S10466 CONGRESSIONAL RECORD — SENATE October 2, 2008 

that Congress has prohibited. Indeed, FAA 

recognized that slot auctions would constitute a user fee when it proposed to institute such a fee in 1980, and again in 1986 

when it decided not to do so. FAA also appeared to recognize that slot auctions would 

constitute a user fee in 2006 and 2007 when, in 

the face of the annual appropriations restrictions, it promised to and did seek legislation 

authorizing it to conduct the auctions. 

FAA’s April 2008 proposal in fact acknowledges that because of the appropriations restriction, FAA ‘‘continues to believe that it 

cannot rely on a market-based [slot] allocation method under a purely regulatory approach, which is why it explicitly sought legislation on this matter.’’ 73 Fed. Reg. at 

20846, 20852. 

FAA suggests that because it will conduct 

the Newark auction by solicitation of bids 

for slot leases, rather than by issuance of a 

new regulation, the language of the 2008 Consolidated Appropriations Act—which prohibits ‘‘any regulation’’ imposing new aviation user fees—does not apply. 2008 FAA 

Brief at 61 n. 36. Contrary to FAA’s suggestion, because the auction would, in effect, 

amount to a user fee under IOAA, and IOAA 

requires agencies to prescribe regulations to 

impose new user fees, see 31 U.S.C. §9701(b), 

implementation of the auction would require 

a new regulation. FAA cannot elude the requirements of otherwise applicable law simply by failing to follow the law’s requirements. ‘‘It is axiomatic that an agency cannot do indirectly what it is not permitted to 

do directly.’’ Forest Products Laboratory 

Agreement with University of Wisconsin, 55 

Comp. Gen. 1059 (1976). 

FAA points to examples of other agencies 

auctioning or charging market-based fees for 

use of public lands or other public ‘‘property.’’ 2008 FAA Brief at 48–49. These are inapposite because unlike FAA, those agencies 

had specific statutory authority for their activities. See, e.g, 16 U.S.C. §472a (U.S. Department of Agriculture auction of timber 

rights on National Forest Service land); 43 

U.S.C. §315b (U.S. Department of Interior 

issuance of grazing permits for public lands 

for ‘‘reasonable fees’’). FAA’s most analogous example is the Federal Communications Commission’s auction of license rights 

to the electromagnetic spectrum. Again, 

however, Congress has specifically authorized the FCC to conduct such auctions, including specifying the conditions necessary 

for auction, bidder qualifications, and treatment of auction proceeds. See 47 U.S.C. 

§309(j). As discussed above, despite FAA’s 

specific requests, Congress has given FAA no 

comparable auction authority. 

Finally, even if Congress were to remove 

the annual appropriations restriction that 

prohibits FAA from promulgating new aviation user fees, without other specific authority, it could impose only a cost-based fee, 

not the type of market-based fee it seeks to 

obtain by auctioning slots to the highest bidder. Under IOAA, when an agency is but one 

actor in the marketplace, it acts in a commercial, non-governmental capacity and 

may charge a fee based on the market price 

of the service provided. When instead an 

agency exercises its sovereign power and regulates activities based on public policy 

goals—as FAA would be acting, if it were to 

auction slots—it acts in a regulatory capacity, and user fees are limited to the agency’s 

costs of providing the specific benefit to the 

individual recipient. If FAA’s fee were based 

on market value and exceeded its cost of providing the slot to the recipient airline, the 

fee could rise to the level of a tax. A tax 

would be beyond IOAA’s grant of authority 

and FAA would have to have some other 

Congressionally-delegated authority to impose it. National Cable Television Ass’n, Inc. v. 

United States, 415 U.S. 336, 341 (1974); National 

Park Service—Special Park Use Fees, B– 

307319, Aug. 23, 2007. 

CONCLUSION

We conclude that FAA may not auction 

slots under its property disposition authority, user fee authority, or any other authority, and thus also may not retain or use proceeds of any such auctions. Going forward 

with the planned Newark auction or any 

other auction would be without legal basis, 

and if FAA conducted an auction and retained and used the proceeds, GAO would 

raise significant exceptions, under its account settlement authority, 31 U.S.C. §3526, 

for violations of the ‘‘purpose statute,’’ 31 

U.S.C. §1301(a), and the Antideficiency Act, 

31 U.S.C. §1341(a)(1)(A). 

If there are questions concerning these 

matters, please contact Managing Associate 

General Counsel Susan. D. Sawtelle at (202) 

512–6417 or Managing Associate General 

Counsel Susan A. Poling at (202) 512–2667. Assistant General Counsels David Hooper and 

Thomas H. Armstrong, Senior Attorney Bert 

Japikse, and Staff Attorney James Murphy 

also participated in preparing this opinion. 

