[Congressional Record Volume 147, Number 34 (Wednesday, March 14, 2001)]
[Senate]
[Pages S2273-S2279]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BANKRUPTCY REFORM ACT OF 2001--Resumed
The PRESIDING OFFICER. We were to lay down the bill at 10:30. The
hour of 10:30 having arrived, the clerk will report the pending bill.
The bill clerk read as follows:
A bill (S. 420) to amend title 11, United States Code, and
for other purposes.
Pending:
Leahy amendment No. 20, to resolve an ambiguity relating to
the definition of current monthly income.
Wellstone amendment No. 35, to clarify the duties of a
debtor who is the plan administrator of an employee benefit
plan.
Wellstone modified amendment No. 36, to disallow certain
claims and prohibit coercive debt collection practices.
Wellstone amendment No. 37, to provide that imports of
semifinished steel slabs shall be considered to be articles
like or directly competitive with taconite pellets for
purposes of determining the eligibility of certain workers
for trade adjustment assistance under the Trade Act of 1974.
Kennedy amendment No. 38, to allow for reasonable medical
expenses.
Collins amendment No. 16, to provide family fishermen with
the same kind of protections and terms as granted to family
farmers under chapter 12 of the bankruptcy laws.
Leahy amendment No. 41, to protect the identity of minor
children in bankruptcy proceedings.
Wyden amendment No. 78, to provide for the
nondischargeability of debts arising from the exchange of
electric energy.
Carnahan amendment No. 40, to ensure additional expenses
associated with home energy costs are included in the
debtor's monthly expenses.
Smith of Oregon amendment No. 95 (to amendment No. 78), of
a perfecting nature.
Reid (for Durbin) amendment No. 93, in the nature of a
substitute.
Reid (for Breaux) amendment No. 94, to provide for the
reissuance of a rule relating to ergonomics.
Amendment No. 78
The PRESIDING OFFICER. The Senator now has 5 minutes.
Mrs. FEINSTEIN. I thank the Chair, and I would like to continue:
This amendment seeks to give certain entities a favorable
status in the event that California utilities fall into
bankruptcy.
That is what the Wyden amendment does.
The letter goes on:
Many companies have provided power to California's
consumers and [this association] believes emphatically that
all these entities deserve to be fully and fairly
compensated.
As do I, Mr. President.
However, it is inappropriate for the Senate to try and
create winners and losers in this desperate situation. Rather
than orderly resolution, this legislation could lead to a
premature declaration of bankruptcy and the
[[Page S2274]]
inevitable liquidation of the California electric utilities'
assets in a legal free-for-all.
The American Gas Association, on behalf of all of the natural gas
companies involved in this, also states the same thing. They go on,
however, to say:
As the preferred creditors would in actuality control the
bankruptcy proceedings through their status, in effect
Chapter 11 reorganization would not be an option. Liquidation
of assets through Chapter 7 filing would result. Such action
could cause serious disruption and harm to the utility
customers, not to mention the non-preferred creditors.
So, Mr. President, you have virtually all of the electric power
producers, as well as the natural gas producers, in effect, saying that
if you give these Federal entities preferred status, should there be a
bankruptcy, they would, in effect, have to assert their rights to force
an involuntary bankruptcy, and that then would put both of the
utilities into chapter 7 rather than chapters 11 or 13. This was the
theme--the dominant theme--from virtually every generator, producer,
and creditor.
I know of virtually no electric power producer or gas producer that
believes this amendment will do anything other than trigger a
bankruptcy of these two companies. Therefore, I am strongly in
opposition to it.
Last evening, the proponent of this legislation, Senator Wyden, said
in fact the legislation does not do this. So we went out and we
contacted the bankruptcy attorney for Pacific Gas and Electric. We
asked them for a letter and their interpretation of the Wyden
amendment. I have that letter. I will read it into the Record.
My firm is special reorganization counsel to Southern
California Edison. In connection with the debate over the
Wyden Amendment to S. 420, it has been suggested that the
Amendment is not intended to prefer the debt covered by the
Amendment over the debts of other creditors of Southern
California Edison and the other utilities affected by the
Amendment. Please be advised that, in my view, the Amendment
would do exactly that.
This is the bankruptcy counsel for one of the utilities at risk of
bankruptcy.
The letter goes on:
The purpose of the Wyden Amendment is to exclude from the
binding effect of a plan of reorganization in chapter 11
certain creditors of the utility who provided wholesale
electric power to the utility under certain conditions. It
provides that such debts are nondischargeable. As a
consequence, a utility in chapter 11 could not bind such
preferred creditors under a plan of reorganization, and such
creditors would be able to pursue the utility following
confirmation of a plan to collect in full, in cash, their
obligations while the other creditors were bound by the terms
of a confirmed plan of reorganization. Depending upon the
magnitude of such preferred claims, the utility might find it
very difficult to confirm a plan under such circumstances.
