J. Thurmond

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to recognize Mrs. Elise Kirkland Yardley, a daughter of South Carolina, on the occasion of her 100th birthday. I wish her many more happy birthdays. Mrs. Yardley was born in Camden, South Carolina on February 16, 1899, in the historic Camden home known as Cool Springs. She was one of nine children born of Thomas and Fredricka Kirkland, and she is the last surviving member of her immediate family. The Kirkland family has South Carolina roots that stretch back to before the Revolutionary War, and it has produced many fine public servants and citizens. Notably among them are Lane Kirkland, Mrs. Yardley's nephew and the former President of the AFL-CIO. After her childhood in Camden, Mrs. Yardley attended Winthrop College in Rock Hill, South Carolina, where she graduated in 1919 with a degree in teaching. She moved back to Camden and met Sherborne Yardley, the man who would become her husband of more than 50 years. The Yardleys eventually settled in Birmingham Alabama, where Mr. Yardley worked for Republic Steel and Mrs. Yardley ran the household. Mr. Yardley passed away in 1978. The Yardleys have three children: Thomas, an investment banker, John, a clinical pathologist, and Elizabeth, a homemaker. The family has grown to include eight grandchildren and 16 great-grandchildren. I am assured that Mrs. Yardley continues to serve as the presiding officer over the entire brood. Mrs. Yardley still resides in Birmingham, although she returns regularly to Camden, where her entire family will gather in a few days to celebrate her 100th birthday. When they come together, her family will not only be observing Mrs. Yardley's centennial, but also honoring a lively, beautiful, and determined woman. They have much to celebrate. As we pause briefly today to celebrate her long life, we do well to look back on what Mrs. Yardley has seen. She grew up in the rural South before that area had electrification. She has seen Halley's Comet pass this planet twice, watching it the first time in 1910, when her father gathered the family on their porch to marvel at the sight. She was alive to witness the invention of the airplane, the automobile, the computer, and space travel. Her husband served in the Navy during the First World War, and her sons served in the military during the Second World War. Her grandfather died in the Civil War. She saw the end of the 19th century, the whole of the 20th century, and will doubtlessly be around to experience the new millennium. I am pleased to rise today to honor this charming and accomplished woman. It seems fitting that I do so not only as the senior senator from her home state, but also as the one Member of this body who qualifies as Mrs. Yardley's peer. Mrs. Yardley and I both know the many rewards of a long and healthy life. I wish her continued good health and prosperity.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise to today to recognize the dilligent service of Ms. Treva Turner, who is retiring from the Congressional Research Service after 33-years of providing invaluable assistance to Senators, Representatives, and members of their staffs. It is probably safe to say that the images that most people associate with the United States Congress are those of the Capitol Building or the 535 men and women who serve in the Senate and House Chambers. Afterall, millions of Americans see us cast votes as they watch C-SPAN and C-SPAN2, or recognize the Capitol from a trip to Washington, DC, or from seeing it used as a backdrop for television news reports or in movies. What most Americans do not realize is that the Congress extends far beyond the Capitol Building, and those that work in these two chambers are not limited to those of us who hold office. As each of us knows, we rely on what is literally a small army of men and women to provide us with advice, support, and analysis. Among those organizations which support our work, perhaps the greatest treasure is the Congressional Research Service, commonly known as ``CRS''. For more than the past three decades, Treva Turner has been a loyal, dilligent, and selfless employee of CRS, and her efforts have been of immeasurable help to many of us as we have debated any number of matters before the Senate. Treva's speciality was education issues, and as each of us places a great priority on providing for the future of America's children, she was kept busy with any number of projects and research requests. Despite her heavy workload, Treva was always pleasant, outgoing, and ready to share her wry sense of humor with her many friends. Furthermore, she was always ready to lend assistance to people, whether they were co-workers in the Congressional Research Service, or staffers who wandered into the Senate Reference Center. Treva's professionalism and expertise assured that she provided prompt and impartial information and analysis to all Members of Congress and their staffs. As with any professional, Treva's dedication to her job did not end with her assigned duties. Her work as a founding member of the Library of Congress Professional Association, along with her service on the Reference Forum, help to assure that CRS met the needs and expectations of its primary users. Mr. President, I know that Treva Turner is going to be missed by all those who had the opportunity to work with her. I also know that each of us is grateful for the dedicated service and support she has rendered to the United States Congress and that we wish her health, happiness, and success in the years to come.

Mr. THURMOND

Mr. THURMOND. Mr. President, I have the sad duty to inform the Senate of the untimely death of Victor Stello, Jr., an honored civil servant who had a very great influence on the safe operation of commercial nuclear power plants and Department of Energy nuclear facilities. Mr. Stello came from a family of coal miners in Pennsylvania. It was from seeing the terrible toll on the health of friends and relatives in the mines that he became convinced that safe, clean nuclear power would be a great boon to our country. He worked tirelessly throughout his career to make nuclear power plants safer and safer. At the Nuclear Regulatory Commission he rose through the ranks because his singular ability and forceful personality made it clear that he was a man who got things done. In turn, he was Director of the Division of Reactor Operations, the Office of Safety and Enforcement, and the task force that investigated the Three Mile Island reactor accident. Eventually he reached the highest civil service position at the Nuclear Regulatory Commission, becoming the Executive Director for Operations. In 1989 because of his reputation for fixing problems, President Bush nominated him to be Assistant Secretary for Defense Programs at the Department of Energy. Despite the pleas of the Secretary of Energy, James Watkins, a group of antinuclear activists delayed his confirmation. Due to this delay and a subsequent serious leg injury, President Bush reluctantly acceded to Mr. Stello's request that the nomination be withdrawn. Despite this set back, Secretary Watkins persuaded Mr. Stello to join the Department of Energy as the Principal Deputy Assistant Secretary for Safety and Quality, whose primary duty was to ferret out potentially unsafe practices in Department of Energy nuclear weapons facilities. With his forceful personality, coupled with Secretary Watkins' support and the high responsibility delegated to him by a succession of Assistant Secretaries for Defense Programs, Mr. Stello was able to break through previously impenetrable institutional barriers to effect real and lasting change. Mr. President, it is because of Mr. Stello's tireless efforts that the Department of Energy reached a high level of safe operations, so that the Nation's critical nuclear deterrent would not become unsafe or unreliable, and that the facilities needed to maintain that deterrent could continue to operate safely. Mr. President, I ask the Senate to join me in expressing to Mrs. Stello and the children our heartfelt condolences.

