Rick Boucher

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I yield 3 minutes to the gentleman from Maine (Mr. Baldacci).

Mr. BOUCHER. Mr. Speaker, I yield 3 minutes to the gentleman from Rhode Island (Mr. Weygand).

Mr. BOUCHER. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from Ohio (Ms. Kaptur).

Mr. BOUCHER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of this legislation, despite my reservations about deficiencies in the measure that could well have been addressed had the bill been brought to the floor in a more timely manner. It is unfortunate that it was not until well after gasoline prices rose sharply that the House leadership awoke to the need to reauthorize EPCA, a statute which expired on March 31. EPCA is the foundation of our emergency energy preparedness. It permits the United States to participate in activities of the International Energy Agency. It also authorizes the President to maintain and, if necessary, draw down oil from the 570 million barrels in the Strategic Petroleum Reserve. That reserve is not a tool to be deployed lightly. EPCA stipulates that a drawdown occur only if the President finds that a severe energy supply interruption exists. Moreover, the storage caverns can only be filled and drained a few times before their structural integrity is affected. But the very existence of the reserve provides an insurance policy against a major oil crisis and reminds foreign oil producers that this Nation is not at their mercy. As part of his effort earlier this year to bring gasoline prices down, the President asked Congress to ensure that this vital authority did not expire. That call has gone unheeded until this late moment. I supported H.R. 2284 when it was reported by the Committee on Commerce last October. I signed dissenting views, along with a majority of my committee Democrats, protesting the bill's failure to renew important energy efficiency provisions of the original act. Had this legislation been brought to the floor in a more timely manner, under a rule that permitted amendments, this omission could have been rectified. Let me say that I am very pleased that an accommodation has been reached on an amendment that establishes a heating oil reserve and helps to increase production of U.S. oil reserves as proposed by our friend and colleague, the gentleman from Massachusetts (Mr. Markey). Since the bill was reported from committee more than 5 months ago, it is very difficult for me to understand why we are reduced to what amounts to a last-minute scramble that prevents its consideration under more normal procedures. Nonetheless, recent events underscore the importance of having EPCA on the books to ensure that the President has the necessary tools at his disposal to respond to an energy emergency. It appears this legislation is the sole legislative vehicle that the majority is willing to make available to avert an extended lapse of this essential statute. So, under the circumstances, we have little alternative other than to support the legislation. In conclusion, while I recognize the bill's substantive shortcomings, and deplore the unnecessary delay in addressing this matter, I plan to vote for the legislation and I encourage my colleagues to do the same. Mr. Speaker, I yield 5 minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. BOUCHER

Mr. BOUCHER. Madam Speaker, I thank the gentleman from Michigan for yielding me this time. It is with a strong sense of regret that I rise in opposition to S. 1287. I recently became the ranking member of the Subcommittee on Energy and Power of the House Committee on Commerce. The Subcommittee on Energy and Power has a long tradition of working on a bipartisan basis to address our Nation's energy security in a manner that is both serious and thoughtful. Whether under the chairmanship of Phil Sharp or Dan Schaefer, we have always tried to put the interest of our Nation ahead of the allure of partisan advantage. That tradition is being upheld today in a truly excellent fashion by our current subcommittee chairman, the gentleman from Texas (Mr. Barton), and the process of creating sound energy policy is advanced by it. Nowhere has that bipartisan spirit been more in evidence than in our efforts to solve our Nation's nuclear waste problems. In each of the last three Congresses, Republicans and Democrats representing a broad array of political viewpoints have banded together to draft nuclear waste legislation; and the result has been that these bills have been approved by the House Committee on Commerce by overwhelming margins each time, including a victory just this past May of 40 votes in favor to only six votes opposed. That type of bipartisan work led to a clear and convincing victory in the last Congress when the nuclear waste legislation reported by the House Committee on Commerce was approved in this House by a veto-proof majority of 307-120. Unfortunately, the bill that we are considering today flies in the face of what we did just 2 years ago. Let me quickly highlight some of the many differences between what the Members accomplished 2 years ago and what they are being presented this afternoon. The central element of the bill passed by the House 2 years ago was the construction of an interim storage facility so that waste could be moved from their States to Yucca Mountain beginning in the year 2002. The bill currently before us does not authorize construction of that vitally needed interim storage facility. It seems to require DOE to begin receiving waste at the site 18 months after the NRC grants a license to construct the repository sometime around the year 2006. However, this is not a schedule that the Department can meet even under the best of circumstances. And for reasons I will lay out in a minute, DOE is not likely to be operating in a best-case scenario. Now, some proponents point to a provision of section 102 of the bill that authorizes something called backup storage capacity as somehow being similar to interim storage, but that is simply not accurate. The provisions of section 102 are so narrowly focused that only two utilities, if any, could benefit from the provisions of that section. Another central tenet of the bill that was passed in the 105th Congress, as well as the bill reported this year by the House Committee on Commerce, is that all of the money ratepayers pay into the nuclear waste fund must be used exclusively for the nuclear waste program. Ratepayers have paid more than $11 billion into the waste fund to date, and only a fraction of that money has been spent on the waste programs. Not only is that wrong as a matter of principle, but without rectifying the funding situation, DOE will not be able to open a repository in 2010, let alone in the year 2006, clearly in not a best- case situation. There are many other differences between this bill and the bill we passed in the last Congress. But let me point to just one final crucial point of departure. This bill contains language that would tie our ability to transport waste to Nevada in knots. Madam Speaker, this legislation is clearly not well crafted. It will not further the policy of objectives that we sought to achieve in the House on a bipartisan basis. And I am deeply concerned that the actions we are taking today, for no apparent positive purpose, may do irrevocable damage to our chances of ever enacting the nuclear waste legislation that is so vitally needed. So more in sorrow today than in anger, and as a long-time supporter of nuclear waste legislation, I urge my colleagues to join with me in voting no on this measure.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I thank the gentleman for yielding to me, and let me simply compliment my friend and colleague, the gentleman from Virginia (Mr. Goodlatte), for the excellent work he has done in the face of very difficult circumstances in order to obtain a way that viewers in the cities, medium-sized and small, and throughout rural America will have the opportunity to have their local TV stations delivered to them by satellite. We have had a range of problems. We are about to have those resolved in a manner that I think is satisfactory, and I want to thank my colleague and friend from Virginia for his very able assistance in reaching that satisfactory result.

