John McCain

Mr. McCAIN

Mr. McCAIN. Mr. President, the National Academy of Science has said, ``Greenhouse gases are accumulating in the Earth's atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising. The changes observed over the last several decades are likely mostly due to human activities, but we cannot rule out that some significant part of these changes is also a reflection of natural variability.'' Over the past five years, the Commerce Committee has held eight hearings on climate change. Two the last five years, 1998 and 2002, have been the warmest, in terms of average global temperatures, ever recorded. According to a recent report from the National Oceanic and Atmospheric Administration NOAA, nine of the warmest years have occurred since 1990. As reported in the New York Times on December 31, 2002, many experts think it is more likely than not 2003 will either match or exceed the 1998 average temperature record of 58 degrees Fahrenheit. Researchers at the University of Texas, Wesleyan University, and Stanford University recently reported in the journal Nature that global warming is forcing species around the world, from California starfish to Alpine herbs, to move into new ranges or alter habits that could disrupt ecosystems. The report states there is ``very high confidence,'' defined as having more than 95 percent of observed changes which were principally caused by climate change, that climate change is already affecting living systems. The end result off these changes could be substantial ecological disruption, local losses in wildlife, and extinction of certain species. This and many other reports over the years have highlighted time and again the consequences of a warming climate system. We have seen the destruction of over 70 percent of the heat-sensitive corals reefs, the melting of glaciers at unprecedented levels, the increase of wildfires, and the spreading of diseases. A large German insurance company has estimated that global warming could cost $300 billion annually by 2050 in weather damage, pollution, industrial and agricultural losses, and other expenses. Our international partners, the States, and private industry are reacting to this challenge. For example, California has enacted legislation that will regulate tailpipe emissions of greenhouse gases. The European Union just recently approved an emissions trading system. The World Bank has estimated that greenhouse gas trading will be a $10 billion market by 2005. Financial ratification of the Kyoto Protocol rests with Russia. Industry is also paying attention to what's happening. Laws firms and insurance companies are setting up business units to deal with climate- related risks. Thus far, however, little has actually been accomplished to reduce greenhouse gas emissions. The United States must do something, but it must also do the right thing. Many have focused on what we do not know or the uncertainties are climate change. I prefer a more sound and scientific approach of starting with what is known or given and then proceeding to solve the problem at hand. While we cannot say with 100 percent confidence what will happen in the future, we do know the mission of greenhouse gases is not healthy for the environment. As many of the top scientists through the world have stated, the sooner we start to reduce these emissions, the better off we will be in the future. In 2001, Senator Lieberman and I announced our intention to develop legislation to require mandatory reductions in greenhouse gases emissions and provide for the trading of emission allowances. We have been working with industry and the environmental community to develop legislation to move the country in the right direction and demonstrate leadership on this important issue. It will be the first comprehensive piece of legislation in this area. Not only will it not place the burden on any one sector, it would allow for the partnering across sectors through the trading system to most effectively meet the required reductions. The bill we are introducing will propose a ``cap and trade'' approach to reducing greenhouse gases emissions. It would require the promulgation of regulations to limit greenhouse gases emissions from the electricity generation, transportation, industrial and commercial economic sectors. The affected sectors request approximately 85 percent of the overall U.S. emissions for the year 2000. The bill also would provide for the trading of emissions allowances and reductions through the government provided greenhouse gas database, which would contain an inventory of emissions and a registry of reduction. I thank Senator Lieberman for his commitment and leadership in bringing this piece of legislative initiative. We hope that our colleagues in the Senate and the Administration will work with us to improve upon and ultimately adopt this much needed legislation. The U.S. is responsible for 25 percent of the worldwide greenhouse gases emissions. It is time for the U.S. government to do its part to address this global problem, and legislation on mandatory reductions is the form of leadership that is required to address this global problem.

Mr. McCAIN

Mr. McCAIN. Mr. President, the National Academy of Science has said, ``Greenhouse gases are accumulating in the Earth's atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising. The changes observed over the last several decades are likely mostly due to human activities, but we cannot rule out that some significant part of these changes is also a reflection of natural variability.'' Over the past five years, the Commerce Committee has held eight hearings on climate change. Two the last five years, 1998 and 2002, have been the warmest, in terms of average global temperatures, ever recorded. According to a recent report from the National Oceanic and Atmospheric Administration NOAA, nine of the warmest years have occurred since 1990. As reported in the New York Times on December 31, 2002, many experts think it is more likely than not 2003 will either match or exceed the 1998 average temperature record of 58 degrees Fahrenheit. Researchers at the University of Texas, Wesleyan University, and Stanford University recently reported in the journal Nature that global warming is forcing species around the world, from California starfish to Alpine herbs, to move into new ranges or alter habits that could disrupt ecosystems. The report states there is ``very high confidence,'' defined as having more than 95 percent of observed changes which were principally caused by climate change, that climate change is already affecting living systems. The end result off these changes could be substantial ecological disruption, local losses in wildlife, and extinction of certain species. This and many other reports over the years have highlighted time and again the consequences of a warming climate system. We have seen the destruction of over 70 percent of the heat-sensitive corals reefs, the melting of glaciers at unprecedented levels, the increase of wildfires, and the spreading of diseases. A large German insurance company has estimated that global warming could cost $300 billion annually by 2050 in weather damage, pollution, industrial and agricultural losses, and other expenses. Our international partners, the States, and private industry are reacting to this challenge. For example, California has enacted legislation that will regulate tailpipe emissions of greenhouse gases. The European Union just recently approved an emissions trading system. The World Bank has estimated that greenhouse gas trading will be a $10 billion market by 2005. Financial ratification of the Kyoto Protocol rests with Russia. Industry is also paying attention to what's happening. Laws firms and insurance companies are setting up business units to deal with climate- related risks. Thus far, however, little has actually been accomplished to reduce greenhouse gas emissions. The United States must do something, but it must also do the right thing. Many have focused on what we do not know or the uncertainties are climate change. I prefer a more sound and scientific approach of starting with what is known or given and then proceeding to solve the problem at hand. While we cannot say with 100 percent confidence what will happen in the future, we do know the mission of greenhouse gases is not healthy for the environment. As many of the top scientists through the world have stated, the sooner we start to reduce these emissions, the better off we will be in the future. In 2001, Senator Lieberman and I announced our intention to develop legislation to require mandatory reductions in greenhouse gases emissions and provide for the trading of emission allowances. We have been working with industry and the environmental community to develop legislation to move the country in the right direction and demonstrate leadership on this important issue. It will be the first comprehensive piece of legislation in this area. Not only will it not place the burden on any one sector, it would allow for the partnering across sectors through the trading system to most effectively meet the required reductions. The bill we are introducing will propose a ``cap and trade'' approach to reducing greenhouse gases emissions. It would require the promulgation of regulations to limit greenhouse gases emissions from the electricity generation, transportation, industrial and commercial economic sectors. The affected sectors request approximately 85 percent of the overall U.S. emissions for the year 2000. The bill also would provide for the trading of emissions allowances and reductions through the government provided greenhouse gas database, which would contain an inventory of emissions and a registry of reduction. I thank Senator Lieberman for his commitment and leadership in bringing this piece of legislative initiative. We hope that our colleagues in the Senate and the Administration will work with us to improve upon and ultimately adopt this much needed legislation. The U.S. is responsible for 25 percent of the worldwide greenhouse gases emissions. It is time for the U.S. government to do its part to address this global problem, and legislation on mandatory reductions is the form of leadership that is required to address this global problem.

