Jon Kyl

Mr. KYL

Mr. KYL. And second, to note that while that is true, while it was our intention, while we wrote the exact words in the statute, it has not worked. And I think we agree on that. So, yes, the answer to the first question is there are different provisions--that is the whole point--to make it work because it has not worked in the past. The administration itself, CEQ, pointed out the fact that it would be pretty inconsistent to argue you should have cost-benefit analysis before, but now it is not appropriate. But the second question I think the Senator asks is the more difficult question and the one that is really important--and I respect the Senator for raising the issue--namely, we want to get on with the cleanup of these sites. Will this cause a delay or not? That is a very legitimate question. But I think, again, there are two answers. One, reasonable people can differ whether it will cause delay. We do not want it to cause delay, but we want it to do the right thing, and that is the other point here. We have to do the right thing. A lot of us believe we are spending millions and billions of dollars, really, in activities which are totally nonproductive where the risks are exceedingly low, where we ought not be wasting our money, and there are other sites that just beg to be cleaned up. Perhaps one of them is the example the Senator from Montana cited where we have to get on with it and prioritize those sites and get the job done where the cost clearly is outweighed by the benefits to be achieved. So that is the kind of analysis in which to engage. Instead, what we have is taxpayers paying lawyers and consultants billions of dollars to essentially waste time, dollars that are not only Government dollars but also small business dollars and other business dollars, and that is what we are trying to resolve with this legislation. Mr. BAUCUS addressed the Chair.

Mr. KYL. Thank you, Mr. President. I would like to make a few remarks regarding Superfund and the reasons why it is included in this legislation. There are a couple of anomalous things about the Superfund law. One of them is that there is no judicial review. And I think it is no coincidence that one of the laws that is working least well, a point that all of us would agree on, is also a law that provides for no judicial review. The second thing is that the Superfund law actually does provide today for some cost- benefited analysis and risk assessment. So it is not a new concept when applied to this law. But the bill before us, the Dole-Johnston amendment, would really provide a more precise and meaningful procedure for applying that cost- benefit analysis to Superfund so that the net result should be not more costly studies and delay, but a more precise application of a principle which is already required and which should make much more efficient the process for deciding the priority of sites to be cleaned up, and probably also make it easier if the judicial review provisions are put into place to really test those that need to be tested and allow the others to proceed to clean up. So we believe that S. 343 establishes strong, good requirements to do the right kind of risk assessment and cost-benefit analysis for Superfund cleanups. And, of course, the point also here is that it is in those cases that exceed $10 million. Now, we have heard arguments here by some that would like to see this section removed from the bill. I will make the point first of all that there is much more than Superfund in the amendment which would be removed from this bill. We will leave that for others to discuss. But just to focus on the question of whether the Superfund provision should be removed, in many respects Superfund is an example of the best of the worst. Unlike many other programs with tangible results, Superfund has almost nothing to show for its billions of dollars in expenditures of public and private funds, I might add. And again, this is a point upon which a lot of us would agree: Superfund has just not met the expectations that we had for it at the time that it was adopted. So clearly, more effective risk and cost- benefit analysis are desperately needed for the program. These are the tools that the Government can use in carrying out the requirements of the law. So instead of trying to remove these provisions from the bill, we ought to be strengthening those procedures so we can really do the prioritization necessary to get to the job of cleaning up the sites that need to be cleaned up and leaving the others alone. As I said before, also ironically, Superfund already requires cost- benefit analysis. It requires the President to select appropriate remedial actions that ``provide for cost effective response'' and to consider both the short-term and long-term costs of the actions. It requires the President to establish a regulation called the national contingency plan to carry out the requirements of the statute. This plan has several requirements that would contain methods for analysis of relative costs or remedial actions; means for assuring that remedial actions are cost-effective over time; criteria based on relative risk or danger for determining priorities among releases of hazardous substances for purposes of taking remedial action. The national contingency plan also requires a baseline risk assessment to be performed for every remedial action. This means that for every Superfund cleanup, a risk assessment is supposed to be done right now. It requires the President to identify priority sites that require remedial action through a hazard ranking system that must--again, I am quoting--``assess the relative degree of risk.'' [[Page S 9850]] So to suggest that somehow both cost-benefit and risk assessment are inconsistent with the Superfund is to ignore existing law. It is in the existing law. So by taking it out of that provision, we are not removing that concept. But what we are doing is preventing ourselves from providing a more effective means of applying the cost-benefit and risk assessment to Superfund. Now what happens at the typical Superfund site? I exaggerate almost none here, Mr. President. You have a release of some kind of hazardous substance discovered. The presence of this substance in the environment may or may not be harmful. Before that is even determined, practically every small business in the community that has ever had any contact with the site at all gets a letter. The letter basically says, ``We think you are liable. Prove to us that you are not.'' So immediately, you have all of the small businesses and some big businesses, too, immediately put into the position of being in a group of defendants having to try to prove that they are not liable for something that frequently occurred a long time ago without knowledge on their part. The costs to small business are very high. And it costs more than just money. The cost in time, in terror, literally, in toil and frustration in dealing with the alleged Superfund liability is one of the most gross aberrations in our legal system that we have on the books today, which is one of the reasons why there has been a lot of discussion about the reform of Superfund that hopefully we will get a little later. But every mom and pop operation that sent trash to a landfill that became a Superfund site knows exactly what I mean. The strict joint and several retroactive liability in this law is dragging down small business for the third time. And the recourse? Essentially none. Because unlike other laws and unlike S. 343 before us, Superfund expressly prohibits judicial review. Now, is that really what the opponents of this law applied to Superfund want? I do not think it is coincidence, as I said before, that the most oppressive and maligned and dysfunctional environmental program we have is also the one that prohibits redress in the courts. This is something on which we are all in agreement. So why can we not agree to provide judicial review to Superfund? Why is there opposition to having regulatory reform for Superfund in this bill? Even the administration has said it needs to go forward. In a memorandum prepared by the Council on Environmental Quality, the administration correctly pointed out the blatant inconsistencies regarding its posture regarding S. 343 and its position on regulatory reform and cleanup statutes. Here is what this memo states: That opposition to the intent of the cleanup provision in S. 343 is ``inconsistent with several administration policies.'' Quoting again. ``The administration has repeatedly testified that cost-benefit analysis is a `useful tool' in making cleanup decisions.'' Again quoting. ``EPA, DOD, and DOE have made well-publicized commitments to more realistic risk analysis in cleanup activity,'' exactly what we are talking about in this bill. Executive Order 12866 requires cost-benefit analysis for regulations over $100 million. Many cleanups exceed this amount and the total cost of cleanup activities approaches or exceeds $400 billion. Quoting from this memorandum: It will be hard, politically and logically, to defend application of the cost-benefit comparison to the former decisions and not the latter. This is the administration speaking. Now, critics of this section argue that these reforms should be addressed in the Superfund reauthorization, and that is an appropriate place to deal with some of the reforms we are talking about. That is not to suggest, however, that in a bill dealing with cost- benefit analysis and risk assessment and judicial review those matters should not be dealt with in this legislation. I know that Senator Smith, and others who have spoken here, members of the Environment and Public Works Committee, have been working very hard, but Superfund reauthorization may not be completed this year. I know the committee that I sit on, Energy and Natural Resources, understands the toll this program is taking on industrial facilities, small businesses and understands the need to get on with the process of reform of the process as opposed to the substance, which will, of course, be covered in the reauthorization. We are cutting our training and operation budgets in the military services and yet we keep getting higher price tags for installation cleanups. I cannot even begin to tell you what the runaway cleanup costs translate to in the Department of Energy. So, Mr. President, in conclusion, I believe that the Superfund cleanup provisions in this legislation are entirely consistent with existing law. They are consistent with planned administrative reforms that the Clinton administration is putting in place even now, as indicated by the memorandum I cited, and, perhaps most important, I think many of us would agree that Superfund is not a level playing field, that small business is being savaged by what amounts to institutionalized extortion from regulations. Federal and State regulators have ignored the risk and cost considerations throughout the process, in spite of the statutory requirement to consider those factors, and that is why this legislation is needed. The program is so badly broken and so desperately in need of major change, largely because the degree and the costs of cleanup have proceeded virtually unchecked for years. Simply having these provisions in this bill has brought about a new willingness on the part of regulators to be more realistic in the remedial action selection process. The Superfund provisions of S. 343 are consistent with the law, are a needed reform of the remedy selection process, and are an appropriate and necessary reform of one of the most expensive, intimidating and crushing regulatory programs for small business in the history of this country.

