[Congressional Record Volume 147, Number 173 (Thursday, December 13, 2001)]
[Senate]
[Pages S13080-S13099]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




AGRICULTURE, CONSERVATION, AND RURAL ENHANCEMENT ACT OF 2001--Continued


                           Amendment No. 2513

  Mr. BOND. Madam President, may I inquire what is the pending 
business?
  The ACTING PRESIDENT pro tempore. The Senator's amendment is the 
pending question.
  Mr. BOND. I thank the Chair.
  Last night I laid down an amendment which I think enhances this farm 
bill and focuses on what is important for agriculture. We have had a 
lot of discussion about how we have to help farm families. Clearly, 
they are struggling.
  This country has been in a recession for about 15 months. We have 
been under attack by terrorists for about 3 months. But farmers across 
this country and their families and those with whom they work closely 
know they have been in recession for 4 or 5 years.
  The collapse of the overseas agricultural markets has driven prices 
down. That is why, among other things, it is vitally important that 
this body pass trade promotion legislation because we must get those 
markets back.
  In the meantime, we look for things we can do to assist farmers. We 
are going to send them financial assistance. In the last several years 
as they have suffered from low prices, we have provided very 
significant amounts of money to help fill in the void left by low 
market prices.
  We can do research for them. Research in new ways of doing business 
made our farmers continually more productive.
  We must be sure adequate transportation exists. In the heartland that 
means keeping the vital waterways of the Missouri and Mississippi 
Rivers open to transportation so we can have economical and efficient 
ways of getting our farm products to market.
  But there is one thing farmers tell me they are concerned about, 
perhaps more than anything else. While they are concerned about the 
weather, they understand you cannot change that. They are concerned 
about crops and pests and their interaction. They are concerned about 
markets. As I said, markets have been down.
  But the one thing that really frustrates them is that too often our 
Government seems to have farmers in their sights. They want to 
accomplish all kinds of good purposes, but they want the farmers to do 
it. The farmers who control much of the land of the United States are 
the ones to whom the Federal Government says: We would like to see this 
done, and we will have you, the farmers, who are trying to earn your 
living off the land, make the changes that we think are good policy 
whether it be environmental policy, whether it be economic or income 
distribution policy, or whether it be food policy. Some farmers tell me 
that they spend more time preparing for public hearings than they spend 
on their combines.
  The amendment before us today says farmers are going to get a chance 
to have an advocate at the U.S. Department of Agriculture.
  We all know that regulatory requirements are necessary. They often 
carry out the purposes that have been approved by the Congress. They 
are authorized by law, but the problem is sometimes the regulatory 
agencies that are trying to carry out those purposes know nothing about 
agriculture or farming or how the individual farmer trying to earn a 
living for himself or herself and their families is affected by it.
  We are trying through this amendment to give the USDA the 
responsibility and the tools to help farmers who are being oppressed.
  This is a life preserver thrown to farmers whose livelihood or safety 
is threatened by bad Federal regulations.
  I introduced last night two letters with lengthy endorsements from 
farm and agricultural organizations, nationally and from my home State 
of Missouri.
  I am pleased to be joined by Senators Grassley, Enzi, Hagel, and 
Miller as cosponsors. I hope we will have more who will come to the 
floor and be willing to speak on behalf of this legislation once they 
understand its importance.
  Let me go through the legislation very briefly. It is unlike the rest 
of the farm bill. A lot of people are still trying to read through the 
900 pages of the original farm bill and 900-plus pages of the amendment 
that was dropped on us. This one is easy.
  It says the Secretary may review any agency action proposed by a 
Federal agency to determine whether the action would likely have a 
significant adverse economic impact on or jeopardize the personal 
safety of agricultural producers--farmers. If the Secretary determines 
that it is likely to have such a significant adverse impact, the 
Secretary, No. 1, shall consult with the agency head, call him up on 
the phone, and talk with him; No. 2, advise the agency head on 
alteratives to the agency action which would be least likely to have a 
significant economic impact or jeopardize personal safety.
  Then, if after a proposed agency action is finalized the Secretary 
thinks it would have a significant adverse impact described above, the 
Secretary may defer to the President, who not later than 60 days after 
the date on which the action is finalized reviews the determination of 
the Secretary. The President can reverse, preclude, or amend the agency 
action if the President determines that overturning that action is 
necessary to prevent the adverse economic impact and is in the public 
interest.
  In considering this, the President takes into account the public 
record, competing economic interests, and the purposes of agency 
action.
  The President may not overturn an agency action that is necessary to 
protect human health, safety, or national security, significantly 
limiting his options. If the President chooses to overturn an agency 
action, the President has to notify Congress of the decision and submit 
a detailed justification.
  Congress then has the opportunity to review the action under the 
expedited procedures set forth in the bill which I was very pleased to 
sponsor back in 1996, the Small Business Regulatory Enforcement 
Fairness Act, which provides for expedited review in the Senate without 
the chance of filibuster. By majority vote in both Houses, the 
President's action overturning any of these adverse impact agency 
regulations could be reviewed.
  That seems to me to give the President the power to step in.
  It is my intention to provide, first, the Secretary of Agriculture 
with the responsibility of looking for these agency actions that may 
have an adverse impact, calling them to the attention of that agency 
head, and working to resolve the problems so the objectives of the 
proposed regulation can be achieved without imposing the burdens that 
the Secretary believes would be unnecessarily inflicted on farmers.

[[Page S13081]]

  If that does not work, then the President has the discretion to 
resolve disputes and say in this instance the public would better be 
served if we overturned this regulation and issued a new one.
  This amendment should force USDA to be more aggressive in protecting 
and fighting for farmers. It should help make other agencies more 
responsive to the needs of farmers.
  We can help families with $170 billion in spending that we are 
talking about here today. But if we really care about them, and if we 
really care about their economic contributions, the social value of 
farm families, and certainly their contribution to feeding our Nation, 
protecting our food security, and our national security, then we ought 
to provide that the agency designed to serve farmers has the power and 
the responsibility to speak up for farmers to ensure that they are not 
overrun by an unthinking, ill-considered undertaking and ill-considered 
action.
  We protect the blind mussels or other endangered species. We ought to 
be concerned about a farm community being threatened or endangered. I 
think this gives the farmers some limited leverage in assuring that 
they are protected.
  It will not be necessary very often for the President to intervene 
once people know he has that power because agencies should, with this 
mandate to the Secretary of Agriculture, work out the problems in 
advance. This Presidential discretion which can be reviewed on an 
expedited basis by the President is a fail-safe mechanism.
  This country has been in a recession for 15 months. We have given the 
President broad discretionary power since September 11 to conduct war 
and fight crime. We have appropriated tens of billions of dollars to 
help restore the strength of this country. We tried to help the 
airlines, and we are pursuing an economic stimulus package.
  Parenthetically, we absolutely must pass legislation to shore up the 
insurance agencies to provide assurance that terrorism insurance will 
be available. We will have a major shutdown in our economy if we don't 
get that done.
  I urge the majority leader to take this up immediately because we may 
be finding ourselves without insurance as of January 1 if we don't. I 
urge him to go back to the bipartisan measure worked out by the leaders 
of the banking committee and to pursue that legislation.
  To go back to the farmers, as part of the stimulus we are going to 
provide assistance to the unemployed. We should recognize that farm 
families in rural America have been in a recession for 4 years. One of 
the things we can do in addition to providing dollars is to give them 
some protection from their Government. That is something they told me. 
If you ask the farmers in your State, I assure you that you will be 
told it is vitally important.
  There is a challenge, limited as it is, that when resource issues 
affect farms and their families, it is OK for the Government to fight 
for the farmers. In the past, the fight has always been one-sided 
against the farmers.
  In this instance, I urge my colleagues to support the amendment and 
send a message to farmers that we believe farmers are worthy of 
protection. We want the Government to make every sensible attempt to 
act as an advocate. We believe the USDA should be active and visible in 
fighting for farmers. We believe that the President and the Congress 
are capable of this and can be trusted with the public interest. This 
says to the administration that farmers don't always have to be at the 
bottom of the food chain.
  I urge support of the amendment. I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. JEFFORDS addressed the Chair.
  The ACTING PRESIDENT pro tempore. Who yields time to the Senator from 
Vermont?
  Mr. HARKIN. Madam President, how much time do we have on our side?
  The ACTING PRESIDENT pro tempore. The Senator from Iowa controls 45 
minutes.
  Mr. HARKIN. How much time does the Senator wish?
  I yield the Senator as much time as he needs.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. JEFFORDS. Madam President, I rise in opposition to the amendment 
offered by the Senator from Missouri, Mr. Bond. This amendment gives 
broad authority to the Secretary of Agriculture and the President to 
overturn the legal responsibilities of Government agencies if they 
determine that an agency action might --might--have adverse economic 
impacts on or jeopardize the personal safety of a farmer or rancher.
  While I know the Senator is concerned about the economic well-being 
of farmers and ranchers--and we all are--this amendment would waive 
many of the protections that our Federal agencies are charged with 
providing.
  Under this amendment, if the Environmental Protection Agency sets a 
water quality standard to prevent degradation of a stream, and the 
Secretary and the President think meeting that standard may have an 
adverse economic impact on a farmer or a rancher, the President can 
reverse the agency action. Or, if the Secretary of the Department of 
the Interior adds a species to the list of threatened or endangered 
species, and the Secretary of Agriculture and the President determine 
that recovering that species may have an adverse--may have an adverse--
economic impact on a farmer or a rancher, the President can reverse 
that action.
  When Federal agencies are considering the actions they are required 
to take under the law, the agencies consider the cost, and weigh the 
cost with the benefits the actions will have before proposing them.
  Finally, the amendment does not consider the necessity of protecting 
our environment when considering reversing an agency action; therefore, 
I oppose the amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time?
  If neither side yields time, the time will be charged equally to each 
side.
  Mr. BOND. Madam President, I suggest the absence of a quorum and ask 
unanimous consent that the quorum call be charged equally to both 
sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HARKIN. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HARKIN. Madam President, I yield myself such time as I might 
consume.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. HARKIN. Madam President, I yield to no one, including my good 
friend from Missouri, in fighting for our farmers and people who live 
in small towns in rural America to ensure that they are not set upon by 
the powers of the Federal Government in any way that would act to their 
detriment, their safety, their security, their well-being, their 
ability to make a living, or their ability to live as free and 
independent citizens of this country.
  But I have looked over this amendment. At first I thought it might be 
OK. I looked it over. Then it hit me that the Senator's amendment says 
basically that the Secretary of Agriculture may review any action 
proposed by any Federal agency. That is what it says here. It says: 
Any. It says: The Secretary may review any agency action proposed by 
any Federal agency. . ..
  And then it says: If the Secretary determines that a proposed agency 
action is going to do certain things with adverse effects on 
agricultural producers, then the Secretary can give it to the President 
for review. And then the President can reverse the agency action, just 
like that. He can reverse it, preclude it from going into effect, or he 
can amend it.
  Well now, I don't know. I would like to ask: Why don't we include 
small businesses? I know my friend from Missouri is a strong defender 
of small business. Why don't we include small businesses in this? Why 
don't we let the head of SBA review any agency action by any Federal 
agency to determine whether or not it is going to have an adverse 
effect on small business, and let the President then reverse or amend 
the agency action?
  Mr. BOND. Madam President, may I respond?

[[Page S13082]]

  Mr. HARKIN. Sure, I yield for a question or a response to my 
question.
  Mr. BOND. My question is, Are you familiar with the role of the 
Counsel for Advocacy in Small Business? That is his job. Are you 
familiar with the Small Business Regulatory Enforcement Fairness Act 
that we have adopted in the Small Business Committee to provide teeth 
for that act?
  Mr. HARKIN. Having served on the Small Business Committee of the 
Senate now for 17 years, I am fully aware of all of the acts adopted in 
that Committee. But there is nothing in the Small Business 
Administration Act that allows the SBA Administrator to review all 
these agencies' actions and then give them to the President for further 
review, and that lets the President amend an action or reverse an 
action by himself, with only a notification to Congress.
  I ask the Senator from Missouri: Is there anything in the Small 
Business Administration Act, or any law passed by Congress, that gives 
the President that power?
  Mr. BOND. The answer to that is not yet, but if the manager of the 
bill would like to come to the committee and offer that, I would 
certainly be interested in supporting it.
  We are working on the farm bill here. I think most of us agree that 
farmers need some additional protection. They do not have a counsel for 
advocacy in USDA. We have not seen the Secretary of Agriculture take 
that role. This says specifically they should.
  Mr. HARKIN. I say to my friend from Missouri, we do have a counsel at 
the Department of Agriculture who has every ability to do exactly what 
the Senator is talking about.
  The Senator says, take it to committee. I say to the Senator, take 
this to the committee. Let's have the committee take a look at this and 
not do it on the floor. Just as the Senator says we ought to take it to 
the Small Business Committee, that is my suggestion.
  And why stop with small business? Why don't we do veterans? Why don't 
we do the same thing for our veterans in this country, who, time and 
time and time again, are affected by agency decisions in other parts of 
the Government?
  Why don't we have the Secretary of Veterans Affairs have the same 
power that the Senator from Missouri wants to give to the Secretary of 
Agriculture? Why not do the same thing for our veterans and give them 
that kind of protection that they need, so that the President, without 
even consulting Congress, could overturn, amend, reverse any agency 
decision if he believes it adversely affects veterans in this country? 
Why don't we give that power to the Secretary of Veterans Affairs?
  Why stop there? Why not give the same power to the Secretary of the 
Interior to review any agency action that might adversely affect a 
public park or interfere with the enjoyment I might have in going to a 
public park? And then let the President amend it, reverse it, without 
ever consulting with Congress?
  Why stop there? Why don't we do the same thing for the Secretary of 
Labor? Let the Secretary of Labor have the power to review any agency 
action by any Federal agency? And if the Secretary of Labor thinks the 
action will adversely affect a working person in this country, the 
Secretary of Labor could give it to the President and let the President 
reverse it, do away with it, and then just let Congress know. That is 
what the amendment of the Senator from Missouri says. It says the 
President can do all this. He can reverse it, preclude it, amend it. 
All he has to do is notify Congress of the decision to reverse, 
preclude, or amend the action and submit to Congress a detailed 
justification for the decision. We don't have any power. The President 
can do the whole thing.
  Why stop there? Let's think about other things. On the face of it, it 
might sound good. Then you start thinking about it and you say: Wait a 
second; we do could this for everything. What it means is that we would 
give the President of the United States the power to reverse, amend, 
preclude any agency decision without ever having to come to Congress.
  We have an Administrative Procedure Act, a law passed by this 
Congress to provide the President and the Federal agencies--the 
executive branch of Government--with the guidelines under which it can 
operate. We amend it from time to time. This is where this amendment 
ought to go, on the Administrative Procedure Act. But there are in the 
Administrative Procedure Act certain things that have to be done. One 
of the things that is most important of all is to insist that Congress 
play its constitutional role and exercises its constitutional right. 
The President can't just do these things without letting Congress have 
the power to say whether he can do it or not. Otherwise, we might as 
well shut our doors and go home; let the White House run everything in 
this country.
  This amendment on its face kind of sounds good. It sounds good. But I 
wonder if supporters of this amendment have really thought through all 
the implications of it and what it may mean. The farmers I talk to 
don't want another layer of bureaucracy from Washington. This would be 
yet another layer of regulatory burden when agencies are carrying out 
the law.
  And keep in mind, it could be something that maybe a farm group or a 
farm organization might want but the Secretary of Agriculture or the 
President may not like it. This is a two-edged sword.
  My friend from Missouri would say: Well, but it has to have an 
adverse economic impact on, or jeopardize the personal safety of, 
agricultural producers. That is pretty broad. I am sure any smart 
Secretary of Agriculture or President could say: We have this agency 
action out there, and we can interpret it so that it has an adverse 
economic impact on farmers. Therefore, we are going to reverse it 
willy-nilly because we, the President and the Secretary of Agriculture, 
have decided that it has an adverse economic impact on farmers. But the 
agency action may be in the best interest of farmers according to what 
some of us may think. Maybe some of us here may think that agency 
action may actually benefit farmers. Others may not think so. Maybe the 
President of whatever party may not think so. He can just reverse it. 
What power do we have?

