[Congressional Record Volume 168, Number 57 (Thursday, March 31, 2022)]
[Senate]
[Pages S1887-S1901]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OCEAN SHIPPING REFORM ACT OF 2022
Mr. SCHUMER. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 311, S. 3580.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:
A bill (S. 3580) to amend title 46, United States Code,
with respect to prohibited acts by ocean common carriers or
marine terminal operators, and for other purposes.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Commerce, Science, and
Transportation, with an amendment to strike all after the enacting
clause and insert in lieu thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ocean Shipping Reform Act of
2022''.
SEC. 2. PURPOSES.
Section 40101 of title 46, United States Code, is amended--
(1) by striking paragraph (2) and inserting the following:
``(2) ensure an efficient, competitive, and economical
transportation system in the ocean commerce of the United
States;'';
(2) in paragraph (3), by inserting ``and supporting
commerce'' after ``needs''; and
(3) by striking paragraph (4) and inserting the following:
``(4) promote the growth and development of United States
exports through a competitive and efficient system for the
carriage of goods by water in the foreign commerce of the
United States, and by placing a greater reliance on the
marketplace.''.
SEC. 3. SERVICE CONTRACTS.
Section 40502(c) of title 46, United States Code, is
amended--
(1) in paragraph (7), by striking ``; and'' and inserting a
semicolon;
(2) in paragraph (8), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(9) any other essential terms that the Federal Maritime
Commission determines necessary or appropriate through a
rulemaking process.''.
SEC. 4. SHIPPING EXCHANGE REGISTRY.
(a) In General.--Chapter 405 of title 46, United States
Code, is amended by adding at the end the following:
``Sec. 40504. Shipping exchange registry
``(a) In General.--No person may operate a shipping
exchange involving ocean transportation in the foreign
commerce of the United States unless the shipping exchange is
registered as a national shipping exchange under the terms
and conditions provided in this section and the regulations
issued pursuant to this section.
``(b) Registration.--A person shall register a shipping
exchange by filing with the Federal Maritime Commission an
application for registration in such form as the Commission,
by rule, may prescribe, containing the rules of the exchange
and such other information and documents as the Commission,
by rule, may prescribe as necessary or appropriate to
complete a shipping exchange's registration.
``(c) Exemption.--The Commission may exempt, conditionally
or unconditionally, a shipping exchange from registration
under this section if the Commission finds that the shipping
exchange is subject to comparable, comprehensive supervision
and regulation by the appropriate governmental authorities in
a foreign country where the shipping exchange is
headquartered.
``(d) Regulations.--Not later than 3 years after the date
of enactment of the Ocean Shipping Reform Act of 2022, the
Commission shall issue regulations pursuant to subsection
(a), which shall set standards necessary to carry out
subtitle IV of this title for registered national shipping
exchanges, including the minimum requirements for service
contracts established under section 40502 of this title.
``(e) Definition of Shipping Exchange.--In this section,
the term `shipping exchange' means a platform (digital, over-
the-counter, or otherwise) that connects shippers with common
carriers for the purpose of entering into underlying
agreements or contracts for the transport of cargo, by vessel
or other modes of transportation.''.
(b) Applicability.--The registration requirement under
section 40504 of title 46, United States Code (as added by
subsection (a)), shall take effect on the date on which the
Federal Maritime Commission states the rule is effective in
the regulations issued under such section.
(c) Clerical Amendment.--The analysis for chapter 405 of
title 46, United States Code, is amended by adding at the end
the following:
``40504. Shipping exchange registry.''.
SEC. 5. PROHIBITION ON RETALIATION.
Section 41102 of title 46, United States Code, is amended
by adding at the end the following:
``(d) Retaliation and Other Discriminatory Actions.--A
common carrier, marine terminal operator, or ocean
transportation intermediary, acting alone or in conjunction
with any other person, directly or indirectly, may not--
``(1) retaliate against a shipper, an agent of a shipper,
an ocean transportation intermediary, or a motor carrier by
refusing, or threatening to refuse, an otherwise-available
cargo space accommodation; or
``(2) resort to any other unfair or unjustly discriminatory
action for--
``(A) the reason that a shipper, an agent of a shipper, an
ocean transportation intermediary, or motor carrier has--
``(i) patronized another carrier; or
``(ii) filed a complaint against the common carrier, marine
terminal operator, or ocean transportation intermediary; or
``(B) any other reason.''.
SEC. 6. PUBLIC DISCLOSURE.
Section 46106 of title 46, United States Code, is amended
by adding at the end the following:
``(d) Public Disclosures.--The Federal Maritime Commission
shall publish, and annually update, on the website of the
Commission--
``(1) all findings by the Commission of false detention and
demurrage invoice information by common carriers under
section 41104(a)(15) of this title; and
``(2) all penalties imposed or assessed against common
carriers, as applicable, under sections 41107, 41108, and
41109, listed by each common carrier.''.
SEC. 7. COMMON CARRIERS.
(a) In General.--Section 41104 of title 46, United States
Code, is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1), by striking
``may not'' and inserting ``shall not'';
(B) by striking paragraph (3) and inserting the following:
``(3) unreasonably refuse cargo space accommodations when
available, or resort to other unfair or unjustly
discriminatory methods;'';
[[Page S1888]]
(C) in paragraph (5), by striking`` in the matter of rates
or charges'' and inserting ``against any commodity group or
type of shipment or in the matter of rates or charges'';
(D) in paragraph (10), by adding ``, including with respect
to vessel space accommodations provided by an ocean common
carrier'' after ``negotiate'';
(E) in paragraph (12) by striking ``; or'' and inserting a
semicolon;
(F) in paragraph (13) by striking the period and inserting
a semicolon; and
(G) by adding at the end the following:
``(14) assess any party for a charge that is inconsistent
or does not comply with all applicable provisions and
regulations, including subsection (c) of section 41102 or
part 545 of title 46, Code of Federal Regulations (or
successor regulations);
``(15) invoice any party for demurrage or detention charges
unless the invoice includes information as described in
subsection (d) showing that such charges comply with--
``(A) all provisions of part 545 of title 46, Code of
Federal Regulations (or successor regulations); and
``(B) applicable provisions and regulations, including the
principles of the final rule published on May 18, 2020,
entitled `Interpretive Rule on Demurrage and Detention Under
the Shipping Act' (or successor rule); or
``(16) for service pursuant to a service contract, give any
undue or unreasonable preference or advantage or impose any
undue or unreasonable prejudice or disadvantage against any
commodity group or type of shipment.''; and
(2) by adding at the end the following:
``(d) Detention and Demurrage Invoice Information.--
``(1) Inaccurate invoice.--If the Commission determines,
after an investigation in response to a submission under
section 41310, that an invoice under subsection (a)(15) was
inaccurate or false, penalties or refunds under section 41107
shall be applied.
``(2) Contents of invoice.--An invoice under subsection
(a)(15), unless otherwise determined by subsequent Commission
rulemaking, shall include accurate information on each of the
following, as well as minimum information as determined by
the Commission:
``(A) Date that container is made available.
``(B) The port of discharge.
``(C) The container number or numbers.
``(D) For exported shipments, the earliest return date.
``(E) The allowed free time in days.
``(F) The start date of free time.
``(G) The end date of free time.
``(H) The applicable detention or demurrage rule on which
the daily rate is based.
``(I) The applicable rate or rates per the applicable rule.
``(J) The total amount due.
``(K) The email, telephone number, or other appropriate
contact information for questions or requests for mitigation
of fees.
``(L) A statement that the charges are consistent with any
of Federal Maritime Commission rules with respect to
detention and demurrage.
``(M) A statement that the common carrier's performance did
not cause or contribute to the underlying invoiced charges.
``(e) Safe Harbor.--If a non-vessel operating common
carrier passes through to the relevant shipper an invoice
made by the ocean common carrier, and the Commission finds
that the non-vessel operating common carrier is not otherwise
responsible for the charge, then the ocean common carrier
shall be subject to refunds or penalties pursuant to
subsection (d)(1).
``(f) Elimination of Charge Obligation.--Failure to include
the information required under subsection (d) on an invoice
with any demurrage or detention charge shall eliminate any
obligation of the charged party to pay the applicable
charge.''.
(b) Rulemaking on Demurrage or Detention.--
(1) In general.--Not later than 45 days after the date of
enactment of this Act, the Federal Maritime Commission shall
initiate a rulemaking further defining prohibited practices
by common carriers, marine terminal operators, shippers, and
ocean transportation intermediaries under section 41102(c) of
title 46, United States Code, regarding the assessment of
demurrage or detention charges. The Federal Maritime
Commission shall issue a final rule defining such practices
not later than 1 year after the date of enactment of this
Act.
(2) Contents.--The rule under paragraph (1) shall seek to
further clarify reasonable rules and practices related to the
assessment of detention and demurrage charges to address the
issues identified in the final rule published on May 18,
2020, entitled ``Interpretive Rule on Demurrage and Detention
Under the Shipping Act'' (or successor rule), including a
determination of which parties may be appropriately billed
for any demurrage, detention, or other similar per container
charges.
(c) Rulemaking on Unfair or Unjustly Discriminatory
Methods.--Not later than 60 days after the date of enactment
of this Act, the Federal Maritime Commission shall initiate a
rulemaking defining unfair or unjustly discriminatory methods
under section 41104(a)(3) of title 46, United States Code, as
amended by this section. The Federal Maritime Commission
shall issue a final rule not later than 1 year after the date
of enactment of this Act.
(d) Rulemaking on Unreasonable Refusal to Deal or Negotiate
With Respect to Vessel Space Accommodations.--Not later than
30 days after the date of enactment of this Act, the Federal
Maritime Commission, in consultation with the Commandant of
the United States Coast Guard, shall initiate a rulemaking
defining unreasonable refusal to deal or negotiate with
respect to vessel space under section 41104(a)(10) of title
46, as amended by this section. The Federal Maritime
Commission shall issue a final rule not later than 6 months
after the date of enactment of this Act.
SEC. 8. ASSESSMENT OF PENALTIES OR REFUNDS.
(a) In General.--Title 46, United States Code, is amended--
(1) in section 41107--
(A) in the section heading, by inserting ``or refunds''
after ``penalties'';
(B) in subsection (a), by inserting ``or, in addition to or
in lieu of a civil penalty, is liable for the refund of a
charge'' after ``civil penalty''; and
(C) in subsection (b), by inserting ``or, in addition to or
in lieu of a civil penalty, the refund of a charge,'' after
``civil penalty''; and
(2) section 41109 is amended--
(A) by striking subsections (a) and (b) and inserting the
following:
``(a) General Authority.--Until a matter is referred to the
Attorney General, the Federal Maritime Commission may--
``(1) after notice and opportunity for a hearing, in
accordance with this part--
``(A) assess a civil penalty; or
``(B) in addition to, or in lieu of, assessing a civil
penalty under subparagraph (A), order a refund of money
(including additional amounts in accordance with section
41305(c)), subject to subsection (b)(2); and
``(2) compromise, modify, or remit, with or without
conditions, a civil penalty or refund imposed under paragraph
(1).
``(b) Determination of Amount.--
``(1) Factors for consideration.--In determining the amount
of a civil penalty assessed or refund of money ordered
pursuant to subsection (a), the Federal Maritime Commission
shall take into consideration--
``(A) the nature, circumstances, extent, and gravity of the
violation committed;
``(B) with respect to the violator--
``(i) the degree of culpability;
``(ii) any history of prior offenses;
``(iii) the ability to pay; and
``(iv) such other matters as justice may require; and
``(C) the amount of any refund of money ordered pursuant to
subsection (a)(1)(B).
``(2) Commensurate reduction in civil penalty.--
``(A) In general.--In any case in which the Federal
Maritime Commission orders a refund of money pursuant to
subsection (a)(1)(B) in addition to assessing a civil penalty
pursuant to subsection (a)(1)(A), the amount of the civil
penalty assessed shall be decreased by any additional amounts
included in the refund of money in excess of the actual
injury (as defined in section 41305(a)).
``(B) Treatment of refunds.--A refund of money ordered
pursuant to subsection (a)(1)(B) shall be--
``(i) considered to be compensation paid to the applicable
claimant; and
``(ii) deducted from the total amount of damages awarded to
that claimant in a civil action against the violator relating
to the applicable violation.'';
(B) in subsection (c), by striking ``may not be imposed''
and inserting ``or refund of money under subparagraph (A) or
(B), respectively, of subsection (a)(1) may not be imposed'';
(C) in subsection (e), by inserting ``or order a refund of
money'' after ``penalty'';
(D) in subsection (f), by inserting ``, or that is ordered
to refund money,'' after ``assessed''; and
(E) in subsection (g), in the first sentence, by inserting
``or a refund required under this section'' after
``penalty''.
SEC. 9. DATA COLLECTION.
(a) In General.--Chapter 411 of title 46, United States
Code, is amended by adding at the end the following:
``Sec. 41110. Data collection
``The Federal Maritime Commission shall publish on its
website a calendar quarterly report that describes the total
import and export tonnage and the total loaded and empty 20-
foot equivalent units per vessel (making port in the United
States, including any territory or possession of the United
States) operated by each ocean common carrier covered under
this chapter. Ocean common carriers under this chapter shall
provide to the Commission all necessary information, as
determined by the Commission, for completion of this
report.''.
