S6078 CONGRESSIONAL RECORD — SENATE May 3, 1995

I quote the Senator from West Virginia, Senator ROCKEFELLER, the primary cosponsor with Senator GORTON

of Washington of this particular bill

that we now have before the Senate:

The Senator from Kentucky and I have

reached a significant agreement which I

think achieves a significant goal in an eminently sensible manner. The amendment is

before you and ensures for the first time that

the Secretary of Commerce will collect—not

‘‘may collect’’ but ‘‘will collect’’—comprehensive product liability insurance data

which will be useful to us as policy makers

at the Federal and State levels.

The amendment in effect makes it possible

that should this issue be revisited, Congress

will in fact have the facts before us. Okay.

So what is in the amendment?

The amendment would require the Secretary of Commerce to report comprehensive

information annually to the Congress on the

effect of this product liability tort reform

bill, should it pass, on those insurers,

noninsurers, reinsurers, self-insurers, risk

retention folks, who issue product liability

insurance.

Now the Secretary of Commerce will collect data from these folks, and he can collect

data from existing insurance statistical

agencies. In other words, the bureaucracy

factor is minimized, Mr. Chairman, because

he can collect it from those who already

produce it.

However, a key component of my agreement with the distinguished Senator from

Kentucky provides that the committee report—and we crafted our language carefully

here—will spell out for the Secretary what

information is needed for comprehensive understanding of the issue. For example, insurers premiums and investment income, outlays, overhead, legal expenses, reserves, as

well as claims paid as a result of settlement

as opposed to claims paid as a result of adjudication.

Included in the report language will be a

provision that the National Association of

Insurance Commissioners has a set amount

of time to work out an agreement with the

Secretary of Commerce to require that insurers report data on claims paid out as a result of economic, noneconomic, and punitive

damages. That has been an elusive factor,

and that information in fact is not now

available or at least it is not broken out. As

a result of this amendment, it will be, and

will be available to us.

I believe, Mr. Chairman, it is a good

amendment. I believe it is a fair amendment.

It is not the amendment which I had originally suggested, but I believe that it is a reasonable compromise that gets us the same

information and in a reasonable manner.

Now, that was presented in the bill

and accepted. Thereafter, year before

last, when we had on the last occasion

before the Senate product liability,

that amendment, word for word, was

presented and accepted. Presented by

this Senator at that particular time as

the chairman of the Commerce Committee and accepted by none other

than the two distinguished leaders that

we have, the cosponsors and managers

of the bill, the distinguished Senator

from West Virginia and the distinguished Senator from Washington.

My hope, of course, that the amendment was accepted, it would be accepted again. Perhaps we will have to vote

on it. However, it would nonplus this

particular Senator that here we have

what the managers themselves have

not only promulgated but what they

have accepted heretofore as a reasonable, proper, and necessary add on to

the consideration of product liability

and now rejected at this particular

time. With that in mind, I yield the

floor.

AMENDMENT NO. 599, AS MODIFIED, TO

AMENDMENT NO. 596

Mr. HATCH. Mr. President, I ask

unanimous consent that the pending

amendment be set aside to call up this

amendment.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. HATCH. Mr. President, I ask

unanimous consent that amendment

numbered 599, as previously agreed to,

be modified with the language which I

now send to the desk.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment (No. 599), as modified, is as follows:

At the appropriate place, insert the following new section:

SEC. . REPRESENTATIONS AND SANCTIONS

UNDER RULE 11 FEDERAL RULES OF

CIVIL PROCEDURE.

(a) IN GENERAL.—Rule 11 of the Federal

Rules of Civil Procedure is amended—

(1) in subsection (b)(3) by striking out ‘‘or,

if specifically so identified, are likely to

have evidentiary support after a reasonable

opportunity for further investigation or discovery’’ and inserting in lieu thereof ‘‘or are

well grounded in fact’’; and

(2) in subsection (c)—

(A) in the first sentence by striking out

‘‘may, subject to the conditions stated

below,’’ and inserting in lieu thereof ‘‘may’’;

(B) in paragraph (2) by striking out the

first and second sentences and inserting in

lieu thereof the following: ‘‘A sanction imposed for violation of this rule may consist

of reasonable attorneys’ fees and other expenses incurred as a result of the violation,

directives of a nonmonetary nature, or an

order to pay penalty into court or to a

party.’’; and

(C) in paragraph (2)(A) by inserting before

the period ‘‘, although such sanctions may be

awarded against a party’s attorneys’’.

(b) EFFECTIVE DATE.—The provisions of

this section shall take effect 30 days after

the date of the enactment of this Act.