  I guess we have to go through the legislative process of having a 
bill and getting it through committee. We have no say-so whatsoever in 
the President's decision to reverse, preclude or amend the agency 
action.
  I always say at this time of the year, when people come around with 
nice presents for you, that you had better unwrap the present and take 
a good look at it. Just because it has a fancy bow and fancy paper 
doesn't necessarily mean it is a gift. I say to my farmers and my 
friends in rural America, the amendment offered by my friend from 
Missouri is not a gift. This is a two-edged sword. It may help 
sometimes, but it may hurt. It may also open the floodgates for a lot 
of mischief in other Federal agencies that may adversely affect our 
farmers.
  Unwrap this package and take a look at it. You will see it is not 
what it is touted to be.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER (Mrs. LINCOLN). The Senator from Missouri.
  Mr. BOND. Madam President, I yield myself such time as I may require.
  I certainly accept the manager's invitation to unwrap this package. I 
only wish we could do this on the southern border of Iowa and the 
northern border of Missouri, out where farmers live, away from the 
rarified atmosphere of this Chamber, and ask the farmers of Iowa and 
Missouri, the farmers of any other State, is this really a two-edged 
sword? Are you as a farmer really worried that the Fish and Wildlife 
Service is going to put out a regulation that would help farmers and 
the Secretary of Agriculture would oppose it and try to overturn it and 
get the President to overturn it?
  That one won't meet the laugh test. That dog won't hunt in farm 
country. People know what is going on out there. It is not a danger to 
farmers that we have too much regulation. Actually, when regulations 
are overturned, it is usually when a regulation affects a large 
metropolitan area--building a bridge, something like that. Maybe if 
there are a lot of people around who are affected, then they can get 
some relief. When it is just a few farmers, when they need some 
irrigation water, then other things come to the fore.
  Ask the farmers on the Klamath River about the sucker fish. Ask the

[[Page S13083]]

farmers in Texas about the Arkansas shiner. Who is being protected 
there? The Fish and Wildlife Service has the power, overwhelming power, 
to jump in and protect endangered species. Some people think it is time 
somebody had the power to jump in and protect endangered farmers. That 
is the difference.
  It is time we turn around the balance of the Federal regulatory 
juggernaut that has been running over farmers in the name of all kinds 
of other interests and give the farmers some protection, give the 
farmers a chance to be heard.
  The President has to weigh these issues carefully and find out if 
they protect public health or safety or the national interest before he 
turns it around. The Senator from Vermont said the Secretary could 
overturn it. That is not what this bill proposes. Only the President 
can issue such an order, only under the most unusual circumstances. And 
my friend from Iowa is not correct; the Congress does have power. The 
Congress does have power to overturn that action.
  I can tell my colleagues with that threatened action facing a 
President, a President is not going to do this lightly. That is why we 
say it ought to be elevated to the highest level because it would only 
be used in the most serious of circumstances.
  My friend from Iowa says there are all kinds of protections. The 
Administrative Procedure Act is a great protection for farmers. That is 
laugh line No. 2. You go to the elevators or the livestock market 
around my State or your State or anybody else's State and ask: How much 
protection are you getting from the Administrative Procedure Act? If 
you are lucky, they will give you a smile. They know that doesn't work 
for the individual farmers. If there are all these protections working 
for farmers, how come the farmers are not being protected?
  Just ask. I urge my colleagues, if you are undecided, get on the 
phone and call a couple of farmers back in your home State and see how 
safe they feel with all these protections that my friend from Iowa says 
are on the books. They are not there, Madam President. They are not 
there.
  When you unwrap it, you see that this is a very important measure to 
move the Secretary of Agriculture into an active advocacy role which, 
frankly, USDA has not provided. They may have the power, but they 
haven't used it. This tells the Secretary she must use that power. And 
I believe she will. It gives the President power in unusual 
circumstances--the highest level of circumstances--to make an order 
which has to be in the public interest and which is immediately 
reviewable by Congress. I think that is a protection we need.
  Again, I urge the support for this amendment.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Madam President, I yield myself such time as I may 
consume.
  This is a good debate. I enjoy my friend from Missouri, south of the 
Iowa border. I would be glad to meet on the dividing line with Missouri 
and Iowa and have a debate. We will invite the farmers in and talk to 
them about this because this is a double-edged sword. What happens if 
this power goes to the Secretary of Agriculture? This is a dangerous 
road--say this is extended to all agencies. Then the Secretary of the 
Interior gets the same power. Let's say USDA makes some decision that 
we think is beneficial for farmers and helps farmers, and then the 
Secretary of the Interior says that decision affects fish and wildlife. 
The Secretary of Interior can just go to the President and reverse that 
decision. That would not be good for the farmers. He overturns it, 
amends it, or precludes it--those three words that the Senator has in 
his bill. That is the double-edged sword. We just can't chance that.
  The best protection our farmers have out there right now is those of 
us sitting on this floor today, including my friend from Missouri and 
the occupant of the chair. I don't care if they are Democrats or 
Republicans. The best protection for our farmers and our people in 
rural America is the Congress of the United States, the House and 
Senate, Republicans and Democrats alike--not the administration. The 
administrations--I don't care who they are, Republican or Democrat, at 
the White House--and I have seen it in my 27 years here--give scant 
attention to rural America.
  I know this amendment by my friend from Missouri is well intentioned. 
I know what he is trying to do. But I have to tell you, the other edge 
of that sword can be mightier than the edge of the sword he is trying 
to give to the Secretary of Agriculture. Just look at the history of 
past administrations and then ask: How often do they come down on the 
side of farmers? How often do they come down on the side of other 
interests? That ought to tell the tale right there.
  No, this is not in the best interest of farmers. The best interest of 
farmers is to keep the power here in Congress and in committees, where 
we can fight for our rural people and our farmers and not give that 
power to the President of the United States.
  Mr. BOND. Will my friend yield?
  Mr. HARKIN. I am glad to yield.
  Mr. BOND. I ask my colleague this: He said maybe the Secretary of the 
Interior would want to come in. Does my friend know that, under the 
Endangered Species Act, the Fish and Wildlife Service doesn't even have 
to go to the President? The Fish and Wildlife Service can shut down an 
agricultural operation, a road-building operation. The Fish and 
Wildlife Service has already, in the current law, the power we would 
seek to give the President, only there is no congressional review.

  So would the Senator explain to us the difference between the power 
of the Fish and Wildlife Service and what we hope to give the President 
on a congressionally reviewable basis.
  Mr. HARKIN. I say to my friend that the Fish and Wildlife Service has 
to abide by the Administrative Procedure Act and the laws passed by 
Congress. The Congress has every power to review and to keep the Fish 
and Wildlife Service--as the Senator knows, because we have done it--
from doing what they want to do. We have that power. I don't see that 
in the amendment here. We have the power now. I don't see it in this 
amendment.
  Mr. BOND. Madam President, this doesn't change in any way the powers 
of Congress. As a matter of fact, it gives Congress a new power for 
expedited congressional review.
  Mr. HARKIN. I say to my friend, I don't see that. The President can 
do all this and notify Congress. We don't have any power to do 
anything, according to this.
  Mr. BOND. I ask my colleague to read the provisions in the amendment 
that describe the congressional notification and congressional review, 
beginning on line 19 of page 4, ``Reversal preclusion, or amendment of 
any agency action . . . shall be subject to section 802 of title 5, 
United States Code.''
  We did not spell it out there, but that is the expedited 
congressional review procedure. Again, I apologize for the way this is 
drafted. Legislative counsel has said to get to expedited congressional 
review on page 4, lines 19 through 22, do that job.
  The PRESIDING OFFICER. Who yields time? If neither side yields time, 
time will be charged to each side equally.
  Mr. BOND. Madam President, I yield 5 minutes to Senator Thomas.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. THOMAS. Madam President, I have been listening to the 
conversation and debate here. Although I am, frankly, not as familiar 
with the details of it as I might be, I am sympathetic to what the 
Senator from Missouri is seeking to do. I deal, of course, as most of 
us do, with agriculture at all time in my State, where agriculture, 
public lands, and grazing are very much an integral part of our economy 
and indeed our society.
  So regulations have a great deal to do with the opportunities we 
have, for instance, for multiple use of public lands. They have had a 
great deal of impact on what we have done with clean water and nonpoint 
source water propositions, and so on. Regulations are put out there, 
quite often, without a real evaluation of what impact they have. We 
have been dealing with one for a long time on the endangered species. I 
think this species was nominated, but if someone looked at it before it 
was implemented, I think the conclusion was that this was not a 
legitimate listing.

[[Page S13084]]

  But work as we try, we can't seem to do much about that. So it does 
seem to me that the congressional oversight is certainly there, but we 
don't get into the details of every application of every regulation. 
That is not the role of Congress but, rather, to deal more broadly with 
the authorities.
  I think it is so interesting sometimes to see how different people in 
different agencies, under the same statutes, can come up with quite 
different ideas. So it seems to me it would make sense to have some 
kind of oversight on agriculture and take a look at what is done and 
promoted by some of these other agencies. The lack of having that 
opportunity generally causes us to end up in a myriad of lawsuits. And 
we are more governed by lawsuits or the threat of lawsuits than we are 
by analysis of the impacts.

  The proposal by the Senator from Missouri has a great deal of value. 
I suggest my colleagues favorably support his amendment.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator does not control time. Who yields 
time?
  Mr. BOND. I ask the time be charged equally.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Madam President, I was sitting here thinking about this 
amendment my friend from Missouri has offered. I thought of another 
instance of how it might affect farmers. I forgot about the Secretary 
of Transportation. There are safety rules that the Department of 
Transportation promulgates for farm equipment on highways. There are 
weight limits, headlights, taillights, and other safety regulations 
that the Department of Transportation has mandated for farm equipment 
on highways.
  Some may argue that those requirements are burdensome. I sympathize 
with you, but you understand it is for the public good that the 
Department of Transportation says you have to have certain 
restrictions, certain lights, certain warning signs on farm equipment 
on highways.
  Taking this example of what the Senator has said, if we give this 
power to the Secretary of Agriculture, the Secretary of Agriculture 
will say: That is burdensome, that is an economic hardship on our 
farmers that they have may have to change some practices; therefore, 
the President can reverse it.
  The Secretary would find it would have a significant adverse economic 
impact.
  Mr. BOND. May I inquire----
  Mr. HARKIN. I yield to my friend.
  Mr. BOND. I ask my good friend from Iowa if he has read on page 4, 
line 13:

       Limitation.--The President shall not reverse, preclude, or 
     amend an agency action that is necessary to protect--
       (A) human health;
       (B) safety; or
       (C) national security.

  The manager has raised an excellent question. I believe we have 
totally addressed it in this bill.
  Further, the President, before he takes action, must find that it is 
in the public interest. I believe the protection is built in.
  Mr. HARKIN. I appreciate what my friend has said. To a certain 
degree, again, like the rest of this, when one reads it, it sounds OK, 
but that is pretty vague--human health or safety or national security. 
It is vague. Who decides what that is?
  Now I think we get to the nub of what is wrong with this amendment. 
Under the Administrative Procedure Act, any agency, if the agency is 
promulgating a rule, has to allow time and opportunity for public 
comment on the proposed rule. Under the Administrative Procedure Act, 
the public must be involved, the public must be heard on the record, 
and the agencies have to take the public's input into account when they 
are promulgating the rule.
  The amendment of the Senator from Missouri does not allow for that. 
This says the Secretary makes these decisions, there is no public 
comment, and then it goes to the President. Did I miss a part of it?
  Mr. BOND. Madam President, may I call the attention of my friend and 
colleague to the top of page 4 which says that before the President 
takes any action in conducting a review, ``the President shall consider 
(A) the determination of the Secretary under subsection (c)(1)--this is 
on page 4--``(B) the public record.''
  The public record is there. The President has to consider the public 
record that was developed by the agency in the process of issuing the 
regulation. The public record must have in it all the information, and 
the President can only act after consideration of that public record.
  Mr. HARKIN. My friend said the President ought to consider the public 
record, but there will be no public record of what the Secretary of 
Agriculture and President do under this amendment. There is nothing in 
here that I can find that requires the Secretary, in reviewing an 
agency action and determining whether to send it to the President, to 
do all of this in a manner consistent with the requirements of the 
Administrative Procedure Act. In other words, nothing in this amendment 
requires that these activities by the Secretary must become part of the 
public record, with hearings and an opportunity for members of the 
public to participate. Usually, with any agency action, there is a 60- 
or 90-day period for the public to be heard on matters before a final 
decision is made, and those public comments go on the public record. 
That is not included in the amendment. Did I miss it?
  Mr. BOND. Madam President, if I may inquire, my colleague is 
certainly well versed in the Administrative Procedure Act. Prior to the 
adoption of a regulation by some other agency that would be under 
review, the Administrative Procedure Act has to be followed; is that 
correct?
  Mr. HARKIN. That is true.
  Mr. BOND. The agency has to establish a public record under the APA 
before a regulation is issued; is that correct?
  Mr. HARKIN. The Senator is right.
  Mr. BOND. The President, under this law, can only act after an agency 
action has become final and the President is directed to take into 
account the public record because the agency action could not be taken 
under the APA without a public record. That is why we specify it must 
take into account the public record, the one that was developed in the 
issuance of the regulation which is subject to the President's 
discretionary review.
  Mr. HARKIN. True. But, the President can still act to change a 
decision of the agency even if doing so goes against the underlying law 
that Congress passed, and the President can do this without consulting 
Congress. And the President will have taken this action after the 
agency has promulgated a rule and gone through the notice and public 
comment requirements of the Administrative Procedure Act.
  Years later, the Secretary of Agriculture can say: That action that 
was taken by that agency 5 years ago is an economic hardship, it has an 
adverse economic impact on farmers; therefore, I am going to recommend 
to the President that he reverse it and do away with it.
  Five years have gone by and now this action taken by the Secretary is 
every bit as important and vital in overturning the regulation as it 
was in promulgating it. Yet in overturning it under this amendment, 
there is no need for any public record, no need for any public hearing.
  I yield to my colleague.
  Mr. BOND. I understand my colleague's concern about action taken 5 
years later. Will my friend look at page 3 and read lines 8 through 10?
  Does that language not say:

       If, after a proposed agency action is finalized, the 
     Secretary determines that the agency action would be likely 
     to have a significant adverse economic impact on or 
     jeopardize the safety of agricultural producers, the 
     President may, not later than 60 days after the date on which 
     the agency action is finalized, review the determination of 
     the Secretary; reverse, preclude.

  I believe the language is specific, and I appreciate my colleague 
directing his attention to that.
  Mr. HARKIN. I will consult on that because I was told the way it was 
written it may not, but I will check on it and see whether or not he 
can do it after 60 days.

