Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a private relief bill for Rita Mirembe Revell. Rita is a 15-year-old child from Uganda who was brought to this country in 1994. When Rita was 18 months old she was left with the Daughters of Charity Society, a Catholic organization in Kampala, Uganda. Rita was an orphan, abandoned with no known family. Rita has resided in the United States under a student visa since 1994. As an orphan the only parents she has ever known are her American guardians, who have sponsored Rita since she was three years old. They want very much to adopt Rita, but they have been unable to get around the mess of international red tape. The Ugandan Government has very strict policies concerning adoption by foreign nationals. Now as Rita approaches her 16th birthday she is in danger of being deported. Rita has formed an intimate bond with her American parents, who hope to complete the adoption as soon as possible. Papers for adoption have already been filed, while there are bureaucratic difficulties, the adoption is not contested by any party. Understandably, the family is concerned that Rita will be deported before her adoption is finalized. This bill simply gives Rita permanent residency so that she might remain with the only parents she has ever known while her adoption becomes final. Other immigration scenarios would require Rita to return to an unsafe country for an unknown period of time. She has no known family in Uganda. Her new life is in California where she was recently admitted to Loretto High School, an outstanding college preparatory high school. This bill gives Rita permanent resident status, which will allow her to remain in the country while the adoption process continues. It allows Rita to stay with her American parents in the country that she now calls home. The bill also offers the comfort of certainty for her parents. I hope that we can move quickly to grant this relief.

Mr. HATCH

Mr. HATCH. Mr. President, I want to take this opportunity to recognize an outstanding American and soldier. Major General J. Craig Larson has devoted nearly thirty-three years to the U.S. Army and Army Reserve. It is only fitting that we pay tribute to a magnificent soldier and citizen who has done so much for his country and the great state of Utah. Major General Larson is the Commander of the U.S. Army 96th Regional Support Command in Salt Lake City, UT. As such, he commands more than 6,000 Army Reservists in the six-state area of Colorado, Montana, North and South Dakota, Utah, and Wyoming. He was drafted by the Army in 1966, and obtained the rank of Sergeant. He then attended and completed Officer Candidate School at the Ordnance Center and School in Aberdeen Proving Ground, MD. He was commissioned a Second Lieutenant in January 1968. He served nearly seven years on active duty with assignments as Assistant to the Depot Commander, Anniston Army Depot, Alabama; Commander, Company C, 702nd Maintenance Battalion, 2nd Infantry Division on the DMZ in Korea; and Assistant Director of Industrial Operations, Indiantown Gap, PA. During his twenty-six years in the Army Reserve, he served as: Commander of the 259th Quartermaster Battalion (Petroleum Terminal and Pipeline) in Pleasant Grove, UT; Executive Officer and then Commander of the 162nd Support Group at Fort Douglas, UT, and Deputy Chief of Staff for Logistics, Headquarters, 96th U.S. Army Reserve Command, also at Fort Douglas, UT. Just prior to his current assignment, Major General Larson was the Assistant Deputy Chief of VA Staff for Logistics and Operations, U.S. Army Materiel Command in Alexandria, VA. As such he was activated in November 1996 to be Commander. Logistics Support element--Africa, HQ, Army Materiel Command, in support of Operation guardian Assistance, a humanitarian relief effort for refugees from Rwanda, Zaire, and Uganda. Major General Larson is a native of Salt Lake City, UT and a graduate of Highland High School. He received his Bachelors Degree in Business Management from Weber State College and a Masters of Business Administration from the University of Utah. In his civilian life, Major General Larson is owner and President of Wind River Petroleum. He also serves as Chief Executive Officer of Christensen and Larson Investment Company, President of Wind River Trucking, and is currently serving on the Salt Lake International Airport board of directors. He is married to the former Toni Eskelson of Salt Lake City--also a Highland High School graduate. They have five daughters, two sons, and eight grandchildren. General Larson is leaving command and the uniform on Saturday, the 24th of March 2001. His uniformed service to the Nation will be greatly missed. However, he will continue to serve his community and family as a business and civic leader and as a father and grandfather. As a nation we should take this opportunity to recognize and honor Major General J. Craig Larson, a true American.

Mr. HATCH

Mr. HATCH. Reserving the right to object, do we have a copy of that?

Mr. HATCH. I don't think we will object. It is OK. I withdraw my reservation.

Mr. HATCH. Mr. President, all time is yielded back.

