[Congressional Record Volume 146, Number 80 (Thursday, June 22, 2000)]
[Senate]
[Pages S5629-S5648]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Amendment No. 3594, As Modified
Mr. BOND. Mr. President, I rise today to support in the strongest
possible way the Enzi-Bond amendment to the Labor-HHS appropriations
bill relating to ergonomics. This amendment will save businesses, small
businesses particularly, and other employers, and primarily their
employees, from the ravages of OSHA's regulatory impulses running
rampant.
As many in this body know, I have questioned OSHA's approach to
formulating an ergonomics regulation for several years. Last year, I
introduced a bill, which currently has 48 cosponsors, to force OSHA to
wait for the results of the study that we and the President--and the
President--directed the National Academy of Sciences to conduct on
whether there is sufficient scientific evidence to support this
regulation.
This measure is known as the Sensible Ergonomics Scientific Evidence
Act, or the SENSE Act. Sadly, this issue, as administered by OSHA, has
been lacking in common sense in the years that OSHA has been working on
it.
We were not able to move the SENSE Act last year, nor were we able to
convince OSHA they needed to put some common sense into their
regulatory process before going forward with the proposed rule. At this
time last year, we were fearful of what OSHA might come up with because
it did not look as if they were going about it in a reasonable,
responsible way. When the proposed rule was finally published in
November and we found out what they wanted to do, it was worse than we
could have imagined.
It is tragic that OSHA and this administration have all but
disregarded the protections for the rulemaking process that are needed
for sound regulations. They moved at an unprecedented pace, and it
looked as if they were trying to get this regulation finalized before
they even left office.
This is a classic example of ready, fire, aim. OSHA needs to be told
they have gone too far and they must suspend the regulation so that it
can be redrafted and put into some reasonable, workable approach.
The Enzi-Bond amendment to the Labor-HHS appropriations bill must be
adopted, and I urge my colleagues to strongly support it.
I have the honor of serving as chairman of the Small Business
Committee, and I have heard from literally thousands of small
businesses and their representatives about the utter terror they face
of having to comply with an impossible regulation that they cannot
figure out and they cannot implement.
Let me be clear, their fear is not that they will have to protect
their employees or even that they will have to spend some money to
achieve that goal--they are doing that already because they do not want
to see their employees have repetitive motion injuries or ergonomic
injuries. They want to do what is right for their employees. In many
cases, these employees in the smallest businesses are like family. They
treat them like family members because they work closely with them.
Instead, this fear, this terror is that they will be forced to figure
out what this regulation means, what is expected of them, whether they
can satisfy the requirements, whether they will get any results from
the huge costs of this regulation, and whether they can convince an
OSHA inspector they have satisfied a regulation which gives no clear
guidelines.
In some cases, the alternative to complying with the regulation may
be to close the company or to move it to another country where they do
not have such regulations, or, which is also extremely sad, they may be
required to get rid of employees and buy equipment and replace their
employees with equipment.
[[Page S5630]]
None of these regulatory efforts has to do with assuring protection
for employees from repetitive motion injuries. The simple truth is,
there is nothing the regulation says that will protect employees. It
does not do what OSHA would have us believe it does. It does not tell
employers how they can help their employees. On this basis alone, the
proposed regulation fails and must be withdrawn.
OSHA likes to say this regulation is flexible. So is a bullwhip. What
OSHA calls flexible is really a level of vagueness such that no
employer, no matter how well intentioned, would be able to tell what is
required of them or if they have done enough. Let me give a couple
examples to help illustrate the degree of vagueness that permeates this
proposal. These terms come directly from the language of the proposed
rule:
Throughout the standard, employers are directed to implement
provisions and establish program elements ``promptly.''
In analyzing a ``problem job,'' employers are instructed to look for
employees ``exerting considerable physical effort to complete a
motion,'' or employees ``doing the same motion over and over again.''
Engineering controls are to be used ``where feasible.'' When
implementing the ``incremental abatement'' provisions, employers are to
``implement controls that reduce MSD hazards to the extent feasible.''
For an employer to evaluate its ergonomics program, it is to
``evaluate the elements of [its] program to ensure they are functioning
properly; and evaluate the program to ensure it is eliminating or
materially reducing MSD hazards.''
Ergonomics risk factors are defined as: ``(i) force (i.e., forceful
exertions, including dynamic motions); (ii) repetition; (iii) awkward
postures; (iv) static postures; (v) contact stress; (vi) vibration; and
(vii) cold temperatures.''
Anytime one lifts a garbage can outside in the winter, one probably
goes through all those.
To be effective, however, this regulation must tell employers when
their employees will be injured, when an employee will have lifted too
much, when the employee will have done too many repetitions, what an
employer can do to prevent injuries or to help an employee recover from
an injury.
OSHA loves to say this proposal is supported by adequate science and
many studies. Unfortunately, none of these studies have answered these
critical questions, or at least OSHA has not bothered to include any of
that information in this proposed rule.
All other OSHA regulations provide a threshold of exposure to a risk
beyond which the employer must not let the employee be exposed without
protection or taking a corrective measure.
This proposal is unique in its complete absence of any thresholds. I
guess that is what they mean by ``flexible.'' That bullwhip they use
can come down at any time and give them the full benefits of
flexibility. There is not a single threshold.
OSHA is telling employers: We think you have a problem. We cannot
define it. We cannot tell you how to fix it. But you have to go fix it.
We will hold you accountable for how well you fix it, even though we
cannot tell you how to fix it.
This is absurd. It would be like driving down a highway where the
sign said, ``Don't drive too fast,'' but not specifying what the speed
limit is. You would never know if you had gone too fast until the
highway patrolman pulled you over and told you whether you had gone too
fast, according to that patrol person's view of what was ``too fast.''
This is no way to create an enforceable, workable, worker safety
regulation in a country that prides itself on being a country governed
by laws, not people.
This proposal is simply unenforceable as it is written. It amounts to
nothing more than a regulatory trap which will result in more
citations, more fines, more litigation, more legal fees, more
confusion, and more problems without protecting a single worker or
making a single workplace safer. It is a big bullwhip to threaten
employers without telling them how to avoid that which they seek to
prevent.
Whatever other problems this regulation may cause for large
employers, the problems will be catastrophic for many small businesses.
It is impossible to overstate the complications and the burden this
regulation could impose on small businesses. Small business owners
simply do not have the time, expertise, resources, staff, or
understanding of the issue to deal with this regulation while still
performing all the other roles that are demanded of them as
businesspeople as well as family members.
The same person who may handle sales, accounting, inventory, customer
relations, and environmental compliance may also be responsible for
safety compliance. With the vagueness of this proposal, the lack of a
scientific consensus on what causes these injuries, the lack of a
medical consensus on what is an effective remedy, and the naturally
complicated nature of this issue, the typical small business owners
will be so overwhelmed with this regulation, it will be a wonder if
they decide they can both comply with the regulation and stay in
business. Every hour they spend on this regulation--and despite OSHA's
claims, there will be many--is an hour they will not use to do
something that will further increase their business or create more
jobs. For small business owners, time really is money. And if they are
not dealing with all these roles in their business, they are probably
trying to set aside a few hours a day to spend with their children and
families.
The Small Business Administration did an analysis of this proposed
rule. One of the points they made is that small businesses are not just
large businesses with fewer employees, they function in an entirely
different way. In addition to their lack of resources and staff, they
may also have a different cash-flow structure, which means that the
financial burden of this regulation cannot be absorbed as easily.
In many small businesses, they are more dependent on financing for
their operating capital, so the cost of implementing this regulation
will require the company to take on more debt, thus eroding further its
opportunity to make a profit and grow and hire more employees.
Also, small businesses often exist as niche businesses to serve very
special needs. They may not be able to pass costs along to their
customer easily because the customer may be able to do without the
niche product or be able to find it cheaper or more easily from a
larger source.
Small businesses are the engine of this great economic expansion we
have been enjoying recently. They are the ones that are creating the
jobs. They are the ones that are creating the opportunity and creating
the wealth for many families around this country. This rule will be
sand that can cause this engine to seize up and stop dead in its
tracks.
The Small Business Administration's study on this proposal found that
OSHA underestimated the cost of this regulation by a factor of anywhere
between 2 and 15 times. OSHA simply has no idea how much this
regulation will cost businesses, and particularly small businesses. And
businesses have no idea what they will get for the money they will be
forced to spend.
Employers have no problem investing in safety to protect their
employees, but when you ask them to spend excessive amounts, with no
guarantee of what they will get in return, they are going to object,
and object strenuously.
This weekend, when I was in Missouri, I talked to small businesses,
small businesses that are very much concerned about this. Do you know
what they said to me? They said to me: Look, we don't want to see
repetitive motion injuries. We are very much concerned if one of our
employees comes up with carpal tunnel syndrome.
One small business owner said: I have hired two different safety
engineers to come in and work with the employees and me to find out
where there might be an injury, to help us develop ways of preventing
those injuries. We talk with and listen to our workers and say: What
are we doing? What can we do differently?
He also said: I have paid a lot of money trying to find an answer.
Wherever we can find an answer, we implement it, because it doesn't
make any sense for me to lose good workers or to have them suffer the
physical pain, which is great, or to have the loss of income which can
come from one of
[[Page S5631]]
these on-the-job injuries. And it certainly does my business no good to
be without a valued employee.
And he said: When we look at what OSHA is telling us, how come, if
they are so smart, they can't tell me what specific things I can do?
What are the standards? I paid these safety engineers to come in and
help me, and they have done everything they can. And OSHA doesn't even
come close. They are not even trying. They are just going to pull out
that big bullwhip and whack me across the back if there is something I
missed and something nobody understands can be done to prevent it.
Small businesses are such a vital part of the economy that, 5 years
ago this month, I introduced what we call the Red Tape Reduction Act,
but it is technically known as the Small Business Regulatory
Enforcement Fairness Act, or SBREFA. This act was passed by the Senate
without a dissenting vote and signed by the President in March of 1996.
Among other provisions, the Red Tape Reduction Act requires OSHA to
convene panels of small businesses to review regulations before they
are proposed, at the time when their input can have the most impact.
OSHA convened their SBREFA panel for the ergonomics regulation in
March 1999. It should be no surprise that the small businesses that
reviewed this regulation thought it would be a nightmare to comply
with. Even those businesses that were generally in favor of doing
something about an ergonomics regulation, because of the possible
ergonomics injuries and the pain they cause, believed that this
proposal was seriously flawed and totally inadequate. In every category
of question, the small businesses that reviewed this regulation found
serious problems. The report was issued, and it contained many
criticisms and complaints about the proposal. I will mention a few of
them:
Many [small businesses] felt that OSHA's preliminary cost
estimates had underestimated costs.
Some [small businesses] felt that there may be substantial
costs for firms to understand the rule and to determine
whether they are covered by the rule, even for firms not
required to have a basic program and who have not had an MSD.
Many [small businesses] expressed doubt over their
capability to make either the initial determination about
whether they need an ergonomics program or to implement an
ergonomics program itself. Many [small businesses] felt that
they would need the assistance of consultants to set up an
ergonomics program and to assist them in their hazard
identification and control activities.
Almost all of the [small businesses] stated that they would
not be able to pass on the costs of an ergonomics program to
their customers. The ability to pass through costs may be
dependent on the level of domestic and foreign competition.
Many [small businesses] questioned OSHA's estimate that
consultants would not be necessary for any element of the
program except in 10% of those cases involving job fixes.
Many [small businesses] had difficulty understanding OSHA's
criteria for determining the work-relatedness of MSDs. Many
[small businesses] interpreted OSHA's criteria for
determining the work-relatedness of MSDs in such a way that,
in practice, the two criteria in addition to a recordable MSD
would be unworkable or ignored.
Some [small businesses] expressed concerns about how
certain terms and provisions of the draft rule would be
interpreted and enforced by OSHA compliance personnel. Many
[small businesses] found it difficult to apply the concepts
of feasibility, similar jobs and manual handling, as these
are defined in the draft rule.
Many [small businesses] . . . were concerned about
perceived overlaps between State workers' compensation laws
and the draft standards' medical removal protection
requirements.
Some [small businesses] suggested that employers' increased
concern about MSDs could create additional incentives for
employers to discriminate against individuals who may be
members of protected classes of employees based on the
perceived likelihood that such workers would have more MSDs
than other workers.
Many [small businesses] suggested that non-regulatory
guidance would be preferable to a rule.
Some [small businesses] recommended that OSHA delay the
ergonomics rule until the completion of the National Academy
of Sciences study that is now underway.
Mr. President, those are some of the comments the small business
panels offered when they looked at this atrocity. You would think with
all these concerns and recommendations, OSHA would have made major
changes to the proposed rule to take into account, as they were
supposed to, the legitimate concerns of small business. Unfortunately,
that was not the case. The changes that were made were merely cosmetic,
not substantive, and did not address any of these issues raised by the
small businesses. In fact, OSHA made so few changes to the draft that
when thousands complained about the short comment period after it was
published in November, OSHA claimed the fact that it had been released
to the panel qualified as giving interested parties sufficient time to
help them develop their comments. OSHA ignored the concerns raised by
small businesses that gave up their time to participate in this process
in the hopes of helping OSHA fashion a reasonable and responsible,
better regulation.
They didn't want to know. They didn't pay attention. This is
precisely what the Red Tape Reduction Act was meant to stop, when a
Federal agency says: Ready, fire; we will worry about the aim later,
and they didn't care about what aim they took. They didn't care about
listening to the small businesses. This is a clear-cut example of abuse
of the law that is designed to protect small businesses from excessive
overreaching and inappropriate Federal regulation.
Unfortunately, this has been a consistent pattern of OSHA during the
development of this regulation. There have been numerous stakeholder
meetings and meetings with concerned businesses where OSHA received
valuable guidance and suggestions that would have led to a better
regulation. OSHA has not been willing to work with anyone from the
employer community who would have to deal with this regulatory
monstrosity. They have pursued their vision of this rule with a myopic
tunnel vision that has shut out any and all recommendations that could
make this regulation palatable and workable. The intransigence of OSHA
in this rulemaking has been positively staggering. Unfortunately, this
regulation threatens not only to stagger but to take the breath out of
small businesses in the United States.
OSHA would have us believe that they must move forward because of the
levels of musculoskeletal disorders occurring among employees. In fact,
as employers have focused on MSDs, the numbers have been steadily
declining, since 1994, by a total of 24 percent. These injuries now
make up only 4 percent of all workplace injuries and illnesses. This
progress has come about without an ergonomics regulation.
There is more that needs to be done, yes. We need to continue to work
to find ways to reduce these painful and harmful injuries that cost
time and pain to employees and deprive employers and small businesses
of their ability to turn out product or a service and make a profit.
Businesses are willing to consider what makes sense for their employees
when there is a solution available.
I told you the story of one small business owner with whom I talked
this week in Missouri. I have held conferences. At the National Women's
Small Business Conference I held in Kansas City, they talked about
problems facing women small business owners. They have problems with
procurement. They have problems with access to capital. They are scared
to death of what can happen to their businesses because they don't want
to see their employees have MSDs or musculoskeletal disorders, injuries
from repetitive motions.
They told me they are working on ways to minimize them and eliminate
them, but this regulation gives them no help in moving forward in their
efforts, which they intend to continue, which are voluntary, which are
effective, unlike this rule. There is no help for them in this
regulation, just a bull whip, if something goes wrong.
This regulation does not provide a solution or any guidance that
would be helpful to employers. If OSHA were smart, they would take a
look at what is happening and get out of the way, or offer constructive
assistance, help figure out ways to prevent these injuries. OSHA is
trying not to reinvent the wheel but telling the wheel which way to go
without giving it any guidance.