Such result would be very detrimental to not only the utility
but to its other creditors.
This is the bankruptcy counsel himself.
It is also my understanding that there has been a
suggestion in argument on behalf of the Amendment that the
magnitude of the preferred obligations would not exceed $100
million to $200 million. I am advised by Southern California
Edison that based upon the amount of power purchased during
the emergency orders of the Federal Energy Regulatory
Commission, the amount of power procured to serve Southern
California Edison's customers substantially exceeded that
amount.
The PRESIDING OFFICER. The Senator's 5 minutes have expired.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to use the
remainder of Senator Bingaman's time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Thank you very much.
Continuing:
Based upon the foregoing, it should be clear that if
Southern California Edison was involved in a bankruptcy
proceeding, the proposed legislation would have significant
impact upon Southern California Edison and its other
creditors.
Mr. President, this is the bankruptcy counsel.
So we know two things: One, from bankruptcy counsel, that this
amendment--the Wyden amendment and the Smith amendment--do in fact
create two classes of creditors. And they do, in fact, give premier
standing to one class of creditors, the Federal subsidized entities.
Those entities are given preference in a bankruptcy. Secondly, we know
in fact that the amount involved is a good deal more than the amount
represented in this Chamber.
We also know that virtually every other power producer and supplier--
every single one--believes that if this amendment were to pass, they
would have to exercise their rights, which would be to push Southern
California Edison and Pacific Gas and Electric into an involuntary
bankruptcy and most probably in chapter 7, which would mean a
dissolution of the companies involved.
This would be tragic because the State has negotiated an agreement
with two utilities to buy their transmission lines and to put $7
billion into the purchase of those transmission lines. The result would
then be a securitization of that back debt and enable these utilities
to pay their debtors and creditors without going into bankruptcy. So a
plan to enable the payment of the debtors and creditors is now underway
by the State.
Various Members of this body may not like how the State is handling
the problem, but the State does have the right to try to redress the
debts and in fact is doing so. These amendments can only wreak
devastation on that attempt. I strongly oppose the Wyden and Smith
amendment.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I am going to a gathering for Jesse
Brown. I ask unanimous consent that I be allowed to bring the Wellstone
amendment, which is supposed to come next, to the floor at 1:15.
The PRESIDING OFFICER. Is there objection?
Mr. SESSIONS. Reserving the right to object, is that a modification
of the earlier amendment?
Mr. WELLSTONE. That is correct.
Mr. SESSIONS. How would it be, again?
Mr. WELLSTONE. The modification is that the section dealing with
coercive practices is out, which was a question of Banking Committee
jurisdiction.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Amendment No. 40
The PRESIDING OFFICER. There will now be a 5-minute debate on the
Carnahan amendment No. 40. Who yields time?
The Senator from Missouri.
Mrs. CARNAHAN. Mr. President, I understand the managers have agreed
to accept my amendment on home energy. I thank Senator Collins,
cosponsor of the amendment, as well as Senators Hatch, Grassley, and
Leahy for their willingness to help on this very important amendment. I
yield the floor.
The PRESIDING OFFICER. Is there further debate on the amendment? The
Senator from Alabama.
Mr. SESSIONS. I understand that pending is the Carnahan amendment. I
ask unanimous consent that following the concluding debate, the
amendment be agreed to and the motion to reconsider be laid upon the
table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Therefore, the next vote will occur in relation to the
Wyden-Smith amendment regarding the California utilities matter.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SESSIONS. 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. SESSIONS. Mr. President, I yield back the time on the Carnahan
amendment.
The PRESIDING OFFICER. The time is yielded back on the Carnahan
amendment. By unanimous consent, the amendment is agreed to.
The amendment (No. 40) was agreed to.
Mr. SESSIONS. Mr. President, I suggest the absence of a quorum, and I
ask unanimous consent that the time not be counted against either side.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The bill clerk proceeded to call the roll.
[[Page S2275]]
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 78
Mr. SESSIONS. Mr. President, I say to the Senator from Alaska that we
are waiting on a 5-minute debate before we vote, and the debaters have
not arrived. That could delay our vote. Will the Senator speak long?
Mr. MURKOWSKI. If I may, I will take some of the time, perhaps,
allotted to the Senator from California to just make a statement on the
amendment, which will not take more than a minute.
The PRESIDING OFFICER. The time has expired.
Mrs. FEINSTEIN. Mr. President, I don't believe the time has expired.