Mr. McCAIN

Mr. McCAIN. Mr. President, I would like to make a brief statement for the Record regarding an issue of significant importance to me, and that is the fiduciary and trust responsibility of the United States toward Native Americans for management of trust assets and trust funds. Earlier this year, I introduced S. 2212, the Indian Trust Asset and Trust Fund Management and Reform Act of 2002. This legislation would have amended the 1994 American Indian Trust Fund Management Reform Act to initiate further reform of the administration and management of the assets and funds held by the United States in trust for federally recognized Indian tribes and individual Indians. I was pleased to be joined in this effort by my distinguished colleagues, the two Senators from South Dakota, Mr. Daschle and Mr. Johnson, and I appreciate the time and effort they have expended as we have tried to move the bill toward enactment. I also thank the chairman of the Committee on Indian Affairs, Senator Inouye, for holding a hearing on S. 2212 in July. As a result of the testimony received in the hearing and the comments from many of the Indian tribes that would be affected by this legislation, we developed an amendment in the nature of a substitute which significantly improved the original bill. Many tribal leaders shared comments and offered recommendations to us in the process and were grateful for their efforts. By sponsoring this legislation, Senators Daschle, Johnson, and I intended to express congressional support and provide direction for reform of the Federal Government's management of Indian trust funds and assets, which has for some time been subject to intense criticism and scrutiny by the Federal courts. High-level Government officials have been held in civil contempt twice by the U.S. District Court here in Washington, DC, for their abject breach of fiduciary duties as well as the continuing failure to comply with statutory mandates and court orders. S. 2212 focused on two primary changes to the 1994 American Indian Trust Fund Management Reform Act, the underlying law governing Indian trust funds management. First, it would have created a single line of authority in the Interior Department by establishing a Deputy Secretary for Trust Management and Reform; and second, the bill would have strengthened provisions for Indian tribes and beneficiaries to directly manage or comanage with the Interior Secretary trust funds and assets, based on successful self-determination policies. Based on comments received from tribes, we amended S. 2212 to affirm the fiduciary standards to be applied to the management of Indian trust funds and assets, as well as to abolish the Office of Special Trustee and establish the Office of Trust Reform under the new Deputy Secretary. The Advisory Committee to the Special Trustee would have been replaced with a task force composed of representatives of the tribes and the Department who would work with the new Deputy Secretary to develop recommendations for further necessary changes to the laws governing the management of trust assets and trust funds. The changes represented in S. 2212 were modest, but important. It could have formed the basis for a stronger partnership between the tribal beneficiaries and the Interior Department, instituting congressional requirements for development of consensus policies governing trust standards and additional management reforms. Such a partnership would have set the Department and the tribes on a course toward resolution of the problems that have plagued the management of the trust funds and assets for more than a century. Unfortunately, we are at the end of the 107th Congress and no further action will be taken on S. 2212. A sufficient consensus could not be reached among the tribes as well as between the tribes and the Department of the Interior to allow us to move forward to enact the bill. By failing to enact legislation like S. 2212 this year, the Congress is not fulfilling its responsibility to the Indian tribes and individuals who have suffered from decades of Federal mismanagement. For most of this year, tribal representatives have been working on a range of possible reforms through a special task force established by Secretary Norton after the tribes resoundingly rejected her administrative reform proposal during 2001. Despite the efforts of the tribes, the discussions with the Interior Department culminated in an impasse and an end to the Department's participation in the task force. The Department's latest action is unfortunate, but it is certainly not the first time the tribes and the Department have been unable to agree. It should not pose an insurmountable hurdle for the Congress to act. In fact, it merely adds impetus to the need for amendments to the 1994 act, particularly to ensure through legislative language that the Interior Department would be required to consult and work with the affected beneficiaries on any reforms or changes to its management. Court requirements may now compel the Interior Department to once again develop its own management reforms without the consultation or agreement of the affected beneficiaries. The sponsors of S. 2212 were told that we shouldn't act on this legislation in this session because of the lack of agreement between the tribes and the Department of the Interior. At the same time, several efforts ensued by the Department and some tribal representatives to add legislative riders to appropriations bills or other must-pass legislation. These were efforts I could not support as I continue to abide by the principle of legislating through the open processes of the Congress. It is certainly true that no one fully agreed with everything in S. 2212. That fact suggests to me that the bill deserved our full and fair consideration because it represented a balanced approach. S. 2212 was intended to foster a process of further reform in the years ahead and not to impose some sort of ``quick fix'' or ``final remedy'' that is not fully embraced by all interested and affected parties. Senators Daschle, Johnson, and I worked very hard to achieve consensus on S. 2212 and while we garnered significant tribal support for this legislative remedy, we abided by the wishes of the tribal task force leadership to withhold from further action on the bill. Without legislative reform this year, I am very much concerned that trust duties will effectively be redefined and reassigned by the courts and the Department without the input or approval of the Congress and the affected beneficiaries. I have no doubt that the Congress will be urged to act again in the 108th Congress as the matter of trust fund management will continue to require legislative review and reform. I believe a significant opportunity may have been lost by not enacting S. 2212, but I remain committed to ensure that the Federal Government's responsibility to the individual and tribal beneficiaries will be fulfilled.