Mr. HATCH. Mr. President, S. 420, the Consumer Bankruptcy Reform Act, is one of the most important legislative efforts to reform the bankruptcy laws in decades. I want to thank a few of the people who have worked on the bill. Let me first acknowledge the majority leader, who has worked very hard to keep this bill moving forward. Because of his dedication to the important reforms in this bill, we now have legislation that makes enormous strides in eliminating abuse in the bankruptcy system. I am also grateful to the assistant majority Leader, Senator Nickles, along with Senators Daschle and Reid for their efforts in trying to work with us to move the legislation forward. Let me also acknowledge the ranking Democratic member of the Senate Judiciary Committee, Senator Leahy, who has worked where he can to reach agreement on many of the bill's provisions, and who ably managed the bill for his side of the aisle. I also want to commend my colleagues, Senators Grassley, Biden and others for their sponsorship of and leadership on this much needed legislation. I particularly appreciate the dedication they have shown in working with me in making the passage of this bill an inclusive and bipartisan process. Also, let me express my thanks to Senator Sessions who has shown unwavering dedication to accomplishing the important reforms in this bill, to Senator Gramm for his efforts over the past several years in helping see sensible reform through the Senate, and to the many other members of the Senate for their hard work and cooperation. At the Committee staff level, let me acknowledge a few people who have worked very hard on this bill. Kolan Davis and Rita Lari Jochun, of Senator Grassley's staff, along with Ed Haden and Brad Harris of Senator Sessions' staff, all of whom deserve praise for their impressive efforts on this legislation. In addition, Judiciary Committee Staff Director, Makan Delrahim, who has been lead counsel on this bill, and Judiciary Committee Counsel, Rene Augustine, who has really been working day and night to make sure this bill stayed on track. Let me make one observation here. When we started this bankruptcy reform process, Rene didn't have any children, and by the time this bill becomes effective, she will have two children. Mr. President, I feel like I have given birth twice during this process myself. Thanks as well should be given to the Judiciary Committee's Chief Counsel, Sharon Prost, and all of the other Judiciary Committee staff who have worked hard on this. On Senator Leahy's Committee staff, I want to acknowledge Minority Chief Counsel Bruce Cohen, and thank counsel Ed Pagano for his efforts. In addition, I want to recognize the efforts of Jennifer Leach of Senator Torricelli's staff, as well as the dedicated work of Jim Greene of Senator Biden's staff, as well as the very able Ben Lawsky of Senator Schumer's staff. I also want to commend John Mashburn and Dave Horpe of the majority leader's staff, Stewart Verdery, Eric Ueland, and Matt Kirk of the Assistant Majority Leader's staff, and Eddie Ayoob of the Minority Whip's office for their efforts on this legislation. Also, my thanks goes to Laura Ayoud, and others in the office of Senate Legislative Counsel, for their extraordinary efforts that have made this legislation possible. The compelling need for this reform is underscored by the dramatic rise we have seen over the past several years in bankruptcy filings. The Bankruptcy Code was liberalized back in 1978, and since that time, consumer bankruptcy filings have risen at an unprecedented rate. Mr. President, the bankruptcy system was intended to provide a ``fresh start'' for those who truly need it. We need to preserve the bankruptcy system within limits to allow individuals to emerge from financial hardship. What we do not need is to preserve the elements of the system that allow it to be abused--that allow some debtors to use bankruptcy as a financial planning tool rather than as a last resort. I firmly believe that by allowing people who can repay their debts to avoid their financial obligations, we are doing a disservice to the honest and hardworking people in this country who end up paying for it. Mr. President, again I would like to applaud the bipartisan efforts of my colleagues who have made S. 420 a broadly-supported bill. The impact of this important legislation not only will be to curb the rampant number of frivolous bankruptcy filings, but also will be to give a boost to our economy. Thank you. I yield the floor. Mr. President, I ask for the yeas and nays on final passage.

