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[Congressional Record: November 15, 2002 (Senate)]
[Page S11169-S11198]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr15no02-122]
HOMELAND SECURITY ACT OF 2002
Pending:
Thompson (for Gramm) Amendment No. 4901, in the nature of a
substitute.
Lieberman/McCain Amendment No. 4902 (to Amendment No.
4901), to establish within the legislative branch the
National Commission on Terrorist Attacks Upon the United
States.
Dodd Amendment No. 4951 (to Amendment No. 4902), to provide
for workforce enhancement grants to fire departments.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will report.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the substitute
amendment No. 4901 to H.R. 5005, the Homeland Security
legislation.
John Breaux, Ben Nelson of Nebraska, Larry E. Craig, Jon
Kyl, Mike DeWine, Don Nickles, Craig Thomas, Rick Santorum,
Trent Lott, Fred Thompson, Phil Gramm, Pete Domenici, Richard
G. Lugar, Olympia J. Snowe, Mitch McConnell.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call under the rule is waived.
The question is, Is it the sense of the Senate that debate on the
Thompson amendment, No. 4901, for H.R. 5005, an act to establish the
Department of Homeland Security and for other purposes, shall be
brought to a close? The yeas and nays are required under the rule. The
clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Hawaii (Mr. Inouye), the
Senator from Maine (Mr. Kennedy), the Senator from Maine (Mr. Kerry),
and the Senator from New Jersey (Mr. Torricelli) are necessarily
absent.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr.
Helms) and the Senator from Colorado (Mr. Campbell) are necessarily
absent.
The PRESIDING OFFICER (Mr. Dayton). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 65, nays 29, as follows:
[Rollcall Vote No. 244 Leg.]
YEAS--65
Allard
Allen
Barkley
Bayh
Bennett
Bingaman
Bond
Breaux
Brownback
Bunning
Burns
Cantwell
Carnahan
Chafee
Cleland
Cochran
Collins
Craig
Crapo
Daschle
DeWine
Domenici
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Johnson
Kyl
Landrieu
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--29
Akaka
Baucus
Biden
Boxer
Byrd
Carper
Clinton
Conrad
Corzine
Dayton
Dodd
Dorgan
Durbin
Feingold
Harkin
Jeffords
Kohl
Leahy
Levin
Mikulski
Murray
Nelson (FL)
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--6
Campbell
Helms
Inouye
Kennedy
Kerry
Torricelli
The PRESIDING OFFICER. On this vote, the yeas are 65, the nays are
29. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
The majority leader.
Amendment No. 4902
Mr. DASCHLE. Mr. President, I ask unanimous consent that the
Lieberman amendment No. 4902 be in order.
Mr. GRAMM. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard.
The majority leader.
Mr. DASCHLE. Mr. President, I very regretfully make a point of order
that amendment No. 4902 is not germane.
The PRESIDING OFFICER. The Chair sustains the point of order. The
amendment falls.
Amendment No. 4911 To Amendment No. 4901
Mr. DASCHLE. Mr. President, I call up amendment No. 4911.
Mr. BYRD. Mr. President, what is happening? What was the request?
What has happened?
Mr. DASCHLE. Mr. President, I have called up amendment No. 4911. I
would like it read.
The PRESIDING OFFICER. The clerk will report the amendment.
Mr. BYRD. Mr. President, parliamentary inquiry. Parliamentary
inquiry.
The PRESIDING OFFICER. The Senator will state his inquiry.
Mr. BYRD. Mr. President, what was the request agreed to; what
happened? What was the decision of the Senate?
The PRESIDING OFFICER. A unanimous consent request that the pending
first-degree amendment be in order was objected to. Objection was
heard. A point of order was then made against the amendment on the
grounds that it was not germane. The Chair sustained
[[Page S11170]]
the point of order, and that amendment fell.
Mr. BYRD. I thank the Chair. There was so much noise in the Chamber
that many of us could not hear what was going on.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from South Dakota [Mr. Daschle], for Mr.
Lieberman, proposes an amendment numbered 4911 to amendment
No. 4901.
Mr. DASCHLE. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide that certain provisions of the Act shall not take
effect, and for other purposes)
At the end, add the following:
TITLE XVIII--NONEFFECTIVE PROVISIONS
SEC. 1801. NONEFFECTIVE PROVISIONS.
(a) In General.--Notwithstanding any other provision of
this Act, (including any effective date provision of this
Act) the following provisions of this Act shall not take
effect:
(1) Section 308(b)(2)(B) (i) through (xiv).
(2) Section 311(i).
(3) Subtitle G of title VIII.
(4) Section 871.
(5) Section 890.
(6) Section 1707.
(7) Sections 1714, 1715, 1716, and 1717.
(b) Application of Federal Advisory Committee Act.--
Notwithstanding paragraph (2) of subsection (b) of section
232, any advisory group described under that paragraph shall
not be exempt from the provisions of the Federal Advisory
Committee Act (5 U.S.C. App.).
(c) Waiver.--Notwithstanding section 835(d), the Secretary
shall waive subsection (a) of that section, only if the
Secretary determines that the waiver is required in the
interest of homeland security.
Mr. DASCHLE. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
Mr. GRAMM. Mr. President, I suggest the absence of a quorum.
Mr. DASCHLE. Mr. President, I retain the floor.
The PRESIDING OFFICER. Is there a sufficient second?
In the opinion of the Chair, there is not a sufficient second.
Mr. DASCHLE. I suggest the absence of a quorum.
The PRESIDING OFFICER. There is a sufficient second.
The yeas and nays were ordered.
Amendment No. 4953 to Amendment No. 4911
Mr. DASCHLE. Mr. President, I call up amendment No. 4953.
Mr. GRAMM. Mr. President, I suggest the absence of a quorum.
Mr. DASCHLE. Mr. President, I hold the floor.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from South Dakota [Mr. Daschle], for Mr.
Lieberman, proposes an amendment No. 4953 to amendment No.
4911.
Mr. DASCHLE. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
Mr. NICKLES. I object.
The PRESIDING OFFICER. Objection is heard.
The clerk will continue the reading of the amendment.
The legislative clerk continued the reading of the amendment, as
follows:
Strike all after the first word and insert the following:
TITLE XVIII--NONEFFECTIVE PROVISIONS
SEC. 1801. NONEFFECTIVE PROVISIONS.
(a) In General.--Notwithstanding any other provision of
this Act, (including any effective date provision of this
Act) the following provisions of this Act shall not take
effect:
(1) Section 308(b)(2)(B) (i) through (xiv).
(2) Section 311(i).
(3) Subtitle G of title VIII.
(4) Section 871.
(5) Section 890.
(6) Section 1707.
(7) Sections 1714, 1715, 1716, and 1717.
(b) Application of Federal Advisory Committee Act.--
Notwithstanding paragraph (2) of subsection (b) of section
232, any advisory group described under that paragraph shall
not be exempt from the provisions of the Federal Advisory
Committee Act (5 U.S.C. App.).
(c) Waiver.--Notwithstanding section 835(d), the Secretary
shall waive subsection (a) of that section, only if the
Secretary determines that the waiver is required in the
interest of homeland security.
(d) The amendment made by subsection (a)(1) of this section
shall be effective one day after enactment.
Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I ask unanimous consent that during the next 90 minutes--
that is until 1:30 today--there be no action, other than debate, on the
matter now before the Senate.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The Senator from Texas.
Mr. GRAMM. Mr. President, I do not want to give a lengthy speech, but
briefly I will talk about where we are and then talk about the
amendment that is pending. We have now invoked cloture on the pending
substitute, and so we are in a very tightly scripted 30-hour period.
The Democrat majority leader put into place two amendments, and in the
process no amendment now is in order. This produces a situation where
at some point, at the end of 30 hours, there will be a vote on the
pending Lieberman amendment.
The pending Lieberman amendment is the amendment I will discuss. It
is clear these amendments will not be dealt with until the 30 hours
expires. So we will have one vote on the Lieberman amendment and then
we will move to vote on final passage. I want to address the Lieberman
amendment because what tends to happen in these cases, where things are
done at the last minute, is that it is sort of easy to confuse people
as to what has been done. I want people to understand where the
provisions came from and why they are important. One can agree with
them or disagree with them, but I want my colleagues to basically know
where they came from.
Over the weekend, we had a series of negotiations. I want to go back
to the point that the President could have said, after the election,
that he had a mandate, that this Congress could go home, that we would
then have a new Congress and he would write the homeland security bill
the way he wanted it written, or he would have Congress write it that
way. I think it tells us a lot about our President that he decided not
to do that.
In fact, after having gotten a strong electoral mandate, the
President actually negotiated further and made additional changes in
his bill.
The substitute that is before us is basically the Gramm-Miller
amendment, which is well-known, which we debated for 6 weeks--few
amendments have ever been debated that long in my 18-year career in the
Senate--with two sets of changes. One, the agreements that the
President reached with three Democrat Senators and an Independent
Senator in negotiations over the weekend, whereby the following changes
were made: Workers in the Federal sector and unions that represent them
were given a greater voice in expressing their views about how the new
Department is organized, and they were given more clearly defined due
process. They were not given veto power, but they were given a
guaranteed input under a specific time period. That is the significant
change that was made. That represents a compromise from the original
Gramm-Miller amendment.
The second change that was made was recognized that the House had
passed its own bill. So realizing that we were coming to the end of the
Senate, one of the things we did over the weekend is we met with the
House to try to make changes in our substitute to assure that at the
end of the session we would not have to do a conference once we had
passed the bill. Quite frankly, the Democrats who have been supportive
of this effort felt strongly that they did not want to negotiate with
us and then end up negotiating with other Republicans in conference.
That makes sense. When a deal is cut, one wants it to be a deal. So we
brought in the House. As a result, we took 95 percent of our
provisions, took about 5 percent of the House provisions, and that now
is the bill before us. This bill has been adopted by the House, which
has now left town. They will be here in pro forma session on Monday,
but practically the House has adjourned.
I will address the generic issue about add-on provisions and then I
want to talk about something else. I hope nobody is offended by this,
but I have to
[[Page S11171]]
say I have probably been as strong in speaking out against add-on
provisions as anybody. I remind my colleagues that many times at
midnight or 2 in the morning we have had seemingly noncontroversial
amendments that did all kinds of special projects that we were going to
accept. In fact, earlier this Congress I sat in that very room and went
through a list of amendments. One amendment would have the Federal
Government absorb a billion dollars of liability for a project in one
State. Now that is pretty targeted. I am not going to mention the
State, and it does not matter.
