[Congressional Record Volume 141, Number 146 (Tuesday, September 19, 1995)]
[Senate]
[Pages S13752-S13770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND 
               RELATED AGENCIES APPROPRIATIONS ACT, 1996

  The PRESIDING OFFICER. Under the previous order, the hour of 9:30 
having arrived, the Senate will resume consideration of H.R. 1976, 
which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 1976) making appropriations for Agriculture, 
     rural development, Food and Drug Administration, and related 
     agencies programs for the fiscal year ending September 30, 
     1996, and for other purposes.

  The Senate resumed consideration of the bill.

       Pending:
       (1) Brown modified amendment No. 2688 (to committee 
     amendment beginning on page 83, line 4, through page 84, line 
     2), to prohibit the use of funds for salaries and expenses of 
     Department of Agriculture employees who carry out a price 
     support or production adjustment program for peanuts.
       (2) Bryan-Bumpers amendment No. 2691, to eliminate funding 
     to carry out the Market Promotion Program.


                           Amendment No. 2691

  The PRESIDING OFFICER. Under the previous order, there will now be 15 
minutes for debate under the Bryan amendment No. 2691 equally divided. 
The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I yield myself such time as I may 
consume. It is my intent to speak a few minutes in opposition to the 
Bryan amendment, to put in context the decision we will make at 9:45.
  This is an amendment that does not seek to modify or simply reduce 
the funding for the Market Promotion Program. It is designed to kill 
the program, eliminate all funding under this legislation for this 
program in the next fiscal year. I think that would be a big mistake, 
Mr. President, and here is why.
  The Foreign Agriculture Service undertook a study of this program in 
response to requests from the Congress and determined that for every $1 
that we invest in this Market Promotion Program promoting U.S. 
agriculture commodities and foodstuffs that are exported in the 
international marketplace, $16 is generated in additional agriculture 
imports.
  At a time when we are trying to compete more aggressively in the 
international market because of the opening up of new markets under the 
GATT Uruguay Round Agreement, we are trying to do a better job and use 
all the resources that we can muster to help ensure that we maintain a 
competitive edge and that we work with our farmers and ranchers and 
food processors to try to enlarge our share of markets. This is going 
to have just the opposite effect.
  So I am hopeful that the Senate will vote against this amendment. I 
urge all Senators to carefully consider this. This is a proven, tested, 
workable, and effective program, and we have the facts to prove it. We 
debated this issue for an hour last night and laid all the facts out on 
both sides. I hope the Senators this morning will reject this amendment 
soundly.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. COCHRAN. Mr. President, if there is no one seeking to address the 
Senate in support of the amendment, I am going to suggest that the time 
during the quorum, which I am going to call, be charged to the 
proponents of the amendment. I ask unanimous consent that the time be 
so charged.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. COCHRAN. 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.
  Mrs. BOXER. 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 S13753]]

  Mr. COCHRAN. Mr. President, I yield 2 minutes to the distinguished 
Senator from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, thank you very much. I listened last night 
to a debate we have had here many times, and my friend and colleague 
from Nevada, Richard Bryan, my distinguished friend who I respect, 
lists all the companies that get this, shall we say, assistance for 
export promotion and points out they all make a profit, they make large 
profits and says that this is a program that we should not have.
  But every year, and it seems like twice a year, I take to the floor 
to point out to my friend and to the rest of our colleagues on both 
sides of the aisle that the future of this country, the economic future 
of this country really lies in exports. That is where we are going to 
have the job creation, that is where we are going to have an economic 
future that is worth something.
  We know scientifically, because we have the studies, that every 
dollar that is invested in market promotion yields far, far many more 
dollars in return. It is a multiplier effect because the companies 
match the moneys and we wind up selling more of our products overseas.
  The other point I want to make is that every other country in the 
world with whom we compete have similar programs, as a matter of fact, 
have much broader and wider and deeper programs where they push the 
exports of their country. If we are to walk away from this, we will 
fall behind.
  So, Mr. President, I know that the companies that are listed by my 
friend are successful companies, and I know that they do put some of 
their capital into this, but I think it is very appropriate for this 
country to have an export promotion program, just as I think it 
appropriate for our trading partners.
  I stand with the chairman, and I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired. Who yields 
time?
  Mr. BRYAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. BRYAN. Mr. President, I yield myself 3 minutes.
  I point out to my colleagues that the MPP and its immediate 
predecessor, the Targeted Export Assistance Program, has cost the 
American taxpayers $1 billion--$1 billion. It is currently proposed for 
funding at $110 million. It is a program which has been soundly 
denounced by think tanks and organizations that are representing a 
broad spectrum of interest groups from the Cato Institute to the 
Competitive Enterprise Institute, the National Taxpayers Union, the 
Citizens Against Government Waste, the Center for Science in the Public 
Interest, the Progressive Policy Institute.
  The General Accounting Office has reviewed this program and has 
concluded that there is no tangible, ascertainable basis upon which to 
conclude that, in fact, has assisted in the Market Promotion Program. 
There are no criteria in terms of large company, small company, who 
receives, no period of time in which one is supposed to graduate out of 
the program.
  We are currently spending to assist our overall export promotion 
programs in this country about $3.5 billion annually. While 
agricultural products account for 10 percent of total U.S. exports, the 
Department of Agriculture spends $2.2 billion, or 63 percent of the 
total.
  The way this program works, Mr. President, is that the advertising 
budgets of some of the largest corporations in the world receive a 
handout from the American taxpayer to supplement their budgets. Time 
restricts me from going into great detail, but here are some of the 
companies, all fine companies, that received in fiscal year 1993-1994 
substantial amounts of money: Ernest & Julio Gallo, $7.9 million; 
Pillsbury, $1.75 million; Jim Beam Whiskey, $713,000, Campbell Soups, 
$1.1 million, to cite a few.
  I think the American taxpayer, if he or she understood, would be 
shocked that, in effect, we are taking tax dollars collected from the 
American people and, in effect, adding them to the advertising budgets 
of some of the largest companies in the world.
  Mr. President, the time to end this program has come. We have cut 
Medicare by $270 billion. We are cutting all kinds of programs 
involving educational assistance and a whole raft of programs. Yet, we 
seem to be unable to divorce ourselves from this form of corporate 
welfare.
  I reserve the remainder of my time.
  Mr. COCHRAN. How much time remains on each side?
  The PRESIDING OFFICER. The Senator from Mississippi has 3 minutes 33 
seconds. The Senator from Nevada has 2 minutes 50 seconds.
  Mr. COCHRAN. Let me simply say that in response to the suggestion 
that large corporations are getting all this money, 80 percent of this 
money goes to trade associations, farmer cooperative groups, the 
association of exporters of poultry and eggs, cotton promotion groups, 
and others who are trying to take up for the interests of America's 
farmers, ranchers, and those in the food businesses that sell in the 
international market.
  We are trying to save American jobs and promote American economic 
interests, American agriculture interests. These are companies that are 
involved in those businesses. But the majority of the money goes to 
small businesses, farmer cooperatives, and organizations like that, who 
sometimes use those companies to help promote what the ingredients are 
in their products that are sold in the international market.
  So we hope Senators will keep that in mind. This is not corporate 
welfare--the catchy phrase some are using to discredit programs, this 
one included. It is not well-placed criticism. It is not accurate to 
judge the worth of this program on the basis of that kind of argument.
  Mr. President, I reserve the remainder of our time.
  Mr. BAUCUS. Mr. President, I rise today to express my strong 
opposition to the amendment offered by my colleagues from Nevada and 
Arkansas--the amendment to eliminate the funding for the Market 
Promotion Program. I think this effort is a misguided attack on a 
program which is successful in its accomplishments. In fact I believe 
funding for this program should be increased, not eliminated.
  Mr. President, American agriculture is an example of successful 
export growth. This year our exports will be in the neighborhood of $50 
billion. And our trade surplus in agricultural goods is around $20 
billion. And one big reason is the MPP.
  This program promotes American agricultural commodities in foreign 
markets. This program allows foreign businesses to advertise American 
products in their operations. The MPP helps put American beef in 
Chinese Big Macs--rather than less expensive, locally produced foods.
  And the benefits of such a program are well-recognized by our 
competitors in the global marketplace. The European Union, our largest 
and most tenacious agricultural export adversary, outspends us nearly 3 
to 1 in programs of this type. They spend as much to export wine as we 
do for all our commodities through the MPP. I think that speaks volumes 
about these programs.
  This year we have seen significant advances in our ability to enter 
foreign markets. We've moved apples and broccoli in Japan, and 
negotiated an agreement to ship more meat into Korea. These exports 
mean jobs and revenue in America. And I am confident this trend will 
continue. But it makes no sense to eliminate the tools which have 
facilitated this progress. The MPP is one such tool.
  Mr. President, I strongly endorse the Market Promotion Program and I 
urge my colleagues to join me in opposing this amendment to end the 
funding for this valuable program.
  Mrs. FEINSTEIN. Mr. President, I oppose the Bryan amendment to 
eliminate funding for the Market Promotion Program.
  The Market Promotion Program helps promote U.S. agricultural 
commodities abroad and build foreign markets for American agricultural 
products. I support the Market Promotion Program. And here is why:
  First, the Market Promotion Program has been a very successful 
program. It has significantly benefited agriculture and expanded 
markets. There have been scores of success stories. For California 
agriculture, MPP moneys have boosted exports of almonds, asparagus, 
prunes, citrus, avocados, kiwi-

[[Page S13754]]
fruit, canned peaches, canned pears, canned fruit cocktail, pistachios, 
strawberries, table grapes, tomatoes, walnuts, wine, raisins, cotton 
and cotton products, and more.
  The California avocado industry, for example, used MPP moneys to 
increase Japanese consumers' awareness of the higher quality of 
California avocados as opposed to lower priced, lower quality foreign 
sources. In 3 years, using MPP funds California avocado growers were 
able to increase exports to Japan by 200 percent.
  Similarly, the U.S. cotton industry effectively used to promote the 
higher quality of products made with U.S. cotton. In the 5 years 
preceding the Market Promotion Program, exports of American cotton 
averaged only 5.3 million bales of raw cotton. This year, U.S. cotton 
exports will exceed 10 million bales. U.S. cotton exports have averaged 
$437 million more per year since the Market Promotion Program began.
  Second, the Market Promotion Program is a cost-shared program. 
Recipients of MPP funds must contribute funds of their own as well. But 
the Federal funds serve as seed money that attract the private funding 
and bring diverse segments of an industry together on export promotion 
that would not otherwise be possible.
  Third, the Market Promotion Program helps American agriculture 
compete in a global market. It is a GATT legal program. Agricultural 
exports now account for nearly one-third of total U.S. agricultural 
production and over $40 million in sales. But our competitors in world 
markets are aggressively supporting export and promotion of their 
agricultural products. We need to ensure that our growers are given the 
same support that their foreign competitors receive.
  Mr. President, the Market Promotion Program works. We should not 
eliminate it.
  Mr. GORTON. Mr. President, my message today is simple: If you are pro 
trade, pro growth, and pro jobs--you are pro MPP.
  The Market Promotion Program is a proven success. For example, in my 
home State of Washington we have seen a dramatic increase in apple 
exports from 4.3 million cartons to 25.1 million, an increase of over 
500 percent. Export sales now total over $300 million. This success is 
due to the Market Promotion Program.
  My State alone exports over 1.1 billion dollars' worth of agriculture 
products. Such exports generate nearly $3 billion in economic activity 
and provide over 33,000 export-related jobs in my State of Washington. 
Programs like MPP are absolutely essential if U.S. agriculture--the 
most competitive industry in the world--is to remain viable and 
competitive in the international marketplace. MPP gives U.S. 
agriculture the tool it needs to develop, maintain, and expand 
commercial export markets for U.S. agriculture commodities in the new 
post-GATT environment.
  In summary, Mr. President, without MPP we give our competitors an 
advantage and the opportunity to capture and maintain a significant 
share of the world market. U.S. agriculture is the most competitive 
industry in the world. We should provide the tools necessary so that 
U.S. agriculture can develop, maintain, and expand its share of the 
world market.
  Mrs. BOXER. Will the Senator yield me 30 seconds?
  Mr. COCHRAN. If I have 30 seconds, I will yield that to the Senator 
from California.
  Mrs. BOXER. Mr. President, I strongly support the Market Promotion 
Program. I urge my colleagues to oppose the amendment offered by my 
colleague Senator Bumpers to eliminate funding the Market Promotion 
Program. I would like to point out to the Senate why this program is so 
important for agriculture in my State of California, and many other 
States as well.
  The MPP is an important tool in expanding markets for U.S. 
agricultural products. Continued funding for this program is an 
important step in redirecting farm spending away from price supports 
and toward expanding markets.
  A 1995 Foreign Agricultural Service study, Evaluating the 
Effectiveness of the Market Promotion Program on High-Value 
Agricultural Exports, concluded that for every dollar invested in the 
MPP and its predecessor, the Targeted Export Assistance Program, since 
1986, the United States has exported $16 dollars worth of agricultural 
products.
  The U.S. Department of Agriculture estimates that each dollar of MPP 
money results in an increase in agricultural product exports of between 
$2 and $7. The program has provided much needed assistance to commodity 
groups comprised of small farmers who would be unable to break into 
these markets on their own.
  While the program has been the subject of criticism, some of it 
justified, I believe it would be a mistake to cut the program because 
of a few cases of poor judgment. Overall, the program has greatly 
benefited the small growers for whom it was intended. New regulations 
went into effect in February 1995 to, among other things, give priority 
assistance to small businesses. In 1995 small businesses will receive 
over 50 percent of the funding provided for brand-name products up from 
41 percent in 1994.
  Last year, a task force of the U.S. Agriculture Export Development 
Council met for 2 days in Leesburg, VA, to review the role of the MPP, 
and other agriculture programs as part of our overall trade policy. 
This task force affirmed that the purpose of the MPP is to ``increase 
U.S. agricultural project exports.'' It concluded that the increase in 
such exports helps to ``create and protect U.S. jobs, combat unfair 
trade practices, improve the U.S. trade balance, and improve farm 
income.''
  According to the U.S. Department of Agriculture, U.S. agricultural 
exports reached $43.5 billion supporting almost 800,000 jobs. For 
fiscal year 1995, agricultural exports are expected to reach a record 
$51.5 billion. Individual export records have been set in 1994 for red 
meats, poultry, fresh fruit, fresh vegetables, tree nuts, wine and beer 
and other high value products. This has been achieved with the help of 
MPP and other USDA export programs.
  Mr. President, the Market Promotion Program has been an unqualified 
success for California farmers. For many Californian crops, the MPP has 
provided the crucial boost to help them overcome unfair foreign 
subsidies. I would like to share two of the successes of this program 
in California.
  California produces about 85 percent of the U.S. avocado crop on over 
6,000 farms that average less than 8 acres per farm. Between 1985 and 
1993, California avocado growers utilized $2.5 million of their own 
money, combined with $3.4 million of MPP funds to achieve over $58 
million in avocado sales in Europe and the Pacific rim. This is better 
than a 17 to 1 return on our MPP investment that means jobs for 
California.
  The growth of California walnuts exports also illustrates the success 
of this program. Since 1985, the year before the MPP began helping 
walnuts, 90 percent of the growth in California walnut sales has come 
from exports. And 90 percent of this export growth has been to markets 
where California walnuts have had MPP support. The total value of these 
exports in 1985 totaled $36 million. By last year, that total export 
value grew to $119 million.
  This growth in MPP driven walnut exports has been the greatest in the 
heavily protected Japanese market. There, California walnut exports 
grew from about $3 million in 1985 to $28 million last year. The $19 
million devoted by the MPP between 1986 and 1994 to promoting 
California walnuts in Japan has helped generate nearly $140 million in 
sales. This is a rate of return on the taxpayer's investment that 
approaches 700 percent.
  The California walnut industry is not a monolithic corporation. It is 
made up of over 5,300 growers who farm orchards that average only 44 
acres. And its these California family farmers, not big corporations, 
who benefit from the MPP support of walnut exports. Without the MPP, 
these farmers could not muster the resources they need to break into 
the Japanese and other protected markets.
  Lastly, I would like to make a few comments on a possible initiative 
by my colleagues to means-test the Market Promotion Program. In 
California, nonprofit agricultural marketing cooperatives such as 
Sunkist, Blue Diamond, and Calvaro are owned by their 