Mr. McCAIN

Mr. McCAIN. Madam President, I strongly support the creation of the Department of Homeland Security. I am a cosponsor of the Gramm-Miller substitute and the President's proposal, and have consistently voted to overcome Democratic roadblocks to create a Homeland Security Department. I want this legislation to be enacted, but the House-passed bill includes a number of egregious special interest riders that should not be part of this landmark measure. If the legislative process had allowed us an opportunity to vote on many of the provisions Senators Daschle and Lieberman are now seeking to strike, I believe most of them would have been rejected. Unfortunately, we now find ourselves in a ``take it or leave it'' situation. This is an artificial and unnecessary construct. The Homeland Security legislation effectuates the most dramatic restructuring of the Federal Government in half a century. With the goal of safeguarding our citizens, it creates a 170,000-person cabinet- level department that encompasses almost every governmental function that contributes to protecting Americans against terrorism in the United States. That the Senate is being told that the House will effectively kill the entire bill if this body dare remove politically motivated riders signals to me that the other chamber's priorities have become grossly confused. I do not approach this vote lightly, but I must vote my conscience, just as each of my colleagues must do. I sincerely hope that upon resolution of the vote, we can move forward expeditiously with the House to resolve the differences and still send a bill to the President by the end of the week. The Daschle-Lieberman amendment would strike seven special interest provisions that were included in this 484- page bill by the House. Texas A&M: among them, the amendment proposes to strike a provision that many believe is designed to provide an earmark for Texas A&M University. Specifically, the House-passed bill requires the Secretary to designate a university-based center or centers for homeland security. However, the bill further stipulates 15 specific criteria to be used in making this designation, criteria that many suspect are tailored to describe only one university--Texas A&M. While the provision allows the Secretary to expand the criteria, it doesn't permit the Secretary to eliminate or alter the 15 criteria set forth in the bill. How many colleges have ``strong affiliations with animal and plant diagnostic laboratories, expertise in water and wastewater operations, and demonstrated expertise in port and waterway security,'' not to mention 12 other requirements? I have long opposed attempts in Congress to by-pass competitive, merit-based selection processes. There is absolutely no justification for attempting to do so in the Homeland Security bill for a function as important as the one to be fulfilled by the university-based centers. The Safety Act: the Daschle-Lieberman amendment strikes a provision in the House-passed bill titled ``The SAFETY Act'', which purports to provide reasonable liability protections for antiterrorism technologies that would not be deployed in the absence of these protections. I believe that real harm has been inflicted on our economy by trial attorneys' abuse of our tort system. I have seen the unfathomable greed of certain attorneys who use ``consumer protection'' as an excuse to extort billions of dollars from corporations, and ultimately, the same consumers they claim to protect. Outrageous awards that may benefit only the lawyers have stifled innovation, kept products off the market, and hurt consumers. As chairman of the Commerce Committee, I have advanced legislation to reform products liability litigation, and overseen the enactment of a law to limit litigation and damages that might have arisen from the Y2K bug. Despite its potential to kill the bill because of opposition from trial lawyers, I voted to cap attorneys' fees on the comprehensive tobacco legislation that I sponsored. I am appalled that the demise of that bill opened the door for a private settlement under which a handful of lawyers have received literally billions of dollars, and I intend to ensure that these fees are closely examined in the Commerce Committee next year. In addition, I have repeatedly voted for limitations on damages for medical malpractice. In short, I appreciate the need for legal reform and have long supported it. Despite this, I cannot support the ``SAFETY Act'', which never received a hearing in either chamber, and which was inserted into the House Homeland Security bill late in that chamber's process when Members decided that the government indemnification provisions previously considered would be too costly. This ill-considered ``SAFETY Act'', which I understand is supported by defense contractors and others seeking liability protection, does not provide reasonable limitations on liability. Intentionally or not, it appears to eliminate all liability in tort claims against Sellers for the failure of any ``antiterrorism technology.'' Whereas previous tort reform measures have sought to limit the abuse of our system by avaricious lawyers, while protecting plaintiffs' rights to obtain a quick and reasonable award, no such balance is reflected in the ``SAFETY Act.'' While many of my Democratic colleagues object instinctively to liability limitations such as those in the SAFETY Act, including the creation of a Federal cause of action, the prohibition on punitive damages, and the requirement for proportional liability for non- economic damages, I have supported these concepts in the past, and continue to support them in this context. What I find objectionable, however, fatally so, is that the SAFETY Act was never the subject of any hearing, was never considered by a committee in either chamber, and, perhaps as a consequence, is to confused in its wording and concepts as to be almost incomprehensible. While the need for liability protection for manufacturers and sellers of antiterrorism technologies may be very real, this is an issue of significant import that deserves more careful consideration. At a minimum, the SAFETY Act must be rewritten to ensure that its language is consistent with what I understand to be its intent. At present, it is not. One particularly troublesome provision in the SAFETY Act appears to transform a common law doctrine known as the ``government contractor's defense,'' into an absolute defense to immunize the seller of an antiterrorism technology of all liability. This is a dramatic departure from current law and one that does not seem to have been well thought- out. Currently, the ``government contractor's defense'' provides immunity from liability when the federal government has issued the specifications for a product; the product meets those specifications; and the manufacturer does not have any knowledge of problems with the product that it does not share. While I am told that the House advocates of the SAFETY Act did not intend to provide protections for products whose specifications are not issued by the government, or which do not meet these specifications, the bill language indicates otherwise. It says ``Should a product liability or other lawsuit be filed for claims . . . and such claims result or may result in loss to the Seller, there shall be a rebuttable presumption that the government contractor defense applies to such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary during the course of the Secretary's consideration of such technology under this subsection.'' What happens if the Seller submits proper information to the Secretary, and the Secretary certifies a technology, such as a vaccine or chemical detection device, but a year later there is a gross defect in the manufacturing process, and as a result, the product doesn't work and Americans are injured or killed in a terrorist attack. The language in the bill suggests that the Seller still is not liable. But who is? Can the injured victim seek compensation under the Federal Tort Claims Act? The SAFETY Act does not say. Should they be able to? This is one of many questions affecting plaintiffs that does not seem to have been contemplated or considered when the SAFETY Act was included on the House bill. Clearly, Congress as a whole should work to address the legitimate liability concerns that may be keeping protective technology off the market. We should do this, however, thoughtfully, if swiftly, and ensure that the language reflects our considered intent. Prohibition on Contracts with Corporate Expatriates: the Homeland Security bill prohibits the Secretary from contracting with any ``inverted domestic corporation'', which is an American corporation that has reincorporated overseas. More and more U.S. companies are using this highly profitable accounting scheme that allows a company to move its legal residence to offshore tax havens such as Bermuda, where there is no corporate income tax, and shield its profits from taxes. I applaud efforts to discourage this practice. Already, at least 25 major corporations have reincorporated or established themselves in Bermuda or the Cayman Islands in the past decade. Although I understand that American tax policy has encouraged them to do so, corporations that have moved their legal headquarters offshore to avoid taxes give the appearance of ingratitude to the country whose sons and daughters are risking their lives today to defend them. This provision, however, has not escaped untouched by special interests. Although the Senate adopted an amendment offered by the late Senator Wellstone that flatly barred the Secretary of Homeland Security from contracting with inverted domestic corporations unless doing so was in the interest of national security, the measure being offered to us on a ``take it or leave it'' basis contains loopholes you could drive a truck through or an entire fleet of trucks to be supplied by a relocated corporation. Although it generally prohibits the Secretary from entering into contracts with inverted domestic corporations, the House-passed measure allows the Secretary to waive this prohibition in the interest of homeland security, or to ``to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.'' The Daschle-Lieberman amendment tightens this loophole by permitting the Secretary to waive the contracting limitation only in the interest of homeland security. That is what this bill is about, it is not a jobs bill, or a fiscal belt-tightening bill. The Senate determined, in adopting the Wellstone amendment, that it was important to stop more corporations from adopting corporate ``flags of convenience.'' We should honor this. Childhood Vaccines: among the most inappropriate provisions that the Daschle-Lieberman amendment strikes is a modification to the Childhood Vaccine Injury Act of 1986. The language included in the House-passed bill has far-reaching consequences and is wholly unrelated to the stated goals of this legislation. Inserted without debate in either chamber, this language will primarily benefit large brand name pharmaceutical companies which produce additives to children's vaccines with substantial benefit to one company in particular. It has no bearing whatsoever on domestic security. The National Vaccine Injury Compensation, VIC, Program, established under the Childhood Vaccine Injury Act of 1986, set up a no-fault compensation program as an alternative to legal action to compensate children injured or killed by a vaccine. The VIC Program was adopted in response to a flood of plaintiffs' suits in the early 1980s which ravaged the vaccine industry. Incentives, such as limitations on damages, were established to encourage manufacturers to continue to produce safer vaccines, while education programs and an adverse reaction reporting system were established to ensure prevention of future vaccine injuries. The 1986 law did not define ``vaccine,'' and suits emerged between families and manufacturers of vaccine additives, many of which are still ongoing. The language contained within the House-passed Homeland Security Act would modify the definition of a ``vaccine'' to include additives. Originally contained within a well-rounded bill written by my friend, Senator Frist, this language served a sound purpose. However, I am concerned that the passage of these select provisions which benefit pharmaceutical manufacturers will eliminate the incentive to continue negotiations on the important reforms within Senator Frist's bill which has been negotiated in the HELP Committee for close to a year. Additionally, unlike the bill in Committee, this language would intervene in ongoing litigation without modifying the statute of limitations for bringing a claim under the Vaccine Act, and in so doing, would leave families of some injured children with no available recourse. As I stated earlier, I am not opposed to reasonable legal reform. I support a comprehensive reform package such as the bill sponsored by Senator Frist, and hope that such a measure will pass early in the next Congress. It is wrong, however, to cherry pick provisions beneficial to industry and insert them in a Homeland Security bill and to leave for another day those provisions that protect children. Special interests have no place in any congressional action, least of all one of this magnitude. For this reason, I am compelled to support the Daschle-Lieberman amendment. This administration has worked tirelessly with the House and Senate to produce an extraordinary restructuring of Government to better protect the American people. They have accomplished an amazing feat. Legislation of this gravity should not be sullied by a few special interest riders. I urge my colleagues to join me in striking them.