OSHA will claim they have made changes in response to the concerns of
the businesses. They will point to the grandfather clause they
included. That is truly a laugh. The only problem is the grandfather
clause is worthless.
[[Page S5632]]
Not a single company in the country which currently has an ergonomics
program could qualify for it. OSHA's grandfather clause requires a
company to put OSHA's program in place so they can be relieved of
having to comply with the OSHA program. That sounds absurd. It doesn't
make any sense, but that is what they require. They said: If you will
put into place this OSHA program, whatever it is--and nobody knows what
it is--then you will have complied with the grandfather clause. But to
our knowledge--and OSHA hasn't told us of any--nobody has one in place
that meets the impossible and unworkable and unknowable standards of
this rule and regulation. Grandfather? That looks like some other kind
of relative, not often seen at a family picnic when you apply it to
this clause.
OSHA's pursuit of this regulation has been so single minded, they
have cut corners with the rulemaking process. Under the proposed
regulation, an employer's obligation to implement the full ergonomics
program is triggered when an employee has an OSHA-recordable MSD
injury. OSHA's definition of a recordable MSD injury is one where
``exposure to work caused, contributed to the MSD, or aggravated a pre-
existing MSD.'' An employee could actually have an injury caused
entirely by nonwork-related factors. This regulation would require the
employer to implement a full-blown ergonomics program if the employee's
job requires them to do something as simple as standing, which
aggravates the injury.
I have had an ergonomic injury trying to pull up carpet tacks in a
new house. I spent a weekend pulling up carpet tacks. I could not move
my arm the next day. I went into work. I couldn't use the typewriter,
even a pen, but I knew what caused that: pulling up the carpet tacks
and ripping up the rug.
Under this rule, if I had gone in and told the employer, darn, I
can't use the typewriter, I can't pick up a pencil today, I can't lift
the law books, under this definition, that would have been a recordable
MSD injury for my employer.
That would not have made him happy. What is even more remarkable
about this regulation is that the language comes directly from OSHA's
1996 proposal to revise the recordkeeping standard which has not yet
been finalized. OSHA is actually trying to finalize their proposed
recordkeeping standard by inserting that language in the ergonomics
proposal. That is an outrage and a clear violation of the principles of
fairness and disclosure that underlie the rulemaking process that must
be and should be subject to challenge under SBREFA and the appropriate
procedures and actions.
The fact that OSHA has taken liberties with the rulemaking process is
hardly new. Most of us remember in January when OSHA tried to impose on
employers the obligation to check the homes of employees who
telecommute for safety hazards. OSHA was attempting to do this through
a letter of interpretation in response to a legitimate inquiry from an
employer. The outcry over this move was so loud and so bipartisan that
the Secretary of Labor herself had to withdraw that crazy idea the next
day.
One of the reasons OSHA's attempts blew up in their face so badly was
because of this ergonomics regulation. Employers immediately realized
that if they were responsible for safety hazards in an employee's home,
the ergonomics regulation would require them to intrude into their
employees' private lives far too deeply. The regulation already expects
employers to be responsible for injuries that are not caused by
workplace exposures. If employers were to be responsible for safety
issues at home, there would be no limit to what they would have to
cover. Employers would never be able to control the exposure to
ergonomic risk factors in the home, or distinguish which risks were
part of work activities and which risks were part of everyday life like
picking up their children.
This is the most expensive, complicated, expansive, burdensome, and
destructive regulation that OSHA has ever proposed. That is no small
title to achieve. When you are dealing with OSHA, that is a high stump
to jump. But they have done it on this one. Indeed, it could be one of
the most burdensome regulations ever proposed by the Federal
Government. OSHA is pursuing this regulation with no concern for the
impact it would have on employers, or the fact that employees will lose
their jobs because of this regulation.
I call on my colleagues to pass the Enzi-Bond amendment to the Labor-
HHS appropriations bill to stop OSHA from finalizing this horribly
flawed regulation and force them to reconsider their approach and
listen to the scientific evidence and to the people who are making
their best efforts, successful in part already today, to reduce
ergonomics injuries. To vote against this amendment is to say that an
agency can promulgate a regulation without providing an adequate
scientific foundation, and they can impose a crushing burden that would
drive small businesses out of business and deprive employees of their
jobs without considering the impact. That must not be the case.
I strongly urge and beseech my colleagues to support this amendment
and put a stop to a terribly bad idea before OSHA takes the bull whip
to small businesses throughout this country.
Cloture Motion
Mr. REID. Mr. President, I send a motion to the desk.
Mr. BOND. Mr. President, I believe I have the floor.
Mr. REID. It is a cloture motion.
The PRESIDING OFFICER. The Chair will examine the motion.
The Senator has a right to send a cloture motion to the desk without
having the floor.
The cloture motion having been presented under rule XXII, the Chair
directs the clerk to read the motion.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close the debate on the motion to
commit H.R. 4577 to the Appropriations Committee with
instructions to report back forthwith with the amendment No.
3598:
Jeff Bingaman, Richard Bryan, Daniel Akaka, Joe Biden,
Richard Durbin, Bob Graham, Barbara Boxer, Byron
Dorgan, Max Cleland, Thomas Daschle, Daniel Inouye,
Harry Reid, Paul Wellstone, Joseph Lieberman, Charles
Robb, John Rockefeller.
Mr. REID. I express my appreciation to the Senator.
The PRESIDING OFFICER. The Senator from Missouri still has the floor.
Mr. BOND. I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, I would like to share some thoughts on
the OSHA regulations, these ergonomic regulations.
First, I want to say that it is a worthy goal to improve safety and
health in the workplace, but we ought to look at it carefully and we
ought to, as a representative body of the people, look at the
democratic aspect of this process and be prepared to examine these
regulations before we authorize them to go forward and make sure they
meet a scientific standard, and in addition to the extraordinary costs
we know they will cause, we need to know that they will actually
improve safety and health in the workplace.
Last year, before OSHA published its proposed ergonomic rules,
Senator Bond introduced a bill, which I supported, prohibiting OSHA
from publishing its final ergonomics standard until the National
Academy of Sciences completes a congressionally mandated peer-review of
all the scientific literature concerning ergonomics.
Unfortunately, a minority number of Senators in this body were able
to block its consideration. This year, I am pleased to join with
Senator Enzi, who has tenaciously and effectively pointed out the
problems with this rule and why it ought to be delayed.
I just believe that we have to remember that experts have
characterized this legislation as ``the costliest government job
mandate since the founding of the United States.'' That is a matter
that should give us all pause.
I believe it is important to base whatever regulations we have on
sound science, and I don't believe that OSHA has done so. This is an
important issue. I am going to talk about three cases in recent years
in which OSHA has been found not to have based its regulations
[[Page S5633]]
on sound science or justifiable procedures. I do that because a lot of
people think, well, if OSHA says it, it must be good. Somehow they are
blessed with ``all-knowing wisdom.'' But you have already heard from
Senators who pointed out a number of things that OSHA has done that are
certainly not justifiable. It is not what I say to you today, but what
the courts have said about this that is important.
Certainly, it is important to provide a safe environment. Ergonomics,
though, are based upon decisions and recommendations made by
ergonomists and/or engineers, and not physicians, and their medical
theories have proven to be controversial.
OSHA has attempted to apply ergonomics in three legal cases that they
litigated to judgment. In each instance, OSHA suffered major losses.
These cases demonstrate the vast uncertainty surrounding these
regulations and the science OSHA claims supports their implementation.
Even the ``experts'' on ergonomics at OSHA admit there is a great deal
of uncertainty in these regulations.
OSHA has litigated these claims under the ``general duty'' clause of
the Occupational Safety and Health Act of 1970. This clause provides a
general obligation on every business in America, all employers, to
protect workers from ``recognized hazards'' of ``death or serious
physical harm'' and functions as a catchall under which OSHA frequently
attempts to expand its regulatory power.
One important aspect in the cases I will discuss is that OSHA had the
burden of identifying hazardous job conditions. In the cases I am
talking about, OSHA had to prove these were hazardous job conditions,
and they have to show how they would be corrected. In the rule we are
debating, the burden will be put on the employers to make these
decisions. We are going to find out that OSHA could not do it. Yet they
are going to demand that every employer in America--many of them small
businesses--are to meet these kinds of standards.
No. 1, in the 1995 case, Secretary of Labor v. Beverly Enterprises,
OSHA sought to prevent nursing home employees from lifting up residents
in order to care for them and move them about the room. OSHA would have
preferred carting the elderly residents about with mechanical hoists.
In a 31-day trial before a Federal administrative law judge, OSHA
presented four expert witnesses, each with a Ph.D. in this field. These
were some of the leading ergonomics theorists in the Nation, some of
which had done extensive research on the practice of lifting in nursing
homes.
The federal administrative law judge concluded ``There is no reliable
epidemiological evidence establishing lifting as a cause of low back
pain. Science has not been successful in showing when and under what
circumstances lifting presents a significant risk of harm, none of the
experts could say with reasonable medical certainty that any injury
claimed by Beverly employees was caused by their job tasks.''
With all of the resources of the federal government, including
numerous experts, the Department of Labor and OSHA were not able to
fulfill their obligation to ``define the hazard in such a way as to
advise Beverly of its obligations and identify the conditions and
practices over which Beverly may exercise control so as to reduce or
eliminate the hazard.'' That is a direct quote from the judge. If a
federal agency is unsuccessful, how are employers expected to meet this
burden under the ergonomics rule.
The courts have also spoken in regards to the ``flawed'' science that
is the basis for this proposed ergonomics rule. In the 1998 case
Secretary of Labor v. Dayton Tire, OSHA launched an attack on 22
different manufacturing jobs in a single tire-manufacturing plant.
This is yet another case of the federal agency utilizing their large
financial and personnel resources to prove their case. OSHA assigned
three compliance personnel to a six-month inspection and investigation
of the facility. At trial before the administrative law judge it called
more than three dozen witnesses, including 31 employees, 4 doctors from
the facility, 3 OSHA investigators, and 2 experts.
Thousands of man hours were spent in preparation for the trial,
studying the jobs they claimed caused the injuries. The trial lasted 6
months, even though the company only called one witness.
The OSHA witnesses had extensive experience with ergonomics, with one
having spent the last six years as an analyst for OSHA whose ``primary
job'' was conducting ergonomic analysis.
OSHA's medical expert in the case was a university professor who was
certified as an expert in ergonomics, who with the assistance of three
other faculty members and six residents, had conducted extensive
analysis of the medical records of the Dayton Tire employees who
allegedly suffered from musculosketetal disorders. The Professor
confessed during the trial that ``if he had been the treating
physician, he would not have felt comfortable making a diagnosis of the
conditions, nature and cause'' of those injuries.
This uncertainty is quite alarming coming from a man with expertise
in the area. The fact that he conceded that his study did no more than
``present a red flag that something may be wrong'' at the plant
concerned the judge.
The judge ruled and held that this method was ``not trustworthy'',
``scientifically valid'', or ``scientifically reliable'', stating that
``Conjectures that are probably wrong are of little use''.
Ultimately, the judge concluded that the expert's analysis ``failed
to meet the minimal requirements for evidentiary reliability
established in Daubert v. Merrel Dow Pharmaceuticals, Inc., the 1993
Supreme Court decision that requires judges to exclude ``expert''
testimony that uses scientifically invalid methodology or reasoning.
This standard is generally referred to as the ``junk science''
standard.''
This testimony was rejected as not even valid testimony under the
``junk science'' doctrine. That is what OSHA was relying on in that
case.
The fact that OSHA characterized the methods of their experts in the
Dayton Tire as ``widely used and generally accepted'' among ergonomics
experts, clearly shows that when scrutinized the science that is the
basis of this ergonomics standard is fundamentally flawed.
In the 1997, Pepperidge Farm case, OSHA had its only opportunity to
have an ergonomics case decided by the full Occupational Safety and
Health Review Commission.
The risks that OSHA identified in the case were ``capping'' cookies--
employees lifted the top of a sandwich cookie from one assembly line
and placed it on top of the bottom of the cookie on another assembly
line in a repetitious fashion.
To abate these conditions, OSHA ordered the company to increase its
staff, slow assembly line speeds, increase rest periods, or simply
automate the entire operation.
Automation means job loss. People complain that when we automate we
are losing jobs. One reason that is happening is these kinds of
regulations that drive up the costs; and to make it more economic for a
company to avoid these kinds of lawsuits and Federal complaints, they
could just go on and create some new form of a machine that could do
the work without people.
While the commission did accept some of the major premises of
ergonomics, such as repetitive workplace motions causing worker
injuries--I am sure under the circumstances that can happen; I would
not dispute that--the commission ruled that OSHA failed to show that
its proposed ergonomics measures were appropriate means of reducing
musculoskeletal disorders purportedly caused by the worksites.
The Commission found that some ergonomic measures had been
implemented by the company and that the additional measures proposed by
the agency's expert ergonomists were not shown to be feasible and
effective.
The decision is particularly damaging because OSHA had enlisted
enormous resources and leading experts to show what the company should
have done to avoid worker injury. Yet OSHA and its experts could not
prove in open court what works, again raising the question of how
businesses can make such determinations when OSHA can't.
In these three cases OSHA deployed hundreds of experts and millions
of dollars to target what they considered to be particularly hazardous
worksites.
[[Page S5634]]
But because of the flawed science the agency could not determine what
if anything was wrong, or how to correct it. And the courts rejected
their view. This is why business is concerned.
Some think just because they have the name OSHA, that they do
everything right. They have been knocked down time and again by the
courts. Businesses do not understand and do not have confidence that
the 300 pages of these proposed regulations are going to apply fairly,
and they do not believe it is scientifically based. I can understand
their concerns. Employers should not be held to a standard that has
consistently alluded the agency that seeks to regulate them.
I believe we should pass Senator Enzi's amendment and delay the
ergonomics standards until the uncertainties regarding the science and
implementation of this can be further explored. I don't know the
answer. OSHA has, through these three cases, established that they
don't have the answers either. Why don't we allow the National Academy
of Sciences' study to be completed? Why don't we get opinions of the
physicians and medical experts who can understand these issues before
we rush to force these regulations into play?
That is what we should do. That is why I believe the amendment by
Senator Enzi is the proper amendment.
Let's get the scientific basis before we act.
I thank the President.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I thank the Senators on my side of the aisle
who have spoken on the ergonomics amendment and the detrimental method
by which OSHA is trying to force the standard through.
I ask unanimous consent Senator Domenici be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. I thank Senator Hutchinson for his great delivery on the
way the rulemaking process works and the way it has been forced in this
instance. I thank Senator Bond not only for the speech he gave on the
floor a while ago but for his continued interest and knowledge on the
issue of ergonomics and his particular concern for the small
businessman and how this rule and former ``rumored'' rules would affect
them.
This is the furthest a standard has ever gotten on ergonomics. It has
now been published. It is the first one to be published. Now people
have an opportunity to see how harmful or damaging it can be.
I am the chairman of the subcommittee on workplace safety and
training. I have worked a number of OSHA issues since I have been here.
I have always tried to be reasonable on the issues on which I have
worked. I appreciate comments from the other side of the aisle about
the way I have worked with the other people.
I need to let everybody know what is happening. There are the votes
to pass my amendment, so there is a filibuster to keep it from ever
coming to a vote. There are people who would prefer not to vote on this
measure at all. If they are listening to the debate, they should be
interested in making sure that the rules get the full amount of time
needed to decide properly whether that will provide the workplace
safety about which we have been talking.
