[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[Senate]
[Pages 17917-17935]
[From the U.S. Government Publishing Office, www.gpo.gov]




    FDA FOOD SAFETY MODERNIZATION ACT--MOTION TO PROCEED--Continued

  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. The Senate is not in a quorum call right now.
  Mr. COBURN. Oh, very good. Then I withdraw my request and ask that I 
might be recognized.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. COBURN. Thank you, Mr. President. I wish to spend a few minutes 
discussing the bill that is before us. Having been a manufacturing 
manager for 10 years, producing products that came through the medical 
device industry, and having dealt with the FDA as a manufacturer and 
then having dealt with the FDA and the consequences of the FDA as a 
physician over the last 25 years and then looking at this bill that is 
on the floor today, I think it addresses three things I have talked 
about, especially in Oklahoma over the last year.
  Everybody recognizes this Nation is at a critical point--fiscally, 
internationally. From the standpoint of foreign policy, it has been 
impacted by our fiscal problems. But there are three structural reasons 
why I think we are there, and I think we need to learn from them. This 
bill provides us a great example.
  The first is, as a physician--and I knew it as a business manager--
you have to fix real problems. If you fix the symptoms that have been 
created or the circumstances that have been created by the real 
problems, you will make things better for a while, but you actually 
will not solve the underlying problem. What happens when you do not 
solve the underlying problem and fix the symptoms is, you delay the 
time and you also increase the consequences of not fixing the real 
problems.
  Second, if you only think short term, you do not have the planning 
strategy with which to do the best, right thing in the long term. We 
consistently do that in Washington. Consequently, the CBO put out the 
unfunded liabilities for Medicare, Medicaid, and Social Security 
yesterday. It is now $88.9 trillion. It was $77 trillion last year. It 
was $63 trillion the year before. So we are up $26 trillion in unfunded 
liabilities that we are going to pass on to our kids in 3 years because 
we continue to think short term instead of long term.
  Then, the fourth thing is to have the courage to stand and say: No, 
we should not do things that address the symptoms; we should address 
the underlying problems. No, we should not think short term or 
parochially; we should think long term and address that issue.
  As to the food safety bill, all my colleagues are very well intended 
in terms of what they are trying to accomplish with it. But there are 
some facts we ought to be realistic about. We could spend $100 billion 
additionally every year and not make food absolutely safe. There are 
diminishing returns to the dollars we spend. But if you look at what 
the case is: In 1996, for every 100,000 people in this country, we had 
51.2 cases of foodborne illness--the best in the world, by far. Nobody 
comes close to us in terms of the safety of our food. But, in 2009, we 
only had 34.8 cases--three times better than anybody else in the world. 
So the question has to be asked: Why are we doing this now when, in 
fact, we are on a trendline to markedly decrease it? The second 
question that should be asked is: No matter how much money we spend, is 
there a diminishing return?
  There are a lot of things in this bill that I agree with--a lot. I 
think foreign food ought to be inspected before it comes into this 
country and I think those who want to sell products in this country 
ought to have to demonstrate the quality of it and I think the cost of 
that ought to be on the person selling the food, not on the American 
taxpayer. But ultimately that cost will be added to the cost of the 
food.
  I think the recognition of peanut allergy is a realistic one, and I 
understand the purpose for wanting a grant for that. But as I read the 
Constitution, that is a State function. That is not our function. The 
other thing that bothers me about the grant proposals--I walked out of 
the deficit commission to come over here. I have spent 8 months in that 
commission looking at the problems in front of this country. We cannot 
afford another grant program. We do not have the money.
  So we can say we are going to authorize it in this bill, but, do you 
know what, it is not going to get funded next year because we do not 
have the money. When the interest rates skyrocket in less than a year 
from now because of our misplaced spending over the past 20 years and 
our continued short-term decisionmaking instead of long-term 
decisionmaking, our situation is going to grow even darker. So this 
bill provides a wonderful example of how we ought to fix the real 
problems instead of the symptoms of the problems.
  The other thing that truly is not addressed is the long-term 
criticisms the GAO has continually made on our food safety. Senator 
Harkin has the best idea of all, but he could not get everybody to do 
it; that is, an independent food safety agency, to where we are not 
relying on the CDC, we are not relying on the FDA, we are not relying 
on the

[[Page 17918]]

Department of Agriculture, that we put them all into one and say: You 
are responsible for food safety. But he could not sell that.
  Ask yourself the question: If you had three different agencies 
stepping all over each other with different sets of rules with 
agreements between themselves that they will do certain things, and 
then they do not do them--that, by the way, is why we had the 
salmonella problem; they did not follow their own protocols to notify 
the FDA of the problem--most commonsense thinking people would say: 
Well, maybe you ought to put all those things into one agency, with one 
boss and one line of accountability and responsibility.
  So Senator Harkin is absolutely right in where he wants to go. We are 
going to spend $1.5 billion over the next 5 years on this bill that 
does not accomplish what we need to accomplish, which is what Senator 
Harkin wants to do--and he is right--and we are not going to fix the 
criticisms that have been leveled against the agencies by the GAO for 8 
years, in spite of the fact, as I stand here and am critical of 
different agencies, they actually have done a very good job. That is 
known by the fact that our incidence of foodborne illness is now less 
than 34 per 100,000 people. Think about that. Think about all the 
sources of food we get in this country and the diverse places they come 
from. Yet only 34 people get a staph poisoning or a nontoxigenic E. 
coli poisoning or a salmonella poisoning or a Yersinia poisoning or a 
Shigella poisoning in a year. So that is the incidence of illness.
  The question is, How do we stop the 10 or 20 deaths a year from 
foodborne illness? Can we do that? Well, as a physician trained in 
epidemiology, we could do it. But I will posit we do not have the money 
to do that because it would take billions upon billions upon billions 
of additional dollars to ever get there. So we find ourselves in a 
dilemma.
  I commend to my colleagues the reports GAO-09-523, GAO-09-873, and 
GAO-05-213.
  The GAO does a wonderful job telling us where we are failing, and we 
ought to address everything they raised in these reports.
  Even further than that, Dr. Hamburg, around the time we were having 
the salmonella with the eggs problem, released an egg standard. The 
bureaucracy took 11 years to develop that standard. That falls on the 
shoulders of President Bush's administration as well as this one. I am 
proud of her that she got it out. But the fact is, 11 years to do what 
you are responsible for, to get an egg standard so we do not have 
significant salmonella poisoning coming from eggs? Then, lo and behold, 
after the egg standard is out, the FDA inspectors on farms in Iowa are 
violating their own protocols, cross-contaminating egg farms, as 
documented in the press.
  It is not a matter that we do not have enough rules and regulations. 
That is borne out by the fact that we are continually seeing a decline 
in foodborne illness. That is not the real problem. The problem is 
effectively carrying out the regulations that are there today. So we 
have a bill on the floor that has 150 to 170 pages--I cannot recall 
exactly how many it is--here it is. It is 266 pages of new regulations, 
new rules, new requirements.
  Let me tell you something else I learned about dealing with the FDA. 
The FDA overall in this country does a fantastic job. They do. They are 
very professional. They are very slow sometimes, but they are very 
professional, and they are very cautious. In this bill is a mandate to 
require recalls. Not once in our history have we had to force anybody 
to do a recall. It has always been voluntary, and you can check with 
the FDA on that. They do not need that authority. Why don't they need 
that authority? Because if you have a problem with your product in the 
food system in this country, you are going to get sued. You are going 
to get fined if you do not recall that product.
  What is wrong with a potential mandatory recall? What is wrong is it 
is going to markedly raise the cost of foods. Let me explain why. It is 
called Coburn's bureaucratic principle: Do what is safe first in the 
bureaucracy rather than what is best.
  Here is what I imagine happening with a mandatory recall. Because we 
have a problem, we are going to recall something and we are going to 
force a mandatory recall. Even though they may recall it voluntarily, 
somebody is going to pull the trigger earlier, because they don't want 
any criticism. There is a great example for that. How many people 
remember the toxigenic E. coli jalapeno pepper episode? Voluntary 
recall for tomatoes, because we said it had to be in the tomatoes, so 
they did that. That cost $100 million to the tomato farmers in this 
country and didn't save one life, because they got it wrong. They 
discovered about 10 days after that, it wasn't the tomatoes, but the 
damage was already done. I can remember I ordered my hamburger in my 
special place in Muskogee, My Place BBQ, and I couldn't get a tomato on 
it. The reason we couldn't get a tomato--there wasn't anything wrong 
with tomatoes in this country; it was because a recall had been 
suggested by the FDA and the tomato growers responded.
  So what we are going to see is a heavy hand rather than a working, 
coordinated foundation upon which we do recalls, as we do now. We have 
not had one instance ever when a food needed to be recalled that wasn't 
voluntarily recalled.
  What I worry about is the fact that we will have recalls that are 
mandated much too soon on the wrong products at the wrong time. We 
don't have a track record that says the government needs additional 
power. As a matter of fact, the FDA doesn't say they need additional 
power.
  So let's summarize for a minute. Where is the crisis in food safety, 
when the science demonstrates that we have the safest food in the world 
and we are on a trendline to have it even safer? Where is the cost-
benefit analysis in terms of what we are going to get from spending 
another $1.5 billion in terms of lowering that number? There is nothing 
in this bill to show that. What is in this bill are tremendous new sets 
of regulations and authorities on top of the authorities that both the 
CDC, FDA, and Department of Agriculture already have, that I don't 
believe--and I agree I am in the minority on that, but I am trained in 
the area of medicine, science, and epidemiology--I don't believe we are 
going to get a significant cost-benefit from it.
  We are going to feel better because we did something. But, again, 
that goes back to the first three principles. If we don't treat the 
underlying problem--in other words, have the oversight hearings to make 
sure the agencies are actually carrying out their functions every day 
on a thorough basis that can be vetted and making sure we are doing the 
right things to create the opportunities to have safe food--we are not 
accomplishing anything, but we are going to feel better. But do we know 
who is going to feel worse? Our kids. Because they are going to pay--if 
we appropriate this money, and I highly doubt a good portion of it will 
be appropriated--they are going to pay for it. If you followed last 
week in international finance, the scare over Ireland's ability to 
repay its debt, and the pressure it had--and we got good news on the 
economic front today--good news, and it is welcome news by all of us. 
But the fact is, what is happening in Ireland and in Greece and Spain 
and Portugal is getting ready to happen to us. And this is a small 
example of why--very good-intentioned, well-intentioned people trying 
to do the right thing, fixing the symptoms instead of the underlying 
problem.
  Our answer is more regulation has to be the answer. That is what we 
did in the financial regulation bill. That is what we did to the SEC 
after Bernie Madoff. Everybody knows the SEC was alerted several times, 
but they didn't do their job. Consequently, we put all of these new 
rules and regulations to not let another Bernie Madoff scandal happen 
when we should have been holding people accountable for not doing their 
jobs.
  I am not against regulation, but I think it ought to be smart, 
targeted, and focused to real problems, not the symptoms of the 
problems. It is my personal belief--that we are targeting

[[Page 17919]]

symptoms and not the real problems with this bill.
  Senator Harkin has bent over backward to work with me. He is an 
honorable man. He is interested in food safety and the welfare of this 
Nation. Nobody should ever say otherwise. But my experience leads me to 
believe it isn't going to accomplish the very purpose he wants to 
accomplish, and my recommendation is to go back and work in the new 
Congress to develop a true food safety center organization within the 
Federal Government that combines all the factors.
  Do my colleagues realize right now when we buy a pizza at the grocery 
store, if you buy a cheese pizza it comes through the FDA, but if you 
buy a pepperoni pizza, it gets approved by the U.S. Department of 
Agriculture? How many people in America think that makes sense?
  The other thing with this bill--and I will finish with this and then 
yield the floor--is this bill wants more inspections. That is great. 
There is no question that inspections will help; the question is what 
is the return on the dollars we spend for it. But if we are going to 
use more inspections, there is not nearly enough money in this bill to 
do it effectively. That is what we are going to trust.
  Let me tell my colleagues why I think we have the safest food in the 
world: because we have the best legal system in the world. That is why 
we have the safest food, because the market forces applied on somebody 
selling food into our commerce are so great and the consequences 
legally are so negative that it is only in their best interests to 
bring a safe product to the market. When we have food scares, most of 
the time it is not an intentional act that created the problem, it is 
an unintentional act. It is a failure of someone in carrying out a 
protocol that should be established.
  Under this bill, anybody who sells more than $500,000 worth of food--
that is almost every Amish farmer in America--a co-op of Amish at every 
farm--will have to have a detailed, laid-out plan, written down, double 
checked, cross checked and everything else. What do my colleagues think 
that is going to do to the cost of food? Do my colleagues think as we 
implement new regulations, those costs aren't going to be passed on? So 
as we grow the government, if, in fact, we are treating symptoms and 
not underlying problems--and I don't have any problems with regulations 
that address real problems--all we are doing is raising the costs and 
making ourselves less competitive, decreasing the number of jobs that 
are available in this country, and not truly ensuring an increased 
level of safety with our food supply.
  It is hard to dispute the facts about our incidence of foodborne 
illness. One case is too many. But we don't have the resources to make 
it where there is not one case, even. It is the same question on 
homeland security. Can we ever spend enough money to 100 percent 
guarantee that we won't have another terrorist attack? Anybody who 
looks at it says no, we can't do that. It is the same with food. For 
every additional dollar expended, what is the return to the American 
consumer for that?
  If it were an achievable goal to eliminate all foodborne illness, I 
would be right there with you. It is not achievable. It is going to 
happen. The question is: Can we continue on a slope to continue to 
decrease the frequency where we have the least amount for the dollars 
we spend? There is a balance, and we need to be there. I will take the 
criticism of my colleagues that they think we need to spend this 
additional $1.5 billion to get it further down the road. But I still 
raise the question of how we cut it in half over the last 9 years--or 5 
years--and didn't spend anything. So we are on a good trend.
  We are, unfortunately, going to have complications with our food 
supply, but we have a great legal system where we have bad actors such 
as the peanut butter factory in Georgia which is now shut down, in 
bankruptcy, and people are going to jail, because they intentionally 
violated the rules we have today. But how did they intentionally do it? 
Because we didn't have effective carrying out of the regulations we 
have today.
  I appreciate the great manner in which Senator Enzi and Senator 
Harkin have worked with me. I have another amendment I wish to offer on 
this bill. Everybody knows what it is. It is an earmark amendment. I 
understand the disdain for having to vote on that and I understand the 
procedural moves that will be made for that, but we are going to vote 
on it. We are going to suspend the rules to get the first vote, but I 
can assure you in the next Congress we are going to get an up-or-down 
vote on it, and it is going to pass in this body because the American 
people expect it to pass. It is something we ought to put away until we 
get out of the problems we are in nationally.
  I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent to speak for up 
to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Mr. President, I am here today to highlight the 
urgency of passing the legislation to overhaul our Nation's food safety 
system. The last time the FDA's law related to food was changed in any 
substantial way was 1938. Think of how things have changed since that 
time: food coming in from all over the world. We think about all of the 
new producers and the new processing plants and the new kinds of food 
we have that weren't available in 1938. An overhaul of the food safety 
system is long overdue, and so is the passage of the Food Safety 
Modernization Act. Food safety reform should have passed Congress and 
should have been signed into law months ago. I have stood in this 
Chamber many times saying the same thing. Each time, each month, 
something new comes up where people get hurt or people die. Whether it 
is jalapeno peppers or peanut butter or more recently eggs, these 
outbreaks of foodborne illness and nationwide recalls of contaminated 
food highlight the need to better protect our Nation's food supply. We 
need to fix it.
  The good news is we know how we can do it and we have legislation 
sitting right here on the table that could go a long way toward helping 
families at their own kitchen tables. The bad news is this legislation 
has been stalled in the Senate since last November.
  This legislation is, first of all, comprehensive. It covers 
everything from ensuring a safe food supply at the front end to 
ensuring a rapid response if tainted food gets into the supply chain.
  I wish to respond to a few points my colleague from Oklahoma raised. 
First he noted that somehow the FDA didn't need the authority to 
recall. In fact, right after the last outbreak, the egg issue, the eggs 
in Iowa, the FDA Commissioner came out and said she needed additional 
authority to do a recall. So let's set the record straight on that. 
That was wrong.
  Secondly, I would point out that this legislation is bipartisan. It 
has both Democratic and Republican sponsors and it passed through the 
committee, the committee on which the Presiding Officer serves, last 
November with bipartisan support. Food safety is not a partisan issue 
and it shouldn't be. It is a national issue of public health and public 
safety. Do my colleagues know what else? It is a business issue. So 
when I heard my colleague from Oklahoma talk about how somehow it was 
going to hurt the bottom line, I wish to know why the grocery stores of 
America support this bill. Does anyone think they are not worried about 
their bottom line?
  I would like to know why companies such as General Mills support this 
bill, and why companies such as Schwan's in Marshall, MN, one of the 
biggest frozen producers in the country--the No. 1 issue they raised 
with me was passing