Mr. HATCH. Mr. President, I am pleased that S. 420, the bankruptcy legislation, cures some abuses in the Bankruptcy Code regarding executory and unexpired leases. One provision, Section 404 of the bill, amends Section 365(d)(4) of the Bankruptcy Code. Presently, Section 365(d)(4) provides a retail debtor 60 days to decide whether to assume or reject its lease. A bankruptcy judge may extend this deadline for cause, and therein is the problem. Too many bankruptcy judges have allowed this exception essentially to eliminate any notion of a reasonable and firm deadline on a retail debtor's decision to assume or reject a lease. Bankruptcy judges have been extending this deadline for months and years, often to the date of confirmation of a plan. This situation is unfair. A shopping center operator is a compelled creditor. It has no choice but to continue to provide space and services to the debtor in bankruptcy. Yet, the current Code permits a retail debtor as much as years to decide what it will do with its lease. Coupled with the increased use of bankruptcy by retail chains, the Bankruptcy Code is tipped unfairly against the shopping center operator. Some stores curtail their operations or go dark, and still the lessor cannot regain control of its space. This legislation, like the conference report in the last two Congresses, ends this abuse. It imposes a firm, bright line deadline on a retail debtor's decision to assume or reject a lease, absent the lessor's consent. It permits a bankruptcy trustee to assume or reject a lease on a date which is the earlier of the date of confirmation of a plan or the date which is 120 days after the date of the order for relief. A further extension of time may be granted, within the 120-day period, for an additional 90 days, for cause, upon motion of the trustee or lessor. Any subsequent extension can only be granted by the judge upon the prior written consent of the lessor: either by the lessor's motion for an extension, or by a motion of the trustee, provided that the trustee has the written approval of the lessor. This is important. We are taking away the bankruptcy judges' discretion to grant extensions of the time for the retail debtor to decide whether to assume or reject a lease after a maximum possible period of 210 days from the time of entry of the order of relief. Beyond that maximum period, there is no authority in the judge to grant further time unless the lessor has agreed in writing to the extension. Retail debtors filing for bankruptcy will factor into their plans this new deadline. Most retail chains undertake a careful review of their financial condition and business outlook before they file for bankruptcy. They will already have an understanding of which leases are ones they wish to assume and which ones they wish to dispose of. The legislation gives them an additional 120 days to decide on what to do with their leases, once they file for bankruptcy. Within that 120 day time period, an additional 90 days can be granted for cause. A further extension may be negotiated by the retail debtor and the lessor if circumstances warrant, and any such extension can be granted by a judge only with prior written consent of the lessor. Further, a lessor's prior written approval of one such extension does not constitute approval for any further extensions, each such extension beyond the 210 day period requires the lessor's prior written approval. The current imbalance between the retail debtor and the lessor will be redressed by the legislation. The bill in Section 404 also amends Section 365(f)(1) of the Bankruptcy Code to make sure that all of the provisions of Section 365(b) are adhered to and that Section 365(f) does not override Section 365(b). This addresses another growing abuse under the Bankruptcy Code. The bill makes clear that an owner must be able to retain control over the mix of retail uses in a shopping center. When an owner enters into a use clause with a retail tenant forbidding assignments of the lease for a use different than that specified in the lease, that clause should be honored. Congress has so intended already, but bankruptcy judges have sometimes ignored the law. Congress made clear, in Section 365(f)(2)(B), that the trustee may assign an executory contract or unexpired lease of the debtor, only if the trustee makes adequate assurance of future performance under the contract or lease. In Section 365(b)(3), Congress provided that for purposes of the Bankruptcy Code: ``Adequate assurance of future performance of a lease of real property in a shopping center includes adequate assurance-- ``(A) of the source of rent and other consideration due under such lease, and in the case of an assignment, that the financial condition and operating performance of the proposed assignee and its guarantors, if any, shall be similar to the financial condition and operating performance of the debtor and its guarantors, if any, as of the time the debtor became the lessee under the lease; (B) that any percentage rent due under such lease will not decline substantially; (C) that assumption or assignment of such lease is subject to all provisions thereof, including (but not limited to) provisions such as a radius, location, use, or exclusivity provision, and will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to such shopping center; and (D) that assumption or assignment of such lease will not disrupt any tenant mix or balance in such shopping center. Congress added these provisions to the Code in recognition that a shopping center must be allowed to protect its own integrity as an on going business enterprise, notwithstanding the bankruptcy of some of its retail tenants. A shopping center operator, for example, must be able to determine the mix of retain tenants it leases to. Congress decided that use or similar restrictions in a retail lease, which the retailer cannot evade under nonbankruptcy law, should not be evaded in bankruptcy. Regrettably, bankruptcy judges have not followed this Congressional mandate. Under another provision of the Code, Section 365(f), a number of bankruptcy judges have misconstrued the Code and allowed the assignment of a lease even though terms of the lease are not being followed. This ignores Section 365(b)(3) and is wrong. For example, if a shopping center's lease with an educational retailer requires that the premises shall be used solely for the purpose of conducting the retail sale of educational items, as the lease in the In re Simon Property Group, L.P. v. Learningsmith, Inc. case provided, then the lessor has a right to insist on adherence to this use clause, even if the retailer files for bankruptcy. The clause is fully enforceable if the retailer is not in a bankruptcy proceeding, and the retailer should not be able to evade it in bankruptcy. Otherwise, the shopping centers operator loses control over the nature of his or her business. Unfortuantley, in the Learningsmith case, the judge allowed the assignment of the lease to a candle retailer because it offered more money than an educational store to buy the lease, in contravention of Section 365(b)(3) of the Code. As a result, the lessor lost control over the nature of its very business, operating a particular mix of retail stores. If other retailers file for bankruptcy in that shopping center, the same result can occur. The bill remedies this problem by amending Section 365(f)(1) to make clear it operates subject to all provisions of Section 365(b). The legal holding in the Learningsmith case, and other cases like it which do not enforce Section 365(b), particularly 365(b)(3), are overturned by this legislation.

