[Congressional Record Volume 141, Number 13 (Monday, January 23, 1995)]
[Senate]
[Pages S1356-S1365]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      UNFUNDED MANDATE REFORM ACT

  The Senate continued with the consideration of the bill.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that I be allowed 
to yield to the Senator from New Jersey, by the way, whose birthday it 
is today, and this is not in lieu of a birthday present I say to the 
Senator from New Jersey, I would ask unanimous consent that I be 
allowed to yield to the Senator from New Jersey for the purpose of his 
offering an amendment without losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LAUTENBERG. I thank the Senators and friends who are on the floor 
to wish me well on my birthday. It is one of those things, a time we 
would like to pass without notice, but, on the other hand, being here 
to recall it is something of value as well.


                           Amendment No. 199

   (Purpose: To exclude from the application of the Act, provisions 
limiting known human (Group A) carcinogens defined by the Environmental 
                           Protection Agency)

  Mr. LAUTENBERG. Mr. President, pursuant to the unanimous-consent 
request, I ask unanimous consent that the pending amendment be 
temporarily set aside so that I may offer an amendment to meet the 
terms of the unanimous-consent agreement. I send the amendment to the 
desk.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg] proposes an 
     amendment numbered 199.

  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 13, line 5, strike out ``or''.
       On page 13, line 8, strike out the period and insert in 
     lieu thereof a semicolon and ``or''.
       On page 13, insert between lines 8 and 9 the following new 
     paragraph:
       (7) limits exposure to known human (Group A) carcinogens, 
     as defined in the Environmental Protection Agency's Risk 
     Assessment Guidelines of 1986.

  Mr. LEVIN. Mr. President, last week we began a colloquy with the 
managers of the bill on some of the uncertain provisions and ambiguous 
provisions in the bill. I thought we could pick that colloquy up this 
evening. I have a number of amendments that have been offered. There 
are two additional amendments to be offered that have been listed for 
me. I think the number of the issues which have been raised, even 
though amendments both are filed and to be filed, could be clarified if 
I could discuss with the managers of the bill some of the provisions 
which I consider to be ambiguous. In order to do that, I thought I 
would again use the same hypothetical. If I could get copies of this to 
the two managers of the bill, this hypothetical Senate bill is the one 
I used last week. We went into the first ambiguity and then after about 
3 hours of debate clarified it with an amendment.
  This bill, hypothetical, to be offered after the effective date of 
this law mandates reductions of dangerous levels of mercury from 
incinerator emissions after October 1, 2005. Under this hypothetical 
bill the EPA is designated to determine what constitutes a mercury 
level dangerous to human health. The first question is when is this 
bill effective? That is not a theoretical question. That is a very 
critical question because there must be an estimate of the cost of an 
intergovernmental mandate the first year that it is effective. When a 
bill or amendment is effective becomes a critical issue and could mean 
the life or death of the bill or amendment because if the estimate of 
the mandate is more than $50 million in any year starting the first 
year it is effective, for 5 years, then certain things are triggered. 
Very significant things are triggered. Estimates, authorizations, 
language relative to appropriations, all must be in the bill. Agencies 
have to be designated to pull back from or to relieve the local 
governments of the mandate. That estimate and its effective date are 
absolutely central to this new version of the bill.
  Last year we had a bill which had broad cosponsorship, including 
myself, where there was an estimate required but there was less hanging 
on it, on its specificity, on its certainty, on its length, and as to 
when it is first effective, when the mandate was first effective. A lot 
less was hanging on that because you did not have this mechanism, this 
new point-of-order mechanism, relative to the appropriation of funds. 
That is one of the things which is new this year. Unless we do it right 
it is going to complicate this process beyond anyone's wildest dream or 
nightmare. So that is the area that I want to discuss with my friends.
  Last week I asked the Senator from Ohio what is the effective date of 
this mandate in my hypothetical bill. He basically said, well, it would 
have to be sometime before October 1, 2005. So I thought to clarify the 
situation I would give an actual or a hypothetical CBO estimated direct 
cost of the local government in my hypothetical so we can get some 
clarification and some legislative history as to what is intended by 
the mandate.
  The chart that I have up gives the following CBO estimated direct 
costs for these 87,000 State, local, and tribal governments. In this 
hypothetical in fiscal year 1996, the estimated direct cost is $6 
million. In fiscal year 1997, the estimated direct cost is $8 million; 
in 1998, $10 million; 1999, $15 million; 
[[Page S1357]] 2000, $20 million; 2001, $25 million; 2002, $30 million; 
2003, $50 million; 2004, $100 million; 2005, $200 million. Let us 
assume that is the way the estimate comes back.
  How they can make this estimate is a different question. Last week 
the Senate decided that if it was impossible to make the estimate that 
we would allow them to say it is impossible. That took an awful lot of 
debate on this floor and had been rejected in committee on a party-line 
vote. But we ought to be grateful for progress. We made some progress 
on that narrow issue. The CBO can be honest. The way the bill was 
originally written they were allowed to be honest relative to the 
private sector, but they were not allowed to admit it was impossible to 
estimate the direct cost of a mandate relative to the intergovernmental 
sector if it was. The amendment that was adopted last week permits them 
to make an honest statement if it is impossible to make an estimate in 
either or both sectors.
  OK. You make an estimate. It comes back the way this is laid out on 
this chart.
  Now my question to the managers of the bill, and last week again the 
Senator from Ohio saw the dilemma that we are all in, and said well, it 
has to be earlier than October 1, 2005, because if that is the 
effective date of the mandate within the meaning of the bill there will 
never be any cost because it sounds like October 1 is the effective 
date of 2005. The way I read it sure sounds like it because under my 
hypothetical bill it says it mandates reductions of dangerous levels of 
mercury from incinerator emissions after October 1, 2005. That sounds 
like the effective date is October 1, 2005. Most of us, and I think 
most ordinary readers of that language would say the effective date is 
October 1, 2005. But if it is 2005, if that is the first effective 
date, there will not be any costs. Nothing would ever be triggered 
because all the money would have been spent before that in order to 
make sure it complies by that date.
  The Senator from Ohio said that would be troubling and he said there 
would be some years prior to that that the CBO would have to make some 
estimate. I do not know how. But somehow or other, it would have to 
make an estimate. An awful lot is hanging on this. The life or death of 
a bill or amendment can be hanging on this because you must have the 
estimate in order to get by the point of order. In order to pursue this 
issue and to get the thinking of the managers who are the prime 
sponsors of this bill, I thought I would give them this hypothetical 
estimated direct cost.
  My question to both Senators would be, in this chart what would be 
the first fiscal year that this mandate would have a direct cost? What 
is the fiscal year to trigger that 5-year issue? If I could go through 
the Chair to ask the managers if they would be able to engage me in a 
colloquy on this issue.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Idaho is 
recognized.
  Mr. KEMPTHORNE. Mr. President, in response to that--and again, this 
is the first time that I have seen this scenario--one of the things 
that I would caution everyone, including myself, is that it can be 
difficult in a debate situation to take a hypothetical or a scenario 
and then try to answer all of the questions here.
  My initial view of this is that when we look at the bill, it clearly 
states that we will consult with our State and local elected officials. 
I do not know that we can answer that question based upon what the 
Senator has in front of us.
  Mr. LEVIN. If the Senator will yield. This is the CBO estimated cost. 
They have now consulted. By the way, that raises a whole other series 
of issues which we will get to later. This assumes that all that 
consultation has taken place, and this is the document that comes back 
to us, the estimated direct cost. This is the piece of paper which CBO 
hands to us.
  Mr. KEMPTHORNE. Then I believe, again, based upon input from the 
State and local officials, that input, in addition to this document, if 
it is----
  Mr. LEVIN. This is the document created, if I may say so, following 
all of the input. The CBO has done its work and has consulted with 
State and local officials. After consultation, it then tells us that 
this is their best estimate. This is what is going to determine now all 
the points of order. They come back to us saying we have consulted and 
we have talked to the 87,000 State and local governments in the last 
week, and this is our best estimate.