[[Page 17920]]

this bill. Do you think Schwan's is a company that doesn't care about 
the bottom line?
  You haven't met their business executive, I say to my friend from 
Oklahoma. Their focus is on jobs, making money, and producing a good 
product.
  So why do these businesses that are so clearly concerned about their 
bottom line care about passing this bill? Guess what. These bad 
actors--whether it is the peanut butter factory in Georgia or whether 
it is the egg place that had rats in it--these bad actors hurt all the 
good actors out there, the good food producers and good farmers and all 
of the companies that put in safety measures. That is why the 
companies, the grocery stores, SuperValue, and these kinds of companies 
want to get this bill passed. They think having bad food out there is 
not only bad for consumers when they get sick or die, but it is bad for 
their bottom line. That is why there is industry support for the bill.
  Finally, this legislation addresses a very serious issue--and this 
was the most difficult thing to hear from my friend from Oklahoma. You 
all know in our State about the case of Shirley Ahlmer, a grandmother. 
She fought cancer and survived it. She was ready to go home for 
Christmas, and she ate a little piece of peanut butter toast. That 
grandmother died because of that peanut butter toast.
  I don't want to hear about how it is not worth it for the people of 
America, that it is going to cost the people of America, until you talk 
to Shirley's son Jeff and find out what it cost his family because 
there wasn't an adequate food inspection system in this country. That 
is what this is about.
  One other thing that was not true was when my colleague from Oklahoma 
talked about the tomato recall. That was true, and it was misdiagnosed. 
They said the wrong thing. It was actually jalapeno peppers. They said 
it was tomatoes.
  Why should we keep the same food system in place now if people are 
out there calling the wrong card and saying tomatoes caused this and 
tomato prices go down and people who produce them get hurt and instead 
it is jalapeno peppers? Meanwhile people are getting sick across the 
country. Why would the answer be that we have a great system and let's 
not change it? The answer is we have to change the system.
  The other thing is, both the peanut butter contamination and the 
jalapeno peppers, do you know who called it right? The State of 
Minnesota. It was the University of Minnesota and the Minnesota Health 
Department. None of it got identified until people got sick in the 
State of Minnesota. That makes us proud of our State. But we would have 
rather not lost three people in the peanut butter crisis and said: 
Guess what, we got it right.
  What we can do is take the system we have in Minnesota, which is 
common sense, and instead of just having this problem sit on a county 
nurse's desk, we have graduate students who can work together and make 
calls and figure out what caused this when people got sick, and ask: 
What did you eat yesterday? It is that simple.
  The part of the bill which Senator Chambliss and I sponsored is to 
use that model--not make every State do it but say, let's look at the 
best practices in four regions of the country and see if we can improve 
the system so we can catch these illnesses quicker and respond better 
and have less people die or get sick.
  When I look at all of the issues raised by my colleague, the bottom 
line for businesses is this: Businesses in this industry support this 
bill. When I look at the issue of consumer safety, all you have to do 
is go and look at what happened to Shirley Ahlmer.
  When I look at the issue of what is better for the consumers of this 
country, I don't think anybody wants to get sick from eggs that have 
Salmonella. It is unacceptable, Mr. President.
  I hope anybody who was listening to my colleague from Oklahoma has 
also listened to this because it is very easy to make these claims. Let 
me tell you, one, the people who do this work say they need more 
authority to do recalls and to do it right. The businesses that are 
affected by the food safety outbreaks need a better system. They don't 
want to get stuck in one from back in 1938. The people hurt by this, or 
family members killed by this, say we need improvement. That is why 
this bill has bipartisan support and why three-fourths of the Senate 
supported moving forward on the debate.
  I hope this delay will end and that we will get this done so that 
when families sit down for Thanksgiving dinner, they will at least know 
there is hope in the future that we are not set back in the inspection 
system that we had in 1938.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. INHOFE. Mr. President, I ask unanimous consent that I be 
recognized as in morning business for such time as I shall consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Global Warming

  Mr. INHOFE. Mr. President, as Mark Twain might have characterized 
where we were a short while ago, reports of the death of cap and trade 
have been greatly exaggerated.
  It is true we defeated all the bills. This was after the Kyoto 
Treaty, which failed to even get recognized for discussion, let alone 
ratified. We had all the bills--the McCain-Lieberman bill, the 
Lieberman-Warner bill, the Waxman-Markey bill, and all of the others, 
and they were all killed.
  I can remember way back 8 years ago when I was the only bad guy, the 
one everybody hated. That is when I made an honest statement at the 
time that perhaps what they were trying to do with the global warming 
was the ``greatest hoax ever perpetrated on the American people.''
  As time went by, more and more people agreed. A lot of things have 
happened. Just in the past year, we have had the revelation of 
Climategate, the failure in Copenhagen, the admission of the futility 
of unilateral climate action, the year of the skeptic, and the 
vindication at the ballot box that took place November 2.
  With all this, one might be tempted to declare victory, and I have to 
admit that for a short while I did. It was a year ago today that I gave 
a speech right here on the Senate floor, at this same podium, noting 
that the tide turned decisively against global warming alarmism. The 
year of the skeptic took place.
  Just 2 days later, Climategate exploded into view as thousands of e-
mails were released that showed, at a minimum, the very scientific 
spokesmen for alarmism were scheming to block open and honest 
assessments of their work. Behind the veil of e-mail, they showed their 
true colors: They weren't acting as scientists but as political hacks. 
They were scientists defending a political agenda. The agenda would 
virtually shut down America.
  A lot of people realize and recognize that fossil fuels are necessary 
to run this machine called America. Right now, 53 percent of our energy 
is generated from coal. Coal is necessary. We have clean coal 
technology, and the releases are much less than they used to be. Oil 
and gas are both fossil fuels. It is necessary. You cannot run this 
machine called America without them.
  The damage has been done in terms of what was going on at Copenhagen. 
I think the chapter on the climate science wars has closed. Climategate 
scientists and the allies want to keep fighting. They are particularly 
begging us to bring them before committees to question their work. But 
we will not because they are now irrelevant. The time to talk about 
this science is over.
  I will say this: Five years before Climategate, I gave a speech in 
the Senate and talked about what they were trying to do to cook the 
science. Instead of talking about science, we are talking about the 
economics of what is happening now. We are talking about jobs, about 
competitiveness, and manufacturing and small businesses and real people 
who have to pay more for electricity, food, and gasoline. What do I 
mean? Even with all of the progress we have made--and while cap and 
trade is dead, bureaucratic cap and trade is alive and well--what is 
happening in this country is that we have an administration with a 
majority in

[[Page 17921]]

Congress who tried to pass this legislatively, tried to pass cap and 
trade. The cost of cap and trade, we were finally able to convince the 
American people--if you look at it not from what Senator Jim Inhofe 
says but what the economists say, what they said at MIT and what they 
said at Wharton, if you pass any of these cap-and-trade schemes, the 
cost to the American people will be in the range of $300 billion to 
$400 billion a year. That is what they decided they were able to do 
legislatively. They thought we will do this--because we control EPA, we 
will do it through the regulations.
  What Senator Reid said may be true for the massive 1,000-page bills 
filled with mandates, taxes, regulations, bureaucracy, and not much 
else. But it is not true for the more subtle strain of cap and trade 
now moving through the EPA.
  That is right; this backdoor cap and trade hidden behind an 
administrative curtain. I can hear already what my friend, the EPA 
Administrator, Lisa Jackson, would say: Senator Inhofe, you know we are 
regulating in broad daylight, and we are inviting public comment and we 
are providing guidance. It is all aboveboard and out in the open.
  That may be true, and I trust that Administrator Jackson wants the 
EPA to be transparent. Unfortunately, this bureaucracy has gotten to 
the point where transparency is virtually impossible.
  The reality is that backdoor cap and trade is hidden behind acronyms 
such as PSD, BACT, SIPs, FIPs, BAMM, GHGRP, and the like and arcane 
legal provisions in the Clean Air Act. It is all a great muddle for 
bureaucrats and lawyers, but it is a profound disaster for jobs and 
small businesses in America.
  Make no mistake, the intent and ultimately the effect is no different 
than Waxman-Markey, which is to eliminate fossil fuels and impose 
centralized bureaucratic control over America's industrial 
manufacturing base. Unless we stop them, that is what they will 
achieve.
  Of course, President Obama would say we could have avoided all this 
if we passed cap and trade. That is true. If we had done that, we also 
know it would not have preempted what EPA would be doing.
  That is wrong on two counts. First, what kind of a deal involves 
accepting a bad bill in place of bad EPA regulations? That is no deal 
at all. Secondly, the supposed deal wasn't an either/or proposition. 
Waxman-Markey didn't fully eliminate EPA's ability to regulate under 
the Clean Air Act. President Obama and cap-and-trade supporters wanted 
both options--cap and trade including regulation under the Clean Air 
Act.
  Keep in mind we are talking about something that is very massive--the 
largest single tax increase on the American people. When you talk about 
$300 billion or $400 billion a year, you have to bring that down and 
say: What does that mean to me?
  To the taxpayers in Oklahoma, it would mean over $3,000 a year. What 
do they get for it? Nothing. One thing I like about Administrator Lisa 
Jackson, the Administrator of the EPA, is she is honest in her answers. 
I asked her the question: If we were to pass something like this, pass 
Waxman-Markey and do something legislatively, how would it affect 
worldwide emissions of CO2. She said it wouldn't have much 
of an effect at all. The reason is we can't do that in the United 
States: This isn't where the problem is. It is in China, India, Mexico, 
and other places around the world. As we tighten our availability of 
power, they have to go someplace--our manufacturing base--to find 
power. Well, now they would be going into areas where we have less 
controls. So that could very well have--by banning it here, it would 
have an increase in the effect of CO2 emissions. Most people 
understand and agree with that.
  We have a long, difficult fight ahead. It goes back to December of 
2009 when EPA promulgated the endangerment finding that CO2 
endangers public health and welfare. We know that finding is wrong and 
based on flawed science.
  Before I went to Copenhagen last December--first of all, what 
Copenhagen is, that is the annual big party that the U.N. puts 
together--and they have done it for 15 years now--and they always have 
it at exotic places. Next month it will be in Cancun. Last year, before 
I went there, I asked Administrator Jackson the very question: What 
does your endangerment finding--the way it happened, I say to you, was 
that we had a hearing, a public hearing, live on TV, and Administrator 
Jackson was in our hearing room.
  I said: I am getting ready to be the one-man truth squad in 
Copenhagen. I have a feeling when I leave, you are going to have an 
endangerment finding. What would that be based on? The IPCC.
  To make sure everybody understands, that is the U.N. That is what 
started this thing way back in the 1980s. And so now that is 
established and we know the science on which an endangerment finding is 
based, we go to Copenhagen. It was almost the next day that climategate 
broke. Oddly enough, the timing couldn't have been better--I had 
nothing to do with it; I was as surprised as anyone--because they came 
out and talked about the flawed science that was there and the fact 
they were cooking the science.
  I have to say this. Five years ago this week, in 2005, I gave a 
speech on the Senate floor talking about how they were cooking the 
science at the United Nations--the IPCC--to make people believe that 
greenhouse gases--anthropogenic gases, CO2, methane--were 
causing catastrophic global warming. That was their mission. They 
started with that conclusion and they tried to get science to support 
it. Well, all that was exposed.
  The list of IPCC errors is so long I won't repeat it here, because I 
did so in my speeches before. We know the claim that the Himalayan 
glaciers would melt by 2035 was off by about 300 years. What is 
important now is that the endangerment finding triggered regulations 
that will eventually reach out into every corner of the American 
economy. This will be the greatest bureaucratic intrusion into American 
life we have ever seen.
  Let us put some specifics on that. We are talking 6.1 million sources 
subject to EPA control and regulations. With regard to EPA control and 
regulations, I don't think I have to tell you how onerous that would 
be, what that would be doing to all these institutions that would be 
affected. The U.S. Chamber of Commerce has put together a list as to 
who would be affected by these new regulations and that thousands and 
thousands and thousands of new bureaucrats would be crawling all over 
in America. The list includes 260,000 office buildings, 150,000 
warehouses, 92,000 health care facilities--that is hospitals and so 
forth--71,000 hotels and motels, 51,000 food service facilities, 37,000 
churches and other places of worship, and 17,000 farms.
  The EPA understands the political peril of regulating all these 
sources so they decided to change the law without congressional 
authorization to exempt many of the sources I have mentioned, but that 
is a front. It sounds good, and they will stand up and say, no, we are 
not talking about 250 tons of CO2. But the Clean Air Act 
specifically says that the major sources are those that have the 
potential to emit 250 tons or more of given pollutants. All the farms, 
all the churches, as I mentioned, are going to be in that category.
  Two hundred fifty tons of, say, sulfur dioxide or nitrogen oxide is a 
good deal of pollution. But when it comes to CO2, it is not. 
Lots of facilities emit that amount and more. We are talking schools, 
nursing homes, restaurants, even individual residential sources, mind 
you, that were never contemplated to be regulated when Congress passed 
the Clean Air Act.
  So what did EPA do? Well, they promulgated something called the 
tailoring rule. This gets in the weeds here, but it is something they 
created to say, well, no, we are not going to use 250 tons of 
emissions, we are going to use 75,000 tons. That means we are talking 
only the giants--the refineries and some of these groups. Well, the 
problem with that is that is not what the Clean Air Act says.

