[Congressional Record (Bound Edition), Volume 155 (2009), Part 11]
[Senate]
[Pages 14182-14185]
[From the U.S. Government Publishing Office, www.gpo.gov]




           FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of H.R. 1256, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 1256) to protect the public health by 
     providing the Food and Drug Administration with certain 
     authority to regulate tobacco products, and to amend title 5, 
     United States Code, to make certain modifications in the 
     Thrift Savings Plan, the Civil Service Retirement System, and 
     the Federal Employees' Retirement System, and for other 
     purposes.

  Pending:

       Dodd amendment No. 1247, in the nature of a substitute.
       Burr/Hagan amendment No. 1246 (to amendment No. 1247), in 
     the nature of a substitute.
       Schumer (for Lieberman) amendment No. 1256 (to amendment 
     No. 1247), to modify provisions relating to Federal 
     employees' retirement.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the clerk will report the motion to invoke cloture.
  The assistant legislative clerk read as follows:


[[Page 14183]]

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the Dodd substitute 
     amendment No. 1247 to Calendar No. 47, H.R. 1256, Family 
     Smoking Prevention and Tobacco Control Act.
         Harry Reid, Christopher J. Dodd, Robert P. Casey, Jr., 
           Benjamin L. Cardin, Blanche L. Lincoln, Patty Murray, 
           Ron Wyden, Jack Reed, Sheldon Whitehouse, Maria 
           Cantwell, Roland W. Burris, Tom Harkin, Sherrod Brown, 
           Debbie Stabenow, Richard Durbin, Mark Udall, Edward E. 
           Kaufman.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on 
amendment No. 1247 offered by the Senator from Connecticut, Mr. Dodd, 
to H.R. 1256, the Family Smoking Prevention and Tobacco Control Act, 
shall be brought to a close? The yeas and nays are mandatory under the 
rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Byrd), the Senator from New York (Mrs. Gillibrand), the Senator from 
Massachusetts (Mr. Kennedy), and the Senator from Michigan (Ms. 
Stabenow) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from New Hampshire (Mr. Gregg), the Senator from Texas (Mrs. 
Hutchison), the Senator from Idaho (Mr. Crapo), and the Senator from 
Kansas (Mr. Roberts).
  The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 61, nays 30, as follows:

                      [Rollcall Vote No. 204 Leg.]

                                YEAS--61

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Cornyn
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Grassley
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--30

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Corker
     DeMint
     Ensign
     Enzi
     Graham
     Hagan
     Hatch
     Inhofe
     Isakson
     Johanns
     Kyl
     Martinez
     McCain
     McConnell
     Risch
     Sessions
     Shelby
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--8

