[Congressional Record Volume 156, Number 154 (Tuesday, November 30, 2010)]
[Senate]
[Pages S8259-S8267]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FDA FOOD SAFETY MODERNIZATION ACT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 510, which the clerk will
report.
The assistant legislative clerk read as follows:
A bill (S. 510) to amend the Federal Food, Drug, and
Cosmetic Act with respect to the safety of the food supply.
Pending:
Reid (for Harkin) amendment No. 4715, in the nature of a
substitute.
Coburn motion to suspend rule XXII of the Standing Rules of
the Senate, for the purposes of proposing and considering
Coburn amendment No. 4696.
Coburn motion to suspend rule XXII of the Standing Rules of
the Senate, for the purposes of proposing and considering
Coburn amendment No. 4697.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 2 minutes of debate equally divided and controlled between
the Senator from Oklahoma, Mr. Coburn, and the Senator from Hawaii, Mr.
Inouye.
The Senator from Illinois.
Mr. DURBIN. Mr. President, in the absence of Senator Inouye, I ask
unanimous consent to speak on his behalf for the 1 minute allocated.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Motions to Suspend
Mr. DURBIN. Mr. President, I am going to vote today against the
Coburn effort to change our rules relative to earmark legislation.
I wish to tell you, as a member of the Senate Appropriations
Committee, we have put in place what I consider to be the most dramatic
reform of this appropriations process since I have served in Congress.
There is full disclosure, in my office, of every single request for an
appropriation. We then ask those who have made the request for the
appropriation to have a full disclaimer of their involvement in the
appropriation so it is there for the public record.
This kind of transparency is virtually unprecedented, and I think it
is an effort to overcome some of the embarrassing episodes which
occurred primarily in the House of Representatives under the other
party's leadership, where people literally went to jail because of
abuse of the earmark process.
I believe I have an important responsibility to the State of Illinois
and the people I represent to direct Federal dollars into projects
critically important for our State and its future. What the Senator
from Oklahoma is setting out to do is to eliminate that option.
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
Mr. DURBIN. I hope my colleagues will join me in opposing the Coburn
motion.
Mr. LEVIN. Mr. President, Senator Coburn has proposed an amendment to
the badly needed food safety legislation now before the Senate that
seeks to end congressionally directed spending, or earmarks. Senator
Coburn described his amendment as an attempt to get spending under
control, but it fails the test of accomplishing that goal and fails to
meet Congress's constitutional obligation to exercise the power of the
purse.
Article I, section 9 of the Constitution of the United States places
the power of Federal spending in the Congress, the branch of government
most directly connected to the people. The power of the purse is great,
and therefore accountability for the exercise of that power should be
great as well.
Our greater responsiveness in Congress to immediate public needs is
essential. If the Coburn amendment passes, we would be barred from
bringing that judgment to bear on some of the most pressing issues of
the day. Instead, the executive branch--which is, in practice, the most
bureaucratic and least responsive branch--would control these
decisions. For example, under Senator Coburn's proposal, only the
executive branch would have the power to initiate funding for disaster
relief. Measures to appropriate funds in response to disasters would be
prohibited because they would dedicate funding to specific locations.
So, had this measure been in place when Hurricane Katrina struck the
Gulf Coast, Congress would have been powerless to react. Similarly, had
this restriction been in place when a Mississippi River bridge
collapsed in Minnesota in 2007, Congress could not have appropriated
the $195 million it set aside for repair and reconstruction.
This measure also would prevent Members from addressing the urgent
needs of our communities. I and other Members from Great Lakes States
have urged the Army Corps of Engineers and other agencies to address
the growing threat that Asian carp will make their way from the
Mississippi River watershed into the Great Lakes. These invasive
species of fish would devastate the lakes, doing enormous harm to our
States' economies. So long as the Army Corps continues to underfund
this important work, only the action of Congress can prevent an
economic disaster.
I would argue that each of these expenditures is important and
necessary. But the wisdom or folly of these decisions lies in the
merits of the projects themselves, not in the manner by which they were
funded. Allowing the Congress to make these decisions allows the voters
to judge them on their own merits, to reward their representatives when
they make wise choices, and to render judgment in the voting booth when
they do not.
Senator Coburn is rightly concerned about the long-term fiscal
condition of the government. But it has been repeatedly pointed out,
despite the fiction surrounding this issue, that this amendment would
do nothing to improve our fiscal situation. Year after year, Congress
works within the top line of budgets submitted by the President,
readjusting priorities without increasing total spending. For this
reason, the Coburn amendment would not reduce spending levels; it would
simply shift greater authority for deciding how money is spent from the
legislative branch to the executive.
There are two ways to close our fiscal gap. We can reduce spending or
we can increase revenue. Banning congressionally directed spending does
neither. It would create the impression that we have taken a step
toward fiscal responsibility, without making any of the difficult
choices that reducing the deficit will require. I applaud Senator
Coburn's desire to address our debt. But this measure fails to do so
and in the process abdicates our constitutional responsibilities. So I
will oppose this amendment and urge our colleagues to do the same.
Mrs. FEINSTEIN. Mr. President, I rise today in opposition to the
Coburn-McCaskill amendment, which would impose a 3-year moratorium on
earmarks.
This amendment is a direct attack on the authority vested in the
Congress to determine how Federal funds are spent, despite the fact
that this power is clearly established in Article I of the U.S.
Constitution.
I, for one, take great exception to this attack. It would set a
dangerous precedent, in my view, to simply turn over a blank check to
the executive branch and undermine the power that the Constitution
grants Congress. What if an administration is not focused on the needs
of a particular State, perhaps because that State didn't vote for that
President?
For years I have fought for funding of flood control in Sacramento.
Sacramento is one of the most endangered cities in the country when it
comes to catastrophic risk of flooding. Neither Democratic nor
Republican administrations have requested sufficient funding for the
flood control improvements that will protect lives and property in that
community.
[[Page S8260]]
As the Senator elected to represent the people behind those levees,
shouldn't I be able to fight for the funding, whether or not the
President agrees? I was elected by the people of California to
represent the needs of California. And the people of Sacramento
certainly believe they need flood control. This is my duty as a
Senator. Isn't that why we have a Congress?
As a coequal branch of government, we shouldn't be forced to approach
the administration with our hat in hand every time we believe something
needs to be done.
Another flaw in this amendment is the well-trod idea that it will
save this country money. Simply put, that is incorrect.
Discretionary spending is a popular target to attack. But the truth
is that earmarks make up less than one-half of a percentage point of
all Federal spending.
Earmarks are not the problem, so banning earmarks is not the
solution.
The real problem is entitlement spending. But tackling entitlement
reform is neither easy nor popular. So, instead, we attack earmarks. It
sounds good, and it gets applause. But we all know that it doesn't
solve the problem.
This amendment won't save this country one penny. It will merely
shift the power of the purse from Congress to the White House and
executive agencies.
If you want to reduce discretionary spending, it must be done through
the budget process.
