Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia, be authorized to meet on Wednesday, February 25, 2004 at 10 a.m., for a hearing entitled ``The Key to Homeland Security: The New Personnel System.''

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Wednesday, February 25, 2004, at 9:30 a.m. on Economic Implications of Seafood Processor Quotas.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, February 25, 2004, at 9:30 a.m. to hold a hearing on The Japanese Tax Treaty and the SRI Lanka tax Protocol.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, February 25, 2004, at 3:30 p.m. to hold a hearing on USAID Contracting Policies.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Joint Economic Committee be authorized to meet to conduct a hearing in room 628 of the Dirksen Senate Building, Wednesday, February 25, from 10 a.m. to 1 p.m.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Wednesday, February 25, at 10 a.m., on ``Judicial Nominations,'' in the Dirksen Senate Office Building Room 226. Panel I: Senators. Panel II: Roger T. Benitez, to the U.S. District Court for the Southern District of California. Panel III: Representatives from the American Bar Association.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Wednesday, February 25, 2004, at 10 a.m. to conduct a hearing on ``Review of Current Investigations and Regulatory Actions Regarding the Mutual Fund Industry.''

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Wednesday, February 25, 2004, at 2:30 p.m. to conduct a hearing on ``Proposals for Improving the Regulatory Regime of the Housing Government Sponsored Enterprises.''

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, February 25, 2004, at 9:30 a.m., in room 485 of the Russell Senate Office Building to conduct a hearing on the President's Fiscal Year 2005 Budget Request.

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the Subcommittee on Personnel of the Committee on Armed Services be authorized to meet during the session of the Senate on February 25, 2004, at 9:30 a.m., in open session to receive testimony on policies and programs for preventing and responding to incidents of sexual assault in the armed services.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise on behalf of myself and Senators Warner, Schumer, DeWine, Levin, Chafee, Dodd, Jeffords, Boxer, Clinton, Reed and Lautenberg to offer legislation that will reauthorize the 1994 assault weapons ban--which is now set to expire on September 13, 2004--for another ten years. I would first like to thank my courageous colleague from Virginia, Senator Warner, for joining me in this effort. Senator Warner voted against the assault weapons ban in 1994. But this year, Senator Warner was willing to revisit his position on the issue. He saw that--contrary to the fears of many in 1994--the ban has done nothing to hurt innocent gun owners. Instead, the ban has only made it harder for criminals to get access to military style firearms. A willingness to look at issues like this with an open mind, particularly this issue, shows a courage and a commitment to making the right decisions that should be emulated by all public servants, and I want to again thank Senator Warner for this. Second, I would like to speak about who else supports this legislation. Those who join us in supporting a reauthorization of the assault weapons ban include: Fraternal Order of Police; National League of Cities; United States Conference of Mayors; National Association of Counties; International Association of Chiefs of Police; National Association of Police Organizations; International Brotherhood of Police Officers; U.S. Conference of Catholic Bishops; National Education Association; Americans for Gun Safety; The Brady Campaign/ Million Mom March; NAACP; American Bar Association; and the list goes on, and on. More than ten years ago--on July 1, 1993--Gian Luigi Ferri walked into 101 California Street in San Francisco carrying two high-capacity TEC-9 assault pistols. Within minutes, Ferri had murdered eight people, and six others were wounded. This tragedy shook San Francisco, and it shook the entire Nation. The American people saw in that incident and so many others that came before and after it the incredible destruction that could be inflicted with military-style assault weapons--weapons designed and manufactured with one goal in mind--maximum lethality. It all started, really, on August 1, 1966, when Charlie Whitman climbed the clock tower at the University of Texas and killed more than a dozen people in an hour and a half shooting spree before he was finally killed himself. The day Whitman climbed that tower was the first time Americans realized that they could become the random victims of gun violence no matter where they were, and no matter what they were doing. What made the Texas shooting so terrible was the total inability of law enforcement to get to Charlie Whitman until he had been firing shots for almost 96 minutes. The tower allowed him to do this. The tower made him, at least for that amount of time, invincible. But gunmen no longer need the protection of clock towers, because they now have assault weapons. We saw in the Columbine shooting, in the Long Island Rail Road shooting, and so many others, that high capacity assault weapons can make those who wield them temporarily invincible to law enforcement, because it is so difficult to get close to the shooter. It is often only when a gunman stops to reload that bystanders or the police can move in to stop the shooting. And if the gun's magazine holds hundreds of bullets, that could take a long time, and result in a lot of deaths. This is vitally important, because grievance killings by disgruntled members of society have taken an increasing number of lives in recent years. And when those grievance killers wield high capacity weapons, the toll on lives is exponentially increased. The grievance killings have been across the Nation, in every forum: In a San Ysidro, CA, McDonald's in 1984, when a gunman with an Uzi killed 21 and wounded 15 others. In Stockton, CA, in 1989, when drifter Patrick Purdy walked into a schoolyard with an AK-47 and killed 5, wounding 30 others. In Long Island, NY, in 1993, when a gunman killed 6 and wounded 19 others on a commuter train--he was only brought down when he finally stopped to reload. In Pearl, MS, in 1997 when 2 students killed. In Paducah, KY, in 1998 when 3 students were killed. In Jonesboro, AR, in 1998 when 5 were killed, and 10 more wounded. In Springfield, OR, in 1998 when 2 were killed, and 22 wounded. In Littleton, CO, when 12 teens and one teacher were killed in Columbine High School. In Atlanta, GA in 1999 when a troubled day trader killed his wife, 2 children and several people trading stocks. At a Granada Hills, CA, Jewish Community Center when a gunman wounded three and killed a Filipino-American postal worker--many of us remember that one touching photo of small children being quickly led across the street to escape the gunfire. No child should have to go through that. At a Fort Worth, TX, Baptist church where seven were killed and seven more wounded at a teens church event, all by a man with two guns and 9 high capacity clips, with a capacity of 15 rounds each. Recognizing the earliest of these shootings as a problem that needed to be dealt with, Congress finally took notice in 1993. In the aftermath of the 101 California shooting, we in Congress did something that no one had succeeded in doing before--we banned the manufacture and importation of military-style assault weapons. We were told it could not be done--but we did it. I was even told by colleagues on my own side of the aisle that I was wasting my time--that the gun lobby was just too strong. I hear many of the same arguments today. But we succeeded in 1994, and we will succeed this year. We succeeded, and we will succeed, because the American people will accept no less of us. The goal of the 1994 legislation was to drive down the supply of these weapons and to make them more difficult to obtain, and to eventually get them off our streets. And in the years following the enactment of the ban, crimes using assault weapons were indeed reduced dramatically--in fact, the percentage of crimes using banned assault weapons fell by more than 65 percent between 1995 and 2002. The ATF has found that the proportion of banned assault weapons used in crime has fallen from 3.57 percent in 1995 to just 1.22 percent by 2002. Now these are not big percentages--most crimes are not committed by assault weapons. But it is important to note that crimes committed with assault weapons often result in many more deaths than crimes committed with other guns. A simple robbery with a handgun is far less likely to result in multiple deaths than a drive-by shooting with an Uzi, or a grievance killing in a school using an AK-47 with a large capacity ammunition magazine. And contrary to the near-hysterical rhetoric coming from the NRA at the time, no innocent gun owner lost an assault weapon. No gun was confiscated as a result of the ban. The sky did not fall. And life went on--but it went on with fewer grievance killers, juveniles, and drive- by shooters having access to the most dangerous of firearms. Despite these results, House Majority Leader Tom Delay said last year that House Republicans will let the Assault Weapons ban die when it sunsets after ten years. To those of us who have been in Congress for some time, this comes as little surprise--after all, the House actually voted to repeal the original assault weapons ban soon after it was signed into law. But the good news is that the President of the United States does support reauthorizing the ban. In April of last year, White House spokesman Scott McClellan said of the assault weapons ban, ``The president supports the current law, and he supports reauthorization of the current law.'' That is what we are doing with this legislation--reauthorizing the current law. Period. I know the President agrees with me when I say that I don't believe that banned guns like the AK-47, the TEC-9, or the Street Sweeper should once again be manufactured or imported into the United States. These are military guns, with no purpose but the killing of other human beings. They have pistol grips and other features designed solely to allow the weapons to be more easily concealed, and more easily fired from the hip in close quarters combat--or, tragically, in places like the schoolyard in Stockton, where five children died, the McDonalds in San Ysidro, the law firm at 101 California Street in San Francisco, Columbine High School, or so many other places where maniacs with their military guns were able to shoot large numbers of people in short periods of time. That is why I believe that Congress should reauthorize the 1994 law, which expires next September 13. And that is undoubtedly why the President also supports our efforts. I know there will be some who will say that the current law doesn't go far enough--and frankly, I agree. I would prefer to expand the ban to California law, so that we prohibit the copycat assault weapons that manufacturers so cravenly designed following the ban. Senator Lautenberg has introduced legislation to do this, and I co- sponsored that bill. Ideally, we would pass legislation that fully prevents craven manufacturers from circumventing the ban. But in an environment where the NRA has such a stranglehold on gun legislation, we will need all the help we can get just to keep the current ban. The current ban has been effective in limiting the supply of these most dangerous guns. Even the copycat guns are less dangerous, because they are harder to conceal, harder to fire from the hip. And no matter whether the ban has been entirely effective or not, what is the argument for letting these banned guns back on the streets? Who is clamoring for newly manufactured AK-47s? Who is clamoring for new TEC-9s? These are guns that are never used for hunting. They are not used for self defense, and if they are it is more likely that they will kill innocents than intruders. These guns--and everyone knows it--have but one purpose, and that purpose is to kill other human beings. Why would we want to open the floodgates again and let them back on our streets? There is simply no good reason. This debate should not be about whether the assault weapons ban is perfect. This debate should be about whether these guns need to come back--and the American people know that they do not. With the President, law enforcement, and the American people behind us, we can succeed. We can beat the NRA's narrow, special interest agenda and keep these guns off the streets. I urge my colleagues to read the dozens of editorials in support of the ban, to listen to their constituents, to ask us questions, and to make the only decision that makes sense--to support this bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise on behalf of myself and Senators Warner, Schumer, DeWine, Levin, Chafee, Dodd, Jeffords, Boxer, Clinton, Reed and Lautenberg to offer legislation that will reauthorize the 1994 assault weapons ban--which is now set to expire