Sincerely yours, 

GARY L. KEPPLINGER, 

f 

General Counsel. 

ETHOPIA 

Mr. BROWNBACK. Mr. President, I 

would like to voice my support for the 

difficult work that Ethiopia is doing on 

the battlefield of the war on terror in 

the Horn of Africa. Ethiopia is a country of great importance to the United 

States, and is located in what some 

have called one of the roughest neighborhoods in the world. As one of our 

strongest allies in this complicated region, Ethiopia has shown promise in 

meeting both economic and security 

challenges. 

Although Ethiopia remains one of 

the poorest countries in the world, it is 

developing a market-based economy 

which has experienced an impressive 10 

percent annual growth since 2003. In 

addition, the Government of Ethiopia, 

in close collaboration with regional 

and international health organizations, 

has achieved some success in addressing global public health concerns, including the fight against HIV/AIDS, tuberculosis and malaria. 

The US-Ethiopia bilateral relationship is strong and enduring. Ethiopia is 

a vital partner of the United States in 

the fight against terrorism, promoting 

regional stability and combating violent extremism. As a growing democracy, Ethiopia shares with the United 

States a common commitment to promoting freedom and human dignity. 

With respect to Ethiopia’s involvement in Somalia, it is important to understand that the U.S., U.N., E.U., and 

A.U., all have urged Ethiopia to remain 

in Somalia until replacement forces arrive or a stable government is formed. 

Ethiopian government officials have 

stated that while the Government of 

Ethiopia is anxious to remove their 

forces at the earliest possible time, it 

has delayed the withdrawal of troops 

from Somalia, at great political and 

economic cost, until replacement 

troops arrive to ensure the stability of 

Somalia’s Transitional Federal Government. 

Unfortunately, while several nations 

have pledged to send replacement 

troops under the auspices of the African Union, only a small fraction of 

those pledged have actually arrived. I 

am grateful that Ethiopia remains 

committed to securing stability and 

peace in Somalia, and hope that the 

full African Union contingent arrives 

soon to enable the safe withdrawal of 

Ethiopian forces. 

Ethiopia faces a host of ongoing challenges both at home and abroad, and 

merits our support and assistance. I 

urge my colleagues to join me in recognizing the progress made by this Ethiopia in promoting the health and welfare of its people, and assisting in the 

war on terror in the Horn of Africa. 

f 

PATIENT SAFETY AND ABUSE 

PREVENTION ACT 

Mr. KOHL. Mr. President, I speak 

today in support of the Patient Safety 

and Abuse Prevention Act, S. 1577. This 

bill takes needed, practical steps to 

protect seniors in nursing homes and 

other settings wherever long-term care 

services are delivered. The background 

check procedures used by most States 

today are inadequate to keep out thousands of criminals, who can and do 

take advantage of loopholes and gaps 

in State systems. This results in needless tragedies and terrible harm to seniors. 

As chairman of the Senate Aging 

Committee, I have read and heard 

about too many of these stories. One 

young woman, Jennifer Coldren, testified earlier this year that her 90-yearold grandmother was brutally assaulted by a predator who had a criminal record that went unnoticed. If a 

more comprehensive background check 

had been done on this individual, he 

would not have been working in this 

nursing facility, and the course of 

Jennifer’s life and her grandmother’s 

life would not have been so horribly altered. 

It is past time for the Federal Government to take the lead in asking 

States to improve their screening processes. To do so, States must improve 

their infrastructure. They must connect and coordinate their State registries, such as those established for 

sex offenders and child abusers. They 

must screen all long-term care workers, including those who work in private homes. They must require State 

police checks and checks against the 

FBI’s national criminal history database. 

We know that States will take these 

steps to improve their background 

check procedures if Congress 

incentivizes them to do so. Seven 

States did exactly that after we provided them with modest grants under a 

pilot program enacted as part of the 

Medicare Modernization Act of 2003. 

The dollar amounts required to get 

these States to expand and improve 


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October 2, 2008 CONGRESSIONAL RECORD — SENATE S10467 

their systems were modest, ranging 

from about $1.5 million to $3 million 

per State. 

The results have been extremely impressive. At the close of the pilot program, more than 9,000 applications had 

been disqualified—because a comprehensive check showed that the applicant had a serious criminal history 

or a record of substantiated abuse. As a 

result, thousands of individuals who 

could have harmed our parents, grandparents, and loved ones have not been 

allowed to do so. And all seniors in 

these States who are receiving longterm care services—in Alaska, Idaho, 

Illinois, Michigan, Nevada, New Mexico, and Wisconsin are now safer. 

