Herb Kohl

Mr. KOHL

Mr. KOHL. I will offer the amendment after that. Mr. President, I rise to speak to amendment No. 991, which is supported by Senators Grassley and Leahy. I thank my colleagues for their support. Our amendment is in almost all respects identical to S. 316, the Preserve Access to Affordable Generics Act, which passed the Judiciary Committee unanimously earlier this year. Our amendment will prevent one of the most egregious tactics used to keep generic competitors off the market, leaving consumers with unnecessarily high drug prices. The way it is done is simple--a drug company that holds a patent on a brandname drug pays a generic drugmaker to not put a competing product on the market. The brandname company profits so much by delaying competition that it can easily afford to pay off the generic company. And the generic company can also make much more money by simply accepting this pay-off settlement. The losers are the American people, who would continue to pay unnecessarily high drug prices for years to come. Our amendment is basically very simple--it will make these anticompetitive, anticonsumer patent payoffs illegal. We will thereby end a practice seriously impeding generic drug competition, competition that could save consumers literally billions of dollars in health care costs. Despite the FTC's opposition, recent court decisions have permitted these backroom payoffs. And the effect of these court decisions has been stark. In the year after these two decisions, the FTC has found, half of all patent settlements--14 of 28--involved payments from the brandname to the generic manufacturer in return for an agreement by the generic to keep its drug off the market. In the year before these two court decisions, not a single patent settlement reported to the FTC contained such an agreement. When brandname drugs lose their patent monopoly, this opens the door for consumers, employers, third-party payers, and other purchasers to save billions--63 percent on average--by using generic versions of these drugs. A recent study released earlier this year by Pharmaceutical Care Management Association, showed that health plans and consumers could save $26.4 billion over the next 5 years by using the generic versions of 14 popular drugs that are scheduled to lose their patent protections before 2010. We have heard from some in the generic drug industry that on occasion these patent settlements may not harm competition. That is why our amendment includes a new provision not contained in S. 316. This new provision would permit the Federal Trade Commission--the guardians of competition in this industry--to exempt from this amendment's ban certain agreements if the FTC determines such agreements would benefit consumers. This provision will ensure that our amendment does not prevent any agreements which will truly benefit consumers. It is also important to note that--contrary to the arguments made by some--our amendment will not ban all patent settlements. In fact, our amendment will not ban any settlement which does not involve an exchange of money. Our amendment will do nothing to prevent parties from settling patent litigation with an agreement that a generic will delay entry for some period of time in return for ending its challenge to the validity of the patent. Only the egregious pay-off settlements in which the brandname company also pays the generic company a sum of money to do so will be banned. We understand that several of our colleagues would prefer alternative versions of this proposal. As I have said all along, we continue to be willing to consider modifications to this measure as long as this legislation will be effective to ensure these anticonsumer payoff settlements stop. I am happy to work with my colleagues to find an effective manner to do this. I have directed my staff to work with the staff of other interested Senators in this regard, and I am willing to continue to engage in this process. Short of such an effective alternative being presented to me, we will ask for a vote on adoption of this amendment. In closing, we cannot profess to care about the high cost of prescription drugs while turning a blind eye to anticompetitive backroom deals between brand and generic drug companies. It is time to stop these drug company pay-offs that only serve the companies involved and deny consumers to affordable generic drugs. I urge my colleagues to join me in this effort by supporting this amendment. I yield the floor.

Mr. KOHL

Mr. KOHL. Madam President, I rise today to join Senators Stabenow, Lott, Brown, and Thune in offering amendment No. 1011. This amendment will help speed the introduction of cost-saving generic drugs by preventing abuses of the Food and Drug Administration citizen petition process. Consumers continue to suffer all across our country from the high-- and ever rising--cost of prescription drugs. A recent independent study found that prescription drug spending has more than quadrupled since 1990, and now accounts for 11 percent of all health care spending. At the same time, the pharmaceutical industry is one of the most profitable industries in the world, returning more than 15 percent on their investments. One key method to bring prescription drug prices down is to promote the introduction of generic alternatives to expensive brand name drugs. Consumers realize substantial savings once generic drugs enter the market. Generic drugs cost on average of 63 percent less than their brandname equivalents. One study estimates that every 1 percent increase in the use of generic drugs could save as much as $4 billion in health care costs. This is why I have been so active in pursuing legislation designed to combat practices which impede the introduction of generic drugs. The amendment offered today, includes provisions based on legislation that I first introduced with Senator Leahy in the last Congress, and targets one particularly pernicious practice by brandname drug companies to impede or block the marketing of generic drugs--abuse of the FDA citizen petition process. FDA rules permit any person to file a so-called citizen petition to raise concerns about the safety or efficacy of a generic drug that a manufacturer is seeking FDA approval to bring to market. While this citizen petition process was put in place for a laudable purpose, unfortunately in recent years it has been abused by frivolous petitions submitted by brandname drug manufacturers, or individuals acting at their behest, whose only purpose is to delay the introduction of generic competition. The FDA has a policy of not granting any new generic manufacturer's drug application until after it has considered and evaluated any citizen petitions regarding that drug. The process of resolving a citizen petition, even if ultimately found to be groundless, can delay the approval by months or years. Indeed, brandname drug manufacturers often wait to file citizen petitions until just before the FDA is about to grant the application to market the new generic drug manufacturer's solely for the purpose of delaying the introduction of the generic competitor for the maximum amount of time possible. This gaming of the system should not be tolerated. In recent years, FDA officials have expressed serious concerns about the abuse of the citizen petition process. In 2005, FDA Chief Counsel Sheldon Bradshaw noted that ``[t]he citizen petition process is in some cases being abused. Sometimes, stakeholders try to use this mechanism to unnecessarily delay approval of a competitor's products.'' He added that he found it ``particularly troublesome'' that he had ``seen several examples of citizen petitions that appear designed not to raise timely concerns with respect to the legality or scientific soundness of approving a drug application, but rather to delay approval by compelling the agency to take the time to consider the arguments raised in the petition, regardless of their merits, and regardless of whether the petitioner could have made those very arguments months and months before.'' And a simple look at the statistics gives credence to these concerns. Of the 21 citizen petitions for which the FDA has reached a decision since 2003, 20--or 95 percent of them--have been found to be without merit. Of these, 10 were identified as ``eleventh hour petitions''-- defined as those filed less than 6 months prior to the estimated entry date of the generic drug. None of these 10 ``eleventh hour petitions'' were found to have merit, but each caused unnecessary delays in the marketing of the generic drug by months or over a year, causing consumers to spend millions and millions of dollars for their prescription drugs than they would have spent without these abusive filings. Among other things, our amendment will, for the first time, require all those who file citizen petitions to affirm certain basic facts about the truthfulness and good faith of the petition, similar to what is required of every litigant who makes a filing in court. Our amendment also includes a provision from my bill that directs the HHS that all citizen petitions on generic drug applications be adjudicated within 6 months of filing, which will put an end to excessive delays in bringing needed generic drugs to market because of the filings of these petitions. While I strongly support this amendment and I am pleased that many of my provisions were included, I do wish the amendment could have gone even farther and include my provision to allow the Department of Health and Human Services--the FDA's parent agency--the power to sanction those who abuse the process. While this proposal would not have an effect on any person filing a truly meritorious citizen petition, this provision would serve as a strong deterrent to attempts by brand name drug manufacturers or any other party that seeks to abuse the citizen petition process to thwart competition. Having said that, I do believe our amendment today is an important step in the right direction to remove a significant obstacle exploited by brand name drug companies to prevent or delay the introduction of generic drugs. I urge my colleagues to support this amendment. amendment no. 1016