  Mr. KEMPTHORNE. The CBO is to make a 5-year estimate. Based upon the 
input from State and local officials, I would think the committee would 
then ask either CBO, or based upon the input from those State and local 
officials: What is the effective date? Again, I do not know that we can 
derive that from this document.
  Mr. LEVIN. If I may say so, we are introducing a tremendous 
ambiguity, because we are saying in the bill that the first fiscal year 
after the effective date, and each 4 fiscal years thereafter, we will 
determine a critical estimate. I am giving the managers and the 
sponsors of the bill what the CBO tells us. I am laying it out. I 
cannot be clearer than that. The CBO comes back and says these are the 
10 years prior to that effective date of October 1, 2002. We just 
cannot simply say, well, they will determine the effective date. The 
sponsors of the bill would have an intent, I hope, as to what is the 
effective date for the purposes of this bill.
  I think it is going to be absolutely essential that we get an answer 
to that question because there is an awful lot that is going to hinge 
on when the effective date is. The way I wrote the hypothetical, it 
said: You must reduce dangerous levels of mercury from incinerator 
emissions after October 1, 2005. That is the way the bill hypothetical 
states it. When I asked the Senator from Ohio last week when is the 
effective date, the Senator said--and I happen to agree with him, since 
much of the costs are going to be before 2005, probably all of the 
costs, because they want to be in compliance by the October 1, 2005, 
date. So over the weekend, I decided we would come up with an actual 
CBO estimated direct cost. Here it is.
  The sponsors of the bill, it seems to me, should say what the intent 
of the bill is. We know there are costs in each of the 10 years. The 
first year that there are direct costs is 1996. That is what the CBO 
tells us. That is the first year. The second year is 1997. If we are to 
take this legislation on its face, it says the first year that it has a 
direct cost will be the first year it is effective. The next 4 years 
thereafter, if any of those 5 years are above the $50 million 
threshold, it triggers certain very critical things. This sounds 
technical and dry, and it may, indeed, be almost impossible for people 
studying the legislative process to know what it is that is going to 
happen. But surely we have an obligation to clarify, to the extent we 
can, what is the intent of this bill.
  I have laid it out. So now I am asking the managers as to whether or 
not it is the intent of this bill that 1996 be the first year, since 
there is a direct cost, according to the CBO estimate, in that year. 
That is my question. Is that the first fiscal year, since there is a 
direct cost in that year?
  Mr. KEMPTHORNE. Mr. President, in response to that, again, I do not 
know that we can answer that just based on this. Again, I have to go 
back to what S. 1 is all about. It is a process. Is the requirement to 
remove mercury a current mandate? That would be a question. Is the 
requirement to remove mercury a current mandate?
  Mr. LEVIN. Current before the hypothetical laws if this is adopted?
  Mr. KEMPTHORNE. Yes.
  Mr. LEVIN. The point is that you are asking the CBO to make an 
estimate. I am telling you what their conclusion is. I am telling the 
Senator what the conclusion of the CBO is so we can have a discussion. 
It makes no difference in my hypothetical whether there is a current 
mandate or not. The only thing that is important is this CBO estimate. 
I am giving the Senator the estimate and now asking the Senator if that 
is their estimate.
  Mr. KEMPTHORNE. Mr. President, I am trying to determine what went 
into coming up with this CBO list and the analysis. But, again, is the 
requirement to remove mercury a current mandate in your hypothetical?
  Mr. LEVIN. It would make it a relevant hypothetical because CBO is 
mandated in the bill to come up with the direct cost. In order to have 
a discussion of when the first fiscal year is 
[[Page S1358]] triggered, I am saying this is the CBO conclusion.
  Assume for the moment that you do not disagree with the conclusion. 
Assume for the moment that there is no basis to disagree with the CBO. 
Assume for the moment that everybody accepts it. This is the given I 
want to debate. This is the conclusion of the CBO. And I add further 
that every single Member of the U.S. Congress says: That sure looks 
good to us; they have really done their work, and they have consulted 
with every 1 of the 87,000 local governments in the last 2 weeks. They 
have taken into consideration all of the factors that could be taken 
into consideration. Is there a current mandate or is there not? They 
have done everything perfectly right, and this is their conclusion.
  My question is: What is the first fiscal year? I can understand if 
the Senator says, well, maybe the CBO is wrong. But that is a different 
issue. My assumption is that the CBO is correct, that they have done 
their homework and everybody concludes that is a very good, solid 
estimate. They have done their work and they have read the bill 
correctly. So much hangs on when is the first fiscal year that this 
mandate is effective, and we better understand going in that we are 
going to have points of order on this floor. We are going to ask that 
poor Parliamentarian up there to rule. Do we want the Parliamentarian 
to rule as to when the first fiscal year is that the mandate is 
effective? Do we want the Parliamentarian to rule whether there is a 
mandate? I guess so. But in order to have some clarity of congressional 
purpose here, I am simply giving the CBO estimate, and I want you to 
assume, if you will, that it is correct and that we all concede that 
this is the correct CBO estimated direct cost. We must know when that 
first fiscal year starts. When does that clock start running? If we do 
not know it now when we are passing the legislation, we are never going 
to be able to figure it out later.
  This is where folks will come back for guidance. What was the 
legislative intent? This is it. This is where we are trying to create 
legislative intent, to the extent it is relevant these days--and it 
still is relevant--this is the moment where we have to lay out what our 
intentions are.
  The reason this is different from last year's bill, in last year's 
bill there had to be an estimate. That was fine. If there was not, it 
was subject to a point of order. That was fine.
  And, by the way, last year's bill had the support of the Governors 
and the support of local officials. And, as far as I am concerned, that 
was fine, too.
  But in this year's bill, we have a new point of order. And in this 
year's bill, an awful lot is going to hinge on that estimate, including 
some critical appropriations language that did not exist last year.
  And I will repeat, the life and death of an amendment or a bill can 
be determined by the answer to this question. And it is a 
straightforward question.
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. I am happy to yield.
  Mr. KEMPTHORNE. In the report of the Committee on the Budget with 
regard to S. 1, when you look at this, you have the CBO estimate, and 
that is what we are talking about here. And, Mr. President, as you can 
see, you have all of the information, the steps that CBO would go 
through in order to get this, which may look similar to what the 
Senator's large chart looks like.
  But, again, in this hypothetical, the Senator is not allowing us to 
go through this process. The Senator has simply gone to the conclusion 
of numbers by year. But, again, I do not think you can conclude this 
based on that because you are not allowing us to go through what a CBO 
process would go through.
  Mr. LEVIN. If my good friend will yield again, the only way we are 
going to clarify congressional intent is if we state, as I have stated, 
that after you go through the CBO process, after the CBO goes through 
all of their process, after they have consulted with 87,000 local 
governments, after they have considered whether there is a current 
mandate or not a current mandate, they have done everything right, and 
everyone in the Senate concludes CBO is right and this is their 
conclusion.
  Now, if that is their conclusion, my question is, when is the first 
fiscal year that that mandate is effective?
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, again I would be interested in this 
and we would have to reconstruct this whole scenario. We would have to 
continue with more hypothetical points. What does CBO recommend? Does 
CBO recommend what the effective date would be?
  Mr. LEVIN. Is that the intent of the sponsors, that the CBO 
recommends? We do not give them any guidance? That the sponsors of the 
bill just throw it off to the CBO?
  We are writing a bill here. What are we urging the CBO to do?
  Mr. KEMPTHORNE. Mr. President, the legislation would identify the 
effective date, but it would be based, again, upon input from a whole 
variety of resources and sources. Again, with all due respect, I do not 
think you could simply take one chart, numbers, and say, ``Now, go back 
and reconstruct this whole scenario and tell me what it all 
concludes.''
