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ng? What can we do differently?

   He also said: I have paid a lot of money trying to find an answer. Wherever we can find an answer, we implement it, because it doesn't make any sense for me to lose good workers or to have them suffer the physical pain, which is great, or to have the loss of income which can come from one of

[Page: S5631]  GPO's PDF

   And he said: When we look at what OSHA is telling us, how come, if they are so smart, they can't tell me what specific things I can do? What are the standards? I paid these safety engineers to come in and help me, and they have done everything they can. And OSHA doesn't even come close. They are not even trying. They are just going to pull out that big bullwhip and whack me across the back if there is something I missed and something nobody understands can be done to prevent it.

   Small businesses are such a vital part of the economy that, 5 years ago this month, I introduced what we call the Red Tape Reduction Act, but it is technically known as the Small Business Regulatory Enforcement Fairness Act, or SBREFA. This act was passed by the Senate without a dissenting vote and signed by the President in March of 1996.

   Among other provisions, the Red Tape Reduction Act requires OSHA to convene panels of small businesses to review regulations before they are proposed, at the time when their input can have the most impact.

   OSHA convened their SBREFA panel for the ergonomics regulation in March 1999. It should be no surprise that the small businesses that reviewed this regulation thought it would be a nightmare to comply with. Even those businesses that were generally in favor of doing something about an ergonomics regulation, because of the possible ergonomics injuries and the pain they cause, believed that this proposal was seriously flawed and totally inadequate. In every category of question, the small businesses that reviewed this regulation found serious problems. The report was issued, and it contained many criticisms and complaints about the proposal.

   I will mention a few of them:

   Many [small businesses] felt that OSHA's preliminary cost estimates had underestimated costs.

   Some [small businesses] felt that there may be substantial costs for firms to understand the rule and to determine whether they are covered by the rule, even for firms not required to have a basic program and who have not had an MSD.

   Many [small businesses] expressed doubt over their capability to make either the initial determination about whether they need an ergonomics program or to implement an ergonomics program itself. Many [small businesses] felt that they would need the assistance of consultants to set up an ergonomics program and to assist them in their hazard identification and control activities.

   Almost all of the [small businesses] stated that they would not be able to pass on the costs of an ergonomics program to their customers. The ability to pass through costs may be dependent on the level of domestic and foreign competition.

   Many [small businesses] questioned OSHA's estimate that consultants would not be necessary for any element of the program except in 10% of those cases involving job fixes.

   Many [small businesses] had difficulty understanding OSHA's criteria for determining the work-relatedness of MSDs. Many [small businesses] interpreted OSHA's criteria for determining the work-relatedness of MSDs in such a way that, in practice, the two criteria in addition to a recordable MSD would be unworkable or ignored.

   Some [small businesses] expressed concerns about how certain terms and provisions of the draft rule would be interpreted and enforced by OSHA compliance personnel. Many [small businesses] found it difficult to apply the concepts of feasibility, similar jobs and manual handling, as these are defined in the draft rule.

   Many [small businesses] ..... were concerned about perceived overlaps between State workers' compensation laws and the draft standards' medical removal protection requirements.

   Some [small businesses] suggested that employers' increased concern about MSDs could create additional incentives for employers to discriminate against individuals who may be members of protected classes of employees based on the perceived likelihood that such workers would have more MSDs than other workers.

   Many [small businesses] suggested that non-regulatory guidance would be preferable to a rule.

   Some [small businesses] recommended that OSHA delay the ergonomics rule until the completion of the National Academy of Sciences study that is now underway.

   Mr. President, those are some of the comments the small business panels offered when they looked at this atrocity. You would think with all these concerns and recommendations, OSHA would have made major changes to the proposed rule to take into account, as they were supposed to, the legitimate concerns of small business. Unfortunately, that was not the case. The changes that were made were merely cosmetic, not substantive, and did not address any of these issues raised by the small businesses. In fact, OSHA made so few changes to the draft that when thousands complained about the short comment period after it was published in November, OSHA claimed the fact that it had been released to the panel qualified as giving interested parties sufficient time to help them develop their comments. OSHA ignored the concerns raised by small businesses that gave up their time to participate in this process in the hopes of helping OSHA fashion a reasonable and responsible, better regulation.

   They didn't want to know. They didn't pay attention. This is precisely what the Red Tape Reduction Act was meant to stop, when a Federal agency says: Ready, fire; we will worry about the aim later, and they didn't care about what aim they took. They didn't care about listening to the small businesses. This is a clear-cut example of abuse of the law that is designed to protect small businesses from excessive overreaching and inappropriate Federal regulation.