on September 13, 2004--for another ten years. I would first like to thank my courageous colleague from Virginia, Senator Warner, for joining me in this effort. Senator Warner voted against the assault weapons ban in 1994. But this year, Senator Warner was willing to revisit his position on the issue. He saw that--contrary to the fears of many in 1994--the ban has done nothing to hurt innocent gun owners. Instead, the ban has only made it harder for criminals to get access to military style firearms. A willingness to look at issues like this with an open mind, particularly this issue, shows a courage and a commitment to making the right decisions that should be emulated by all public servants, and I want to again thank Senator Warner for this. Second, I would like to speak about who else supports this legislation. Those who join us in supporting a reauthorization of the assault weapons ban include: Fraternal Order of Police; National League of Cities; United States Conference of Mayors; National Association of Counties; International Association of Chiefs of Police; National Association of Police Organizations; International Brotherhood of Police Officers; U.S. Conference of Catholic Bishops; National Education Association; Americans for Gun Safety; The Brady Campaign/ Million Mom March; NAACP; American Bar Association; and the list goes on, and on. More than ten years ago--on July 1, 1993--Gian Luigi Ferri walked into 101 California Street in San Francisco carrying two high-capacity TEC-9 assault pistols. Within minutes, Ferri had murdered eight people, and six others were wounded. This tragedy shook San Francisco, and it shook the entire Nation. The American people saw in that incident and so many others that came before and after it the incredible destruction that could be inflicted with military-style assault weapons--weapons designed and manufactured with one goal in mind--maximum lethality. It all started, really, on August 1, 1966, when Charlie Whitman climbed the clock tower at the University of Texas and killed more than a dozen people in an hour and a half shooting spree before he was finally killed himself. The day Whitman climbed that tower was the first time Americans realized that they could become the random victims of gun violence no matter where they were, and no matter what they were doing. What made the Texas shooting so terrible was the total inability of law enforcement to get to Charlie Whitman until he had been firing shots for almost 96 minutes. The tower allowed him to do this. The tower made him, at least for that amount of time, invincible. But gunmen no longer need the protection of clock towers, because they now have assault weapons. We saw in the Columbine shooting, in the Long Island Rail Road shooting, and so many others, that high capacity assault weapons can make those who wield them temporarily invincible to law enforcement, because it is so difficult to get close to the shooter. It is often only when a gunman stops to reload that bystanders or the police can move in to stop the shooting. And if the gun's magazine holds hundreds of bullets, that could take a long time, and result in a lot of deaths. This is vitally important, because grievance killings by disgruntled members of society have taken an increasing number of lives in recent years. And when those grievance killers wield high capacity weapons, the toll on lives is exponentially increased. The grievance killings have been across the Nation, in every forum: In a San Ysidro, CA, McDonald's in 1984, when a gunman with an Uzi killed 21 and wounded 15 others. In Stockton, CA, in 1989, when drifter Patrick Purdy walked into a schoolyard with an AK-47 and killed 5, wounding 30 others. In Long Island, NY, in 1993, when a gunman killed 6 and wounded 19 others on a commuter train--he was only brought down when he finally stopped to reload. In Pearl, MS, in 1997 when 2 students killed. In Paducah, KY, in 1998 when 3 students were killed. In Jonesboro, AR, in 1998 when 5 were killed, and 10 more wounded. In Springfield, OR, in 1998 when 2 were killed, and 22 wounded. In Littleton, CO, when 12 teens and one teacher were killed in Columbine High School. In Atlanta, GA in 1999 when a troubled day trader killed his wife, 2 children and several people trading stocks. At a Granada Hills, CA, Jewish Community Center when a gunman wounded three and killed a Filipino-American postal worker--many of us remember that one touching photo of small children being quickly led across the street to escape the gunfire. No child should have to go through that. At a Fort Worth, TX, Baptist church where seven were killed and seven more wounded at a teens church event, all by a man with two guns and 9 high capacity clips, with a capacity of 15 rounds each. Recognizing the earliest of these shootings as a problem that needed to be dealt with, Congress finally took notice in 1993. In the aftermath of the 101 California shooting, we in Congress did something that no one had succeeded in doing before--we banned the manufacture and importation of military-style assault weapons. We were told it could not be done--but we did it. I was even told by colleagues on my own side of the aisle that I was wasting my time--that the gun lobby was just too strong. I hear many of the same arguments today. But we succeeded in 1994, and we will succeed this year. We succeeded, and we will succeed, because the American people will accept no less of us. The goal of the 1994 legislation was to drive down the supply of these weapons and to make them more difficult to obtain, and to eventually get them off our streets. And in the years following the enactment of the ban, crimes using assault weapons were indeed reduced dramatically--in fact, the percentage of crimes using banned assault weapons fell by more than 65 percent between 1995 and 2002. The ATF has found that the proportion of banned assault weapons used in crime has fallen from 3.57 percent in 1995 to just 1.22 percent by 2002. Now these are not big percentages--most crimes are not committed by assault weapons. But it is important to note that crimes committed with assault weapons often result in many more deaths than crimes committed with other guns. A simple robbery with a handgun is far less likely to result in multiple deaths than a drive-by shooting with an Uzi, or a grievance killing in a school using an AK-47 with a large capacity ammunition magazine. And contrary to the near-hysterical rhetoric coming from the NRA at the time, no innocent gun owner lost an assault weapon. No gun was confiscated as a result of the ban. The sky did not fall. And life went on--but it went on with fewer grievance killers, juveniles, and drive- by shooters having access to the most dangerous of firearms. Despite these results, House Majority Leader Tom Delay said last year that House Republicans will let the Assault Weapons ban die when it sunsets after ten years. To those of us who have been in Congress for some time, this comes as little surprise--after all, the House actually voted to repeal the original assault weapons ban soon after it was signed into law. But the good news is that the President of the United States does support reauthorizing the ban. In April of last year, White House spokesman Scott McClellan said of the assault weapons ban, ``The president supports the current law, and he supports reauthorization of the current law.'' That is what we are doing with this legislation--reauthorizing the current law. Period. I know the President agrees with me when I say that I don't believe that banned guns like the AK-47, the TEC-9, or the Street Sweeper should once again be manufactured or imported into the United States. These are military guns, with no purpose but the killing of other human beings. They have pistol grips and other features designed solely to allow the weapons to be more easily concealed, and more easily fired from the hip in close quarters combat--or, tragically, in places like the schoolyard in Stockton, where five children died, the McDonalds in San Ysidro, the law firm at 101 California Street in San Francisco, Columbine High School, or so many other places where maniacs with their military guns were able to shoot large numbers of people in short periods of time. That is why I believe that Congress should reauthorize the 1994 law, which expires next September 13. And that is undoubtedly why the President also supports our efforts. I know there will be some who will say that the current law doesn't go far enough--and frankly, I agree. I would prefer to expand the ban to California law, so that we prohibit the copycat assault weapons that manufacturers so cravenly designed following the ban. Senator Lautenberg has introduced legislation to do this, and I co- sponsored that bill. Ideally, we would pass legislation that fully prevents craven manufacturers from circumventing the ban. But in an environment where the NRA has such a stranglehold on gun legislation, we will need all the help we can get just to keep the current ban. The current ban has been effective in limiting the supply of these most dangerous guns. Even the copycat guns are less dangerous, because they are harder to conceal, harder to fire from the hip. And no matter whether the ban has been entirely effective or not, what is the argument for letting these banned guns back on the streets? Who is clamoring for newly manufactured AK-47s? Who is clamoring for new TEC-9s? These are guns that are never used for hunting. They are not used for self defense, and if they are it is more likely that they will kill innocents than intruders. These guns--and everyone knows it--have but one purpose, and that purpose is to kill other human beings. Why would we want to open the floodgates again and let them back on our streets? There is simply no good reason. This debate should not be about whether the assault weapons ban is perfect. This debate should be about whether these guns need to come back--and the American people know that they do not. With the President, law enforcement, and the American people behind us, we can succeed. We can beat the NRA's narrow, special interest agenda and keep these guns off the streets. I urge my colleagues to read the dozens of editorials in support of the ban, to listen to their constituents, to ask us questions, and to make the only decision that makes sense--to support this bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from Idaho for his courtesy. I cannot support this bill. I don't believe it reflects compromise. I don't think it is materially changed from the bill that failed to get 50 votes last July. The major difference, as I see it, in this bill is that the liability restrictions apply to only one medical specialty group, obstetricians and gynecologists. This bill sets a national cap of $250,000 for noneconomic damages. The cap applies not only to suits against doctors but to suits against HMOs and to manufacturers of gynecological or obstetric products as well. So, under this bill, the Dalkon Shield contraceptive device would be shielded by this $250,000 cap regardless of the harm caused. Moreover, this bill severely limits the availability of punitive damages against OB/GYNs and manufacturers of related products. The bill would also immunize manufacturers or sellers of gynecological products approved by the FDA from punitive damages. The FDA exemption sets, in a way, a downward course. If a company has an FDA-approved product on the market and then learns of dangerous complications, the company must remove the product from the marketplace immediately. To provide an exemption for products with FDA approval may well be a disincentive to prompt removal from the shelf. I am one who believes there needs to be a solution to rising malpractice insurance premiums. I want to talk to that solution in just a moment. But, it is correct that obstetricians and gynecologists are reeling under exorbitant medical malpractice premiums. Obstetricians and gynecologists had more claims against them and paid out more money to plaintiffs than any other medical specialty between 1985 and 2000. Prior to the State of Florida passing medical liability caps last year, OB/GYNs in Florida paid over $200,000 annually for malpractice insurance. OB/GYNS in California, a State with liability caps, pay an average in malpractice insurance of $57,000, which is about a quarter of what it is in Florida. According to the American College of Obstetricians and Gynecologists, 20 percent of obstetricians and gynecologists in Nevada are leaving their practice due to rising malpractice insurance costs. Twenty percent of OB/GYNs in West Virginia and Georgia have been forced out of their practice. I could go on and on and on. I want to talk for a moment about California, and then I want to talk about what I think is a logical solution to this. But up to this point, the AMA and my own medical association, the California Medical Association, won't buy it. Congress can and should provide some legislative relief. MICRA, the Medical Injury Compensation Reform Act, took place 29 years ago in California. MICRA set a precedent in the