[[Page S13755]]
farmer members and distribute all income to the individual farmers less 
operating expenses. Cooperatives such as these are associations of 
farmers who accomplish collectively what that cannot accomplish 
individually. The average farmer in these three cooperatives farms 
between 20 and 40 acres and the overwhelming majority of them are full-
time farmers. I believe it would be unfair to penalize individual small 
farmers because they have joined together to form an effective 
cooperative. It defeats the purpose of a market development program. It 
is clear that these farmers could not individually be effective 
exporters to the world market.
  In closing Mr. President, the MPP is a wise investment in American 
agriculture and I urge my colleagues to support it in its current form, 
at the highest possible level.
  I ask unanimous consent that a list of export-related jobs in each 
State be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        Market Promotion Program

                Agriculture export related jobs by State

State:                                                             Jobs
    Alabama......................................................11,000
    Alaska.......................................................20,000
    Arizona......................................................10,000
    Arkansas.....................................................33,000
    California..................................................137,000
    Colorado.....................................................25,000
    Connecticut...................................................1,500
    Delaware......................................................2,000
    Florida......................................................22,000
    Georgia......................................................15,000
    Hawaii........................................................1,700
    Idaho........................................................22,000
    Illinois.....................................................68,000
    Indiana......................................................36,000
    Iowa.........................................................96,000
    Kansas.......................................................69,000
    Kentucky.....................................................25,000
    Louisiana....................................................17,000
    Maine...........................................................400
    Maryland......................................................5,500
    Massachusetts.................................................1,100
    Michigan.....................................................27,500
    Minnesota....................................................50,000
    Mississippi..................................................24,000
    Missouri.....................................................24,000
    Montana.......................................................6,000
    Nebraska.....................................................74,000
    New Jersey....................................................2,000
    New Mexico....................................................3,000
    New York......................................................8,300
    North Carolina...............................................27,500
    North Dakota.................................................23,000
    Ohio.........................................................33,000
    Oklahoma.....................................................10,000
    Oregon.......................................................15,000
    Pennsylvania.................................................11,000
    South Carolina................................................7,000
    South Dakota.................................................25,000
    Tennessee.....................................................9,000
    Texas........................................................77,000
    Utah..........................................................2,800
    Virginia.....................................................10,000
    Washington...................................................30,000
    Wisconsin....................................................27,500
    Wyoming.......................................................1,400

  Mrs. BOXER. Mr. President, I just received, from the farmer 
cooperatives a table that I have placed in the Record, which shows the 
number of jobs that are related to the export of agricultural products. 
They are shown by State. It is really an extraordinary list: Kansas, 
69,000; Kentucky, 25,000; Texas, 77,000; California, 137,000. Virtually 
every State in the Union, thousands of jobs. I stand in strong support 
of this program.
  I yield the floor.
  Mr. BRYAN. Mr. President, might I inquire about the time?
  The PRESIDING OFFICER. The Senator from Nevada has 2 minutes 50 
seconds. The Senator from Mississippi has 1\1/2\ minutes.
  Mr. BRYAN. I yield myself a minute and a half.
  Mr. President, I simply make a point that this presumably is a time 
in America in which we are calling for shared sacrifice. We are saying 
that we cannot do business the way we have always done it. With all due 
respect to my distinguished colleague and friend from California, in 
terms of weighing the priorities, it seems to me it is pretty hard to 
contend when we are savaging the kinds of programs that affect the poor 
and those who are least able to defend themselves to support these 
kinds of dollars.
  McDonald's, the hamburger folks, I think, reported a net profit of in 
excess of $1 billion. They continue to receive money to supplement 
their advertising account. Their advertising budget is in the range of 
$600 to $700 million. I would think that these outfits would be 
embarrassed, at a time when they are encouraging us to balance the 
budget, as we should, to simply say, look, it is time for us to kind of 
participate in this shared sacrifice and say, look, we will handle our 
own promotion and not depend upon the American taxpayer for a handout.
  I reserve the remainder of my time.
  Mr. COCHRAN. Mr. President, I yield myself as much time as I may 
consume. Let me remind the Senate that we voted on this same issue when 
we had the supplemental reconciliation bill before the Senate on April 
6 of this year. I moved to table this same amendment that was offered 
by the Senators from Nevada and Arkansas. And on a vote of 61 yeas to 
37 nays, this amendment was tabled. We fully debated the issue then. We 
have fully debated the issue now. Nothing has changed, Mr. President.
  So I hope Senators will notice that I am going to put on the desk 
here how everybody voted on that previous occasion. I hope we will 
repeat the success of that favorable motion on the motion to table this 
same amendment. It is my intention to move to table when time has 
expired and we ask for the yeas and nays.
  The PRESIDING OFFICER. Who yields time?
  Mr. BRYAN. May I inquire as to how much time I have left?
  The PRESIDING OFFICER. The Senator has 1 minute 44 seconds. The 
Senator from Mississippi has 30 seconds.
  Mr. BRYAN. I will yield time to the Senator from Arkansas.
  First, the point I seek to make, as I have over the past several 
years with my friend from Arkansas, is that this is really a question 
of a subsidy that in light of what I consider the new economic reality, 
where we are literally going to have to reexamine the way in which we 
do things in Government, and those programs that have long existed that 
are near and dear to many of my colleagues. Some of these programs 
simply cannot pass what I would call the ``smell test.'' This is one of 
them.
  I offer no criticism of these large agribusinesses, who have been 
extraordinarily successful. I compliment them. But I think the 
fundamental question is: Should the American taxpayer be paying for 
their advertising and promotion?
  I reserve the remainder of my time.
  I yield the Senator from Arkansas my remaining time.
  Mr. BUMPERS. Mr. President, I ask unanimous consent that I be allowed 
to proceed for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUMPERS. Mr. President, I just came from downstairs where the 
House just receded to the Senate position on mine law reform. The 
effect of that is to take 233 patent applications that have been 
excluded from being grandfathered in last year and say you can have 
that, too. The biggest mining companies in America. Those 233 patent 
applications, which we just voted to allow to go forward contain $15.5 
billion worth of gold, platinum, palladium, silver, and so on, 
underneath them. They will be given out to the biggest mining companies 
in the United States for zip--not $1 to the taxpayers of this country.
  Here we are debating continuing a practice of giving $110 million to 
the biggest corporations in America, not just the 10 listed on that 
chart--dozens more. Some of them are almost as big. To the biggest 
corporations in the world, we are giving $110 million to help them sell 
McNuggets and Big Macs around the world. I found out last night that we 
have already spent $86 million on this program for alcoholic beverages. 
Who thinks that is a great idea?
  We are doing that, while we are cutting welfare, kicking 50 percent 
of the people off of the rolls by the year 2000, cutting earned-income 
tax credit to keep people off the rolls, $270 billion in Medicare cuts 
for our elderly citizens, $240 billion in Medicaid cuts for the poorest 
of the poor for health care in this country, and on and on it goes. And 
this day, in one fell swoop, we have just voted to give $15 billion 
worth of minerals away and $110 million in the grossest kind of 
corporate welfare. Is that what the revolution of 1994 was about?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. COCHRAN. Mr. President, I yield myself the remainder of the time 
on this side. 

[[Page S13756]]

  Mr. President, this is a red herring. The fact is that the funds 
allocated under this program are to promote U.S. agriculture products. 
We are seeing the U.S. Poultry and Egg Export Council promoting the 
purchase of U.S. poultry products and eggs by foreign-owned and 
operated franchises of McDonald's. That does not mean that goes to 
corporate headquarters in Chicago, or wherever. This means that we are 
producing a promotional campaign using these funds to try to help sell 
more of what we produce in America.
  It is a good program. It has worked and I hope the Senate will vote 
``yes'' on this motion to table.
  Mr. President, I move to table the amendment, and I ask for the yeas 
and nays.
  The PRESIDING OFFICER (Mr. Santorum). Is there a sufficient second? 
There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table the amendment.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 59, nays 41, as follows:

                      [Rollcall Vote No. 440 Leg.]

                                YEAS--59

     Akaka
     Ashcroft
     Baucus
     Bennett
     Biden
     Bond
     Boxer
     Breaux
     Burns
     Campbell
     Cochran
     Cohen
     Conrad
     Craig
     Daschle
     Domenici
     Dorgan
     Exon
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Gramm
     Grassley
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hutchison
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kerrey
     Kohl
     Leahy
     Levin
     Lott
     McConnell
     Moseley-Braun
     Murkowski
     Murray
     Nunn
     Packwood
     Pell
     Pressler
     Pryor
     Rockefeller
     Shelby
     Simon
     Simpson
     Snowe
     Specter
     Stevens
     Thomas
     Thurmond

                                NAYS--41

     Abraham
     Bingaman
     Bradley
     Brown
     Bryan
     Bumpers
     Byrd
     Chafee
     Coats
     Coverdell
     D'Amato
     DeWine
     Dodd
     Dole
     Faircloth
     Feingold
     Glenn
     Grams
     Gregg
     Hollings
     Inhofe
     Kennedy
     Kerry
     Kyl
     Lautenberg
     Lieberman
     Lugar
     Mack
     McCain
     Mikulski
     Moynihan
     Nickles
     Reid
     Robb
     Roth
     Santorum
     Sarbanes
     Smith
     Thompson
     Warner
     Wellstone
  So the motion to lay on the table the amendment (No. 2691) was agreed 
to.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote by which 
the amendment was tabled.
  Mr. BUMPERS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. COCHRAN. Mr. President, we have about 10 minutes before we are to 
proceed with debate on the amendment dealing with poultry regulation. 
One hour on each side is available under that agreement for debate of 
that issue. We had hoped to take up another amendment and discuss it 
between now and then. I know Senator Kerrey had considered bringing up 
his amendment, which is a Market Promotion Program amendment. I know of 
no other business that Senators have requested be transacted during 
this 10-minute period, so I will suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. 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. BOND. Mr. President, I further ask I may be permitted to proceed 
as if in morning business for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. I thank the Chair.
  (The remarks of Mr. Bond pertaining to the introduction of 
legislation are located in today's Record under ``Statements on 
Introduced Bills and Joint Resolutions.'')
  Mr. BOND. I thank the Chair, and I yield the floor.


Excepted Committee Amendment on Page 83, Line 4 through Line 2 on Page 
                                   84

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the excepted committee amendment regarding 
poultry regulations, on which there will be 2 hours of debate. The 
Senator from Mississippi.
  Mr. COCHRAN. Mr. President, as I understand the allocation of time, 
there is 1 hour on each side. If I am not mistaken, I think under the 
order, I am to control the time in opposition to the amendment of the 
Senator from California.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. COCHRAN. Mr. President, I yield myself such time as I may 
consume.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. COCHRAN. Mr. President, what is at issue here in this amendment 
that will be offered by the Senator from California is a provision of 
the Senate bill as approved by the Appropriations Committee, which I 
will read. It is section 729 and found on page 83 of the bill:

       None of the funds appropriated or otherwise made available 
     by this Act may be used to develop compliance guidelines, 
     implement or enforce a regulation promulgated by the Food 
     Safety and Inspection Service on August 25, 1995 (60 Fed. 
     Reg. 44396): Provided, That this regulation shall take effect 
     only if legislation is enacted into law which directs the 
     Secretary of Agriculture to promulgate such regulation, or 
     the House Committee on Agriculture and the Senate Committee 
     on Agriculture, Nutrition and Forestry receive and approve a 
     proposed revised regulation submitted by the Secretary of 
     Agriculture.

  This regulation, which has been promulgated after a great deal of 
discussion, public comment on the proposed regulation has the effect of 
prohibiting and actually preventing poultry producers and processors in 
the Southeast and Southwest from exporting their products into the 
California market. That is the practical consequence of the regulation 
as drawn and promulgated by this administration.
  The origin of the initiative came from California to restate the 
regulations and rules regarding the labeling of poultry products with 
respect to whether they were frozen, chilled or not and what should be 
disclosed in that connection and how you measure the temperature with 
respect to which regulation or label would be appropriate.
  This was all driven by the poultry industry in California which is a 
high-cost producer and processor of poultry products. High cost: High 
labor costs, regulations that are imposed locally and in the State of 
California, that elevate the price at which poultry products can be 
sold in California.
  Different regulations with regard to the way these imported products 
are sent from the Southeast and the Southwest into that market, are 
packaged and labeled, could be drawn so as to increase the costs of and 
maybe even make it impossible to ship deeply chilled poultry products 
into that market.
  So this issue was developed as a way for the California poultry 
industry to keep competition out of their market, to keep lower cost 
poultry processing firms in the Southeast, like in my State of 
Mississippi, from competing and undercutting the price being sold by 
California poultry producers in their own market.
  To let the Senate know that this is not an issue that has been just 
hastily or capriciously injected into this appropriations bill, back in 
April, we were trying to convince the administration of the seriousness 
of this situation that would be caused throughout many parts of this 
country if this regulation were to be approved.
  I am looking at a letter, which I will have printed in the Record, 
dated April 4, 1995. It is written on the letterhead of Senator John 
Warner of Virginia, but it is signed by 19 Senators: Senators David 
Pryor, John Warner, Mitch McConnell, Jesse Helms, Howell Heflin, Paul 
Coverdell, Thad Cochran, Trent Lott, Strom Thurmond, Richard Shelby, 
Bennett Johnston, John Breaux, Jim Inhofe, Sam Nunn, Christopher Bond, 
Lauch Faircloth, Rod Grams, Kay Bailey Hutchison, and Don Nickles.
  What we said in this letter addressed to the acting Under Secretary 
of Agriculture for Food Safety, is that we believe it is appropriate 
for the Food Safety and Inspection Service to consider changes in the 
existing Federal standards, but we have major reservations about the 
standards that the Food Safety and Inspection Service are proposing. We 
talk about the consequences of the proposed regulations 

[[Page S13757]]
at that time, illogical from the point of view of measuring the 
temperature of chilled poultry and then having it labeled ``previously 
frozen'' or ``frozen'' and the consequences of that in terms of the 
businesses that deeply chill the poultry to protect it from 
contamination as it is transported across the country to other markets 
in the United States.
  I ask unanimous consent, Mr. President, that a copy of this letter be 
printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  U.S. Senate,

                                                    April 4, 1995.
     Hon. Michael Taylor,
     Under Secretary for Food Safety (Acting), U.S. Department of 
         Agriculture, Washington, DC.
       Dear Mr. Taylor: We believe it is appropriate for the Food 
     Safety and Inspection Service (FSIS) to consider changes in 
     the existing federal standards for labeling ``fresh'' and 
     ``frozen'' poultry. However, we have major reservations about 
     the standards FSIS are proposing.
       FSIS on January 18, 1995 proposed regulations that would 
     allow a ``fresh'' label to appear only on those poultry 
     products that have not been chilled below 26 degrees 
     Fahrenheit. Poultry that had been chilled to 0 degrees or 
     below would be labeled ``frozen.'' Poultry chilled to a 
     temperature of between 0 degrees and 26 degrees would be 
     labeled ``previously frozen.''
       The following are our most serious concerns about this 
     proposal:
       FSIS arbitrarily chose 26 degrees as the dividing line 
     between ``fresh'' and other designations. There are other 
     temperatures below 26 degrees that preserve the ``fresh'' 
     characteristics consumers are seeking while giving poultry 
     products the longer safe shelf life necessary for 
     transportation across long distances.
       The proposed regulation requires ``fresh'' poultry products 
     to remain at no less than 26 degrees throughout processing, 
     storage and transportation. The original processor does not 
     control some of these operations and could lose a ``fresh'' 
     designation through no fault of their own. The strict 
     adherence to 26 degrees also does not take into account 
     important differences in equipment calibration.
       The designation of ``previously frozen'' poultry is 
     completely illogical. Poultry chilled to between 0 degrees 
     and 26 degrees never has met the proposed regulations 
     definition of ``frozen.'' How, then, can it accurately be 
     labeled ``previously frozen''?
       As Members of Congress deeply concerned about food safety, 
     accurate labeling for consumers and fairness for all segments 
     of the poultry industry, we urge you in the strongest 
     possible terms to make several changes to the proposed rule.
       First, we urge FSIS to select a temperature lower than 26 
     degrees but higher than the current 0 degrees as the minimum 
     temperature at which poultry can receive a ``fresh'' 
     designation.
       Second, we urge FSIS to consider a temperature variance 
     from that minimum to accommodate temperature shifts during 
     shipping and storage and to accommodate the important 
     differences in the calibration of temperature measuring 
     devices and refrigeration equipment. We would point out that 
     USDA's Agricultural Research Service, working in laboratory 
     settings, is able to control holding-chamber temperatures 
     only to within three degrees of the target temperature.
       Finally, we urge you not to require a label designation for 
     poultry chilled to between 0 degrees and the minimum 
     temperature as necessary for ``fresh'' labeling.
       These common sense changes will result in a regulation that 
     assures full labelling disclosure for consumers and the 
     safest possible shipment of fresh poultry products across the 
     nation.
       Thank you for your attention to these recommendations; 
     please do not hesitate to contact us if you have additional 
     questions.
           Sincerely,
         David Pryor; Mitch McConnell; Howell Heflin; Thad 
           Cochran; Strom Thurmond; J. Bennett Johnston; James 
           Inhofe; Christopher S. Bond; Rod Grams; Don Nickles; 
           John Warner; Jesse Helms; Paul Coverdell; Trent Lott; 
           Richard C. Shelby; John B. Breaux; Sam Nunn; Lauch 
           Faircloth; Kay Bailey Hutchison.