Mr. McCAIN. I agree that the issue must be addressed. In the absence of any regulatory action by DOT, I will certainly want to continue our joint efforts to provide the appropriate guidance to DOT and the states on this important security matter.

Mr. McCAIN. That is correct. We have not fully addressed the issue of background checks for commercial drivers and more work remains.

Mr. McCAIN. Madam President, last November, Congress included a provision in section 1012 of the USA Patriot Act, P.L. 107-56, which requires all commercial truck drivers who haul hazardous materials to undergo a background records check before receiving or renewing their Commercial Driver's License, CDL, endorsement to haul hazmat. Unfortunately, over a year has passed and regulations to promulgate this requirement have not been issued.

Mr. McCAIN

Mr. McCAIN. Madam President, I strongly support the creation of the Department of Homeland Security. I am a cosponsor of the Gramm-Miller substitute and the President's proposal, and have consistently voted to overcome Democratic roadblocks to create a Homeland Security Department. I want this legislation to be enacted, but the House-passed bill includes a number of egregious special interest riders that should not be part of this landmark measure. If the legislative process had allowed us an opportunity to vote on many of the provisions Senators Daschle and Lieberman are now seeking to strike, I believe most of them would have been rejected. Unfortunately, we now find ourselves in a ``take it or leave it'' situation. This is an artificial and unnecessary construct. The Homeland Security legislation effectuates the most dramatic restructuring of the Federal Government in half a century. With the goal of safeguarding our citizens, it creates a 170,000-person cabinet- level department that encompasses almost every governmental function that contributes to protecting Americans against terrorism in the United States. That the Senate is being told that the House will effectively kill the entire bill if this body dare remove politically motivated riders signals to me that the other chamber's priorities have become grossly confused. I do not approach this vote lightly, but I must vote my conscience, just as each of my colleagues must do. I sincerely hope that upon resolution of the vote, we can move forward expeditiously with the House to resolve the differences and still send a bill to the President by the end of the week. The Daschle-Lieberman amendment would strike seven special interest provisions that were included in this 484- page bill by the House. Texas A&M: among them, the amendment proposes to strike a provision that many believe is designed to provide an earmark for Texas A&M University. Specifically, the House-passed bill requires the Secretary to designate a university-based center or centers for homeland security. However, the bill further stipulates 15 specific criteria to be used in making this designation, criteria that many suspect are tailored to describe only one university--Texas A&M. While the provision allows the Secretary to expand the criteria, it doesn't permit the Secretary to eliminate or alter the 15 criteria set forth in the bill. How many colleges have ``strong affiliations with animal and plant diagnostic laboratories, expertise in water and wastewater operations, and demonstrated expertise in port and waterway security,'' not to mention 12 other requirements? I have long opposed attempts in Congress to by-pass competitive, merit-based selection processes. There is absolutely no justification for attempting to do so in the Homeland Security bill for a function as important as the one to be fulfilled by the university-based centers. The Safety Act: the Daschle-Lieberman amendment strikes a provision in the House-passed bill titled ``The SAFETY Act'', which purports to provide reasonable liability protections for antiterrorism technologies that would not be deployed in the absence of these protections. I believe that real harm has been inflicted on our economy by trial attorneys' abuse of our tort system. I have seen the unfathomable greed of certain attorneys who use ``consumer protection'' as an excuse to extort billions of dollars from corporations, and ultimately, the same consumers they claim to protect. Outrageous awards that may benefit only the lawyers have stifled innovation, kept products off the market, and hurt consumers. As chairman of the Commerce Committee, I have advanced legislation to reform products liability litigation, and overseen the enactment of a law to limit litigation and damages that might have arisen from the Y2K bug. Despite its potential to kill the bill because of opposition from trial lawyers, I voted to cap attorneys' fees on the comprehensive tobacco legislation that I sponsored. I am appalled that the demise of that bill opened the door for a private settlement under which a handful of lawyers have received literally billions of dollars, and I intend to ensure that these fees are closely examined in the Commerce Committee next year. In addition, I have repeatedly voted for limitations on damages for medical malpractice. In short, I appreciate the need for legal reform and have long supported it. Despite this, I cannot support the ``SAFETY Act'', which never received a hearing in either chamber, and which was inserted into the House Homeland Security bill late in that chamber's process when Members decided that the government indemnification provisions previously considered would be too costly. This ill-considered ``SAFETY Act'', which I understand is supported by defense contractors and others seeking liability protection, does not provide reasonable limitations on liability. Intentionally or not, it appears to eliminate all liability in tort claims against Sellers for the failure of any ``antiterrorism technology.'' Whereas previous tort reform measures have sought to limit the abuse of our system by avaricious lawyers, while protecting plaintiffs' rights to obtain a quick and reasonable award, no such balance is reflected in the ``SAFETY Act.'' While many of my Democratic colleagues object instinctively to liability limitations such as those in the SAFETY Act, including the creation of a Federal cause of action, the prohibition on punitive damages, and the requirement for proportional liability for non- economic damages, I have supported these concepts in the past, and continue to support them in this context. What I find objectionable, however, fatally so, is that the SAFETY Act was never the subject of any hearing, was never considered by a committee in either chamber, and, perhaps as a consequence, is to confused in its wording and concepts as to be almost incomprehensible. While the need for liability protection for manufacturers and sellers of antiterrorism technologies may be very real, this is an issue of significant import that deserves more careful consideration. At a minimum, the SAFETY Act must be rewritten to ensure that its language is consistent with what I understand to be its intent. At present, it is not. One particularly troublesome provision in the SAFETY Act appears to transform a common law doctrine known as the ``government contractor's defense,'' into an absolute defense to immunize