ensuing years for reform measures in several States. The MICRA law provides a model. Last year, I spent several months reviewing MICRA to see what could be transferred to the national level. I have come to believe it is possible that reasonable caps on liability can lead to affordable premiums. When MICRA was enacted in 1975, the cost of health insurance in California was higher than in any market except New York City. In the 6 years before 1975, the number of malpractice suits filed per hundred physicians in California had more than doubled. MICRA has kept costs down. In 1975, California's doctors paid 20 percent of the gross costs of all malpractice insurance premiums in the country. Today, it is 11 percent. California's premiums grew 167 percent over the past 25 years compared to 505 percent in other States. So the growth in California is just about less than a third of what it is in the rest of the United States. In California, patients get their money faster. Cases in California settle 23 percent faster than in States without caps on noneconomic damages. MICRA allows patients to obtain health care costs, recover for loss of income, and receive the funds they need to be rehabilitated. And California's malpractice premiums are now one-third to one-half lower on average than those in Florida and New York. The proposal I would put out for people to study today takes those parts of MICRA which I thought could serve as a national model. For example, a schedule of attorney's fees; a strict statute of limitations requiring that medical negligence claims be brought within 1 year from the discovery of an injury or within 3 years of the injury's occurrence; the requirement that a claimant give a defendant 90 days' notice of his or her intent to file a lawsuit before a claim can actually be filed; allowing defendants to pay damage awards in periodic installments; and allowing defendants to introduce evidence at trial to show that claimants have already been compensated for their injuries through workers' compensation benefits, disability benefits, health insurance, or other payments; and permitting the recovery of unlimited economic damages. All of these points are now in play in California. I believe they are applicable nationally. The differences from the California MICRA that I would propose would be in two key areas. The first is noneconomic damages, and the second would be punitive damages. The California MICRA law has a $250,000 cap on noneconomic damages. That is what is proposed in the pending bill. In contrast, I would propose a national $500,000 flex cap, a general cap on noneconomic damages. This cap would allow a State to impose a lower or a higher limit, but it would be pivotal for those States where the State laws do not currently allow a State to set a cap. This would allow in those States for the cap to be $500,000. In catastrophic cases where a victim of malpractice was subject to severe disfigurement, severe disability, or death, the cap would be the greater of $2 million or $50,000 times the number of years of life expectancy of the victim. This handles the situation of a very young victim who was really the victim of egregious malpractice. In addition, my proposal would have less onerous punitive damages standards than California law. California law would require a plaintiff to prove punitive damages under the very high standard of fraud, oppression, or malice. Under this standard, I am not aware of a single case where a plaintiff has obtained punitive damages in California over the past 10 years. However, if the State wanted to keep that--any State--they could under my proposal. But I would offer a four-part test where a plaintiff would have to show by clear and convincing evidence that the defendant (1) intended to injure the claimant unrelated to the provision of health care; (2) understood the claimant was substantially certain to suffer unnecessary injury, and in providing or failing to provide health care services, the defendant deliberately failed to avoid such injury; (3), acted with a conscious, flagrant disregard of a substantial and unjustifiable risk of unnecessary injury which the defendant failed to avoid; or, (4), acted with a conscious, flagrant disregard of acceptable medical practices in such circumstances. I firmly believe a variant of this type could lead to a compromise in the Senate, but the AMA and my own medical association, the California Medical Association, both flatly rejected this proposal last year. They refused any cap for noneconomic damages above $250,000 even in catastrophic cases. To me this makes little sense because a $250,000 cap in 1975, which was when the cap was put in play in California, adjusted for inflation, was worth $839,000 in 2002. If $250,000 was adequate in 1975, why wouldn't a figure of a half a million dollars-- $500,000--which is lower than the cap adjusted for inflation, be acceptable in 2004? If a victim receives $250,000 today, it is the equivalent of $40,000 in 1975 dollars. There are many specific instances of why a $250,000 noneconomic damage, especially today, remains too low. Let me just give you one case. I happened to meet this woman, and it is a case that I think makes my argument irrevocably. It is the case of Linda McDougal. She is 46. She is a Navy veteran, an accountant, and a mother. She was diagnosed with an aggressive form of cancer and underwent a double mastectomy. Two days later, she was told that a mistake was made. She didn't have cancer, and the amputation of her breasts was not necessary. A pathologist had mistakenly switched her test results with another woman who had cancer. A cap on noneconomic damages must take into account severe morbidity produced by a physician's mistake, such as amputating the wrong limb or transfusing a patient with the wrong type of blood. I remain a supporter of malpractice insurance reform. If at any time there would be physician support, I believe then the necessary 60 votes in this body could be generated for a plan such as I have just enumerated. In conclusion, I will vote against this bill but stand ready to participate in a solution along the lines I have mentioned. I thank the Chair, and I thank the Senator from Delaware.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to join my colleagues, Senator Snowe and Senator Wyden, to support the bipartisan Medicare Enhancement for Needed Drugs Act. This legislation is an important step toward controlling the spiraling cost of prescription drugs for America's seniors. Last November, I voted in favor of the Medicare Prescription Drug Improvement and Modernization Act because I believed it was the right step toward finally delivering on a promise Congress made to its seniors to modernize Medicare by providing prescription drug coverage in the nearly 40-year-old program. I personally ran the numbers and looked at a variety of options to add a prescription drug benefit in Medicare, but I decided to support the final bill that was passed last November and signed into law in December because I felt it would make a genuine, positive difference for the seniors in my State, particularly those with low incomes or very high drug bills. The key to the Medicare bill is that the prescription drug coverage is voluntary. No senior will be forced to enroll in drug coverage in Medicare, also called Medicare Part D. Those who do will receive assistance from the Federal Government for their drug bills up to $2,250 in total drug costs and will only pay 5 percent of their drug costs above $3,600 in out-of-pocket spending. I have said several times on the floor of the Senate that I was dismayed at a provision in the bill that prohibits the Secretary of Health and Human Services from negotiating lower prescription drug prices. Similarly, I said that I would take action to remove this provision and work toward lowering costs of the program. I feel strongly that savings to the Medicare Program can be achieved by provisions in the Medicare Enhancement for Needed Drugs Act. Now is the time to find solutions that reduce the cost of prescription drugs for our Nation's seniors and for the future of Medicare. I know seniors in my State who have had to make the terrible choice of paying for their prescription drugs and paying for rent and groceries. In the end, many skip or reduce their dosages putting their health at risk. That is simply unacceptable. This bill represents a comprehensive approach to strengthening the drug coverage in the Medicare bill by addressing the skyrocketing drug costs. First and foremost, the bill strikes language in the Medicare bill called the ``noninterference'' provision. That section bars the HHS Secretary from interfering with the negotiations between drug manufacturers and pharmacies and sponsors of prescription drug plans. I strongly believe that the Secretary should be given the authority similar to that of other Federal entities that purchase prescription drugs in bulk to negotiate contracts with manufacturers of covered part D drugs. CBO estimates that the effect of striking the ``noninterference'' provision would have a ``negligible effect'' on Federal spending because the savings CBO predicts private plans will be able to obtain will be greater than what the Secretary will be able to achieve. However, what if CBO's predictions are not the reality and private plans cannot achieve the lowest prices available? What if competition among private plans does not bring about greater cost savings? In that scenario, the HHS Secretary would not be able to step in and use the full force of the Federal Government's bulk purchasing power to lower prescription drug prices. A 2001 inspector general's report from the Department of Health and Human Services found that the Department of Veterans' Affairs, VA, paid an average of 52 percent less for a list of two dozen drugs than did Medicare. The VA employs a number of cost-saving techniques such as using generics whenever available and substituting high-priced medications with just as effective ones for lower prices. I strongly believe that the Federal Government should employ the cost-saving techniques for Medicare as the VA does for the acquisition of prescription drugs. As an incentive to participating Medicare drug plans to negotiate the lowest possible drug prices, the bill allocates $500 million from the Medicare Stabilization Fund to be used by the HHS Secretary for those plans to secure negotiated prices that are on average within 10 percent of VA or Department of Defense. In order to ensure that seniors can make an ``apples to apples'' comparison when determining which drug plan suits them best, the bill requires that the Centers for Medicare and Medicaid Services, CMS, determine the negotiated savings received from each plan. The bill makes a significant step toward increasing access to lower cost reimported prescription drugs by ensuring access to these markets. It prohibits any company that discriminates publicly, privately or otherwise against foreign retailers or wholesalers who pass along discounts to consumers living in the United States from taking advantage of the advertising deduction allowed under the U.S. Tax Code. The purpose of this provision is to stop the practice of drug manufacturers limiting their shipments to foreign countries expressly to prevent reimportation by American consumers. I have heard concerns raised by many of my constituents about the impact the Medicare bill will have on their medigap plans. This bill directs the HHS Secretary to work with the National Association of Insurance Commissioners to conduct a review of the changes to the medigap policies in the new drug benefit for the purpose of evaluate its impact on Medicare beneficiaries. CBO projects that Americans over 65 will spend $1.8 trillion on prescription drugs over the next 10 years. Recent studies of United States and Canadian drug price comparisons show that, on average, prices charged by manufacturers, wholesalers, and retailers were higher in the United States, most recently by about 70 percent. If we do not address the exorbitant costs of prescription drugs in this country today, we threaten the viability of programs like Medicare for future generations. I am pleased to join Senators Snowe and Wyden in the fight for lower prescription drug prices for our seniors. I urge my colleagues to join me in supporting this important legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I take a few minutes today to talk about the transportation reauthorization bill before the Senate and why it is so important that we deliver a strong, well-rounded bill to our States. This bill authorizes the largest increase of funds for California over 6 years since I have been in the Senate. That increase is $6 billion for California roads over the next 6 years. As a donor State, California sends more tax dollars to Washington, DC, than we receive back. This bill over the next 6 years would greatly improve that status. For the first time, this bill brings California, and all donor States, to a 95 percent rate of return. California is currently at a 90 percent rate of return. In other words, for