(b) Rule of Construction.--Nothing in this section, and the
amendment made by this section, shall be construed to compel
the public disclosure of any confidential or proprietary
data, in accordance with section 552(b)(4) of title 5, United
States Code.
(c) Clerical Amendment.--The analysis for chapter 411 of
title 46, United States Code, is amended by adding at the end
the following:
``41110. Data collection.''.
SEC. 10. CHARGE COMPLAINTS.
(a) In General.--Chapter 413 of title 46, United States
Code, is amended by adding at the end the following:
``Sec. 41310. Charge complaints
``(a) In General.--A person may submit to the Federal
Maritime Commission, and the Commission shall accept,
information concerning complaints about charges assessed by a
common carrier. The information submitted to the Commission
may include the bill of lading numbers, invoices, or any
other relevant information.
``(b) Investigation.--Upon receipt of a submission under
subsection (a), with respect to a charge assessed by a common
carrier, the Commission shall promptly investigate the charge
with regard to compliance with section 41104(a) and section
41102. The common carrier shall--
``(1) be provided an opportunity to submit additional
information related to the charge in question; and
[[Page S1889]]
``(2) bear the burden of establishing the reasonableness of
any demurrage or detention charges pursuant to section 545.5
of title 46, Code of Federal Regulations (or successor
regulations).
``(c) Refund.--Upon receipt of submissions under subsection
(a), if the Commission determines that a charge does not
comply with section 41104(a) or 41102, the Commission shall
promptly order the refund of charges paid.
``(d) Penalties.--In the event of a finding that a charge
does not comply with section 41104(a) or 41102 after
submission under subsection (a), a civil penalty under
section 41107 shall be applied to the common carrier making
such charge.
``(e) Considerations.--If the common carrier assessing the
charge is acting in the capacity of a non-vessel-operating
common carrier, the Commission shall, while conducting an
investigation under subsection (b), consider--
``(1) whether the non-vessel-operating common carrier is
responsible for the noncompliant assessment of the charge, in
whole or in part; and
``(2) whether another party is ultimately responsible in
whole or in part and potentially subject to action under
subsections (c) and (d).''.
(b) Clerical Amendment.--The analysis for chapter 413 of
title 46, United States Code, is amended by adding at the end
the following:
``41310. Charge complaints.''.
SEC. 11. INVESTIGATIONS.
(a) Amendments.--Section 41302 of title 46, United States
Code, is amended--
(1) in subsection (a), in the first sentence, by striking
``or agreement'' and inserting ``agreement, fee, or charge'';
and
(2) in subsection (b)--
(A) in the subsection heading, by striking ``Agreement''
and inserting ``Agreement, fee, or charge''; and
(B) by inserting ``, fee, or charge'' after ``agreement''.
(b) Report.--The Federal Maritime Commission shall publish
on a publicly available website of the Commission a report
containing the results of the investigation entitled ``Fact
Finding No. 29, International Ocean Transportation Supply
Chain Engagement''.
SEC. 12. AWARD OF ADDITIONAL AMOUNTS.
Section 41305(c) of title 46, United States Code is amended
by striking ``41102(b)'' and inserting ``subsection (b) or
(c) of section 41102''.
SEC. 13. ENFORCEMENT OF REPARATION ORDERS.
Section 41309 of title 46, United States Code, is amended--
(1) in subsection (a), by striking ``reparation, the person
to whom the award was made'' and inserting ``a refund of
money or reparation, the person to which the refund or
reparation was awarded''; and
(2) in subsection (b), in the first sentence--
(A) by striking ``made an award of reparation'' and
inserting ``ordered a refund of money or any other award of
reparation''; and
(B) by inserting ``(except for the Commission or any
component of the Commission)'' after ``parties in the
order''.
SEC. 14. ANNUAL REPORT TO CONGRESS.
Section 46106(b) of title 46, United States Code, is
amended--
(1) in paragraph (5), by striking ``and'' at the end;
(2) in paragraph (6), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(7) an identification of any otherwise concerning
practices by ocean common carriers, particularly such
carriers that are controlled carriers, that are--
``(A) State-owned or State-controlled enterprises; or
``(B) owned or controlled by, a subsidiary of, or otherwise
related legally or financially (other than a minority
relationship or investment) to a corporation based in a
country--
``(i) identified as a nonmarket economy country (as defined
in section 771(18) of the Tariff Act of 1930 (19 U.S.C.
1677(18))) as of the date of enactment of this paragraph;
``(ii) identified by the United States Trade Representative
in the most recent report required by section 182 of the
Trade Act of 1974 (19 U.S.C. 2242) as a priority foreign
country under subsection (a)(2) of that section; or
``(iii) subject to monitoring by the United States Trade
Representative under section 306 of the Trade Act of 1974 (19
U.S.C. 2416).''.
SEC. 15. TECHNICAL AMENDMENTS.
(a) Section 41108(a) of title 46, United States Code, is
amended by striking ``section 41104(1), (2), or (7)'' and
inserting ``paragraph (1), (2), or (7) of section 41104(a)''.
(b) Section 41109(c) of title 46, United States Code, as
amended by section 8 of this Act, is further amended by
striking ``section 41102(a) or 41104(1) or (2) of this
title'' and inserting ``subsection (a) or (d) of section
41102 or paragraph (1) or (2) of section 41104(a)''.
(c) Section 41305 of title 46, United States Code, as
amended by section 12 of this Act, is further amended--
(1) in subsection (c), by striking ``41104(3) or (6), or
41105(1) or (3) of this title'' and inserting ``paragraph (3)
or (6) of section 41104(a), or paragraph (1) or (3) of
section 41105''; and
(2) in subsection (d), by striking ``section 41104(4)(A) or
(B) of this title'' and inserting ``subparagraph (A) or (B)
of section 41104(a)(4)''.
SEC. 16. DWELL TIME STATISTICS.
(a) Definitions.--In this section:
(1) Director.--The term ``Director'' means the Director of
the Bureau of Transportation Statistics.
(2) Marine container.--The term ``marine container'' means
an intermodal container with a length of--
(A) not less than 20 feet; and
(B) not greater than 45 feet.
(3) Out of service percentage.--The term ``out of service
percentage'' means the proportion of the chassis fleet for
any defined geographical area that is out of service at any
one time.
(4) Street dwell time.--The term ``street dwell time'',
with respect to a piece of equipment, means the quantity of
time during which the piece of equipment is in use outside of
the terminal.
(b) Authority to Collect Data.--
(1) In general.--Each port, marine terminal operator, and
chassis owner or provider with a fleet of over 50 chassis
that supply chassis for a fee shall submit to the Director
such data as the Director determines to be necessary for the
implementation of this section, subject to subchapter III of
chapter 35 of title 44, United States Code.
(2) Approval by omb.--Subject to the availability of
appropriations, not later than 60 days after the date of
enactment of this Act, the Director of the Office of
Management and Budget shall approve an information collection
for purposes of this section.
(c) Publication.--Subject to the availability of
appropriations, not later than 240 days after the date of
enactment of this Act, and not less frequently than monthly
thereafter, the Director shall publish statistics relating to
the dwell time of equipment used in intermodal transportation
at the top 25 ports, including inland ports, by 20-foot
equivalent unit, including--
(1) total street dwell time, from all causes, of marine
containers and marine container chassis; and
(2) the average out of service percentage, which shall not
be identifiable with any particular port, marine terminal
operator, or chassis provider.
(d) Factors.--Subject to the availability of
appropriations, to the maximum extent practicable, the
Director shall publish the statistics described in subsection
(c) on a local, regional, and national basis.
(e) Sunset.--The authority under this section shall expire
December 31, 2026.
SEC. 17. FEDERAL MARITIME COMMISSION ACTIVITIES.
(a) Public Submissions to Commission.--The Federal Maritime
Commission shall--
(1) establish on the public website of the Commission a
webpage that allows for the submission of comments,
complaints, concerns, reports of noncompliance, requests for
investigation, and requests for alternative dispute
resolution; and
(2) direct each submission under the link established under
paragraph (1) to the appropriate component office of the
Commission.
(b) Authorization of Office of Consumer Affairs and Dispute
Resolution Services.--The Commission shall maintain an Office
of Consumer Affairs and Dispute Resolution Services to
provide nonadjudicative ombuds assistance, mediation,
facilitation, and arbitration to resolve challenges and
disputes involving cargo shipments, household good shipments,
and cruises subject to the jurisdiction of the Commission.
(c) Enhancing Capacity for Investigations.--
(1) In general.--Pursuant to section 41302 of title 46,
United States Code, not later than 18 months after the date
of enactment of this Act, the Chairperson of the Commission
shall staff within the Bureau of Enforcement, the Bureau of
Certification and Licensing, the Office of the Managing
Director, the Office of Consumer Affairs and Dispute
Resolution Services, and the Bureau of Trade Analysis not
fewer than 7 total positions to assist in investigations and
oversight, in addition to the positions within the Bureau of
Enforcement, the Bureau of Certification and Licensing, the
Office of the Managing Director, the Office of Consumer
Affairs and Dispute Resolution Services, and the Bureau of
Trade Analysis on that date of enactment.
(2) Duties.--The additional staff appointed under paragraph
(1) shall provide support--
(A) to Area Representatives of the Bureau of Enforcement;
(B) to attorneys of the Bureau of Enforcement in enforcing
the laws and regulations subject to the jurisdiction of the
Commission;
(C) for the alternative dispute resolution services of the
Commission; or
(D) for the review of agreements and activities subject to
the authority of the Commission.
SEC. 18. TEMPORARY EMERGENCY AUTHORITY.
(a) Definitions.--In this section:
(1) Common carrier.--The term ``common carrier'' has the
meaning given the term in section 40102 of title 46, United
States Code.
(2) Motor carrier.--The term ``motor carrier'' has the
meaning given the term in section 13102 of title 49, United
States Code.
(3) Rail carrier.--The term ``rail carrier'' has the
meaning given the term in section 10102 of title 49, United
States Code.
(4) Shipper.--The term ``shipper'' has the meaning given
the term in section 40102 of title 46, United States Code.
(b) Public Input on Information Sharing.--
(1) In general.--Not later than 60 days after the date of
enactment of this Act, the Federal Maritime Commission shall
issue a request for information, seeking public comment
regarding--
(A) whether congestion of the carriage of goods has created
an emergency situation of a magnitude such that there exists
a substantial, adverse effect on the competitiveness and
reliability of the international ocean transportation supply
system;
(B) whether an emergency order under this section would
alleviate such an emergency situation; and
(C) the appropriate scope of such an emergency order, if
applicable.
[[Page S1890]]
(2) Consultation.--During the public comment period under
paragraph (1), the Commission may consult, as the Commission
determines to be appropriate, with--
(A) other Federal departments and agencies; and
(B) persons with expertise relating to maritime and freight
operations.
(c) Authority To Require Information Sharing.--On making a
unanimous determination described in subsection (d), the
Commission may issue an emergency order requiring any common
carrier or marine terminal operator to share directly with
relevant shippers, rail carriers, or motor carriers
information relating to cargo throughput and availability, in
order to ensure the efficient transportation, loading, and
unloading of cargo to or from--
(1) any inland destination or point of origin;
(2) any vessel; or
(3) any point on a wharf or terminal.
(d) Description of Determination.--
(1) In general.--A determination referred to in subsection
(c) is a unanimous determination by the commissioners on the
Commission that congestion of carriage of goods has created
an emergency situation of a magnitude such that there exists
a substantial, adverse effect on the competitiveness and
reliability of the international ocean transportation supply
system.
(2) Factors for consideration.--In issuing an emergency
order pursuant to subsection (c), the Commission shall tailor
the emergency order with respect to temporal and geographic
scope, taking into consideration the likely burdens on common
carriers and marine terminal operators and the likely
benefits on congestion relating to the purposes described in
section 40101 of title 46, United States Code.
(e) Petitions for Exception.--
(1) In general.--A common carrier or marine terminal
operator subject to an emergency order issued pursuant to
this section may submit to the Commission a petition for
exception from 1 or more requirements of the emergency order,
based on a showing of undue hardship or other condition
rendering compliance with such a requirement impracticable.
(2) Determination.--The Commission shall make a
determination regarding a petition for exception under
paragraph (1) by--
(A) majority vote; and
(B) not later than 21 days after the date on which the
petition is submitted.
(3) Inapplicability pending review.--The requirements of an
emergency order that is the subject of a petition for
exception under this subsection shall not apply to the
petitioner during the period for which the petition is
pending.
(f) Limitations.--
(1) Term.--An emergency order issued pursuant to this
section--
(A) shall remain in effect for a period of not longer than
60 days; but
(B) may be renewed by a unanimous determination of the
Commission.
(2) Sunset.--The authority provided by this section shall
terminate on the date that is 18 months after the date of
enactment of this Act.
