Ted Stevens

Mr. STEVENS

Mr. STEVENS. Mr. President, I am constrained to follow the statement that is made by Senator Specter, the chairman of the subcommittee. It is my understanding also that the election officer's recommendation has not been approved by the court. I share the consternation of many people here about the timing of that election officer's report of her findings concerning that Teamster election. It is clear that under the existing situation there is no order of the court. Even the court hasn't even considered that recommendation, if we have one who has exercised severe bad judgment in terms of the timing of the announcement of her finding. And it is apparent that she could be overruled as to even her findings. But the main thing is that this is a bill that has nothing in it pertaining to this matter. There now comes another one of our cause celebre riders that could well lose the product of this bill. Mr. President, we have 14 appropriations bills to pass by this Senate before September 30, 13 bills coming out of conference, and one continuing resolution. That says that if we can't send them all to the President and get them signed before the 30th, there will have to be a continuing resolution in any event. In addition to that, we have this bill and two other bills to pass. We are really going to be in appropriations every day during this period of September. I have great respect for my friend from Oklahoma. But I have to say the time to deal with this issue is when and if the administration asks Congress for money to pay for this election. We don't even know that there is going to be a new election. If the court rules there is to be a new election, there is no authority in the Department of Justice or the Department of Labor to use existing funds for that election. They will have to come up here with a supplemental request. That is the time we should deal with it. I have to say that it is my feeling, very frankly, as chairman of the committee, that I would rather risk a supplemental--an issue where we disagree with the administration--than risk the whole year's bill. To my knowledge, this is the only issue that would lead this bill to be subject to a veto. So I really have to say, as I did to my friend from Oklahoma, that I disagree with the Senator from Massachusetts, too; that I don't think his amendment is necessary, the amendment in the second degree. And I don't think it is timely to raise the Nickles amendment now. What we need to do is get on with our work and get this bill passed. We still have the Interior bill, we have the District of Columbia bill, and then we have all 13 bills to pass as conference reports, and then we have to pass a continuing resolution. And it has a conference report, too. So, if we want to be here all year working appropriations, then we can spend our time on these riders again. For me, there is no necessity for the second kick of a mule. I got kicked the last time we had this problem on that supplemental. I don't see any reason to go through it again. I urge the Senate not to approve these riders that are controversial. Every one of them has something we would like to have settled. And, if they are noncontroversial and we can work them out, we should do it. But this is a controversial matter. It is, obviously. I am told that the Department of Labor believes it is cheaper to pay for the supervision of the election rather than to have to deal with many complaints on the next election, if one is ordered. So this is a very complicated issue. From my point of view, it is not involved in this bill before us. I respect my good friend from Oklahoma in terms of his views about that election officer, as I have said, and the timing of the release, but there is nothing before us yet. The court has not approved that report. We are dealing with speculation as to whether there will even be another election. So why tie up this bill and tie up the Senate on an issue that is premature, Mr. President, and I urge the Senate to join me in voting against both my friend from Massachusetts and my friend from Oklahoma. Mr. NICKLES addressed the Chair.

Mr. STEVENS

Mr. STEVENS. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, September 4, 1997, at 2 p.m. to hold a hearing.

Mr. STEVENS

Mr. STEVENS. Mr. President, I ask unanimous consent the vote occur on the pending D'Amato amendment at 4:30 p.m. today, and that no amendments be in order to the D'Amato amendment.

Mr. STEVENS

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

Mr. STEVENS. That vote will occur at noon?

Mr. STEVENS. I ask for the yeas and nays on the pending amendment.

Mr. STEVENS. I ask unanimous consent that the call of the quorum be rescinded.

Mr. STEVENS

Mr. STEVENS. I also share the concern expressed by my colleagues about the new air travel segment fee in this bill. I regret that the Senate was not able to sustain its position of a simple extension of the 10 percent ticket tax in the conference committee. We had a vigorous debate last year over financing the Federal Aviation Administration in the Senate Commerce Committee on another congressional committees. We decided to establish the National Civil Aviation Review Commission to examine FAA's true funding needs and various mechanisms for raising the revenues to meet those needs. The Senate and the administration proposed extending the ticket tax during this budget debate to allow the commission to do its work. The new fee undercuts the work of the commission by prejudging their decision. This is not the way public policy should be made, especially on a matter of such direct importance to the pocketbooks and the safety of the American public.

