[Congressional Record (Bound Edition), Volume 147 (2001), Part 3]
[Senate]
[Pages 3625-3631]
[From the U.S. Government Publishing Office, www.gpo.gov]



                 BANKRUPTCY REFORM ACT OF 2001--Resumed

  The PRESIDING OFFICER. We were to lay down the bill at 10:30. The 
hour of 10:30 having arrived, the clerk will report the pending bill.
  The bill clerk read as follows:

       A bill (S. 420) to amend title 11, United States Code, and 
     for other purposes.

  Pending:

       Leahy amendment No. 20, to resolve an ambiguity relating to 
     the definition of current monthly income.
       Wellstone amendment No. 35, to clarify the duties of a 
     debtor who is the plan administrator of an employee benefit 
     plan.
       Wellstone modified amendment No. 36, to disallow certain 
     claims and prohibit coercive debt collection practices.
       Wellstone amendment No. 37, to provide that imports of 
     semifinished steel slabs shall be considered to be articles 
     like or directly competitive with taconite pellets for 
     purposes of determining the eligibility of certain workers 
     for trade adjustment assistance under the Trade Act of 1974.
       Kennedy amendment No. 38, to allow for reasonable medical 
     expenses.
       Collins amendment No. 16, to provide family fishermen with 
     the same kind of protections and terms as granted to family 
     farmers under chapter 12 of the bankruptcy laws.
       Leahy amendment No. 41, to protect the identity of minor 
     children in bankruptcy proceedings.
       Wyden amendment No. 78, to provide for the 
     nondischargeability of debts arising from the exchange of 
     electric energy.
       Carnahan amendment No. 40, to ensure additional expenses 
     associated with home energy costs are included in the 
     debtor's monthly expenses.
       Smith of Oregon amendment No. 95 (to amendment No. 78), of 
     a perfecting nature.
       Reid (for Durbin) amendment No. 93, in the nature of a 
     substitute.
       Reid (for Breaux) amendment No. 94, to provide for the 
     reissuance of a rule relating to ergonomics.


                            Amendment No. 78

  The PRESIDING OFFICER. The Senator now has 5 minutes.
  Mrs. FEINSTEIN. I thank the Chair, and I would like to continue:

       This amendment seeks to give certain entities a favorable 
     status in the event that California utilities fall into 
     bankruptcy.

  That is what the Wyden amendment does.
  The letter goes on:

       Many companies have provided power to California's 
     consumers and [this association] believes emphatically that 
     all these entities deserve to be fully and fairly 
     compensated.

  As do I, Mr. President.

       However, it is inappropriate for the Senate to try and 
     create winners and losers in this desperate situation. Rather 
     than orderly resolution, this legislation could lead to a 
     premature declaration of bankruptcy and the inevitable 
     liquidation of the California electric utilities' assets in a 
     legal free-for-all.

  The American Gas Association, on behalf of all of the natural gas 
companies involved in this, also states the same thing. They go on, 
however, to say:

       As the preferred creditors would in actuality control the 
     bankruptcy proceedings through their status, in effect 
     Chapter 11 reorganization would not be an option. Liquidation 
     of assets through Chapter 7 filing would result. Such action 
     could cause serious disruption and harm to the utility 
     customers, not to mention the non-preferred creditors.


[[Page 3626]]


  So, Mr. President, you have virtually all of the electric power 
producers, as well as the natural gas producers, in effect, saying that 
if you give these Federal entities preferred status, should there be a 
bankruptcy, they would, in effect, have to assert their rights to force 
an involuntary bankruptcy, and that then would put both of the 
utilities into chapter 7 rather than chapters 11 or 13. This was the 
theme--the dominant theme--from virtually every generator, producer, 
and creditor.
  I know of virtually no electric power producer or gas producer that 
believes this amendment will do anything other than trigger a 
bankruptcy of these two companies. Therefore, I am strongly in 
opposition to it.
  Last evening, the proponent of this legislation, Senator Wyden, said 
in fact the legislation does not do this. So we went out and we 
contacted the bankruptcy attorney for Pacific Gas and Electric. We 
asked them for a letter and their interpretation of the Wyden 
amendment. I have that letter. I will read it into the Record.

       My firm is special reorganization counsel to Southern 
     California Edison. In connection with the debate over the 
     Wyden Amendment to S. 420, it has been suggested that the 
     Amendment is not intended to prefer the debt covered by the 
     Amendment over the debts of other creditors of Southern 
     California Edison and the other utilities affected by the 
     Amendment. Please be advised that, in my view, the Amendment 
     would do exactly that.