(3) Investigative authority unaffected.--Nothing in this
section shall affect the investigative authorities of the
Commission as described in subpart R of part 502 of title 46,
Code of Federal Regulations.
SEC. 19. BEST PRACTICES FOR CHASSIS POOLS.
(a) In General.--Not later than April 1, 2023, the Federal
Maritime Commission shall enter into an agreement with the
Transportation Research Board of the National Academies of
Sciences, Engineering, and Medicine under which the
Transportation Research Board shall carry out a study and
develop best practices for on-terminal or near-terminal
chassis pools that provide service to marine terminal
operators, motor carriers, railroads, and other stakeholders
that use the chassis pools, with the goal of optimizing
supply chain efficiency and effectiveness.
(b) Requirements.--In developing best practices under
subsection (a), the Transportation Research Board shall--
(1) take into consideration--
(A) practical obstacles to the implementation of chassis
pools; and
(B) potential solutions to those obstacles; and
(2) address relevant communication practices, information
sharing, and knowledge management.
(c) Publication.--The Commission shall publish the best
practices developed under this section on a publicly
available website by not later than April 1, 2024.
(d) Funding.--Subject to appropriations, the Commission may
expend such sums as are necessary, but not to exceed
$500,000, to carry out this section.
SEC. 20. LICENSING TESTING.
(a) In General.--Not later than 90 days after the date of
enactment of this Act, the Administrator of the Federal Motor
Carrier Safety Administration (referred to in this section as
the ``Administrator'') shall conduct a review of the
discretionary waiver authority described in the document
issued by the Administrator entitled ``Waiver for States
Concerning Third Party CDL Skills Test Examiners In Response
to the COVID-19 Emergency'' and dated August 31, 2021, for
safety concerns.
(b) Permanent Waiver.--If the Administrator finds no safety
concerns after conducting a review under subsection (a), the
Administrator shall--
(1) notwithstanding any other provision of law, make the
waiver permanent; and
(2) not later than 90 days after completing the review
under subsection (a), revise section 384.228 of title 49,
Code of Federal Regulations, to provide that the
discretionary waiver authority referred to in subsection (a)
shall be permanent.
(c) Report.--If the Administrator declines to move forward
with a rulemaking for revision under subsection (b), the
Administrator shall explain the reasons for declining to move
forward with the rulemaking in a report to the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Transportation and Infrastructure of the House
of Representatives.
SEC. 21. PLANNING.
Section 6702(g) of title 49, United States Code, is
amended--
(1) by striking ``Of the amounts'' and inserting the
following:
``(1) In general.--Of the amounts''; and
(2) by adding at the end the following:
``(2) Nonapplicability of certain limitations.--
Subparagraphs (A) and (B) of subsection (c)(2) shall not
apply with respect to amounts made available for planning,
preparation, or design under paragraph (1).''.
SEC. 22. REVIEW OF POTENTIAL DISCRIMINATION AGAINST
TRANSPORTATION OF QUALIFIED HAZARDOUS
MATERIALS.
(a) In General.--Not later than 90 days after the date of
enactment of this Act, the Comptroller General of the United
States shall initiate a review of whether there have been any
systemic decisions by ocean common carriers to discriminate
against maritime transport of qualified hazardous materials
by unreasonably denying vessel space accommodations,
equipment, or other instrumentalities needed to transport
such materials. The Comptroller General shall take into
account any applicable safety and pollution regulations.
(b) Consultation.--The Comptroller General of the United
States may consult with the Commandant of the Coast Guard and
the Chair of the Federal Maritime Commission in conducting
the review under this section.
(c) Definitions.--In this section:
(1) Hazardous materials.--The term ``hazardous materials''
includes dangerous goods, as defined by the International
Maritime Dangerous Goods Code.
(2) Ocean common carrier.--The term ``ocean common
carrier'' has the meaning given such term in section 40102 of
title 46, United States Code.
(3) Qualified hazardous materials.--The term ``qualified
hazardous materials'' means hazardous materials for which the
shipper has certified to the ocean common carrier that such
materials have been or will be tendered in accordance with
applicable safety laws, including regulations.
(4) Shipper.--The term ``shipper'' has the meaning given
such term in section 40102 of title 46, United States Code.
SEC. 23. TRANSPORTATION WORKER IDENTIFICATION CREDENTIALS.
(a) Definition of Direct Assistance to a United States
Port.--In this section:
(1) In general.--The term ``direct assistance to a United
States port'' means the transportation of cargo directly to
or from a United States port.
(2) Exclusions.--The term ``direct assistance to a United
States port'' does not include--
(A) the transportation of a mixed load of cargo that
includes--
(i) cargo that does not originate from a United States
port; or
(ii) a container or cargo that is not bound for a United
States port;
(B) any period during which a motor carrier or driver is
operating in interstate commerce to transport cargo or
provide services not in support of transportation to or from
a United States port; or
(C) the period after a motor carrier dispatches the
applicable driver or commercial motor vehicle of the motor
carrier to another location to begin operation in interstate
commerce in a manner that is not in support of transportation
to or from a United States port.
(b) Transportation Worker Identification Credentials.--The
Administrator of the Transportation Security Administration
and the Commandant of the Coast Guard shall jointly
prioritize and expedite the consideration of applications for
a Transportation Worker Identification Credential with
respect to applicants that reasonably demonstrate that the
purpose of the Transportation Worker Identification
Credential is for providing, within the interior of the
United States, direct assistance to a United States port.
SEC. 24. USE OF UNITED STATES INLAND PORTS FOR STORAGE AND
TRANSFER OF CARGO CONTAINERS.
(a) Meeting.--Not later than 90 days after the date of
enactment of this Act, the Assistant Secretary for
Transportation Policy, in consultation with the Administrator
of the Maritime Administration and the Chairperson of the
Federal Maritime Commission, shall convene a meeting of
representatives of entities described in subsection (b) to
discuss the feasibility of, and strategies for, identifying
Federal and non-Federal land, including inland ports, for the
purposes of storage and transfer of cargo containers due to
port congestion.
(b) Description of Entities.--The entities referred to in
subsection (a) are--
(1) representatives of United States major gateway ports,
inland ports, and export terminals;
(2) ocean carriers;
(3) railroads;
(4) trucking companies;
(5) port workforce, including organized labor; and
(6) such other stakeholders as the Secretary of
Transportation, in consultation with the Chairperson of the
Federal Maritime Commission, determines to be appropriate.
(c) Report to Congress.--As soon as practicable after the
date of the meeting convened under subsection (a), the
Assistant Secretary for Transportation Policy, in
consultation with the Administrator of the Maritime
Administration and the Chairperson of the Federal Maritime
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Commission, shall submit to Congress a report describing--
(1) the results of the meeting;
(2) the feasibility of identifying land or property under
the jurisdiction of United States, or ports in the United
States, for storage and transfer of cargo containers; and
(3) recommendations relating to the meeting, if any.
(d) Savings Provision.--No authorization contained in this
section may be acted on in a manner that jeopardizes or
negatively impacts the national security or defense readiness
of the United States.
SEC. 25. REPORT ON ADOPTION OF TECHNOLOGY AT UNITED STATES
PORTS.
Not later than 1 year after the date of enactment of this
Act, the Comptroller General of the United States shall
submit to Congress a report describing the adoption of
technology at United States ports, as compared to that
adoption at foreign ports, including--
(1) the technological capabilities of United States ports,
as compared to foreign ports;
(2) an assessment of whether the adoption of technology at
United States ports could lower the costs of cargo handling;
(3) an assessment of regulatory and other barriers to the
adoption of technology at United States ports; and
(4) an assessment of technology and the workforce.
SEC. 26. AUTHORIZATION OF APPROPRIATIONS.
Section 46108 of title 46, United States Code, is amended
by striking ``$29,086,888 for fiscal year 2020 and
$29,639,538 for fiscal year 2021'' and inserting
``$32,869,000 for fiscal year 2022, $38,260,000 for fiscal
year 2023, $43,720,000 for fiscal year 2024, and $49,200,000
for fiscal year 2025''.
Mr. SCHUMER. Mr. President, I further ask that the committee-reported
amendment be withdrawn; that the amendment, which is at the desk, be
considered and agreed to; and that the bill, as amended, be considered
read a third time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee-reported amendment, in the nature of a substitute, was
withdrawn.
The amendment (No. 5017), in the nature of a substitute, was agreed
to.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
The bill was ordered to be engrossed for a third reading and was read
the third time.
Mr. SCHUMER. Mr. President, I know of no further debate on the bill.
The PRESIDING OFFICER. If there is no further debate, the bill having
been read the third time, the question is, Shall the bill pass?
The bill (S. 3580), as amended, was passed.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the motion
to reconsider be considered made and laid upon the table with no
intervening action or debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, the Senate has just passed very
significant and much needed legislation that will reduce costs for the
American people by passing a bipartisan bill to reform unfair shipping
practices hurting exports and consumers alike.
We have all seen pictures of scores of ships lining up in ports from
Los Angeles to Seattle, to New York, to Savannah. Supply chain backlogs
have made it harder for goods to leave these ports and get to their
international destinations.
Every single day that goods lie idle in our ports, it costs producers
more and more money. It is a serious problem, rippling from one coast
to the other.
These backlogs have created serious price hikes. Today, according to
one study, the price to transport a container from China to the west
coast of the United States costs 12 times as much as it did 2 years
ago--12 times. Talk about supply chain backlogs. This is it--a glaring,
glaring example.
And, of course, it hurts both ways when shipping costs go up. It
affects exports that we send overseas. It affects many of our farmers,
who need to export their goods. It also affects the imports that come
back. It affects all the goods that Americans buy from overseas--
appliances and food and so many other things.
When the cost of shipping is higher, the cost of the goods are
higher, and people have to pay too much--a whole lot more.
At the end of the day, it is the American consumer that pays the
higher price. Thankfully, this bill will make it harder for ocean
carriers to unreasonably refuse American goods at our ports while
strengthening the Federal Maritime Commission's ability to step in and
prevent harmful practices by carriers.
This bipartisan shipping bill is exactly the sort of thing that the
Senate should focus on. It is cost cutting; it is bipartisan; and it
will directly give relief to small businesses and consumers alike.
And I would like to thank a good number of my colleagues who helped
with this legislation. It was put together and sponsored in a
bipartisan way by Senators Klobuchar and Thune. And Senator Cantwell,
who understands the maritime industry probably better than any other
Member in this Chamber, was relentless in pushing this legislation. It
went through her committee, and now it has passed the Senate and,
hopefully, will become law soon, and she deserves our kudos and
accolades for the good job she has done for American consumers,
farmers, manufacturers, and everybody else.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Unanimous Consent Request--Executive Calendar
Ms. BALDWIN. Mr. President, I rise today in support of Mr. Alex
Wagner, the President's nominee to be Assistant Secretary of the
Department of Air Force for Manpower and Reserve Affairs; and Mr.
Ashish Vazirani, nominee to be Deputy Under Secretary for Personnel and
Readiness.
As a Member of the Defense Appropriations Subcommittee, I know that
the most important investment for our national security is in our
servicemembers--our real competitive advantage with Russia and China.
Mr. Wagner brings a combination of public and private sector
experience to the table. He will be key in recruiting, training, and
retaining the talent needed to compete in the 21st century.
Absent his leadership, we may miss important opportunities to invest
in our servicemembers at a time when we are still standing up a new
military branch, the Space Force.
Mr. Vazirani will be responsible for ensuring that we take care of
our people, a priority for the Secretary and everyone in this body.
Mr. Vazirani has significant private sector experience as a
consultant and manager. Further, he served in the Navy and is the
father of a marine. He has the firsthand experience and knowledge that
we need to help improve the opportunities available to military
families and spouses.
Both of these nominees are needed to help implement important
priorities, like the Independent Review Commission's sexual assault
recommendations, improving diversity in the force, and addressing
mental health and suicide.
Both of these nominees are focused on taking care of our people and
ensuring the Department has in place the workforce with the skill sets
that we need to be successful in strategic competition with Russia and
China.
Put simply, if you are serious about countering Russia and China, you
should allow these nominees to be confirmed. And if you are serious
about taking care of those who serve, you should allow these nominees
to be confirmed.
Therefore, I ask unanimous consent that the Senate proceed to
executive session to consider the following nominations, en bloc:
Calendar Nos. 477 and 599; that the Senate vote on the nominations, en
bloc, without intervening action or debate; that the motions to
reconsider be considered made and laid upon the table; that any
statements related to the nominations be printed in the Record; that
the President be immediately notified of the Senate's action; and that
the Senate then resume legislative session.
The PRESIDING OFFICER. Is there objection?
The Senator from Missouri is recognized.
Mr. HAWLEY. Mr. President, I object.
The PRESIDING OFFICER. The objection is heard.
Mr. HAWLEY. Mr. President, it is now March. It has been 7 months
since the disastrous withdrawal from Afghanistan.
Thirteen servicemembers lost their lives in the attack on Abbey Gate
along with hundreds of civilians. As a result of the botched evacuation
operation, hundreds, if not thousands, of American civilians were left
behind to the enemy.
