[Congressional Record Volume 141, Number 15 (Wednesday, January 25, 1995)]
[Senate]
[Pages S1525-S1531]
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.


                           Amendment No. 198

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that when the 
Senate considers amendment numbered 198, that there be 20 minutes for 
debate to be equally divided in the usual form, that there be no 
second-degree amendments in order, and that following the conclusion or 
yielding back of time, the Senate vote on the McCain amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. I yield the floor.
  Mr. McCAIN. Mr. President, I thank both my friend from Idaho and the 
Senator from Michigan for their cooperation on this amendment. I 
believe it is an important amendment. I talked about it at length 
yesterday, Mr. President, and I know there is significant pending 
business before the Senate. I believe we now still have about 30 more 
amendments to consider, so I would be more than happy to yield back the 
balance of my time if that is acceptable to both managers of the bill.
  Mr. President, I ask unanimous consent to request if the Senator from 
Michigan or the Senator from Idaho have any further discussion on this 
amendment?
  Mr. LEVIN. Mr. President, I wonder if my friend from Arizona would 
yield for a question.
  Mr. McCAIN. I would be glad to yield.
  Mr. LEVIN. A question has arisen as to whether the words ``any 
legislative provision'' on line 7 of his amendment are intended to 
mean, in effect, authorizing language.
  Mr. McCAIN. It clearly means any authorizing language.
  Mr. LEVIN. I thank the Senator from Arizona. My understanding is that 
the manager on this side supports the amendment. I understand that 
Senator Byrd is supportive of the amendment, and I would be happy to 
yield back any time that I might control.
  Mr. McCAIN. I yield back the balance of my time.
  The PRESIDING OFFICER. All time is yielded back. The question is 
agreeing to the amendment.
  So the amendment, No. 198, was agreed to.
  Mr. KEMPTHORNE. I move to reconsider the vote by which the amendment 
was agreed to.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. KEMPTHORNE. Mr. President, I want to thank the Senator from 
Arizona for his efforts and his diligence in that. I think it is a 
particularly important amendment that he has offered. I appreciate the 
manager on the other side of the aisle and his support on this.
  Mr. LEVIN. Mr. President, on Monday night I had a lengthy colloquy 
with the managers, the principal sponsors of the bill, the Senators 
from Idaho and Ohio. A number of important questions were left 
unanswered. In some cases, the answers were conflicted. Those questions 
concern issues that are central to the way this bill will work. They 
need to be answered, I believe, before we conclude our work on this 
legislation.
  These are the questions which I have, and I have given a copy of 
these questions to my friend from Idaho. I want to read them, put them 
in the Record, in effect, and ask they be answered by tomorrow at some 
point. I am not seeking an answer, one-by-one at this point, because 
they take some time, I would think, to attempt to answer, if, in fact, 
they can be answered.
  Here are the ones that we had left outstanding. First, the effective 
date of the mandates. When is a mandate effective? That is an 
absolutely critical issue because that date sets off a 5-year time 
period and if during any one of those 5 years there is an estimate that 
the cost of the mandate is over $50 million, certain very significant 
things are triggered.
  So it is critical to know when is a mandate effective, and we had a 
long discussion on that on Monday night with a chart.
  If that is determined on a case-by-case basis, then who makes that 
decision and when is that decision made?
  The second group of questions relates to the question of whether an 
estimate can be given in the form of a range; could an estimate be that 
that will cost from $20 million to $80 million a year, or any other 
range? And here the questions are as follows:
  Can the CBO estimate be in the form of a range?
   [[Page S1526]] Can it be in the form of a range for the purpose of 
the threshold?
  Can it be in the form of a range for purposes of the total cost 
estimate?
  If the CBO reports a range, what is the ``specific dollar amount'' 
for purposes of the point of order? And who makes that decision?
  Then there are a series of questions that relate to amendments and 
their coverage under this bill.
  First, are the direct costs of an amendment, added to a bill in 
committee, to be included in the estimate of direct costs of the bill 
as reported?
  What if the Senate rejects the committee amendment? For instance, let 
us say a bill is estimated to cost $30 million a year for each of the 5 
fiscal years, so it is not over the threshold. But there is a committee 
amendment that has been adopted in committee that adds another $30 
million a year to the bill.
  If the $30 million committee amendment is added to the $30 million 
cost to the bill that was taken up by committee, that would put it over 
the $50 million and breach the threshold and the bill would not be in 
order to even be considered by the Senate. But is the committee 
amendment cost to be included in the cost of the bill before it is 
adopted by the Senate? It is technically not part of the bill until the 
Senate adopts it, even though the committee has adopted it.
  If it is included in the bill, what happens if the Senate rejects the 
committee amendment?
  Is an amendment offered on the floor subject to a point of order 
based on the estimate of direct costs of the amendment alone, or the 
amendment if added to the bill?
  Is an amendment offered on the floor out of order if it does not have 
a CBO estimate of direct cost?
  Then there are some questions relating to the exclusions:
  Who will decide whether a bill is subject to one of the exclusions? 
We have a number of exclusions here and there are always going to be 
questions of interpretation as to whether or not an exclusion applies.
  Who will decide that?
  What will specifically be required to meet the terms of the bill with 
respect to a finding of emergency?
  And then the final set of questions relates to the length of the 
estimate, and here, rather than addressing the problem through a series 
of questions, I will be seeking consideration tonight of one of my 
amendments which would place a time limit on the estimate.
  I have given a copy of a modification to my amendment to the majority 
manager. I do not know if they have had a chance to look at the 
modification yet. But I will seek to get that issue resolved by a 
modified amendment.
  The issue here is a kind of fundamental one. Once that threshold is 
breached, then you have to have an estimate of the direct costs of the 
bill or the amendment to State and local governments for as long as 
there are costs. Unless there is a sunset provision in that 
authorization bill, those costs have no time limit.
  Then the CBO would be in the position of trying to estimate cost to 
State and local governments for decades, 50 years, 100 years. It is an 
impossible burden which will raise even greater questions about the 
accuracy of the estimate. An awful lot rides on these estimates. The 
life or death of a bill or amendment may ride on the estimate.
  So I will be offering an amendment in this area to put a limit of 10 
years on that estimate so we can get something, hopefully, a little 
more practical from the Congressional Budget Office.
  But those are the questions which I would appreciate having answers 
to tomorrow. They go right to the question of whether this is a 
workable piece of legislation. Its goals are very admirable. I 
supported its predecessor. There is a whole new point of order that has 
been added this year which is going to create a real different 
situation on the floor relative to bills and amendments, and we have to 
think through this process in advance.
  We are putting tremendous burdens on the CBO to suggest that they are 
going to be able to come up with estimates in a matter of hours, 
perhaps minutes, on amendments, and some people say, ``Well, if you 
know you are going to offer an amendment, get it to the CBO a day 
before, 2 days before, 2 weeks before.'' Of course, some of these 