Mr. KOHL. Madam President, I rise today and would like to briefly speak about Senator Durbin's amendment regarding food safety. I was happy to cosponsor this amendment, and I agree with all of the sentiments expressed by the Senator earlier today. This amendment deals with many of the underlying problems that allow food safety issues, such as the ones we have dealt with in recent months that have affected not only humans, but their pets as well. It requires the FDA to set standards for pet food and to update them as necessary, and it directs the Secretary of Health and Human Services to establish a system capable of detecting pet food contamination and outbreaks of pet illnesses and death--this will prevent the type of confusion that continues to surround the recent melamine outbreak, and will help detect these problems much earlier. It requires FDA to develop effective communication plans to coordinate with stakeholders during outbreaks of both pet and human foods, so people know what is going on--quickly--and know what to do. It directs the Secretary to work with States to collaborate on activities and programs that assist in improving the safety of raw agricultural products such as spinach, which was the cause of a major food safety recall last fall. Importantly, it requires FDA to establish a registry to collect information on cases of potentially dangerous food adulteration to help get any dangerous food off of the shelves more quickly and to allow FDA to target inspection resources where most needed. This amendment does many important things--and takes many important first steps. I know that Senator Durbin would have liked this amendment to go a little further, and I agree with his sentiments, but it is important to at least take the first step. In March of this year, I held a hearing in Madison, WI, on food safety issues at the FDA. The Commissioner of FDA attended, as well as the Director of the FDA's Center for Food Safety. At that time, I pointed out that outbreaks of foodborne illness caused by produce have doubled since 1998. During this same time, the FDA's food budget has suffered. The number of people getting sick is going up, but the number of inspections and food safety tests being conducted is dwindling. So too are the number of food inspectors and overall staff at the FDA's Center for Food Safety. Imports have risen dramatically over the years, but the FDA is only able to inspect less than 1 percent of them. Events after that hearing seemed to exacerbate what I pointed out. The recent pet food scare, and the ongoing melamine investigation, serve as constant reminders that we have been taking this issue for granted, assuming that the FDA has the authority and funding necessary to do its job, when that is clearly not the case. Senator Durbin's amendment begins to take care of some of the problems with FDA authority and actions. As the chairman of the Agriculture Appropriations Subcommittee, which has jurisdiction over the FDA's budget, it is my job to make certain that the FDA has the money to carry out its vital role of protecting our food. The Food Center at FDA doesn't have user fees from industry to boost its funding--it all comes from the Congress, and has been stagnant for far too long. I have been working diligently to make sure that when the fiscal year 2008 Agriculture Appropriations bill is written, food safety will be one of its highlights. I do not believe the administration has ever requested enough funding for food safety at the FDA, this year notwithstanding. I plan to correct that. It may not happen all in the first year being fiscally responsible can be tough--but it will happen. We will provide a significant increase to the FDA this year, so they can implement some of what Senator Durbin's amendment proposes, and quite simply, so they can hire inspectors where they are needed, to do the necessary research to prevent outbreaks from occurring wherever possible, and so we don't continue to see large recall notices in our newspapers every day. It is not a problem that can be fixed immediately, but I fully intend to meet my end of the obligation in making sure that FDA has the money that it needs, and can use responsibly, to tackle this problem head on.

Mr. KOHL

Mr. KOHL. Mr. President, I ask unanimous consent the pending amendment be set aside so I can call up my amendment, which is No. 942, for consideration.

Mr. KOHL. Mr. President, I ask unanimous consent the reading of the amendment be dispensed with.

Mr. KOHL. Mr. President, I suggest the absence of a quorum.

Mr. KOHL. Mr. President, I rise today to offer this amendment to the America COMPETES Act which would authorize appropriations for the Manufacturing Extension Partnership, known as MEP, through 2011. I am a long-time supporter of the MEP program and believe a healthy manufacturing sector is key to better jobs, rising productivity, and higher standards of living in the United States. Manufacturers today are seeking ways to level the playing field so they can compete globally. One way to level the playing field and increase competitiveness of manufacturers is through the MEP program. MEP streamlines operations, integrates new technologies, shortens production times, and lowers costs, which leads to improved efficiency, by offering resources to manufacturers, including organized workshops and consulting projects. In Wisconsin, three of our largest corporations--John Deere, Harley- Davidson, and Oshkosh Truck--are working with MEP centers to develop domestic supply chains. I am proud to say these companies found it more profitable to work with small- and medium-sized Wisconsin firms than to look overseas for cheap labor. The amendment I am offering would increase the amount of funding available to the MEP program by $19 million over 4 years, allowing MEP centers to reach more manufacturers and to increase the services they provide. I believe we would be hard-pressed to find another program that has produced the results that MEP has on their limited budget. In fiscal year 2005, MEP clients reported over 53,000 new or retrained workers, sales of $6.3 billion, and $1.3 billion in cost savings. This is the type of program in which we should be investing more, not less. Unfortunately, the administration doesn't support this award-winning program. I believe MEP is one of the most valuable assets the Government gives manufacturers. The program has a proven record of saving manufacturing jobs now, and it will strengthen the U.S. manufacturing base for the future. I have written to Secretary Gutierrez, and I have spoken to him about the need to save MEP. The MEP program has received wide bipartisan support in the Senate. This year, 48 Senators signed a letter asking for increased funding for MEP, and the amendment I am offering has 12 cosponsors from both sides of the aisle. Ten years ago, American manufacturers were not facing the competitive threats they now face from low-cost producing countries such as China and India. The increase in competition from these countries has required our manufacturers to find better, cheaper, and other ways to produce their products, which is where MEP directly comes in. MEP can help these companies reduce their costs and enter new markets, thus allowing them to be competitive in the global marketplace. With the increased threats American manufacturers now face, there is more need than ever to increase the funding for the MEP program. So I urge my colleagues to support this program. At this time I will avoid asking for the yeas and nays. I yield the floor, and I suggest the absence of a quorum.

Mr. KOHL. Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. KOHL. Mr. President, I ask unanimous consent that notwithstanding adoption of Obama amendment No. 923, as modified, the previously agreed to DeMint amendment No. 929 still be in order.

Mr. KOHL. I ask unanimous consent to add Senators Bayh, Menendez, and Voinovich as cosponsors to amendment No. 942.

Mr. KOHL

Mr. KOHL. Mr. President, I am today introducing with Senators Baucus and Conrad a bill that will eliminate the prohibition on interstate commerce in State-inspected meat and poultry products. Senator Hatch is also introducing a State meat inspection measure and I congratulate him on his bill. We are working together and in collaboration with the National Association of State Departments of Agriculture and a coalition of national, State, and local agricultural organizations on this effort. I expect our coalition to grow over time. Together, we intend to push for changes that will protect public health and safety and at the same time help state-inspected meat and poultry processors compete in new markets. Removing the current prohibition will help level the playing field for small businesses and spur additional competition in the marketplace. It will help main street businesses--who often specialize in local, organic, grass-fed or artisinal products--meet emerging markets. And it will help livestock producers who want more options for marketing their livestock. For too long, processors with State-inspected facilities have been unfairly constrained to selling only within their home States. Meanwhile, foreign-processed meat can be shipped anywhere in the United States so long as the originating Nation's inspection program is deemed equivalent to U.S. Federal standards. We want our State-inspected processors to be treated at least as well. This is an effort to give main street businesses the same opportunity our Government confers on foreign processors. I look forward to working with Senators Hatch, Baucus and Conrad and a number of our House colleagues on this topic in the months to come.