the seller of an antiterrorism technology of all liability. This is a dramatic departure from current law and one that does not seem to have been well thought- out. Currently, the ``government contractor's defense'' provides immunity from liability when the federal government has issued the specifications for a product; the product meets those specifications; and the manufacturer does not have any knowledge of problems with the product that it does not share. While I am told that the House advocates of the SAFETY Act did not intend to provide protections for products whose specifications are not issued by the government, or which do not meet these specifications, the bill language indicates otherwise. It says ``Should a product liability or other lawsuit be filed for claims . . . and such claims result or may result in loss to the Seller, there shall be a rebuttable presumption that the government contractor defense applies to such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary during the course of the Secretary's consideration of such technology under this subsection.'' What happens if the Seller submits proper information to the Secretary, and the Secretary certifies a technology, such as a vaccine or chemical detection device, but a year later there is a gross defect in the manufacturing process, and as a result, the product doesn't work and Americans are injured or killed in a terrorist attack. The language in the bill suggests that the Seller still is not liable. But who is? Can the injured victim seek compensation under the Federal Tort Claims Act? The SAFETY Act does not say. Should they be able to? This is one of many questions affecting plaintiffs that does not seem to have been contemplated or considered when the SAFETY Act was included on the House bill. Clearly, Congress as a whole should work to address the legitimate liability concerns that may be keeping protective technology off the market. We should do this, however, thoughtfully, if swiftly, and ensure that the language reflects our considered intent. Prohibition on Contracts with Corporate Expatriates: the Homeland Security bill prohibits the Secretary from contracting with any ``inverted domestic corporation'', which is an American corporation that has reincorporated overseas. More and more U.S. companies are using this highly profitable accounting scheme that allows a company to move its legal residence to offshore tax havens such as Bermuda, where there is no corporate income tax, and shield its profits from taxes. I applaud efforts to discourage this practice. Already, at least 25 major corporations have reincorporated or established themselves in Bermuda or the Cayman Islands in the past decade. Although I understand that American tax policy has encouraged them to do so, corporations that have moved their legal headquarters offshore to avoid taxes give the appearance of ingratitude to the country whose sons and daughters are risking their lives today to defend them. This provision, however, has not escaped untouched by special interests. Although the Senate adopted an amendment offered by the late Senator Wellstone that flatly barred the Secretary of Homeland Security from contracting with inverted domestic corporations unless doing so was in the interest of national security, the measure being offered to us on a ``take it or leave it'' basis contains loopholes you could drive a truck through or an entire fleet of trucks to be supplied by a relocated corporation. Although it generally prohibits the Secretary from entering into contracts with inverted domestic corporations, the House-passed measure allows the Secretary to waive this prohibition in the interest of homeland security, or to ``to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.'' The Daschle-Lieberman amendment tightens this loophole by permitting the Secretary to waive the contracting limitation only in the interest of homeland security. That is what this bill is about, it is not a jobs bill, or a fiscal belt-tightening bill. The Senate determined, in adopting the Wellstone amendment, that it was important to stop more corporations from adopting corporate ``flags of convenience.'' We should honor this. Childhood Vaccines: among the most inappropriate provisions that the Daschle-Lieberman amendment strikes is a modification to the Childhood Vaccine Injury Act of 1986. The language included in the House-passed bill has far-reaching consequences and is wholly unrelated to the stated goals of this legislation. Inserted without debate in either chamber, this language will primarily benefit large brand name pharmaceutical companies which produce additives to children's vaccines with substantial benefit to one company in particular. It has no bearing whatsoever on domestic security. The National Vaccine Injury Compensation, VIC, Program, established under the Childhood Vaccine Injury Act of 1986, set up a no-fault compensation program as an alternative to legal action to compensate children injured or killed by a vaccine. The VIC Program was adopted in response to a flood of plaintiffs' suits in the early 1980s which ravaged the vaccine industry. Incentives, such as limitations on damages, were established to encourage manufacturers to continue to produce safer vaccines, while education programs and an adverse reaction reporting system were established to ensure prevention of future vaccine injuries. The 1986 law did not define ``vaccine,'' and suits emerged between families and manufacturers of vaccine additives, many of which are still ongoing. The language contained within the House-passed Homeland Security Act would modify the definition of a ``vaccine'' to include additives. Originally contained within a well-rounded bill written by my friend, Senator Frist, this language served a sound purpose. However, I am concerned that the passage of these select provisions which benefit pharmaceutical manufacturers will eliminate the incentive to continue negotiations on the important reforms within Senator Frist's bill which has been negotiated in the HELP Committee for close to a year. Additionally, unlike the bill in Committee, this language would intervene in ongoing litigation without modifying the statute of limitations for bringing a claim under the Vaccine Act, and in so doing, would leave families of some injured children with no available recourse. As I stated earlier, I am not opposed to reasonable legal reform. I support a comprehensive reform package such as the bill sponsored by Senator Frist, and hope that such a measure will pass early in the next Congress. It is wrong, however, to cherry pick provisions beneficial to industry and insert them in a Homeland Security bill and to leave for another day those provisions that protect children. Special interests have no place in any congressional action, least of all one of this magnitude. For this reason, I am compelled to support the Daschle-Lieberman amendment. This administration has worked tirelessly with the House and Senate to produce an extraordinary restructuring of Government to better protect the American people. They have accomplished an amazing feat. Legislation of this gravity should not be sullied by a few special interest riders. I urge my colleagues to join me in striking them.