estimates can take months.
  But there is also an answer to that, and that is that, in many cases, 
we do not know and cannot know that we are going to offer an amendment 
because an amendment could be a second-degree amendment. We are not all 
privy to everybody's first-degree amendments around here. We do not 
have amendments printed in advance. I would like to see a rule, by the 
way, which would require amendments to be printed in advance, but we do 
not have any such rule.
  So you do not know who is going to call up an unprinted, unfiled 
amendment to a bill. Somebody can call one up without previous notice, 
and then, if you want to offer a second-degree amendment, in order for 
it to be in order, you have to have an estimate from the CBO.
  Now, what do we do? Do we hold up the processing of the whole U.S. 
Senate while the CBO tries to estimate the costs forever, maybe, on 
87,000 jurisdictions? We have to work through this in advance. It is a 
complicated issue and, again, when we had last year's bill, we did not 
have that final point of order that had such an appropriations impact 
embedded in it, as we do in this year's bill.
  So if the estimate was wrong last year, it did not have serious 
consequences. It had consequences; the bill would be subject to a point 
of order if it did not have the estimate. But it did not have this 
additional point of order with this appropriations aspect to it that 
this year's bill has.
  So, Mr. President, at the appropriate time, I will offer, when the 
majority is ready, this amendment putting a 10-year time limit on the 
estimate of the CBO because I think that is a relatively practical 
length of time for which we can get an estimate.
  The modification that I will seek unanimous consent for on this is 
that the 10-year limit on the estimate apply to both the private sector 
estimate as well as the public sector estimate. I believe the way my 
amendment was written and filed, it only applied to the public sector 
estimate. We should seek practicality and workability for both the 
private and public sector estimates.
  I did not mean to rush the manager on the majority side. I know they 
may not have had a chance yet to look at this, but whenever he is 
ready, I am ready to offer this amendment.
  Again, I also appreciate his engaging in these colloquies on this 
bill. He is performing a very important function by trying to clarify 
the legislative intent, and the questions which I have read and which I 
will now submit to the desk are questions which I would appreciate your 
attempting to answer by tomorrow.
  I thank the Chair, and I yield the floor.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER (Mr. Santorum). The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I appreciate the spirit in which the 
Senator from Michigan has provided these questions, and I appreciate 
the fact he is not requiring an immediate response. I always 
appreciated take-home exams instead of pop quizzes, but I will be happy 
to provide the answers, to the extent I am capable, sometime tomorrow. 
I appreciate his effort as we work through this bill.
  Mr. President, I know that the Senator from Iowa is here and will be 
calling up his amendment. I would like to inquire, I believe on the 
previous unanimous-consent agreement, we had a time agreement of 30 
minutes equally divided?
  The PRESIDING OFFICER. That is correct.
  Mr. KEMPTHORNE. And that no second-degree amendments were in order; 
is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEVIN. Will the Senator yield just for one moment, for a 
parliamentary inquiry? Is there a unanimous-consent agreement in effect 
on the Grassley amendment? Is there a time agreement?
  The PRESIDING OFFICER. Yes, there is.
  Mr. LEVIN. Is there a unanimous-consent agreement indicating when the 
Grassley amendment will be called up?
   [[Page S1527]] The PRESIDING OFFICER. No, there is not.
  Mr. LEVIN. At that point, I would note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DOLE. 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. DOLE. Mr. President, some of the Members are inquiring about the 
schedule for this evening. It is slow, I can tell you that. We are not 
making any progress. On the 11th day on this bill, we have had only 
three votes. Two votes. It is worse than I thought.
  Now, if this is not delay, I do not know what delay is. So we are 
going to be here a long time tonight, I am fearful. There will not be 
any window. We are going to vote as the amendments come up. We just 
have to stay here and do it.
  I regret that I cannot accommodate some of my colleagues on both 
sides of the aisle. We are spending 90 minutes on immigration 
amendments. A lot of things have nothing to do with this bill at all. 
Anything anybody can think of has been offered as an amendment--Social 
Security amendment having to do with a balanced budget. We have to 
debate that again on this bill.
  I have about reached the point where we will either file cloture 
tonight or start tabling these amendments unless they are offered and 
you have limited debate. We do not need 40, 50, 60 minutes on some of 
these amendments or rollcall votes on some of these amendments.
  So I must say that I do not know any other alternative. If somebody 
stands back here and banters back and forth for a day, that is not my 
idea of progress. Eleven days ought to be enough. We could have 
finished this bill in 4 or 5 days.
  We will finish the bill this week. If it takes until 10 o'clock 
tonight, 11 o'clock tomorrow night, and 11 o'clock the next night, we 
will finish the bill this week. But we may file cloture in the meantime 
if we continue. We may do that this evening. We have been all day long. 
Now it is dark outside. People want to be home with their families, so 
we are going to start voting at 6, 7, 8, 9, 10 o'clock.
  So I hope my colleagues will accommodate us--not the leader; I will 
be here in any event, but accommodate our other colleagues who would 
like to be home with their children and families. But we have not 
accomplished much today.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, I can appreciate the wishes of the majority 
leader to move this through, but I would submit that we have disposed 
of about 12 amendments today.
  If I could address the majority leader just a moment, we have 
disposed of about 12 amendments today. We have worked with them. They 
have gotten some withdrawn. We have some we have gotten agreement on, 
and I thought we had been making very good progress today. We are 
moving right along on this. I had hoped we would be able to--I think we 
are making a great deal of progress.
  Mr. DOLE. How many amendments remaining?
  Mr. GLENN. I do not know how many are remaining. I do not know 
exactly. We have disposed of about 11 or 12 today. Not all of them had 
votes on them. They either were withdrawn or we had some agreement on 
them or they were accepted.
  Mr. DOLE. We had 39 yesterday, and now we have 34 so I do not know--
unless there are some that have not been properly cataloged on our side 
that have been disposed of. But we still have 34 amendments after 11 
days on a bill. We were told last week that there were maybe 30 
amendments. Then we got up to 67, and 49, and now we are down to 34, 3 
days later. So if that is progress, it is very slow progress. But, 
again, it is up to our colleagues. If they want to spend Saturday here, 
that is fine with me.
  Mr. GLENN. The procedures by which this bill was brought to the 
floor, I would submit, are ones that engendered a lot of amendments. We 
are still trying to work out some of the things we normally would have 
taken care of in committee had we been permitted to do so. We were not 
permitted to do any of the amendments in committee. It was sent back to 
the floor. Had we been able to do that, I think we would have saved an 
awful lot of trouble and saved much of that 11 days we have been out 
here in the Chamber, whatever it is now.
  I suggest the absence of a quorum.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. Will the Senator withhold?
  Mr. GLENN. I withhold.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. GRASSLEY. Mr. President, I will yield the floor if the manager 
wants it. I reserve my right to get the floor back after he is 
completed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.


