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ind a way to solve the problem.

   There are interesting ideas that are being discussed by the Senator from Florida, by the Senator from Virginia,

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   and others on the Democratic side, working with Members on the Republican side to come up with something that is creative. Are we not capable of thinking outside of the old style box of just adding another entitlement program to the Medicare program without reforming anything? I suggest we should not make that mistake.

   If we want to put ourselves on the Record on prescription drugs, why not pass a Senate concurrent resolution that says, yes, we all think it is important that prescription drugs today are as important as a hospital bed was in the 1960s, and have a resolution that says that and says we are going to work in a bipartisan fashion to work out an agreement instead of debating an issue. I suggest that what we have is a very narrow opportunity to do that.

   We are not going to be able to reform the whole program in the 30 days left in this session in a Presidential election year. That is not going to happen. But if we do prescription drugs, should we not do some reform attached to it? I think the suggestion and the answer is absolutely yes. Let the Finance Committee do our work, and bring something to the floor that is doable and passable. I suggest it is the right way to proceed.

   The PRESIDING OFFICER. The Senator from Wyoming.

   Mr. ENZI. Mr. President, I yield 2 minutes to the Senator from Tennessee.

   The PRESIDING OFFICER. The Senator from Tennessee.

   Mr. FRIST. Mr. President, I will be very brief. I just want to make a couple of points.

   No. 1, prescription drugs, I believe--I say this not only as a Senator but also as a physician who has personally taken care of thousands and thousands of Medicare patients--that prescription drugs absolutely must be a part of our Medicare program and system if we are going to really provide health care security for our seniors.

   The challenge we have is that, indeed, prescription drugs replace the surgeon's knife--which I have used my entire adult life--and replace the hospital bed, which are important dynamics of health care.

   But the real challenge we have is including that new additional benefit--which, traditionally, over the last several years has been 17 to 18 percent a year--into a rigid, inflexible, outdated Medicare program that we have not been able to reform.

   The challenge before this Congress is to very thoughtfully incorporate prescription drugs coupled with true Medicare reform, to bring it up to date, to modernize it in a way that we can truly guarantee health care security to our seniors.

   This particular amendment has not gone through the committee process. I can tell you that I for one, having spent the last 7 hours working on health care in an adjacent room off this Chamber, have never seen this particular amendment nor had the opportunity to read this particular amendment. So I

   absolutely am going to oppose this particular amendment, which is brought to the floor outside of the committee process and outside of my having had the opportunity even to read the amendment.

   I have been working on prescription drugs with my colleagues in a bipartisan fashion for the last 2 years. I was on the national bipartisan Medicare commission, where we talked about prescription drugs. There are other proposals being debated in the House.

   We have not had the opportunity to see this particular amendment. It has not gone through committee. It should not be introduced tonight, I believe, and hopefully it will be defeated tonight.

   Mr. ROBB. Mr. President, I yield myself 30 seconds, and then I will yield to the Senator from West Virginia.

   I remind my good friends on the other side of the aisle that this bill was read in its entirety earlier today, and it has been available for several days. But it has been debated for a very long period of time, and the concept has been debated at length and discussed at length.

   There was an attempt to put together a prescription drug bill in the House. The Health Insurance Association of America has stated many times that the particular proposal from the House simply will not work.

   At this time, I yield 2 minutes to the distinguished Senator from West Virginia, Mr. ROCKEFELLER.

   The PRESIDING OFFICER. The Senator from West Virginia.

   Mr. ROCKEFELLER. I thank the Presiding Officer and the Senator from Virginia.

   This is really a moral issue, and the question is, Are we going to do it? We keep putting it off. We keep talking about it. We keep saying, let's have a commission, let's do a resolution, let's study it some more, let's make the process work perfectly.

   I spent most of the afternoon in the Finance Committee trying to work out a resolution on this. Frankly, at the end, there was some hope. But there was also some discussion about what happens if we don't get to vote on prescription drugs. There was a discussion of that.

   I don't want to see that happen. This will probably be our only vote on prescription drugs in this entire session. It is a bipartisan bill. I have made some compromises. Others have made compromises. It is a solid bill. It is probably the only vote we will have on it.

   It is a moral issue, not a political issue, a moral issue that seniors don't have prescription drugs under Medicare. They ought to. JOHN BREAUX is right: Prescription drugs are like a bed in a hospital in 1965; now we are going to modernize it, it is available for all.

   It is an amendment we should pass. It is a moral, not a political, issue. This will probably be the only vote on prescription drugs we will have in this session of the Senate.

   Mr. ENZI. Mr. President, I yield 5 minutes to the Senator from Arkansas.

   Mr. HUTCHINSON. Mr. President, I rise to support the Enzi amendment and to oppose the ergonomics rule that has been proposed by the Department of Labor. This is the rule: hundreds of pages long.

   Senator DURBIN said a few minutes ago this vote will be about values. I will accept that challenge. It is demagoguery to say because we oppose this rule we are not for safety in the workplace. I don't think anybody sincerely believes that on the other side. I am for a safe and healthy workplace. If we want to talk about values, I hope Members will read this and realize what we are imposing on the businesses on this country. There are going to be workers who lose their jobs because of this rule. There will be small businesses that are going to go bankrupt because of this rule, if it is not stopped.