Mr. McCAIN. I agree that the issue must be addressed. In the absence of any regulatory action by DOT, I will certainly want to continue our joint efforts to provide the appropriate guidance to DOT and the states on this important security matter.

Mr. McCAIN. That is correct. We have not fully addressed the issue of background checks for commercial drivers and more work remains.

Mr. McCAIN. Madam President, last November, Congress included a provision in section 1012 of the USA Patriot Act, P.L. 107-56, which requires all commercial truck drivers who haul hazardous materials to undergo a background records check before receiving or renewing their Commercial Driver's License, CDL, endorsement to haul hazmat. Unfortunately, over a year has passed and regulations to promulgate this requirement have not been issued.

Mr. McCAIN

Mr. McCAIN. Mr. President, I rise to speak on S. 2949, the Aviation Security Improvement Act. This bill builds and improves upon work that began last year when Congress passed the Aviation and Transportation Security Act, ATSA, P.L. 107-71. During the 10 months since that law's enactment, there has been a significant change in the way aviation security is handled. However, there is a long way to go until we achieve all our aviation security goals. I believe the bill before us would make many positive steps in the continuing effort to protect the nation's air transportation system. This bill also contains the text of S. 2950, the National Transportation Safety Board Reauthorization. I want to begin by commending Senators Hutchison and Snowe for their work on the air cargo security issue addressed in this legislation. The cargo provisions flow directly from their bills and would bolster an aspect of aviation security that was not addressed in great detail in last year's law. This is one area in which we can and should be proactive to get ahead of potential problems or vulnerabilities. There is a particular issue in this bill that I want to discuss briefly. In last year's security bill, we mandated that airport screeners had to be U.S. citizens. While imposing that requirement was an understandable impulse, it had some negative ramifications that were not clear at the time. For example, American Samoans are not now eligible to be screeners because they are considered nationals, not citizens. S. 2949 includes a provision to allow nationals of the U.S., honorably discharged veterans of the U.S. military, and lawful permanent residents who were employed as airport security screeners at the time of ATSA's enactment, to be eligible to compete for jobs as federal security screeners. The provision would not require that these individuals be hired, but give TSA the discretion to hire them if they meet all the other statutory requirements concerning the hiring of screeners. This is a fair and reasonable expansion of the existing provision. A similar provision was added to the Homeland Security bill. However, the provision in the Homeland Security bill only expands the definition to include U.S. nationals. It would still exclude an important segment of the population-legal permanent residents. LPRs as they are known, can join the military and risk giving up their lives fighting for our country. Yet, to date, they cannot be hired as security screeners. This is wrong, and we should correct it now. In addition, S. 2949 would reauthorize the National Transportation Safety Board. The NTSB is an independent Federal agency charged with investigating every civil aviation accident in the United States. It also investigates significant accidents in the other modes of transportation--railorad, highway, marine, and pipeline--and issuing safety recommendations intended to prevent future accidents. We are all aware of the important role the NTSB plays in the safety of our transportation system, and it is important that we move ahead with this reauthorizing legislation. A key element of this bill involves authorization for the NTSB's new Training Academy, which will be the centerpiece of its teaching and training of transportation accident investigators worldwide. It also will provide state-of-the-art classrooms and laboratory space for accident investigation. This is especially important with the advent of new technology that is being used to build, fuel, and more all modes of transportation. The legislation also would streamline the NTSB's procurement process during accident investigations and allow the Board to transfer its family assistance responsibilities to any Federal agency that takes over an investigation, such as the FBI, provided that the other agency is willing and able to handle those duties. Finally the bill would reauthorize the NTSB's funding for its day to day activities. The importance of the agency is well known to all. I urge the support of this bill.