  This is the bankruptcy counsel for one of the utilities at risk of 
bankruptcy.
  The letter goes on:

       The purpose of the Wyden Amendment is to exclude from the 
     binding effect of a plan of reorganization in chapter 11 
     certain creditors of the utility who provided wholesale 
     electric power to the utility under certain conditions. It 
     provides that such debts are nondischargeable. As a 
     consequence, a utility in chapter 11 could not bind such 
     preferred creditors under a plan of reorganization, and such 
     creditors would be able to pursue the utility following 
     confirmation of a plan to collect in full, in cash, their 
     obligations while the other creditors were bound by the terms 
     of a confirmed plan of reorganization. Depending upon the 
     magnitude of such preferred claims, the utility might find it 
     very difficult to confirm a plan under such circumstances. 
     Such result would be very detrimental to not only the utility 
     but to its other creditors.

  This is the bankruptcy counsel himself.

       It is also my understanding that there has been a 
     suggestion in argument on behalf of the Amendment that the 
     magnitude of the preferred obligations would not exceed $100 
     million to $200 million. I am advised by Southern California 
     Edison that based upon the amount of power purchased during 
     the emergency orders of the Federal Energy Regulatory 
     Commission, the amount of power procured to serve Southern 
     California Edison's customers substantially exceeded that 
     amount.

  The PRESIDING OFFICER. The Senator's 5 minutes have expired.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to use the 
remainder of Senator Bingaman's time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Thank you very much.
  Continuing:

       Based upon the foregoing, it should be clear that if 
     Southern California Edison was involved in a bankruptcy 
     proceeding, the proposed legislation would have significant 
     impact upon Southern California Edison and its other 
     creditors.

  Mr. President, this is the bankruptcy counsel.
  So we know two things: One, from bankruptcy counsel, that this 
amendment--the Wyden amendment and the Smith amendment--do in fact 
create two classes of creditors. And they do, in fact, give premier 
standing to one class of creditors, the Federal subsidized entities. 
Those entities are given preference in a bankruptcy. Secondly, we know 
in fact that the amount involved is a good deal more than the amount 
represented in this Chamber.
  We also know that virtually every other power producer and supplier--
every single one--believes that if this amendment were to pass, they 
would have to exercise their rights, which would be to push Southern 
California Edison and Pacific Gas and Electric into an involuntary 
bankruptcy and most probably in chapter 7, which would mean a 
dissolution of the companies involved.
  This would be tragic because the State has negotiated an agreement 
with two utilities to buy their transmission lines and to put $7 
billion into the purchase of those transmission lines. The result would 
then be a securitization of that back debt and enable these utilities 
to pay their debtors and creditors without going into bankruptcy. So a 
plan to enable the payment of the debtors and creditors is now underway 
by the State.
  Various Members of this body may not like how the State is handling 
the problem, but the State does have the right to try to redress the 
debts and in fact is doing so. These amendments can only wreak 
devastation on that attempt. I strongly oppose the Wyden and Smith 
amendment.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I am going to a gathering for Jesse 
Brown. I ask unanimous consent that I be allowed to bring the Wellstone 
amendment, which is supposed to come next, to the floor at 1:15.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. Reserving the right to object, is that a modification 
of the earlier amendment?
  Mr. WELLSTONE. That is correct.
  Mr. SESSIONS. How would it be, again?
  Mr. WELLSTONE. The modification is that the section dealing with 
coercive practices is out, which was a question of Banking Committee 
jurisdiction.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                            Amendment No. 40

  The PRESIDING OFFICER. There will now be a 5-minute debate on the 
Carnahan amendment No. 40. Who yields time?
  The Senator from Missouri.
  Mrs. CARNAHAN. Mr. President, I understand the managers have agreed 
to accept my amendment on home energy. I thank Senator Collins, 
cosponsor of the amendment, as well as Senators Hatch, Grassley, and 
Leahy for their willingness to help on this very important amendment. I 
yield the floor.
  The PRESIDING OFFICER. Is there further debate on the amendment? The 
Senator from Alabama.
  Mr. SESSIONS. I understand that pending is the Carnahan amendment. I 
ask unanimous consent that following the concluding debate, the 
amendment be agreed to and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Therefore, the next vote will occur in relation to the 
Wyden-Smith amendment regarding the California utilities matter.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I yield back the time on the Carnahan 
amendment.
  The PRESIDING OFFICER. The time is yielded back on the Carnahan 
amendment. By unanimous consent, the amendment is agreed to.
  The amendment (No. 40) was agreed to.
  Mr. SESSIONS. Mr. President, I suggest the absence of a quorum, and I 
ask unanimous consent that the time not be counted against either side.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Amendment No. 78