[[Page 17922]]

  Sources emitting above those amounts have to get permits that require 
so-called best available control technology to reduce CO2. 
Of course, we don't know what that is. It has never been defined. The 
EPA issued draft guidance on what they call the BACT--best available 
control technology--last week, but it provided no help, just more 
confusion and uncertainty on what the requirements would be.
  Of course, they talk about the EPA has a law in front of it that says 
clearly the major sources are those that have the potential to emit 250 
tons or more. Yet it says the new number is 75,000 tons or more. So now 
the EPA can conveniently say that schools, hospitals, and the like 
won't be regulated, at least not until 2016, when the agency says it 
will consider whether to regulate such sources.
  There is the catch. This supposed exemption through the tailoring 
rule only lasts for a few years, not to mention the fact that it 
blatantly violates the Clean Air Act, which subjects it to litigation. 
On that last point, the tailoring rule, along with the endangerment 
finding and other greenhouse gas rules, is being litigated, so we will 
know eventually whether the tailoring rule survives. I think it will be 
thrown out, but the fact it can be thrown out should be enough for us 
to be honest with the American people and say we are going to regulate 
everything that falls within the 250 tons--all the residences, the 
churches, and the farms I mentioned before.
  Again, I want everyone to understand: The regulation of global 
warming by EPA, backdoor cap and trade, begins on January 2. It is 
here, a month away. I am not the only one concerned about it. On 
February 19, Senator Rockefeller, joined by seven of his other 
Democratic colleagues, wrote Administrator Jackson. Keep in mind, this 
is coming from the Democrats here in this Chamber. He wrote:

       We write with serious economic and energy security concerns 
     relating to the potential regulation of greenhouse gases from 
     stationary sources under the Clean Air Act. We remain 
     concerned about the possible impacts on American workers and 
     businesses in a number of industrial sectors, along with the 
     farmers, miners and small business owners who could be 
     affected as your agency moves beyond regulations for vehicle 
     greenhouse gas emissions.

  We need to address this, because employers and small businesses are 
afraid to hire and expand right now, in large part because of the EPA's 
global warming regulations. They do not know what to expect. They are 
looking at the Clean Air Act, that has a very small threshold. Yet 
statements are being made that this is going to affect everyone and 
they don't know what to do.
  I want my colleagues and the American people in general to know that 
EPA is moving in all directions, beyond just implementing job-killing 
global warming regulations. EPA is threatening jobs on a host of 
fronts. A few months ago, I released an oversight report examining the 
thousands of jobs at risk. And by the way, this is a good report. It 
talks about four major areas of concern, and they are all on my Web 
site at inhofe.senate.gov. Read them over, if you want to be scared. 
But here is what I found:
  The new standards for commercial industrial boilers, for example, put 
up to 798,000 jobs at risk. The revised National Ambient Air Quality 
Standard for ozone puts severe restrictions on job creation and 
business expansion in hundreds of counties nationwide. New standards 
for Portland cement plants put up to 18 cement plants at risk of 
shutting down, threatening nearly 1,800 direct jobs and 9,000 indirect 
jobs.
  I think we should be concerned enough about the unemployment rate 
that we have right now without exacerbating that problem, which is what 
we do with these rules. I think everyone knows that. Where are these 
rules going to hurt the most? In the heartland. By that I mean 
Pennsylvania, Ohio, Michigan, Indiana, Illinois, Missouri, Wisconsin, 
Nebraska, Minnesota, and Montana. Of course, my own State of Oklahoma 
is feeling the brunt, and others will as well.
  Here is the bottom line. Backdoor cap and trade is alive and well. It 
is moving forward. The fight over the future of America's industrial 
base is under way. I want to put the administration on friendly notice 
that I will investigate these rules vigorously in my capacity as the 
ranking member of the Environment and Public Works Committee. I do this 
to expose their impact on jobs, energy prices, competitiveness, small 
businesses, energy security, and the true extent of their environmental 
benefits.
  It is my sincere hope the EPA will pull back, revise, reform, and 
balance its regulatory agenda to protect jobs as well as the 
environment. If the EPA persists on moving down a more extreme path, 
then our 9.6 unemployment rate will be even worse in 2012.
  In an attempt to stem the impending economic harm facing thousands of 
small businesses, the EPA has developed its so-called tailoring rule. I 
don't want to elaborate on this. I will only say that the tailoring 
rule is to make people think we are only going to be regulating those 
entities that emit 75,000 tons or more, when the law clearly says 250 
tons or more.
  In some cases, these rules will have no meaningful environmental 
benefits. Consider EPA's rules to regulate greenhouse gases. They would 
reduce global temperatures by 15 one-hundredths of 1 degree by 2100. 
That same figure goes all the way back to the consideration of Kyoto. 
This is back in the 1990s. I remember at that time it was Vice 
President Al Gore's own scientist--Tom Prigley, I believe his name 
was--who came out and the question was if all of the developed nations 
were to comply with Kyoto's emission requirements, how much would it 
reduce the temperatures in 50 years. The answer was 7 one-hundredths of 
1 degree Celsius. So you can talk about all the sacrifice we are making 
and nothing good can come from it.
  I want to conclude, because there are a lot of people here wanting to 
speak, saying that the Administrator of the EPA, Lisa Jackson, talks 
about the fact that what we do unilaterally, here in the United States, 
is not going to have a major impact on emissions nationwide, yet we 
know what it is going to cost. I want to say we are going to quit 
talking about the science. We understand how the science is not on 
their side; that the things we said on the floor of the Senate 5 years 
ago were verified with climategate. They have been cooking the science, 
and it is very convenient.
  Lastly, I went to Copenhagen, as I mentioned earlier. That is the big 
U.N. party each year. That was probably the most productive 2\1/2\ 
hours of my life, the 2\1/2\ hours I was on the ground in Copenhagen. I 
was preceded by Senator Kerry, Hillary Clinton, President Obama, and 
several others--Nancy Pelosi--and they were all assuring the other 191 
countries present that we were going to do something about cap and 
trade. I went there to make sure they knew we were not. I will always 
remember that, because we had 400 people and the 120 cameras were 
zeroing in on me. I say to my good friend from Virginia, they all had 
one thing in common: They all hated me.
  That is behind us now and we have to now look at the regulators. This 
regulation would put America out of business.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Virginia.
  Mr. WARNER. Before I get to my remarks, Madam President, I want to 
commend my friend, the Senator from Oklahoma, for his comments. I don't 
always agree with him, but I have had the opportunity to sit in the 
Presiding Officer chair and listen to his views over the last 2 years, 
and let me make sure I make clear that his characterization of some of 
those folks with those cameras, I would not fall into that category.
  I also want to wish the Senator a very happy birthday. I understand 
it was yesterday, and I wish him all the best. Our offices are next to 
each other and we are good neighbors.


                      Tribute To Federal Employees

  Madam President, I rise today to continue a recent tradition of the 
Senate--the tradition of honoring exemplary Federal employees--my 
friend Senator Ted Kaufman began last year.

[[Page 17923]]

Senator Kaufman believes, as I do, that our Federal employees deserve 
recognition for their admirable patriotism which drives them in their 
daily work as civil servants.
  Senator Kaufman highlighted 100 Federal employees in his close to 2 
years of service--100 Federal employees with significant 
accomplishments in the fields of medicine, science, technology, 
diplomacy, and defense. Today I will start to continue that tradition. 
I am very proud that the first Federal employee I am going to have a 
chance to honor is currently a resident of Virginia who combined his 
engineering expertise with his past experiences in the Navy to help 
save 33 Chilean miners after they had been trapped 2000 feet 
underground for 69 days. This was an incident that captured the 
attention of the world, as we all watched the rescue of those miners. 
Again, I will only take a couple of moments to describe this employee 
and how he contributed to that remarkable worldwide success story.
  Clint Cragg served in the Navy for 26 years. He, as I mentioned, is 
currently a resident of Virginia. His lifetime of service to our 
country led him to many exciting opportunities, including serving as 
the Chief of Current Operations, U.S. European Command. While in 
Europe, he participated in a number of operations, including the wars 
in Kosovo, Afghanistan, and Iraq. Today, Cragg is principal engineer 
for NASA's Engineering and Safety Center, a center which NASA 
established after the 2003 Columbia Space Shuttle tragedy. Clint has 
given a lifetime of service to his country since his graduation from 
the Naval Academy in 1978, and his service was never more important 
than it was when he took part in the worldwide effort to save the 
Chilean miners.
  Clint and his colleagues were asked by the Chilean Government to 
assist in rescuing their 33 countrymen trapped underground in a 
collapsed copper and gold mine. Clint rose to the challenge and flew to 
Chile with three fellow NASA employees to examine the scene. Using his 
experience as a commanding officer of a submarine in the Navy, Clint 
provided valuable insight to the miners on how to cope with the 
underground existence they were in for a sustained period of time. 
Clint and his team also met with Chilean officials to discuss the 
development of a rescue squad capsule that at that time was a 
completely untested idea.
  Upon his arrival home, Clint received a message from the Chilean 
Health Minister in which the Minister asked for NASA's help in thinking 
of specific features that would make the rescue capsule idea a reality. 
Clint assembled a team of 20 engineers, 10 from NASA Langley and 10 
from around the country. They commenced brainstorming innovative ideas 
for a capsule design. This was thinking whole cloth. The only 
information the team had available was the capsule's maximum length and 
the diameter of the rescue shaft through which the capsule was required 
to fit. Seventy-two hours later, the team had a written, comprehensive 
report that included 75 proposals for the rescue capsule. The paper 
concluded that the rescue capsule should include a harness inside the 
capsule that can hold a miner in case the miner fell unconscious during 
ascent.
  I think we all remember those images on CNN as they kind of drew up 
the capsule. I didn't know, but that capsule was designed by a Federal 
employee and his team we honor today.
  As the 33 men rose from beneath the Earth, Clint could take pride in 
his work for NASA and in the knowledge that he and his colleagues had 
made the reunion between these men and their families possible.
  I was privileged to meet Clint Cragg and his family and other members 
of the rescue team during a visit to NASA Langley last week and present 
them with a framed American flag that had flown at the U.S. Capitol in 
honor of their contributions. The successful rescue of the miners was a 
testament to the American spirit of cooperation and ingenuity, a spirit 
exemplified by the NASA team.
  I hope my colleagues will join me in honoring Clint for his service 
and his leadership team at NASA as this week's example of a great 
Federal employee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I ask unanimous consent that immediately 
following my and Senator Grassley's colloquy, the distinguished Senator 
from North Dakota be recognized for 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Major Tax Issues

  Mr. HATCH. Madam President, my colleague, Senator Grassley, and I 
come to the floor to discuss very urgent business for the American 
people that has been put off for far too long. I am talking about the 
outstanding tax issues this Congress has so far failed to address. As I 
count them, there are five major tax issues that collectively represent 
a looming crisis for the economy. These are, first, the set of tax 
provisions that expired almost a year ago on December 31, 2009, and 
have yet to be extended. Second is another set of important tax 
provisions due to expire at the end of this year, which is only 44 days 
from now. The third item is the need to once again address the 
threshold of the alternative minimum tax so that about 25 million more 
American families are not caught in its clutches for the tax year about 
to end. Fourth is the estate tax issue which has been haunting us and 
the American people all year long. I submit it is way past the crisis 
stage and is about to enter into even a worse stage. Finally, and 
certainly not least, is the looming expiration of the tax relief 
provisions we passed in 2001 and 2003 which are swinging over the 
future of our economy like a hangman's noose. It is this situation that 
I particularly would like to address the bulk of my remarks to, but 
before doing so, let me turn to my colleague for his initial comments, 
the ranking member on the Finance Committee and a great friend, Senator 
Grassley.
  Mr. GRASSLEY. Madam President, Senator Hatch has long been a leader 
on a lot of these tax provisions, particularly in research and 
development. I thank him for his leadership.
  I think Senator Hatch has clearly outlined the gravity of the 
economic consequences of a continuing failure to finish time-sensitive 
legislative tax business.
  There is a chart I will put up that shows where we are on these 
categories of expiring tax provisions. Said another way, here are the 
categories of tax hikes that congressional inaction will put in place. 
I have used this chart before, so I think Members will be familiar. In 
fact, several months ago, I used it. The congressional Democratic 
leadership paid no attention to the seriousness of these issues then. 
Unfortunately, the to-do list is exactly the same today as it was 
several months ago.
  If we go down through the chart, Members can see that we have had 
partisan votes on extender packages negotiated between the bicameral 
Democratic leadership but no effort to reach out to the Republican side 
to find bipartisan common ground.
  On this year's alternative minimum tax patch, as Senator Hatch noted, 
inaction on the AMT will force a ``gotcha'' tax hike on millions of 
middle-income families when they start to file their tax returns 6 
weeks from now.
  On death tax reform, the House passed a permanent reform almost 1 
year ago, but it has languished in the Senate during that period. On 
our side, we would like to improve that bill to protect more small 
businesses and farm families from the death tax.
  On the 2001-2003 tax relief packages, there is no bill from the other 
side that would serve as a starting point on preventing this massive 
tax hike. On our side, if the Democratic leadership permitted us, we 
would like to start with Senator McConnell's bill. Senator Hatch and I 
are cosponsors of that legislation.
  Mr. HATCH. Senator Grassley has been the ranking Republican or 
chairman of the Finance Committee for a long time now. We have seen 
times when the expiring tax provisions have been dealt with in as 
timely a manner as they should have been, but have we