I offered an amendment, and there was a motion to commit. Some may
not know what a motion to commit is, using another bill. It sends it
back to committee to put in a completely different provision from
ergonomics. There was an insistence it be read in full. It took only an
hour and a half out of our day. That is Senate procedure.
Now we have an amendment on the bill again that brings us back to the
ergonomics amendment. It is essential we get a vote on this ergonomics
amendment. It is essential the Senators get an opportunity to say
whether they think OSHA has been rushing a bad product. You will see a
very conclusive vote on that when it comes to a vote.
This is a vote about how your Government, more specifically your
bureaucracy, operates. This is not about safety necessarily, because if
it was about safety, there are some other approaches OSHA would take.
OSHA is not necessarily a safety organization. It is about fines, not
necessarily prevention.
One of the things that has come up since I have been working on the
OSHA issues is an explanation of how much injuries have increased since
we passed the OSHA Act. I decided I would go back another 30 years
before the OSHA Act and see what has been happening with injuries in
this country. Do my colleagues know what I discovered? Injuries were
decreasing at the same rate since 30 years before we thought of OSHA.
Do my colleagues know why that is? It is because businesses are
concerned about their people. They are concerned about them. If they do
not have a worker there, they are not getting the work done that they
expect that person to do. Injuries cost money. Injuries are difficult
to work with.
When we were doing the hearing on the work restriction protection--
that is the part where workers comp will supersede State workers comp
on the Federal level, which is poorly designed, very inadequate, and
there is no money to do it--during that hearing, we received testimony
from Under Secretary Jeffress. I was pleased to read his testimony.
Witnesses get a short time before the committee to present testimony.
During the course of that, I will read the rest of the testimony so I
know what they intended to say if they could have said everything they
wanted to say.
I ran into a paragraph about New Balance shoe manufacturing
facilities. That caught my eye because for years my wife and I ran a
shoe store in Gillette and in a couple of other places. New Balance was
one of the shoes we sold. I was very pleased they make narrow shoes. It
is a very good tennis manufacturing company.
In the statement, it said this New Balance shoe manufacturing company
cut their workers compensation costs from $1.2 million to $89,000 a
year and reduced their lost and restricted days from 11,000 to 549
during a 3-year period.
I asked Secretary Jeffress how much they had to fine this company to
get them to do that fantastic work. They did not have to fine them. Of
course not. Can you imagine the economics of reducing your cost from
$1.2 million to $89,000 a year? That is good business. It also saves
employees.
There are other examples of companies that have reduced their
injuries dramatically. I said if OSHA was not there to fine them, how
would that possibly have happened? Again, companies, for the most part,
are extremely concerned about their employees. In fact, when the
ranking member of our subcommittee spoke earlier, he mentioned that in
his State of Minnesota, GM and 3M, and some other companies I did not
get written down, are reducing their injuries dramatically. What I
would like for him to do is to call those companies and see if they
think this standard is essential to continue to do that.
The answer will be a resounding no, this will cost them a lot of
money which will be diverted from the things they are already doing.
I wonder how many people know that ergonomic injuries, according to
Department of Labor statistics, have gone down 24 percent since 1994.
Imagine that. This rule was not in place. This rule is just proposed.
Yet American business reduced ergonomic injuries 24 percent. There were
no fines, no penalties, no standard, no rule, just concern for their
employees. It is pretty amazing.
Can you imagine what those businesses would be able to do if OSHA saw
as their mission preventing injuries--not fining, I did not say
fining--preventing injuries and focused their efforts on helping
businesses, particularly the small businesses for which Senator Bond
expressed deep concern, the people who do not have all of the experts
on board to make the best care possible? If the focus of OSHA helped
those small businesses figure out what they could do differently, I bet
we could get that decline rate up to about 50 percent, but it takes
some experts helping out, not total concentration on a phony rulemaking
procedure.
Oh, did I say ``phony''? I am sorry, but not very sorry because when
I explain how this rulemaking procedure is working this year, everybody
in this Chamber might agree that it is a phony process.
OSHA is paying witnesses to testify. They are not paying expenses,
they are
[[Page S5635]]
paying them to testify. They are not just paying them to testify, they
are even telling them other things they ought to say, ways they can
beef up their testimony. If it is a $10,000 expert, don't you think he
could write his own testimony? I do.
OK, a $10,000 expert, and then they have them come and do a mock
hearing. An expert needs a mock hearing? I do not think the whole
$10,000 goes to the testimony, because from some documents I have been
able to look at, it appears to me $2,000 of that is really supposed to
be to tear apart any testimony in opposition OSHA gets. They are paying
people to tear other public testimony apart. Does that sound like
something your Government ought to be doing? That is how badly OSHA
wants this rule.
It was mentioned this morning that this is a proposed rule. Of
course, it is a proposed rule. There is a process that it is supposed
to go through, and it is not supposed to just take a year. That would
be a record for OSHA even when they are doing much simpler rules. This
is a very complicated one, a very expensive one, time consuming, and a
damaging one. They are going to force it in a year. Every indication I
find says they can do it unless we adopt this amendment. Is that why we
are getting so much opposition through a filibuster to adopting this
amendment?
Yes, this is about your Government, specifically your bureaucracy.
This is about how your Government can control the business you work for
without getting anything for the employee in return.
We heard some stories this morning about working people's lives, and
we are concerned about those working people's lives. I was in small
business, and when you work with people in small business, it is not a
boss-employee relationship. If you cannot get along better than that,
you probably will not have them as employees.
We had some examples of a few people, and there are many throughout
the United States, who are being injured through repetitive motion. I
am asking all of the businesses that deal with that to concentrate on
eliminating the repetitive motion. I am asking OSHA to work with those
businesses in finding ways to eliminate the repetitive motion.
Earlier we mentioned home office inspections, and everybody got up in
an uproar saying that was already taken care of. Yes, this same
department that we are talking about as proposing this rule--the same
one--said that they had the right to go into homes and inspect. That
raised a lot of interest, a lot of concern, and in about 48 hours--48
hours after we discovered it, not 48 hours after it was done--they
discovered how terrible that was and they reversed it.
I really think if they think about the process that we are going
through here, they would give some very serious consideration to
reversing what is going on right now: Forcing a rule through, not
giving any indication that any changes would be made, and part of that
comes from this paying of witnesses.
Another issue we are dealing with around here is one about China,
PNTR. I am getting a lot of letters on it. I am sure everybody here is.
Half of those letters are talking about the way jobs are going to go
overseas.
I am part of the NATO Parliament. I went to the last session of that.
We talked about the way the Parliament changes. I was on the economic
development committee for that. We talked about the ways that some of
these other countries are having economic development. I saw some
examples of how they were having economic development.
I saw a factory where people work for extremely long hours, every
day, in complete body outfits, where only their eyes are visible. Their
eyes are visible because they look into microscopes all day and weld on
hard disc drives. It is an extremely tedious, repetitive motion. Those
people get $350 a month. It should not happen.
But when we pass rules, by forcing rules through that greatly
increases business costs, without protecting the worker at all, we are
exporting jobs. The unions ought to be up in arms about this rule and
what it will do in exporting American jobs. It concerns me. I hope it
concerns everyone.
A lot of these things are interconnected. But the issue we are
talking about here isn't as much what the rule is as it is the way it
has been pursued.
I have asked questions to get information about how the process is
working. I did not get the information. I found out the House had the
information. I requested the ability to see it. I was told it could not
be brought to my office. The House had fortunately made an arrangement
by which I could look at it. But the arrangement did not say, ``in my
office,'' so I had to go over there. But I was willing to do that. I
was astounded at what I found when I got over there and figured out why
it was they wanted me to go to every last bit of effort to look at it
that I possibly could.
I have shared some of that with you. I would have liked to have
shared it with you in more detail, but the agreement they had for me to
even look at it said there was privilege in this that keeps a Senator,
in an appropriations process, from being able to see the documents he
needs to be able to see to know how the money is being spent so he can
make decisions about how it will be spent in the future. I think that
is unbelievable and it is just not right.
We have had some testimony in committee. We found out how OSHA
gathers its testimony. We have found out how the whole process works.
That is why I have asked everybody to vote against this.
Quorum Call
Mr. ENZI. Mr. President, I could go into more examples of what has
been happening. I could counter some of the things that have been said,
but at this point I yield the floor and suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr. Smith of Oregon). The clerk will call the
roll.
The legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
Mr. ENZI. I object.
The PRESIDING OFFICER. Objection is heard.
The clerk will call the roll.
The legislative clerk resumed the call of the roll and the following
Senators entered the Chamber and answered to their names.
[Quorum No. 6]
Durbin
Enzi
Feingold
Gorton
Harkin
Kennedy
Kerry
Lott
Reid
Smith (OR)
The PRESIDING OFFICER. A quorum is not present.
Mr. LOTT. Mr. President, I move that the Sergeant at Arms be directed
to request the attendance of absent Senators and I ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The PRESIDING OFFICER. The question is on agreeing to the motion of
the Majority Leader.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from California (Mrs. Boxer),
the Senator from Hawaii (Mr. Inouye), the Senator from South Dakota
(Mr. Johnson) are necessarily absent.--
The result was announced--yeas 94, nays 3, as follows:
[Rollcall Vote No. 142 Leg.]
YEAS--94
Abraham
Akaka
Allard
Ashcroft
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Brownback
Bryan
Bunning
Burns
Byrd
Campbell
Chafee, L.
Cleland
Cochran
Collins
Coverdell
Craig
Crapo
Daschle
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Jeffords
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moynihan
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden
NAYS--3
Breaux
Conrad
Murkowski
[[Page S5636]]
NOT VOTING--3
Boxer
Inouye
Johnson
The motion was agreed to.
The PRESIDING OFFICER. With the addition of Senators voting who did
not answer the quorum call, a quorum is now present.
Mr. LOTT. Mr. President, I move to reconsider the vote, and I move to
lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. LOTT. Mr. President, in a moment I will put in another quorum
call. I thought we should go ahead and conclude that vote. We have come
up with a procedure that I think is fair which will allow the Senate to
go forward on the two issues that are now pending before the Senate. We
are working on both sides of the aisle to make sure Senators are aware
of what we are proposing. If we are able to get that agreement, there
would be a couple of votes stacked in an hour or so. If we cannot get
it agreed to, then there will be a vote here in the next 15 minutes.
I am sorry I cannot give a more certain answer right now. We hope to
have some agreement in the next few minutes. We will then put in that
unanimous consent request and proceed to have some debate agreed to and
the two votes, or go straight to the point of order on the pending
motion.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Bennett). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. 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. LOTT. Mr. President, I ask unanimous consent that the pending
motion to commit be withdrawn and amendment No. 3594 be withdrawn and
the Enzi amendment No. 3593 be laid aside. I further ask consent that
the Robb amendment to the instructions be drafted and offered as a
first-degree amendment to the bill.
I further ask consent that there be 1 hour for debate equally divided
on both issues to run concurrently, and that at the conclusion of the
time, the Senate proceed to vote on the Enzi amendment No. 3593, to be
followed by a vote on the prescription drug amendment, without any
intervening action or debate.
Mr. DASCHLE. Mr. President, reserving the right to object, I assume
that the majority leader is referring here to an up-or-down vote in
both cases.
Mr. LOTT. Absolutely. That was the understanding that was reached.
Mr. DASCHLE. Right.
Mr. LOTT. Some on both sides had reservations about that, but that
was the only way we could bring it to a conclusion.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The motion to commit and the amendment (No. 3594) were withdrawn.
The PRESIDING OFFICER. Who yields time?
Mr. LOTT. Mr. President, just so we can have an understanding of
this, on our side the time with regard to the Enzi amendment on
ergonomics would be controlled by the Senator from Wyoming, and the
time on our side against the Robb amendment would be controlled by
Senator Roth.
I presume Senator Robb would have the time on your side, I say to
Senator Daschle. Who do you wish to control the time on the other
issue?
Mr. DASCHLE. Mr. President, I designate Senator Robb as our manager
on the Robb amendment and in control of the time. The manager in
opposition to the Enzi amendment will be the senior Senator from
Massachusetts, Mr. Kennedy.
Mr. LOTT. I believe we are ready to proceed with the debate. I yield
the floor.
Modification To Amendment No. 3598
The PRESIDING OFFICER. The clerk will report the Robb amendment.
The legislative clerk read as follows:
Amendment No. 3598 previously proposed by the Senator from
Virginia [Mr. Robb], as modified.
Mr. REID. I ask unanimous consent that further reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Pursuant to the previous order, the modification to the amendment is
as follows:
At the end of the bill add the following:
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ROBB. Mr. President, I yield myself 2 minutes of the 15 minutes
that are allocated to the affirmative position on this amendment.
Mr. President, for the benefit of our colleagues, I would like to
summarize this amendment as succinctly as I can. It is a bipartisan
bill that would guarantee access to a comprehensive, meaningful
prescription drug benefit for all Medicare beneficiaries. Unlike other
drug proposals, our bill would guarantee total coverage for seniors,
without any limits or gaps.
Let me say, however, to my colleagues on the other side of the aisle,
that this benefit is not some ``big government'' solution to the
Medicare prescription drug problem. In putting this proposal together,
our bipartisan group opted to rely on private sector, market-based
mechanisms to deliver medications to seniors. Competition and choice
are at the very essence of our bill. For those who suggest that we need
to take a centrist approach, I say that this bill is that logical
bipartisan compromise. And we need to act on it now.
Mr. President, today is June 22. With the Senate deep into the
appropriations process, we have very few legislative days left in this
session. If we are going to get a prescription drug bill to the
President's desk, we need to consider one now.
Mr. President, I've spoken previously today about the stories I heard
in a series of health care fora held in my state over the past month.
In one of them, I spoke to a physician who was prescribing the drug
Tamoxofin for women who had been diagnosed with breast cancer and who
were Medicare eligible. One woman was sharing her prescription with two
other women who simply could not afford it--a travesty by any health
care standards. I've heard many other stories of similar magnitude.
Prescription drugs are clearly a part of modern medicine today. They
are a necessity, not a luxury. I ask that our colleagues respond
affirmatively to this chance to provide modern medicine to those who
are eligible for Medicare.
I reserve any time not used.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. ROTH. I yield myself 3 minutes.
Mr. President, I rise in opposition to the so-called Robb amendment,
not because I necessarily oppose its terms but because it affects, in
an adverse manner, the possibility of getting legislation on
prescription drugs enacted this year.
Prescription drugs is a matter before the Finance Committee. It is
undoubtedly the most important domestic legislation that will be
considered this year. Nothing will happen if we permit this legislation
to become partisan. We do not need a Democratic bill. We do not need a
Republican bill. We need legislation that represents a bipartisan
consensus on both sides of the aisle.
We have worked very hard in the committee to develop the kind of
information that is essential to design a bill that will meet the needs
of the American people. We have spent something like 15 days on
hearings, bringing before us experts as to what we should do to,
frankly, modernize our Medicare legislation.
The last 2 weeks have been spent in meeting with Republicans and
Democrats alike on the various proposals that have been made both by
Republicans and Democrats in the House and the Senate.
We just completed that process this afternoon. I am very happy to say
that I think the end results of these meetings give us a good chance to
develop a bill that can be supported by both Republicans and Democrats.
I know there are people who want to make this a partisan issue. I
know there are people who want to have a Republican issue on this
matter, and the same is true on the Democratic side. But I say that
this matter is too important--too important to our senior citizens--to
try to rush it through in a political way rather than working together.
During our hearings, we had representatives of the AARP and other
advocate groups. The one message they gave that came through loud and
clear was: Do not rush something through.
[[Page S5637]]
Make sure that whatever you do will meet the needs of the American
people. They urged, time and again, that it is essential that we act
with care.