  Mr. SESSIONS. Mr. President, I say to the Senator from Alaska that we 
are

[[Page 3627]]

waiting on a 5-minute debate before we vote, and the debaters have not 
arrived. That could delay our vote. Will the Senator speak long?
  Mr. MURKOWSKI. If I may, I will take some of the time, perhaps, 
allotted to the Senator from California to just make a statement on the 
amendment, which will not take more than a minute.
  The PRESIDING OFFICER. The time has expired.
  Mrs. FEINSTEIN. Mr. President, I don't believe the time has expired. 
I believe I have 2\1/2\ minutes. I will be happy to give some of that 
to the Senator from Alaska.
  The PRESIDING OFFICER. The Senator is correct. She has 2\1/2\ 
minutes.
  Mr. MURKOWSKI. I will just use a minute. Let me leave you with one 
thought. Article I, section 8, of the Constitution clearly states that 
Congress shall ``establish uniform laws on the subject of bankruptcies 
throughout the United States.''
  There is absolutely nothing uniform about the pending amendment. It 
only protects electric sales ordered by the Federal Government to 
California, or sales only to California by State, local, or Federal 
Government entities. If similar power sales arose in New York or 
Georgia, these provisions would not apply.
  In other words, this amendment says there is one set of bankruptcy 
rules for electric sales into California and another set of bankruptcy 
rules for electric sales into the other 49 States. Clearly, this is 
completely contrary to the intent of our Founding Fathers and the 
Constitution; they wanted one set of uniform rules to govern bankruptcy 
throughout the entire country. As a consequence, I urge my colleagues 
to reflect on this legitimate question of the constitutionality of the 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. WYDEN. Mr. President, there are 2\1/2\ minutes on our side for 
the Smith-Boxer-Wyden amendment. I yield a minute and a half of that 
time to Senator Boxer, and I thank her. I remind our colleagues on this 
issue affecting the Pacific Northwest, there is a disagreement among 
the Californians.
  Mrs. BOXER. Mr. President, I am supporting the Wyden-Smith amendment 
because it sends the right signal--an ethical signal to the private 
utilities in California who owe billions of dollars of unpaid bills to 
those who supplied energy to my State when my State was in dire need. 
Sometimes these power generators, many municipal utilities, were forced 
by the Federal Government to send this power, even though they were 
concerned that they needed to conserve it for themselves or that they 
might not get paid.
  Call me old-fashioned, but I say pay your bills. Don't send your 
parent company $4.8 billion--which is what one private utility did--to 
pay dividends of the shareholders and repurchase stock when you know 
you have bills to pay.
  I have a Washington Post article. I ask unanimous consent to have it 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Jan. 31, 2001]

                  Audit Results Anger Consumer Groups

                  (By William Booth and Rene Sanchez)