Mr. McCAIN

Mr. McCAIN. I object.

Mr. McCAIN

Mr. McCAIN. Mr. President, I yield to the Senator from Alaska such time as he may consume.

Mr. McCAIN. Mr. President, I yield myself such time as I may take. I am very surprised by the comments made by the Senator from Delaware. The fact is we did pass out a rail security bill. The Senator from Delaware wanted to add on billions of dollars for all kinds of assistance to railroads, which has had very little to do with security. I am all for security. But the Senator from Delaware and I are known for our differences of opinion about Amtrak and how much of American tax dollars should be spent on Amtrak. In fact, it has been about $20 billion to $30 billion in the last few years. We are still subsidizing rail routes to the tune of $200 to $300 per passenger. But the fact is the reason we don't have a rail security bill is because of the desire to add on the bill billions and billions that have nothing to do with rail security. If the Senator from Delaware wants to pass our version of the bill which has nothing to do with the additional billions that are the subject of debate on the transportation bill and other bills, that is fine. But the reason we are making a tragic mistake here is because we didn't move forward just rail security. There was a strong desire by supporters of Amtrak to lard onto it billions of dollars of additional spending having nothing to do with rail security. I look forward to working with the Senator from Delaware. They should be separated. Subsidization forever of Amtrak is not something this Senator will ever support when we subsidize rail routes, in the case of a line in Wisconsin--recently terminated, thank God--at $2,000 per passenger. There is something wrong with the way Amtrak is being subsidized. I look forward to working with the Senator from Delaware. But let us have no doubt as to why rail security didn't pass this floor with this Senator's endorsement, which is because of the additional billions of dollars that were going to be added onto it.

Mr. McCAIN. Mr. President, that has nothing to do with rail security. And as incoming chairman of the committee, I will be glad to review this issue of Amtrak. We will get the GAO up again, and the GAO will talk about the incredible subsidization of Amtrak which costs American taxpayers billions and billions of dollars per passenger. That is the subject of another day of debate. But to come on this floor and say that we are making a ``tragic mistake,'' in the words of the Senator from Delaware, by not passing the rail security bill, I say it is a tragic mistake to add billions of dollars of pork onto rail security when rail security should have been the primary and only focus of a rail security bill.

Mr. McCAIN. How much time remains on both sides?

Mr. McCAIN. Mr. President, I am glad to yield some of my time to the Senator from South Carolina, if he needs it.

Mr. McCAIN. Mr. President, I want to go back for a moment to the discussion I had with the Senator from Delware concerning rail security. First of all, I agree with the Senator from Delaware. We need absolutely to pass that legislation, particularly now that we have acted on airport and port security. Rail security is obviously a very critical item. My point was that there are two bills: One is S. 1550, the rail security bill, which provides $1.7 billion, $515 million for Amtrak systemwide security, and then $998 million for tunnel life safety projects in New York, Baltimore, and Washington, DC, which comes up to $998 million, and $254 million for safety and security improvements. That bill I supported and worked through the committee and would support it, even though over 50 percent of it goes for just three areas: New York, Baltimore, and Washington, DC. But that is where tunnels that need work are located. I was referring also to S. 1991, which is the Amtrak reauthorization, which calls for $4 billion annually and also includes the provisions of S. 1550. Holds were put on S. 1550. I do not support S. 1991 because it authorizes as much as $4 billion annually. The Senator from Delaware always talks about the fact that we subsidize aviation projects. We do. We do primarily through user fees. There are no user fees that are imposed on the railways of America and Amtrak. I am pleased with some of the actions that have been taken by the new regime over at Amtrak. The new chairman is doing a much better job in making some very tough decisions. I look forward to working with the Senators from Delaware. The junior Senator from Delaware, Mr. Carper, has been very committed and involved in the project. I look forward to working with him and Senator Hollings. A top priority will be, in my view, rail security; we should pass it. I want to make it clear I don't believe other extraneous projects should be associated with it. The Amtrak reauthorization should be taken up on its merits or demerits. But I hope we can move forward with S. 1550, the rail security bill. Holds have been put on the bill. It has received my support, as well as that of the distinguished chairman of the committee. The issue of Amtrak rail security is of prime importance. The issue of the future of Amtrak is also of significant importance--not as important as that of rail security. I look forward to working with Senator Hollings and the Senators from Delaware and the members of the committee, including Senator Breaux, as we try to work through this whole issue of the future of Amtrak. There are a number of different kinds of proposals, and Mr. Ken Mead of GAO, under whose responsibilities Amtrak lies, is one to whom all of us pay a great deal of attention. Finally, I again thank Senator Hollings for his leadership on this very important legislation. I don't think there is any doubt in the minds of most safety and security experts that port security is an area of significant vulnerability. We hold no illusions there will be immediate confidence that we can have security in the airports of America, but I am confident that the implementation of this legislation, over time, will provide Americans, to a large extent, with the security and safety that is necessary in the ports of America. In some ways, you can argue that the way the ports operate in America, the challenges are even greater than at the airports, or even rail security, given the hundreds of thousands of containers that come through these ports on a daily basis, and how vital they are to the economy of the United States, as we found out in the slowdown/strike in the west coast ports recently. So I again thank all involved. I also thank our friends in the other body, the House, and also for the involvement of the administration. Mr. President, I yield whatever remaining time I have to the Senator from South Carolina.