Any time we negotiate with the House, with 435 Members focused on a
very small congressional district, they are going to put in provisions
that relate to their district. That has been the nature of the body
from the very beginning. It started with the first Congress. It will
end with the last Congress. It will never go away.
For the people who say there are extraneous matters in this bill, of
all the major bills I have looked at that have been agreed to by the
House and Senate, there are probably fewer extraneous matters in this
bill than any major bill I have looked at in a very long time. I would
like go down the list of amendments being discussed and explain where
they came from and why they make sense.
The first one has to do with vaccines. We had a provision in our bill
related to vaccines and related to the production of items to be used
in the war on terrorism. In every war we have ever fought we have had
some form of indemnification for people who produce things used in that
war. The provision we had in the Senate bill was a taxpayer
indemnification. I did not like that provision, but I had Republican
colleagues who were for it. We were trying to get 51 votes. So I took
it.
The House had a far better procedure. That was a limit on liability.
We did not take all the limits on liability they had in the compromise
because we were afraid that might offend powerful special interest
groups. But what we did in three of the six items mentioned is we
simply applied the principle that has been applied to every war this
Nation has ever fought: if you are producing a new vaccine or new
weapon or new system for use in that effort, there are some liability
limits involved. That is where the item of vaccines came from and where
the item of airport screening came from and the item on manufacturers
came from.
To suggest this is some special interest sweetheart deal makes good
political rhetoric, but the bottom line is it is not true. Not only do
the provisions fit, not only are they part of the fabric of the bill,
but we had a provision to have the taxpayer pay for the liability risk,
and we picked a better, preferable approach, which is to limit
liability when we introduce new technology like airport screening and
new vaccines. We always had some limit on vaccines because they are
risky, but the threat is now serious. It has never been relevant to a
war effort before because we have not viewed smallpox as being a
weapon. We do now.
In three areas our colleagues have singled out as being special
interests--vaccines, airport screening, and manufacturing of items used
in the war on terrorism--those items were in the Senate substitute, but
they were in it in the form where the taxpayer would have paid. We put
in simple limits that make sense and that have been part of every war
we ever fought of any significance in American history.
The next item viewed as being extraneous is a change made to the
Wellstone amendment. Senator Wellstone introduced an amendment adopted
by a voice vote because it was clear it would pass and nobody wanted to
vote on it. It said if any company has ever been domiciled in America,
throughout American history, and that company is now domiciled
somewhere else, that company cannot bid on contracts related to the war
on terrorism.
The change made in the amendment is a good government change. It is
not an extraneous special interest provision. It is simply a provision
that says the President, for national security reasons, has a right to
waive this requirement. Why would he do it? First, there might be only
one supplier. Second, there might be no competitor if it is not waived,
in which case you could end up paying an exorbitant price. Finally, it
might actually be better from America's point of view if the company
has substantial production in America, even though its home office is
somewhere else, for us to buy from that company for national security
reasons, for job reasons, and for economic reasons. That provision is
hardly an add-on provision. It is, in fact, a good government
provision.
Now, let me discuss transportation security rules. We know the
provisions and deadlines we mandated for air travel security are so
strenuous they cannot be met. Occasionally, we get into these
situations where we are debating some deadline and we know the deadline
cannot be met and will not be met, no matter what we write into law.
What this bill does in a careful and reasoned way is set out a new
deadline for meeting them, a deadline that can be met and that is
reasonable. Instead of creating a farce in law where we say something
will be done by December 31--and we know very well it cannot and will
not be done and, as a result, you get no pressure to do it on time--we
set a realistic deadline.
Next we have these advisory committees. If there is anything more
useless than an advisory committee, I don't know what it is. I am not
saying advisory committees cannot be valuable. I am not saying there
are not some that are valuable. But we use them so often they become
irrelevant. The striking or not striking of these advisory committees
has no import, no significance to this bill. If, however, by striking
the committee we change the bill and end up killing homeland security
because the House has adjourned, then it becomes very significant.
Those are five of the six items that have been listed. The final item
is the designation that a university be involved in the process. It is
one item where there is an earmark. Seldom do we see a major piece of
legislation that we do not have several dozen earmarks.
We are down to a simple question, and I will conclude on this. This
is hardly an unknown amendment. We have debated it for several weeks. I
know there are strong feelings on the issue, but we had an election,
and if anybody got a mandate out of that election on any issue, the
President got a mandate: Pass homeland security.
The House passed a bill. They negotiated with us in good faith. Was
everyone involved in the negotiations? No. But I didn't help write the
Lieberman amendment, either, because it was his amendment. We have
bipartisan effort. We have a majority vote. We are down, now, to where
an amendment has been proposed that would strike six provisions. I
believe if the amendment is adopted, it will jeopardize the bill. The
House passed the bill, they have gone home, and they are only going to
be back in pro forma session. Five of the six provisions represent
important elements in the bill.
To suggest trying to protect and encourage the production and
distribution of smallpox vaccine is a special interest favor to a drug
company is taking politics beyond the realm of reason.
On airport screening and manufacturer protection, this liability
protection is something we have done in every war we fought. This is
either a war or it is not a war. Should we start to buy from foreign
companies over companies that are producing products in America but the
headquarters was here in 1804 and it is now in London? I think we take
this Buy America stuff too far. We should buy the best product at the
lowest possible price that conforms with our national security. But to
give the power to waive it when our national security interest is
involved is hardly unreasonable.
Changing the deadline on airport security--every Member of the Senate
knows we are not going to meet the deadline. Why not change it?
Finally, advisory committees--who cares? You could strip all of them
out and I wouldn't care. But by stripping them out you are risking
killing the bill.
So, in the end, this amendment really comes down to a threat to the
passage of homeland security. Five of the six provisions are totally
defensible. The sixth one is important only if appropriations occur and
we are going to pass the appropriations later, so we are not committing
to anything.
Contrary to the criticism that there are extraneous materials in this
bill, there are fewer extraneous matters in
[[Page S11172]]
this bill than any major bill I have seen in many years. When you reach
an agreement between the two Houses, you are always going to have
extraneous material.
So, we will have a vote at 5 o'clock on Monday. First of all, I think
it is bad policy to strike these six provisions. I think no legitimate
case can be made against four of them. I think one of them is
irrelevant--whether we have advisory committees or not. I think the
other one is a small item in a big bill and I do not think it is worth
risking this bill to make that change. Nor do I believe this issue
would ever have been raised, that this amendment would ever have been
offered, had this not been an extraordinarily controversial bill to
begin with.
So I just have to say, in the big picture, I feel totally comfortable
in defending the great majority of these six provisions. I think we
need them. On substantive grounds, we should limit liability for new
vaccines that may save American lives; for airport screening equipment
that may keep our children, our spouses, or ourselves from being killed
on airplanes; and from new manufactured items and new weapons we need
in the war on terrorism. Those items should not be stricken.
I know special interest groups like the plaintiffs' attorneys are
opposed to these provisions. But they are limited, they are narrow,
they are reasonable, and the alternative, which we had in the Senate
amendment, was to have the taxpayer pay all these damages. So this
seems preferable to me.
I urge my colleagues when we vote on Monday to vote against this
amendment and, in the process, let us pass this bill in the form it
passed the House and, to the maximum extent possible, guarantee that we
are successful in seeing this bill become law.
I yield the floor.
The PRESIDING OFFICER (Mr. Leahy). The senior Senator from West
Virginia.
Mr. BYRD. Mr. President, I ask unanimous consent that my name may be
added as a cosponsor of the pending Daschle-Lieberman amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator's name is added as cosponsor.
The Senator from North Dakota.
Mr. DORGAN. Mr. President, it is a very special moment on the floor
of the Senate to hear my colleague from Texas defend special provisions
being put in legislation--actually to hear him describe the
negotiations at the end of the process that result in these special
provisions. Because he has been a tireless opponent of provisions that
are put in pieces of legislation that in most cases or many cases have
nothing to do with the underlying bill. So it is a real treat today to
hear my colleague from Texas justify and support and ask Members of the
Senate to support these special provisions that were put in the
homeland security bill which, in most cases, had nothing at all to do
with homeland security.
I must say, with respect to the issues of childhood vaccines
liability protection, manufacturer liability protection, transportation
security--I would wonder whether these have had hearings. Because we so
often hear our colleagues, especially my colleague from Texas, say: You
know, someone has put a provision in the bill. There has been no
hearing on the bill. I am wondering whether these provisions have had
hearings and discussion, and if there were negotiations, as was
represented earlier by my colleague, were the parents of autistic
children part of the negotiations? Where were the negotiations? Was it
late at night? Early in the morning? Was it at the White House, as
Congressman Armey would have us believe? I don't know the answer to
that. But my hope is our colleagues will vote to strip these provisions
from the bill.
Homeland security, that is what this legislation is about. Frankly,
the way this legislation has been created, it was not under normal
circumstances, where you have committee exploration in some detail and
some depth of all of these provisions. What has happened is at the
eleventh hour a piece of legislation is written and it is placed on
desks. It has a rubber band around it. It is four-hundred-and-some
pages and I know of very few Members of the Senate who would have read
all of it at this point.
But having heard my colleague from Texas, for whom I have great
fondness, describe his support for special provisions, especially at
the end of his career here in the Senate, I must say that this is a
very unusual moment. We will, of course, miss him for a lot of reasons.
Among other things, I will miss him because at the end of most bills,
he will be the one counted on to stand up and say: I object to these
special provisions.
But he seems to have hit a speed bump here at the end of the road, on
special provisions. I hope my colleagues will decide they want to vote
to strip these provisions out of this bill.
Mr. BYRD. Mr. President, will the distinguished Senator yield?
Mr. DORGAN. I will, of course, yield.
Mr. BYRD. I will only be a moment. The distinguished Senator from
North Dakota, Mr. Dorgan, has referred to the distinguished Senator
from Texas, Mr. Gramm. May I interpose this observation.
Diogenes went about the streets of Athens with a lantern, saying that
he was looking--in broad daylight--he was looking for a man, he was
seeking a man.
Plato, upon going to Syracuse, was asked by Hieron the--I wouldn't
say he was a beneficent dictator. But he was asked why he came to
Syracuse.