       Los Angeles, Jan. 30--The first of several audits to be 
     released by state regulators said that one of California's 
     two nearly bankrupt utilities, Southern California Edison, 
     legally passed along nearly $5 billion in net income to its 
     parent, Edison International, which used the money to pay 
     dividends to its shareholders and to repurchase its own 
     stock.
       The audit, released Monday night by the California Public 
     Utilities Commission, also showed that Southern California 
     Edison is now broke and so strapped for cash it cannot keep 
     buying electricity at rates higher than it can pass along to 
     consumers.
       The $4.8 billion was, in part, proceeds from the sale of 
     the Southern California Edison's power plants, which the 
     utility was required to sell under California's 1996 
     deregulation plan. Deregulation here sought to break up the 
     utility monopolies and open the state up to free-market 
     forces.
       Consumer advocates--and some elected officials--reacted 
     angrily to the audit, accusing the utilities of pleading 
     poverty and begging for financial assistance from the state 
     to avoid bankruptcy.
       ``Basically, they took the money and ran,'' John Burton, a 
     Democratic leader of the state Senate from San Francisco, 
     told reporters. ``Had they not done that they would not be in 
     the financial problem they are in. If ratepayers bail them 
     out, ratepayers should get something in return, like power 
     lines or something.''
       But officials with the utilities said their critics are 
     playing politics and misinterpreting their books. Tom 
     Higgins, senior vice president at Edison International, said: 
     ``There's been no profit, no windfall. This is the recovery 
     of capital investment.''
       The past profits and current solvency of the state's two 
     struggling utilities are central to California's energy 
     crisis. Most experts agree that the state is suffering from 
     soaring prices and its 15th day of emergency energy rationing 
     because of a failed and dysfunctional deregulatory plan, 
     which allowed wholesale energy prices to soar while capping 
     the rates utility companies could charge consumers. In the 
     past six months, the utilities have gone bust, while 
     wholesale power producers have reaped huge profits.
       California is fast running out of time to solve its 
     immediate energy crisis. The state already has used up the 
     first $400 million in emergency appropriations for 
     electricity purchases. The Legislature is considering bills 
     to make the state a major buyer of power--and to pass along 
     possible steep increases in costs to consumers. Gov. Gray 
     Davis (D) worked through the weekend trying to hammer out a 
     longer-range plan, but so far the Legislature has passed only 
     emergency measures and decrees--and no long-term solutions.
       Higgins, the Edison International executive, said Southern 
     California Edison was required to sell off its plants after 
     deregulation in 1996, and that it did so--mostly to out-of-
     state companies that are now the wholesale suppliers of 
     California's electricity. The utility sold off its gas and 
     coal-fired plants, but retained its nuclear and hydroelectric 
     facilities.
       The money they got from plant sales, Higgins said, went to 
     pay off the banks that loaned them the cash to build the 
     generating stations and to repay investors and shareholders 
     who also put money into plant construction. The transfer of 
     money occurred from 1996 through last November.
       ``It's like you have a house and mortgage and you sell the 
     house and you recover your initial investment and then pay 
     off the mortgage,'' Higgins said.
       Another audit of Pacific Gas and Electric Co., the other 
     struggling utility, will be released within days. That 
     results are expected to be similar.
       ``The only reason this would be controversial is that the 
     consumer groups are trying to rewrite history,'' said John 
     Nelson, a spokesman for PG&E.
       Nelson said his utility did the same thing as Southern 
     California Edison--it sold plants, paid off loans and sent 
     the rest to its holding company, PG&E Corp. He would not 
     disclose exactly how much was transferred, but said it is 
     safe to assume a figure of several billion dollars.
       Consumer advocates around California, however, said it did 
     not matter that the utilities were returning investments to 
     their shareholders, a practice that no one has asserted is 
     financially improper or illegal. Today, they began lobbying 
     state lawmakers to scrap an emerging legislative plan that 
     would cover much of the utilities' purported debts with 
     billions of dollars in publicly financed bonds.
       ``This confirms what we've been saying all along,'' said 
     Matt Freedman, a director of the Utility Reform Network. 
     ``Edison is not being straight with the public or the 
     Legislature about the extent of its debt.''
       Freedman also said that the audit shows that in recent 
     months Edison has been selling some of its own generating 
     power back to itself at high prices on the open market, then 
     claiming both profit and debt.
       ``It's like a laundering scheme,'' he said.
       Michael Shames of the Utility Consumers Action Network said 
     the audit could significantly influence the fast-moving 
     legislative debate on the state's energy crisis. He said that 
     while it was not illegal for the utilities to transfer money 
     to their parent companies, ``the question is, `Was it 
     prudent?' ''
       But Paul Hefner, a spokesman for Assembly Speaker Robert 
     Hertzberg (D), said there are no substantive new revelations 
     in the Edison audit and that the Legislature is proceeding 
     with a plan outlined last Friday that would cover much of the 
     utilities' debts in exchange for the state receiving warrants 
     to buy stock in the companies.
       ``I don't know that it changes the landscape at all,'' 
     Hefner said, referring to the audits. ``All along we've been 
     saying we're not going to do this and get nothing back. We're 
     driving as hard a bargain as we can.''

  Mrs. BOXER. Another private utility did the same thing to the tune of 
$5 billion. That is $9 billion these private utilities sent out.
  In my opinion, this amendment sends a strong message to the utilities 
in my State: It is not right to ask for help and walk away from your 
obligations. This amendment helps 12 power companies in California, 
municipal companies. In the end, it will help consumers

[[Page 3628]]

because the next time there is a crisis, power companies will not fear 
they will be left high and dry and they will be willing to assist us in 
the future.
  This amendment was not offered in anger; it was offered in fairness. 
I support it.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. There are 37 seconds remaining.
  Mr. WYDEN. To finish the debate, I yield to Senator Smith, my 
colleague.
  Mr. SMITH of Oregon. Mr. President, I appreciate the chance to say a 
few closing words on this debate, which has been a good one.
  All the neighbors of California are asking--at least those affected 
by the Bonneville Power Administration--is that they be paid. I believe 
California wants to pay. Ultimately, they have to work through their 
law that makes it difficult to pay. We want them to do that. We need 
them to do that because people in the Northwest already are paying 
higher rates because of this California law. We should not have to pay 
additional, higher rates.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, how much of my time remains?
  The PRESIDING OFFICER. One minute 4 seconds.
  Mrs. FEINSTEIN. Mr. President, I rise to thank Senators Murkowski and 
Bingaman for opposing this amendment and also to join them in saying 
that I believe this is a very dangerous amendment. It creates two 
classes of creditors. The first is a protected class; namely, certain 
Federal entities.
  Yesterday, I introduced into the Record a series of letters from 
virtually all of the electricity and natural gas providers. Those 
letters had one common theme, and that theme was that to do this is not 
only unprecedented, but it will probably force an involuntary 
bankruptcy because once the dam is broken, other creditors will then 
seek to protect their rights under bankruptcy law. Hence, it is a very 
dangerous amendment.
  The State of California is currently seeking to purchase the 
transmission lines of the utilities to be able to inject $7 billion and 
solve the problem. I urge a ``no'' vote on this amendment.
  Is all time expired?
  The PRESIDING OFFICER. Yes, it is.
  Mrs. FEINSTEIN. Mr. President, I move to table the Wyden amendment 
and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion to table Amendment No. 78.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FITZGERALD (when his name was called). Present.
  Mr. REID. I announce that the Senator from New Jersey (Mr. Corzine) 
and the Senator from New Jersey (Mr. Torricelli) are necessarily 
absent.
  The PRESIDING OFFICER (Mr. Bunning). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 67, nays 30, as follows:

                      [Rollcall Vote No. 26 Leg.]