[[Page 17924]]

ever seen a state of affairs like we have now with the extenders? What 
has this meant for job creation and economic growth?
  Mr. GRASSLEY. First of all, my colleagues probably know that my 
friend from Utah is going to advance as the incoming ranking member of 
the Senate Finance Committee, and I congratulate him on that. I know he 
is going to do a very good job.
  One needs only to look to the nonpartisan Congressional Budget Office 
to assess the harm that could be done to the economy if we don't get 
this tax legislation passed. According to the Congressional Budget 
Office, not addressing these very time-sensitive tax issues will reduce 
economic growth by as much as 1.7 percent on average for the years 2011 
and 2012. If Members didn't hear that, it is not some political leader 
saying that economic growth will be harmed by 1.7 percent; it is the 
nonpartisan experts in the Congressional Budget Office saying that if 
we don't pass these tax bills, economic growth is going to get hit 1.7 
percent. Some private forecasters put that hit even higher--at 2 
percent. When we consider that the last report has the economy growing 
at an annualized rate of 2 percent, then it is quite obvious.
  We can see that this single failure to prevent these great big tax 
increases could wipe out what little economic growth is currently 
occurring. I don't know how policymakers can sleep at night, let alone 
be so casual when we haven't dealt with these time-sensitive tax issues 
at a time when coming back here we heard nothing from our constituents 
other than concern about the economy, about jobs, and about the legacy 
of debt we are leaving.
  Mr. HATCH. We ought to listen to Senator Grassley. He is one of the 
leaders in this body and somebody we all look up to as totally honest 
and sensitive on these issues. He has done a wonderful job on the 
Finance Committee.
  According to the Commissioner of Internal Revenue, perhaps the most 
time-sensitive problem waiting for congressional action is the so-
called patch for the alternative minimum tax. I understand that if we 
do not take care of this very soon, we could see major delays in the 
tax filing season that will start on January 1. Is that the 
understanding of Senator Grassley?
  Mr. GRASSLEY. Absolutely. We have a track record on that. Just a few 
years ago, it didn't get done on time, and people had to wait for their 
tax refunds. That is the biggest thing. But it also created a terrible 
bureaucratic problem for IRS to get the forms out.
  My friend from Utah is correct. Fortunately, the chairs and ranking 
members of the tax writing committees wrote to the Commissioner of IRS 
last week indicating our intention to pass an AMT patch. The letter 
specified what the AMT patch would look like. But as helpful as the 
letter was, we still need to change the law. As a matter of fact, the 
filing season could become very complicated if we don't act. During our 
years in the majority, we never let the AMT patch legislation slip past 
May of any tax year that it applied to. That only happened once.
  The death tax is another overdue tax legislative item that has been 
referred to. Maybe the Senator from Utah could bring up the issue of 
the estate tax.
  Mr. HATCH. That is the third item on the to-do list. If we do not 
act, 6 weeks from now the reach of the death tax will greatly expand. 
According to the nonpartisan Joint Committee on Taxation, 10 times the 
number of estates will be taxable versus the number that would be 
taxable in the bipartisan Lincoln-Kyl compromise. In the case of farm-
heavy estates, 13 times the number of those farm families would be hit 
by the death tax. That would be unfair because the families would have 
to either borrow the money or sell the farm in order to pay the death 
taxes. That is just crazy.
  The issue of extending the expiring tax relief provisions enacted in 
2001 and 2003 has been a central question all this year, but we are 
just now beginning to discuss this in earnest. This lack of action on 
this vital topic has been a major factor in the low performance of our 
economy.
  The outcome of this debate is exceptionally important to the future 
of this Nation. Its implications go well beyond what many on the other 
side of this issue might want Americans to believe. This is not merely 
a question of how well the rich in our society will live if we raise 
their taxes.
  Rather, this debate goes to the heart of the burning questions facing 
American families of all income levels today: Will I keep my job? How 
and when can I get a new or better job? Will the economy grow enough to 
allow my family to pay its bills and make progress toward our dreams? 
Can we afford to educate our children? Will America continue to prosper 
in the years ahead, or are we in a permanent decline?
  The President and most of my colleagues on the other side of the 
aisle have decided that the answer to the question of fully extending 
the tax relief provisions that are set to expire in just about 44 days 
is no. While they are willing to extend them for those Americans 
earning less than $200,000 per year if a single individual or $250,000 
per year if a family, their position is that anyone above these 
thresholds should get a tax increase.
  However, the right answer for our country's future is that all the 
tax relief provisions should be extended.
  The reasons the President and his allies give for their position 
largely boil down to the general supposition that the well-off among us 
can afford to see their taxes go up, and that the Nation cannot afford 
to forego the revenue lost to the Treasury from these taxpayers 
continuing to have their taxes as low as they are.
  Ironically, this second point implies that we can afford the revenue 
loss from extending the tax relief to those making under the $200,000 
and $250,000 thresholds, even though this loss is upwards of 80 percent 
of the total amount of lost revenue from extending the tax relief for 
everyone.
  In other words, the President and his congressional supporters would 
have us believe that this debate is solely about whether the so-called 
wealthy among us deserve continued tax relief. They either fail to see 
an economic connection between the finances of those at the top of the 
income scale and the rest of us, or they refuse to admit that such a 
link exists.
  This may sound somewhat counterintuitive, but it is, nonetheless, 
true. The essential element to this conundrum is that good permanent 
jobs, which are the heart and soul of the American dream, are 
inextricably linked to those in our economy who have wealth. When the 
income of the wealthy is taxed, particularly in a way that reduces the 
incentives for saving, investment, and entrepreneurship, that tax is 
not just paid by those who write the check to the government. Indeed, 
even those Americans who pay no income tax at all, which is now upwards 
of half of all adults, can be badly hurt by tax increases on the so-
called rich. This is through the loss of opportunities, the lack of 
jobs or better jobs, and slow or nonexistent economic growth.
  One vital fact that many citizens do not realize is that a high 
percentage of this Nation's business enterprises pay their taxes 
through the tax returns of their individual owners. Taxes on sole 
proprietorships, partnerships, S corporations, and limited liability 
companies are all passed through these entities and assessed on their 
individual owners. Higher taxes on these entities results in less money 
for investment and expansion, which translates into fewer jobs created 
and fewer opportunities for those who want to move up the economic 
ladder.
  Tragically, especially in this time of economic stress and high 
unemployment, the real cost of taxation is paid by a group of 
unintended victims. These are the men and women and their families who 
do not get a chance to have a job or a higher paying job because the 
tax destroys the economic growth that might have provided for such an 
opportunity.
  A study recently released by the nonpartisan Heritage Center for Data 
Analysis highlights these facts. This study, which utilizes an economic 
model owned by the leading economic

[[Page 17925]]

forecasting firm in the country, concludes that the President's tax 
plan to allow the tax relief provisions to expire for the so-called 
well-off would have very serious consequences for millions earning far 
less than those targeted.
  Here are just a few of the highlights of these conclusions. First, 
the President's tax plan would reduce economic growth for at least the 
next 10 years. Over the 10-year period, our gross domestic product 
would fall by a total of $1.1 trillion compared to where it would be 
otherwise if all the tax provisions were extended.
  This slower economic growth would directly translate into fewer jobs 
created. In fact, the study projects that 238,000 fewer jobs would be 
created next year and as many as 876,000 lost jobs in 2016. For the 10-
year period, the average would be 693,000 jobs each year that would not 
be created had we extended the tax relief for everyone. This projection 
alone should be enough to give anyone pause. In this critical time of 
job shortage, do we want to purposefully choose a course that would 
lead to even fewer jobs for Americans?
  Other economic indicators would also turn negative compared to 
extending the tax rates as they currently stand. Business investment, 
personal savings, disposable income, and consumer spending would all be 
lower. This is exactly the wrong direction we need as the U.S. 
struggles to recover from this nasty recession.
  My home State of Utah will not be spared, despite the fact that the 
downturn has been less pronounced there than in many other States. The 
Beehive State would lose an average of 6,200 jobs each year, and 
household disposable income would drop by $2,200. For a relatively 
small population State, this is nothing but bad news.
  Another recent study highlights the effect on the economy of 
increases to the capital gains tax rate as is called for under the 
President's tax plan. This one was prepared by the respected economist 
Allen Sinai. In this study, Dr. Sinai concludes that increasing the 
capital gains tax rates to 20 percent from the current 15 percent, as 
is called for in the President's plan, would cut the number of jobs 
available by 231,000 per year. Again, this is exactly the wrong 
direction for a Congress that is supposed to be focused on job 
creation.
  If we were really serious about creating jobs, we should be doing 
just the opposite; that is, lowering the capital gains tax rate. The 
Sinai study concludes that a reduction from the current 15-percent tax 
rate on capital gains to a 5-percent rate would increase the number of 
jobs by 711,000 per year. That is the kind of job growth we need right 
now. By lowering the rate down to zero percent, Dr. Sinai says we could 
turbocharge this rate of job growth to 1.3 million new jobs per year.
  Of course, this capital gains tax reduction would not be free since 
the Treasury would lose some revenue. The Sinai study indicates that 
this loss would be about $23 billion per year after the effects of 
stronger economic growth are taken into account. While this is not an 
insignificant number, it works out to a cost of about $18,000 per job. 
I call this a bargain, particularly when it is compared with the cost 
per job from the so-called stimulus bill we passed last year. The 
Congressional Budget Office projected last year that the cost of each 
job saved or created from the stimulus bill would be between $414,000 
and $1.3 million. And most or all of these jobs are temporary, not 
permanent. Last year, the CBO also projected that the net increase in 
the number of jobs from the stimulus bill by 2015 would be zero. In 
other words, we would get no permanent job increase from this 
gargantuan stimulus bill. I do not believe the contrast between the two 
approaches to job creation and economic growth could be any more 
striking.
  Let me refer back to Senator Grassley.
  Mr. GRASSLEY. Well, I say to Senator Hatch, the only thing I would 
add to the good work you put out there is maybe to say a little bit 
more about the estate tax; that is, if we do not do anything--as you 
see from this chart, you can see the House passed death tax reform but 
not the Senate. Obviously, we do not have a final bill. If we do not 
get a final bill by the end of this year, instead of having no estate 
tax like this year or a $3.5 million exemption like last year, we are 
going to have only a million-dollar exemption and a 55-percent tax 
rate. That is going to be catastrophic on small business. It is going 
to be catastrophic in the rural areas. So I hope that emphasizes the 
importance of getting something done on the estate tax ahead of time.
  The only other thing I would add, because the Senator did such a good 
job of saying what the economic consequences are, if we let the biggest 
tax increase in the history of the country happen by sunset December 
31, and then that means you go back to the tax rates and tax policy of 
the year 2000, it is going to be very destructive on job creation for 
small businesses and very destructive as far as bringing the certainty 
that businesses, particularly small businesses, need if they are going 
to hire people.
  I had a news conference last month in my State, and I brought in some 
small businesspeople. One of the small businesspeople testifying for me 
said to the media of Iowa that they would like to hire five or six 
people, but as long as there is all this uncertainty about what the tax 
policy is, they are not going to move forward.
  So what we have to do--and I say to Senator Hatch, I think you have 
said it several times--and particularly for small business, we have to 
bring certainty to the Tax Code. You cannot have this uncertainty of 
what is going to happen after December 31, particularly when you are 
certain you are going to have the biggest tax increase in the history 
of the country without even a vote of Congress.
  So I compliment Senator Hatch. I will not have anything more to say 
on this subject until we get one of these pieces of legislation before 
the Senate. But I thank the Senator very much for his leadership.
  Mr. HATCH. Madam President, I thank my leader on the Finance 
Committee on the Republican side. I appreciate all the work he has done 
to try to keep this economy going, and we ought to listen to him.
  Let me just say that the President and congressional Democrats and 
Republicans agree that small business is the key to a job-based 
recovery. As the President himself says, small business creates about 
70 percent of all of our new jobs.
  If we fail to prevent the marginal rate hikes, small businesses will 
be especially hard hit. The Joint Committee on Taxation concluded that 
half of the flowthrough small business income would be hit by the 
reimposition of the top two brackets. Ironically, this is what all the 
resistance from the other side is about. They insist on raising the top 
marginal rates on small businesses by up to 17 to 24 percent--all of 
this during a time when we ought to be going the other way and assuring 
small businesses that they should take steps to grow without paying a 
tax penalty.
  There is a bipartisan group that recognizes the merits of preventing 
these tax hikes on small businesses. But I think the President and the 
Democratic leadership need to see the light. We are talking about 
somewhere between 750,000 and 800,000 small businesses, where 70 
percent of the jobs are created. If we do not handle this right, we are 
going to have a pretty long time of an economic system that really does 
not work in this country. So it is important that we get going here in 
this lameduck session and resolve this issue.
  There are people all over the map on this issue, but I think the 
smartest thing to do would be to keep the tax relief the way it is. I 
would move it at least 2 years and hopefully 3 years. I would like to 
make it permanent for everybody in our society because we are a high-
taxed society under the current circumstances, but apparently we do not 
have the votes to make it permanent. But we should have the votes to be 
able to put it over at least until we can get out of the rough politics 
of a lameduck session, and hopefully we will be able to resolve these 
problems in the future in a way that both sides can feel good.
  Having said all this, let me just say that I have really appreciated 
serving

[[Page 17926]]

under the distinguished Senator from Iowa. He is a hard-nosed, 
practical leader in this body. Everybody knows he is totally honest and 
totally effective in so many ways. He is a dear friend of mine. I want 
him to know how much I appreciated serving next to him on the Finance 
Committee. And we will be serving next to each other on the Judicially 
Committee in this upcoming year. I look forward to seeing him, as a 
nonlawyer, take over the controls from the Republican standpoint on the 
Judiciary Committee because even though the distinguished Senator from 
Iowa is a nonlawyer, he brings a practical balance to the Judiciary 
Committee--and to the Finance Committee up until now--that is sorely 
needed. He is one of the most respected people, by me, in this whole 
body of very, very strong minds and people. So I am grateful to him. I 
am grateful he is my friend, and I am grateful we can work together 
side by side in both of these committees.
  I thank the Senator for all the hard work he has done in the Finance 
Committee all these years. I have watched him, I have sat beside him, 
and I have seen the products he has done, and the Senator has worked in 
good faith with both sides, and certainly with total honesty, and that 
is a high accolade right there.
  Madam President, these are important issues. I know that not just the 
distinguished Senator from Iowa and myself feel deeply about them, but 
I hope we can get our colleagues together on both sides, and the 
President, who has indicated he is willing to compromise on this issue, 
and get this put over. If we could do that, I think the President will 
be better off, jobs will be better off, and in the end, our country--
which is the ultimate goal--there is no doubt in my mind would be much 
better off.
  With that, I thank my distinguished friend from North Dakota and 
yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.


                                 Taxes

  Mr. DORGAN. Madam President, I decided some long while ago that I was 
going to leave the Congress after serving 30 years. So at the end of 
this year, I will conclude my work here in the U.S. Congress. But I was 
thinking--sitting in the Chamber, listening to my two colleagues, for 
whom I have great respect and profound disagreements with--I was 
thinking about how interesting it is that people of good faith--and 
they are two Senators of good faith--can feel very strongly about an 
issue. I feel differently about some of the issues they just described, 
and I sat here and resisted the urge to jump up every 5 or 10 minutes 
and engage in that discussion.
  It is not a difference of opinion about whether we would like the 
American people to pay the lowest rate of taxes possible; it is, 
rather, in my judgment, about the rearview mirror of history, when 
historians gather 50 and 100 years from now and look back at this 
moment and say: All right, where was America then?
  Well, America had a $13 trillion debt, a $1.3 trillion deficit. We 
are sending men and women off to war by the hundreds of thousands, 
strapping on body armor in the morning, getting shot at in the 
afternoon. About 20 million people are either unemployed or not working 
up to their potential because they could not find the job that fits 
them. There are record numbers of people on food stamps. So that is 
where America was then. And what was the debate on the floor of the 
Congress? How can you further cut revenue? How can you borrow money 
from the Chinese in order to give those who make $1 million a year a 
$100,000 a year tax cut? They are going to say: Are you kidding me? 
That is what the discussion was? Wasn't there discussion about whether 
it was wise to borrow $4 trillion more to extend tax cuts that came in 
2001 because the President--then-President George W. Bush--felt we were 
going to have surpluses forever? The first surplus was the year before 
he took office, the last year of Bill Clinton, the first budget surplus 
in 30 years. Then they said: OK, we predict we are going to have 
surpluses for the next 10. President Bush said: Well, let's give them 
back, with very big tax cuts, the bulk of which go to upper income 
folks. I didn't vote for that. I thought: Why don't we be a little 
conservative? What if something happens? Well, it did--a terrorist 
attack, a recession, wars in Iraq and Afghanistan, debt as far as the 
eye can see, soldiers at war--and the discussion is how to further cut 
taxes, especially for upper income Americans. I am telling my 
colleagues, it is going to confound and confuse some future economists, 
how on Earth that could have been the major debate of the day in the 
Congress at this moment.
  There is no preordained destiny for this country that this country 
will always be the dominant world power. That is not preordained. That 
will happen if this country begins again to make good decisions and 
tough decisions. People think times are tough now. They have been 
tougher in this country. Our parents and grandparents and those who 
came before them, those who homesteaded in sod huts, those who traveled 
and populated this country out of wagon trains under the Homestead Act 
to go and buy a place and build a farm and raise a family, they had it 
tough, but they built communities and built a country and they did the 
right things. They made tough decisions. It is not a tough decision for 
us to say all 100 of us want tax cuts--well, I would like it if nobody 
paid taxes, if nobody had to pay taxes. But who is going to pay for the 
cost of things we do together, such as build schools to educate kids, 
build roads to travel, pay for defense so we can protect this country 
and on and on and on?
  So I didn't come to talk about that, but I couldn't resist at least 
the urge to say our requirement for this country is to look well ahead 
and to ask: How do we retain the capability in this country so we will 
still remain a world economic power? This country needs jobs. This 
country needs the resurrection of a manufacturing base. We will not 
long remain as a country, a world economic power, if we don't have 
world-class manufacturing capability--making stuff--making things that 
say ``Made in America.'' That ought to be the discussion: how to put 
America back to work. There is no social program as important as a good 
job that pays well, and too many Americans are out of work at this 
point with a sick economy. The solution is not a tax cut for everybody. 
That is akin to going to a quack doctor who has only one recipe. He has 
a jug of thick brown liquid, and no matter what you have--the hiccups, 
gout, liver trouble--he ladles out some thick brown liquid, and he 
says: There it is. Take that and it will make you better.
  We have people who have that vision here. Any urge, any itch, give 
them a tax cut. How about the Federal budget deficit? How about 
controlling spending? Yes, we have to control some spending and cut the 
deficit. Let's cut some spending and let's ask people who should be 
paying taxes and aren't now to pay their fair share of taxes. That is 
what we ought to do.
  All right. I have that at least a little bit out of my system today.