Mr. BOUCHER. I yield to the gentleman from Virginia.

Mr. BOUCHER. Mr. Speaker, will the gentleman yield?

Mr. BOUCHER. I yield to the gentleman from Texas.

Mr. BOUCHER. I yield to the gentleman from Virginia.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I want to thank my friends and colleagues from Massachusetts and from Michigan for yielding me this time. I rise in support of the conference agreement and offer congratulations to my fellow conferees for performing well the challenging task of balancing a range of complex policy choices. The new ``satellite home viewer act'' will be good for consumers. It assures that millions of rural Americans who live a long way from local TV stations can continue to receive network signals delivered by satellite. It fully authorizes an entirely new satellite service for the benefit of TV viewers. For the first time, satellite companies will be able to offer not just national programs but also local television stations. They will up-link local stations to the satellite and spot beam those stations back into the markets of their origination. With this advance, satellite companies will become completely viable competitors for cable TV companies and will offer all of the choices including local programs that cable companies offer at the present time. This advance will benefit consumers by giving them a viable alternative to cable for multi-channel video services. It will serve as a competitive check on cable rates, benefiting even those viewers who continue to subscribe to cable television. And it will assure local broadcasters that, for the first time, they can reliably reach every viewer within their market. I particularly want to thank the conferees in the House and in the other body for accepting a proposal that I made in partnership with my colleague, the gentleman from Virginia (Mr. Goodlatte), to facilitate the offering of the new local-into-local satellite service, not just in the largest cities but in all 211 local television markets nationwide. The commercial satellite companies have announced their intention to offer the local-into-local service only in the largest 67 cities. The provision that the gentleman from Virginia (Mr. Goodlatte) and I sponsored, which is a part of this conference report, will enable the U.S. Department of Agriculture to provide a loan guarantee in the amount of $1.25 billion to make feasible the construction, launch, and operation of enough satellites to provide the local-into-local service in all television markets nationwide, including the medium sized and the smaller markets that the commercial companies do not intend to serve. I thank my colleague, the gentleman from Virginia (Mr. Goodlatte), for his excellent efforts; and I thank other members of the conference for accepting this proposal. The interest of rural viewers will be well served by this advance, as they will by the adoption of this conference report. I am pleased to encourage its adoption by the House.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I thank the gentleman from California for yielding this time to me. Mr. Speaker, it is a pleasure for me to join with my friend and colleague, the gentleman from California (Mr. Rogan) in offering this legislation. I want to join with him in expressing our mutual appreciation to the gentleman from North Carolina (Mr. Coble), the subcommittee chairman, and the gentleman from California (Mr. Berman), the ranking member of the subcommittee, for their excellent assistance in processing the bill and bringing it to the floor today. Under current law, it is hard for a trademark owner to obtain relief from someone who has obtained a domain registry of his trademarked name. The legal remedies are expensive and, at the end of the day, uncertain. Many trademark owners conclude that it is easier simply to pay the cybersquatter his ransom and in effect buy back his own trademark name than it is to enforce his legal rights in a court of law. The gentleman from California (Mr. Rogan) and I want to put cybersquatters out of business by providing a more certain and less expensive and more timely legal remedy to those who have trademarks and seek to enforce those trademarks. Our legislation sets forth a list of factors that can be applied in determining if a domain name registration is made in bad faith with the intent to profit from the good will that is associated with the trademark. These factors can be applied by a court. They can also be applied by the domain name registrar, who then would be given exemption from liability if, upon application of that list of factors, the determination was made that the registration was in bad faith, that the registration in fact was made by a cybersquatter, and that the registration should therefore be suspended or canceled. Cancellation or suspension in that instance would be accompanied by the award of an exemption from liability, should the cybersquatter pursue the domain name registrar. That, in my opinion, is the best change this legislation makes. It provides a remedy that is accessible, one that is timely, one that is far less expensive and uncertain than the remedies provided today. I am pleased, Mr. Speaker, to encourage the passage of this measure, and I again want to commend the gentleman from California (Mr. Rogan), the chief sponsor of the bill, for his excellent work.