Mr. HATCH. Mr. President, this

amendment was offered by Senator

BROWN and adopted by the Senate earlier this week. We have consulted with

Senator BROWN and he has agreed to

our modification.

Section (2)(A) of Senator BROWN’s

amendment would make the imposition of sanctions for a violation of Federal Rule of Civil Procedure 11 mandatory. The current Federal rule gives

Federal judges discretion to award

sanctions if a violation has occurred.

This amendment simply restores discretion to our Federal judges to award

sanctions in the appropriate cases.

AMENDMENT NO. 683 TO AMENDMENT NO. 596

(Purpose: To revise the rules regarding

claimants who are employees)

Mr. GORTON. Mr. President, I send

an amendment to the desk and ask for

its immediate consideration.

The PRESIDING OFFICER. The

pending amendments will be set aside

and the clerk will report.

The legislative clerk read as follows:

The Senator from Washington [Mr. GORTON] proposes an amendment numbered 683

to amendment No. 596.

Mr. GORTON. I ask unanimous consent further reading be dispensed.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

On page 2, strike lines 4 through 14 and insert the following:

(2) CLAIMANT’S BENEFITS.—The term

‘‘claimant’s benefits’’ means the amount

paid to an employee as workers’ compensation benefits.

On page 25, line 15, strike ‘‘CONSENT’’ and

insert ‘‘NOTIFICATION’’.

On page 25, beginning with ‘‘subparagraph’’

on line 16 strike through line 25 and insert

‘‘subparagraph (C), an employee shall not

make any settlement with or accept any

payment from the manufacturer or product

seller without written notification to the

employer.’’.

Mr. GORTON. Mr. President, this is a

corrective amendment with respect to

the subrogation provisions of the workmen’s compensation section. I have

checked this out with the distinguished

Senator from South Carolina. It is not

controversial.

The PRESIDING OFFICER. The

question is on agreeing to the amendment.

The amendment (No. 683) was agreed

to.

AMENDMENT NO. 684 TO AMENDMENT NO. 596

(Purpose: To modify the rented or leased

products provision)

Mr. GORTON. Mr. President, I send

another amendment to the desk for immediate consideration, and I ask the

pending amendment be set aside.

The PRESIDING OFFICER. The

clerk will report.

The legislative clerk read as follows:

The Senator from Washington [Mr. GORTON], proposes an amendment numbered 684

to amendment No. 596.

Mr. GORTON. I ask unanimous consent further reading be dispensed.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

On page 16, line 21, after ‘‘but’’ insert ‘‘any

person engaged in the business of renting or

leasing a product’’.

Mr. GORTON. Mr. President, this

falls under the same category, dealing

with the definition of a rental.

I have checked it out with Senator

HOLLINGS and it is acceptable and

agreed to and not controversial.

The PRESIDING OFFICER. The

question is on agreeing to the amendment.

The amendment (No. 684) was agreed

to.

ORDERS FOR THURSDAY, MAY 4,

f1995

Mr. DOLE. Mr. President, I ask unanimous consent that the vote on or in

relation to the Abraham amendment

No. 600, occur at 12:15 on Thursday,

May 4, followed by a vote on or in relation to the Kyl amendment No. 681, to
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6079

be followed by a vote on or in relation

to the Hollings amendment No. 682, to

be followed by a motion to invoke cloture on the Gorton substitute No. 596.

The PRESIDING OFFICER. Is there

objection?

Mr. HEFLIN. Reserving the right to

object, is the Kyl amendment relative

to alternate dispute resolution proceedings?

Mr. GORTON. Yes, it is.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. I further ask that all

votes occurring in the stacked sequence following the first vote be limited to 10 minutes in length.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. DOLE. I further ask that following the first cloture vote, if not invoked, the time following the vote at 2

p.m. be equally divided in the usual

form for debate only; at 2 p.m. the Senate proceed to vote on the second cloture motion; and the mandatory forum

under rule XXII be waived for both cloture votes.

The PRESIDING OFFICER. Without

objection, it is so ordered.

PROGRAM

Mr. DOLE. For the information of all

Senators, there will be no further votes

tonight. However, Senators who wish

to offer their amendments may do so

tonight.

Also, Members should be aware that

second-degree amendments must be

filed 1 hour prior to the cloture vote

under the provisions of rule XXII.

Mr. President, I suggest the absence

of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. GORTON. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

AMENDMENT NO. 685 TO AMENDMENT NO. 596

(Purpose: To toll the statute of limitations

in certain actions brought against a product seller as manufacturer)

Mr. GORTON. Mr. President, I send

an amendment to the desk and ask for

its immediate consideration.