He said: I came seeking an honest man.
I rarely make the observation as a premise to what I am about to
say--I believe the Senator from Texas is not only a man, but is also an
honest man. He is very frank and open. He doesn't have to come to the
floor with written speeches as I often do. He speaks from the heart and
from the head and is very up front. He has always been that way. He
explains his reasons. He doesn't hide his reasons. And he will answer
your questions and he will answer honestly.
So I pay tribute to the Senator from Texas in that regard. I am glad
the distinguished Senator from North Dakota has given me the platform
for a moment to say that. We may not agree with the distinguished
Senator from Texas. I certainly don't agree with the request for some
of the special interest provisions here in this bill. But I do say here
is an honest man, as far as I am concerned. He is aboveboard. He will
answer your questions. He doesn't need a written speech to do it.
So I say I wish we had more Phil Gramms in the Senate. Excuse me for
taking this time. I will say no more, except to thank him for the good
relations.
Mr. GRAMM. Will the Senator yield for just 30 seconds? It is said, in
the old Confederate Army, that they didn't give medals.
So the single honor was to be mentioned in Robert E. Lee's
communiques to Richmond.
Having the distinguished Senator from West Virginia say something
about me and to pronounce me a honest man I take in the same way that
any private in Hood's brigade would have taken in the mention of their
name in one of those communiques.
I love the Senator from West Virginia, as he knows. I think he serves
a great purpose in the Senate. In my opinion, he is not always right,
but right is not always easy to find. I think it is the give and take
that ultimately produces it. Senator Wellstone, in my opinion, was not
always right, he did speak honestly and with clarity. And he knew where
he was coming from, and you could be for it or against it. I do think
that is important to the Senate.
I thank the Senator.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, the comment that not always right but
never in doubt may well apply to every Senator. I must say to my
colleague from Texas that I intend for a few moments on Monday to say a
word about the Senator from Texas, and my colleagues from South
Carolina and North Carolina, and others who are leaving the Senate. I
don't know if Senator Byrd indicated that he wished there were more
such as the Senator from Texas, and he is, indeed, an extraordinarily
bright and talented Senator. There are times at midnight when he is
objecting to all kinds of provisions that I suspect the Senator from
West Virginia and a few others would not wish that we had 25 more
exactly in the same mood at midnight on important pieces of
legislation. But he and so
[[Page S11173]]
many others contribute in very significant ways to this body.
This body produces for the American people best when it achieves the
best ideas that everyone has to offer. There are times when we end up
with the worst rather than the best. I have always thought that
politics and our political system is not who is the worst; it is who is
the best, who has the best ideas, and who can best manifest those ideas
in public debate to achieve a result for this country.
Regrettably, too much of American politics--especially if you are
coming off recent campaigns--is not at all about who is the best but
rather who is the worst. That, in my judgment, becomes an anvil on the
body politic. John F. Kennedy used to say with some beautiful prose
that mother kind of hopes her child might grow up to be President, as
long as they don't have to become active in politics. But, of course,
politics is the way we make decisions in America.
I am enormously proud of this political system of the participation
by Republicans, Democrats, Conservatives, Liberals, Independents, and
moderates. I think all bring a great deal to the public debate and
discussion, and strengthen our country.
Having said that, on Monday I will say a few words about our
colleagues who will be leaving us--Senator Cleland, Senator Carnahan,
and others who have been mentioned on the Republican side. I believe
that it is a great privilege to serve with each and every one of them,
even though we from time to time have our differences. It is a
remarkable privilege to be here and to serve with them.
I wish to make a point about homeland security that is not a part of
this bill but I think a part of something that is very important. To
underscore how important it is, I would note that we have been told by
the head of the CIA that the threat of attack by al-Qaida and other
terrorists now is as high as it was the day before September 11.
On October 25 of this year, a task force headed by former Senators
Warren Rudman and Gary Hart issued a report on America's homeland
security. That report was entitled ``America Still Unprepared, America
Still In Danger.'' It was a bipartisan task force sponsored by the
Council on Foreign Relations, which included former Secretaries of
State, Warren Christopher, George Shultz, ADM William Crow, Retired,
former Chairman of the Joint Chiefs of Staff.
They found that 1 year after the September 11 attacks America remains
dangerously unprepared for another terrorist attack.
I specifically wish to talk about one of their concerns raised in
this report that I read, which gave me great personal concern.
In the report, the task force concluded that the 650,000 local and
State law enforcement officials around the country ``continue to
operate in a virtual intelligence vacuum without access to the
terrorist watch list provided by the U.S. Department of State to
Immigration and consular officials.''
Our government has a watchlist to identify foreign nationals
suspected of ties to terrorist organizations. That watch list is at the
State Department. It is provided to the Immigration Department and to
consular officials. It sets out the names of people whom we ought to
watch because they are known terrorists. They are people who associate
with terrorists; they are a terrorist threat to this country.
Guess what. That watch list is unavailable to state and local law
enforcement officials around this country.
Thirty-six hours before the September 11 attack, one of the hijackers
was pulled over by a Maryland State police trooper for driving 90 miles
an hour on Interstate 95. The hijacker's name was Ziad Jarrah. He was a
26-year-old Lebanese national. He was one of the key organizers of the
al-Qaida terrorist cell formed in Germany 3 years ago. He shared an
apartment with Mohammed Atta. And he was at the controls of flight 93
when it crashed in a rural area of Pennsylvania.
When that hijacker--or at that point the potential hijacker--was
pulled over by the Maryland trooper, he was driving a car rented under
his own name.
There are a couple of things with respect to this issue that are
interesting.
No. 1, his name was not on the watch list.
No. 2, had it been on the watch list, it wouldn't have mattered
because a highway patrolman or a city police officer has no access to
that watch list. The officer can run the name of an individual through
the NCIC computer and find out if that individual has an outstanding
warrant, or if there are law enforcement warnings about him but the
officer has no way of knowing if the individual is on the State
Department terrorism watch list.
The State Department watch list has the names of 80,000 terrorists or
suspected terrorists on it. And 2,000 names are being added each and
every month. The watch list is drawn from a good many area intelligence
agencies. And as we speak, there is no way for law enforcement
authorities to access the database.
Let me read in detail an excerpt from the Hart-Rudman report:
`With just fifty-six field offices around the nation, the
burden of identifying and intercepting terrorists in our
midst is a task well beyond the scope of the Federal Bureau
of Investigation. This burden could and should be shared with
650,000 local, county, and state law enforcement officers,
but they clearly cannot lend a hand in a counterterrorism
information void. When it comes to combating terrorism, the
police officers on the beat are effectively operating deaf,
dumb, and blind. Terrorist watch lists provided by the U.S.
Department of State to immigration and consular officials are
still out of bounds for state and local police. In the
interim period as information sharing issues get worked out,
known terrorists will be free to move about to plan and
execute their attack.'
This comes from the report of former Senators Hart and Rudman,
entitled ``America Still Unprepared, America Still In Danger.''
I asked my staff--after I read this in the Report--to contact the
task force. The task force, through my staff, has told me that they are
not aware of any administration initiative to fix the problem. This,
despite the fact that this is a top recommendation of a blue-ribbon
task force.
So I asked the Congressional Research Service to contact the White
House Office of Homeland Security, the Department of State, and the
Department of Justice. They have done this in recent days.
My understanding is that after I made these inquiries the White House
convened a meeting with State and Justice officials, and they are now
apparently looking into ways to integrate the State Department
terrorist watch list--called the ``Tipoff'' database--with the National
Crime Information Center, which is accessible by State and local law
enforcement authorities.
This effort must be expedited. Let me quote from the article in the
Washington Post of just yesterday:
U.S. intelligence officials, increasingly confident that al
Qaeda leader Osama bin Laden is the speaker on a new
audiotape released this week, said yesterday that the message
was part of a disturbing pattern indicating that terrorist
groups may be planning a new wave of attacks on Western
targets.
Even before the purported bin Laden tape surfaced on the
al-Jazeera satellite network on Tuesday, the CIA, FBI and
National Security Agency had detected a significant spike in
intelligence ``chatter'' over the previous 10 days that
strongly indicated new assaults are being planned, officials
in U.S. intelligence agencies said.
That is from the Washington Post.
They continue to say:
The amount of alarming information was approaching the
volume seen in the weeks before the Sept. 11, 2001, attacks
in Washington and New York, and again in the middle of last
month following a wave of attacks on overseas targets, some
sources said.
The point is this: Homeland security and homeland protection rests,
yes, with our intelligence-gathering agencies, yes, with the FBI, the
CIA, and all of the officials who are working very hard, spending a lot
of hours doing the best job they can to make it work. But beyond that,
it also rests with cooperation with all of the local responders,
especially local law enforcement officials across this country. There
are 650,000 of them.
If, today, a terrorist drives through a rural county in North Dakota
this afternoon, or a rural county in Vermont, or Kentucky, or in the
middle of New York City, and is picked up for a traffic violation, and
is a known terrorist on a watch list--guess what--
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that highway patrolman, that city police officer is going to run that
terrorist's name through the database at the NCIC, and they are going
to get no warning that what they have on their hands is a terrorist in
the car in front of them. There would be no warning at all because they
cannot access the watch list.
If we have a watch list in which we have identified the names of
terrorists and suspected terrorists, it makes no sense at all to
withhold that information from law enforcement officers, who every
single day climb out of bed and go protect this country on America's
streets, on our highways. They are our eyes and ears. They are also
watching out for the security of this country. They ought to have
access to that watch list.
Again, let me say, this was the No. 1 recommendation in the report
offered by former Senator Rudman and former Senator Hart. The report,
which I would urge everyone to read, is entitled: ``America Still
Unprepared--America Still in Danger.'' These are former Secretaries of
State, former Senators, Republicans, Democrats, evaluating what needs
to be done to protect this country for this country's security.
I want to go back to read just a portion of the report. The task
force had this to say:
With just fifty-six field offices around the nation, the
burden of identifying and intercepting terrorists in our
midst is a task well beyond the scope of the FBI. The burden
could and should be shared with 650,000 local, county, and
state law enforcement officers, but they clearly cannot lend
a hand in a counterterrorism information void.