Mr. McCAIN. Mr. President, let me start by, once again, thanking Chairman Hollings for his leadership in addressing identified safety and security problems at our Nation's seaports. I applaud his leadership and steadfastness as we finally bring this important piece of legislation to completion. The conference report we are considering today is an important step forward and will provide both the guidance and funding authorization needed to improve maritime and port security. It is past time to send this legislation to the President for his signature. The old adage, ``a chain is only as strong as its weakest link,'' is very true when it comes to securing our homeland. Today, our Nation's seaports remain a weak link in border security. This conference agreement will go a long way in strengthening that link. Both the Hart-Rudman Report on Homeland Security and the Interagency Commission on Crime and Seaport Security found our seaports to be vulnerable to crime and terrorism. While there is no way to make our Nation's seaports completely crime free and impenetrable to terrorist attacks, this conference report will undoubtably advance port security and help strengthen overall national security. The report by the Interagency Commission on Crime and Seaport Security, also known as the Graham Commission, in recognition of Senator Graham's efforts to establish such a commission,was a catalyst 2 years ago for the Commerce Committee's initial efforts to address crime and security issues at our Nation's seaports. The committee held a number of hearings in Washington focused on seaport security issues and the Subcommittee on Surface Transportation and Merchant Marine also held field hearings on the west coast in Seattle, WA, and Portland, OR, and on the southeast and gulf coast in Port Everglades, FL, New Orleans, LA, Houston, TX, and Charleston, SC. The input from numerous witnesses contributed significantly to the development of this agreement. As I have mentioned many times during the past year, it is widely reported that transportation systems are the target of 40 percent of terrorist attacks worldwide. This conference agreement would provide for increased security at our Nation's seaports, helping to reduce crime and protect vessels and vital transportation infrastructure from terrorist attacks. The conference agreement includes a number of important provisions. It requires coordination among the many entities that play a role in security at our Nation's seaports and on our navigable waterways, including the Coast Guard, the Customs Service, and the many other Federal, State, local, and private agencies. It directs these entities to work together to establish security plans aimed at decreasing vulnerabilities and reducing threats to our ports and maritime transportation system. These plans will help define specific responsibilities and secure our seaports. The conference agreement also requires the Secretary to establish incident response plans that explain the role of each agency and how their efforts are to be coordinated in the event of an attack on our Nation's maritime transportation system. In addition to providing guidance on how to respond in the event of an attack, it is expected the detailed planning called for in the agreement will help deter terrorist attacks and other criminal acts aimed at our seaports. The conference agreement further requires the Secretary to establish a grant program to provide much needed funding to ports and facilities to help defray the compliance costs associated with both area and facility security plans. The Secretary will also be required to establish a program to provide grants to look at new and existing technologies that can be used to better secure and protect our Nation's maritime transportation system. The conference agreement takes into account not only the wide range of threats and crimes surrounding our seaports, but also the unique nature of our ports. A ``one-size-fits-all'' approach will not work. The planning process established in the conference agreement requires the Secretary to consider the fact that our Nation's seaports are complex and diverse in both geography and infrastructure. While there are still many questions regarding how far we must go to secure our ports and waterways, I am confident that the compromise reached with our House colleagues will create a safer and more secure maritime transportation system in the United States and allow the flow of commerce to continue. Mr. President, this conference agreement also includes the provisions from our Coast Guard authorization. The Coast Guard has been operating without an authorization since 1998, and the resources and personnel benefits provided in this measure for the men and women serving in the Coast Guard are long overdue. This agreement authorizes funding for the Coast Guard for fiscal year 2003 at the levels requested by the President for six accounts: one, operation and maintenance expenses; two, acquisition, construction, and improvement of facilities and equipment, AC&I; three, research, development, testing, and evaluation, RDT&E; four, retirement pay; five, environmental compliance and restoration; and six, alteration or removal of bridges. It also authorizes end-of-year military strength and training loads to ensure that the Coast Guard will have the flexibility to respond to its ever growing missions. The provisions from the Coast Guard authorization bill include numerous measures which will improve the Coast Guard's ability to recruit, reward, and retain high-quality personnel. The conference agreement addresses various Coast Guard personnel management issues such as promotions, retention, housing authorities, and education, along with measures that grant the Coast Guard parity with its Department of Defense counterparts. Additionally, this legislation provides a number of changes to U.S. maritime laws and Coast Guard authorities such as extending the time for recreational vessel recalls, and increasing penalties for negligent vessel operations. This bill also provides much needed advance funding authority for the Oil Spill Liability Trust Fund which will allow the Coast Guard to better respond to the ever increasing costs of environmental cleanups. In closing, Mr. President, I want to commend the conferees for their work to reach a compromise on this important legislation. I urge my colleagues to support final passage of this legislation. Again, I thank Senator Hollings for his dedicated and deeply involved work on this legislation, including conduct of field hearings throughout the United States, including the important port of Charleston, SC. Mr. President, I know the Senator from Texas, Mrs. Hutchison, wishes to speak on the conference report. I yield the floor.

Mr. McCAIN. Mr. President, how much time do I have remaining?

Mr. McCAIN. Certainly. I yield 3 minutes to the Senator from Florida.

Mr. McCAIN. It is my understanding from leadership that the vote is now going to take place at 11:15. I ask unanimous consent that the remaining time be equally divided between now and 11:15.

Mr. McCAIN

Mr. McCAIN. I would like to thank my many colleagues for joining us in supporting this important legislation. This bill will result in improvements in the safety regulatory program at the Department of Transportation, increased levels of safety throughout our national pipeline system, and in the communities through which pipelines run. This bill contains several important improvements, including: requirements for minimum standards for pipeline integrity management programs, requirements for public education programs, and requirements that the Office of Pipeline Safety and the Research and Special Programs Administration comply with safety recommendations made by the National Transportation Safety Board and the Department of Transportation Inspector General, many of which have already been started.

Mr. McCAIN

Mr. McCAIN. Madam President, I ask unanimous consent that Joe Raymond, a Coast Guard fellow on the Senate Commerce Committee, be granted the privilege of the floor during consideration of the conference report to accompany S. 1214, the Port and Maritime Security Act.