Mr. BOUCHER

Mr. BOUCHER. Mr. Chairman, the amendment of the gentleman from North Carolina (Mr. Watt) would permit a plaintiff to remove a State-filed class action to Federal court only after the State court had entered an order certifying the class. In my view, the removal opportunity should arise at an earlier time for plaintiffs who are named or representative class members. These plaintiffs should be able to remove at some point before the State court actually enters the certification order. The substitute to the gentleman's amendment that I am offering would permit named or representative class members to remove prior to the State order certifying the class. Other plaintiff class members could remove only after the certification order is entered. I want to thank the gentleman from North Carolina (Mr. Watt) for his work with the sponsors of the legislation on this aspect of the removal process. I am hoping that the substitute that we are offering will be acceptable to the gentleman in addressing his concerns, and I would be happy to yield to him for his comments.

Mr. BOUCHER. Reclaiming my time, Mr. Chairman, I think the gentleman from Virginia is precisely right. Even in those States that have standards that approximate Federal rule XXIII, there is a divergence oftentimes in the courts of that very State in terms of how those standards are applied. Oftentimes, the States do not offer the right of interlocutory appeal on the pure question of class certification. So for the defendants to have an opportunity to challenge the application of that particular State's certification rules, the entire process of the trial has to be undertaken, has to be concluded. That is a waste of time, resources, and money for all parties concerned.

Mr. BOUCHER. I yield to the gentleman from Virginia.

Mr. BOUCHER. Mr. Chairman, reclaiming my time, let me say that it is true that most of the States have standards that are roughly coincident with rule 23 of the Federal Rules of Civil Procedure, but there are some States that have not adopted that rule. There are some States that, in fact, do have broader and looser standards than Federal rule 23; and in many of the instances where abuses have arisen, it is because of those somewhat broader standards. We have a whole series of cases that the gentleman and I discussed when this matter was in the committee where the State that is certifying a class will be applying its law in such a way as to bind all of the Members of the class and make sure that that particular State's law dominates the decision, notwithstanding the fact that in the State of the residents of many of those individuals, the law is very different. That reversed federalism, which does enormous damages to our traditional principles of federalism is yet another abuse that we are seeking to remedy.

Mr. BOUCHER. I yield to the gentleman from Massachusetts.

Mr. BOUCHER. Mr. Chairman, I move to strike the last word. Mr. Chairman, I will be brief in stating my opposition to this amendment. If the amendment is adopted, the basic reform that we are seeking in this legislation simply would not be achieved. Some cases simply should not be certified as class actions, either in State or in Federal courts. Federal Rule of Civil Procedure 23 is narrowly drawn so as to protect the normal rights of both plaintiffs and defendants. Under rule 23, cases that are overly broad will not be certified as class actions. When cases are denied class action status, all of the individual members of the purported class are then free to file their individual actions for damages. And so, in the failure of class certification, absolutely no one is denied the opportunity to seek recovery for whatever damages they may have incurred. If the amendment of the gentleman from Massachusetts is adopted, any case which, because of its broad scope, fails to meet the class certification requirements of rule 23 of the Federal rules, and therefore, is dismissed as a class action in Federal court, could then be certified as a class action in the State that has looser certification standards. That State would then be the final arbiter of whether or not the class would be certified, because removal to the Federal court would then no longer be allowed. The national cases that involve the residents of many States that are our concern and that underlie this legislation would, under this amendment, still be heard in State courts, and so our basic purpose would not be achieved. The reform that we are seeking would not be put into effect, and for that reason, I urge the defeat of the amendment.

Mr. BOUCHER. I yield to the gentleman from Virginia.

Mr. BOUCHER. Mr. Chairman, I thank the gentleman from North Carolina (Mr. Watt) for his remarks. I would be pleased to yield to the prime sponsor of the underlying bill, the gentleman from Virginia (Mr. Goodlatte).