Yesterday, I was on the phone with a community in North Dakota, and
the county sheriff was there in the room, and we talked by conference
phone. We talked about this issue. He is not too far from the Canadian
border. If one of his deputies or that county's sheriff stops a car on
a rural highway, and it turns out to be a terrorist driving a rented
car, he is not going to know because he does not have access to the
watch list, he does not have access to the information. The FBI will
not know, the CIA will not know, no one will know that terrorist was
driving a car on that rural road because the person who apprehended
him--the county sheriff, the city police officer--had no access to the
information the State Department has, the consular officials have, the
CIA has. It is not that the information does not exist, it is that it
is not shared with local law enforcement officers across this country
for the purpose of securing this country's homeland.
So this was the task force's top recommendation. This was not No. 5
or No. 10, it was the top recommendation of this group, a group that
included several former Secretaries of State under Republican and
Democratic administrations, Republican and Democratic former Senators,
and others.
So I implore the President and the folks who are apparently now
working on this to do everything they can in this regard. When a
trooper stops someone for speeding tomorrow, or the day after tomorrow,
or the day after that, and the individual that was pulled over is a
terrorist, I want that trooper to realize who he has in that car--for
the trooper's protection, and for the protection of this country.
Let me talk briefly about one other piece of homeland security, and
we addressed part of it yesterday.
I have told my colleagues previously, I was recently at a port in
Seattle. I don't know much about ports because I come from a landlocked
State. I don't come from a State near an ocean. So I went down to see
how the ports worked. They showed me all these ships that come in with
all these containers.
I asked: What is in all these containers? They said: We have all
these bills of lading and invoices, so we know what is in them. I
asked: Can I see? And they showed me some containers they were opening.
They showed me a container from Poland that had frozen broccoli in it
in 100-pound bags. They pulled out a bag of frozen broccoli and cut it
open. Sure enough, it was frozen broccoli. I asked: What is in the
middle of the container? I know what is in this bag. And they said:
Well, we just know what's on the invoice.
We are spending $7 to $8 billion to see if we can stop an incoming
missile because we are very afraid a terrorist group might get hold of
an ICBM. But it is more likely a terrorist group might put a weapon of
mass destruction in a container on a container ship that comes in at 3
miles an hour pulling up to a dock in New York City or Los Angeles.
We have 5.7 million containers every year coming into our ports. So
5.7 million containers every single year; 100,000 are inspected, 5.6
million are not. Is that a matter of homeland security? You bet your
life it is.
A fellow in the Middle East--many of you read about this fellow--
decided he was going to ship himself to Toronto and then come into this
country. He had a GPS, a computer, a toilet, fresh water, a cot, all in
a container loaded on a container ship, shipping himself to Toronto,
Canada, with the intention, apparently, of coming into this country.
Do we need to be concerned about these things? You better believe it.
And many of these issues, even if we passed a homeland security bill,
will not be resolved.
The first issue I mentioned today is not resolved, and will not be
resolved with the passage Monday of this bill: The fact that 650,000
local law enforcement authorities have no ability to access a watch
list to determine who is a terrorist and who isn't. And 5.6 million
uninspected containers coming into our ports will not be inspected next
Tuesday when the homeland security bill is passed.
So my point is, there is much left to be done for those of us--and I
am sure that is all of us--who care deeply about homeland security in
this country.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New York was on his feet. I
know the Senator from Tennessee is waiting.
Mr. SCHUMER. If the Senator will yield, I was waiting behind the
Senator from North Dakota, Mr. Dorgan. If we are going back and forth--
I only want to speak for about 10 minutes.
Mr. FRIST. Mr. President, I sought recognition first.
The PRESIDING OFFICER. There is not a particular order. The custom is
usually to go back and forth from side to side. I am wondering if we
might recognize the Senator from Tennessee, to follow the normal
custom.
Mr. FRIST. Normal procedure would be to turn to me?
The PRESIDING OFFICER. I am sorry. I heard the Senator from New York,
but if the Senator from Tennessee says he sought recognition earlier,
then I will apologize for not hearing him.
Mr. FRIST. Mr. President, I would be happy to yield, although I felt
I was--
The PRESIDING OFFICER. The Chair recognizes the Senator from
Tennessee.
Mr. FRIST. Mr. President, I will yield 10 minutes to the Senator from
New York. Is that enough time?
Mr. SCHUMER. I appreciate it. I don't want to break the protocol.
The PRESIDING OFFICER. I am prepared to recognize the Senator from
Tennessee.
The Senator from New York.
Mr. SCHUMER. I thank the Senator from Tennessee.
The PRESIDING OFFICER. I thank both my colleagues for helping the
Chair out of a difficult situation.
Mr. SCHUMER. Let us hope and pray that is the Chair's most difficult
situation in the upcoming months.
I thank the Senator from Tennessee for allowing me to speak. I will
try to be brief. I would like to talk about two related subjects in
this bill: What is in the bill and what is not in the bill.
What is in the bill, aside from the original homeland security
provisions which we have been debating for a very long time, are little
pieces of legislation unrelated to homeland security, none of which
could stand the scrutiny of individual debate. In other words, if any
of these little provisions were put in separate legislation and brought
to the floor of the Senate, my guess is they would be overwhelmingly
defeated.
For those to be in homeland security right now, for those pieces of
pork, for those rifleshot pieces of legislation that benefit one
company to be in this bill, particularly after the President made such
a fuss about keeping this bill the way he wanted it without any other
provisions in it, is very wrong.
[[Page S11175]]
I hope we will support the Lieberman amendment. There are a few that
are particularly galling to me. Probably the worst is a provision in
this bill that was in the original bill that the House just took out
that said, if you go overseas to avoid paying taxes, the original
provision said, you can't bid on homeland security contracts. This
takes it out. It says to companies that move overseas that they can
benefit from the homeland security issues. I find that very troubling.
There is a provision that exempts one company, Eli Lilly, from any
liability against a drug that is already subject to many lawsuits
because of its mercury levels. That kind of provision would never pass
standing on its own, and it was slipped in in the dark of night by the
other body. We should not countenance it here.
There are provisions that redebate the tort law. We will have plenty
of debates about tort law next year; I am sure of that. But to put them
in this legislation with no debate would make the Founding Fathers gag.
We should stop doing these things, but particularly in a homeland
security bill that was so subject, in the election, to a debate that
the President wanted it his way or no way and led, at least if you
believe some of the pundits, to some of our colleagues losing their
elections because they wanted it a slightly different way. Now to put
these sometimes pork, sometimes lard, sometimes extraneous provisions
in this legislation is unfair, is wrong. We should support the
Lieberman amendment.
I also would like to talk about what is not in the bill. This bill is
a reorganization of agencies. All things being equal, it is better than
not having it. But anyone who thinks, as my colleague from North Dakota
has outlined, that this is going to make us safer, this is going to do
the job, is sadly mistaken. I will support the legislation because it
is a little bit better than the present situation. But I am worried
that then we will think we have done all we can on homeland security.
This administration is letting our Nation down on domestic security--
not by design but by effect--when they say that nothing can be added to
homeland security that costs money. I don't get it. We are willing to
spend $80 billion on a war in Iraq which I have supported, but we are
not willing to spend $250 million to prevent nuclear weapons from being
smuggled into our country. Where is the logic there?
Does anyone think that rearranging agencies is going to get the INS
to have better computers or the Coast Guard to better defend our
borders? No. And this administration is going to run up against a
serious problem if it continues to have the view that we cannot spend a
nickel on domestic security. The analogy, the comparison is stark. The
military gets all the money it needs--it should--but our domestic
agencies, both Federal and State and local, that deal with homeland
security get virtually no dollars at all.
I was told that my provision, which had bipartisan support--Senator
Lieberman, Senator Thompson, Senator McCain, Senator Hollings--that
would have enabled us to have nuclear detection devices attached to the
cranes that load and unload containers and could detect a nuclear
weapon that would be smuggled in, had to be out of the bill because it
cost money. I find that to be sad. I find that to be troubling in the
sense that we are letting our national guard down. If we were under
such spending constraints when it came to the rest of the parts of the
war on terrorism, I would say OK. But I don't understand why we can
spend all the money we want overseas but when we come to the water's
edge, even carefully thought out small amounts of money are not
allowed.
This bill is problematic for what was just added in and what was not
put in. It is a little bit better than nothing. It is a baby step in
the direction of better homeland security because our agencies do have
to be reorganized. But I hope and pray that not only we take out the
extraneous provisions that should be debated another day, but that we
don't make the mistake that this reorganization bill is doing what we
need for homeland security.
With that, I yield the remainder of my time and once again thank my
colleague from Tennessee for his graciousness in allowing me to speak.
I will now exit for the shuttle to New York.
The PRESIDING OFFICER. The distinguished Senator from Tennessee is
recognized.
Mr. FRIST. Mr. President, I rise to speak in opposition to the
Lieberman amendment and will spend a little bit of time over the next
probably 30 minutes going to the substance of what this amendment does,
talking policy, but also talking to the impact that passing the
Lieberman amendment would have on our homeland security.
The bottom line is that I believe striking the provisions, which is
what the Lieberman amendment does--it pulls out certain provisions from
the underlying bill--will put the people of our Nation at greater risk,
when we are talking about homeland security and safety and protection
of individuals, of families, of children. That is a broad statement. It
is a bold statement for me to make. But over the next several minutes I
want to give you the substance of it.
A lot of people have said these provisions having to do with vaccines
and smallpox are one-company provisions. The second argument is that in
some way these provisions cut off the rights of individuals to go to
court. We have heard statements by the proponents that one agent, one
preservative, causes autism and thus in some way the underlying bill
will hurt families with children with autism.
As a scientist, as a physician, as someone who is very familiar with
the provisions that were placed in the homeland security bill, I have a
certain obligation to walk my colleagues and the American people who
are listening through what the Lieberman provision would do by
stripping out the smallpox provisions, by stripping out the vaccine
provisions.
Let me begin by saying we are a nation at risk. We are at risk from
nuclear weapons and from chemical weapons; we know. But when it really
comes to what could potentially happen to our homeland--remember this
is homeland defense that we are talking about--I would argue that the
greatest risk for a weapon of mass destruction to be microorganisms, to
be anthrax, which terrorized the Nation, when we don't even think, we
don't know, we don't think it was used by a State, or the introduction
of smallpox, which we know is a weapon of mass destruction, if
introduced into a population that is unprepared, that has not been
vaccinated. Vaccine is the front line for people at risk from anthrax.