[[Page S13085]]

  Mr. BOND. Is the language not clear?
  Mr. HARKIN. I do not know. We are going to find out.
  Mr. BOND. Not later than 60 days.
  Mr. HARKIN. We will find out whether or not the determination by the 
Secretary has to take place within that 60 days. I am not certain that 
it does.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  If neither side yields time, time will be charged to each side 
equally.
  Mr. HARKIN. Madam President, the Senator from Missouri is right, and 
I misspoke. He is absolutely right that it is 60 days. So it cannot be 
5 years. He does have to do it in 60 days. But my point is still valid 
that there is a hearing record for an agency decision, but then this 
sets up a whole new layer of bureaucracy and layer of decisionmaking, 
and there does not have to be a hearing on the President's reversal, 
preclusion or amendment of the agency action under this amendment.
  So, therefore, the President can wipe out whatever was done, and they 
do not have to have a hearing based upon what he wants to do. But the 
Senator from Missouri is right, it has to be done within 60 days. Five 
years, no. I misspoke. I was wrong on that, and I am glad to correct 
myself on that.
  Lastly, I would like to know if the Senator from Missouri could 
enlighten us as to the definition of agricultural producer.
  For the Record, if we could, exactly what is an agricultural 
producer?
  I yield the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered. Who 
yields time?
  If neither side yields time, time will be charged to each side 
equally.
  The Senator from Iowa.
  Mr. HARKIN. Madam President, I ask again my friend from Missouri, 
what is the definition of an agricultural producer? What is an 
agricultural producer? I wish the Senator from Missouri could enlighten 
us as to what an agricultural producer is.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. The definition of agricultural producer on page 2 is the 
owner or operator of a small or medium-sized farm or ranch.
  Mr. HARKIN. What is medium-sized? Does the Senator have a definition 
for what a medium-sized farm might be, or ranch?
  Mr. BOND. That would be up to the Secretary of Agriculture or the 
President to decide. It is not large. There are large corporate farms 
in the State of the Senator from Iowa, my State, and the State of the 
Chair.
  I think the Supreme Court said it well in describing obscenity: You 
know one when you see one, and it is not going to be a specific farmer 
or rancher who comes in. This is going to have to be a judgment made by 
the Secretary of Agriculture who has to defend his or her judgment 
based on how generally it affects small and medium-sized farms and 
ranches, not the large ranches, and I think that test is adequate. I do 
not think one needs to have the technical definition of so many acres 
or so many hundreds of thousand dollars.
  Mr. HARKIN. Again, another vagueness in this bill. For example, an 
agricultural producer could be Scottie Pippin who owns a horse farm of 
maybe 120 acres or 100 acres and he is an agricultural producer. So, 
again, very vague.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? If neither side yields time, 
time will be charged to each side equally.
  Mr. HARKIN. Madam President, how much time is remaining?
  The PRESIDING OFFICER. The Senator from Iowa has 9 minutes and the 
Senator from Missouri has 16\3/4\ minutes.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I ask unanimous consent that I be 
allowed to speak for 1 minute as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. McCAIN are printed in today's Record under 
``Morning Business.'')
  Mr. McCAIN. Madam President, I thank my colleagues for their 
indulgence.
  Mr. HARKIN. I yield 5 minutes to the Senator from Nevada.
  Mr. REID. Madam President, this amendment is too broad, too general. 
It violates the canon of law that exists in this country. From a 
constitutional perspective, it grants the President authority to 
overturn action by any Federal action that the Secretary of Agriculture 
determines may harm producers. It allows the President to ignore any 
law passed by Congress. This is a significant transfer of power to the 
President.
  As I discussed yesterday, the Endangered Species Act is in existence; 
we have acknowledged for many years there should be action taken to 
change it. There was a bipartisan effort a few years ago by Senators 
Chafee, Baucus, Kempthorne, and Reid to change this. We entered into an 
agreement in the Environment and Public Works Committee to introduce 
legislation that we would not accept any amendments on the floor; we 
would vote against any of them. It was a tremendous revision of the 
Endangered Species Act. We had widespread support of a significant 
number of people in the environmental community and many people in the 
development community. It had the support of mayors and Governors. 
However, it was not brought to the floor because people were certain 
they could do better. Of course, the perfect got in the way of the good 
and nothing has happened since then.
  In spite of that, the Endangered Species Act has done a great deal to 
salvage species and prevent the wiping out of species. Threatened and 
endangered species are now protected.
  This amendment is certainly an assault on the environmental laws of 
the country. It allows the President to waive the Endangered Species 
Act, the Clean Air Act, and the Clean Water Act in one fell swoop. It 
would not be one of them; he could, in fact, waive any of the three. It 
would set the country back at least 30 years in environmental 
protection.
  This amendment goes far beyond environmental laws. The definition of 
this legislation being proposed is so vague that virtually any action 
can be overturned by the President, including an effort to improve the 
U.S. Department of Agriculture civil rights procedures, and the 
President can overturn laws protecting farm workers, actions to 
implement free trade agreements.
  This is an amendment that is too broad and too general and tries to 
accomplish things that are so harmful from a constitutional perspective 
and from an environmental perspective. There should be other action 
taken.
  I hope the activities now by staff of the Environment and Public 
Works Committee and others will come up with an amendment to this 
second-degree amendment that will more directly affect the problems 
that are trying to be addressed in this amendment. I hope this 
amendment will not become part of this bill. It would be a blow to this 
fine piece of legislation.
  This amendment would elevate the Secretary of Agriculture and the 
authorities of that agency over every other Federal agency and every 
other law passed by Congress. That is pretty broad. It allows the 
Secretary to stop any agency action to protect the environment, to 
protect food safety, to protect workplace safety if the Secretary 
decides action would have a negative impact on farmers. If another 
agency moves forward with the action to protect the environment, to 
protect workers or our food supply, the Secretary of Agriculture simply 
will ask the President to override these procedures and it will 
be complete.

  This is not fair. It is wrong. I hope we can come up with something 
that better addresses what I think the Senator is trying to do. I hope 
he is not trying in one fell swoop to take out of existence the 
Endangered Species Act, the Clean Water Act, and the Clean Air Act.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. I yield myself such time as I may require.
  I welcome the distinguished majority assistant leader. He came in 
after we had the discussions. We have clarified the issue of whether 
any safety regulations can be waived. Explicitly, this law says he may 
not waive where safety regulations are imposed. It also includes human 
health or national security.
  Now, the distinguished majority whip has pointed out this somehow 
overrides

[[Page S13086]]

the power of agencies. We don't elect agencies, we elect a President 
and we elect a Congress. The power exercised in the agencies is 
delegated by the President to the agencies. This is Presidential power. 
We are seeking in this law simply to say when one of these agents of 
the President does something that is really stupid, that is really bad, 
that hurts farmers, the Secretary of Agriculture can say: Mr. 
President, you must look at this action. And he only has 60 day to do 
it. There are limitations. He cannot overturn where human health, 
safety, or the national security interests are involved. Then he can go 
back and tell the person to whom he delegated the power to make the 
regulation, to carry out the law in the first place: You have to do it 
differently.
  Not only is he limited, but this law says Congress can use expedited 
congressional review to overturn his decision. This is strictly 
limited. The President does not even have the power in this provision 
that the Director of Fish and Wildlife has to stop things that farmers 
want to do or that transportation officials want to do.
  Incidentally, we checked with the U.S. Department of Agriculture. 
There is no advocacy counsel in Agriculture as there is in SBA, for 
small businesses. So this is giving the Secretary of Agriculture the 
responsibility we think should have been there in the first place, 
narrowly circumscribing the powers the President has to overturn it.
  As my good friend from Nevada is leaving, I might say if he wishes to 
offer a second-degree amendment, obviously we would vote on that. But 
we intend to keep coming back to get a vote on this one as well. I will 
be happy to work with him. If he has other ideas he wants to put up as 
a second-degree amendment, that is fine. But we will do our best to 
make sure we have an up-or-down vote on this amendment.
  With that, I urge my colleagues to support this amendment. I reserve 
the remainder of my time.
  Mr. ENZI. Madam President, I rise in support of the amendment offered 
by the Senator from Missouri. This amendment gives the Secretary of 
Agriculture the authority to review any proposed Federal agency action 
to determine whether the action is likely to have a ``significant 
adverse economic impact on or [could] jeopardize the personal safety of 
agricultural producers.''
  Federal actions and regulations seriously impact the way the Wyoming 
agricultural producers operate. The regulations are proffered by 
agencies that do not often consider how their actions could harm small 
and medium sized agricultural operations. These are the operations that 
are facing the most risk in the marketplace. These are the operations 
that need more protection. This amendment is important because it 
forces accountability before the fact. The Secretary of Agriculture 
would have the option of consulting with the head of the agency 
proposing an action and could offer advice on how to make the action 
less onerous to producers.
  Agencies realize that their actions will be scrutinized for their 
impact on agriculture. Actions that could have a significant adverse 
economic impact on or jeopardize the personal safety of agricultural 
producers could be overturned or amended by the President. This 
amendment does not place the needs of agriculture above human health, 
safety or national security. It merely gives agricultural producers an 
advocate to represent their interests. I ask that my colleagues support 
this most important advocacy for agricultural producers and support 
this amendment.
  Mr. HAGEL. Madam President, I rise as a cosponsor of the Bond 
amendment.
  This amendment would allow the Secretary of Agriculture to review the 
proposed actions of other Federal agencies to determine if those 
actions are likely to adversely impact agriculture producers. Should 
the Secretary find that such an action would jeopardize a producer's 
safety or economic well-being, the Secretary could work with other 
agencies to identify the alternatives least likely to cause harm.
  This authority is long overdue.
  For the first time, the government would be forced to determine in 
advance how its actions might impact America's farmers and ranchers. 
That is only fair. And no one within the government is better qualified 
to make that determination that the Secretary of Agriculture.
  For too long, Federal regulators have made farmers and livestock 
producers bear the burden and cost of government decisions. The result 
has been that real people suffer. That is unfair. That is wrong.

  This amendment will put some justice back into the system by reining 
in regulatory agencies, and giving agriculture a voice in the 
regulatory process.
  In my State of Nebraska, we have seen the disastrous impact that 
Federal regulations have had on our farmers and livestock producers.
  This amendment pursues some of the goals of legislation that I 
introduced earlier this year. My bill, the ``Private Property Rights 
Act'', would require the Federal Government to conduct an economic 
impact analysis before taking any action that would inhibit or restrict 
the use of private property.
  The amendment before us today is more narrow in scope. But it will 
make government agencies think through the consequences before they act 
on rules that hinder those who work America's fields, feedlots and 
pastures.
  It will put some balance back into the system by reining in over-
reaching regulatory agencies. And most importantly, it will give 
agriculture producers a seat at the table when it comes to make and 
reviewing new regulations.
  I appreciate the work done by the senior Senator from Missouri on 
this issue, and support his efforts to bring some common sense and 
reality to the system. I urge my colleagues to support the Bond 
amendment.
  The PRESIDING OFFICER. Who yields time? If neither side yields time, 
time will be charged equally.
  Mr. REID. Madam President, I conferred with Senator Bond who offered 
this amendment and he indicated he wants a vote on his amendment. We 
have indicated we have something that would be a side-by-side vote on 
this matter. We are going to work on that.
  In the meantime, we are going to a quorum call or do some other 
business that will not affect the Senator's amendment. In the near 
future, we will try to come up to something that allows maybe a side-
by-side vote or something such as that. If we can figure out some way 
to second-degree his amendment, we will do that, or whatever.
  Mr. BOND. My friend from Nevada makes a very reasonable request. I 
will be happy to have side-by-side votes. I have no objection to 
setting this aside.
  I need to check with the ranking member. But personally I have no 
objection so long as we can have side-by-side votes. I will defer to 
the ranking member.
  Mr. REID. Madam President, I want to make sure my friend understood 
everything I said. Side-by-side would be the preferable way. We may 
have to do a second-degree amendment. But whatever it is, we will give 
the Senator plenty of notice.
  Mr. BOND. Madam President, we intend to get a vote on this one way or 
the other. We would like to do it. I think we can save everybody a lot 
of trouble if the majority side has an amendment on which they wish to 
vote. They can get that up first. I would have no objection to doing 
that if they will then give us an up-or-down vote on my amendment.
  Mr. REID. Whatever happens, you won't be in any worse position than 
you are right now. We are not preventing you from going forward. Our 
only other alternative would be to go into a quorum if anything 
happened. Neither of us thinks that would accomplish anything. We will 
make sure you have the opportunity to be in no worse position than you 
would be 5 minutes from now when the time expires on your amendment.
  Mr. BOND. Being in no worse position than I am now makes me think of 
the eighth place Cardinal hitter who was facing Kurt Schilling. It is 
not a very attractive spot. But we will take our swings in any event.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Bayh). The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S13087]]

  Mr. HARKIN. Mr. President, has all time expired?
  The PRESIDING OFFICER. The Senator from Missouri still controls 3 
minutes.
  Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant bill clerk proceeded to call the roll.
  Mr. HARKIN. 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. HARKIN. Mr. President, I yield whatever time I have remaining, if 
I have any remaining.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. HARKIN. When all time has expired on this amendment, I ask 
unanimous consent to lay the amendment aside for the purpose of taking 
up the amendment offered by the Senator from Wisconsin, Mr. Feingold.
  On the disposition of this amendment, we will set it aside for 
another amendment.
  But this amendment will be the pending amendment.
  Mr. BOND. Mr. President, I have no objection to that. We have held 
discussions. I believe the majority side will propound a second-degree 
amendment. I have personally no objection to that. But there will be a 
vote up or down on the amendment I have provided. Perhaps at that time, 
if less than 60 days have elapsed, we will ask for 2 minutes on each 
side so the distinguished manager from Iowa may reiterate his 
objection.
  I thank the Chair.
  Mr. HARKIN. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.


                Amendment No. 2522 to Amendment No. 2471

  Mr. FEINGOLD. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold], for himself, Mr. 
     Grassley, and Mr. Harkin, proposes an amendment numbered 2522 
     to amendment No. 2471.

  Mr. FEINGOLD. 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 reform certain mandatory arbitration clauses)

       Strike the period at the end of section 1021 and insert a 
     period and the following:

     SEC. 10____. ARBITRATION CLAUSES.

       Title IV of the Packers and Stockyards Act, 1921, is 
     amended by inserting after section 413 (7 U.S.C. 228b-4) the 
     following:

     ``SEC. 413A. ARBITRATION CLAUSES.

       ``Notwithstanding any other provision of law, in the case 
     of a contract for the sale or production of livestock or 
     poultry under this Act that is entered into or renewed after 
     the date of enactment of this section and that includes a 
     provision that requires arbitration of a dispute arising from 
     the contract, a person that seeks to resolve a dispute under 
     the contract may, notwithstanding the terms of the contract, 
     elect--
       ``(1) to arbitrate the dispute in accordance with the 
     contract; or
       ``(2) to resolve the dispute in accordance with any other 
     lawful method of dispute resolution, including mediation and 
     civil action.''.