     Byrd
     Crapo
     Gillibrand
     Gregg
     Hutchison
     Kennedy
     Roberts
     Stabenow
  The PRESIDING OFFICER. On this vote, the yeas are 61, the nays are 
30. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  Mr. DODD. Madam President, I move to reconsider the vote by which the 
motion was agreed to, and I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Ms. COLLINS. Madam President, I rise as a cosponsor of a bipartisan 
amendment that will provide targeted reforms to the Federal Employee 
Retirement System in order to be more effective and equitable for our 
past, current, and future Federal employees. I am joining Senators 
Lieberman, Akaka, and Voinovich in this effort.
  First, I would like to highlight a provision that I was pleased to 
introduce earlier this year as a bipartisan stand-alone measure with 
Senators Voinovich, Kohl, and McCaskill.
  This portion of the amendment would establish a 5-year pilot project 
allowing agencies to hire back Federal retirees for a limited period of 
time without having to offset their salaries by the amount of their 
annuities. This will strengthen the Federal Government's ability to 
serve the public, particularly at a time when agencies face a wave of 
retirement of highly experienced employees and there exists a critical 
need for these skilled employees.
  Across the government, our agencies face a host of challenging 
missions that require focused leadership and vigilant oversight. In 
Afghanistan, our government faces an increasing demand for development 
experts. As the government implements the Recovery Act, experienced 
auditors are in high demand to ensure funds are spent wisely.
  On average, however, retirements from the Federal workforce have 
exceeded 50,000 a year for a decade. The numbers will certainly rise in 
the near future. The Office of Personnel Management calculates that 60 
percent of the current Federal workforce, whose civilian component 
approaches 3 million people, will be eligible to retire during the 
coming 10 years.
  This baby boom retirement wave will have another impact. It will 
cause a sudden acceleration in the loss of accumulated skills and 
mentoring capabilities that experienced workers possess.
  The amendment we offer today would provide a limited, but vital, 
measure of relief to agencies who could benefit from the skills, 
knowledge, and productivity of federal retirees. It provides an 
opportunity for Federal agencies to reemploy retirees without requiring 
them to take pay cuts based on the amount of their annuity payment.
  With some exceptions, retirees can currently return to work without 
having their salaries reduced only if OPM grants a waiver for the 
reemployment. This creates a disincentive for experienced Federal 
retirees to return to Federal service--preventing their knowledge and 
experience from filling critical agency needs.
  The cumbersome waiver process also dissuades agencies from 
considering annuitants when evaluating their overall workforce 
strategy.
  Congress has already provided exceptions to this rule. Both GAO and 
the Department of Defense have utilized this authority to rehire 
skilled annuitants to meet important mission requirements.
  Other agencies, especially those charged with overseeing the stimulus 
and TARP funds, need the same ability to hire back experienced workers. 
Acting Comptroller General Gene Dodaro has indicated that the ability 
to reemploy annuitants without salary offset is a critical authority 
that GAO uses whenever a surge in staffing is necessary.
  This amendment would grant the opportunity for Federal agencies, on a 
limited basis, to reemploy retirees without requiring them to take pay 
cuts based on their annuity payment or to wait for OPM to grant a 
waiver.
  While providing needed flexibility for agencies to meet mission 
critical responsibilities, the amendment would also strictly prescribe 
the periods of time for which retirees can be rehired, thereby 
preventing agencies from relying solely on retirees instead of hiring a 
new crop of employees to fill the ranks behind our seasoned employees 
as they retire.
  According to the Congressional Budget Office, this provision will not 
cost the Federal Government any additional money. The returning 
annuitants' health and life insurance benefits would be unaffected by 
their part-time work, and the government would not need to make any 
additional contributions to the annuitant's retirement plan. Thus, even 
without making any allowance for the positive effects of these 
returning employees' organizational knowledge, commitment, 
productivity, and mentoring potential, their reemployment may actually 
produce a net savings for taxpayers.
  This reform would also provide some much needed hiring flexibilities 
for agencies, given the expertise the Federal Government will need to 
effectively implement and oversee the American Recovery and 
Reinvestment Act of 2009. The Chair of the Council of Inspectors 
General on Integrity and Efficiency, in testimony before the Homeland 
Security and Governmental Affairs Committee, agreed with this point, 
and the council has sent a letter endorsing this authority.

[[Page 14184]]