  Mr. LEVIN. Well, I think there is a serious ambiguity here and, to 
some extent, an abdication if we let this go without clarification. The 
abdication is that we must, as a Senate and a House, later on know what 
the legislation intended. It is central to the bill that the first 
fiscal year in which a mandate is effective is a critical date in the 
bill. A new point of order is created based upon it.
  Last week, I asked the question whether or not the language in my 
hypothetical meant that the mandate was effective October 1, 2005. And 
I am going to read that again, because one sentence says yes, it is 
2005. In the hypothetical, the Senate mandates reductions of dangerous 
levels of mercury from incinerator emissions after October 1, 2005.
  Now, the average reader, the average person reading that bill, would 
say that is the effective date of the mandate. If it is, again, and I 
think my friend would agree with me, as the Senator from Ohio agreed 
with me last week, if the effective date of the mandate is October 1, 
2005, when all emissions must comply, then it will never be triggered 
because all the money is going to be spent before October 1, 2005.
  But I do not think we can have it both ways. We cannot say ``Well, it 
is not the date in the statute, October 1, 2005, because all the money 
is going to be spent before that date, in order to have the emissions 
be in compliance.'' And that is correct. I think that is a logical 
response. If it is going to have any effect at all and any meaning, you 
cannot say that the date in the statute, October 1, 2005, is the 
effective date for the purpose of the point of order. You have to find 
the effective date prior to that.
  And, according to this bill--and I am just reading the bill--the 
first fiscal year that there are direct costs to local and State 
governments is year 1. That is year 1. And you go 5 years. And if, in 
any of those 5 years, this mandate costs more than $50 million, certain 
very, very significant things happen. And if they do not happen, very 
serious points of order lie.
  I do not think we can have if both ways. We cannot say the effective 
date that is in the bill is not the one that governs because it has to 
be before that date and, on the other hand, we are not going to give 
any guidance down the road as to what the first fiscal year is.
  I think that we cannot have it both ways; that we are leaving a 
massive ambiguity in the law. It is an example of where the new bill, 
because it places so much importance on the mandate, goes too far.
  Unlike last year's bill, which had more balance to it and which did 
not link the appropriations of that estimate together, this year's bill 
makes an estimate in the year 1995 that is going to have an impact 10 
years down the road or 20 years down the road. And I believe there is a 
lot of uncertainty and ambiguity, and that means legislative mischief, 
because there is no clarity on just this one point.
  This is just one point.
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. I am happy to yield.
  Mr. KEMPTHORNE. I believe what the Senator has described--and I must 
give him a great deal of credit, because 
[[Page S1359]] he has been very thorough and meticulous on this 
legislation. For that, I think we have already made some perfecting 
language that has been helpful.
  But, really, he is providing us one piece of a puzzle and then he is 
saying, ``Well, because with this one piece of the puzzle you can't 
tell us the whole picture, then the picture does not exist.''
  This scenario, for example, I think lacks the actual legislative 
language. It lacks information from State and local governments and the 
Federal agency on the impact of the legislation. It lacks the text of 
the CBO letter indicating the basis of the estimate, including CBO's 
assumption on the effective date based on the legislation when a 
regulation is written.
  We could continue to construct this scenario and somehow try to back 
into it. But I would add that, through this process, it is on an 
individual basis. These will be devised by the authorizing committee 
based upon not strictly one piece of paper, but based upon much of what 
I just went through in the list. And again, it resides with the 
authorizing committee.
  Mr. LEVIN. Mr. President, my understanding, if the Senator would 
yield, that the Congressional Budget Office is the one that makes the 
estimate. Is that correct? Is that the intent of the statute, that the 
Congressional Budget Office makes the estimate?
  Mr. KEMPTHORNE. For the legislation, yes.
  Mr. LEVIN. Mr. President, now, under my hypothetical the 
Congressional Budget Office has made an estimate. It has taken into 
consideration each of the items that have been mentioned in the 
authorizing bill. I could not agree more with the Senator from Idaho 
that there are many items in the authorizing bill that affect these 
direct costs. There could be hundreds of them. The CBO is mandated by 
this bill to make an estimate. I would not only hope but it is the 
assumption of this chart that the CBO has taken all of the authorizing 
bill's factors into account. After taking them all into account, which 
it is required to do, and after consulting with the State, local and 
tribal governments, it has reached this conclusion that I set forth on 
this chart.
  I do not think it is accurate to say there is a puzzle here of which 
this is a part. This chart is the conclusion of the CBO after putting 
together the puzzle. They have taken each piece of the puzzle and put 
the puzzle together and that puzzle leads them to this conclusion. The 
CBO under my hypothetical has each piece of that puzzle together and 
reached the conclusion that has been set forth on this chart. It is 
true that there are many pieces. It is the CBO that has to consider 
those pieces and then give an estimate. Unless we can tell them now, in 
a hypothetical such as this, when is the first fiscal year in which 
that estimate is effective, we are closing our eyes to a major 
ambiguity and we are going on to the next ambiguity. We are throwing up 
our hands. We are not defining the first fiscal year in which a mandate 
is effective.
  I do not think that that is a way to legislate that will give 
guidance to folks who will be bedeviled by the points of order unless 
they understand what the legislation means and what the intent is of 
the folks that wrote it.
  Now, again, I emphasize, there was a requirement in last year's bill 
for the CBO to make an estimate. I support that. But last year's bill 
was very different from this year's bill in that it did not contain 
this additional requirement relative to the appropriations of funds. 
Much more hangs on the accuracy of this mandate in this year's bill 
than in last year's bill. In last year's bill there had to be an 
estimate, there had to be an authorization for an appropriation to meet 
the estimate.
  What last year's bill did not have and what this year's bill does 
have, is a point of order which makes it improper to consider a bill 
that does not have additional language in it which directs that if an 
Appropriations Committee after the mandate is effective does not 
appropriate money at least equal to the estimate that then a bill must 
direct an agency to cut back on that mandate or eliminate it or be 
subject to a point of order. That is one of the places where this 
year's bill goes too far. The fact that there is no answer to this 
question on this chart is evidence of the fact that this bill goes too 
far in that respect.
  Now, I will press forward because I know that there are folks that 
are trying to end this session at a reasonable hour tonight. Again, I 
raise these hypotheticals as somebody who has had local government 
experience, and frankly had the same frustration with the Federal 
mandates that I think just about everyone has, whether they had local 
experience or not. My good friend from Idaho had greater local 
experience than I did. I was a mere council president but I was 
frustrated, deeply frustrated by mandates that the Federal Government 
imposed.
  I want to act but act in a way which is practical, which works, which 
will reduce the number of mandates, which will force the Senate to 
consider mandates, but which will avoid plunging the legislative 
process into this pit of ambiguity.
  Next question, and I welcome any guidance from the other manager of 
the bill on this issue. We spoke last week. I am happy to yield to the 
Senator from Ohio.
  Mr. GLENN. Mr. President, I will be very brief because I do not have 
a ready answer, as the Senator knows from our previous conversations on 
this.
  I think the things he brings up here as to the implementation of this 
bill are very, very good. And I do not want to rub salt into old 
wounds. We have talked about it enough. These are the kind of things 
that normally we should have worked out in committee. That is where it 
is normally worked out. I do not have a ready answer for this.
  Ordinarily if we are lumping a program or putting some program on to 
Federal, State, or local governments, we would look at what the total 
impact of this would be. Now, that is one way to look at it. The other 
way to look at it is 10 years out, nobody can make an estimate that far 
out. There may be some new technical development that enables us to 
take away mercury in a new way that is cheaper; or an intractable 
problem that winds up more expensive. A nuclear cleanup at the 17 
different major sites all around the country in 11 different States in 
our nuclear weapons complex, the original estimate of cleanup as I 
recall in committee, we would take care of the whole thing for $8 to 
$12 billion. That was in 1985, I believe. Here we are in 1995 and 10 
years later it has gone up to $300 billion and it may go higher than 
that. That is how indefinite some of these estimates are.