                     Amendment No. 207, as modified

  Mr. GRASSLEY. Mr. President, I presented yesterday an amendment of 
mine. It has been modified, and I would like to send it to the desk and 
ask unanimous consent that the modification be made.
  The PRESIDING OFFICER. Is there objection to the modification?
  Mr. GLENN. Will the Senator yield for a question, please?
  Mr. GRASSLEY. Yes, Mr. President, I will yield.
  Mr. GLENN. The modified language of his amendment, I do not believe 
we have a copy of that. Does the Senator have a copy he can give us so 
we will know?
  Mr. GRASSLEY. We sure do. Just so the Senator knows I am not pulling 
a fast one, it has been well known about what we are doing and we will 
get the Senator a copy so he can be sure of that.
  Mr. GLENN. Would the Senator restate the unanimous-consent request, 
please. Was there a unanimous-consent request?
  Mr. GRASSLEY. Yes. Mr. President, the unanimous-consent request I 
made is for the modification according to the changes that have been 
made at the request of various staff.
  The PRESIDING OFFICER. Is there objection?
  Mr. GLENN. I have no objection. I believe the Senator can modify his 
amendment anyway, can he not?
  The PRESIDING OFFICER. It requires unanimous consent under the 
circumstances.
  Mr. GLENN. I have no objection.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The amendment, as modified, is as follows:

       On page 32, between lines 5 and 6, insert the following:

     SEC.  . COST OF REGULATIONS.

