[Congressional Record Volume 146, Number 95 (Thursday, July 20, 2000)]
[Senate]
[Pages S7303-S7308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   AGRICULTURE, RURAL DEVELOPMENT, FOOD AND DRUG ADMINISTRATION, AND 
               RELATED AGENCIES APPROPRIATIONS ACT, 2001

  The PRESIDING OFFICER. The Senate will resume consideration of H.R. 
4461, which the clerk will report.
  The bill clerk read as follows:

       A bill (H.R. 4461) making appropriations for Agriculture, 
     Rural Development, Food and Drug Administration, and Related 
     Agencies programs for the fiscal year ending September 30, 
     2001, and other purposes.

  Pending:

       Reid (for Harkin) amendment No. 3938, to prohibit the use 
     of appropriated funds to label, mark, stamp, or tag as 
     ``inspected and passed'' meat, meat products, poultry, or 
     poultry products that do not meet microbiological performance 
     standards established by the Secretary of Agriculture.

  The PRESIDING OFFICER. The Senator from Iowa.


                           Amendment No. 3938

  Mr. HARKIN. Parliamentary inquiry: Before I start and the clock 
starts ticking on me, where are we and what time are we operating under 
right now?
  The PRESIDING OFFICER. The pending business is the Harkin amendment 
No. 3938. There is no time limitation.
  Mr. HARKIN. There is no time limit?
  The PRESIDING OFFICER. That is correct.
  Mr. HARKIN. Mr. President, I am sorry; I was under the mistaken 
impression that there was a time limit. I stand corrected. I want to 
talk for a few minutes about the pending amendment.
  In some conversations I had last night and earlier this morning 
previous to coming to the floor, I found that there may be some 
misconceptions about my amendment and what it seeks to do. So I would 
like to take the time to try to clarify it.
  I did not think there would be opposition to it. It was merely to 
clarify a situation that has arisen in a court case in Texas. So in the 
next few minutes I will try, as best I can, to try to outline it and 
clarify exactly what this amendment is and what it intends to do.
  Everyone in the food chain, from the farm on through to the table, 
has a vital stake in the USDA food safety and inspection system for 
meat and poultry products. This goes back many years. As the years have 
evolved, and

[[Page S7304]]

as our processes for growing, slaughtering, processing, packaging, 
transporting, and the selling of meat and meat products and poultry 
products has changed, we have changed the way we do things.
  As Secretary Glickman once I think so adroitly explained, the days of 
poke and sniff have to be over. We need new inspection standards 
because of the rapidity of the lines, the tremendous increase in the 
production of meat and meat products, which are good sources of protein 
for our people and for export. We need the change. So that is what we 
have done.
  But the linchpin in all of this is consumer confidence. Our food 
safety system must adequately protect consumers. It must assure 
consumers that their food is safe. If consumers lack confidence in the 
safety of meat and poultry products, they will not be good customers. 
That means less demand and lower prices and income for livestock and 
poultry producers, as well as for our packers and processors.
  On May 25, a huge cloud of uncertainty was cast over USDA's meat and 
poultry inspection system when the Federal district court for the 
Northern District of Texas held that USDA does not have the statutory 
authority to enforce its pathogen reduction standards for salmonella in 
ground beef.