  Mr. COCHRAN. Mr. President, before yielding time for others to 
discuss their views on this, let me just say the temperature threshold 
and the negative labeling that the California poultry industry has been 
promoting has only one objective, and that is keeping competitive 
products out of the California market, to make those products appear 
less appealing to California consumers. I do not believe the Federal 
Government should take actions which, like it would in this instance, 
influence improperly interstate trade and commerce in this matter.
  This issue has absolutely nothing to do with improving product 
quality, nothing to do with enhancing food safety. The regulations will 
not improve consumer information or enhance consumer protection. This 
is an intraindustry trade dispute between California and the rest of 
the country where poultry products are produced and sold in that 
market, and I hope that the Senate will reject the amendment to be 
offered by the Senator from California.
  The PRESIDING OFFICER. Who yields time?
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I yield myself as much time as I might 
consume.
  The PRESIDING OFFICER. The Senator is recognized.
  Mrs. BOXER. Mr. President, I was wondering how this debate would 
shape up because, to me, it is very straightforward. It is not about 
California; it is about common sense. The Agriculture Department, after 
8 long years, finally issues a rule that says if your chicken or your 
turkey is frozen, then you cannot put a ``fresh'' label on it.
  Let me repeat that. If the chicken or turkey is frozen when you send 
it out of your State, you cannot mislead consumers and put a ``fresh'' 
label on it. Hurray, a victory for common sense, a victory for the 
right to know what we are purchasing.
  I have shopped for my family for many years, and these things are 
important. So what happens in the Appropriations Committee? A sneak 
attack on a fair rule. They are not going to allow this rule to go into 
effect. I say to consumers all over the country, listen to this debate 
because you are going to hear words that have no meaning. You are going 
to hear words such as exporting and fairness and barriers. But those 
are not the issues. This is about truth in labeling.

  Now, to prove my point that this is not just a California issue, I 
might say on the Record to my friend, my chicken producers are for this 
rule, and my turkey producers are against this rule. I have business on 
either side. I line up with consumers. I hope you will, too, after 
listening to some of the points that I will make.
  Perdue Chicken, which is produced in New York, and has headquarters 
in the State of Maryland and offices in Alabama, Delaware, Florida, 
Indiana, New Jersey, North Carolina, South Carolina, and Virginia, 
says, ``We are opposed to companies selling products as fresh when they 
have been previously frozen or thawed.''
  Perdue is not a California company. This is simple corporate 
responsibility. What are we going to do in the U.S. Senate? I am glad 
it is not in the dead of night. At least it is in the day time and 
everybody can watch us. We are going to say that fresh is frozen and 
frozen is fresh. This makes no sense at all, for anybody who has ever 
gone into a supermarket. I think most Americans have, and they 
understand this.
  Mr. President, I ask unanimous consent that I may show you this 
chicken.
  Mr. COCHRAN. Mr. President, I object. I make a point of order that 
the display of any such product would violate rule 17 of the Senate 
rules.
  The PRESIDING OFFICER. The Senator from Mississippi is correct.
  Objection is heard.
  Mrs. BOXER. I have put away my frozen chicken. I will not bring it 
out in violation of the rules. I respect my friend's right to object to 
my request. But what I was going to do was take that little chicken, 
which is frozen as hard as a rock and marked fresh, and put it on this 
table, and it would have sounded like this. And everyone could see the 
lunacy of this debate.
  Mr. BUMPERS. Will the Senator yield?
  Mrs. BOXER. Yes, I would be happy to.
  Mr. BUMPERS. I could not agree with the Senator more. If you take a 
chicken frozen solid like that, one at zero degrees, and use it for a 
bowling ball, as a House Member did, or as a prop here, as you were 
proposing to do, I agree that is the sound it would make. But that is 
not what this debate is about.
  Mrs. BOXER. Mr. President, if I may reclaim my time, because I have 
limited time, that is exactly what this debate is about. When my friend 
speaks, he can say what he thinks it is about. It is about taking a 
product that is frozen to one degree--what human being can say that one 
degree is not frozen--

[[Page S13758]]
and enabling producers to mark it ``fresh.'' Why? Because they want to 
get more money for a frozen product. That is what this is all about. 
They want to get more money by marking it ``fresh.''
  So I would have shown you this chicken, hard as a rock, marked 
``fresh.''
  My friends objected, and I respect their right to object. So I will 
show you a picture instead. I know they cannot object to that. As you 
can see, there is a frozen chicken being used as a bowling ball headed 
for these pins and, as a result, I think some of them were knocked 
down. Now, do we believe for a minute that a chicken that is frozen 
like this should be marked ``fresh'' if it can knock down bowling pins?
  Now, if I told you this desk was a chair, you would think I was 
kidding. And if I told you summer was winter, and ice was hot, warm was 
freezing, ovens were freezers, and freezers were toasters, you would 
send me to the nearest psychiatrist. And you would be right.
  I do not know what came over the committee, but let me read you the 
definition of fresh. This is out of Webster's Dictionary: ``Fresh: 
Recently made, produced, or harvested, not preserved as by canning, 
smoking, or freezing.''
  Yet, my friends on the committee say that if a chicken or a turkey is 
frozen to one degree, it can be marked fresh. Let me remind you what 
Webster said: ``. . . not preserved as by freezing.''
  ``Frozen: Made into, or covered with, or surrounded by ice; preserved 
by freezing.''
  That is frozen. ``Immobile.'' I will add one: It knocks down bowling 
pins. Chickens that are that hard are not fresh, they are frozen. And 
everyone with a pulse, I think, understands that.
  We have tried to straighten this mess out for 8 long years, and 
special interests come in every time and kill it. This time, the 
Clinton administration had the guts to issue this rule, and the 
Appropriations Committee--by the way, whose chairman said--and he is my 
friend, and I work with him and I admire him, and we just worked 
together on an issue--that we really should not do these things on 
appropriations bills, in relation to an article that appeared today. He 
said he does not believe in making policy on spending bills in relation 
to the mink program.
  Mr. COCHRAN. Will the Senator yield?
  Mrs. BOXER. Yes, on his own time.
  Mr. COCHRAN. Mr. President, I am not quoted in that article. My 
office said something to the effect that I did not think policy should 
be established on appropriations bills. I am not sure my staff said 
that. My staff told me they told this reporter that I did not favor 
legislation on an appropriations bill. That was one reason why I was 
opposing that amendment. I am not advocating legislation on this bill. 
I am saying no funds shall be used to carry out this regulation.
  Mrs. BOXER. I say to my friend and colleague, he is a very smart 
Member of this Senate. He is terrific. He gets his way a lot around 
here. A lot of the time he is right, and he should get his way. But if 
this is not legislating on an appropriations bill, I do not know what 
is. This is a rule that is going to go into effect so that when 
consumers go to the supermarket, they will know whether the chicken 
they buy is fresh or frozen. We are stopping it dead here in the 
Appropriations Committee, simply saying no funds shall be spent to 
enforce it. Well, if it cannot be enforced, then there is no rule. So 
we know what we are talking about here.
  This rule is a victory for common sense. That is why the Consumer 
Federation supports the rule. That is why Citizen Action supports the 
rule, and Public Voice supports the rule, and Public Citizen supports 
the rule. Look at all the people who are for the rule. My friends say 
it is a California issue. Why do we have the National Association of 
Meat Producers and Meat Purveyors and all kinds of national unions, and 
the Oregon Broiler Growers Association and Pacific Egg and Poultry 
Association? As I told you, there are all these consumer groups and 
veterinary groups, et cetera.
  Studies show consumers are willing to pay more for products that are 
fresh. These are their hard-earned dollars. They should be getting what 
they are paying for: a fresh product. And, by the way, there is nothing 
wrong with buying frozen produce, nothing at all. Some people prefer to 
do that.
  Let me give you another serious problem with this. You go to the 
supermarket and buy a frozen product, it is defrosted, marked 
``fresh,'' so you think it is fresh. You go home and put it in your 
freezer. Then you defrost it again before you cook it. That could be 
dangerous to your health.
  I have to say that this rule is very gentle on the people that my 
friends represent in Arkansas and in the Southern States. Why do I say 
that? Because it does not say they have to label it ``frozen'' until it 
gets down to zero. They can use the term, quote, ``hard chilled.'' So 
the Department of Agriculture bent over backward. In my mind, if it is 
10 degrees, it is frozen. They are allowed to say ``hard chilled.'' 
That is a commonsense rule that looks out for those producers that my 
friends represent.
  How much time do I have remaining, Mr. President?
  The PRESIDING OFFICER. There are 49 minutes, 23 seconds remaining.
  Mrs. BOXER. How much time remains on the other side?
  The PRESIDING OFFICER. There are 51 minutes and 42 seconds.
  Mrs. BOXER. I see my friend, the senior Senator from California has 
joined me. I will yield the Senator 15 minutes.
  The PRESIDING OFFICER. The Senator from California is recognized for 
15 minutes.
  Mrs. FEINSTEIN. I thank the Senator from California and I thank the 
President.
  Mr. President, I rise in opposition to the committee amendment. I 
urge my colleagues to strike the committee language to ensure truthful 
labeling of poultry and poultry products.
  Let me say first that the committee language in the fiscal year 1996 
agriculture appropriations bill flies in the face of the consumer. It 
prevents the Department of Agriculture from implementing a new and 
commonsense regulation on what poultry products can be labeled as 
``fresh.''
  I might parenthetically say I never thought when I came to the U.S. 
Senate we would be debating this on the floor.
  Be that as it is, I must say, Mr. President, I find it astonishing 
that any business engaged in the processing of food products can call 
something ``fresh'' when it has been frozen as hard as a rock. The 
whole thrust of Federal food labeling over the past several decades has 
been to provide consumers with accurate information about the quality 
and contents of the food they buy.
  Existing departmental guidelines regarding poultry are really wrong. 
They allow consumers to be deceived into thinking they are choosing 
between two equally attractive pieces of poultry, when in fact one has 
been frozen to zero degrees and then thawed, while the other has never 
been frozen at all.
  The consumer has a right to know if a chicken has been previously 
frozen. If it has, then it is not fresh.
  The new Department of Agriculture Food and Safety Inspection Service 
rule, which is scheduled to take effect next year, ensures that the 
labeling corresponds with reality.
  The new rule sets three labeling categories: First, poultry products 
which have never been chilled below poultry's freezing level of 26 
degrees may be labeled as fresh. Second, hard chilled: Poultry products 
which have been chilled below 26 degrees but above zero degrees must be 
labeled as hard chilled. Third, frozen: Poultry products which have 
been chilled at zero degrees or below must be labeled as frozen or 
previously frozen.
  It makes sense. However, until this new rule goes into effect, the 
poultry industry can use the term ``fresh'' on poultry that has been 
chilled down to zero degrees. In practice, this means that chicken and 
turkeys are being labeled and sold as fresh when, in fact, they have 
been frozen rock solid.
  For example, in California, Foster Farms and Zacky Foods, among 
others, sell fresh chicken, while previously frozen chicken shipped in 
from Southern producers can also bear the ``fresh'' label.
  In the Washington, DC, market, Perdue Farms sells fresh chicken, but 

[[Page S13759]]
  labeling does not tell consumers that Tyson and Wampler chickens have 
been frozen.
  Similarly, while Farmers Pride in Pennsylvania, Plainsville Farms in 
New York, and Sunset Acres Farm in Maine sell fresh poultry, their 
competitors who sell previously frozen poultry can also use the 
``fresh'' label.
  This situation makes a mockery of the label and misinforms consumers 
about the actual freshness of the product.
  This most certainly is not reasonable, and it does not meet the 
expectations of today's consumers.
  According to a telephone survey conducted by ICR Survey Research 
Group in June 1994, the vast majority--75 percent--of the public does 
not think chicken which has been shipped or stored below 26 degrees 
should be called ``fresh.''
  The vast majority of the public questioned, 86 percent, said it was 
inappropriate to label as ``fresh'' chicken which has been stored below 
26 degrees and then thawed out.
  Four out of five consumers, 81 percent, said yes there is a 
difference between chicken which has never been frozen and chicken 
which has been frozen and thawed out.
  By a margin of five to one, those questioned rated ``never frozen'' 
chicken as superior to chicken which had been ``previously frozen.''
  That is the rub. Clearly, the consumer, if possible, would prefer to 
buy fresh chicken.
  According to the Department of Agriculture, once food is thawed, when 
it is refrozen there may be a loss of quality due to high loss of 
moisture. Consumers certainly think so.
  Consumers have a preference for fresh poultry and--this is the rub, 
as well--they are willing to pay a higher price for it. They should be 
getting, we think, what they are paying for.
  As in many issues of national importance, California has taken the 
lead on truthful labeling of poultry products. In 1993, California 
enacted a law restricting the use of the term ``fresh'' on labels of 
poultry that have been chilled at or below 25 degrees and to allow the 
use of the term ``fresh'' only on poultry that has been kept above 25 
degrees. However, the court subsequently ruled that California law was 
preempted by Federal law, which prohibits States from imposing labeling 
requirements that are different from, or in addition to, the Federal 
requirements.
  California is preempted, even though California says what is fresh is 
fresh, and what is frozen is frozen, and never the twain will meet, and 
we will show you with our law. Bingo--they are preempted by the Federal 
Government.
  In response to the consumers' continued demand for truthful labeling, 
the U.S. Department of Agriculture accepted its responsibility, and 
after a 15-month rulemaking process, the Department is prepared to 
implement truthful labeling.
  The Department of Agriculture's new poultry labeling rule, we 
believe, is reasonable and fair to both consumers and the poultry 
industry. Not only does it ensure truthful labeling of fresh poultry 
and protect the consumers' right to know, it provides a new category of 
``hard chilled'' and gives the industry 1 year to comply, allowing 
ample time to use up inventories of existing labels and make the 
necessary changes.
  Accurate and truthful labeling is strongly supported by national 
consumer groups--the National Consumer League, the Public Voice for 
Food and Health Policy, and the Consumer Federation of America.
  The committee language, on the other hand, will prohibit the 
Department from proceeding with its own order.
  Unless the Department of Agriculture is permitted to implement its 
new poultry labeling rule, frozen poultry products will continue to be 
falsely labeled.
  We do not allow fish which has been frozen to be labeled as fresh. We 
should not allow poultry to be mislabeled, either.
  Let us, Mr. President, make the Federal Government be honest about 
what is fresh and what is frozen. Otherwise, we face the prospect of 
allowing the American public to be conned into going to Antarctica to 
lie on the beach.
  I yield the remainder of my time to the Senator from California.
  The PRESIDING OFFICER. Who yields time? The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, let me simply say in response to the 
distinguished Senator from California who has just spoken, on this 
issue of frozen and fresh, I happened to receive a letter from someone 
in California telling me her views on this issue, back when we were all 
corresponding with the Food Safety Inspection Service about this 
proposed regulation. I am going to read this letter and ask unanimous 
consent a copy of it be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. COCHRAN. It is from Dr. Ann R. Stasch, who lives, according to 
the return address, in Northridge, CA. She writes it to me, Senator 
Thad Cochran, ``Chair,'' she says, ``of the Senate Appropriations 
Committee, Senate Office Building, Washington, DC.''