Mr. KYL. Precisely the correct question to ask, and I appreciate it, because it applies not only to this issue but several others in other aspects of this legislation. We have Executive orders since the administration of President Ford, for example, which require cost- benefit analysis, but almost all of us, I think, are in agreement that they have not worked. The procedures are not in place to force compliance and to provide for appropriate judicial review. So what I am saying is that while there is a requirement for cost- benefit analysis and risk assessment in the existing law, it is not working, and the provisions of this bill will allow it to work in a way which gets to the other point that the Senator from Montana was raising, and that is that we have spent a lot of money and do not have a lot to show for it.

Mr. KYL. We should not delay any longer. I think this legislation will make the existing regulations workable for the first time.

Mr. KYL. Sure. The entire section that establishes the procedure and the judicial review, which is missing from the Superfund legislation, will make it possible for individuals to insist that proper risk assessment and cost-benefit analysis is applied, and if it is not, a remedy will exist to require it to be applied, something which does not exist today.

Mr. KYL. First of all, the Senator is absolutely correct. The provisions of this bill are somewhat different from existing law with respect to the specific tests for cost-benefit analysis and risk assessment. That is the whole point. My point in pointing out that cost-benefit analysis and risk assessment are already part of Superfund was to illustrate two things: First, that the concept is not alien or inimical to Superfund. This is something that we have already said should be a part of our analysis for Superfund cleanups.

Mr. KYL. If I could just go on.

Mr. KYL. I will be happy to yield. Of course.

Mr. KYL

Mr. KYL. Will my friend yield on that?

Mr. KYL. Senator Dole came to the floor to offer the amendment to take away the political argument, because a red herring, as it were, was being raised, an argument that somehow his bill was going to permit people to get sick when, in fact, the bill would not do that at all. But to get the issue off the table so people would not continue to talk about it, he said, ``Fine, we will create a belt and suspenders. The bill already prohibits it, but we will make it crystal clear so that argument cannot be made anymore, so people cannot scare people.'' May I make one other point?

Mr. KYL. Will the Senator yield?