Let me point out, to those who want to have a vote all of a sudden on
a piece of legislation that has not been studied, that in 1987, the
Congress voted for--and it was signed into law--catastrophic
legislation. That was passed in 1987. In 1988, it was revoked because
the legislation did not do what the people thought it would do. We must
not make that mistake again.
It is critically important that as we move ahead, we move ahead with
care and understanding. Let me say, I understand full well the
importance of this legislation and want to get it done. But it does not
help the process or the development of a good piece of legislation if
it is handled in a partisan way.
This bill was only introduced 2 days ago on June 20. The text of the
bill has not even been printed in the Congressional Record. Are we
going to act on that today without an understanding of what it includes
and what it means?
It is estimated this legislation would cost, over 10 years, something
like $200 to $300 billion.
The PRESIDING OFFICER (Mr. Sessions). The time of the Senator has
expired.
Mr. ROTH. I yield myself 1 more minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROTH. In 5 years, it is estimated it would cost something like
$75 billion. Under the budget resolution, we are allowed to spend $20
billion in 5 years, if we have no reform. If we have reform, our
program can consume up to $40 billion. This piece of legislation would
cost something like $75 billion. The last thing we need to do is move
ahead on legislation that would put our Medicare program at greater
risk. Its solvency is already estimated to last only until 2025. In
adopting what will be admittedly an expensive new program, we want to
make sure that it is fiscally sound.
I urge and hope my friends on both sides of the aisle will reject
this legislation and give the Finance Committee, which has
jurisdiction, the opportunity to develop a bill that will serve the
needs of our senior generation.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Virginia.
Mr. ROBB. Mr. President, I yield 5 minutes to the Senator from
Nevada, Mr. Bryan.
Mr. BRYAN. I thank the Senator from Virginia.
Mr. President, I am pleased to join with my colleague from Virginia
in offering a Medicare drug program.
For the 223,000 Nevadans who are Medicare recipients, no legislation
we will debate in this Congress is more important for them. Two-thirds
of them have either no prescription drug coverage at all or inadequate
coverage--this at a time when prescription drug prices are increasing
at a rate of nearly 20 percent a year.
I will talk about what this measure will do. First, it provides
guaranteed and universal access to prescription drugs. Unlike some of
the other proposals being debated, this benefit will actually be
available because it is offered as an integral part of the Medicare
program. Second--and this is important--the benefit is comprehensive
and defined, simple. It is understandable. Beneficiaries understand
what the coverage is, and it will not change from year to year or month
to month. Moreover, this is the only proposal to offer complete
coverage after the deductible. There are no gaps or limits. The bottom
line: All seniors will be guaranteed access to affordable drugs and
will have the peace of mind knowing that full coverage is provided for
any and all expenses above $4,000. Any expenses for prescription
medication above $4,000 are completely handled under this program.
Third, this benefit is affordable for all beneficiaries. Those with the
lowest incomes are provided the most assistance.
Finally, and critically, this proposal maximizes competition and
provides choices. All of us who have been privileged to serve on the
Finance Committee and to study this issue recognize the element of
competition and choice as being an essential reform. This is not a one-
size-fits-all program. Multiple private businesses are used to
administer and deliver the benefit so there is competition at two
levels: first, in terms of who are being chosen to provide the benefit
and, second, those who are chosen compete and try to sign up
beneficiaries for that program. So there is both competition and
choice.
In sum, this amendment gives beneficiaries what they need most--long
overdue coverage of prescription drugs--and it also injects competition
into the program and provides choices for beneficiaries. It is the
first proposal to offer universal, guaranteed, affordable, fully-
defined comprehensive coverage, no limits, no gaps, no gimmicks. This
proposal is for real. Beneficiaries will know what they are getting,
and they will know without a doubt that the benefit will actually be
provided.
I urge my colleagues to join me in supporting the proposal of the
distinguished Senator from Virginia. The time to act is now.
I yield the remainder of my unused time to the Senator from Virginia.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ROBB. Mr. President, does the Senator from Delaware or anyone
opposing this particular bill wish to speak at this time?
Mr. ROTH. The Senator from Virginia may proceed.
Mr. ROBB. Mr. President, I yield 3 minutes to the Senator from
Florida, Mr. Graham.
Mr. GRAHAM. Mr. President, I commend our colleague, Senator Robb, for
the outstanding leadership he is providing on this critical issue. On
Monday, Senator Robb and I visited the Archbishop McCarthy Residences
in Opa-Locka, FL. There I met an elderly lady who had this story to
tell. She had purposefully joined an HMO in order to be able to get
access to pharmaceutical coverage.
Two months ago, the HMO announced it was dropping all pharmaceutical
coverage. This was the first month in which the impact of that was felt
by this elderly American. What did it do to her? She has five medically
necessary prescriptions. She had to decide to forgo three of those five
because she could not afford them. The two she thought she could not
omit cost her $168 a month out of her very limited income.
This is not a theoretical or conceptual issue. This is a real life-
and-blood issue for millions of Americans.
It has become an issue, in part, because of our successes. When
Social Security was established in the mid-1930s, the average American
had a life expectancy after 65 of 7 years. Today, the average American
has a life expectancy after 65 of 17 years. According to the Census
Bureau, 100 years from today, the average American will have a life
expectancy of 27 years after they reach 65.
Those numbers have fundamentally changed what constitutes effective,
humane health care. It has meant that we need to be making an
investment in prevention. If a person is only going to live a few years
after retirement, one could argue, why spend the money on prevention.
But if a person is going to live 17 or 27 years, that is a big share of
their life.
In addition, because of that extended life, there is more emphasis on
care for people who have chronic conditions that have to be managed for
many years. Both of those, prevention and chronic care, necessitate
access to prescription drugs. That is what this plan will do.
The year 2000, the beginning of the 21st century, will mark the year
in which older Americans will no longer have to make the choice that
the woman in Opa-Locka did, to drop three of her medically necessary
prescriptions and then end up paying a very high part of her meager
income to buy the two drugs she could not avoid.
I congratulate our colleague for bringing this amendment forth. I
urge all of our colleagues to see this as a kind of opportunity and
pass the Robb amendment.
Mr. McCAIN. Mr. President, it is simply wrong that many of our
nation's seniors who live on fixed incomes must choose between medicine
and food. Our seniors should not be forced to drive over the border to
Canada to purchase affordable prescription drugs.
As I have said many times over, we must work together to develop an
initiative for helping America's seniors
[[Page S5638]]
obtain the prescription medication they so desperately need without
forcing them to chose between groceries and vital medicines. Each of us
must put aside partisan politics and work together to help our nation's
seniors--many of whom are skipping or ignoring their medical needs
because of the exorbitant prices they must pay for medication.
But I can not support the proposal before the Senate this evening. I
can not support using parliamentary procedures and political posturing
to force a vote on a proposal that has not been available for extensive
review, analysis and input--particularly from our constituents and the
very seniors we are trying to help. That is simply wrong.
Congress must take great pains to ensure that a Medicare prescription
drug plan does not repeat the mistakes of Medicare Catastrophic
legislation in the late 1980's. Medicare Catastrophic made broad,
expensive reforms in the Medicare system which seniors saw as
excessive, unnecessary and unviable. To truly help seniors obtain
prescription drugs we need to take the time to engage in a thorough
debate carefully scrutinizing and vetting the proposal. We must be
conscious of what America's seniors want and need, and balance that
with fiscal restraint and responsibility. We must find a method for
helping our nation's seniors have access to prescription drugs that
does not place an unfair and unexpected burden upon them or the
taxpayers.
Mr. President, I respectfully request that my remarks be included in
the Record with the debate regarding this amendment.
Mr. JEFFORDS. Mr. President, let me take just a brief moment to
explain to my colleagues why they should join me in opposing the Robb
amendment.
I am going to vote against this amendment because this amendment
would stall a very important bill, the Labor, Health and Human Services
Appropriations bill, and send it back to go through the process again.
I have been meeting on a bipartisan basis in the Finance Committee,
working in good faith, to come to an agreement to provide prescription
drugs through Medicare. I am disappointed that my colleagues have
decided to throw bipartisanship aside and offer this politically
motivated amendment. The fact is, Mr. President, I got this amendment
only a few minutes ago, and it has not even been printed in the
Congressional Record.
I have always been very clear that I support a prescription drug
benefit for Medicare beneficiaries, and I have several well drafted
bills that would help seniors with their drug costs now. I have been
working on a bipartisan basis to address the issue of coverage for
seniors as well as the issue of the inequity of international pricing
disparities for prescription drugs.
It is very difficult to understand this amendment because it is
actually missing several pages, but from what I can tell, this bill has
serious problems that need to be addressed. First, this amendment is
drafted in such a way that would threaten the solvency of a Medicare
program that is already in financial trouble. This proposal contains no
reforms that would make the program more efficient, and in fact could
cost as much as $300 billion over 10 years--far more than has been set
aside in the Budget. The fact is, this amendment has not been
considered by any Committee, and has only been considered for 30
minutes on this floor. In short, Mr. President, this is no way to pass
landmark legislation that will affect all of our senior citizens.
For these and other reasons that I do not have time to list, I will
join a bipartisan group of Senators in voting against this ill-advised
procedure and against a politically motivated amendment that will keep
us from accomplishing a real, bipartisan prescription drug benefit that
will help our seniors right now. It is my intent to vote on a real
prescription drug benefit that will benefit all seniors, and to
complete legislation this year that will address the inequity of
international pricing disparities.
Mr. ROBB. Mr. President, how much time remains on the side of the
proponents?
The PRESIDING OFFICER. The Senator from Virginia has 6 minutes. The
Senator from Massachusetts has 15 minutes. The Senator from Delaware
has 11 minutes.
Mr. ROTH. Mr. President, I yield 3 minutes to the Senator from
Missouri.
Mr. ASHCROFT. Mr. President, I am concerned about the need for
prescription drug assistance to needy seniors. I have traveled all
across my State and, frankly, I think there are many seniors in need of
some stop-loss protection. Those without coverage want to be able to
buy drugs at discounted prices like those with coverage can because
they are part of a group. This measure brought before us today
literally takes longer to read than we have allowed for debate in the
Senate on it. My staff hasn't been able to get a copy of it, which
doesn't provide us with an intelligent and responsible way of making
decisions here.
I think there are some good concepts here. I like the concept of
stop-loss protection. In talking to people in my State, they want that.
They want some sort of copay for people, but they want this to be
available for people at all income levels. We spend a lot of time here
in the Senate trying to make it possible for people to make good
decisions by mandating that there be plain language, or that there be
time for people to read things, or time for people to consider things
in making contracts or otherwise entering into agreements. Yet we are
being asked today, without any strong, valid, and reliable estimation
as to cost, without an opportunity to actually see what is being
proposed, to make a commitment, or instruct the Congress to commit to
the expenditure of funds that might invade the Social Security surplus,
which might well impair the capacity of this Government to meet its
other obligations. It is not responsible. It is not the way we ought to
do business.
So while I very much appreciate the effort, and I believe that we
ought to find ways to help needy seniors to get access to prescription
drugs, which can frequently keep them out of the hospital and help them
remain independent and can save what would be hospital costs under
Medicare, I think it is reasonable that we would have an opportunity to
read the legislation, an opportunity to know something about an
accurate estimate of its cost.
So I have to say that I don't think we should pass that which we
haven't read, or that which is not available for our inspection. For
that reason, regrettably, I announce that I will have to vote against
this legislation. I think its intention is good, and I think many of
its proposals appear to be in line with what the people would want and
expect but without having an opportunity to read it and inspect it, to
understand it and understand its cost, I think it is unwise for us to
vote in its favor.
The PRESIDING OFFICER. Who yields time?
Mr. ROBB. Mr. President, I yield 2 minutes to the Senator from
Arkansas, Mrs. Lincoln.
The PRESIDING OFFICER. The Senator from Arkansas is recognized.
Mrs. LINCOLN. Mr. President, I, too, commend my colleague from
Virginia, Senator Robb, for his wonderful leadership on this issue. My
colleagues have already spoken eloquently about the need for
prescription drug coverage among seniors and, certainly, the basic
components of this amendment. I won't reiterate what they have said.
We, as a body, must make this a priority, and we have not. I think this
amendment is timely because the House is scheduled to act on it today.
It is quickly becoming a crisis issue for many seniors in the country
today, and that is why I am here as a supporter of a bipartisan plan in
the Senate.
As a Senator who represents the State with the highest poverty rate
among seniors, I am committed to seeing that the Senate act this year
to implement a prescription drug plan. With all due respect to the
chairman's comments in terms of timeliness and what must go through
committee, the bottom line is that we are running out of time to do
something on this issue.
This plan will provide immediate, affordable, and comprehensive drug
coverage to seniors who often have to make the choice between buying
food to eat or buying the prescription drugs they need. I want to
emphasize the importance of the Medicare outpatient drug plan to rural
seniors. In particular, this plan helps all seniors, particularly those
who are low-income and living in rural areas. This is important because
low-income and rural seniors
[[Page S5639]]
are less likely to have adequate prescription drug coverage.
Nationally, rural seniors are 60 percent more likely not to be able to
buy needed prescription drugs due to their high cost. A greater
proportion of rural elderly spend a large percentage of their income on
prescription drugs. Rural beneficiaries need adequate coverage because
they are more likely to have poor health and lower income than seniors
living in urban areas. In Arkansas, 60 percent of the State's seniors
live in rural areas.
This is a good prescription drug proposal. It is a fiscally sound
proposal that offers free coverage to our Nation's poorest seniors and
reasonable benefits to those who can better afford to pay for some of
their benefits. Our seniors deserve to enjoy healthier, longer lives
without having to worry about affording the medicine they need. The
Senate must act this year and this is an excellent time to do it.
I thank the Chair.
Mr. KENNEDY. Mr. President, I yield 4 minutes to the Senator from
Illinois.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Mr. President, in a short time, we are going to have two
votes that will define the difference in values between the two
political parties in this Chamber. For 2 or 3 years now, President
Clinton has been calling for a prescription drug benefit under
Medicare. During that period of time, the Republicans were in control
of the House of Representatives and the Senate, and a bill never came
to the floor to deal with this issue, which is paramount in the minds
of families across America. On the Democratic side, we have asked, from
day 1, for a chance to bring the President's proposal or our own
proposal to the floor. The only way this vote came about this evening
on a prescription drug benefit under Medicare is because we had to tie
this Chamber into procedural knots to achieve this vote.
Well, I commend the Republicans who are supporting this bipartisan
measure, and I hope many of them will cross the aisle and join us in a
bipartisan show of support for a prescription drug benefit. For those
who think they can vote against this prescription drug benefit and go
home and explain that it was such a new idea and they didn't have a
chance to read it, I can tell them the President has had a proposal
here for years. This idea has been out here for years. You have been in
control of the committees and in control of the Senate. We have waited
for your prescription drug benefit, but there is nothing for us to
consider from the Republican side. The vote that we will cast in a few
minutes will give Republicans and Democrats alike a chance to go on the
record for a good prescription drug benefit bill under Medicare.
The second vote we will cast also defines the values of the parties.
To think that each year over 600,000 workers in America get up and go
to work and do their very best in the workplace and get injured because
of these so-called musculoskeletal disorders, and they don't have the
kind of protection they deserve from their Government. This is a call
to action in this Chamber--a call to action that was heard by Elizabeth
Dole when she was Secretary of Labor. She said we needed a standard, a
call to action, which has been heard over and over again from working
families across America.
