Mr. WELLSTONE. I thank the Senator.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.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

   AMENDMENT NO. 3938

   Mr. HARKIN. Mr. President, parliamentary inquiry. What is the regular order right now?

   The PRESIDING OFFICER. The pending question is on the Cochran amendment.

   Mr. HARKIN. Thank you.

   Mr. President, let's go back to where we were a few hours ago when I first offered an amendment this morning. That amendment would state clearly that the Department of Agriculture--the Secretary of Agriculture--had the authority to set standards for pathogen reduction in meat and poultry inspection. Again, the amendment was carefully drafted not to set the standard. That should not be our business.

   The reason for the amendment was precipitated by a court case in Texas in May in which a Federal district court judge found that the Department of Agriculture--the Secretary of Agriculture--lacked the statutory authority to set and enforce pathogen reductions in meat and poultry inspection.

   When the Department established its new inspection rules in 1996, the USDA adopted a new food safety system based on hazard analysis, critical control points, and pathogen reduction standards, otherwise known now as HACCP. The system was designed to protect human health by reducing the levels of bacteria contamination in meat and poultry products. It has been in existence now for 4 years.

   What then happened was we had this plant in Texas, Supreme Beef. Three times they were warned by the inspectors that they were not meeting the salmonella reduction standards. Three times they failed. It is not that they weren't warned adequately; they were. On the third time when they failed it, the USDA did the only thing they could do under the authority they have, and that was to withdraw inspection from the plant, and, in effect, by withdrawing inspection from the plant, the plant had to shut down.

   The plant hired attorneys and took the case to district court and got an injunction. They got an injunction against the USDA so that they could keep operating, and they did. Then the judge decided, after a hearing, that the USDA lacked the legislative and statutory authority to both implement the rule and to enforce it. That is why we are here today with this amendment.

   We have worked long and hard on this. This is not something new. During the 1980s and 1990s, both the House and the Senate Agriculture Committees had numerous hearings. The Department of Agriculture, under both Republican and Democratic Presidents, had numerous field hearings and rulemaking procedures. They eventually came up with this new program that blended the old inspection program with new flexibility for industry and new standards for pathogen reduction.

   Why was this necessary? Because we have bigger plants now, faster assembly lines, meat and poultry go through the system faster; and we also found increases, according to the Centers for Disease Control, in a number of foodborne illnesses that we had not seen before in our country. So we wanted to have a system whereby we could assure consumers of the highest level of confidence that once that meat left the slaughterhouse, once it left the processor, it would be as safe as possible.

   Here again are CDC's statistics on foodborne illness. I had this chart this morning. It indicates that there are 76 million illnesses every year because of foodborne pathogens, 325,000 hospitalizations, and 5,000 deaths.

   Now, since we established the rule in 1996, salmonella rates in ground beef have dropped 43 percent for small plants and 23 percent for large plants.

   Since these performance standards were issued in 1996, we have had this big drop in salmonella in ground beef. The standard is working. But now a district court has said USDA lacks the statutory authority to enforce that standard. That was why I offered my amendment this morning. Not to set a standard but only to say USDA has the statutory authority to enforce a standard once it has been set. Adoption of my amendment doesn't mean that a packing plant or a processing plant couldn't still go to court and say: Your rule is arbitrary or it is onerous or it is inapplicable. But we never got to that in the Supreme Beef case. The Court just said they lacked the authority to set the rule.

   So they have thrown overboard years and years of work by the Senate Committee on Agriculture, the House Committee on Agriculture, and the Department of Agriculture under both Republicans and Democrats, and Republican and Democratic Secretaries of Agriculture to make progress in improving food safety.

   This morning, I tried to give statutory authority to the Secretary of Agriculture because without authority to enforce food safety standards, consumers are left exposed in this country. All we are trying to do is give them that authority.

   There was a motion to table the amendment made by the Senator from Mississippi. The motion to table lost on a tie vote. The Senator from Mississippi then put a second-degree amendment on my amendment. We were taking a look at it trying to figure out exactly what it did. It only changes a few words in my amendment. My amendment says at the end, standards ``established by the Secretary''--not our standard but standards set by the Secretary. The amendment by the Senator from Mississippi strikes that ``established by the Secretary'' and says ``promulgated with the advice of the National Advisory Committee on Microbiological Criteria for Foods.'' The key part of his amendment is ``and that are shown to be adulterated.''

   What do those words mean?

   First of all, when they say ``promulgated with the advice of the National Advisory Committee on Microbiological Criteria for Foods,'' the committee was were there when they first came up with the standards. They had input on the standards when they were established in 1996. There may be debate about the extent of consultation, but they were consulted. But the key words of the amendment by the Senator from Mississippi are these: ``that are shown to be adulterated.''

   What does that mean? If the amendment of the Senator from Mississippi is adopted, it will mean that the Department of Agriculture will have to go all the way back and again go through rulemaking to develop new performance standards. We, under the amendment of the Senator from Mississippi, are codifying a standard.

   The Senator from Mississippi, this morning, was saying the amendment that I offered was codifying the standard. I challenged him to show where that was so. It is not so. We do not codify a standard. Yet the amendment of the Senator from Mississippi codifies a standard. What is that standard shown to be? Adulteration; that is the standard.

   What does that mean? It means that USDA now can't just go into a plant and test for pathogen reduction and for salmonella and say they are not meeting the standard on salmonella--that they are failing to reduce pathogens. They now have to show that the meat is adulterated. That is what we have been doing for 70 years. A USDA inspector in a plant has had that authority for all of my lifetime, and for all of the lifetime of the Presiding Officer. They have the authority to go into a plant and withdraw inspection on the basis of adulteration. That is the old standard.

   The Senator from Mississippi would turn the clock back to where we were before 1996. No longer will we be able to say to

   parents: Your kids can have school lunches and not worry about pathogens because we have a pathogen reduction standard that is being enforced. No, we will have a gaping hole there because USDA will now have to show that the food is adulterated. It will have to show that the plant is unsanitary. That is what we tried to get beyond in 1996.

   The key part of the amendment by the Senator from Mississippi is that it codifies the adulteration standard as the essential element of pathogen reduction standards. Yet the Senator

[Page: S7332]  GPO's PDF

   Based on that holding, the judge said the USDA lacked the authority to enforce the existing salmonella standards. This amendment takes the holding in the Supreme Beef case, and makes it the law of the land. It makes the standard ``adulteration''. This amendment would make it the law of the land--not just in Texas but all over the country. Why would we want to do that? If we have to go back to ``promulgate with the advice,'' we will be another 2, 3, or 4 years waiting for pathogen reduction standards.

   What do we tell our consumers in the meantime? There is no standard. We go right back to where we were before. What do we tell the 325,000 Americans hospitalized every year because of foodborne illnesses? What do we tell the parents of kids eating school lunches? This amendment by the Senator from Mississippi would throw all of our meat inspection into a huge morass. It would basically say we are back now where we were 30 years--poke and sniff and have to prove that it is adulterated, or have to prove it is unsanitary.

   What does that mean? Salmonella can enter meat, for example, anywhere. It can enter it in the livestock yards, slaughterhouses, transportation, processing facilities. The point is not to lay blame on anyone. It is not to have the processor say: Our plant is clean, it is sanitary, and if there is salmonella there, we are not to blame, go blame somebody else.

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