Mr. KYL. Mr. President, I would like to speak for a moment in support of the Dole amendment, and therefore in support of this legislation as we will amend it. The question before us is whether or not benefits justify costs. That is really all we want to know. Given that the Judiciary Committee's report places the regulatory burden on our economy at over $881 billion, I think that is a reasonable question to ask. That averages just under $6,000 for every household in this country--$6,000 that families in this country cannot spend on other things because the money has to be given to the Government or has to be used in other ways to comply with the costs of regulation. That is why these costs are cloaked in what amounts to a hidden tax. They are passed on through lower wages, through higher State and local taxes, through higher prices, through slower growth and fewer jobs. I said fewer jobs. According to William Laffer in a 1993 Heritage Foundation report, and I am quoting: There are at least three million fewer jobs in the American economy today than would have existed if the growth of regulation over the last 20 years had been slower and regulations more efficiently managed. To put it in perspective further, the Americans for Tax Reform Foundation found that each year Americans work until May 5 to pay for all Government spending. If you add the cost of regulations, each American has to work until July 10--I believe that was yesterday--in order to pay for all of the taxes and regulations imposed upon us. That is over a half year of work to pay the total cost of Government, and 2 months of that hard work must pay for the costs of regulation. As I said, that is money families could spend making their own decisions on how to spend for their own health care, safety, and education. According to a 1993 IPI policy report, regulations add as much as 95 percent to the price of a new vaccine. And Justice Breyer, who has recently been elevated to the Supreme Court, wrote a book called ``Breaking the Vicious Circle,'' in which he poses the following question: ``Does it matter if we spend too much overinsuring our safety?'' And he answers his own question. ``The money is not, nor will it be, there to spend, at least not if we want to address more serious environmental or social problems--the need for better prenatal care, vaccinations and cancer diagnosis, let alone daycare, housing, and education.'' In other words, Mr. President, it is foregone opportunity in the sense that by spending this money on something where its benefits are marginal, we are precluded from spending it on things that could really be more important and helpful to us. Cost-benefit analysis, some people say, is a new and a foreign concept. Well, businesses fail if they do not utilize cost-benefit analysis. At every turn, individuals are confronted with decisions that require weighing the pluses and minuses and the benefits and costs. These are decisions that we make every day. We call it common sense. When we decide to get in our automobile and drive somewhere, we know that the national highway fatality and accidents statistics weigh fairly heavily toward the possibility that sometime in our life we are going to be involved in an accident in which we are going to be harmed and yet we consciously make the decision that because the benefits to us of arriving at our destination using our automobile are worth more than the risks, we decide to take those risks. In another more simple example, we cross the street every day, and most of us understand that there is some degree of risk in crossing the street; people are harmed every day by doing that, but the benefits of us getting to our destination exceed the costs, or the potential risk to us in making that particular trip. So as human beings, as families, as individuals, we make decisions, many decisions every day that involve some theoretical and sometimes not so theoretical risks to ourselves. Yet we do that knowingly, and we do that understanding that sometimes benefits can outweigh those risks. It is the application of common sense. And what we are asking for with respect to the regulations that are imposed upon us, is that there be a little bit more common sense, a little bit more care to go into the development of these regulations. Now, one of my colleagues this morning spoke, and I thought made an excellent point, that Government generally is supposed to do for us what we cannot do for ourselves. Most of us believe that. We appreciate the fact that in many cases we cannot as individuals understand the risks involved and we cannot police everything that could pose a particular risk to us. And so we ask the Government to do that for us. We empower Government agencies to do tests, to do analysis, and to actually establish standards. Then they frequently report those standards to us on a product or on a label or by some regulation precluding the manufacture or use of something that would be dangerous to us. We do that certainly in our food industry in a way that is understood by all, in the approval of drugs and in many, many other ways. We ask the Government to do for us what we cannot do for ourselves, to understand the risks. That is called a risk assessment, to do a cost- benefit analysis. Indeed, most Presidents since President Ford have, in fact all Presidents I think have, in effect, imposed a cost-benefit [[Page S 9674]] analysis requirement on most Government agencies as a matter of Executive order. The problem is it is enforced more in the breach than in the compliance. And so many agencies do not follow that cost-benefit analysis in the establishment of regulations. And that, I will get back to, is basically what we are asking these Government agencies to do. When we give to them the obligation of protecting us in some way, we want them to do it in a way that represents common sense and at the least cost consistent with the protection which we want. Now, there is an argument that has been made that the regulatory agencies ought to be expected to exercise the same sort of common sense that individuals do. I want to make a couple points about that. First of all, Mr. President, whenever we hand power to the Government, it should be viewed with a special or through a special lens because the Government exercises power far beyond that which can be exercised by any of us as individuals or even as a business organization. Some call it the heavy hand of Government. But we all appreciate the fact that when we pass a law in the Congress, and when the executive branch agencies of Government administer that law pursuant to our direction, they are doing so under the color of, under the authority of, under the color of law--the power of the Government to enforce that law. And we as citizens are supposed to know what that law is. We all learned in school that ignorance of the law is no excuse. And yet there are over 20 million words of regulation today, about 36,000 pages of regulations in the Federal Register. We cannot all be expected to know what those are. We do not need to know what they all are. But I daresay that there are a lot of regulations that could end up suggesting that we are in violation of some law that, in fact, we do not even know about. That is certainly the case with a lot of businesses. The fact is there are a lot of regulations. They have behind them the power of the law to enforce them. So when we ask the Government to do something for us, we should be very careful about ceding too much authority, because the Government can, in the enforcement of those regulations, impose fines and impose other kinds of penalties upon us. And, of course, the stories in the newspapers and so on are full of stories about examples of situations in which an innocent citizen has gotten himself or herself into hot water because he has run afoul of some Federal regulation, frequently of which he was not even aware. So, when we say, well, a Federal bureaucrat can certainly be trusted to exercise the same degree of common sense that an ordinary citizen would, we appreciate the hard work that our so-called bureaucrats do for us, but we also have to appreciate the power that stands behind that bureaucrat in terms of being able to enforce those regulations. That is why we need to be very, very careful about the kind of regulations that have been imposed; and, second, because we have certainly seen instances in which there has been an overregulation; and, third, because the cost of those regulations on our society cannot necessarily be fully appreciated by the individual who is promulgating the regulation. That is why we want to make it very clear to the people to whom we entrust with that authority that we, the Congress, want them to examine both the risks and the costs against the benefits to be achieved by the regulations that they would impose. Let me give you an example, Mr. President, that occurred in my home State not too long ago. It is an example I cite because it really had a happy ending, but no thanks to the law that we wrote and the regulations that were promulgated pursuant to