                                 Energy

  I came to talk about something else. I came to talk about unfinished 
business toward the end of this year. There is still the ability to 
reclaim some success in an area that I think is very important. It is 
true, as I have just described, that jobs are very important in this 
country. It is also true that the economy, fiscal policy, debt, and 
deficits are very important and we need to get a hold on them and deal 
with them and respond to them and fix this country's economy. But it is 
also important that we need to address the subject of energy, and we 
have tried; we have tried so hard. We can decide it doesn't matter 
much. We can act as though it is irrelevant. But then tomorrow morning, 
just for a moment, what if all the American people couldn't turn on or 
off the alarm clock or turn on the light or turn on the hot water 
heater to take a hot shower or turn on the toaster or the coffee maker? 
What if they couldn't turn on the ignition to get to work? What if they 
didn't have lights at work? We use energy 100 ways before we start work 
and never, ever think

[[Page 17927]]

about it. What if the switch didn't work? What if the tank wasn't full?
  Let me describe the danger because this is not irrelevant. It is not 
an idle issue that this country could very well find itself belly side 
up with an economy that couldn't work because we couldn't find the 
energy we need. About 60 percent of the oil we need and use in this 
country comes from other countries. I have described hundreds of times 
on the floor that we stick little straws in the Earth and we suck out 
oil. About 85 million barrels a day is sucked out of this planet. On 
this little spot called the United States of America, we need to use 
one-fourth of it. One-fourth of everything we suck out of this Earth 
has to come to the U.S.A. We are prodigious users of oil. Much of that 
oil comes from areas of the world that are very troubled. There are 
some that don't like us very much. We send them over $1 billion, in 
some cases $1.5 billion a day, every single day to buy their oil. My 
colleagues know and I know that in some parts of the world enough money 
spills from that oil barrel to help fund terrorism. We know it. If we 
are that vulnerable, if our economy is in that much need of oil from 
others, particularly troubled parts of the world, if tomorrow that 
supply were interrupted or shut off and if that meant that this 
country's economy would be belly up just like that, do we then decide 
to do nothing about it or do we do something about it to address it in 
the context of national security?
  We have armies. We commit armies to trouble spots around the world to 
protect our interests. Those armies can only operate if they have food 
and fuel. They need both. Energy security is the same as national 
security, and we have ignored for so long this issue of vulnerability 
that exists with respect to our energy future.
  I wish to talk about what we need to do, and I wish to talk about my 
disappointment that we come now to November, almost December, 3 weeks 
left perhaps in December, and last June a year ago we passed an energy 
bill out of the Energy Committee that was bipartisan. It did a lot to 
address our energy security. Yet we will likely end this year with 
unfinished business, leaving behind that progress.
  I wish to talk a little about the unbelievable progress in this 
country. In 1830, it took 3 weeks to travel from Chicago to New York--3 
weeks from Chicago to New York City. Twenty-five years later, you could 
do it in 3 days: the transcontinental railroad. The transcontinental 
railroad changed everything. Then the automobile, the automobile came 
along, first with an electric engine and then the internal combustion 
engine and then it needed a substantial amount of oil. Then our 
government said: We understand that, so anybody who is going to look 
for oil or gas, we want to give you a big, permanent tax benefit. It 
was in the public interest to do that. So for a century we have said to 
people: Go find oil and gas because we need it. We have incentivized 
that drilling here in this country.
  If we think of what has happened over this period I have described in 
travel and technology, including the automobile, the light bulb--I 
mean, think of the impact both those innovations have had in our lives; 
pretty unbelievable.
  One day on a Saturday I was in Grand Forks, ND, and I met with our 
oldest resident, Mary Schumacher, 111 years old. She was spry--I 
shouldn't say ``spry'' because she wasn't moving very well, but she had 
a very keen mind and we were able to have a very good visit--111 years 
old. She talked to me about her memories of when she was 6 and watched 
the barn burn. She has a great memory. We talked about how things have 
changed in 100 years of her lifetime. By the way, I stopped at that 
nursing home to see Mary because I wasn't able to be there some months 
before when I was invited to go to her birthday party, and I was 
invited by her niece who showed up when I showed up that Saturday to 
visit Mary. Her niece put on the birthday party and her niece was 103 
years old, in even better shape than Mary, moving around and fussing 
and making sure this visit with Mary was going well.
  So we talked about the big changes in her life. I thought after I 
left there: Here is a person who has now lived over a century and she 
has seen everything. So let me think about her life.
  In 1909--and she would have been nearly 10 years old then--in 1909, 
President William Howard Taft, 5 foot 11 inches tall and 300 pounds, 
decided to get rid of the horse and buggy at the White House as the 
mode of transportation. He was the first President to decide he was 
going to buy an automobile. He bought a Baker electric car. President 
Taft might not have fit into a Mini Cooper had there been one back 
then, but he bought a Baker electric car, which goes to show batteries 
have a lot of power. There has been a lot of discussion about that 
these days. But isn't it interesting that an electric car for the White 
House in 1909--that is 100 years ago--that electric car, now a century 
later, 100 years later, is the subject of legislation I have on the 
floor of the Senate, along with Senator Lamar Alexander of Tennessee 
and Senator Merkley of Oregon; the Electric Vehicle Deployment Act, 100 
years later. It is the new new thing. It is what we knew 100 years ago 
worked.
  I wish to talk a little about these things and all the changes we 
have seen and why this issue is critical and why I feel so disappointed 
if we don't, in the final 3 weeks, at least take a portion of that 
which we know needs to be done and do it because there is bipartisan 
agreement on a couple of these issues.
  Let me mention them quickly. One, a renewable electricity standard so 
we try to induce more renewable energy production in this country. That 
is bipartisan. We have cosponsors in the Senate, including Senator 
Brownback, who is a very strong supporter of that, a renewable electric 
standard. The Electric Vehicle Deployment Act, which I have described, 
Senator Alexander and I and others, bipartisan; and the natural gas 
provision that Senator Reid and Senator Menendez have sponsored, that 
is also bipartisan. Those are things we can do and should do at the end 
of the year that is bipartisan that will advance our interests.
  Why is it that energy is important? Well, one, the vulnerability to 
our economy if we were to see the supply of energy that is necessary 
shut off to this country at any point. So it is national security. No. 
1, national security. No. 2, it is the issue of the domestic energy use 
and the conversion as a part of this national and energy security to 
conservation, No. 1, and the production of different kinds of energy, 
No. 2, and then, finally, the issue of environmental benefits of some 
of the changes that are necessary. We are coming to an intersection for 
the first time when we debate energy in which energy production and 
national security resulting from that comes to the same intersection as 
the issue of climate change. So everything is going to change. The 
question isn't whether, it is how. So I wish to talk just a bit about 
some of the things we can do, it seems to me, to address these matters.
  Let me talk about electricity. We produce a lot of electricity from 
different sources, including coal and natural gas, and so on. Coal is 
our most abundant resource. Fifty percent of the electricity in this 
country comes from coal, but we have to use it differently because when 
we burn coal, we throw carbon into the air and we understand we can't 
continue to do that. So we need to find innovative ways to extract the 
carbon from coal to continue to use that resource. We can and we will, 
in my judgment. I chair the appropriations subcommittee that funds 
carbon capture technology. There are all kinds of people around this 
country doing innovative, wonderful, breathtaking things to find a way 
to decarbonize coal. It is going to happen, if we decide to make the 
investment in order to allow it to happen.
  So electricity that comes from coal or natural gas and electric 
plants, one of the problems we have dealing with the electricity is the 
delivery from where it is produced to where it is needed. Back in the 
early days of moving electricity around, we would build a plant to 
produce the electricity and then a spiderweb network of transmission 
wires in a circle largely around

[[Page 17928]]

the planet and that became the service area and they were not connected 
one to another. That is the way it was. Then, finally, we decided we 
needed to move electricity from one area to another, so we connected 
the grids, barely, but we never did go back and build a modern 
transmission system. The result is we have a system now that is not 
very reliable and can't effectively move power from where it is 
produced to where it is needed, particularly in the area of renewable 
power, where the wind blows and the Sun shines. Where you can produce 
wind energy and solar energy, we can't at this point have full 
effective capability to where you can move it to where you can produce 
it and where you need it.
  So we need to build an interstate transmission system. We can't do 
that now. We need legislation to do that. We can't do it now as 
demonstrated by the fact that in the last 9 years, we have built 11,000 
miles of natural gas pipeline to move natural gas around this country, 
and we have been able to build only 668 miles of interstate high-
voltage transmission lines. Why? Because we have all kinds of 
jurisdictions that can say no and will say no, so you can't build 
transmission. So the legislation we passed out of the Energy Committee 
a year and a half ago now solved that problem, put us on the path to be 
able to build an interstate transmission system, a modern, rich system. 
We shouldn't lose that. We should proceed to get that opportunity in 
that legislation.
  Let me talk a bit about oil and gas. We are actually producing more 
oil, for the first time--it has been a long while since we have been on 
the decline in production. Part of it is from my State. The Bakken 
formation is the largest formation of oil ever assessed in the history 
of the lower 48 States. There are up to 4.3 billion barrels of 
recoverable oil, according to the U.S. Geological Survey. With that, 
plus the role shale plays in much of the country, we are beginning to 
produce a bit more oil and gas at this point. That will stop quickly if 
we can't continue what is called hydraulic fracturing. We have to deal 
with that big problem. Most of us in this Senate, who come from areas 
where we produce fossil energy, believe this has been done for 50 years 
without a problem, and now it is under some siege. If we can't do 
hydraulic fracturing, that promise of natural gas supplies and new oil 
will evaporate. We need to continue--and we will--with the production 
of oil and natural gas in this country.
  I also am a supporter of the production of ethanol and the biofuels. 
I think it makes sense to extend our energy supply, if we can do it 
every single year, using biomass, corn-based ethanol. That makes a lot 
of sense to me. The other issue I mentioned is coal. We are going to 
have to find a way to use coal by extracting the carbon. I believe we 
can do that. We need to make a much greater effort. We have tried to do 
that in legislation in the last year or two.
  Then we have nuclear energy. We will build some nuclear plants. We 
are going to do that. I believe we ought to do everything, and do it 
well, including wind, solar, geothermal. All of the renewables have 
great promise. I understand that in this country, for a long while, it 
was that real men dig and drill, and if you are somebody who supports 
wind or solar energy, go smoke your pipe, read a few books, and have a 
leather patch on your jacket. Real men dig and drill, and the rest of 
you are a bunch of nuisances. That was the thought that existed for a 
long time. It is not true anymore. We are going to dig and drill and do 
it differently and protect this country's environment. We are also 
going to incentivize and see the production of substantial amounts of 
additional energy from the wind and the Sun. It makes sense to do that, 
in order to expand our energy supply, protect our environment, produce 
additional jobs. All of these issues I have talked about are very job 
creating.
  Yet, in many ways, the legislation we have worked on languishes 
because we are told we don't have time. This is urgent. It is about the 
vulnerability of our economy, about our national security, and it is 
about jobs. We ought to get about the business of deciding this is a 
priority.
  If I can describe, in summary, here is how we address energy issues: 
Produce more, yes, in every area. Produce more wind and solar energy, 
incentivize it. Produce more oil--and we are doing that--and natural 
gas. Expand ethanol capabilities and geothermal. We can do all of these 
things. We are building nuclear plants now. We will see some new ones 
come online. As a country, we ought to do what the French are doing 
with respect to reprocessing and recycling and reduce that 100-percent 
body of waste down to 5 percent. That is what they have been doing for 
some while. We ought to do that--the renewables are so important--and 
then move toward the electric vehicle deployment, so we can take 
advantage of all of this. I mentioned to you that we produce about 85 
million barrels a day of oil--about 21 million barrels here in the 
United States, about one-fourth of the oil, and 77 percent of the oil 
we use in this country is used in vehicles.
  If you are going to reduce the use of oil and reduce our 
vulnerability from too many exports of oil, then you have to do 
something about transportation. That is why this electric vehicle issue 
is so very important. It is the same with respect to natural gas 
vehicles and long-haul trucking across a network in this country. 
Electric vehicles are important. I have always been a fan, as well, of 
hydrogen and fuel cells. I think it is probably just beyond electric 
vehicles. Also, a fuel cell vehicle runs on electricity. It is 
interesting to get in and drive a hydrogen fuel cell vehicle and find 
that you can put your nose right down at the exhaust pipe, because it 
is just water vapor. It doesn't have a sound. It puts water vapor out 
the back and has twice the power at the wheel. I think that is what our 
grandchildren and great-grandchildren are going to drive. All of these 
issues are so important to this country's future.
  Again, I end as I started, by saying how profoundly disappointing it 
is that at the end of the session we understand how important this 
issue is and how little has been able to be done. There is still time. 
We could pass legislation called the Electric Vehicle Deployment Act. 
We could do that. We could pass legislation calling for a renewable 
energy standard, renewable electricity standard. This isn't rocket 
science. These are not complex issues that people can't understand. 
They understand them. Both political parties have strong supporters for 
these things. As we turn to December, it seems to me that as we 
contemplate probably 3 weeks in December on the floor of the Senate, we 
ought to at least consider what portion of an energy system and energy 
future can we embrace that came out of the Energy Committee in the 
Senate. The Electric Vehicle Deployment Act is the legislation that 
came out most recently and passed 19 to 3 by the Energy Committee--
strongly bipartisan. Why wouldn't we take that up? Why would we not 
complete work on that and advance this country's future?
  The other day I talked about the two dune-buggy-size vehicles on the 
surface of Mars. I did it because I was talking to some people in North 
Dakota, who said nothing is going right, everything is going to hell in 
a hand basket, and nothing the government touches works for sure. They 
were down. I told them the story about the two dune-buggy-size vehicles 
we are driving on the surface of Mars. Five years ago, 1 week apart, we 
ignited rockets, and they lifted off on the west coast of the United 
States, and they were on their journey to Mars--1 week apart. The first 
rocket transported its payload to the surface of Mars, which landed on 
Mars with a thump and a bounce. It was in a shroud. When it stopped 
bouncing and stayed still, the shroud opened, and out of the shroud 
drove a dune-buggy-size vehicle on the surface of Mars. One week later, 
the second payload was deposited on the surface of Mars. The shroud 
bounced, opened, and the second vehicle drove off to the surface of 
Mars. That was 5 years ago. One's name is Spirit and one is 
Opportunity--two little vehicles, Spirit and Opportunity. They were 
supposed to last 90 days on