I am also concerned about the process the Coburn-McCaskill amendment
sets forth for waiving this new rule.
Rather than putting into effect a traditional budgetary point of
order, which requires a three-fifths vote to waive, this amendment
calls for a two-thirds vote.
This means that if this amendment is approved, funding a public works
project would require the same number of votes as constitutional
amendments, impeachments, treaties, or the expulsion of Senators.
Why should the question of an earmark rise above the three-fifths
requirement to invoke cloture on the very bill containing the earmark?
Finally, this amendment disregards the significant reforms that have
already taken place to make the process transparent.
Since Democrats regained control of the Senate, the following reforms
have been enacted: Members must publicly certify that they have no
private interest in earmarks they request. Members must post their
earmark requests on the internet. Every bill with earmarks includes a
table listing the Senators who made the requests. This is the most
transparent earmark process ever, and I believe the reforms have
worked.
The earmark process has been abused in the past, but I firmly believe
that eliminating the discretion of Congress to appropriate taxpayer
dollars is folly. A knee-jerk reaction that tips the balance of power
toward the executive branch is not the solution.
Let me say this: I am open to further reform if it will make the
process even more transparent.
The House of Representatives already bans earmarks to most private
firms, and I would support doing so in the Senate.
I believe the best use of earmarks is to provide funding for projects
that are essential to the public good, such as water infrastructure
improvements in a city such as East Palo Alto that cannot provide clean
water to its residents without a funding share from the Federal
Government, or interoperable communications equipment in Contra Costa
and Alameda Counties, which can be used when an earthquake or other
catastrophe strikes.
I believe this amendment is wrong for the Senate, it is wrong for our
States, and it is wrong for the people we come here to serve.
Handing over a fundamental responsibility to the executive branch, at
a savings of zero dollars to the taxpayer, is not the solution.
Continued reform of a process that is important to so many of our
communities is the better alternative.
Mr. DORGAN. Mr. President, I rise today to speak against the Coburn
amendment that would impose a 3-year moratorium on Congress'
constitutional responsibility to direct the spending of the Federal
Government.
The amendment in question propounds a problem that doesn't exist, a
solution that resolves nothing, and an argument that is factually
baseless.
This amendment will not lead to deficit reduction. In fiscal year
2010, congressionally directed initiatives make up less than one-half
of 1 percent of total Federal spending.
With total spending at $3.5 trillion it is irresponsible to tell the
American people that congressionally directed spending of one-half of 1
percent of this total amount is the cause of our country's deficit
problem.
Mathematically it is incorrect and mechanically it is incorrect.
Doing away with congressionally directed initiatives does not guarantee
deficit reduction--it guarantees members of the administration will
make all the funding decisions.
Inherent in the arguments of the amendment's supporters is the
contention that projects and activities selected by the administration
are superior. The argument seems to rely on the notion that there is
some objective formula used by the administration to select the best
and most worthy projects to fund. This is false.
The fact is even in programs where some formula may be used, such as
a cost-benefit ratio formula, the formula is not necessarily perfect
and can often fail to capture all the facts.
A small port dredging project may not look worthwhile when just the
commercial traffic is calculated. However, when the sport fishery
impact is included it makes the calculation different. Further, if the
fish processing plant reliant on the commercial fishery is the largest
employer in the county that makes a difference.
While the formula may not capture these facts and thus the project
fails to make the President's budget request, the areas congressional
members and senators will know the facts and seek to modify the budget.
There was a recent news article using a Missouri project as an
illustration of this debate. The project was not requested in the
budget and the senior Senator from Missouri rectified this fact by
adding an earmark.
The junior Senator from Missouri is quoted in this article saying the
project would have been funded without such an earmark if funding had
not been diverted to less worthwhile earmarks. I am sorry, but there is
no basis for the junior Senator's claim.
We have no idea what the administration will send up in the budget. A
very worthwhile project may come forward and it may not. And the
reverse may be true. The administration may send up a project that is
not currently justified.
During the George W. Bush administration the budget request one year
included construction funding for a Corps of Engineers project. The
problem was the chief engineer's report was not completed yet because
the studies were still on-going. Thus there was no way for the
administration to know based upon any objective criteria whether the
project should move into the construction phase.
While the project may have proved to be worthy there was no objective
basis for the administration making that assessment at that time. The
fact is the administration added the project out of some political
calculation, not an objective calculation.
Let me provide some facts on earmarks using the civil side of the
Corps of Engineers and the Bureau of Reclamation which have two of the
most highly earmarked budgets of any Federal agency due to the way
projects are authorized and appropriated.
For fiscal year 2010, the President proposed spending $6.2 billion
for these two agencies. In his request the President proposed 1,184
individual line items valued at $4.8 billion based on criteria of his
choosing. This criteria is not based in law nor was the criteria
coordinated with anyone outside of the administration.
The criteria was developed to ``get the biggest bang for the buck''
but how do we know that? Just because that is what the administration
says.
Upon my review of the budget request, I was convinced that the
administration had left many priorities unfunded. That is why in
preparing the fiscal year 2010 Energy and Water appropriations bill,
the subcommittee of
[[Page S8261]]
which I am the chair, we used the criteria established in law to
determine what projects were eligible for funding.
Further, we gave particular credence to funding ongoing work. It is
not prudent to fund a construction project in one year and not fund it
in the next. Yet the administration did not propose funding for more
than 175 ongoing construction projects that were funded in fiscal year
2009.
These termination costs were not accounted for in the budgets that
the agencies provided to Congress. The Corps or the Bureau of
Reclamation cannot walk away from a construction site because they are
not funded for that project. They would have to reprogram funds from
other projects to make the site safe for the public until it was funded
again.
Funding projects in this manner delays completion of the projects,
increases the costs and defers the benefits that these projects provide
to the national economy.
For fiscal year 2010, Congress provided $6.58 billion for the COE and
the Bureau of Reclamation. Congress directed $817 million of this total
funding. All of this directed funding was disclosed in the required
disclosure tables in the report that accompanied the bill.
Let me list just a few projects that would not be funded in fiscal
year 2011 if we enacted the President's budget request as proposed:
Blue River Basin flood control project in Missouri; Swope Park
Industrial Area flood control project in Kansas City, MO; the Puget
Sound and Adjacent Waters Environmental Restoration project in
Washington; the Charleston Harbor, SC, navigation deepening study; the
Virginia Beach, VA, hurricane protection project; and the Western Sarpy
and Clear Creek, NE, flood control project.
For that last project in Nebraska, the funds proposed in the fiscal
year 2011 Senate report would complete the project, yet it did not make
it into the President's budget. Imagine these objective criteria that
the administration uses would leave the completion of a fully
authorized and economically justified construction budget for another
year.
I must also mention the issue of transparency. Today all Member
requests are available on line for public review. All Members must
certify that they and their family have no pecuniary interest in these
projects.
If there are legitimate proposals on further improving transparency
then I am sure they will be given consideration, but as of today the
public knows who is backing the projects we fund. There is
accountability and there is sunlight.