                                YEAS--67

     Akaka
     Allard
     Allen
     Bayh
     Bingaman
     Bond
     Breaux
     Brownback
     Bunning
     Carper
     Chafee
     Clinton
     Cochran
     Collins
     Conrad
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kerry
     Kohl
     Landrieu
     Leahy
     Lieberman
     Lincoln
     Lott
     Lugar
     McConnell
     Mikulski
     Murkowski
     Nelson (NE)
     Nickles
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--30

     Baucus
     Bennett
     Biden
     Boxer
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Cleland
     Craig
     Crapo
     Dayton
     Durbin
     Harkin
     Hollings
     Inouye
     Kennedy
     Kyl
     Levin
     McCain
     Miller
     Murray
     Nelson (FL)
     Roberts
     Santorum
     Smith (OR)
     Stabenow
     Wellstone
     Wyden

                        ANSWERED ``PRESENT''--1

       
     Fitzgerald
       

                             NOT VOTING--2

     Corzine
     Torricelli
       
  The motion was agreed to.
  Mr. SESSIONS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burns). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, Senator Breaux, Senator Enzi, and myself 
had an interesting and, I think, enlightening discussion on the issue 
of ergonomics, as well as Senator Specter.
  I ask unanimous consent there now be a period of about 30 minutes for 
a discussion of this issue, the time to be equally divided between 
Senators Breaux and Enzi for debate only.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Reserving the right to object, Mr. President, does the 
Senator have an idea how long this will take?
  Mr. NICKLES. About 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Louisiana is recognized.
  Mr. BREAUX. Mr. President, I thank my colleagues for the discussion 
with me--Senator Enzi, Senator Landrieu, and Senator Blanche Lincoln--
on the issue of an amendment I have at the desk, which we will not vote 
on right now, but I hope to perhaps reach an agreement on at a later 
hour.
  The amendment addresses the question of the so-called ergonomics 
rule, which this body addressed last week, through the use of a 
procedure which is not normally utilized, when the Senate of the United 
States said that a rule that had been promulgated by the Department of 
Labor would not be allowed to go into effect addressing injuries in the 
workplace that workers receive which cause them to lose very valuable 
hours of service, both to themselves and their employers. Those 
workplace injuries clearly cause a loss to companies and small 
businesses, as well as the personal loss that is caused to the 
individual.
  There was a great deal of concern raised by myself and by some 
Republican colleagues to the rule because in many cases it would have 
an adverse effect on the States' workers compensation laws. And they 
had concerns about the potential that the rule would, in fact, allow 
injuries to be covered that were not directly related to having been 
brought about by conditions in the workplace.
  The third thing I heard a great deal of was that employers really 
didn't have enough information to know whether they were covered or 
what were their responsibilities. Therefore, in order to try to answer 
those questions and still address the concern that I think most people 
have about injuries in the workplace, which are estimated to cost 
between $45 million and $54 million annually, I have offered an 
amendment that I think is one this body should embrace in a bipartisan 
fashion.
  No. 1, we say the Secretary of Labor, within the next 2 years, shall 
promulgate regulations dealing with these injuries in the workplace. In 
addition to giving her the mandate from the Congress to promulgate 
these regulations, we also go further and say that, in trying to 
address the concerns we heard on the floor of the Senate, for instance, 
in issuing this new rule, the Secretary of Labor shall ensure that 
nothing in the rule expands the application of the State workers comp 
law. We had a lot of concern about whether it would be altered or 
expanded. This amendment clearly says that nothing would be in the bill 
and the rule could expand the application of the State workers 
compensation law. It also says that nothing in this amendment or in the 
rule could affect the OSHA laws. They are in place as they are, and if 
somebody wants to change them, that would be for a later date.

[[Page 3629]]