  Mr. FEINGOLD. Mr. President, I rise today to submit an amendment that 
will give farmers some options in identifying the forum to resolve 
disputes with agribusinesses. I, along with a number of other Members 
of this body, am deeply concerned that the concentration of power in 
the hands of a few large agribusiness firms--firms that can raise $1 
billion on Wall Street at the drop of a hat--is forcing farmers and 
ranchers to be placed at a competitive disadvantage in the marketplace. 
These large corporations are using their market power to force 
independent producers into what is really a position of weakness 
through unfair concentration and other uses of market leverage.
  In some cases, the domestic marketplace has become almost 
noncompetitive for family farmers. Farmers have few buyers and 
suppliers than ever before.
  One indication of their dominance is the one-sided contracts that 
favor agribusinesses at the expense of farmers and ranchers. It is of 
paramount importance that we help restore competition in rural America.
  I was very disappointed when I learned that the Agriculture Committee 
did not approve Senator Harkin's proposal to add a competition title to 
this bill.
  I commend the work of the chairman, Chairman Harkin, of the 
Agriculture Committee for his leadership on this issue.
  When I testified at a hearing on the packers, stockyards, and 
processors last year, I thought a number of important reforms outlined 
should have been addressed in the farm bill.
  Senator Harkin's competition title would have done a lot. It would 
have provided a measure of fairness and transparency and equity in 
America's agricultural markets. I believe this proposal would have 
taken a huge step toward ensuring the future prosperity of our farmers 
and ranchers.
  One important aspect of the competition title would have provided 
farmers with options to resolve disputes with agribusinesses by 
providing farmers with a choice as to the forum for resolving disputes 
with agribusinesses.
  I want to be clear about this. I think that alternative methods of 
dispute resolution such as arbitration can and often do serve a useful 
purpose in resolving disputes between parties.
  I am extremely concerned about the increasing trend of stronger 
parties to a contract forcing weaker parties to waive their rights in 
advance and agree to arbitrate any future disputes that may arise.
  It has recently come to my attention that large agribusiness 
companies often present producers with what is basically take-it-or-
leave-it contracts which increasingly include mandatory and binding 
arbitration clauses as a condition of initially entering into the 
contract. This practice forces farmers to submit their disputes with 
packers and processors to arbitration.
  As a result, farmers are required to waive access completely to 
judicial or administrative forums, substantive contract rights, and to 
statutorily provided protection.
  In short, this practice works and deprives dealers of their 
fundamental due process rights and runs directly counter to basic 
principles of fairness.
  Arbitration is also billed as an inexpensive alternative to civil 
action, but this is often not actually the case. Filing fees and other 
expenses often can result in much higher fees than actually being in a 
civil action. Attorney's fees, whether hourly or contingency, can be 
similar regardless of the forum.
  For example, in a recent Mississippi case filing, fees for a poultry 
grower to begin an arbitration proceeding were $11,000. This is far 
more than the $150 or $250 cost of filing a civil suit.
  It makes no sense for a farmer to seek payment for wrongdoing when he 
or she has lost $1,000 when it costs $11,000 up front just to get the 
case into an arbitration proceeding.
  The result of those mandatory arbitration clauses is that farmers 
often have no forum in which to bring their dispute against the 
company. Arbitration clauses often require farmers to waive their right 
to a jury trial. Since the arbitration itself is extremely costly, the 
farmer, who likely has a substantial debt due to low prices and a large 
mortgage on his farm, is basically left unable to access this costly 
arbitration process.
  Since the litigation option is taken away by contract, and the 
arbitration forum can be taken away by its high cost, the grower has no 
forum in which to bring his dispute against the company.
  If a poultry farmer suffers losses as a result of mis-weighed 
animals, the farmer should have the right to hold the company 
accountable. If farmers are hurt because they received bad feed, we 
must ensure that farmers have options to choose the forum through which 
they can resolve their concerns about this product they received.
  If a farmer believes he or she has been provided a diseased animal 
from an agribusiness, the farmer should have at least a forum to 
address his or her concerns.
  In short, we must give farmers a fair choice that both parties to an 
agricultural contract may willingly and knowingly select. This 
amendment, again, does not prohibit arbitration. It would ensure simply 
that the decision to arbitrate is truly voluntary and that

[[Page S13088]]

the rights and remedies provided by our judicial system are not waived 
under coercion.
  Let me add that I believe two of the lead cosponsors of this 
amendment are the chairman of the committee, Senator Harkin, and the 
distinguished senior Senator from Iowa, Mr. Grassley. I am also pleased 
to inform the Chair and my colleagues that both the Farm Bureau and the 
Farmers Union support that. I am sure the Senator from Indiana knows 
that does not always happen. It is a good sign we are on the right 
track for America's farmers with this amendment.
  I urge my colleagues to support this amendment and give farmers 
options to resolve disputes in the agricultural marketplace.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I am wondering if I could ask for the 
yeas and nays on my amendment, and I ask unanimous consent that the 
vote on it follow the vote on the Bond amendment.
  The PRESIDING OFFICER. If the Senator will withhold, the Senator from 
South Dakota has the floor.
  Mr. JOHNSON. Mr. President, I was unaware that the Senator from 
Wisconsin still had steps he needed to take relative to his amendment.
  I withhold, at this point, my amendment and will allow the Senator 
from Wisconsin to proceed with his unanimous consent.
  I ask unanimous consent that I then be in a position to offer my 
amendment upon the conclusion of the amendment by the Senator from 
Wisconsin.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Is there objection?
  The Chair hears none, and it is so ordered.
  Mr. FEINGOLD. 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. WELLSTONE. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. I will take about 10 seconds.
  Mr. President, I ask unanimous consent that after the Johnson 
amendment I be allowed to offer an amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Reserving the right to object, might I say to the two 
managers of the bill, I think we are now in a position to go to the 
original proposal to move to table the Bond amendment. So we would like 
to do that now.
  Mr. LUGAR. Reserving the right to object, and I will not object, my 
objection immediately to the Senator from Minnesota was that perhaps, 
as opposed to having a stacking of amendments, all on the Democratic 
side--and admittedly yesterday we debated Republican amendments all 
day--is that there are a number of Republican amendments. Could we get 
perhaps some alternation?
  Mr. REID. If the Senator will yield, our amendments are very quick. 
Yours are very long. We can complete a number of ours very quickly. 
During the time of the vote, we will talk about that.
  Mr. LUGAR. Very well. We would like to hear the Senator from 
Minnesota speaking on his amendment, of course, but I, on behalf of our 
side, thought I ought to interject this comment at this point.
  Mr. REID. We will be happy to work with the manager of the bill.
  Mr. LUGAR. My reservation is managed and I will support the Senator 
from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. What is the matter now before the Senate?
  The PRESIDING OFFICER. The amendment from the Senator from Wisconsin 
is pending.
  Mr. REID. As soon as the debate is complete on that amendment, would 
we return to the Bond amendment?
  The PRESIDING OFFICER. We would go to the Senator from South Dakota 
for an amendment under the previous order.
  Mr. REID. Is there a unanimous consent agreement to that effect?
  The PRESIDING OFFICER. Yes, there is.
  Mr. REID. I say, we would ask, then, that that be changed because 
there are Senators waiting around. We believe we should get to the vote 
on the underlying amendment. We were back watching Osama bin Laden's 
tape and were not in the Chamber, as we probably should have been. So I 
ask unanimous consent--if those in the Chamber will allow us--to 
proceed to a vote on a motion to table the Bond amendment as soon as 
the debate is completed on the Feingold amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LUGAR. Mr. President, could I raise the question: Would, then, 
the leader anticipate a vote on or in relation to the Feingold 
amendment following the rollcall vote on the Bond amendment, if it 
reached a conclusion at that point?
  Mr. REID. That is true.
  Mr. HARKIN. Yes.
  Mr. LUGAR. I thank the Senators.
  Mr. JOHNSON. If I may inquire, previously it was agreed to that the 
Johnson amendment would follow the Feingold amendment. Is that still 
the case? I assure my colleague from Indiana this is not a lengthy 
amendment.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. My understanding is, following the conclusion of the 
Feingold debate, there will be a vote on the Bond amendment, followed 
by a vote on the Feingold amendment, and then the Senator from South 
Dakota, Mr. Johnson, would be recognized to offer an amendment at that 
time.
  Mr. GRASSLEY. Am I going to have an opportunity to speak on the 
Feingold amendment?
  Mr. HARKIN. Yes.
  The PRESIDING OFFICER. The understanding of the Senator from Indiana 
is correct, with the qualification that the votes will be with respect 
to the Bond amendment, not necessarily on the Bond amendment.
  Mr. LUGAR. My understanding is there is still time to debate the 
Feingold amendment. The distinguished Senator from Iowa, Mr. Grassley, 
wants to be heard on that amendment.
  Mr. REID. When we go to the Bond amendment, which we are going to do, 
it is going to be a vote on that first. If the motion to table, of 
course, is not successful, then the Bond amendment is there naturally. 
All right. Everyone agrees to that. That is the parliamentary place we 
would be. And then we could not dispose of Feingold until we dispose of 
Bond.
  Mr. LUGAR. May I ask a question of the distinguished Senator?
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. We would continue with debate on the Feingold amendment at 
this point, as I understand it, so the distinguished Senator from 
Wisconsin can be heard but, likewise, the Senator from Iowa could be 
heard, and others who may wish to debate that amendment.
  Mr. REID. With respect to Feingold, that is true. And it is my 
understanding that debate is not going to take a long period of time. 
That is my understanding.
  Mr. FEINGOLD. That is correct.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. I am delighted the Senator from Iowa, Mr. Grassley, is 
in the Chamber and is supportive of our amendment. I hope he will offer 
his remarks in support of our amendment at this point.

  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, our Nation's farmers and independent 
livestock producers are becoming increasingly subjected to vertical 
integration in their industry. I recall years past when family farmers 
had complete control over their livestock, from farrowing until 
marketing. Today, however, more than 80 percent of the hogs are either 
marketed under contract or are owned by the packer.
  In my home State of Iowa, vertical integration has led to a situation 
in

[[Page S13089]]

which many farmers can't even get a bid on their livestock from 
packers. Instead, they are simply forced to accept a slot when they can 
deliver their livestock to packers at the packer's price. That kind of 
makes them a residual supplier of livestock, kind of puts them in the 
position of being last in line. It also puts them in a position 
economically, I believe, of getting a lower price.
  When I was farming and raising pigs, it was as simple as calling up 
maybe an hour before you wanted to deliver your pigs, calling up the 
packing company in Waterloo, IA, and asking: What are you paying today 
for hogs? You might dicker a little bit, but you eventually reached 
agreement. When you wanted to sell a lot, you said: Well, I want to 
sell some. So you loaded up, backed up the pickup to the hog house, 
loaded a few pigs, and drove 15, 20 miles to deliver them. It was that 
simple. Today it is even worse for cattle in the sense that you might 
be able to have a half hour within a whole week of time to be able to 
sell something.
  We have a terrible situation where the family farmer is kind of stuck 
in the sense of being a residual supplier. You can say that farmer has 
the option of contracting those sorts of things of which he can take 
advantage. There are some people who ought to have the same opportunity 
to get the same price other people get. We are in a position now where 
things are somewhat different.
  Mr. JOHNSON. Will the Senator yield?
  Mr. GRASSLEY. Of course, I will yield.
  Mr. JOHNSON. The parliamentary circumstance under which we were 
taking up these amendments was a bit convoluted up until the moment the 
distinguished Senator from Iowa came onto the floor. I would observe 
that the amendment pending is the Feingold amendment.
  Mr. GRASSLEY. That is the one I am speaking about, the Feingold 
amendment.
  Mr. JOHNSON. The nature and the thrust of the comments, I thought, 
related to packer ownership of livestock.
  Mr. GRASSLEY. It is applicable to your amendment. I will speak also 
to your amendment at another time.
  Mr. JOHNSON. Very good. I look forward to the observations of my 
friend and colleague from Iowa.
  Mr. GRASSLEY. Maybe my own personal experiences in the way of family 
farming compound this problem. I will just get to the issue and leave 
the personal experiences I have had out of this issue.
  In the year 2001, there are farmers who are in the same situation of 
wanting to market the same way I did the years I had livestock, from 
1959 to 1974, and again from 1984 to about 1987, even since I have been 
in the Senate. We have a situation where you can't deliver whenever you 
want to deliver. You become a residual supplier.
  This is a problem Senator Feingold is trying to correct. I hope I can 
help him. Many packers have arbitration clauses in their contracts with 
farmers. Arbitration clauses significantly reduce the small family 
farmer's ability to get a fair shot when a dispute with packers arises, 
such as misweighing of animals, bad feed cases, or wrongful termination 
of contracts.

  When a dispute between a packer and a family farmer arises and the 
contract between the two includes an arbitration clause, the family 
farmer has no alternative but to accept arbitration to resolve the 
dispute.
  I certainly recognize that arbitration has its benefits. I have 
promoted that as an alternative dispute resolution as a member of the 
Senate Judiciary Committee, and we have laws as a result of that. In 
certain cases, regardless of the advantage of arbitration, it can be 
less costly than other dispute settlement means. In certain other 
cases, it can remove some of the workload from our Nation's 
overburdened court system. For these reasons, arbitration must be an 
option, but it should be no more than an option.
  In some cases, however, mandatory arbitration clauses create another 
level of litigation. State courts provide the ability for a party to 
challenge an arbitration clause on the basis of fraud, 
misrepresentation, or lack of knowing and voluntary waiver.
  Farmers often must file civil actions seeking to invalidate the 
arbitration clauses after a dispute arises when they realize they would 
be placed at extreme disadvantage in arbitration in a particular case 
and because the arbitration fees are too high. We can learn from the 
experience of the poultry industry. Today nearly 100 percent of the 
Nation's poultry is captive. In recent years, poultry producers have 
been especially affected by mandatory arbitration clauses.
  When one chooses arbitration, he then waives rights to access to the 
courts and the constitutional right to a jury trial. Certain 
standardized court rules are also waived, such as the right to 
discovery. This is important because a farmer must prove his case, the 
company has the relative information, and the farmer cannot prevail 
unless we can compel disclosure of relevant information.
  Moreover, longstanding law states that a waiver of rights by a party 
must be knowing and voluntary. A farmer cannot waive such rights in a 
knowing and voluntary way when he is only bargaining about a processor-
drafted contract about price and volume terms. He cannot make a knowing 
and voluntary waiver in a vacuum when a dispute does not exist and has 
not been contemplated.
  I am pleased to join Senator Feingold in support of this amendment to 
prohibit mandatory arbitration clauses from being included in contracts 
between packers and livestock producers. Our amendment will amend the 
Packers and Stockyards Act to provide that mandatory arbitration 
clauses in contracts between packers and livestock producers are not 
enforceable unless parties agree to binding arbitration after the 
dispute arises.
  Our amendment will give farmers the opportunity to choose the best 
form of dispute settlement mechanism. Instead of binding arbitration, 
mediation or civil action may give family farmers a fighting chance to 
succeed in a dispute with a packer.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. Mr. President, the amendment offered by the distinguished 
Senator from Wisconsin is a thoughtful amendment, trying to bring 
equity between farmers who may be fairly small, quite apart from those 
who have substantial herds, in dealing with packers.
  It is a close call as to where the best interests of farmers may lie. 
Let me suggest that it occurs, at least to this Senator, that it is 
usually to the advantage of a farmer, particularly a small farmer, to 
have an arbitration clause that at least settles the framework in which 
some justice might occur.
  I make this point because, unfortunately, litigation tends to be 
expensive. There are possibilities in a court of law for discovery, for 
the mandating of information the distinguished Senator from Iowa has 
mentioned, that would be very helpful perhaps and illuminate the total 
field, but likewise, it is mostly the case that the company involved, 
the packer or whoever is the corporate dispute in this situation, is 
likely to have more resources, just as sometimes occurs when the 
resources are vastly unequal. Nevertheless, it is not something, it 
seems to me, the Senate ought to weigh in on.