       Dear Senator Cochran: I am interested in the frozen/fresh 
     chicken controversy.

  This is a handwritten letter. This is a handwritten letter.

       I have recently retired as a University Professor of Food 
     and Nutrition. As a consumer, I find little difference in the 
     frozen and unfrozen chicken with regard to the state of 
     thawing. The only chickens which are completely thawed, 
     regardless of state of origin, are, for the most part, those 
     on periodic price reduction sales. It has been my experience 
     that wholly thawed at purchase chickens are often those which 
     have been in storage the longest. These frequently have less 
     flavor.
       I prefer partially frozen (that is, not totally thawed) 
     chicken when I purchase chicken, as chicken fat develops 
     rancidity rather quickly. There are local differences in 
     color of fat preferences by consumers and California chickens 
     have a generally more yellow colored fat than southern 
     chickens. If a chicken is going to sit 3 or 4 days between 
     harvest and sale, it would probably be preferable that it be 
     frozen, no matter the point of origin. It would be 
     unfortunate if partially frozen chicken could not be sold at 
     a regular price.
           Sincerely,
                                                    Ann R. Stasch.

  Mrs. BOXER. Will the Senator yield some time on my time to respond?
  Mr. COCHRAN. I will be happy to yield for a question. I have other 
Senators I want to yield to for purposes of----
  Mrs. BOXER. I was asking if the Senator will yield for a moment?
  Mr. COCHRAN. I have the right to the floor now, but I do intend to 
yield to a Senator, as the Senator from California has yielded to a 
Senator on her side. It was my intention to yield to a Senator on our 
side, but I will be glad to yield to my colleague for a question.
  Mrs. BOXER. I will put it in the form of a question. Is the Senator 
aware there are 32 million people in the State of California?
  Mr. COCHRAN. I know it is a big State.
  Mrs. BOXER. It is a big State, and this is one person's opinion. Is 
the Senator aware that clearly we are going to enable this woman to buy 
frozen products? We just want to make sure they will be marked 
``frozen'' or ``previously chilled'' or ``hard chilled.'' This would 
not stop this woman from buying frozen. It would just make her choice 
even clearer.
  Mr. COCHRAN. I thought the Senate would benefit, Mr. President--I 
will reclaim my time--from a point of view which apparently is a 
thoughtful point of view by someone who is a recently retired 
university professor in the subject of food and nutrition.
  Mr. President, I want to yield to my distinguished colleague from 
Mississippi such time as he may require.

                               Exhibit 1


                                               Northridge, CA,

                                                   April 21, 1995.
     Senator Thad Cochran,
     Chairman, Appropriations Committee, USDA, Senate Office 
         Building, Washington, DC.
       Dear Senator Cochran: I am interested in the frozen/fresh 
     chicken controversy. I have recently retired as a University 
     Professor of Food and Nutrition. As a consumer, I find little 
     difference in the frozen and unfrozen chicken with regard to 
     the state of thawing. The only chickens which are completely 
     thawed, regardless of state of origin, are, for the most 
     part, those on periodic price reduction sales. It has been my 
     experience that wholly thawed at purchase chickens are often 
     those which have been in storage the longest. These 
     frequently have less flavor.
       I prefer partially frozen (that is, not totally thawed) 
     chicken when I purchase chicken, as chicken fat develops 
     rancidity rather quickly. There are local differences in 
     color of fat preferences by consumers and 

[[Page S13760]]
     California chickens have a generally more yellow colored fat than 
     southern chickens. If a chicken is going to sit 3 or 4 days 
     between harvest and sale, it would probably be preferable 
     that it be frozen, no matter the point of origin. It would be 
     unfortunate if partially frozen chicken could not be sold at 
     a regular price.
           Sincerely,
                                                    Ann R. Stasch.

  The PRESIDING OFFICER (Mr. Kyl). The Senator from Mississippi.
  Mr. LOTT. Mr. President, I thank the distinguished chairman of the 
agriculture appropriations subcommittee for yielding me this time. I 
would like to go back and reiterate, for a moment, the process that is 
involved here.
  On August 25 of this year, the Secretary of Agriculture revised 
regulations that imposed what I consider to be misleading restrictions 
on labeling of raw poultry products as ``fresh.'' This regulation was 
designed, as I understand it, by the California poultry industry, to 
make it difficult for competing poultry products from other sections of 
the country to be marketed in California without jeopardizing product 
quality.
  Here is an important point. This new regulation is to take effect 
August 1996.
  Senator Cochran's language in the bill would prohibit implementation 
of this regulation. That is very strongly supported by the ranking 
member. That will give us time to consider this matter further, to make 
sure the regulation is properly drafted and to make sure it is fair. 
That is all that Senator Cochran does, in this language in the bill.
  The Agriculture Committee, the authorization committee, has not even 
had hearings on this matter. It is very important to all of the 
different parties involved. I believe the poultry industry would be 
very happy to work with the agriculture authorization committee and 
with all those interested and involved, both on the Appropriations 
Committee and from the State of California and all the other States 
affected, to come up with a regulation that is fair and that we can all 
live with.
  So I wanted to emphasize this. This regulation is not even scheduled 
to go into effect until August 1996. We have the time to look at this 
matter very carefully. Funds should not be used to implement, start 
implementing this regulation until we have had hearings and really 
thought it through carefully.
  The purpose of the provision is to require that the Secretary of 
Agriculture develop and implement a more reasonable regulation. Pleas 
were made to the Secretary of Agriculture to do that. It does not 
prevent the Secretary from eventually imposing a final rule.
  The fresh poultry regulation that we are dealing with right now is 
going to cause major problems. For instance, in my own State of 
Mississippi, if a poultry firm ships a load of poultry from our State 
to California at 28 degrees, but it is unloaded and put in a freezer 
set at 26 or 24 degrees, it will be labeled ``hard chilled.'' The 
sender of this poultry, Sanderson Farms, in this case, followed all the 
procedures but its poultry would have to have a stamp which the 
consumer would mistake for it being frozen. When you ship something at 
28 degrees, it is not hard frozen. It is not a bowling ball. And it is 
generally considered to still be in a very fresh state. Yet, once it 
gets to the State of California how it is handled could determine how 
it is labeled and could very much impact the sales in that State.
  USDA's final rule also ignored the fact, in my opinion, that 23,000 
of the 26,000 comments received objected to all or portions of the 
proposal. Ironically, the rule even ignores USDA's own study, done by 
the Agricultural Research Service, demonstrating that consumers cannot 
detect any quality differences, as pointed out by the letter from the 
lady in California, between poultry chilled to 26 degrees and products 
chilled to lower temperatures.
  The same USDA study showed that, under ideal laboratory conditions, 
temperatures can only be controlled within plus or minus 2 degrees. 
Nevertheless, some reason, something caused USDA to go ahead and 
implement this regulation without providing any temperature variations 
or tolerances in the final rule, and that is critical. There must be 
some tolerance, some allowance for variation.
  Also, I might note for those who represent pork and beef producing 
areas--and we have both of those in my own State--I think we need to be 
careful if we start down this road toward what can be considered, I 
believe, mislabeling. In the case of pork and beef, already, in order 
to be able to handle them better, products are brought below 26 
degrees. Trim products from beef and pork boning operations are frozen. 
They are later thawed and used in ground beef and pork sausage sold as 
fresh. Frozen beef is mixed with fresh to get a mixture that forms well 
in patty equipment. Frozen lamb is routinely thawed at retail and sold 
fresh. Bacon is routinely chilled to below 26 degrees Fahrenheit to aid 
in slicing.
  So, I just think what the Senator is trying to do here with the 
support of the senior Senator from Arkansas is say let us stop now, 
before we implement a rule that is misleading and unfair. Let us think 
about it. Let us talk about it. Let us have hearings on it. Then we can 
come up with a rule that we think everybody can live with.
  So I urge my colleagues to support the action of the committee and 
oppose the amendment by the Senator from California.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I rise today in opposition to the 
amendment offered by the Senator from California.
  Recently, USDA issued a final rule prohibiting poultry that has ever 
been chilled below 26 degrees from being called fresh. Under the new 
rule, poultry chilled below zero degrees would be labeled frozen, 
poultry chilled between zero and 26 degrees would be labeled hard 
chilled, and poultry held above 26 degrees would be labeled fresh.
  All we are asking for is a little common sense.
  The language in the committee's bill is simply designed to ensure 
that before implementing any new regulations on this matter, USDA 
address three issues: First, the temperature variance; second, the 
language on the label; and third, to ensure consumer health and safety 
is fully protected.
  The USDA's new poultry labeling rule does not allow for a temperature 
variance. As it stands, a poultry product could drop one-tenth of a 
degree below the cutoff assigned by USDA, and it would have to be 
relabeled. Yet USDA's own studies show it is impossible to maintain a 
refrigerated product's temperature to within 2 degrees of the target 
temperature. Imagine transporting a refrigerated truck long distances, 
through a variety of climates, and many stops and handlers. There needs 
to be some degree of flexibility in this rule to permit for those types 
of variations.
  But I think the key words here are long distances. I hope no one is 
fooled by this debate. The issue here is competition--competition from 
out-of-State producers. Certain producers just do not want to compete 
with products from out of State. Maybe their production costs are too 
high, maybe they are not as efficient, or maybe they just do not want 
the competition. But the consumer does. The consumers I hear from want 
the greatest possible selection of safe foods at the lowest price. They 
do not care if their chicken comes from California or Arkansas or 
Virginia. They just want the highest quality product at the lowest 
price.
  In case there is any doubt about what is a stake here, let me tell a 
story. A few months ago, I opened a Richmond, VA, paper and saw an add 
urging Virginians to call me and express their displeasure with my 
position on this issue. Obviously someone was very concerned for 
Virginia consumers. But down at the bottom of the add, in small print, 
were eight very telling words: ``Paid for by the California Poultry 
Industry Federation.''
  Second, USDA has resorted to some unique terminology. Before USDA got 
into this there were two kinds of chicken: fresh and frozen. Simple 
enough. You went to the store, read the label, bought your chicken, and 
you were finished. Common sense.
  Now, according to USDA, there are three kinds of chicken: fresh, 
frozen, and hard chilled. Some might call that an improvement. I call 
it confusing. As the junior Senator from California said earlier: ``You 
will hear words that have no meaning.'' Well there are two.
  Linda Golodner, president of the National Consumers League said 
``Consumers generally are familiar with the 

[[Page S13761]]
terms fresh and frozen. Now we have to educate them about what it means 
when something is `hard chilled.''' Once again, regulatory zeal 
displaces common sense, and consumers need to be reeducated by those 
who know better.
  But why not just call it fresh, frozen, or ``from somewhere other 
than California.'' I guess hard chilled is more concise.
  Whatever term USDA selects to describe this new category of poultry, 
it should be a neutral term, not one that denigrates the product, 
confuses the consumer, or that benefits one market segment over 
another.
  Mr. President, the committee bill in no way hinders the regulatory 
process. We ask simply for a level playing field. In the end, I am 
convinced that sound science and common sense will prevail. I urge my 
colleagues to oppose the amendment.
  Mr. President, I, likewise, am very supportive of the action taken by 
the committee on which I am privileged to serve, the Senate Agriculture 
Committee, and, indeed, the position taken by the distinguished floor 
managers.
  I just wish to propound a question here. I think we should have a 
little colloquy among us on this issue, because I think the only 
concern that remains is not all the technical business about the 
temperatures and everything, but did our committee--it is I my 
understanding we did as a committee--take into consideration the fact 
that our action as a committee would in no way jeopardize the health of 
the consumers? That is the bottom line. I am satisfied it does not, but 
I think it would be wise if we had the distinguished floor managers 
address that issue, and perhaps other Senators who might likewise wish 
to address it.
  Mr. COCHRAN. Mr. President, if the Senator will yield, I am happy to 
respond. The Appropriations Committee has been questioning witnesses 
from the administration on this issue for some time. I can remember 2 
years ago, the Senator from Arkansas [Mr. Bumpers] was chairman of this 
subcommittee. At our regular hearing on the budget request this came 
up. We have talked about it. It is not a new issue. The issue is not 
whether we want to ensure that these food products are safe and healthy 
and do not in any way jeopardize human health because there is no 
question about that. This does not in any way put at risk any 
consumers.
  All we are saying, as the distinguished Senator from Mississippi so 
eloquently put it--we are asking for time to review this in the 
Committee on Agriculture, for example, on which the Senator has served. 
We have not had hearings, as Senator Lott pointed out. And the 
Agriculture Committee, that has jurisdiction over this legislation, 
ought to look at it and ought to have an opportunity to be heard in 
some official way, in my view, as controversial and as far-reaching and 
as unfair as many say this is; that it is protectionist regulation and 
that the administration has simply ignored some of the facts about how 
this poultry industry does business and what is used, in terms of 
chilling, to protect consumers, really.
  Mr. WARNER. Mr. President, that is a very satisfactory response to my 
question. As I said, I serve on the Senate Agriculture Committee. We 
will have hearings.
  But in this period of time that is embraced by the proposal, which I 
support, of the Appropriations Committee, those hearings will take 
place. But we also give assurance to the people that we have primarily 
explored this question as to whether or not the current processing and 
transportation will in any way affect health and safety, and the answer 
is, flat out, ``No, it will not.'' That is very important.
  Mr. COCHRAN. Mr. President, for the information of the Senator, I put 
in the Record at the beginning of this discussion a copy of the letter 
that actually was written on your letterhead, signed by 19 Senators, 
fully discussed from the point of view that the proposed regulations 
were unfair, and why, and that we have the interest of consumers at 
heart as well as fairness in the poultry industry.
  Mr. WARNER. Mr. President, I thank the Senator for his leadership on 
this issue. Mr. President, I thank my colleague from Mississippi.
  By coincidence, I was in the valley of Virginia yesterday on the 
occasion of the anniversary of the date of the Third Battle of 
Winchester, which was a very significant engagement during the Civil 
War. And I had a chance to meet with some of my constituents because 
our poultry industry in large part is in that historic valley of 
Virginia of the Blue Ridge Mountains. I know these people so well. I 
have grown up with them and have been with them all of my life. They 
would not even think of asking the Federal Government or the Congress 
or anyone else to do something that in any way jeopardized the health 
of the American people.
  We export millions of birds daily from that area of Virginia--all 
over the United States; indeed, all over the world. It is a very 
significant industry, but an industry operated in large measure by the 
family farmers as we know them, co-ops and so forth. And these people 
are gravely concerned that someone might raise the allegation, ``Well, 
you are doing something that would jeopardize the health of the 
American people.''
  I am glad that we have put that issue to rest. I thank the chairman.
  The PRESIDING OFFICER. Who yields time?
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. BOXER. Mr. President, thank you.
  Mr. President, I would like to respond to two comments that were made 
here, one by the Senator from Mississippi, which was echoed by the 
Senator from Virginia. Sometimes I wonder where I am. Is this ``Alice 
in Wonderland''? On October 13, 1994, in a unanimous vote by the U.S. 
Senate on poultry labeling:

       It is the sense of the Congress that the United States 
     Department of Agriculture should carry out the plans of the 
     department to hold public hearings for the purpose of 
     receiving public input on issues related to the condition 
     under which poultry sold in U.S. may be labeled fresh; and, 
     (b) finalize and publish a position on the issue as 
     expeditiously as possible after holding those hearings, and 
     no person serving on the expert advisory committee shall have 
     a conflict of interest.

  That passed overwhelmingly. It is the law.
  Now Senators stand up here and say ``not enough time, not enough 
hearings.'' That is extraordinary. We asked them to do this. Public Law 
103-354, October 13, 1994. We said, ``Do this expeditiously.'' And now, 
``Not enough time. This is not fair. Not enough time.''
  What a way to kill a commonsense rule. It is not even based on the 
truth and the facts.
  The other comment was that the Department of Agriculture did not 
listen to the people who wrote in on this rule. The truth is they 
discarded the form letters that came from employees of Tyson Poultry, 
and other companies on both sides of the issue, because they had a 
conflict of interest. Sure, they were consumers, but they worked for 
these companies. They wanted to make sure that they were not making 
this rule based on what people who have an economic conflict of 
interest believe, but what is in the best interest of consumers.
  I ask unanimous consent to have printed in the Record Public Law 103-
354, October 13, 1994, asking the Department of Agriculture to pass a 
rule that was fair.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        TITLE III--MISCELLANEOUS

     SEC. 301. POULTRY LABELING.