every dollar California sends to Washington, it gets back only 90 cents for maintenance and improvement of our highways. This bill would allow California to receive 95 cents back on the dollar in the sixth year of the authorization of the transportation bill. While that increase does not happen as quickly as I would like, this bill provides California with an overall $6 billion increase for important highway programs. As a Californian, transportation is the backbone of our economy. California has two of the Nation's busiest ports--Los Angeles/Long Beach and Oakland, and California ports handle half of all cargo coming into the United States. We need roads that are equipped to handle the flow of goods and the truck traffic that comes with it. Mr. President, three-quarters of all goods shipped from California ports are now transported by truck along California roads. Roads that are in desperate need of repair. Thirty-seven percent of California road conditions are rated ``poor.'' Only 11 percent of roads nationwide have that same rating. On the other hand, only 13 percent of roads in California have a ``good'' rating while 46 percent of roads nationwide have the same classification. At the same time, travel on California roads increased 97 percent between 1980 and 2000, while population increased 42 percent in the same period. We are all familiar with pictures of California gridlock. Cars sitting on our freeways, moving at a snail's pace. The facts bear out the images. Los Angeles has had the worst traffic in the nation for 16 years in a row. San Francisco and Oakland are tied with Atlanta and Washington for second place. San Diego ranked sixth. Traffic congestion in California costs motorists $20.4 billion annually in lost time and fuel. All this in a State that has six non-attainment air quality areas, with 70 percent of the State in the reformulated gasoline program because our air is so dirty. California needs an infusion of cash to pay for highway enhancements to allow an easier flow of traffic to reduce the amount of time trucks and cars are idling, increasing air pollution. That is just one step we can take to allow communities in my State to reach air quality attainment. We also need money for public transit to reduce the amount of cars on the road, reducing air pollution, and decreasing the amount of time my constituents have to spend commuting every day. California has some of the largest regional transportation systems in the country including the Bay Area Rapid Transit, BART, CalTrain, the rail service between San Francisco and San Jose, and Metrolink, Southern California's regional transit system. My State is facing a crisis. Without Federal highway dollars my local communities will not be able to eliminate bottlenecks on our highways to improve air quality. As a result, they will be out of conformity with Federal air quality regulations, and will lose even more Federal highway dollars. This will become a never-ending cycle. Without money they can't conform, and without conforming they can't get money. California also needs this bill for economic reasons. According to the Department of Transportation, each $1 billion in new infrastructure investment creates 47,500 new jobs: 26,500 of these are directly related to construction, engineering, contracting, and other on-site employees, and 21,000 are indirect jobs resulting from the spending associated with the investment. We would not have to wait long to feel the benefits of this transportation bill. Transportation construction contractors hire employees within a few weeks of obtaining a project contract. These employees begin receiving paychecks within 2 weeks of hiring. In other words, if the bill is passed tomorrow, three weeks from now construction sites would be bustling with activity. We can't afford to delay. In an economic recovery that has so far been jobless, the Federal Government must do what it can to create jobs. Improving our transportation infrastructure is one of the critical things we can do to create all sorts of jobs. According to the California Employment Development Department, job growth in the coming year in California will be a dismal 1 percent about 142,000 jobs in all--barely more than half the 10 year average. California needs a robust transportation bill to help clean the air, ease congestion on the roads, and create jobs.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I thank the chairman of the Intelligence Committee for his remarks. I think he well and ably set out the structure of what we are doing. I also thank Senator Lott for his remarks, particularly the remarks that said we should work together. That has been one of the problems. I want to go into that. But before I do, I would like particularly to thank the Senator from Florida, the former chairman of the Senate Select Committee on Intelligence, for his three speeches. I had the privilege of previewing these. I think he delivered them eloquently and forcefully. I want him to know I very much appreciate his careful scholarship and his reasoned approach, which mark not only his remarks here but also his tenure as chairman of the Intelligence Committee. He has presided over what continues to be one of the most difficult chapters in the history of our intelligence community. Senator Lott has just said, with considerable spark, that we should work together. I could not agree more. Second, the committee has been prevented from examining the use of intelligence by policymakers. This I believe is a real problem. Our own resolution sets out that we should be able to examine the use of intelligence by policymakers and administration officials. To a great extent this is the reason we are here today creating an independent commission which will have more authority than the elected officials of this Government have. I learned this morning that the independent commission that is functioning today has access to the President's daily intelligence briefs. The Intelligence Committee of the Senate does not have access to the President's daily intelligence briefs, nor have we had, to the best of my knowledge, through this investigation. I was very pleased to see that over the past weekend the President has apparently reversed course, accepting the recommendations from Dr. Kay, from Members of the Senate, and from a host of experts to the effect that only a full and outside investigation will be able to be both credible and acceptable to the world at large. I did not believe so before. I voted against the Corzine resolution when it came up before. I changed my mind because if we, the elected representatives, are not permitted to look into the use of intelligence as provided by S. Res. 400, and it has to be an outside committee that will have that right, so be it. But I find it to be really idiosyncratic, because I believe the full power should be vested in the officials of our Government, of which the Senate plays a very major role, not necessarily always an independent committee, as it appears to be happening. Such a commission, though, will be able to remove some of the partisanship that has infected this issue and, I hope, provide a reasoned, careful, and credible assessment. I am concerned that the President has let it be known he intends to appoint all of the members of the commission and carry this out through Executive Order. This I believe will adversely affect the commission's independence. Let me give you an example. Many believe the handling of the National Commission on Terrorist Attacks on the United States--that is a Commission now functioning--headed by Gov. Thomas Keane and Congressman Lee Hamilton, is a case in point. There have been many reports that chronic delays in providing documents and foot dragging in arranging interviews have frustrated the efforts of this Commission to complete its work within the timeline the White House insisted upon. The Commission is asking for an extension of time and Senators McCain and Lieberman have introduced legislation to do so. I understand the President yesterday agreed to extend this timetable to July 26 of this year. I strongly believe the Commission should be given whatever time it needs to complete its examination and we, in fact, should pass the McCain-Lieberman bill. Nevertheless, it is my hope that a commission, whether it is created by Executive order or by statute, will be able to answer four questions. The first is: Were the prewar intelligence assessments of the dangers posed by Saddam Hussein's regime wrong? This is not as simple a question as it seems, for in the months prior to the invasion of Iraq these assessments had two separate, equally important parts. The first is whether Iraq had the capability to place the United States in such danger as to warrant the unprecedented step of a unilateral preemptive invasion of another sovereign nation. Just two days ago Secretary Powell, asked if he would have recommended an invasion knowing Iraq had no prohibited weapons, replied: ``I don't know because it was the stockpile that presented the final little piece that made it more of a real and present danger and threat to the region and to the world.'' He added: ``The absence of a stockpile changes the political calculus; it changes the answer you get.'' Second, was such a threat imminent or was it grave and growing? Critical to this debate during the Summer and Fall of 2002 was the immediacy of the threat which supported the argument that we needed to attack quickly, could not wait to bring traditional allies aboard or to try other options short of invasion. The second question is: Whether the intelligence assessments were bad as well as wrong. This requires a fine distinction between an intelligence assessment that is wrong, and one that is bad. Intelligence assessments are often wrong, for by their nature they are an assessment of the probability that a future event will take place. But wrong does not always mean bad. Sometimes an intelligence assessment follows the right logic and fairly assesses the amount, credibility and meaning of collected data, and still is wrong. What the independent commission needs to do is to separate these two different, but related, issues. The third question is to determine--if the intelligence assessment was both bad and wrong--to what degree and why? Did the intelligence community negligently depart from accepted standards of professional competence in performing its collection and analytic tasks? Was the intelligence community subject to pressures, personal or structural, which caused it to reach a wrong result through bad analysis? Were the ordinary internal procedures by which intelligence is subject to peer review properly carried out? A commission must delve deeply into the mechanisms of intelligence analysis to reach these answers. The fourth and final question is whether the intelligence assessments reached by the intelligence community, whether right or wrong, good or bad, were fairly represented to the Congress and to the American people. Did administration officials speaking in open and closed session to members of Congress accurately represent the intelligence product that they were relying upon? Were public statements, speeches and press releases, fair and accurate? This is the cauldron boiling below the surface. This final question is particularly grave, because it touches upon the constitutionally critical link between the executive and legislative branches. The Founders knew what they were doing when they developed a shared responsibility for war making--only Congress can declare war, with the President, as Commander in Chief, conducting it--and the need is vital for Members of Congress to have fairly presented, timely and accurate intelligence when they consider whether to invest the President with the authority as Commander in Chief to put American lives, as well as those of innocent civilians, at risk. My vote, in particular, was based largely on intelligence, and statements about that intelligence, related to Saddam's certain possession of chemical and biological weapons and the probability or likelihood, that he had both weaponized and deployed them. Also, the fact that he had violated the U.N. missile restrictions and possessed a delivery system for a chemical or biological warhead, and could deliver that warhead 600 miles, threatening other Middle Eastern nations or perhaps, from offshore, the United States. There were many statements made by the administration that when combined with the intelligence created an overwhelming case, I think particularly for me and for many others. I don't think there would have been 77 votes in the Senate to authorize use of force had these statements not been made. Let me give just five examples of such statements: Secretary of State Powell, on September 8, 2002, said on Fox News Sunday: ``There is no doubt that he has chemical weapons stocks.'' He also said: ``With respect to biological weapons, we are confident that he has some stocks of those weapons, and he is probably continuing to try to develop more.'' President Bush, on September 12, 2002, said in his address to the U.N. General Assembly: ``Right now, Iraq is expanding and improving facilities that were used for the production of biological weapons.'' President Bush, in his October 7, 2002, address also said: ``We know that the regime has produced thousands of tons of chemical agents, including mustard gas, sarin nerve gas, and VX nerve gas.'' Secretary Powell, again in his February 5, 2003, address to the U.N. Security Council, said: Our conservative estimate is that Iraq today has a stockpile of between 100 and 500 tons of chemical weapons agent. That is enough agent to fill 16,000 battlefield rockets. Even the low end of 100 tons of agent would enable Saddam Hussein to cause mass casualties across more than 100 square miles of territory, an area nearly 5 times the size of Manhattan . . . when will we see the rest of the submerged iceberg? Saddam Hussein has chemical weapons. Saddam Hussein has used such weapons. And Saddam Hussein has no compunction about using them again, against his neighbors and against his own people. What a strong statement--a statement that has to be backed up with almost certain facts. President Bush said, on October 2, 2002, in Cincinnati: ``Facing clear evidence of peril, we cannot wait for the final proof, the smoking gun that may come in the form of a mushroom cloud.'' I remember hearing this speech, which made a deep impression upon me. The President of the United States said this. Members of the Intelligence Committee are looking at intelligence. When combined with the President's statements, the statements of the Secretary of State and the statements of the Vice President, how can you not believe them? That is why this committee's investigation into the use of intelligence which we have been prohibited from entering into is so important that we do. We are the official people's representatives on this Committee on Intelligence, and to cut us out from one part of an investigation that our own resolutions say we should look at, I think, is unconscionable. When all of this is combined with the intelligence provided to Congress, the aerial photographs of what was believed to be chemical weapons plants, and the National Intelligence Estimate of October 2002, this information created an overwhelming belief that there was an imminent threat to our Nation, and a dominant majority of the Senate of the United States voted for the resolution authorizing the use of force. You can imagine my surprise that after more than 1,500 sites--top priority sites--have been searched and millions of dollars spent on Dr. Kay's special investigation, no weapons have been found. And Dr. Kay submits to us that he does not believe any will be found. So the reality of what has been learned in Iraq versus the intelligence presented to us causes enormous concern. Again, I truly believe that had it not been for the strength of the intelligence and statements made to Congress, including the Senate Select Committee on Intelligence, a vote for regime change alone, without the belief of an imminent threat, would not have had the majority it did, may well not have passed, and if it did, most likely would have passed with a bare majority. These statements and the intelligence upon which they were based now appear to be unsupported by the available evidence, and have been contradicted by Dr. Kay's findings. A commission must look closely at these and other similar statements. Even as the commission moves forward, I believe Congress should undertake two related tasks. The first is to carefully review the implications of the President's so-called preemption doctrine. I have strongly criticized this policy since its inception. Although, clearly, the United States will always retain the right to defend itself in specific circumstances from a real, imminent threat, preemption as a doctrine departs from core American values. We must be strong in defense but not allow this country to become an aggressive nation of conquest. I also believe the doctrine runs counter to 50 years of bipartisan American foreign policy, which is based on the belief that international law, multilateral agreements, and diplomacy are also effective means to promote and to protect American security. Finally, and on a more fundamental and practical level, the doctrine requires a faith in the perfectibility of intelligence analysis that is simply not attainable. Preemption inherently requires us to be right every time on the nature and imminence of threats. Unfortunately, as every senior intelligence official to whom I have spoken tells me, intelligence is rarely going to be that accurate, for the very reason I have mentioned earlier it is, at its heart, probability analysis. This past weekend, Dr. Kay spoke to this issue, saying, and I quote, ``if you cannot rely on good, accurate intelligence that is credible to the American people and to others abroad, you certainly can't have a policy of preemption.'' The preemptive concept bets everything on one roll of the dice and we had better be right every time. I spoke about this when the doctrine was announced and offered the hypothetical of a preemptive attack based on intelligence that was wrong, that results in destruction and death, and undermines American credibility and our position around the world. The hypothetical, so far, at least, is true in Iraq. I hope the President and his advisers will reconsider the ill-advised adoption of preemption in light of what we have already learned from its first exercise. The second thing the Congress should do, and do now, is begin the process of restructuring the intelligence community and begin by taking a single, critical step: Pass legislation creating a Director of National Intelligence and change from the current situation where a single man is both head of the entire intelligence community--with its 15 departments and agencies--and the head of the Central Intelligence Agency. It is an impossible job with insufficient authority. I have introduced legislation that would accomplish this in both the 107th and 108th Congresses. Each time I stood on this floor to urge its passage and each time I expressed my belief that the current structure could result in a colossal intelligence failure. In June of 2002, I said: ``This legislation creates the Director of National Intelligence to lead a true intelligence community and to coordinate our intelligence and anti-terrorism efforts and help assure the sort of communication problems that prevented the various elements of our intelligence community from working together effectively before September 11 never happen again.'' I fear it has happened again. Once more, I stand in the Senate to urge the passage of the legislation. It has to be pointed out that our present intelligence structure for the most part is based on a post-World War II, cold-war environment. It is not suited for the new challenges of asymmetric threats and non- state entities, as well as quite possibly from states also involved in terrorism. We have a Soviet-era intelligence community in a post-Soviet world. We need to have a Director of National Intelligence now more than ever and we should not wait any longer for the results of another commission. I remind my colleagues that creating a Director of National Intelligence was the very first recommendation of the bipartisan Joint Inquiry into the Attacks on September 11, a recommendation contained in a report signed by every member of the Intelligence Committees of the Senate and the House. Senator Graham spoke earlier about this provision, and I agree with his explanation of the pressing need for the change. Such a position, if created today, would provide substantial improvement in the function and quite possibly the restructuring of the more than one dozen agencies and departments. It would give one person, appointed by the President for a 10-year term, the statutory authority to determine strategies across the board, to set priorities, and to assign staff and dollars across departments and agencies. It is my understanding the Senate Select Committee on Intelligence will take up this legislation in 2004, I am told, in April. It is my hope that working together we can include this legislation as part of the Intelligence Authorization Act for fiscal year 2005 and make it law this Spring. As I have said earlier, the so-called ``bipartisan'' investigation by the Senate Select Committee on Intelligence has had little effective participation by Democratic Senators, or their staffs. In fact, in many ways had the Intelligence Committee been able to carry out its responsibilities, as set for in Senate Resolution 400, much of the debate on the floor on this issue would be unnecessary. Nonetheless, I look forward to this afternoon when the report will be made available to committee members. I deeply believe that the Senate Select Committee on Intelligence should turn its attention to its core responsibilities--conducting vigorous oversight of the intelligence community, and carefully considering legislation to make necessary changes. To that end I urge Chairman Roberts to take up legislation restructuring the Intelligence Community, including, but not limited to, my bill to create a Director of National Intelligence, hold comprehensive hearings on these proposals, and report out legislation in time for inclusion in this year's Intelligence Authorization bill. As I have said earlier, my vote in favor of the resolution to authorize the use of force in Iraq was perhaps the most difficult, and consequential, vote of my career. It was a decision based on hours of intelligence briefings from administration and intelligence officials, plus the classified and unclassified versions of the National Intelligence Estimates. My decision was in part based on my trust that this intelligence was the best our Nation's intelligence services could offer, untainted by bias, and fairly presented. It was a decision made because I was convinced that the threat from Iraq was not only grave but imminent. Because of my vote, and the votes of the 76 other Senators who voted for the resolution, our troops are stuck in Iraq, under fire, and taking casualties. Our armed forces are stretched thin; we have antagonized our enemies and alienated many of our closest allies. In the post-9/11 world, a world where we confront asymmetric threats every day, intelligence plays a key role informing the policy-making process. The administration bears primary responsibility for our intelligence apparatus--ensuring that it works well, is honest, and is properly focused. The administration is also responsible for honestly and fairly presenting the results of the intelligence process to the Congress, informing, for instance our vote on the resolution to authorize force. I now fear that the threat was not imminent, that there were other policy options, short of war, that would have effectively met the threat posed by Saddam Hussein. And that is why a full investigation of the prewar intelligence is so critical.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I would like a half hour.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to offer legislation to provide lawful permanent residence status to Jose Buendia Balderas, Alicia Aranda De Buendia and Ana Laura Buendia Aranda, Mexican nationals who live in the Fresno area of California. I have decided to introduce legislation on their behalf because I believe this family is deserving of an exception. Firstly, an immigration judge has granted the family relief, only to have that decision overturned by the Board of Immigration Appeals. Immigration Judge Polly A. Webber heard that Jose Buendia and his wife, Alicia Aranda de Buendia, should be granted cancellations of removal under the Immigration and Nationality Act. In her decision, Immigration Judge Webber stated that she felt that the Buendias 9-year-old son would face exceptional and extremely unusual hardship if the family was deported from the United States. The immigration judge's decision was based on testimony taken from Jose and Alicia Buendia, as well as Alicia Buendia's sister, who is a lawful permanent resident. The immigration judge found that if the Buendia's son ``wanted to go to school in Mexico past sixth grade, he would have major obstacles in being able to do so, which the Court can only take as extreme hardship in terms of 2-hour transportation that may or may not be available, separation from parents, perhaps having to live in a strange environment with strange people, moving away from his relatives in the United States . . . being subjected to substandard health care, economic instability, and poor living conditions.'' Unfortunately, the Board of Immigration Appeals overturned the immigration judge's decision. In a one paragraph decision the Board of Immigration Appeals concluded ``that the respondent failed to establish the required hardship to his United States citizen son, who was age 9 at the time of the hearing.'' That one sentence was the basis for overturning an immigration judge's decision. Secondly, Mr. Buendia attempted to legalize his immigration status but was not successful due to an unscrupulous lawyer and a misinterpretation