       (a) Sense of the Congress.--It is the sense of the Congress 
     that Federal agencies should review and evaluate planned 
     regulations to ensure that the costs of Federal regulations 
     are within the cost estimates provided by the Congressional 
     Budget Office.
       (b) Statement of Cost.--At the written request of any 
     Senator, the Director shall, to the extent practicable, 
     prepare--
       (1) an estimate of the costs of regulations implementing an 
     Act containing a Federal mandate covered by section 408 of 
     the Congressional Budget and Impoundment Control Act of 1974, 
     as added by section 101(a) of this Act; and
       (2) a comparison of the costs of such regulations with the 
     cost estimate provided for such Act by the Congressional 
     Budget Office.
       (c) Cooperation of Office of Management and Budget.--At the 
     request of the Director of the Congressional Budget Office, 
     the Director of the Office of Management and Budget shall 
     provide data and cost estimates for regulations implementing 
     an Act containing a Federal mandate covered by section 408 of 
     the Congressional Budget and Impoundment Control Act of 1974, 
     as added by section 101(a) of this Act.

  Mr. GRASSLEY. Mr. President, as I indicated yesterday, Senator Snowe 
is working with me on this approach.
  This very simply expresses the sense of the Congress that Federal 
agencies should review and should evaluate planned regulations to 
ensure the costs of Federal regulations are within the cost estimates 
that are provided for the statute by the Congressional Budget Office.
   [[Page S1528]] Then there is a second part that is not a sense of 
the Senate. The second part would allow any Senator to request that CBO 
provide an estimate of the cost of regulations and compare them with 
the cost estimates provided by CBO as required for the statute that we 
are passing under S. 1.
  This is just a commonsense amendment that when agencies implement a 
Federal mandate they should take steps and make a good-faith effort to 
keep regulatory costs within the CBO estimates called for under S. 1. 
We do not want to pass legislation, in Congress, thinking when we pass 
the legislation that it might only be a $1 billion unfunded mandate and 
then, after several months have passed--in some cases I suppose years 
could pass--the agency unnecessarily implements regulations that would 
raise that cost, something above the $1 billion estimate?
  I hope we could all agree to this amendment. I know at least on our 
side of the aisle, after discussing it with our distinguished floor 
manager, Senator Kempthorne, he had some concerns about it. I think the 
modifications will satisfy his concerns.
  I think it ought to be stated as well that CBO has no problem with 
the costs of carrying this out. And from that standpoint, this is 
language similar to what was in the amendment of the Senator from 
Michigan [Mr. Levin] when he called up a previous amendment he got 
adopted, calling for a report at the instigation of any particular 
Senator.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. GRASSLEY. I yield such time as he might need to the Senator from 
Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I appreciate what the Senator from 
Iowa is proposing here. To me it seems like a very reasonable request, 
so again I thank him for his diligence. I will be supporting this 
amendment. I yield the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that 
immediately following the next rollcall vote the Senate proceed to vote 
on a resolution expressing our condolences to the nation of Japan, and 
I ask it be in order to ask for the yeas and nays at this point.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LEVIN. Parliamentary inquiry, whose resolution is this?
  Mr. KEMPTHORNE. Mr. President, it is a Dole-Daschle-Bingaman 
bipartisan resolution.
  Mr. LEVIN. This is relative to Japan?
  Mr. KEMPTHORNE. It is.
  Mr. LEVIN. I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. GLENN. Mr. President, I yield myself such time as I may require.
  Mr. President, I say to my colleague from Iowa, the agencies are 
already under strictures that come under the President's Executive 
order to examine costs and benefits before issuing regulations. It 
seems to me that should really be the test for any regulation--do the 
benefits outweigh the costs? If they do, the regulations should go 
forward. If not, the regulations should be killed.
  It seems to me the proposed Grassley amendment adds another stricture 
without taking benefits into account. If a benefit far outweighs a 
cost, why should the CBO cost estimate become a ceiling?
  In other words, what we are doing here is saying CBO--as I understand 
it--CBO is to make an estimate of the cost. Then once that cost 
estimate is made, which at best is an estimate, then the cost of 
implementing whatever the proposal is could not exceed the CBO cost, no 
matter what? Is that the intent of the Senator from Iowa?
  Mr. GRASSLEY. Mr. President, I will be glad to attempt to answer. I 
am not sure I can, because I am not sure I understand the question of 
the Senator. But implicit in his question, I believe, is a feeling that 
the purpose of my amendment is to stop the regulation from going into 
effect. That is not the purpose of the amendment. There is nothing in 
the wording of the amendment that does that.
  The purpose of the amendment is that if we pass a statute in the year 
1996, and CBO says it is going to cost $1 billion, and then 2 years 
later--it takes a long time to get these regulations written--2 years 
later the agency might issue regulations that cost something more.
  My amendment does not make CBO study that, except at the request of a 
Senator. But if I would decide, looking at department X's regulations, 
it looks to me like these are a lot more expensive in unfunded mandates 
than what we anticipated when we pass the legislation, I want CBO to 
take a look at those regulations.
  CBO takes a look at those regulations and they might say, no, this is 
not over the $1 billion; or they might say it is $2 billion, it is 
going to make this statute cost $2 billion instead of $1 billion. My 
amendment will not in any way keep those regulations from going into 
effect. But I surely think we ought to have a track record by which we 
can measure whether or not an original estimate and intent of statute 
is realized. And if it is not, then at least we know that and it is a 