       It is the sense of Congress that--
       (1) the United States Department of Agriculture should--
       (A) carry out the plans of the Department to hold public 
     hearings for the purpose of receiving public input on issues 
     related to the conditions under which poultry sold in the 
     United States may be labeled ``fresh''; and
       (B) finalize and publish a decision on the issues as 
     expeditiously as possible after holding the hearings; and
       (2) no person serving on the expert advisory committee 
     established to advise the Secretary of Agriculture on the 
     issues should stand to profit, or represent any interest that 
     would stand to profit, from the decision of the Department on 
     the issues.

  Mrs. BOXER. Mr. President, if you ask the average person, ``If a 
chicken is frozen to 10 or 20 degrees, is it frozen,'' they would say 
yes. The Department of Agriculture in its rule did not even force them 
to do that; it said you can 

[[Page S13762]]
market hard chill. And no one is up here saying that it is bad to buy a 
frozen chicken or turkey at all. All we are saying--the Consumer 
Federation of America and all the consumer groups that are lined up 
behind this rule--is, you have a right to know. You should know. It is 
only fair to know. Consumers now know how much fat there is in a 
product. I hope we all support that. That is an important health issue.
  We know how many vitamins there are, how many minerals there are, how 
many calories there are, and how much protein there is. Should they not 
know if the product has been frozen? It affects the taste. It affects 
the price. It affects whether or not they will throw it in the freezer 
again because we know that is not a good thing to do if it has been 
defrosted once or twice.
  Again, we hear a lot of talk about, oh, let us hold off. Do you know, 
my friends, when this all started? It was more than 8 years ago now 
because it was under the Bush administration. Eight years ago the Bush 
administration attempted to solve this problem. My colleagues came on 
the floor, ``We need more time.'' How about 100 years? How much time 
does it take to understand that fresh is fresh and frozen is frozen? I 
think it is a no-brainer. But then again, others may disagree.
  Truth in labeling should be a practice in this country. And the only 
reason I can see why people oppose this is--you guessed it--money. You 
can get more money for a fresh product, and they know they cannot 
deliver it fresh. So they freeze it, but they market fresh. And it is 
highway robbery, if you really want to get down to it, for the 
consumers of America. How are we going to do this?
  I do not know where these votes are going to come out here, but I 
know there is an awful lot of money behind it. And if this Senate votes 
today that frozen is fresh, I do not know. That will be a low point for 
me in terms of common sense.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. COCHRAN. Mr. President, I yield 5 minutes to the distinguished 
Senator from North Carolina [Mr. Faircloth].
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. FAIRCLOTH. Mr. President, thank you.
  Mr. President, I thank Senator Cochran.
  Mr. President, I rise in opposition to the amendment offered by the 
Senator from California to strike a provision requiring the Department 
of Agriculture to report back to Congress with a new rule regarding 
poultry labeling. Both consumer groups and the poultry industry support 
the development of new labeling rules which are fair and based on 
scientific data about consumer views regarding descriptive labeling 
terms. But instead of taking this approach, the USDA arbitrarily 
established temperature ranges and descriptive terms which have no 
basis in science, marketplace experience, or consumer preference, and 
have never been heard of before.
  Moreover, in issuing its recent labeling rule, the U.S. Department of 
Agriculture ignored 23,000 comments which it received in opposition to 
the proposed rule change. And it is worth mentioning that they only 
received 4,000 in support of the rule change, and these all primarily 
from one State.
  This rule discriminates against poultry producers which market their 
products nationwide, and most agricultural products are marketed 
nationwide. But this rule carves out regional markets where local 
producers can sell their product free from out-of-State competition. It 
simply is a barrier to trade. Thus, in the end, this new rule is not at 
all proconsumer. It is anticompetitive and will result in higher 
consumer prices and protected markets where regional producers will 
reap monopolistic benefits.
  The very day that Secretary Glickman was confirmed by the Senate, I 
came to the floor and voiced my concerns about this issue, which at the 
time was still in the form of a proposed rule.
  Mr. President, I am disappointed and surprised that Secretary 
Glickman has allowed his Department to issue a final rule with as many 
flaws as this one has. I am shocked that he would tolerate the 
development of a major labeling rule with total disregard for 
scientific data or consumer views. He has allowed the USDA to pick the 
term ``hard chilled'' out of thin air. It is a term that has never 
existed in the poultry industry before. I have been around the industry 
all my life and had never heard the term. It is a totally meaningless 
term. There are absolutely no market data to support the 
appropriateness of the term, and there is no history of it ever having 
been used in the poultry industry.
  Another problem with the USDA labeling rule is that it totally fails 
to provide for temperature variance for products shipped over long 
distances.
  Common sense tells you that when you load a truck in Virginia and 
drive it across country to California, it is impossible to maintain an 
exact, no-variance temperature. I know from personal experience you 
just simply cannot maintain the temperature without any variance 
whatsoever as it travels through different climates and different time 
zones en route to its final destination. But what does a variance of 1 
degree matter anyway?
  In addition to the weather problems, the shippers also have to 
contend with cooling equipment, which is simply not that exact. 
Calibrating a thermostat to maintain a product temperature at exactly 
26 degrees is a very inexact science and impossible to do. However, the 
USDA rule provides no temperature tolerance.
  This is totally an unreasonable and farfetched idea, and it is 
completely unacceptable. A real proconsumer rule would be based on 
scientific data and would ensure competitive prices for poultry 
consumers throughout the Nation. The existing USDA rule accomplishes 
neither.
  I encourage Secretary Glickman to revise the existing rules in a 
manner consistent with fairness, objectivity, and real marketplace 
competitiveness. Therefore, I strongly oppose the amendment offered by 
my colleague from California and urge its defeat. I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. COCHRAN. Mr. President, I was prepared to yield some time to the 
distinguished Senators from Arkansas. I am going to let them decide 
which one goes first.
  The PRESIDING OFFICER. There are 32 minutes on the side of the 
Senator from Mississippi, 33 minutes on the side of the Senator from 
Arkansas.
  Mr. COCHRAN. Mr. President, I yield such time as the distinguished 
Senator from Arkansas [Mr. Pryor] would like to have on this issue.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. PRYOR. Mr. President, let the Record show that the junior Senator 
from Arkansas was certainly willing to yield to the distinguished 
senior Senator from Arkansas to make his statement at this time. I have 
been looking forward to that statement. I think he, as the ranking 
member of the subcommittee, along with our friend from Mississippi, 
Senator Cochran, is doing a very good job of putting this issue exactly 
where it should be placed, and that is it is not an issue, in my 
opinion and I think in the opinion of many of my colleagues, of 
consumer protection. It is an issue basically of the protection of the 
State of California. That is where we see this issue coming down.
  There is something missing about this debate, I might say, Mr. 
President, that is disconcerting to me, which I think, and hope, will 
deserve a response certainly, if I could elicit one, from my colleague 
from California, Senator Boxer. I am hoping to find out why the issue 
of only poultry--only poultry--is today before the Senate in this so-
called great debate between frozen and fresh poultry products.
  Mr. President, it is a known fact that beef, that pork, that fish may 
be frozen at any degree and they are not affected as the Senator from 
California, or I should say the Senators from California, would attempt 
to affect the products of poultry especially from the South and the 
Southeastern part of the United States.
  I might say, also, Mr. President, that the Senator from Mississippi 
has rightfully offered his amendment and placed it into this basic 
legislation, into the committee bill. The Senator from Mississippi is 
not trying to obliterate what the U.S. Department of Agriculture is 
attempting to do. He is simply trying to say that any regulation in 
this area, 

[[Page S13763]]
assuming that we would have hearings, as the Senator from Virginia, 
Senator Warner, has stated on the issue, that the Committees of 
Agriculture in the House and the Senate must approve ultimately any 
language that the U.S. Department of Agriculture would adopt in 
imposing and, I might say, implementing such a far-reaching, sweeping 
regulation, in regulatory language.
  Mr. President, I think it is also needful, or let us say worthwhile, 
at this point for us to sort of go back just a couple of years and see 
how this issue got to the Senate in this form.
  First, about 2 or 3 years ago, the State of California passed a law 
to prohibit fresh labeling as has been under discussion today. I think, 
if I am not mistaken, that was in 1992 or 1993. The American Meat 
Institute and the National Broiler Council and others took this issue 
to court, in fact to the Federal court. The court held, with the 
support of the Department of Agriculture, that this particular law 
passed by the State of California was preempting Federal law and 
therefore basically was struck down. The U.S. Department of Agriculture 
then, Mr. President, agreed to review this regulation and issued an 
interim or a proposed rule.
  During the rulemaking process, as other Members of the Senate have 
mentioned this morning, during that particular time of several weeks 
when people could comment on how they felt about this rule about to be 
proposed, or which assumingly was going to be proposed by the 
Department of Agriculture, of the 26,000 comments that came in, 23,000 
stated they felt that the regulation went too far.
  We think it also interesting to note, and perhaps the Record could be 
made clear on this, we do not know of any consumer in the State of 
California who objected to this labeling process that we have had so 
long, that has been so fair. We do not know of any consumer in Senator 
Boxer's or Senator Feinstein's State who has objected to this process.
  Who objected? The California Poultry Association, which is an 
association made up of California poultry producers who might not be as 
efficient as those throughout the South and the Southeast in the field 
of poultry production.
  Once again, Mr. President, I think that there is no scientific basis 
today that we can see for the U.S. Department of Agriculture's 
arbitrary selection of 26 degrees as the threshold temperature for 
determining whether poultry is fresh. In fact, some say that if you 
kept poultry at 26 degrees, it might well spoil.
  What this is, I think, is a nontariff trade barrier erected by the 
California poultry industry, not brought about by California consumers. 
There is no objection from California consumers that we know of. 
Perhaps we might even consider initiating new GATT or NAFTA rounds for 
a trade agreement among the States, involving the State of California 
and these particular poultry concerns that they are raising this 
morning.
  Mr. President, we have time to hold hearings. And with the Cochran 
amendment in place, if it is kept in place, we are certainly willing 
and, I think, able to work out a fair solution to the issue of fresh 
versus frozen poultry.
  I sincerely hope that the Senate will defeat the amendment offered by 
our very good and distinguished friends, the Senators from California, 
Senator Boxer and Senator Feinstein.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mrs. BOXER. Mr. President, I yield myself as much time as I might 
consume.
  Let me say to my dear friend from Arkansas that he is correct that 
there were 26,000 comments. Now, 22,000 comments came from people who 
were employed in the chicken business in his home State and other 
Southern States, so I do understand their point of view. Of course I 
do.
  A couple thousand came in from California, also people employed by 
the chicken industry there. So when they were making a decision, 
obviously people with a special concern do not carry as much weight as 
people who are not economically affected.
  Let me tell you about that, because the Senators from Arkansas keep 
making this a California issue. As I said before, I have a split in my 
State. I have the chicken people backing this rule, and the turkey 
people strongly opposing it. I have come down on the side of consumers. 
As the Senator knows, it is hard when your State is not united. In this 
case, the Senator from Arkansas's State is pretty much united.
  Let me say that I have a breakdown of the comments: 611 from poultry 
processors and growers, clearly with a special concern; 23 from trade 
associations; 12 from State government agencies; 6 from academia; 6 
from consumer organizations; 5 from congressional Members; 3 from chefs 
who are interested in this issue; 2 from retailers; and 4 from other 
sources. And the vast majority of the individual letters were on 
company forms.
  So I think it is hard to learn a lot from that. I think we all know 
if we are concerned that a rule might impact our economic abilities, of 
course we are going to write, and I support those people. But I think 
we have to cut to the bottom line here, which is, what is fair and what 
is just and what is right?
  Clearly, the Senate is on record asking the Agriculture Department to 
issue this rule or this kind of a rule, which I think bends over 
backward. They did not say that produce under 26 degrees must be marked 
frozen--it allows the producers in Arkansas to mark those products 
``hard chilled'' down to zero degrees--only when they go below zero. I 
also think it important that I place in the Record, and I ask unanimous 
consent to do so, a statement of the administration about this move by 
the Appropriations Committee to essentially cancel this rule or, if you 
will, I will say in nice terms, to deep-six this rule or to put it in a 
hard freeze.
  This is what the administration says:

       The administration is strongly opposed to the committee 
     bill's prohibition on the use of funds to implement or 
     enforce the final regulation on fresh and frozen poultry, 
     which was published on August 25, 1995. Publication of this 
     regulation was the culmination of nearly 2 years of effort, 
     during which the views of all stakeholders were heard and 
     considered. The issue of proper labeling of poultry products 
     has been the subject of litigation in Federal court as well 
     as congressional- and USDA-sponsored public hearings 
     throughout the Nation. Committee language would prevent 
     consumers from receiving accurate information and assurance 
     of a national standard in this area and could result in 
     disparate and conflicting State enforcement activity.

  I think this is important coming from the administration:

       The committee's language represents unwarranted legislative 
     intrusion into the regulatory process.

  We all know here that we are opposed to regulation that overreaches. 
But in this particular case, I say to my friend, the Senate itself 
voted, urging the Department of Agriculture to produce this rule, and 
now when they produce a rule that bends over backward to be fair--it 
takes them 2 years, public hearings all over the country--there is a 
backdoor attempt to stop it from going into effect.
  I also want to make this other point. We keep hearing this is a 
California issue. I already told my friend that the California poultry 
industry is split on it, but I also want my friend from Arkansas to 
know that other States have passed labeling laws that mirror or are 
similar to this rule. Those States are: Alaska, Arizona, Delaware, 
Illinois, New York, Oregon, and Washington.
  So clearly, these other State legislatures are waking up to the fact 
that their consumers deserve truth in labeling.
  I ask unanimous consent to print in the Record a list of those States 
and the types of laws that they have.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

                                              Irell & Manella,

                                                 January 25, 1994.
     To: Team
     From: Matthew Sloan.

                               Memorandum

     File: NBC v. Voss and CPIF (Intervenor).
     Re State Labelling Laws.

                               State Laws

       1. Alaska (unlawful to sell prev. frozen as fresh; no 
     definition of fresh?):
       Title 3: Agriculture and Animals: Section 03.05.035(a): 
     Meat, fish or poultry which has been frozen may not be sold, 
     represented or advertised as a fresh food.
       (c) Commissioner shall adopt regs to provide for 
     examinations to ascertain whether it has been frozen.
       Title 45: Trade and Commerce: Sec. 45.50.471: Unlawful to 
     (b)(21) ``selling, falsely representing or advertising meat, 
     fish or poultry which has been frozen as fresh food''.
     
