Don Nickles

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent for a minute for Senator Burns and a minute for Senator Boxer.

Mr. NICKLES

Mr. NICKLES. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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.

Mr. NICKLES. About 30 minutes.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe) is necessarily absent. I further announce that if present and voting, the Senator from Oklahoma (Mr. Inhofe) would vote ``yea.''

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Idaho (Mr. Crapo), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Virginia (Mr. Warner) are necessarily absent.

Mr. NICKLES

Mr. NICKLES. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 13

Mr. NICKLES

Mr. NICKLES. Mr. President, today the Senate will be in a period for morning business until 11:30 a.m. Following morning business, the Senate will resume consideration of the Bankruptcy Reform Act. Amendments to the bill will be offered during today's session. Those Members with amendments should work with the bill managers in an effort to finish the bill in a timely manner. Senators will be notified as votes are scheduled. I thank my colleagues for their cooperation.

Mr. NICKLES. I appreciate the comments of my colleague and friend. We want to be cooperative with Members on both sides. We also want to finish the bankruptcy bill. I will work with the Senator from Nevada to see if we can coordinate schedules and amendments and bring the bill to a close in the not too distant future and also facilitate the trip to Colombia which is an important trip as well. Mr. President, I suggest the absence of a quorum.

Mr. NICKLES

Mr. NICKLES. Mr. President, I move to reconsider the vote.

Mr. NICKLES. How much time remains on both sides?