  In essence, my understanding of the Feingold amendment is that it 
would prohibit the use of mandatory, binding arbitrary clauses in 
agricultural contracts. But to adopt the language of the distinguished 
Senator from Iowa, this ought to be the option of the farmer or the 
rancher as he enters the type of contract he or she may find most 
desirable. In other words, the individual and the smaller entity ought 
not to be precluded from a means--in the event of a dispute, or if 
there has been a history of dispute--that could be less expensive and 
perhaps, therefore, more certain of a day in court.
  Therefore, I won't belabor the issue because the distinguished 
Senator from Wisconsin and the distinguished Senator from Iowa have 
described the fact that arbitration is a frequently used means of 
resolving these disputes and, in fact, the amendment would not arise if 
this were not the case, and the belief on the part of the two previous 
speakers is that arbitration should not be a possibility in the 
contract.
  I will argue that it ought to be a possibility, ought to be an option 
for the

[[Page S13090]]

farmer or rancher, and therefore, respectfully, I oppose the Feingold 
amendment.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I appreciate the remarks of the Senator 
from Indiana. I have always admired his manner, and specifically his 
candor when he indicated this was a close call. I will respond quickly 
because the keyword we have been using is we want to provide farmers 
with options. The problem is, under the mandatory arbitration regime, 
this is basically all the farmers are offered. That is the deal. You 
either agree to the mandatory arbitration provision of the contract, or 
you are not going to be part of the system.
  We are suggesting that banning the mandatory arbitration provision is 
a genuine option. The farmer can still agree, of course, to a valid 
arbitration system--that can be in the contract--and he can go to 
alternative dispute resolution. And many times, as you suggested, that 
might be preferable. But what we are trying to do is preserve the right 
to also have the option, if necessary, to go to the court proceeding or 
administrative proceeding.
  I accept the premise, which is that the farmer needs options, but the 
reality is that under the mandatory arbitration system that has grown 
so tremendously and has become so much a part of contracts, they 
effectively don't get any choice.
  That is the spirit of the amendment. Rather than interfering, I 
believe it returns to us where we were a few years ago, where farmers 
actually had choices in these matters.
  I appreciate the comments of the Senator from Indiana, and I urge my 
colleagues to support the Feingold-Grassley amendment.
  Mr. HARKIN. Mr. President, I join my colleagues. I am a cosponsor of 
this amendment. I join my colleagues from Wisconsin and Iowa in 
supporting this amendment. This was part of the competition title we 
had offered in committee, which was not accepted in committee in its 
totality. The only part that was accepted was the country of origin 
labeling. So this is a part of the competition title. There will be 
another amendment by Senator Johnson, also, that will fill in the 
picture on competition.

  This is a good amendment. In a nutshell, I think the Senator from 
Indiana kind of put his finger on it. Right now, more and more 
contracts between growers and producers have an arbitration clause in 
them. The grower is basically forced to accept that. Well, we had a 
recent case--to show how onerous this is--in Mississippi where a 
poultry grower, in order to file for arbitration, had to plunk down 
$11,000; that was his cost of the arbitration side. To take that case 
to civil court would cost him $150 to $250. If the amount in contest or 
in question is $10,000, it makes no sense for the producer to pay 
$11,000 to recover $10,000, so you just lose it.
  The amendment really gives the grower the absolute right to choose. 
He can go to arbitration or to civil court, notwithstanding what the 
contract may say, and it gives that grower the right to do that. In a 
way, it levels the field a little between the grower and the retailer, 
or the processor, for example.
  With that, I urge adoption of the amendment. I hope all time has 
expired.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Mr. President, it is my understanding that debate on the 
Feingold amendment has ceased.
  Mr. LUGAR. Reserving the right to object, I would like to make one 
additional comment, if I may.
  Mr. President, this may not be a definitive situation, but this 
Senator simply notes that all 50 States of the Union have adopted 
contract arbitration statutes that allow a provision to be placed in a 
written contract. I have no idea if the occupant of the chair would 
have a better idea from his experience as Governor of our State as to 
how legislatures have dealt with this problem. But it is interesting 
that all 50 have, and we are on the threshold of displacing whatever 
judgments might have occurred in those situations. I think this is 
something that many Senators do not approach without some thought as to 
why such contract clauses may have been made an option.
  I appreciate the point of the distinguished Senator from Wisconsin 
that he believes, as a practical matter, farmers or ranchers dealing in 
these contracts have no choice; that in order to sign up at least in 
something that appears to be favorable, because they really would not 
move in that direction otherwise, they must, of necessity, accept an 
arbitration clause. Perhaps that is so but not necessarily.
  It would be the experience of this Senator, in at least a modest 
management of the family farm that I often describe in these debates, 
that I have approached or been approached by those who have offered 
contractual arrangements for purchase of my corn, for example. Now, I 
was free to either accept or reject the contract, and in most cases I 
have rejected the contracts. In some cases, I have accepted. I was 
still a free person to do this. I am not certain I see the mandatory 
aspects of the company that was dealing with me as having some 
predatory function here or ability to coerce me into this arrangement.

  I get back once again to my options. We are doing this from the 
standpoint of the individual farmer and rancher. I accept the fact that 
perhaps in some markets, in some counties, and in some States this 
degree of freedom of choice may not, as a practical effect, be the same 
as it is in our State of Indiana. I caution Senators, before moving too 
stoutly in this direction, to examine this and think about it.
  It is for these reasons I will vote against the Feingold amendment, 
even as I have admitted and acknowledged that it is a close call and 
that the arguments are reasonable on both sides.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, I want our colleagues to know that what 
this amendment does is exactly the same as we are doing in the case of 
car dealerships. We have a bill, S. 1140, which has 47 cosponsors. I am 
not going to read the names of the cosponsors, but it is a very 
bipartisan group of people, Democrats and Republicans. I hope that 
staff listening to this debate or Members listening to this debate will 
look at S. 1140 and remind their Members, or the Members themselves 
will be reminded, that they are cosponsoring legislation that does away 
with arbitration in car dealership contracts with major manufacturers. 
If it is OK for nonagricultural businesses, it even has to be better 
for the family farmer that we don't have these sorts of requirements in 
these contracts. I ask my colleagues to take a look at S. 1140.

  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. I know we want to wrap it up. I want to make two quick 
points. I strongly agree with the comments of the Senator from Iowa. He 
and I worked closely together on this same problem in the area of car 
dealerships. An overwhelming number of this body sees this kind of 
relationship between the car dealer and the manufacturer as unfair.
  Even more importantly, I wish to respond to the remarks of the 
Senator from Indiana. He raised a new argument which is 50 States have 
laws about these kinds of arbitration agreements. That is true, but we 
are not today invading this area. This area has already been preempted 
by the Federal Arbitration Act (FAA). It is already the case that the 
States cannot under Federal law prohibit these agreements or make the 
rules for these agreements. It is already up to us.
  This amendment does not enter a new field. This is already a field 
that is clearly Federal in nature, and we are merely setting the rules, 
as we must, under Federal law. I do not want anyone to think we are 
suddenly invading a new area of State authority. I have strong feelings 
about avoiding that wherever possible.
  This is already preempted by Federal law. We need to make a decision. 
I think the right decision is to give the individual farmers the option 
they need and not be forced into a mandatory arbitration.
  I yield the floor.
  Mr. LEVIN. Mr. President, I have been reluctant to put the Federal 
Government in the position of judging the appropriateness of a binding 
arbitration clause in a private contract. However, I will support the 
amendment because I believe that in the case, the relative ability of 
parties to negotiate contract provisions are particularly uneven. My 
vote should not be interpreted as an indication of my position

[[Page S13091]]

on future legislation that may be offered on the subject of the Federal 
Government overriding binding arbitration clauses.
  I would like to ask the sponsor of the amendment, my colleague from 
Wisconsin, whether, under this amendment, either party to a contract 
that contains a binding arbitration clause can choose alternatively to 
go to court to resolve the dispute.
  Mr. FEINGOLD. Yes. Under my amendment, either party would have that 
option.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, my understanding is all debate on the 
Feingold amendment has been completed; is that right?
  The PRESIDING OFFICER. Is there further debate on the amendment? 
Hearing none, the Senator is correct.


                           Amendment No. 2513

  Mr. REID. Mr. President, it is my understanding we are now on the 
Bond amendment; is that right?
  The PRESIDING OFFICER. Under the order, we vote in relation to the 
Bond amendment at this time.
  The majority leader.
  Mr. DASCHLE. Mr. President, will the Chair inform us, are we under a 
time agreement at this time?
  The PRESIDING OFFICER. We are not.
  Mr. DASCHLE. Mr. President, I want to take a couple of minutes to 
speak to the Bond amendment. As I understand it, we are going to be 
voting on it shortly.
  I heard Senator Bond describe his amendment a little while ago. My 
immediate reaction was that I was very supportive. I thought it sounded 
like a reasonable amendment. Certainly we have to be concerned about 
the frustrations that many of our farmers have experienced with regard 
to the regulatory problems they face, the frustrations they experience 
in attempting to participate in agriculture today, as complicated as it 
is. I am very sympathetic. I hear many of these complaints when I go 
home as well.
  I think to whatever extent we can moderate their frustration by 
finding ways to reduce the regulatory anxiety, reduce the tremendous 
amount of paperwork they have to endure, we ought to do it. There have 
been efforts over the years to attempt to do it, and I think we have to 
continue to try to do it.
  Looking carefully at the Bond amendment, what I have come to realize 
is this amendment really makes the President not just a friend of the 
farmer but king. I do not know if there is any other word for it. This 
would provide powers we do not give the President under any 
circumstances today. Only a monarch has the powers that the Senator 
intends to provide the President in situations such as this.

  Basically, the Bond amendment grants the President authority to 
overturn any action by any Federal agency that he simply determines may 
harm producers. He can wipe out virtually any law of the land without 
question, without challenge. This is an extraordinary delegation of 
power, not only to a President but to anybody. This would make a 
monarch of the President.
  This amendment, needless to say, is a real assault on the 
environmental laws of this country. It would allow the President to 
waive the Endangered Species Act completely, the Clean Air Act 
completely, and the Clean Water Act completely. Frankly, it would set 
this country back at least 30 years in environmental protection, but it 
goes way beyond environmental laws.
  The definition of harm written into the Bond amendment is so vague 
that virtually any action by any Federal agency--it could even be a 
foreign action, for that matter--could be overturned by the President, 
but certainly efforts involving the USDA civil rights procedures, 
efforts involving laws protecting farm workers, actions to implement 
free trade agreements--all of those--without any consultation with 
Congress, without any respect for due process, without any appreciation 
of the protections we have built in for an appreciation of the real 
sensitivity we must show in regulatory and statutory frameworks, all 
are thrown out the window with this amendment.
  As I said a moment ago, should we be sensitive to the needs of 
farmers and ranchers as we consider their frustration in dealing with 
the regulatory headaches they must address? The answer is absolutely 
yes. Absolutely we have to find ways of doing that. We have to continue 
to work with the President and with the Department of Agriculture to 
make sure this happens. But do we want, really, to give the President 
unbelievable constitutional and statutory authority in this context? Do 
we want to say to the President: Look, if you do not like a law, just 
repeal it unilaterally, no votes in the Congress, no consideration, no 
public comment. You just go do it. That is what the Bond amendment says 
we can do.
  Frankly, we do not want to go that far. I hope people will think very 
carefully, as well intended as the Bond amendment is, about whether we 
are willing to make a President a monarch in this case, to give him the 
authority of fiat. Not in this democracy, not in this Republic, not in 
this Senate, not now, not ever. I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I move to table the Bond amendment and 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 the motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy), and the Senator from Massachusetts (Mr. Kerry), are 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kennedy), and the Senator from Massachusetts (Mr. 
Kerry), would each vote ``aye.''
  Mr. NICKLES, I announce that the Senator from New Mexico (Mr. 
Domenici), is necessarily absent.
  The PRESIDING OFFICER (Mrs. Clinton). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 54, nays 43, as follows:

                      [Rollcall Vote No. 365 Leg.]

                                YEAS--54

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Chafee
     Cleland
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Ensign
     Feingold
     Feinstein
     Graham
     Gregg
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kohl
     Leahy
     Levin
     Lieberman
     McCain
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Smith (NH)
     Snowe
     Specter
     Stabenow
     Thompson
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--43

     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Carnahan
     Cochran
     Craig
     Crapo
     DeWine
     Enzi
     Fitzgerald
     Frist
     Gramm
     Grassley
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (OR)
     Stevens
     Thomas
     Thurmond
     Voinovich

                             NOT VOTING--3

     Domenici
     Kennedy
     Kerry
  The motion was agreed to.
  Mr. DASCHLE. Madam 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.


                       Vote On Amendment No. 2522

  The PRESIDING OFFICER (Ms. Cantwell). Under the previous order, the 
question is on agreeing to the Feingold amendment.
  Mr. FEINGOLD. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. SMITH of Oregon (when his name was called). Present.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.

[[Page S13092]]

  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kennedy) and the Senator from Massachusetts (Mr. 
Kerry) would each vote ``aye.''
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici) and the Senator from Utah (Mr. Bennett) are necessarily 
absent.
  The PRESIDING OFFICER (Mrs. Clinton). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 64, nays 31, as follows:

                      (Rollcall Vote No. 366 Leg.)

                                YEAS--64

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Brownback
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Corzine
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Durbin
     Edwards
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Inouye
     Jeffords
     Johnson
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Roberts
     Rockefeller
     Sarbanes
     Schumer
     Shelby
     Snowe
     Specter
     Stabenow
     Thomas
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--31

     Allard
     Allen
     Bond
     Bunning
     Cleland
     Cochran
     Craig
     Crapo
     Ensign
     Fitzgerald
     Frist
     Gramm
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Santorum
     Sessions
     Smith (NH)
     Stevens
     Thompson
     Thurmond
     Voinovich

                        ANSWERED ``PRESENT''--1

       
     Smith (OR)
       