that law. In Graham County, AZ, a rural area primarily of cotton farming and other agriculture, there is a river called the Gila River, which does not overflow very often but when it does, unfortunately, it is a wild river. It flooded in 1993 in January. The flood was significant enough to wipe out a bridge about 5 miles east of Safford, the county seat of Graham County. Unfortunately, when that happened, the river changed its course and went several hundred yards to the south wiping out a lot of farmland and causing a great deal of havoc. The primary thing that happened was that there was no more opportunity to cross the river there for the people who lived on the other side without a 28-mile detour across a bridge that was very narrow, 20 feet wide, a bridge one could not build today under Federal regulations, and probably a good thing because it is not a very safe bridge. School kids got up an hour earlier in the morning and stayed an hour later in order to ride that extra distance to and from home. And the traffic was all routed on a small State road. Since it is a farming community, the farm implements were obviously traveling on the same road as the highway traffic. Of course, these can be very wide. They are 20 feet wide sometimes and travel at maybe 10 or 15 miles an hour. I saw many instances in which, because motorists were frustrated, they passed the double line. They should not do it. It is against the law. But clearly, health and safety were implicated in the fact that people could not cross the bridge that existed before. The Federal Highway Program had funds available through disaster assistance to reconstruct the bridge, and the Army Corps of Engineers was willing to reconstruct the bridge. The problem was that it had to consult with the Fish and Wildlife Service because it is believed that there is an endangered species in the Gila River called the razorback sucker. Now, nobody can find that little sucker, but supposedly it is there. Let us assume that it exists. And if it does, we certainly want to preserve it and save it. But what the local officials were asking the Army Corps of Engineers to do was to build up a little dirt berm, now that the river has gone back down again and does not flow very heavily, to redirect the river back to its original channel. Now, if the sucker exists, and if it lived all of these years in its original channel in the Gila River, then presumably it can do just fine living where it always lived, and it is no danger to that species that the river is being redirected back where it always was. And by doing that, the bridge can be constructed, the people can travel safely, and life returns normally to the people in Graham County. But, alas, the Army Corps of Engineers could not get the approval from the Department of the Interior to go forward with these plans. Finally, the situation was dangerous enough, the people were fed up enough, the situation was frustrating enough, costing enough, that the people of Graham County said, ``We've got to do something about this ourselves. We have to take matters into our own hands, apply a little common sense.'' They notified the Army Corps of Engineers of their plans to build a little dirt berm, to redirect the channel back where it had been and build a little low-river crossing there. And, fortunately, the Army Corps of Engineers exercised what they call ``enforcement discretion'' and did not cite the county officials when that is precisely what occurred. Now the river has been channeled back in its original place. A low- river crossing has been built. And plans are going forward to reconstruct the bridge. An application of common sense by common people, having their lives to live, who just could not afford to wait any longer to live in this bureaucratic morass that we have created. Well, who is really at fault? It is probably ultimately the Congress' fault for writing a statute that permits this kind of regulatory authority. But it is also the fault of the agency in not exercising the common sense to authorize the project to go forward. When one considers the quality between protecting this species, which is somewhat questionable, as I said--and I think the folks would agree with that--in any event, protecting it by letting it go back into the same channel it had always been in, when you weigh that against the risk of lives to people for having to cross this very narrow bridge 5 miles downstream and traveling behind slow-moving farm implements and all the rest of it, it seems to me that it is a good example of how sometimes we do not apply common sense in these regulations, and it was necessary for people to take matters into their own hands. [[Page S 9675]] When it has gotten to this point, we have a problem, and that is the problem we are trying to correct here with the process changes that are embodied in the Dole-Johnston substitute. We are not changing the underlying substantive law. Endangered species, clean air, clean water, all of those laws that we have created for the protection and safety of our environment and our people still exist. They still will prevail. But in the establishment of regulations now, we are asking the people who implement those laws to take certain things into consideration, such as an assessment of risks and a cost-benefit analysis, when that is appropriate, and, in the case of certain regulations where it is appropriate, to do peer review. Those are all very reasonable concepts. I am certain in a bipartisan way we can work out any differences that exist relative to the application of those principles to the administering of the laws that we write. Let me just conclude with a couple of other thoughts, Mr. President. John Graham, professor and founding director of the Center for Risk Analysis at the Harvard School of Public Health, wrote in the Wall Street Journal recently: Since zero risk is not a feasible goal, we need to rank risks in order of priority. For example, he agrees that childhood lead poisoning is a serious public health problem and asserts, nevertheless, that fewer resources should be used to excavate soil at Superfund sites where the probability of childhood exposure to lead is low, whereas more resources should be directed toward cleaning up older homes in poor communities, where each day kids are ingesting house dust contaminated with deteriorating lead paint. In other words, an example of where we probably have our priorities wrong because of the rigidity with which we developed these laws, and they are being administered pursuant to that rigidity. We are trying to loosen that process up in the Congress by giving discretion to our agencies to apply more common sense in the development of a regulation. The Hillary Clinton task force, as a matter of fact, used the same type of prioritization and analysis. Her task force included a proposal for mammograms for 50 year olds at $100 million per life saved, while mammograms for 40 year olds at $158 million per life saved were rejected as too costly. The conclusion is, in both cases, obviously there are lives at stake, but in one case it was simply deemed too costly for the Government to provide the source of revenue for the mammograms, considering the risks involved. One can argue with that particular analysis. One can say, ``No, that's still too great a risk.'' My point in citing the example is simply to note the fact that the President's wife in her task force and all of the work that she did on this, a professor from Harvard, Government agencies today, all of us in our individual lives all use common sense and prioritize the risks against the costs. So that is not a concept that we should be arguing against. We should be implementing it in the law. I cited the Harvard School of Public Health study. It indicated: . . . reallocating resources to more cost-effective programs could save an additional 60,000 lives per year without increasing costs to the public or to the private sector. In other words, Mr. President, cost-benefit analyses would not only prevent the squandering of our scarce resources, it would actually enable us to maximize their impact and end up saving more lives and preventing more harm to our citizenry than is the case today. Mr. President, there are many, many examples. I will conclude by saying that it is my view that the substitute represents a good-faith effort to meet the concerns of those who thought that this legislation might either intentionally or accidentally go too far in undermining existing substantive law by assuring that it is strictly a process change which supplements the authority of the people we ask to administer these laws today to engage in the kind of risk assessment and cost benefit which all of us do every day of our lives; that that makes common sense; that it will end up saving more lives; that it will end up saving a lot of money and, in the end, will provide a safer climate for the people of our country than exists today. So I certainly urge all of my colleagues at the appropriate time to support the Dole-Johnston substitute. Several Senators addressed the Chair.