[[Page 17929]]

the surface of Mars, giving us information about what we could learn 
about this strange planet.
  Five years later, Spirit and Opportunity are still moving. It takes 
us 9 minutes to communicate with Spirit or Opportunity, to send them a 
message. At one point, Spirit fell dead asleep, and we communicated 
with a satellite orbiting Mars and had the satellite communicate with 
Spirit, and Spirit woke up. Spirit, they say, has an arm that was used 
to sample the soil of Mars. That arm has become just like old men 
become, rheumatoid and arthritic, and now hangs at a strange angle 
because of that machine arthritis it has, apparently. Also a wheel 
broke, among the five wheels, but it didn't fall off; it is hanging. As 
Spirit traverses the surface of Mars, it drags one wheel that digs a 
slightly deeper 2-inch hole in the surface of Mars, and the arthritic 
arm reaches back and tells us what is happening on Mars.
  How is all of this happening? First of all, it is unbelievable 
engineering, right? Can you imagine the people who put this together, 
to send dune buggies we could drive on the surface of Mars, and then 
they last 5 years when they were supposed to last 90 days? How are they 
powered? Do they have a Briggs and Stratton engine and somebody pulls 
it and gets them started? No. They are powered by the Sun. They have 
solar cells that allow us to have the power to drive dune buggies on 
the surface of Mars. Is it beyond our reach to believe that if we can 
power dune buggies with solar cells on Mars, we can fix a few of these 
things here on planet Earth? Of course that is not beyond our reach. Of 
course we can do that. In fact, the very names of these dune buggies--
Spirit and Opportunity--ought to be the names on these desks in this 
Chamber: Spirit and Opportunity.
  I started by saying there is no preordained destiny for this country 
to do well. It always has done well. When I grew up, I knew we were the 
biggest, the strongest, the best, and had the most. We could beat 
anybody with one hand tied behind our back. That will not always be the 
case. We will not remain a world economic power, unless we make smart 
decisions. Our parents and grandparents did. Every parent in this 
country has sacrificed for their kids. I don't know what is in second, 
third, or fourth place to most people, but first place is their kids. 
The question is whether it is on fiscal policy or energy policy. The 
question is, what are we willing to do for our kids? What kind of 
future do we want to leave our kids? Do we want to leave them deep in 
debt or vulnerable on energy production, which may leave us in the dark 
one day? I don't think so. This country can do much better than that.
  Neither party has been much of a political bargain recently. Both 
parties need to do better. I have strong feelings about which has 
better ideas at the moment, and I will not be partisan on the floor, 
except to say that this country deserves more. It is not just coming 
out here talking about how can we cut taxes for everybody; it is how do 
we tighten our belts and ask those who are supposed to pay taxes to pay 
them, getting deficits under control, and getting people back on 
payrolls, and incentivizing businesses to create jobs.
  How do we address energy issues? It is time for this country to be 
serious--this Congress--about doing things that are necessary, which 
may require sacrifice from all of us. If young men and women are 
willing to leave their homes to go to Afghanistan today for a year 
because their country asks them to, we can do no less than make 
sacrifices that are thoughtful on behalf of our future, so they won't 
come home and find a bigger deficit and more unemployment, but instead 
that we made the tough decisions to fix these things. We are going to 
fix this because it is important for the country's future.
  As I said when I started, this issue of energy is so very important 
and is unfinished business. In my judgment, we ought not to include at 
the end of this year an energy bill, or components of one, that I think 
could be very important to this country's future, to jobs, and to our 
national security.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Madam President, in a very short while here--literally, 
in about 40 minutes--the time will be expired and we will be voting on 
the motion to proceed to the Food Safety Modernization Act. The Food 
Safety Modernization Act. One can wonder why did we have to go through 
a cloture motion and a vote on that the other day. We got 74 votes on 
it. But it looks as though now we are going to have to have another 
vote on the motion to proceed after we have had 74 votes.
  A lot of effort has gone into this bill by a lot of people--
Republicans and Democrats--and, Lord knows, our staff. This bill has 
been germinating and being put together over the course of at least the 
last 3 or 4 years anyway, and probably a little before that when we 
started. I know Senator Durbin has been working on this for several 
years, as have Senator Gregg, Senator Dodd, and others. So this has all 
been put together over a period of several years. But I would say over 
the last 4 years, diligent work has gone into this bill, and certainly 
again in the last year.
  It was 1 year ago, November 18--1 year ago today--that this bill was 
reported out of our HELP Committee, which I chair. It was reported out 
without one dissenting vote. It is a bill that is supported by so many 
different groups and so many different people. Here is a list of the 
people supporting this bill. We worked hard to get a broad base of 
support from both industry and consumers. As I have said, this may be 
one of the only bills I have seen around here that has the support not 
only of the Food Marketing Institute and the Grocery Manufacturers 
Institute and the Center for Science in the Public Interest. So we have 
both consumer groups and the business groups supporting this--the U.S. 
Chamber of Commerce and the U.S. Public Interest Research Group. When 
have those two ever been together on a bill? And the Snack Food 
Association and the Pew Charitable Trusts. I mean, we have wide support 
for this.
  The industry wants this. They want it because they know our food 
safety laws have not been upgraded in seven decades--since 1938, before 
I was born. Think about how our food has changed in our society and how 
we produce it and how we process it and how we ship it, not to mention 
the amount of foreign foods coming into this country. Consumers want it 
because we know a lot of people are getting sick.
  I will hasten to add that we do have one of the safest food supplies 
in the world. But that is not good enough, because we know how many 
people get ill every year. Thousands of people are contaminated by food 
poisoning every year--E. coli, salmonella. I have met with families 
here from Safe Tables Our Priority. I have met with families of kids 
who are damaged for life because they happened to eat the wrong thing--
they ate some spinach or a tomato or fish, shellfish, or something such 
as that. These kids are maimed for life.
  We have worked very hard to put this bill together. As I said, 1 year 
ago it came out of our committee without one dissenting vote. But there 
were still some problems out there, and so we worked very hard since 
last November to try to reach an agreement on this bill. And we have a 
broad agreement. As I said, we had 74 votes on the floor of the Senate 
the other day.
  One of my colleagues has raised a lot of issues on this bill. My good 
friend from Oklahoma, Senator Coburn, is on our committee, and he has 
raised a lot of concerns about this bill. I have met with him several 
times and we have had good discussions. I know he said some nice things 
about me on the floor earlier, and I appreciate that, and I would repay 
those in kind; that Senator Coburn is a very thoughtful person and he 
focuses on these things. He reads these bills and he gets involved. 
This is not something off the seat of

[[Page 17930]]

his pants. He has focused on this. Some of the suggestions he made I 
thought were valid. We looked through them and we incorporated a lot of 
the suggestions made by my friend from Oklahoma into this bill.
  We were also willing to go to the consumers and say, look, this is 
okay. None of us--not any one Senator around here--has infinite wisdom. 
Only one person has infinite wisdom. No Senators have infinite wisdom. 
I can't say I have ever written a bill in its entirety that got through 
here without having anything changed, because we don't know everything. 
So we rely upon one another in good faith to suggest changes, to point 
out things maybe we didn't see due to our blinders. We help each other 
put together bills that have broad support and broad consensus so that 
we move ahead as a society. To me, that is the way I think we ought to 
operate.
  So when other people were making suggestions--and I didn't mean to 
single out Senator Coburn, because others too had made suggestions--we 
tried to work with them to incorporate certain provisions in the bill. 
Senator Tester, for example, on our side had suggestions about 
exempting certain small producers. That raised the consternation of 
many on the consumer side. It also raised the consternation of many on 
the business side. A lot of the bigger businesses said: Well, if we 
have to do this, you can get just as sick from eating things from small 
producers too. So we had to work through that. But we did work through 
it. It took us several months but we worked through and we got an 
agreement.
  Quite frankly, we had good input from the Republican side--from 
Senator Gregg, Senator Enzi, and Senator Burr. I mention those 
individuals because they have been very integral to this process on our 
committee. We have worked through that and we got an amendment that 
satisfies the small producers and the consumers and the business 
community and the large producers. Not easy. Not easy. But compromises 
a lot of times aren't very easy. It is a compromise that we worked 
through. We worked through Senator Tester's amendment too. That took a 
long time.
  We were not able to reach an agreement on Senator Feinstein's 
amendment. We agreed not to incorporate it because we could not reach 
an agreement on it--on the BPA amendment, even though it is very 
important to her and very important to a lot of people.
  We have tried to get something together that would have this broad 
consensus and yet move us forward in making our food safer, and I 
believe this bill does that. This bill does this in four ways:
  It improves the prevention of food safety problems. That is key. For 
many years, I served as chair or ranking member on the Agriculture 
Committee--35 years, both here and in the House. Many years ago, we 
came up with a program of prevention. Rather than solving the problem 
later, the question was: How do we prevent pathogens from entering the 
meat supply? We came up with this proposal of finding the access 
points. Where are the points in the process where contaminants and 
pathogens can come in? Let us have the industry come up with plans on 
how to prevent that on their own. That has worked. Does it work 100 
percent every single time? No. But nothing is ever perfect.
  I would hasten to add that even if we pass this bill, will it prevent 
every single foodborne illness forever and ever? Probably not. Probably 
not. But it is going to be a lot better than what we have right now, a 
lot better, because we are going to look at prevention--preventing the 
pathogens from entrance in the first place. So that is one way we do 
it.
  Secondly, it improves the response to detection of foodborne illness 
outbreaks when they do occur. In other words, we will be able to detect 
it earlier and respond earlier than we have been able to do in the 
past.
  It enhances our Nation's food defense capabilities. Every year, 76 
million Americans get sick from foodborne illnesses--76 million. So the 
stakes are too high not to act.
  These are the critical ways in which we have moved the ball forward. 
Again, I know my friend from Oklahoma has said to me many times that it 
will not solve all your problems. I understand that. It is not perfect. 
But there is an old saying: Don't let the perfect be the enemy of the 
good. This is a good bill. It is going to help keep our people from 
getting sick. Everyone? No. I would never stand here and say this is 
going to solve every single foodborne illness problem in America. But 
it is sure going to do a lot more than we have been doing.
  Again, I want to make it clear that if anyone says we are trampling 
on the rights of the minority, I ask you to consider all we have done. 
We have a bipartisan team in place, we have modified the bill dozens of 
times to get the right balance, we have all made tremendous 
compromises--Democrats and Republicans, consumers and business. As I 
said, we agreed to compromises just lately. The mandatory inspection 
schedule, which is so important to the public health community, has 
been reduced tenfold--tenfold--since that bill was reported out of our 
committee unanimously 1 year ago. We accepted language, as I said, 
which exempted the small facilities from these new requirements--the 
Tester amendment. We agreed to changes in the section on traceback, 
which limits the application of the new rule to farms and restaurants. 
There is no registration fee to help pay for the bill. The routine 
access to records the FDA wanted, we don't do that either.
  That is a short list. I can go on and on. I think one of my friends 
on the other side said we have bent over backward, and we have. We 
wanted to reach a point where we could move ahead with the bill, even 
offering to let some amendments be offered and we would vote on those 
amendments. But what has happened now, I understand, is that the 
Senator from Oklahoma, my friend, has now said he wanted to offer an 
amendment dealing with earmarks.
  Look, earmarks is an issue. It is an issue that the next Congress, I 
would say--probably the next Congress--is going to have to address. But 
it should be done in the spirit of debate. It should be done in the 
spirit so committees that have relevant jurisdiction can look at this, 
make recommendations. We should not do it in the heat of passion, right 
now. We just came off of a very heated election. There have been a lot 
of changes made. I understand that. We live with that. That is fine. 
But now is not the time to start throwing up red-hot issues that were 
in the campaign. Let's let things cool down a little bit and approach 
an issue such as earmarks thoughtfully, with due diligence and with due 
debate.
  This bill that is going to protect our people from getting sick and 
our kids from being injured for lifetimes because they eat contaminated 
peanut butter--this is not the bill to deal with something dealing with 
earmarks. I hope my friend from Oklahoma will relent. There will be 
plenty of time and plenty of opportunities when we come back in January 
with a new Congress, I say to my colleague from Oklahoma, to bring up 
the matter of earmarks and have it debated fully and have some kind of 
resolution by both the Senate and the House on that issue--but not 
right now. This is not the time to do it, not in the heat of coming off 
the campaign.
  Let's keep our eye on the ball. This is a food safety bill. We have 
come so close. We have an agreement from the House that what we pass 
here, the bill we have put together, that we reached all these 
compromises on--we have an agreement from the House, if we pass it and 
we do get significant--we get bipartisan support, that the House would 
take it and pass it and send it right to the President. What more could 
you ask for than that? We get to decide what the President actually 
signs into law.
  Without going into every little thing we have done here, let me just 
mention a few.
  Senator Coburn was concerned about the authorization level, so we 
offered in good faith to reduce it by 50 percent. That is kind of a 
compromise--we just reduced the authorization by 50 percent on the 
grants. We offered to modify the