I believe I have 2\1/2\ minutes. I will be happy to give some of that
to the Senator from Alaska.
The PRESIDING OFFICER. The Senator is correct. She has 2\1/2\
minutes.
Mr. MURKOWSKI. I will just use a minute. Let me leave you with one
thought. Article I, section 8, of the Constitution clearly states that
Congress shall ``establish uniform laws on the subject of bankruptcies
throughout the United States.''
There is absolutely nothing uniform about the pending amendment. It
only protects electric sales ordered by the Federal Government to
California, or sales only to California by State, local, or Federal
Government entities. If similar power sales arose in New York or
Georgia, these provisions would not apply.
In other words, this amendment says there is one set of bankruptcy
rules for electric sales into California and another set of bankruptcy
rules for electric sales into the other 49 States. Clearly, this is
completely contrary to the intent of our Founding Fathers and the
Constitution; they wanted one set of uniform rules to govern bankruptcy
throughout the entire country. As a consequence, I urge my colleagues
to reflect on this legitimate question of the constitutionality of the
amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon is recognized.
Mr. WYDEN. Mr. President, there are 2\1/2\ minutes on our side for
the Smith-Boxer-Wyden amendment. I yield a minute and a half of that
time to Senator Boxer, and I thank her. I remind our colleagues on this
issue affecting the Pacific Northwest, there is a disagreement among
the Californians.
Mrs. BOXER. Mr. President, I am supporting the Wyden-Smith amendment
because it sends the right signal--an ethical signal to the private
utilities in California who owe billions of dollars of unpaid bills to
those who supplied energy to my State when my State was in dire need.
Sometimes these power generators, many municipal utilities, were forced
by the Federal Government to send this power, even though they were
concerned that they needed to conserve it for themselves or that they
might not get paid.
Call me old-fashioned, but I say pay your bills. Don't send your
parent company $4.8 billion--which is what one private utility did--to
pay dividends of the shareholders and repurchase stock when you know
you have bills to pay.
I have a Washington Post article. I ask unanimous consent to have it
printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Washington Post, Jan. 31, 2001]
Audit Results Anger Consumer Groups
(By William Booth and Rene Sanchez)
Los Angeles, Jan. 30--The first of several audits to be
released by state regulators said that one of California's
two nearly bankrupt utilities, Southern California Edison,
legally passed along nearly $5 billion in net income to its
parent, Edison International, which used the money to pay
dividends to its shareholders and to repurchase its own
stock.
The audit, released Monday night by the California Public
Utilities Commission, also showed that Southern California
Edison is now broke and so strapped for cash it cannot keep
buying electricity at rates higher than it can pass along to
consumers.
The $4.8 billion was, in part, proceeds from the sale of
the Southern California Edison's power plants, which the
utility was required to sell under California's 1996
deregulation plan. Deregulation here sought to break up the
utility monopolies and open the state up to free-market
forces.
Consumer advocates--and some elected officials--reacted
angrily to the audit, accusing the utilities of pleading
poverty and begging for financial assistance from the state
to avoid bankruptcy.
``Basically, they took the money and ran,'' John Burton, a
Democratic leader of the state Senate from San Francisco,
told reporters. ``Had they not done that they would not be in
the financial problem they are in. If ratepayers bail them
out, ratepayers should get something in return, like power
lines or something.''
But officials with the utilities said their critics are
playing politics and misinterpreting their books. Tom
Higgins, senior vice president at Edison International, said:
``There's been no profit, no windfall. This is the recovery
of capital investment.''
The past profits and current solvency of the state's two
struggling utilities are central to California's energy
crisis. Most experts agree that the state is suffering from
soaring prices and its 15th day of emergency energy rationing
because of a failed and dysfunctional deregulatory plan,
which allowed wholesale energy prices to soar while capping
the rates utility companies could charge consumers. In the
past six months, the utilities have gone bust, while
wholesale power producers have reaped huge profits.
California is fast running out of time to solve its
immediate energy crisis. The state already has used up the
first $400 million in emergency appropriations for
electricity purchases. The Legislature is considering bills
to make the state a major buyer of power--and to pass along
possible steep increases in costs to consumers. Gov. Gray
Davis (D) worked through the weekend trying to hammer out a
longer-range plan, but so far the Legislature has passed only
emergency measures and decrees--and no long-term solutions.
Higgins, the Edison International executive, said Southern
California Edison was required to sell off its plants after
deregulation in 1996, and that it did so--mostly to out-of-
state companies that are now the wholesale suppliers of
California's electricity. The utility sold off its gas and
coal-fired plants, but retained its nuclear and hydroelectric
facilities.