  So, while I would like to say that a CBO estimate of costs, whatever 
the total cost of the project is, that would trigger the point of 
order. Then we come up with the uncertainty of 10 years and we may be 
knocking a lot of things out that should be considered.
  So, here we are on the floor working out things like this and trying 
to make acceptable language where we should have been able to do this 
in committee. I will not belabor that because we have already talked 
about it some today. I think we should take whatever time is necessary 
on the floor to work these things out because they are very, very real.
  Now, on the other hand, too, let me make another caveat. That is 
this: This bill was never intended, nor was S. 993, the predecessor, 
intended to take care of absolutely every possible permutation, every 
possible what if that we could dream up. They were meant to, in most 
legislation where there were estimates and we knew what the estimates 
were within some factor of confidence, that in those which are probably 
90 percent of the bills that go through here, we would have a process 
set up for CBO estimates and points of order to lie.
  The distinguished Senator from Michigan who has gone into this 
legislation in, really, a lot more detail, I think, than almost any 
other Senator, I think is to be commended for bringing this up. And 
where possible we should work things like this out. I would come back 
to the original intent of unfunded mandates legislation, and that was 
to get our best estimates and if there were problems like this we bring 
them to the floor.
  If a point of order lay because the total cost to this was $200 
million and we had to have a point of order, fine, we would do that and 
get on with the 
[[Page S1360]] conclusion of the bill in the best judgment of the 
Senate as to what should happen.
  I do not know that we will be able to answer every what-if type 
problem on this. Certainly not now. And I only say one more time I wish 
we had more time to work this out in committee. That is where details 
like this are normally worked out rather than here on the floor taking 
up the time of the Senate.
  Mr. LEVIN. Mr. President, the Senator from Ohio raises another issue. 
I want to discuss with him this question, and that is the outyears. As 
I understand this legislation, the Congressional Budget Office must 
estimate the direct cost of the mandate in all years in which the 
mandates are effective, once the threshold has been exceeded of $50 
million in any of the first 5 years after its effective date. I am 
wondering if the Senator from Ohio would agree with me on that.
  Mr. GLENN. I agree with that statement. I think that is correct.
  Mr. LEVIN. If we can imagine a mandate which does not have a sunset 
provision or is not a 10-year authorization or not a 5-year 
authorization, it is just a permanent authorization, somehow or the 
other the CBO has to estimate the cost forever--forever--of that 
mandate on local government.
  I want to ask the Senator from Ohio, who has perhaps had a better 
view of infinity than anyone in this body, whether he can conceive of 
forever, and how would the Congressional Budget Office possibly 
estimate the direct cost of a mandate, assuming that the threshold has 
been met, on local government for an indefinite period of time?
  Mr. GLENN. Obviously, the answer is that nobody, not the 
Congressional Budget Office or anyone else, can go to infinity on their 
estimates. Normally around here, we do it for 5 years, and we rely on 
those estimates. Under the Budget Act, you have a number of points of 
order lie there. The 5-year estimates are what would normally be made 
here or whatever the mandate was, the length of time.
  As far as how much it is going to cost out in the indefinite future, 
there is no way the Budget Office or anyone else can estimate that 
because of inflation, changes in technology, and a whole host of 
things.
  Mr. LEVIN. My question then of the Senator from Ohio is, since this 
is not an estimate of the 5-year costs, once that threshold has been 
reached--strike the five. I want to change my 5-year time. I do not 
want to get two 5-year periods in here. It would just be confusing.
  There is a 5-year threshold. If, in any of the first 5 years after 
the mandate is effective, there is a $50 million cost to State and 
local governments, at that point an estimate is triggered. The 
estimate, though, is not just for the 5 years.
  Under the bill--and I think the Senator from Ohio just concurred with 
me on this--under the bill, the estimate is for all of the years that 
the mandate is in effect, and that is on page 23, lines 6 and 7: You 
must identify a specific dollar estimate of the full direct cost of the 
mandate for each year or other period during which the mandate shall be 
in effect under the bill.
  There is no 5-year limit, there is no 10-year limit, there is no 20-
year limit, there is no 50-year limit. If the authorization bill has no 
limit, then somehow or another the CBO is supposed to estimate the 
direct cost to local government for every year during which the mandate 
shall be in effect under the bill.
  My question of the managers is, would they consider changing or 
amending this bill so that there would be some finite limit on that 
estimate, even if the authorization bill itself is not limited? I am 
wondering if either of the managers might comment on that question.
  Mr. KEMPTHORNE. Mr. President, I am one who would advocate that 
Congress should not just establish some mandate in infinity.
  Mr. LEVIN. Or without a limit of years.
  Mr. KEMPTHORNE. I think Congress ought to revisit these issues a 
little more often than simply saying now that we impose this mandate, 
it is here for infinity.
  Mr. LEVIN. I am wondering if the Senator is going to cosponsor my 10-
year sunset on this bill.
  Mr. KEMPTHORNE. No, but that is an interesting point. You make the 
point as to why we should not sunset S. 1, because we need to keep this 
process in place to deal with these issues. It is an interesting point. 
Again, I would be willing to sit down with you and pencil out what 
perhaps you are suggesting and see if there is some way to craft this.
  Mr. LEVIN. I agree with my friend from Idaho, by the way, that 
authorization bills should have limits. But there is no saying that 
Senators cannot offer a bill that does not have a limit on the length 
of the authorization. They do it all the time. And if they do, under 
this bill, the Congressional Budget Office is required to make an 
estimate. The managers may not like those bills, I may not like those 
bills, but everyone has a right to introduce those bills, and if they 
introduce those bills, presumably they have a right to get an estimate.
  My question is, how can the CBO make an estimate for each year during 
which the mandate shall be in effect if there is no 5-year or 10-year 
limit in the bill on the mandate? That is the question that I have of 
the managers. I am wondering if the Senator from Ohio might also be 
willing to entertain some kind of a limit on how far out the CBO has to 
estimate a mandate if there is no limit in the bill on the length of 
time that the authorization will be in effect.
  Mr. GLENN. I say to my friend from Michigan, I do not have any answer 
to it right now. I think what you are bringing up is a very good point. 
Let us say, for instance, that we are not going to repeal the Clean Air 
Act, we are not going to say it only applies for a certain length of 
time and then take it off.
  As the States get into implementation of the Clean Air Act, Clean 
Water Act, or whatever, their costs may be completely different from 
what was originally estimated. If so, they come back to us again and 
the appropriate committee should be cognizant of that and take action 
to make sure that is corrected so the States are not unfairly dealt 
with.
  I tend to think that in most cases, on most legislation we would deal 
with, a 5-year estimate would be OK. You can bring up something else, 
though. What if we got into a situation like we were in about a decade 
ago--a little over a decade ago, about 15 years ago--where we had an 
inflation rate that ran 17 percent for a while? What if we got into a 
situation like that and the value of $50 million changes? We might have 
to come back with additional legislation to change that.
  Right now, you are talking about, looking at your 10-year chart on 
the mercury problem and taking it over a 10-year period, as that $50 
million threshold now becomes in actual current dollars worth $25 
million, or something like that. I do not believe that has been 
addressed here either. I do not want to argue against our own bill.
  There are problems like that, too, we do need to address in committee 
or either make corrections in this legislation that is on the floor or 
provide something that takes care of those variables for the future 
also.
  Mr. LEVIN. Mr. President, the Senator from Ohio raises a very 
important question. I may offer an amendment to basically have an 
inflation factor built in so that we would reestimate every few years 
what that $50 million or $100 million or $200 million is to the nearest 
$10 million.