[[Page S1892]]
We hear from our friends on the other side of the aisle that my
insistence that we actually vote on nominees is unprecedented. I would
humbly suggest that the Afghanistan crisis into which this President
led our country was unprecedented.
And who has been held accountable for that disaster? No one. Who has
the President fired? Who has offered their resignation? Which of the
planners at the Department of State or the Department of Defense or the
National Security Council have been relieved of duty? No one.
Until there is accountability, I am going to ask that the Senate do
the simple task of its job, which is to actually vote on these
nominees. The least we could do is observe regular order and vote on
these leadership positions at the Department of Defense.
My colleagues say that we have got to put national security first. I
agree with them about that. But I believe that begins at the top, with
the President of the United States and the leadership of the Department
of Defense and the Department of State. I, for one, am not going to
stand by and look the other way while this administration
systematically endangers our national security, imperils the American
people, and watches the sacrifice of our soldiers go by without any
accountability, without any change in direction.
Accountability for the Afghanistan disaster is all the more urgent
given revelations last month from the U.S. Central Command
investigation of the Abbey Gate bombing. The investigative report makes
clear that the Administration had ample warning prior to mid-August
that Kabul could collapse rapidly in the face of the Taliban's
offensive. It shows further how the Administration refused to
acknowledge those warnings and act in a timely manner to prepare for
Kabul's fall. And it shows in astounding detail just how chaotic the
final evacuation effort was, with U.S. servicemembers often left
without clear guidance, the State Department constantly missing in
action, and the Administration itself intent only on evacuating as many
people as possible, regardless of whether those individuals were
eligible for evacuation or might pose a threat to America's own
security.
I am not willing to look the other way and just pretend that
Afghanistan didn't happen, which seems to be the posture that many in
this body have adopted. I am not willing to do that. I can't do that
because I promised the parents of the fallen that I wouldn't do that.
I am going to discharge my responsibility. And as long as it takes, I
will continue to draw attention to what happened at Abbey Gate and to
demand accountability for the disaster that this administration has
pushed upon this country and upon the people of my State.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Ms. BALDWIN. I am disappointed that my Republican colleague blocked
confirmation of these nominations.
These nominees have been held up since last year. They were approved
by the Armed Services Committee with a bipartisan vote and only one
Member recorded as a no. It is time to end these delays and confirm
these nominees.
I yield the floor.
I suggest the absence of a quorum.
Mr. VAN HOLLEN. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. CARPER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Recognizing the Commissioning of the USS ``Delaware''
Mr. CARPER. Mr. President, I rise today to mark a moment in history
for the First State, your neighboring State, to celebrate the first
U.S. Navy vessel to be named after Delaware in more than 100 years.
In 2 days, I will be joined by the Secretary of the Navy, the First
Lady of the United States, and what will feel like half of Delaware at
the Port of Wilmington to commemorate the commissioning of the Virginia
Class of nuclear submarine, the USS Delaware.
And while the vessel was first officially commissioned underwater and
underway on a mission at sea due to the COVID restrictions on April 4,
2020--a first in Navy history--a first in Navy history--this weekend,
we will get to give the USS Delaware, its crew, and the people of
Delaware a fitting celebration above the surface of the water.
It has been a long time coming for the USS Delaware. So many people
across Delaware and in the Navy have worked hard not just for weeks,
not just for months, but for years to make this weekend a reality for
our State and the crew.
I would be remiss not to mention my wingman in the U.S. Senate,
Senator Chris Coons, and our wing-woman in the U.S. House of
Representatives, Lisa Blunt Rochester, as well as our Governor John
Carney for their long-standing support for the USS Delaware. They will
be joining us on Saturday to celebrate.
You probably wouldn't be surprised to learn that SSN 791--that is the
number assigned to the USS Delaware, is not the first Navy vessel to
bear the name ``Delaware.''
The first USS Delaware was launched in 1776. Its role? Delaying the
British Fleet's approach to Philadelphia and thus impeding the ability
of the British to resupply their army in our War of Independence. That
was the first USS Delaware.
The sixth USS Delaware was completed in April of 1910. Armed with ten
12-inch guns, it was the most powerful battleship in the world at the
time. Over 100 years would pass before another US Naval vessel would
bear the name ``Delaware.''
Then, one day in 2012, I came across a letter to the editor from a
constituent in Delaware whose name is Steven Llanso. He wrote to the
editor. He said: You know, it has been a long time since a ship was
built and named after the State of Delaware. Maybe somebody should do
something about it.
I thought about it for a while. I thought about it for a couple of
weeks, actually. I pulled my staff together and said, ``Why don't we do
something about this?'' And they said ``Let's do,'' and we did.
The next week, I was on the phone with then-Secretary of the Navy Ray
Mabus, former Governor of Mississippi--us both being former Governors--
and a long-time friend, and he would go on to become the longest
serving Secretary of the Navy in the history of our country.
I explained the situation to Secretary Mabus. He graciously heard me
out and agreed 100 years was a long time. Before we hung up, he said to
me, ``Let me think about it, Tom. I will get back to you in a couple of
months.'' And true to his word, 3 months later, he gave me a call and
said that over the next several years, the Navy would begin
construction on not one, not two, but three, maybe four Virginia Class
nuclear submarines, and the first one off the line would be named the
USS Delaware.
Now, I was talking on a mobile phone, but if I had a landline--if I
was talking with him through a landline, I could have reached through
the landline and kissed him. I was so happy. And I didn't do that. But
it was a wonderful moment, one that I relished in, and I certainly do
today. He is a great friend, a great leader of the Navy then and a
patriot, and he has done so many things for our country. So thank you,
Ray.
So this weekend, almost a decade since I first spoke with then-
Secretary Mabus, I will have the honor of finally introducing the
newest USS Delaware to the people of Delaware. And there is a whole lot
of it to take in.
The USS Delaware is a Virginia Class U.S. nuclear submarine. The
Delaware will carry 26 MK-48 torpedoes, which enable it to conduct the
sub's more traditional role of tracking and, if necessary, sinking
enemy submarines, as well as a wide range of surface vessels.
The Delaware is also designed for versatile operations in shallow
water, closer to land, performing reconnaissance activities, delivering
Special Forces. It is also configured to launch Tomahawk cruise
missiles which can be launched while the Delaware is on patrol. The
Tomahawk can strike targets nearly 1,000 miles away with pinpoint--
pinpoint--accuracy.
This is one hell of a fighting machine. You know, they have a saying
down in Texas you have probably heard. It says ``Don't mess with
[[Page S1893]]
Texas,'' and I would just add to that, to our adversaries, ``Don't mess
with the USS Delaware because, if you do, we will eat your lunch. I
promise.''
And, oh, yes. There are 136 crewmembers aboard the USS Delaware. They
hail from 20 States across our country. Almost half of the States are
represented in the crew of our sub. The crew also includes 15 officers
and 121 enlisted men, a dozen or so who are chief petty officers. My
dad was a chief petty officer for nearly 30 years, World War II and
beyond. And he always told me when I was a midshipman, he used to say,
``Tom, the chiefs run the Navy.'' And you know, they did, and my guess
is they still do.
But in addition to having an opportunity to introduce the crew of the
USS Delaware to the people of Delaware this weekend, we will also have
an opportunity to introduce Delaware to the crew of the State that they
are representing.
With tongue in cheek, I like to describe Delaware as the 49th largest
State in the Union, and it is comprised of three counties and 1 million
people. We are about 100 miles from north to south and about 50 miles
from east to west along our southern border with Maryland, the
Presiding Officer's State.
Native Americans, including the Lenape Indians, lived in Delaware for
hundreds of years before the Dutch arrived some 400 years ago and
established Lewes, DE, the first town in the first State, located where
the Atlantic Ocean meets the Delaware Bay.
A quick story: The Dutch were not all that kind to these Native
Americans who lived in that greater area which is now Lewes. And the
Native Americans literally wiped out the Dutch colony. Later on, the
Dutch would come back in greater numbers, be more kind to the Native
Americans, and the colony of Lewes grew and prospered.
The British looked askance at this and worried about the growth of
this Dutch colony surrounded by British settlements and forces. One
night, the Dutch went to bed to sleep in Lewes, DE, and the Brits
burned the town to the ground. The next morning, when the Dutch
surveyed what happened, there was one house still standing, the Ryves
Holt House, believed to be maybe the oldest permanently standing house
in North America. The Ryves Holt House is now a part of a national
park.
Later on, in 1631, the first Swedes and Finns sailed by what would
become the Port of Wilmington. Their sailing ships--the Kalmar Nyckel
and the Fogel Grip--took a turn to the west for a couple miles on a
smaller river that they named the Christina after Sweden's 12-year-old
child queen. Along its banks, they established the colony of New
Sweden, where Wilmington stands today. The church they built there is
believed to be perhaps the longest continuously serving church in North
America--Old Swedes church--and believe it or not, there are now more
Swedish-Americans than there are Swedes in Sweden.
Fifty-one years later, William Penn would sail up the Delaware, past
Wilmington, past the Port of Wilmington now, to what is called Penn's
Landing, about 25 miles north of Wilmington, and carried with him the
deeds from the King of England to what would later become the Colony of
Pennsylvania and something called ``the Lower Three Counties.'' That
would be us, Delaware. But the real Penn's Landing, ironically, was in
what is now New Castle, DE--not Pennsylvania, but New Castle, DE.
And there is a legend. Legend has it that not only did he stop there,
but he spent the night in Delaware. And later on, he was asked why did
he stop in Delaware, and he said, ``Tax-free shopping.'' ``Tax-free
shopping.''
A few hundred years later, up the Christina River, 10,000
shipbuilders, mostly women, would build many of the ships, including
destroyer escorts and troop landing ships that enabled us to emerge
victorious in World War II. And that is only part of the storied
history that the USS Delaware joins today.
Throughout Delaware history, the letter ``C'' has figured
prominently. Our first settlers planted corn--a lot of it. They raised
chickens, a lot of them, and fed them corn. Our State bird is, believe
it or not, the ``fightin''' blue hen. Today, there are nearly 300
chickens for every person who lives in the First State of Delaware.
Later, we become known as the ``Chemical Capital of the World.'' Thank
you, DuPont, for hundreds of amazing, amazing inventions. Delaware's
coastline is not large, but the last I checked, it was home to the most
five-star beaches than any other State coastline in America--and one of
them is Rehoboth. And Rehoboth is a name that is translated to mean
``room for all.''
Not long ago, we built more cars in Delaware per capita than any
other State. Not surprising is that they were Chryslers and Chevrolets.
And while we have no sales tax, Delaware is the home of incorporation
of half the Fortune 500 and half the New York Stock Exchange. So
corporations are important to us. While I don't know what credit card
is in the wallet of most of the people on the floor today, there is a
good chance it is issued by a bank with operations in Delaware.
Now, that is a lot of C's, but even our political leaders have gotten
into the act with names like Carvel, former Governor; Castle, former
Governor; Carney, current Governor; Coons, our senior Senator; and
Carper, his wingman. And even though Joe Biden didn't start out as one
of the C-boys, he was close, just off by one letter. Joe Biden has
ended up, as you know, as our Nation's Commander-in-Chief. That is a
lot of C's put together in a very nice way. Not bad for a scrappy kid
from Scranton, PA.
By far, the greatest contribution that Delaware has made since the
founding of our country occurred on December 7, 1787, when Delaware
became the first State to ratify our Constitution. I like to say we are
the first to ratify, followed shortly thereafter by Maryland,
Pennsylvania, and others; but for 1 whole week, Delaware was the entire
United States of America. We opened it up and let others in. And I
think for the most part, it turned out pretty well, at least until now.
But the Constitution that we ratified on December 7, 1787, would become
the most enduring Constitution in the history of the world and by far
the most replicated.
You know, none of us are perfect--certainly not me--and our
Constitution was not perfect either; but over time, we have made it
better, a lot better. Along with the Bill of Rights, it provides a
framework, if you will, and a path that has made our country the envy
of much of the rest of the world.
But at the end of the day, our Constitution and our Declaration of
Independence are words on a piece of paper without the resolve made
real by the commitment and sacrifice of men and women who wear and have
worn the uniform of our country.
Let me end with this. I suspect that most of my colleagues remember
studying the Constitution in school--maybe in grade school, maybe in
middle school. I remember it. In fact, my sister and I had to learn and
actually recite the Preamble in middle school. As you know, it begins
with something like this:
We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defense, promote the
general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this
Constitution of the United States of America.
The Preamble of our Constitution doesn't say ``in order to form a
perfect Union''; it says ``a more perfect Union.'' Why is that? Because
as citizens of our great country, it is up to each of us to do our part
to ensure that the arc of American history bends toward perfection and
justice, even knowing that we will probably never fully achieve it.
The men who serve and will serve aboard the USS Delaware will bear
our State's namesake literally for decades to come, maybe a half-
century or more, in defense of our Nation. The crewmembers are
answering the call of our Nation written over 230 years ago. Through
their sacrifice, through their service, may we grow even closer to that
more perfect Union. We are--I know I am--grateful for their service
today.