  The other thing I think was very important, which we heard from so 
many of our people, was that the injuries they are talking about under 
the rule shall be work-related disorders that occur within the 
workplace. Many people were concerned that, well, someone could injure 
their back on a Saturday at home during a recreational activity and 
come to work on Monday and blame it on conditions in the workplace.
  The amendment I have offered, along with my bipartisan cosponsors, 
says the standard shall not apply to nonwork-related disorders that 
occur outside the workplace or nonwork-related disorders that are 
aggravated by the workplace.
  So every objection I heard, particularly from my colleagues on this 
side of the aisle, I think has been taken care of in the amendment we 
have offered. It is my intent that if this rule would be promulgated, 
nothing in this amendment would prohibit Congress from using the same 
Congressional Review Act procedures if they did not like the rule. If 
some think it is too much or too little, they can still use the 
Congressional Review Act, as we did last week to knock down the rule 
with which a majority of the Members of the Congress did not agree.
  I think our amendment addresses every concern. The question is, Do 
you want to do something about the workplace that is fair, reasonable, 
responsible; that businesses can embrace, working people can embrace, 
and say, all right, this is a problem, let's recognize it and do 
something about it? Just to say, well, the Secretary may not do that, 
really doesn't give any guidance to what the Congress says. We should 
make the rules.
  My amendment takes care of every objection I heard, I think, and I 
think there is a proper balance between employers and business, as well 
as the working men and women of this country. I do not, for the life of 
me, understand why this would not be something that should not be 
unanimously agreed to by Republicans as well as my Democrat colleagues.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. BREAUX. I guess we are equally divided under the agreement.
  The PRESIDING OFFICER. Correct.
  Mr. BREAUX. I will yield 15 minutes to my colleague. I reserve 15 
minutes.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I thank Senator Breaux for his efforts on 
ergonomics. These injuries are happening in this country and we need to 
do something about them. I appreciated the conciseness with which he 
made a statement during the last debate we had on ergonomics.
  I wish his bill more closely followed the statement he made. I 
suspect there is leeway in there to do exactly what he said when he 
made that statement, and I think this comes fairly close. I hope we 
will be able to work together to make some changes in what is in his 
amendment. Most of all, what I hope is that the Senators who are 
interested in this issue will work with me. I am the subcommittee 
chairman for Employment, Safety and Training. It is all of the labor 
issues. It includes the ergonomics issue. I had planned to begin a 
process of holding some hearings. I already have my staff members 
looking at past efforts--and there are supposed to be 10 or 12 years of 
efforts on ergonomics already--to see what was done and where it went 
wrong before. Also, I am scheduling some meetings with Secretary Chao. 
I am pleased to have other people involved in those meetings with me. 
We need to come up with a mechanism that will actually prevent 
injuries. I am not interested in the mechanism that just does paperwork 
or just puts costs on business. I know the people who submitted this 
amendment--particularly Senator Breaux--are not interested in having 
that either.
  I have been trying to work on this compliance issue through a number 
of mechanisms since I got here. One of them is something called the 
SAFE Act. It was encouragement for businesses--particularly small 
businesses--to hire professional consultants to come in and take a look 
at their business. I would suggest using OSHA people, but they are 
already overworked doing OSHA inspections. In State plan States, which 
are the States where there are the least OSHA accidents, there are more 
inspections but there is more consultation that is done. So I have put 
a huge emphasis on consultation with businesses.
  The way the consultation works in States is the OSHA team, or 
inspector, comes in and looks at the place and says this is wrong, this 
is wrong, and this is wrong. If they say that, you better fix it. And 
if you fix it, then you are not subject to the penalties.
  That is an incentive process. That is what I envision for compliance 
with an ergonomics rule as well: Somebody helping the small 
businessman. I am not worried about the big businesspeople because they 
have the VPP program, the specialists, and they have the professionals 
on staff. It is the little guy, and that is what we talked about when 
we did the ergonomics CRA last week. They cannot digest all the 
information. They do not even know what is absolutely essential and 
what is suggested.
  If somebody can tell them what to do--they know the value of their 
employees; they want to protect their employees. In most instances, 
they do not know how to protect their employees. If there is more of 
the consultation aspect to it and the incentive to do it, if the folks 
come in and tell you to do those things and you do those things, you 
will not be fined. I am so pleased there is a compliance piece to this.
  Something I hope will be incorporated in the future, perhaps even in 
this rule, is the ability of the managers to talk to the employee or 
employees directly. The way the current national labor standards read 
is that management cannot talk to the employees unless they are in a 
union. Of course, if they are in a union, then the management can talk 
to the representative of the employees.
  We are missing this step of being able to say to an employee: How are 
you feeling? How is your workstation? Are there any improvements we can 
make? These are folks who are doing that same job in all of the 
examples we use, the same job day in and day out. They are the experts 
on it. They know the things that can be done to make their work easier.
  Those are the things that need to be incorporated in ergonomics: very 
specific suggestions for a particular kind of a--it is not even for a 
particular kind of business because within an industry, several 
different businesses will do the same operation differently. If they 
conferred more, which I am not sure they are allowed to do either, then 
they would probably wind up with a standard method of doing things, and 
they would be able to compare the ergonomics process, as well as any 
other safety issue and come to an agreement on how those safety issues 
can be reached.
  Another thing that needs to be done while we are at it is changing 
the rulemaking process. One of the things that fascinated me in my 
comments and visits with Assistant Secretary Jeffress, who is in charge 
of OSHA, was that in the 28 years OSHA has been in effect, there has 
not been one rule revised even though there have been huge changes in 
the workplace.
  What that tells me is that our rulemaking process is so cumbersome, 
so subject to court action that we cannot take a look at things that 
were done 28 years ago even though the technologies have changed 
tremendously.
  There are some things that need to be done. I wish we had been 
consulted a bit more on some of the specific wording. I know there is 
an effort to work together on some of these things, so we may be able 
to come up with an agreement in a short while so this amendment can be 
accepted.
  I thank the Senator from Louisiana for making this effort, for 
getting us started on it. I hope he will work with me on the process. I 
yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. BREAUX. Mr. President, I will use whatever time I need, and I 
will then yield to the Senator from Arkansas.