  The pathogen reduction standards are a critical part of the new food 
safety system which was adopted by the USDA in 1996 in the hazard 
analysis critical control point and pathogen reduction rule. It is 
otherwise known by its acronym HACCP, something that many of us in the 
Senate and the House have worked on for many years to bring about.
  That system was designed to protect human health by reducing the 
levels of bacteria contamination in meat and poultry products. I might 
add that the HACCP rule was broadly supported by consumer groups, by 
packers, by processors, by the meat and poultry industry, as being a 
step in the right direction from the kind of inspection procedures that 
we had before.
  The HACCP and the pathogen reduction rule established a modern 
inspection system based on two fundamental principles.
  First, the meat and poultry industry has the primary responsibility 
and the flexibility to design plans for producing safe products and 
then to follow those food safety plans. So the industry has the primary 
responsibility. And they should have the flexibility to design plans 
for producing safe products and then to follow those plans. That is the 
first principle.
  The second principle is that the public health is best served by 
reducing the level of pathogens on meat and poultry products 
nationwide--a very commonsense principle. To accomplish this, USDA 
developed pathogen reduction standards using salmonella as the 
indicator bacteria. These standards set targets that plants have to 
meet for reducing microbial pathogen levels. If a plant repeatedly 
fails to meet salmonella targets, USDA may refuse to inspect the 
plant's products, thereby effectively shutting the plant down until the 
plant implements a corrective action plan to meet the pathogen 
reduction standard.
  What happened was the district court in Texas held that USDA does not 
have the statutory authority to enforce its food safety standards 
designed to reduce pathogen levels in ground beef.
  The court stated, in its June 13 final judgment, that the salmonella 
reduction standard ``is hereby declared to be outside the statutory 
authority of the United States Secretary of Agriculture and the United 
States Department of Agriculture to the extent that it allows the 
Secretary and/or USDA to withdraw or suspend inspection services or 
withhold the mark of inspection on the basis of an alleged failure to 
comply with the Salmonella performance standard for ground beef. . . 
.''
  That is the quote from the finding of the district court.
  Keep in mind, if USDA cannot withdraw or suspend inspection, it is 
powerless to enforce the pathogen reduction standards. Refusing 
inspection is USDA's only enforcement tool. Again, the Texas decision 
was based on an interpretation of USDA's statutory authority to enforce 
the salmonella reduction standard.
  I am aware there has been a lot of discussion about the legitimacy of 
the salmonella standard. Is it science based? Does it rationally relate 
to food safety? Those are legitimate questions to raise. But the court 
did not even get to those questions. It just ruled that the USDA did 
not have the statutory authority to enforce its standard designed to 
reduce pathogenic bacteria.
  I believe the American public would be shocked to be told that the 
U.S. Department of Agriculture does not have the authority, under our 
meat and poultry inspection laws, to require reductions in microbial 
contamination of meat and poultry.

  If USDA lacks the authority to enforce pathogen reduction standards, 
then, surely, we stand at the edge of a food safety debacle, a chasm. I 
am going to repeat that. The American public would be shocked to find 
the USDA does not have the authority, under our existing meat and 
poultry inspection laws, to require reductions in microbial 
contamination of meat and poultry. Think about that.
  Frankly, I have my doubts about the reasoning of the court in the 
Texas case. But the court has held that the USDA lacks this authority 
to enforce the pathogen reduction standards.
  That decision has created an intolerable degree of uncertainty about 
USDA's authority to ensure the safety of meat and poultry products, not 
only in Texas but anywhere in the entire United States.
  Plainly and simply, all my pending amendment does is to clarify that 
the USDA has the legal statutory authority to require reductions in 
pathogenic bacteria in meat and poultry products.
  Let me explain why it is so critically important that we clarify this 
and that USDA has that authority. I have some charts to show that. This 
chart has some very sobering statistics.
  In the United States, according to the Centers for Disease Control 
and Prevention, foodborne pathogens are responsible for 76 million 
illnesses, 325,000 hospitalizations, and 5,000 deaths every year.
  That is an estimate by the Centers for Disease Control and 
Prevention.
  The economic impact of foodborne illness for the United States is 
estimated to be $6.6 to $37.1 billion per year. Just to clarify, these 
statistics include all foods--not just meat and poultry but all foods. 
Meat and poultry are certainly a substantial portion of the cases; I 
don't want to mislead anyone. This covers lettuce, tomatoes, fruits, 
vegetables, and everything else. Again, these are not just illnesses, 
hospitalizations, and deaths that result simply from the failure to 
reduce pathogens in the processing and packaging stream. This could 
come about from mishandling of food at the consumer level, at the 
purchasing level, storage, miscooking, and inapplicable storage of 
partially cooked food.
  I want to illustrate the dimensions of foodborne pathogens in our 
country. Again, I am not condemning the meat and poultry industry. I am 
not trying to frighten consumers. Yet there is no denying that we have 
much more foodborne illness than we should. Consumers are paying 
attention. Consumers are concerned about the safety of their food. 
Again, I come back to the matter of consumer confidence. What industry 
can build markets if it fails to build confidence in its customers? If 
you support the meat and poultry industries, as I do, then you also 
have to support a food safety and inspection system that effectively 
assures the safety and quality of meat and poultry products.
  The second chart shows some of the progress we have made since we 
established the new pathogen reduction standards which the USDA has 
been implementing. Salmonella levels on meat and poultry products have 
fallen. Salmonella rates in ground beef have dropped 43 percent for 
some of our small plants, 23 percent for large plants. In fact, in the 
entire United States, only three plants have failed to meet the 
standard. I think this is strong evidence that the standard works and 
that it is reasonable. Yet the court in Texas says USDA does not have 
the legal authority to do what it has been doing to reach these 
dropping rates in salmonella levels. It says USDA does not have the 
authority to continue to do that.