by the Immigration and Naturalization Service concerning applicants eligibility to apply for legalization under the 19876 amnesty law. Because Mr. Buendia has been in this country for so long, he qualified for legalization pursuant to the Immigration and Reform Control Act of 1986. Unfortunately his legalization application was never acted upon. One reason it was not acted upon is because his attorney, Jose Velez, was convicted of fraudulently submitting legalization and Special Agricultural Worker applications. Because of the criminal conviction, all of Mr. Velez's applications were suspect. Although Mr Buendia's application under the legalization program was found not to contain any fraudulent documentation associated, here began his problems. Mr. Buendia's legalization application was flagged under Operation Desert Deception, a large-scale investigation which targeted providers of fraudulent applicants and documentation under the legalization and Special Agricultural Workers program. Dozens of people, including INS officers, were convicted of legalization fraud, bribery or tax evasion. At the time of filing Mr. Buendia's application with the Immigration and Naturalization Service the attorney, Jose Velez, was under investigation. Although Mr. Buendia qualified for legalization because he arrived in the United States prior to January 1, 1982 he was not able to attend his interview in 1990 due to the investigation into his attorney. Thirdly, it took the Immigration and Naturalization Service nearly 7 years to make a finding concerning his case. He was originally scheduled to be interviewed in June of 1990 on his application for legalization. The official Memo to File by the Immigration and Naturalization Service determining Mr. Buendia's application contained no fraudulent information was not posted until January 1997. Fourthly, in the intervening years another problem arose. An interpretation by the Immigration and Naturalization Service as to the application of the law to legalization cases such as Mr. Buendia's. Because Mr. Buendia departed the United States in 1987 to marry his wife in Mexico, the Immigration and Naturalization Service stated he was no longer eligible for legalization when it again reviewed his application in 1997. This issue was litigated in CSS v. Meese and Mr. Buendia was a class member in this lawsuit. Unfortunately this lawsuit provide unhelpful to Mr. Buendia because the end result of the litigation was a much more limited class of eligible applicants. Finally, and of substantial importance, this family has been here for 17 years and built a life here. The Buendias own property, are hard workers, are community minded and have two children in school--one of whom is a U.S. citizen. Mr. Buendia is a valued employee of Bone Construction. He has been employed by this cement company for the past 5 years. He has proven himself, rising to become a lead foreman. His employer, Timothy Bone, says Mr. Buendia is a ``reliable, hardworking and conscientious'' employee. Mr. Buendia has an exemplary work history. From 1981 to 1989 he worked for Ascension Hernandez as a landscaper in League City, TX. Thereafter he moved to Las Vegas, NV where he continued to work in landscaping. In 1990 he and his family settled in Reedly, CA where he began working in construction. Knowing nothing about construction, having a background in landscaping, Mr. Buendia was disciplined and persistent in his training and is now a lead foreman for a cement construction company. Mr. Buendia is such a hard worker that he even has his own cement company, which he works on weekends. Alicia Buendia, Jose Buendia's wife, works as a seasonal fruit packer. Cliff Peters, the owner of Wildwood Orchards where Alicia Buendia worked during the 2003 season, says she is ``a hard worker, dependable, and consistently did a good job.'' He added that work would be available to her on an ongoing seasonal basis. Mrs. Buendia has worked as a seasonal fruit packer for several years. Their daughter, Ana Laura, is in the 10th grade at Reedley High School where she has earned a 4.0 GPA which shows she is a highly motivated student. An important consideration in this case is that Ana Laura was brought to the United States by her parents when she was only 2 years old. Ana Laura, who will be 16 years old this year, has known no other country than the United States. She believes she is an American. But now she is told she must return to Mexico, a country she has never lived in. The Buendia's son, Jose, who was born in the United States, is in 8th grade. Like his sister, this is the only country he knows. Ana Laura and Jose's elementary school principal speaks highly of not only the children but the Buendias. This even though the children are now in high school. Mary Ann Carousso, principal, says in an e-mail to my office, ``I can tell you that I have rarely met 2 more active, concerned, supportive parents than Alica [sic] and Jose Buendia! . . . I don't think they ever missed a parent club meeting.'' Principal Carousso also says that ``Both Jose and Alicia continued to help at our school for several years after their youngest child had graduated . . . Jose, Sr. frequently hauled chairs across a dark parking lot at 9:00 p.m. at night following a parent club meeting . . . He often talked about what parents should be doing to help the school out so that excess money didn't have to be spent on simple construction projects. Alicia is a mom who just never says no to requests for help.'' With that type of endorsement it seems to me we should be thankful to have such involved parents in our communities. This family has embraced the American dream, and I believe they should be allowed to continue to live in this country. If this legislation is approved, the Buendias will be able to continue to make significant contributions to their community and the United States. It is my hope that Congress passes this private legislation. I ask unanimous consent numerous letters of support our office has received from members of the Reedley community be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to offer legislation to provide lawful permanent residence status to Jose Buendia Balderas, Alicia Aranda De Buendia and Ana Laura Buendia Aranda, Mexican nationals who live in the Fresno area of California. I have decided to introduce legislation on their behalf because I believe this family is deserving of an exception. Firstly, an immigration judge has granted the family relief, only to have that decision overturned by the Board of Immigration Appeals. Immigration Judge Polly A. Webber heard that Jose Buendia and his wife, Alicia Aranda de Buendia, should be granted cancellations of removal under the Immigration and Nationality Act. In her decision, Immigration Judge Webber stated that she felt that the Buendias 9-year-old son would face exceptional and extremely unusual hardship if the family was deported from the United States. The immigration judge's decision was based on testimony taken from Jose and Alicia Buendia, as well as Alicia Buendia's sister, who is a lawful permanent resident. The immigration judge found that if the Buendia's son ``wanted to go to school in Mexico past sixth grade, he would have major obstacles in being able to do so, which the Court can only take as extreme hardship in terms of 2-hour transportation that may or may not be available, separation from parents, perhaps having to live in a strange environment with strange people, moving away from his relatives in the United States . . . being subjected to substandard health care, economic instability, and poor living conditions.'' Unfortunately, the Board of Immigration Appeals overturned the immigration judge's decision. In a one paragraph decision the Board of Immigration Appeals concluded ``that the respondent failed to establish the required hardship to his United States citizen son, who was age 9 at the time of the hearing.'' That one sentence was the basis for overturning an immigration judge's decision. Secondly, Mr. Buendia attempted to legalize his immigration status but was not successful due to an unscrupulous lawyer and a misinterpretation by the Immigration and Naturalization Service concerning applicants eligibility to apply for legalization under the 19876 amnesty law. Because Mr. Buendia has been in this country for so long, he qualified for legalization pursuant to the Immigration and Reform Control Act of 1986. Unfortunately his legalization application was never acted upon. One reason it was not acted upon is because his attorney, Jose Velez, was convicted of fraudulently submitting legalization and Special Agricultural Worker applications. Because of the criminal conviction, all of Mr. Velez's applications were suspect. Although Mr Buendia's application under the legalization program was found not to contain any fraudulent documentation associated, here began his problems. Mr. Buendia's legalization application was flagged under Operation Desert Deception, a large-scale investigation which targeted providers of fraudulent applicants and documentation under the legalization and Special Agricultural Workers program. Dozens of people, including INS officers, were convicted of legalization fraud, bribery or tax evasion. At the time of filing Mr. Buendia's application with the Immigration and Naturalization Service the attorney, Jose Velez, was under investigation. Although Mr. Buendia qualified for legalization because he arrived in the United States prior to January 1, 1982 he was not able to attend his interview in 1990 due to the investigation into his attorney. Thirdly, it took the Immigration and Naturalization Service nearly 7 years to make a finding concerning his case. He was originally scheduled to be interviewed in June of 1990 on his application for legalization. The official Memo to File by the Immigration and Naturalization Service determining Mr. Buendia's application contained no fraudulent information was not posted until January 1997. Fourthly, in the intervening years another problem arose. An interpretation by the Immigration and Naturalization Service as to the application of the law to legalization cases such as Mr. Buendia's. Because Mr. Buendia departed the United States in 1987 to marry his wife in Mexico, the Immigration and Naturalization Service stated he was no longer eligible for legalization when it again reviewed his application in 1997. This issue was litigated in CSS v. Meese and Mr. Buendia was a class member in this lawsuit. Unfortunately this lawsuit provide unhelpful to Mr. Buendia because the end result of the litigation was a much more limited class of eligible applicants. Finally, and of substantial importance, this family has been here for 17 years and built a life here. The Buendias own property, are hard workers, are community minded and have two children in school--one of whom is a U.S. citizen. Mr. Buendia is a valued employee of Bone Construction. He has been employed by this cement company for the past 5 years. He has proven himself, rising to become a lead foreman. His employer, Timothy Bone, says Mr. Buendia is a ``reliable, hardworking and conscientious'' employee. Mr. Buendia has an exemplary work history. From 1981 to 1989 he worked for Ascension Hernandez as a landscaper in League City, TX. Thereafter he moved to Las Vegas, NV where he continued to work in landscaping. In 1990 he and his family settled in Reedly, CA where he began working in construction. Knowing nothing about construction, having a background in landscaping, Mr. Buendia was disciplined and persistent in his training and is now a lead foreman for a cement construction company. Mr. Buendia is such a hard worker that he even has his own cement company, which he works on weekends. Alicia Buendia, Jose Buendia's wife, works as a seasonal fruit packer. Cliff Peters, the owner of Wildwood Orchards where Alicia Buendia worked during the 2003 season, says she is ``a hard worker, dependable, and consistently did a good job.'' He added that work would be available to her on an ongoing seasonal basis. Mrs. Buendia has worked as a seasonal fruit packer for several years. Their daughter, Ana Laura, is in the 10th grade at Reedley High School where she has earned a 4.0 GPA which shows she is a highly motivated student. An important consideration in this case is that Ana Laura was brought to the United States by her parents when she was only 2 years old. Ana Laura, who will be 16 years old this year, has known no other country than the United States. She believes she is an American. But now she is told she must return to Mexico, a country she has never lived in. The Buendia's son, Jose, who was born in the United States, is in 8th grade. Like his sister, this is the only country he knows. Ana Laura and Jose's elementary school principal speaks highly of not only the children but the Buendias. This even though the children are now in high school. Mary Ann Carousso, principal, says in an e-mail to my office, ``I can tell you that I have rarely met 2 more active, concerned, supportive parents than Alica [sic] and Jose Buendia! . . . I don't think they