The money they got from plant sales, Higgins said, went to
pay off the banks that loaned them the cash to build the
generating stations and to repay investors and shareholders
who also put money into plant construction. The transfer of
money occurred from 1996 through last November.
``It's like you have a house and mortgage and you sell the
house and you recover your initial investment and then pay
off the mortgage,'' Higgins said.
Another audit of Pacific Gas and Electric Co., the other
struggling utility, will be released within days. That
results are expected to be similar.
``The only reason this would be controversial is that the
consumer groups are trying to rewrite history,'' said John
Nelson, a spokesman for PG&E.
Nelson said his utility did the same thing as Southern
California Edison--it sold plants, paid off loans and sent
the rest to its holding company, PG&E Corp. He would not
disclose exactly how much was transferred, but said it is
safe to assume a figure of several billion dollars.
Consumer advocates around California, however, said it did
not matter that the utilities were returning investments to
their shareholders, a practice that no one has asserted is
financially improper or illegal. Today, they began lobbying
state lawmakers to scrap an emerging legislative plan that
would cover much of the utilities' purported debts with
billions of dollars in publicly financed bonds.
``This confirms what we've been saying all along,'' said
Matt Freedman, a director of the Utility Reform Network.
``Edison is not being straight with the public or the
Legislature about the extent of its debt.''
Freedman also said that the audit shows that in recent
months Edison has been selling some of its own generating
power back to itself at high prices on the open market, then
claiming both profit and debt.
``It's like a laundering scheme,'' he said.
Michael Shames of the Utility Consumers Action Network said
the audit could significantly influence the fast-moving
legislative debate on the state's energy crisis. He said that
while it was not illegal for the utilities to transfer money
to their parent companies, ``the question is, `Was it
prudent?' ''
But Paul Hefner, a spokesman for Assembly Speaker Robert
Hertzberg (D), said there are no substantive new revelations
in the Edison audit and that the Legislature is proceeding
with a plan outlined last Friday that would cover much of the
utilities' debts in exchange for the state receiving warrants
to buy stock in the companies.
``I don't know that it changes the landscape at all,''
Hefner said, referring to the audits. ``All along we've been
saying we're not going to do this and get nothing back. We're
driving as hard a bargain as we can.''
Mrs. BOXER. Another private utility did the same thing to the tune of
$5 billion. That is $9 billion these private utilities sent out.
In my opinion, this amendment sends a strong message to the utilities
in my State: It is not right to ask for help and walk away from your
obligations. This amendment helps 12 power companies in California,
municipal companies. In the end, it will help consumers because the
next time there is a crisis,
[[Page S2276]]
power companies will not fear they will be left high and dry and they
will be willing to assist us in the future.
This amendment was not offered in anger; it was offered in fairness.
I support it.
I yield back the remainder of my time.
The PRESIDING OFFICER. There are 37 seconds remaining.
Mr. WYDEN. To finish the debate, I yield to Senator Smith, my
colleague.
Mr. SMITH of Oregon. Mr. President, I appreciate the chance to say a
few closing words on this debate, which has been a good one.
All the neighbors of California are asking--at least those affected
by the Bonneville Power Administration--is that they be paid. I believe
California wants to pay. Ultimately, they have to work through their
law that makes it difficult to pay. We want them to do that. We need
them to do that because people in the Northwest already are paying
higher rates because of this California law. We should not have to pay
additional, higher rates.
I thank the Chair.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, how much of my time remains?
The PRESIDING OFFICER. One minute 4 seconds.
Mrs. FEINSTEIN. Mr. President, I rise to thank Senators Murkowski and
Bingaman for opposing this amendment and also to join them in saying
that I believe this is a very dangerous amendment. It creates two
classes of creditors. The first is a protected class; namely, certain
Federal entities.
Yesterday, I introduced into the Record a series of letters from
virtually all of the electricity and natural gas providers. Those
letters had one common theme, and that theme was that to do this is not
only unprecedented, but it will probably force an involuntary
bankruptcy because once the dam is broken, other creditors will then
seek to protect their rights under bankruptcy law. Hence, it is a very
dangerous amendment.
The State of California is currently seeking to purchase the
transmission lines of the utilities to be able to inject $7 billion and
solve the problem. I urge a ``no'' vote on this amendment.
Is all time expired?
The PRESIDING OFFICER. Yes, it is.
Mrs. FEINSTEIN. Mr. President, I move to table the Wyden amendment
and 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 the motion to table Amendment No. 78.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. FITZGERALD (when his name was called). Present.
Mr. REID. I announce that the Senator from New Jersey (Mr. Corzine)
and the Senator from New Jersey (Mr. Torricelli) are necessarily
absent.