Mr. STEVENS

Mr. STEVENS. Mr. President, an agreement has been reached to address concerns with S. 39, the International Dolphin Conservation Program Act. The agreement is contained in the manager's amendment to S. 39 offered by Senator Snowe. Under the agreement, the Secretary of Commerce is required to conduct a multi-year study on dolphin and dolphin stocks taken incidentally in the eastern tropical Pacific Ocean (ETP) purse seine fishery. The Secretary will use the information from this study to make two separate findings that will determine whether or not tuna caught in the ETP by intentionally encircling dolphins can be labeled as dolphin safe in the United States. Senator Snowe's amendment authorizes appropriations of $4 million in fiscal year 1998, $3 million in fiscal year 1999, $4 million in fiscal year 2000, and $1 million in fiscal year 2001 to complete the study. These amounts are based on National Marine Fisheries Service estimates for the costs for the study. I have received a letter from the White House indicating that the administration will request funds for the study in fiscal years 1999, 2000, and 2001. If the administration follows through on its commitment to request these funds, I will do everything I can to ensure they are appropriated.

Mr. STEVENS. Will the Senator yield to me?

Mr. STEVENS. I concur with Senator Snowe. As the original sponsor of the bill, it is my intent that the Secretarial findings in section 5 be subject only to the scope of judicial review in the Administrative Procedures Act. That is clearly the appropriate standard, and I think we all agree on that.

Mr. STEVENS. Mr. President, I introduced S. 39, the International Dolphin Conservation Program Act, in January of this year at the request of the administration. The bill would implement the international conservation agreement called the Panama Declaration, which was signed on October 4, 1995, by the 12 nations that fish for tuna in the eastern tropical Pacific Ocean [the ETP]. These countries include: Belize, Colombia, Costa Rica, Ecuador, France, Honduras, Mexico, Panama, Spain, Vanuatu, and Venezuela. The President and Vice President strongly support the bill, as do Greenpeace, the Center for Marine Conservation, the Environmental Defense Fund, the National Wildlife Federation, the World Wildlife Fund, the American Sportfishing Association, U.S. labor unions, and the U.S. tuna industry. The House of Representatives has passed measures similar to S. 39 twice--in both the 104th and 105th Congresses, by large bipartisan majorities. Under the Panama Declaration and S. 39, a binding international agreement to reduce dolphin mortality and conserve fishery resources in the ETP will be created. This binding agreement will cap dolphin mortality in the ETP at no more than 5,000 dolphins annually, with the goal of reducing the mortality of dolphins to zero. It will also create binding observer, bycatch, and other conservation and management measures in the ETP similar to those we just enacted in our domestic fisheries in the Magnuson-Stevens Act. These important conservation measures are contingent on specific changes to U.S. law. The key changes include: A change to allow tuna caught in compliance with the Panama Declaration--including through the encirclement of dolphins--to be imported into the United States; and a change so that dolphin safe will mean tuna in the ETP caught in a set in which dolphin mortality occurred. Under the agreement we have reached with Senators Boxer, Biden, and Breaux, the second of these changes will be delayed. Tuna caught by encircling dolphins in the ETP will only be able to be labeled as dolphin safe beginning in March 1999. Before this happens, the Secretary of Commerce must determine--as we believe he will based on the scientific data we have already seen--that encirclement is not having a significant adverse impact on depleted dolphin stocks. I have strong doubts about whether this delay is necessary, but the Latin American countries who signed the Panama Declaration with the United States have agreed to the delay. It is appropriate that in 1997--the 25th anniversary of the passage of the Marine Mammal Protection Act--we are making improvements with respect to the protection of dolphins, a primary focus in our enactment of the original MMPA. Since passage of the MMPA in 1972, dolphin mortality in the ETP has been reduced from over 400,000 per year, to below 5,000. This decrease in dolphin mortality is primarily due to the development of a practice called the back-down technique, in which dolphin are safely allowed to escape from the net. Our bill today acknowledges the vast improvements that have been made in this encirclement fishing method. S. 39 will allow tuna caught through this method to be imported into the United States and thereby discouraged alternative methods--log sets--which we have learned have extremely high levels of bycatch. We spent the last 3 years working on the new measures to curb bycatch in our domestic fisheries--this year's S. 39 will help with the situation in the ETP. I thank Senator Breaux for his work on the matter, along with Senator Kerry, and I want to acknowledge the leadership of Senator Snowe in working out the final version of this bill. I thank the staff: Trevor McCabe, of my office; Paul Deveau, from Senator Breaux's staff; Clark LeBlanc, with Senator Snowe and Senator McCain; Kate Wing, from Senator McCain's staff; Penny Dalton, along with Jean Toal, from Senator Hollings' staff; Margaret Cummisky, from Senator Inouye's staff; and Kate English and Tom Richey, from Senator Kerry's staff. It has been an excellent staff job. Mr. KERRY addressed the Chair.