                             NOT VOTING--4

     Bennett
     Domenici
     Kennedy
     Kerry
  The amendment (No. 2522) was agreed to.
  Mr. DASCHLE. Madam 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. The majority leader.
  Mr. DASCHLE. Madam President, I have been in consultation this 
morning with the distinguished Republican leader, and we have reached 
an agreement with regard to how the Senate may proceed over the course 
of the next several days. I appreciate as always his cooperation and 
his interest in accommodating Senators. I would like to propound a 
unanimous consent request, but let me explain the request briefly to 
Senators and then I will specifically read the unanimous consent 
request.
  Basically, what I am about to propose is that we have a cloture vote 
this afternoon at 4 o'clock. While it is not in this particular 
unanimous consent request, we will also attempt to take up the defense 
authorization conference report sometime later today. That is the 
subject of a separate request. We would then be in session on Friday, 
but we would not entertain any rollcall votes.
  It would be my expectation that regardless of how the cloture vote 
turns out this afternoon, we would remain on agriculture.
  On Monday, if we can, if our colleagues will agree, we will take up 
the conference report on education for the entire day and evening, 
whatever length of time it takes. We would have a vote on the 
conference report on education on Tuesday morning. There would be 
additional nominations to consider on Tuesday morning, and we would 
also have a cloture vote if it were required on the farm bill Tuesday 
morning as well.
  That is the essence of the request I am about to read. I will do so 
at this time.
  Mr. LOTT. Madam President, if Senator Daschle would yield before he 
propounds the request, I don't intend to object. I want to make the 
record clear, if he would yield.
  Mr. DASCHLE. I am happy to yield to the Senator from Mississippi.
  Mr. LOTT. So Senators understand what has happened here and that we 
have had a consultation, I have discussed this schedule with Senator 
Lugar, the ranking member on Agriculture, and Senators Cochran and 
Roberts and others, to make sure there is agreement that we could and 
should go ahead and go forward with this vote on cloture at 4 o'clock. 
We could object and insist that it occur on Friday. We don't believe 
anything positive would be achieved by that. This would make it 
possible for us to go forward and deal with other issues, hopefully the 
defense authorization and intelligence authorization, and then next 
Monday do the education conference report. That is very important.
  There is a time agreement included here about how we would get to a 
vote on that conference report with a vote scheduled at 11.
  Mr. DASCHLE. The Senator is correct.
  Mr. LOTT. We are obviously still very concerned about this bill. We 
want to have the opportunity to offer additional amendments and 
substitutes. We saw no reason not to have the cloture vote at this 
time. I wanted to get that in the Record before the UC was propounded.
  Mr. NICKLES. Will the majority leader yield?
  Mr. DASCHLE. I am happy to yield to the Senator from Oklahoma.
  Mr. NICKLES. Under the agreement you are about to propound, we will 
have a cloture vote at 4 o'clock. I am assuming we will still consider 
agriculture-related amendments until 4 o'clock.
  Mr. DASCHLE. The Senator is correct.
  Mr. NICKLES. May we have an agreement that we will alternate? We only 
have 3 hours to do amendments. I don't know if cloture will be invoked, 
but if it is invoked, that will preclude a great number of amendments. 
May we have an understanding that we will alternate between Democrats 
and Republicans?
  Mr. REID. Will the majority leader yield?
  Mr. DASCHLE. Let me just say to the distinguished Senator from 
Oklahoma, I have no reservations about suggesting that we alternate 
Republican and Democratic amendments.
  I am happy to yield to the Senator from Nevada.
  Mr. REID. That was the decision made earlier--not the decision, but 
Senator Lugar and Harkin and I entered into a dialog. That would be the 
case. The next amendment will be offered by the Senator from South 
Dakota. Then we would wait for someone on your side to offer an 
amendment, and then we would go back and forth. That was talked about 
earlier today.
  Mr. NICKLES. Fair enough.
  Mr. DASCHLE. I would also note that if cloture is invoked, this 
agreement also will provide that the Cochran-Roberts amendment still 
will be in order. It accommodates the germaneness question regarding 
Cochran-Roberts.
  Mr. NICKLES. Before the majority leader propounds a request, would 
you also amend that to include the Dorgan amendment to make sure it 
would be available, if cloture is invoked?
  Mr. DASCHLE. Senator Dorgan is not on the floor.
  Mr. NICKLES. I am concerned if we get cloture, there are a lot of 
amendments that will fall. The Dorgan amendment happens to deal with 
payment limitations. I am concerned that it might fall. I have an 
amendment dealing with payment limitations. That is my concern. I am 
not a big fan of cloture, as I am sure the majority leader knows. But 
there may be others. I make mention of the Dorgan amendment because I 
am interested in that subject. If you include that, I would appreciate 
it.

  Mr. DASCHLE. I am happy to include that.
  Mr. NICKLES. I thank the majority leader.


                      Unanimous Consent Agreement

  Mr. DASCHLE. Madam President, I ask unanimous consent that the 
cloture vote on the pending substitute amendment occur at 4 p.m. today; 
that Members have until 11 a.m. tomorrow to file second-degree 
amendments; that notwithstanding rule XXII, the alternate amendment by 
Senators Cochran and Roberts, and the amendment offered by Senator 
Dorgan regarding payment limits, still be in order if cloture is 
invoked on the substitute amendment; that following the cloture vote, 
regardless of the outcome, the Senate proceed to executive session to 
consider executive Calendar Nos. 589, 590, and 592; that upon the 
disposition

[[Page S13093]]

of those nominations, the President be immediately notified of the 
Senate's action; that any statements thereon appear in the Record, and 
the Senate return to legislative session.
  I further ask unanimous consent that on Monday, December 17, at 1 
p.m. the Senate proceed to the conference report on H.R. 1 for debate 
only, and that on Tuesday, December 18, there be 90 minutes remaining 
for debate, 60 minutes equally divided between the chairman and ranking 
member of the Health, Education, and Labor Committee, or their 
designees, and 15 minutes each for Senators Wellstone and Jeffords; 
that the Senate vote on the conference report at 11 o'clock on that 
day, with no further intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. SMITH of Oregon. Madam President, reserving the right to object, 
I don't intend to object, but I wonder if I may be included on two 
amendments that are very important in my State with respect to crop 
insurance and the Klamath Falls.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Madam President, I will accommodate the Senator from 
Oregon on his request and ask that they be included in the unanimous 
consent agreement.
  Mr. SMITH of Oregon. I thank the leader.
  The PRESIDING OFFICER. Would the Senator restate the subject matter 
of the amendments?
  Mr. SMITH of Oregon. I have two amendments. One deals with a change 
in crop insurance to include farmers for coverage under crop insurance 
when the disaster is not natural, but Government-made.
  The second one is just simply as to policy with respect to a long-
term plan that Senator Wyden and I are working on that includes as one 
of its goals the economic viability of the agricultural community of 
Klamath Falls.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. DASCHLE. I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
South Dakota is recognized.


                           Amendment No. 2534

  Mr. JOHNSON. I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Johnson], for himself, 
     Mr. Grassley, Mr. Wellstone, Mr. Harkin, Mr. Thomas, Mr. 
     Dorgan, Mr. Feingold, and Mr. Daschle, proposes an amendment 
     numbered 2534.

  Mr. JOHNSON. I ask unanimous consent that further reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To make it unlawful for a packer to own, feed, or control 
                   livestock intended for slaughter)

       On page 886, strike line 5 and insert the following:

                     Subtitle C--General Provisions

     SEC. 1021. PROHIBITION ON PACKERS OWNING, FEEDING, OR 
                   CONTROLLING LIVESTOCK.

       (a) In General.--Section 202 of the Packers and Stockyards 
     Act, 1921 (7 U.S.C. 192), is amended--
       (1) by redesignating subsections (f) and (g) as subsections 
     (g) and (h), respectively;
       (2) by inserting after subsection (e) the following:
       ``(f) Own, feed, or control livestock intended for 
     slaughter (for more than 14 days prior to slaughter and 
     acting through the packer or a person that directly or 
     indirectly controls, or is controlled by or under common 
     control with, the packer), except that this subsection shall 
     not apply to--
       ``(1) a cooperative or entity owned by a cooperative, if a 
     majority of the ownership interest in the cooperative is held 
     by active cooperative members that--
       ``(A) own, feed, or control livestock; and
       ``(B) provide the livestock to the cooperative for 
     slaughter; or
       ``(2) a packer that is owned or controlled by producers of 
     a type of livestock, if during a calendar year the packer 
     slaughters less than 2 percent of the head of that type of 
     livestock slaughtered in the United States; or''; and
       (3) in subsection (h) (as so redesignated), by striking 
     ``or (e)'' and inserting ``(e), or (f)''.
       (b) Effective Date.--
       (1) In general.--Subject to paragraph (2), the amendments 
     made by subsection (a) take effect on the date of enactment 
     of this Act.
       (2) Transition rules.--In the case of a packer that on the 
     date of enactment of this Act owns, feeds, or controls 
     livestock intended for slaughter in violation of section 
     202(f) of the Packers and Stockyards Act, 1921 (as amended by 
     subsection (a)), the amendments made by subsection (a) apply 
     to the packer--
       (A) in the case of a packer of swine, beginning on the date 
     that is 18 months after the date of enactment of this Act; 
     and
       (B) in the case of a packer of any other type of livestock, 
     beginning as soon as practicable, but not later than 180 
     days, after the date of enactment of this Act, as determined 
     by the Secretary of Agriculture.

  Mr. JOHNSON. Madam President, the amendment pending aims to protect 
America's livestock producers from the overwhelming market domination 
of a few meatpackers.
  My amendment is based upon bipartisan legislation I introduced 
earlier this year, S. 142, which strengthens the Packers and Stockyards 
Act of 1921, by prohibiting large meatpackers from owning livestock 
prior to slaughter.
  This amendment is cosponsored by my friend Senator Grassley, as well 
as Senator Wellstone, the Agriculture Committee chairman, Senator 
Harkin, Senator Thomas, Senator Daschle, and Senator Dorgan. All of 
these Senators have cosponsored my bill, which enjoys bipartisan 
support. I applaud my colleagues for their leadership on this issue, 
and especially thank Senator Wellstone for offering this amendment in 
the Agriculture Committee. Unfortunately, it was defeated, but with 
more information about what our amendment does, and doesn't do, I 
believe we'll gain much more support here on the floor.
  Mr. President, let me address specifically what our amendment does; 
First, it bans large meatpackers from owning slaughter cattle, hogs, 
and lambs for more than 14 days prior to the time in which these 
livestock are slaughtered. Second, it exempts producer-owned 
cooperatives engaged in slaughter and meatpacking. Therefore, many of 
the innovative, start-up projects operating and being formed to give 
producers greater bargaining power in the market will not be affected 
by our amendment. There are a number of these cooperative projects Mr. 
President, that I would like to highlight as examples;
  For instance, our amendment would exempt the United States Premium 
Beef packing plant. U.S. Premium Beef is located in Kansas and is the 
first value-added meatpacking plant owned by a farmer-controlled 
cooperative in the nation. U.S. Premium Beef works with Farmland 
Industries in this project. The facility processes cattle owned by 
ranchers. In a value-added-twist, the ranchers also own the processing 
facility itself, in conjunction with Farmland Industries, a 
cooperative. This is the kind of innovative project that our amendment 
does not impact.
  The amendment also looks forward to many similar projects breaking 
ground in the future, and exempts any farmer-owned co-op aiming to 
process cattle in South Dakota, North Dakota, Iowa, and other portions 
of the country. Our amendment also exempts the ``Pork America'' 
cooperative working to finalize plans for the Nation's first major pork 
packing cooperative, and the amendment exempts a number of modest-sized 
co-op lamb slaughtering projects in the Northern Plains and West. But 
co-ops are not the only businesses exempt from the ownership ban. 
Small, producer owned packing and processing facilities handling less 
than 2 percent of the national, annual slaughter are also exempt under 
our amendment, whether or not they are a co-op.
  Therefore, if a farmer rancher owned facility slaughters less than 
1,960,000 hogs, 724,000 beef cattle, or 69,200 lambs, they are exempt 
from the ownership ban under our amendment. For instance, ``Harris 
Ranch'' in California is a producer-owned beef packing plant, not 
formed as a cooperative, which handles less than 724,000 head of beef 
cattle per year. As a partnership of cattlemen who own a packing plant, 
this facility will be exempt according to my amendment. We don't want 
to stifle or inhibit these new ventures from making a real, bottom-line 
difference for American livestock producers, so my amendment exempts 
``Harris Ranch'' and all other non-cooperative, producer owned 
processing and packing plants that slaughter less than 2 percent of the 
overall domestic slaughter of beef cattle, lamb, and hogs.

[[Page S13094]]

  That's the substance of our amendment. Here is why we need our 
amendment. Our amendment would take on a growing problem in livestock 
marketing--that of packer ownership of livestock and captive supplies 
of livestock that allow packers to manipulate cash prices paid to 
producers. This amendment would strengthen the 80 year-old Packers and 
Stockyards Act, to make it unlawful for a packer to own, feed, or 
control livestock intended for slaughter.
  Our amendment also addresses a glaring deficiency in the Packers and 
Stockyards Act of 1921, because it has failed to prevent packers from 
squeezing independent producers out of the market.
  Here are a few cases in point where current law--written 80 some 
years ago--has failed to promote competition in livestock markets. The 
poultry industry has been almost entirely vertically integrated for 
many years, and the pork industry is becoming more so. The hog industry 
especially has been consolidating rapidly in recent years. At the 
packer level, the 4 largest firms' share of hog slaughter reached 56 
percent in 1999, compared with 40 percent in 1990. In 1997, 64 percent 
of all hogs were marketed through some form of forward sales 
arrangement between producers and packers, and approximately 10 percent 
of all market hogs involved entire or partial packer ownership.
  According to USDA's Economic Research Service, larger producers--
5,000+ head--most often aligned with large integrators and meatpackers 
currently account for nearly three-fourths of the hog production, 
compared with just over one-fourth in 1994. In the cattle sector, the 4 
largest beef packers accounted for 80 percent of all steers and 
heifers--beef cattle--slaughtered in 1999, compared with 36 percent in 
1980. According to the Federal Reserve Bank of Kansas City, the number 
of U.S. packing houses for beef cattle and hogs has declined by two-
thirds since 1980.
  Smithfield Foods has made 17 acquisitions during this time, giving 
Smithfield 20 percent of the domestic processing market for pork. A 
recent column in the ``Economist'' stated Smithfield would like to 
increase that share to 30 percent, and hopes its hiring of former 
Clinton administration DOJ Anti-Trust Chief Joel Klein as a Smithfield 
attorney may help them in that process. These are the facts about 
consolidation land market power. These are the hard cold facts that 
frustrate every independent farmer and rancher in the United States. 
The frustration grows when one considers recent profits made by 
agribusinesses:
  Cargill increased profits by 67 percent in the last quarter, Hormel 
increased profits by 57 percent, and Smithfield increased profits 
nearly 30 percent. Finally, Tyson, now the single largest meat 
processor in the world with its purchase of IBP, tripled profits in its 
most recent quarter. Conversely, crop prices took a nose dive so severe 
in September that it marked the worst one-month drop in crop prices 
since USDA has been keeping records over the past 90 years. We must 
inject some real competition, access, transparency, and fairness into 
the marketplace if we are to see these tragic circumstances change. 
Instead, agribusiness is vigorously lobbying Congress to ensure the 
market is noncompetitive, closed off, veiled, and unfair.
  Packer ownership of livestock is a function of captive supplies. 
Captive supplies are livestock that are controlled by packers either 
through contractual arrangements with producers or outright 
ownership. In other words, captive supplies are all cattle and swine 
that are not negotiated and priced within seven days of slaughter. The 
trend towards captive supplies and packer ownership has dramatically 
increased the market power of meat packers far beyond the control they 
previously had in the marketplace even 10 years ago.