The PRESIDING OFFICER. Without

objection, the pending amendments

will be set aside. The clerk will report.

The legislative clerk read as follows:

The Senator from Washington [Mr. GORTON] proposes an amendment numbered 685

to Amendment No. 596.

Mr. GORTON. 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:

On page 16, between lines 14 and 15, insert

the following: ‘‘For purposes of this subsection only, the statute of limitations applicable to claims asserting liability of a

product seller as a manufacturer shall be

tolled from the date of the filing of a complaint against the manufacturer to the date

that judgment is entered against the manufacturer.’’

Mr. GORTON. Mr. President, this is

the third in a series. This is a technical

amendment that tolls the statute of

limitations in connection with a possible claim against a wholesaler when a

manufacturer is bankrupt or judgment

proof. It has been cleared by Senator

ROCKEFELLER and by the opponents to

the bill.

THE PRESIDING OFFICER. If there

be no further debate, the question is on

agreeing to the amendment.

The amendment (No. 685) was agreed

to.

Mr. GORTON. Mr. President, I move

to reconsider the vote.

Mr. FORD. I move to lay that motion

on the table.

The motion to lay on the table was

agreed to.

Mr. GORTON. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The legislative clerk proceeded to

call the roll.

Mr. GORTON. 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. GORTON. Mr. President, I ask

MORNING BUSINESS

funanimous consent that there now be a

period for the transaction of routine

morning business with Senators permitted to speak for up to 10 minutes.

The PRESIDING OFFICER. Without

objection, it is so ordered.

MESSAGES FROM THE PRESIDENT

Messages from the President of the

fUnited States were communicated to

the Senate by Mr. Zaroff, one of his

secretaries.

EXECUTIVE MESSAGES REFERRED

As in executive session the Presiding

fOfficer laid before the Senate a message from the President of the United

States submitting a nomination which

was referred to the Committee on Foreign Relations.

(The nominations received today are

printed at the end of the Senate proceedings.)

REPORT OF PROPOSED LEGISLATION ENTITLED ‘‘THE IMMIGRAfTION ENFORCEMENT IMPROVEMENTS ACT OF 1995’’—MESSAGE

FROM THE PRESIDENT—PM 44

The PRESIDING OFFICER laid before the Senate the following message

from the President of the United

States, together with an accompanying

report; which was referred to the Committee on the Judiciary.

To the Congress of the United States:

I am pleased to transmit today for

your immediate consideration and enactment the ‘‘Immigration Enforcement Improvements Act of 1995.’’ This

legislative proposal builds on the Administration’s FY 1996 Budget initiatives and complements the Presidential Memorandum I signed on February 7, 1995, which directs heads of executive departments and agencies to

strengthen control of our borders, increase worksite enforcement, improve

employment authorization verification, and expand the capability of the

Immigration and Naturalization Service (INS) to identify criminal aliens

and remove them from the United

States. Also transmitted is a sectionby-section analysis.

Some of the most significant provisions of this proposal will:

—Authorize the Attorney General to

increase the Border Patrol by no

fewer than 700 agents and add sufficient personnel to support those

agents for fiscal years 1996, 1997,

and 1998.

—Authorize the Attorney General to

increase the number of border inspectors to a level adequate to assure full staffing.

—Authorize an Employment Verification Pilot Program to conduct

tests of various methods of verifying work authorization status, including using the Social Security

Administration and INS databases.

The Pilot Program will determine

the most cost-effective, fraud-resistant, and nondiscriminatory

means of removing a significant incentive to illegal immigration—

employment in the United States.

—Reduce the number of documents

that may be used for employment

authorization.

—Increase substantially the penalties

for alien smuggling, illegal reentry,

failure to depart, employer violations, and immigration document

fraud.

—Streamline deportation and exclusion procedures so that the INS can

expeditiously remove more criminal aliens from the United States.

—Allow aliens to be excluded from

entering the United States during

extraordinary migration situations

or when the aliens are arriving on

board smuggling vessels. Persons

with a credible fear of persecution

in their countries of nationality

would be allowed to enter the United States to apply for asylum.

—Expand the use of the Racketeer

Influenced and Corrupt Organizations (RICO) statute to authorize

its use to pursue alien smuggling

organizations; permit the INS, with

judicial authorization, to intercept

wire, electronic, and oral communications of persons involved in

alien smuggling operations; and

make subject to forfeiture all property, both real and personal, used

or intended to be used to smuggle

aliens.