ever missed a parent club meeting.'' Principal Carousso also says that ``Both Jose and Alicia continued to help at our school for several years after their youngest child had graduated . . . Jose, Sr. frequently hauled chairs across a dark parking lot at 9:00 p.m. at night following a parent club meeting . . . He often talked about what parents should be doing to help the school out so that excess money didn't have to be spent on simple construction projects. Alicia is a mom who just never says no to requests for help.'' With that type of endorsement it seems to me we should be thankful to have such involved parents in our communities. This family has embraced the American dream, and I believe they should be allowed to continue to live in this country. If this legislation is approved, the Buendias will be able to continue to make significant contributions to their community and the United States. It is my hope that Congress passes this private legislation. I ask unanimous consent numerous letters of support our office has received from members of the Reedley community be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President. I rise along with Senator Fitzgerald to reintroduce the Infant Crib Safety Act. This legislation is designed to reduce injuries and deaths that come from infant crib accidents. Earch year, about 11,500 children ages 2 and under are injured in cribs seriously enough to require hospital treatment. Approximately, 26 children die a year from such injuries, the highest number of deaths caused by nursery-related products. In fact, according to the Consumer Product Safety Commission, cribs cause more deaths than all other nursery items combined. While strict guidelines exist on the manufacture of and sale of new cribs, there are millions of cribs sold throughout the U.S. in ``secondary markets'' such as thrift stores and resale furniture stores. As many as half of the 4 million infants born in this country each year are placed in second hand cribs. Many of these used cribs are unsafe and should be taken off the market and either repaired or destroyed. These used cribs can have dangerous features such as protruding corner post extensions, missing or broken parts, excessive slat width, poor fitting crib sheets, inadequate mattress supports, latches that do not prevent unintentional collapse of the crib. Cribs built before 1978 have a higher lead content than current regulations allow. Let me give you some of the real life examples of the tragedies caused by unsafe cribs. At the age of 23 months, Danny Lineweaver was injured during an attempt to climb out of his crib. Danny caught his shirt on a decorative knob on the cornerpost of his crib and hanged himself. Though his mother was able to perform CPR the moment she found him, Danny lived in a semi-comatose state for 9 years and died in 1993. In another case, Luke Torgerson, a 13-month-old infant, died due to an unsafe crib at this daycare facility in Minnesota. Parents should have confidence that a crib is a safe place to leave an infant. The design and construction of a baby crib must ensure that it is safe to leave an infant while sleeping. Since cribs are the only juvenile product manufactured expressly for leaving a child unattended, every necessary measure should be taken to ensure that the crib is the safest possible environment. The Infant Crib Safety Act keeps unsafe secondhand or hand-me-down cribs out of the stream of commerce by prohibiting their sale, resale, lease, and use in lodging facilities or day care centers. This bill does not apply to individuals who provide cribs to their friends, or to any type of individual sale of a crib such as at a garage sale. The bill focuses on commercial users. And currently, controls over cribs provided by transient public lodging establishments or sold at thrift stores are non-existent. Studies have shown that hotels and motels continue to use unsafe cribs and thrift stores continue to sell them. In the year 2000, the National Safe Kids Campaign did an investigation of cribs used by hotels and motels. Spot checks by the Campaign identified unsafe cribs in 80 percent of the cribs visited. A year earlier, the Consumer Product Safety Commission found that 12 percent of the cribs sold in a survey of thrift stores did not meet existing voluntary industry or Federal safety standards for new cribs. Comparable legislation has already been adopted by a number of States. Eleven States including Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Oregon, Pennsylvania, Vermont, and Washington have already passed legislation prohibiting the sale of cribs that do not meet current safety standards. There is no good reason why cribs in all 50 States should not meet these reasonable safety standards. The legislation is supported by the Consumer Federation of America and the Danny Foundation. I look forward to working with my Senate colleagues to turn this common-sense legislation into law.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise in favor of the FY04 Omnibus Appropriations Conference Report, despite major concerns I have with how this bill was put together and with a number of items in the bill. Nevertheless, we are faced with an up or down vote. On balance, I believe that the bill is a net positive and I will support it. The best you can say about this bill is that it is a mixed bag. There are items in the bill that are good for California and the Nation, but there are a number of harmful legislative provisions attached to the bill and on a number of issues the administration was allowed by the majority to override the will of the Senate. For example, among the harmful provisions that I hope we can reverse is language which requires next-day destruction of background check records of sales where a gun buyer successfully clears a Brady background check and is permitted to purchase a firearm. I also look forward to the Senate taking action to prevent implementation of the administration's proposed rules on overtime compensation. Before I talk further about the bill, I want to talk about the serious and wholly avoidable problems associated with the process by which we reached a final agreement on this package. The ranking member of the Appropriations Committee and others are correct in highlighting those issues. If for no other reason then that we should avoid them in the future. Senator Byrd is correct when he says that adopting this conference report or facing a year long continuing resolution at FY03 levels are not the only paths out of this impasse. If the majority leadership in the Senate and the House had chosen, we could have worked out the serious concerns that Senators of both parties have with this legislation. We all knew that there are only a handful of major issues. However, the majority did not show any willingness to address overtime pay, country of origin labeling for meat products, media ownership rules, or outsourcing of Federal jobs. Senator Byrd also eloquently laid out in his letter to the majority leader the instances in which the administration, at the eleventh hour, was permitted by the majority to prevail over the will of the Congress. I would like to quote what he wrote: Several very controversial legislative riders were added at the last minute by the Bush White House. Disappointingly, the Republican Congressional Leadership, at the insistence of the White House, capitulated to changes that were not even contemplated when the bills were before the House of Representatives and the Senate. Overriding the will of the Senate, the bipartisan overtime regulation prohibition, which passed the Senate by a vote of 54-45, was dropped. The resulting Bush administration plan would eliminate overtime pay protections for as many as 8 million American workers who currently are eligible for overtime pay. These hard-earned overtime dollars often make the difference between workers providing a better life for their families or just making ends meet. Overriding the will of the Senate and at the behest of the cattle and food marketing industries, the Bush administration actively and officially supported language in the omnibus conference that would delay implementation of mandatory country-of-origin labeling of meat and meat products. Despite the potential danger to American consumers of any delay, the country-of-origin labeling for meat and meat products, enacted as part of the 2002 Farm Bill and scheduled to take effect this fiscal year, would be delayed by two years. Overriding the will of the House and the Senate, the one- year limitation on the FCC media ownership rule was turned into a permanent cap at 39 percent. The practical effect of changes demanded by the White House is to protect Rupert Murdoch's Fox television network and CBS-Viacom from having to comply with the lower 35 percent ownership caps that conferees had included in the original conference report. The White House is boosting special corporate interests at the expense of the people's interest for balanced news and information. Overriding the will of the House and Senate conferees, and again at the Bush administration's insistence, 400,000 Federal workers will lose job protections. During negotiations, Congressional Democrats and Republicans agreed to provide basic protections for federal employees whose jobs have been targeted by the Bush White House for privatization. Because of White House intransigence, those basic protections were dropped. What remains provides so many loopholes for the Bush administration to privatize Federal jobs that little protection is provided for workers. The administration's policies encourage unfair treatment of dedicated public servants, many of whom are being forced into early retirement or the prospect of reduced benefits and lower pay. At this point, the only choice we have is between this omnibus, which funds the Departments of Agriculture, Commerce, Justice, State, Labor, Health and Human Services, Veterans Affairs, Education, Housing and Urban Development, Transportation, and Treasury. Under a year long continuing resolution, these departments would be funded at last year's levels. And as a result, major programs which benefit millions would be severely underfunded, and many needed projects, including hundreds in California, would receive no funding. Indeed, there are a number of items in the bill of particular importance to me and to California that I would like to highlight: $225 million for California wildfire relief and prevention; $85 million for COPS grants for interoperable communications; A 5-year Pilot Program for school choice in Washington, DC; Increased NIH Funding; and Funding for Election Reform. If the Omnibus were not to pass, then none of these programs would receive necessary funding. As we all know, California suffered devastating wildfires last fall. These fires consumed a total of 738,158 acres, killed 23 people, and destroyed approximately 3,626 residences and 1,184 other structures. And this is just the tip of the iceberg. In California, 8.5 million acres of Federal land are at the highest risk of catastrophic fire, so it is critical that we protect our forests and nearby communities and avert a similar catastrophe in the future. That is why I am so pleased that Congressman Jerry Lewis and I were able to secure $225 million in emergency funding. This funding will help prevent mudslides, provide relief for farmers whose crops were burned, and eliminate a million trees killed by the bark beetles. This funding is critical to helping prevent future fires. As we saw in November, trees killed by the bark beetle become kindling in a serious fire, and put homes and lives at risk. Removing them is a necessary first step toward preventing fires like the ones we experienced from happening again. The bill also includes $85 million in grants to help first responders better communicate with each other in times of crisis. In all too many jurisdictions, police, fire and emergency medical service personnel can't communicate with each other over the radio when an emergency occurs. This means slower response times, less coordination between agencies and lives lost. To help remedy this problem, I sponsored an amendment to the emergency spending bill passed last year, which provided $109 million to improve the compatibility of first responders' communications systems. Half of this funding would go to police departments and half would go to fire and emergency departments. And in the Omnibus Appropriations bill there is $85 million in additional COPS grants for interoperable communications for police. There are about 2.5 million public safety first responders who operate in the United States today, stationed in some 18,000 law enforcement agencies, 26,000 fire departments and 6,000 rescue departments. When I speak to representatives of these departments, they tell me that obtaining compatible communications systems is their No. 1 homeland security priority. The need is certainly there. The recent Council on Foreign Relations Independent Task Force on Emergency Responders report on homeland security funding--entitled ``Drastically Underfunded, Dangerously