It is the front line for people at risk from smallpox. That means your
children. That means your spouse. That means your grandparents. That
means your family.
So we must not do anything and the Lieberman amendment would do
this--to increase the barrier for you to be protected.
Iraq has been mentioned. Most of my colleagues know that Iraq had one
of the most robust biological weapons programs in the history of the
world. It loaded anthrax, it loaded botulism toxin on missiles during
the gulf war, inserted it into the warheads of these missiles. We don't
know about smallpox. We didn't know that refrigerators had been found
in Iraq that said ``smallpox'' across them, but we do know this robust
biological weapons program is the foundation for a program of weapons
of mass destruction.
The interesting thing about these microorganisms, these viruses,
these bacteria, is that you don't have to have a big ship out there to
send in a missile. We know that once you put smallpox in a society, it
will travel through our schools, it will travel through our businesses
and through our homes, and the only defense we have--the only defense,
in terms of a medical treatment, is that vaccine. That is why, when we
talk vaccines and when we talk smallpox, it is incumbent upon us to
have those provisions in this bill.
I will begin with smallpox because it is the one that, a week from
now, can be a problem. What about right now, or tomorrow morning, if we
hear of three or four smallpox cases in the country? What actually
happens at that standpoint? Smallpox is a disease that is one of the
most deadly infectious diseases. There is a 30-percent chance, to
anybody who gets it, that they are going to die. If three people are
here, one of those three will die if they get smallpox.
What is the treatment? The only treatment--real treatment--is to get
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that vaccine on your arm within 3 days. Some people say 4 days. I
personally think it is 3. Some say 5 to 10, but if your child has
smallpox, not from when the manifestations start appearing but from the
time of actual contact, and that entails having a vaccine out there--
say 300 million doses, because we know smallpox in an unprotected
population, which we are, knows no barriers. Right now, if I had
smallpox lesions within my mouth, people around these four or five
desks probably would already be infected. The only protection is the
vaccine itself. The only treatment for smallpox--and this isn't true
with all biological agents, but the only treatment is the vaccine
within 3 days.
The administration has a policy, that I agree with, that basically
is, if there is an outbreak, or a case, you can inoculate people in
that area. That is a great policy. We don't need to mass-vaccinate
everybody. What about right now?
People listening, saying we are a nation at risk--Iraq has had
biological weapons programs. We know Saddam Hussein is a mass killer, a
serial killer, who kills his own people and other people. He hates the
United States. We know the most powerful weapon of mass destruction is
smallpox, and we know there is a refrigerator sitting there that has
``smallpox'' written on it.
What if I wanted to get the vaccine now, just in case? Right now, you
cannot get it. I argue that you should be able to get it. But that is
not yet the policy of the United States. I think with informed consent,
knowing the side effects and knowing what the advantages could be--
lifesaving--weighing the relative risk--what about if a case breaks out
in the Northwest, say Oregon, tomorrow? If you wanted to get the
vaccine and you live in Nashville, TN, you could not get it. We ought
to change that. That is not what we are talking about today, but you
see that vaccines are a front line for homeland security.
I don't know what is going to happen in Iraq; none of us knows. If we
come back and deal with this 6 months from now, or a year from now, or
2 years from now, we are inadequately protecting the American people. I
don't want to overstate it, but that is my belief.
If smallpox hits here, right now, we are inadequately protected. The
Lieberman legislation would strip out a provision, within 2 days or 3
days or 4 days, that would make us more adequately protected as a
nation.
The threat of liability--this is where the other vaccine provisions
are important--should not become a barrier to the protection of the
American people. I will repeat that. The threat of liability should not
become a barrier to the protection of the American people.
Then you go back to the question, What is this threat of liability? I
will boil it down and use smallpox as an example. Smallpox can hit here
tomorrow or in 30 days or in 60 days from now or in 90 days or maybe
never. We all pray it never hits. We have 300 million doses of vaccine.
It is not all licensed yet, but it is good vaccine and I have utmost
confidence in it. It is a risky vaccine. The childhood vaccines we use,
which we are inoculated with--even the anthrax vaccine that potentially
has certain side effects--if you look at these, I put smallpox among
the most risky because we know the side effects are that about 1 in a
million people would die. If you vaccinated 300 million people, about
300 would die. Ten times that number would have serious side effects--
maybe encephalitis or many others that are life threatening. As a
matter of fact, probably 30, 40 times that many would have a bad rash,
many of which would cause hospitalization. So it is a vaccine, in
medical terms, with more potential side effects than others.
What would you say if there were an outbreak tomorrow? You would call
in nurses and public health officials, and pediatricians and other
doctors, and you would say, as part of the American response to
bioterrorism and the use of bioterrorist agents or microorganisms as
weapons of mass destruction, you need to get this vaccine to as many
people as you can within 3 days. It could be maybe 100 or maybe 1,000,
or 10,000; and in a city such as New York, it could be a million easily
within 3 days. Okay, you have the vaccine. You have willing health care
providers. I think of myself as a physician. Everybody could be
mobilized to do that. You are basically saying, as American policy: You
need to give that vaccine. It has side effects, but we are not going to
protect you in the event there is a side effect--death or encephalitis.
We are not going to protect you in any shape or form, although you are
fulfilling the mandate and the policy, the emergency response of the
American people.
Why would they not do that? Because of the lack of protection from
skyrocketing lawsuits. I have a great fear--and I don't want to say I
know for sure, but I have a fear in talking to health care providers
and to the nurses who recognize, given that vaccine is important to
life saving, but at the same time is subjected to these unlimited
lawsuits with punitive damages--they just might say: I cannot subject
myself to giving a thousand of those doses, even looking at the
statistics. That is the problem, that is why the smallpox provision has
to be in there.
We have had so many people make all these statements, but nobody has
been to the substance. The bill extends the Federal Tort Claims Act--
the FTCA--protection to any person, such as a doctor, or a
pediatrician, or a nurse, or somebody who is qualified to be giving
that inoculation, lifesaving inoculation, in your arm. It provides them
a protection of the Federal Tort Claims Act.
What is important there--people say if that is the case, you cannot
sue. Well, that is simply not true. It basically says that the Federal
Government is going to be on your side and will defend you in any
lawsuit and the Federal Government will pay the damages. It does not
deny adequate, just, fair compensation if there is a side effect, but
what it does do is you are going to have somebody behind you; namely,
the Federal Government, to pay you damages. It does say you go to
Federal court. People say Federal courts cannot do this. In truth, we
all know Federal courts can do that.
It is important to point out that in Federal court, the rules that
are actually used are going to be applicable to that State or according
to State law.
Thus, you can still sue, but the Federal Government pays. A lot of
people say you should be able to punish anybody--punish that nurse who
put that vaccine in your arm--so let's have punitive damages on top of
compensation. The underlying bill says you get adequate, just, fair
compensation. You are defended by the Federal Government and they will
pay you, but there is no punitive damages component, which makes sense
because, remember, that nurse is putting that inoculation on your arm
to save your life under a plan put forward by our Government, probably
in response to an emergency.
Over time, I think we need much more balance in terms of the overall
provisions. It was not my idea, although I support these provisions
strongly, to take these specific provisions out and to put them into
the bill. So over time, we need to develop a more comprehensive policy
to make sure we have both a full range of vaccines developed, that we
have appropriate countermeasures, and if somebody is harmed by a
vaccine, there is fair compensation.
We need to come back and visit this in a more comprehensive way as we
go forward. I will add, though, there is some sense of urgency to this
given the threats today.
The issue of what is front line is important because the use of
germs, microorganisms, and bacteria is new to the American people as
weapons of mass destruction. It is causing us to say we understand
nuclear weapons, gas, but what about these organisms that can wind
their way through a society? What is the front line?
That is why vaccines are absolutely important because they become the
front line, and that is why we address vaccines in the homeland
security bill, especially since we are at risk today. One cannot turn
on a television or read a newspaper without learning of this enhanced
risk, this higher risk.
Let me back out of this broader issue of vaccine. Smallpox is one
case. It happens to be a virus. What about the plague which wiped out a
third of Europe? What about anthrax? We have an old vaccine. The
vaccine has to be administered over and over, so we need newer vaccine
developed for anthrax.
[[Page S11177]]
What about Ebola? About 3 months ago, the National Institutes of
Health said in their response to bioterrorism that one of its major
priorities is going to be the development of a vaccine for the Ebola
virus. That makes sense because we know that other states in their
offensive biological weapons programs--and there are 12 offensive
biological weapons programs outside the United States; people need to
know that--there has been a linkage of smallpox with the Ebola virus.
We know Ebola has a 90-percent mortality rate; smallpox has a 30-
percent mortality rate. We should at least be thinking of a front line
there which means a new vaccine. NIH said 4 months ago--and most people
do not even know it--has as one of their major initiatives development
of an Ebola vaccine. Why? Because intelligence tell us people have
attempted to link viruses. Thus, we need to have an effective response
system in terms of the development of vaccine.
Research is good. NIH is doing research. But unless we have
manufacturers in the field manufacturing vaccines, we can have the
greatest research in the world and know how to do it, but unless we can
produce it and produce it quickly, the know-how does not do us any good
because we are not going to be able to develop the vaccine to put on
your arm and protect you from the Ebola virus.
There are provisions in this bill that provide smallpox as a
microcosm, but in the macro sense, there are other vaccines. Every
year--and the distinguished Presiding Officer knows this--we hear about
these shortages of vaccines about every 6 months. People ask: Why are
there these shortages? It is multifactorial, and we have to address
that.
One of the issues we know is this unlimited liability. Think back to
the smallpox vaccine. It is put on your arm, and you have a bad side
effect. Somebody is going to sue for that side effect. There are no
protections today. In the same sense, the manufacturers, the
pharmaceutical companies, which is very popular for people to beat upon
aggressively these days, the manufacturing companies, the
pharmaceutical companies are the only ones that can make the smallpox
vaccine, the front line for that weapon of mass destruction, for the
Ebola virus.
We can, through NIH, promote the research, but only a manufacturing
firm, a pharmaceutical firm can make the Ebola vaccine. There used to
be in the eighties 12 pharmaceutical companies making vaccines. Then it
dwindled to 10, then to 8, then to 7, then to 6, then to 5, and there
are now only 4 vaccine manufacturers licensed to sell vaccines in the
United States, and only two of these are American companies.