May God bless and protect the crew of the USS Delaware, both now and
in the decades to come, and may each of us live our own lives in ways
to ensure
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that America remains a nation worthy of their sacrifice so that a
government of the people, by the people, and for the people will not
perish from this Earth.
USS Delaware, long may she sail.
And before I yield back my time, I guess we have been joined on the
floor by our friend and colleague, John Cornyn from Texas. And Senator
Cornyn, I think maybe before he arrived, I used the phrase--I
acknowledged the phrase, ``Don't mess with Texas.'' ``Don't mess with
Texas.'' And I went on to explain all the weapons systems that the USS
Delaware has on board. It is a pretty amazing, incredible submarine.
And I said: It is all right not to mess with Texas, but you better not
mess--for our adversaries, you better not mess with Delaware, either.
With that, I yield the floor to my friend from Texas, Senator Cornyn.
The PRESIDING OFFICER. The Senator from Texas.
Nomination of Ketanji Brown Jackson
Mr. CORNYN. Mr. President, next week, the Senate will vote on the
confirmation of Judge Ketanji Brown Jackson to serve as a member of the
Supreme Court of the United States.
Since Judge Jackson's nomination was announced, I made it clear that
I would go into this process with an open mind, just as I have tried to
do with each Supreme Court nominee who has come before the Judiciary
Committee during my time in the Senate. This is now my eighth Supreme
Court Justice to participate in the confirmation of.
Now, I have seen the good, the bad, and the ugly when it comes to
judicial confirmation hearings, and I know that some people expressed
concerns about the tough questions that Judge Jackson fielded. I
thought she did a credible job answering those questions. She is
obviously incredibly smart, but I found her personally very charming as
well.
Judge Jackson has received two degrees from Harvard, completed a
Supreme Court clerkship, and served on the Federal bench for nearly a
decade. I hear no one questioning Judge Jackson's legal credentials,
but a lifetime appointment to the Supreme Court requires a lot more
than just the right resume. Our constitutional Republic requires judges
who rule based on the law, not based on their personal policy
preferences or beliefs and certainly not based on a result and working
your way back to a justification for that particular result. Judges are
required to go wherever the law may lead them.
Justice Scalia, during his lifetime, said: If you haven't made a
decision as a judge that you personally disagree with because the law
compels it, you are really probably not doing your job as a judge. And
I think there is a lot of truth to that. As I say, the job is not to
start with the desired result and work backwards and cherry-pick the
legal reasoning to justify the decision.
The question we tried to answer--those of us who serve on the
Judiciary Committee--last week is, Where would Judge Jackson fit in
this mold if confirmed to the Supreme Court? Would she be an impartial
umpire who follows the letter of the law or would she attempt to
legislate from the bench? The reason that is important is because,
under our Constitution, Members of the Senate are supposed to
legislate. But that is also the reason why we run for election, and we
are held accountable each election for the votes we take and the policy
positions we embrace. That is how public policy in America is supposed
to be made, not by judges who serve for a lifetime and whom the voters
cannot unelect, like they can Members of the Senate. That is why their
job is very different.
Before Judge Jackson was named as the nominee for this seat,
President Biden outlined what he was looking for in a candidate. Among
the many qualities and beliefs that he specified, the President said,
tellingly, he wanted someone with a judicial philosophy that ``suggests
that there are unenumerated rights in the Constitution, and all the
amendments mean something, including the Ninth Amendment.'' Those are
code words, and let me explain.
This wasn't a one-off comment by President Biden. He even said on the
campaign trail that he would not nominate somebody for the Supreme
Court who did not have a view that unenumerated rights exist in the
Constitution. Now, translated into English, that is tantamount to
saying that judges shouldn't be bound by a written Constitution.
You might wonder, if they are not bound by the text and the words of
the Constitution, where does their authority come from?
The President stated and restated a litmus test for his desired
Supreme Court candidate, and he has clearly determined that Judge
Jackson fits the bill. So I spent my time during the Judiciary
Committee hearing asking her about unenumerated or what you might call
invisible rights during her confirmation hearing--invisible because
they are not in the text.
I told Judge Jackson it is deeply concerning to me and to the people
I represent that five unelected and unaccountable Justices could upend
the will of the people by invalidating laws or inventing a new right
out of whole cloth. We talked a lot about substantive due process. I
suggested that she and I nerd out together, since that is not a topic
that people typically talk about around the kitchen table, but maybe
they do in a sense I will talk about in a moment.
Substantive due process is this theory that somehow, when you combine
the 5th Amendment due process clause with the 14th Amendment due
process clause, that out of that formula, unwritten and invisible
rights can suddenly appear. This is really just judge-made law.
We have seen many examples of this. For example, in Plessy v.
Ferguson, the Supreme Court established the shameful doctrine of
separate but equal when it came to the treatment of African Americans
in our country. Thankfully, that was later overruled by Brown v. Board
of Education. But it is an example of the sort of horrific outcomes
that can occur when judges--five judges, unelected, lifetime tenured--
decide to become policymakers in their own right.
Perhaps most famous in legal circles--certainly in law school--you
learn about Lochner v. New York. That was another example of
substantive due process where the Supreme Court invalidated some labor
regulations with regard to how long bakers could work. In that, the
Supreme Court discovered a freedom to contract right--again, nowhere
written in the Constitution but another example of a result-oriented
outcome based on unwritten constitutional rights.
Now, one of the most famous examples is Roe v. Wade in which the
Supreme Court found a constitutional right to an abortion. I asked
Judge Jackson if the word ``abortion'' or the word ``marriage'' was
found anywhere in the Constitution, and she agreed with me that, no,
they are not mentioned in the Constitution.
Now, here is my point. It is not the outcome necessarily, because
substantive due process can be used for good or for ill. In other
words, the good is when I agree with the outcome, and the ill is when I
disagree. But the main problem is that unelected judges are making
policy, binding the entire country under the guise of substantive due
process, which is nothing but judicial lawmaking. So this doctrine of
substantive due process can be used for things you agree with and
things you disagree with.
The point is that this has, I think, helped us hone in on the
limitless abilities of five Justices to discover new rights that aren't
even mentioned in the Constitution and then to eliminate any sort of
debate or democratic process where people actually get to vote on
public policies because essentially the Supreme Court has taken the
issue out of the public square. They said: We have already decided it,
and we don't really care what you think.
Even Justice Hugo Black, a noted liberal in the classical sense, said
the due process clause itself in the 5th and 14th Amendments was
designed to make certain that men would be governed by law, not the
arbitrary fiat of the man or men in power. And you would have to update
to say ``man or woman,'' obviously.
We all know judges on the Supreme Court and on the Federal bench are
unelected and therefore unaccountable to the people. Federal judges
discovering rights that do not exist in the written Constitution
essentially provides a rudderless and, I would argue, eventually
lawless authority to the Supreme Court.
The very nature of our three branches of government is to divide
responsibilities among those branches.
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As I mentioned, the political branches are the executive branch, the
President; legislative branch, obviously that is Congress, the House
and the Senate. Our job is far different, and it is important to have
judges understand their limited but vital role under the Constitution.
Their job is to interpret the laws as written, not to make them up as
you go along or to use a smokescreen, like substantive due process, to
identify new rights that do not appear anywhere in the Constitution.
If the American people want to amend the Constitution, which they
have done 27 times during our Nation's history, there is a way to do
that. Sure, it is a tough battle. You have to win a supermajority of
both Houses, and you have to get it ratified by the States. But you can
do it, and it has been done 27 times.
But there are people who want to take a shortcut, and they want
judges to abuse their authority by identifying these unwritten rights.
Well, what is at stake when that happens? When judges invent new
rights, decide issues that are not in their lane, as Judge Jackson
liked to say--she would say ``making policy is not in my lane''--or
when a judge acts as a policymaker, like Congress is supposed to do,
like the executive branch is supposed to do, when judges act that way,
they necessarily undermine the American people's right to choose.
The Declaration of Independence notes that the authority of
government is derived from the consent of the governed. But how do
judges, when they identify unmentioned rights out of whole cloth, how
do we, as the American people, get to consent or withhold that consent?
Thus, it is easy to see how judge-made law and these smokescreens, like
substantive due process, are really methods by which some members of
the judiciary undermine the basic and fundamental premise and
legitimacy of our laws because the consent of the governed to those
judges is irrelevant.
Now, one unfortunate consequence of judge-made law that is not in the
Constitution as written, is that anybody who disagrees with you--and
this act of judicial activism--can easily be accused of discrimination
or even labeled a bigot, even if their belief is derived from religious
conviction, which is expressly protected by the Constitution. This is
what happens when invisible rights conflict with rights that are
actually written into the Constitution, like the First Amendment, like
the right to religious liberty.
President Biden assured the American people that he would nominate
somebody who believed in unenumerated rights, so I asked Judge Jackson
a logical question: What unenumerated rights are there?
The American people deserve to know. Certainly, in casting our vote
for or against a nomination, the Senate deserves to know. But she
refused to provide an answer.
This isn't the only place where Judge Jackson was less than candid.
My colleagues and I repeatedly asked Judge Jackson about her judicial
philosophy, a standard question during these confirmation hearings.
Now, Judge Jackson has a marvelous legal education. She has vast
practical experience because she was a public defender, a Federal
district judge, a circuit court judge, and now will serve on the
Supreme Court.
So when you ask a judge with that sort of pedigree, ``Tell us about
the way you decide cases: What is your judicial philosophy?'' Well, it
is not a trap or a trick question. It is something that every Supreme
Court nominee has been asked to describe.
Most recently, Judge Barrett identified her judicial philosophy,
describing herself as a ``textualist'' and an ``originalist.'' Now,
those are awkward terms, but I think what that means is she believes in
interpreting the law as written and as understood at the time it was
written. That is what she refers to as a ``written Constitution.''
Judge Jackson previously suggested she didn't have a judicial
philosophy at all--something I find impossible to believe with somebody
with this sort of experience and background and incredibly impressive
education.
During her confirmation hearing, she failed to provide much clarity
beyond offering vague statements about her methodology. But her
methodology is not a philosophy. We need a clear understanding of how
Judge Jackson views judge-made law and the invisible--you might say
``unenumerated,'' in the words of President Biden--rights that she
finds in the Constitution.
In order for me to fulfill my responsibility as a Member of the
Senate to provide advice and consent, I need to know and understand how
Judge Jackson interprets the law and the Constitution, not asking her
to make specific commitments on results or outcomes. I would never do
that because judges are supposed to interpret, apply the law to a case-
by-case method. But after repeated questioning, the judge refused to
answer that question.
The prism or philosophy through which a Supreme Court nominee views
the law and interprets the Constitution is a critical indicator for
determining if the judge will ``stay in her lane''--again, those were
the terms that Judge Jackson used--or whether she will become a
policymaker that President Biden and outside groups like Demand Justice
want her to be.
Demand Justice is an advocacy group that advocates defunding the
police and progressive solutions to society's problems. They don't want
her calling balls and strikes; they want her putting her thumb on their
side of the scale and judging in a results-oriented fashion.
As I reviewed Judge Jackson's record, I saw some examples of activism
bleeding through her decisions. One of Judge Jackson's opinions from
her time on the DC district court demonstrates the serious concerns
that I have about her ability to follow the letter of the law as
expressed by Congress as opposed to her personal preferences.
In the case Make the Road New York v. McAleenan, a progressive
organization challenged the Trump administration's regulation of
expedited removal proceedings for people who illegally enter our
country without the appropriate paperwork. The Immigration and
Nationality Act gives the Department of Homeland Security ``sole and
unreviewable discretion'' to apply expedited removal proceedings.
Expedited removal is actually a deterrent for illegal immigration
because if migrants realize that without authorization they enter the
country and they are going to be removed on an expedited basis, a whole
lot of them won't spend the money and take the time on that dangerous
journey from their home to our shores or to our border if they know
they are not going to be successful. So this was not a minor matter.
But the Immigration and Nationality Act doesn't leave any gray area for
interpretation. Sole and unreviewable discretion is as clear as it
comes.
Judge Jackson, who presided over this case, decidedly did not stay in
her lane. She went beyond the unambiguous text to deliver a political
win to a progressive group and, in the process, entered an injunction
barring the use of this tool that is needed by our Border Patrol and
immigration authorities in order to deter people from violating our
immigration laws.
Unsurprisingly, her decision was appealed and ultimately overturned
by the DC circuit court. I think this is a clear-cut example of Judge
Jackson ignoring the law as written in order to achieve a result that
she preferred.
The critical point to underscore is that as Members of Congress, we
are elected and accountable. We can get elected, and we can get
unelected when our constituents don't like what we are doing. But our
authority comes from the electoral process, which is another way of
saying the consent of the governed, as I mentioned, in the Declaration
of Independence.
With each bill that is signed into law, we are interacting with the
will of our constituents. And if they don't like what we are doing, you
can bet we hear from them and certainly will in the next election, if
not before.
But by ignoring these laws passed by Congress and signed by the
President, Judge Jackson is doing more than just disregarding Congress;
she is rejecting the right of the American people to govern themselves,
to consent to the laws or withhold their consent.