I fear that if Congress cedes its authority to direct spending then
we will go back to a time when Members, staff, and entities outside of
the Federal Government will begin to pressure the administration and
bureaucracy on getting specific projects funded.
There will be no disclosure of these phone calls and meetings. We
will not know if any trades have been made in exchange for project
support.
Why would we give up sunlight and accountability for darkness and
unaccountability?
Let me close by reiterating the basic points.
First, this amendment will not reduce the deficit. At less than one-
half of 1 percent of total spending congressionally directed spending
is simply not going to make a difference, particularly when that
funding will be left for the administration to direct its allocation.
Second, there is no objective formula that makes sure funding goes to
the most worthwhile projects. It simply doesn't exist. The Constitution
gives Congress the power of the purse. This ensures the President's
power is checked and assures Federal elected officials closest to the
people are making these decisions. It is absurd to give to an unelected
bureaucracy that may never have been in your state the final decision
on what projects to fund.
Third in project based accounts such as the Corps of Engineers the
administration already earmarks the vast majority of projects funded.
Congress is not abusing the power of the purse.
Lastly, we have greater transparency today on congressionally
directed spending than ever before. If we do away with this transparent
process we will be left with a dark, unknown process of congressional
Members, constituent groups, and lobbyists seeking to influence the
administration. We should not trade transparency for darkness.
Mrs. BOXER. Mr. President, I oppose the Coburn amendment to impose a
3-year moratorium on spending for local priorities, or ``earmarks.''
Those who support this amendment claim that it will help reduce the
deficit and put us on the path to fiscal responsibility. This is just
incorrect.
Eliminating earmarks would not reduce spending and does nothing to
decrease the deficit. This amendment would merely transfer spending
authority away from elected members of Congress to the executive
branch.
The Coburn amendment would strip elected leaders' ability to direct
funding to their constituents' priorities. We should all agree that
elected Members of Congress have a much better understanding of what is
needed in our cities and towns, and across our States than those
sitting in Washington, DC.
In addition, since 2006, Democrats have instituted a series of major
reforms that have made earmarks more transparent than ever, and have
reduced earmark levels by 50 percent. Members of Congress are now
required to list their names next to requested projects and to post all
requests on their official Web site. Through these initiatives Congress
has taken significant steps to improve transparency and allow for
greater scrutiny of these requests.
I am proud to say that I have helped fund hundreds of local
priorities across my home State of California: priorities that have
helped build safer roads, increased commerce, prevented homes from
flooding, improved health care services, spurred job creation and
helped veterans recover from combat injuries.
I oppose the motion to suspend the rules and allow for consideration
of the Coburn amendment.
Mr. LEAHY. Mr. President, I rise today to express my opposition to
the Coburn amendment. The legislative branch has a constitutional duty
to make modifications and adjustments to the budget for the Federal
Government. As a U.S. Senator and a member of the Appropriations
Committee, I take very seriously the responsibility of the Senate to
help craft the annual Federal budget. Members of Congress have a duty
to their constituents to preserve their role in working with the
executive branch, whether Democratic or Republican, about how, where,
and in what manner Federal dollars are spent.
The U.S. Constitution gives the responsibility of spending and
taxation to the Congress, not to unelected bureaucrats in the executive
branch. The notion that individuals who are completely unaccountable to
the American people will make spending decisions undermines the most
basic principle of democracy. Instead, the Founding Fathers correctly
put this burden on the shoulders of individuals who have to answer to
voters at the ballot box.
Over the last few months, and particularly in the days since the
election, some Members of Congress and Members-elect have been tripping
over themselves to take a stronger position in opposition to so-called
earmarks. Proponents of this amendment claim that it targets earmarks.
I would argue otherwise. This amendment strikes at the heart of the
balance that our Founding Fathers established between the executive and
legislative branches of our government.
Every single State would be shortchanged by the proposed moratorium
on earmarks. The Founders knew better. They knew that a Washington
bureaucracy would not always make decisions that were best for country,
including people working and living in small towns and big cities
across America.
That also includes making better decisions for the men and women who
serve in our military. There is no better example than the National
Guard and Reserve Equipment Account. Republican and Democratic
administrations alike have short-changed the Guard equipment budget for
decades and have done so even as the Guard has been called to provide
as much as half of the troops needed for operations in Iraq and
Afghanistan. Without the National Guard and Reserve equipment account,
our National Guard units would still be going into battle without
[[Page S8262]]
equipment like body armor and blast-protected vehicles. Congress
insisted on providing funding to our National Guard and that has saved
countless lives and enabled them to carry out their missions more
effectively.
Adopting this amendment is a vote for less transparency. It is a vote
for backroom dealing and less sunlight on how decisions regarding
Federal spending are made. One need only look back to when Congress has
in the past failed to pass the appropriations bills and the government
operated under a continuing resolution for the year. Federal spending
did not go down by a single dime. Instead, unelected administration
appointees made decisions on which projects they wanted to see funded.
It is my hope that before the next Congress a measure of sanity
returns to discussion of the Federal budget. Everyone agrees that we
must make serious changes to our Federal balance sheet and bring our
fiscal house in order. But it was not earmarks that created our
alarming Federal debt. Eliminating earmarks is not going to get our
fiscal house in order. Instead it is going to expand the power of the
executive branch and its employees. It also rolls back all of the
transparency that Congress has embedded into its budget process.
Congress and the administration need to work together to address our
Federal deficit. Adopting this amendment banning earmarks is a
publicity stunt that has serious ramifications that actually moves our
country in the wrong direction toward solving our problems in an open
and constructive way.
Ms. KLOBUCHAR. Mr. President, I rise today to discuss the amendment
offered by the senator from Oklahoma that would prohibit
congressionally designated spending items from being included in any
authorization, appropriations, or other bill for 3 years.
I firmly believe the appropriations process needs to be changed. I
have supported strong reforms to increase transparency and
accountability, and have pushed hard for these necessary reforms while
ensuring that my State of Minnesota is not put at a competitive
disadvantage.
In fact, before being sworn in as a U.S. Senator, I promised
Minnesotans that I would fight to fund their priorities in an open
manner and pledged to include these requests on my official Web site.
At that point in time, the posting of requests online was not a rule of
U.S. Senate.
Since arriving in the Senate, I have supported several important
reforms to how Congress directs spending. I have voted for limitations
on earmarks, including voting to ensure that American Recovery and
Reinvestment Act funds would be competitively bid. I also voted to
rescind funds directed to certain transportation projects that have not
been spent.
Clearly, there is more we can do to improve this process and I will
continue to push for necessary reforms.
However, I believe that congressional appropriations help provide
much-needed resources for important programs and projects across my
State. All of the projects I sponsor are based on Minnesota constituent
requests and are available for the public to review.
Many of the requests I receive come from my visits to all 87 counties
in Minnesota every year. A local mayor will show me a busy road that
children in the community must cross many times a day to reach their
school and baseball fields. And the mayor will ask me to request funds
to help build an underpass that will allow these kids to safely get to
school and their games.