We have a responsibility to build on 

this record of resounding success. If we 

help States to take these steps I have 

outlined, we can reduce the terrible 

toll of elder abuse. If we do nothing, experts tell us abuse rates will continue 

to rise. 

I am pleased to have Senator DOMENICI as a partner and many of my colleagues as cosponsors, including Senator LINCOLN of Arkansas and Senator 

COCHRAN of Mississippi. Thanks to the 

leadership of Senator BAUCUS and Senator GRASSLEY, the cost of this bill— 

$100 million over 3 years—is fully offset. With regard to all other Senators, 

the only offices that have expressed 

concerns are those of Senator COBURN

of Oklahoma and Senator DEMINT of 

South Carolina. I appreciate the willingness of their staffs to meet with my 

staff and trust that they will be able to 

reach agreement shortly. 

In closing, the Patient Safety and 

Abuse Prevention Act has made substantial progress during the 110th Congress. It is strongly endorsed by attorneys general across the country, by the 

business community, labor unions, and 

elder justice advocates. It has been 

thoroughly discussed in public hearings 

and also during a markup in the Senate 

Finance Committee, where it was 

unanimously approved. The administration has provided technical assistance on the bill. I hope that all Senators will recognize the wisdom of approving this measure. Failing to take 

action to protect our Nation’s frailest 

citizens should be unacceptable to all 

of us. 

f 

PAYMENTS TO PHYSICIANS 

Mr. GRASSLEY. Mr. President, I 

have been examining several doctors at 

universities across the country to see if 

they are complying with the financial 

disclosure policies of the National Institutes of Health. I ask unanimous 

consent to have printed in the RECORD

my latest letter to Emory University 

regarding Dr. Charles B. Nemeroff and 

the Emory-GlaxoSmithKline-National 

Institute of Mental Health Initiative. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

U.S. SENATE, 

COMMITTEE ON FINANCE, 

Washington, DC, October 2, 2008. 

Hon. JAMES W. WAGNER, Ph.D., 

President, Emory University, Dowman Drive, 

Atlanta, GA. 

DEAR DR. WAGNER: The United States Senate Committee on Finance (Committee) has 

jurisdiction over the Medicare and Medicaid 

programs and, accordingly, a responsibility 

to the more than 80 million Americans who 

receive healthcare coverage under these programs. As Ranking Member of the Committee, I have a duty to protect the health of 

Medicare and Medicaid beneficiaries and 

safeguard taxpayer dollars appropriated for 

these programs. The actions taken by 

thought leaders, like those at Emory University (Emory), often have profound impact 

upon the decisions made by taxpayer funded 

programs like Medicare and Medicaid and 

the way that patients are treated and funds 

expended. 

I would like to expand on concerns I 

brought to your attention regarding problems with the disclosures of outside income 

filed with Emory by Dr. Charles Nemeroff, 

Chair of the Department of Psychiatry. I 

have previously cited discrepancies pertaining to Dr. Nemeroff’s disclosures filed 

with Emory and reports that I received by 

several companies regarding payments made 

to Dr. Nemeroff. I also raised concerns about 

Dr. Nemeroff’s conflicts of interest relating 

to several National Institutes of Health 

(NIH) grants. 

Federal regulations place numerous requirements on a university or hospital when 

its researchers apply for NIH grants. These 

regulations are intended to ensure a level of 

objectivity in publicly funded research, and 

state in pertinent part that NIH investigators must disclose to their institution any 

‘‘significant financial interest’’ that may appear to affect the results of a study. NIH interprets ‘‘significant financial interest’’ to 

mean at least $10,000 in value or five percent 

ownership in a single entity. 

From the summer of 2003 until the summer 

of 2008, Dr. Nemeroff was the primary investigator on a collaborative grant between 

Emory, GlaxoSmithKline (GSK) and the National Institute of Mental Health (NIMH)— 

the Emory-GSK-NIMH Collaborative Mood 

Disorders Initiative (Initiative). This Initiative examined five novel GSK antidepressant 

candidates. The NIH budgeted approximately 

$3.95 million over this grant’s five year period with about $1.35 million paid directly to 

Emory for overhead costs. Apparently, Dr. 

Nemeroff also received some payment for his 

salary from this grant, although the exact 

amount has not yet been made available to 

the Committee. 

On several occasions during the life of this 

grant, it appears that Dr. Nemeroff failed to 

report to Emory that he was participating 

actively on the speaker’s bureau for GSK. 