Mr. HATCH. Mr. President, I have sent a package of amendments to the desk that have been cleared by both sides. Pursuant to the prior agreement, I ask unanimous consent that the package be agreed to at this time, and I also ask unanimous consent the pending Breaux amendment No. 94 be withdrawn, pursuant to previous agreement.

Mr. HATCH. Mr. President, I move to reconsider the vote.

Mr. HATCH. I am happy to accept this amendment and modification. I yield back whatever time we have.

Mr. HATCH. Mr. President, I ask for the yeas and nays.

Mr. HATCH. Mr. President, I will be short. I know these amendments are well intentioned, but they are terrible amendments. The first amendment allows dishonest debtors to shield legitimate income from the court. The amendment creates a significant new loophole for debtors to exploit. The amendment would create an inaccurate picture of even an honest debtor's income by limiting the time period over which the income was measured. The legislation already allows the court to make adjustments to a debtor's income if necessary and, if necessary, to do justice. That amendment should be defeated. The second amendment will allow debtors to game the bankruptcy system by repeatedly filing in chapter 13. By striking the 5-year waiting period, the amendment encourages abusive repeat filings one right after the other. I hope our colleagues will vote that down. The third amendment would jeopardize bankruptcy reform by completely exempting debtors who lose their jobs because of trade imports from the provisions of the bill. Under the bill's means test, an unemployed worker would still be able to discharge all of his or her debts under chapter 7. This amendment, however, would exempt debtors from the alimony, child support, and other important protections provided by this bill. I worked long and hard for that, and I think almost everybody in this body wants it. I can't imagine anybody voting for that amendment, but I know it is well intentioned. We will leave it at that. I yield back the remainder of my time. Vote on Amendment No. 70

Mr. HATCH. Has the time of the Senator from Minnesota expired?

Mr. HATCH. How much time remains? Did the Senator from Minnesota use all his time?

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, March 15, at 9 a.m., to conduct a hearing. The committee will receive testimony on S. 26, a bill to amend the Department of Energy Authorization Act to authorize the Secretary of Energy to impose interim limitations on the cost of electric energy to protect consumers from unjust and unreasonable prices in the electric energy market, S. 80, California Electricity Consumers Relief Act of 2001, and S. 287, a bill to direct the Federal Energy Regulatory Commission to impose cost-of-service based rates on sales by public utilities of electric energy at wholesale in the western energy market, and amendment No. 12 to S. 287.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, March 15, 2001, at 9:30 a.m., pending committee business.

Mr. HATCH. 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 Thursday, March 15, 2001, to conduct a markup of S. 149, the Export Administration Act of 2001.

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Transportation and Infrastructure of the Committee on Environment and Public Works be authorized to meet on Thursday, March 15, 2001, at 9:30 a.m., on Army Corps of Engineers management reforms.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, March 15, 2001, at 10:30 a.m., and 2 p.m., to hold two hearings.

Mr. HATCH. Mr. President, I ask unanimous consent that the Governmental Affairs Committee be permitted to meet on Thursday, March 15, 2001, at 9:30 a.m., for a hearing regarding High Performance Computer Export Controls.

Mr. HATCH

Mr. HATCH. May we withhold until we get that resolved?

Mr. HATCH. I will be happy to yield 10 minutes to the Senator.

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I understand the distinguished Senator from Florida would like to speak prior to the vote. How much time does the Senator desire?

Mr. HATCH. And the distinguished Senator from Wisconsin would like some time to respond?