  The next chart indicates the success of the USDA new food safety 
system for meat and poultry. This chart shows the rate of foodborne 
illnesses has fallen from 51.2 per 100,000 people in 1996,

[[Page S7305]]

when the HACCP rule was implemented, to 40.7 per 100,000 people in 
1999. That is a 20.5-percent decrease in total foodborne illnesses in 
the last 4 to 5 years. That is a major success story in food safety. 
But now the Texas court's decision has rejected USDA's authority to 
reduce pathogens on meat and poultry products which led us to this 
tremendous reduction.
  The salmonella standard is not perfect, from what I am told by 
scientists and others. That is why I have carefully crafted my 
amendment so it does not codify or lock into place the existing 
salmonella standard. My amendment would do nothing to prevent changing, 
improving, or even challenging a pathogen reduction standard. I want to 
continue to work with producers, the meat and poultry industries, 
consumers, and the USDA to see that we have science-based, workable 
performance standards that protect the public health. Again, what my 
amendment does, and all it does, is to make certain that USDA has the 
legal, statutory authority to enforce pathogen reduction standards that 
are critically important to assuring food safety.
  I am willing to engage in any colloquies about this amendment. Keep 
in mind, this court decision was only 2 months ago. Quite frankly, if 
we don't act soon, I think there is going to be great concern among 
consumers, customers in the export markets, about our commitment to 
reducing pathogens, reducing bacteria in our meat, livestock, and 
poultry products.
  We are not trying to lock in a standard. As I said in my opening 
statement, times change, conditions change. We have to be able to do 
that. But the authority to do that, as it has been going back probably 
almost 70 years--80 years almost--the authority for meat and poultry 
inspection has been with the U.S. Department of Agriculture. To be 
sure, during most of that time, they were not involved in the reduction 
of pathogens and bacteria. But with the new changes in how we do 
inspections, with HACCP, we decided, and the processors and the 
consumers decided, that we needed to do everything possible to reduce 
bacteria contamination on our meat and poultry products.
  As I said, we have done a great job in that. We have reduced it. We 
are on our way. Most of the plants in America have met these 
requirements. They have used HACCP. They have been responsible. Only 
three plants in the entire United States failed to meet the standard. I 
think if the court had gotten beyond the statutory problem and gotten 
to the essence, the substance of it, the court, on the weight of the 
evidence, would have had to decide that the reduction standard is 
reasonable. Obviously, if all the plants in the country are doing it 
and only three have not met it, a reasonable person--and I believe the 
court is reasonable--would say, obviously, it has to be a pretty decent 
standard. But the court didn't even get there. They just said, sorry, 
you don't have the authority, which really has opened up a chasm.