Mr. STEVENS

Mr. STEVENS. Mr. President, I say to the Senator from New Mexico that we have studied this and there is no impact on any universal service provider or universal service beneficiary that is adverse. There may actually be a beneficial effect, in terms of some of the providers. But it is not a provision that harms universal service. It is a provision that tinkers with the funding of universal service, but not adversely to the system. I will agree with that.

Mr. STEVENS. Mr. President, first, let me thank the distinguished occupant of the chair. I was fearing that this issue might come up for a ruling while I had the privilege of sitting in that chair and was fearful what I might do, because I can tell the Senate that if one examines the signatures sheets for reporting this bill, you will find that I excepted from my approval of the bill as a conferee on the Commerce Committee side this provision on the universal service fund. Mr. President, I am not going to raise a proper point of order, and there is a proper point of order, but it would bring down the whole bill, and it is not timely. I would raise it if this went into effect next year. It will not go into effect until October 1 in the year 2000. So we have time to work this out and find a way to make peace on this subject. I intend to pursue that after the hearings that the Senator from Arizona has announced, as chairman of the Commerce Committee, he will hold. I don't think anyone really realizes what this does. I will say, and I know the Senator from New Mexico was trying to get it to me, the first time I saw this was today, although it had been described to me, and that is why I would not approve the Commerce Committee portion of the bill pertaining to the service fund. As a matter of fact, this is the old interstate rate pool, Mr. President. People in the business still refer to that in many ways. It became the universal service fund. I was the one who dreamed this up about 5 years ago when we first introduced the bill to modify the old Communications Act of 1934, and really that was carried through in the Telecommunications Act that passed. I am pleased to have been part of that, because what this does is it gives us a fund which the industry itself can use to equalize the costs of assuring service anywhere in the United States so that our telecommunications will, in fact, be capable of being delivered wherever there is a person seeking to send or receive communications as defined by our act. This money is kept by the National Exchange Carriers Association, [NECA]. It is not Federal money. It is not subject to Federal control. As a matter of fact, it is not even enforced by the Federal Government in terms of payment into the fund. It cannot be a tax. With due respect to my friend from New Mexico, I think we have a Supreme Court of the United States that will determine eventually what is on budget and what is not. The Director of the Congressional Budget Office, in my judgment, has made a serious mistake, and we are pursuing that mistake here. But there is more than just his mistake. The basic mistake has been made by the White House itself, when it conjured up this new approach to using this fund which is not Federal money, it is not taxpayer's money. It is paid by the ratepayers, not the Federal Government. You might have dipped into the Postal Service surplus in the bank right now under this theory. That is ratepayer money, too. It is not on budget, but, as a matter of fact, this money is not subject to Federal control. But this bill says there is appropriated $3 billion to put into this fund that NECA manages for the telecommunications world, and it sits there for a year, Mr. President. Of course, it is going to earn interest, right? At the end of the year, it is paid back by the fund, and the fund can keep the interest it earned during that period. Once more, the people who would have paid into the fund don't have to make a payment for a year. They