Mr. NICKLES. Mr. President, I compliment and congratulate my colleague, Senator Enzi from Wyoming, for his leadership on this issue. He has been shepherding the floor, along with Senator Hutchinson from Arkansas, and they have done a great job. I think there has been illuminating debate. I also wish to congratulate my friend and colleague, Senator Kennedy, on this issue. We do disagree on a couple of issues, but he is still my friend. I respect him. I feel very strongly that we as Senators should protect the legislative functions of Congress and the constitutional division of powers between the legislative branch and the executive branch. Congress, according to the Constitution, is supposed to write the laws. In fact, article I of the Constitution says that Congress shall write all laws. The tenth amendment of the Constitution says all other laws are for the States and for the people. Nowhere in the Constitution does it say the executive branch, the branch that was charged with enforcing laws, is to legislate. I tell my colleagues and I urge my colleagues who are maybe predisposed to vote no on this resolution of disapproval to consider this very carefully. In a free democracy, a democracy where we have elected representatives to represent our constituents, we do not have and we cannot allow unelected bureaucrats to pass laws. The law of the land, the bill that created OSHA, the Occupational Safety and Health Act of 1970, is still the current law of the land and it states--this is the conference report: The bill does not affect any Federal or state workmen's compensation laws, or the rights, duties or liabilities of employers and employees under them. That is still the law of the land. Very clearly in the statute it says we are not passing workers comp. It says we are not creating a Federal workers compensation system. It says we are not superseding or changing the State workers comp laws. I refer my colleagues to this regulation. It states: You must provide that the employee with work restriction protection which maintains the employee's employment rights and benefits in 100 percent of his or her earnings-- That is compensation. It goes on-- You must provide [talking about employers] that the employee with work restriction protection which maintains the employee's employment rights and benefits in at least 90 percent of his or her earnings. That is compensation. That is workers compensation for not working. That has only been done at the State level. Now we have a Federal workers comp law. That is not consistent with the existing act. In other words, the Clinton administration's department of OSHA is breaking the law. They are exceeding the law. They do not have the constitutional authority to enact a Federal workers compensation system. I heard one of my colleagues say that is not a Federal workers compensation system. The heck it is not. You are paying people not to work. You are paying people for injuries. That is workers compensation. That is covered by State laws. That is covered, for every single State in the Nation has worker compensation laws. This one, it just so happens, has compensation that has higher levels than any State in the Nation. Those are the facts. How in the world can we as a legislative body delegate that to some unelected bureaucrat in the Department of Labor? We did not. We have never done it. As a matter of fact, we prohibited it. But the Clinton administration tried to do it anyway. They tried to jam it through on January 16. I heard some people say you are using this Congressional Review Act as, I believe Senator Clinton said, a legislative time bomb to undo this legislation that people have been working on for 10 years. The CRA was written and was supported, I might mention, by every person in this body because it passed by unanimous consent, so that Congress would have a chance to review these laws. If there is an economic impact of $100 billion, Congress had better have an input so it can prevent it, stop it, or overturn it. Because we are elected officials, we should be held accountable. Who is the legislator in OSHA who wrote this regulation? Who is going to hold them accountable? They are gone. As a matter of fact, the Clinton administration showed contempt of Congress and contempt of the new administration by trying to jam through this enormously complex, burdensome, and expensive regulation with 4 days left in their administration. My colleague from Massachusetts said this regulation is only eight pages. I count the pages a little differently. This little part of the regulation is 608 pages, which is interesting. The regulation that was promulgated by the Clinton administration in 1999 was 310 pages. Look at what happened in that year. Yes, they had a few hearings; 1 year later, 608 pages. It about doubled. Guess what. It is a lot more complex than this. My colleague said it is only eight pages. Let's look a little closer at some of the details and some of these pages. I guess this goes beyond eight pages. It talks about job hazard analysis tools. We have tools for the job strain index and one for revising the NIOSH lifting equation. That is referred to. That wasn't part of the eight pages. If you look at it in the regulation, you need to pull that up. We pulled it up. We found the NIOSH regulation. There are 164 pages. They came up with standards for lifting. As a matter of fact, they have lifting equations. If you lift anything, I guess you go to this NIOSH standard--164 pages. You get lots of information on how much you can lift. This is all part of the standard--these little equations here. I believe some people said you can read these regulations in a matter of 20 minutes. I will insert this one page in the Record, and I defy anybody to tell me what it means: The multitask lifting analysis consists of the following three steps: Compute the frequency independent RWL, FIRWL, and the frequency independent lifting index. That is FILI values for each task using the default PM of 1.0. Compute the single task RWL. That is the STRWL, and the single task lifting index, STLI, for each task. Note in this example that interpolation was used to compute the FM value for each task because the lifting frequency rate was not a whole number. Remember the task in order of decreasing physical stress as determined from the STLI value starting the task with the largest STLI. I could go on and on and on. This is almost funny. But it is not funny because we don't change it, and if we don't stop this regulation, and stop it tonight, everybody in America is going to be trying to figure out what STLI means, and what all of these other little acronyms stand for, and so on. And they are going to say: You mean to tell me we can't move 20 pounds of force? We can't lift items more than 75 pounds? You mean to tell me that every single grocery store in America is going to be in gross violation of these standards? You mean that every single person involved in bottling