[[Page 3630]]

  Some of the points the Senator made are valid. However, our amendment 
addresses those concerns, particularly the concern about an employer 
knowing exactly what his or her requirements are because we say that 
the rule shall set forth in clear terms the circumstances under which 
an employer is required to take action, the measures required of an 
employer under the standard, and the compliance obligation of an 
employer under the standard.
  We give the employers clear direction. We let them know when they are 
in compliance, and we clearly spell out what their obligations are and 
also the measures that are required.
  Under the requirements of our legislation, the rule has to come back 
and clarify to an employer exactly what is being required.
  I think the amendment is a good one; ergo, I think it should be 
adopted.
  I yield whatever time she consumes to the Senator from Arkansas, Mrs. 
Lincoln.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mrs. LINCOLN. I thank the Chair.
  Mr. President, with all of this talk we have heard recently about 
bipartisanship and wanting to do what is right by everyone, not leaving 
anyone behind, I am certainly glad we have at least a few minutes to 
have a debate on an alternative to last week's issue of workplace 
safety.
  I have been delighted to work with my colleagues, Senator Breaux and 
Senator Landrieu--and Senator Specter has worked with us--in developing 
an amendment that requires the Department of Labor to draft a new 
ergonomics standard that addresses the ergonomic hazards in the 
workplace without penalizing business owners who act in good faith.
  As I stated in my remarks last week, I voted to repeal the ergonomics 
standard last year because, in my opinion, it was unreasonable in terms 
of the requirements it imposed on businesses and how unworkable it was 
with regard to the vagueness of the standards with which employers were 
expected to comply.
  However, I do not believe our action to overturn the current 
ergonomics rule should in any way be interpreted as congressional 
intention to end the debate on this issue of workplace safety. That is 
what we did last week. That certainly was not my intention. In fact, I 
believe the Federal Government does have a responsibility to set safety 
standards and to protect workers against hazards that exist in their 
place of employment.
  Certainly, the new Secretary of Labor and the new administration, 
through working with our colleagues in hearings and other ways, I think 
would relish the idea of being able to come up with a standard that is 
workable, something that can give us workplace safety but encourage 
businesses to be involved. That is certainly possible.
  The ergonomics standard or the rule we saw last year was a no-win for 
anyone because we were not going to see, because of the court cases 
that were already involved with that rule, workers protected, nor were 
we able to see a reasonable compliance that industries could meet. It 
was not a win for anyone.
  If we fail to come back with anything else, and if we fail to 
encourage the Department of Labor to come up with something that is 
reasonable and workable, then we, once again, have failed everyone--
businesses and employees--because we can do better at providing better 
workplace safety, and we can also provide businesses a better way of 
complying with it. Everyone wins with that--workers and businesses.
  The amendment we are offering gives the Department of Labor 2 years 
to craft a new Federal ergonomics standard. In addition, our amendment 
directs the Department to address serious problems that exist in the 
previous rule.
  Specifically, we make clear that the new standards should not apply 
to injuries that occur outside the workplace or, as Senator Breaux 
mentioned, injuries that are aggravated by activities that employees 
perform as a part of their job.
  Furthermore, this amendment requires the Secretary of Labor to set 
forth in clear terms what businesses are required to do to comply with 
this new standard before it takes effect.
  Finally, we prohibit the new rule from expanding the application of 
State workers compensation laws.
  In short, I believe our amendment is a reasonable, commonsense 
approach that will allow the Department of Labor to address a serious 
health and safety issue in the workplace in a manner that is fair to 
both employees and employers. After all, in the debate last week, is 
that not what we said we were striving for?
  As a founding member of the Senate's new Democrats coalition who is 
inclined to seek compromise whenever possible, I wish we had been given 
the opportunity to draft and offer a compromise proposal on ergonomics 
last week when it was most appropriate. Unfortunately, we did not have 
that opportunity.
  Now that the consideration of the resolution of disapproval has been 
concluded, I am certainly hopeful my colleagues will want to work in a 
bipartisan way and permit a reasonable period of debate and vote on 
this amendment and come up with something that is going to be workable 
for absolutely everybody, certainly employees as well as employers and 
businesses, all of which can be brought to the table in the next 2 
years, and we can craft something that is going to be workable and meet 
the objectives we have all expressed.
  I thank the Senator from Louisiana for his hard work and leadership 
in this effort, and I look forward to working with all of our 
colleagues in the next several days to come up with something we can 
adopt and prove to the people of this Nation and businesses of this 
Nation that we are truly concerned about workplace safety and about 
being sensible.
  I yield back to the Senator from Louisiana the remainder of his time.
  Mr. BREAUX. I thank the Senator from Arkansas for her contribution. 
She comes from a State deeply involved in these issues. I know she 
speaks with a ``mine'' of experience in addressing these concerns. I 
thank her for her contribution, as well as my colleague from Louisiana, 
Senator Landrieu.
  I take this time to say to our colleagues our staffs are currently 
talking with each other across party lines to see whether there might 
be some agreement we can reach on an authorization bill as an amendment 
either to this legislation that is currently pending before the Senate 
or to some other legislative package that is going to come before the 
Senate. I will continue to work with our colleagues and our staffs 
trying to find a way to reach an agreement on a pending amendment.
  I yield the floor.
  Mr. ENZI. I thank the Senator from Arkansas and the Senator from 
Louisiana for their consideration and their work in a bipartisan way to 
see we get something done and to extend that opportunity to go to 
meetings with Secretary Chao and also to participate in hearings on my 
subcommittee. We want to make some progress on this issue.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I know Senator Enzi is not managing the 
bill--he is on the floor for other reasons--but I wonder if we could 
have some idea in the near future as to what we are going to do for the 
rest of the day. Senator Wellstone, by virtue of the unanimous consent 
agreement, is going to come in at 1:15. We have Senator Durbin who has 
offered what is, in effect, a substitute. That was laid down last 
night. He is willing to start debating that amendment.
  We have others we could get over here to offer amendments. We want 
the record to be clear that we are doing everything we can. Senator 
Leahy has instructed everyone to move this bill