Or a sheriff will show me how the local law enforcement's outdated
communications equipment interferes with emergency response and
endangers lives. And the sheriff will ask me to earmark funds to
upgrade the department's radios.
In my State of Minnesota, we remember all too well how on August 1,
2007, the I-35W bridge across the Mississippi River in Minneapolis
collapsed without warning. After we mourned the loss of 13 lives and
the shock of the disaster had subsided, we got to work with enormous
task of constructing a new bridge.
I worked hard with my colleagues in the Senate, especially Majority
Whip Dick Durbin, Transportation Appropriations Chairman Patty Murray
and Senator Norm Coleman, to provide up to $195 million in funds to
help with the cost of constructing a new bridge. Under Senator Coburn's
amendment, this funding would be considered an earmark, and Minnesota
would have been left looking for other ways to recover from this tragic
event.
Earmarks have done more than build bridges in Minnesota. Earmarks
have provided critical funding to the Minnesota National Guard's
groundbreaking ``Beyond the Yellow Ribbon Program,'' which is
nationally recognized for the assistance it provides our service men
and women who bravely served our nation and are now transitioning to
civilian life.
Congressionally directed projects protect communities against annual
flooding across my State from Roseau in the north to Moorhead in the
west to Owatonna in the south. And congressionally initiated spending
funds an innovative program in Stearns County, Minnesota to help
protect women and children who have been the victims of domestic
violence, provides much-needed resources to improve law enforcement
communication and interoperability, and is building a new highway
interchange in Blue Earth County, MN, that will improve safety and ease
congestion while helping generate economic development.
Congressionally initiated spending cannot be discussed without also
considering the grave financial situation we face as a nation. It is
clear that we will need to make very tough decisions in the coming
years to restore fiscal responsibility and get our nation on a path
towards strong growth. Yet the Coburn amendment would not direct any
savings from the elimination of earmarks to be used for deficit
reduction.
We need a serious commitment to deficit reduction, and I believe we
need real reforms. I look forward to the report by the President's
National Commission on Fiscal Responsibility and Reform and others who
are taking a comprehensive look at government spending. It is my hope
that we can come together to consider these recommendations carefully
and reduce our nation's debt.
I am committed to serious fiscal discipline, and will continue to
support real reforms to increase transparency to the appropriations
process.
Mr. VOINOVICH. Mr. President, I rise today to express my opposition
to the moratorium on earmarks that has been proposed by many of my
colleagues.
We have done a lot of crusading around here against these so-called
earmarks, or congressionally directed spending items, in our
appropriations bills. They are often criticized by Members of Congress
when discussing the unsustainable fiscal path of the Federal Government
or its irresponsible overspending of taxpayers' dollars.
But my colleagues who oppose the use of earmarks miss the point.
Earmarks, whether good or bad, are not the problem with our government.
According to data from the Congressional Research Service and the
Congressional Budget Office, in fiscal year 2010 earmarks accounted for
0.009 percent of the Federal budget. That is nine one-thousandths of 1
percent. Total earmarks amounted to $32 billion, while the entire
Federal budget was over $3.5 trillion. And by the way, I would like to
point out that the President-himself requested $22 billion in earmarks.
But the biggest threat we face as a nation is not a special request
for this or that project. The biggest threat we face is an
unsustainable fiscal course caused by explosive and unchecked growth in
entitlement spending and no money to pay for it. We have got an
outdated tax code that does not sufficiently encourage economic growth,
and a skyrocketing national debt that puts our credit-rating is serious
jeopardy. In fiscal year 2010, entitlement spending accounted for 55
percent of the budget, compared with the 0.009 percent for earmarks I
just referred to.
Now, I will say that I do agree with much of the criticism expressed
in this chamber over bad earmarks. I don't support wasteful use of any
taxpayer money, especially for egregiously useless projects that my
colleagues often highlight as examples of why we should eliminate
earmarks altogether.
But why throw out the baby with the bathwater? Certainly there is
both
[[Page S8263]]
good and bad government spending. I support the kind of government
spending that facilitates activity that is helpful to my State of Ohio
and to our national economy: transportation and infrastructure, for
example. And I am perfectly willing to defend that kind of spending and
let the public decide whether my decision to help build roads and
bridges in Ohio is an outrageous--or a proper--function of Federal
Government. The Senate appropriations earmark process is transparent,
and I welcome the public review of the projects I support, which I find
constructive especially for hard-working, economically challenged
families in Ohio.
The truth is Congress has a constitutional obligation to determine
how the Nation spends its money. Banning earmarks cedes this power to
unelected Federal bureaucrats in the administration. Congress should
not be criticized for spending money, but only for spending it
wastefully or irresponsibly, be it through earmarks or other spending.
But the media loves to single out earmarks; they are hoodwinking people
into thinking that by cracking down on earmarks, Congress is doing
something responsible to solve this looming fiscal crisis staring us in
the face. It's a disingenuous approach. And Congress is fooling the
public by pretending that earmarks are the problem, when the real
issues are spending and tax and entitlement reform.
It is interesting to note that many of my colleagues who are so
strongly opposed to earmarks voted against the Conrad-Gregg fiscal
commission that could very well have forced Congress to act upon tax
and entitlement reform recommendations. How could one be so outspoken
against earmarks in the name of fiscal responsibility and then oppose
the commission that would propose reforms to the tax code and
entitlements in order to put the country on a fiscally sustainable
path?
So if my colleagues want to demonstrate true fiscal responsibility,
if they admit that earmarks they have supported in the past are good
use of tax dollars, and if they admit that banning earmarks would cede
this control of spending from Congress to the administration, then why
take such a blunt approach? Why don't we take more thoughtful and
nuanced steps outlined by Senator Inhofe, who suggested we reform the
already transparent earmark process and offered specific ideas on how
to do it? Some of my colleagues practically admit that banning earmarks
is not a very good idea per se, but that eliminating them is only
politically expedient, as the public has come to see earmarks as a
symbol of Washington's irresponsibility.
I don't want the public to be fooled by this. I don't support every
earmark. There will always be examples of some wasteful projects
somewhere. But earmarks are not the problem that gravely threatens our
country's way of life, and the future of our children and
grandchildren. This is why for over 5 years I have worked to create a
commission to solve our Nation's real fiscal problems, and why I hope
that the commission created by the President can produce a final
legislative proposal that will effectively address our unchecked
entitlement growth, our outdated and overly complex Tax Code, and
return our Nation to a sustainable fiscal path.
The ACTING PRESIDENT pro tempore. Under the previous order, the
question is on agreeing to the Coburn motion to suspend the rules with
respect to amendment No. 4697.
Mr. GRASSLEY. I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays are ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer),
the Senator from Maryland (Ms. Mikulski), and the Senator from New
Hampshire (Mrs. Shaheen) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Missouri (Mr. Bond) and the Senator from Kansas (Mr. Brownback).