Mr. KYL

Mr. KYL. I rise in strong support of the Dole-Abraham amendment and compliment my colleague from Michigan for his work in preparing this amendment. Obviously, it is going to be very popular. It is going to make a necessary improvement in the bill, which in its current form is a very good bill. But because small business is such an important part of our Nation's economy and because regulations can have a particularly pernicious effect on small businesses, because small businesses are not as well equipped as large companies are to hire the lawyers and the consultants and the other people necessary to deal with the red tape of Federal regulations, I think it is especially important that small businesses not be unduly negatively impacted by regulation, and therefore this amendment will certainly assist in this regard. Small businesses are really the engine that drives our economy. In fact, from 1988 to 1990, small businesses with fewer than 20 employees created over 4 million new jobs in this country, and that was at the same time, Mr. President, that companies with more than 500 employees lost over 500,000 net jobs during that same period. As I said, small businesses bear a disproportionate share of the burden of regulation. According to the Small Business Administration, small businesses' share of the burden of regulations is three times that of larger businesses. Under the current language of section 623, a regulation would not be subject to review unless the agency chooses to place it on the review schedule or an interested party successfully petitions to have it added to the review schedule. Since small businesses, as I noted, frequently do not have the same kind of resources to hire the lawyers and the consultants necessary to prepare a petition that would meet the demanding standards set forth in section 623, the bill's current language would allow agencies to refuse to review regulations that have a significant impact on small business. And that is where this amendment comes in. It is very important that agencies include in their review schedules any regulation designated for review by the chief counsel for advocacy of the Small Business Administration and OIRA. And that is the important point of this amendment. In selecting regulations to designate for review, the advocate could seek input from small businesses and would consider criteria such as the extent to which the regulation imposes onerous burdens on small businesses or directly or indirectly causes them not to hire additional employees. The amendment thus would create a small business counterpart to the petition process which is available to larger firms, with the advocate representing the interests of small businesses, just as the high-priced lawyers and consultants will represent, presumably, the interests of those larger businesses in that petition process. And, of course, it has been noted why the advocate of the Small Business Administration is ideally suited to this task, because, according to the statute, and I am quoting now, its mission is to ``enhance small business competitiveness in the American economy.'' And the advocate ``measure[s] the direct costs and other effects of Government regulation on small businesses and make[s] legislative and nonlegislative proposals for eliminating excessive or unnecessary regulations of small business.'' As a matter of fact, the advocate also administers the Regulatory Flexibility Act which has afforded it additional experience in assessing the impact of regulations on small business. So this amendment, Mr. President, would actually merely build on a foundation laid by the Regulatory Flexibility Act. Under that act, the advocate reviews agency analyses of the likely impact of the proposed and final rules on small businesses. So under the Abraham-Dole amendment the advocate's role in reviewing regulations would be very similar to its role in promulgating regulations. Let me conclude with a couple points about concerns with this general approach, although, as I said, I think particularly with the amendment to the amendment that Senator Roth spoke about a moment ago this should be a very popular amendment. There was some question that it might be appropriate for there to be a limit on the number of regulations that the advocate could designate for review, but we think that under this process clearly agencies that choose to review regulations that hurt small business likely will not have many regulations added to their review schedule by the advocate. Those, of course, that ignore the concerns of small business could expect to have their review schedule expanded by the advocate, but that is part of the incentive which we are building into this amendment. And second, there was a concern that really we ought to only be considering major rules; otherwise, we could clog the courts and clog the agency with an unnecessary workload. It is true, of course, that the cost-benefit and risk-assessment requirements generally apply only to the promulgation of major rules, but many of the rules that hurt small business the most would not meet the cost threshold for major rules, and this is particularly true if the major rule threshold were to be raised from its current $50 million limit. For example, the NFIB estimates that OSHA's widely criticized fall- safety rule would impose costs of $40 million annually, $10 million short of the $50 million major rule threshold. This rule would require employees, by the way, to wear an expensive harness with a lifeline attached to the roof any time that a worker works 6 feet or higher above the ground. The negative impact of this rule on small businesses was the subject of an op-ed in the June 13, 1995, issue of USA Today. It is a good illustration of how even with a rule like this, which achieved a great deal of attention and would impose a significant cost on small contractors, it nonetheless would fail to meet that threshold requirement, and that is one of reasons why the kind of review called for in the Abraham-Dole amendment is not only appropriate but is really quite necessary. So, Mr. President, I am sure that most of our colleagues will be in strong support of the Abraham-Dole amendment, and I certainly urge its adoption and would also indicate my strong support for the underlying bill. I yield the floor. Mr. GRAMS addressed the Chair.

Mr. KYL

Mr. KYL. Mr. President, I ask that S. 982, the National Information Infrastructure Protection Act of 1995, be printed in the Record. The text of the bill follows:

Mr. KYL

Mr. KYL. Mr. President, promises made, promises kept. That's what the fiscal year 1996 budget resolution is all about. We promised the American people that we would find a way to balance the Federal budget, and we did. This resolution puts the budget on a path to balance by the year 2002. We promised that we would protect Social Security, and we did. This resolution doesn't touch Social Security retirement benefits or cost- of-living adjustments. We promised to protect Medicare, and we did. This resolution allows Medicare spending to grow at a sustainable pace. We promised to provide tax relief for American families and businesses, and we did. This resolution will accommodate 245 billion dollars' worth of tax relief over the next 7 years. We promised that we would begin to shrink the size and scope of Government, and we did. This resolution provides for the elimination of the Commerce Department and numerous other programs, commissions, agencies and functions of Government. Promises made, promises kept. That's what this resolution is about-- keeping the promises we made to the American people, and keeping faith with future generations of Americans. Now, make no mistake. We'll hear throughout this debate about all of the pain this budget inflicts. Let's put this budget into perspective. Over the next 7 years, the Federal budget will grow from $1.5 trillion to $1.875 trillion. That represents and annual growth rate of about 3 percent. So, total Federal spending isn't being cut at all. We're just not increasing it as much as some in this Chamber and at the other end of Pennsylvania Avenue would like. Take a look at Medicare in particular. Spending will grow from $178 billion this year to $274 billion in 2002. That's an annual growth rate of about 6.4 percent. Medicare spending per beneficiary will grow from about $4,350 this year to $6,070 by 2002. Total Medicare spending over the next 7 years will top $1.6 trillion. So, we're not slashing Medicare at all. We do heed the warning of the Medicare Board of Trustees and limit growth to more sustainable levels to prevent Medicare from going bankrupt in 2002. That is what is necessary to ensure that seniors do not lose their benefits altogether as a result of bankruptcy in 7 years. Medicaid spending will grow from $89 billion this year to $124 billion by the year 2002. That is an average annual growth rate of just under 5 percent. So, spending on many important programs is continuing to increase, even as the budget moves toward balance. What about taxes? We hear a lot of rhetoric about tax cuts for the rich. The fact is, a tax bill has yet to be written, so we don't even know what taxes will be cut or who will benefit. If you look at the bill the House passed back in April, about 75 percent of the benefit of the $500 per child tax credit would go to families earning less than $75,000 per year. Ninety percent of the benefit would go to families with annual incomes of less than $95,000. There is language in the resolution before us that says the tax cuts should go to working families. In other words, most of the benefits will go to families of more modest means. But even if some of the benefits goes to wealthy individuals, I would ask, what's wrong with that? People don't hide their money away in a mattress. They invest it, and that creates new job opportunities across the country. You don't help job seekers by penalizing job creators. Capital gains reform is a case in point. When capital gains tax rates are high, people need only to hold on to their assets to avoid the tax indefinitely. No sale, no tax. But that also means less investment, fewer new businesses and new jobs, and far less revenue to the Treasury than if capital gains taxes were reduced. According to a study by the Institute for Policy Innovation, the 50 percent capital gains exclusions and indexing contemplated in the House bill would help lower the cost of capital by about 5 percent, inducing investors to increase the capital stock by $2.2 trillion by the year 2002. That larger capital stock, in turn, would create 721,000 new jobs and increase total gross domestic product by almost $1 trillion by the year 2000. And, of course, that will help increase revenues to the Treasury. Mr. President, this resolution is about promises made, promises kept; about a healthier economy. More important, however, it is about the future. It's about Casey Crandall, a young scout in Herber, AZ, who wrote to me recently to say we shouldn't spend money we don't have; that there is no reason to send this country farther into debt. It is about young Brandon Loos in Scottsdale who wants his representatives in Congress working hard to balance the budget and get us out of debt. It is the future of these young people that is on the line. The national debt now amounts to about $4.8 trillion--about $18,500 for every man, woman and child in the country--$18,500 apiece for young Casey and Brandon in Arizona. If the Federal Government continues to run $200 billion annual deficits, as President Clinton has proposed, Brandon and Casey can expect to pay an additional $5,000 in taxes over their lifetimes. The $1 trillion in new debt that [[Page S 9379]] President Clinton proposed in his 5-year budget plan represents an additional $25,000 in taxes--an additional $25,000--for every young man and woman. And the burden of the national debt doesn't just show up in people's tax bills. It also adds a surtax to interest rates that people pay on car loans and student loans, credit cards and mortgages. The estimate is that the debt surtax adds about 2 percent to those interest rates. On a $74,000 30-year mortgage, that surtax amounts to over $37,000. By balancing the budget, we can help to eliminate that surtax and make a home purchase more affordable--make it easier for families to send their children to college. Mr. President, every generation before us has worked hard to ensure that their children and grandchildren has had the chance to lead a better life. Let's not have ours be the first generation to rob the future of its chance for a better life just so we can continue to spend to excess on ourselves. Let's give Casey Crandell, Brandon Loos and all of the other children across the country the chance to work for a better America for themselves and their children, not just the obligation to pay our debts. Mr. President, this is an historic occasion; the first time in nearly three decades that we have a chance to vote on a balanced Federal budget. Let's pass the balanced budget resolution.