The Republican position is to turn a deaf ear to these workers,
ignore the fact that they are facing debilitating injuries and
disorders in the workplace, which haunt them for the rest of their
natural lives. It is the position of the Republican Party to stop this
effort to bring safety to the workplace. This is nothing new. There has
not been a single time in America's history when we have come forward
with protection for workers that business interests didn't stand up and
try to block it. Whether we are talking about child labor laws, safety
in the workplace, time and time again, they have said it is too much
Government, too much meddling, it will cost too much.
Well, I think the value on human life and the value on safety in the
workplace is not too high a price to pay. We have an opportunity today
to pass a prescription drug benefit that will truly help the seniors
and the disabled, an opportunity to stand up for millions of workers
across America who expect us to be sensitive to their needs. In my
experience in life, years ago, I had one of those assembly line jobs. I
saw injuries in the workplace. I saw people taken out of the workplace,
down to the doctors office, and off the job for weeks at a time for
injuries.
Perhaps there are some in the Chamber who have never seen that. But
it is a memory that will be with you for a lifetime. Those workers--men
and women--and their families expect us to stand up for safety in the
workplace. That is our obligation. The response from the Republican
side is, let's postpone this at least another year, and in another year
there will be another 600,000 injured American workers. That is
unacceptable.
The vote we will cast on these two issues really defines the values
of our parties.
Mr. ROTH. Mr. President, I yield 5 minutes to the Senator from
Louisiana.
The PRESIDING OFFICER. The Senator from Louisiana is recognized.
Mr. BREAUX. Thank you, Mr. President. I thank the chairman of Finance
Committee for yielding me time to make a couple of brief comments on
the issue that is before the Senate.
Let me suggest, first of all, that the issue in the Congress is not
whether or not this Congress should be for providing prescription drugs
under the Medicare program to seniors. There is no difference in that.
I don't know of any Member of Congress to whom I have talked--either in
the House or in the Senate--who is opposed to saying to the Nation's 39
million Medicare beneficiaries that they should be covered for
prescription drugs. That is a given. The question is not whether they
should be covered; the question is, How are we going to do it?
I suggest that this is a baby who is not ready yet to be born. What
do I mean by that? What I mean is that we are taking 30 minutes to
debate an attempt to pass a prescription drug proposal on which a
national Medicare bipartisan commission spent a year and a half
working. We are, in 30 minutes, trying to pass a bill which has never
come through the appropriate committee of jurisdiction--the Finance
Committee.
We have had 14 days of bipartisan hearings on this issue. This
afternoon, in a bipartisan fashion in the Senate Finance Committee
meeting room, we sat and discussed this same issue--this identical
issue--on how to construct a Medicare prescription drug plan that can
work. We met additionally another time this week on the same subject.
It is not the proper process to yank that work product out of the
responsible committee and say we are going to have 15 minutes on this
side to debate a new entitlement program being added to a Medicare
program which is in danger of default. It is in danger of going
bankrupt. And yet we are going to add a new entitlement program with 15
minutes of debate on this side, and 15 minutes of debate on that side,
and say we have done what is right and proper for the Medicare
beneficiaries of this country? I suggest that is not the right way to
do it.
I commend Senator Chuck Robb, who is a member of our Finance
Committee, and Senator Bob Graham, who has spent a great deal of time
crafting this amendment. This may be the right way to go, but it is not
yet ready to get there. We need more analysis. We need to consider if
you can do it through an insurance program.
Finally, I think it is incredibly important that, whatever we do, we
do not just add an entitlement program without doing some real basic
reform to the Medicare program.
We have a Medicare+Choice Program under Medicare right now. Does
anyone in this body think it is working correctly? It is being
micromanaged by HCFA with 4,000 employees, and it is a disaster. We
should not be looking backward and doing things the old way. We are
moving into the 21st century. We should not be acting as if it is the
19th century. We should be crafting new ways of solving these problems,
and not going back to policies that have failed.
Medicare was a wonderful program in 1965. But it is frozen in the
1990s. The challenge we have is not to debate a political issue, but to
come together to find a way to solve the problem.
There are interesting ideas that are being discussed by the Senator
from Florida, by the Senator from Virginia,
[[Page S5640]]
by myself, and others on the Democratic side, working with Members on
the Republican side to come up with something that is creative. Are we
not capable of thinking outside of the old style box of just adding
another entitlement program to the Medicare program without reforming
anything? I suggest we should not make that mistake.
If we want to put ourselves on the Record on prescription drugs, why
not pass a Senate concurrent resolution that says, yes, we all think it
is important that prescription drugs today are as important as a
hospital bed was in the 1960s, and have a resolution that says that and
says we are going to work in a bipartisan fashion to work out an
agreement instead of debating an issue. I suggest that what we have is
a very narrow opportunity to do that.
We are not going to be able to reform the whole program in the 30
days left in this session in a Presidential election year. That is not
going to happen. But if we do prescription drugs, should we not do some
reform attached to it? I think the suggestion and the answer is
absolutely yes. Let the Finance Committee do our work, and bring
something to the floor that is doable and passable. I suggest it is the
right way to proceed.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I yield 2 minutes to the Senator from
Tennessee.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. FRIST. Mr. President, I will be very brief. I just want to make a
couple of points.
No. 1, prescription drugs, I believe--I say this not only as a
Senator but also as a physician who has personally taken care of
thousands and thousands of Medicare patients--that prescription drugs
absolutely must be a part of our Medicare program and system if we are
going to really provide health care security for our seniors.
The challenge we have is that, indeed, prescription drugs replace the
surgeon's knife--which I have used my entire adult life--and replace
the hospital bed, which are important dynamics of health care.
But the real challenge we have is including that new additional
benefit--which, traditionally, over the last several years has been 17
to 18 percent a year--into a rigid, inflexible, outdated Medicare
program that we have not been able to reform.
The challenge before this Congress is to very thoughtfully
incorporate prescription drugs coupled with true Medicare reform, to
bring it up to date, to modernize it in a way that we can truly
guarantee health care security to our seniors.
This particular amendment has not gone through the committee process.
I can tell you that I for one, having spent the last 7 hours working on
health care in an adjacent room off this Chamber, have never seen this
particular amendment nor had the opportunity to read this particular
amendment. So I absolutely am going to oppose this particular
amendment, which is brought to the floor outside of the committee
process and outside of my having had the opportunity even to read the
amendment.
I have been working on prescription drugs with my colleagues in a
bipartisan fashion for the last 2 years. I was on the national
bipartisan Medicare commission, where we talked about prescription
drugs. There are other proposals being debated in the House.
We have not had the opportunity to see this particular amendment. It
has not gone through committee. It should not be introduced tonight, I
believe, and hopefully it will be defeated tonight.
Mr. ROBB. Mr. President, I yield myself 30 seconds, and then I will
yield to the Senator from West Virginia.
I remind my good friends on the other side of the aisle that this
bill was read in its entirety earlier today, and it has been available
for several days. But it has been debated for a very long period of
time, and the concept has been debated at length and discussed at
length.
There was an attempt to put together a prescription drug bill in the
House. The Health Insurance Association of America has stated many
times that the particular proposal from the House simply will not work.
At this time, I yield 2 minutes to the distinguished Senator from
West Virginia, Mr. Rockefeller.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. I thank the Presiding Officer and the Senator from
Virginia.
This is really a moral issue, and the question is, Are we going to do
it? We keep putting it off. We keep talking about it. We keep saying,
let's have a commission, let's do a resolution, let's study it some
more, let's make the process work perfectly.
I spent most of the afternoon in the Finance Committee trying to work
out a resolution on this. Frankly, at the end, there was some hope. But
there was also some discussion about what happens if we don't get to
vote on prescription drugs. There was a discussion of that.
I don't want to see that happen. This will probably be our only vote
on prescription drugs in this entire session. It is a bipartisan bill.
I have made some compromises. Others have made compromises. It is a
solid bill. It is probably the only vote we will have on it.
It is a moral issue, not a political issue, a moral issue that
seniors don't have prescription drugs under Medicare. They ought to.
John Breaux is right: Prescription drugs are like a bed in a hospital
in 1965; now we are going to modernize it, it is available for all.
It is an amendment we should pass. It is a moral, not a political,
issue. This will probably be the only vote on prescription drugs we
will have in this session of the Senate.
Mr. ENZI. Mr. President, I yield 5 minutes to the Senator from
Arkansas.
Mr. HUTCHINSON. Mr. President, I rise to support the Enzi amendment
and to oppose the ergonomics rule that has been proposed by the
Department of Labor. This is the rule: hundreds of pages long.
Senator Durbin said a few minutes ago this vote will be about values.
I will accept that challenge. It is demagoguery to say because we
oppose this rule we are not for safety in the workplace. I don't think
anybody sincerely believes that on the other side. I am for a safe and
healthy workplace. If we want to talk about values, I hope Members will
read this and realize what we are imposing on the businesses on this
country. There are going to be workers who lose their jobs because of
this rule. There will be small businesses that are going to go bankrupt
because of this rule, if it is not stopped.
My colleagues, I am opposed to the ergonomics rules for three
reasons: It is based upon uncertain science, at best. This body funded
almost a $1 million study by the National Academy of Sciences, which is
not yet complete. Why do we fund a study by the NAS and then allow OSHA
to move forward with the rule before we have the scientific basis for
the rule? The Enzi amendment simply says let's hold off and wait until
the science is in.
CRS says there is great uncertainty about what OSHA has proposed. Not
only is there uncertain science, there is uncertain cost. While OSHA
says it is a $4 billion cost, the Small Business Administration says
the cost will be 15 times what OSHA says it will be. I am inclined to
believe the estimates of the Small Business Administration. Private
groups believe the cost will be many times beyond that. But we know
that it will be very expensive. There is uncertain cost involved.
Third, I oppose this rule because of its uncertain impact. It is 600
pages with many unintended consequences. Many times we allow things to
go on in these agencies in which there are unintended consequences, but
we know that the OSH Act says that OSHA is not to impact workers
compensation laws in the States. This will most assuredly do that.
As Senator Enzi has rightly pointed out, it is going to negatively
impact Medicare, health care dependent upon capped Federal
reimbursement. They will have to absorb the costs of the ergonomics
with no way to recapture those costs.
We also know that OSHA has proudly said they have already used their
general duty clause with over 500 citations on ergonomics. They are not
helpless to protect workers in the workplace now. We should not allow
them to move forward with an ill-advised rule.
The issue is not safety. The issue is not OSHA doing their job. The
issue is
[[Page S5641]]
whether we will do our job and whether we will stop an agency that is
unresponsive, arrogant, and out of control. I urge my colleagues to
support the Enzi amendment.
I retain the remainder of the 5 minutes.
Mr. ROBB. Mr. President, I yield 1 minute to the distinguished
Senator from Iowa, Mr. Harkin.
Mr. HARKIN. Mr. President, in my State of Iowa, Sioux City, seniors
regularly take bus trips to Mexico to get their drugs. Drugs that cost
$68 in Sioux City are $7 in Mexico. Seniors in Waterloo, IA, are being
bussed to Canada to buy their drugs. Seniors in Cedar Rapids, IA, are
being forced to declare bankruptcy because they have run up their
credit care debt so high just to pay for the drugs they need. Mr.
President, $5,000 to $6,000 a year is being paid out of pocket by
seniors who cannot afford it and are being forced into bankruptcy.
We are told this is not the time to do this, that we have to wait
longer, that this baby is not ready to be born. The elderly have waited
long enough, and they have been gouged deep enough, too deep, to pay
for their prescription drugs. Now is the time to stand up for the
seniors in our country and to vote aye on the Robb motion.
Mr. KENNEDY. I yield 4 minutes to the Senator from Minnesota.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. WELLSTONE. Mr. President, I ask unanimous consent to have
documents printed in the Record to respond to some of the accusations
regarding the Labor Department.
There being no objection, the material was ordered to be printed in
the Record, as follows:
OSHA's Use of Contractors During the Rulemaking Process: Expert
Witnesses and Consultant Services
OSHA's use of expert witnesses and consultants is
authorized by Congress, approved by the Courts, affirmed by
the General Accounting Office, and consistent with OSHA's
past practice for over two decades, as well as that of other
agencies.
1. OSHA's Use of Expert Witnesses and Consultants is
Expressly Authorized by Congress.
In 1970, Congress passed, and President Nixon signed into
law, the Occupational Safety and Health Act (``OSH Act'' or
``The Act'') which expressly authorized OSHA to hire experts
and consultants and to compensate them for their service. See
29 U.S.C. sec. 651 et seq. Specifically, Section 7(c)(2) of
the Act, 29 U.S.C. sec. 656(c)(2) states:
``In carrying out his responsibilities under this Act, the
Secretary is authorized to--(2) employ experts and
consultants or organizations thereof as authorized by Section
3109 of Title 5, United States Code, except that contracts
for such employment may be renewed annually; compensate
individuals so employed at rates not in excess of the rate
specified at the time of service for grade GS-18 under
section 5332 of Title 5, United States Code including travel
time . . .'' (emphasis added).
In addition to the Secretary's specific statutory
authorization to hire experts for purposes of administering
the OSH Act, Congress authorized the Department of Labor to
employ consultants through procurement contracts in the
Labor/HHS Appropriations bill (Pub. L. 102-394; 106 Stat.
1792, 1825).
2. OSHA's Use of Expert Witnesses and Consultants Has Been
Affirmed by the Courts.
In 1980, the Lead industry made virtually the same
challenge to OSHA's use of expert witnesses and consultants
in a rulemaking that the opponents of the ergonomics rule are
making now. See United Steelworkers of America et al. v.
Marshall, 647 F.2d 1189 (D.C. Cir. 1980). In reviewing
this challenge, the U.S. Circuit Court of Appeals for the
District of Columbia recognized that OSHA is empowered to
employ experts as part of the rulemaking process. The
Court concluded that OSHA properly used its contracted
experts and consultants for the following tasks: writing
the preamble, on-the-record reports, testimony and
posthearing reports. The Court stated that ``The OSHA Act
empowers the agency to employ expert consultants . . . and
OSHA might have possessed that power even without express
statutory authority . . .'' Id. at 1217.
The Court found no problems with OSHA's contracting for the
services of experts and consultants in the rulemaking
process. Id. In fact, the Court stated that ``we generally
see no reason to force agencies to hire enormous regular
staffs versed in all conceivable technological issues, rather
than use their appropriations to hire specific consultants
for specific problems.'' Id.
In fact, the Court praised agencies' use of experts and
consultants as proof that the agencies have taken their
statutory missions seriously. Id.
3. OSHA's Use of Expert Witnesses and Consultants is
Authorized by the Federal Acquisition Regulations.
The Federal Acquisition Regulation (``FAR''), Office of
Management and Budget Circular No. A-76 and the Federal
Activities Inventory Reform Act also authorize agencies to
contract for certain functions, including:
``Services that involve or relate to analysis, feasibility
studies, and strategy options to be used by agency personnel
in developing policy;
``Services which involve or relate to development of
regulations; and
``Contractors providing legal advice and interpretation of
regulations and statutes to federal officials.''
OFFP Policy Letter 92-1, Appendix B numbers 3, 4, and 18;
see FAR sec. 7.503(d)(4).
4. Experts on OSHA's Rulemaking Processes Recognize OSHA's
Use of Expert Witnesses and Consultants in Rulemakings.
It is traditional practice for OSHA to hire expert
witnesses to testify at its rulemaking hearings. Both of the
principal treatises on OSHA law, OSHA, History, Law and
Policy, by Benjamin W. Mintz, and Occupational Safety and
Health Law, edited by Stephen A. Bokat and Horace A. Thompson
III for the American Bar Association, refer to this practice,
which goes back at least to 1980, when OSHA arranged for 46
well-known experts to testify on behalf of OSHA's
Carcinogens Policy.