Mr. KOHL

Mr. KOHL. Mr. President, I am today introducing with Senators Baucus and Conrad a bill that will eliminate the prohibition on interstate commerce in State-inspected meat and poultry products. Senator Hatch is also introducing a State meat inspection measure and I congratulate him on his bill. We are working together and in collaboration with the National Association of State Departments of Agriculture and a coalition of national, State, and local agricultural organizations on this effort. I expect our coalition to grow over time. Together, we intend to push for changes that will protect public health and safety and at the same time help state-inspected meat and poultry processors compete in new markets. Removing the current prohibition will help level the playing field for small businesses and spur additional competition in the marketplace. It will help main street businesses--who often specialize in local, organic, grass-fed or artisinal products--meet emerging markets. And it will help livestock producers who want more options for marketing their livestock. For too long, processors with State-inspected facilities have been unfairly constrained to selling only within their home States. Meanwhile, foreign-processed meat can be shipped anywhere in the United States so long as the originating Nation's inspection program is deemed equivalent to U.S. Federal standards. We want our State-inspected processors to be treated at least as well. This is an effort to give main street businesses the same opportunity our Government confers on foreign processors. I look forward to working with Senators Hatch, Baucus and Conrad and a number of our House colleagues on this topic in the months to come.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today in support of S. 5, the Stem Cell Research Enhancement Act of 2007, a bill that will expand the number of stem cell lines eligible for federally funded research, ensuring scientists at NIH and laboratories around the country have access to new, uncontaminated stem cell lines. Many families in America have experienced the tragedy of watching a loved one suffer through a deadly or debilitating illness. Diseases like Parkinson's and Alzheimer's take a terrible toll on families' lives and livelihoods. While we have made great strides in biomedical research in recent years, we still don't have all the keys to unlock the secrets of disease. That is why the potential of embryonic stem cells is so exciting. Embryonic stem cells have the ability to develop into virtually any cell type in the human body. Scientists tell us that harnessing the power of these cells could one day lead to new treatments, and maybe even cures, for a number of diseases that afflict American families. Important research is being done every day on stem cells. I am proud that some of this research is being done at the University of Wisconsin in Madison, which was the first to isolate human embryonic stem cells. We all understand that this research is not without controversy. I respect the concerns that some people have about the use of embryonic stem cells in research, and I agree that we must closely monitor this research to ensure that it is done ethically. However, scientists and disease advocates are warning us that the current limits on Federal funding for stem cell research are seriously inhibiting our potential to find new cures. Without expanded Federal support, we risk slowing down the tremendous progress that could be made to alleviate human suffering. It would be unconscionable for the Federal Government to turn its back on the discoveries that expanding stem cell research promises. Now more than ever, it is important to grasp this opportunity in an ethical manner by making sure that potentially lifesaving research keeps moving forward.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to speak on a bill I introduced, the Strategic Refinery Reserve Act of 2007. This bill would authorize the Department of Energy to build enough refining capacity to meet the energy needs of the Federal Government--primarily the Department of Defense--and to supply the private market in times of shortages and price spikes. Hurricanes Katrina and Rita, which severely damaged oil refineries in the Gulf Coast, illustrated the Nation's vulnerability to a disruption in supply of refined petroleum and exposed shortcomings in our current Strategic Petroleum Reserve system. The Strategic Refinery Reserve Act would address these issues by having a refining capacity of 5 percent of total U.S. consumption of gasoline, diesel, and jet fuel. Three percent of capacity would be held in reserve, ready to increase supply in the private market in times of energy emergencies. The remaining 2 percent of that would go to the Federal Government to support the day- to-day needs of the military, saving taxpayers from paying the oil industry's inflated prices. The U.S. Energy Information Administration reported Monday that drivers paid an average of $2.80 a gallon for regular gasoline last week, up from $2.70 the week prior. According to the report, prices are now 11.7 cents per gallon higher than April of 2006. The price per barrel of oil, set by the Middle East cartel Organization of Petroleum Exporting Countries, OPEC, is only one factor that pushes up the price of gas and oil in our country. Refining capacity, the infrastructure that takes crude oil and turns it into gas, is down dramatically, which pushes the price of gas up for everyone. U.S. refineries today are running at full, or near full, capacity. In 1981, there were 324 refineries in the United States; today there are 149. Big Oil has made it clear that they are unwilling to reinvest their record profits in new refineries because the less they sell, the more they make per gallon. That may be good for oil company shareholders, but it is bad for consumers. The Strategic Refinery Reserve Act will ensure the availability of emergency refinery capacity and protect consumers from sharp increases in the price of petroleum products. Our economy, our military, our communities and our families are struggling under the burden of high energy prices. They expect us to work to bring energy prices down. This bill would do that.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to offer a bill that amends the Food Security Act of 1985 to provide incentives for landowners to protect and improve streams and riparian habitat. This legislation would provide cost-share payments to landowners who protect and repair streamside and in-stream habitat, improve water flow and quality and initiate watershed management and planning. The Stream Habitat Improvement Program, funded at $60 million annually, would direct resources to important fish habitat projects. The fisheries community has recognized the loss of habitat as a major threat to the health of sport fish populations. Farmers who participate in the program will make improvements on streams running through their property. Improvements could include repairing shoreline, removing barriers to fish passage, and planting trees to shade the water and strengthen stream banks. Further, existing partnerships, such as the National Fish Habitat Action Plan, could provide invaluable input to guide the program. Healthy fisheries mean healthy communities. The EPA and the Fish and Wildlife Service have found that 81 percent of all stream fish communities in the U.S. have been adversely affected by either pollution or other disturbances. Rivers and streams provide essential habitat for numerous plant and animal species. Many of these species are threatened, endangered, or at risk for extinction. Degraded and altered habitats are the most frequently cited factors contributing to the decline among threatened or endangered aquatic species and among many native recreational and non-game fish species. In Wisconsin alone there are almost 950,000 anglers, and almost half a million more come from out of State to fish in Wisconsin. Together these anglers spend $1 billion on fishing-related expenses in our State. This new program would advance efforts to support stream habitat restoration more effectively, which in turn will support a thriving economy and aquatic species populations. Further, healthy stream and river habitats also play an important role in the Nation's economy. Each year, about 34 million anglers spend $17 billion directly on fishing equipment and another $15 billion on trip-related expenses, food and lodging, and other recreational fishing-related expenses. Successful management of stream and river habitat requires cooperative partnerships among producers, landowners, as well as Federal and State agencies. Offering producers and private landowners incentives and opportunities for restoring stream habitat will prevent the decline and listing of aquatic species. Building strong relationships between farm owners, private landowners and the angler community ensures that healthy fisheries will be maintained for future generations to enjoy.