[[Page 17931]]

sections on performance standards and surveillance. It is completely 
done. We completely struck section 510. We called for increasing the 
hiring of FDA staff. In our bill, we called for increasing staff to 
conduct certain inspections. My friend objected to that. In the spirit 
of compromise, we struck it. We said no, we are not going to call for 
increasing hiring of field staff. Mr. Coburn had some concerns--
rightfully so, by the way--about improving coordination between FDA and 
USDA, so we offered to add his language that would force them to get 
together and not duplicate efforts, and on the customs side, too, so we 
would eliminate any kind of duplication of inspections. We put that in 
the bill.
  We offered to do all this and to put it in the bill, and we did, and 
that will be in our amendment that we offer. We will in good faith put 
those things in our bill. But then I am told that now we are probably 
going to have to file cloture, fill the tree, and do all that stuff 
which I was hoping we would not have to do. That is not the way to do 
business here. I don't like doing it that way. That is why we worked so 
hard to try to reach these agreements. But I guess we are going to be 
forced to do that. I hope that is not so.
  I also heard that maybe someone might want to read the bill. That is 
4 hours of reading the bill. That bill has been out here for a year. If 
anybody wanted to read it, they could have read it by now. But that is 
just another delaying tactic we really do not need.
  Again, on this issue of saying we cannot vote on this bill unless we 
will vote on earmarks, I say earmarks is an important issue. I am happy 
to have the debate and to have a vote on that but not now. This is a 
food safety bill. We have it ready to go. We have all our compromises 
in place. This is not the time and this is not the bill on which to 
debate the whole issue of earmarks.
  You might say, why are we so willing to compromise, why am I so 
passionate on this bill? Because people are dying. We have Thanksgiving 
coming up. People will be gathered around with their families--except 
for all those people in homeless shelters. Mr. President, 950,000 
children in America who go to elementary, middle, and high school will 
not have a home to go to this Thanksgiving because they are living in 
homeless shelters. Think about that. They are living in cars and 
homeless shelters. They are being shunted around--950,000. Am I going 
to stand here and say that if we pass this bill and get it to the 
President, that is going to keep any one of them from getting sick on 
what they might eat on Thanksgiving Day? I am not here to say that. But 
what this bill will do is send a strong signal that we are going to 
take the steps necessary in the coming months and years to upgrade our 
food safety system so that the chance, the likelihood of them ever 
getting sick from eating contaminated food is going to be greatly 
decreased. Surely we can at least send that hopeful message out to our 
families before Thanksgiving. Surely we could do that and not get 
bollixed up around here in politics and political debate.
  I know of no politics on this bill. I know of no politics. I mean 
Democrat, Republican, left, right, liberal, conservative--I don't know 
of anything like that. There is not. I do know that this issue of 
earmarks, regardless of the substantive issue, is a political issue 
too. They may have substantive reasons, but there is also a lot of 
politics hanging around that.
  Let's take the bill that has no politics, knows neither left nor 
right, conservative, liberal, Democrat, or Republican. It has nothing 
to do with earmarks or what we ever do with earmarks or anything else. 
It has to do with the safety and welfare of our American families, of 
our kids. I am just asking people to be reasonable.
  There is a time and place for political debate, even here on the 
Senate floor. We may say it does not happen, but we know it does. There 
is a time and place for that. That will happen--not now, not on this 
bill. We have come too far. We are too close. We have too many 
compromises that we made that are so widely supported. I am afraid that 
if we lose this, all the good work that has gone in in the last year, 
the last 2 years, the last 4 years putting this together, it is going 
to be very hard to put it back together again. So people will continue 
to roll the dice when they buy food. Maybe it is safe and maybe it is 
not.
  We will continue to see more things happen like what happened to 
Kayla Boner, Monroe, IA, age 14. On October 22, 2007, she turned 14 and 
passed her learner's permit. The next day, she stayed home. She had a 
foodborne illness due to E. coli contamination. She was admitted to the 
Paella, IA, Community Hospital. Her symptoms worsened. She didn't 
respond to antibiotics, and within a week her kidneys began to fail. 
Kayla was transferred to Blank Children's Hospital for dialysis, but 
her condition continued to deteriorate. She suffered a seizure and 
began to have heart problems. A few days later, Kayla's brain activity 
stopped, and her parents made the painful decision to take their 
beautiful daughter off life support.
  For Kyle Allgood--spinach. His family is going to have an empty seat 
at their Thanksgiving table this year. Kyle, a playful 2-year-old, fell 
ill after eating bagged spinach contaminated by a deadly strain of E. 
coli. They thought it was flu. He began to cry from excruciating 
abdominal pain. He was flown all the way to a Salt Lake City hospital. 
His kidneys failed, he had a heart attack, and he died--from eating 
bagged spinach.
  Stephanie Bartilucci's family is also going to have an empty seat at 
their Thanksgiving table this year--killed by listeria, eating lettuce. 
She was 30 weeks pregnant, Stephanie was. She felt that something was 
wrong. When she went for an ultrasound, it showed that the baby was not 
moving. She had contractions, and eventually her heart began to beat 
dangerously fast and she had to undergo an emergency C-section. When 
she awoke, she found that her baby boy had bleeding in his brain and 
couldn't breathe on his own. He was intubated and brain dead. Stephanie 
soon discovered she had been suffering from a bacterial infection from 
eating contaminated lettuce. The bacteria was so deadly that she became 
septic and almost lost her own life. Her newborn baby, Michael, died in 
her arms that night.
  There are also families who have had loved ones survive foodborne 
illnesses, but their lives will never be the same, such as Rylee 
Gustafson and her family. On Rylee's ninth birthday, she began to 
complain of stomach pain after eating E. coli-contaminated spinach. 
Within 72 hours, she had been admitted to UCSF Children's Hospital. Her 
kidneys began to fail, and dialysis treatments were started. In 
addition to kidney failure, she experienced hallucinations and 
temporary loss of vision, developed high blood pressure and diabetes, 
and had fluid buildup in her lungs and around her heart. On the 10th 
day of hospitalization, Rylee's condition had deteriorated to the point 
where the doctors believed it necessary to prepare her family that she 
might not pull through. Rylee spent 35 days in the hospital and will 
have to endure the memories of that traumatic time for the rest of her 
life. The long-term effects of her illness are currently unknown.
  How many Americans will have to die, how many of these kids will 
become sick before we fulfill our responsibility to modernize our 
woefully outdated food safety system?
  How many families will have to endure a tragic loss before we pass 
this legislation? One more tragedy is one too many. I urge my 
colleagues, as they think about their holiday plans and their 
preparations, to take a moment to think about families who have had 
their holidays disrupted by contaminated food. Five thousand people die 
every year in this country because of contaminated food. Among them are 
many children. As they spend the day with their loved ones preparing 
Thanksgiving banquets, the last thing people want is to be jeopardized 
by the threat of food contamination. Yet many families are haunted by 
this. It is unacceptable. It is past time we do something. We have come 
too far. We have reached compromises. We have the support of many 
sectors of society.
  Again, if we pass this bill, will it ensure that no kid like Rylee 
will ever

[[Page 17932]]

get sick again? I can't make that promise. Or that no one will ever 
die? I can't make that promise. But I can promise this: With the 
passage of this bill, putting it into law, the chances there will be 
another Rylee Gustafson will be diminished greatly.
  Let's not get this caught up in politics. Let's get the politics out 
of this. Let's vote on the bill. Let's get it through. Let's go home. 
Let Senators go home for Thanksgiving grateful that we have done a good 
thing, that we have done something good for our country, and that we 
didn't let it get all boxed up in politics. Isn't that the least we can 
do for the country on this Thanksgiving week?
  I yield the floor.
  Mr. SPECTER. Madam President, I have sought recognition to speak in 
favor of my amendment No. 4693 to the FDA Food Safety Modernization Act 
S.510 to permit emergency scheduling of designer anabolic steroids.
  Anabolic steroids--masquerading as body building dietary 
supplements--are sold to millions of Americans in shopping malls and 
over the Internet even though these products put at grave risk the 
health and safety of Americans who use them. The harm from these 
steroid-tainted supplements is real. In its July 28, 2009, public 
health advisory, the FDA described the health risk of these types of 
products to include serious liver injury, stroke, kidney failure and 
pulmonary embolism. The FDA also warned:

       [A]anabolic steroids may cause other serious long-term 
     adverse health consequences in men, women, and children. 
     These include shrinkage of the testes and male infertility, 
     masculinization of women, breast enlargement in males, short 
     stature in children, adverse effects on blood lipid levels, 
     and increased risk of heart attack and stroke.

  New anabolic steroids--often called designer steroids--are coming on 
the market every day, and FDA and DEA are unable to keep pace and 
effectively stop these products from reaching consumers.
  At the Senate Judiciary Subcommittee on Crime and Drugs hearing I 
chaired on September 29, 2009, representatives from FDA and DEA, as 
well as the U.S. Anti-Doping Agency, testified that there is a cat and 
mouse game going on between unscrupulous supplement makers and law 
enforcement--with the bad actors engineering more and more new anabolic 
steroids by taking the known chemical formulas of anabolic steroids 
listed as controlled substances in schedule III and then changing the 
chemical composition just slightly, perhaps by a molecule or two. These 
products are rapidly put on the market--in stores and over the 
Internet--without testing and proving the safety and efficacy of these 
new products. There is no prenotification to, or premarket approval by, 
Federal agencies occurring here. These bad actors are able to sell and 
make millions in profits from their designer steroids because while it 
takes them only weeks to design a new steroid by tweaking a formula for 
a banned anabolic steroid, it takes literally years for DEA to have the 
new anabolic steroid classified as a controlled substance so DEA can 
police it.
  The FDA witness at the hearing, Mike Levy, Director of the Division 
of New Drugs and Labeling Compliance, acknowledged that this is a 
``challenging area'' for FDA. He testified that for FDA it is 
``difficult to find the violative products and difficult to act on 
these problems.'' The DEA witness, Joseph T. Rannazzisi, Deputy 
Assistant Administrator for DEA, was even blunter. When I questioned 
him at the hearing, Mr. Rannazzisi admitted that ``at the present time 
I don't think we are being effective at controlling these drugs.'' He 
described the process as ``extremely frustrating'' because ``by the 
time we get something to the point where it will be administratively 
scheduled [as a controlled substance], there's two to three [new] 
substances out there.''
  The failure of enforcement is caused by the complexity of the 
regulations, statutes and science. Either the Food Drug and Cosmetic 
Act, which provides jurisdiction for FDA, or the Controlled Substances 
Act, which provides jurisdiction for DEA, or both, can be applicable 
depending on the ingredients of the substance. Under a 1994 amendment 
to the Food Drug and Cosmetic Act, called the Dietary Supplement Health 
and Education Act, DSHEA, dietary supplements, unlike new drug 
applications, are not closely scrutinized and do not require premarket 
approval by the FDA before the products can be sold. Premarket 
notification for dietary supplements is required only if the product 
contains new dietary ingredients, meaning products that were not on the 
U.S. market before DSHEA passed in 1994.
  If the FDA determines that a dietary supplement is a steroid, it has 
several enforcement measures available to use. FDA may treat the 
product as an unapproved new drug or as an adulterated dietary 
supplement under the Food Drug and Cosmetic Act. Misdemeanor violations 
of the Food Drug and Cosmetic Act may apply, unless there is evidence 
of intent to defraud or mislead, a requirement for a felony charge. 
However, given the large number of dietary supplement products on the 
market, it is far beyond the manpower of the FDA to inspect every 
product to find, and take action against, those that violate the law--
as the FDA itself has acknowledged.
  The better enforcement route is a criminal prosecution under the 
Controlled Substances Act. However, the process to classify a new 
anabolic steroid as a controlled substance under schedule III is 
difficult, costly and time consuming, requiring years to complete. 
Current law requires that to classify a substance as an anabolic 
steroid, DEA must demonstrate that the substance is both chemically and 
pharmacologically related to testosterone. The chemical analysis is the 
more straightforward procedure, as it requires the agency to conduct an 
analysis to determine the chemical structure of the new substance to 
see if it is related to testosterone. The pharmacological analysis, 
which must be outsourced, is more costly, difficult, and can take years 
to complete. It requires both in vitro and in vivo analyses--the latter 
is an animal study. DEA must then perform a comprehensive review of 
existing peer-reviewed literature.
  Even after DEA has completed the multiyear scientific evaluation 
process, the agency must embark on a lengthy regulatory review and 
public-comment process, which typically delays by another year or two 
the time it takes to bring a newly emerged anabolic steroid under 
control. As part of this latter process, DEA must conduct interagency 
reviews, which means sending the studies and reports to the Department 
of Justice, DOJ, the Office of Management and Budget, OMB, and the 
Department of Health and Human Services, HHS--provide public 
notification of the proposed rule, allow for a period of public 
comment, review and comment on all public comments, write a final rule 
explaining why the agency agreed or did not agree with the public 
comments, send the final rule and agency comments back to DOJ, OMB and 
HHS, and then publish the final rule, all in accordance with the 
Administrative Procedures Act. To date, under these cumbersome 
procedures, DEA has only been able to classify three new anabolic 
steroids as controlled substances and that process--completed only 
after the September 29, 2010, Senate Judiciary subcommittee hearing--
took more than 5 years to finish.
  It is clear that the current complex and cumbersome regulatory system 
has failed to protect consumers from underground chemists who easily 
and rapidly produce designer anabolic steroids by slightly changing the 
chemical composition of the anabolic steroids already included on 
schedule III as controlled substances. The story of Jareem Gunter, a 
young college athlete who testified at the hearing, illustrates the 
system's failure. To improve his athletic performance 4 years ago, 
Jareem purchased in a nutrition store a dietary supplement called 
Superdrol, a product he researched extensively on the Internet and 
believed was safe. Unfortunately it was not. Superdrol contained an 
anabolic steroid which to this day is still not included in the list of 
controlled substances. After using Superdrol for just several weeks,

[[Page 17933]]

Jareem came close to dying because this product--which he thought would 
make him stronger and healthier--seriously and permanently injured his 
liver. He spent 4 weeks in the hospital and has never been able to 
return to complete his college education.
  To close the loopholes in the present laws that allow the creation 
and easy distribution of deadly new anabolic steroids masquerading as 
dietary supplements, I filed amendment No. 4693 to the FDA Food Safety 
Modernization Act S.510 to permit emergency scheduling of designer 
anabolic steroids. The amendment simplifies the definition of anabolic 
steroid to more effectively target designer anabolic steroids, and 
permits the Attorney General to issue faster temporary and permanent 
orders adding recently emerged anabolic steroids to the list of 
anabolic steroids in schedule III of the Controlled Substances Act.
  Under the amendment, if a substance is not listed in schedule III of 
the Controlled Substances Act but has a chemical structure 
substantially similar to one of the already listed and banned anabolic 
steroids, the new substance will be considered to be an anabolic 
steroid if it was intended to affect the structure or function of the 
body like the banned anabolic steroids do. In other words, DEA will not 
have to perform the complex and time consuming pharmacological analysis 
to determine how the substance will affect the structure and function 
of the body, as long as the agency can demonstrate that the new steroid 
was created or manufactured for the purpose of promoting muscle growth 
or causing the same pharmacological effects as testosterone.
  Utilizing the same criteria, the amendment permits the Attorney 
General to issue a permanent order adding such substances to the list 
of anabolic steroids in schedule III of the Controlled Substances Act.
  The amendment also includes new criminal and civil penalties for 
falsely labeling substances that are actually anabolic steroids. The 
penalties arise where a supplement maker fails to truthfully indicate 
on the label--using internationally accepted and understandable 
terminology--that the product contains an anabolic steroid. These 
penalties are intended to be substantial enough to take away the 
financial incentive of unscrupulous manufacturers, distributors, and 
retailers who might otherwise be willing to package these products in a 
way that hides the true contents from law enforcement and consumers.
  Finally, the amendment adds to schedule III 33 new anabolic steroids 
that have emerged in the marketplace in the 6 years since Congress 
passed the Anabolic Steroid Control Act of 2004. It also instructs the 
U.S. Sentencing Commission to review and revise the Federal sentencing 
guidelines to ensure that where an anabolic steroid product is 
illegally manufactured or distributed, and that product is in a tablet, 
capsule, liquid or other form that makes it difficult to determine the 
actual amount of anabolic steroid in the product, the sentence will be 
based on the total weight of the product.
  Amendment No. 4693 simplifies and expedites the process for 
scheduling anabolic steroids as controlled substances. By making this 
simple procedural change, we can protect the health and lives of 
countless Americans and provide an effective enforcement mechanism to 
hold accountable those individuals and their companies which 
purposefully exploit the current regulatory system for their selfish 
gain. I urge my colleagues to pass amendment No. 4693 to the FDA Food 
Safety Modernization Act S. 510.
  Mr. CONRAD. Madam President, section 311(c) of S. Con. Res. 13, the 
2010 budget resolution, permits the chairman of the Senate Budget 
Committee to adjust the allocations of a committee or committees, 
aggregates, and other appropriate levels and limits in the resolution 
for legislation that would improve the safety of the food supply in the 
United States. This adjustment to S. Con. Res. 13 is contingent on the 
legislation not increasing the deficit over either the period of the 
total of fiscal years 2009 through 2014 or the period of the total of 
fiscal years 2009 through 2019.
  I find that S. 510, a bill to amend the Federal Food, Drug, and 
Cosmetic Act with respect to the safety of the food supply, fulfills 
the conditions of the deficit-neutral reserve fund for food safety. 
Therefore, pursuant to section 311(c), I am adjusting the aggregates in 
the 2010 budget resolution, as well as the allocation to the Senate 
Health, Labor, Education, and Pensions Committee.
  I ask unanimous consent that the following revisions to S. Con. Res. 
13 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