  I have reserved a number of amendments, and one of those amendments 
will probably be that feature of factoring in the inflation factor, if 
needed, so we do not 10 years out from now have the same number.
  The next question has to do with the range, the issue of range.
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. Sure, I am happy to yield.
  Mr. KEMPTHORNE. I would be happy to sit down and see what perhaps we 
could design here because if in fact what the Senator is suggesting is 
that rather than trying to have CBO give an estimate that is many, many 
years down there, that there can be updated reestimates by CBO so that 
we are being realistic in the funds that we are providing to the State 
and local governments to carry out that mandate. If 
[[Page S1361]] that is what the Senator is suggesting, then I think we 
are headed in the right direction.
  Mr. LEVIN. That is actually a related but somewhat different idea. If 
I have enough space on my amendments list, I intend to offer an 
amendment on this matter.
  The Senator from Ohio raised the same question, and this is what it 
is. Let us assume the estimate is that it is going to be $50 million in 
each of the 5 critical fiscal years, and therefore the threshold has 
been met. Therefore, the language must be in the bill or it is subject 
to a point of order. That could be 10 years away, that period that is 
being estimated. And let us assume that 10 years down the road there is 
new technology, as my friend from Ohio said. Instead of it costing $50 
million to address the mercury problem in these incinerators, there has 
been a whole new technology designed and now all of a sudden it is $5 
million.
  By the way, a lot of the previous estimates of costs to State and 
local governments have been overestimates. This is not new, totally new 
what is going on here. We have already required by law that there be 
estimates of costs to State and local governments, and there have been 
hundreds of them, approximately 800 of them, in the last 12 years. A 
lot of those estimates have been overestimates.
  Now I wish to get back to the topic because I am going to try to 
draft an amendment which would address this issue.
  Mr. GLENN. Will the Senator yield just for a correction?
  Mr. LEVIN. I am happy to yield.
  Mr. GLENN. I said a moment ago it raised questions about its 
inflation impact.
  That is provided for in this legislation. The $50 million goes up 
with a correction for inflation each year.
  Mr. LEVIN. I am wondering whether or not the $200 million figure also 
goes up as well?
  It does. All right. That is fine if there is an inflation factor 
already built in. I thank the Senator from Ohio.
  Now, getting back to this question, let us assume that there is an 
estimate that the first affected year, the first fiscal year in which 
the mandate is in effect, let us say it is the year 2001. That is what 
CBO says. We have no better information. It is a guesstimate probably 
at best, the way a lot of these are going to be. But that is it. And so 
the threshold is now triggered.
  At that point we have to put the critical language in the bill that, 
unless the Appropriations Committee in the year 2001 puts in $50 
million to fund this particular mandate, an agency 5 years from now 
must reduce the level of this mandate or, if no money is appropriated, 
must take the local and State governments off the hook totally. That 
language must be in the authorization bill that is passed now for 10 
years from now.
  OK, now the CBO scores it, and they decide it is going to cost $50 
million in the year 2001. That is their estimate--$50 million. Now, the 
fiscal year 2001 comes. The Appropriations Committee says: Wait a 
minute. There has been new technology for the last couple of years on 
the question of mercury. That will cost one-tenth of what they thought 
5 years ago it was going to cost. There is brand new technology. And 
they ask the CBO in the year 2001 to rescore it. CBO says absolutely 
this thing is not going to cost $50 million; this thing is going to 
cost $5 million.
  Under this bill, the agency is still required to reduce the mandate. 
Now, that is wasteful of taxpayers' dollars. I do not think we ought to 
be appropriating $50 million to anybody if $5 million will do the job. 
We are trying here presumably to create incentives to reduce costs to 
Government. In everything we do, we are trying to drive down costs to 
Government.
  This language says unless we address it in some way that the 
Appropriations Committee has to appropriate $50 million in that year 
way down the road even though the CBO in that same year down the road 
tells us it only costs $5 million now because of new technology.
  I ask my friends whether they will work with me on language which 
would allow the Appropriations Committee down the road to appropriate 
less if they have a CBO estimate down the road which says that 
circumstances have changed and it will not cost as much as was thought 
way back then when the estimate was originally made. I am wondering if 
the managers would work with me on such language.
  Mr. KEMPTHORNE. Mr. President, if we were to work out the language, 
would the Senator then support the bill and vote for it?
  Mr. LEVIN. If we could work out enough of these amendments, I would 
like to vote for this bill. I can assure my friend from Idaho that I 
supported the bill last year because I wanted to do something about 
these mandates. But we have to do it in a way which is effective, which 
does not waste taxpayers' dollars, because that is the last thing my 
friend from Idaho wants us to do, and in a way which allows us to 
function effectively as a legislative body.
  So my answer is if we can work out enough changes in the bill that we 
have discussed, I would like to be able to support this bill.
  Mr. KEMPTHORNE. Mr. President, as the Senator described it, if it is 
a situation where we are in essence providing more funds than are 
necessary to carry out the mandate, then, yes, we need to have a 
mechanism because that is taxpayers' precious money, and we do not want 
to abuse that by having it somehow go to purposes for which it is not 
intended.
  Mr. LEVIN. I thank my friend for that, and I will be submitting 
language to the managers along this line.
  Mr. KEMPTHORNE. One other point, if I may. There is a process there 
which is the rescission process by the agencies. The agency that has 
been duly noted by the authorizing committee would deal with that 
issue.
  Mr. LEVIN. The rescission process is a complicated process, but there 
is that possibility.
  The next question relates to range. Is the CBO allowed to estimate a 
range of cost?
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. No; the intent is for the CBO to give us a specific 
on that number on that.
  Mr. LEVIN. The reason I asked that question is because the Budget 
Committee on page 11 says that the committee--this is near the top of 
page 11 of the committee report.

       The committee is concerned about and recognizes the 
     difficulty of making outyear estimates, particularly beyond 
     the 5-year window. The committee notes that the new 
     enforcement procedures are based on thresholds being 
     exceeded. However, if a range of estimates is made and that 
     range of estimates is less than to greater than the 
     threshold, the committee believes the enforcement procedure 
     should apply.

  Which means that at least one of the two committees thinks that 
apparently a range is going to be made at times and is going to be 
provided instead of a specific dollar.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. I know it was the Governmental Affairs Committee, and 
there seemed to be a concurrence and certainly a statement that you 
would take the higher number. So, again, you are not going to be 
dealing with a range but you take the higher number. That is why I 
think in this scenario they are saying if you have a threshold and 
someone is suggesting numbers that are less than or greater than the 
threshold, it is the larger number that you deal with. That would be 
the number that we would take.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, that is what this one committee report 
says. But last year, that was not agreed to in the Governmental Affairs 
Committee, may I say. That was the subject of great discussion in 
Governmental Affairs. There never was a resolution of that issue.
  But there are two issues. First, is a range allowed and, if so, what 
is the number? And if we are saying if a range is given by CBO that, 
No. 1, it is going to be allowed, then we have to figure out what the 
number is and the bill should be explicit on that question. My 
understanding is that a specific amount is required in this bill. That 
is the language in the bill. Yet, we got a committee report that talks 
about the possibility of a range. So I think we 
[[Page S1362]] have an inconsistency between the bill and the committee 
report.
  But if a range is going to be permitted, then it seems to me the bill 
must be explicit as to what will be that magic, specific amount upon 
which a point of order is going to either lie or not lie. I must say, I 
do not see any logic in saying that if the range is from $10 to $60 
million, we are going to assume for purposes of the point of order it 
is $60 million. Why not take the midpoint of the range?
  I do not think there is any logic in saying the high point will 
govern anymore than there is in saying the low point will govern. It 
seems to me the best approach will be to say the middle will govern. 