Mr. KOHL

Mr. KOHL. Mr. President, today I am pleased to be a cosponsor of the Elder Justice Act of 2007. As in previous Congresses, I am an original cosponsor and fully support the bill's goals and passage. I want to thank Senators Hatch, Lincoln and Smith for their continued leadership to make sure that our Nation finally acts in a comprehensive way to prevent elder abuse. Our Nation has for far too long turned its back on the shame of elder abuse. Congress has held hearings on the devastating effects of elder abuse for a quarter of a century. With this bill, we are finally saying enough is enough--elder abuse is unacceptable and we are going to act to stop it. This bill takes several important steps to make improvements to what is now an inadequate system of protection for our vulnerable elders. First, it boosts funding for the long-term care ombudsman program, which serves as an advocate for the elderly and disabled in long-term care. It also establishes an adult protective services grant program and forensics centers that are charged with developing expertise on elder abuse. In addition, it elevates the importance of elder justice issues by creating a coordinating council of Federal agencies that will make policy recommendations and submit reports to Congress every 2 years. And the legislation requires the Departments of Labor and Health and Human Services to take a proactive role in funding initiatives aimed at improving training programs and working conditions for long- term care professionals as a strategy for increasing the number of such workers during the coming years. As much as I support this bill, however, I am disappointed that it does not include one important policy that can prevent abuse--a common- sense background check system that can screen out potential workers with serious criminal convictions that may put fragile seniors in long- term care at risk. Almost every day, we read terrible stories about elderly patients who are beaten, sexually assaulted, or robbed by the very people who are charged with their care. Research shows that many instances of elder abuse could be avoided by a simple background check. It is time to put in place a nationwide system that can detect and prevent elder abuse. The seven-State pilot program that began in 2003 is an excellent start. Already, it is showing that States can successfully implement comprehensive, cost-effective programs that consolidate checks from State registries, State criminal records, and FBI records. In the coming weeks, I plan to introduce legislation that will take steps to make these pilot programs a reality for all States. I hope my colleagues will join me in this effort. Again, I want to thank Senators Hatch, Lincoln, and Smith for their commitment to the cause of elder justice. The legislation we are introducing today will go a long way to focusing more attention on solutions for elder abuse, and developing new approaches to improve the quality of long-term care.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the Prevent All Cigarette Trafficking (PACT) Act with Senators Specter, Leahy, Kyl, and Schumer. As the problem of cigarette trafficking continues to worsen, we must provide law enforcement officials with the tools they need to crack down on cigarette trafficking. The PACT Act closes loopholes in current tobacco trafficking laws, enhances penalties for violations, and provides law enforcement with new tools to combat the innovative new methods being used by cigarette traffickers to distribute their products. Each day we delay its passage, terrorists and criminals raise more money, States lose significant amounts of tax revenue, and kids have easy access to tobacco products sold over the internet. The cost to Americans is not merely financial. Tobacco smuggling also poses a significant threat to innocent people around the world. It has developed into a popular, and highly profitable, means of generating revenue for criminal and terrorist organizations. Hezbollah, for example, earned $1.5 million between 1996 and 2000 by engaging in tobacco trafficking in the United States. Al Qaeda and Hamas have also generated significant revenue from the sale of counterfeit cigarettes. That money is often raised right here in the United States, and it is then funneled back to these international terrorist groups. Cutting off financial support to terrorist groups is an integral part of protecting this country against future attacks, and it was an important recommendation of the 9/11 Commission. We can no longer continue to let terrorist organizations exploit weaknesses in our tobacco laws to generate significant amounts of money. The cost of doing nothing is too great. This is not a minor problem. Cigarette smuggling is a multibillion dollar a year phenomenon and is getting worse. In 1998, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) had six active tobacco smuggling investigations. In 2005, that number swelled to 452. The number of cases alone, however, does not sufficiently put this problem into perspective. The amount of money involved is truly astonishing. Cigarette trafficking, including the illegal sale of tobacco products over the internet, costs States billions of dollars in lost tax revenue each year. It is estimated that $3.8 billion of tax revenue were lost, at the Federal and State level, in 2004 to tobacco smuggling. As lost tobacco tax revenue lines the pockets of criminals and terrorist groups, States are being forced to increase college tuition and restrict access to other public programs because of lost revenues. Tobacco smuggling may provide some with cheap access to cigarettes, but those cheap cigarettes are coming at a significant cost to the rest of us. According to the Government Accountability Office (GAO), cigarette trafficking investigations are growing more and more complex, and take longer to resolve. More people are selling cigarettes illegally, and they are getting better at it. As these cases become more difficult to crack, we owe it to law enforcement officials to do our part to lend a helping hand. The PACT Act does that by enhancing BATFE's authority to enter premises to investigate and enforce cigarette trafficking laws. It also increases penalties for cigarette trafficking. Unless these existing laws are strengthened, traffickers will continue to operate with near impunity. Just as important, though, we must enable our country's law enforcement officials to combat the cigarette smugglers of the 21st century. The internet represents a new obstacle to enforcement. Illegal tobacco vendors around the world evade detection by conducting transactions over the internet, and then shipping their illegal products around the country to consumers. Just a few years ago, there were less than 100 vendors selling cigarettes online. Today, approximately 500 vendors sell illegal tobacco products over the internet. Without new and innovative enforcement methods, law enforcement will not be able to effectively address the growing challenges facing them today. The PACT Act sets out to do just that by empowering States to go after out-of-State sellers who are violating their tax laws and by cutting off their method of delivery. A significant part of this problem involves the shipment of contraband cigarettes through the United States Postal Service (USPS). This bill would cut off online vendors' access to the USPS. We would treat cigarettes just like we treat alcohol, making it illegal to ship them through the U.S. mails and cutting off a large portion of the delivery system. In addition, it would facilitate cooperation between law enforcement and private carriers, who are sometimes the unwitting delivery arm of these tobacco traffickers. The bill authorizes the Attorney General to compile a list of sellers who are engaging in illegal cigarette sales, and that list would be distributed to private carriers, like UPS and FedEx. Providing this information to these companies, who have already begun to cooperate with law enforcement in this area, would then be empowered to cut off shipments for those of their customers who are engaging in tobacco smuggling. The PACT Act is a comprehensive bill to put these illegal smugglers out of business. It enjoys the strong support of tobacco companies, law enforcement officials, and the public health community. The bill contains important authorities that will enable our federal, state, and local law enforcement officials to crack down on cigarette trafficking, and thereby close off a very lucrative funding stream for international terrorist groups and other criminal enterprises. I urge my colleagues to support this important legislation. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to offer a bill that amends the Food Security Act of 1985 to provide incentives for landowners to protect and improve streams and riparian habitat. This legislation would provide cost-share payments to landowners who protect and repair streamside and in-stream habitat, improve water flow and quality and initiate watershed management and planning. The Stream Habitat Improvement Program, funded at $60 million annually, would direct resources to important fish habitat projects. The fisheries community has recognized the loss of habitat as a major threat to the health of sport fish populations. Farmers who participate in the program will make improvements on streams running through their property. Improvements could include repairing shoreline, removing barriers to fish passage, and planting trees to shade the water and strengthen stream banks. Further, existing partnerships, such as the National Fish Habitat Action Plan, could provide invaluable input to guide the program. Healthy fisheries mean healthy communities. The EPA and the Fish and Wildlife Service have found that 81 percent of all stream fish communities in the U.S. have been adversely affected by either pollution or other disturbances. Rivers and streams provide essential habitat for numerous plant and animal species. Many of these species are threatened, endangered, or at risk for extinction. Degraded and altered habitats are the most frequently cited factors contributing to the decline among threatened or endangered aquatic species and among many native recreational and non-game fish species. In Wisconsin alone there are almost 950,000 anglers, and almost half a million more come from out of State to fish in Wisconsin. Together these anglers spend $1 billion on fishing-related expenses in our State. This new program would advance efforts to support stream habitat restoration more effectively, which in turn will support a thriving economy and aquatic species populations. Further, healthy stream and river habitats also play an important role in the Nation's economy. Each year, about 34 million anglers spend $17 billion directly on fishing equipment and another $15 billion on trip-related expenses, food and lodging, and other recreational fishing-related expenses. Successful management of stream and river habitat requires cooperative partnerships among producers, landowners, as well as Federal and State agencies. Offering producers and private landowners incentives and opportunities for restoring stream habitat will prevent the decline and listing of aquatic species. Building strong relationships between farm owners, private landowners and the angler community ensures that healthy fisheries will be maintained for future generations to enjoy.