[[Page S13764]]

       2. Arizona (defines fresh; prohibits misbranding):
       Title 3: Agriculture and Dairying: Sec. 3-2151: 
     Definitions. This section defines:
       (7) ``Fresh'' means any dressed or ready to cook poultry or 
     poultry product which has not been frozen.
       (8) ``Frozen'' means any . . . poultry product which is in 
     fact in a frozen state and which has been constantly 
     maintained at a temperature of thirty-two degrees Fahrenheit 
     or lower.
       (11) and (12) define label and labelling.
       (13) ``Misbranded'' shall apply to any poultry product 
     under one or more of the following circumstances, if:
       (a) Its labeling is false or misleading in any particular.
       3. Delaware (fresh prohibition):
       Title 16, Part IV, Chapter 33: Pure Food and Drugs. 16 Del. 
     C. Sec. 3309:
       Misbranding of Food:
       For the purposes of this chapter, food is deemed to be 
     misbranded:
       (5) If it is obtained by the dealer in frozen bulk form and 
     is subsequently thawed and offered for sale in a package or 
     bearing a label indicating such food to be fresh.
       4. Illinois (misleading; previously frozen requirement):
       Chapter 410 Public Health Food and Drug Safety: Ill. Food, 
     Drug and Cosmetic Act Sec. 410 ILCS 620/11
       Sec. 11. A food is misbranded--(a) If its labeling is false 
     or misleading in any particular.
       (j) If it purports to be or is represented for special 
     dietary uses, unless its label bears such [info prescribed by 
     Director as necessary to inform buyers of value for such 
     purposes].
       (n) If its is a color additive unless [labelling in 
     conformity with Section 706 of Federal Act] [Mr: shows when 
     refer to federal act or regs for definitions/guidelines?]
       (o) If a meat or . . . poultry food product has been frozen 
     prior to sale unless when offered for sale, the package, 
     container or wrapping bears, in type of uniform size and 
     prominence, the words ``previously frozen'' so as to be 
     readable and understood by the general public except that 
     this subsection does not apply to [precooked items].
       [My notes: (1) not define frozen; use federal definition? 
     (2) This is a requirement not prohibition.]
       5. Kansas (imported):
       Section 65-6a47: requires that wholesaler or retailer label 
     poultry from foreign country as ``imported''.
       6. Maine (organic):
       Title 7. Part 2. Chapter 103.
       7 M.R.S. Sec. 553. Labeling and advertising.
       Except as otherwise provided in this chapter, a good shall 
     not be labeled or advertised as ``organic,'' ``organically 
     grown,'' or ``biologically grown'' or by a similar term, 
     unless the food is:
       D. Meat, poultry or fish produced without the use of any 
     chemical or drug to stimulate or regulate growth or 
     tenderness, etc.
       7. Mississippi (imported):
       Sec. 75-33-101: must label foreign poultry as imported.
       8. Nevada (imported)
       Sec. 583.045: must label foreign poultry as imported.
       9. New York (kosher labelling prohibitions and 
     requirements; frozen labelling requirement.):
       A. Prohibits Using Kosher Label Unless Meets Orthodox 
     Hebrew Requirements:
       See Sec. 201-a (1). Person who, with intent to defraud, 
     represents poultry as kosher or k. for passover, if not meet 
     orthodox Hebew religious requirements, is guilty of 
     misdeameanor or felony (depending on amount of poultry.)
       B. If Retailer Sells ``Kosher'' Poultry Must Label either 
     ``Soaked and Salted'' or ``Note Soaked and Salted'';
       See Sec. 201-a(2).
       C. Fresh Meat as defined under Kosher Law:
       Section 201-a(3): ``Fresh meat, meat by-products and 
     poultry shall be defined as meat or poultry that has not been 
     processed, except for salting and soaking.''
       [Me: bolsters arguments that many different definitions of 
     ``fresh''?]
       D. Labelling Requirement for Food First Offered for Sale as 
     Fresh and than Frozen:
       Section 214-g provides that if any poultry, seafood, or 
     meat was first offered for sale as fresh and then later 
     frozen, it must bear label in form prescribed by commissioner 
     informing that it was previously offered for sale in its 
     unfrozen state.
       10. New Jersey (kosher prohibitions):
       Section 2C:21-7.2 Defines ``kosher'' as prepared in strict 
     compliance with orthodox reabbinate.
       Section 2C:21-7.4(b)(3) defines as a ``disorderly persons 
     offense'' falsely labelling food product as ``kosher'' or 
     otherwise if tend to deceive.
       [Me: Note that (b)(1) and (2) seem to apply only to 
     retailers (they exempt manufacturer or packer of food) but 
     (b)(3) has no such limitation).
       11. Ohio (kosher labelling prohibitions and requirements):
       A. Kosher Prohibitions:
       Section 1329.29 (A) No person shall do any of the 
     following:
       (1) Sell or expose for sale at retail, or manufacture, any 
     meat or meat preparations or any fowl or preparations from 
     fowl and falsely represent the same to be ``kosher'' or as 
     having been prepared under, and of a product or products 
     sanctioned by, the Orthodox Hebrew religious requirements;
       (2) Falsely represent any food products or the contents of 
     any package or container to be constituted and prepared as 
     described in division (A)(1) of this section by having or 
     permitting to be inscribed thereon ``kosher'', ``kosher 
     style,'' etc.
       [Me: Does this only apply to retail?]
       B. Kosher Requirements:
       Sec. 1329.29(B) requires that all prepackaged ``kosher'' 
     meats/poultry must be ``soaked and salted'' and all fresh 
     poultry marked ``kosher'' must either be labelled ``soaked 
     and salted'' or ``not soaked and salted.''
       12. Oregon (fresh; state of origin prohibitions):
       Section 619.365 prohibits use of labels that say:
       (A) misrepresent state of origin; or state that chicken
       ``(B) are fresh, if at any time after slaughter, they have 
     ever been frozen''.
       [Me: Where's definition of frozen? Federal definition or 
     state? More research]
       13. South Carolina (foreign origin requirement):
       Section 47-17-310 requires all meat (poultry?) imported 
     into state from outside shall be labelled ``imported'' in 24 
     point type.
       14. Washington (frozen/thawed label requirement):
       Section 69.04.333 requires that if poultry has been frozen 
     at any time it must bear a label ``clearly discernible to 
     customer that such product has been frozen and whether or not 
     the same has since been thawed.''
       15. California (organic).

  Mrs. BOXER. Mr. President, I hope I have debunked the myth that this 
is a California issue. Certainly, there is support among parts of our 
poultry industry for this rule, but it is not universal. The main issue 
here is, do the consumers have a right to know? They already know the 
fat content, they already know the calorie content, they already know 
the minerals in products, they already know the vitamins, protein. For 
goodness' sake, they ought to know if a product has been frozen or deep 
frosted, and exactly what they are getting when they pay their hard-
earned dollars.
  I just have to say, again, I understand that colleagues must fight 
for their States, and I understand that completely. When you have a 
State that ships these products out, I understand why you would be here 
fighting for that industry and making sure that your State was not 
disadvantaged. So I have total respect, and if I was the Senator from 
Arkansas, who knows what I would be doing. So I am not being holier 
than thou in any way, shape, or form.
  But I have to make the point that this is really about money; it is 
all about dollars. Otherwise, who would be opposing such a commonsense 
rule? You can get more money for a fresh product, so you market fresh. 
What is a little lie? You can ship your frozen product miles and miles 
into another State to compete with truly fresh chicken, and no one will 
know and you get top dollar, so what is a little lie? I say it is 
wrong.
  I would like to take a little time to read a Washington Post 
editorial, or just portions of it. I ask unanimous consent not that we 
print this copy in the Record, but that a smaller copy be printed in 
the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                          Fair's Fair on Fowl

       ``When I use a word,'' said Lewis Carroll's Humpty Dumpty, 
     ``it means exactly what I want it to mean.'' Humpty Dumpty 
     was an egg, but the observation applies especially well to a 
     fight that's going on about chickens. Michael Taylor, acting 
     agriculture undersecretary for food safety, recently tried to 
     call a halt to 2\1/2\ years of squawking by issuing a rule 
     that chickens and turkeys frozen rock solid and shipped that 
     way, then thawed, may no longer be labeled ``fresh.'' At the 
     last minute, though, a Senate subcommittee has come up with 
     appropriations language that would block the rule, leaving 
     frozen chickens and turkeys still eligible for the label of 
     freshness.
       The notion that fresh chickens aren't frozen, and vice 
     versa, might at first seem uncontroversial. Consumers might 
     like to know if a bird has been frozen and thawed, whether 
     out of health or cooking preferences or because they prefer 
     fresh meat. Small regional chicken companies see this 
     preference for freshness as a possible selling point, since 
     they, unlike the bigger producers, don't have to freeze their 
     birds to ship them cross country. They have been wanting for 
     some time to label their own birds ``fresh'' and to stop the 
     national companies from so labeling theirs.
       Inconveniently enough, however, the government at some 
     point agreed that to be defined as legally ``frozen'' a 
     chicken or turkey had to reach an internal temperature of 
     zero degrees Fahrenheit, although the meat actually freezes 
     solid at about 25 degrees above that. The big companies thus 
     have been within their legal rights all this time to freeze 
     their birds down to a point above zero 

[[Page S13765]]
     and label the meat ``fresh'' because it has technically never been 
     ``frozen.'' The National Broiler Council beat back a 
     California law that attempted to redefine ``fresh'' as having 
     ``never reached an internal temperature of 25 degrees or 
     below for more than 24 hours.'' The big birders successfully 
     sued to establish that the state law was superseded by the 
     less nature-bound federal version.
       Would a frozen chicken under the proposed rules now be 
     referred to as ``frozen''? Heaven forbid. ``Frozen'' chicken 
     and turkey--the kind chilled below zero--would continue to be 
     ``frozen.'' The stuff that had been frozen to between zero 
     and 26 degrees, previously called ``fresh,'' would be labeled 
     ``hard chilled.'' For now, though, barring a Senate 
     turnaround, the victory may remain with the broiler lobbyists 
     who complain that it's too arbitrary to draw an either-or 
     distinction between fresh and frozen at all. Seriously, you'd 
     think this one would be easy.

  Mrs. BOXER. Mr. President, the first paragraph says:

       ``When I use a word,'' said Lewis Carroll's Humpty Dumpty, 
     ``it means exactly what I want it to mean.'' Humpty Dumpty 
     was an egg, but the observation applies especially well to a 
     fight that's going on about chickens. Michael Taylor, acting 
     agriculture undersecretary for food safety, recently tried to 
     call a halt to 2\1/2\ years of squawking by issuing a rule 
     that chickens and turkeys frozen rock solid and shipped that 
     way, then thawed, may no longer be labeled ``fresh.'' At the 
     last minute, though, a Senate subcommittee has come up with 
     appropriations language that would block the rule, leaving 
     frozen chickens and turkeys still eligible for the label of 
     freshness.
  My friend, that is what this is about. Some of us are trying to stop 
that attempt by the Appropriations Committee to block a rule that is 
over 2\1/2\ years in the making and, by the way, which started under 
George Bush. He tried to resolve this problem. We are talking about an 
8-year-old issue that has not been resolved. He goes into the rule, 
which I have explained already, that says that it can be labeled 
``fresh'' if it is down to 26 degrees, and ``hard chilled'' between 26 
and zero, and it must be labeled ``frozen'' if it is below zero. The 
person who wrote this article is critical. He says:

       Would a frozen chicken under the proposed rules now be 
     referred to as ``frozen''? Heaven forbid. ``Frozen'' chicken 
     and turkey--the kind chilled below zero--would continue to be 
     ``frozen.'' The stuff that had been frozen to between zero 
     and 26 degrees, previously called ``fresh,'' would be labeled 
     ``hard chilled.'' For now, though, barring a Senate 
     turnaround, the victory may remain with the broiler lobbyists 
     who complain that it's too arbitrary to draw an either-or 
     distinction between fresh and frozen at all. Seriously, you'd 
     think this one would be easy.

  Mr. President, I echo that. I thought this one would be easy. This 
one is not easy; it is difficult.
  Mr. PRYOR. I wonder if the Senator will yield for a question.
  Mrs. BOXER. I would be happy to.
  Mr. PRYOR. I wonder if the Senator from California would educate this 
Senator as to the California Legislature, I think in 1993, enacting the 
law only relating to poultry. Why is it that the State of California 
only objected to poultry labeling and not the labeling of beef, not the 
labeling of pork, and not the labeling of fish? Why is it that we are 
letting those groups off and concentrating only on poultry products?
  Mrs. BOXER. I say to my good friend, I do not serve in the California 
State Legislature, and I do not always agree with them on things. I 
cannot answer for why they did this. I assume that one of the reasons 
they did this is because, clearly, the issue was brought to their 
attention. I say right now to my friend that I am very much in favor of 
doing more. He asked before, why are we not doing fish? As far as we 
know, that is under the FDA authority. I am happy to team up with my 
friend to work for truth in labeling on every conceivable product. That 
is what it is about to me, making sure consumers know what they are 
buying and what they are getting.
  Again, I guess one of the problems I have is--and this Senator is 
certainly saying nothing ill about a frozen product. Some people prefer 
to buy a frozen product. All I am saying is that it ought to be labeled 
so we know what the truth is. In terms of the legislative agenda of the 
California State Assembly, remember, we have many thousands of issues 
that come before us. I would be happy to research the issue and come 
back with a specific answer. I can only speak for what I can do.
  In this bill, the Appropriations Committee is stopping a truth-in-
labeling bill that involves poultry. I would be happy to support my 
friend for truth in labeling in any and every product he would like to 
bring forward.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. COCHRAN. Mr. President, if the distinguished Senator has 
completed her statement at this moment, I will be happy to yield such 
time as he may consume to the distinguished Senator from Arkansas [Mr. 
Bumpers].
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. BUMPERS. Mr. President, how much time is remaining for the 
Senator from Mississippi?
  The PRESIDING OFFICER. The Senator from Mississippi has 24 minutes 
remaining.
  Mr. BUMPERS. Mr. President, this is another one of those issues 
which, on its face, would appear to give the California Senators the 
high ground. But it does not. It is the phoniest issue I think I have 
ever seen come before the Senate. The Senator from Arkansas, my 
colleague, Senator Pryor, has just asked a very relevant question. Red 
meat products are routinely shipped at below 26 degrees and sold as 
fresh. Listen to this. Whole hog sausage is packed warm into tubs, then 
exposed to glyco or brine to chill below 26 degrees.
  I can tell my colleagues that any time you buy sausage in the fancy 
meat section of the grocery store, the chances are about 90 percent of 
the time you are getting sausage that has been previously frozen. It is 
thawed for display purposes. Pork and beef loins and other products of 
beef and pork are routinely brought below 26 degrees. Why? So it is 
easier to slice. You get a better consistency in the slice if the 
temperature of the bacon is much lower than freezing. Trim products. 
When you trim steaks and roast, pork chucks and pork roasts, they take 
the trimmings and freeze them--not to 26 degrees, but to zero. And then 
they are later thawed and put with whole hog, and you buy whole hog 
sausage, some of which is fresh and some of which has been frozen.
  Frozen beef: Frozen beef is mixed with fresh beef. Do you know why? 
To give it a better consistency, because it forms a patty better if 
half of it has been frozen. When you buy beef patties and pork patties, 
you are getting formerly frozen product. Frozen lamb is routinely 
thawed at retail and sold fresh.
  Why are those things not included here? Because the California 
Poultry Federation does not care about lamb, they do not care anything 
about beef or pork, and they do not care anything about fish. What they 
care about is the fact that they only have 25 percent, or less, of the 
poultry business in California. California, right now, has the highest 
poultry prices in the United States. And if the Senators from 
California prevail, it will go a lot higher, under the name of 
consumerism.
  Do you know what this regulation of the Department of Agriculture 
says? It says exactly what the California Legislature said in 1993--
that the California Poultry Federation went to the California 
Legislature and said, ``Look, we cannot compete with the Southern and 
Southwestern States, so here is the way we have conjured up to deal 
with the issue.''
  So the California legislature says, ``Any poultry product coming into 
the State of California may not be below 26 degrees.'' What does this 
regulation say, after the court, incidentally, had ruled that one 
illegal? The very same thing. Dan Glickman did not think this up. The 
Department of Agriculture did not think this up. They never thought of 
it until the California Legislature told them to think of it. And when 
the Federal court declared that the Federal Government had preemption 
rights over the safety of food, they came to the California Senators.
  I am not complaining about the California Senators going to bat for 
their State, and I hope nobody will blame me or Senator Cochran for 
going to bat for our States. So here we are on the floor of the Senate 
protecting the California poultry industry. Unhappily, this rule 
applies to the entire Nation.
  Mr. President, I have watched this Congressman--I forget his name--
over in the House. He got a lot of publicity. You have to do crazy 
things to get on the evening news around here. So he takes a chicken, 
frozen at zero degrees, and uses it for a bowling ball. 