or every single person involved in moving is going to be in gross violation of these standards and we will never, ever be able to comply with these ridiculous standards that were jammed through in the last 4 days of the Clinton administration? We are going to make them violators of the law and fine them or we are just going to say hire lots more people. Is that the purpose of it? Let's look at the next standard. Here is one dealing with vibration. I think this was referred to earlier. This deals with vibration. I ran a manufacturing plant. I will tell you that any manufacturing plant in America has a lot of vibration, sanding, grinding, and people doing a lot of different types of motion that require vibration. Again, this was not included in Senator Kennedy's pages. I think there are only 22 pages, but it is pretty complex. I look at the formula for complying with this. I used to do very well in math, I might mention, in college. But, for the life of me, it is going to take somebody a lot smarter than I. Maybe colleagues who support this regulation can figure out what this equation means where T is equal to whatever that equation says. We are going to tell Americans who have companies that have vibration, grinding, and motion that they have to comply with this ridiculous formula--that thousands of businesses are going to have to comply with this? That is in this regulation that somebody said was eight pages. It is in this 800-and-some pages that are in the regulations. Some people said: Where do you get 800 pages? The regulations promulgated 608 pages. But they refer to several studies including studies like this that add up to another 227 pages, at least. It is actually more than that, because one of the studies we can't even get a copy of. I have excellent staff, but no one can get a copy of it. We don't know how many pages are in one of those referred to in the job hazardous analysis tool to which they referred. They give Web sites so people can download so they can get this kind of equation and basically say comply, because the big hand of the Federal Government is going to come in and hit you hard if you do not. As a matter of fact, they will tell you that you have to change your business, maybe relocate your business, or redesign your business. Somebody from OSHA is doing all of this. Somebody who is unelected can put that kind of mandate on every business in America, presumably because they know better. They know better than the State in workers comp? Again, it is in violation of the law because some bureaucrat was able to come up with that? I just totally disagree. I heard a couple of Members comment saying: Wait a minute, the people fighting for this are fighting for special interests--the Chamber of Commerce, the National Association of Manufacturers, or NFIB. Hogwash. The only thing that was special interest was the Clinton administration trying to jam this regulation through in the last 4 days of the Clinton administration. This is the special interest. This regulation is the special interest that the Clinton administration was trying to jam through. Congress, thank goodness, passed a law that said we can review in an expedited form regulations that cost a whole lot of money. That is the reason we are using the CRA. Some people said: If you use that, you can't even talk about this regulation and ergonomics is dead forever. That is not what the Secretary of Labor said. The Secretary of Labor said: I intend to pursue a comprehensive approach to ergonomics, which may include new rulemaking that addresses the concerns levied against the current standard. This approach will provide employers with achievable measures that protect their employees before injuries occur. Repetitive stress injuries in the workplace are important problems. I recognize this critical challenge and want you to understand that safety and health in our Nation's workforce will always be a priority in my tenure as Secretary. In other words, she is going to work to reduce work injuries. I will work with her, and I think every Member of the body should. What we shouldn't do is promulgate a regulation and say: Here it is. You are stuck with it. It may cost over $100 billion a year. We don't care how much it costs. That is ridiculous. Let's work with the new Secretary of Labor. Maybe we don't need to repromulgate a new regulation. Maybe we can do a lot of things that will reduce workplace injuries without saying to States that we don't care what your worker comp laws are, we are going to come up with a Federal workers comp. If this is so good, if we are successful in repealing this, which I hope we will tonight and I hope soon in the House, if my colleagues want this to become the law of the land, I encourage them to introduce it as legislation. I am only assistant majority leader, but I will encourage my colleagues to have hearings on this. If they really think we need a Federal worker compensation law, let's have a hearing on it. Let's discuss it. Is that what the Federal Government should do? At least I will be comfortable that it is going through the legislative process. My biggest objection to this is that the Clinton administration could not get something through by legislation, so they did it by regulation. I find that in contempt of Congress; I find it in contempt of the Constitution, in violation of the Constitution, in violation of the OSHA law that was written in 1970, as I plainly showed just a moment ago. Some people are born to regulate. The author of this legislation states exactly that. Martha Kent, who was the former Director of the OSHA Safety Standards Program, in May of 2000, in an interview that she gave with the American Industrial Hygiene Association, said this: I absolutely love it. I was born to regulate. I don't know why, but that's very true. So long as I'm regulating, I'm happy. . . . I think that is really where the thrill comes from. And it is a thrill; it's a high. She may love to regulate. She also got into the legislative business. We are in the legislative business. We should protect our legislative rights. Her legislation may be well intended, but it is not very good. It is enormously expensive. It needs to be stopped. And then let's work together to see if we can do some things in a bipartisan fashion through the legislative process, through the normal process--not jamming a reg through in the last couple days of a lame duck administration--and come up with some things that will help American workers. This bill does not help American workers. This bill would result in a lot of businesses going bankrupt, a lot of people losing their businesses, unemploying people. That is not healthy. That is not good for the American workforce and certainly not good for technology. So I urge my colleagues to vote in favor of the resolution. I again notify my colleagues there will be a vote at 8:15 tonight. Mr. President, I yield the floor. Mr. WELLSTONE addressed the Chair.