Mr. THURMOND

Mr. THURMOND. Mr. President, pursuant to Section 102(b) of the Congressional Accountability Act of 1995 (2 U.S.C. sec. 1302(b)), the Board of Directors of the Office of Compliance have submitted a report to Congress. This document is titled a ``Review and Report on the Applicability to the Legislative Branch of Federal Laws Relating to Terms and Conditions of Employment and Access to Public Services and Public Accommodations.'' Section 102(b) requires this report to be printed in the Congressional Record, and referred to committees with jurisdiction. Therefore, I ask that the report be printed in the Record. The report follows: Office of Compliance--Section 102(b) Report--Review and Report on the Applicability to the Legislative Branch of Federal Laws Relating to Terms and Conditions of Employment and Access to Public Services and Public Accommodations Prepared by the Board of Directors of the Office of Compliance Pursuant to Section 102(b) of the Congressional Accountability Act of 1995, 2 U.S.C. Sec. 1302(b), December 31, 1998 glossary of acronyms and defined terms The following acronyms and defined terms are used in this Report and Appendices: 1996 Section 102(b) Report--the first biennial report mandated by Sec. 102(b) of the Congressional Accountability Act of 1995, which was issued by the Board of Directors of the Office of Compliance in December of 1996. 1998 Section 102(b) Report--this, the second biennial report mandated under Sec. 102(b) of the Congressional Accountability Act of 1995, which is issued by the Board of Directors of the Office of Compliance on December 31, 1998. ADA--Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12101 et seq. ADEA--Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et seq. ADR--Alternative Dispute Resolution. AG--Attorney General. Board--Board of Directors of the Office of Compliance. CAA--Congressional Accountability Act of 1995, 2 U.S.C. Sec. 1301 et seq. CAA laws--the eleven laws, applicable in the federal and private sectors, that are made applicable to the legislative branch by the CAA and are listed in section 102(a) of that Act. CG--Comptroller General. Chapter 71--Chapter 71 of title 5, United States Code. DoL--Department of Labor. EEO--Equal Employment Opportunity. EEOC--Equal Employment Opportunity Commission. EPA--Equal Pay Act provisions of the Fair Labor Standards Act, 29 U.S.C. Sec. 206(d). EPPA--Employee Polygraph Protection Act of 1988, 29 U.S.C. Sec. 2001 et seq. FLRA--Federal Labor Relations Authority. FLSA--Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201 et seq. FMLA--Family and Medical Leave Act of 1993, 29 U.S.C. Sec. 2611 et seq. GAO--General Accounting Office. GAOPA--General Accounting Office Personnel Act of 1980, 31 U.S.C. Sec. 731 et seq. GC--General Counsel. Depending on the context, ``GC'' may refer to the General Counsel of the Office of Compliance or to the General Counsel of the GAO Personnel Appeals Board. GPO--Government Printing Office. Library--Library of Congress. MSPB--Merit Systems Protection Board. NLRA--National Labor Relations Act. NLRB--National Labor Relations Board. OC--Office of Compliance. Office--Office of Compliance. OPM--Office of Personnel Management. OSH--Occupational Safety and Health. OSHAct--Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 651 et seq. PAB--Personnel Appeals Board of the General Accounting Office. PPA--Portal-to-Portal Act of 1947, 29 U.S.C. Sec. 251 et seq. RIF--Reduction in Force. Section 230 Study--the study mandated by section 230 of the Congressional Accountability Act of 1995, which was issued by the Board of Directors of the Office of Compliance in December of 1996. Title VII--Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ULP--Unfair Labor Practice. USERRA--Section 2 of the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. chapter 43. VEOA--Veterans Employment Opportunities Act of 1998, Pub. Law No. 105-339. WARN Act--Worker Adjustment and Retraining Notification Act, 29 U.S.C. Sec. 2101 et seq. executive summary In this Report, issued under section 102(b) of the Congressional Accountability Act of 1995 (``CAA''), the Board of Directors of the Office of Compliance reviews new statutes or statutory amendments enacted after the Board's 1996 Report was prepared, and recommends that certain other inapplicable laws should be made applicable to the legislative branch. In the second part of this Report, the Board reviews inapplicable provisions of the private-sector laws generally made applicable by the CAA (the ``CAA laws''),1 and reports on whether and to what degree these provisions should be made applicable to the legislative branch. Finally, the Board reviews and makes recommendations on whether to make the CAA or another body of laws applicable to the General Accounting Office (``GAO''), the Government Printing Office (``GPO''), and the Library of Congress (``Library''). --------------------------------------------------------------------------- \1\ This report uses the term ``CAA laws'' to refer to the eleven laws, applicable in the federal and private sectors, made applicable to the legislative branch by the CAA and listed in section 102(a) of that Act. --------------------------------------------------------------------------- Part I After reviewing all federal laws and amendments relating to terms and conditions of employment or access to public accommodations and services passed since October, 1996, the Board concludes that no new provisions of law should be made applicable to the legislative branch. Two laws relating to terms and conditions of employment were amended, but substantial provisions of each law have already been made applicable to the legislative branch. However, the provisions of private-sector law which the Board identified in 1996 in its first Section 102(b) Report as having little or no application in the legislative branch have not yet been made applicable, and the Board's experience in the administration and enforcement of the Act in the two years since that first report was submitted to Congress has raised several new issues. Based on the work of the 1996 Section 102(b) Report, the Board makes the following two sets of recommendations. (1) The Board resubmits the recommendations made in the 1996 Section 102(b) Report that the following provisions of laws be applied to employing offices within the legislative branch: Prohibition Against Discrimination on the Basis of Bankruptcy (11 U.S.C. Sec. 525); Prohibition Against Discharge from Employment by Reason of Garnishment (15 U.S.C. Sec. 1674(a)); Prohibition Against Discrimination on the Basis of Jury Duty (28 U.S.C. Sec. 1875); Titles II and III of the Civil Rights Act of 1964 (42 U.S.C. Sec. Sec. 2000(a) to 2000a-6, 2000b to 2000b-3) (prohibiting discrimination on the basis of race, color, religion, or national origin regarding the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation as defined in the Act). (2) After further study of the whistleblower provisions of the environmental laws (15 U.S.C. Sec. 2622; 33 U.S.C. Sec. 1367; 42 U.S.C. Sec. Sec. 300j-9(i), 5851, 6971, 7622, 9610) on which the Board had previously deferred decision, the Board now concludes that the better construction of these provisions is that they cover the legislative branch. However, because arguments could be made to the contrary, the Board recommends that language should be added to make clear that all entities within the legislative branch are covered by these provisions. Based on its experience in the administration and enforcement of the Act and employee inquiry since the 1996 Report was issued, the Board makes the following two recommendations: (1) Employee ``whistleblower'' protections, comparable to those generally available to employees covered by 5 U.S.C. Sec. 2302(b)(8), should be made applicable to the legislative branch 2 to further the institutional and public policy interest in preventing reprisal or intimidation for the disclosure of information which evidences fraud, waste, or abuse or a violation of applicable statute or regulation. --------------------------------------------------------------------------- \2\ Such protections are already generally available to employees at GAO and GPO. --------------------------------------------------------------------------- (2) The Board has found that Congress has created a number of special-purpose study commissions in which some or all members are appointed by the Congress. These commissions are not listed as employing offices under the CAA and, in some cases, such commissions may not be covered by other, comparable protections. The Board therefore believes that the coverage of such special-purpose study commissions should be clarified. Part II Having reviewed all the inapplicable provisions of the private-sector CAA laws,3 the Board focuses its recommendations on enforcement,4 the area in which Congress made the most significant departures from the private-sector provisions of the CAA laws. --------------------------------------------------------------------------- \3\ The table of the private-sector provisions of the CAA laws not made applicable by the CAA, set forth in Appendix I to this Report, details these exceptions. \4\ The private-sector enforcement authority tables, set forth in Appendix II to this Report, summarize the enforcement authorities afforded to the implementing executive-branch agencies under the private-sector laws made applicable by the CAA in those areas in which the CAA does not already grant enforcement authority to the Office. --------------------------------------------------------------------------- The Board makes the following specific recommendations of changes to the CAA: (1) grant the Office the authority to investigate and prosecute violations of section 207 of the CAA, which prohibits intimidation or reprisal for opposing any practice made unlawful by the Act or for participation in any proceeding under the Act; (2) clarify that section 215(b) of the CAA, which makes applicable the remedies set forth in section 13(a) of the Occupational Safety and Health Act of 1970 (``OSHAct''), gives the General Counsel the authority to seek a restraining order in district court in the case of imminent danger to health or safety; and (3) make the record-keeping and notice-posting requirements of the private-sector laws applicable under the CAA. The Board also makes the following general recommendations: (4) extend the benefits of the model alternative dispute resolution system created by the CAA to the private and federal sectors to provide them with the same efficient and effective method of resolving disputes that the legislative branch now enjoys; and (5) grant the Office the other enforcement authorities exercised by the agencies which implement those CAA laws for the private sector in order to ensure that the legislative branch experiences the same burdens as the private sector. The Board further suggests that, to realize fully the goals of the CAA--to assure that ``congressional employees will have the civil rights and social legislation that has ensured fair treatment of workers in the private sector'' and to ``ensure that Members of Congress will know firsthand the burdens that the private sector lives with'' 5-- all inapplicable provisions of the CAA laws should, over time, be made applicable. --------------------------------------------------------------------------- \5\ 141 Cong. Rec. S441 (daily ed. Jan. 9, 1995) (statement of Senator Grassley). --------------------------------------------------------------------------- Part III The Board identifies three principal options for coverage of the three instrumentalities: (1) CAA Option--Coverage under the CAA, including the authority of the Office of Compliance as it administers and enforces the CAA (as the CAA would be modified by enactment of the recommendations made in Part II of this Report.) (2) Federal-Sector Option--Coverage under the statutory and regulatory regime that applies generally in the executive branch of the federal sector, including the authority of executive-branch agencies as they administer and enforce the laws in the federal sector. (3) Private-Sector Option--Coverage under the statutory and regulatory regimes that apply generally in the private sector, including the authority of the executive-branch agencies as they administer and enforce the laws in the private sector.6 \6\ The coverage described in each of the three options would supersede only provisions of law which provide substantive rights analogous to those provided under the CAA or which establish analogous administrative, judicial, or rulemaking processes to implement, remedy, or enforce such rights. Substantive rights under federal-sector or other laws having no analogue in the CAA, and processes used to implement, remedy, or enforce such rights, would not be affected by the coverage described in the three options. --------------------------------------------------------------------------- The Board compared these options with the current regimes at GAO, GPO, and the Library, identifying the significant effects of applying each option.7 --------------------------------------------------------------------------- \7\ The comparisons, which are presented in detail in tables set forth in Appendix III to this Report, cover the CAA, the laws made applicable by the CAA, analogous laws that apply in the federal sector and the private sector, and mechanisms for applying and enforcing them. --------------------------------------------------------------------------- The Board concludes that coverage under the private-sector regime is not the best of the options it considered. Members Adler and Seitz recommend that the three instrumentalities be covered under the CAA, with certain modifications, and Chairman Nager and Member Hunter recommend that the three instrumentalities be made fully subject to the laws and regulations generally applicable in the executive branch of the federal sector. The analysis and conclusions in this report are being made solely for the purposes set forth in section 102(b) of the Congressional Accountability Act of 1995. Nothing in this report is intended or should be construed as a definitive interpretation of any factual or legal question by the Office of Compliance or its Board of Directors. The Board of Directors of the Office of Compliance gratefully acknowledges the contributions of Lawrence B. Novey and Eugenie N. Barton for their work on this report. Section 102(b) Report introduction Congress enacted the Congressional Accountability Act of 1995 (``CAA'') so that there would no longer be ``one set of protections for people in the private sector whose employees are protected by the employment, safety and civil rights laws, but no protection, or very little protection, for employees on Capitol Hill,'' 8 and to ``ensure that Members of Congress will know firsthand the burdens that the private sector lives with.'' 9 Thus, the CAA provides employees of the Congress and certain congressional instrumentalities with the protections of specified provisions of eleven federal employment, labor, and public access laws. (This Report refers to those laws as the ``CAA laws'').10 Further, the Act generally applies the same substantive provisions and judicial remedies of the CAA laws as govern employment and public access in the private sector to ensure that Congress would live under the same laws as the rest of the nation's citizens. --------------------------------------------------------------------------- \8\ 141 Cong. Rec. S622 (daily ed. Jan. 9, 1995) (statement of Senator Grassley). \9\ Id. at S441. \10\ The nine private-sector laws made applicable by the CAA are: the Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.) (``FLSA''), Title VII of the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000e et seq.) (``Title VII''), the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) (``ADA''), the Age Discrimination in Employment Act of 1967 (29 U.S.C. Sec. 621 et seq.) (``ADEA''), the Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2611 et seq.) (``FMLA''), the Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.) (``OSHAct''), the Employee Polygraph Protection Act of 1988 (29 U.S.C. Sec. 2001 et seq.) (``EPPA''), the Worker Adjustment and Retraining Notification Act (29 U.S.C. Sec. 2101 et seq.) (``WARN Act''), and section 2 of the Uniformed Services Employment and Reemployment Rights Act of 1994 (``USERRA''). The two federal-sector laws made applicable by the CAA are: Chapter 71 of title 5, United States Code (relating to federal service labor-management relations) (``Chapter 71''), and the Rehabilitation Act of 1973 (29 U.S.C. Sec. 701 et seq.). --------------------------------------------------------------------------- However, the Act departed from the private-sector model in a number of significant respects. New institutional, adjudicatory, and rulemaking models were created. Concerns about subjecting itself to regulation, enforcement or administrative adjudication by executive-branch agencies led Congress to establish an independent administrative agency in the legislative branch, the Office of Compliance (the ``OC'' or the ``Office''), to administer and enforce the Act. The Office's administrative and enforcement authorities differ significantly from those in place at the executive-branch agencies which administer and enforce the eleven CAA laws for the private sector and/or the federal-sector. Most notably, the Act did not grant the OC independent investigation and prosecutorial authority comparable to that of analogous executive-branch agencies. Instead, the Act created new, confidential administrative dispute resolution procedures, including compulsory mediation, as a prerequisite to access to the courts. Finally, the Act granted the OC limited substantive rulemaking authority. Substantive regulations under the CAA are adopted by the Board of Directors (the ``Board''). The House and Senate retained the right to approve those regulations, but the CAA provides that, in the absence of Board action and congressional approval, the applicable private-sector regulations or federal-sector regulations apply, with one exception involving labor- management relations.11 --------------------------------------------------------------------------- \11\ With respect to the offices listed in Sec. 220(e)(2) of the CAA, the application of rights under Chapter 71 shall become effective only after regulations regarding those offices are adopted by the Board and approved by the House and Senate. See Sec. Sec. 220(f)(2), 411, of the CAA. --------------------------------------------------------------------------- In terms of substantive law, the Act did not include some potentially applicable laws and made applicable only certain provisions of the CAA laws. Moreover, the Act applied the Federal Labor-Management Relations Act, 5 U.S.C. chapter 71 (``Chapter 71''), rather than the private-sector model, and gave the Board authority to create further exclusions from labor- management coverage if the Board found such exclusions necessary because of conflict of interest or Congress's constitutional responsibilities.12 --------------------------------------------------------------------------- \12\ See Sec. 220(e) of the CAA. --------------------------------------------------------------------------- Finally, the CAA was not made applicable throughout the legislative branch. The CAA only partially covered the three largest instrumentalities of the Congress, the General Accounting Office (``GAO''), the Government Printing Office (``GPO''), and the Library of Congress (the ``Library''), which were already covered in large part by a variety of different provisions of federal-sector laws, administered by the three instrumentalities themselves and/or executive- branch agencies. Congress left certain areas to be addressed later, after further study and recommendation, as provided for by sections 102(b) and 230 of the Act. To promote the continuing accountability of Congress, section 102(b) of the CAA required the Board to review biennially all provisions of federal law and regulations relating to the terms and conditions of employment and access to public services and accommodations; to report on whether or to what degree the provisions reviewed are applicable or inapplicable to the legislative branch; and to recommend whether those provisions should be made applicable to the legislative branch. Additionally, section 230 of the CAA mandated a study of the status of the application of the eleven CAA laws to GAO, GPO, and the Library, to ``evaluate whether the rights, protections, and procedures, including administrative and judicial relief, applicable to [these instrumentalities] . . . are comprehensive and effective . . . includ[ing] recommendations for any improvements in regulations or legislation.'' 13 These reports were to review aspects of legislative-branch coverage which required further study and recommendation to the Congress once the OC and its Board had gained experience in the administration of the Act and Congress had gained experience in living under the Act. --------------------------------------------------------------------------- \13\ 2 U.S.C. Sec. 1371(c). Originally, the Administrative Conference of the United States was charged with carrying out the study and making recommendations for improvements in the laws and regulations governing the instrumentalities, but when the Conference lost its funding, the responsibility for the study was transferred to the Board. --------------------------------------------------------------------------- 1996 Section 102(b) Report. In December of 1996, the Board completed its first biennial report mandated under section 102(b) of the CAA (the ``1996 Section 102(b) Report''), which reviewed and analyzed the universe of federal law relating to labor, employment and public access, made the Board's initial recommendations, and set priorities for future reports.14 To conduct its analysis, the Board organized the provisions of federal law in tabular form according to the kinds of entities to which they applied, and systematically analyzed whether and to what extent they were already applicable to the legislative branch or whether the legislative branch was already covered by other comparable legislation. This generated four tables: the first listed and reviewed those provisions of law generally applicable in the private sector and/or in state and local government that also are already applicable to entities in the legislative branch, a category which included nine of the laws made applicable by the CAA. The second table contained and reviewed those provisions of law that apply only in the federal sector, a category which included the two exclusively federal-sector laws applied to the legislative branch by the CAA. The third table listed and reviewed five private- sector and/or state- and local-government provisions of law that do not apply in the legislative branch, but govern areas in which Congress has already applied to itself other, comparable provisions of law. The last table listed and reviewed thirteen other private-sector laws which do not apply or have only very limited application in the legislative branch. --------------------------------------------------------------------------- \14\ Section 102(b) Report: Review and Report of the Applicability to the Legislative Branch of Federal Law Relating to Terms and Conditions of Employment and Access to Public Services and Accommodations (Dec. 31, 1996). --------------------------------------------------------------------------- The Board then turned to its task of recommending which statutes should be applied to the legislative branch. In light of the large body of statutes that the Board had identified and reviewed, the Board determined that it could not make recommendations concerning every possible change in legislative-branch coverage, for ``that would be the work of many years and many hands.'' 15 The Board further recognized that biennial nature of report, as well as the history and structure of the CAA, argued ``for accomplishing such statutory change on an incremental basis.'' 16 --------------------------------------------------------------------------- \15\ Id. at 3. \16\ Id. --------------------------------------------------------------------------- In setting its priorities for making recommendations from among the categories of statutes that the Board had identified for analysis and review, the Board sought to mirror the priorities of the CAA. Because legislative history suggested that highest priority of the CAA was the application of private-sector protections to congressional employees where those employees had little or no protection, the Board focused its recommendations in its first report on applying the private-sector laws not currently applicable to the legislative branch. The Board determined that, because of the CAA's focus on coverage of the Congress under private- sector laws, the Board's next priority should be to review the inapplicable provisions of the private-sector laws generally made applicable by the CAA. The laws detailed in the other two tables were given a lower priority. Because determining whether and to what degree federal-sector provisions of law should be made applicable to the legislative branch ``involve[s], in part, weighing the merits of the protections afforded by the CAA against those provided under other statutory schemes, the Board determined that, in . . . its first year of administering the CAA, [the Board determined that] it would be premature for the Board to make such comparative judgments.'' 17 Additionally, among the patchwork of federal-sector laws, which had come to cover some of the instrumentalities of the Congress, were laws the effectiveness and efficiency of which were then (and remain) under review by the Executive Branch. Similarly, the Board deferred consideration of laws that were not applicable, but where the Congress had applied a comparable provision, because the Board concluded that ``as the Board gains rulemaking and adjudicatory experience in the application of the CAA to the legislative branch, the Board will be better situated to formulate recommendations about appropriate changes in those different statutory schemes.'' 18 In sum, the Board determined to follow the apparent priorities of the CAA itself, turning first to the application of currently inapplicable private-sector laws, and next in this, its second Section 102(b) Report, reviewing the omissions in coverage of the laws made applicable by the CAA and making recommendations for change. --------------------------------------------------------------------------- \17\ Id. at 4. \18\ Id. --------------------------------------------------------------------------- Section 230 Study. At the same time as it completed its first report under section 102(b), the Board in its study mandated under section 230 of the CAA (the ``Section 230 Study'') 19 analyzed the application of labor, employment and public access laws to GAO, GPO, and the Library, evaluating the statutory and regulatory regimes in place at these instrumentalities to determine whether they were ``comprehensive and effective.'' 20 To do so, the Board had to establish a point of comparison, and determined that the CAA itself was the benchmark intended by Congress. Further, the Board gave content to the terms ``comprehensive and effective,'' defining those terms according to the Board's statutory charge to examine the adequacy of ``rights, protections, and procedures, including administrative and judicial relief.'' 21 Four categories were examined--substantive law; administrative processes and relief; judicial processes and relief; and substantive regulations--to determine whether the regimes at the instrumentalities were ``comprehensive and effective'' according to: (1) the nature of the substantive rights and protections afforded to employees, both as guaranteed by statute and as applied by rules and regulations; (2) the adequacy of administrative processes, including: (a) adequate enforcement mechanisms for monitoring compliance and detecting and correcting violations, and (b) a fair and independent mechanism for informally resolving or, if necessary, investigating, adjudicating, and appealing disputes; (3) the availability and adequacy of judicial processes and relief; and (4) the adequacy of any process for issuing substantive regulations specific to an instrumentality, including proposal and adoption by an independent regulatory authority under appropriate statutory criteria.22 --------------------------------------------------------------------------- \19\ Section 230 Study: Study of Laws, Regulations, and Procedures at the General Accounting Office, the Government Printing Office and the Library of Congress (Dec. 1996) at iii. \20\ 2 U.S.C. Sec. 1371(c). \21\ Id. \22\ Section 230 Study at ii. --------------------------------------------------------------------------- The Board concluded that ``overall, the rights, protections, procedures and [judicial and administrative] relief afforded to employees'' were ``comprehensive and effective when compared to those afforded to other legislative-branch employees under the CAA,'' but pointed out several gaps and a number of significant differences in coverage.23 However, the Board explained that it was ``premature'' to make recommendations at that ``early stage of its administration of the Act,''24 as to whether changes were necessary in the coverage applicable in these instrumentalities. The Board further stated that its ongoing reporting requirement under section 102(b) argued for accomplishing such statutory change on an incremental basis as the Board gained experience in the administration of the CAA. The conclusions in the Section 230 Study thus properly would serve at the appropriate time as ``the foundation for recommendations for change'' in a subsequent report under section 102(b) of the CAA.25 --------------------------------------------------------------------------- \23\ Id. \24\ Id. \25\ Id. --------------------------------------------------------------------------- The time is now ripe for the Board to make recommendations for change in the coverage of the three instrumentalities which are appropriately included as part of this Report. The Board has had over three years' experience in the administration of the rights, protections and procedures made applicable to the legislative branch by the CAA. This experience in administering and enforcing the CAA and assessing its strengths and weaknesses in making recommendations respecting changes in the CAA to make the Act comprehensive and effective with respect to those parts of the legislative branch already covered under the CAA has augmented the structural foundation set down in the Section 230 Study. Thus, the Board has both the substantive and experiential bricks and mortar to model the options for changes in the regimes covering the three largest instrumentalities. Moreover, procedural rulemaking to extend the Procedural Rules of the Office of Compliance to cover proceedings commenced by GAO and Library employees alleging violations of sections 204-207 of the CAA raised questions as to the current status of substantive and procedural coverage of the instrumentalities under the Act, demonstrating an immediate need for Congress to clarify the relationship between the CAA and the instrumentalities. Accordingly, this Report has three parts. In the first, the Board fulfills its general responsibility under section 102(b), by presenting a review of laws enacted after the 1996 Section 102(b) Report and recommendations as to which laws should be made applicable to the legislative branch. The second part analyzes which private-sector provisions of the CAA laws do not apply to the legislative branch and which should be made applicable. The third part reviews current coverage of GAO, GPO, and the Library of Congress under the laws made applicable by the CAA and presents the Board's recommendations for change. I. REVIEW OF LAWS ENACTED AFTER THE 1996 SECTION 102(b) REPORT, and REPORT RECOMMENDING THAT CERTAIN OTHER INAPPLICABLE LAWS SHOULD BE MADE