The PRESIDING OFFICER (Mr. Bunning). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 67, nays 30, as follows:
[Rollcall Vote No. 26 Leg.]
YEAS--67
Akaka
Allard
Allen
Bayh
Bingaman
Bond
Breaux
Brownback
Bunning
Carper
Chafee
Clinton
Cochran
Collins
Conrad
Daschle
DeWine
Dodd
Domenici
Dorgan
Edwards
Ensign
Enzi
Feingold
Feinstein
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Johnson
Kerry
Kohl
Landrieu
Leahy
Lieberman
Lincoln
Lott
Lugar
McConnell
Mikulski
Murkowski
Nelson (NE)
Nickles
Reed
Reid
Rockefeller
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--30
Baucus
Bennett
Biden
Boxer
Burns
Byrd
Campbell
Cantwell
Carnahan
Cleland
Craig
Crapo
Dayton
Durbin
Harkin
Hollings
Inouye
Kennedy
Kyl
Levin
McCain
Miller
Murray
Nelson (FL)
Roberts
Santorum
Smith (OR)
Stabenow
Wellstone
Wyden
ANSWERED ``PRESENT''--1
Fitzgerald
NOT VOTING--2
Corzine
Torricelli
The motion was agreed to.
Mr. SESSIONS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Burns). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. NICKLES. 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. NICKLES. Mr. President, Senator Breaux, Senator Enzi, and myself
had an interesting and, I think, enlightening discussion on the issue
of ergonomics, as well as Senator Specter.
I ask unanimous consent there now be a period of about 30 minutes for
a discussion of this issue, the time to be equally divided between
Senators Breaux and Enzi for debate only.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Reserving the right to object, Mr. President, does the
Senator have an idea how long this will take?
Mr. NICKLES. About 30 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Louisiana is recognized.
Mr. BREAUX. Mr. President, I thank my colleagues for the discussion
with me--Senator Enzi, Senator Landrieu, and Senator Blanche Lincoln--
on the issue of an amendment I have at the desk, which we will not vote
on right now, but I hope to perhaps reach an agreement on at a later
hour.
The amendment addresses the question of the so-called ergonomics
rule, which this body addressed last week, through the use of a
procedure which is not normally utilized, when the Senate of the United
States said that a rule that had been promulgated by the Department of
Labor would not be allowed to go into effect addressing injuries in the
workplace that workers receive which cause them to lose very
valuable hours of service, both to themselves and their employers.
Those workplace injuries clearly cause a loss to companies and small
businesses, as well as the personal loss that is caused to the
individual.
There was a great deal of concern raised by myself and by some
Republican colleagues to the rule because in many cases it would have
an adverse effect on the States' workers compensation laws. And they
had concerns about the potential that the rule would, in fact, allow
injuries to be covered that were not directly related to having been
brought about by conditions in the workplace.
The third thing I heard a great deal of was that employers really
didn't have enough information to know whether they were covered or
what were their responsibilities. Therefore, in order to try to answer
those questions and still address the concern that I think most people
have about injuries in the workplace, which are estimated to cost
between $45 million and $54 million annually, I have offered an
amendment that I think is one this body should embrace in a bipartisan
fashion.
No. 1, we say the Secretary of Labor, within the next 2 years, shall
promulgate regulations dealing with these injuries in the workplace. In
addition to giving her the mandate from the Congress to promulgate
these regulations, we also go further and say that, in trying to
address the concerns we heard on the floor of the Senate, for instance,
in issuing this new rule, the Secretary of Labor shall ensure that
nothing in the rule expands the application of the State workers comp
law. We had a lot of concern about whether it would be altered or
expanded. This amendment clearly says that nothing would be in the bill
and the rule could expand the application of the State workers
compensation law. It also says that nothing in this amendment or in the
rule could affect the OSHA laws. They are in place as they are, and if
somebody wants to change them, that would be for a later date.
The other thing I think was very important, which we heard from so
many of our people, was that the injuries they are talking about under
the rule shall be work-related disorders that occur within the
workplace. Many people were concerned that, well, someone could injure
their back on a Saturday at home during a recreational activity and
come to work on Monday and blame it on conditions in the workplace.
The amendment I have offered, along with my bipartisan cosponsors,
says
[[Page S2277]]
the standard shall not apply to nonwork-related disorders that occur
outside the workplace or nonwork-related disorders that are aggravated
by the workplace.
So every objection I heard, particularly from my colleagues on this
side of the aisle, I think has been taken care of in the amendment we
have offered. It is my intent that if this rule would be promulgated,
nothing in this amendment would prohibit Congress from using the same
Congressional Review Act procedures if they did not like the rule. If
some think it is too much or too little, they can still use the
Congressional Review Act, as we did last week to knock down the rule
with which a majority of the Members of the Congress did not agree.