Mr. NICKLES. The Senator is exactly right. I have great confidence that when she addresses this, whether she uses the rulemaking process or uses other tools in the Secretary's office to address work-related injuries, including ergonomics, it will be substantially different than this. I certainly hope and expect that it wouldn't have a new workers compensation, Federal workers compensation system that would be superior to almost every State's worker comp rules.

Mr. NICKLES. Mr. President, I yield to the Senator from Louisiana 7 minutes, and then I ask unanimous consent to recognize the Senator from Ohio, Mr. Voinovich, for 7 minutes following Senator Breaux's remarks.

Mr. NICKLES. To respond to my colleague, I remember when we put in that language in the Congressional Review Act, we did it specifically because we didn't want to have Congress go to the trouble of overturning a regulation and then have the regulatory agency just basically come back and rewrite the same reg. That is the reason we included that language. I have no doubt, after reading Secretary of Labor Chao's statement, that she is very concerned about ergonomics. She leaves the option open to reissuing another rule. There are different ways of combating ergonomics without coming up with a regulation of 835 pages. If she comes up with a different approach, it will be more cost effective. It will be more effective. I have great confidence that it will be substantially different than the proposal we have before us today.

Mr. NICKLES. Will the Senator yield for a moment?

Mr. NICKLES. I thank my friend and colleague, Senator Breaux, for his analysis, and also for his well-thought-out position. Also, I thank Senator Dorgan for his cooperation in scheduling the speeches. I now yield to the Senator from Ohio as much time as he desires--7 minutes.

Mr. NICKLES

Mr. NICKLES. As manager, I will designate Senator Hutchinson and Senator Enzi to manage on our time. We are happy to alternate back and forth. We are happy to accommodate our colleagues in any way.

Mr. NICKLES. I reserve that. Let's not do that just yet.

Mr. NICKLES. Mr. President, I yield to the Senator from Vermont such time as he may desire.

Mr. NICKLES. Mr. President, I tell my friend from Massachusetts I will be brief because he has a lengthy statement. Let me make a few brief comments. We have 10 hours of debate on the issue under the Congressional Review Act. I expect we will be going back and forth. That is 5 hours on each side. We can have ample debate and discussion. I think that is healthy and very good. One of the reasons Senator Reid and I worked so hard and we passed the Congressional Review Act was that Congress would review regulations that had a negative impact or an impact on the economy in excess of $100 million a year. That makes sense. The idea of, wait a minute, should you have regulatory agencies passing measures that have a profound impact on the economy without holding Congress accountable? Congress should have some say. And sometimes do the regulatory agencies go too far? Sometimes it is their own fault. Sometimes we tell them, to pass some regulation and make the world safer, sounder, cleaner, whatever, without considering the cost or impact. We have done that in Congress. What we did when we passed the Congressional Review Act was say we should review those regulations if they have an economic impact in excess of $100 million and find out how does this make sense. Is it a good deal? Is it a good deal for the economy? Is it a good deal for taxpayers to invest this kind of money? Congress should have a say. The bureaucrats who write the regulations are not elected; we are. That was the purpose of the Congressional Review Act. This is the first time we will utilize that act. I believe in this case the regulation promulgated by the Clinton administration in the Federal Register, dated November 14, 2000, which is over 6,000 pages long, went too far. All legislators who believe in division of power when reviewing this regulation will say the Clinton administration, in its last 4 days, went way too far and exceeded their constitutional authority. The President is President; he is not chief legislator. In this legislation, in this regulation, they went into legislating. They went into devising a Federal system of workers compensation. If Members want to pass a Federal workers compensation law, introduce a bill. It would go, I assume, to the Education and Labor Committee. It would be marked up. Have that process go forward if we are going to pass Federal workers compensation. I have asked a couple of former Governors on the Democrat side if they knew there was Federal workers compensation in the ergonomic standard. Do they know this has a compensation system that is much greater than most State workers compensation laws? Most Senators answered no. This has Federal workers compensation that supersedes State worker compensation laws. If you have any respect for the Constitution, if you have any respect for Members as legislators, you should say no bureaucrat, no official in the Department of Labor--who, incidentally, is probably not there anymore--can make that kind of imposition. That requires Federal legislative action. If someone wants to promulgate that kind of rule, let them introduce this as a statute. Let's debate it. I don't think anyone will debate it. This is not defensible. How in the world can you come up with a Federal workers comp law that supersedes State law that is more generous? It might be proposed, but my guess is it would never pass, nor should it. Yet in this case we have unelected bureaucrats who say: Let's make this the law of the land. Is he super Senator? Is he super legislator? Where did he get this kind of authority? I appeal to my colleagues, Democrat or Republican, review the contents of this legislation. See how extensive and expensive it is. This is probably the most expensive, intrusive regulation ever promulgated, certainly by the Department of Labor--maybe by any department. It deals with the issue of repetitive motion injuries. It is wide open. It could be somebody typing at a desk, somebody standing at a checkout line, somebody stacking groceries, somebody moving things on trucks. It could apply to almost any job in America. It can be enormously expensive. Federal bureaucrats are saying you can do this; you can't do that. You can only move 25 pounds 25 times a day. A grocery store may have to hire 10 times as many people to stock the grocery store. A moving company has to move a lot of things. Employees would say: I have to stop; it is 8:25, but I have already moved 25 things. Time out. Hire more people. Oops, can't do that; we need more people; we need to hire more people. Oops, we have to go out of business because we cannot comply with this rule. There is no way in the world a lot of companies can comply with this rule. We would be putting them out of work or out of compliance, certainly liable for a lot of money and expense for a regulation that goes way too far. My primary argument to my colleagues is nobody in OSHA was elected to legislate. We are elected to legislate. We, Members of Congress, are the legislative branch. Read the Constitution. Article I says Congress shall enact all laws. It does not say: unelected bureaucrats, you write a law, try and get it enacted, try and get it passed by legislation. On January 16, in the last couple of days of the Clinton administration, this was a major gift to organized labor, saying, go ahead and legislate the last couple days. No, we are the legislative body. If we want to legislate in this area, introduce a bill and we will consider it. Let's not have, as in the last couple of days of the Clinton administration, a regulation with costs ranging in excess of $100 billion a year. Let's not let that happen. Let's not supersede State worker compensation laws. It will be interesting to see how former State Governors and State officials vote on this issue. Do they really want the Federal Government to supersede State workers compensation laws? I say the answer is no. I urge all my colleagues, especially colleagues on the Democrat side--my colleagues on the Republican side are perhaps more familiar with this issue--I urge my colleagues on the Democrat side to review this. Do you really want to have a Federal workers compensation law passed by regulation superseding State worker compensation laws? I think not. I certainly hope not. If that is the case, we have delegated so much power to the regulatory agencies we should be ashamed of ourselves. I urge my colleagues to review this statute. That is what the Congressional Review Act is all about. Let's review it. Let's talk about it today. Let's find out how intrusive it is, today. Let's find out if it really is the Federal Government taking the place of Congress in the legislative field. I believe they went way too far. We did introduce a bill 4 or 5 years ago, Senator Reid and myself, and it passed both Houses of Congress overwhelmingly, signed by President Clinton. It is a good law. It was written for such items as this. This is an excellent time to review this regulation and stop it. Does that mean we are for ergonomic injuries? No. Does that mean we shouldn't be taking action in Congress and/or in the Department of Labor to try and minimize ergonomic injuries? No. Let's figure out what can we do that is affordable, that is doable, that doesn't cost jobs, that does improve worker safety, that does reduce or minimize worker injury. Let's work on that together. Let's not accept a regulation crammed through in the last couple of days of the Clinton administration that has economic costs in excess, maybe, of $100 billion. One might ask, where do you get that figure? OSHA says it might cost $4.5 billion. The Clinton administration's Small Business Administration said it could cost up to 15 times that amount. That is up to $60 billion a year. Business groups having to comply with this say it may well be in excess of $100 billion. There is no way to know how much this would cost. It would cost plenty. It would cost jobs. Again, this is something that needs to be reviewed by Congress and needs to be stopped by Congress. I urge my colleagues to support this resolution. For the information of my colleagues, the 10-hour clock is running. My guess is we can have a vote this evening, or we will have a vote tomorrow morning. People should be on alert we may well work into the evening today. Be on guard to expect rollcall votes to occur later this evening or tomorrow morning. I yield the floor.