[[Page S13766]]


  The ordinary citizen looks at that and says, ``You mean I have been 
buying chicken like that?'' The Senator from California came in here 
with a frozen chicken this morning. You can use that for a bowling 
ball, too.
  That is not what the debate is about. You take a chicken frozen to 26 
or 27 degrees and use it for a bowling ball, and you will get 
splattered. This chicken, when it leaves the plant to go to California 
or any other State, is usually at 27 or 28 degrees. When it arrives at 
its destination, there is a distinct possibility that over the course 
of that 2-day trip, that some chickens--they are in boxes; they are in 
what they call a ``chill pack''; they are in a tray and the trays are 
in boxes--some of the boxes in the middle of the load may conceivably 
be below 26 degrees, maybe 25 degrees when it gets there.
  Now, how are you going to handle that, Mr. President? Are you going 
to make them unload the whole load and relabel every chicken? 
Obviously, that is not doable. Economically, that is not doable.
  So, what do you do? Nobody can tell you what the Department of 
Agriculture Inspection Service is going to ask for. I can tell you one 
thing: The $25 million that we put in for the Food Safety Inspection 
Service in the bill before the House is not going to be nearly enough 
to hire all the inspectors to check every temperature.
  Is this just me? Listen to this. The Agriculture Research Service, 
which does all of the research on these things in their laboratories--
in the laboratories--the Agriculture Research Service allows a plus or 
minus 3 degrees because that is the best they can do.
  Yet, the California Senators say it has to be 26 degrees, not 1 
degree below. As high above as you want to go, but if you go 1 degree 
below 26 degrees, no plus or minus allowances. Even the Agriculture 
Marketing Service has a minus or plus 2 degrees. No mistakes for 
mechanical failures, no allowance for anything.
  Mr. President, while, as I say, this looks good on its face, I want 
to remind my friends from the red beef and the pork States and the fish 
States, you are next. Whoever you may be competing with, you can depend 
on them going to their legislature, the Department of Agriculture, and 
saying, ``We want the same treatment.''
  The poultry industry has been attacked as long as I have been in this 
Senate. It is, as Gilda Radner said, it is always something, is it not, 
Senator? It was always inspection. Now the poultry industry has agreed 
to what we hope will be the best and final inspection of a product in 
the history of man: a macro-organism inspection system that will pick 
up anything on the carcass of a chicken.
  Do you know who is squawking now even though it will cost a lot of 
money to put it in place? The labor unions, because ultimately it will 
be labor saving. As I say, it is always something.
  Who do you think, Mr. President, finally, has the most to lose by 
shipping a bad product? It is the industry, is it not? If they send a 
bad product, if somebody gets sick, they are the ones would pay the 
price.
  Listen to this. Billions and billions and billions of chickens have 
been shipped to the State of California and all over this country, that 
left the packing plants at 27 or 26 degrees and when it gets there, 
maybe some of the chicken was at 25 degrees, some of it was at 26 and 
some of it was at 27.
  Do you know something else? Not one complaint out of billions shipped 
all over the United States, not one single complaint from anybody but 
the California Poultry Federation. Does that tell you what this 
amendment is about?
  I yield the floor.
  Mrs. BOXER. Mr. President, my friend from Arkansas is a great 
debater. He says this is the phoniest issue he has ever seen come 
before the Senate. Let me tell you what is phony. What is phony is 
marking a frozen product fresh. That is phony. What this regulation is 
going to do is cure that problem.
  To make this a California issue is misleading. Alaska: ``It is 
unlawful to sell previously frozen as fresh.'' Why not attack Alaska, I 
say to my friend? Arizona: ``Prohibits misbranding.'' Attack Arizona, I 
say to my friend. Delaware: There is a prohibition; you cannot misbrand 
a food. Illinois: If a meat or poultry product has been frozen, it 
cannot say fresh. It has to say ``previously frozen.'' Why not attack 
Illinois?
  New York: There is a frozen labeling requirement. Oregon prohibits 
the use of a label that says ``are fresh, if at any time after 
slaughter, they have been frozen.'' Washington State: Poultry that has 
been frozen at any time must bear a label ``clearly discernible to 
customer that such product has been frozen and whether or not it has 
been thawed.'' We know that California has a law, as was mentioned here 
several times.
  So, put to rest the claim that this is only about one State. This is 
across the country, and I think that we in the U.S. Senate should 
respect those States that have gotten out in front of a consumer issue.
  Now, I tell you something, I know these consumer groups and they do 
not get behind a phony issue. I do not know if you have ever dealt with 
them before, but I do not see Citizen Action standing up here on behalf 
of one industry. I do not see consumer unions standing up behind one 
industry. I do not see National Consumer League standing up behind an 
industry. I do not see Public Voice doing that, and I do not see the 
American Veterinary Medical Association doing that.
  Clearly, this is not a phony issue. But if we do not defeat the 
committee amendment, a phony situation will continue.
  By the way, do not be misled. They say the committee will put a rule 
into effect, but when we pass it, when we decide it. It has been 8 
years since we have been trying to solve this consumer problem and it 
will be another 8, 10, and God knows how long, the consumers will not 
have their right to know. So I think the issue is drawn.
  My friend says the price will go up. How does the price go up? It is 
the opposite. The price is artificially up now because a product that 
says fresh gets a higher price. And that is why the people in your 
State do not want to put an accurate label on there. They fetch a 
premium price for a frozen product. Therefore, they want to keep 
calling it fresh.
  On the contrary, when this goes through--and I hope it will, and I do 
not know how we will come out on it--prices will go down and consumers 
who want to get a good price can buy a frozen product.
  By the way, there is nothing wrong with that. Some prefer it. All we 
are asking for is truth.
  Then my friend says the California Senator said ``26 degrees.'' We 
never said any such thing. The way the rule came about was because this 
Senate asked the Department of Agriculture to go hold public hearings, 
hear the experts, and they found out that the temperature in which it 
is frozen is 26 degrees. If they picked 24 degrees or 22 degrees, I 
could not challenge that, I say to my friend. It is a scientific 
determination. If it is rock solid it is rock solid at 25 degrees.

  And he is right. He said a Congressman bowled a chicken down an alley 
to bring attention to this issue. He is right. It got the Congressman 
on the news. And sometimes people do that because they are so desperate 
that things like this will be legislated in the dead of night, in a 
committee, stuck into an appropriations bill, that they have to shine 
the light of day on this.
  I hope every single consumer in America is watching this vote today. 
Because you will hear a lot of talk about pork, beef, fish--let us talk 
about that another time. I am with you. Let us have honesty in the way 
we sell products in this country. That is the way we are moving. We let 
consumers know a range of things about the products that they buy.
  So, I am going to move, at the proper time, to table the committee 
amendment. As I understand the rules, and I ask the President if this 
is correct, the appropriate time would be just before the vote rather 
than at this time? Is that correct?
  The PRESIDING OFFICER (Mr. Ashcroft). The Senator is correct.
  Mrs. BOXER. Then I will at that time reserve my right to move to 
table the committee amendment. At this time I reserve the remainder of 
my time.
  Mr. HELMS. Mr. President, on April 4, 1995, 19 Senators sent a letter 
to the U.S. Department of Agriculture in which we expressed our concern 
about 

[[Page S13767]]
proposed changes in poultry labeling standards. The USDA has ignored 
our concerns and is preparing to impose unfair and subjective rules 
which will adversely and unnecessarily affect the poultry industry in 
North Carolina, indeed across this country.
  At issue is the process by which the poultry industry labels its 
products--either ``fresh'' or ``frozen''--and whether the USDA will 
change the rules, unnecessarily and unfairly, on America's food 
producers. The losers, if the USDA prevails, will not be confined to 
America's chicken and turkey producers and processors, but also the 
consumers who are certain to be confused and misled by this USDA 
bureaucratic meddling.
  Senators should be aware of some important facts when considering 
whether the Senate should allow the USDA to proceed with such 
unnecessary requirements.
  First, the proposed rule change unfairly singles out the poultry 
industry. Currently, meat, fish, and poultry products are allowed by 
USDA to be preserved at temperatures below 26 degrees and be labeled as 
``fresh.'' If the USDA has its way, the poultry industry alone must 
label its products as ``previously frozen'' when poultry products are 
stored at temperatures below 26 degrees.
  Second, the proposed rule changes will hinder the growth of America's 
chicken and turkey industry. The USDA bureaucracy proposes to make 
permanent standards that the poultry industry already has had 
difficulty in meeting. Keep in mind, under the USDA's proposal, poultry 
companies will be required to process, store, and transport their 
products at specific temperatures beyond their control--and this 
bureaucratic meddling will automatically reduce the quality of food. 
This disservice to the consumer will also harm the poultry industry.
  Mr. President, America's poultry industry is the envy of the world. 
Its further growth, and the confidence of the consumer, are at stake in 
this debate. The Senate should support Senators Cochran and Bumpers in 
their efforts to prohibit funding for this unwise USDA rule change that 
will serve nobody's best interests--except, perhaps, the ego of the 
bureaucrats who came up with an idea whose time should never come.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. Who yields time? The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I am happy to yield time to my 
distinguished friend and colleague from Alabama [Mr. Heflin]. How much 
time would the Senator request, 5 minutes? Ten minutes?
  Mr. HEFLIN. Mr. President, 5, 6, 7, 8, somewhere in that 
neighborhood.
  Mr. COCHRAN. I am happy to yield the distinguished Senator 8 minutes, 
Mr. President.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. HEFLIN. Mr. President, I appreciate that. I rise in opposition. 
But first let me say that no opponent is more formidable than the 
little package of dynamite from California. Senator Boxer is a 
tremendous opponent. They say dynamite comes in little packages. And 
she certainly works on every issue that she takes a stand on. Most of 
the time she is right. But every now and then she gets misled and this 
is one of those instances.
  My colleague asked me how much time I wanted, 5 minutes, maybe? I 
said 6, 7, 8, somewhere around that so I got 8--but, you know, as I 
think about that, why did I not say a specific time? Well, it is 
because there may be some variances of thoughts that I had, and 
variances are very important.
  What is lacking from this, in regards to fresh, is variance. 
Thermometers differ. I have been in a hospital a good deal, and they 
take my temperature one way and it is one figure and they take it 
another way and it is a different figure. Then they, all of a sudden, 
will get thermometers that they take it in the ear for a minute, and in 
the old days you take the thermometer and you kept it for 3 minutes in 
your mouth, and you are supposed to put it in a certain spot and 
everything else relative to that.
  The point I am making is you have a hard and fast rule and you are 
crossing the desert in a truck, you set it at 26 degrees, but by the 
time it gets through west Texas, where you are going through some area 
where the temperature is about 105, and 106, and it varies. Then I 
think what this also is, it is that we are going to see the inspectors 
are going to be the thermometer brigade. The thermometer brigade will 
be coming around, checking.
  What we need here is some flexibility, some variance, that will 
allow--if you have something at 26 degrees, why not have it, say, a 4-
degree variance because of weather or whatever else, relative to this? 
Trucks will have to stop and check the temperature about every 5 or 6 
minutes to see that it gets to be 26 degrees.
  As you travel across the desert and everything else they will stop. 
Sometimes, when these truckdrivers stop, they might also have something 
else to quench the heat. So I do not know what might be occurring 
relative to this. But, I think there is certainly a need for variance.
  I have the front page and the introduction of the California Poultry 
Workgroup, University of California, Cooperative Extension, called 
``Turkey Care Practices.'' In the introduction it has this:

       The number of turkeys produced in California peaked at 32 
     million in 1990 and dropped to an estimated 24.5 million by 
     1993. The major causes for this reduction was the necessity 
     to import feed grain and the unfavorable business climate in 
     California. Production costs in California are higher than in 
     other areas making it difficult for the California industry 
     to competitively produce turkey meat products for the 
     consumer.

  That is said there. I assume feed is the same for chickens. The same 
climate is there for chickens as it is for turkeys.
  When you get out there, this is a cost issue. It is basically a 
protectionist issue. It seems to me we are missing the point on all of 
this. The way I heard Senator Bumpers talking about freezing various 
meats, and you freeze bacon to slice it and you freeze beef to do 
various and sundry things, but turkeys--I know very few people who, on 
Thanksgiving, do not have frozen turkeys. Most of the turkeys that you 
buy in the market are frozen. That is one of the delicacies of the 
American cuisine, is turkey on Thanksgiving. But how many live turkeys 
do you see? There is nothing wrong with frozen food. Frozen food has a 
lot of things.
  We talk about diseases. It kills a lot of germs in a lot of things 
that might be flying around and get on to the meats. So this is a 
safety protection, a food safety provision that Senator Cochran has 
come up with as well, in regards to this.
  So, there are a lot of things we feel that people are not reviewing, 
they are not thinking about in all of these. This 26 degrees that has 
been said is not any scientific number. A lot of the companies put it 
on the market at 26 degrees. It is pliable, it is soft, it is 
certainly, with the ideas we have on poultry and other things, this 
concept of fresh--if it is 25 degrees it is no longer fresh.
  When you cannot tell the difference in the feel, you cannot tell the 
difference in anything else, even if it is 24 degrees instead of 26 
degrees. The point I am making here is the Department of Agriculture 
has some 26,000 comments and 23,000 of them, as I recall, were against 
this proposal. But they have some zealots over there in the Department 
of Agriculture on certain issues who throw to the winds reason, who 
throw to the winds the logic that is necessary and the real facts that 
underlie all of this.
  So I think this is a mistake on what the Department has done. We 
ought to adopt the Cochran amendment that is in the bill, send it back 
to them, and tell them, ``All right. Let us take another look at it.'' 
At that time, Senator Boxer, with her dynamite approach toward her 
issues, can argue with the Department of Agriculture, and the 
California turkey group that I quoted from here can make their 
arguments. I just think that we are reaching out and making a very 
unrealistic approach toward an issue that is not the problem that it is 
being made here today.
  Mr. President, I oppose the motion to strike the provision in this 
appropriations bill. The purpose of the language is to ensure that new 
poultry labeling rules are meaningful to all consumers.
  The rule promulgated by the Food Safety and Inspection Service on 
August 25, 1995, prohibits poultry products 