Why is that the case? Why would they stand out totally exposed for
making a medicine that is lifesaving, yes, but one that with one
lawsuit can wipe out their whole development process, their whole
manufacturing process today?
That is an issue that has to be developed, and the urgency of it is
the fact we are a nation at risk from biological agents, and there are
12 states that have offensive biological weapons programs, and we are
today unprotected.
On the liability issue, people have said one preservative causes
autism. They mentioned this on the floor. That is just wrong. The
Institute of Medicine has made it very clear that there is no
established causal relationship between that preservative and autism. I
will and others need to go back and look at the data, but the Institute
of Medicine has basically said that to date. We need more research.
I was one of the primary authors of the autism research bill. We need
to look at it again. I want to assure families in the country that
those statements made on the floor of the Senate are wrong. There is
nothing in the underlying bill that slows down research for autism or
just compensation, if there is an association between autism and a
certain preservative.
It is interesting, with these vaccines being sort of inherently
risky, with the risk of liability costs driven up so high because it is
easy--it is not easy, but we can have lawyers coming in and starting
these lawsuits.
In the 1980s, this body started the Vaccine Injury Compensation
Program. They did this through the National Children's Vaccine Injury
Act. It was passed in 1986, I believe. The whole purpose of this
program is to provide injured patients compensation while attempting to
control litigation, based on the recognition that vaccines will always
be an easy target because they have inherent side effects and everybody
gets vaccines--everybody in this body has been vaccinated. Everybody
listening hopefully has been vaccinated. We all depend on those
vaccines. That at the end of the day, since everybody gets it and there
are certain side effects, that if you want to make a lot of money you
can go out and start getting these people and start creating these
lawsuits. That is why in the mid-1980s we said we have to put all of
this together and look at it in a reasoned way, a way that is
efficient, a way that is fair to people broadly. The vaccine injury
compensation program is essentially a no-fault alternative to the
traditional tort system in this whole area of vaccines. It has been a
key component of stabilizing the vaccine market, of not driving even
those last four companies--or the last two in this country--out of
making vaccines. It has a streamlined process. It puts down a less
adversarial alternative so not everybody is going to court and spending
weeks, months, and in some cases years trying to have their cases
actually looked at.
It encourages research and development of new and safer vaccines, and
it provides the appropriate liability protection to that nurse who is
putting that inoculation, that vaccine, in your arm, as well as the
health care providers, the facilities, and the manufacturers.
What is in the underlying bill is a narrow set of provisions that
were actually taken from a bill that I have studied for the last 3
years and that I introduced this Congress, that should eventually be
passed in this comprehensive form, but the provisions have been taken
out and included in the underlying bill I feel strongly about and I
will continue to talk to my colleagues about them individually as they
understand why those provisions were included.
I will say that the provisions that are in the bill are far narrower
than what I think we actually need to do to have this balance in our
liability system so we can continue to develop vaccines to protect our
children, the current generation. In the event there is a bioterror
attack a week from now, a month from now, a year from now, we will be
adequately prepared.
The Lieberman proposal would strike these sections that are in the
underlying bill. And all of them merely restate to some extent what was
intended by Congress. This is a clarification, a restatement. In 1986,
when it passed the bill, the underlying bill called the National
Children's Vaccine Injury Act, what that act did was to create an
administrative mechanism by which those children who have a serious
side effect from a vaccine can receive compensation without ever having
to prove in court a vaccine caused their particular injury. So you do
not have to go to court. You can go to this new administrative body.
There are a handful of people who do not believe in vaccines. They
just say all vaccines are bad. Most know that they are invaluable and
have spared our children from many of the diseases that haunt us. Thus,
when you have that which we all really fully understand today, that
they are a protection for our children, plus this new threat of
bioterror, that is why you link it to homeland security and that is why
it is important in this bill. We know we must preserve that
manufacturing base so with the research that is done, yes, by the
pharmaceutical companies, but also maybe even more importantly by the
NIH, we can actually manufacture those vaccines.
Section 171 clarifies that the components and ingredients of a
vaccine listed in the vaccine's product license application and label
are not contaminants or adulterants. Importantly, the advisory
committee, from which all of this essentially was taken, is an advisory
committee called the Advisory Commission on Childhood Vaccines. They
unanimously concur with this particular provision.
The next section, section 1716, adds a definition of ``vaccine'' to
the Public Health Service Act since that term was not defined at all in
the initial legislation back in 1986. This section states
[[Page S11178]]
the obvious--that the term ``vaccine'' includes all components and
ingredients listed in the vaccine's product license application and
product label. Again, the Advisory Commission on Childhood Vaccines
recommended the appropriate modification which is a part of the
underlying homeland security bill, again, which the Lieberman amendment
would strip out.
Sections 1715 and 1716 restate the original intent of the law that a
vaccine is all the ingredients and components in the product which are
approved by the FDA. This is an important one because there have been
some allegations that all this was stuck in for a single company. The
fact is that there are presently more than 150 of these lawsuits
against the four vaccine manufacturers, as well as pediatricians,
children's hospitals, state health departments and other healthcare
providers. From my comments, one can see that it is not a single
company. We are talking about a huge issue that reflects back to the
protection of our families and our Nation.
Section 1714 clarifies that the term ``manufacturer,'' under the
VICP, includes any corporation, organization, or institution that
manufactures, imports, processes or distributes any vaccine on the
vaccine injury table, including any component or ingredient of such
vaccine. The Advisory Commission on Childhood Vaccines, again, an
independent body making specific recommendations--it is composed, by
the way, of trial lawyers, medical providers, and injured parties--
unanimously supported this provision. This provision restates
Congressional intent to ensure that any lawsuit alleging vaccine-
related injury or death follow the same process and groundrules
regardless of whether it is against the final manufacturer, a physician
or hospital, or a component or ingredient manufacturer and addresses
those lawsuits seeking to circumvent the Vaccine Injury Compensation
Program.
I also want to point out that these provisions are supported by the
American Academy of Pediatrics, and I will talk more about that in a
minute.
I want to run through a couple of other specific ones, again because
nobody has really talked to the substance underlying what this
amendment would mean.
The congressional intent very much was to encompass the manufacturers
of component materials of vaccines in the definition of ``vaccine
manufacturer,'' and these provisions--what they do is clarify this
intent. They restate the congressional intent as part of the Vaccine
Injury Compensation Act. The courts are presently correctly ruling that
these amendments--what they are doing is part of that congressional
intent. The courts have correctly rejected the contention that a
component or ingredient of an FDA-approved vaccine can also be
considered substitute an adulterant or contaminant.
Among these decisions, the court charged with adjudicating the
vaccine injury compensation program recently concluded that the
language and legislative history of the National Children's Vaccine
Injury Act demonstrated that claims relating to components of covered
vaccines are plainly subject to the act. As to the misconceptions that
have been presented on the floor, No. 1, these provisions do not
prevent patients from suing in court. The statement has been made that
it takes away rights. It does not. It does not prevent patients from
suing in court. Instead it merely requires, as is required under
current law, claimants must first go through the compensation program
designed in the 1980s which has worked effectively but does need to be
modified, as is being carried out in these provisions. They maintain
their right to pursue a court case.
One can go through that program itself, the administrative program,
in a timely way. If someone does not agree with the compensation that
they put forward, they can go to court. I will say that without this
clarification, litigation outside the program--and that is what is
happening today--will continue and the supply of vaccines could well be
jeopardized as we have these huge lawsuits.
One lawsuit today is $30 billion. That is what they are looking for
in one lawsuit, $30 billion. The whole vaccine industry is only $5
billion. There are about 150 of these lawsuits out there today. Those
who desire to bring litigation outside the compensation program will
continue to sue the manufacturers of components of vaccines and
ultimately that is going to result in the manufacturers of the products
themselves simply walking away and not making vaccines and getting out
of the vaccine business. Then who is going to make the vaccine for the
Ebola virus, which our Federal Government, through intelligence, has
identified as one of the six agents of which we are at risk, one of the
six agents against which other nations have had offensive biological
weapons programs.
If litigation continues against component manufacturers outside of
the vaccine injury compensation program, those companies that make the
components simply are going to be unnecessary to provide the vaccine or
those people who make FDA-approved components and give them to the
vaccine manufacturers will stop making those components. We saw that in
the mid-1990s when raw material suppliers refused to sell the necessary
components to the medical device manufacturers. People just stopped
making materials there because of this fear of litigation. Ultimately
there it took an act of Congress to protect those component
manufacturers, the people making the pieces that go, for example, into
a pacemaker or, in this case, it would be a component of the vaccine.
It took an act of Congress to prevent a shortage back then of
pacemakers and of other vital medical devices.
These provisions that are in the underlying bill have been
unanimously supported by the Advisory Commission on Childhood Vaccines.
As I mentioned, that includes injured patients, trial lawyers, and an
expert group of patients as well. They have been endorsed by the
American Academy of Pediatrics.
I ask unanimous consent to have a portion of letters from the
Advisory Commission on Childhood Vaccines and the American Academy of
Pediatrics printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Advisory Commission
on Childhood, Vaccines,
Alexandria, VA, June 19, 2002.
Hon. Tommy G. Thompson,
Secretary of Health and Human Services,
Washington, DC
Dear Secretary Thompson: The Advisory Commission on
Childhood Vaccines (ACCV) is authorized under Section 2119 of
the Public Health Service Act to advise the Secretary of
Health and Human Services (the Secretary) on the
implementation of the National Vaccine Injury Compensation
Program (VICP). At the June 6 meeting, the ACCV discussed in
detail the need for urgent modifications of the VICP and the
necessity to ensure the viability of the Vaccine Safety
Datalink Project. Actions are needed to address a variety of
concerns that directly impact the VICP.
Background
As of May 2002, more than 50 individual and class action
lawsuits with millions of plaintiffs alleging potential
thimerosal-related injuries from childhood vaccines have been
filed in state and federal courts. The plaintiffs in these
lawsuits argue that their claims are not governed by the VICP
because they allege that thimerosal is an ``adulterant'' to,
and not a part of the vaccines. These claims have been filed
against vaccine companies and, in some instances, against
health care providers. Thimerosal, as you know, is approved
for use by the Food and Drug Administration and is part of
the vaccine formulation when licensed; hence clarification is
needed to direct these claims to the VICP before tort
remedies can be pursued.