CONCURRENT RESOLUTION ON THE BUDGET FOR FISCAL YEAR 2010--S. CON. RES. 
 13; FURTHER REVISIONS TO THE CONFERENCE AGREEMENT PURSUANT TO SECTION 
          311(c) DEFICIT-NEUTRAL RESERVE FUND FOR FOOD SAFETY

                        [In billions of dollars]

        Section 101
(1)(A) Federal Revenues:
  FY 2009.....................................................1,532.579
  FY 2010.....................................................1,612.278
  FY 2011.....................................................1,939.131
  FY 2012.....................................................2,142.415
  FY 2013.....................................................2,325.527
  FY 2014.....................................................2,575.718
(1)(B) Change in Federal Revenues:
  FY 2009.........................................................0.008
  FY 2010.......................................................-53.708
  FY 2011......................................................-149.500
  FY 2012......................................................-217.978
  FY 2013......................................................-189.810
  FY 2014.......................................................-57.940
(2) New Budget Authority:
  FY 2009.....................................................3,675.736
  FY 2010.....................................................2,907.837
  FY 2011.....................................................2,858.866
  FY 2012.....................................................2,831.668
  FY 2013.....................................................2,991.128
  FY 2014.....................................................3,204.977
(3) Budget Outlays:
  FY 2009.....................................................3,358.952
  FY 2010.....................................................3,015.541
  FY 2011.....................................................2,976.251
  FY 2012.....................................................2,878.305
  FY 2013.....................................................2,992.352
  FY 2014.....................................................3,181.417


CONCURRENT RESOLUTION ON THE BUDGET FOR FISCAL YEAR 2010--S. CON. RES. 
 13; FURTHER REVISIONS TO THE CONFERENCE AGREEMENT PURSUANT TO SECTION 
          311(c) DEFICIT-NEUTRAL RESERVE FUND FOR FOOD SAFETY

                        [In millions of dollars]

Current Allocation to Senate Health, Education, Labor, and Pensions 
    Committee:
  FY 2009 Budget Authority......................................-22,612
  FY 2009 Outlays...............................................-19,258
  FY 2010 Budget Authority........................................4,159
  FY 2010 Outlays.................................................1,295
  FY 2010-2014 Budget Authority..................................43,782
  FY 2010-2014 Outlays...........................................43,026
Adjustments:*
  FY 2009 Budget Authority............................................0
  FY 2009 Outlays.....................................................0
  FY 2010 Budget Authority............................................0
  FY 2010 Outlays.....................................................0
  FY 2010-2014 Budget Authority.......................................0
  FY 2010-2014 Outlays................................................0
Revised Allocation to Senate Health, Education, Labor, and Pensions 
    Committee:*
  FY 2009 Budget Authority......................................-22,612
  FY 2009 Outlays...............................................-19,258
  FY 2010 Budget Authority........................................4,159
  FY 2010 Outlays.................................................1,295
  FY 2010-2014 Budget Authority..................................43,782
  FY 2010-2014 Outlays...........................................43,026

**According to CBO, the amendment in a nature of a substitute would 
increase revenues from civil and criminal penalties and related 
spending by less than $500,000. The reserve fund adjustment 
accommodates this negligible increase in revenues and spending.
  Ms. MIKULSKI. Madam President, I rise to address one of the most 
important issues facing our Nation, the safety of America's food 
supply. I support the FDA Food Safety Modernization Act that will help 
reduce the rash of contaminated foods that have recently entered our 
food supply. Every person should have confidence that their food is fit 
to eat.
  While the FDA has always been the gold standard in maintaining the 
safety and efficacy of our food and drugs, the salmonella outbreak in 
eggs over the summer made it painfully clear that we need to do more--
and that the law needs updating. The outbreak resulted in as many as 
79,000 illnesses, 30 deaths, and the recall of roughly one half billion 
eggs. Beyond that, the Centers for Disease Control informs us that 76 
million people get sick, and 5,000 die, each year from foodborne 
illnesses. Just last week the FDA warned

[[Page 17934]]

Marylanders about a potential outbreak of E. coli in apple cider sold 
in the State.
  I applaud the quick action by the FDA in responding to these food 
outbreaks, but we can do better. FDA Commissioner Margaret Hamburg has 
told us that she needs more resources and more authority to oversee the 
way our food is produced and monitored. That is why, as a committed 
advocate of food safety nationwide, I support the FDA Food Safety 
Modernization Act.
  This bipartisan bill would give the FDA authority to order mandatory 
food recalls for unsafe foods if companies don't do it themselves. It 
sets FDA safety standards for produce, creates stronger FDA regulations 
for sanitary food transportation from our producers to our grocery 
stores, and establishes FDA pilot projects to better track where fruits 
and vegetables come from.
  This bill also emphasizes prevention and taking action to prevent 
food outbreaks from occurring in the first place. It ensures that 
facilities have food safety plans in place to identify, evaluate, and 
address food safety hazards. With the growing amount of food that is 
imported globally, this bill ensures imported food meets the same 
safety standards as domestic food by requiring importers to verify the 
safety of foreign suppliers and imported food. This bill would grant 
the FDA the authority it needs to protect the health of our families.
  It is time we get serious about the safety of our Nation's food. The 
health of Americans is not something to take a chance with. It is 
important that we make food safety a top priority. We must pass the FDA 
Food Safety Modernization Act and empower the FDA to set safety 
standards and hold food producers accountable.
  Mr. DURBIN. Madam President, I would like to say a few words on this 
legislation because it is something I have worked on for many years. I 
can't thank Senator Harkin and Senator Enzi and others enough for their 
hard work in bringing this issue to this moment in time. Several things 
have been stated during the course of the debate which I would like to 
address. Most of them were stated by my friend from Oklahoma, Senator 
Coburn. At this point he is the only Senator holding up this bill from 
consideration, one Senator.
  At this point 89 percent of the American people support food safety 
reform to make our food safer and to have more inspections of imported 
food so our children and family members don't get sick; 89 percent 
support it. The bill has substantial bipartisan support. Twenty 
Republican and Democratic Senators are committed to this bill. Seventy-
four Senators, almost three-fourths of the Senate, voted to move 
forward on this bill, a strong bipartisan roll call. The House passed a 
companion bill with the support of 54 Republicans. We know it is a 
bipartisan issue. This should not be a partisan fight.
  Senator Coburn objected to giving the Federal Government the 
authority to recall a dangerous food product. Most people believe if 
there is a dangerous food product in stores across America, the Federal 
Government sends out a notice, and it is brought in. That is not the 
case. The Federal Government does not have the legal authority to 
recall any food products. All it can do is publicize that the products 
are dangerous and hope that grocers and retailers and manufacturers 
will take them off the shelves. That is it. That is the existing state 
of law. We give the government that authority.
  Senator Coburn said it is not necessary. He claims not one company 
has ever refused to recall contaminated food. He is just wrong. There 
are many instances of companies that just flatout refuse to recall 
their food or delay a recall, and many people get sick and die. That is 
a fact.
  Last year Westco Fruit and Nut Company flatout refused FDA's request 
to recall contaminated peanut products. A few years ago, GAO released a 
report entitled ``Actions Needed by FDA to Ensure Companies Carry Out 
Recalls'' which highlighted six other companies that flatout refused to 
recall contaminated food when they were told it was dangerous. Even the 
Bush administration realized how important this was and formally 
requested mandatory recall authority in the 2007 food protection plan.
  Senator Coburn has his facts wrong when he claims the FDA does not 
need the mandatory recall authority.
  Senator Coburn also claims our bill does not address the real problem 
in our Nation's food safety system.
  Once again, he is mistaken. The National Academy of Sciences 
disagrees. In June, the National Academy released a report entitled 
``Enhancing Food Safety, the Role of the FDA.'' The report contained 
seven critical recommendations for improving food safety. This is not a 
partisan group. Every single one of the key recommendations from that 
group is addressed in our bill, including increasing inspections and 
making them risk related, giving FDA mandatory recall authority, 
improving registration of food facilities, and giving the FDA the 
authority to ban contaminated imports. Our bill fills all of the 
critical gaps in the FDA's food safety authority that have been 
identified by the National Academy of Sciences.
  For Senator Coburn to say it is unnecessary is to ignore science and 
fact and, I guess, the reality that if we are going to make food safer, 
we need to do our job better. That is why all the key consumer 
protection and public health groups support this bill--all of them.
  He thinks this bill is not good for business. He says it hurts their 
profits and their productivity. He is just wrong. The number and 
diversity of the industry and business groups that support the bill 
speaks for itself. Listen to the groups that support the food safety 
bill and tell me they are acting against their best business interests: 
the Grocery Manufacturers Association, the U.S. Chamber of Commerce, 
the American Beverage Association, the American Frozen Food Institute, 
the Food Marketing Institute, the International Dairy Foods 
Association, National Restaurant Association, Snack Food Association, 
National Coffee Association, National Milk Producers Federation, 
National Confectioners Association, Organic Trade Association, the 
American Feed Industry Association.
  If Senator Coburn is right, every one of these associations' 
leadership should be removed tomorrow because, under his analysis, they 
have decided to support a bill that hurts their business. They know 
better. Safe food is good business. Think about what it costs these 
companies when they have to recall a product, when it damages their 
reputation and all the things they will go through to try to clean up 
their act.
  Senator Coburn says there are 10 or 20 deaths per year caused by 
foodborne illness. The Senator is just wrong. He uses this number to 
support his assertion that there are not enough victims to justify a 
bill. Here are the facts. According to the Center for Disease Control, 
there are not 10 or 20 deaths per year, there are 5,000 deaths in 
America every single year caused by foodborne illness--5,000. Senator 
Reid can tell some stories about his State which was hit particularly 
hard by food illness.
  Moreover, every year 76 million Americans contract a foodborne 
illness; 325,000 are hospitalized. A few weeks ago I told you about one 
of the victims, a young man named Richard Chatfield from Owasso, OK. At 
age 15, he was on a camping trip and was diagnosed with E. coli. For 8 
years, he suffered pain, migraine headaches, dry heaves, and high blood 
pressure, and after going on dialysis, kidney failure. When we were 
last debating this bill, Richard was lying in the hospital and his 
mother Christine had rushed to be by his side. That hospital turned out 
to be the scene of Richard's death.
  On Monday, October 18, while we were still holding up the food safety 
bill, Richard Chatfield died from foodborne illness. The complications 
from an E. coli infection he got 8 years ago proved to be too much for 
him.
  When I hear Senator Coburn on the Senate floor saying there are not 
enough people dying for us to go to work here, he is just plain wrong. 
Richard Chatfield of his State is dramatic evidence of that fact.
  As we stand here today, one Senator is blocking a bill to protect 
millions of

[[Page 17935]]

Americans. Moms and dads across America making dinner tonight, if they 
happen to have missed the channel they were looking for and ended up on 
C-SPAN and are following this debate, we are talking about an issue 
that goes right into their refrigerator and stove and kitchen as to 
whether the food they are putting on the table is safe for their kids. 
One Senator from Oklahoma says it is not a big enough problem. It is. 
It is a problem that is a life-and-death issue.
  I thank the Senator from Iowa for his leadership on this issue and 
Senator Reid for bringing this up. If we save one life, it is worth the 
effort.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Madam President, I thank my friend and colleague from 
Illinois, Senator Durbin. He has been the leader on this issue for 
several years. We have been working on this bill for a number of years. 
It is Senator Durbin who has led the charge on this going back 
literally several years. We have come so close. We have made all the 
compromises. We have consumer groups, the Chamber of Commerce, U.S. 
PIRG. We never get those people to agree on anything, and they all 
agree on this bill.
  I thank Senator Durbin for all his great leadership. Hope springs 
eternal, and I still hope we will get the votes to pass this and keep 
the politics out of it.
  I wish to correct something I said earlier. Earlier today I had met 
with Senator Coburn, and we had a number of things he wanted that I 
said I would try to put in the amendment on which we will be voting. In 
good faith, I said I would do that. But then, of course, we had to send 
it out to various offices to get Senators to sign off on it. We 
couldn't get Republican Senators to sign off on it. So I wish to 
correct the record.
  The changes I had mentioned earlier that I was willing to put in the 
bill for Senator Coburn were not objected to by anybody on our side. It 
was objected to by Republicans and not Democrats. It is not in the 
bill. These were changes I was willing to make to accommodate the 
Senator from Oklahoma.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Madam President, is the 30 hours postcloture gone?
  The PRESIDING OFFICER. It is.
  Mrs. BOXER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Indiana (Mr. Bayh), the 
Senator from Massachusetts (Mr. Kerry), the Senator from New Jersey 
(Mr. Menendez), the Senator from West Virginia (Mr. Rockefeller), the 
Senator from Pennsylvania (Mr. Specter), and the Senator from Virginia 
(Mr. Webb) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Tennessee (Mr. Alexander), the Senator from Kentucky (Mr. 
Bunning), the Senator from South Carolina (Mr. DeMint), the Senator 
from Nevada (Mr. Ensign), the Senator from New Hampshire (Mr. Gregg), 
the Senator from Texas (Mrs. Hutchison), the Senator from Nebraska (Mr. 
Johanns), the Senator from Alaska (Ms. Murkowski), the Senator from 
Idaho (Mr. Risch), and the Senator from Louisiana (Mr. Vitter).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) would have voted ``nay'' and the Senator from Kentucky (Mr. 
Bunning) would have voted ``nay.''
  The PRESIDING OFFICER (Mr. Franken). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 57, nays 27, as follows:

                      [Rollcall Vote No. 251 Leg.]

                                YEAS--57

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Manchin
     McCaskill
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Whitehouse
     Wyden

                                NAYS--27

     Barrasso
     Bennett
     Bond
     Brownback
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     Enzi
     Graham
     Grassley
     Hatch
     Inhofe
     Isakson
     Kyl
     LeMieux
     Lugar
     McCain
     McConnell
     Roberts
     Sessions
     Shelby
     Thune
     Wicker

                             NOT VOTING--16

     Alexander
     Bayh
     Bunning
     DeMint
     Ensign
     Gregg
     Hutchison
     Johanns
     Kerry
     Menendez
     Murkowski
     Risch
     Rockefeller
     Specter
     Vitter
     Webb
  The motion was agreed to.

                          ____________________