[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.

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