not required by law to disclose the ingredients of 
their products to the public, including the toxic and cancer-causing 
ingredients.
  A Surgeon General's report in 1989 reported that cigarettes contain 
43 known carcinogens.
  I wonder how many smokers realize that one of these chemicals is 
arsenic. I bet most smokers don't know that.
  It boils down to this: by stripping out the FDA regulatory authority 
over tobacco products, we are failing our children. We are putting 
their health in jeopardy.
  This conference report provides billions of dollars to tobacco 
farmers and boosts tobacco industry profits, but it does absolutely 
nothing nothing to reduce tobacco's terrible human and economic toll.
  I don't know how any Member of this body who is truly concerned about 
children's health can, in good conscience, support this bill without 
the FDA provision.
  We had a deal; everyone knew it: the tobacco buyout in exchange for 
FDA regulation. The Republican leadership broke that deal.
  I urge my colleagues to oppose this conference report until we give 
the FDA the authority it needs to regulate tobacco as it does other 
products.
  Mr. FRIST. Mr. President, it has been a long day, and I thank those 
Senators who have been here, and especially the presiders who we have 
had throughout the evening. We now have two appropriations conference 
reports at the desk ready for consideration. They are military 
construction appropriations and the homeland security appropriations, 
obviously two enormously important pieces of legislation, especially 
given the disaster relief package that is part of the military 
construction legislation.
  It had been my hope to act on these as quickly as possible. I 
understand there are objections to these and that we will need to file 
cloture motions to bring these to a vote. I understand there is an 
issue relating to the military construction bill, but I am unaware of 
any issue with the appropriations bill relating to homeland security.
  Homeland security clearly has important resources that address just 
what the title says; that is, the safety and security of the American 
people. I believe the American people, indeed, deserve that we act on 
this bill in a timely way and in an expeditious way, but it looks like 
we are being stopped from doing so.
  I will file the cloture motions on both of these measures, but I 
would ask my colleagues on the other side of the aisle who are 
objecting to proceeding to please consider their objections overnight 
and allow us to proceed. I urge them, do not force a cloture vote on 
the homeland security bill, which addresses the security and safety of 
the American people. I ask that they consider allowing us to vitiate 
this cloture and move forward tomorrow.

                          ____________________