Concurrently, some 500 incomplete cases have been filed as
placeholders with the VICP alleging that thimerosal (mercury)
has caused vaccine-related injuries. The medical records that
the Act requires upon filing do not accompany many VICP
petitions, including these cases. This causes problems
because of the time constraints spelled out in the Act. The
presiding special master must generally resolve a case within
240 days (this period excludes any period of suspension and
any period during which a petition is being remanded). If the
special master fails to issue a decision within such time,
the petitioner may withdraw from the VICP and pursue outside
litigation without affording respondent or the special master
any meaningful opportunity to evaluate the VICP claim.
the ACCV believes this disturbing new mend in civil litigation could
circumvent the Act
We submit the following recommendation for action:
recommendation on certification of completeness of petitions
The ACCV recommends that the Secretary propose legislation
to amend the National Childhood Vaccine Injury Act of 1986,
as amended, to require special masters to issue a certificate
of completeness once a determination is made that a petition
is complete in accordance with section 2111. The time period
described in sections 2112(g) and 2121(b) of the Public
Health Service Act would begin from the date the special
master issues
[[Page S11179]]
a certification of completeness. This would allow for a
period of 240 days excluding any period of suspension of any
time the petition is on remand) for the parties to consider
all of the evidence and for a decision to be reached. If the
special master fails to issue a decision within this time
period, calculated from the date the certificate of
completeness is issued, the petitioner could withdraw from
the VICP and pursue outside litigation.
senator frist's bill
In addition to the previous request, we also ask that you
consider our recommendations regarding legislation introduced
by Sen. William Frist (R-IN), ``Improved Vaccine
Affordability and Availability Act'' (S. 2053). The ACCV
concentrated on Title II of the bill that has provisions to
ensure that all claims for a vaccine-related injury or death
are first filed with the VICP. The ACCV makes the following
recommendations:
recommendations on the ``improved vaccine affordability and
availability act''
The ACCV unanimously concurs with the following sections of
S. 2053 which are the same as or very similar to proposals
made in the ``Vaccine Injury Compensation Program Amendments
of 1999'' (the 1999 Amendments), which were developed from
recommendations made by the ACCV and sent to Congress as
legislative proposals by the former Secretary:
Section 206, ``Clarification of When Injury is Caused by
Factor Unrelated to Administration of Vaccine'';
Section 208, ``Basis for Calculating Projected Lost
Earnings'';
Section 209, ``Allowing Compensation for Family Counseling
Expenses and Expenses of Establishing Guardianship'';
Section 211, ``Procedure for Paying Attorneys' Fees'';
Section 212, ``Extension of Statute of Limitations'';
Section 213, Advisory Commission on Childhood Vaccines'';
and
Section 218, ``Conforming Amendment to Trust Fund
Provision.''
The ACCV unanimously concurs with the following sections of
S. 2053:
Section 204, ``Jurisdiction to Dismiss Actions Improperly
Bought'';
Section 215, ``Clarification of Definition of
Manufacturer'';
Section 216, ``Clarification of Definition of Vaccine-
Related Injury or Death'';
Section 217, Clarification of Definition of Vaccine''; and
Section 220, ``Pending Actions''.
The ACCV does not concur with the following sections of S.
2053 and recomends:
Replacing Section 201, ``Administrative Revision of Vaccine
Injury Table'', which changes the public comment period from
180 to 90 days with Section 2, ``Administrative Revision of
Vaccine Injury Table'', of the 1999 Amendments which changes
the public comment period from 180 to 60 days and shortens
from 90 to 60 days the period that the ACCV has to review a
proposed rule;
Modifying Section 202, ``Equitable Relief'', and Section
214, ``Clarification of Standards of Responsibility'' to add
``past or in front of present physical injury''. Some
individuals may have sustained a vaccine-related injury in
the past, but do not have a present physical injury. These
individuals should not be prohibited from obtained relief in
a civil action filed against a vaccine manufacturer or
administrator;
Replacing Section 207, ``Increase in Award in the Case of a
Vaccine-Related Death and for Pain and Suffering'' with the
2001 ACCV recommendation to increase the $250,000 benefit
caps for both death and pain and suffering. These $250,000
benefit caps should be retroactively increased since 1988,
and increased annually, thereafter, to account for inflation
using the Consumer Price Index for All Urban Workers (CPI-U)
as envisioned by Congress in the original National Childhood
Vaccine Injury Act of 1986;
Replacing Section 210, ``Allowing Payment of Interim
Costs'' which does not stipulate a timeframe for when the
interim payment is to be made with Section 6, ``Allowing
Payment of Interim Costs of the 1999 Amendments, which states
that the interim payment can only be made after a
determination has been made concerning whether or not the
petitioner is entitled to compensation;
Modifying Section 219, ``Ongoing Review of Childhood
Vaccine Data'' by deleting the phrase, ``together with
recommendation for changes in the Vaccine Injury Table''; and
Replacing Section 221, ``Report'', which this language,
``The ACCV shall provide the Secretary of Health and Human
Services with annual status reports on the Vaccine Injury
Compensation Trust Fund (the Trust Fund), including
recommendations on the allocation of funds from the Trust
Fund.''
With regard to Section 203, ``Parent Petitions for
Compensation'', the ACCV believes that the language in this
section must be modified. The issue of compensating parents
and third parties was raised when the original Act was
drafted, but the focus remained on the need for an adequate
compensation package that would cover the life of the injured
child. Over the years, a few parent or third party petitions
for compensation have been filed in state and federal courts.
However, many of the class action suits contain parent
petition, which prompted ACCV to revisit the issue. ACCV
strongly believes that parent or third party petitions for
compensation are more appropriately managed and
adjudicated through the VICP rather than through outside
litigation. Because of our concern for the well being of
the child, the ACCV recommends that the award to the
vaccine-injured child be separate from any award offered
to the parent. At your request, the ACCV will develop
options for such an award. In addition, this Section, as
is currently drafted, raises serious constitutional
concerns. The ACCV recognizes that the proposed provision,
as drafted, may need to be supplemented to: (1) address
potential constitutional concerns; and (2) assure that
such parents or third parties claims may be properly
administered by the VICP. Moreover, the ACCV believes that
further consideration should be given to review of whether
a third party's claim should be tied to the injured
party's claim in civil actions.
Section 205, ``Application'', is a conforming charge to
Section 203, and therefore, the ACCV does not concur with
this Section until the language in Section 203 is
sufficiently modified.
background on the vaccine safety datalink project
In order to enhance the understanding of rare adverse
effects of vaccines, CDC developed the Vaccine Safety
Datalink (VSD) project in 1990. This project is a
collaborative effort, which utilizes the databases of eight
large health maintenance organizations (HMOs). The database
contains comprehensive medical and immunization histories of
approximately 7.5 million children and adults. The VSD
enables vaccine safety research studies comparing prevalence
of health problems between unvaccinated and vaccinated
people. Over the past decade, the VSD has been used to answer
many vaccine-related questions, and has been used to support
policy changes that have reduced adverse effects from
vaccines.
Rep. Dan Burton, (R-IN), Chairman of the Committee on
Government Reform, requested any and all records collected
under the VSD and was prepared to subpoena the records if he
was not given access. The CDC and HMOs, understandably, do
not want to give this data to Rep. Burton because these
records include confidential patient information. For now,
Rep. Burton agreed to a compromise with CDC which would allow
an independent researcher to replicate or conduct a modified
analysis of a previous VSD study, while maintaining the
confidential nature of the data, but Rep. Burton has not
rescinded his threat of the subpoena. Therefore, the ACCV
makes the following recommendation:
recommendation on the vaccine safety datalink project
The Vaccine Safety Datalink Project (VSD) is a critical
component of our vaccine safety infrastructure. Participation
by health maintenance organizations in the VSD is predicated
on confidentiality of patient identifiers. In order to assure
the continued viability of the VSD, the privacy of individual
patient data must be protected. Therefore, the ACCV
recommends that the Secretary of Health and Human Services
take all steps necessary to protect the privacy of patient
data in order to ensure the continued support and viability
of this important project.
In conclusion, Mr. Secretary, we believe that the VICP
plays a critical role in our nation's childhood immunization
program, and we urge your immediate attention to our
concerns. The ACCV greatly appreciates your continued
support, and looks forward to your timely reply.
Sincerely,
Elizabeth J. Noyes,
Chair, ACCV.
Mr. FRIST. In part it says:
These claims have been filed against vaccine companies and,
in some instances, against health care providers. Thimerosal,
as you know, is approved for use by the Food and Drug
Administration and is part of the vaccine formulation when
licensed; hence clarification is needed to direct these
claims to the VICP before tort remedies can be pursued.
That is what the underlying bill does. That is what the Lieberman
amendment strips out.
The American Academy of Pediatrics also wrote in support of this.
I'll quote a final sentence from this letter of June 19, 2002:
The AAP has reviewed S. 2053 and has the following comments
beginning first and foremost with our strong support that all
claims for vaccine-related injury or death first must be
filed with the VICP.
In addition, we concur with the ACCV's most recent
recommendations in support of sections 204, 215, 216, 217 and
220.
I ask unanimous consent to print the letter in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Academy of Pediatrics,
Washington, DC, July 19, 2002.
Hon. Bill Frist,
U.S. Senate,
Washington, DC.
Dear Senator Frist: The American Academy of Pediatrics
(AAP), and the 57,000 pediatricians we represent, greatly
appreciates your leadership and support of the various
[[Page S11180]]
immunization provisions outlined in your bill, S. 2053, the
Improved Vaccine Affordability and Availability Act. This
legislation addresses several issues of critical importance
to the Academy.
vaccine injury compensation program
Enacted in the late 1980's, with the support and guidance
of the AAP, the National Vaccine Injury Compensation Program
(VICP) has helped to stabilize what was then and appears to
be again a fragile vaccine market. For the past 14 years,
this program has been successful in its efforts to ensure an
adequate supply of childhood vaccines, promote more research
and development of even safer and better vaccines and most
importantly to provide for a fair and just compensation
program for those that suffer vaccine-related injuries.
However, over time, as reflected in your legislative
proposal, some modifications are necessary to ensure that the
VICP is working at it full potential.
The AAP has reviewed S. 2053 and has the following comments
beginning first and foremost with our strong support that all
claims for vaccine-related injury or death first must be
filed with the VICP.