  That is why it is so critically important for us to address this 
issue this year. The only vehicle we have that I can see right now is 
to do it on the Agriculture appropriations bill, which is a good bill 
and which I hope will make its way through and be signed by the 
President. I think it is critically important to give them that 
authority. That is all my amendment does right now.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, this amendment, on its face, looks as 
though the Senate is being asked to vote in favor of supporting the 
Department of Agriculture's standards for meat inspection that include 
the power to shut down a plant if it is found that the product being 
produced contains a contaminant. In the case in Dallas, TX, the Senator 
cites, it was salmonella.
  The plant operated by Supreme Beef in that area was shut down by the 
Department of Agriculture and, according to testimony in the case in 
Texas, it was shut down solely on the basis of the fact that the 
product being produced contained a prohibitive level of salmonella, or 
some salmonella.
  What the court said was that the Department of Agriculture wasn't 
given that kind of power by the Congress to impose regulations of that 
kind, and that to shut down a plant there had to be some connection 
between the operation of the plant and the presence of the salmonella 
in the product. In other words, if the plant was totally sanitary, 
obeyed every rule of law or regulation of the Department of Agriculture 
for safe and sanitary operation, just because of the test, the 
Department was without the power under the law to shut down the plant.
  This amendment--if we adopt it--as suggested by the Senator from 
Iowa, would impose a new legal authority that is not now present, which 
would give the Department of Agriculture more power than it has, more 
power than it has asked for, and, I suggest, more power than we ought 
to give on an appropriations bill, without more careful review; that 
is, the power to arbitrarily shut down a plant, whether it is being 
operated correctly and in a sanitary manner, with all due regard for 
the product that is being produced, the safety of that product for 
human consumption.
  Because of this court case that puts in question the Department's 
authority that it exercised in this one case, we are being asked now to 
say that these standards, which are regulations in effect, ought to be 
codified; they ought to be put in the form of a law.
  Now, that is a step that we, in my view, ought not to take--not on 
this bill, not as an amendment to an appropriations bill, not on the 
basis of one district's court's finding in the State of Texas, which 
doesn't have application and is not being honored by the Department's 
regulators anywhere else in the United States except in that Federal 
court jurisdiction.
  The Department of Agriculture has not asked for this amendment. I am 
advised that the Department of Agriculture doesn't support this 
amendment. The Department of Agriculture has not yet decided whether to 
appeal this decision of the district court. It may decide to modify its 
regulations because of this district court decision. So we would be 
acting prematurely and, in response to the suggestion in this 
amendment, we would be exceeding even the decision being made now in 
the Department of Agriculture, or the Department of Justice, which has 
to prosecute the appeal. So the Department of Justice hasn't decided, I 
am told, whether to appeal this decision to the court of appeals. The 
Department hasn't decided that yet. Yet we are being asked to reverse, 
in effect, by legislation, the decision of that district court.
  We are not an appellate court. I suggest that the Senate should not 
act today favorably on this amendment as if we are reviewing the legal 
intricacies involved in this case and are making some careful, 
thoughtful determination about whether or not that case ought to stand 
or whether it ought to be reversed. I am going to suggest to the Senate 
that what we ought to do is look at the implications through hearings 
in the Agriculture Committee or in the committee that has jurisdiction 
over other food safety concerns. Our Appropriations Subcommittee could 
conduct hearings--and that might be the appropriate thing to do--and 
hear from the Department of Agriculture and hear from others who have 
views on this subject. And then we could make a recommendation to the 
Senate.
  But this is a brand new decision, as the Senator said; it was made, I 
think, in May. It is a recent decision. We ought to let the legal 
process work its way to a conclusion with the Department of 
Agriculture, the Department of Justice, and the packing company 
involved in this case. They must have had some persuasive evidence to 
present to the court as to why the Department of Agriculture acted 
arbitrarily and improperly, or without the sanction of law, to shut 
down this plant as they did. And here we are going to substitute our 
judgment collectively for the judgment of the district court judge who 
heard all the evidence, who saw the witnesses, including Department of 
Agriculture officials who described what they did and why they did it.
  The Senate needs to know that there is a committee that is available 
to the Department of Agriculture that is called the Advisory Committee 
on Microbiological Criteria. The Department of Agriculture and the 
Secretary look to this committee normally for advice and consult on 
issues of this kind. No consultation, as I understand

[[Page S7306]]