If given a lifetime appointment to the Supreme Court, I have to
wonder: How many other laws would Judge Jackson ignore? How many other
precedents would she seek to overturn simply because she doesn't agree
with them? How far would she go to achieve
[[Page S1896]]
a specific result by discovering unenumerated and, hence, invisible
rights, whether it relates to immigration, abortion, religion, the
Second Amendment, or anything else you might imagine that the Supreme
Court might consider?
The separation of powers between the three coequal branches of
government is a central feature of our constitutional democracy. Not
only do we have three branches, we also have multiple levels of
Federal, State, and local governments--a Federal system. That is
because the Founders of this great country and the people who ratified
the Constitution believed that the best way to protect their liberty
was by enacting checks and balances on the authority of government
because they didn't trust any person to stay in their lane. They wanted
checks and balances to make sure there was a method of enforcing
elected officials, including judges, to stay in their lane.
Sixth Circuit Chief Judge Jeffrey Sutton recently wrote a book whose
title sums up the overarching debate with a single, succinct question.
Ultimately, this is a question of who decides. Do we the people decide?
Do our elected representatives whom we delegate the authority to make
decisions on our behalf, do they decide or do unelected, lifetime-
tenured, unaccountable Federal judges--are they free to be roaming
policymakers, enacting judge-made law, which actually contradicts or
conflicts with the will of the American people, as evidenced by the
laws passed by their elected representatives? When there is a conflict
between the different levels or branches of government, who decides is
how we determine who holds the power to make decisions that impact
every citizen in this country. And as I said, all power, political and
government authority, is derived from the people.
Voters select Senators, Congressmen, even the President of the United
States, but they have no direct say in the process of selecting Supreme
Court Justices. That is why our responsibility, part of the
Constitution known as advice and consent--that is why our
constitutional obligation is so important.
We have the responsibility to determine whether a nominee understands
the important but limited role of Federal judges and can be expected to
act with restraint, fairness, impartiality, and ultimately in the best
interest of the American people.
Ultimately, I fear Judge Jackson has a blind spot when it comes to
judge-made law, and she would use her seat on the Supreme Court to
create new rights out of whole cloth and engage in result-oriented
decision making.
For that reason, I will oppose Judge Jackson's confirmation to the
Supreme Court of the United States.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I am here on a very important
bipartisan bill, but I first wanted to address the fact that I am proud
to be supporting Judge Jackson.
I think she has incredible legal experience--more experience as a
judge going into the job than four of the people had when they went on
to the Supreme Court.
She is in the top two for trial experience. She showed incredible
grace under pressure when one over-the-top, inappropriate question was
asked of her after another.
She will be walking into that Supreme Court with her head held high,
and she is going to be confirmed next week.
As I said, I will speak more to this later. I spoke a lot about it in
the Judiciary Committee, but she is going to be a great Supreme Court
Justice.
Ocean Shipping Reform Act
Mr. President, I rise today to highlight my bill with Senator Thune,
which just passed the Senate, the Ocean Shipping Reform Act.
We worked for months together on this bill to come to an agreement.
We did everything right and got cosponsors on both sides of the aisle.
I particularly want to thank Baz, my staff member on the Commerce
Committee, who did such a great job in working on this. And I also want
to thank Senators Cantwell and Wicker for their support of the bill as
the chair and ranking member on the Commerce Committee. We worked
together on some changes to the bill, and I appreciated their input.
As U.S. Senators representing Minnesota and South Dakota, Senator
Thune and I know how crucial it is for American businesses to be able
to export throughout the country and across the globe. American farmers
feed the world, and consumers and businesses look to them for in-demand
agricultural goods like soybeans, corn, dairy, poultry, pork, and beef,
just to name a few. And American manufacturers support so many of the
essential parts and products that fill our jobs, businesses, and store
shelves.
As I look at our economy as we come out of this economic downturn, we
must be an economy and a country that makes stuff, that invents things,
that exports to the world. No matter how much American ingenuity we
have--and there is a lot of it--if ships owned by foreign interests are
going to other countries with empty containers and exporting nothing
but air and then come to our country filled with foreign goods, that is
not exactly an even playing field.
As the past 2 years have highlighted, significant supply chain
disruptions and vulnerabilities have occurred. There are many answers
here, one of them being workforce, one of them being port
infrastructure and rail infrastructure and the like, but what we have
seen when it comes to shipping--and I am so glad my colleague from
South Dakota has joined me here on the floor--what we have seen in the
middle of the country, where people are pretty sensible, all of a
sudden they are looking at this, and they see the price of shipping
containers increase by four times in just 2 years. Four times--that is
not normal.
We have also heard from U.S. companies that they have only been able
to ship 60 percent of their orders because they can't access the
shipping containers. At the same time, these ocean carriers--almost all
foreign-owned--have reported record profits. It is estimated that the
container shipping industry made a record $190 billion in profits in
2021, a sevenfold increase from the previous year.
Their financial performance isn't a result of improved performance
when our manufacturers and farmers can't ship out their goods, no. They
are fleecing consumers and exporters because they know they can get
away with it, and this is all while exporters and consumers are
literally paying the price for the supply chain disruptions caused by
unreliable service.
(Ms. CORTEZ MASTO assumed the Chair.)
We need to get exports to those who need them, but it is plainly
obvious that the ocean carriers are prioritizing non-American shipments
at the expense of both American exporters--as in manufacturers, so many
of them in Minnesota and South Dakota, as Senator Thune knows, being
small businesses--as well as farmers and American consumers. It isn't
sustainable, and it isn't acceptable. We can't let ocean carriers slow
down our supply chain while shaking down our American businesses and
farmers for their own profit.
That is why we introduced the Ocean Shipping Reform Act. It just
passed the Senate. Our bill protects American farmers and manufacturers
by making it easier for them to ship ready-to-export goods waiting at
our ports. Our bill aims to level the playing field for American
exporters by updating the Federal rules for the global shipping
industry.
It will give the Federal Maritime Commission greater authority to
regulate harmful practices by these big international carriers. It
directs the Federal Maritime Commission to issue a rule prohibiting
international ocean carriers from unreasonably declining shipping
opportunities for U.S. exports. This will make it harder for them to
leave our products behind, just sitting there at a port, in favor of
shipping over to China, sailing over to China, and then bringing their
products back to us.
In addition to giving the FMC more authority to investigate bad
practices by ocean carriers, the bill also directs the Federal Maritime
Commission to set new rules for what the international carrier
companies can reasonably charge and require them to certify and
ultimately prove that fees that they charge are fair. As rates continue
to climb, this is more urgent than ever.
[[Page S1897]]
And I personally believe that, even before this rule goes into
effect, the fact that we passed this unanimously in the U.S. Senate
sent a pretty strong shot across the bow because there is so much more
we could do and we will do if this practice continues.
As I was working on this bill with Senator Thune, I heard about
exporters who wanted to speak out against these predatory practices but
were scared into silence because they feared that the ocean carriers
would retaliate. That is why our bill includes strong anti-retaliation
protection for shippers. In short, this bipartisan legislation says to
the foreign-owned shipping alliances: Charge fair prices, stop
profiting off our backs, and fill your empty crates with American-made
products.
Senator Thune and I have a bipartisan group of 29 cosponsors
representing a variety of regions: Senators Cantwell; Wicker; Baldwin;
Hoeven; Stabenow; Marshall; Peters; Moran; Blumenthal; Young; Kelly;
Crapo; Smith of Minnesota; Blackburn; Booker; Ernst; Cortez Masto, the
Presiding Officer; Braun; Warnock; Risch; Bennet; Cramer; Wyden; Blunt;
Van Hollen; Boozman; Fischer; Padilla; and Hickenlooper.
The legislation earned the endorsement of the American Association of
Port Authorities, which represents more than 130 Port authorities
across North and South America, including my own port of Duluth. This
bill is also endorsed by more than 100 organizations, including the
Agriculture Transportation Coalition, the National Retail Federation,
the American Trucking Associations, and the Consumer Technology
Association.
I also want to mention the House leaders on this bill--
Representatives John Garamendi and Dusty Johnson of South Dakota--
whose companion legislation has already passed the House. I see this as
a truly bipartisan solution to a problem that is impacting millions of
Americans and a great example of what is possible when we work
together.
I want to congratulate Senator Thune for his great leadership. He may
be a bit taller than I, but we have worked together on many, many
things across our borders.
The PRESIDING OFFICER. The Republican whip.
Mr. THUNE. Madam President, let me just join my friend and colleague
and neighbor from across the border, Senator Klobuchar, in just
acknowledging the passage of something that is really important and
credit to her staff, who I know worked tirelessly on this, and members
of my staff--in particular Chance Costello--who worked tirelessly
trying to find that common ground and thread the needle to get this
done in a way that would expedite its passage here in the Senate.
As Senator Klobuchar pointed out, the leadership on the Commerce
Committee--Senators Cantwell and Wicker--and their staffs also were
instrumental in helping us get this across the finish line. But as
Senator Klobuchar pointed out, I think this is a good example of how,
if you are willing to keep grinding and keep working at it, you can
come up with solutions that are bipartisan and solutions that really
get at problems that we are facing in this country.
I don't think anybody would argue that we have a supply chain crisis
in America. It has heightened the importance of addressing some of
these shipping challenges; and our legislation, although it may not be
the end-all, certainly takes us a long way toward addressing what have
been identified as many of the problems associated with trying to get
the goods and products through our port system into the United States
and, as importantly, trying to get those products, those things that we
raise and grow and manufacture here in the United States, to their
destinations around the world.
And there have been lots of examples which Senator Klobuchar has
alluded to that she and I and our staffs have, in visiting with
stakeholders out there, people who were impacted by these bottlenecks
that exist today--as we have listened to them, much of that input and
feedback was incorporated into this legislation.
So it does take strong measures to help tackle supply chain
slowdowns, and it does level the playing field for American exporters,
including South Dakota ag producers. It does this in several ways. She
has covered it well, but let me just briefly touch on a couple of
things. It does this by giving the FMC, or the Federal Maritime
Commission, new authorities to crack down on unfair ocean carrier
practices, whether that is a refusal to carry certain cargoes or
discrimination against certain commodities for export.
We have all heard these examples--Senator Klobuchar alluded to this--
of containers leaving the ports in the United States that are empty,
filled with air, or the carriers making determinations based upon the
value of certain products instead of--and then assessing detention and
demurrage fees sometimes on shippers that are unfair and unrelated,
really, to anything that they have done.
So providing the FMC with more tools to quickly resolve detention
disputes, bringing greater efficiency and transparency to a process
that leaves many shippers frustrated--and especially small businesses--
is what this legislation is all about. These improvements, we believe,
are going to bring long-term, positive changes to the maritime supply
chain, which I hope will benefit not only exporters but importers and
consumers alike.
The legislation not only levels the playing field for producers in
South Dakota and across the Nation, but it will also benefit exporters,
small businesses, and, as I said, consumers across this country.
So I hope, as she does, that our colleagues in the House will be able
to take this up and pass it. There has been some good work done there
already, much of it by my colleague in South Dakota, a Member of the
congressional delegation from our State, Dusty Johnson, who has been
the leader on this legislation in the House of Representatives when it
passed earlier this year. And now, we have our chance here in the U.S.
Senate.
And it is a product of a tremendous amount of work. Senator
Klobuchar's staff and my staff spent not weeks but months negotiating--
and, you know, there are always disagreements. There are always
differences. Of course, when you present it to the rest of our
colleagues on the Senate Commerce Committee, they have their ideas,
unique ideas, about things that they want to fix and change and make
better. So it went through that process.
But, ultimately, when we brought it up for consideration in front of
the Senate Commerce Committee, there were some amendments that were
offered and voted on. People got a chance to have their voices heard. A
lot of the ideas that people had were incorporated into the base text,
but, ultimately, when it was voted out, it was voted out of the Senate
Commerce, Science, and Transportation Committee unanimously. It came
out without a dissenting vote, and that, I think, set us up here on the
floor of the U.S. Senate to process in a way that, again, included a
high level of bipartisanship.
And I credit, too--as we brought it to the floor, there were a couple
of issues we had to again deal with, individual Members who had
concerns--some with the legislation, some with other issues. But as is
always the case here in the U.S. Senate, an individual Senator can
assert their rights in a way that enables them, gives them leverage on
the process; but we were able to work through those things, and that
product today has now passed the U.S. Senate.
Hopefully, if the House is inclined to do so, it would be great if
they would pick it up, pass it, put it on the President's desk, and
have him sign it into law because I think it will take us a long way
down the road toward leveling that playing field and addressing many of
the concerns that have been identified by our exporters.
I know that the farm organizations in my State of South Dakota have
been very active in influencing this, very concerned about the
bottlenecks and their ability to reach export destinations in a way
that allows them to maximize their profitability and, in doing so,
increase the prosperity of people all across the Midwest in States that
we represent where agriculture is the No. 1 industry.
So congrats to those who worked on this, again, to the staff who have
labored, and to my colleague from Minnesota. This is not the first time
we have collaborated on issues. We share not only a border but,
obviously, a lot of commonality in terms of the issues that impact our
States; and this is one
[[Page S1898]]
in particular where I think the farmers, ranchers, small business
people, manufacturers in Minnesota and in South Dakota will all derive
a benefit once it is enacted into law.