I think our amendment addresses every concern. The question is, Do
you want to do something about the workplace that is fair, reasonable,
responsible; that businesses can embrace, working people can embrace,
and say, all right, this is a problem, let's recognize it and do
something about it? Just to say, well, the Secretary may not do that,
really doesn't give any guidance to what the Congress says. We
should make the rules.
My amendment takes care of every objection I heard, I think, and I
think there is a proper balance between employers and business, as well
as the working men and women of this country. I do not, for the life of
me, understand why this would not be something that should not be
unanimously agreed to by Republicans as well as my Democrat colleagues.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. BREAUX. I guess we are equally divided under the agreement.
The PRESIDING OFFICER. Correct.
Mr. BREAUX. I will yield 15 minutes to my colleague. I reserve 15
minutes.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. ENZI. Mr. President, I thank Senator Breaux for his efforts on
ergonomics. These injuries are happening in this country and we need to
do something about them. I appreciated the conciseness with which he
made a statement during the last debate we had on ergonomics.
I wish his bill more closely followed the statement he made. I
suspect there is leeway in there to do exactly what he said when he
made that statement, and I think this comes fairly close. I hope we
will be able to work together to make some changes in what is in his
amendment. Most of all, what I hope is that the Senators who are
interested in this issue will work with me. I am the subcommittee
chairman for Employment, Safety and Training. It is all of the labor
issues. It includes the ergonomics issue. I had planned to begin a
process of holding some hearings. I already have my staff members
looking at past efforts--and there are supposed to be 10 or 12 years of
efforts on ergonomics already--to see what was done and where it went
wrong before. Also, I am scheduling some meetings with Secretary Chao.
I am pleased to have other people involved in those meetings with me.
We need to come up with a mechanism that will actually prevent
injuries. I am not interested in the mechanism that just does paperwork
or just puts costs on business. I know the people who submitted this
amendment--particularly Senator Breaux--are not interested in having
that either.
I have been trying to work on this compliance issue through a number
of mechanisms since I got here. One of them is something called the
SAFE Act. It was encouragement for businesses--particularly small
businesses--to hire professional consultants to come in and take a look
at their business. I would suggest using OSHA people, but they are
already overworked doing OSHA inspections. In State plan States, which
are the States where there are the least OSHA accidents, there are more
inspections but there is more consultation that is done. So I have put
a huge emphasis on consultation with businesses.
The way the consultation works in States is the OSHA team, or
inspector, comes in and looks at the place and says this is wrong, this
is wrong, and this is wrong. If they say that, you better fix it. And
if you fix it, then you are not subject to the penalties.
That is an incentive process. That is what I envision for compliance
with an ergonomics rule as well: Somebody helping the small
businessman. I am not worried about the big businesspeople because they
have the VPP program, the specialists, and they have the professionals
on staff. It is the little guy, and that is what we talked about when
we did the ergonomics CRA last week. They cannot digest all the
information. They do not even know what is absolutely essential and
what is suggested.
If somebody can tell them what to do--they know the value of their
employees; they want to protect their employees. In most instances,
they do not know how to protect their employees. If there is more of
the consultation aspect to it and the incentive to do it, if the folks
come in and tell you to do those things and you do those things, you
will not be fined. I am so pleased there is a compliance piece to this.
Something I hope will be incorporated in the future, perhaps even in
this rule, is the ability of the managers to talk to the employee or
employees directly. The way the current national labor standards read
is that management cannot talk to the employees unless they are in a
union. Of course, if they are in a union, then the management can talk
to the representative of the employees.
We are missing this step of being able to say to an employee: How are
you feeling? How is your workstation? Are there any improvements we can
make? These are folks who are doing that same job in all of the
examples we use, the same job day in and day out. They are the experts
on it. They know the things that can be done to make their work easier.
Those are the things that need to be incorporated in ergonomics: very
specific suggestions for a particular kind of a--it is not even for a
particular kind of business because within an industry, several
different businesses will do the same operation differently. If they
conferred more, which I am not sure they are allowed to do either, then
they would probably wind up with a standard method of doing things, and
they would be able to compare the ergonomics process, as well as any
other safety issue and come to an agreement on how those safety issues
can be reached.
Another thing that needs to be done while we are at it is changing
the rulemaking process. One of the things that fascinated me in my
comments and visits with Assistant Secretary Jeffress, who is in charge
of OSHA, was that in the 28 years OSHA has been in effect, there has
not been one rule revised even though there have been huge changes in
the workplace.
What that tells me is that our rulemaking process is so cumbersome,
so subject to court action that we cannot take a look at things that
were done 28 years ago even though the technologies have changed
tremendously.