  The ability to rehire Federal retirees would also help strengthen the 
Federal acquisition workforce. The Federal Government has entered the 
21st century with 22 percent fewer Federal civilian acquisition 
personnel than it had at the start of the 1990s. Moreover, as early as 
2012, 50 percent of the entire Federal acquisition workforce will be 
eligible to retire. This amendment will help shore up this workforce at 
a critical time.
  The bill I originally introduced with this provision has been 
endorsed by the Partnership for Public Service, National Active and 
Retired Federal Employees Association, Federally Employed Women, the 
Government Managers Coalition, and the National Council on Aging.
  Beyond this provision, the amendment also corrects an inequity 
between the two Federal retirement systems--FERS and CSRS. Current law 
compensates CSRS employees at the time of their retirement for the 
unused portion of the sick leave that they accrued over the course of 
their Federal careers. Employees under FERS are not provided similar 
compensation. This creates an unfair disparity within the Federal 
workforce which this amendment would rectify.
  This amendment includes many provisions that would help to strengthen 
the Federal workforce, attracting highly skilled and talented employees 
at a time when they are desperately needed. I urge my colleagues to 
support this amendment.
  Mr. AKAKA. Madam President, I rise today to support the Family 
Smoking Prevention and Tobacco Control Act. Tobacco products kill 
approximately 400,000 people each year. The Food and Drug 
Administration must be provided with the authority to regulate deadly 
tobacco products, limit advertising, and further restrict children's 
access to tobacco.
  I commend my friend from Massachusetts, Senator Ted Kennedy, for his 
long-term commitment to advancing this vital public health legislation, 
and I want to thank my friend from Connecticut, Senator Chris Dodd, for 
managing this bill. I am proud to support their efforts.
  Included in the bill are a number of Federal retirement provisions 
that go a long way to support retirement security and provide more 
options for Federal employees. The provisions in the managers' 
amendment would make four changes to enhance the Thrift Savings Plan, 
TSP.
  First, automatic enrollment in the TSP would encourage Federal 
workers to plan for their retirement. Federal employees would be 
automatically enrolled in the TSP with the option of opting out of the 
program. The Federal Retirement Thrift Investment Board--FRTIB--
indicated that raising TSP participation by just 1 percent would mean 
approximately 21,000 participants will have an improved ability to live 
comfortably in retirement.
  Second, Federal employees also will be eligible for immediate 
matching TSP contributions from their employing agency. A recent survey 
from the profit sharing--401k Council of America shows that 65 percent 
of large employers now provide immediate matching retirement 
contributions. The amendment would allow the Federal Government to 
catch up to the practices of other large employers.
  Third, FRTIB will have the option to create a ``mutual fund window'' 
in which major mutual funds will be available to TSP participants. 
Employees will be able to select mutual funds that are appropriate for 
their investment needs.
  The final TSP component is the addition of a Roth individual 
retirement account option for participants. The Department of Defense 
strongly supports the inclusion of a Roth option because it is 
advantageous for uniformed servicemembers who would benefit more from 
posttax contributions than from traditional pretax contributions.
  I also am proud to support my other good friend from Connecticut, 
Senator Joseph Lieberman in offering an amendment to address a number 
of other Federal employee retirement issues. As chairman of the 
Subcommittee on Oversight of Government Management, the Federal 
Workforce, and the District of Columbia, I believe we have an 
opportunity to provide critical support to the tobacco bill and correct 
certain retirement inequities.
  Most important to my home State of Hawaii, the amendment provides 
needed retirement equity to Federal employees in Hawaii, Alaska, and 
the territories. Nearly 20,000 Federal employees in Hawaii, and another 
30,000 Federal employees in Alaska and the territories, currently 
receive a cost-of-living allowance, COLA, which is not taxed and does 
not count for retirement purposes. Because of this, workers in the 
nonforeign areas retire with significantly lower annuities than their 
counterparts in the 48 States and DC. COLA rates are scheduled to go 
down later this year along with the pay of nearly 50,000 Federal 
employees if we do not provide this fix.
  In 2007, the Office of Personnel Management, OPM, offered a proposal 
to correct this retirement inequity. After soliciting input from the 
affected employees, I introduced the Non-Foreign Area Retirement Equity 
Assurance Act. The bill passed the Senate by unanimous consent in 
October 2008. Unfortunately, the House did not have time to consider 
the bill before adjournment.
  I reintroduced S. 507, which is included in the amendment, with 
Senators Lisa Murkowski, Daniel Inouye, and Mark Begich. It is nearly 
identical to the bill that passed the Senate last year. It is a 
bipartisan effort to transition employees in Hawaii, Alaska, and the 
territories to the same locality pay system used in the rest of the 
United States, while protecting employees' take-home pay. In this 
current economic climate we must be careful not to reduce employees' 
pay.
  The measure passed unanimously through the Homeland Security and 
Governmental Affairs Committee on April 1, 2009. OPM recently sent 
Congress a letter asking for prompt and favorable action on this 
measure. Retirement equity is one of the most important issues facing 
Federal workers in Hawaii, Alaska, and the territories. I urge my 
colleagues to support this change.
  One of the other provisions in the amendment corrects how employees' 
annuities are calculated for part-time service under the Civil Service 
Retirement System, CSRS. This provision treats Federal employees under 
CSRS the same way they are treated under the newer Federal Employee 
Retirement System, FERS. Eliminating this unnecessary disparity is a 
matter of fairness and correction.
  Similarly, this amendment includes a provision to treat unused sick 
leave the same under the new retirement system as under the old system. 
The Congressional Research Service , CRS, found that FERS employees 
within 2 years of retirement eligibility used 25 percent more sick 
leave than CSRS employees within 2 years of retirement. OPM also found 
that the disparity in sick leave usage costs the Federal Government 
approximately $68 million in productivity each year. This solution was 
proposed by the managers who wanted additional tools to build a more 
efficient and productive workplace and to provide employees with an 
incentive Congress should have retained years ago.
  This amendment also will make good on the recruitment promise made to 
a small group of Secret Service agents. Approximately 180 Secret 
Service agents and officers hired during 1984 through 1986 were 
promised access to the DC Police and Firefighter Retirement and 
Disability System. This amendment is meant to provide narrow and 
specific relief only to this small group of agents and officers by 
allowing them to access the retirement system they were promised at the 
time they were hired.
  The majority of these retirement reform provisions have the 
endorsement of all the major Federal employee groups including: the 
American Federation of Government Employees, the National Treasury 
Employees Union, the National Active and Retired Federal Employee 
Association, the Senior Executives Association, the Federal Managers 
Association, the Government Managers Coalition, the International

[[Page 14185]]