matter of public record.
  The other thing that might come as a benefit of my regulation is that 
the regulation writers, if somebody might ask for a review, may be just 
a little more careful to stay within the cost intent of the statute. I 
think that is legitimate. I think if we write a statute that we think 
is going to be an unfunded mandate costing $1 billion, we should not 
allow some faceless bureaucrat to write regulations that make it cost 
much more and not be in keeping with congressional intent. That is all 
I am trying to do. I hope I have answered the Senator's question.
  Mr. GLENN. I would have another question I would like to ask, too. 
That is, it says, ``an estimate of the costs of regulations 
implementing an Act containing a Federal mandate covered by section 408 
of the Congressional Budget and Impoundment Control Act of 1974, as 
added by section 101(a) of this Act''--and then goes on, ``a comparison 
of the costs of such regulations with the cost estimate provide for 
such Act by the Congressional Budget Office.''
  Would this mean that these would all be still prospective? Or does 
this mean that, because we go back and reference the Congressional 
Budget and Impoundment Control Act of 1974, that the CBO would be 
expected upon written request to go back and estimate mandates and how 
they worked out compared with CBO estimates, clear back over the last 
21 years?
  Mr. GRASSLEY. Mr. President. It is a very good question. And the 
answer is it is prospective, and it just covers whatever S. 1 covers.
  Mr. GLENN. I have a further question. Would the Senator be willing to 
have the benefits and costs evaluated at the same time?
  Mr. GRASSLEY. No.
  Mr. GLENN. The President's Executive order, I would say, covers that 
and I think that is a necessary part of this thing, to consider the 
benefits as well as just the costs.
  Mr. GRASSLEY. Mr. President, I see the cost-benefit analysis as a 
very worthwhile procedure. I think I supported that. I have not had a 
chance to vote on it in past Congresses. But I support the concept. I 
think, as the Senator said, the concept is to end the rulemaking 
process. I happen to think that is not a very effective process that we 
go through. I think it is not refined well enough. I do not think there 
is a bureaucratic inclination to abide by it in good faith. I support 
that concept, but I do not think it has any relationship to what I am 
trying to accomplish by my amendment.
  It is a worthy goal the Senator suggests, but it is a little more. I 
believe it is much more in depth and serves a whole different purpose 
than what I am trying to serve by my amendment.
  Mr. GLENN. Mr. President, if I might add another question in part A, 
sense of the Congress, it is the sense of the Congress that the Federal 
agency should review and evaluate planned regulations. And then the 
next part is 
[[Page S1529]] to ensure that the costs of Federal regulations are 
within the cost estimates provided by the Congressional Budget Office.
  It seems to me that sets a ceiling beyond which you could not go. The 
CBO is at best making estimates. I do not see how you can say that the 
agency, trying to implement something that may be very involved, should 
be limited to no more than the estimate of the Congressional Budget 
Office. I do not know whether that was the intent or not.
  What we would be doing is saying with the legislation we pass, we are 
in effect passing our legislative responsibilities on to the CBO and 
saying whatever they come up with is the absolute ceiling, when they 
are required on a rapid basis to give us their best estimates. That 
does not mean when it gets over to the agency, they get it in more 
detail. It might exceed a little; it might go under some. But I think 
to make CBO the final authority on what the ceiling will be, with their 
rapidly arrived-at estimate of costs, I just do not see how that would 
work.
  Was not the intent to make the estimate of the Congressional Budget 
Office a ceiling that could not be exceeded in the executive branch 
when they try to implement the law that we just passed, or implement a 
mandate?
  Mr. GRASSLEY. Mr. President, before I answer this question, there is 
one further response I want to give to the Senator on his question 
about the cost benefit. A more explicit answer to the question is, as I 
said, we only want to do what S. 1 does, and S. 1 deals just with cost.
  On the point that the Senator from Ohio just made, there is not a 
real solid answer I can give because of the very basis of my language 
being sense of the Senate. I think sense of the Senate implies, first 
of all, that the bureaucrats and regulation writers do a good-faith 
effort to be within the congressional intent of whatever the ceiling is 
of the unfunded mandate.
  Second, sense of the Senate is not binding because it is only sense 
of the Senate. It is not statute. I would feel that the Congressional 
Budget Office, in making this estimate, could do no more under my 
amendment than just simply say in a quantifiable way that the agency 
cost will be so much. That could be higher or lower. The extent to 
which it is higher, their statement that it is higher in no way, under 
the statute or under the intent of my amendment, is going to keep the 
regulation from going into effect.
  If I could be perfectly candid with the Senator from Ohio, I think if 
unfunded mandates legislation is going to mean anything, eventually you 
have to get to that point where the regulation writers are within the 
intent of Congress on what the cost is, or else we do not have a very 
effective statute. But I cannot do that now. I do not know whether now 
is the time to do that because this legislation is a pioneering piece 
of legislation. So we ought to feel our way along to that point. I 
think my sense of the Senate ought to be looked at as giving Congress 
some additional tools down the road, a track record by which we can 
make better judgments if this statute needs to be refined.
  Mr. GLENN. Mr. President, the Senator treats sense of the Senate just 
a little more lightly than I think a sense of the Senate should be 
treated in this regard. Legislative history is made here on the floor, 
and we talk about sense of the Senate and all the other things that go 
on in debate. All of these things give the regulation writers the sense 
of the Senate as to where we want to go. They follow this. They are 
supposed to follow it.
  This is used in its entirety, of course, and sense of the Senate is 