   Unfortunately, this has been a consistent pattern of OSHA during the development of this regulation. There have been numerous stakeholder meetings and meetings with concerned businesses where OSHA received valuable guidance and suggestions that would have led to a better regulation. OSHA has not been willing to work with anyone from the employer community who would have to deal with this regulatory monstrosity. They have pursued their vision of this rule with a myopic tunnel vision that has shut out any and all recommendations that could make this regulation palatable and workable. The intransigence of OSHA in this rulemaking has been positively staggering. Unfortunately, this regulation threatens not only to stagger but to take the breath out of small businesses in the United States.

   OSHA would have us believe that they must move forward because of the levels of musculoskeletal disorders occurring among employees. In fact, as employers have focused on MSDs, the numbers have been steadily declining, since 1994, by a total of 24 percent. These injuries now make up only 4 percent of all workplace injuries and illnesses. This progress has come about without an ergonomics regulation.

   There is more that needs to be done, yes. We need to continue to work to find ways to reduce these painful and harmful injuries that cost time and pain to employees and deprive employers and small businesses of their ability to turn out product or a service and make a profit. Businesses are willing to consider what makes sense for their employees when there is a solution available.

   I told you the story of one small business owner with whom I talked this week in Missouri. I have held conferences. At the National Women's Small Business Conference I held in Kansas City, they talked about problems facing women small business owners. They have problems with procurement. They have problems with access to capital. They are scared to death of what can happen to their businesses because they don't want to see their employees have MSDs or musculoskeletal disorders,

   injuries from repetitive motions.

   They told me they are working on ways to minimize them and eliminate them, but this regulation gives them no help in moving forward in their efforts, which they intend to continue, which are voluntary, which are effective, unlike this rule. There is no help for them in this regulation, just a bull whip, if something goes wrong.

   This regulation does not provide a solution or any guidance that would be helpful to employers. If OSHA were smart, they would take a look at what is happening and get out of the way, or offer constructive assistance, help figure out ways to prevent these injuries. OSHA is trying not to reinvent the wheel but telling the wheel which way to go without giving it any guidance.

   OSHA will claim they have made changes in response to the concerns of the businesses. They will point to the grandfather clause they included. That is truly a laugh. The only problem is the grandfather clause is worthless.

[Page: S5632]  GPO's PDF

   OSHA's pursuit of this regulation has been so single minded, they have cut corners with the rulemaking process. Under the proposed regulation, an employer's obligation to implement the full ergonomics program is triggered when an employee has an OSHA-recordable MSD injury. OSHA's definition of a recordable MSD injury is one where ``exposure to work caused, contributed to the MSD, or aggravated a pre-existing MSD.'' An employee could actually have an injury caused entirely by nonwork-related factors. This regulation would require the employer to implement a full-blown ergonomics program if the employee's job requires them to do something as simple as standing, which aggravates the injury.

   I have had an ergonomic injury trying to pull up carpet tacks in a new house. I spent a weekend pulling up carpet tacks. I could not move my arm the next day. I went into work. I couldn't use the typewriter, even a pen, but I knew what caused that: pulling up the carpet tacks and ripping up the rug.

   Under this rule, if I had gone in and told the employer, darn, I can't use the typewriter, I can't pick up a pencil today, I can't lift the law books, under this definition, that would have been a recordable MSD injury for my employer.

   That would not have made him happy. What is even more remarkable about this regulation is that the language comes directly from OSHA's 1996 proposal to revise the recordkeeping standard which has not yet been finalized. OSHA is actually trying to finalize their proposed recordkeeping standard by inserting that language in the ergonomics proposal. That is an outrage and a clear violation of the principles of fairness and disclosure that underlie the rulemaking process that must be and should be subject to challenge under SBREFA and the appropriate procedures and actions.

   The fact that OSHA has taken liberties with the rulemaking process is hardly new. Most of us remember in January when OSHA tried to impose on employers the obligation to check the homes of employees who telecommute for safety hazards. OSHA was attempting to do this through a letter of interpretation in response to a legitimate inquiry from an employer. The outcry over this move was so loud and so bipartisan that the Secretary of Labor herself had to withdraw that crazy idea the next day.

   One of the reasons OSHA's attempts blew up in their face so badly was because of this ergonomics regulation. Employers immediately realized that if they were responsible for safety hazards in an employee's home, the ergonomics regulation would require them to intrude into their employees' private lives far too deeply. The regulation already expects employers to be responsible for injuries that are not caused by workplace exposures. If employers were to be responsible for safety issues at home, there would be no limit to what they would have to cover. Employers would never be able to control the exposure to ergonomic risk factors in the home, or distinguish which risks were part of work activities and which risks were part of everyday life like picking up their children.