Federation of Professional and Technical Engineers, and the list goes 
on.
  I strongly encourage my colleagues to support this amendment, the 
Federal retirement reform provisions, and the bill.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Madam President, let me express my gratitude to my 
colleagues on both sides. This was a bipartisan effort to allow us to 
get to more votes. I promise my good friend Senator Burr if I have to 
vote against a point of order to make sure he gets his amendment up, I 
will do so.
  Tomorrow afternoon, we will set a time for that, and there are other 
germane amendments, and the leadership will describe how that will work 
so the germane amendments can be offered and these matters can be 
considered fully so that we can get to final passage after that.
  But I am very grateful to my colleagues on both sides who made this 
possible. It has been 10 years in waiting to get to this bill that 
allows us finally to deal with the marketing of tobacco products to 
children. That is more than 400,000 deaths a year, with 3,000 to 4,000 
kids starting to smoke every day. This bill, for the first time, will 
allow us to step up and require FDA regulation of tobacco products. 
That is a great accomplishment for the people of our country, and I am 
very grateful to my colleagues.
  Madam President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. Will the Senator withdraw his request for a 
quorum call?
  Mr. DODD. I will withdraw the request.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Madam President, I ask unanimous consent that the Senator 
from Illinois, Senator Durbin, be recognized following my presentation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, I wanted to compliment Senator Dodd for 
his work on this bill, as well as Senator Enzi and others. I want the 
Record to reflect something we agreed to today. Some will wonder what 
has happened to the legislation that I indicated I would offer on the 
bill we just had a cloture vote on--the importation of prescription 
drugs. I intended to offer it on this bill. I have received from the 
majority leader a commitment that it will be put on the calendar under 
rule XIV and brought to the Senate for a vote, and he will do that very 
soon. On that basis, I voted for cloture.
  I know my colleagues, Senator Snowe, Senator McCain, Senator 
Stabenow, and many others feel very strongly about this, as do I. We 
have been at this for 8 or 10 years. It has been a long time, and the 
support for allowing the importation of FDA-approved prescription drugs 
is very broad in the Senate. Senators McCain, Grassley, Kennedy, 
Stabenow, myself--in fact, President Obama was a cosponsor of our 
legislation last year. He has included in his budget a provision for 
this kind of legislation. We had over 30 Senators--Republicans and 
Democrats--who believed the same thing, and that is we ought to allow 
the American consumer to access FDA-approved prescription drugs from 
other countries--not because we want them to shop in other countries 
but because we believe the ability to do so will put downward pressure 
on prescription drug prices in our country.
  Madam President, if I might, I ask unanimous consent to display these 
two pill bottles to show exactly what we are talking about.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. This is Lipitor, produced in Ireland by the same company, 
shipped in two different directions. Even the bottle is identical, 
except one has a blue label and one has a red label. One of these went 
to Canada and one of them went to the United States. The American 
people get the pleasure of paying twice the price for Lipitor than the 
Canadians do. But it is not just Canada, it is virtually every other 
industrialized country that is able to pay a fraction of the price for 
prescription drugs our consumers are required to pay. Why? Because 
there is a law in our country that says the only entity that can import 
prescription drugs is the manufacturer of the drug itself.
  The legislation we have put together on a bipartisan basis is very 
straightforward and it provides substantially greater protections with 
pedigree and batch lots, and so on, substantially greater protection 
than now exists. So don't anybody tell me there is a safety issue. This 
is about whether the American people should continue to be paying the 
highest prices in the world for prescription drugs.
  At last--at long last--we ought to have a vote on this and get it 
through the Congress and signed by a President who was a cosponsor when 
he served in this body. So the majority leader has committed to giving 
us the opportunity to get this on the floor, and that commitment we 
will exchange by letter in the morning. I expect that to happen in the 
very near future, within a matter of a couple of weeks, and I believe 
that finally we will be able to dispose of this on the floor of the 
Senate. I believe that we have more than sufficient votes to pass this 
importation of prescription drugs legislation in order to put downward 
pressure on drug prices in this country.
  What is happening in this country with drug pricing is unfair to the 
American people. It is as simple as that, and we aim to correct it.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Illinois is to be recognized.
  Mr. DURBIN. Madam President, I will be happy to yield to the Senator 
from Arizona and then reclaim the floor after he has spoken.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Arizona.
  Mr. McCAIN. Madam President, I thank the Senator from Illinois. I 
will be brief.
  I thank the Senator from North Dakota for his outstanding work, and I 
thank also the majority leader, who assured us that he would give 
consideration to this issue. He has. He has agreed to bring it to the 
floor. And when the majority leader gave that assurance, frankly, I was 
a little skeptical about our ability to do so. I am happy he is 
bringing it forth for a vote, and I appreciate it very much. And I 
again thank Senator Dorgan for his outstanding work. It has been a lot 
of years we have been working on this, but I think we can move forward.
  I yield the floor, and I thank my colleague from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.

                          ____________________