[[Page 3631]]

along as quickly as possible. I certainly agree with that. I see 
Senator Grassley, too. Maybe we could have some information as to 
whether we could set aside the amendment that is pending and move on to 
something else?
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, it is my understanding the bill managers are 
looking at what is left on the bankruptcy bill at this moment. Senator 
Wellstone's bill will be the amendment pending. He is planning on being 
here at 1:15.
  I had heard some concern that most of the actual bankruptcy issues 
had been covered and we were just doing some peripheral ones. There is 
some concern on our side as to what the process is going to be, too. It 
is my understanding they are discussing that now. The chairman probably 
can give us some information.
  Mr. GRASSLEY. If the Senator from Nevada will yield, I will try to 
respond to his inquiry.
  No. 1, since so many people are busy during the lunch hour with the 
steering committees and the type meeting that both parties have, we 
might not be so fortunate as to get something up before 1:15 when the 
Wellstone amendment is up.
  The second is, the Senator asked if we could do another amendment. 
What amendment would the Senator suggest we move to, then?
  Mr. REID. There is one amendment about which I have received a number 
of calls today. Mr. Durbin, the Senator from Illinois, wants to offer 
his substitute. In effect, that is what it is. The Senator from Iowa is 
familiar with that. It is at the desk.
  It is at the desk. He would be willing to have a relatively short 
time agreement for the opportunity to express his views on that.
  Mr. GRASSLEY. As the main sponsor of this legislation, I should be 
able to tell you we could go to the Durbin amendment. But we have some 
reservation at this time on moving forward on the Durbin amendment, 
particularly because it would take a good deal of time and would 
interfere with the Wellstone amendment. If there is some other 
amendment the Senator from Nevada would like to take up, he might 
suggest something, and we would quickly consider that.
  Mr. REID. We have one that Senator Leahy has been trying to get up, 
amendment No. 19, a set-aside amendment.
  Mr. GRASSLEY. That is the same amendment, if we went back to regular 
order. If we called regular order, we would end up on that amendment.
  Mr. REID. It is my understanding that No. 20 is regular order. This 
one isn't before the Senate.
  Mr. GRASSLEY. This is an amendment that has not been before the 
Senate.
  Mr. REID. That is my understanding. It has been filed but it has not 
been debated.
  Mr. GRASSLEY. I suggest we put in a quorum call, and then we will 
take a look at it.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask that the pending amendment be set 
aside temporarily and amendment No. 19 on behalf of Senator Leahy be 
offered.
  It is my understanding that the Senator from Iowa will also want a 
unanimous consent agreement to indicate there would be no second-degree 
amendments.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Amendment No. 19

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

       The Senator from Nevada [Mr. Reid], for Mr. Leahy, proposes 
     an amendment numbered 19.

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

   (Purpose: To correct the treatment of certain spousal income for 
                       purposes of means testing)

       On page 17, line 8, strike ``and the debtor's spouse 
     combined'' and insert ``, or in a joint case, the debtor and 
     the debtor's spouse''.

  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________