keep that money that they would have paid the fund in their own banks and they pay it to NECA the following year, and guess what? They make money off it, too. So this is one of the greatest shell games I have ever seen with Federal money. The Federal money being fooled with is the $3 billion from the Treasury that goes into the fund before the game begins, and these guys get to play poker with this for a year, and then after a year, they can keep whatever they earned with it and pay back $3 billion to Treasury. It is a win-win thing for everybody but the people who should be served, because the earnings for the fund ought to accrue to the fund, the people who are the recipients of universal service, and this is just too cute. This, in my opinion, is the worst gimmick since the Budget Act was enacted, and I am glad the Senator from New Mexico has indicated he really didn't dream this one up, because I think he is smarter than that, and I think he is embarrassed to have to carry it, as I would be. The proper point of order, Mr. President, is a constitutional point of order. I will not raise it because it will pull the whole bill down, and we have to have this to bring about a balanced budget. It will take place in the year 2000, as I said. But I warn the Senate, before 2000 gets here, we will raise a constitutional point of order to take this out of here unless it is straightened out, because it is nothing but smoke and mirrors. It is the worse case of smoke and mirrors that ever came out of the White House. Somehow or another, someone has to understand that it is not right to play with money, that $3 billion of taxpayer's money goes into this fund, managed by a private association; it stays there for a year, the interest on it accrues to private associations, and at the end of the year, they pay back $3 billion. Meanwhile the people who should have been paying in for a year have earned their own money, and guess what? It is not a wash in the sense of everybody who keeps their own checkbook and everyone who pays bills and the people who need this service, this universal service; it is a wash under the Budget Act, which I thought was a stupid act to begin with, and now I know it is a stupid act, if it can conjure up something like this. It is not in the public interest. So, Mr. President, I am now satisfied that I was right. I signed this bill and approved it, except for this provision. I urge everyone to read it, section 3006. If there is anything that demonstrates we need a new Budget Act, this is it, if people can sit in the basement of the White House and dream up a charade like this and say that it balances the budget. This is why people don't believe us. They really don't believe us, because they think we play funny games with their money, and this demonstrates they are right, Mr. President, unfortunately. I will swear to you--I am glad you came, Mr. President, because I would be hard pressed not to approve the point of order that is raised by the Senator from North Dakota, and I would have hated to be in that chair and to have said what I don't believe. I am not saying you have to believe it either, Mr. President, just follow what the Parliamentarian tells you and we will pass this bill, and we will live to the year 2000. Meanwhile, someone has to put down a marker on these people. They have to stop using smoke and mirrors. That is why we don't have a balanced budget now, because people play games with money, and those of us who don't have much money don't understand it. It took me a little time to find out what they were trying to do, I say to the Senator from New Mexico. I see him smiling a little bit. He is my great friend, and I know he is embarrassed to have to carry someone else's brainchild like this. I hope we will find some way to stop this business, to give us a chance to deal with straight up-and- down money, and straight up-and-down provisions and not more smoke and mirrors. Mr. DOMENICI addressed the Chair.