not as binding as regular legislation. But we are telling the agency 
that the agencies should review and evaluate planned regulations, not 
just to think about it. We are saying to ensure that the costs are 
within the cost estimates provided by CBO.
  That is a mighty potent statement, it seems to me. If we are saying 
it is sense of the Congress, but we really do not mean that, and you 
people over there just go ahead and do what you think ought to be done, 
then that is a different thing. But what we are saying is we are 
telling them it is our sense of the Senate and the Congress to ensure 
that they stay within the CBO estimate.
  Mr. GRASSLEY. Mr. President, will the Senator yield?
  Mr. GLENN. Certainly.
  Mr. GRASSLEY. Mr. President, this would require further modification. 
But first of all, before I suggest something, I do not want it to be 
suggested that I think my amendment does more or is intended to do more 
than what I said I wanted it to do. I did not doctor up the sense-of-
the-Senate language because I do not know how much weaker you can get 
in any statement of public policy that this body makes in sense-of-the-
Senate language. Maybe the Senator from Ohio puts it on a higher plane 
than I do. But I do not think it deserves such a high plane.
  So I did not think about adjusting it any, because I do not think you 
can be much weaker than a sense of the Senate. But if it would help the 
Senator, we could put in the same words that we put in the second part 
of the amendment, and say ``to the extent practicable.''
  Mr. GLENN. I am not exactly sure how that would change it that much, 
Mr. President. I think when you are trying to direct them to ensure 
that whatever they do with regard to rules and regulations will not go 
beyond the Congressional Budget Office estimate, no matter what we 
passed on the floor here, and how many amendments we had, and all the 
other provisions we may have put on the floor, we are in effect going 
back to CBO and saying: You are the legislating authority on this 
because your estimate that you gave us, that might be very sketchy, 
arrived at in a few hours at best, we are saying that becomes the 
definitive figure on this thing as far as guidance for the Federal 
agencies goes, and we want to ensure that.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRASSLEY. I want to save some of my time, so I do not want to 
yield. I ask unanimous consent that the Senator have 1 additional 
minute.
  Mr. GLENN. I am sorry we did not know the time here. That is my 
fault. I ask unanimous consent that Senator Levin be granted an 
additional 5 minutes.
  Mr. GRASSLEY. Then I want 5 minutes on this side.
  Mr. GLENN. We have no objection to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, may I yield myself such time as I might 
consume to respond?
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, again, I did not make my suggestion very 
clear to the Senator from Ohio because he kept concentrating on the 
word ``ensured.'' We could eliminate ``ensured'' and put in there ``to 
the extent practicable'' and that may solve the problem. I do not want 
to do that unless it will solve the problem because I think this is 
about as weak as you can get.
  I yield the floor and reserve the remainder of my time.
  Mr. LEVIN. Mr. President, the trouble with this sense-of-the-Senate 
language is that it delegates the legislative responsibility to the 
Congressional Budget Office. This is what the Senator from Ohio was 
alerting us to in his last couple of minutes.
  The Congressional Budget Office, if we are lucky, is going to be able 
to make an estimate of what the cost will be to 87,000 State and local 
governments for some period, which could last forever, the way the bill 
is currently worded. But it is going to be decades into the future. 
These are, at best, going to be guesstimates. We have example after 
example that they have told us where they cannot make a good estimate. 
These are not scientific statements of costs; these are guesstimates 
that are going to be coming out of the CBO. We cannot take that 
guesstimate and say that it is the sense of the Senate that the agency 
should ensure that a regulation complies with that guesstimate instead 
of law.
  Let us say we pass a law that says airports must introduce security 
devices that will pick up levels of metal down to a certain amount. We 
are doing that for the safety of the passengers of the United States, 
the American citizens that walk through metal detectors and get on 
airplanes want to 
[[Page S1530]] feel safe. We pass a law that says you must get down to 
a certain level of detection in these metal detectors. That is the law. 
We have adopted that law. Now we get an estimate. The CBO gets us an 
estimate as to how much that is going to cost State and local 
government. Their estimate comes out that it is going to cost $50 
million for all these jurisdictions in one of those years. We have 
written a law saying you have to do something for the safety of the 
American people, but we have a CBO guesstimate over there that says $50 
million.
  It turns out, down the road, that when those detectors are put in, 
they are going to cost more than $50 million. Are we going to say 
tonight that we want the agency to abide by the estimate of the CBO 
instead of our law? Are we putting a CBO guesstimate on a pedestal so 
that it will take precedence over what we have said is essential for 
the safety of the American people? Is that our intent? It is not my 
intent. I am not going to put that guesstimate on a pedestal. I am 
troubled about the ambiguities of these guesstimates.
  We surely do not want that guesstimate of the unelected CBO, for some 
period out in the future, to supersede the elected representative of 
the people of the United States. If we say the law is that there must 
be metal detectors that can capture metal or other material down to a 
certain level, that is our intent. And we have a guesstimate that says 
it is going to cost a certain amount in a certain year, OK, that will 
give us some guidance. But do not give that precedence over what our 
decision is as to what the law should be, because you are just 
delegating to the CBO what we as elected officials are responsible to 
do.
  That is one of the difficulties with my friend's amendment. When he 
says that agencies should evaluate planned regulations to ensure--the 
key word is ``ensure''--that they are within cost estimates in the 
budget office, he is just giving the legislative authority away to the 