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to introduce a bill to clarify the application and effect of legislation which the Congress enacts. My act is simple and straightforward. It provides that unless future legislation expressly states otherwise, new enactments shall be applied prospectively and shall not create private rights of action. This will significantly reduce unnecessary litigation and court costs, and will benefit both the public and our judicial system. The purpose of this legislation is to tackle a persistent problem that is easy to prevent. When Congress enacts a bill, the legislation often does not indicate whether it is to be applied retroactively or whether it creates private rights of action. The failure of the Congress to address these issues in each piece of legislation results in unnecessary confusion and uncertainty. This uncertainty leads to lawsuits, thereby contributing to the high cost of litigation and the congestion of our courts. In the absence of clear action by the Congress on its intent regarding these critical threshold questions, the outcome is left up to the courts. Whether a law applies to conduct that occurred before the effective date of the Act and whether a private person has been granted the right to sue on their own behalf in civil court under an Act can be critical or even dispositive of a case. Even if the issue is only one aspect of a case and it is raised early in a lawsuit, a decision that the lawsuit can proceed generally cannot be appealed until the end of the case. If the appellate court eventually rules that one of these issues should have prevented the trial, the litigants have been put to substantial burden and unnecessary expenses which could have been avoided. Currently, courts attempt to determine the intent of the Congress in deciding the effect and application of legislation in this regard. Thus, courts look first and foremost to the statutory language. If a statute expressly provides that it is retroactive or creates a private cause of action, that dictate is followed. Further, courts apply a presumption that legislation is not retroactive. This is an entirely appropriate, longstanding rule because, absent mistake or an emergency, fundamental fairness generally dictates that conduct should be assessed under the rules that existed at the time the conduct took place. There is a similar presumption that the Congress did not intend to create rights beyond those that it expressly includes in its legislation. If the intent of Congress is not clear from the statute, courts generally look to legislative history, statutory structure, and possible other sources of Congressional intent. This is where the unnecessary complexity and confusion is created. Sources other than statutory language are to varying degrees less reliable in predicting Congressional intent. They are much more difficult to interpret and may even be contradictory. The more sources for the courts to analyze and the more vague the standard for review, the more likely courts will reach different results. Under current practice, trial courts around the country reach conflicting and inconsistent results on these issues, as do appellate courts when the issues are appealed. The problem of whether legislation is retroactive was dramatically illustrated after the passage of the Civil Rights Act of 1991. District courts and courts of appeal all over the country were required to resolve whether the 1991 Act should be applied retroactively, and the issue ultimately was considered by the Supreme Court. However, by the time the Court resolved the issue in 1994, well over 100 lower courts had ruled on this question and, although most had not found retroactivity, their decisions were inconsistent. Countless litigants across the country expended substantial resources debating this threshold procedural issue. All this litigation arose from a statute that contained no language providing that it be retroactive. To conclude that the provision of the statute in issue in the case was not to be applied retroactively, the majority opinion of the Court took 39 pages in the United States Reporter to explain why. It undertook a detailed analysis that demonstrates the unnecessary complexity of the current standard. It is no wonder that some Supreme Court justices argued in this case that a court should look only to whether the language of the statute expressly provides for retroactivity. That is what I propose. If my law has been in effect, the litigation would have been averted, while the outcome would have been exactly the same as the Supreme Court decided. Under my bill, newly enacted laws are not to be applied retroactively and do not create a private right of action, unless the legislation expressly provides otherwise. It is important to note that my bill does not in any way restrict the Congress on these important issues. The Congress may override this presumption or create new private rights of action. One United States District Judge in my State informs me that he spends at least 10 percent of his time on these issues. It is clear that this legislation would save litigants and our judicial system millions of dollars by avoiding a great deal of uncertainty and litigation. Mr. President, if we are truly concerned about relieving the backlog of cases in our courts and reducing the costs of litigation, we should help our judicial system to focus its limited time and resources on resolving the merits of disputes, rather than deciding these preliminary matters. We hear numerous complaints about overworked judges and crowded dockets. This is a simple and straightforward way to do something about it. The Congress can help reduce the Federal caseload and help simplify the law. We should act on this important reform promptly. Mr. President, I ask unanimous consent that the bill be printed in the Record.

Mr. THURMOND. Mr. President, I rise today to introduce legislation to allow juries to convict criminals on a 10-2 jury vote rather than a unanimous vote. It is my belief that this change to the Federal Rules of Criminal Procedure will bring about increased efficiency and finality in our Nation's Federal court system while maintaining the integrity of the pursuit of justice. This legislation is consistent with the Supreme Court ruling concerning unanimity injury verdicts, specifically in Apodaca v. Oregon [406 U.S. 404 (1972)]. In that case, the Supreme Court ruled that the Sixth Amendment guarantee of a jury trial does not require that the jury's vote be unanimous. The Supreme Court affirmed an Oregon law that permitted what I am proposing--a 10-2 conviction in criminal prosecutions. Mr. President, clearly there is no constitutional mandate for the current requirement under the Federal Rules of a jury verdict by a unanimous vote. The origins of the unanimity rule are not easy to trace, although it may date back to the latter half of the 14th century. One theory proffered is that defendants had few other rules to ensure a fair trial and a unanimous jury vote for conviction compensated for other inadequacies at trial. Of course, today the entire trial process is heavily tilted towards the accused with many, many safeguards in place to ensure that the defendant receives a fair trial. Its interesting that a unanimity requirement was considered by our Founding Fathers as part of the Sixth Amendment to the Constitution, but it was rejected. The proposed language for the Sixth Amendment, as introduced by James Madison in the House of Representatives, provided for trial by jury as well as a ``requisite of unanimity for conviction.'' The language eventually adopted by the Congress and the States in the Sixth Amendment provides ``the right to a speedy and public trial, by an impartial jury,'' but does not specify any requirement on conviction. This was a wise decision. It is clear that ``trial by jury in criminal cases is fundamental to the American scheme of justice,'' as the Supreme Court has stated. Juries are representative of the community and their solemn duty is to hear the evidence, deliberate, and decide the case after careful review of the facts and the law. As the Supreme Court has noted, a jury can responsibly perform this function if allowed to decide the case by a margin that is less than unanimous. This change for jury verdicts in the Federal courts will reduce the likelihood of a single juror corrupting an otherwise thoughtful and reasonable deliberation of the evidence. It is not easy to adequately screen a juror for potential bias before they are selected to serve on a jury. This cannot be done with absolute certainty. We should work to prevent one such juror from having the power to prevent justice from being served. One juror should not have the power to allow a criminal to go free in the face of considerable opposition from his peers on the jury. Even if a defendant is tried again after one or two jurors hold out against conviction, a new trial is very costly and time-consuming. Most importantly, a new trial substantially delays justice for the victims and society. It is important to note that this new rule could also work to the advantage of someone on trial. Currently, if there is a hung jury, a prosecutor has the power to retry a defendant. This is true even if only one juror believed the defendant was guilty. Under this new rule, if at least ten jurors concluded that the defendant was not guilty, he would be acquitted and could not be forced to endure a new trial. This rule has the potential to benefit either side as it brings finality to a criminal case. In other words, there are cases where a requirement of unanimity produced a hung jury where, had there been a nonunanimous allowance, the jury would have voted to convict or acquit. Yet, in either instance, the defendant is accorded his constitutional right of a judgment by his peers. It is my firm belief that this legislation will not undermine the pillars of justice or result in the conviction of innocent persons. Moreover, I believe the American people will strongly support this reform to allow a 10-2 decision. This is one way the Congress can help fight crime and promote criminal justice. Mr. President, I hope the Congress will support this important proposal. I ask unanimous consent that the bill be printed in its entirety in the Record.