There are some things that need to be done. I wish we had been
consulted a bit more on some of the specific wording. I know there is
an effort to work together on some of these things, so we may be able
to come up with an agreement in a short while so this amendment can be
accepted.
I thank the Senator from Louisiana for making this effort, for
getting us started on it. I hope he will work with me on the process. I
yield the floor and reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Louisiana.
Mr. BREAUX. Mr. President, I will use whatever time I need, and I
will then yield to the Senator from Arkansas.
Some of the points the Senator made are valid. However, our amendment
addresses those concerns, particularly the concern about an employer
knowing exactly what his or her requirements are because we say that
the rule shall set forth in clear terms the circumstances under which
an employer is required to take action, the measures required of an
employer under the standard, and the compliance obligation of an
employer under the standard.
We give the employers clear direction. We let them know when they are
in compliance, and we clearly spell out what their obligations are and
also the measures that are required.
Under the requirements of our legislation, the rule has to come back
and clarify to an employer exactly what is being required.
[[Page S2278]]
I think the amendment is a good one; ergo, I think it should be
adopted.
I yield whatever time she consumes to the Senator from Arkansas, Mrs.
Lincoln.
The PRESIDING OFFICER. The Senator from Arkansas.
Mrs. LINCOLN. I thank the Chair.
Mr. President, with all of this talk we have heard recently about
bipartisanship and wanting to do what is right by everyone, not leaving
anyone behind, I am certainly glad we have at least a few minutes to
have a debate on an alternative to last week's issue of workplace
safety.
I have been delighted to work with my colleagues, Senator Breaux and
Senator Landrieu--and Senator Specter has worked with us--in developing
an amendment that requires the Department of Labor to draft a new
ergonomics standard that addresses the ergonomic hazards in the
workplace without penalizing business owners who act in good faith.
As I stated in my remarks last week, I voted to repeal the ergonomics
standard last year because, in my opinion, it was unreasonable in terms
of the requirements it imposed on businesses and how unworkable it was
with regard to the vagueness of the standards with which employers were
expected to comply.
However, I do not believe our action to overturn the current
ergonomics rule should in any way be interpreted as congressional
intention to end the debate on this issue of workplace safety. That is
what we did last week. That certainly was not my intention. In fact, I
believe the Federal Government does have a responsibility to set safety
standards and to protect workers against hazards that exist in their
place of employment.
Certainly, the new Secretary of Labor and the new administration,
through working with our colleagues in hearings and other ways, I think
would relish the idea of being able to come up with a standard that is
workable, something that can give us workplace safety but encourage
businesses to be involved. That is certainly possible.
The ergonomics standard or the rule we saw last year was a no win for
anyone because we were not going to see, because of the court cases
that were already involved with that rule, workers protected, nor were
we able to see a reasonable compliance that industries could meet. It
was not a win for anyone.
If we fail to come back with anything else, and if we fail to
encourage the Department of Labor to come up with something that is
reasonable and workable, then we, once again, have failed everyone--
businesses and employees--because we can do better at providing better
workplace safety, and we can also provide businesses a better way of
complying with it. Everyone wins with that--workers and businesses.
The amendment we are offering gives the Department of Labor 2 years
to craft a new Federal ergonomics standard. In addition, our amendment
directs the Department to address serious problems that exist in the
previous rule.
Specifically, we make clear that the new standards should not apply
to injuries that occur outside the workplace or, as Senator Breaux
mentioned, injuries that are aggravated by activities that employees
perform as a part of their job.
Furthermore, this amendment requires the Secretary of Labor to set
forth in clear terms what businesses are required to do to comply with
this new standard before it takes effect.
Finally, we prohibit the new rule from expanding the application of
State workers compensation laws.
In short, I believe our amendment is a reasonable, commonsense
approach that will allow the Department of Labor to address a serious
health and safety issue in the workplace in a manner that is fair to
both employees and employers. After all, in the debate last week, is
that not what we said we were striving for?
As a founding member of the Senate's new Democrats coalition who is
inclined to seek compromise whenever possible, I wish we had been given
the opportunity to draft and offer a compromise proposal on ergonomics
last week when it was most appropriate. Unfortunately, we did not have
that opportunity.
Now that the consideration of the resolution of disapproval has been
concluded, I am certainly hopeful my colleagues will want to work in a
bipartisan way and permit a reasonable period of debate and vote on
this amendment and come up with something that is going to be workable
for absolutely everybody, certainly employees as well as employers and
businesses, all of which can be brought to the table in the next 2
years, and we can craft something that is going to be workable and meet
the objectives we have all expressed.