ABA's ``Guide to Federal Agency Rulemaking'' addresses the
use of expert witnesses in OSHA rulemakings, and describes
the use of consultants as ``summarizing and evaluating data
in the record, and helping draft portions of the final rule
and its rationale.'' (Page 243)
5. The General Accounting Office Reviewed OSHA's Use of
Expert Witnesses and Contractors in an Earlier Rulemaking.
In 1989, at the request of a House Subcommittee, GAO
examined OSHA's use of contractors and expert witnesses and
found that OSHA had used ``over 35 expert witnesses'' in the
years 1986-1988, paying them generally ``$10,000 or less,''
and using them to testify during OSHA public hearings on
proposed standards and rules. The report said OSHA used its
contractors to assist in developing final rules and that they
contributed to 36 different rules over three years.
6. OSHA has Historically Used Experts to Testify at Public
Hearings About Parts of Proposed Rules Which Fall Within
Their Areas of Expertise.
Among the other OSHA hearings at which experts have been
used by are: Lead (1980); Hazard Communications (1983);
Ethylene Oxide (1984); a revised asbestos standard (1986);
Benzene (1987); and Methylene Chloride (1977).
The number of OSHA experts has varied from as few as one in
the Excavation in Construction standard to 46 experts in the
Carcinogens Policy hearing. Twenty-eight experts will have
testified on OSHA's behalf at the conclusion of the
ergonomics hearings.
7. Other Federal Agencies Use Expert Witnesses and
Consultants in Ways Similar to OSHA.
EPA, FDA, and DOT make extensive use of consultants in
their rulemaking activities, though they do not have hybrid
hearings like OSHA's, in which OSHA permits the public to
cross-examine their witnesses. EPA's use of consultants has
been challenged and upheld by the courts, BASF Wyandotte v.
Costle, 598 F2d 637 (1st Cir 1979); Weyerhauser v. Costle,
590 F3d 1011 (DC Cir 1978). In the BASF Wyndotte case, the
Court found no fault in EPA's use of a private contractor
which ``invested 16,500 man hours'' in a rule making process.
OSHA's rulemaking process is more open than other agencies
because the public can cross examine OSHA's expert witnesses
in public hearings. Most other agencies engage experts to
submit written testimony on a rule, but these experts do
not participate in public hearings and are not available
for cross examination as OSHA's expert witnesses are.
8. OSHA's Use of Expert Witnesses and Consultants Was
Disclosed to the Public and Was Clearly Known to Parties Who
Cross-Examined OSHA's Experts at Public Hearings.
All of OSHA's expert witnesses appeared on a witness list
provided by OSHA under the heading ``OSHA Witnesses.''
It is clear that the parties who cross-examined OSHA's
experts in the ergonomics hearings were aware that OSHA's
experts were paid consultants.
When Mr. Sparlin questioned OSHA expert Mr. Oxenburgh, he
referenced the ``Expert Witness Contract for Dr. Maurice
Oxenburgh.'' (pp. 2637-39).
When Ms. Holmes of Jones, Day, Reavis and Pogue made a
statement regarding her ability to cross-examine OSHA's panel
of experts, she referred to OSHA's ``obviously having
commissioned written testimony from all these individuals.''
(p. 1440).
In questioning Dr. Beale, one of OSHA's attorneys, Ann
Rosenthal, clarified for the public record that Dr. Beale was
hired as an economist, not as an enforcement expert. (p.
2524). Dr. Beale's own written testimony stated that his
``clients in this regulatory work have included OSHA, MSHA,
EPA, SBA, the FAA, the Department of Energy, and the IRS.''
(Ex. 37-22).
All of this material is part of the public docket and is
available on OSHA's webpage.
9. OSHA's Expert Witnesses Have No Financial Conflict of
Interest in the Outcome of the Ergonomics Rulemaking.
Conflict of interest laws and regulations apply only to
employees of the federal government. In some instances,
agencies hire
[[Page S5642]]
consultants as ``Special Government Employees'' who are
subject to certain provisions of the conflict of interest
laws. However, the consultants hired by OSHA for the
ergonomics standard were contractors and did not have federal
employee status while providing their services. As such, they
do not come within the coverage of the conflict of interest
laws or regulations.
access to document
1. OSHA recognizes the importance of Members of Congress
understanding the rulemaking process. That is why we work so
hard to provide information to Members of Congress as
expeditiously as possible. For example, in response to a
request from the House Government Reform Committee dated May
10, 2000, OSHA promptly provided a list of contractors who
worked on the current ergonomics rulemaking.
2. Once the House Committee expressed an interest in
reviewing other documents, OSHA worked with the House to
provide them with full and complete access to the documents
on a timely basis. The House Committee agreed to treat these
documents the same way OSHA does, and in a manner that
protects the integrity of an ongoing rulemaking.
3. Senator Enzi made his first request for information only
nine days ago (June 13, 2000). Immediaately following his
request, OSHA Assistant Secretary Jeffress talked with
Senator Enzi twice about his request for documents.
Department of Labor staff and Senator Enzi's staff also
talked to figure out how to most expeditiously respond to his
request and at the same time protect the integrity of an open
and ongoing rulemaking by treating the documents exactly the
same way that the House had already agreed to treat them.
4. Senator Enzi claimed that OSHA failed to provide him
with any information, but just three days after his original
request, on June 16, 2000, OSHA responded to Senator Enzi's
request and produced two boxes full of documents.
5. OSHA offered to meet with Senator Enzi and offered
repeatedly to brief Senator Enzi about OSHA's use of expert
witnesses in rulemakings.
6. On Tuesday, June 20, 2000, Senator Enzi's staff
requested, for the first time, access to the materials
provided to the House Committee. Under the terms of OSHA's
agreement with the House Committee, Senator Enzi always had
access to the documents he requested to see.
7. In order to accommodate the Senator's desire to review
the documents in his office, OSHA offered to photocopy a
complete set of the same documents provided to the House
Committee immediately. Senator Enzi's staff refused this
request because they were unwilling to agree to treat the
materials they had requested in the exact same way that the
House Committee had already agreed to treat the documents--in
a way that protects an open, public rulemaking process as
authorized by Congress.
Mr. WELLSTONE. Mr. President, one problem with this debate is some of
my colleagues come to the floor and make these points. Frankly, there
does need to be a response.
My good friend from Arkansas says that what will happen with this
OSHA rule, dealing with repetitive stress injury, is it will do severe
damage to workers comp laws in our States.
There are some 12 attorneys general who have said in no way--
including one who testified in our subcommittee--will that happen,
including the attorney general from Arkansas who has said this will not
impact workers compensation laws.
Then my colleagues say, this is a rush, they are rushing to
promulgate a rule. It was Elizabeth Dole who, as Secretary of Labor,
first pointed out that we needed to have an ergonomics rule because of
the injuries taking place. My colleagues believe that this is a rush,
though we have 600,000 workers every year who are severely injured.
I say to Senators, it is surprising to me when there is so much pain,
when so many workers are injured, when they can no longer work, when
they cannot sleep at night, when it has damaged families, when so many
of the workers are women, that my colleagues don't want OSHA to do its
job. The mission of OSHA is to protect workers. I am proud of the fact
that OSHA is trying to promulgate this rule. I view this amendment as
being nothing but blatant, political interference against this agency
doing exactly the job it ought to do.
The same Senators who say OSHA is rushing after 10 years to
promulgate a rule to protect workers, to have a safer workplace, they
also believe we are rushing tonight to provide prescription drug
benefits for senior citizens. Where have Senators been? On another
planet? In Minnesota, 65 percent of senior citizens have no
prescription drug coverage. It is an important issue to their lives,
their children, and their grandchildren.
Do I need to come to the floor and tell Members about people who are
paying 50 or 60 percent of their monthly budget because of prescription
drug costs? And then Members come on the floor and say: It is not time;
we are rushing; we better not support this legislation.
I don't know when Members think the time will come. I think the time
has come. I think Democrats think the time has come. I agree with my
colleague, Senator Durbin, this is a values debate. This is about where
we stand. As a Senator from Minnesota, I stand with working people. I
stand for a safer workplace. And I certainly stand for trying to help
senior citizens meet prescription drug costs so they are able to get
the prescription drugs that are so essential for their health. I need
not say anything else.
I yield the floor.
Mr. ENZI. Mr. President, I yield 1 minute to the Senator from New
Hampshire.
The PRESIDING OFFICER. The Senator from New Hampshire, Mr. Smith.
Mr. SMITH of New Hampshire. I rise in support of the Enzi amendment.
Senator Enzi's amendment would delay the costliest mandate ever
imposed on small businesses.
The Occupational Safety and Health Administration, OSHA, has
published a rule that is the broadest and most expensive rule ever, let
me say that again, ever proposed by OSHA. There needs to be more study
of this rule before it is implemented.
Ergonomics is the science of fitting the job to the worker.
The OSHA proposed ergonomics rule would require employers to
eliminate or materially reduce hazards in the workplace that lead to
injuries such as carpal tunnel, tendinitis, and back injuries.
OSHA's cost estimate is $4.2 billion a year. Clinton administration's
own Small Business Administration reports that the true cost would be
$40-$60 billion a year--at least 10 times OSHA's estimate.
The Heritage Foundation estimates that the cost would be $5.7 billion
to $10.8 billion per year without adding in the cost to state and local
governments, and $6.6 billion to $12.5 billion per year if public-
sector workers are included. Private industry estimates the bill's cost
would be even higher.
OSHA expects that the proposed rule will significantly increase the
number of requests for state compliance assistance and consultation
services. That means this regulation will cost even more money.
The ergonomics rule probably would expand state workers' compensation
systems, increasing claims and fraud.
This is yet again, an unfunded mandate on the states. Yet the OSHA
has a limited public comment period that does not take into
consideration the huge cost to business and the probable stress to the
unprecedented economic growth that the U.S. is currently experiencing.
I urge your support for Senator Enzi's amendment, so that OSHA can
reassess their proposed regulation that would burden the business
community with a costly regulation.
On the prescription drug plan, I oppose the Robb plan. In my hand is
a report, the actuarial report from Norman and Robinson, which says it
will cost seniors $40 per month, up to almost $500 a year, and cost
hundreds of billions of dollars to the taxpayers. That is the Robb
plan.
Senator Allard and I have a plan and we want to try to get the
attention of the Finance Committee. This plan has no premium increases
on seniors. It saves seniors $550 a year. It is budget neutral. It
covers 50 percent of the cost of drugs, up to $5,000.
Those are the two alternatives. This was done by King Associates. Guy
King was a former actuary at HCFA.
I think the distinction is clear. How did we help seniors by raising
premiums, when we don't have to raise premiums with this plan?
I hope my colleagues pay close attention to what Mr. King has said.
This plan is sound.
I yield the floor.
Mr. KENNEDY. How much time remains, Mr. President?
The PRESIDING OFFICER. The Senator from Massachusetts has 7 minutes,
the Senator from Delaware 3 minutes, and the Senator from Wyoming has 8
minutes.
Mr. KENNEDY. Mr. President, I yield myself 4 minutes.
[[Page S5643]]
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I will sum up where we are on these two
extremely important issues, one involving safety in the workplace.
The whole issue of ergonomics addresses the most important worker
safety issue in the workplace. Now we have an amendment of the Senator
from Wyoming, my dear friend, who wants to undermine what has been a
10-year review and a study about how we can provide protection for
workers in the workplace who are affected by ergonomics.
As has been pointed out, this whole issue was raised by Secretary
Dole in the Bush administration who called ergonomic injuries one of
the Nation's most debilitating across-the-board worker safety and
health issues. Since that time, there have been over 2,000 studies on
ergonomics carried out.
In 1997, NIOSH, the principal agency of Government that studies these
issues, reviewed 600 of the most important of these studies. They made
recommendations. In 1998, the National Academy of Sciences reviewed the
studies again and again, and they came to the same conclusion. The fact
is, the science is clear. The question is whether we will have the will
and the determination to take steps to protect our workers. We know
what needs to be done. The subject has been studied. Now we have the
chance to take a step to protect American workers.
These are the facts: 35 percent of the most harmful injuries in the
workplace are ergonomic injuries. That is what is happening today. More
than 600,000 workers are affected. When you look at who are
disproportionately harmed by ergonomic hazards, in lost time, 67
percent who lost working time from repetitive motion injuries were
women, and those who lost work time for carpal tunnel injuries were
women again, 77 percent. This is a woman's issue; this is a worker's
issue.
The science is overwhelming. The fact is, historically we have been
prepared to take actions to make the workplace safe. We had the great
development of our mining systems, and we passed mine safety
legislation. Now we need to pass legislation to protect American
workers in this area.
It has been studied, restudied, and studied again. Once again, we are
being asked to discard the various studies and reviews and put the
profits of the private sector ahead of the interests of the workers.
That is wrong. That is the issue: Are we going to stand for workers or
are we going to stand for the profits of the industries in this
country?
On the second issue, Medicare, I was there, like most of the Members
of the Senate, when the President of the United States, in his State of
the Union Address, asked the Congress of the United States to pass a
prescription drug program based upon Medicare that would deal with the
incredible hardship of so many of our seniors.
I was also here in 1964 and 1965 when the Senate eventually passed
the Medicare program. This issue was discussed during that period of
time: Were we going to pass a prescription drug program. The judgment
at that time was: Let's pass in Medicare what they are doing in the
private sector. A great majority of the private sector, over 90
percent, did not include a prescription drug program, so we did not
pass one in the Medicare program. At that time, less than 3 percent of
every dollar expended was used for prescription drugs.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. KENNEDY. I yield myself 2 more minutes.
Now it is 20 to 30 percent, as the Senator from Florida has pointed
out. We now know this is absolutely an essential need for our seniors.
How much more does it have to be studied?
With all due respect to the Finance Committee, they had a whole set
of hearings last year. We did not have any legislation reported out
from the Finance Committee. We have not had any legislation reported in
the final weeks of this Congress. We have no commitment that the
chairman of the Finance Committee or the Finance Committee members will
say: We will have a prescription drug bill on the floor of the Senate
for you in July--absolutely not.
We have a well-thought-out program that can make the difference for
our senior citizens. When Medicare was passed, it was a fundamental
commitment by the Federal Government to senior citizens: Work hard,
play by the rules, and your health care needs will be attended to. That
was the commitment in 1964 and 1965.
Every day we fail to pass a prescription drug benefit, we are
violating that commitment. Every single day, we find our seniors are in
pain and agony and suffering irreparable damage, in many cases because
they cannot afford a prescription drug program. That is a fact. That
promise is being broken every day because Medicare does not cover
prescription drugs. This is wrong. This is fundamentally wrong. Every
Member of the Senate knows it in their hearts. Every family in America
knows it is wrong. Certainly, every senior citizen knows it is wrong.
We have a chance to do something right. We have a chance to put the
health care of our senior citizens ahead of the profits of the private
special interests.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. KENNEDY. I yield myself 1 more minute.
That is what this vote is all about. For whom are we going to stand?
This is the vote on prescription drugs. This is a program that is tied
to the Medicare system. Our elderly people understand Medicare. They
believe in Medicare. They know the need for prescription drugs. It is
as simple and fundamental as that. It is comprehensive, it is all
inclusive, it is affordable, and it will meet the needs of our senior
citizens.
That is the vote we are going to have in the Senate, and we should
meet our commitments to our senior citizens. We know what their needs
are. We should meet them. We have that opportunity tonight. Let us not
fail them.
I withhold the remainder of my time.
Mr. ENZI. Mr. President, I yield 3 minutes to the Senator from
Oklahoma.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Mr. President, I congratulate and compliment my friend
and colleague from Wyoming, as well as the Senator from Arkansas, Mr.