We are going to do everything we can now to continue to press
forward. We have gotten it this far. We need to now get some additional
action by the House of Representatives. I am not sure exactly what that
looks like, whether that is going to conference with them. Preferably,
obviously, they pick up and pass this bill, put it on the President's
desk and turn it into law.
I am pleased to be able to be a part of this and to get a result
today.
Ms. STABENOW. Will the Senator yield?
Mr. THUNE. I would be happy to yield to our colleague and the
chairman of the Senate Ag Committee, who also has big equities in this
discussion.
Ms. STABENOW. Madam President, I thank Senator Thune and Senator
Klobuchar. I know that the chair of the Commerce Committee is coming
down to speak.
I just wanted to say congratulations. Thank you for your wonderful
leadership on this. Obviously, with my hat on as chair of the
Agriculture, Nutrition, and Forestry Committee, this is a big deal, as
they would say. This is a very big deal to, certainly, all of our
growers in Michigan but, I know, across the country.
So thank you for your great bipartisan work, and hopefully, we can
get this all the way across the finish line. I know the President is
anxious to sign it.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Madam President, I, too, would like to come to the
floor and thank my colleagues from the Upper Midwest for their great
work on this legislation, the Ocean Shipping Reform Act of 2022.
Our colleagues from the Upper Midwest know how important agriculture
products are, and they know how important it is for them to reach their
destination. As Senator Thune was the previous chair of the Commerce
Committee, he knows all too well about how products can get boxed out
because of other products on the rails.
My colleague from Minnesota knows all too importantly about exports
and has been a big supporter of our export economy in general and
represents a State that is very robust on the global economy. So her
leadership on a very tough issue has been very, very appreciated.
I would like to thank, from the Commerce Committee staff, a variety
of people, and from Senator Wicker's staff and from Senator Thune's. A
lot of people worked on this: Nicki Teutschel, Alexis Gutierrez, Dave
Stewart, Grace Bloom, Charles Vickery, Eric Vryheid, Michael Davisson,
Matt Filpi, and Megan Thompson. From Senator Wicker's staff: Andrew
Neely, Fern Gibbons, Brendan Gavin, Paul Wasik, Kyle Fields. And from
Senator Klobuchar's staff: Obviously Baz Selassie--couldn't have done
it without all of his hard work. He is really the guy behind this. And
Senator Thune's staff: Chance Costello. And certainly Rob Hickman from
Senator Schumer's staff.
So, today, the passage of this bipartisan legislation couldn't come
at a more important time for our growers and producers and exporters;
that is, today we are saying that American farmers matter, and their
survival matters more than the exorbitant profit of international
shipping companies. That is what we really tried to tackle in this
legislation. Our two colleagues brought forth this legislation in
record time. It was passed in the House of Representatives, led by
Congressmen Garamendi and Johnson. Those two passed that in December,
and our colleagues got this bill here in the Senate in February, and we
were able to pass it now here at the very end of March.
I thank again our two colleagues--Senator Klobuchar for her
leadership and Senator Thune for getting it done so quickly. Literally,
it was introduced in February and passed in March. I hope it is an
example of what we can do on other legislation that is affecting our
supply chain.
Our economy is built on trading goods in a timely manner with our
partnerships from all over the world. Anderson Hay Grain in Washington
said:
The agriculture economy in our region does not work if we
don't have competitive access to world markets.
Right now, the supply chain isn't working. Our ports have been
clogged. Shipping companies have struggled to keep up with demand, and
the costs for American exporters who are trying to get hay and milk and
apples to the global market have gone through the roof. It is hurting
our consumers here at home as they see prices increase, and it is
hurting our exporters when they are looking at products that they are
trying to get to market.
American exporters are being charged more and more for containers due
to shipping delays that are really out of their control. They are
trying not to increase these costs. But, basically, consumers are
paying more, and our exporters are having a tough time getting their
products to market.
According to the freight index, by September 2021, shipping a
container had gone from $1,300 a container to $11,000 a container.
Reports and news articles talk about how that has affected our supply
chains, that there have been increases in costs in consumer
electronics, like computers and other equipment, and in furniture and
apparel. They are all seeing increases because of the increases in our
shipping costs.
The Federal Maritime Commission found that between July and September
of 2021, American businesses were charged $2.2 billion in fees in
addition to freight rates. That is a 50-percent increase compared to
the 3 prior months.
Getting overcharged is only part of the problem. Some of our
businesses can't even get their containers on the ship. During 2021,
there was a 24-percent drop in full shipping containers leaving from
the Ports of Seattle and Tacoma. That drop increased to 30 percent in
January and February of this year. That means 30 percent less
containers are leaving for international markets that are full of
American products. American exporters and their products are being left
on the docks. That is why we wanted to act quickly.
The American farmer, with growing season upon us, can't afford to
wait another minute for the Federal Maritime Commission to do its job
and help police this market and make sure that our products and our
farmers are not being overcharged or left on the dock.
The Washington State Potato Commission reported an 11-percent
decrease in exports in 2020 from 2019. According to Darigold, American
dairy producers lost $1.5 billion last year due to port congestion and
related challenges.
All of this means that getting this legislation onto the President's
desk could not be more important. That is why we acted fast in moving
this legislation today to give the first reforms to the Federal
Maritime Commission in two decades. Those new tools given to the
Commission are to increase the rules to prevent American products from
being left on the docks; increase transparency so that the fees the
shippers are charged are known and they can't be overcharged; and
three, prevent the shipping companies from retaliating against our
local American businesses.
These three changes are significant changes to the authority, and the
committee made sure in the changes to the legislation that these new
rules need to be in place in the next few months. We cannot continue to
wait for those rules to take place until next year. They need to be
done now. That is why the Commerce Committee I am sure will work in a
bipartisan fashion to see the implementation of this law and to make
sure that the Commission is aggressive in going after the exorbitant
fees that are being charged by these international shipping companies.
It is a huge task. The Commission is charged with regulating a $14
trillion international shipping industry. But this industry has done
nothing but become more concentrated in the last several decades. As
the supply chain challenges unfold, it is clear that the Commission is
left trying to rein in the practices of five very large international
companies. That is why we had to act fast and we had to be aggressive
in making sure the Federal Maritime Commission would work to put rules
in place that will help American ag exporters and help protect American
consumers.
Again, I thank my colleagues for their great work on this
legislation.
[[Page S1899]]
The State of Washington desperately needed to see the Federal Maritime
Commission reform. I am proud to say that we were able to get a new
Federal Maritime Commissioner, Max Vekich--who I think will officially
be sworn in soon--from the State of Washington, who has been working on
the docks for 40 years. He knows what it takes to move product. He also
knows that we need aggressive action by the Federal Maritime Commission
to protect all of us from these exorbitant shipping costs and to help
us in making sure that products--good American exports, like our apples
and hay and wheat--are not left on any dock but reach their destination
in foreign markets.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Madam President, before I give my remarks, I want to
give a shout-out again to our great leader, the chair of the Commerce
Committee, Senator Cantwell. I don't know if this is a record, but
Senator Cantwell moved this bill so fast through the committee, it is
amazing. It is just building on the great work of the committee with
the Innovation and Competition Act and so on.
Again, on behalf of all the farmers in Michigan and across the
country, this is really important legislation.
(The remarks of Ms. Stabenow pertaining to the introduction of S.
3979 are printed in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')
Ms. STABENOW I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Tribute to Leah Seigle
Mr. WHITEHOUSE. Madam President, before I get underway with the
business that brings me to the floor, I would like to take a moment to
say farewell and thank you to a member of my staff who is going on to
other pursuits. Her name is Leah Seigle. She is right behind me, and
she was my scheduler for many, many years.
As every Senator knows, there is a special relationship between a
Senator and a scheduler. They have to be on duty, more or less, 24/7
when we are up and about. They have to deal with our day-to-day life
and how it integrates with our offices. They very often are close to
and involved with our families, because of having to deal with keeping
our family time extant and busy schedules.
So I want to say a word of appreciation to Leah.
I don't know how many speeches she has scheduled me here on the floor
for--all the ``Scheme'' speeches, probably all of the ``Time to Wake
Up'' speeches, and this one today. This one today she actually gets to
be here for and doesn't have to watch on television.
So to Leah Seigle, thank you very much, and to schedulers everywhere,
you are important to us.
Nomination of Ketanji Brown Jackson
Madam President, the reason I am here is to announce my intention to
vote for Judge Ketanji Brown Jackson to be an Associate Justice of the
Supreme Court and to congratulate her on the grace and dignity with
which she withstood what Chairman Durbin called her ``trial by ordeal''
in the Judiciary Committee.
Last week, Judge Jackson set the gold standard for patience and
courtesy from a Supreme Court nominee. She demonstrated, hour after
hour after often-agonizing hour, in plain view the qualities that Rhode
Islander and Reagan First Circuit appointee Judge Bruce Selya has
praised in her, an outstanding legal mind, an exemplary judiciary
temperament, and a depth of experience in the courtroom that none of
the sitting Justices possesses.
Judge Jackson reminded us, through her personal story of perseverance
and hope, how historic and important it is to have a Black woman about
to serve on the U.S. Supreme Court. That story of perseverance and hope
stretches back beyond Judge Jackson's own life and work into the
experience of Black women through American history, and it illuminates
a brighter American future. So I will be proud to cast my vote for her
confirmation.
During the Judiciary Committee hearing, there were persistent efforts
to rewrite Judge Jackson's own history, to assign to her beliefs she
has never espoused. She dispensed with those attempts so effectively
that I won't dwell on them here. But there were other attempts in that
hearing to rewrite history that I feel obliged to correct here today.
The first is the notion that a Justice must have a ``judicial
philosophy.'' That is news to me. If a nominee has a judicial
philosophy, it is definitely fair game. It is important to explore
that, and it is particularly important to explore that because
predisposition can come masked as judicial philosophy. But I don't see
where a nominee has to have one, and I would actually suggest we are
better off if judges don't, because judicial philosophy can so easily
be code for predisposition.
Republicans persisted in that ``judicial philosophy'' quest, asking
about ``judicial philosophy'' over 50 times. The favored theme appeared
to be the so-called judicial philosophies of originalism and
textualism, doctrines which illustrate my concern about predisposition.
The big, dark money donors who ushered the last three Justices onto
the Supreme Court love the backward look of originalism. A backward
look to an era when industry regulation did not exist because big
industry did not exist. Moreover, Republican Justices completely
ignore originalism when it suits them. As I pointed out in committee,
the entire vast structure of corporate political power in America
erected by Republican Justices over years is a continuing affront to
originalism.
There was no corporate role in politics in the Constitution or the
Philadelphia debates or the Federalist papers. Any of the customary
wellsprings of originalism would say that this is a country to be run
by we the people. But how happy--how happy--corporate political power
makes big Republican donors. So originalism goes out the window, and
corporate power gets baked into our system.
Unlike those judicial philosophies of predisposition and of
convenience, Judge Jackson said her judicial philosophy is her
methodology--``consistently appl[y]'' the ``same level of analytical
rigor'' to a case ``no matter who or what is involved in the legal
action.'' For a judge, following your oath of office, the
constitutional precedents of the Court, and the text of the
Constitution itself should suffice. You don't need a judicial
philosophy.
So where did this Republican fascination with judicial philosophy
come from? Here are talking points distributed by twinned rightwing,
dark money influence groups, the so-called Independent Women's Law
Center and the affiliated so-called Independent Women's Voice. These
groups are tied in with Leonard Leo's massive, secretive $580 million-
plus archipelago of front groups, like these, that make up the
rightwing donors' Court-capture operation.
They sent these talking points to Republican Senators even before
Judge Jackson was selected. These dark money groups noted that ``this
nominee is likely to be a woman of color'' and urged the Republicans
not argue, ``that the president's selection process led him to choose
someone who may not be the best person for the job.''
They said:
It is . . . important that you focus not on the selection
process or on the nominee's paper qualifications, but rather
on the need to learn more about the nominee's judicial
philosophy.
The marching orders were clear, and 50 efforts at ``judicial
philosophy'' discussion later, we saw these talking points play out in
that hearing.
This rewrite of history, to presume that every nominee should have a
judicial philosophy, just because rightwing nominees have a fake
judicial philosophy of originalism that turns out to be sourced to
rightwing dark money talking points, it seems to me to be an effort to
erase the dangers of having a judicial philosophy, particularly a
judicial philosophy that masks predisposition and is selectively
applied.
Another rewrite of history came through the witness chosen to
highlight Judge Jackson's amicus brief defending a 2000 Massachusetts
law establishing buffer zones for protests around abortion clinics.
The witness was a sidewalk counselor, someone who encourages women
not to go in and exercise their rights. She seemed like a very nice
woman, and she testified that she acted with compassion and love. But
history and
[[Page S1900]]
my experience don't align with that image of clinic protesters, as I
recall personally.
Crowds outside of clinics in Rhode Island in those years leading up
to the 2000 law were hostile and intimidating, screaming and accusing
of murder, to the point where patients coming in required security
escorts to protect them.