budget office and saying, yes, we want those metal detectors to capture 
a certain level of metal, but we are not really saying that. So I would 
suggest that we let the staff try to work out some language here. I 
think I know what the Senator is driving at. I think this language goes 
too far. I suggest that his staff and the staff of Senator Glenn, and 
perhaps mine, and any other interested Senator, might get together to 
work out language to avoid the result that this could otherwise lead 
to.
  Mr. GRASSLEY. Mr. President, first of all, the Senator from Michigan 
wants us to believe that the sense-of-the-Senate resolution is going to 
bind every regulator who is working under the constitutional authority 
of the President--that they will not perform their responsibilities; 
that a sense-of-the-Senate resolution will somehow amend the 
Constitution, take away statutory authority of the bureaucrat. No 
sense-of-the-Senate amendment can or will do that or ever has done 
that.
  The other point is that Congress does not turn anything over to the 
Congressional Budget Office through this sense-of-the-Senate 
resolution. This is our decision to make. There is no regulation that 
in any way can be stalled by either part of my amendment. It is not 
intended to do that. For the Senator from Michigan, it is not intended 
to take, nor will it take away any statutory responsibilities or 
constitutional responsibilities of any employee or officer of the 
executive branch.
  I am always willing to work something out, but I think we have 
reached a point where yesterday and today we have tried to work out 
things in this area. One of the very concerns that the Senator from 
Michigan had previously with my amendment, in some of the discussions 
before, was the extent to which CBO could do this within their budget. 
From that standpoint, the Senator from Michigan just got an amendment 
adopted by this body that, within the same budget limitation of the 
CBO, asked them to do exactly what I am doing with my amendment.
  So I think it is a little bit wrong for the Senator from Michigan to 
come here and say that I am asking too much of the Congressional Budget 
Office, or that a sense-of-the-Senate resolution will reduce the 
statutory responsibilities or the congressional responsibilities of any 
person within the executive branch.
  How much time do I have left?
  The PRESIDING OFFICER. The Senator has 13 minutes.
  Mr. LEVIN. If the Senator will yield for a question, I have not 
objected to your part B which relates to the statement of cost of the 
Congressional Budget Office. I have not raised an objection.
  Mr. GRASSLEY. I think it is because we have satisfied you with our 
changes in our language.
  Mr. LEVIN. For whatever reason, I have not objected to the Senator's 
amendment as it relates to the additional duty of the CBO.
  Will the Senator yield for a question?
  Mr. GRASSLEY. I stand corrected from the standpoint that that may 
have referred to the entire language of the bill.
  I yield for a question.
  Mr. LEVIN. Under your language, it is the sense of the Congress that 
the Federal agency should do something to ensure something, and I want 
to give the Senator a hypothetical.
  Assume that the estimate of the CBO was that the metal detector would 
cost $50 million. But the way the agency reads our law requiring them 
to get these new metal detectors installed to protect the American 
people, it turns out that those metal detectors required by our law 
will cost $75 million. Should the agency ensure the $50 million in that 
event, even though they read our law to require metal detectors which 
as it turns out a couple years down the road will cost $75 million? Or 
is it your sense that they should go with the cheaper $50 million metal 
detector, which will not do the job, because that was the CBO estimate? 
Or is it the Senators intention that they comply with our law because 
the better metal detector will be better?
  Mr. GRASSLEY. I think it is a relatively easy question to answer. 
First of all, S. 1, as far as the unfunded mandates are concerned, the 
statutory authority that the regulator has to fulfill their 
responsibilities to protect the public is binding. That is not the 
sense of the Senate. But I am not saying that because I want to bring 
less significance to my sense of the Senate. I am saying that because 
that is the role--that is the place of sense-of-the-Senate resolutions 
in policymaking in our constitutional system of Government.
  The regulator would go ahead and put in the more expensive product to 
protect the public. But, if I, Senator Grassley, 6 months later said, 
``Well, you know, I have some doubts about this. Is it within the 
cost?'' I ask the CBO to study what the cost is. Let us suppose CBO 
comes up with the fact that it is over the unfunded mandate estimate.
  That is a quantifiable fact that does not affect the decision of the 
regulators. And that is the intent. But, to be perfectly candid to both 
of my colleagues who have spoken in opposition to this, I would expect 
maybe at reauthorization time that that fact could be a basis for maybe 
tightening up some of the statutes so that regulations cannot 
circumvent the original intent of the statute.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from Iowa has 9 minutes remaining.
  Mr. GRASSLEY. And the other side has?
  The PRESIDING OFFICER. No time remaining.
  Mr. GRASSLEY. Mr. President, I would like to ask a question of the 
Republican manager of the bill. Is it the Senator's desire, then, if I 
would yield back my time, that we would immediately go to a vote on my 
amendment?
  Mr. KEMPTHORNE. Mr. President, that would be my intent.
  Mr. GRASSLEY. Mr. President, I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator yields back the remainder of his 
time.
  Mr. GLENN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
   [[Page S1531]] Mr. KEMPTHORNE. Mr. President, I ask unanimous 
consent that, with respect to the Lautenberg amendment numbered 199, 
there be 40 minutes of debate prior to the motion to table, to be 
divided in the usual form; and that, upon the expiration or yielding 
back of time, the majority manager or his designee be recognized to 
make a motion to table. I also ask unanimous consent that there be no 
second degree amendments in order to the Lautenberg amendment prior to 
the motion to table the Lautenberg amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Thomas). Without objection, it is so 
ordered.