Mr. THURMOND. Mr. President, I rise today to introduce legislation to address an undue burden that has arisen out of the Americans with Disabilities Act. The purpose of the ADA was to give disabled Americans the opportunity to fully participate in society and contribute to it. This was a worthy goal. But even legislation with the best of intentions often has unintended consequences. I submit that one of those is the application of the ADA to state and local prisoners throughout America. Last year, the Supreme Court ruled in Pennsylvania Department of Corrections v. Yeskey [118 S.Ct. 1952 (1998)] that the ADA applied to every state prison and local jail in this country. To no avail, the Attorneys General of most states, as well as numerous state and local organizations, had joined with Pennsylvania in court filings to oppose the ADA applying to prisoners. Prior to the Supreme Court ruling, the circuit courts were split on the issue. The Fourth Circuit Court of Appeals, my home circuit, had forcefully concluded that the ADA, as well as its predecessor and companion law, the Rehabilitation Act, did not apply to state prisoners. The decision focused on federalism concerns and the fact that the Congress did not make clear that it intended to involve itself to this degree in an activity traditionally reserved to the States. However, the Supreme Court did not agree, holding that the language of the Act is broad enough to clearly cover state prisons. It is not an issue on the Federal level because the Federal Bureau of Prisons voluntarily complies with the Act. The Supreme Court did not say whether applying the ADA to state prisons exceeded the Congress' powers under the Commerce Clause or the Fourteenth Amendment, but we should not wait on the outcome of this argument to act. Although it was rational for the Supreme Court to read the broad language of the ADA the way it did, it is far from clear that we in the Congress considered the application of this sweeping new social legislation in the prison environment. The Seventh Circuit has recognized that the ``failure to exclude prisoners may well have been an oversight.'' The findings and purpose of the law seem to support this. The introductory language of the ADA states, ``The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency'' to allow ``people with disabilities . . . to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous.'' Of course, a prison is not a free society, as the findings and purpose of the Act envisioned. Indeed, it is quite the opposite. In short, as the Ninth Circuit explained, ``The Act was not designed to deal specifically with the prison environment; it was intended for general societal application.'' In any event, now that the Supreme Court has spoken, it is time for the Congress to confront this issue. The Congress should act now to exempt state and local prisons from the ADA. That is why I am introducing the State and Local Prison Relief Act, as I did soon after the Supreme Court decided the Yeskey case last year. The State and Local Prison Relief Act would exempt prisons from the requirements of the ADA and the Rehabilitation Act for prisoners. More specifically, it exempts any services, accommodations, programs, activities or treatment of any kind regarding prisoners that may otherwise be required by the Acts. Through this language, which I have slightly revised since introducing the bill last year, I wish to make entirely clear that the bill is not intended to exempt prisons from having to accommodate disabled legal counsel, visitors, or others who are not inmates. Also, the fact that the bill applies to Title II of the ADA should make clear that it is not intended to exempt prison hiring practices for non-inmate employees. The bill is intended only to apply to prisoners. I firmly believe that if we do not act, the ADA will have broad adverse implications for the management of penal institutions. Prisoners will file an endless number of lawsuits demanding special privileges, which will involve Federal judges in the intricate details of running our state and local prisons. Mr. President, we should continuously remind ourselves that the Constitution created a Federal government of limited, enumerated powers. Those powers not delegated to the Federal government were reserved to the states or the people. As James Madison wrote in Federalist No. 45, ``the powers delegated to the Federal government are few and definite. . . . [The powers] which are to remain in the State governments are numerous and indefinite.'' The Federal government should avoid intrusion into matters traditionally reserved for the states. We must respect this delicate balance of power. Unfortunately, federalism is more often spoken about than respected. Although the entire ADA raises federalism concerns, the problem is especially acute in the prison context. There are few powers more traditionally reserved for the states than crime. The criminal laws have always been the province of the states, and the vast majority of prisoners have always been housed in state prisons. The First Congress enacted a law asking the states to house Federal prisoners in their jails for fifty cents per month. The first Federal prison was not built until over 100 years later, and only three existed before 1925. Even today, as the size and scope of the Federal government has grown immensely, only about 6% of prisoners are housed in Federal institutions. Managing that other 94% is a core state function. As the Supreme Court has stated, ``Maintenance of penal institutions is an essential part of one of government's primary functions--the preservation of societal order through enforcement of the criminal law. It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures.'' The primary function of prisons is to house criminals. Safety and security are the overriding concerns of prison administration. The rules and regulations, the daily schedules, the living and working arrangements--these all revolve around protecting prison employees, inmates, and the public. But the goal of the ADA is to take away any barrier to anyone with any disability. Accommodating inmates in the manner required by the ADA will interfere with the ability of prison administrators to keep safety and security their overriding concern. For example, a federal court in Pennsylvania ruled that a prisoner who disobeyed a direct order could not be punished because of the ADA. The judge said it was okay for a prisoner to return to his cell after he was told not to by a guard, saying the prisoner was justified in refusing to comply because he was doing so to relieve stress built up due to his Tourette's Syndrome. The practical effect of the ADA will be that prison officials will have to grant special privileges to certain inmates and to excuse others from complying with generally-applicable prison rules. For example, a federal judge ordered an Iowa prison to install cable TV in a disabled inmate's cell because the man had difficulty going to the common areas to watch TV. After much public protest, the ruling was eventually reversed. The ADA presents a perfect opportunity for prisoners to try to beat the system, and use the courts to do it. There are over 1.7 million inmates in state prisons and local jails, and the numbers are rising every year. Indeed, the total prison population has grown about 6.5% per year since 1990. Prisons have a substantially greater percentage of persons with disabilities that are covered by the ADA than the general population, including AIDS, mental retardation, psychological disorders, learning disabilities, drug addiction, and alcoholism. Further, administrators control every aspect of prisoners' lives, such as assigning educational opportunities, recreation, and jobs in prison industries. Combine these facts, and the possibilities for lawsuits are endless. For example, in most state prison systems, inmates are classified and assigned based in part on their disabilities. This helps administrators meet the disabled inmates' needs in a cost-effective manner. However, under the ADA, prisoners probably will be able to claim that they must be assigned to a prison without regard to their disability. Were it not for their disability, they may have been assigned to the prison closest to their home, and in that case, every prison would have to be able to accommodate every disability. That could mean every prison having, for example, mental health treatment centers, services for hearing-impaired inmates, and dialysis treatment. The cost is potentially enormous. A related expense is attorney's fees. The ADA has incentives to encourage private litigants to vindicate their rights in court. Any plaintiff, including an inmate, who is only partially successful can get generous attorney's fees and monetary damages, possibly including even punitive damages. In an ongoing ADA class action lawsuit in California, the state has paid the prisoners' attorneys over $2 million, with hourly fees as high as $300. Applying the ADA to prisons is the latest unfunded Federal mandate that we are imposing on the states. Adequate funding is hard for prisons to achieve, especially in state and local communities where all government funds are scarce. The public is angry about how much money must be spent to house prisoners. Even with prison populations rising, the people do not want more of their money spent on prisoners. Often, there is simply not enough money to make the changes in challenged programs to accommodate the disabled. If prison administrators do not have the money to change a program, they will probably have to eliminate it. Thus, accommodation could mean the elimination of worthwhile educational, recreational, and rehabilitative programs, making all inmates worse off. Apart from money, accommodation may mean modifying the program in such a way as to take away its beneficial purpose. A good example is the Supreme Court's Yeskey case itself. Yeskey was declared medically ineligible to participate in a boot camp program because he had high blood pressure. So, he sued under the ADA. The boot camp required rigorous physical activity, such as work projects. If the program has to be changed to accommodate his physical abilities, it may not meet its basic goals, and the authorities may eliminate it. Thus, the result could be that everyone loses the benefit of an otherwise effective correctional tool. Another impact of the ADA may be to make an already volatile prison environment even more difficult to control. Many inmates are very sensitive to the privileges and benefits that others get in a world where privileges are relatively few. Some have irrational suspicions and phobias. An inmate who is not disabled may be angry if he believes a disabled prisoner is getting special treatment, without rationally accepting that the law require it, and could take out his anger on others around him, including the disabled prisoner. We must keep in mind that it is judges who will be making these policy decisions. To apply the Act and determine what phrases like ``qualified individual with a disability'' mean, judges must involve themselves in intricate, fact-intensive issues. Essentially, the ADA requires judges to micromanage prisons. Judges are not qualified to second-guess prison administrators and make these complex, difficult decisions. Prisons cannot be run by judicial decree. In applying Constitutional rights to prisoners, the Supreme Court has tried to get away from micromanagement and has viewed prisoner claims deferentially in favor of the expertise of prison officials. It has stated that we will not ``substitute our judgment on difficult and sensitive matters of institutional administration for the determinations of those charged with the formidable task of running a prison. This approach ensures the ability of corrections officials to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration, and avoids unnecessary intrusion of the judiciary into problems particularly ill suited to resolution by decree.'' Take for example a case from the Fourth Circuit, my home circuit, from 1995. The Court explained that a morbidly obese inmate presented corrections officials ``with a lengthy and ever-increasing list of modifications which he insisted were necessary to accommodate his obese condition. Thus, he demanded a larger cell, a cell closer to support facilities, handrails to assist him in using the toilet, wider entrances to his cell and the showers, non-skid matting in the lobby area, and alternative outdoor recreational activities to accommodate his inability to stand or walk for long periods.'' It is not workable for judges to resolve all of these questions. It is noteworthy that a primary purpose of the Prison Litigation Reform Act was to stop judges from micromanaging prisons and to reduce the burdens of prison litigation. As the Chief Justice of the Supreme Court recognized last year, the PLRA is having some success. However, this most recent Supreme Court decision will hamper that progress. Moreover, the ADA delegated to Federal agencies the authority to create regulations to implement the law. In response, the Federal bureaucracy has created extremely specific and detailed mandates. Regarding facilities, they dictate everything from the number of water fountains to the flash rates of visual alarms. State and local correctional authorities must fall in line behind these regulations. In yet another way, we have the Justice Department exercising regulatory oversight over our state and local communities. Prisons are fundamentally different from other places in society. Prisoners are not entitled to all of the rights and privileges of law- abiding citizens, but they often get them. They have cable television. They have access to better gyms and libraries than most Americans. The list goes on. The public is tired of special privileges for prisoners. Applying the ADA to prisons is a giant step in the wrong direction. Prisoners will abuse the ADA to get privilege they were previously denied, and the reason will be the overreaching hand of the Federal government. We should not let this happen. Mr. President, the National Government has gone full circle. We have gone from asking the states to house Federal prisoners to dictating to the states how they must house their own prisoners. There must be some end to the powers of the Federal government, and to the privileges it grants the inmates of this Nation. I propose that we start by passing this important legislation. I ask unanimous consent that a copy of the bill be printed in the Record.