I thank the Senator from Louisiana for his hard work and leadership
in this effort, and I look forward to working with all of our
colleagues in the next several days to come up with something we can
adopt and prove to the people of this Nation and businesses of this
Nation that we are truly concerned about workplace safety and about
being sensible.
I yield back to the Senator from Louisiana the remainder of his time.
Mr. BREAUX. I thank the Senator from Arkansas for her contribution.
She comes from a State deeply involved in these issues. I know she
speaks with a ``mine'' of experience in addressing these concerns. I
thank her for her contribution, as well as my colleague from Louisiana,
Senator Landrieu.
I take this time to say to our colleagues our staffs are currently
talking with each other across party lines to see whether there might
be some agreement we can reach on an authorization bill as an amendment
either to this legislation that is currently pending before the Senate
or to some other legislative package that is going to come before the
Senate. I will continue to work with our colleagues and our staffs
trying to find a way to reach an agreement on a pending amendment.
I yield the floor.
Mr. ENZI. I thank the Senator from Arkansas and the Senator from
Louisiana for their consideration and their work in a bipartisan way to
see we get something done and to extend that opportunity to go to
meetings with Secretary Chao and also to participate in hearings on my
subcommittee. We want to make some progress on this issue.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent the order for the
quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I know Senator Enzi is not managing the
bill--he is on the floor for other reasons--but I wonder if we could
have some idea in the near future as to what we are going to do for the
rest of the day. Senator Wellstone, by virtue of the unanimous consent
agreement, is going to come in at 1:15. We have Senator Durbin who has
offered what is, in effect, a substitute. That was laid down last
night. He is willing to start debating that amendment.
We have others we could get over here to offer amendments. We want
the record to be clear that we are doing everything we can. Senator
Leahy has instructed everyone to move this bill along as quickly as
possible. I certainly agree with that. I see Senator Grassley, too.
Maybe we could have some information as to whether we could set aside
the amendment that is pending and move on to something else?
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, it is my understanding the bill managers are
looking at what is left on the bankruptcy bill at this moment. Senator
Wellstone's bill will be the amendment pending. He is planning on being
here at 1:15.
I had heard some concern that most of the actual bankruptcy issues
had been covered and we were just doing some peripheral ones. There is
some concern on our side as to what the process is going to be, too. It
is my understanding they are discussing that now. The chairman probably
can give us some information.
Mr. GRASSLEY. If the Senator from Nevada will yield, I will try to
respond to his inquiry.
No. 1, since so many people are busy during the lunch hour with the
steering committees and the type meeting
[[Page S2279]]
that both parties have, we might not be so fortunate as to get
something up before 1:15 when the Wellstone amendment is up.
The second is, the Senator asked if we could do another amendment.
What amendment would the Senator suggest we move to, then?
Mr. REID. There is one amendment about which I have received a number
of calls today. Mr. Durbin, the Senator from Illinois, wants to offer
his substitute. In effect, that is what it is. The Senator from Iowa is
familiar with that. It is at the desk.
It is at the desk. He would be willing to have a relatively short
time agreement for the opportunity to express his views on that.
Mr. GRASSLEY. As the main sponsor of this legislation, I should be
able to tell you we could go to the Durbin amendment. But we have some
reservation at this time on moving forward on the Durbin amendment,
particularly because it would take a good deal of time and would
interfere with the Wellstone amendment. If there is some other
amendment the Senator from Nevada would like to take up, he might
suggest something, and we would quickly consider that.
Mr. REID. We have one that Senator Leahy has been trying to get up,
amendment No. 19, a set-aside amendment.
Mr. GRASSLEY. That is the same amendment, if we went back to regular
order. If we called regular order, we would end up on that amendment.
Mr. REID. It is my understanding that No. 20 is regular order. This
one isn't before the Senate.
Mr. GRASSLEY. This is an amendment that has not been before the
Senate.
Mr. REID. That is my understanding. It has been filed but it has not
been debated.
Mr. GRASSLEY. I suggest we put in a quorum call, and then we will
take a look at it.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. 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. REID. Mr. President, I ask that the pending amendment be set
aside temporarily and amendment No. 19 on behalf of Senator Leahy be
offered.
It is my understanding that the Senator from Iowa will also want a
unanimous consent agreement to indicate there would be no second-degree
amendments.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 19
Mr. REID. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The senior assistant bill clerk read as follows:
The Senator from Nevada [Mr. Reid], for Mr. Leahy, proposes
an amendment numbered 19.
Mr. REID. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To correct the treatment of certain spousal income for
purposes of means testing)
On page 17, line 8, strike ``and the debtor's spouse
combined'' and insert ``, or in a joint case, the debtor and
the debtor's spouse''.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________