Mr. KYL

Mr. KYL. Mr. President, the White House Conference on Small Business [[Page S 8959]] met earlier this month to consider issues of concern to small business men and women around the country, and to make recommendations to this Congress about what it can do to make Federal policy more responsive to small business's needs. The men and women who attended the conference represent a vital economic force in the country. There are more than 20 million small businesses in the United States, and they represent the fastest growing sector of the economy. Small businesses provided all of the net new jobs created between 1987 and 1992. They employed 54 percent of the private work force in 1990. Small businesses provide two of every three new workers with their first job. Small businesses contributed 40 percent of the Nation's new high-technology jobs during the past decade. Together, they truly represent the engine that drives our Nation's economy. So when small business leaders speak out on issues of concern, it would behoove the members of the Senate and the House to listen. These small business people are the innovators and the job creators. They are the ones on the front lines who have to wade through government rules and regulations every day, pay the taxes, and still find a way to compete in domestic and international markets. If we are interested in economic growth and opportunity in this country--if we want an economy that is healthy and creating new jobs, and can compete around the world--we ought to take note of what small businessmen and women have to tell us. And, Mr. President, this is what the delegates to the White House Conference had to say--these are the top-ten vote-getting resolutions approved by the Conference: No. 1: Clarify the definition of independent contractor for tax purposes--1,471 votes. The Conference called on Congress to recognize the legitimacy of an independent contractor; to develop more realistic and consistent guidelines for IRS auditors, courts, employers and State agencies to follow. No. 2: Permit a 100 percent deduction for business meal and entertainment expenses--1,444 votes. Small businesses typically rely on close personal relationships and customer service to compete for sales, rather than expensive advertising campaigns. Expenditures for meals and entertainment are often an important part of that effort. No. 3: Strengthen the Regulatory Flexibility Act--1,398 votes. In addition to making the act applicable to all Federal agencies, the Conference recommended that cost-benefit analyses, scientific benefit analyses, and risks assessments be required. No. 4: Repeal the Federal estate, gift, and generation-skipping transfer tax laws--1,385 votes. As the members of the Conference noted in their resolution, ``the negative effect (of these transfer taxes) on small business, and others, far exceeds the net income to the Government when all administrative costs to individuals, businesses, and government are considered.'' No. 5: Reform the Superfund law--1,371 votes. Delegates recommended the elimination of retroactive and strict liability prior to 1987, and called for sound science, realistic risk assessments, and cost-benefit analyses in assessing health and environmental hazards. Mr. President, we ought to act promptly on all of these issues; bring them to the floor, debate them and vote on each of them at the earliest date practicable. I wanted to begin today, however, by speaking about one of the top five resolutions in particular, the one that received the fourth highest number of votes, a resolution that endorsed the Family Heritage Preservation Act, S. 628. I introduced that measure earlier this year with the distinguished Senator from North Carolina, Senator Helms. Representative Chris Cox introduced the companion bill in the House of Representatives. The Federal estate tax is actually one of the most wasteful and unfair taxes on the books today, and it is no wonder that small business leaders are urging its repeal. By confiscating up to 55 percent of a family's after-tax savings, it penalizes people for a lifetime of hard work, savings, and investment. It hurts small business and costs jobs. The result is that people spend their time, energy, and money trying to avoid the tax--for example, by setting up trusts and other devices--rather than devoting their resources to more productive economic uses. The estate tax hits small family businesses particularly hard. It strips companies of much-needed capital at the worst possible time-- under a change of ownership and oversight following the principle owner's death. According to a 1993 survey by Prince and Associates--a Stratford, CT research and consulting firm--9 out of 10 family businesses that failed within 3 years of the principal owner's death said that ``trouble paying estate taxes'' contributed to their companies' demise. Sixty percent of family-owned businesses fail to make it to the second generation, and 90 percent do not make it to a third generation. If the Tax Code were revised to eliminate these transfer taxes, small businesses would have a fighting chance; and the Nation would likely experience significant economic benefits by the year 2000. According to a report by the Institute for Research on the Economics of Taxation [IRET] ``GDP would be $79.22 billion greater, 228,000 more people would be employed, and the amount of accumulated savings and capital would be $630 billion larger than projected under present law'' by the end of the century. Small business leaders recognize how counterproductive the estate tax really is, and that's why they specifically endorsed the Family Heritage Preservation Act at the White House Conference. That's why my bill is supported by the Small Business Council of America, the Small Business Survival Committee, Americans for Tax Reform, and the 60 Plus Association. The National Federation of Independent Business and the Independent Forest Products Association have called for estate tax reform. Mr. President, I want to conclude by thanking the delegates to the White House Conference for their thoughtful, hard work. And, I wanted to make special note of the work of Mary Lou Bessette, who chaired the Arizona State delegation and carried out her responsibilities in an exemplary manner. She kept the group focused and on track, and was well respected by its members. Another member of the delegation, Sandy Abalos, served as Arizona tax chair. Her hard work and determination were reflected in the successful outcome of the Conference. And finally, I wanted to commend Joy Staveley, who was my appointment to the Conference, and who served as environmental chair for the State. All four of her environmental resolutions made it into the top 60 final recommendations to emerge from the Conference session. A job well done to all the members of Arizona's delegation and to all the delegates from around the country. Now it's time for the Senate and House to act on the good advice from the leaders of the Nation's small businesses. I invite my colleagues to join me as a cosponsor of the Family Heritage Preservation Act, and to begin addressing the other recommendations of the White House Conference as well.