Mr. THURMOND. Mr. President, I rise today to introduce legislation to prohibit Federal judges from imposing a tax increase as a judicial remedy. It has always been my firm belief that Federal judges exceed the boundaries of their limited jurisdiction under the Constitution when they order new taxes or order increases in existing tax rates. The Founding Fathers clearly understood that taxation was a role for the legislative branch and not the judicial branch. Article I of the Constitution lists the legislative powers, one of which is that ``the Congress shall have the power to lay and collect taxes.'' Article III establishes the judicial powers, and the power to tax is nowhere contained in Article III. The Federalist Papers are also clear in this regard. In Federalist No. 48, James Madison explained that ``the legislative branch alone has access to the pockets of the people.'' In Federalist No. 78, Alexander Hamilton stated, ``The judiciary . . . has no influence over . . . the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.'' In 1990, in the case of Missouri v. Jenkins, five members of the Supreme Court stated in dicta that although a Federal judge could not directly raise taxes, he could order the local government to raise taxes. There is no difference between a judge raising taxes and a judge ordering a legislative official to raise taxes. I am hopeful that, if the issue were directly before the Court today, a majority of the current membership of the Court would reject that dicta and hold that Federal judges do not have the power to order that taxes be raised. However, in the event the Court does not correct this error, I am introducing the Judicial Taxation Prohibition Act, which would prohibit judges from raising taxes. I have introduced it in every Congress since the Supreme Court's misguided decision was issued, and I intend to do so until it is corrected. This legislation is essential to affirm the separation of powers. There is a simple reason why this distinction between the branches of government is so important and must remain clear. The legislative branch is responsible to the people through the democratic process. However, the judicial branch is composed of individuals who are not elected and have life tenure. By design, the members of the judicial branch do not depend on the popular will for their offices. They are not accountable to the people. They simply have no business setting the rate of taxes the people must pay. For a judge to order that taxes be increased amounts to taxation without representation. It is entirely contrary to the understanding of the Founding Fathers. The phrase ``taxation without representation'' recalls an important time in America history that is worth repeating in some detail. The Constitution can best be understood by referencing the era in which it was adopted. Not since Great Britain's ministry of George Grenville in 1765 have the American people faced the assault of taxation without representation as now authorized in the Jenkins decision. As part of his imperial reforms to tighten British control in the colonies, Grenville pushed the Stamp Act through the Parliament in 1765. This Act required excise duties to be paid by the colonists in the form of revenue stamps affixed to a variety of legal documents. This action came at a time when the colonies were in an uproar over the Sugar Act of 1764 which levied duties on certain imports such as sugar, indigo, coffee, linens. The ensuing firestorm of debate in America centered on the power of Britain to tax the colonies. James Otis, a young Boston attorney, echoed the opinion of most colonists stating that the Parliament did not have power to tax the colonies because Americans had no representation in that body. Mr. Otis had been attributed in 1761 with the statement that ``taxation without representation is tyranny.'' In October 1765, delegates from nine states were sent to New York as part of the Stamp Act Congress to protest the new law. It was during this time that John Adams wrote in opposition to the Stamp Act, ``We have always understood it to be a grand and fundamental principle . . . that no freeman shall be subject to any tax to which he has not given his own consent, in person or by proxy.'' A number of resolutions were adopted by the Stamp Act Congress protesting the acts of Parliament. One resolution stated, ``It is inseparably essential to the freedom of a people . . . that no taxes be imposed on them, but with their own consent, given personally or by their representatives.'' The resolutions concluded that the Stamp Act had a ``manifest tendency to subvert the rights and liberties of the colonists.'' Opposition to the Stamp Act was vehement throughout the colonies. While Grenville's successor was determined to repeal the law, the social, economic and political climate in the colonies brought on the American Revolution. The principles expressed during the earlier crisis against taxation without representation became firmly imbedded in our Federal Constitution of 1787. I recognize that some say this legislation is unconstitutional. They argue that the Congress does not have the authority under Article III to limit and regulate the jurisdiction of the inferior Federal courts. This argument has no basis in the Constitution or common sense. Article III, Section 1, of the Constitution provides jurisdiction to the lower Federal courts as the ``Congress may from time to time ordain and establish.'' There is no mandate in the Constitution to confer equity jurisdiction to the inferior Federal courts. Congress has the flexibility under Article III to ``ordain and establish'' the lower Federal courts as it deems appropriate. This basic premise has been upheld by the Supreme Court in a number of cases including Lawcourt v. Phillips, Lauf v. E.G. Skinner and Co., Kline v. Burke Construction Co., and Sheldon v. Sill. In other words, the Congress was expressly granted the authority to establish lower Federal courts, which it did. What the Congress has been given the power to do, it can certainly decide to stop doing. By passing this bill, the Congress would simply be limiting the jurisdiction of the lower Federal courts in a small area. It is also important to note that this legislation would not restrict the power of the Federal courts to remedy Constitutional wrongs. Clearly, the Court has the power to order a remedy for a Constitutional violation that may include expenditures of money by Federal, State, or local governments. This bill simply requires that if the Court orders that money be spent, it is for the legislative body to decide how to comply with that order. The legislative body may choose to raise taxes, but it also may choose to cut spending or sell assets. That choice of how to come up with the money should always be for the legislature to decide. I believe it is clear under Article III that the Congress has the authority to restrict the remedial jurisdiction of the Federal Courts in this fashion. Mr. President, the dispositive issue presented by the Jenkins decision is whether the American people want, as a matter of national policy, to be exposed to taxation without their consent by an independent and insulated judiciary. I most assuredly believe they do not. Mr. President, how long will it be before a Federal judge orders tax increases to build new highways or prisons? I do not believe the Founding Fathers had this type of activisim in mind when they established the judicial branch of government. Judicial activism is a matter of great concern to me and has been for many years. I have always felt that Federal judges must strictly adhere to the principle that it is their role to interpret the law and not make the law. This simply principle is fundamental to our system of government. The American people deserve a response to the Jenkins decision. We must provide protection against the imposition of taxes by an unelected, unaccountable judiciary. We must not permit this blatant violation of the separation of powers. We have a duty to right this wrong. Mr. President, I ask unanimous consent that this bill be printed in the Record.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to introduce a bill to clarify the application and effect of legislation which the Congress enacts. My act is simple and straightforward. It provides that unless future legislation expressly states otherwise, new enactments shall be applied prospectively and shall not create private rights of action. This will significantly reduce unnecessary litigation and court costs, and will benefit both the public and our judicial system. The purpose of this legislation is to tackle a persistent problem that is easy to prevent. When Congress enacts a bill, the legislation often does not indicate whether it is to be applied retroactively or whether it creates private rights of action. The failure of the Congress to address these issues in each piece of legislation results in unnecessary confusion and uncertainty. This uncertainty leads to lawsuits, thereby contributing to the high cost of litigation and the congestion of our courts. In the absence of clear action by the Congress on its intent regarding these critical threshold questions, the outcome is left up to the courts. Whether a law applies to conduct that occurred before the effective date of the Act and whether a private person has been granted the right to sue on their own behalf in civil court under an Act can be critical or even dispositive of a case. Even if the issue is only one aspect of a case and it is raised early in a lawsuit, a decision that the lawsuit can proceed generally cannot be appealed until the end of the case. If the appellate court eventually rules that one of these issues should have prevented the trial, the litigants have been put to substantial burden and unnecessary expenses which could have been avoided. Currently, courts attempt to determine the intent of the Congress in deciding the effect and application of legislation in this regard. Thus, courts look first and foremost to the statutory language. If a statute expressly provides that it is retroactive or creates a private cause of action, that dictate is followed. Further, courts apply a presumption that legislation is not retroactive. This is an entirely appropriate, longstanding rule because, absent mistake or an emergency, fundamental fairness generally dictates that conduct should be assessed under the rules that existed at the time the conduct took place. There is a similar presumption that the Congress did not intend to create rights beyond those that it expressly includes in its legislation. If the intent of Congress is not clear from the statute, courts generally look to legislative history, statutory structure, and possible other sources of Congressional intent. This is where the unnecessary complexity and confusion is created. Sources other than statutory language are to varying degrees less reliable in predicting Congressional intent. They are much more difficult to interpret and may even be contradictory. The more sources for the courts to analyze and the more vague the standard for review, the more likely courts will reach different results. Under current practice, trial courts around the country reach conflicting and inconsistent results on these issues, as do appellate courts when the issues are appealed. The problem of whether legislation is retroactive was dramatically illustrated after the passage of the Civil Rights Act of 1991. District courts and courts of appeal all over the country were required to resolve whether the 1991 Act should be applied retroactively, and the issue ultimately was considered by the Supreme Court. However, by the time the Court resolved the issue in 1994, well over 100 lower courts had ruled on this question and, although most had not found retroactivity, their decisions were inconsistent. Countless litigants across the country expended substantial resources debating this threshold procedural issue. All this litigation arose from a statute that contained no language providing that it be retroactive. To conclude that the provision of the statute in issue in the case was not to be applied retroactively, the majority opinion of the Court took 39 pages in the United States Reporter to explain why. It undertook a detailed analysis that demonstrates the unnecessary complexity of the current standard. It is no wonder that some Supreme Court justices argued in this case that a court should look only to whether the language of the statute expressly provides for retroactivity. That is what I propose. If my law has been in effect, the litigation would have been averted, while the outcome would have been exactly the same as the Supreme Court decided. Under my bill, newly enacted laws are not to be applied retroactively and do not create a private right of action, unless the legislation expressly provides otherwise. It is important to note that my bill does not in any way restrict the Congress on these important issues. The Congress may override this presumption or create new private rights of action. One United States District Judge in my State informs me that he spends at least 10 percent of his time on these issues. It is clear that this legislation would save litigants and our judicial system millions of dollars by avoiding a great deal of uncertainty and litigation. Mr. President, if we are truly concerned about relieving the backlog of cases in our courts and reducing the costs of litigation, we should help our judicial system to focus its limited time and resources on resolving the merits of disputes, rather than deciding these preliminary matters. We hear numerous complaints about overworked judges and crowded dockets. This is a simple and straightforward way to do something about it. The Congress can help reduce the Federal caseload and help simplify the law. We should act on this important reform promptly. Mr. President, I ask unanimous consent that the bill be printed in the Record.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to introduce legislation to allow juries to convict criminals on a 10-2 jury vote rather than a unanimous vote. It is my belief that this change to the Federal Rules of Criminal Procedure will bring about increased efficiency and finality in our Nation's Federal court system while maintaining the integrity of the pursuit of justice. This legislation is consistent with the Supreme Court ruling concerning unanimity injury verdicts, specifically in Apodaca v. Oregon [406 U.S. 404 (1972)]. In that case, the Supreme Court ruled that the Sixth Amendment guarantee of a jury trial does not require that the jury's vote be unanimous. The Supreme Court affirmed an Oregon law that permitted what I am proposing--a 10-2 conviction in criminal prosecutions. Mr. President, clearly there is no constitutional mandate for the current requirement under the Federal Rules of a jury verdict by a unanimous vote. The origins of the unanimity rule are not easy to trace, although it may date back to the latter half of the 14th century. One theory proffered is that defendants had few other rules to ensure a fair trial and a unanimous jury vote for conviction compensated for other inadequacies at trial. Of course, today the entire trial process is heavily tilted towards the accused with many, many safeguards in place to ensure that the defendant receives a fair trial. Its interesting that a unanimity requirement was considered by our Founding Fathers as part of the Sixth Amendment to the Constitution, but it was rejected. The proposed language for the Sixth Amendment, as introduced by James Madison in the House of Representatives, provided for trial by jury as well as a ``requisite of unanimity for conviction.'' The language eventually adopted by the Congress and the States in the Sixth Amendment provides ``the right to a speedy and public trial, by an impartial jury,'' but does not specify any requirement on conviction. This was a wise decision. It is clear that ``trial by jury in criminal cases is fundamental to the American scheme of justice,'' as the Supreme Court has stated. Juries are representative of the community and their solemn duty is to hear the evidence, deliberate, and decide the case after careful review of the facts and the law. As the Supreme Court has noted, a jury can responsibly perform this function if allowed to decide the case by a margin that is less than unanimous. This change for jury verdicts in the Federal courts will reduce the likelihood of a single juror corrupting an otherwise thoughtful and reasonable deliberation of the evidence. It is not easy to adequately screen a juror for potential bias before they are selected to serve on a jury. This cannot be done with absolute certainty. We should work to prevent one such juror from having the power to prevent justice from being served. One juror should not have the power to allow a criminal to go free in the face of considerable opposition from his peers on the jury. Even if a defendant is tried again after one or two jurors hold out against conviction, a new trial is very costly and time-consuming. Most importantly, a new trial substantially delays justice for the victims and society. It is important to note that this new rule could also work to the advantage of someone on trial. Currently, if there is a hung jury, a prosecutor has the power to retry a defendant. This is true even if only one juror believed the defendant was guilty. Under this new rule, if at least ten jurors concluded that the defendant was not guilty, he would be acquitted and could not be forced to endure a new trial. This rule has the potential to benefit either side as it brings finality to a criminal case. In other words, there are cases where a requirement of unanimity produced a hung jury where, had there been a nonunanimous allowance, the jury would have voted to convict or acquit. Yet, in either instance, the defendant is accorded his constitutional right of a judgment by his peers. It is my firm belief that this legislation will not undermine the pillars of justice or result in the conviction of innocent persons. Moreover, I believe the American people will strongly support this reform to allow a 10-2 decision. This is one way the Congress can help fight crime and promote criminal justice. Mr. President, I hope the Congress will support this important proposal. I ask unanimous consent that the bill be printed in its entirety in the Record.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to introduce legislation to prohibit Federal judges from imposing a tax increase as a judicial remedy. It has always been my firm belief that Federal judges exceed the boundaries of their limited jurisdiction under the Constitution when they order new taxes or order increases in existing tax rates. The Founding Fathers clearly understood that taxation was a role for the legislative branch and not the judicial branch. Article I of the Constitution lists the legislative powers, one of which is that ``the Congress shall have the power to lay and collect taxes.'' Article III establishes the judicial powers, and the power to tax is nowhere contained in Article III. The Federalist Papers are also clear in this regard. In Federalist No. 48, James Madison explained that ``the legislative branch alone has access to the pockets of the people.'' In Federalist No. 78, Alexander Hamilton stated, ``The judiciary . . . has no influence over . . . the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.'' In 1990, in the case of Missouri v. Jenkins, five members of the Supreme Court stated in dicta that although a Federal judge could not directly raise taxes, he could order the local government to raise taxes. There is no difference between a judge raising taxes and a judge ordering a legislative official to raise taxes. I am hopeful that, if the issue were directly before the Court today, a majority of the current membership of the Court would reject that dicta and hold that Federal judges do not have the power to order that taxes be raised. However, in the event the Court does not correct this error, I am introducing the Judicial Taxation Prohibition Act, which would prohibit judges from raising taxes. I have introduced it in every Congress since the Supreme Court's misguided decision was issued, and I intend to do so until it is corrected. This legislation is essential to affirm the separation of powers. There is a simple reason why this distinction between the branches of government is so important and must remain clear. The legislative branch is responsible to the people through the democratic process. However, the judicial branch is composed of individuals who are not elected and have life tenure. By design, the members of the judicial branch do not depend on the popular will for their offices. They are not accountable to the people. They simply have no business setting the rate of taxes the people must pay. For a judge to order that taxes be increased amounts to taxation without representation. It is entirely contrary to the understanding of the Founding Fathers. The phrase ``taxation without representation'' recalls an important time in America history that is worth repeating in some detail. The Constitution can best be understood by referencing the era in which it was adopted. Not since Great Britain's ministry of George Grenville in 1765 have the American people faced the assault of taxation without representation as now authorized in the Jenkins decision. As part of his imperial reforms to tighten British control in the colonies, Grenville pushed the Stamp Act through the Parliament in 1765. This Act required excise duties to be paid by the colonists in the form of revenue stamps affixed to a variety of legal documents. This action came at a time when the colonies were in an uproar over the Sugar Act of 1764 which levied duties on certain imports such as sugar, indigo, coffee, linens. The ensuing firestorm of debate in America centered on the power of Britain to tax the colonies. James Otis, a young Boston attorney, echoed the opinion of most colonists stating that the Parliament did not have power to tax the colonies because Americans had no representation in that body. Mr. Otis had been attributed in 1761 with the statement that ``taxation without representation is tyranny.'' In October 1765, delegates from nine states were sent to New York as part of the Stamp Act Congress to protest the new law. It was during this time that John Adams wrote in opposition to the Stamp Act, ``We have always understood it to be a grand and fundamental principle . . . that no freeman shall be subject to any tax to which he has not given his own consent, in person or by proxy.'' A number of resolutions were adopted by the Stamp Act Congress protesting the acts of Parliament. One resolution stated, ``It is inseparably essential to the freedom of a people . . . that no taxes be imposed on them, but with their own consent, given personally or by their representatives.'' The resolutions concluded that the Stamp Act had a ``manifest tendency to subvert the rights and liberties of the colonists.'' Opposition to the Stamp Act was vehement throughout the colonies. While Grenville's successor was determined to repeal the law, the social, economic and political climate in the colonies brought on the American Revolution. The principles expressed during the earlier crisis against taxation without representation became firmly imbedded in our Federal Constitution of 1787. I recognize that some say this legislation is unconstitutional. They argue that the Congress does not have the authority under Article III to limit and regulate the jurisdiction of the inferior Federal courts. This argument has no basis in the Constitution or common sense. Article III, Section 1, of the Constitution provides jurisdiction to the lower Federal courts as the ``Congress may from time to time ordain and establish.'' There is no mandate in the Constitution to confer equity jurisdiction to the inferior Federal courts. Congress has the flexibility under Article III to ``ordain and establish'' the lower Federal courts as it deems appropriate. This basic premise has been upheld by the Supreme Court in a number of cases including Lawcourt v. Phillips, Lauf v. E.G. Skinner and Co., Kline v. Burke Construction Co., and Sheldon v. Sill. In other words, the Congress was expressly granted the authority to establish lower Federal courts, which it did. What the Congress has been given the power to do, it can certainly decide to stop doing. By passing this bill, the Congress would simply be limiting the jurisdiction of the lower Federal courts in a small area. It is also important to note that this legislation would not restrict the power of the Federal courts to remedy Constitutional wrongs. Clearly, the Court has the power to order a remedy for a Constitutional violation that may include expenditures of money by Federal, State, or local governments. This bill simply requires that if the Court orders that money be spent, it is for the legislative body to decide how to comply with that order. The legislative body may choose to raise taxes, but it also may choose to cut spending or sell assets. That choice of how to come up with the money should always be for the legislature to decide. I believe it is clear under Article III that the Congress has the authority to restrict the remedial jurisdiction of the Federal Courts in this fashion. Mr. President, the dispositive issue presented by the Jenkins decision is whether the American people want, as a matter of national policy, to be exposed to taxation without their consent by an independent and insulated judiciary. I most assuredly believe they do not. Mr. President, how long will it be before a Federal judge orders tax increases to build new highways or prisons? I do not believe the Founding Fathers had this type of activisim in mind when they established the judicial branch of government. Judicial activism is a matter of great concern to me and has been for many years. I have always felt that Federal judges must strictly adhere to the principle that it is their role to interpret the law and not make the law. This simply principle is fundamental to our system of government. The American people deserve a response to the Jenkins decision. We must provide protection against the imposition of taxes by an unelected, unaccountable judiciary. We must not permit this blatant violation of the separation of powers. We have a duty to right this wrong. Mr. President, I ask unanimous consent that this bill be printed in the Record.

Mr. THURMOND

Mr. THURMOND. Mr. President, today I am introducing the voluntary school prayer constitutional amendment. This bill is identical to S.J. Res. 73, which I introduced in the 98th Congress at the request of then President Reagan and have reintroduced every Congress since. This proposal has received strong support from both sides of the aisle and is of vital importance to our Nation. It would restore the right to pray voluntarily in public schools--a right which was freely exercised under our Constitution until the 1960's, when the Supreme Court ruled to the contrary. Also, in 1985, the Supreme Court ruled an Alabama statute unconstitutional which authorized teachers in public schools to provide ``a period of silence ... for meditation or voluntary prayer'' at the beginning of each school day. As I stated when that opinion was issued and repeat again: the Supreme Court has too broadly interpreted the Establishment Clause of the First Amendment and, in doing so, has incorrectly infringed on the rights of those children--and their parents--who wish to observe a moment of silence for religious or other purposes. Until the Supreme Court ruled in the Engel and Abington School District decisions, the Establishment Clause of the First Amendment was generally understood to prohibit the Federal Government from officially approving, or holding in special favor, any particular religious faith or denomination. In crafting that clause, our Founding Fathers sought to prevent what had originally caused many colonial Americans to emigrate to this country--an official, State religion. At the same time, they sought, through the Free Exercise Clause, to guarantee to all Americans the freedom to worship God without government interference or restraint. In their wisdom, they recognized that true religious liberty precludes the government from both forcing and preventing worship. As Supreme Court Justice William Douglas once stated: ``We are a religious people whose institutions presuppose a Supreme Being.'' Nearly every President since George Washington has proclaimed a day of public prayer. Moreover, we, as a Nation, continue to recognize the Deity in our Pledge of Allegiance by affirming that we are a Nation ``under God.'' Our currency is inscribed with the motto, ``In God We Trust''. In this Body, we open the Senate and begin our workday with the comfort and stimulus of voluntary group prayers. I would note that this practice has been upheld as constitutional by the Supreme Court. It is unreasonable that the opportunity for the same beneficial experience is denied to the boys and girls who attend public schools. This situation simply does not comport with the intentions of the framers of the Constitution and is, in fact, antithetical to the rights of our youngest citizens to freely exercise their respective religions. It should be changed, without further delay. The Congress should swiftly pass this resolution and send it to the States for ratification. This amendment to the Constitution would clarify that it does not prohibit vocal, voluntary prayer in the public school and other public institutions. It emphatically states that no person may be required to participate in any prayer. The government would be precluded from drafting school prayers. This well-crafted amendment enjoys the support of an overwhelming number of Americans. I strongly urge my colleagues to support prompt consideration and approval of this legislation during this Congress. Mr. President I ask unanimous consent that the joint resolution be printed in the Record.