The Academy concurs with several sections of the bill, some
of which were previously proposed in 1999 by the Advisory
Committee on Vaccine Compensation (ACCV) and you have
incorporated in S. 2053. These include: Sections 206, 208,
209, 211, 212, 213 and 218. In addition, we concur with the
ACCV's most recent recommendations in support of sections
204, 215, 216, 217, and 220. The AAP is particularly pleased
that S. 2053 includes language that allows compensation for
family counseling, ongoing review of childhood vaccine data
and clarifies the definition of vaccines, manufacturers, and
vaccine-related injury or death.
The AAP, however, does have specific concerns about Section
203, ``Parent Petitions for Compensation,'' as currently
drafted. The AAP believes that petitions for compensation by
parents or third parties must be adjudicated through the VICP
and not through the judicial system. Moreover, in addition to
potential constitutional issues that this provision may
pose, we contend that such claims by parents should be
separate and apart from awards to the vaccine-injured
child. Although the issue of the compensation of parents
and third parties was initially raised during the drafting
of the VICP in the 1980's, it was rejected to maintain the
focus of the Act on providing appropriate and just
compensation that covers the life of the vaccine-injured
child. We believed then, as well as now, that this
approach is in the best interest of the child. The AAP
would suggest that consideration could be given to
providing, within the scope of the VICP, a provision for
the loss of consorrum that would be separate from the
award to the vaccine-injured child.
The AAP agrees with your identification in Section 207, of
the need for an adjustment to the award for a vaccine-related
death and for pain and suffering. However, we recommend a
modification to this section as written. Use of the Consumer
Price Index (CPI) to account for annual inflation in
providing these benefit awards had been the original intent
of Congress in drafting the VICP. The AAP encourages your
adoption of this approach that was also recommended in 2001
by the ACCV. In 2002 dollars, such an award would be the
equivalent of an award of over $300,000.
meningitis and influenza vaccines
The AAP supports your recommendation in Section 103 to
provide information to a variety of entities concerning
bacterial meningitis. We are ready to work with you to
implement these efforts.
This past June, the Advisory Committee of Immunization
Practices (ACIP) made the decision to expand the Vaccine for
Children (VFC) program coverage of the influenza vaccine to
all healthy children aged 6 to 23 months. This will take
effect March 1, 2003. As physicians, we are both aware that
this age group has a high likelihood of hospitalization if
they get the flu, therefore the availability of an adequate
supply of the influenza vaccine is critical. In addition,
this expanded recommendation means that adequate funding--
both public and private--is essential. The estimated first-
year costs of influenza vaccination of children, according to
the Centers for Disease Control and Prevention, are $11.5
million in the VFC program, $2.6 million in Section 317
funds, and $1.42 million in state funds. This assumes
vaccination of 20% of children aged 6 to 23 months (most
requiring two doses), 15% of high-risk children aged 2 to 18
years, and 5% of children living with high-risk household
contacts. These costs dramatically increase as we assume
higher vaccination coverage rates for these populations of
children. We applaud your support of increasing the supply of
the influenza vaccine (Section 101) and encourage your
proactive support to ensure sufficient public and private
funding to meet the need and demand of the pediatric
population. We should expect nothing less than, at a minimum,
coverage by the Medicaid program for our youngest citizens as
is received under Medicare for our senior citizens.
immunization rates
The AAP appreciates the recognition of increasing
immunization rates and data collection especially for
adolescents as well as adults included in Section 102 of S.
2053. However, as pediatricians dedicated to the health,
safety and well being of infants, children, adolescents and
young adults we would be remiss if we also did not encourage
the inclusion of all infants and children in the collection
of data and in efforts to increase immunization rates. We
have made remarkable progress. Presently, the rates of
immunizations for children may well be at an all time high.
But we still have significant disparities and pockets of need
among rates of immunization for racial and ethnic groups.
This is further exacerbated by the potential impact that
vaccine shortages may have on the rates of immunizations. We
cannot allow complacency or less vigilance of rates for
infants and children at this critical time.
vaccine supply
Although pediatricians over the years have encountered
brief childhood vaccine shortages nothing compares to the
most recent situation because of both the number of different
vaccines involved and the scarcity of the available supply.
For most of the first half of this year, the shortage of
vaccines included eight of the 11 diseases preventable
through routine vaccination of children. In many instances
these shortages and delays by necessity resulted in temporary
changes to immunization entry requirements for day care and
school. Until just recently the longest-standing significant
shortage was with the Td vaccine that began about a year ago
and affected the ability to give teens the booster Td they
need. Currently, the most serious shortage continues to be
with the new 7-valent pneumococcal conjugate vaccine (PCV7,
Prevnar). The AAP supports and appreciates the recognition in
Section 104 of the need to maintain a sufficient vaccine
supply. Moreover, we also support the discretionary authority
of the Secretary of Health and Human Services to develop a
national vaccine stockpile for a minimum of six months and as
long as 12 months. This stockpile should include all of the
routine recommended childhood vaccines and certain other
vaccines that may be critical to the public's health such as
Hepatitis A and meningococcal.
Thank you for your commitment to an immunization strategy
that promotes the safety, efficacy as well as the adequacy of
the supply of vaccines for the nation. We look forward to
working with you as this legislation moves forward.
Sincerely,
Louis Z. Cooper,
President.
Mr. FRIST. I will read from a statement by Dr. Timothy Doran,
testifying on behalf of AAP, to the Health, Education, Labor and
Pensions Committee earlier this year on behalf of the American Academy
of Pediatrics, relating to these provisions. He testified it was
crucial:
to preserve and strengthen the liability protections for
consumers, manufacturers and physicians through the Vaccine
Injury Compensation Program. The VICP has been an integral
part of maintaining the vaccine market. Enacted in the last
1980's with the support and guidance of the American Academy
of Pediatrics the VICP has helped to stabilize what was then
and appears again to be a fragile vaccine market. We
reiterate our strong support that all claims for vaccine-
related injury or death must be filed first with the VICP. We
appreciate the intent of the legislative proposal put forth
by Sen. Frist and others to craft appropriate modifications
as necessary to ensure that the VICP is working to its full
potential.
Those are the provisions in the underlying bill. That is exactly what
is in the homeland security legislation that would be stripped out by
the Lieberman amendment.
The effect of these provisions in this bill is important because of
the new era of bioterrorism, not knowing the direction the world is
moving, recognizing we are unprotected today from smallpox. We now have
a tremendous initiative by the administration, the private sector, and
the public sector. We have better coordination and better public health
infrastructure, better communication, better coordination. But at the
end of the day, if smallpox is in your community and you know it, you
know where to go, that is good, but unless you have a health care
provider to put it on your arm, you are not protected. We do not know
when it will hit again.
The fact the Advisory Commission on Childhood Vaccines endorses these
provisions is important. The fact that the American Academy of
Pediatrics endorses these provisions is also important. This shows they
are not just pulled out or from a single company or they have not been
thought through by both trial lawyers and patients and families and
providers. We have heard the claims that these are not relevant to the
underlying bill. But at the end of the day, in this world where we are
at risk from bioterrorism, germs, viruses, I guarantee, based on
everything I know and everything I have read, it is critical we
increase our protection for these agents. That is what the underlying
bill does.
The liability protections are important for health care providers. I
argue,
[[Page S11181]]
also, for the facilities where they are administered and the
manufacturers. If we allow out-of-control lawsuits to drive people out
of the business of making these vaccines, no matter how good our
research is, we will not be able to make vaccines which are critically
important. We started with 12 companies and we are now down to 4
companies in the United States who make the vaccines. We have no
guarantee they will stay in the business. They are unlikely to stay in
the business if the huge lawsuits hit them in a way that simply is not
favorably judged.
The provisions in the underlying bill only restate the original
intent of Congress. They restate current law that individuals claiming
injury for covered vaccines must first file for compensation under the
vaccine injury compensation program, the VICP. These sections state
what really should be obvious. A vaccine itself is the sum total of all
of its parts as determined by our Food and Drug Administration, and
that the manufacturers of vaccines include those who contribute to each
of these various components. We have the vaccine, the components, the
manufacturers who make the vaccine, and also the people who make the
components.
Nothing in this language takes away one's right to sue. These
provisions simply clarify and restate current law which requires all
claims of injury related to a vaccine covered by the compensation
program must first go through the compensation program before a lawsuit
can be filed. There is much more that needs to be done, I believe in a
more comprehensive way, but these provisions take the first step in a
timely way, when time certainly matters.
In the long run, it is critical to expand the vaccine market for a
whole range of microorganisms we are not protected from. We need to
provide greater access to their vaccines. We need to be able to look
the parents in the eye and say, when you take your child to the doctor
or the public health center, those children, as well as all Americans,
are not going to be in some way turned away by a barrier that we failed
to address in the Senate. That is why a vaccine provision is necessary,
is necessary now, is necessary in this homeland security bill.
I yield the floor.
Mr. REID. Mr. President, we have a consent in order for debate only
until 1:30 p.m. There are numerous Senators who wish to speak. I ask
unanimous consent that the order for debate only be extended until 3
o'clock today.
The PRESIDING OFFICER (Mrs. Lincoln.) Without objection, it is so
ordered.
The Senator from Rhode Island.
Mr. REED. Madam President, I rise to discuss the amendment proposed
by the Senator from Connecticut, Mr. Lieberman. First, I commend the
Senator from Connecticut, Mr. Lieberman, not only for his amendment but
also for his work on this very important legislation. He introduced
this legislation months ago, even before the administration recognized
the need for a homeland security bill. He has brought to the floor a
very well-crafted, well-balanced, thoughtful piece of legislation, a
product of deliberation over many months. It is disheartening at this
moment to see a piece of legislation that has arisen in the last couple
of days, almost 500 pages long, with greater omissions but also
including what I argue in certain cases to be are extraneous
provisions.
One of the provisions at issue is the of curtailing the ongoing
discussion about the scope of the vaccine injury compensation program.
We have a situation where vaccine manufacturers included a
preservative, Thimerosal. This preservative has been alleged to have
caused medical harm; it has not been scientifically proven. The Senator
from Tennessee has indicated the Institute of Medicine has suggested
there is no causal link between Thimerosal and autism or other
childhood diseases. Yet there is ongoing litigation to determine if
this, in fact, is a causal factor.
In a homeland security bill designed to focus our attention on the
most urgent and dramatic threats to the United States, we find a very
transparent attempt by at least one manufacturer to curtail potential
liability because of their products. Frankly, there is n |
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