But it seems to me in any event this bill is not clear on the question 
of whether or not a range is going to be permitted, and that it is 
important that we do so. Otherwise, we could have wild ranges where the 
CBO--in some of these cases, believe me, it is not beyond the realm of 
imagination that the CBO is going to say this is somewhere between $10 
million and $100 million.
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. I will be happy to.
  Mr. KEMPTHORNE. In that hypothetical where you say it is between $10 
million and $60 million, that you take the midrange, the reason that I 
would be an advocate that you take the larger range is because S. 1 is 
based upon the presumption we are going to provide the funds to State 
and local government, and therefore in order to protect them, you would 
take the larger range. Otherwise, we have a real possibility that we 
are underfunding.
  Mr. LEVIN. The other possibility, if I may ask the Senator to yield, 
is that we are overfunding. We do not want to be appropriating more 
money or requiring the appropriation of more money than is needed to do 
the job. They are both unacceptable, either to appropriate less money, 
if it is our determination to fund the mandate, or to appropriate more 
money than required.
  Mr. KEMPTHORNE. If the Senator will yield, then we do have a 
rescission procedure that is in place.
  Mr. LEVIN. We also have subsequent appropriations which are possible, 
as well. We are trying to legislate now on the basis of an estimate. 
There is no logic in an estimate to say we are going to go with the 
high point of a range anymore than there is to say the low point of a 
range. But the important point is that the legislation be clear, and it 
is not.
  If I can say to my friend from Idaho, if we want to allow a range, we 
should say so. If a range is going to be allowed, we should say what it 
is our intent that the estimate will be. That is simply my point. This 
bill is not clear on a very critical issue, which has been the subject 
of great debate.
  Finally, on this issue, in last year's Governmental Affairs 
Committee, the committee agreed that the range issue would need to be 
resolved on the Senate floor when S. 993 was brought up for 
consideration. I urge the managers to clarify the range issue.
  Mr. KEMPTHORNE. If the Senator will yield? I have been advised that 
CBO, with regard to the Budget Act, rarely uses ranges. And also, I 
remind all of us, with this process you do have the waiver. If there is 
something that comes up that you feel, therefore, you should bring to 
the floor to convince a majority of Senators that there is a reason to 
waive this point of order and those steps involved, you may do so. 
There is flexibility in this legislation.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, contrary to S. 993, I think this piece of 
legislation on which we had a debate last year--and I recall the 
Senator from Michigan was going to have a debate that dealt with some 
of this, this legislation--I believe what we provide here is that CBO 
will make an estimate. If they cannot make an estimate, they say they 
cannot make an estimate and that is it. And we do not provide for a 
range here, specifically. I think that is the way it should be.
  If the range is of such order that CBO cannot estimate whether it is 
going to be above $50 million or not, then tell us that and that is 
part of the information we need, that it is that uncertain. So I think 
to try to force them into making an estimate of ranges, I would not 
favor that. I think it would be better this way, in this bill, where we 
provide for an estimate. If they cannot make an estimate that they say 
is within some range of being probable, then they tell us that and say 
they cannot make an estimate and that is part of our fact pattern here 
on the floor.
  Mr. LEVIN. Is it then the intent of the Senator from Ohio that if the 
range estimate is made by the CBO, that that would be the same as no 
estimate?
  Mr. GLENN. I think it would be very infrequent they would run into 
that type of situation where it would spread over our threshold. That 
is the question you are talking about. We are not talking about whether 
on a $50 million threshold the estimate is $75 or $100 million.
  Mr. LEVIN. There are two questions.
  Mr. GLENN. In either case. As long as CBO can tell us in their best 
judgment it is going to exceed the threshold, that is what we need to 
know, and have some estimate of that and give a figure. I think when we 
get into these ranges and you say what if the range is $10 million to 
$1 billion, for instance--just to pick numbers--then it is they could 
not possibly do that and it would be of no use to us here on the floor, 
anyway. So I think we are on solid ground saying either pick an 
estimate and that is the figure we hopefully rely on, or if they do not 
have any confidence in that figure, tell us that and they just cannot 
make an estimate.
  Mr. LEVIN. Mr. President, I am wondering whether the Senator from 
Idaho would agree we should prohibit ranges in this legislation? What 
the Senator from Ohio is saying is we do not provide for ranges in this 
legislation. It was a much-discussed issue.
  I know a lot of time has been taken this evening on this issue, 
probably 15 or 20 minutes already. More time was taken in committee and 
it was unresolved on last year's bill.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. The bill now is silent on this thing of ranges. It says 
CBO will make an estimate. That means to me they will make an estimate.
  Mr. LEVIN. No range.
  Mr. GLENN. No range, is the way I interpreted that myself. If they 
cannot do that, then they just tell us that and we take that into 
consideration.
  Mr. LEVIN. I am wondering whether the manager of the bill and chief 
sponsor agrees with the interpretation of the Senator from Ohio?
  Mr. KEMPTHORNE. Mr. President, again we are not plowing new ground 
here. We are following the procedures of the Budget Act. Again, I have 
been advised that rarely do they come up with a range.
  If you have a range that is a wide range, from CBO, then I think 
perhaps the authorizing committee has not provided enough information 
so they can zero in on what that actual figure should be.
  Mr. LEVIN. I am wondering whether the Senator from Idaho agrees with 
the Senator from Ohio that in effect a range is not permitted or 
authorized under this bill? And that if they cannot give a specific 
amount, that they must then say it is impossible to give a specific 
amount?
  That is what the Senator from Ohio said. I am wondering whether the 
Senator from Idaho agrees with that interpretation of the manager on 
this side?
  Mr. KEMPTHORNE. Again, right now, I do not think this legislation 
states what a range is--it is silent on that question.
  Mr. LEVIN. The Senator from Ohio said in his judgment a range is not 
permitted under this bill and that if they cannot give a specific 
amount and can only give a range, that the CBO must tell us it is 
impossible to give a specific amount. That is what I understood the 
Senator from Ohio to be saying.
  I am wondering whether or not the Senator from Idaho agrees with that 
interpretation?
  Mr. KEMPTHORNE. No, I--again, I do not know if that is encouraging 
some vagueness. I think the authorizing committee would say narrow that 
range. If CBO comes back and says this is the figure or the figures, 
then that is their estimate. It does not create the presumption that 
they have not been able to provide an estimate.
  Mr. LEVIN. One last question on the range. I think the sponsor of the 
bill is basically saying the bill is silent. The 
[[Page S1363]] cosponsor of the bill, the Democratic manager, is saying 
in his view the bill would not allow for it. And I do not think that is 
the right way for us to legislate. I think this is the time to clarify 
that issue. It is an important issue, I can assure my colleague. It has 
been brought up in committee at some length.
  In the event, I ask my friend from Idaho, there were a range given by 
the CBO, and that range were $100 million to $500 million, what then 
would be the specific amount that would have to be authorized in the 
bill in order for a point of order to be avoided?
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER (Mr. Frist). The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, again, I would be more than happy to 
defer to a Senator who is on the Budget Committee to respond to this 
because again this is simply following that. So while this legislation 
is silent, CBO continually has been providing specific numbers. So I do 
not know to what extent this is going to really create that unusual 
problem and how many times. But in that event, again that number, or 
the CBO's estimate, comes back to the authorizing committee where they 
can deal with that and determine if they want to provide more 
information so CBO can then narrow it.
  Mr. LEVIN. I thank my friend.
  This is a very different process, may I say. The CBO would never have 
to determine whether or not there was a mandate that applied to local 
government, what year it is effective, and it was never required to 
create with the specificity that is going to be needed here to avoid a 
point of order, and involving appropriations what the estimate is of 
the cost to 87,000 jurisdictions.
  Sure, the CBO has made estimates before. I mean we know they have 
made estimates for the cost to the Federal Government. But in this case 
there are 87,000 jurisdictions. They may have to do this in a matter of 
hours.
  OK. Let me just plow on here.
  Mr. GLENN. Mr. President, will the Senator yield?