Mr. THURMOND

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

Mr. THURMOND

Mr. THURMOND. I join my colleagues in support of extending the tax credit for Fuel Production from Nonconventional Sources. Through this credit, Congress has emphasized the importance of establishing alternative energy sources, furthering economic development, and protecting the environment. The alternative fuels credit strikes a proper balance between each of these objectives. I support efforts to bring this issue to a satisfactory conclusion, early in the next Congress.

Mr. THURMOND. Mr. President, I rise to engage in a brief colloquy with my colleague, the Honorable Chairman of the Transportation Appropriations Subcommittee, Senator Richard Shelby. Included in the Senate Appropriations Committee Report accompanying the Transportation and Related Agencies Appropriations Act for fiscal year 1999, is a provision directing that additional research be conducted on a product that I believe could greatly improve highway pavement quality and maintenance. I am speaking of the use of fiber polymer additives--also known as ``binders''--in asphalt and concrete, the use of which appears to yield significant results in pavement quality and longevity. While only a limited amount of research has been completed on this product, the few applications tested under real world circumstances have shown very positive results. If this product is as good as it appears to be in initial test results, it would revolutionize the industry and save states and the Federal Government significant resources for use on other critical infrastructure needs. Not only does this product appear to add significant longevity to pavement life, it also serves an environmental benefit. Mr. Chairman, as you know, recycling allows us to conserve our natural resources, it diverts additional material from our landfills, and saves energy. A company in my home state of South Carolina, Martin Color-Fi, Inc., has empirical data that shows substantially improved life expectancy for highways constructed with polymer additives in the pavement. Their success, and that of others in this area, is encouraging news for improving the quality and longevity of our Nation's highways. I note that the Statement of Manager's language accompanying the Transportation title of the Omnibus Appropriations Act, unlike the Senate Committee report, does not specify the amount of funds in the Highway Research, Development and Technology Program for the Federal Highway Administration (FHWA) to conduct additional demonstrations of this technology. It is my understanding that Chairman Shelby shares my commitment to this research. Further, it is my understanding that he and other members of the committee would join me in strongly encouraging FHWA to work with an academic institution, and give priority consideration to applying at least the amount of research funds specified in the Senate-passed Transportation Appropriations bill, in order to create an academic and industry-led consortium to demonstrate the application of polymer additives in pavement for civil engineering purposes.

Mr. THURMOND

Mr. THURMOND. Mr. President, we have accomplished a lot this year. I am very proud of what has been done here in the Senate. No one is due more credit for this than our able leader, Senator Lott. I just want to commend him for his outstanding accomplishments and the fine cooperation he has given to all of us and for everything he has done for this country.

Mr. THURMOND

Mr. THURMOND. I thank the able leader.

Mr. THURMOND

Mr. THURMOND. Mr. President, I rise today to discuss an issue of the utmost importance to the safety and security of every American--the timely restoration of tritium production to maintain our nuclear deterrent. Some have attempted to focus this debate on cost. Mr. President, the most significant issue in this debate is not cost--it is the National Security of the United States. For those who do not know, tritium is a radioactive gas and is an essential component of modern nuclear weapons. It decays at a rate of five-and-a-half percent per year, so in order to maintain our nuclear deterrent the tritium must be continually replaced. We have not produced tritium in this country since 1988, when the reactors at the Savannah River Site in South Carolina were shut down. Since that time the Department of Energy has examined countless options and technologies, but has not yet selected a new source. The end result of almost a decade of stalling is millions in wasted taxpayer dollars and no progress in meeting the requirements of the Department of Defense. If the Department of Energy is unable to begin the production of tritium before 2007, the impact will be unilateral U.S. nuclear disarmament. Mr. President, given the perilous international security environment that exists, we cannot afford to allow this to happen. The National Security interests of our Nation demand that we have a reliable source of tritium. For a variety of reasons, the Clinton Administration has mismanaged this program by delaying implementation, issuing torrents of misinformation, and failing to acknowledge the true liabilities of the commercial light water reactor option. Make no mistake, through its actions, and inaction, this Administration has put our nuclear deterrent in jeopardy. This matter is of the utmost importance to the Nation and I feel compelled to raise my concerns with my colleagues here today. The Department has narrowed its choices down to two options--the use of a commercial light water reactor at the Tennessee Valley Authority (TVA) or the use of a defense linear accelerator at a dedicated defense site. In my opinion, the only viable option, in terms of cost, reliability, ability to meet Defense Department needs, and maintain a high non-proliferation stance, is the Accelerator for the Production of Tritium (APT). Over the past three months, a variety of inaccurate and misleading claims have been made regarding the APT option. To date, I have not come to the floor to correct these inaccuracies because my efforts were focused on completing work on the National Defense Authorization Act Conference Report. The enactment of this bill is essential to the armed forces of the United States. It provides the men and women who wear the uniform of our Nation with a much needed pay raise, it includes many vital readiness enhancements, and provides for the long-term modernization of our military. However, now that the Conference Report has been signed by the President and is law, I wish to take a few moments to voice my concerns with the Department of Energy's tritium production program. Despite the flood of misinformation, one fact remains abundantly clear and irrefutable--that we must have new tritium production source very soon or leave our Nation without the nuclear deterrent that has kept the peace so well for the past 50 years. Mr. President, let me state this plainly. My fear is that the commercial light water reactor option may never yield the tritium needed to maintain our defense nuclear stockpile. The regulations of the Nuclear Regulatory Commission make a commercial reactor vulnerable to third party intervenor lawsuits and as a result, that litigation could easily block that facility from coming on-line before it ever produces the first kilogram of tritium for defense purposes. Only tritium produced in an accelerator, at a dedicated defense site, will assure that we have the tritium we need when we need it. Mr. President, the cold war is over, but many dangers remain. In fact, the world may be a much more uncertain place today than it was during the height of the cold war. Despite President Clinton's rhetoric on stemming the proliferation of nuclear weapons and other weapons of mass destruction, we continue to see new and troubling proliferation trends. Recently, we learned that Iraq's nuclear program is much more advanced than previously thought. Earlier this year we witnessed the very public entry of two new nations--India and Pakistan--into the nuclear weapons club. In the last few months we have witnessed other nations boldly demonstrate their ability to deploy missile systems capable of delivering nuclear or chemical/biological warheads onto U.S. soil. Mr. President, these are very troubling developments indeed. All of these events demonstrate the need for the United States to maintain a viable nuclear deterrent. They also require consistent leadership on the part of the United States. Our policies on non-proliferation must be, as Secretary of State Albright said, ``unambiguous, decisive and clear.'' Unfortunately, the Clinton Administration's actions do not match up with its rhetoric. One prime example is in the area of tritium production. By the end of this year, the Clinton Administration is required to identify its preferred method to produce new tritium. One of the options being considered is the use of a civilian nuclear reactor to produce tritium for use in U.S. nuclear weapons. Such a decision would end a five-decade-long U.S. policy which has been upheld by every President since Harry Truman. That policy states very clearly and unquestionably that the separation of civilian and military nuclear energy programs is in the best interests of the United States. It states that we should not try to turn civilian nuclear power plants into nuclear bomb plants. Some are claiming that because the Tennessee Valley Authority is a government agency that producing nuclear weapons materials in their reactors is consistent with U.S. policy. I can tell you that it is not. The Atomic Energy Act, which governs this policy, was never intended to condone the use of commercial-use facilities to produce nuclear weapons materials. Additionally, the reactors that present the greatest threat to U.S. national security interests are, in fact, owned by the governments of Korea, Iran, Iraq, India, and Pakistan. The implications of changing our policy concerning civilian-use nuclear power reactors, despite whether they are owned by a government or a commercial entity, are far-reaching and potentially disastrous. Anyone who is concerned about National Security and nonproliferation must acknowledge that designating a commercial-use reactor as the new tritium production source would signal to the world that it is now acceptable to use commercial-use reactors to produce materials for nuclear weapons. Let me say that one more time--it would tell the rest of the world that we believe there should be no distinction between civilian and military nuclear facilities. Sending that message would also signal the end of commercial nuclear sales overseas. Now, every time a U.S. vendor attempted to sell a reactor to a foreign government, we would have to assess the potential of that plant becoming a nuclear weapons production site. The National Security of the United States demands that we operate at a higher standard--setting ourselves apart as a World Leader. I am a proponent of nuclear power and I support finding alternative missions for nuclear reactors, but using a commercial reactor to create nuclear weapons materials would be devastating to the nuclear industry. If we allow this ill-conceived Clinton Administration proposal to go forward, we will no longer be able to preach from the bully pulpit on non-proliferation. We will no longer be able to tell other nations that it is unacceptable to forgo the use of their commercial reactors for military purposes. We will have crossed that formerly well defined boundary that every President knew should never be violated since the dawn of the nuclear age. This President, however, seems to feel that it is perfectly acceptable to say to the rest of the world, ``do as we say, not as we do.'' Mr. President, we cannot allow this Administration to take such an action without the intense scrutiny of Congress. How could we go to the United Nations or the G-8 Summit and condemn nations like Iraq, Libya, Iran, North Korea, or any other nation that is so eager to establish a nuclear weapons program if we are not living up to our own standards? The simple answer is that we will not be able to do so, because civilian workers in a Tennessee Valley Authority commercial nuclear power plant will be producing weapons grade materials. Our moral authority will be lost in a cloud of hypocrisy. Because this issue is essential to our National Security, I have asked the Secretary of Energy to re-examine the non-proliferation concerns associated with the commercial light water reactor option. I have asked him to personally confer with the Secretaries of Defense and State and with the President's National Security Advisor. I have also written Secretary of State Albright asking her to personally evaluate this issue and provide her assessments to Congress. I ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.

Mr. THURMOND. For the past two years, I have expressed my concern with the Administration's plans to turn civilian reactors into materials production plants. I have communicated that concern to the Secretaries of Energy and Defense. As a part of last year's Defense Authorization Act, we included a provision that required the Administration to clearly state what proliferation risks were entailed in the commercial light water reactor option. That report was not delivered until well after both the House and Senate Defense Authorization bills were completed. It stated, however, that there were non-proliferation concerns with the use of commercial light water reactor for tritium production, but indicated that such concerns were ``manageable.'' Mr. President, given the volatile proliferation risks were are facing in South Asia, the Middle East, and other quarters of the globe, do we want to settle for a ``manageable'' non-proliferation policy? This finding is hardly a glowing endorsement of the reactor option being considered by the Clinton Administration. I suggest that today's international security environment requires U.S. non- proliferation policies to be absolutely unquestionable. To establish any other policy for the United States will not go without consequences. The series of nuclear tests carried out by the Governments of India and Pakistan is clear evidence that the Clinton Administration's credibility with the rest of the world is being questioned when it comes to non-proliferation matters. This Congress has to step up to this issue and state that civilian and military nuclear programs cannot and will not be mixed. In addition to claiming that there is no problem with producing tritium in a non-defense facility some proponents of the reactor option have made many false statements concerning the costs of the different options. First, many point to a review of the United States nuclear weapons program conducted by the Congressional Budget Office at the request of the Clinton Administration as proof positive of the lower cost of the reactor option. This initial review, conducted over a year and a half ago, included an assessment of DOE's tritium program only as a cursory footnote in the larger report. The CBO did not assess the current modular accelerator design, which everyone agrees is dramatically cheaper, nor did the CBO conduct any assessment of the proposed cost to complete the reactor option. Several months ago, the CBO attempted to justify its earlier report by updating its findings. The result was an even more inaccurate depiction of the two tritium production options. This report was riddled with inaccuracies. In my response to this flawed report, I identified a number of deficiencies in the CBO analysis. I ask unanimous consent that my letter of September 2 be printed in the Record at the conclusion of my remarks.

Mr. THURMOND. Here are just a few of the glaring errors. CBO did not consider the independent cost evaluations conducted on the accelerator design and construction estimates. CBO did not even mention the significantly lower cost modular accelerator design, which is the design currently being considered by DOE. Their report made no mention of the ancillary benefits of the accelerator that could help lower its operating cost. There was no contingency cost assessed for the reactor- based options, yet the estimated cost for the accelerator was increased an astounding $500 million without any justification. There was no consideration of TVA's sizable debt service costs in the reactor option. The Tennessee Valley Authority currently has an outstanding $4.6 billion debt on the incomplete reactor that would have to be recovered over the life of the reactor option. This would dramatically reduce the revenue stream projected for the reactor option. Current law requires that TVA recuperate such costs on a schedule and basis that advantages the ratepayers. In short, if the gross revenues projected by TVA fall short or operating expenses cost more, TVA would face a legal conflict--fulfill its contractual obligation to pay DOE a share of gross revenues or fulfill its legal obligation to recover the costs. CBO did not account for this liability. There were no management and support or startup cost included in the reactor option. The CBO analysis also ignored many programmatic requirements found in the Department's August 1998 Draft Environmental Impact Statement for the Production of Tritium in a Commercial Light Water Reactor (EIS). The EIS states that ``at least two reactors would be needed'' and further states that ``DOE could use as many as 3 reactors.'' The CBO report should have included additional costs in the reactor option to account for the requirement to operate at least two reactors if a reactor-based option were selected. The entire reactor-based option rests on whether or not it can meet our nuclear defense needs for tritium. The CBO failed to address this fact. It should not have been ignored and therefore undermines the credibility of the entire analysis of the commercial reactor option. The CBO report failed to include any contingency costs in the reactor option to account for TVA's poor record in completing large reactor projects. The average TVA cost overrun on reactor construction projects is well over 150 percent. This fact was also ignored by the CBO analysis. These are but a few of the deficiencies in the CBO cost analysis. Yet, this is the report that some are relying on when they tell you that the reactor is the lowest cost option. Well, I don't buy that. I also don't put much stock in the argument that says the reactor option can't cost more, because it is a fixed price contract. Given the Department's recent setbacks in fixed price contracting, it is inconceivable that DOE or CBO would simply accept a ``fixed price'' offer at face value and not consider the issues I have just raised. Many are aware of the fixed price contract that DOE signed at the Idaho Pit 9 facility. Those who are aware of this contract know that DOE spent several hundreds of millions of dollars on this cleanup project and not one square inch of that facility has been cleaned up. Three years later, that matter is still in dispute. We cannot afford to allow such delays to threaten an activity as vital as tritium production. I have asked the CBO to re-examine this matter and provide a thorough and complete assessment to Congress by early 1999. In addition, I have requested that the GAO provide a complete and independent review of the competing tritium production options. I ask unanimous consent that my letters of August 26 and September 4, 1998, be printed at the conclusion of my remarks.