Mr. KYL

Mr. KYL. If the Senator would yield, I would like to express my support for the amendment of my colleague from Arizona. [[Page S 8677]] For all of the reasons that he stated, it is about time we did this. I think everyone who has spoken has confirmed the need for this amendment. I wholeheartedly support the amendment of my colleague from Arizona.

Mr. KYL

Mr. KYL. Mr. President, I am pleased to join Senator Heflin in introducing this bill on hair analysis. As noted in the January 1993, ``Research in Brief,'' published by the National Institute of Justice, ``Hair testing is relatively well established and * * * has several advantages over urine in testing for drugs.'' First, hair greatly expands the time window for detection of an illicit drug. Generally, urine tests determine if drugs have been used in the past 2 to 4 days, but hair provides a 90-day history of information. Second, brief periods of abstinence from drugs will not significantly alter the outcome of hair analysis. Additionally, hair analysis cannot be evaded as in urinalysis, where drug users can substitute clean samples or tamper with specimens. Drug residues remain permanently embedded in hair. They cannot be washed or bleached out. Third, hair is easy to handle, and requires no special storage facilities or conditions. Compared with urine samples, it presents fewer risks of disease transmission. Fourth, because hair records drug use chronologically and in amounts proportional to those consumed, the pattern and quantity of drug abuse is also provided. Fifth, collecting comparable samples for repeat testing is easier with hair than with urine; a cosmetically undetectable snip of hair is easily collected under close supervision without causing the embarrassment of providing a urine sample. Sixth, contaminating or altering a sample to distort or manipulate test results is much more difficult with hair than with urine. Furthermore, if the results of the first test are challenged, a second, newly collected sample can be analyzed as a safety net. This is not possible with urine because the original 3-day surveillance window will have passed and the subject can merely abstain from drug use in the few days prior to submitting a new sample. In sum, the availability of hair analysis will give law enforcement another tool for drug testing.

Mr. KYL

Mr. KYL. Mr. President, do we first have to ask for the yeas and nays?

Mr. KYL. Mr. President, let me again compliment both managers of the bill. I think this has been a good debate. I reiterate my amendment simply restricts the State court prisoners to the Start court as prisoners until they are able to go the to U.S. Supreme Court. I believe this will significantly reduce the number of duplicative appeals. That is what this is all about on the habeas corpus reform, to strengthen the bill. In any event, I reiterate that this is a good bill that we should all support.

Mr. KYL. Mr. President, I would like to use the remainder of my time and close the debate, if there are no others who wish to speak. Mr. President, first of all, let me compliment the Senator from Delaware who has conducted a very intelligent and thoughtful debate. I appreciate that. I very much appreciate the comments of the Senator from Utah just now. It is only because of his tenacity that this issue is before us. As he said, he has been fighting this issue for years to try to bring some reform to the Senate and was able to do that finally in the bill that he brought to the Senate floor. I appreciate very much his efforts. I also appreciate the comments he just made. He is exactly correct in describing my amendment as an attempt to return the habeas petition to its original meaning. There is a statutory postconviction remedy, as he points out. I believe he is very familiar, as a matter of fact, with Congress' law of 25 years ago under which the District of Columbia uses a purely quasi-State court system for the review of its writs and does not allow prisoners to go into the Federal system, a system which has worked very well and which we have been invited to consider as a result by Federal judges who have written on the subject. Let me also address briefly two points, one made by the Senator from Pennsylvania, and one by the Senator from Delaware. The Senator from Pennsylvania questioned the constitutionality of what we are doing here. I understand the point he was making. But I do not think that the constitutionality of what we are proposing here is in doubt. The U.S. Supreme Court has upheld this procedure unanimously in a 1977 opinion, Swain versus Pressley. The opinion was written by Justice Stevens. That was--to use the phrase--``bandied about'' a fairly liberal court in 1977. Subsequently, the Federal courts have consistently held that the remedy provided in this District of Columbia court system, which does not permit a Federal writ of habeas corpus, is adequate and effective to test the legality of detention. Among the cases are, for example, Garris versus Lindsay in 1986, a D.C. Circuit Court case, and Saleh versus Braxton, a District of Columbia District Court case in 1992. So consistently the courts have upheld, and I also cited the U.S. Supreme Court decision upholding the constitutionality, as well. The Senator from Delaware argued finally that there could be 50 different interpretations of the constitutional law, if the State court prisoners are relegated only to a State court habeas remedy. With all due respect, I do not think that is correct because, as we all know, those of us who are constitutional lawyers anyway, the U.S. Supreme Court precedents must be followed when State supreme courts--or as in New York's case, it is called the court of appeals, or the circuit courts--are adjudicating constitutional questions, they must follow U.S. Supreme Court precedents. Therefore, it is not possible for there to be 50 different interpretations of Federal law by State supreme courts unless those courts are dealing in bad faith, and I am sure that no one is suggesting that is the case. It has always been the case that under our Constitution, the Framers contemplated that State courts would be making these interpretations. As a matter of fact, there is an interesting book by Curt Sneideker who writes to this point. He said that in our judicial system it has been understood from the very beginning that State courts could pass on Federal questions. And, by the way, he cites Federalist Papers No. 82 for that proposition. Indeed, the Constitution itself expressly directs them to do so in article VI, clause 2. So very clearly, the State courts have always been thought of as a place where Federal constitutional issues could be resolved. As I noted earlier, Justice Powell has made a very convincing case, and he is not the only one. But he specifically has made a convincing case that the State courts have the competence to rule on these issues. Mr. President, just in summary, again I compliment both managers of this bill for the very intelligent way in which they have approached this issue. I appreciate the opportunity to debate my amendment in this way, and I will simply say that in summary, what I am trying to do with my amendment is to ensure that there is an adequate remedy for all habeas petitions for both Federal and State court prisoners, Federal prisoners in the Federal system, State court prisoners in the State court system, but to limit State court systems to the State just as Federal writs are limited to the Federal system. The only exception which we could not take away, even if we tried-- and, of course, we do not want to--even in the State court system, prisoners have the ability to go to the U.S. Supreme Court, the ultimate Federal court, to test the propriety of the final decision of the State court, in most cases called the State supreme court. So there is adequate ability to protect the constitutional rights of both State and Federal prisoners. My amendment simply helps to solve this problem of overburdened Federal courts by taking out of the Federal courts somewhere between 25 and 40 percent perhaps of the cases that are currently adjudicated not only in State courts but in a duplicative way in the Federal courts, as well. I urge that my colleagues support my amendment.