For instance, in an email regarding his outside activities dated October 1, 2003, Dr. 

Nemeroff wrote: . . . I have to dig up the 

agreement and send it to you, GSK no standing contract, I chair their ad board 2–3 times 

per year and I am paid per board meeting at 

a standard rate of $5K per weekend. 

However, and based upon information in 

our possession, in 2003 GSK paid Dr. 

Nemeroff about $119,000 in speaking fees and 

expenses. Based upon information provided 

from Emory, Dr. Nemeroff did not report 

that he was giving promotional talks for 

GSK on Paxil and Lamictal. 

On March 19, 2004, Dr. Nemeroff again addressed his relationship with GSK in response to questions from Emory’s Conflicts 

of Interest (COI) Committee. Again, it appears that Dr. Nemeroff did not mention the 

fees he was receiving for promotional speaking on behalf of GSK. In a letter to the Assistant Dean for Administration, Dr. 

Nemeroff wrote: Apart from speaking at national symposia, such as the American Psychiatric Association, for which GSK might 

serve as a sponsor, my consultation to the 

company is limited to chairing their 

Paroxetine Advisory board and for that, I am 

remunerated $15,000 per year. 

However, on March 16, 2004, three days 

prior to signing this letter, GSK paid Dr. 

Nemeroff $3,500 for a talk he gave on Paxil at 

the Citrus Club, a members only business establishment in Orlando, Florida. On March 

17, 2004, he gave another $3,500 talk about 

Paxil in Kissimmee, Florida. The week after 

he signed this letter, Dr. Nemeroff gave 

three talks on Paxil, for $3,500 each, at various venues in New York State. 

In June 2004, Emory’s COI Committee released a report on Dr. Nemeroff’s company 

sponsored grants and outside activities. Dr. 

Nemeroff was provided a copy of the report 

which stated in pertinent part: 

The Committee concluded that you did not 

follow procedures and policies regarding the 

review of your consulting agreements and 

that you failed to disclose your potential 

conflicts of interest in research in your Annual Disclosure Form for 2002–2003, your 

Sponsored Projects Approval Forms, and 

your IRB and IACUC forms. 

In response to this report, Dr. Nemeroff 

wrote a memorandum to the executive associate dean on July 6, 2004, explaining how he 

would manage his conflicts in the future. He 

included the last page of the COI Committee’s report with his signature to indicate 

‘‘that I will follow the management plans for 

my conflicts of interest.’’ As part of this 

management plan, Dr. Nemeroff wrote, ‘‘In 

view of the NIMH/Emory/GSK grant, I shall 

limit my consulting to GSK to under $10,000/ 

year and I have informed GSK of this policy.’’ 

Barely a week after this promise, on July 

12, 2004, GSK paid Dr. Nemeroff $3,500 in fees 

and $505.40 in expenses for a talk he gave regarding Paxil at the Larkspur Restaurant 

and Grill in Las Vegas, Nevada. The following day, Dr. Nemeroff gave two more 

talks in exchange for $7,000 from GSK ($3,500 

per talk). 

On July 19, 2004, Dr. Nemeroff received an 

invitation from the marketing team of 

Lamictal to attend their national advisory 

board meeting on November 15–16. Dr. 

Nemeroff responded by email: I cannot attend this meeting, unfortunately for two reasons. First I have a prior commitment presenting grand rounds at St. Louis University 

on the 16th and a chairs meeting at Emory 

on the 15th. Secondly because I serve as the 

Principal Investigator of the Emory/GSK/ 

NIMH grant from NIH on Antidepressant 

Drug Discovery, I am very limited in my 

ability to consult with GSK as this is viewed 

as a conflict of interest. 

Records supplied from GSK show that Dr. 

Nemeroff was most likely in St. Louis on the 

16th of November. On November 17th, GSK 

paid Dr. Nemeroff $7,000 for two clinical 

roundtables at two physicians’ offices in St. 

Louis, and $3,500 for a lecture he gave at 

Kemoll’s Italian Restaurant. 

On July 15, 2004, Emory’s Office of the 

Dean sent Dr. Nemeroff a letter regarding 

the Emory-GSK-NIMH Collaborative Moods 

Disorders Initiative grant. The letter concerned the COI Committee’s review of his relationship with GSK. The letter stated: The 

[COI] Committee understands that you serve 

on the GlaxoSmithKline Paroxetine Advisory Board and provide advice to GSK on 

their products that are already on the market. For these services, you receive approximately $15,000 annually. You do not have any 

stock options or equity interests in GSK. 


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