Mr. STEVENS. Mr. President, if the Senator will let me have a couple minutes, it would be nice to have this discussion. There are no smoke and mirrors in the appropriations bills. We sometimes have devices in order to enable us to meet the objectives of the Budget Act, but we never end up by appropriating money to an account that is not controlled by the Federal Government, nor do we give up interest on that $3 billion for a year and expect just to get the straight $3 billion back. If there is something like that going on in an appropriations bill, I don't know about it. He is right, we have our devices for making sure that we have control on spending money, and sometimes that is subject to criticism, similar to what I have just given him.

Mr. STEVENS. Will the Senator from New Mexico yield me 10 minutes?

Mr. STEVENS. Mr. President, I send to the desk a request for privilege of the floor for my staff for today through August 1: Antonette Advincula; Kai Binkley; Larissa Sommer; Matt Hopper; Melissa Kassier; James Hayes; Kate Williams; Bronwyn Rick; Jay McAlpin; and Jessica Huddleston.

Mr. STEVENS

Mr. STEVENS. Mr. President, I move to reconsider the vote by which the amendment was agreed to.

Mr. STEVENS. I am delighted I was here to hear the Senator from Arizona comment on the program. I will call attention to the fact that the bill in the other body has the same amount of money that is in the amendment as proposed here. This matter will be at conference. And it will be a long and sustained conference whether this amendment is adopted or not. I believe that we should keep on course. I am not an opponent of this matter. As a matter of fact, I have always voted for it. But I do not think it gains anything to have a prolonged discussion here at this time. I will assure Senators who support it, we will do everything in our power to assure the conference of their objectives at conference. But I move to table this amendment, and ask for the yeas and nays.

Mr. STEVENS. Mr. President, there is overwhelming opposition. But I do want to tell the Senate that we are spending time on an amendment that deals with a subject the House has always insisted on in conference. I don't know why we spend time debating here on the floor whether or not we are going to give this subject approval by the Senate, because it is one item that the House will not let us come out of conference on unless we approve it. So we have taken time to get negotiating room with the House, and the Senate won't let us have it. I am sorry to say that I think the Senate just made a mistake. Amendment No. 985

Mr. STEVENS

Mr. STEVENS. Mr. President, we do not have order.

Mr. STEVENS

Mr. STEVENS. I want to reiterate the concerns expressed by my colleague, Senator Murkowski. The reality may be that no matter what Fairbanks does, it may never be able to comply with EPA standards because of its geographic location.

Mr. STEVENS. Mr. President, I shall not use that much time. I do appreciate the courtesy of the manager of the bill. Mr. President, we have studied this matter to death. The issue, in 1973, was recommended by Senator Hruska and the Hruska Commission was created. It recommended then, in 1973, that the ninth circuit court be split. Every Congress we hear the same thing from the large delegation in the House and the two Senators in the Senate from California: we need more study. I think that is what we are hearing again now--have another study. It has only been 24 years now that we have been studying since the first commission reported. But, of course, we do need the advice of another commission. Mr. President, I am a California lawyer. I was raised in California, and I am pleased to have that background. But I tell you, in all sincerity, I cannot believe that we can continue this situation. This chart--I am not sure it can be seen, Mr. President. This chart shows the population and caseload of the circuits. Clearly, the population is almost 50 million people in the ninth circuit, and it requires some change when, clearly, the average of all of the others is somewhere around 20 million people. I want to address the concern spoken to, I think, by my good friend from Hawaii, Senator Inouye. It has been 13 years now since a Hawaii resident was appointed to the ninth circuit. Fourteen judges have been seated on the circuit since that time, but Hawaii was never recognized. Senator Inouye has included an amendment in this provision that guarantees that at least one judge will be appointed to the circuit court of appeals from the new circuit, when it is created, from each State. Now, I think the Senate should listen to that kind of frustration and should listen to the frustration of those who see how long it takes for a case to be decided by the Ninth Circuit Court of Appeals. Mr. President, I said the other day that the Ninth Circuit Court of Appeals judges come to our State. They come during the summer, and they have a delightful time visiting our State. In the wintertime, all our people fly south and some of our lawyers like that. But the litigants don't like it because the average time that an appeal is pending before the ninth circuit is so long, it puts a great burden upon our States, the smaller States in this circuit. Now, in 1995, the Senate Judiciary Committee report showed that New York accounted for approximately 87 percent of the second circuit docket; Texas cases were approximately 70 percent of the fifth circuit docket. We have considered splitting the ninth circuit before several times since I have been in the Senate. Mr. President, the overload of the ninth circuit is now such a serious problem, and it is only going to get worse if we continue to talk about another commission to discuss whether this split should take place. The appellate process, for almost one-fifth of the citizens of the United States, will continue to be inadequate. I believe we are doing California a favor by splitting this court. They are the only State that has one circuit all to itself, all to itself--well, Nevada could make the decision to join if they wish. But the establishment of tribunals is a responsibility of the Congress, not of a commission. It is one of our most important responsibilities under the Constitution. I believe the Senate will shirk its responsibility if we do not act to correct this problem of the ninth circuit, and I urge the Senate to do what this amendment would do: create a new twelfth circuit and allocate to it the States that are suffering greatly by the current crowded situation and long delays in the Ninth Circuit Court of Appeals. I thank the Chair and yield back the balance of my time.

Mr. STEVENS

Mr. STEVENS. I regret that, and I apologize to the Chair.

Mr. STEVENS. I am sorry. I apologize. I did not hear that motion. When was the motion made?