  Banning major meatpackers from owning livestock prior to slaughter is 
not a radical idea, there is a basis for what we are trying to do. The 
Packers and Stockyards Act, and its regulations, currently prohibit 
sale barns or auction markets from vertically integrating. 
Specifically, stockyards may not own or control buying stations, 
packing plants, or livestock feeding operations. The rationale is that 
such ownership or control creates conflicts of interest, access 
problems for other producers, and opportunities for self-dealing which 
distort the market.
  Because meatpackers are similarly situated to stockyards as a market 
creator and market forum, the same rules should apply to them, but, 
unfortunately, the rules do not apply to the packers. Moreover, similar 
marketplace protections exist in other industries. For example, film 
production and movie companies cannot own local movie theaters by law. 
Broadcasting companies are prohibited from owning local television and 
radio stations. Why can't similar protections apply to the family 
farmers and ranchers raising livestock in the United States?
  Here are some of the harmful effects of the packer ownership/captive 
supply trend: A stark increase of packer market power by allowing 
packers to stay out of the cash market for extended periods of time, 
thus reducing farm gate demand and driving down price; a severe 
reduction, or even elimination, of the ability of small and medium-
sized producers to even access the market. An increase of packer market 
power by allowing packers to go to the cash market only during narrow 
``bid windows'' or time periods each week rather than bidding all week, 
thus resulting in panic selling by producers; a distortion of public 
markets because captive supply livestock are not priced at the time of 
the commitment to deliver them. Rather they are priced after delivery.
  This means that transactions concerning these packer-owned livestock 
are not part of the publicly reported daily cash market. Narrowing the 
volume in the market makes it more subject to manipulation. Less cash 
market volume also increases the likelihood for reduced competition, 
fewer competitors, and a lower price.
  In conclusion, not only must we strengthen the law, but we must also 
call on USDA and the Department of Justice to better enforce it. 
Enforcement of the Packers and Stockyards Act has been dismal, no 
matter who sits at the Secretary of Agriculture's desk. We must call 
upon USDA and DOJ to better enforce our laws. Yet, ensuring free and 
fair markets is not a one-way street. The fault is not solely with 
USDA. We must pass stronger laws in Congress as well. Therefore, while 
Congress has not been successful in trying to urge our Cabinet leaders, 
regardless of party, to protect the market, I believe we must enact 
stronger laws to prevent further erosion of competition in livestock 
markets.
  Our amendment would essentially update and strengthen the Packers and 
Stockyards Act, which is supposed to prevent any preference and 
Stockyards Act, which is supposed to prevent any preference in packer 
procurements of livestock. The 80-year-old act was also supposed to 
guarantee a well functioning marketplace on fair terms for all farmers 
and all ranchers. Packer ownership of livestock is inherently 
preferential and anticompetitive. But with USDA either asleep or in the 
packers' pockets, this bill is desperately needed. Considering where 
the industry currently stands, with the world's largest poultry 
processor buying the world's largest beef packer, as well as a number 
of other proposed mergers in the last year, I believe this amendment is 
critically important to halt what is an unfair move toward vertical 
integration.
  A ban on packer ownership of livestock would not drive packers out of 
business because most of their earnings are generated from branded 
products and companies marketing directly to consumers. Conversely, 
livestock ownership by packers and further concentration in the 
livestock industry could drive independent livestock producers out of 
business because they are at the mercy of these large corporations.
  Our Nation's farmers and ranchers want competition in the 
marketplace, but when a meatpacker owns livestock, that actually 
reduces competition. If allowed to grow unchecked, packer ownership of 
livestock will put a stranglehold on the Nation's family farmers and 
ranchers and eventually will drive those operations out of business. 
This farm bill needs to combat marketplace concentration so that 
family-size farmers and ranchers are not squeezed out of business by 
multinational corporations.
  I urge all of my colleagues to support this very important amendment 
that will preserve family farmers and ranchers by putting a stop to 
concentration

[[Page S13095]]

in the livestock industry and preserve the level of competition that 
has made our free market economy over the years the greatest success 
story economically in the world.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from 
Minnesota.
  Mr. WELLSTONE. Mr. President, I rise to support my colleague from 
South Dakota. Before I continue, it is my understanding that after this 
amendment, we will go to the Smith amendment on the Republican side. 
Senators Wyden and Brownback have an amendment they say will be 
accepted. I ask unanimous consent I then be allowed to offer my 
amendment after that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. Mr. President, I say to my colleague from South 
Dakota, I so appreciate his work. What we are saying with this 
amendment--and it is hard for people not in farm country to understand. 
The truth is, this is vitally important to consumers. We are saying a 
packer cannot own a supply of livestock during the 14 days prior to 
slaughter. Why? Because what is happening is these big packers are 
buying when prices are low, and then they hold on to the livestock 
which is ready for slaughter for the purpose of dumping it on the 
market when prices start to go up.
  The IBPs or Tysons of this world are basically controlling the 
market. Frankly, they are jacking the independent producers around. 
That is exactly what is happening, I say to Senator Johnson. I am very 
proud to join him with this amendment.
  Minnesota family farmers tell me the issue they are most in agreement 
on--whether it is Farm Bureau or Farmers Union--is this whole problem 
of concentration, these conglomerates that have muscled their way to 
the dinner table and are shoving family farmers off the land.
  There was a recent poll done by the Nebraska Institute of 
Agriculture: 72 percent of farm households agree that packer ownership 
should be prohibited.
  To save time, because there are other Senators who want to offer 
amendments and they are worried about this cloture vote, although I 
certainly hope we will get cloture, I will not go through the 
statistics on concentration. Whether it is pork, whether it is beef 
packers, whether it is turkey processors, chicken broilers, over and 
over, Economics 101, we have at best an oligopoly--three or four firms 
that dominate 50 percent of the market--and at worst we have a 
monopoly.
  Everywhere farmers work, whether they buy from or sell to, they are 
up against large conglomerates. It is like an auction: If you have a 
lot of buyers, you are going to get a decent price. If you have just 
two people you can bid to, you are not likely to do very well.
  So what this amendment is all about is trying to give some 
opportunities to our independent producers. These packers practice 
acquiring captive supplies through contracts, and then they use their 
ownership to reduce the number of opportunities for the small and 
medium-sized farmers to sell their hogs. With fewer buyers and more 
captive supply, there is less competition for independent farmers' 
hogs, and, frankly, it is a scam. This is all about lower prices.
  My colleague from South Dakota already said this, but what we are 
seeing is a breathtaking amount of consolidation taking place in the 
food industry. We learned this summer that Tyson's Foods has finalized 
its agreement to purchase IBP. The deal has merged the country's 
largest poultry producer with the country's largest processor of red 
meat.
  We asked the Department of Justice to investigate, but I do not think 
the laws are strong enough, and I do not expect this Department of 
Justice to really take this on.
  We can at least say: Look, we do not want to have these packers 
acting to stifle competition, and that is exactly what this amendment 
is all about. Some are saying we are trying to stifle competition. This 
amendment does precisely the opposite. We want to restore competition 
in the livestock markets, and we want to put some freedom back into the 
free market system. We want to put free enterprise back into the free 
enterprise system. That is what this amendment is all about.
  Some say this concentration leads to cheaper prices for consumers, 
but, frankly, the farm retail spread grows wider and wider. That is the 
difference between what our producers make and what consumers actually 
pay at the grocery store.
  This amendment has the support of a broad base of family farm 
organizations. This amendment sides with family farmers and ranchers 
over these agriculture conglomerates, and it boils down to whether or 
not we want to have independent livestock producers in agriculture or 
we are going to yield to concentration and see farmers and ranchers 
become low-wage employees on their own land.
  That is the trend. That is where we are going. This amendment is an 
effort to try to fight that. If we continue to stand idle and watch 
control of the world's food supply fall into the hands of the few, 
consumers are going to be the real losers. So I say to my colleague 
from Indiana, I really could talk for hours on this, but I am trying to 
be brief because I know other Senators have amendments.
  I will simply say two things: No. 1, this is all about assuring 
competition. This is an amendment for our independent livestock 
producers. It is a question of whether we side with them or whether we 
side with these huge conglomerates who have a tremendous amount of 
power. This whole manipulation of the market is, from my point of view, 
outrageous. These conglomerates buy when prices are low and then they 
dump--basically they keep the prices low by going back to the 
slaughterhouse and dumping it on the market. It is absolutely 
outrageous, and I think that is why there is so much support for this 
amendment in the countryside.
  Let me say one final thing. Since so many Senators are trying to 
bring amendments before cloture, I certainly hope we will vote cloture. 
I do not think this farm bill ought to be stopped. We are talking about 
a $3 billion increase of net income for our producers in this country. 
Time is not neutral. I think the Freedom to Farm bill became the 
``freedom to fail'' bill. It is time to change this farm policy, and I 
hope Senators will vote for cloture and we will not see a 
filibuster and a blocking of this bill.

  People in the countryside are pretty impatient about this. Time is 
not on their side. They would like to see a change in agriculture 
policy.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. Mr. President, may I inquire of the distinguished Senator 
from Minnesota, I understand the Senator asked unanimous consent that 
his amendment might be debated immediately following the Johnson 
amendment.
  Mr. WELLSTONE. No, not at all. I heard the Senator from Indiana 
earlier. I said my understanding was that following the Johnson 
amendment, we would move to the Republican side and that Senator Smith 
would then submit an amendment. I was trying to accommodate the Senator 
from Oregon. My understanding is Senator Wyden and Senator Brownback 
had an amendment that was going to be taken up and they needed just a 
few minutes, and then I asked to follow that. That is all.
  Mr. LUGAR. I thank the Senator, and I apologize for my 
misunderstanding because I recall we had a colloquy in which the 
Senator was involved earlier on.
  Mr. WELLSTONE. I say to my colleague from Indiana, would I ever do 
that?
  Mr. LUGAR. No, and the Senator has not. I appreciate it.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, I send an amendment to the 
desk and ask for its immediate consideration.
  The PRESIDING OFFICER. Is there any objection to setting aside the 
pending amendment?
  Mr. SMITH of New Hampshire. I ask unanimous consent that the Johnson 
amendment be set aside for the purpose of offering an additional 
amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. JOHNSON. Reserving the right to object, if there is no further 
debate on the Johnson amendment, I ask for the yeas and nays on the 
amendment and that we proceed to the Smith amendment.

[[Page S13096]]

  Mr. SMITH of New Hampshire. Mr. President, I did not realize there 
were Members who wished to speak in opposition to the Johnson 
amendment, so I will withdraw my request at this time.
  The PRESIDING OFFICER. The Senator has the right to do that.
  Mr. LUGAR. Reserving the right to object, what was the request from 
the distinguished Senator from South Dakota?
  The PRESIDING OFFICER. The Senator from South Dakota called for the 
yeas and nays to be in order prior to setting aside the amendment.
  Mr. JOHNSON. I withdraw that request if there is additional debate 
pro or con on the amendment.
  Mr. LUGAR. Mr. President, there is a request for further debate.
  Mr. JOHNSON. I was simply suggesting we take care of the Johnson 
amendment before we moved on to the Smith amendment. That was my only 
goal.
  Mr. LUGAR. In response to the distinguished Senator, we have 
additional debaters.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, parliamentary inquiry. Are we on the 
Johnson amendment now?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HARKIN. Is there a time limit on the Johnson amendment?
  The PRESIDING OFFICER. There is not.
  Mr. HARKIN. Mr. President, how long have we debated the Johnson 
amendment to this point? I ask that there be one half-hour remaining on 
the Johnson amendment divided evenly.
  The PRESIDING OFFICER. Is there objection?
  Mr. LUGAR. I object.
  The PRESIDING OFFICER. The objection is heard.
  Mr. HARKIN. Is there any time limit the Senator will agree on?
  Mr. LUGAR. Not until Senator Burns, who wishes to be heard, comes to 
the Chamber to speak.
  Mr. HARKIN. I think it is becoming clear what is going on.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, I rise in opposition to the Johnson 
amendment. There may be some understandable sympathy with respect to 
the amendment of Senator Johnson and Senator Grassley. We all claim 
concern for the small farm and for reducing consumer prices. We are in 
the process of voting on numerous amendments to protect the viability 
of the family farm and the farmer's ability to provide for his or her 
family.
  Personally, Virginians have been working on a peanut provision to 
protect small Virginia peanut farmers from the untenable, devastating, 
and radical changes proposed in this farm bill. I have heard the 
statistics that have been quoted by the Agriculture Committee ranking 
member, Senator Lugar, in which Senator Lugar pointed out that a large 
percentage of Federal farm subsidies go to a relatively small 
percentage of our farms. These are oftentimes larger farms, and I 
certainly understand his concern.
  The situation being addressed by this amendment is not the same type 
of issue. The Johnson amendment will actually harm the small farm it 
intends to protect.
  This amendment will prevent entrepreneurial and creative companies 
from achieving operational quality, efficiency, and economies of scale. 
This amendment will drive up consumer prices. This amendment will make 
the U.S. products less competitive in world markets. This amendment 
will drive small farmers out of the market. Here is how.
  If packers are prohibited from growing their own livestock, they will 
see an immediate decline in futures prices. Packers who currently run 
both operations will have to sell their livestock, thereby, of course, 
driving down market prices. When prices for hogs or cattle go down, we 
know what the return will be. It will shrink, making it--especially for 
the farmer--much tougher or difficult for especially the smaller 
farmers with less profitmaking room to continue in business.
  Now, this is obviously not the way to protect the small family farm. 
When prices go down, it will be too late in the longer run--say, the 
season or two after. The small farms will not have been able to 
withstand an immediate and drastic fall in prices, and they will 
already have been shut down and will hardly be in a position to buy 
more livestock.
  Excessive Federal Government regulations already threaten our farming 
community's declining profit margins due to more Federal interference 
in the marketplace, and that will hurt our hard-working farmers.
  Now, the long-term effect of this amendment would be to drive up 
costs for the processors and packers and ultimately drive up the costs 
for consumers. Our American farmers and packers would lose market share 
to international competition that isn't restricted by their foreign 
governments. Indeed, many foreign governments greatly subsidize and 
protect their agricultural interests.
  In the economic wealth of Virginia, we hold an inventory in the 
private sector of about 500,000 heads of hogs and pigs, making it a 
significant producer. We are also a large producer of cattle and 
calves. We enjoy a great mix of traditional farms that sell their 
livestock to processors and packers who also grow their own livestock. 
The predictability of supply experienced by these multifaceted packers 
results in an efficiency that is achieved by larger operations. These 
well-managed pork processing companies are able to offer high-quality, 
specialized items, quality, low-priced products to consumers as a 
result of this efficiency, as well as quality assurance of the methods 
of raising the hogs and cattle. We understand that in some of the 
specialized parts of the marketplace, in the way cattle are fed, they 
will then be able to label that as kosher or some other method of 
product that some consumers may desire.
  We are eager to finish the business of the Senate and go home to 
visit our families for the holiday season. Many will get a Virginia 
ham. They may get pork loin. They may get some beef roast or who knows 
what. But this amendment, unfortunately, will limit the ability of the 
efficient companies to offer these high-quality, competitively priced 
products.
  While I applaud the intent of this amendment to protect both the 
family farm and the consumer, I disagree with the methods of achieving 
this goal. Efficient companies that offer high-quality and low-priced 
products to consumers ought to be applauded and encouraged in their 
efforts. Congress should be saying yes to high-quality, U.S.-produced 
consumer goods. We ought to be saying yes to enabling long-term 
viability of family farms, and we ought to be saying yes to allowing 
strong and efficient businesses to succeed in the United States as well 
as internationally.
  I will conclude by saying I cannot see the logic of the Federal 
Government telling a legitimate company in this country or even a 
hometown butcher shop that you can't own a pig or you can't own a hog 
or you can't own a cow. I don't think it is the business of the Federal 
Government to tell someone who can own a pig, a cow, or a calf. 
Therefore, I oppose this amendment and hope my colleagues will as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. Mr. President, simply stated, this amendment would curtail 
the ability of packers to ensure a continuous supply of meat products. 
Without a certain supply, packers cannot operate, as the Senator from 
Virginia has pointed out, in a most efficient way. Margins for packers 
are already tight. They would be forced to run fewer shifts and close 
processing lines. This would force meat prices for consumers to rise, 
adversely affecting the poorest Americans who spend a higher percentage 
of income on food.
  We could amplify each of these points, but they are, I believe, 
essential to the debate. The reason that packers attempt to make 
certain they have a certain supply through control of that supply is to 
make certain that a continuous flow of production occurs.
  I appreciate the point being made by the sponsor of this amendment 
because, clearly, in years gone by competition in the stockyards of 
America made for a very lively market.
  My family was involved in that business. My dad was a livestock 
commission man at the Indianapolis stockyards, handling the hogs while 
my