The PRESIDING OFFICER (Mr. Bennet). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 39, nays 56, as follows:
[Rollcall Vote No. 255 Leg.]
YEAS--39
Alexander
Barrasso
Bayh
Bennet
Brown (MA)
Bunning
Burr
Chambliss
Coburn
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Feingold
Graham
Grassley
Gregg
Hatch
Hutchison
Isakson
Johanns
Kirk
Kyl
LeMieux
McCain
McCaskill
McConnell
Nelson (FL)
Risch
Roberts
Sessions
Snowe
Thune
Udall (CO)
Vitter
Warner
Wicker
NAYS--56
Akaka
Baucus
Begich
Bennett
Bingaman
Brown (OH)
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Conrad
Coons
Dodd
Dorgan
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inhofe
Inouye
Johnson
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Manchin
Menendez
Merkley
Murkowski
Murray
Nelson (NE)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shelby
Specter
Stabenow
Tester
Udall (NM)
Voinovich
Webb
Whitehouse
Wyden
NOT VOTING--5
Bond
Boxer
Brownback
Mikulski
Shaheen
The PRESIDING OFFICER. On this vote, the yeas are 39, the nays are
56. Two-thirds of the Senators voting not having voted in the
affirmative, the motion is rejected.
Under the previous order, the question is on the Coburn motion to
suspend the rules with respect to amendment No. 4696. There will be 2
minutes of debate equally divided prior to the vote.
Who yields time? The Senator from Iowa.
Mr. HARKIN. Mr. President, we are rapidly approaching the final vote
on the Food Safety Modernization Act. For the first time in seven
decades, the Congress has addressed this issue. It has taken several
years to get to this point. We have had involvement from Republicans
and Democrats, from the business community, and from the consumers
groups. It is widely supported by both the business sector and the
consumer groups. We have had good bipartisan support on this bill with
Senator Enzi and others on our committee. This is the product of a long
effort to reach the compromise we needed to get good legislation
through.
The vote we are about to have now is on a substitute offered by my
friend, the Senator from Oklahoma. This substitute would basically kill
all of this work we have done. It eliminates a lot of the provisions we
have in this bill, such as the preventive control provisions that I
think is one of the most important parts of this bill, to get
preventive measures in and to prevent the contamination of food in the
first place.
It also eliminates the important trace-back provisions that we have
in this bill that we have worked on on a bipartisan basis. It would
eliminate the important foreign supplier verification provisions which
say they have to verify that the food coming into this country is the
same as this.
I ask Senators to reject the substitute.
The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
Mr. COBURN. Mr. President, Senator Harkin and many on the HELP
Committee have worked hard on the bill that is before us. But it has
fatal flaws, especially at a time when there is a $14 trillion debt and
a $1.3 trillion deficit, and it doesn't fix the real problem. We can
spend $1.4 billion in this bill. We can cause food prices to go up at
least $300 million to $400 million. We can put unfunded mandates on the
States for $141 billion a year. That is what we will do if we reject
this alternative. This accomplishes the same thing, given that we have
the safest food in the world. We will continue to have the safest food
in the world, we will move forward, but we won't do it by creating
layers upon layers of additional costs and regulations. The problem
with food safety is that the agencies don't do what they are supposed
to be doing now. They need less regulation, not more.
I yield the floor.
Mr. ALEXANDER. Mr. President, I ask for the yeas and nays.
[[Page S8264]]
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The question is on agreeing to the motion. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Missouri (Mr. Bond) and the Senator from Kansas (Mr. Brownback).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 36, nays 62, as follows:
[Rollcall Vote No. 256 Leg.]
YEAS--36
Alexander
Barrasso
Bennett
Brown (MA)
Bunning
Burr
Chambliss
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Ensign
Enzi
Graham
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Johanns
Kyl
LeMieux
McCain
McConnell
Murkowski
Risch
Roberts
Sessions
Shelby
Snowe
Thune
Wicker
NAYS--62
Akaka
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inouye
Johnson
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Vitter
Voinovich
Warner
Webb
Whitehouse
Wyden
NOT VOTING--2
Bond
Brownback
The PRESIDING OFFICER. On this vote, the yeas are 36, the nays are
62. Two-thirds of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
Mrs. BOXER. Mr. President, I move to reconsider the vote by which the
motion was rejected and I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote Explanation
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I was unavoidably delayed on vote No. 255,
the Coburn motion to suspend the rules as to the Coburn amendment on
earmarks. I would have voted a very strong no because I believe that
authority should remain with the elected representatives and not go to
bureaucrats.
SAVINGS CLAUSES
Mr. DURBIN. Will the distinguished floor manager for this bill yield
in order to enter into a colloquy to clarify the meaning of certain
provisions in the legislation?
Mr. HARKIN. I am pleased to yield to the distinguished majority whip
and lead sponsor of this legislation.
Mr. DURBIN. Mr. President, I wanted to clarify an important part of
this bill. While this bill does grant FDA many new authorities, the
savings clauses in this bill--in particular, sections 403(3),
418(1)(3)(B), and 41900(3)(B)--preserve all of FDA's existing authority
under both the Federal Food, Drug, and Cosmetic Act and the Public
Health Service Act, am I correct?
Mr. HARKIN. That is correct.
Mr. DURBIN. So while the bill does provide for certain exemptions
from FDA authority for small farms and food processing facilities,
these exemptions are based only on the specific provisions added by S.
510; they do not prevent FDA from taking appropriate actions against
specific farms or facilities--or from issuing regulations in the future
that might affect those exempted farms and facilities--based on
existing authorities that are currently in effect and will continue to
be in effect after enactment of S. 510. Am I understanding this
correctly?
Mr. HARKIN. My colleague is correct. The exemptions for small farms
and facilities in S. 510 do not in any way circumscribe FDA's existing
authority under current laws. As my distinguished colleague has just
stated, this existing authority is expressly preserved in the savings
clauses in the bill. Over the past 15 years, FDA has relied on a number
of provisions in existing law in establishing preventive control, or
``HACCP,'' and other preventive requirements for seafood, eggs, and
juice. These authorities include section 402(a)(4) of the Federal Food
Drug and Cosmetic Act, which gives FDA the authority to take action
against ``adulterated food'' when that food has been subjected to
``insanitary conditions.'' In adopting these regulations, FDA has also
relied on section 701(a) of the food and drug law, which gives it broad
authority to issue regulations ``for the efficient enforcement'' of
that law, as well as its authority to ``prevent the introduction,
transmission, or spread of communicable diseases'' under section 361 of
the Public Health Service Act.
Mr. DURBIN. I thank my distinguished colleague for clarifying this
important matter.
Mr. LEVIN. Mr. President, each year, 76 million Americans are
sickened by foodborne illness. More than 300,000 become so sick they
must be hospitalized. More than 5,000 die of their illness. These
statistics are deeply worrisome. And behind each number is a family
dealing with tragic loss or expensive hospital bills or concern for a
sick child.