[[Page S13768]]
that have ever been chilled below 26 degrees from being labeled 
``fresh,'' products chilled above 0 degrees but below 26 degrees would 
have to be labeled as ``hard chilled'' or ``previously hard chilled.''
  There is nothing special or scientific about the 26-degree threshold 
temperature selected for determining freshness other than the fact that 
it is low enough to permit certain regional poultry companies to 
process their products in accordance with accepted industry practices. 
At the same time, the temperature suggested by those who have benefited 
by this regulation is just high enough to interfere with competing 
poultry products transported from other States from reaching these 
regional markets without jeopardizing product quality. This is 
especially true since USDA did not provide any temperature tolerance in 
the final rule.
  You will not find anyone who can tell you with a straight face that 
poultry products at 26 degrees are fresh while those chilled to 25 
degrees are no longer fresh. There is absolutely no scientific evidence 
that poultry freezes at those temperatures. That is something that came 
from a Hollywood script and a bureaucrat's desire to develop a punitive 
and unreasonable regulation. This kind of irresponsible regulation 
cannot be tolerated.
  USDA has succeeded in developing a labeling system that designates 
high-quality poultry products and will confuse consumers. Poultry 
consumers will be misled by a labeling requirement that a product is 
hard chilled when it is, in fact, soft and pliable to the touch at the 
retail counter. Many consumers may be led to believe that such product 
is of lesser quality, when, in fact, it is the same high-quality 
product they have been buying for years.
  Not only will consumers be misled by this designated labeling, but 
the threat of such labeling may force companies to ship poultry 
products at higher temperatures to avoid being required to use the 
labeling USDA has mandated, even in the absence of any affirmative 
quality claim. Basic science provides that cooler temperatures enhance 
the quality of food products. Poultry, as well as beef, pork, or lamb 
products, shipped at 24 or 25 degrees will have a longer shelf life and 
maintain their quality longer than products shipped at higher 
temperatures--to the benefit of consumers. Because of USDA's 
denigrating labeling requirement, however, poultry companies will be 
forced to ship products at higher temperatures, to the detriment of 
product quality and consumers.
  The fresh poultry regulation was designed by the California poultry 
industry to make it difficult for competing poultry products from other 
sections of the country to be marketed in California without 
jeopardizing product quality. When consumers in California have fewer 
choices in the marketplace, they will pay higher prices for poultry. 
That is the hidden agenda of the California Poultry Industry 
Federation. It's simple economics--less competition, fewer choices, and 
higher prices. The consumer pays and the California poultry products 
take it to the bank.
  We should reject USDA's misguided and ill-conceived regulation and 
instead require the agency, as we have been forced to do before, to 
develop a rule that will not result in consumers paying more for the 
high-quality poultry products they buy today.
  The PRESIDING OFFICER. Who yields time?
  Mrs. BOXER. Mr. President, might I ask how much time I have left in 
this great chicken debate?
  The PRESIDING OFFICER. The Senator from California has 15 minutes and 
53 seconds.
  Mrs. BOXER. Let me say, Mr. President, to my friend, Judge Heflin, 
that he gave me a wonderful compliment. I really mean it. I want to 
give him one back. He is a powerhouse lawyer, judge, and Senator. He is 
very convincing. But on this one, I really believe fresh is fresh and 
frozen is frozen. You can talk about how to take the temperature.
  By the way, while the Senator was speaking, I looked at who actually 
worked on this rule. Believe it or not--this is really interesting--
this is an American Society of Heating, Refrigerating, and Air 
Conditioning Engineers. They actually made a decision that 27 degrees 
should have been the proper degree. But the Department of Agriculture 
gave the flexibility of a degree.
  So there are scientists who worked on this. It had nothing to do with 
zealots. The National Institute of Standards and Technology came out 
with 26 degrees. So there was a disagreement. One said it is frozen at 
27, and one said at 26 it is pretty frozen. But this is not about 
zealots. This is about common sense. The fact of the matter is we want 
to make sure our consumers know what they are getting.
  I agree with my friend. There is nothing wrong with frozen turkeys, 
chicken parts, or anything. As I said, the Senator is right to say some 
people actually prefer to buy the frozen product.
  All this rule says is you must clearly mark it as frozen if it is 
zero degrees or below, and you get to market hard chill if it is from 
zero to 26, which I think shows a great deal of flexibility.
  On the inspection point, all the details will be worked out as they 
go into this rule with the industry. A lot of it is going to be self-
enforcement, I might say to my friend. They are very aware, if there is 
a very large shipment, if one part of the shipment may have fallen 
below; it does not mean the entire shipment cannot be marked fresh.
  So I think rather than saying that they are zealots over there, I 
think they have bent over backwards to be fair. They even have gotten 
criticized by some consumers for giving the folks a chance to have 
their product at 10 degrees marked ``hard chill.''
  So my friend is a powerhouse. I have to say that respectfully I 
disagree with his conclusion on this one. I hope the Senate will 
support commonsense reform in this area. Again, the country is moving 
in that way. If people can know how much fat is in a product, how many 
vitamins are in a product, how many calories are in a product, how much 
calcium is in a product, and on and on, we have decided it is important 
for consumers to know this. They ought to know if a product is frozen 
or has been previously frozen. Eighty-six percent of the folks agree 
with that premise. We have a chance to stand with 86 percent of the 
folks.
  I hope we will do that in defeating this particular committee 
amendment.
  I reserve the remainder of my time.
  Mr. COCHRAN. Mr. President, I yield 4 minutes to the distinguished 
Senator from Delaware [Mr. Biden].
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Mr. President, I thank my colleague, the distinguished 
chairman of the committee.
  Mr. President, while we are exchanging compliments, I think this 
amendment is about the efficacy in the way in which the distinguished 
Senator from California protects her State. She does an incredible job. 
I do not know anybody since I have served here who looks out for 
California's interests better than she does. I think that is what this 
is all about.
  We are very close friends, the Senator from California and I. I do 
not doubt for a single moment what she says about her concern about 
consumer interests. But I might say, if she prevails, California wins 
big in the marketplace. I am sure it is purely coincidental. But again, 
she is tenacious when it comes to California. She is too effective, as 
far as I am concerned, when it comes to California interests versus the 
interests of other parts of the country. I think that is what this is a 
little bit to do with.
  She is also trying to influence my mind here by sliding something in 
front of me that has to do probably with something that says my 
position does not make any difference; I am not crazy about him anyway.
  So, Mr. President, she will go to any lengths within the legitimate 
confines of the rules of the Senate to win, like just handing me that 
note.
  This debate is not about health and safety. It is not about saving 
the taxpayers money. Let me state up front this amendment has 
absolutely no impact on Federal spending. Ensuring compliance will be 
essentially impossible. Literally one degree of variance would 
technically require a different label. A package placed, for example, 
near a refrigeration unit which cools to a temperature of less than 26 
degrees would not be considered on par with poultry 10 or 15 feet away 
from that unit. That is hardly an efficient standard to impose on 
business. More importantly, the rule ignores the Agricultural Research 
Service study which 

[[Page S13769]]
demonstrates that consumers cannot detect any quality difference 
between poultry chilled to 26 degrees and poultry at 2 or 3 degrees 
lower. Again, there is no difference between these two types of 
poultry.
  It is not surprising to me, Mr. President, that virtually all 
consumers place poultry in the freezer for later use. I know that the 
sponsor of that amendment is not suggesting that the tens of millions 
of items that consumers take home and put in freezers all of a sudden 
make that chicken somehow, that poultry somehow, less palatable than if 
they did not take it from the grocery store to their homes. 
Interestingly, the Agricultural Research Service study concluded that 
under ideal laboratory conditions, poultry temperatures can only be 
controlled to plus or minus 2 degrees. Let me repeat that: Under ideal 
conditions, literally perfect conditions, we can only control it within 
2 degrees.
  What the distinguished chairman of the committee has done, he has not 
said we are not going to have a ruling. He has said look, let us go 
back and look at this. In fact, I respectfully suggest that many of the 
advocates of this amendment are more concerned about freezing the 
delivery of out-of-State poultry, and not actually freezing the product 
that is being allegedly frozen. This is about freezing out.
  We sell a lot of chickens in California. I expect that California 
poultry producers do not like that. We have not figured how to make 
those birds fly from the Delmarva Peninsula to California, and then 
jump into a processing plant. We have not figured out how to do that. 
We have to put them in trucks. We try to do it at 26 degrees.
  We do not want to be put in the position where my distinguished 
friend implies that the chickens we are sending, which are not below 
zero degrees, by the way, which is now frozen, is somehow less 
palatable.
  I imagine my time is running out. I apologize for being so 
disconnected here. But how much time do I have left?
  The PRESIDING OFFICER. Your time has just expired.
  Mr. BIDEN. I ask for 5 additional seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. This is not about E-coli bacteria or cryptosporidium. The 
committee language is about simple fairness. It is about fostering 
competition and about improving the information available to consumers.
  I hope we reject the amendment of my distinguished friend from 
California.
  I yield the floor.
  Mrs. BOXER. Mr. President, I want to say to my friend that he may be 
right that there is no difference to consumers. But 86 percent of the 
consumers think they ought to know what they are getting, No. 1. No. 2, 
the Department of Agriculture said they will be flexible in their 
enforcement. They have recognized the problem that my friend put out on 
the table, and I commend him for that. No. 3, back in October 1994, the 
Senate passed a unanimous vote, a sense of the Congress, that the 
Department of Agriculture should issue this rule.
  We gave them guidance. We told them to hold public hearings all over 
the country. They did. We told them to publish a decision on the issue 
as expeditiously as possible. They did that. I thought they were a 
little slow, taking 2 years, but they finally did that. And we said 
that no person on the expert advisory committee could have a conflict 
of interest in the outcome.
  Mr. BIDEN. Will the Senator yield for 1 second?
  Mrs. BOXER. Mr. President, how much time do I have left?
  The PRESIDING OFFICER. The Senator has 11 minutes.
  Mrs. BOXER. Yes, I will be happy to yield.
  Mr. BIDEN. Will the Senator tell me whether she thinks consumers know 
what ``hard chilled'' means?
  Mrs. BOXER. I say to my friend they are going to know because of all 
the publicity we are giving it. I would prefer that we were just saying 
``frozen fresh,'' ``previously frozen,'' ``thawed.'' But what they 
tried to do in this rule, I say to my friend, is accommodate some of 
the producers in the Eastern States who did not want the word 
``frozen'' placed on it, and so they said, OK, if it is between 26 
degrees and zero degrees it is hard chilled, and if is zero degrees or 
colder it is frozen.
  I think both of my friends who have spoken in opposition this morning 
said it is an arbitrary thing. The fact is right now the rules say if 
you are freezing below zero, you have to say frozen. No one has ever 
complained about that. Nobody ever said if it is minus 2 degrees, we 
should say fresh. So there has to be some cutoff point. And the science 
says it is 26 or 27 degrees and the rule came down at 26.
  I would also say to my friend that Delaware has a law on the books 
that is called ``Misbranding of food: For the purpose of this chapter, 
food is deemed to be misbranded if is obtained by the dealer in frozen 
bulk form and is subsequently thawed and offered for sale in a package 
bearing a label `fresh.'''
  So I think that the Senator's State, in looking at the overall issue, 
not necessarily poultry but the overall issue of fresh versus frozen, 
is one of the leading States here because there is only about 10 that 
have come forward with these kinds of laws.
  Finally, I say to my friend--and we are in a mutual admiration 
society and I will not go into that--I do find myself fighting for my 
State, for the consumers of my State. The poultry industry in my State 
is split. The chicken people like the agriculture rule and the turkey 
people oppose it. So I have come down on the side of the consumers, 
which I believe is what we should really do.
  I say to my friend, Citizen Action, Consumer Union, National 
Consumers League, the Public Voice, and many others believe that fresh 
is fresh and frozen is frozen, and that is why I feel very strongly we 
should strike the committee amendment.
  The administration thinks it is wrong to derail this rule. Eight 
years ago we tried to resolve this issue. It has been hanging around 
for 8 years. We finally had it solved. I am really kind of sad that we 
might derail it because no matter what my dear friend says to me--and 
he has been around here a lot longer--I do not believe the committee is 
going to rush to get a new rule in place. I am putting it in the best 
terms. I think this is a way to put this rule into deep freeze for a 
long time, never to see the light of day. That is my own view.
  Mr. BIDEN. Will the Senator yield?
  Mrs. BOXER. I will be happy to yield.
  Mr. BIDEN. Just for 10 seconds.
  Mrs. BOXER. I will yield as long as my friend wants.
  Mr. BIDEN. I say to my friend, the poultry industry in my State, 
which is divided, by the way--some of the poultry people who are in my 
State share the Senator's view--is not looking for there to be no rule. 
They are looking for some flexibility in the 26 degree mark--2 or 3 
degrees either way. They are not asking there not be a demarcation. 
They are not saying that the rule should say zero and below is frozen, 
above that is fresh. They are not asking for that.
  So I am not standing here making the argument that there is no 
rationale related to having a third category here. I am suggesting that 
it is not workable as the standard proposed by the Department now 
which, to use the term freeze, is being frozen by the committee until 
there can be some more rational way to look at this.
  So I wish to make it clear, we are not asking and I am not of the 
view that there not be a distinction made among the categories of how a 
chicken or a piece of poultry is packaged and sold.
  Mrs. BOXER. I might say to my friend, I am glad to hear that, but 
from the bottom of my heart, if this is killed, we are not going to see 
that happen.
  Let me say this. This is a very difficult issue because there are 
special interests on all sides of it, as my friend knows. What my 
friend is trying to do, he has a situation in his State where some of 
the businesses are for it, some are against. He took a position he 
feels is correct. I took a position I feel is correct.
  The Agriculture Department in writing this rule really went to the 
scientists to set the standard. They did not ask just the industry 
because each industry has a special interest. So they asked the 
American Society of Heating, Refrigerating and Air Conditioning 
Engineers. Clearly, this is a group that is not a household name, and 
they do not have a particular interest. They examined the problem, and 
they came 

[[Page S13770]]
out and said at 27 degrees ice crystals begin to form on the poultry 
flesh. They believed that 27 degrees was appropriate. Another group 
said it is 26 degrees. That group that said 26 degrees is--let me find 
it. I had it in the Record before. It is a technology group that said 
it is 26 degrees. So they went with the more, if you will, liberal 
number of 26 degrees.
  Mr. BIDEN. Will the Senator yield for a brief comment?
  Mrs. BOXER. I believe, if you leave it up to the businesses to come 
up with what they think is right, we are not going to have a fair rule. 
With all due respect to my friend, if we kill this today, I believe we 
are killing this for a very long time.
  Mr. BIDEN. Will the Senator yield for another brief question?
  Mrs. BOXER. Yes.
  Mr. BIDEN. The experts in the refrigeration industry also point out 
that there is no way you can get that ideal number within less than 2 
degrees. The science of refrigeration is not precise enough that you 
can get it within 2 degrees. So although they give you an ideal number 
of 26, they say that is when crystal began to form, they also say, if I 
am not mistaken, there are not refrigeration units made that can 
guarantee you can keep it at exactly 27 as opposed to 26 or 25 or 25 as 
opposed to 23.
  So I would ask my friend the following question. Assume the issue 
here were to say 26 degrees plus or minus 3 degrees. Would she be 
willing to go along with that? Or is she stuck on precisely 27 degrees? 
Because the Senator from Delaware would be willing to go along with 26 
degrees plus or minus 3 degrees, mainly because there is not the 
science in refrigeration that you can put a product in the back of a 
truck, send it off to be sold in California or anywhere else and be 
assured that for the duration of that trip it will not fluctuate 
several degrees above or below.
  I might add, the reason why the producers are split in my State, the 
producers who sell only on the east coast think this is a good idea. 
The producers that sell in California say: I cannot get my product 
across guaranteeing it is exactly a certain temperature--I cannot 
assert, and the technology cannot guarantee me when I put it in the 
truck, that I can keep it within the rule no matter what I tell you.
  Mrs. BOXER. May I say to the Senator I am down to 3 minutes.
  Mr. BIDEN. I am sorry.
  Mrs. BOXER. I have to say to my friend, this is exactly what I do not 
think we should get into: Will the Senator agree to 27 minus-plus. I 
believe if we start getting into that on the Senate floor, we are 
getting into minutia.
  There is a science. Now, my friend may not believe it is accurate, 
but the other group that said it is 26 is the National Institute of 
Standards and Technology. The Agriculture Department said that flexible 
enforcement will be absolutely a defining goal. And today we enforce 
the law when it gets down to zero degrees. So at some point you have to 
have a cutoff with flexible enforcement, because clearly my friend 
makes a good point. But I never supported 26 degrees or 25 or 27. What 
I supported was science dictating when a product ought to be marked 
``frozen.''
  I think if we do not act today, I say to my friend--and I think he 
means it that he wants to work on something--it will be a long, cold 
month, 2 months and years before we get back to this issue.
  I retain the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. COCHRAN. Mr. President, how much time remains on each side?
  The PRESIDING OFFICER. The Senator from Mississippi has 10 seconds, 
the Senator from California has 113 seconds. Who yields time?

  Mr. BUMPERS. Mr. President, the Senator from California has 
generously yielded me 30 seconds, which may be kinder than I would be 
to her under the circumstances.
  Mrs. BOXER. Thanks.
  Mr. BUMPERS. I thank her very much. Mr. President, I want to make the 
point the Senator from Delaware was making. If the Agriculture Research 
Service has to have a plus or minus 3 degrees in highly controlled labs 
and highly controlled labs have to have a plus or minus 2 degrees, to 
ask for a plus or minus 3 degrees in this situation without devastating 
an industry seems to make eminent good sense. It seems to me if we can 
transport chickens 2,000 miles and still beat the California Poultry 
Federation's price, there may be something wrong with the California 
Poultry Federation.
  I thank the Senator for yielding.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, let me say to my friends, it is hard to 
know what to say to my friends at this point, because when we started 
this debate, we wondered if we could keep it together through the 
entire debate. I compliment all of us; we have kept it together.
  Again, I am going to finish off where I started, and then you are 
going to have to hear it again for 2 more minutes before the vote.
  If I told you that this desk is a chair, you would think I was 
kidding. And if I told you that winter was summer and summer was 
winter, and ice was hot and warm was cold, and freezers were toasters, 
you would send me to the nearest psychiatrist.
  I have to say, everything stripped aside, because there is money in 
industry on one side and money in industry on the other side and we 
know that, the bottom line is what is fair and what is right and what 
is common sense and what is reality.
  We can decide we are the scientists here, and we can decide at what 
degree it is frozen and what degree it is fresh. I do not think that is 
our job. We have a fine, I believe, Department of Agriculture headed by 
a very fine man from Kansas who knows agriculture. He stepped in and 
oversaw this rule. We have a good rule. I hope we support it and defeat 
the committee amendment.
  I yield the floor and thank my friends.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. COCHRAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, USDA's own study, conducted by the 
Agricultural Research Service, demonstrated that consumers cannot 
detect any quality differences between poultry chilled to 26 degrees 
and poultry chilled to lower temperatures.
  The Food Safety and Inspection Service based its rule on assertions 
generated through a well orchestrated public relations campaign by 
those who would benefit from this new rule.
  In effect, the agency is saying that although it cannot control 
temperatures under ideal conditions in a laboratory, the poultry 
industry must not let their products reach a temperature just 1 degree 
under 26 or the products will be declared out of compliance and 
mislabeled.
  I urge Senators to vote against the California Senators' motion to 
table.

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