Mr. BOUCHER. I yield to the gentleman from North Carolina.

Mr. BOUCHER. Mr. Chairman, I move to strike the last word. Mr. Chairman, in opposing the amendment, I would make the broad point that industry-specific denials of access to the judicial process at either the State or the Federal levels are simply not appropriate. Over the entrance to the United States Supreme Court are words which, in a phrase, define our basic belief in the rule of law. That phrase says, ``Equal justice under the law.'' To honor that principle, any attempt to close the courthouse door to any specific litigant, whether an individual, a specific corporation, or an entire industry should be defeated. The amendment would close the door to the courthouse to any company within the tobacco industry that seeks to use the removal provisions of this legislation. That simply is not the American way. That approach violates our basic principles of fairness and our principles of equal justice. By a wide bipartisan majority the amendment was rejected by the House Committee on the Judiciary, and I strongly urge the committee here on the floor of the House today to reject this amendment as well.

Mr. BOUCHER. Mr. Chairman, I rise today in strong support of H.R. 1875, which I am pleased to be co-authoring with my friend and Virginia colleague, the gentleman from Roanoke (Mr. Goodlatte). Our measure makes a much needed reform in an area that has been subjected to substantial abuse. Increasingly, lawsuits that are truly national in scope are being filed as State class actions, and a range of problems attends this growing practice. Some State judges employ an almost anything-goes approach that renders virtually any controversy subject to certification as a State class action. Some State courts routinely engage in a practice that is best described as drive-by class certifications in which the decision to certify the class is made before the defendant is even served with the complaint and given an opportunity to contest the class certification. In such an environment, defendants and even plaintiffs are being denied the most routine of rights as there is a rush to certify classes and a rush to settle the cases. For example, in order to prevent removal of cases to Federal courts, the amount that is sued for is sometimes kept artificially below the $75,000 jurisdictional threshold for Federal court actions, and that is done even though in many of these instances the plaintiffs would be entitled to recover more than $75,000. In the same vein, class action complaints in many cases will not raise Federal causes of action that could legitimately be raised; also, for the purpose of denying the defendants the opportunity to remove the cases to Federal court. These practices are clearly not in the interests of the plaintiffs on whose behalf the class actions have been filed, and neither are the quick settlements that often follow and that yield large fees for the plaintiff's attorneys and negligible returns for the plaintiffs themselves. Another major problem arises from the inability of States to consolidate class action proceedings that often are filed in more than one State and that involve the same issues of law and fact, that involve the same causes of action, and that involve the same class members on both the plaintiff's side and also the same defendants. Frequently, these parallel cases proceed in numerous States at the same time to the disadvantage of all parties concerned. This circumstance sometimes leads to competition among the States in order to get the certification first and to achieve the first settlement, whatever the cost of that settlement to the plaintiffs on whose behalf the class action has been filed. In the Federal courts, of course, multidistrict litigation can be consolidated, thereby eliminating and avoiding all of these problems. The legislation that is before the House today seeks to address these concerns by permitting cases that are truly national in scope to be removed to Federal court even if the traditional diversity requirements are not met. Today, the target defendant is almost always a large out-of-state corporation. To prevent removal under current rules an in-state defendant, such as a retailer or distributor of the product that is the subject of the action against whom recovery is generally not sought, will be joined as a party defendant simply to prevent there being complete diversity and to prevent the removal of the case to Federal court. Our legislation would permit removal in that instance if the center of gravity of the case is truly national in scope. The legislation is carefully drafted to provide that cases which are local, and we refer to these as interstate cases, will not be entertained in the Federal courts unless the traditional removal rules are met. If the defendant and the majority of the plaintiffs are in-state parties, and if the law of that State will govern disposition of the proceedings, then the Federal judge will be required to remand that case for proceedings in State court. Some of the opponents of this legislation claim that it essentially federalizes all class actions. That simply is not the case. If the case is local in nature, if the majority of the plaintiffs, if the defendant are residents of the State in which the class action is filed, and if the law of that State would be dispositive of the proceeding, then the Federal judge under this legislation would be required to return that case as a class action to the State courts, and so State class actions can proceed under those arrangements where the cases are, in fact, purely local. The legislation sensibly improves our legal system without limiting anyone's right to file a class action or to receive recovery; and I am pleased to be joined in co-authoring this measure with the gentleman from Virginia (Mr. Goodlatte), the gentleman from Virginia (Mr. Moran), the gentleman from Tennessee (Mr. Bryant). And this morning I am pleased to strongly urge its adoption by the House.

Mr. BOUCHER. Mr. Chairman, I thank the gentleman from Virginia (Mr. Goodlatte) for his support, and I would encourage the committee to approve the substitute.

Mr. BOUCHER. Mr. Chairman, I offer an amendment as a substitute for the amendment.