Hutchinson, because they have offered an amendment that is one of the
most important amendments we are going to vote on this year. The
Clinton administration is trying to push forward an ergonomics rule
that will have a draconian, negative impact on every single business in
America.
I want all my colleagues to know if this amendment is not adopted, if
this ergonomics rule goes forward, there will be significant costs.
Employers will be coming up to you asking: Why did you do this to me? I
have some bureaucrat coming in and telling me how to run my business.
I have a quote given by the individual who wrote these regs. She
said:
I love it; I absolutely love it. I was born to regulate. I
don't know why, but that's very true. So as long as I am
regulating, I'm happy.
And she came up with the largest regulation in OSHA's history on
business. The Small Business Administration estimated it will cost $60
billion a year, 15 times the cost that OSHA said. People in the private
sector said it will cost over $100 billion a year. And the
administration wants this to go forward right after the election, right
before we have a change of administration.
Senator Kennedy said this has been studied. Congress passed, in 1998,
$890,000 for a study by the National Academy of Sciences. They are
going to complete that study in January. We should let them do it. We
should base this regulation on science, real science, not on a
political agenda. They want to cram through an extensive regulation
where bureaucrats are telling employees how to run their business, and
to do that right before the election, before the next administration,
will be a serious mistake.
We need to stop it, and the way to stop it is to adopt the Enzi
amendment. I say to my colleagues, this is probably the most important
free-enterprise, private-sector initiative you'll vote on this year: If
this year you believe business should be making decisions, support the
amendment.
I urge my colleagues to vote in favor of the Enzi amendment.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. I yield myself 3 minutes.
[[Page S5644]]
The other side today has spent most of the day avoiding the
ergonomics debate. Part of the debate was on the floods in North
Dakota. That is because they do not have an answer to what we have been
saying all day. We, too, are concerned about worker safety. We have
been doing things for worker safety. Companies in this country have
been doing things for worker safety. In fact, I appreciate the ranking
member of my subcommittee mentioning today a couple of companies in his
State that have made tremendous strides in worker safety, including
ergonomics.
I am so pleased to report that according to the Bureau of Labor
Statistics, last year there was a 24-percent decrease in ergonomics
accidents. Companies are doing something. They are doing what they can
think of.
If the same $1.8 million that has been spent on getting testimony for
this rule had been used and focused particularly on small business to
make sure they had the information to make the ergonomics changes in
their work site, we would have even more workplace safety.
But, no, we have been paying contractors to testify. Has the
Department disclosed that? No. They think these people have been
volunteering their time, just like everybody else. Not only that, they
edited their text for them. They had mock sessions so these experts
could do it correctly. Then they paid them to rip the opposition. That
is not testimony. That is the expertise that we ought to have in the
workers comp department.
This will have a drastic effect on Medicare and Medicaid. We place
limits on what we pay on Medicare. We are not raising those caps
through the rule. So we will force people to violate some of the
Medicare and some of the nursing statutes that we already have.
Then the work restriction protection--my goodness, we want the United
States to get into a workers comp program? Ask your States how much of
a problem they are having administering workers comp, and see if you
think that OSHA can do the job. See if you think they can.
Incidentally, it was mentioned that there was testimony in our
committee in that there was no opposition from the States. I presented
a letter. I ask unanimous consent the letter be printed in the Record.
It is from the State of New York Department of Labor, saying they were
opposed to it.
I also ask permission that a similar letter from the State of
Pennsylvania, be placed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
State of New York,
Department of Labor,
Albany, NY, March 1, 2000.
OSHA Docket Office,
Docket No. S-777, Department of Labor, Washington, DC.
To whom it may concern:
Enclosed please find comments from the New York State
Department of Labor concerning the proposed Ergonomics
Standard, 29 CFR Part 1910, published Tuesday, November 23,
1999, in Federal Register, Volume 64, Number 225, at page
65768.
Sincerely,
Connie J. Varcasia.
Enclosure.
This constitutes comments by the New York State Department
of Labor (NYSDOL) regarding the proposed Ergonomics Standard
29 CFR Part 1910.
1. We note for the record that OSHA, in the Federal
Register notice dated November 23, 1999, (hereinafter
referred to as notice), at page 66,054, IX, states, ``In
addition, the agency has preliminarily concluded, based on a
review of the rulemaking record to date, that few, if any, of
the affected employers are state, local and tribal
governments.'' Aside from the issue of how OSHA arrived at
this conclusion, we agree with the statement. Therefore, we
do not expect that the public sector programs of State Plan
states' will be required to adopt the proposed standard.
2. If, however, OSHA intends to require adoption of this
standard by State Plan public sector programs, we object. We
object to the standard because OSHA excluded small public
sector jurisdictions (small entities under the Small Business
Regulatory Enforcement Fairness Act, hereinafter ``SBREFA'')
from the SBREFA process and panel during the course of
preparing this rulemaking.
3. OSHA's proposal may not be a ``standard'' as defined by
the statute. It does not describe means, methods or practices
reasonably necessary or appropriate to control occupational
safety and health hazards. It is not a ``standard'' about
workplace hazards; rather, it proposes to impose a particular
management approach on employers.
4. OSHA has estimated the cost of initial compliance with
this standard at $4.2 billion (OSHA's original estimate was
$3.5 billion). Private sector businesses and trade
associations have estimated this cost as high as $26 billion
and the United States Small Business Administration (SBA) has
estimated the same cost at more than $18 billion. A copy of
the SBA report is annexed hereto and made a part hereof.
Given these disparity of costs, there is not consensus as
to the costs of compliance with this proposed standard. It
appears that a proper and accurate cost-benefit analysis has
not been done, and that OSHA should, at a minimum, address
the conclusion of the SBA regarding the cost of this
proposal.
5. This rulemaking is completely devoid of any mention of
the amount of funding that could be appropriated to State
Plans for its enforcement. OSHA has not discussed the issue
of funding this standard with State Plans in any other forum.
Of particular concern are the following:
(a) Depending on which ergonomist one believes, ergonomics
affects 30%, 40% or 50% of the jobs in America. As a
regulatory agency, the NYSDOL can expect at least a
30% increase in the number of legitimate complaints (as
well as countless unsubstantiated complaints) because of
the new standard. Based on sheer numbers, caseload and
volume, our public sector State Plan will require an
increase in the amount of funding to respond to
complaints.
(b) Ergonomics is a precise science where incorrect advice
can do more damage than no advice at all. New York State does
not currently have staff with ergonomics expertise, and we
have serious concerns with its lack of availability. No
mention is made in this rulemaking of how much money OSHA
will provide for staff training in this field. Note that a
two-week training session on ergonomics is not sufficient to
provide the professional level of service which the regulated
community will demand. The number of professionally
accredited ergonomists in the United States is wholly
inadequate to meet the demand that will be engendered by
adoption of this standard throughout the United States (see
attached article).
(c) The proposed standard is unfair to public sector
employers because some of the more frequently utilized
abatement measures are not available to them. The public
sector workplace is nearly 100% unionized in New York State.
It is governed by civil service rules and collective
bargaining agreements that describe in detail job tasks to be
performed. Accordingly, redesigning a job for one person to
include varied tasks not contained within the general job
description for that position is not permitted. A public
employer cannot change a job unilaterally; it must return to
the collective bargaining table for job redesign. Many states
have statutes such as our own Taylor Law, which expose an
employer to improper practice (unfair labor practice)
liability if it were to obey an order based upon the OSHA
proposed standard. The employer would also be subject to
grievance proceedings under the collective bargaining
agreement with the union involved, as changing individual job
requirements would constitute a breach of the contract.
(d) Another often recommended abatement measure is more
frequent rest breaks. Rest breaks, and the timing and
duration thereof, are also provided for in collective
bargaining agreements and civil service rules. Any public
employer altering such breaks unilaterally, without a return
to the bargaining table, would again be subject to the
sanctions of improper practice charges under the Taylor Law
and union grievance for breach of the collective bargaining
agreement. As such, these abatement measures are unavailable
to public sector employers. The proposed OSHA standard is an
infringement of rights granted under collective bargaining
agreements and laws to public sector employers and employees.
(e) Should a public sector employer attempt to implement
altered rest breaks or altered job tasks unilaterally in
order to comply a violation of the OSHA standard, the state
regulatory agency would be in the position of aiding and
abetting the infringement of workers' rights guaranteed under
the collective bargaining agreement and state statutes.
(f) Regarding the costs of implementing the standard for
small public sector entities, the proposed standard would
place a tremendous burden on the public sector employer. If
one assumes that this will increase costs to public
employers, the only way to pay for this will be to increase
the taxes of the citizens in its jurisdiction. Public sector
small entities include town, village and small city
governments, as well as fire districts, volunteer fire
departments, school districts, water districts, and many
others that would not be able to sustain the cost of this
proposed standard without increased taxation.
6. The proposed standard does not provide adequate notice
to the affected employers or employees. A by-product of this
uncertainty is likely to be increased litigation. Many terms
are undefined or vague: ``management leadership,'' ``employee
participation,'' ``relevant,'' ``become involved,''
``effective means,'' ``reasonably likely,'' ``promptly,''
``likely to cause,'' ``likely to contribute,'' ``similar
jobs,'' ``minimize,'' ``try,'' ``feasible,'' ``medical
management,'' ``periodically as needed,'' ``recovery
period,'' ``closely associated,'' ``adequate,'' ``excessive
vibration,'' ``recently,'' and ``prolonged'' are either
poorly defined or not defined at all. While OSHA offers
definitions of some of
[[Page S5645]]
these terms, many are vague and will need to be defined--a
task most likely to be accomplished by courts of competent
jurisdiction over the next quarter century.
7. We agree with former Acting Assistant Secretary and OSHA
Head, Greg Watchman, who said on November 30, 1999, that the
proposed ergonomic standard is too broad, triggered too
easily, and includes comprehensive requirements that may not
be necessary to address one or two signs or symptoms of
musculoskeletal disorders. We also agree with his statement
that thousands or perhaps millions of employers would be
required to implement programs regardless of whether workers
are at risk.
8. We agree with the Small Business Administration that
OSHA failed to fully examine other regulatory approaches,
such as using the On Site Consultation Program to educate
employers and the public as to precisely what ergonomics is
and how studying ergonomics can help individual employers and
their workforces.
9. We agree with the Women Constructors Forum's statement,
``Women-owned companies are the fastest growing sector of our
economy. What we need is information, not regulation. . . .
The nature of this standard could force businesses to
completely overhaul their safety and health practices and
devote more resources to paperwork and compliance.''
10. Attached and made a part of these comments are a number
of articles and studies marked exhibits 1 through 7. The New
York State Department of Labor requests that these be made a
part of our comments and asks that OSHA respond to the
concerns and questions addressed in them.
Commonwealth of Pennsylvania,
Department of Labor and Industry,
Harrisburg, PA, February 29, 2000.
Re Comments to the Proposed Ergonomic Standard.
OSHA Docket Office,
Docket No. S-777, Department of Labor, Washington, DC.
Dear Sir/Madam: Pursuant to the proposed rulemaking
published in the Federal Register on November 23, 1999, Vol.
64, No. 225, the Commonwealth of Pennsylvania submits the
attached comments in response to OSHA's ``Proposed Ergonomics
Standard.''
The proposed standard conflicts with section 4(b)(4) of the
OSHA Act, 29 U.S.C. Sec. 653(b)(4), in that it attempts to
supersede and preempt state workers' compensation laws where
the OSHA Act specifically prohibits such preemption.
Specifically, the proposed standard intrudes upon the states'
abilities to respond appropriately to issues of work-related
illness and injury, including those relating to
musculoskeletal disorders, heretofore addressed by each
state's workers' compensation laws. OSHA proposes to replace
these systems, which were custom tailored to the needs of the
individual states, with a broad, uniform system which at best
confuses and at worst conflicts with the various states'
workers' compensation programs. Despite OSHA's recognition of
its inability to regulate in areas of state workers'
compensation law, it has, in the proposed rulemaking, failed
to recognize that many issues addressed therein are, in fact,
within the province of the states' workers' compensation
systems, and are beyond the scope of OSHA's regulatory
authority.
We believe that Pennsylvania, as well as the other states,
will be negatively impacted by the standard which OSHA has
proposed. The attached comments articulate in further detail
the manner by which the proposed standard confuses issues
regarding the provision of health care to injured workers,
employers' abilities to adequately respond to workers'
compensation claims, the provision of workers' compensation
wage loss-benefits, the time for filing of workers'
compensation claims, and issues of causation and preexisting
conditions.
In light of the foregoing, we ask that you reconsider the
proposed rulemaking, as it poses substantial difficulties for
the citizens of the Commonwealth of Pennsylvania. Thank you
for your consideration of this matter.
Sincerely,
Johnny J. Butler.
Mr. ENZI. I have lots of letters from different groups that have
said: Don't do work restriction protection. That's workers comp, and
you're violating our right to do that.
The PRESIDING OFFICER. The Senator's 3 minutes have expired.
Mr. ENZI. I yield myself 1 additional minute.
Work restriction protection is prohibited by the OSHA Act. Very clear
wording in the OSHA Act says you cannot get into workers comp, but they
are going to with this rule they are trying to push through by
December. I do not know why December is so critical to them. Maybe I
do. They are trying to get this thing pushed through at all costs, and
without paying attention to what people are saying to them about things
that are wrong about the rule that they are doing.
We need a little time to take a look at the rule, particularly in
light of how well businesses are doing at fixing ergonomics.
Again, I encourage the Department to help people figure out ways they
can improve the safety. All we would be doing if we passed this rule is
we would be giving OSHA a bigger club to beat people up with, not an
answer to the ergonomics problem.
I reserve the remainder of my time.
The PRESIDING OFFICER. Under the previous agreement, the only time
left is controlled by the Senator from Delaware, who has 3 minutes, and
the Senator from Wyoming, who has 1 minute.
Mr. ROTH. I yield 3 minutes to the Senator from New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. First, I say to Senator Breaux, while I was not
physically present on the floor when you made your speech, I was
listening. I am very privileged and pleased to join you tonight in
suggesting that this is not a real vote on Medicare.
Most of the time--in the past--Senator Robb is a very realistic and
forthright Senator. But somehow or other we are getting close to an
election, and somebody has suggested to him that this is a way to get a
real Medicare vote. The truth of the matter is, everybody listening
should know this is not a real Medicare vote.
If anything, if we adopt this on an appropriations bill--that funds
all of the priorities of the other side of the aisle--if they want to
fund education, it is funded in this bill. If they want to fund
community centers to treat the people that are poor, they are funded in
this bill more than last year. But now they come along and ask us to
attach an amendment, a huge bill that we have never had a hearing on,
and we call it prescription drugs for America. We put it on with
education, community centers, all the health programs for our seniors,
and we say, just put it on there and tell the committee, that knows
nothing about Medicare because they are not expected to, to bring back
a comprehensive Medicare program on an appropriations bill. Then the
suggestion to the American senior citizens is, we are doing something
for you.
What we are doing is trying to force a vote before we have a bill.
This is not a bill that has been considered. It is not going to be
voted out by our bipartisan effort. A great bipartisan effort is taking
place.
If I were a member of the Finance Committee--be it Dr. Bill Frist or
the Senator from Texas or the distinguished Senators on that side
working on it--I would be ashamed today to say: I am going to vote to
usurp and take away all your power and vote in a so-called prescription
drug bill that a few of us have written up. And we are going to pass it
on an appropriations bill where that committee does not know anything
about prescription drugs.
They are sort of expected to robot out of here and robot back in with
a great prescription drug bill.
I submit that we should not vote for it. We should not use our
procedures and our processes in this perverted way.