The situation cries for action, which is why I support passage of the
legislation we are now considering, the FDA Food Safety Modernization
Act. This legislation seeks to address major deficiencies in the system
that protects Americans from foodborne illnesses. It includes
provisions recommended by Republicans and Democrats, by government
experts and outside groups. It should have strong bipartisan support.
The bill would give FDA authority to initiate food recalls even when
producers of unsafe foods refuse to do so voluntarily. It would
strengthen FDA's ability to trace harmful products to their source. It
would crack down on the unsafe food imports that have been the source
of many health-risk incidents. It would increase FDA's authority to
inspect food-producing facilities to prevent illnesses. And it would
require greater diligence on the part of those producers to prevent
foodborne illnesses and other health threats.
Passing this legislation will make our food safer and protect
Americans from harm. I will vote to approve it, and I hope for a strong
bipartisan vote in favor of this bill.
Mr. WHITEHOUSE. Mr. President, I rise today in support of the FDA
Food Safety Modernization Act. I commend Senator Durbin, Senator
Harkin, and the many other Senators who have worked so hard for so long
on this important legislation. It is long past time that we make
improvements to our food safety procedures in the United States, and we
can see by the diversity of interests that have come together to
support this bill from industry to farm to consumer groups that the
time to address this issue is now.
Like so many Rhode Islanders, I have been appalled by the stories of
deaths and serious illnesses from seemingly benign foods such as peanut
butter and spinach. These are foods we bring into our homes, expecting
them to nourish our families. We shouldn't have to worry that they
might make our children sick. American families need to know that their
government is protecting the food supply.
This bill goes a long way toward improving the Food and Drug
Administration's food inspection and recall system. First, the bill
improves our ability to prevent food safety emergencies through better
record keeping, hazard analysis, controls, and food safety plans. These
standards are also applied to imported foods, which is increasingly
important in our global economy. Second, FDA's ability to react to
foodborne illness outbreaks is significantly enhanced by increasing
inspection and surveillance, making food more traceable in order to
more quickly pinpoint the source of an outbreak. Furthermore, the bill
grants the FDA the authority to order a mandatory recall of food if a
company refuses to participate in a voluntary recall. Finally, this
bill enhances FDA's capability to protect the American food supply from
terrorist threats and from intentional contamination through building
cooperation with the Department of Homeland Security at our ports.
I am very pleased that all of this is accomplished while protecting
small farmers and producers. Rhode Island is
[[Page S8265]]
very proud of its small farms, local produce, and the wonderful farmers
markets that can be found throughout the State. Our farmers are proud
to feed families in Rhode Island and the surrounding States, and I know
they do everything possible to ensure the food they sell is safe. I
thank Senator Tester for his work on a compromise to protect farmers
like those in Rhode Island, and throughout Nation, who believe in the
value of locally grown food.
It has been disappointing that the process to bring this bill about
has taken so long. The bill's sponsors have been trying to bring it to
the floor of the Senate for a vote for months, during which time the
outbreak of salmonella in eggs made the need to improve our food
inspection system even more clear. This is not a perfect bill, but it
is a necessary one. Once it is passed, we must continue to build upon
it. The matter of our families' safety is not a partisan issue;
ensuring food safety is a fundamental function of our Federal
Government.
Mr. CASEY. Mr. President, the next time we sit down to eat dinner
with our families, are we sure that the food on our tables is safe to
eat? I understand that many Americans are concerned about food safety
issues. We all want food for our families that is nutritious and free
from foodborne pathogens and contaminants. Ensuring that our food
supply, both domestic and foreign food products, is safe is a high
priority for me. I am focused on food safety not only as a lawmaker but
also as a consumer and a father.
Americans have every right to expect a safe food supply. We need
solutions to give Americans peace of mind that the foods they eat and
give to their families are safe to consume. There are 76 million cases
of foodborne illness in this country every year. These illnesses send
an estimated 300,000 Americans to the hospital each year and they kill
an estimated 5,000 individuals yearly. Many of these deaths occur in
vulnerable members of our communities: young children, the elderly, or
those with chronic illnesses.
I will share with you the story, a real story, of Kevin Kowalcyk, a
2-year-old boy, who was sickened with an E. coli O157:H7 infection that
he acquired from eating a common food. I want to speak about Kevin
because I want to be clear that when we are not talking about
statistics today, we are talking about real people, real lives. Kevin's
illness started with vomiting and diarrhea, but soon he was passing
large amounts of blood. On the third day of his illness, he was
diagnosed and hospitalized. On the following day, his kidneys started
to fail. The medical staff, while brutally honest about how hemolytic
uremic syndrome, HUS, affected children, felt that Kevin would live.
They told Kevin's parents that he would go to the brink of death--which
he did on several occasions--because ``this is the way it is for HUS
kids.''
On day 12 of his illness, this normally healthy little boy looked as
sick as a child can look. His body was swollen to three times its
normal size, and he was hooked up to a dialysis machine and a
respirator. His heart raced at 200 beats per minute, and light from
huge sun lamps focused on him, in attempt to raise his body
temperature. Kevin could not speak or cry. His loving family could not
hold him. He suffered three heart attacks as they struggled to put him
on a heart-lung machine. And then Kevin died. The autopsy later showed
that his entire intestinal tract had been destroyed by gangrene.
One month after Kevin's August 11, 2001, death, America experienced
the horrible 9/11 attack, and the Kowalcyk family were told that they
were having another baby. Kevin's grandmother, Pat Buck, a Pennsylvania
resident, was very concerned about her daughter and her new grandchild,
and she was horrified by the type of death that her grandson had
endured. So Pat did what any teacher would do and started studying
foodborne illnesses. What she learned shocked and appalled her.
By March 2002, Kevin's family was actively involved in food safety
advocacy. In April 2003, Senator Harkin declared that the Meat and
Poultry Pathogen Reduction and Enforcement Act would be renamed Kevin's
Law. In 2006, after the spinach outbreak, Barbara Kowalcyk, Kevin's
mother, and Pat Buck founded the Center for Foodborne Illness Research
& Prevention, CFI, a national nonprofit dedicated to preventing
foodborne illness through research, education, advocacy, and service.
In 2007, Barbara and Pat were asked to participate in the filming of
the Oscar-nominated documentary, ``Food Inc.'' Today, CFI is viewed as
a credible organization that is looking for science-based solutions to
America's food safety challenges.
I tell you about Kevin's story because it is a powerful reminder that
real people are being affected by foodborne disease, not just once in
awhile but every day. I want to thank Barbara and Pat Buck for sharing
their story and becoming involved in such an important issue that
affects all of our lives. In particular, I am thankful to them for
turning their family's tragedy into an action that will help to ensure
no child would ever again go through Kevin's horrible experience.
As Pat said to me once while visiting my office, ``It is time to move
forward. Too many people are being sickened, too many are suffering
negative, long-term health consequences and too many are dying because
they ate a common food, such as peanut butter, cookie dough or fresh
produce. The 1938 law governing the Food and Drug Administration is too
obsolete and it does not provide the Agency with the authorities or
resources needed to develop a proactive approach to food safety. S. 510
will help FDA to become more proactive. This legislation is needed to
help America meet the food challenges of the 21st century.''