Mr. KOHL. Mr. President, I rise today to introduce the Prevent All Cigarette Trafficking (PACT) Act with Senators Specter, Leahy, Kyl, and Schumer. As the problem of cigarette trafficking continues to worsen, we must provide law enforcement officials with the tools they need to crack down on cigarette trafficking. The PACT Act closes loopholes in current tobacco trafficking laws, enhances penalties for violations, and provides law enforcement with new tools to combat the innovative new methods being used by cigarette traffickers to distribute their products. Each day we delay its passage, terrorists and criminals raise more money, States lose significant amounts of tax revenue, and kids have easy access to tobacco products sold over the internet. The cost to Americans is not merely financial. Tobacco smuggling also poses a significant threat to innocent people around the world. It has developed into a popular, and highly profitable, means of generating revenue for criminal and terrorist organizations. Hezbollah, for example, earned $1.5 million between 1996 and 2000 by engaging in tobacco trafficking in the United States. Al Qaeda and Hamas have also generated significant revenue from the sale of counterfeit cigarettes. That money is often raised right here in the United States, and it is then funneled back to these international terrorist groups. Cutting off financial support to terrorist groups is an integral part of protecting this country against future attacks, and it was an important recommendation of the 9/11 Commission. We can no longer continue to let terrorist organizations exploit weaknesses in our tobacco laws to generate significant amounts of money. The cost of doing nothing is too great. This is not a minor problem. Cigarette smuggling is a multibillion dollar a year phenomenon and is getting worse. In 1998, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) had six active tobacco smuggling investigations. In 2005, that number swelled to 452. The number of cases alone, however, does not sufficiently put this problem into perspective. The amount of money involved is truly astonishing. Cigarette trafficking, including the illegal sale of tobacco products over the internet, costs States billions of dollars in lost tax revenue each year. It is estimated that $3.8 billion of tax revenue were lost, at the Federal and State level, in 2004 to tobacco smuggling. As lost tobacco tax revenue lines the pockets of criminals and terrorist groups, States are being forced to increase college tuition and restrict access to other public programs because of lost revenues. Tobacco smuggling may provide some with cheap access to cigarettes, but those cheap cigarettes are coming at a significant cost to the rest of us. According to the Government Accountability Office (GAO), cigarette trafficking investigations are growing more and more complex, and take longer to resolve. More people are selling cigarettes illegally, and they are getting better at it. As these cases become more difficult to crack, we owe it to law enforcement officials to do our part to lend a helping hand. The PACT Act does that by enhancing BATFE's authority to enter premises to investigate and enforce cigarette trafficking laws. It also increases penalties for cigarette trafficking. Unless these existing laws are strengthened, traffickers will continue to operate with near impunity. Just as important, though, we must enable our country's law enforcement officials to combat the cigarette smugglers of the 21st century. The internet represents a new obstacle to enforcement. Illegal tobacco vendors around the world evade detection by conducting transactions over the internet, and then shipping their illegal products around the country to consumers. Just a few years ago, there were less than 100 vendors selling cigarettes online. Today, approximately 500 vendors sell illegal tobacco products over the internet. Without new and innovative enforcement methods, law enforcement will not be able to effectively address the growing challenges facing them today. The PACT Act sets out to do just that by empowering States to go after out-of-State sellers who are violating their tax laws and by cutting off their method of delivery. A significant part of this problem involves the shipment of contraband cigarettes through the United States Postal Service (USPS). This bill would cut off online vendors' access to the USPS. We would treat cigarettes just like we treat alcohol, making it illegal to ship them through the U.S. mails and cutting off a large portion of the delivery system. In addition, it would facilitate cooperation between law enforcement and private carriers, who are sometimes the unwitting delivery arm of these tobacco traffickers. The bill authorizes the Attorney General to compile a list of sellers who are engaging in illegal cigarette sales, and that list would be distributed to private carriers, like UPS and FedEx. Providing this information to these companies, who have already begun to cooperate with law enforcement in this area, would then be empowered to cut off shipments for those of their customers who are engaging in tobacco smuggling. The PACT Act is a comprehensive bill to put these illegal smugglers out of business. It enjoys the strong support of tobacco companies, law enforcement officials, and the public health community. The bill contains important authorities that will enable our federal, state, and local law enforcement officials to crack down on cigarette trafficking, and thereby close off a very lucrative funding stream for international terrorist groups and other criminal enterprises. I urge my colleagues to support this important legislation. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. KOHL. Mr. President, today I am pleased to be a cosponsor of the Elder Justice Act of 2007. As in previous Congresses, I am an original cosponsor and fully support the bill's goals and passage. I want to thank Senators Hatch, Lincoln and Smith for their continued leadership to make sure that our Nation finally acts in a comprehensive way to prevent elder abuse. Our Nation has for far too long turned its back on the shame of elder abuse. Congress has held hearings on the devastating effects of elder abuse for a quarter of a century. With this bill, we are finally saying enough is enough--elder abuse is unacceptable and we are going to act to stop it. This bill takes several important steps to make improvements to what is now an inadequate system of protection for our vulnerable elders. First, it boosts funding for the long-term care ombudsman program, which serves as an advocate for the elderly and disabled in long-term care. It also establishes an adult protective services grant program and forensics centers that are charged with developing expertise on elder abuse. In addition, it elevates the importance of elder justice issues by creating a coordinating council of Federal agencies that will make policy recommendations and submit reports to Congress every 2 years. And the legislation requires the Departments of Labor and Health and Human Services to take a proactive role in funding initiatives aimed at improving training programs and working conditions for long- term care professionals as a strategy for increasing the number of such workers during the coming years. As much as I support this bill, however, I am disappointed that it does not include one important policy that can prevent abuse--a common- sense background check system that can screen out potential workers with serious criminal convictions that may put fragile seniors in long- term care at risk. Almost every day, we read terrible stories about elderly patients who are beaten, sexually assaulted, or robbed by the very people who are charged with their care. Research shows that many instances of elder abuse could be avoided by a simple background check. It is time to put in place a nationwide system that can detect and prevent elder abuse. The seven-State pilot program that began in 2003 is an excellent start. Already, it is showing that States can successfully implement comprehensive, cost-effective programs that consolidate checks from State registries, State criminal records, and FBI records. In the coming weeks, I plan to introduce legislation that will take steps to make these pilot programs a reality for all States. I hope my colleagues will join me in this effort. Again, I want to thank Senators Hatch, Lincoln, and Smith for their commitment to the cause of elder justice. The legislation we are introducing today will go a long way to focusing more attention on solutions for elder abuse, and developing new approaches to improve the quality of long-term care.