  Mr. LEVIN. I would be happy to.
  Mr. GLENN. Mr. President, the way this is set up now is we are 
supposed to get our estimate from the CBO. They give that estimate then 
to the Budget Committee. The Budget Committee then has authority, as a 
range as I understand it--staff can correct me, if I am wrong on this--
if the Budget Committee wished to, if the Budget Committee wanted to 
pick a figure in their wisdom, then that would be up to them to do that 
and recommend it to the Senate. I think that is the way it is provided 
for in the bill.
  Mr. LEVIN. If the Senator will yield on that, when we are in 
committee before we get to the floor, all we have is the CBO's 
estimate.
  Mr. GLENN. That is correct. But if the CBO has difficulty making an 
estimate or giving us a figure to go on, then it would be up to the 
Budget Committee to decide whether to give us the exact figure or to 
say there can be no figure. I think that is the way the bill is 
structured right now.
  Mr. LEVIN. Then the bill would have to be amended to provide that the 
Budget Committee would get involved prior to the markup of the bill in 
committee. Because as I understand it, it is CBO that makes the 
estimate and the Budget Committee does not become involved until the 
bill gets to the floor.
  Mr. GLENN. If the Senator will yield, I think he is correct. I think 
the way it would work is in the committee, when you are considering the 
bill, the Budget Committee would not be involved at that point. You 
would have a CBO estimate. There would be a range on that, and I would 
say the figure would apply. It is when you come to the floor. Then the 
Budget Committee is required to put their judgment, their imprimatur, 
their approval on what the CBO has given to the Budget Committee.
  Mr. LEVIN. Unless the amendment of the Senator from Ohio is adopted 
that says that the point of order is at the end of the process instead 
of the beginning--in other words, the way the bill is currently, it 
would be out of order even to bring the bill to the floor with a range. 
There is not a specific amount in the bill.
  Let me just keep going to the next ambiguity. Let us assume that the 
CBO has made an estimate. Somehow or other they make an estimate that a 
bill in each of the five fiscal years is going to cost $40 million. 
That is what the CBO estimates before the markup of the bill in 
committee, $40 million, in each of the five fiscal years. Nothing is 
triggered as I understand it. Is that correct?
  A Senator now wants to offer an amendment in my hypothetical that 
says the following: This amendment that is in front of each of the 
managers says that because of a health emergency no new incinerator may 
be built within 300 yards of a school or hospital after October 1, 
2005. That is an amendment to the bill. Again, the bill has to do with 
the levels of mercury.
  Question No. 1. Can a Senator even get an estimate under this bill? 
Do we have a right as individual Senators to get CBO's estimate as to 
what that amendment could cost? And would the managers of the bill 
support language which would indicate that individual Senators have a 
right to get estimates since our amendments can live or die depending 
on whether we can get an estimate? If you cannot get an estimate, your 
amendment is out of order. You do not even get to the point of the 
amount of the estimate. If you cannot get an estimate, your amendment 
is out of order.
  So will the Senator's support language which will allow an individual 
Senator or Member of the House to get an estimate so that his or her 
amendment can be in order?
  Mr. KEMPTHORNE. Mr. President, yes. I would agree to that.
  Mr. LEVIN. I thank my friend. That language is being worked on as we 
speak.
  The next question is this: That amendment, let us say, is to be 
offered. I am an individual Senator. I get the CBO to give me the 
estimate, and, by gosh, it comes back that that amendment is going to 
cost $20 million per year in each of the fiscal years. Here is the 
situation we are now in. The bill says that mercury emissions change is 
going to be done by a certain year. CBO has scored it at $40 million a 
year. It is not above the threshold, and nothing is triggered. I come 
along now and offer this amendment on the setback. That is going to add 
$20 million in each year, and if adopted in committee by the committee. 
Now it comes to the floor.
  My question is: Is the bill coming to the floor subject to a point of 
order for being above the threshold? CBO has scored the mercury 
emissions change at $40 million. The amendment adopted in committee 
would add $20 million. The question is, Is it in order for the Senate 
to consider that bill?
  Mr. GLENN. Mr. President, it would be my opinion that once you exceed 
that threshold, that is a cost to the State that exceeds our Federal 
mandate for the threshold that is set and the point of order should 
apply, would be my opinion. I have not gone back to the fine print. But 
that would be what I think would be right because it would finally be 
going over the threshold of the State. That is what was set as our 
limit.
  One other comment on the Senator's hypothetical. I would think the 
health emergency that he mentions here, bona fide emergencies, are 
exempted from consideration of a point of order under this. If this was 
let us say a Presidentially-declared emergency, that we have learned 
something new about mercury and whatever, and the distance from a 
school or whatever, if it was a Presidentially-declared kind of an 
emergency, then I think it would all be exempted from any requirements.
  Mr. LEVIN. I would like to get to that issue of the emergency in a 
moment.
  I am wondering if the Senator from Idaho would agree that that $20 
million committee amendment would push this above the threshold so it 
would not be in order to bring this bill to the floor of the Senate, if 
a point of order was raised, without raising that point of order.
  Mr. KEMPTHORNE. Yes, I would agree with that.
  Mr. LEVIN. That raises two questions. One is, this is just a 
committee amendment, it has not been adopted by the Senate yet.
  Mr. KEMPTHORNE. Would the Senator repeat that?
  Mr. LEVIN. The committee has adopted the amendment that costs $20 
million, but the Senate has not. Why 
[[Page S1364]] would it be out of order to bring the bill to the Senate 
floor?
  Mr. KEMPTHORNE. Yes, perhaps I can clarify. I do not believe it would 
be out of order to bring the bill up. A point of order could lie 
against the amendment.
  Mr. LEVIN. Well, the amendment is $20 million, and $20 million is 
under the $50 million threshold.
  Mr. KEMPTHORNE. But it is the mechanism that causes the threshold to 
be exceeded.
  Mr. LEVIN. Is the answer, then, if the amendment is adopted, then the 
bill would be subject to a point of order, or the amendment itself 
would be subject to a point of order?
  Mr. KEMPTHORNE. It is my understanding that the amendment itself 
would be subject to a point of order.
  Mr. LEVIN. Would the Senator from Ohio be willing to comment on that?
  Mr. GLENN. State your question again, please.
  Mr. LEVIN. The bill that comes out of the committee has a $40 million 
annual price tag in each of the 5 key years. There is a committee 
amendment which would add $20 million to each of the 5 fiscal years, if 
that amendment were adopted by the Senate, but it has not yet been 
adopted. The committee amendment is now offered in the Senate. Is that 
amendment subject to a point of order?
  Mr. GLENN. No, it would not be. What my proposed amendment I put in 
earlier today would say is that we would have a point of order lie at 
the end of all consideration of the bill before a final vote. If there 
is a cumulative effect of exceeding the $50 million, then that would be 
voted on as a point of order at the end of the process.
  Mr. LEVIN. Well, there seems to be two different opinions on this 
issue. I think that it is important that the language of the bill be 
clear as to whether or not a point of order would lie against a bill 
coming out of the Committee, which does not violate the threshold, 
before a committee amendment is considered.
  Second, is the amendment of the committee subject to a point of order 
before it is even adopted? There are two different opinions on that 
issue from the managers, and I think that ought to be clarified. May I 
say that, in any event, it would be another reason why the amendment of 
the Senator from Ohio putting the point of order at the end is, I 
think, a wise approach to this.
  Mr. President, on the emergency issue--and I see that the majority 
leader is on the floor, and I have a hunch that means he would like to 
see this colloquy come to an end. I think the managers may join him in 
that feeling because it has been a long day for them.
  I will just ask this last question and we will pick this up tomorrow. 