it, has taken place with this special committee of experts who are 
brought together for the purpose of providing scientifically based 
opinions to the Secretary of Agriculture on the question of 
adulteration and sanitation issues of meat and poultry packing and 
processing plants.
  So let's not pretend that we know as much as this advisory committee. 
Let's not pretend that we have a better reason for making a decision in 
this case than the district court did, which found just the opposite of 
what the Senator is asking this Senate to find. So I am suggesting that 
this is premature. It is inappropriate for us to legislate in this 
fashion on an appropriations bill, without the benefit of facts and 
expert opinions and views on the subject.
  So it is my intention, without cutting off anyone's right to speak, 
to move to table the Senator's amendment and to ask for the yeas and 
nays on that vote. But I do not want to make that motion right now 
without notice to my friend and colleague from Iowa or any other 
Senator who wants to be heard. We had told all Senators they could 
expect a vote on an amendment on this bill at or about 10:30. I hope we 
can keep that commitment to the Senate.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. HARKIN. Mr. President, I appreciate the chairman not moving to 
table right now. I listened as closely as I could, while conversing 
with my staff, to the comments made by my friend. I hope we can engage 
in a colloquy on this. We are talking past each other.
  Obviously, the chairman had to leave the floor, but I hope we can 
engage in a colloquy on this because this is a very serious matter. I 
don't want there to be misperceptions out there.
  The Senator from Mississippi just got through saying, more than once, 
that what we are being asked to do is codify a regulation. I would like 
the Senator from Mississippi to show where in my amendment it codifies 
a regulation. It is not there. I challenge my friend from Mississippi 
to show that. It is not there. I said explicitly in my statement that 
my amendment does not codify any regulation. It is not there. So if the 
Senator from Mississippi says that my amendment codifies a regulation, 
I challenge him to show where and how. I think that is a misperception.
  Secondly, again, let's be clear on what we are talking about here. Is 
it reasonable, I ask, for the U.S. Department of Agriculture, which has 
the statutory power to inspect meat and poultry products, which it has 
for many years, is it reasonable for the USDA to also inspect and set 
some standards for the reductions of packaging bacteria that is on our 
meat and poultry products?
  If the answer to that is no, it is not reasonable, then I guess you 
could vote to table my amendment because that is where we will be. We 
will be at a point where what we would be saying is that the U.S. 
Department of Agriculture should not have any authority to establish 
pathogen reduction standards nor any authority to enforce them. I 
suppose they could test them. But they could never enforce them. I 
think that is what we have to ask ourselves: Is it reasonable for the 
U.S. Department of Agriculture to set pathogen reduction standards and 
then to be able to enforce them?
  I said in my opening statement, and I say again to my friend from 
Mississippi, my amendment does not codify any regulation. Yet, if I am 
not mistaken, I heard my friend from Mississippi state in his comments 
that we are being asked to codify a regulation. I carefully drafted the 
amendment not to do that.
  If the Senator from Mississippi can show how we codify our 
regulation, we would be glad to change the amendment. It is not there. 
That is a misperception. All this amendment says is that the USDA has 
the statutory authority to both set a pathogen reduction standard and 
then to enforce it. That does not mean a packer or a processor couldn't 
challenge those standards as being unreasonable or not applicable. That 
still can be challenged. Any rule or regulation can be challenged in 
court.
  Let's take the Supreme Beef case, I say to my friend from 
Mississippi, where the Supreme Beef packing plant had failed the 
salmonella standard reduction three times. They had failed it three 
times before the USDA stepped in and withdrew its inspection, thereby 
basically shutting the plant down.
  Again, keep in mind that the plant did not go to court to challenge 
the standard. They went to court and said USDA doesn't have the 
statutory authority to set the standard or to enforce it. The court 
found that USDA did not have that statutory authority. Here is a plant 
that failed three times to meet the salmonella reduction standard. They 
had been warned. They knew it.

  Keep in mind that a lot of this ground beef from Supreme Beef goes 
into our School Lunch Program. Go out and tell the parents of America 
they can send their kids to school and they can eat ground beef in 
school but we are not going to enforce any bacteria reduction standards 
such as salmonella in our packing plants. Supreme Beef failed it three 
times. Now they can fail it four or five times. They will have no 
standards whatsoever--none, zero, zip--because the USDA will not be 
able to enforce its salmonella reduction standards.
  I think what Supreme Beef should have done was challenge, if they 
wanted to, the reasonableness of that standard. They could go to court 
and get a stay to keep operating and then show the court that the 
standard that was imposed on them by USDA and by which USDA is shutting 
down their plant by refusing inspection is unreasonable, unwarranted, 
and inapplicable. Fair enough; let them do that. But they cannot even 
get there because they said USDA doesn't have the authority to do it.
  That is where we are. If we take no action, that is where we are. 
Supreme Beef can go ahead and keep right on operating. They don't have 
to worry about any salmonella reduction. They can keep pumping that 
food right into the School Lunch Program.
  The chairman indicated that there is a USDA scientific advisory 
committee that may review this standard this fall. I welcome that. 
Nothing in my amendment would prevent changes based on those 
recommendations. Nothing in this amendment would do that.
  Again, one has to ask oneself, should the USDA have the authority 
under the HACCP program to issue pathogen reduction standards and then 
to be able to enforce those?
  Again, I go back to my chart. Since the pathogen reduction standard 
for salmonella went into effect in 1996--it is so prevalent and makes 
people pretty sick--rates in ground beef dropped 43 percent in our 
smaller packing plants and 23 percent in our larger plants.
  That is success. That is why plants all over America have not 
challenged this in court. They seem to be doing quite well with it. 
Only three plants in the entire United States have failed to meet this 
standard--three--Supreme Beef, of course, being one of them.
  As I said, since the HACCP rule was implemented in 1996, 51.2 
foodborne illnesses per 100,000 people went down to 40.7. It is 
working. Yet because of one plant in Texas that decided to thumb its 
nose at the salmonella reduction standard--obviously, they had a good 
attorney--they went to court and said USDA does not have the authority 
either to set the standard or to enforce it. The court said: You are 
right, they don't, because Congress never gave them that authority.
  I want to clear up one other thing. I am told the USDA is not opposed 
to this amendment. They are not taking a position because of pending 
litigation because they are in the courts right now because of this 
pending litigation.
  The USDA has a charge to ensure lower bacteria counts. Again, it is 
not the power to arbitrarily shut down a plant because of the 
appropriateness of a specific USDA standard. The standard is still 
subject to review by a court. I want to make that as clear as I can.