Unprepared''--determined that the minimum interoperable communications need over the next five fiscal years is $6.8 billion. As America continues to confront the threat of terrorism, it will be increasingly important to give our law enforcement, fire and emergency personnel the tools they need to respond to a possible terrorist attack effectively and safely. This will allow fire, police and emergency medical services personnel to better communicate in times of crisis and will ultimately help save lives. I am also pleased that the Omnibus Appropriations bill contains the $40 million DC School Choice plan to provide educational scholarships for 2,000 low-income students in troubled public schools in Washington, DC. Washington, DC, has the third highest per pupil spending in the Nation--$10,852 a year goes to the education of each child. Yet, it has 15 failing schools and some of the lowest test scores in the country. Before supporting Mayor Anthony Williams request for this 5 year pilot program, I thoroughly scrutinized the legislative language as it related to the constitutional safeguards, the criteria, the monitoring--and I believe the program which was ultimately agreed to is balanced, fair, and constitutionally sound. To develop the best program we could and one that would stand a constitutional test, we made certain that the bill contained language that closely follows the Supreme Court decision in Zelman v. Simmons- Harris to help fortify it against legal challenges. We helped ensure that the District would have a fair method of acceptance for students using vouchers in private and parochial schools and that there would be full accountability and sufficient oversight by Mayor Williams. We made sure that the scholarship students would be given the same test that their peers in public schools receive and that their test scores would be evaluated by an unbiased researcher. No money is taken from the public schools. As a matter of fact, $13 million in new money is provided to public schools and $13 million in new funds is added for public charter schools. As a result of this program, some 2,000 students from failing schools will have that opportunity for one of these scholarships over the next 5 years to go to the private school of their parents' choice. This is a worthy trial. This bill also includes an $835 million increase in funding for the National Institutes of Health. While this is less than the $1.5 billion increase I sought on the Senate floor with Chairman Specter and ranking member Harkin, the increase is essential to furthering the advances made by NIH particularly in the field of cancer research. Working together, Congress and two Presidents successfully completed a doubling of the NIH budget over the past 5 years. Although the fiscal year 2004 budget increase for NIH is smaller than I had hoped for, every dollar spent will yield health dividends for people. Because of the mapping of the human genome and the advances in molecular biology, it is now possible to develop and target drugs to specific ailments and therefore to break frontiers, to cross barriers and make uncharted progress. The NIH is the gold standard for the discovery of these new, targeted cancer drugs such as Gleevec which is used to treat patients with chronic myeloid leukemia. It is my hope that we can press on even further with the progress made in the fiscal year 2005 so that NIH can move closer to funding the optimal percentage of grant applications it receives. I am pleased that the Omnibus Appropriations Conference Report meets the Federal Government's commitments under the Help America Vote Act, HAVA, which reformed the way elections are administered. While the President requested only $500 million for HAVA implementation, the conference report provides $1.5 billion for payments to States for the purpose of meeting Federal election standards established in the act. Following enactment of this legislation, it is vital that these funds be quickly disbursed to the States and localities so that they may implement changes to voting systems in time for the 2004 Federal elections. As I said before, beyond process, I have a number of serious problems with the substance of the bill, and I will work over the next year to try to fix them. One of the most egregious provisions, buried in the bill at the behest of the gun lobby, is a provision which requires next-day destruction of background check records of sales where a gun buyer successfully clears a Brady background check and is permitted to purchase a firearm. Currently, records of criminal background checks are retained for up to 90 days in order to allow the Department of Justice to effectively identify, prevent, or prosecute attempted or completed illegal transactions. The ability to retain a record of these transactions for up to 90 days allows law enforcement to audit the system to ensure its integrity and to correct errors that may have occurred--for instance, when a gun buyer is able to purchase a weapon when he should have been prevented from getting it. If those records are destroyed in 24 hours, the ability to correct such mistakes is gone. A July 2002 report by the General Accounting Office found that the 90-day retention of records allowed the FBI to investigate more than 200 purchases that were initially approved, but later found to have been sales to prohibited purchasers. The Department of Justice will also lose the ability to adequately verify whether someone on the terrorist watch list has attempted to purchase a firearm, because the records will no longer exist. According to the Washington Post, at least 12 and as many as 250 individuals on the terrorist watch list have attempted to buy firearms in recent months. The bill would also prohibit ATF--now BATFE--from finalizing a proposed rule to require licensed gun dealers to conduct regular inventories of their firearms. The purpose of the rule is to promote more timely reporting of missing and stolen firearms, in order to help ensure that firearms are not ending up in the wrong hands, as in the case of the rifle used in the DC-area sniper shootings last Fall. Without such a requirement, gun dealers engaged in illegal sales can easily claim theft when their illegally-sold guns turn up in crime. That may be what happened to the Bushmaster assault weapon used by John Muhammad in the DC-area sniper shootings. Although Muhammad, a prohibited purchaser, acquired the weapon from a licensed gun dealer in Takoma, WA, many months earlier, the store reported the gun ``stolen'' only after investigators arrested Muhammad, recovered the gun, ran a trace, and contacted the store. This provision should never have been put in this bill, and I will work to reverse it. In addition, I have serious concerns about the impact of delaying country-of-origin labeling. As we now know, mad cow disease entered the United States via a cow born in Canada. Had we had labeling in place, we could have more quickly traced the cow back to Canada. Furthermore, polls show that 80-90 percent of Americans want their food to be labeled. In my home State of California, we have the ``California Grown'' program that promotes awareness, consumption and value of California agricultural products, helping the State's consumers enjoy the best of the California harvest. All Americans deserve what Californians currently have: the opportunity to know where their food comes from, and to choose American-grown products should they wish. Last year the White House proposed redefining the job descriptions of millions of workers and thus eliminate their right to Federal overtime protection. Left alone, these rules will go into effect this year. The proposal could wipe out overtime pay protections and increase work hours for at least 8 million workers nationwide. This would result in huge pay cuts for many workers. In my State of California, State law will protect most workers from the deleterious effects of this rule change. Unfortunately, public employees who are not covered by collective bargaining and some in the film industry could lose overtime protection if the administration's rule is implemented. And, although most workers in California will maintain their right to overtime through protections granted by State law, the rule change represents a movement in the wrong direction when it comes to enhancing worker protections. For more than 65 years, we have maintained an appropriate balance between family life and work life by requiring employers to pay certain workers time-and-a-half when they work more than 40 hours in a single week. This requirement has protected the 40-hour work week, which has been a hallmark of our economy for more than six decades. Our workers are more productive then ever; yet, these new overtime rules will penalize those individuals who have literally built this Nation. The men and women who will be most hurt by the rules will be the hourly workers that maintain our streets, ring up our groceries, and respond to our calls to 911. Given the still high unemployment rate and the uncertainty still plaguing our economy, this is not the time to be making it harder for our hardest workers. Rather, it is a time when we should be helping all workers achieve fairness in the workplace. As I laid out, there are serious deficiencies in both the substance of and process by which this conference report was completed. That said, I believe that on balance the conference report is better for California and the Nation than the alternative and I will support it.

Mrs. FEINSTEIN. I thank the majority leader for that clarification. Those elements of the relief package are crucial to the recovery of agricultural producers in my state. Some of the disaster programs administered by the Department of Agriculture do not provide relief for losses due to arson. However, it is clear to me that the wildfires in California were a natural disaster. Those losses would not have been incurred, if not the drought conditions in high Santa Ana wind conditions. Additionally, as many of the losses were of high value specialty crops, an increased payment cap is needed for adequate recovery effort. I would ask that the majority leader work with me to ensure that the administration address the intent of my omitted language, so that USDA can administer the relief as intended and the effected producers can recover their losses.

Mrs. FEINSTEIN. Mr. President, I briefly engage the distinguished majority leader in a colloquy about an issue of great importance to me State. I am pleased that the legislation before us provides $225 million in badly needed assistance to help the State of California recover from last autumn's devastating wildfires and to prevent a similar tragedy in the future. Of this total made available, $25 million is provided to compensate California's farmers who suffered losses in the fires. The package of aid that I drafted contained language that would have deemed losses suffered in those fires to be the result of a natural disaster, raised the cap on payments for those losses under the Tree Assistance Program to $200,000, and would have provided upfront payments under that program instead of reimbursements for replacement costs. It it my understanding that a portion of the language was inadvertently left out of the final conference agreement that I had discussed with the majority leader and his staff. Is that the majority leader's understanding?

Mrs. FEINSTEIN. I thank my colleague for clarifying the intent of this provision here today. california wildfires

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, our distinguished former colleague in the House of Representatives, now president emeritus of New York University, Dr. John Brademas, delivered an address last month in Rabat, Morocco, at a conference on ``The Dialogue of Cultures.'' The conference, sponsored by the Ministry of Culture of Morocco, focused on the relationships between the West and the Arab world. John Brademas served in Congress, from the State of Indiana, for 22 years--1959-1981--the last 4 as House majority whip. He established a particular reputation for his leadership in writing legislation to support schools, colleges and universities, libraries and museums, the arts and humanities, and to provide services for children, the elderly, and the disabled. A graduate of Harvard University, Dr. Brademas was a Rhodes scholar at Oxford University where he earned a Ph.D. Last year, Oxford University awarded Dr. Brademas the honorary degree of doctor of civil law, with a citation that described him as ``a man of varied talents and extraordinary energy, the most practical of academics, the most scholarly men of action.'' On leaving Congress, Dr. Brademas became president of New York University, a position he served from 1981 until 1992, when he became president emeritus, the position he now holds. Mr. President, in light of the great importance of developments between the United States and Islamic countries, I believe my colleagues will read with interest Dr. Brademas's thoughtful address in Morocco, and I ask unanimous consent to have his remarks printed in the Record.