   This is the most expensive, complicated, expansive, burdensome, and destructive regulation that OSHA has ever proposed. That is no small title to achieve. When you are dealing with OSHA, that is a high stump to jump. But they have done it on this one. Indeed, it could be one of the most burdensome regulations ever proposed by the Federal Government. OSHA is pursuing this regulation with no concern for the impact it would have on employers, or the fact that employees will lose their jobs because of this regulation.

   I call on my colleagues to pass the Enzi-Bond amendment to the Labor-HHS appropriations bill to stop OSHA from finalizing this horribly flawed regulation and force them to reconsider their approach and listen to the scientific evidence and to the people who are making their best efforts, successful in part already today, to reduce ergonomics injuries. To vote against this amendment is to say that an agency can promulgate a regulation without providing an adequate scientific foundation, and they can impose a crushing burden that would drive small businesses out of business and deprive employees of their jobs without considering the impact. That must not be the case.

   I strongly urge and beseech my colleagues to support this amendment and put a stop to a terribly bad idea before OSHA takes the bull whip to small businesses throughout this country.

   CLOTURE MOTION

   Mr. REID. Mr. President, I send a motion to the desk.

   Mr. BOND. Mr. President, I believe I have the floor.

   Mr. REID. It is a cloture motion.

   The PRESIDING OFFICER. The Chair will examine the motion.

   The Senator has a right to send a cloture motion to the desk without having the floor.

   The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.

   The assistant legislative clerk read as follows:

   Cloture Motion

   We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate on the motion to commit H.R. 4577 to the Appropriations Committee with instructions to report back forthwith with the amendment No. 3598:
Jeff Bingaman, Richard Bryan, Daniel Akaka, Joe Biden, Richard Durbin, Bob Graham, Barbara Boxer, Byron Dorgan, Max Cleland, Thomas Daschle, Daniel Inouye, Harry Reid, Paul Wellstone, Joseph Lieberman, Charles Robb, John Rockefeller.

   Mr. REID. I express my appreciation to the Senator.

   The PRESIDING OFFICER. The Senator from Missouri still has the floor.

   Mr. BOND. I thank the Chair and yield the floor.

   The PRESIDING OFFICER. The Senator from Alabama is recognized.

   Mr. SESSIONS. Mr. President, I would like to share some thoughts on the OSHA regulations, these ergonomic regulations.

   First, I want to say that it is a worthy goal to improve safety and health in the workplace, but we ought to look at it carefully and we ought to, as a representative body of the people, look at the democratic aspect of this process and be prepared to examine these regulations before we authorize them to go forward and make sure they meet a scientific standard, and in addition to the extraordinary costs we know they will cause, we need to know that they will actually improve safety and health in the workplace.

   Last year, before OSHA published its proposed ergonomic rules, Senator BOND introduced a bill, which I supported, prohibiting OSHA from publishing its final ergonomics standard until the National Academy of Sciences completes a congressionally mandated peer-review of all the scientific literature concerning ergonomics.

   Unfortunately, a minority number of Senators in this body were able to block its consideration. This year, I am pleased to join with Senator ENZI, who has tenaciously and effectively pointed out the problems with this rule and why it ought to be delayed.

   I just believe that we have to remember that experts have characterized this legislation as ``the costliest government job mandate since the founding of the United States.'' That is a matter that should give us all pause.

   I believe it is important to base whatever regulations we have on sound science, and I don't believe that OSHA has done so. This is an important issue. I am going to talk about three cases in recent years in which OSHA has been found not to have based its regulations

[Page: S5633]  GPO's PDF

   Certainly, it is important to provide a safe environment. Ergonomics, though, are based upon decisions and recommendations made by ergonomists and/or engineers, and not physicians, and their medical theories have proven to be controversial.

   OSHA has attempted to apply ergonomics in three legal cases that they litigated to judgment. In each instance, OSHA suffered major losses. These cases demonstrate the vast uncertainty surrounding these regulations and the science OSHA claims supports their implementation. Even the ``experts'' on ergonomics at OSHA admit there is a great deal of uncertainty in these regulations.

   OSHA has litigated these claims under the ``general duty'' clause of the Occupational Safety and Health Act of 1970. This clause provides a general obligation on every business in America, all employers, to protect workers from ``recognized hazards'' of ``death or serious physical harm'' and functions as a catchall under which OSHA frequently attempts to expand its regulatory power.

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