  No. 1, I challenge my friend from Mississippi to show me how my 
amendment codifies the regulation. I challenge my friend to show that. 
He has said that. I have carefully drafted it so that it does not 
codify any regulation. The regulations can change. The advisory 
committee can meet. Maybe they want to change these standards--I am 
speaking here regarding this amendment--but I don't know why they would 
want to change a standard that has been so successful, by which every

[[Page S7307]]

packing plant in America today is abiding, except three, one of them 
being Supreme Beef that brought this case.
  It is not that technical. All we are doing is asking, through this 
amendment, to give USDA the authority to set the standard and enforce 
it--not what standard. This amendment does not give the USDA the 
authority to set a standard that I specify and to enforce that 
standard. It says to set pathogen reduction standards and to enforce 
them. Obviously, if they set a standard that is unreasonable, 
inappropriate, and inapplicable, that can be challenged in court. They 
can be challenged in the rulemaking process. That is the way it is 
done.
  But if we continue as we are right now, there is no reason for any 
plant in America to abide by these salmonella reduction standards 
because USDA has no authority to enforce them. They could go into a 
plant and say: Gee, you know, you are right above salmonella; that is 
above our standard. The plant can say: So what. Get out of here. We 
don't have. I don't think that is what the American people want or the 
American consumers want. I don't believe it is what the vast majority 
of packers and processors in America want. They want the public to have 
the highest level of confidence that their meat and poultry and meat 
products and poultry products are wholesome and without bacterial 
contamination.
  It is too bad because of one bad actor--one plant in Texas that 
failed three times to meet the standard, and on the fourth time, after 
having clear warnings, the USDA came in and withdrew the inspection, 
which effectively shuts down the plant--we have to throw the whole 
system out and say the USDA does not have the authority. That can open 
the floodgates for plants all over America.
  I say to my friend from Mississippi, there is no codification of any 
regulation, none whatever. It is only giving the USDA the authority 
under which it has been operating for 4 years, which has been 
successful. Only three plants in America have failed to meet standards. 
I think that is a good success story. I don't think we ought to not 
give the authority to the USDA to continue on this pathway simply 
because of one bad actor in Texas and because of the fact that we 
failed in our statutory deliberations and in our statutory approach to 
give the USDA this authority. I am not pointing the finger at anybody.
  We should have at some point statutorily given the USDA this 
authority. We did not do so. That is what this amendment seeks to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi
  Mr. COCHRAN. I move to table the Harkin amendment, and 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 a motion to table amendment No. 3938. 
The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Kentucky (Mr. Bunning) 
is necessarily absent.
  The PRESIDING OFFICER (Mr. Allard). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 49, nays 49, as follows:

                      [Rollcall Vote No. 218 Leg.]

                                YEAS--49

     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Campbell
     Chafee, L.
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Frist
     Gorton
     Gramm
     Grams
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kerrey
     Kyl
     Lincoln
     Lott
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--49

     Abraham
     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Burns
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Fitzgerald
     Graham
     Grassley
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Mikulski
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Specter
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Bunning
       
  The motion was rejected.
  Mr. COCHRAN. I move to reconsider the vote.
  Mr. HARKIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The question is on the amendment?
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.