Mr. KOHL

Mr. KOHL. Mr. President, today, along with Senator Feingold, I am introducing the Medicare Residency Program Technical Correction Act of 2007. This legislation will fix an unintended consequence of Section 422 of the Medicare Modernization Act of 2003 that has resulted in a decrease of family medical residents slots in Wisconsin's Fox Valley and potentially other family medicine practices across the Nation. Our bill would provide for an adjustment to the reduction of Medicare resident positions based on settled cost reports. For the last 2 years, I've been working with the University of Wisconsin School of Medicine and the Fox Valley Family Medicine Residency Program to urge CMS to restore funding for its residency training positions that was taken away as a result of an audit that incorrectly determined that the positions weren't used. Now, a Final Mediation Agreement between Appleton Medical Center and United Government Services demonstrates that the positions were being used and that the program met the Medicare requirement for those positions. I believe it is only fair that Appleton Medical Center's residency positions be reinstated. The Fox Valley Family Practice Residency Program is an important contributing member to the Fox Valley and surrounding community, providing health care services to some 10,000 families. This is exactly the type of program that we should be supporting, not reducing. My legislation will right this wrong and provide for the same opportunity for any other family medicine program that can demonstrate that its residency slots were erroneously de-funded by CMS. I ask that my Senate colleagues join me by supporting this bill. I ask unanimous consent that the text of the bill be printed the Record.