Mr. THURMOND. I have just told you about the CBO review. Now let me tell you about an analysis conducted by the Congressional Research Service which was an exhaustive and complete examination of both the reactor and accelerator options. This assessment was released June 18, 1998, by the defense staff at the Congressional Research Service. This report found that the reactor and the accelerator options are ``competitive on a cost basis.'' The CRS report states that the cost of the reactor option ranges from $2.5 billion to $3.7 billion, while the cost of the accelerator ranges from $2.5 to $2.9 billion. In other words the accelerator could cost less than the reactor. The CRS assessment is the most in depth assessment conducted on the costs of the two tritium options to date. It represents the most recent information available and it says the costs of the reactor and the accelerator are comparable, that there are no technical risks associated with the accelerator, and that the accelerator actually has a greater chance of returning revenue to the U.S. Treasury than the reactor. The revenue producing potential of the accelerator is one of the many things that the CBO assessment failed to account for fully. Because the accelerator will operate on a continuous basis, it is possible to use a portion of the accelerator beam to produce much needed medical isotopes which can be used to treat prostate, breast, and many other types of cancers. The production of these isotopes will have no impact on the facility's tritium production. This ``swords to plowshares'' approach could, conservatively, raise $100 or $500 million per year in revenue for the Federal government. This compares with the $25 to $100 million annual revenue projected to be available from the reactor option, and the accelerator produces no hazardous legacy materials like spent nuclear fuel while at the same time maintaining our strong non- proliferation policies. It is critical that the facts about the options for producing tritium are known. Choosing to produce this nuclear defense material in a commercial light water reactor will sacrifice our position as the world leader on this issue. The accelerator is the right option for our Nation. I have mentioned a few of the advantages of the accelerator, but the real advantage is that it is the technology of the future. Unlike the reactor option, the accelerator generates no nuclear waste, cannot threaten surrounding communities, and requires no hazardous materials to be shipped across the country. In fact, the accelerator may actually help destroy the ever growing volumes of spent nuclear fuel and other nuclear wastes. The accelerator could be used in a full-scale demonstration of a process known as the accelerator for the transmutation of waste (ATW). This innovative new process could reduce by 95 percent the volume of high level nuclear waste currently planned to be buried in a repository in the Nevada desert. The ATW would also generate electricity in the process. As I previously stated, the accelerator could be used to create medical isotopes. The U.S. has very little indigenous isotope production capability. The accelerator will make it possible to create revolutionary new medical treatements to treat a wide variety of cancers. For example, one isotope that can be created in the accelerator would allow victims of prostrate cancer to be fully treated without any surgery. The radioactive medicines created in the accelerator could be designed specifically to attack only cancerous cells, obviating the need for surgery or radical, whole body radiation treatments. New treatments could also be developed for breast and other terminal cancers. In addition to medical isotopes, industrial isotopes can be created which have important and beneficial applications for both our National Defense and NASA. There are many other uses for the accelerator that could enhance the lives of citizens throughout the country. These ancillary benefits are achieved without the generation of a single cask of spent nuclear fuel, without any compromise in our stance against the proliferation of nuclear weapons, and without any added cost to the Department of Energy or Department of Defense. It is because of these concerns that I rise to express my opposition to the use of a commercial facility to produce tritium for defense purposes and wholeheartedly endorse the APT as the preferable choice to protect the National Security interests of the United States. Exhibit 1 U.S. Senate, Washington, DC, September 23, 1998. Hon. Madeleine K. Albright, Secretary of State, Department of State, Washington, DC. Dear Secretary Albright: The recent nuclear arms race in India and Pakistan has underscored the need to maintain the most vigilant nuclear nonproliferation programs and policies. You validated that sentiment on June 3, 1998, when you stated, ``American leadership should be unambiguous, decisive, and clear.'' In light of your strong stance against nuclear proliferation, I would appreciate your personal position on this important National Security issue. A cornerstone of our nonproliferation policy for the past 50 years has been the strict separation of the commercial and defense nuclear programs in the United States. As the Atomic Energy Act, Section 57e confirms, materials made for ``nuclear explosive purposes'' may not be produced in a commercial facility. The policy of separating commercial and defense facilities in the production of nuclear weapons materials is now being jeopardized. As you may know, tritium gas is a radioactive material used to boost the explosiveness of a nuclear weapon. The United States produced tritium at a defense-only facility for over 40 years. We have not produced any tritium since 1988, relying on a large stored quantity. Because tritium decays over time, the United States will need a new source of tritium by 2005, in order to meet the level allowed by the START I treaty. Without this material the weapons of our Nation's nuclear arsenal are useless. During the FY 1993 budget process, Congress directed the Department of Energy (DOE) to examine possibilities of a new source for tritium. DOE has since adopted a dual-track strategy to investigate a Commercial Light Water Reactor option and an Accelerator for the Production of Tritium option. The Commercial Light Water Reactor option being considered is the completion of the Bellefonte reactor owned by the Tennessee Valley Authority. The Accelerator would be built at a DOE facility, the Savannah River Site--the site which produced tritium until 1988. In the FY 1998 Defense Authorization Act, Congress requested that the Department of Energy take the lead to identify and assess any policy issues associated with the various reactor options for the production of tritium for national security purposes. In July 1998, in conjuction with the Department of State Arms Control Office, the Department of Defense, and the Nuclear Regulatory Commission, the DOE issued a report entitled ``Interagency Review of the Nonproliferation Implications of Alternative Tritium Production Technologies Under Consideration by the DOE.'' This report assessed the proliferation risks associated with producing tritium in a commercial light water reactor and concluded that these risks were ``manageable.'' Further, the report cites a number of examples in an attempt to show that the separation of civilian and military facilities has not been strictly upheld. First, I believe that any new policy which could inadvertently result in the proliferation of fissile materials cannot be classified as ``manageable.'' Second, all of the examples of dual-use facilities described in the report involved deriving a civilian benefit from a defense facility. Using facilities developed initially for military purposes and then converting them to civilian use has found ready acceptance in the past. I embrace the concept of peace coming from war, but not the reverse. Given today's international security environment, would you please outline how the United States would defend a ``manageable'' proliferation risk? Do you believe that abandoning the 50 year separation between commercial and defense nuclear facilities in regards to producing nuclear weapons material and implementing the new policy of producing nuclear weapons materials in a commercial light water reactor will undermine our moral authority to press for the strongest possible nonproliferation regime? As you know, India claims to have detonated a boosted nuclear weapon, which would require the use of tritium. This claim raises the question, did India produce tritium in its government owned, commercial reactors? Moreover, if India is able to produce tritium in a commercial reactor, supposedly under IAEA inspection, could they also have successfully diverted fissile material from the same reactor? Do you believe that changing the existing United States policy of separating civilian and military nuclear facilities in regards to producing nuclear weapons material will validate the India weapons program and send a signal to other nations that the United States is not opposed to the use of government owned, commercial reactors for the production of nuclear weapons materials? The United States has spent hundreds of millions of dollars to prevent the production and spread of weapons-usable materials such as plutonium and highly enriched uranium. Do you believe we would lose this important investment if we initiate a new policy which could embolden threshold nuclear states to embark on new fissile material production programs in commercial nuclear plants? I contend that relying on commercial nuclear reactors to supply nuclear materials for our warheads will cross a boundary that all U.S. Presidents from Harry Truman to George Bush knew should never be violated. Furthermore, I suggest that given the international security environment we live in today, our Nation's nonproliferation policy should be absolutely unquestionable. Our leadership in the area of nuclear non-proliferation will be emulated around the World. The consequences of our example will be solely ours to bear. I have worked to preserve the security of our Nation throughout my career as a United States Senator. As Chairman of the Senate Armed Services Committee one of my top priorities has been the timely resumption of tritium production at a facility that is both cost-effective and politically defensible. I believe the National Security of the United States and our leadership in the international community depends upon maintaining the 50 year policy which separates commercial and defense facilities for the production of vital nuclear materials. Due to the many sensitive foreign policy issues facing the United States, such as the nuclear reactor project in North Korea for peaceful purposes, I believe we need to be very cautious in changing an established United States policy which might send mixed signals to countries who depend upon our consistent leadership. Again, I would appreciate your personal position on this matter as well as your response to the specific questions I have raised in this letter. I look forward to hearing from you soon. With kindest regards and best wishes, Sincerely, Strom Thurmond. Exhibit 2 U.S. Senate, Washington, DC, September 2, 1998. Ms. June E. O'Neill, Director, Congressional Budget Office, Washington, DC. Dear Ms. O'Neill: I am writing to respond to your August 27, 1998 report on the Department of Energy's (DOE) tritium production options. I have reviewed the report and find it to be incomplete and based on preliminary, unverifiable information. As such, I consider the conclusions of the report to be inaccurate. I am disappointed that the Congressional Budget Office appears to have fallen far short of its customary high quality work. First, let me say that the cost figures presented for the Commercial Light Water Reactor (CLWR) options have not been validated by the Department of Energy's Chief Financial Officer and are based solely on preliminary contractual discussions between DOE and a potential vendor. Additionally, while the Accelerator for the Production of Tritium (APT) option has been subjected to numerous independent cost evaluations (ICE) for all design and construction costs, none of the reactor-based options have been subjected to an ICE review. Your report failed to note the tentative nature of the CLWR cost figures. In the case of the irradiation services option, there is not even a valid proposal. The potential vendor for that option, the Tennessee Valley Authority (TVA), withdrew its proposal to provide such services many months ago. Your report failed to note this fact as well. Second, your report left out many critical pieces of information, including the following: 1. Your report states, ``All of the options assume that DOE must make enough tritium to support a nuclear stockpile of the size allowed by the START I treaty.'' However, the analysis ignored many programmatic requirements found in the Department's August 1998 Draft Environmental Impact Statement for the Production of Tritium in a Commercial Light Water Reactor (EIS). The EIS states that ``at least two reactors would be needed'' and further states that ``DOE could use as many as 3 reactors,'' to produce the tritium required to support a START I stockpile. The CBO report should have included additional costs in the CLWR option to account for the requirement to operate at least two and possibly three reactors in order to satisfy the START I requirements. Your failure to do so produced an invalid comparison. 2. There was no mention of the significantly lower cost of the modular APT design currently being considered by DOE, nor was the option of pursuing a modular APT even mentioned. The cost of constructing the modular APT is equivalent to the cost of completing the Bellefonte reactor and would still allow the United States the option to meet a START I production level in the future should START II not be ratified. 3. There was no mention of the fact that the TVA option assumes full up-front, block funding over a one or two year period. It would be virtually impossible for the DOE Office of Defense Programs to make two $1 billion payments to TVA in fiscal years 2000 and 2001, therefore the cost assumptions on the Bellefonte option are invalid. 4. There was no mention of any ancillary benefits of the APT. The APT would be highly effective in conducting research in high energy physics, medical treatments, and waste management. It could also directly support DOE research or transmutation of high level nuclear waste. Not only could these programs be a source of additional revenue for the APT, but such activities would also serve the larger public good. 5. There was no mention of the independent cost evaluations that have been conducted for the APT design and construction costs. 6. There was no consideration of TVA's sizable debt service costs in the total estimated cost of the Bellefonte option. Your report correctly asserts that TVA's $4.6 billion outstanding debt on the Bellefonte plant must be recovered through gross revenues at the plant. Ultimately, TVA rate payers will pay the full cost of this debt and the associated interest costs. Current law requires that TVA recuperate such costs on a schedule and basis that advantages the rate payers. In short, if the gross revenues projected by TVA fall short or operating expenses cost more, TVA would face a legal conflict. It would either have to fulfill its contractual obligation to pay DOE a share of gross revenues or fulfill its legal obligation to recover the costs on behalf of the rate payers. 7. There were no management and support or startup costs included in the Bellefonte cost projections despite TVA's poor facility start up record. The report added $500 million to the APT cost to account for such activities. It is clear that DOE will incur added management, operations and startup costs for the CLWR. If these costs are not included for the TVA option, they should not be included for the APT project. 8. The CBO report assessed the APT option a 35% contingency cost penalty to account for DOE's poor record in completing large construction projects on time and within budget. The report accurately states that the average overrun for large DOE construction projects is 50%. However, the CBO report did not include a similar contingency penalty in the TVA Bellefonte cost estimate, despite the fact that according to the 1995 Congressionally mandated TVA Integrated Resource Plan, the average TVA cost overrun on reactor construction projects ranged from 100 percent to 230 percent. In addition, the cost estimates for the CLWR tritium extraction facility and the target fabrication facilities should have included a contingency cost penalty. 9. There was no mention of the regulatory and schedule barriers which could slow or block licensing a new or existing CLWR to produce tritium for defense purposes. Licensing commercial nuclear facilities falls under the jurisdiction of the Nuclear Regulatory Commission (NRC). The most recent attempts to build and license new CLWR's have resulted in extraordinary challenges by anti-nuclear groups and other intervenors. Numerous work stoppages have resulted in massive time delays and cost overruns. The last TVA CLWR to be licensed was the Watts-Barr I facility. That facility received a construction permit on January 23, 1973 and finally began operating on May 26, 1996--over 23 years later. The Bellefonte Reactor would prove especially contentious due to the obvious controversy of producing materials for nuclear weapons in a commercial nuclear facility. I am greatly concerned if the CLWR option is chosen, delays could occur which would result in tritium being unavailable when the current stored supply is exhausted and when a new source is required. The totality of these deficiencies in the CBO's cost analysis of the tritium production options being considered by DOE makes the report's findings highly speculative and not entirely useful as a planning document. It does not appear as though CBO held any discussions with the DOE, vendor, or laboratory program leaders for the options under consideration. Further, it does not appear that CBO considered a wide variety of external reviews that have already been conducted, such as the July 1998 Congressional Research Service report which presented extensive documentation for its findings. Given the Department's recent setbacks in the Idaho Pit 9 fixed price contract, it is inconceivable that DOE or CBO would simply accept a ``fixed price'' offer at face value. A fixed price contract is only a good deal if you believe the vendor can perform the work described within the cost and schedule projections estimated. The resumption of reliable tritium production that meets the National security requirements of the United States is one of the most difficult issues facing the Defense Authorization process this year. Unfortunately, your analysis of the costs of the various options is flawed and rather than shedding light on the true potential costs, it has caused further confusion. You are responsible for ensuring that the parameters governing CBO assessments are not skewed to assure a particular outcome and that the information used in conducting such analyses is balanced and fully transparent. I believe this report falls far short of the standard the CBO has traditionally met, and given the inaccuracies and deficiencies I have outlined in this letter, I am confident that you will move forward with all due haste to review and reconsider your incomplete findings. I look forward to receiving your revised and accurate report as soon as possible. With kindest regards and best wishes, Sincerely, Strom Thurmond. Exhibit 3 U.S. Senate, Washington, DC, August 26, 1998. Mr. James Hinchman, Acting Comptroller General, General Accounting Office, Washington, DC. Dear Mr. Hinchman: Tritium gas is a critical element of thermonuclear weapons and is used in every U.S. nuclear warhead. Without this element the nuclear weapons of our Nation's arsenal are useless. As the recent nuclear arms race in India and Pakistan have underscored, and as rogue nations such as North Korea, Iran and Iraq continue efforts to acquire nuclear weapons capabilities, it is absolutely essential that the United States maintain a nuclear stockpile at the highest level of readiness. Tritium has not been produced by the United States since 1988. Since this gas decays over time, identifying a new source is clearly vital to our National Security. I have consistently maintained that it is one of our highest responsibilities to identify and develop a viable and secure tritium production source. During the FY 1993 budget process, Congress directed DOE to examine possibilities for a new source of tritium. DOE has since adopted a dual-track strategy to investigate the Commercial Light Water Reactor (CLWR) option and the Accelerator for the Production of Tritium (APT) option. On August 25, 1998 while visiting the Savannah River Site, Secretary of Energy Bill Richardson stated that, ``The decision (on the tritium production source) will be made on the bases of science and not politics.'' Unfortunately, it is no secret that the Administration has been leaning heavily toward the CLWR option, Recently, numerous allegations have surfaced which suggest that senior level officials at DOE have engaged in a systematic campaign to undermine the validity of the APT option. These allegations are extremely disturbing. The National Security of the United States demands that the study of the two tritium production options be approached with the utmost care and precision. In light of the enormous implications of this decision and the allegations which imply that the final selection may be based on factors other than merit, I request you conduct an in-depth analysis of the competing tritium production options. This investigation should include, but not be limited to, the following aspects: Is the Dual Track Strategy Balanced?--Does the evidence support the allegations that DOE principals and staff are attempting to skew the outcome of the tritium selection process to advance the CLWR option over the APT option? Has Dr. William Bishop, the Director of the APT office, or any other DOE employee been threatened, pressured, censured, reprimanded, etc. because their actions might enhance the APT option over the CLWR option? Have threats, pressures or reprimands created an environment which would limit the ability or desire of DOE employees to present balanced information about the tritium source selection process? Have key DOE employees, specifically Chief Financial Officer Michael Telson and the Director of Nonproliferation and National Security Rose E. Gottemoller, been excluded from fully participating in the ``dual track'' process? Proliferation Concerns--President Clinton recently indicated in a July 24, 1998 press release that nuclear nonproliferation is ``one of the nation's highest priorities.'' A cornerstone of our nonproliferation policy for the past fifty years has been the strict separation of the commercial and defense nuclear programs of the United States. DOE recently stated that the nonproliferation involved in producing tritium in a CLWR are ``manageable.'' I contend that relying on commercial nuclear reactors to supply nuclear materials for our warheads will cross a boundary that all U.S. Presidents from Harry Truman to George Bush knew should never be violated. Furthermore, I suggest that given the international security environment we live in today, our Nation's nonproliferation policy should be absolutely unquestionable. Environmental and Safety Concerns--This issue has many facets. Clearly one of the more contentious aspects of the environmental issue is the storage and disposal of the legacy materials and wastes from our defense programs and our nuclear power generation industry. Your analysis should examine the impact of the two options on this problem. I am aware that the addition of one production reactor would not greatly exacerbate the current situation. However, it is my understanding that the APT option could actually serve to reduce the storage of waste problem through the Accelerator Transmutation of Waste process. DOE, which is responsible for managing the significant nuclear waste we have produced, appears to have ignored this ground breaking technology in their considerations. Regulatory and Schedule Concerns--Licensing a new CLWR falls under the jurisdiction of the Nuclear Regulatory Commission (NRC). The most recent attempts to build and license new CLWR's have resulted in extraordinary challenges by anti-nuclear groups and other intervenors. Numerous work stoppages have resulted in massive time delays and cost overruns. The last Tennessee Valley Authority (TVA) CLWR to be licensed was the Watts-Barr I facility. That facility received a construction permit on January 23, 1973 and finally began operating on May 26, 1996--over 23 years later. The Bellefonte Reactor would prove especially contentious due to the obvious controversy of producing materials for nuclear weapons in a commercial nuclear facility. I am greatly concerned if the CLWR option is chosen, delays could occur which would result in tritium being unavailable when the current stored supply is exhausted. Cost--I have consistently maintained that the production of tritium is not a cost issue, it is a National Security issue. Therefore, ensuring the capacity to produce the material in a manner which is consistent with our proven nonproliferation policy is more important than cost considerations. However, in this era of constrained spending it is essential that we select a production technology which is fiscally responsible. On July 21, 1998 then Acting Secretary of Energy, the Honorable Elizabeth A. Moler, sent a letter to me in which she cited DOE's ``official'' departmental cost estimates. In my response, dated July 24, 1998, I outlined a number of serious concerns I had regarding her ``official'' estimates. I have included copies of both of these letters for your review. As I indicated at that time, I was informed by DOE Chief Financial Officer Michael Telson, that the numbers cited as ``accurate'' and ``official'' for the CLWR option were not validated by DOE, but were merely forwarded from the Tennessee Valley Authority (TVA) as the Bellefonte proposal. DOE embraced these numbers and forwarded them to Congress as ``accurate'' and ``official'' despite the fact that TVA's record of forecasting the cost to complete nuclear plants is woeful. As part of the Congressionally mandated TVA Integrated Resource Plan, TVA reviewed the accuracy of estimates it has produced since 1987. The review found that TVA's rate of error for predicting future nuclear plant costs ranged from 100% to 230%. Furthermore, DOE allows TVA to claim that revenue from selling electricity from Bellefonte would repay the costs the American taxpayers would incur for completing the reactor. Given that the Bellefonte reactor has a current debt of $4.5 billion and that the cost of electricity is expected to decline, the Congressional Research Service, in the recent report ``the Department of Energy's Tritium Production Program'', indicated that the likelihood that a completed Bellefonte plant could sell electricity at a price high enough to recover the taxpayer's investment is ``highly uncertain.'' By contrast, when APT program officials attempted to study the possibility of generating revenue through the commercial leasing of the APT to produce medical isotopes, they were instructed to ``cease any work''. Why would DOE allow the ``official'' CLWR numbers to include highly suspect revenue potential from power generation and not consider revenue from a market which is projected to exceed $5 billion by 2010? Your providing an accurate and complete cost comparison of the two competing tritium production options will finally clarify the costs and allow the debate to be based on truly accurate information. I firmly believe that this is one of the most important issues facing the nation. The security of the United States and the world depends on the maintenance of a credible U.S. nuclear deterrent. Due to the extraordinary consequences of the tritium production technology decision, I request you begin this investigation as soon as possible. Thank you for your attention and I look forward to hearing from you soon. With kindest regards and best wishes, Sincerely, Strom Thurmond.