                Amendment No. 3995 To Amendment No. 3938

  Mr. COCHRAN. Mr. President, I send an amendment to the amendment to 
the desk and ask it be reported.
  The legislative clerk read as follows:

       The Senator from Mississippi [Mr. Cochran] proposes an 
     amendment numbered 3955 to amendment No. 3938.
       On page 2 of the amendment: Strike ``established by the 
     Secretary'' and insert in lieu thereof: ``promulgated with 
     the advice of the National Advisory Committee on 
     Microbiological Criteria for Foods and that are shown to be 
     adulterated''.

  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, this amendment states that the 
microbiological standards imposed by the Secretary of Agriculture, in 
situations involving those described by the amendment of the Senator 
from Iowa, must be imposed pursuant to the Administrative Procedures 
Act and be subject to notice and comment procedures under that act.
  It additionally requires the Secretary, in instances involving 
contamination of meat and poultry products that are subject to 
inspection and plant inspection by the Secretary, to seek the advice of 
the National Advisory Committee on Microbiological Criteria for Foods. 
This is a panel of scientists, with members appointed by the Secretary 
of Agriculture. The purpose of the panel is to provide advice and 
counsel on matters of this kind from experts to the Secretary of 
Agriculture.
  We understand that this panel has not had an opportunity to make 
recommendations or observations about the standards that are the 
subject of these USDA regulations that were litigated in this court 
case because the Department of Agriculture decides when they meet, and 
it is my understanding that the next meeting is scheduled for the fall. 
There has not been a special meeting called. And the issue has not been 
placed on the agenda.
  If my amendment is adopted, the Senate would suggest to the Secretary 
that this issue ought to be presented to this panel of expert witnesses 
and the advice of that panel sought in this situation.
  The Department of Agriculture has indicated that it does not support 
the Harkin amendment. The Senator said that it has decided to take no 
position on the amendment because it involves a case that is subject to 
judicial proceedings at this time.
  To remind Senators, this is a court case the Senator is asking be 
reversed by the Senate. The time for appeal has not yet expired. The 
Department has not decided whether to appeal. The Department of Justice 
has not made a recommendation, as I understand it, whether it thinks an 
appeal should be prosecuted or not. They may decide this court was 
right and then come to the Congress to ask for additional authority, 
and the Congress may very well decide to give the Department additional 
authority.
  But the adoption of this amendment, without suggesting the Department 
needs to consult first on modifying its standards with an expert panel, 
that was created for the purpose of providing information, would be 
premature also.
  So we hope the Senate will adopt this modification to the Harkin 
amendment. The vote on the motion to table was a tie vote, and 
therefore the motion failed. We could let the Senate vote on the 
amendment of the Senator from Iowa without any further amendment.

[[Page S7308]]

And if there is another tie vote, the amendment would fall.
  But in order to try to resolve the issue, for the moment, my 
suggestion is that the Senate should adopt this amendment, putting in 
the extra provision of consultation with the National Advisory 
Committee on Microbiological Criteria for Foods, and suggest that, if 
this standard is given the force and effect of law, there must be some 
connection between the contaminated product and unsanitary conditions 
or the way in which the processing plant was being operated in order to 
justify the Department withdrawing its inspectors and therefore closing 
the plant.
  We want to continue to ensure--and this ought to be clear--that our 
Nation's food supply is safe; that it is processed in the most sanitary 
conditions possible; that it is inspected to ensure that the food is 
safe for human consumption, all of that will continue to be reflected 
in the adoption of this amendment.

  What we add is that scientific advice and counsel be sought by the 
Department of Agriculture on this subject with respect to this standard 
that has been thrown out by a court. If it can be modified to ensure 
that we continue to see the force and effect of the standards enforced 
by the courts, then that is what we would like to see happen. We would 
like it to be done in a process that gives respect for the power of a 
court and the judicial process that is in place but also the 
prerogatives of the Congress. The Congress has not empowered the 
Department of Agriculture to issue a standard of the kind the court 
said it could not enforce. That is a point to remember, too. The 
adoption of the Harkin amendment would give that power legislatively, 
give that power to the Secretary of Agriculture without a careful 
review of the implications of that new power by the Congress.
  I am hopeful that this will resolve the issue for the time being, for 
today. The legislative committee has a right to look at it, to have 
hearings, to propose changes in the authorities the Department has in 
situations such as this. That would be the appropriate way to resolve 
the issue for the long term. But for today, I am hopeful the Senate 
will agree to this amendment, maybe on a voice vote, and then we can 
adopt the amendment of the Senator on a voice vote and proceed to other 
issues.
  Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection it is so ordered.

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