The U.S. Senate must modernize the U.S. system of food safety and
inspection. That is why I am pleased to support passage of S. 510,
Senator Durbin's Food Safety Modernization Act. We must provide the
agencies that regulate food safety with additional authorities to
ensure the safety of our Nation's food supply. We must provide
increased resources to the FDA so that it can hire more personnel and
so it can invest in improvements to domestic and imported food products
inspection systems. We must mandate science-based regulations to ensure
the safety of food products that carry the most risk. We must improve
coordination between USDA, FDA, and the various other Federal and State
agencies charged with regulating food safety. We must implement a
national traceability system so we have consistency and know where our
food comes from. And we must ensure the safety of both domestic and
foreign food products.
With Senator Grassley, I introduced the EAT SAFE Act, which is
designed to address a critical aspect of the food and agricultural
import system: food being smuggled into the United States. The greatest
threat of smuggled food and agricultural products comes from the
companies, importers, and individuals who circumvent U.S. inspection
requirements or restrictions on imports of certain products from a
particular country. Some examples of prohibited products discovered in
U.S. commerce in recent years include unpasteurized raw cheeses from
Mexico containing a bacterium that causes tuberculosis and strawberries
from Mexico contaminated with hepatitis A. These smuggled food and
agriculture products present safety risks to our food, plants, and
animals and pose a threat to our Nation's health, economy, and
security.
I am grateful to Chairman Harkin, Ranking Member Enzi, Senator
Durbin, Senator Dodd, Senator Gregg, and Senator Burr for incorporating
portions of the EAT SAFE Act into S. 510. These provisions would add
personnel to detect, track, and remove smuggled food, call for the
development and implementation of strategies to stop food from being
smuggled into the United States, and require data sharing amongst
Federal agencies dealing with food safety and foodborne illnesses. I am
thankful that this important issue is being addressed so that mothers
and fathers across the Nation won't have to be concerned when they pack
their children's lunches, sit down to eat a family dinner, or give
their child a snack.
In the Senate, we owe it every American consumer to make needed
improvements to our food safety system before another outbreak sickens
our citizens, and we need to make sure that we are vigilant and
vigorously monitor and update our food safety system so that Americans
can continue to be confident that the food they eat is safe.
Mr. GREGG. Mr. President, I rise to speak briefly about S. 510, the
FDA
[[Page S8266]]
Food Safety Modernization Act, which we will be voting on today.
This bill incorporates the best ideas from food safety experts,
farmers, small business owners, the Bush administration's Food
Protection Plan, the Obama administration's Food Safety Working Group,
and Members on both sides of the aisle.When enacted, it will transform
America's approach to food safety by emphasizing prevention and by
strengthening our capacity to detect and rapidly respond when food
safety emergencies occur in the future.
I would especially like to thank Senator Durbin for all of his
efforts on the issue of food safety and his commitment to working on
this issue in a bipartisan manner. We originally teamed up to begin
this effort in the spring of 2008, and after numerous drafts and twist
and turns, I am hopeful that we are close to getting this bill across
the finish line.
None of this would have been possible without a core group of
bipartisan Members who have helped shepherd this bill since its
inception. Senator Burr has been a key leader on food defense issues
and has worked tirelessly to ensure that this bill is not burdensome
for small farmers and food producers. Senator Dodd, along with Senator
Alexander, contributed greatly to the bill as a whole, and were
instrumental in providing a key provision relating to the need for
schools to be more prepared to protect children with life-threatening
food allergies.
We have also been extremely fortunate to have the tireless support of
both Chairman Harkin and Ranking Member Enzi, who assisted in moving
the bill through the HELP Committee with unanimous support roughly a
year ago, and who, in the last year have helped us navigate our way to
the floor.
Finally, I would like to thank our staffs who have put so much time
into this legislative effort. Although it has been a long and sometimes
arduous process, they have shown time and again that almost every
problem is solvable when you get a group of hard working folks around a
table. I would like to especially recognize and thank my own lead
staffer on this bill, Liz Wroe, as well as the following:
Dave Lazarus, Candice Cho, and Albert Sanders with Senator Durbin;
Jenny Ware, Jenn Alton, Josh Martin, Margaret Brooks, and Anna Abram
with Senator Burr; Jenelle Krishnamoorthy, Tom Kraus, and Bill
McConagha with Senator Harkin; Amy Muhlberg, Travis Jordan, Keith
Flanagan, and Chuck Clapton with Senator Enzi; and Tamar Magarik Haro
and Anna Staton with Senator Dodd.
Mr. LEAHY. Mr. President, the Senate is poised to pass the FDA Food
Safety Modernization Act, which will take much needed and long overdue
steps to protect Americans from unsafe food. I am disappointed that the
Senate will not consider, however, an important amendment I proposed
that would have held criminals who poison our food supply accountable
for their crimes. My amendment would have greatly strengthened the
ability to deter outrageous conduct that puts Americans at risk. It
received unanimous, bipartisan support when it was reported by the
Judiciary Committee as the Food Safety Accountability Act. It is
unfortunate that, despite this bipartisan support in committee,
Republican objections prevented the amendment from being considered by
the full Senate.
This legislative proposal would increase the sentences that
prosecutors can seek for people who knowingly violate our food safety
laws in those cases where there is conscious or reckless disregard of a
risk of death or serious bodily injury. If it were passed, those who
knowingly contaminate our food supply and endanger Americans could
receive up to 10 years in jail.
Just this summer, a salmonella outbreak caused hundreds of people to
fall ill and triggered a national egg recall. The cause of the outbreak
is still under investigation, but salmonella poisoning is too common
and sometimes results from inexcusable knowing conduct. The company
responsible for the eggs at the root of this summer's salmonella crisis
had a long history of environmental, immigration, labor, and food
safety violations. It is clear that fines are not enough to protect the
public and effectively deter this unacceptable conduct. We need to make
sure that those who knowingly poison the food supply will go to jail.
This amendment would have done that in the most egregious cases.
Current statutes do not provide sufficient criminal sanctions for
those who knowingly violate our food safety laws. Knowingly
distributing adulterated food is already illegal, but it is merely a
misdemeanor right now, and the Sentencing Commission has found that it
generally does not result in jail time. The fines and recalls that
usually result from criminal violations under current law fall short in
protecting the public from harmful products. Too often, those who are
willing to endanger our children in pursuit of profits view such fines
or recalls as merely the cost of doing business.
Last year, a mother from Vermont, Gabrielle Meunier, testified before
the Senate Agriculture Committee about her 7-year-old son, Christopher,
who became severely ill and was hospitalized for 6 days after he
developed salmonella poisoning from peanut crackers. Thankfully,
Christopher recovered, but Mrs. Meunier's story highlighted
improvements that are needed in our food safety system. No parent
should have to go through what she experienced. The American people
should be confident that the food they buy for their families is safe.