Mr. THURMOND

Mr. THURMOND. Mr. President, as the Senate considers H.R. 2263, a bill to authorize the President to award the Medal of Honor to Theodore Roosevelt for his actions on San Juan Heights in cuba during the Spanish-American War, I want to clarify what we are doing. This bill does not award the Medal of Honor to Theodore Roosevelt. It does authorize the President to award the Medal of Honor to then Colonel Roosevelt. Colonel Roosevelt's actions on San Juan Heights may well merit the award of the Medal of Honor. However, in order to make such a determination, one must carefully review the historical record, including any eyewitness accounts that may be available, and evaluate the record against the criteria for award of the Medal of Honor that was applied to other members of the Armed forces who were recommended for the Medal of Honor during the Spanish-American War. In my opinion, this is a task that can only be performed by the military services. In fact, in the National Defense Authorization Act for Fiscal Year 1996, we established a procedure in which the military services would evaluate recommendations for awards for past actions and notify the Committee on Armed Services of those found to be meritorious. Each year, in the National Defense Authorization Act, we waive the time limits for those awards recommended by the Secretaries of the Military Departments so that the award may be made. Mr. President, Senator Levin and myself, as well as Congressmen Spence, Skelton, and McHale have agreed to and signed a letter to the President regarding this issue. This letter makes it clear that we believe the President should consult with the Secretary of the Army, who is reviewing the accounts of Colonel Roosevelt's actions before deciding to award the Medal of Honor to Theodore Roosevelt. I ask unanimous consent that this letter be printed in the Record following my remarks.

Mr. THURMOND. Mr. President, this bill should not be seen as a precedent for Congressional decisions on military awards. Our legislation in 1996 established a procedure designed to ensure that heroic and meritorious actions do not go unrecognized solely due to the passage of time. However, the procedure also preserves the integrity of the military award system which is important to our military services and the American people. Mr. President, in closing, I want to commend Congressman McHale for his determined efforts in bringing this matter to our attention. It is my fervent hope that Colonel Roosevelt's action will be appropriately recognized while preserving the time honored processes and traditions within our military services for awarding our Nation's most hallowed award for valor, the Medal of Honor. Exhibit 1 Committee on Armed Services, Washington, DC, October 20, 1998. The President, The White House, Washington, DC 20500 Dear Mr. President: We want to share our views with you on H.R. 2263, a bill that authorizes and requests you to award the Medal of Honor posthumously to Theodore Roosevelt for his actions in the attack on San Juan Heights, Cuba during the Spanish American War. We supported this legislation with the intent and understanding that: (a) prior to reaching a decision on awarding the Medal of Honor posthumously to Theodore Roosevelt pursuant to this legislation, you will seek the advice of the Secretary of the Army; (b) Theodore Roosevelt will be considered for eligibility for the Medal of Honor based on the same standard of merit that was applied to other members of the armed forces who received this medal during the Spanish American War; and (c) the Secretary of the Army will prepare a full and formal record of Theodore Roosevelt's valor, inviting public submissions, with emphasis on the eyewitness and contemporaneous accounts of Roosevelt's battlefield courage. If an injustice was done to Theodore Roosevelt in withholding the Medal of Honor, we believe it should be corrected. Sincerely, Carl Levin, Ranking Minority Member, Committee on Armed Services, United States Senate. Strom Thurmond, Chairman, Committee on Armed Services, United States Senate. Ike Skelton, Ranking Minority Member, Committee on National Security, United States House of Representatives. Floyd Spence, Chairman, Committee on National Security, United States House of Representatives. Paul McHale, Member, Committee on National Security, United States House of Representatives.

Mr. THURMOND

Mr. THURMOND. Mr. President, I wish to express my support for the nomination of Edward Damich to the U.S. Court of Federal Claims. I believe he is a fine choice for this important position. Before joining the staff of the Senate Judiciary Committee in 1995 as Chief Intellectual Property Counsel, Mr. Damich served as a Commissioner of the Copyright Arbitration Royalty Panel. In that capacity, he was involved in numerous copyright issues, including the proper distribution of millions of dollars in copyright licensing fees. Further, for many years, he served as a Professor of Law in the area of intellectual property, first at Delaware Law School and later at the George Mason University School of Law in Virginia. Mr. Damich has been an asset to the Senate Judiciary Committee in recent Congresses. He is a strong supporter of property rights and has brought a wealth of knowledge of intellectual property law to his work. He has played an important supporting role on many important pieces of legislation in this area, including most recently the Digital Millennium Copyright Act. Mr. Damich is well qualified to serve on the Court of Claims, and I am pleased to support his nomination. judge norman a. mordue

Mr. THURMOND. Mr. President, I wish to express my strong support for Judge Margaret Seymour, President Clinton's nominee to be a United States District Judge for the District of South Carolina. Judge Seymour will replace Judge William Traxler, an excellent jurist who I recommended to the President for the District Court and who has just been elevated to the Fourth Circuit Court of Appeals. Judge Seymour had a varied legal career in the private sector and in government service before becoming an Assistant United States Attorney in South Carolina in 1990. During four of her six years in the U.S. Attorney's office, she was Chief of the Civil Division. Also, she twice served as Interim United States Attorney, once in 1993 and again in 1996. She was appointed a United States Magistrate Judge for the District of South Carolina in 1996, where she serves today. In that capacity, she is known as a diligent and fair jurist. She is also a person of character and integrity. I am very pleased to support her, and I am confident she will be a very able addition to the District Court. nomination of denise o'donnell