I remember pink sweatshirts that safety escorts wore outside Planned
Parenthood so that patients could identify who was there to help them
and then pass safely.
Activists went back and forth between Massachusetts and Rhode Island
to protest outside of clinics.
On the morning of December 30, 1994, bad went to worse. A man walked
into a pair of abortion clinics in Brookline, MA. At the first clinic,
he shot and killed the receptionist with a modified semiautomatic
rifle, then turned on others present--patients, their accompanying
partners, staff. He left that clinic and traveled to the second clinic
and there continued the slaughter. The man killed two people and
wounded five others in this rampage, which shook New England to the
core.
I was the U.S. attorney when word came out of these shootings at
clinics just 1 hour up the road and that the shooter was still at
large. I thought Rhode Island might very well be next. So I went and
stood outside the Planned Parenthood clinic just off the highway with
my friend and Federal law enforcement colleague U.S. Marshal Jack
Leyden, and we stood there on that cold morning until a police cruiser
could be posted outside.
I will just say that the environment that led to Massachusetts'
buffer zone law passing in 2000 was not an atmosphere of compassion and
love, and it is a disservice to the facts to try to rewrite history and
pretend that it was.
Another rewrite of history that took place in this hearing was a
rewrite of the Brett Kavanaugh hearings.
The Judiciary Committee had been provided evidence in those hearings
that young Brett Kavanaugh was an out-of-control drinker with a bad
history of behavior around women--most particularly the testimony of
this woman that she had been physically assaulted as a young woman.
You would never know of her testimony from the history rewrite
offered by Republicans in the recent hearings. You would never know
that she came to the Judiciary Committee; that she testified under oath
and intense public scrutiny; that she weathered the attentions of a
professional prosecutor hired by the Republicans; that she was calm and
credible.
And you would never know that the FBI tanked its supplemental
background investigation into these allegations, including a tip line
whose tips received zero FBI investigation. I have described it before
as a tip dump, not a tip line.
The tips related to the nominee were segregated from the regular
stream of tips in the FBI tip line and sent, without investigation, to
the White House.
Republicans sought to erase all of that by rewriting Kavanaugh
hearing history during this Supreme Court hearing. Well, she has a face
and she has a name: Dr. Christine Blasey Ford.
And the big rewrite--the big rewrite is to ignore all the evidence
that our Supreme Court is now a captured Court, captured in the same
way that Agencies and Commissions are sometimes captured by big special
interests.
There is a whole literature in administrative law, there is a whole
literature in economics about Agency capture or regulatory capture.
Well, even before the Trump Presidency, big, powerful, rightwing
donor interests began spending massive sums of money to install
Justices on the Supreme Court whom they expected to rule reliably in
their favor.
Very often, as the Presiding Officer knows, if you can pick the
judges, you can pick the winner.
The 5-to-4 and now 6-to-3 Republican majority on the Court has been
steadily delivering for those big donors; over 80--eight, zero--80 5-
to-4 partisan wins for big corporate and partisan donor interests under
Chief Justice Roberts.
In those 5-to-4 partisan decisions, by the way, where there was an
identifiable Republican donor interest involved, it wasn't just the 80
decisions that stood out; it was the fact that the score was 80-to-0.
Every single one went their way.
Dark money lurked behind the Federalist Society turnstile that picked
the Justices. Dark money lurked behind the secretive Agency down the
hall from the Federalist Society that ran the ads for them. Dark money
lurks behind the flotillas of front group amici curiae that tell the
Justices, in orchestrated chorus, how to rule.
You would never know any of this from our Republican friends in the
committee.
But the American people have seen those decisions, and more and more
they understand that the Court is rigged; that it is now the Court that
dark money built.
Judge Jackson, by contrast, is a walking reminder of what the Court
ought to be. She didn't pass through the dark money-funded turnstile at
the Federalist Society. She arrived after a lifetime of accomplishment,
against unimaginable odds, through a fair and honest selection process,
through her merit and abilities.
The attacks on her in the committee were unseemly, but there is no
need to dwell on that because at the end of the day, they were sound
and fury, signifying nothing.
Judge Jackson will excel on the Supreme Court, and I will proudly
cast my vote to put her there.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. MARKEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Warnock). Without objection, it is so
ordered.
Iran
Mr. MARKEY. Mr. President, Donald Trump relit the fuse that leads to
an Iranian nuclear bomb by abandoning the Iran nuclear deal. Now
Republicans are urging President Joe Biden to let it go boom.
President Barack Obama crafted the Iran nuclear deal in 2015 to
prevent an Iranian nuclear weapon. He had inherited two quagmires in
Afghanistan and Iraq, and he was right to prioritize diplomacy to
prevent us from falling into a third quagmire.
Donald Trump's unilateral exit from the Iranian deal in 2013 created
a nuclear crisis where one did not exist. In the years since that
withdrawal, Iran has crept closer to a bomb, restricted access to
international inspectors, and set us on a potential collision course to
war with Iran.
Our European allies wanted to build upon the Iran nuclear deal, but
President Trump and his arms control assassin, John Bolton, used it as
target practice, leaving the Biden administration and our allies to
pick up the pieces.
On the Republicans' watch, Iran's breakout time, or time required to
build enough nuclear material for its first nuclear bomb, went from
more than 1 year down to just weeks.
There is simply no good alternative to reentering the Iran nuclear
deal. Trump has already tried the alternative. It has failed miserably
and made the United States more vulnerable and made the Middle East
more vulnerable.
Then-Secretary of State Mike Pompeo laid out a series of demands for
Iran in 2018 that read more like a fantasy novel than a foreign policy
speech. And where did it get us? Absolutely nowhere, except it got Iran
closer to a nuclear weapon than it has ever been before.
No, the reality is that the alternative to diplomacy, our Plan B, is
likely to include more sanctions which will lead to more enrichment of
uranium and the prospect of another Middle East conflagration. In
short, Plan B stands for ``Plan Bad.'' That is what is being urged by
the Republican Party, by the Trump supporters. ``Plan Bad'' would
endorse Trump's disastrous policy of ``maximum pressure,'' one that
gave us maximum enrichment of uranium and other activities prohibited
under the Iran nuclear deal.
Plan B means that China's reported work to give Saudi Arabia--Iran's
nemesis--the building blocks for a nuclear weapon will only accelerate,
and other Gulf countries will jump into the race for a nuclear bomb as
well.
Plan B means that Iran's nuclear facilities that are above ground
will go underground.
[[Page S1901]]
Plan B means that cameras and international inspectors that keep a
continuous eye on Iran's facilities will be shuttered permanently,
leaving us in the dark about Iran's nuclear intentions.
Under Trump, we saw ``maximum pressure'' generate ``maximum tension''
that put us on a perilous path to war. Trump's Plan B to diplomacy was
and continues to be a complete failure.
Indeed, we saw this in 2019, when tensions rose to a decades-long
high with the assassinations of Qasem Soleimani, followed by Iran's
retaliatory strike that injured 200 U.S. troops at an Air Force base in
Iraq. Never had we been closer to a war with Iran.
If the sides currently negotiating a new Iran deal are unable to get
to yes on a deal, I fear that we will see increasing calls from my
Republican colleagues to take military action against Iran. That is not
a good option.
My Republican colleagues need to be honest with the war-weary
American people that doubling down on the failed policies of the Trump
era will likely lead Iran to retaliate by lobbing greater numbers of
missiles at our troops or at the region's energy infrastructure. Iran
will double down on these failed policies, and that may lead to Iran
creating a sea wall to stop traffic in the Strait of Hormuz, creating
more of a supply chain pain. And my colleagues need to be honest that
doubling down on these policies risks adding to the number of Gold Star
mothers who have lost children to unnecessary wars far from home. And,
perhaps, most importantly, my colleagues should be honest with the
American people that these failed policies have led Iran closer to a
nuclear weapon--not further away from a nuclear weapon, closer to a
nuclear weapon--day by day, week by week that we have followed the
Trump plan.
These are life-and-death stakes. Doubling down on the failed policies
of Trump and expecting a different result in Iran is truly the
definition of insanity.
The Iran nuclear deal is not a panacea nor was it ever intended to be
a panacea. What it is, is a verifiable agreement that cuts off each of
Iran's three pathways to a nuclear bomb.
First, Iran will, again, have to cap its enrichment level and ship
out its stock of enriched uranium that would otherwise be potential
feedstock for a nuclear bomb.
Second, Iran will finish the conversion of its Arak reactor, which
will close off its plutonium path to a nuclear bomb.
And, third, and most importantly, inspectors from the international
watchdog agency, the International Atomic Energy Agency, will once
again get access to the soup to nuts of Iran's nuclear fuel cycle.
If we listen to the same voices who rejected a good deal in search of
the impossible, who preached brinksmanship over diplomacy, we will find
ourselves stuck, as we are today, with an Iran that could have the
ultimate weapon to back its coercion--a nuclear bomb.
Fortunately, this screenplay does not have to end with American men
and women marching off to another war in the Middle East, and it does
not have to end with Iran entering the worst of exclusive clubs, those
with nuclear weapons.
Russian President Vladimir Putin's recent nuclear saber rattling has
brought home the stakes of nuclear diplomacy with Iran. A homicidal
leader armed with weapons of annihilation is a threat to global peace.
When Putin ordered an increase in the alert level of Russia's nuclear
forces a couple of weeks ago, he postponed U.S. intercontinental
ballistic missile tests for fear that, in the fog of war, Russia could
misinterpret an ICBM launch off the coast of California as a first
nuclear strike against Russia. That also explains President Biden's
reticence to impose a NATO-enforced no-fly zone over Ukraine.
Putin is failing. Ukraine and its people are winning, with our help.
Every fabricated justification for Putin's senseless and illegal war
has crumbled. But a direct U.S.-NATO military intervention would pull
the world's two largest nuclear powers closer to a war. No simulation,
no exercise, no war game can assure us that such a war does not
metastasize to engulf all of Europe and lead to the use of nuclear
weapons.
Mr. President, here is the scary reality: Vladimir Putin could kill
millions upon millions of Americans right now using a fraction of his
4,500 nuclear weapons. That is the perennial threat of nuclear arms.
Conventional logic says that we are safe because a Russian nuclear
strike would be both homicidal and suicidal for Putin, but we cannot
bank on the fact that Putin, the pariah, has a moral basement.
President George W. Bush famously said he looked into Vladimir Putin's
eyes and he saw his soul. Thank goodness President Biden sees it for
the dark space that it is.
As a result, Russia's war in Ukraine calls on us to challenge tired,
old Cold War assumptions that basing our nuclear posture on the balance
of terror and relying on the rationality of our leaders will keep the
peace--no, it will not. That assumption has to be completely reanalyzed
in view of what Putin is doing right now, that pursuing President
Reagan's star wars fantasy to knock out nuclear-tipped missiles in
space before they fall on American cities is wise; it is not. There is
no guarantee that some of those nuclear weapons would not come and
destroy American cities and that we should spend a quarter of a
trillion dollars to replace the very same U.S. intercontinental
ballistic missiles that the President won't even test during a conflict
due to fears of escalation; we should not.
Unfortunately, our American democracy and Russia's autocracy do share
one major thing in common: Both our systems give the United States and
Russian Presidents the God-like powers known as sole authority to end
life on the planet as we know it by ordering a nuclear first strike.
As President Richard Nixon grimly described these powers once:
I can go into my office and pick up the telephone and in 25
minutes, 70 million people will be dead.
We know all too well that American Presidents are not infallible,
neither is our early warning system, which is why we need an emergency
break to ensure that a case of mistaken identity--a false missile
launch--or a President gone wild does not trigger the unthinkable.
We cannot uninvent the atom, its military applications, and
technological know-how. The nuclear Pandora's box is sadly forever
opened. We must, however, do everything in our power to be able to look
the next generation in the eye and say that we did everything--
everything--in our power to avert the unfathomable, a nuclear war on
this planet; and that includes supporting negotiations that not only
end Russia's war in Ukraine, but also future negotiations to end the
budding 21st century nuclear arms race which is spinning out of
control.
Mr. President, I was a teenager during the Cuban Missile Crisis. Had
President Kennedy listened to his generals rather than to his better
angels, we might not be here today. This building might not be here.
``Bert the Turtle'' public service advertisements told us to duck and
cover under our school desks. Backpack nukes designed to repel the
Soviet advance on West Germany rolled off the assembly lines. U.S. and
Soviet leaders were awoken in the middle of the night to false alarms
of nuclear Armageddon. These events must forever belong to our past,
not to our future.
A future held together by the fear of annihilation is a burden, not
an inspiration. But Congress can shape a safer more inspiring future by
supporting President Biden's efforts to reenter a good Iran nuclear
deal, and we can and we must hold ourselves to a higher standard than
Russia when it comes to resting the fate of humanity in the hands of
just one human being.
This is a subject that should command the attention of every single
American. We have to move further away from the threat of a nuclear
catastrophe, not get closer to it; and that is why we must support a
reentry into a good Iran nuclear deal. The alternative is frightening
for the future, not just of the Middle East, but for our country and
the entire planet.
____________________