Mr. KOHL

Mr. KOHL. Madam President, today the Senate confronts the tragic situation facing us in Iraq. No Member of the Senate, the administration, or our Armed Forces is happy with where we stand in Iraq. A mission that began with the great success of our men and women in uniform has bogged down through no fault of theirs. With heavy hearts the Congress, after hearing the people speak in November, must now force a change in our policy in Iraq. We can no longer allow an open-ended commitment to Iraq that endangers our forces while allowing Iraqi politicians to delay the difficult choices they must make. S.J. Res. 9, which I support, calls on the President to begin the redeployment of our troops out of Iraq. After 4 long years they have been stretched to the breaking point. They now referee a bloody civil war that bears no resemblance to the original conflict we authorized them to engage in. The time for military solutions is over, and the difficult work of political compromise lies before the Iraqis with little our soldiers can do to help. The resolution does not require a rapid pullout, however, but gives time for a measured withdrawal that will protect our troops while providing support to the new Iraqi government. It sets March 2008 as a goal for our combat troops to be gone from Iraq--5 years after they first entered the country--but it provides flexibility if that is not possible. The March withdrawal goal is also in line with what the Iraq Study Group believed was appropriate. This reasonable goal will give Iraq's politicians time to make the difficult decisions they need to make about power sharing and dividing oil revenues. It will also give our troops time to complete the training and equipping of additional Iraqi police and security forces. Five years is plenty of time to help a new nation toward democracy--or prove that democracy cannot be imposed from the outside. Either way we cannot ask our military to continue their mission indefinitely. Critics of the resolution believe that withdrawing from Iraq will damage our national security, but I disagree. The ongoing conflict in Iraq is hurting our image in the world, it is hurting our economy, and it is hurting our military. This war is no longer protecting us, but according to our own intelligence community it is encouraging terrorists to take up arms against us. Our presence has kicked off a vicious circle of violence that makes us less secure--not more. We need to close the circle and end this cycle of violence. We all want a stable and peaceful Iraq, but it is time to recognize that the U.S. alone cannot achieve that goal. We need the help of the Iraqi people and the assistance of Iraq's neighbors. If we work together Iraq can get on its feet and repair the sectarian divide. But if we continue on our current path, bearing the burden by ourselves, the cycle of violence will erode our good efforts. It is time for a change. It is time for us to shift the burden to the Iraqis and help them carry it forward.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the No Oil Producing and Exporting Cartels Act of 2007 (``NOPEC''). It is time for the U.S. government to fight back on the price of oil and hold OPEC accountable when it acts illegally. This bill will hold OPEC member nations to account under U.S. antitrust law when they agree to limit supply or fix price in violation of the most basic principles of free competition. Our bill will authorize the Attorney General to file suit against nations or other entities that participate in a conspiracy to limit the supply, or fix the price, of oil. In addition, it will expressly specify that the doctrines of sovereign immunity and act of state do not exempt nations that participate in oil cartels from basic antitrust law. I have introduced this bill in each Congress since 2000. This legislation has passed the Judiciary Committee unanimously three times since it was first introduced, and in 2005 passed the full Senate by voice vote as an amendment to the Energy Bill before being stripped from that bill in the conference committee. It is now time, in this new Congress, to finally pass this legislation into law and give our Nation a long needed tool to counteract this pernicious and anti-consumer conspiracy. Throughout the last year, consumers all across the Nation watched gas prices rise to previously unimagined levels. As crude oil prices exceeded $40, then $50 and then $60 per barrel, retail prices of gasoline over $3.00 per gallon became commonplace. While prices temporarily receded last fall, the general trend is significantly upwards, and prices are rising even today. Gas prices have increased 32 cents in the last month alone to a national average of $2.56 per gallon, a nearly 15 percent increase in just one month. As we consider gas price changes, one fact has remained consistent any move downwards in price ends as soon as OPEC decides to cut production. Referring to the 18 percent rise in worldwide crude oil prices since the start of the year, OPEC President Mohammed al-Hamli commented ``we had a bad situation at the beginning of the year. It is much better now.'' The difference--combined output cuts of 1.7 million barrels of oil a day adopted by OPEC last October and December driving up crude oil prices. And while OPEC enjoys its newfound riches, the average American consumer suffers every time he or she visits the gas pump or pays a home heating bill. So there is no doubt that the price of crude oil dances to the tune set by OPEC members. Such blatantly anti-competitive conduct by the oil cartel violates the most basic principles of fair competition and free markets and should not be tolerated. Real people suffer real consequences every day in our Nation because of OPEC's actions. Rising gas prices are a silent tax that takes hard- earned money away from Americans every time they visit the gas pump. Higher oil prices drive up the cost of transportation, harming thousands of companies throughout the economy from trucking to aviation. And those costs are passed on to consumers in the form of higher prices for manufactured goods. Higher oil prices mean higher heating oil and electricity costs. Anyone who has gone through a Midwest winter can tell you about the tremendous personal costs associated with higher home heating bills. We have all heard many explanations offered for rising energy prices. Some say that the oil companies are gouging consumers. Some blame disruptions in supply. Others point to the EPA requirement mandating use of a new and more expensive type of ``reformulated'' gas in the Midwest or other ``boutique'' fuels around the country. Some even claim that refiners and distributors have illegally fixed prices. On this issue, I have repeatedly asked the Federal Trade Commission to investigate these allegations. As a result of our requests, the FTC has put a task force in place to find out if those allegations were true. While we continue to urge the FTC to be vigilant, the FTC has to date found no evidence of illegal domestic price fixing as a cause of higher gas prices. But one cause of these escalating prices is indisputable: the price fixing conspiracy of the OPEC nations. For years, this conspiracy has unfairly driven up the cost of imported crude oil to satisfy the greed of the oil exporters. We have long decried OPEC, but, sadly, no one in government has yet tried to take any action. Our bill will, for the first time, establish clearly and plainly that when a group of competing oil producers like the OPEC nations act together to restrict supply or set prices, they are violating U.S. law. The bill will not authorize private lawsuits, but it will authorize the Attorney General to file suit under the antitrust laws for redress. Our bill will also make plain that the nations of OPEC cannot hide behind the doctrines of ``sovereign immunity'' or ``act of state'' to escape the reach of American justice. In so doing, our bill will overrule one twenty-year old lower court decision which incorrectly failed to recognize that the actions of OPEC member nations was commercial activity exempt from the protections of sovereign immunity. The most fundamental principle of a free market is that competitors cannot be permitted to conspire to limit supply or fix price. There can be no free market without this foundation. And we should not permit any nation to flout this fundamental principle. Some critics of this legislation have argued that suing OPEC will not work or that threatening suit will hurt more than help. I disagree. Our NOPEC legislation will, for the first time, enable our Justice Department to take legal action to combat the illegitimate price-fixing conspiracy of the oil cartel. It will, at a minimum, have a real deterrent effect on nations that seek to join forces to fix oil prices to the detriment of consumers. This legislation will be the first real weapon the U.S. government has ever had to deter OPEC from its seemingly endless cycle of price increases. There is nothing remarkable about applying U.S. antitrust law overseas. Our government has not hesitated to do so when faced with clear evidence of anti-competitive conduct that harms American consumers. A few years ago, for example, the Justice Department secured record fines totaling $725 million against German and Swiss companies engaged in a price fixing conspiracy to raise and fix the price of vitamins sold in the United States and elsewhere. Their behavior harmed consumers by raising the prices consumers paid for vitamins every day and plainly needed to be addressed. As this and other cases show, the mere fact that the conspirators are foreign nations is no basis to shield them from violating these most basic standards of fair economic behavior. Even under current law, there is no doubt that the actions of the international oil cartel would be in gross violation of antitrust law if engaged in by private companies. If OPEC were a group of international private companies rather than foreign governments, their actions would be nothing more than an illegal price fixing scheme. But OPEC members have used the shield of ``sovereign immunity'' to escape accountability for their price-fixing. The Foreign Sovereign Immunities Act, though, already recognizes that the ``commercial'' activity of nations is not protected by sovereign immunity. And it is hard to imagine an activity that is more obviously commercial than selling oil for profit, as the OPEC nations do. Our legislation will establish that the sovereign immunity doctrine will not divest a U.S. court from jurisdiction to hear a lawsuit alleging that members of the oil cartel are violating antitrust law. The suffering of consumers across the Nation in the last year has made me more certain than ever that this legislation is necessary. Between OPEC's repeated decisions to cut oil production and the FTC's conclusion for the last several years that there is no illegal conduct by domestic companies responsible for rising gas prices, I am convinced that we need to take action, and take action now, before the damage spreads too far. I urge my colleagues to support our legislation so that our Nation will finally have an effective means to combat this price-fixing conspiracy of oil-rich nations. Thank you. I ask unanimous consent that the text of this bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the No Oil Producing and Exporting Cartels Act of 2007 (``NOPEC''). It is time for the U.S. government to fight back on the price of oil and hold OPEC accountable when it acts illegally. This bill will hold OPEC member nations to account under U.S. antitrust law when they agree to limit supply or fix price in violation of the most basic principles of free competition. Our bill will authorize the Attorney General to file suit against nations or other entities that participate in a conspiracy to limit the supply, or fix the price, of oil. In addition, it will expressly specify that the doctrines of sovereign immunity and act of state do not exempt nations that participate in oil cartels from basic antitrust law. I have introduced this bill in each Congress since 2000. This legislation has passed the Judiciary Committee unanimously three times since it was first introduced, and in 2005 passed the full Senate by voice vote as an amendment to the Energy Bill before being stripped from that bill in the conference committee. It is now time, in this new Congress, to finally pass this legislation into law and give our Nation a long needed tool to counteract this pernicious and anti-consumer conspiracy. Throughout the last year, consumers all across the Nation watched gas prices rise to previously unimagined levels. As crude oil prices exceeded $40, then $50 and then $60 per barrel, retail prices of gasoline over $3.00 per gallon became commonplace. While prices temporarily receded last fall, the general trend is significantly upwards, and prices are rising even today. Gas prices have increased 32 cents in the last month alone to a national average of $2.56 per gallon, a nearly 15 percent increase in just one month. As we consider gas price changes, one fact has remained consistent any move downwards in price ends as soon as OPEC decides to cut production. Referring to the 18 percent rise in worldwide crude oil prices since the start of the year, OPEC President Mohammed al-Hamli commented ``we had a bad situation at the beginning of the year. It is much better now.'' The difference--combined output cuts of 1.7 million barrels of oil a day adopted by OPEC last October and December driving up crude oil prices. And while OPEC enjoys its newfound riches, the average American consumer suffers every time he or she visits the gas pump or pays a home heating bill. So there is no doubt that the price of crude oil dances to the tune set by OPEC members. Such blatantly anti-competitive conduct by the oil cartel violates the most basic principles of fair competition and free markets and should not be tolerated. Real people suffer real consequences every day in our Nation because of OPEC's actions. Rising gas prices are a silent tax that takes hard- earned money away from Americans every time they visit the gas pump. Higher oil prices drive up the cost of transportation, harming thousands of companies throughout the economy from trucking to aviation. And those costs are passed on to consumers in the form of higher prices for manufactured goods. Higher oil prices mean higher heating oil and electricity costs. Anyone who has gone through a Midwest winter can tell you about the tremendous personal costs associated with higher home heating bills. We have all heard many explanations offered for rising energy prices. Some say that the oil companies are gouging consumers. Some blame disruptions in supply. Others point to the EPA requirement mandating use of a new and more expensive type of ``reformulated'' gas in the Midwest or other ``boutique'' fuels around the country. Some even claim that refiners and distributors have illegally fixed prices. On this issue, I have repeatedly asked the Federal Trade Commission to investigate these allegations. As a result of our requests, the FTC has put a task force in place to find out if those allegations were true. While we continue to urge the FTC to be vigilant, the FTC has to date found no evidence of illegal domestic price fixing as a cause of higher gas prices. But one cause of these escalating prices is indisputable: the price fixing conspiracy of the OPEC nations. For years, this conspiracy has unfairly driven up the cost of imported crude oil to satisfy the greed of the oil exporters. We have long decried OPEC, but, sadly, no one in government has yet tried to take any action. Our bill will, for the first time, establish clearly and plainly that when a group of competing oil producers like the OPEC nations act together to restrict supply or set prices, they are violating U.S. law. The bill will not authorize private lawsuits, but it will authorize the Attorney General to file suit under the antitrust laws for redress. Our bill will also make plain that the nations of OPEC cannot hide behind the doctrines of ``sovereign immunity'' or ``act of state'' to escape the reach of American justice. In so doing, our bill will overrule one twenty-year old lower court decision which incorrectly failed to recognize that the actions of OPEC member nations was commercial activity exempt from the protections of sovereign immunity. The most fundamental principle of a free market is that competitors cannot be permitted to conspire to limit supply or fix price. There can be no free market without this foundation. And we should not permit any nation to flout this fundamental principle. Some critics of this legislation have argued that suing OPEC will not work or that threatening suit will hurt more than help. I disagree. Our NOPEC legislation will, for the first time, enable our Justice Department to take legal action to combat the illegitimate price-fixing conspiracy of the oil cartel. It will, at a minimum, have a real deterrent effect on nations that seek to join forces to fix oil prices to the detriment of consumers. This legislation will be the first real weapon the U.S. government has ever had to deter OPEC from its seemingly endless cycle of price increases. There is nothing remarkable about applying U.S. antitrust law overseas. Our government has not hesitated to do so when faced with clear evidence of anti-competitive conduct that harms American consumers. A few years ago, for example, the Justice Department secured record fines totaling $725 million against German and Swiss companies engaged in a price fixing conspiracy to raise and fix the price of vitamins sold in the United States and elsewhere. Their behavior harmed consumers by raising the prices consumers paid for vitamins every day and plainly needed to be addressed. As this and other cases show, the mere fact that the conspirators are foreign nations is no basis to shield them from violating these most basic standards of fair economic behavior. Even under current law, there is no doubt that the actions of the international oil cartel would be in gross violation of antitrust law if engaged in by private companies. If OPEC were a group of international private companies rather than foreign governments, their actions would be nothing more than an illegal price fixing scheme. But OPEC members have used the shield of ``sovereign immunity'' to escape accountability for their price-fixing. The Foreign Sovereign Immunities Act, though, already recognizes that the ``commercial'' activity of nations is not protected by sovereign immunity. And it is hard to imagine an activity that is more obviously commercial than selling oil for profit, as the OPEC nations do. Our legislation will establish that the sovereign immunity doctrine will not divest a U.S. court from jurisdiction to hear a lawsuit alleging that members of the oil cartel are violating antitrust law. The suffering of consumers across the Nation in the last year has made me more certain than ever that this legislation is necessary. Between OPEC's repeated decisions to cut oil production and the FTC's conclusion for the last several years that there is no illegal conduct by domestic companies responsible for rising gas prices, I am convinced that we need to take action, and take action now, before the damage spreads too far. I urge my colleagues to support our legislation so that our Nation will finally have an effective means to combat this price-fixing conspiracy of oil-rich nations. Thank you. I ask unanimous consent that the text of this bill be printed in the Record.