[[Page S13097]]

grandfather handled the cattle. At 4:30 in the morning he went to the 
yards and did the best he could for the farmers he represented. Those 
stockyards long since have left our city, as they have left almost all 
cities of my State. It is in large part because those who are hog 
farmers and cattle farmers arrive at contractual arrangements that are 
favorable to them.
  The intent of this amendment, well meaning as it may be, is to roll 
back two decades of history in the business. The rollback will not 
necessarily be helpful to most Americans. It certainly will not be 
helpful for the price of meat or jobs of those employed by the 
meatpackers. These considerations have to be weighed as we evaluate the 
Johnson amendment.
  It is for these reasons, recognizing the point my colleague is 
making, that I oppose his amendment. I am hopeful Senators will 
carefully consider each of these factors as they come to a vote on this 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, what is the parliamentary procedure at 
this time?
  The PRESIDING OFFICER. The pending business is the Johnson amendment 
No. 2534.
  Mr. McCAIN. Are there amendments made in order following the 
disposition of the Johnson amendment?
  The PRESIDING OFFICER. Yes. In order are the Smith amendment, a 
Wyden-Brownback amendment, and a Wellstone amendment --in that order at 
the present time.
  Mr. McCAIN. I ask unanimous consent that the McCain amendment be made 
in order after the last amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. Mr. President, I join my colleagues today in offering 
this amendment to help increase smart competition in the livestock 
sector. I think for a number of years we have observed changes that 
have taken place in agriculture.
  In my State, agriculture is largely livestock, beef, and we feel 
strongly about that. We have more producers and fewer processing. This 
can cause problems. Increasingly apparent is the difference between the 
cost the producers receive and the retail costs. There is a great 
differential. One wonders if some of the prices that go to producers 
from processors are where they ought to be.
  Additional regulation becomes necessary because of a loophole that 
has been there for some time. My colleagues and I have been concerned 
about that. The Packers and Stockyards Act of 1921 does not clearly 
define or address packers owning livestock for slaughter.
  This amendment would prohibit packers, meatpacking companies, from 
owning and feeding livestock--with the exception of producer-owned 
cooperatives and small meatpacking companies. An exemption for 
cooperatives is included as recognition and reward to producers who 
have invested their resources to enhance their own market niche. I 
think we will see more of this--I hope that, indeed, we do--where 
producers are more involved in processing and moving their products on 
to the retail area.
  By placing a prohibition on meatpacking companies, our efforts today 
will be branded as anticompetitive, in support of big Government versus 
free market. The intentions are obviously just the opposite. Our goal 
is to restore competition in livestock markets. Reform, I believe, is 
long overdue.
  Livestock markets have become increasingly concentrated. Producers 
have fewer options for selling their products. Four top meatpacking 
firms control roughly 80 percent of today's slaughter market. Less than 
20 years ago, four top firms controlled only 36 percent of the market. 
So times have changed. Some of the rules need to change. This is an 
opportunity to look at that.
  We saw examples where the on-farm price of commodities goes down at 
the same time retail prices go up or remain constant. The problem of 
price disparity, I believe, is somewhat, at least, attributable to 
market concentration and that is what this amendment addresses. This 
amendment should be our first step toward making fair markets for our 
producers.
  I certainly urge support for this amendment and I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. Mr. President, I thank my ranking member on the 
Agriculture Committee for protecting me for just a little time here. I 
will not take too much time on this particular issue. I do have a 
couple of questions, though, for the Senator from South Dakota.
  How does this deal with contracts? In other words, there are some 
people who forward-contract, under a pricing system, on a grid or 
whatever. How does this affect that?
  Mr. JOHNSON. I appreciate the inquiry from my friend from Montana. 
This legislation does not prohibit forward contracts at all. There are 
some who suggest maybe we should, but we chose not to go down that 
road. So forward-contracting remains an option for both the producers 
and the livestock packers.
  Mr. BURNS. Do you deal with futures and options?
  Mr. JOHNSON. This legislation does not deal with futures and options.
  Mr. BURNS. Mr. President, I am supportive of what the Senator from 
South Dakota is trying to do. I associate myself with the remarks made 
by my good friend from Wyoming. Unless we deal with contracts, this 
matters not because, in other words, they will just contract the 
cattle. They will contract the cattle right from the cow/calf producer 
before they even go into the feedlot.
  I don't want to get caught in the same quagmire we have had with 
market reporting. That has turned out to be a beast. I do not know if 
it has helped out in any way. But what our intent was on market 
reporting was that the infrastructure of the USDA Market Reporting 
Service was already there and sales had to be reported. But OMB got in 
the middle of it and said, if only one guy was bidding on the 
livestock, then they can't report that because that is a violation of 
privacy in business or--I don't know, lawyers have some fancy word for 
it. I am not a lawyer. I have never been hinged with that title. So the 
OMB got in the middle of it, and they had a working sheet on why we 
could not have true transparency in the livestock marketing business. 
It was that thick. It was just--it would just blind you.

  I have nothing against cooperatives either, but I have yet to see one 
that is managed all that well. What they are trying to do with prime 
beef is a venture--and we have producers in Montana who have cattle on 
feed in that program. But we must not take away a producer's right to 
do business with whomever he wants to do business, if he wants to do it 
on a private party basis. So I have some reservations about this 
amendment.
  I appreciate the work that has been done. I don't know of any other 
way. We have not been able to attract any kind of sympathy or notice 
from the Justice Department when it comes to antitrust in the 
agricultural markets, other than ADM. That is about the only one, over 
in soybeans.
  So if we do not do anything about contracts nor the use of futures to 
hedge your cattle or hogs--the same is not true in sheep. I have been 
looking at the sheep industry. I am still very much interested in it 
because we have a situation there that is completely intolerable to the 
lamb industry in this country. The excuses they give for a market that 
dips so fast--I mean it went down something like $20, $30 per 
hundredweight on lambs in less than 2 weeks, and there was no reason 
for it other than the principal processor and slaughterer and importer 
in this country has that big lever and they can do it.
  So I haven't made up my mind on this, but I did want to say if there 
is no treatment of contracts or futures or options, then I don't know 
how we close all the loopholes of packer-owned cattle. Right now 
packers can't own stockyards, and there was a good reason for that. 
That law is being enforced. But one of these days I think those of us 
who have a interest in the livestock industry--and there are a lot of 
us in this body who do and some probably know more about it than I

[[Page S13098]]

do--we are going to have to take a look at packers and stockyards and 
maybe do some reforms in that respect. I think the total law will 
probably need redoing.
  I just wanted to bring that to the attention of the Senator from 
South Dakota and to the attention of others in this body. I yield the 
floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, just so Members understand, we are going to 
arrange a vote on this at about 1:50, so everyone should be advised. 
When the Senator completes his statement, I will be back and propound a 
unanimous consent request.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. JOHNSON. I think we have had a good debate on this legislation. I 
think Senator Burns, my colleague from Montana, is correct on our 
issues about foreign contracting and markets that need examination. You 
can only do so much at one time, however. This addresses the most 
egregious of the concentration issues. That is the outright ownership 
of livestock on the part of the packers. That is our attempt here.
  There are some who say this bill goes too far. There are some who say 
the bill doesn't go far enough. I appreciate that. But I think it is a 
very solid piece of legislation. I hope it will go forward.
  The only other observation I have is it was noted we should not be in 
the business of telling someone whether or not they can own a pig. This 
legislation doesn't tell anybody whether or not they can own a pig. It 
does place some limitations on some kinds of packing companies that 
wish to own 2 million pigs. But it does not tell anybody whether or not 
they can own a pig. I think it is solid, bipartisan legislation, and I 
urge my colleagues to support it.
  I will ask, consistent with the request made by the Senator from 
Nevada, the ayes and nays at the appropriate time. I believe he 
indicated at about 10 minutes until 2. I will ask at that time for the 
yeas and nays.
  Mr. LUGAR. Mr. President, I rise to raise a question with the 
distinguished Senator from Nevada. As I understand it, the debate is 
concluded. My question to the Senator is, as we do not have a vote 
ordered, what can we do between now and 10 minutes until 2?
  Mr. REID. We have 10 minutes. I am sure you and Senator Harkin can 
talk about the bill. I am sure we can do a little more talking.
  We are going to vote on the Johnson amendment at 10 until 2.
  Mr. HARKIN. Mr. President, I believe Senator Smith has an amendment. 
Maybe we could take up his amendment.
  Mr. REID. That is fine. We now have less than 10 minutes.
  Mr. President, have the yeas and nays been requested by the Senator?
  The PRESIDING OFFICER. No. They have not.
  Mr. HARKIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. REID. Mr. President, will that vote begin at 10 until 2 o'clock 
today?
  The PRESIDING OFFICER. That is correct.
  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. JOHNSON. 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. JOHNSON. Mr. President, we have before the Senate today the 
Senate farm bill. It is certainly my hope that a cloture vote will be 
reached at 4 o'clock so that we may wind down the debate and go to 
final passage. I think this is an incredible urgency that the Senate 
pass the farm bill during these closing days of the first session of 
the 107th Congress for a number of reasons.
  One is the abject failure of the existing underlying farm bill. It 
needs replacement.
  Second, our farmers, our lenders, and our rural communities all want 
to know what the underlying rules are going to be in this coming crop-
year.
  Third, there is concern about whether there will be an erosion of the 
budget baseline currently afforded for agriculture.
  I applaud my colleague, Senator Harkin, for his extraordinary 
leadership on this farm bill. It was taken up during the tumultuous 
times of the 107th Congress when we had a change of power midyear from 
one party to the other--a change of all the chairmen and a change of 
leadership. Under those circumstances, Senator Harkin took up this 
issue. I think he has put together an excellent bill. I think there is 
a need to go forward.
  The bill contains several provisions that are of particular 
importance to me. One is that unlike the bill in the House of 
Representatives, and the bill on the other side, this legislation 
contains a bioenergy title. I think that is essential.
  As a member of the Energy Committee, I want to do all that I can in 
the coming year to move energy legislation which would incorporate 
incentives for greater utilization of agriculturally based renewable 
fuels. But it is also important that the farm bill, as well, contain 
efforts in that direction.
  I am pleased that Senator Harkin's farm bill, unlike the House bill, 
contains incentives for ethanol, for soybean-based biodiesel, and 
places agriculture at the center of our energy debate that this Nation 
needs to have.
  Second, the bill contains my legislation on country of origin 
labeling of meat, as well as fruit and vegetables.
  I think for too long the American consumers have been denied the 
ability to know the origins of the products they feed their families. I 
believe it is an outrage at a time when consumers have the opportunity 
to know the origins of most items they buy that for some reason they 
have been denied the ability to know the origin of the meat, fruit, and 
vegetables they serve their families.
  This is not a trade limitation. If people choose to buy foreign meat 
products or food products, it is certainly their prerogative. But this 
would make those decisions a knowing decision.
  I think this is helpful to a lot of American agricultural producers 
because I happen to believe a lot of Americans, if they have the 
choice, will choose an American product. It is more of a consumer issue 
than a producer issue because the consumers ultimately are the greatest 
in need of this additional information.
  I applaud Senator Harkin for including the competition title in the 
farm bill. Although that title was stricken in committee, it is my hope 
that at least components of it will find its way back into the farm 
bill as we engage in these debates today and this week.
  This bill provides significant benefits for producers. It is not 
perfect legislation. No legislation we ever consider on this floor is 
perfect. There are amendments that I would add. There is going to be 
one coming up not long from now having to do with the targeting of farm 
program payments--one that I will support, with Senator Dorgan and 
others--that I think is bipartisan; that I think will allow us to 
better utilize and more carefully target the benefits that flow from 
the farm legislation.
  But I think the biggest error of all would be for us to be allowed to 
be bogged down to the point where we cannot reach a final conclusion of 
this farm bill. I know there are those who want to delay this debate 
into next year. It would be well into the springtime before we would be 
able to get back and finish this, no doubt. I think that would be a 
mistake. I think there is a real urgency.
  I applaud Senator Harkin for his extraordinary leadership and for 
bringing this along as quickly as he has.
  But it is certainly my hope that later on today we will be able to 
reach cloture so that an adequate number of amendments are allowed to 
be considered, but that the bill is not, frankly, talked to death to 
the point where we are unable to give our producers, our rural 
communities, our lenders, or anyone else reliable knowledge about the 
shape of next year's agricultural economy.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. LUGAR. Mr. President, in behalf of the distinguished Senator from 
Arizona, Mr. McCain, I request unanimous consent that in the event 
cloture is invoked and Senator McCain has not

[[Page S13099]]

been able to offer his amendment before that time, he be allowed to go 
ahead and offer his amendment, and that it be considered germane.
  The PRESIDING OFFICER. Is there objection?
  Mr. HARKIN. Reserving the right to object, Senator McCain wants an 
exemption from the cloture in case cloture is invoked?
  Mr. LUGAR. Yes. Senator McCain has requested essentially the same 
privilege that was accorded to Senators Roberts and Cochran and to 
Senator Gordon Smith by the majority leader when he made his original 
unanimous consent request.
  Mr. HARKIN. Reserving the right to object, I am going to object for 
right now. I may OK it later. But for right now, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LUGAR. Mr. President, in the moments before our rollcall vote, 
let me respond briefly to the distinguished Senator from South Dakota.
  I observed during the past 48 hours that Senators have had an 
opportunity to offer amendments to the farm bill. I believe all 
witnesses to the debate would understand it has been spirited and 
vigorous. As a matter of fact, all of the amendments offered have been 
very relevant to agriculture. There were obviously many more amendments 
that Senators wished to offer that would be relevant to agriculture. We 
have compiled a list of 44 such amendments.

  In relation to the colloquy I just enjoyed with the distinguished 
chairman, two of those amendments--one to be offered by Senators 
Cochran and Roberts, and one to be offered by Senator Gordon Smith--
have been deemed germane by the majority leader's unanimous consent 
request, even if cloture is invoked. Those Senators have asked for this 
privilege simply because cloture would mean the possibility that very 
relevant amendments would be deemed nongermane.
  The problem for many Senators is that the agriculture bill has gone 
through several rewritings, including the bill offered by the 
distinguished chairman, Senator Harkin, but then supplanted by a 
complete substitute offered by the distinguished majority leader, 
Senator Daschle, with over 1,000 pages. Many Senators have found this 
situation difficult, although they are researching precisely where 
their amendments are, in a parliamentary situation, in order. In any 
event, they would like to have the opportunity to offer them.
  Very clearly, the invoking of cloture today would limit those 
Senators' ability to offer the pertinent amendments and, in some cases, 
completely eliminate it. Therefore, knowing there are many Senators on 
both sides of the aisle who have those amendments that we believe would 
perfect this bill, I am very hopeful that cloture will not be invoked 
when that time of vote comes at about 4 o'clock this afternoon.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The hour of 1:50 having arrived, the question 
now is on agreeing to the Johnson amendment No. 2534. The yeas and nays 
have been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy), and the Senator from Massachusetts (Mr. Kerry), are 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kennedy), and the Senator from Massachusetts (Mr. 
Kerry), would each vote ``aye.''
  Mr. NICKLES. I announce that the Senator from New Mexico (Mr. 
Domenici), is necessarily absent.
  The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 51, nays 46, as follows:

                      [Rollcall Vote No. 367 Leg.]

                                YEAS--51

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Breaux
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Collins
     Conrad
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dorgan
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Hagel
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Thomas
     Wellstone
     Wyden

                                NAYS--46

     Allard
     Allen
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Cochran
     Corzine
     Durbin
     Edwards
     Ensign
     Fitzgerald
     Frist
     Gramm
     Gregg
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kyl
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner

                             NOT VOTING--3

     Domenici
     Kennedy
     Kerry
  The amendment (No. 2534) was agreed to.
  Mr. HARKIN. 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.

  

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