Mr. KYL. Mr. President I appreciate the remarks of the Senator from Pennsylvania. He makes some good points that I would like to respond to, but at this point I would like to ask unanimous consent that the Senator from Mississippi be allotted the same amount of time that the Senator from Pennsylvania spoke on, so that I may utilize the remaining amount of my time to close the debate. The PRESIDING OFFICER (Mr. Inhofe) Without objection, it is so ordered.

Mr. KYL. Mr. President, I will yield myself 6 minutes of my remaining time. I would like to respond to the comments of the Senator from Delaware. They were well put and thoughtful, and I think they contribute to the debate. I am going to consider the arguments that he made, with the primary arguments in reverse order, if I might. The last argument he made essentially was what happens when, after the fact, the defendant finds something out that might enable him to win his freedom? That, of course, is the rationale for the writ of habeas corpus. Of course, the answer is, if you are a Federal court prisoner, you have the opportunity to file a writ of habeas corpus in the Federal courts. If you are a State court prisoner, you have the right to file a habeas corpus petition in the State courts. So that is your remedy for something that happens after the fact. The Senator from Delaware said it must be a fair process, and indeed it must be. Under my amendment, one of the things that can be contested, and could be contested in Federal court, is that the remedy of the State is not adequate or fair. Finally, with regard to this last point, the Senator from Delaware said he will be proposing an amendment that at least gives the prisoner in the State court system one shot in the Federal courts and primarily base that argument on the notion that while great strides have been made in State courts' competence over the years, there may still be some situations where the State court would not be as competent as the Federal court. I would like to respond to this in a couple of ways, Mr. President. First of all, we do have one shot in the Federal system under my amendment. It is directly to the U.S. Supreme Court. That right exists today, and it could not be taken away in our amendment, and we do not do that, of course. So if a State court prisoner believes that, despite all of the hearings he has gotten in the State court system, he still has not gotten a fair shake, and that he has really two things that he can claim--first, the State court system is not fair, and secondly, he can go to the U.S. Supreme Court and make his final point there. Let me read something that Justice Powell wrote not too long ago that I think goes to this point: He said this nearly 20 years ago: We are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like Federal courts, have a constitutional obligation to safeguard personal liberties and to uphold Federal laws. That was in the case of Stone versus Powell, in 1976. Later, speaking to the American Bar Association, Justice Powell said: Another cause of overload in the Federal court system is conferring Federal habeas corpus jurisdiction to review State court criminal convictions. Repetitive recourse is commonplace. I know of no other system of justice structured in a way that assures no end to the litigation of a criminal conviction. Our practice in this respect is viewed with disbelief by lawyers and judges in other countries. So, Mr. President, I think that particular issue is disposed of by, among other things, the words of Justice Powell. A second point the Senator from Delaware said is that most of the delay is in State courts. He is correct, although the chart he has there represents one case. He has about 25 or 24 percent of the delay in the Federal courts, and the rest in the State court. Actually, there is a better figure than that, and the figure is about 40 percent in the Federal courts, 60 percent in the trial courts. This is from the Powell committee report, and it talked about overdue process. The Powell committee report on page 27 notes ``Federal habeas corpus made up 40 percent of the total delay from sentence to execution, in a sample of 50 cases.'' That is 50 cases as opposed to one case. The point of the matter is the Senator from Delaware is correct in noting that most of the delay would be State courts. I submit, however, that that is due to several factors. I am not sure the statistics fail to account for the fact that most of the cases are in State court. As a matter of fact, there are not that many in the Federal court. Say it is between 25 and 40 percent. At least under my amendment we are dealing with 40 percent of the problem. That is not insignificant. Or, the least, taking the number of the Senator from Delaware, 25 percent of the problem. Whereas the Senator from Delaware would simply make it more difficult to get into Federal court if you are a State court prisoner, we say you cannot. As Federal legislators, what we can do something about, the Federal court, we do something. We say you cannot go there. It is up to the States to deal with the rest of the problem which is before them. Finally, Mr. President, the Senator from Delaware made a point with respect to Senator Inhofe's presentation, and it was a valid point. But I think it makes a point too far, or one point too much. The Senator from Delaware said it is doubtful that Senator Inhofe's constituents understand the difference between the Hatch and Kyl amendment, and mentions a lot of lawyers could not identify the difference. He is correct. I do not believe that makes the case. It is true we have to be careful about what we do here. It is also true that [[Page S7834]] while the common citizen may not understand the technicalities, the legalities, even the word habeas corpus coming from Latin, the common citizen does understand when something is broken. And the Senator from Delaware made an eloquent case for the proposition that something is drastically broken when people can stay on death row as long as they do. The Senator from Oklahoma made the same point, 16 or 17 years, with the average being over 9 years. The system is drastically broken. It does not take a lawyer to figure that out. Mr. President, let me conclude at this point that the ordinary man may not understand all of the technicalities we are talking about, but he knows something is broken here. The fix in my case is quite simple. Federal prisoners go to Federal court, State prisoners go to State court with an ultimate appeal to the U.S. Supreme Court, but State prisoners do not get the extra bites of the apple in the Federal court. It is a simple solution. The solution in the bill and the solution of the Senator from Delaware is much more complex. We will impose some limitations on how you get into the Federal court. That does not stop you from getting in the Federal court. So if you want to solve between 25 and 40 percent of the problem, voting for the Kyl amendment will definitely do that. It has been held as constitutional. It is supported by Judge Bork and by many others. I submit it would be a good addition to this bill. I am happy to yield to the Senator from Pennsylvania.

Mr. KYL. Both Senators from Oklahoma have conducted themselves in an exemplary manner following the tragedy in their State in a way both to help the people of their State but also to try to do everything they could to assist law enforcement officials to bring to justice the responsible parties and to see to it that there are changes in the law that perhaps can help prevent those kinds of things from happening in the future and, in the cases where they cannot be prevented, that the people are brought to justice. I very much appreciate the support of both of the Senators from Oklahoma. Mr. President, I would like to reserve the remainder of my time at this point should anyone from the minority wish to speak. Mr. BIDEN addressed the Chair.

Mr. KYL. Mr. President, does the Senator reserve the remainder of his time?