                 Amendment No. 207, as Further Modified

  Mr. GRASSLEY. Mr. President, we have been able to arrive at some 
language that satisfies myself and satisfies the Democratic side of the 
aisle. Pursuant to that, I will have to ask unanimous consent that my 
amendment be modified as written on this paper.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment, as further modified, is as follows:

       On page 32, between lines 5 and 6, insert the following:

     SEC.   . COST OF REGULATIONS.

       (a) Sense of the Congress.--It is the sense of the Congress 
     that Federal agencies should review and evaluate planned 
     regulations to ensure that cost estimates provided by the 
     Congressional Budget Office will be carefully considered as 
     regulations are promulgated.
       (b) Statement of Cost.--At the written request of any 
     Senator, the Director shall, to the extent practicable, 
     prepare--
       (1) an estimate of the costs of regulations implementing an 
     Act containing a Federal mandate covered by section 408 of 
     the Congressional Budget and Impoundment Control Act of 1974, 
     as added by section 101(a) of this Act; and
       (2) a comparison of the costs of such regulations with the 
     cost estimate provided for such Act by the Congressional 
     Budget Office.
       (c) Cooperation of Office of Management and Budget.--At the 
     request of the Director of the Congressional Budget Office, 
     the Director of the Office of Management and Budget shall 
     provide data and cost estimates for regulations implementing 
     an Act containing a Federal mandate covered by section 408 of 
     the Congressional Budget and Impoundment Control Act of 1974, 
     as added by section 101(a) of this Act.

  Mr. GRASSLEY. Mr. President, I will yield back my remaining time, and 
I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.


             Vote on Amendment No. 207, as Further Modified

  The PRESIDING OFFICER. The vote now occurs on the amendment No. 207, 
as further modified, offered by the Senator from Iowa [Mr. Grassley].
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. I announce that the Senator from Wyoming [Mr. Simpson] is 
absent due to a death in the family.
  I further announce that, if present and voting, the Senator from 
Wyoming [Mr. Simpson] would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 45 Leg.]

                                YEAS--99

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Nunn
     Packwood
     Pell
     Pressler
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Shelby
     Simon
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wellstone

                             NOT VOTING--1

       
     Simpson
       
  So the amendment (No. 207), as further modified, was agreed to.
  Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DOLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________