I am going to ask five or six questions. They are not answered by
this legislation, and they are not answered here.
Let me first ask: How does this amendment affect the solvency of
Medicare? Nobody knows. What are the premiums for drug coverage? Nobody
knows. I don't know that anybody knows the official cost estimate of
this bill. But I know it is expensive. Don't you think we ought to know
those answers before we try to convince Americans that we are passing a
prescription drug bill which could not become law?
There are two more questions: Are there taxes in this proposal? If
there are, the bill goes nowhere.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. DOMENICI. I think we are going to do the right thing and deny
this effort to make an issue out of something that is not ready to have
an issue.
The PRESIDING OFFICER. The Senator from Wyoming has 1 minute.
Mr. ENZI. I yield the final minute to the Senator from Texas.
Mr. REID. How much time do you yield?
Mr. ENZI. One minute.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER. The Senator is recognized for 1 minute.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas has the floor.
[[Page S5646]]
Mr. GRAHAM. Point of personal privilege.
Mr. GRAMM. I do not want my 1 minute to start until I start talking.
If the Senator wants to talk, let him do it.
Mr. GRAHAM. I do not want to talk; I want to answer.
The Senator asked a series of questions, and I am prepared to answer
them.
The PRESIDING OFFICER. The Senator from Texas has the floor. The
Senator from Florida is not in order. The Senator from Texas has the
floor.
Mr. GRAMM. Mr. President, we have been meeting on a bipartisan basis
to try to put together a bill in the waning hours of this Congress that
will provide for prescription drug insurance for senior Americans. We
have been working in good faith.
This is a bad faith amendment. This is a politics-first amendment.
Nobody knows what it costs. Nobody knows how it will work. Nobody knows
what it does to the solvency of Medicare. This is politics at its
worst.
I think this body ought to be offended by it. I am offended by it. I
do not believe that voters are going to be impressed by circumventing
the process. This does not speed it up. This makes it harder for people
such as Senator Roth and Senator Breaux to bring us together to pass a
bill. This needs to be rejected by an overwhelming vote.
I urge those who really want a prescription drug benefit--label this
for what it is by voting no, and let's get on with trying to do this on
a bipartisan basis.
The PRESIDING OFFICER. The Senator's time has expired. All time has
expired.
Mr. ENZI. Mr. President, I ask unanimous consent to add Senators
Thurmond and Helms as cosponsors of my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote On Amendment No. 3593
Mr. ENZI. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The question is on agreeing to amendment No. 3593. The clerk will
call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from California (Mrs. Boxer)
and the Senator from Hawaii (Mr. Inouye) are necessarily absent.
The PRESIDING OFFICER (Mr. Ashcroft). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 57, nays 41, as follows:
[Rollcall Vote No. 143 Leg.]
YEAS--57
Abraham
Allard
Ashcroft
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Chafee, L.
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lincoln
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--41
Akaka
Baucus
Bayh
Biden
Bingaman
Bryan
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Specter
Torricelli
Wellstone
Wyden
NOT VOTING--2
Boxer
Inouye
The amendment (No. 3593) was agreed to.
Mr. BOND. Mr. President, I move to reconsider the vote, and I move to
lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. GRAHAM. Mr. President, I ask unanimous consent to have printed in
the Record answers to the questions that were asked during the debate
by the Senator from New Mexico.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Senator Bob Graham's Answers to Senator Domenici's Questions Concerning
the Robb Amendment, June 22, 2000
1. What is the score of this proposal?
Over 10 years the cost of this comprehensive package is
approximately $242 billion.
2. What impact will this benefit have on the solvency of
the Medicare program?
This program will not have a direct impact on the solvency
of the Medicare program. In fact, the inclusion of a
prescription drug benefit may lead to a decrease in hospital
stays and other costly outpatient care, which may result in
savings to the trust fund.
3. What will beneficiary premiums be?
In 2003, when the benefit begins, the beneficiary premiums
will be approximately $38.50 per month.
4. How will this program impact the taxpayer?
This program will have no direct implications on the
American taxpayer.
Mr. DOMENICI. Mr. President, I ask unanimous consent that I be
permitted to file for the Record CBO estimates as promptly as I can get
them.
The PRESIDING OFFICER. Without objection, it is so ordered.
Order of Procedure
Mr. LOTT. Mr. President, in a moment I believe we will be prepared to
begin the vote on the second amendment in this series. I have discussed
the schedule with Senator Daschle and the manager of the legislation.
This will be the last vote of the night. We will be in session
tomorrow.
We urge Senators who have amendments to offer them tonight--I
understand one is already prepared for tonight--and to be prepared to
be here and have amendments in the morning so that we can make
progress. We will plan on stacking those votes next week at a time to
be determined, and we will let the Members know sometime tomorrow when
that will be. But this will be the last vote for tonight and for the
week.
I yield the floor.
Amendment No. 3598, As Modified
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Virginia.
Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second. The question is on agreeing to
amendment No. 3598, as modified. The clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Colorado (Mr. Campbell)
is necessarily absent.
Mr. REID. I announce that the Senator from California (Mrs. Boxer)
and the Senator from Hawaii (Mr. Inouye) are necessarily absent.
The result was announced--yeas 44, nays 53, as follows:
[Rollcall Vote No. 144 Leg.]
YEAS--44
Akaka
Baucus
Bayh
Biden
Bingaman
Bryan
Byrd
Chafee, L.
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Fitzgerald
Graham
Harkin
Hollings
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
NAYS--53
Abraham
Allard
Ashcroft
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NOT VOTING--3
Boxer
Campbell
Inouye
The amendment (No. 3598), as modified, was rejected.
Mr. ROBB. Mr. President, I move to reconsider the vote.
Mr. REID. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER (Mr. Craig). The Senator from Arizona.
[[Page S5647]]
Amendment No. 3610
(Purpose: To enhance the protection of children using the Internet)
Mr. McCAIN. Mr. President, I have an amendment at the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Arizona [Mr. McCain] proposes an amendment
numbered 3610.
Mr. McCAIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, the purpose of this amendment is to
protect America's children from exposure to obscene material, child
pornography, or other material deemed inappropriate for minors while
accessing Internet from a school or library receiving Federal universal
service assistance by requiring such schools and libraries to deploy
blocking or filtering technology on computers used by minors and to
block general access to obscene material and child pornography on all
computers. The amendment further requires that schools and libraries
block child pornography on all computers.
The last few years have seen a dramatic expansion in Internet
connection. The Internet connects more than 29 million host computers
in more than 250 countries. Currently, the Internet is growing at a
rate of approximately 40 percent to 50 percent annually. Some estimates
have the number of U.S. Internet users as high as 62 million.
There are approximately 86,000 public schools in the United States.
The first program year of the e-rate, 68,220 public schools
participated in the program. That is approximately 68 percent of all
public schools. Participation increased by 15 percent in the second
year, from July 1, 1999, to June 30, 2000, with 78,722 public schools
listed on funded applications. Statistics on libraries participating in
the program mirror these dramatic numbers.
I lay out these statistics because they represent both the tremendous
promise and the exponential danger that wiring America's children to
the Internet poses. Certainly the Internet represents previously
unimaginable education and information opportunities for our Nation's
schoolchildren. However, there are also some very real risks.
Pornography, including obscene material, child pornography, and
indecent material is widely available on the Internet. This material
may be accessed directly or may turn up as the product of a general
Internet search.
Seemingly innocuous key word searches such as Barbie doll,
playground, boy, and girl can turn up some of the most offensive and
shocking pornography imaginable.
According to the National Journal, there are at least 30,000
pornographic web sites. This number does not include Usenet news groups
and pornographic spam.
As we have seen through an increasing flurry of shocking media
reports, the Internet has become the tool of choice for pedophiles who
utilize the Internet to lure and seduce children into illegal and
abusive sexual activity. Pedophiles are using this technology to trade
in child pornography and to lure and seduce our children. In many
cases, such activity is the product of individuals taking advantage of
the anonymity provided by the Internet to stalk children through
chatrooms and by e-mail. However, an increasingly disturbing trend is
that of highly organized and technologically sophisticated groups of
pedophiles who utilize advanced technology to trade in child
pornography and to sexually exploit and abuse children.
As we wire America's children to the Internet, we are inviting these
lowlifes to prey upon our children in every classroom and library in
America. If this isn't enough, the Internet has now become a tool of
choice for disseminating information and propaganda promoting racism,
anti-Semitism, extremism, and how-to manuals on everything from drugs
to bombs.
Rapid Internet growth has provided an opportunity for those promoting
hate to reach a much wider and broader audience. Children are uniquely
susceptible to these messages of hate, and make no mistake about it,
they are the targets of these messages. According to the New York
Times: ``They, hate groups, peddle hatred to children, with brightly
colored Web pages featuring a coloring book of white supremacist
symbols and a crossword puzzle full of racist clues.''
Media propaganda has always been used as a means for spreading the
toxic message of hate. Magazines, pamphlets, movies, music and other
media have been their traditional tools for those seeking to feed the
darker side of our human nature. The Seattle Post-Intelligencer
reported in an article entitled ``Nazism on the Internet'': ``Many
sites operated by neo-nazis, skinheads, Ku Klux Klan members and
followers of radical religious sects are growing more sophisticated,
offering inviting Web environments that are designed to be attractive
to children and young adults.''
The software filtering industry estimates that about 180 new hate or
discrimination pages, 2,500 to 7,500 adult sites, 400 sites dedicated
to violence, 1,250 dedicated to weapons, and 50 are murder-suicide
sites are added to the Web every week.
Manuals on bomb-making, weapons purchases, drug making and
purchasing, are widespread on the Internet. Simple word searches using
``marijuana,'' enables kids to access Web sites instructing them on how
to cultivate, buy, and consume drugs. Literature such as the
``Terrorist's Handbook'' is easily available on-line, and provides
readers with instruction on everything from how to build guns and
bombs, to lists of suppliers for the chemicals, and other ingredients
necessary to construct such devices.
When a school or library accepts Federal dollars through the
Universal Service fund, they become a partner with the federal
government in pursuing the compelling interest of protecting children.
Mr. President, Dr. Carl Jung, in 1913, spoke of the importance of
childhood in shaping values, and the implications for future
generations. Jung said: ``The little world of childhood with its
familiar surroundings is a model of the greater world. The more
intensively the family has stamped its character upon the child, the
more it will tend to feel and see its earlier miniature world again in
the bigger world of adulthood.''
As I look upon the landscape of America today, of our children,
growing up in a culture of violence, of a mass media that floods their
innocent minds with images of gratuitous sex and senseless violence, as
I contemplate the likes of predators who stalk our children through
this new technology, of pornographers and hate mongers who seek to
invade the sanctity of the innocence of childhood to stamp their dark
values on our children, I wonder what the future world of adulthood
will look like if we do not act swiftly and decisively to build an
inviolable wall around our precious children.
Mr. President, I ask unanimous consent to print in the Record a
letter from a group of people, including the American Family
Association, Family Research Council, Republican Jewish Coalition,
Traditional Values Coalition, many others in support of this
legislation.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Washington, DC, June 22, 2000.
Hon. John McCain,
Russell Senate Office Bldg., Washington, DC.
Dear Sen. McCain: We are writing to indicate our very
strong support for the Children's Internet Protection Act, S.
97, which we believe offers a very effective solution to the
growing problem of pornography accessible on the Internet by
computers in schools and public libraries. Caring parents who
wish to shield their children from sexually exploitive
material should be able to trust that schools and public
libraries are on their side in this battle. Yet, because of
the influence of the American Library Association and their
allies, which oppose filtering of any material, even illegal
pornography, to children, such parents find they are fighting
a losing battle. The Children's Internet Protection Act will
go a long way in that battle by requiring that obscenity
(hard-core pornography), child pornography, and other
material inappropriate for minors be blocked when children
access the Internet on school and library computers.
The Children's Internet Protection Act would help solve an
additional problem occurring primarily in public libraries,
the use
[[Page S5648]]
of computers by pedophiles who access child pornography, and
then seek to molest children. We are pleased that your bill,
unlike some other Internet filtering bills introduced in
Congress, requires that child pornography be blocked for all
users, adults and children.
American needs the Children's Internet Protection Act.
Thank you for your leadership on this important matter.
American Family Association, Family Research Council,
Republican Jewish Coalition, Traditional Values Coalition,
Morality in Media, National Law Cntr. for Children &
Families, Family Friendly Libraries, Family Association of
Minnesota, Family Policy Network, VA, Christian Action
League, NC, Citizens for Community Values, OH, American
Family Assoc., IN, American Family Assoc., MS, American
Family Assoc., NY, American Family Assoc., PA, American
Family Assoc., TX, American Family Assoc., AR, American
Family Assoc., AL, American Family Assoc., KY, American
Family Assoc., GA, American Family Assoc., MO, American
Family Assoc., CO, American Family Assoc., OR, American
Family Assoc., IA, American Family Assoc., MI, American
Family Assoc., OH, American Family Assoc., NJ.
Mr. McCAIN. Mr. President, this is from Houston Reuters, Thursday,
June 15:
A Georgia man has been arrested in Texas and charged with
trying to buy two elementary school boys for sex after FBI
agents monitoring the Internet identified him as a pedophile,
the agency said on Thursday.
Jonathan Christopher Wood was arrested on June 3 after
traveling to Houston from Perry, Georgia, with the intention
of buying the boys and taking them back to Georgia for
illegal sex, the FBI said in a statement.
Wood, 53, was arrested after arriving in an agreed-upon
meeting place with $12,000 in cash for the purchase, the FBI
said.
Brian Loader, assistant special agent in charge of the
FBI's Houston field office, told Reuters the arrest came as a
result of FBI monitoring of Internet chatrooms.
``He was identified by our Crimes against Children task
force as a person who was actively seeking to purchase
children for sexual exploitation. He was using the
Internet,'' Loader said.
Loader declined to say whether an FBI agent had posed as a
seller but he said that no other arrests had been made.
A Federal criminal complaint filed against Wood alleges
that he traveled across States lines with intent to engage in
prohibited sexual relations with a minor. Woods had recently
moved to Georgia from Alabama, where he had owned a company
that provided Internet access.
Also on Thursday, Texas Attorney General John Cornyn
announced the arrest of five men charged with aggravated
sexual assault for allegedly having sex with a 12-year-old
girl they contacted through an Internet chatroom.
Mr. President, I will have a longer statement when we pursue this
amendment later on. I hope we can have an up-or-down vote. Anyone who
uses the Internet knows of this problem.
I am not advocating censorship. The fact is that when Federal dollars
are used to wire schools and libraries in America, then it seems to me
the schools and libraries have an obligation to provide Internet
filters and use them according to community standards--only according
to community standards, in the same fashion that a school or library
filters printed material that comes into a school or library.
Occasionally, a wrong book may be taken off the shelf in a library. But
I know of no school board or library board that does not filter printed
material.
How in the world can we sit still and have all of this stuff coming
into our schools and libraries without the kind of filtering that is
done with printed materials? A few years ago, a 13-year-old boy in the
Phoenix library was viewing pornography on the Internet, and he walked
out and sexually molested another young boy. This is rampant throughout
this country.
Some argue that I can't stop everything over the Internet, nor do I
wish to try that or to enter anybody's home; that is their private
business. But schools and libraries in this country should exercise
their responsibilities to screen this kind of material according to
community standards.
Why in the world the American Library Association opposes this
legislation is one of the great curiosities of my political career. I
hope we can overcome that opposition. The overwhelming number of
parents in America want their children protected in schools and
libraries as they view the Internet.
Mr. President, I look forward to an overwhelming vote in favor of
this amendment. I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
____________________