After hearing Mrs. Meunier's account last year, I called on the
Department of Justice to conduct a criminal investigation into the
outbreak of salmonella that made Christopher and many others so sick.
In that case, the outbreak was traced to the Peanut Corporation of
America. The president of that company, Stewart Parnell, came before
Congress and invoked his right against self-incrimination, refusing to
answer questions about his role in distributing contaminated peanut
products. These products were linked to the deaths of 9 people and have
sickened more than 600 others.
It appears that Mr. Parnell knew that peanut products from his
company had tested positive for deadly salmonella, but rather than
immediately disposing of the products, he sought ways to sell them
anyway. The evidence suggests that he knowingly put profit above the
public's safety. Our laws must be strengthened to ensure this does not
happen again. My amendment would increase the chances that those who
disregard the safety of Americans and commit food safety crimes will
face jail time, rather than a slap on the wrist, for their criminal
conduct.
On behalf of the hundreds of individuals sickened by this summer's
and last year's salmonella outbreaks, we must repair our broken food
safety system. The House has already passed a provision similar to my
amendment. I am sorry that partisan objections from a few Senators
prevented the Senate from quickly adopting this important amendment. I
will continue to try to pass this commonsense legislation even if it
cannot be coupled with the FDA Food Safety Modernization Act, and I
hope the Senate will act quickly to pass it separately.
Mr. HARKIN. Mr. President, one of the most difficult issues I have
had to face as manager of S. 510 is the balance between small growers
and processors and larger producers and food companies. This is always
a tough issue in agriculture. Those of us who work with our food system
know that one size does not fit all. It is always hard to get it right.
In this case, I know that some of my colleagues think the Tester-
sponsored language goes too far to help small growers and processors. I
don't think we have, and here is why I say that. There are some very
important limitations on the Tester provisions in S. 510. First, small
businesses as we define them here are really small--a company that does
$500,000 of sales a year is very small. We can't say exactly how much
food these small companies sell, but here is a good example that shows
how small these eligible companies are: The smallest member of the
California League of Food Processors reports between $2.5 and $3
million a year in sales or five times as much as any company eligible
under the Tester provisions.
Second, many food companies that buy product from eligible producers
will tell them: Hey I want you to follow FDA regulations. I want all my
suppliers to follow FDA rules. Some may even require their suppliers to
do
[[Page S8267]]
more than FDA requires. That decision is part of a private contractual
relationship. This bill does not affect these arrangements. They will
continue to exist and will limit the application of any exemptions
provided in this bill.
Third, processors that want to be exempted will have to document that
they meet the exemption. There are two ways to do that. First, they
must show they are in compliance with State law or second, they must
show that they have completed a food safety plan of their own. Many
processors will simply decide that for competitive reasons or lack of
capacity they will simply stick with whatever FDA requires. This is
another pragmatic limitation on the Tester provisions.
Fourth and finally, FDA is specifically authorized to take action and
revoke an exemption if it determines that the food presents a public
health risk, and FDA can act to prevent an outbreak if needed. This
provision creates a ``one-strike-you are out'' exemption: once a farm
or food processing facility has lost its exemption, it may never be
reinstated.
Mr. President, it is not the intent of this legislation to include in
the definition of ``facility,'' for purposes of either FFDCA Sec. 415
or for the pending bill, seed production or storage establishments as
long as they do not manufacture, process, pack, or hold seed reasonably
expected to be used as food or feed. Further, we note that seeds not
used as food or feed have historically not been subject to oversight by
FDA.
The PRESIDING OFFICER. Under the previous order, amendment No. 4715
is agreed to.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I ask unanimous consent that after
adoption of the substitute amendment to S. 510 and now, after the third
reading, the Senate then proceed to Calendar No. 74, H.R. 2751; that
all after the enacting clause be stricken and the text of S. 510, as
amended, be inserted in lieu thereof; that no further amendments or
motions be in order; that the bill, as amended, be read a third time,
and after the reading of the Budget Committee pay-go letter, the Senate
then proceed to vote on the passage of H.R. 2751, as amended; further,
that the title amendment, which is at the desk, be considered and
agreed to.
The PRESIDING OFFICER. Is there objection?
Mr. COBURN. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
Under the previous order, the clerk will read the pay-go statement.
The legislative clerk read as follows:
Mr. Conrad: This is the Statement of Budgetary Effects of
PAYGO Legislation for S. 510, as amended.
Total Budgetary Effects of S. 510 for the 5-year statutory
PAYGO Scorecard: $0.
Total Budgetary Effects of S. 510 for the 10-year Statutory
PAYGO Scorecard: $0.
Also submitted for the Record as part of this statement is
a table prepared by the Congressional Budget Office, which
provides additional information on the budgetary effects of
this Act, as follows:
CBO ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS FOR SENATE AMENDMENT 4715 IN THE NATURE OF A SUBSTITUTE TO S. 510, FDA FOOD SAFETY MODERNIZATION ACT
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------------------------------------------------------------------------
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011-2015 2011-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net Increase or Decrease (-) in the Deficit
Statutory Pay-As-You-Go-Impact a........ 0 0 0 0 0 0 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
a S. 510 would increase federal efforts to ensure the safety of commercially distributed food. S. 510 would stipulate that the failure to comply with
new requirements, such as mandatory recalls and risk-based preventive controls, could result in the assessment of civil or criminal penalties.
Criminal fines are recorded as revenues, then deposited in the Crime Victims Fund, and later spent. Enacting S. 510 could increase revenues and direct
spending, but CBO estimates that the net budget impact would be negligible for each year.
Source: Congressional Budget Office.
The ACTING PRESIDENT pro tempore. Under the previous order, the
cloture motion with respect to the bill is withdrawn and the question
is on passage of S. 510, as amended.
Ms. LANDRIEU. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Missouri (Mr. Bond) and the Senator from Kansas (Mr. Brownback).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 73, nays 25, as follows:
[Rollcall Vote No. 257 Leg.]
YEAS--73
Akaka
Alexander
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Coons
Dodd
Dorgan
Durbin
Enzi
Feingold
Feinstein
Franken
Gillibrand
Grassley
Gregg
Hagan
Harkin
Inouye
Johanns
Johnson
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
LeMieux
Levin
Lieberman
Lincoln
Lugar
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Vitter
Voinovich
Warner
Webb
Whitehouse
Wyden
NAYS--25
Barrasso
Bennett
Bunning
Chambliss
Coburn
Cochran
Corker
Cornyn
Crapo
DeMint
Ensign
Graham
Hatch
Hutchison
Inhofe
Isakson
Kyl
McCain
McConnell
Risch
Roberts
Sessions
Shelby
Thune
Wicker
NOT VOTING--2
Bond
Brownback
The bill (S. 510), as amended, was ageed to.
Mr. HARKIN. Mr. President, I move to reconsider the vote and move to
lay that motion upon the table.
The motion to lay upon the table was agreed to.
____________________