Mr. KOHL. Mr. President, I rise today to introduce the Oil Industry Merger Antitrust Enforcement Act. This legislation will significantly strengthen the antitrust laws to prevent anti-competitive mergers and acquisitions in the oil and gas industry. We have all seen the suffering felt by consumers and our national economy resulting from rising energy prices. Last year, gasoline prices shattered the once unthinkable $3.00 a gallon level, before receding in the fall. Prices are on the move upward once again, having increased by 15 percent in the last month alone. And prices for other crucial energy products--such as natural gas and home heating oil--have undergone similar sharp increases in the last year. Industry experts debate the causes of these extraordinarily high prices. Possible culprits are growing worldwide demand, supply disruptions, the actions of the OPEC oil cartel and limits on refinery capacity in the United States. But we cannot overlook one important factor--the substantial rise in concentration and consolidation in the oil industry. Since 1990, the Government Accountability Office has counted over 2,600 mergers, acquisitions and joint ventures in the oil industry. Led by gigantic mergers such as Exxon/Mobil, BP/Arco, Conoco/ Phillips and Chevron/Texaco, by 2004, the five largest U.S. oil refining companies controlled over 56 percent of domestic refining capacity, a greater market share than that controlled by the top ten companies a decade earlier. This merger wave has led to substantially less competition in the oil industry. In 2004, the GAO concluded that these mergers have directly caused increases in the price of gasoline. A study by the independent consumer watchdog Public Citizen found that in the five years between 1999 and 2004, U.S. oil refiners increased their average profits on every gallon of gasoline refined from 22.8 cents to 40.8 cents, a 79 percent jump. And the grossly inflated profit numbers of the major oil companies--led by Exxon Mobil's $8.4 billion profit in the first quarter of 2006, which followed its $36 billion profit in 2005, the highest corporate profits ever achieved in U.S. history, are conclusive evidence--if any more was needed--of the lack of competition in the U.S. oil industry. While it is true that the world price of crude oil has substantially increased, the fact that the oil companies can so easily pass along all of these price increases to consumers of gasoline and other refined products--and greatly compound their profits along the way--confirms that that there is a failure of competition in our oil and gas markets. More than 90 years ago, one of our Nation's basic antitrust laws--the Clayton Act--was written to prevent just such industry concentration harming competition. It makes illegal any merger or acquisition the effect of which ``may be substantially to lessen competition.'' Despite the plain command of this law, the Federal Trade Commission the Federal agency with responsibility for enforcing antitrust law in the oil and gas industry has failed to take any effective action to prevent undue concentration in this industry. Instead, it permitted almost all of these 2,600 oil mergers and acquisitions to proceed without challenge. And where the FTC has ordered divestitures, they have been wholly ineffective to restore competition. Consumers have been at the mercy of an increasingly powerful oligopoly of a few giant oil companies, passing along price increases without remorse as the market becomes increasingly concentrated and competition diminishes. It is past time for us in Congress to take action to strengthen our antitrust law so that it will, as intended, stand as a bulwark to protect consumers and prevent any further loss of competition in this essential industry. Our bill will strengthen merger enforcement under the antitrust law in two respects. First, it will direct that the FTC, in conjunction with the Justice Department, revise its Merger Guidelines to take into account the special conditions prevailing in the oil industry. In reviewing a pending merger or acquisition to determine whether to approve it or take legal action to block it, the FTC follows what are known as ``Merger Guidelines.'' The Merger Guidelines set forth the factors that the agency must examine to determine if a merger or acquisition lessens competition, and sets forth the legal tests the FTC is to follow in deciding whether to approve or challenge a merger. As presently written, the Merger Guidelines fail to direct the FTC, when reviewing an oil industry merger, to pay any heed at all to the special economic conditions prevailing in that industry. Our bill will correct this deficiency. Many special conditions prevail in the oil and gas marketplace that warrant scrutiny, conditions that do not occur in other industries, and the Merger Guidelines should reflect these conditions. In most industries, when demand rises and existing producers earn ever-increasing profits, new producers enter the market and new supply expands, reducing the pressure on price. However, in the oil industry, there are severe limitations on supply and environmental and regulatory difficulty in opening new refineries, so this normal market mechanism cannot work. Additionally, in most industries, consumers shift to alternative products in the face of sharp price increases, leading to a reduction in demand and a corresponding reduction in the pressure to increase prices. But for such an essential commodity as gasoline, consumers have no such option they must continue to consume gasoline to get to work, to go to school, and to shop. These factors all mean that antitrust enforcers should be especially cautious about permitting increases in concentration in the oil industry. Accordingly, our bill directs the FTC and Justice Department to revise their Merger Guidelines to take into account the special conditions prevailing in the oil industry--including the high inelasticity of demand for oil and petroleum-related products; the ease of gaining market power; supply and refining capacity limits; difficulties of market entry; and unique regulatory requirements applying to the oil industry. This revision of the Merger Guidelines must be completed within six months of enactment of this legislation. The second manner in which this legislation will strengthen antitrust enforcement will be to shift the burden of proof in Clayton Act challenges to oil industry mergers and acquisitions. In such cases, the burden will be placed on the merging parties to establish, by a preponderance of evidence, that their transaction does not substantially lessen competition. This provision would reverse the usual rule that the government or private plaintiff challenging the merger must prove that the transaction harms competition. As the parties seeking to effect a merger with a competitor in an already concentrated industry, and possessing all the relevant data regarding the transaction, it is entirely appropriate that the merging parties bear this burden. This provision does not forbid all mergers in the oil industry--if the merging parties can establish that their merger does not substantially harm competition, it may proceed. However, shifting the burden of proof in this manner will undoubtedly make it more difficult for oil mergers and acquisition to survive court challenge, thereby enhancing the law's ability to block truly anti-competitive transactions and deterring companies from even attempting such transactions. In today's concentrated oil industry and with consumers suffering record high prices, mergers and acquisitions that even the merging parties cannot justify should not be tolerated. As Chairman of the Senate Antitrust Subcommittee, I believe that this bill is a crucial step to ending this unprecedented move towards industry concentration and to begin to restore competitive balance to the oil and gas industry. Since the days of the break-up of the Standard Oil trust one hundred years ago, antitrust enforcement has been essential to prevent undue concentration in this industry. This bill is an essential step to ensure that our antitrust laws are sufficiently strong to ensure a competitive oil industry in the 21st century. I urge my colleagues to support the Oil Industry Merger Antitrust Enforcement Act. I ask unanimous consent that the text of this bill be printed in the Record.