If a bill says that there is an emergency situation, for instance, on 
the setback issue on the school, how would a President declare an 
emergency? In other words, if the bill itself says that there is an 
emergency and the President signs the bill, does that meet the test of 
this emergency requirement? The language on page 13 says ``that the 
President designates as emergency legislation.'' I do not know of any 
mechanism for that to happen. ``And the Congress so designates in a 
statute.''
  My question is: If the statute states that this is emergency 
legislation, would not the signature of the President to it satisfy 
subsection 6 on page 13? That is my question. If the answer is no, 
would the sponsors tell me how does a President designate legislation 
as emergency legislation? Does that mean we could not induce the 
legislation, that we would have to wait for some kind of a designation 
from the White House?
  Mr. KEMPTHORNE. Mr. President, again, following the Budget Act, 
Senate bill No. 1 goes under the Budget Act. The current process is 
that the President would send a letter to Congress stating that there 
is an emergency. The Congress would then include in the legislation the 
statement that an emergency exists.
  So it is a two-pronged approach. First, a letter from the President, 
and then the legislation which would include the acknowledgement of an 
emergency.
  Mr. LEVIN. Then my understanding of the answer of the distinguished 
manager is that in order for this subsection to be invoked, and an 
exception to the point of order requirement or language be applicable, 
the President must initiate by letter legislation and designate it as 
emergency legislation, and we as individual Senators, or Members of the 
House, could not introduce legislation with that designation and avoid 
the point of order in the absence of that prior letter; is that 
correct?
  Mr. KEMPTHORNE. Mr. President, that is the current procedure with the 
Budget Act. But I state to the second part of that, could not Congress 
initiate something--again, you could seek a waiver of the point of 
order. That may be your justification.
  Mr. LEVIN. Mr. President, there have been a number of statements on 
the floor which are going to help me shape amendments. I think what I 
would like to do--again, I see the distinguished majority leader on the 
floor. I would at this point thank the managers of the bill for 
engaging in these colloquies. I think they are absolutely critical to 
clarify legislation which is going to affect just about every amendment 
and bill that comes to the floor, and new points of order are being 
created. We should think these through and make sure they are clear. 
Some of the amendments which I think now can be offered--some of which 
I believe will now have the support of the managers--perhaps will 
clarify that.
  I yield the floor.
  Mr. GLENN. Mr. President, I know the distinguished majority leader 
wants the floor shortly. But let me comment briefly here. I think 
Senator Levin has brought up a number of very good points. They are 
excellent points and things we should have worked out before we go 
ahead with this landmark legislation. It is landmark legislation. We 
are reversing a trend here of some 60 years, and we better do it right 
and make sure it is going to work.
  When we talk about this on the floor--and I will not go through all 
of the arguments at this hour of the evening, but I doubt very much if 
we are going to be able to answer all of the very good questions with 
amendments by 3 o'clock tomorrow afternoon. I do not see how that is 
possible. We may want to think about this overnight and perhaps address 
this tomorrow. I am not saying this is an effort to delay this. These 
have been honest-to-goodness questions on how this would operate. There 
have been 5 or 6 points made to things we do not have the answers to, 
and we should try to get answers for as many things as possible.
  I do not think we can take every possible ``what if'' and make sure 
everything is covered perfectly, because this bill was designed to be a 
general guidance-type bill. On the other hand, where specifics are 
brought up that indicate there would be a problem, I think it is 
incumbent upon us to address these things when we can. I am not 
proposing that we extend the time tomorrow for proposals that would 
deal with what the Senator from Michigan has brought up this evening. 
But I wanted to raise this as a possibility, because I do not think we 
are going to be able to put this all together by 3 o'clock tomorrow 
morning. Maybe the staffs can get together and we can talk about this 
tomorrow and see how we can work it out. I do not know whether the 
majority leader has been listening in his office or working on other 
things. I think he would have to agree that there are real questions 
that should be worked out before we lock this up for final passage. I 
open that up as a possibility for tomorrow that we want to consider 
some time tomorrow morning or tomorrow afternoon.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank my friend from Ohio. We will work 
hard overnight as well to try to cast language for the additional 
amendments to address some of these issues and do our very best to meet 
the timetable.
  Mr. DOLE. And, of course, if the amendments are offered, we can have 
a discussion after 3. I guess the question would be whether there are 
some amendments that did not get offered. But if it is some critical 
amendment, then I think, under the order, the two leaders could agree 
to make an exception to the 3 o'clock cutoff, which, if it 
[[Page S1365]] is a legitimate amendment, I think that is what we 
should do.
                           AMENDMENT NO. 178

  Mr. MACK. Mr. President, the Senator from North Dakota raises some 
worthwhile points.
  The formulation of monetary policy ought to be of interest to all of 
us, and he is right to raise questions.
  I, too, have questions about the Fed's operation of monetary policy. 
I've been concerned for a long time that the Fed, despite its 
independence, was forced to meet more policy goals than it is capable 
of meeting.
  In fact, Chairman Greenspan has told me in a public hearing that the 
Humphrey Hawkins Act forces the Fed to act in such a way that he 
believes is not in the long-term best interest of American jobs and the 
economy.
  For this and other reasons, I plan to hold hearings in both the Joint 
Economic Committee and the Banking Committee to examine amendments to 
Humphrey Hawkins. The Senator from North Dakota will, I'm sure, be very 
interested in changing Humphrey Hawkins because such changes should 
keep interest rates much lower than we have been used to.
  We ought to save this debate for a few more weeks and not delay 
passing the unfunded mandates bill. I can assure the Senator from North 
Dakota that the issue of monetary policy will be aired fully.
  The Dorgan amendment should be tabled, and I encourage my colleagues 
to do so.
  Mr. MACK. Mr. President, State and local governments have been paying 
billions of dollars to comply with unfunded Federal mandates since the 
1970's. As the Federal budget gets tighter it becomes more tempting to 
pass legislation telling State and local governments how they must 
spend more and more of their resources. According to the Congressional 
Budget Office roughly 10 to 20 bills that are reported out of 
committees every year contain unfunded Federal mandates of over $200 
million each. This seemingly endless stream of legislation imposing 
greater burdens on our cities and States is what prompted me to 
introduce legislation in the 102d Congress similar to what is being 
considered today.
  The time is long overdue to focus attention not only on the benefits 
bestowed by legislation we pass, but also on the burdens imposed by the 
legislation. Some of this legislation, while noble and well-intended, 
has had the effect of thrusting Federal policymakers into the limelight 
as champions of a cause, while leaving the price tag for implementation 
with the State and local governments. Unfunded mandates place an 
unbearable strain on local budgets that are already burdened by local 
demand and, in effect, force back-door tax increases to cover mandated 
costs.
  State and local resources don't automatically rise whenever the 
Federal Government requires new spending. As a result, State and local 
priorities get subordinated. For example, suppose the top priority for 
the city of Tallahassee is combating drugs and crime, or they need to 
replace wornout firefighting equipment. When the Federal Government 
mandates that Tallahassee spend x dollars on housing and asbestos 
removal, or face heavy fines for noncompliance, they effectively 
scuttle the city's top priority. The dollars used to build housing or 
remove asbestos are not available for addressing drugs and crime or 
fighting fires.
  Some local governments have responded to the crush of mandates by 
raising revenue through imposing greater fee for building permits, 
water and sewer hookups, and subdivision approvals. Localities have 
also
 imposed development impact fees that total thousands of dollars. The 
National Association of Home Builders estimates that the impact fees in 
the State of Florida total $5,000 per home.

  In a State like Florida, the issue of unfunded Federal mandates is 
even more serious given the tendency by the Federal Government to 
ignore Florida's growth when determining the State's share of Federal 
funds.
  This legislation will help us focus on a problem that has been 
growing for decades. In the future we will not pass legislation without 
knowing what it costs and who is going to pay for it. It is simply 
unfair to force State and local governments to choose between complying 
with Federal mandates and their more immediate local needs. I urge the 
swift passage of this important bill.

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