Mr. NICKLES

Mr. NICKLES. Mr. President, I rise today to congratulate the Oklahoma Sooner softball team, which on September 19, defeated UCLA by a score of 3-1 to win the first women's national championship at the University of Oklahoma. The championship game was played at Amateur Softball Association Hall of Fame Stadium in Oklahoma City, where the Sooner softball team closed out the year with a 66-8 record; 8 of these victories were consecutive wins during the NCAA Tournament. The Sooner women were led to this championship by Patty Gasso, who was recognized as Coach of the Year, along with her assistants, Melyssa Panzer, Tim Walton and Jennifer Jamie, all of whom were recognized as the 2000 Speedline/NFCA Division 1 National Coaching Staff of the Year. Gasso, just finished her sixth season as head of the Sooner softball program. She has guided each of her teams to the NCAA Regional play- offs and won three Big 12 Conference championships. From the entire State, we want to congratulate the University of Oklahoma women's softball team and their first-class coaching staff on this outstanding achievement.

Mr. NICKLES

Mr. NICKLES. I announce that the Senator from Nebraska (Mr. Hagel) and the Senator from Arkansas (Mr. Hutchinson) are necessarily absent.

Mr. NICKLES. Mr. President, I ask for the yeas and nays on the nomination.

Mr. NICKLES. Mr. President, I ask unanimous consent that the Senate immediately proceed to executive session to consider the following nomination reported by the Finance Committee today: John M. Duncan to be Deputy Under Secretary of Treasury. I further ask unanimous consent that the Senate immediately proceed to a vote on the nomination and that, following the vote, the President be immediately notified of the Senate's action and the Senate then return to legislative session.