   My colleagues, I am opposed to the ergonomics rules for three reasons: It is based upon uncertain science, at best. This body funded almost a $1 million study by the National Academy of Sciences, which is not yet complete. Why do we fund a study by the NAS and then allow OSHA to move forward with the rule before we have the scientific basis for the rule? The Enzi amendment simply says let's hold off and wait until the science is in.

   CRS says there is great uncertainty about what OSHA has proposed. Not only is there uncertain science, there is uncertain cost. While OSHA says it is a $4 billion cost, the Small Business Administration says the cost will be 15 times what OSHA says it will be. I am inclined to believe the estimates of the Small Business Administration. Private groups

   believe the cost will be many times beyond that. But we know that it will be very expensive. There is uncertain cost involved.

   Third, I oppose this rule because of its uncertain impact. It is 600 pages with many unintended consequences. Many times we allow things to go on in these agencies in which there are unintended consequences, but we know that the OSH Act says that OSHA is not to impact workers compensation laws in the States. This will most assuredly do that.

   As Senator ENZI has rightly pointed out, it is going to negatively impact Medicare, health care dependent upon capped Federal reimbursement. They will have to absorb the costs of the ergonomics with no way to recapture those costs.

   We also know that OSHA has proudly said they have already used their general duty clause with over 500 citations on ergonomics. They are not helpless to protect workers in the workplace now. We should not allow them to move forward with an ill-advised rule.

   The issue is not safety. The issue is not OSHA doing their job. The issue is

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   I retain the remainder of the 5 minutes.

   Mr. ROBB. Mr. President, I yield 1 minute to the distinguished Senator from Iowa, Mr. HARKIN.

   Mr. HARKIN. Mr. President, in my State of Iowa, Sioux City, seniors regularly take bus trips to Mexico to get their drugs. Drugs that cost $68 in Sioux City are $7 in Mexico. Seniors in Waterloo, IA, are being bussed to Canada to buy their drugs. Seniors in Cedar Rapids, IA, are being forced to declare bankruptcy because they have run up their credit care debt so high just to pay for the drugs they need. Mr. President, $5,000 to $6,000 a year is being paid out of pocket by seniors who cannot afford it and are being forced into bankruptcy.

   We are told this is not the time to do this, that we have to wait longer, that this baby is not ready to be born. The elderly have waited long enough, and they have been gouged deep enough, too deep, to pay for their prescription drugs. Now is the time to stand up for the seniors in our country and to vote aye on the Robb motion.

   Mr. KENNEDY. I yield 4 minutes to the Senator from Minnesota.

   The PRESIDING OFFICER. The Senator from Minnesota is recognized.

   Mr. WELLSTONE. Mr. President, I ask unanimous consent to have documents printed in the RECORD to respond to some of the accusations regarding the Labor Department.

   There being no objection, the material was ordered to be printed in the RECORD, as follows:

   OSHA's Use of Contractors During the Rulemaking Process: Expert Witnesses and Consultant Services

   OSHA's use of expert witnesses and consultants is authorized by Congress, approved by the Courts, affirmed by the General Accounting Office, and consistent with OSHA's past practice for over two decades, as well as that of other agencies.

   1. OSHA's Use of Expert Witnesses and Consultants is Expressly Authorized by Congress.

   In 1970, Congress passed, and President Nixon signed into law, the Occupational Safety and Health Act (``OSH Act'' or ``The Act'') which expressly authorized OSHA to hire experts and consultants and to compensate them for their service. See 29 U.S.C. sec. 651 et seq. Specifically, Section 7(c)(2) of the Act, 29 U.S.C. sec. 656(c)(2) states:

   ``In carrying out his responsibilities under this Act, the Secretary is authorized to--(2) employ experts and consultants or organizations thereof as authorized by Section 3109 of Title 5, United States Code, except that contracts for such employment may be renewed annually; compensate individuals so employed at rates not in excess of the rate specified at the time of service for grade GS-18 under section 5332 of Title 5, United States Code including travel time .....'' (emphasis added).

   In addition to the Secretary's specific statutory authorization to hire experts for purposes of administering the OSH Act, Congress authorized the Department of Labor to employ consultants through procurement contracts in the Labor/HHS Appropriations bill (Pub. L. 102-394; 106 Stat. 1792, 1825).

   2. OSHA's Use of Expert Witnesses and Consultants Has Been Affirmed by the Courts.

   In 1980, the Lead industry made virtually the same challenge to OSHA's use of expert witnesses and consultants in a rulemaking that the opponents of the ergonomics rule are making now. See United Steelworkers of America et al. v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980). In reviewing this challenge, the U.S. Circuit Court of Appeals for the District of Columbia recognized that OSHA is empowered to employ experts as part of the rulemaking process. The Court concluded that OSHA properly used its contracted experts and consultants for the following tasks: writing the preamble, on-the-record reports, testimony and posthearing reports. The Court stated that ``The OSHA Act empowers the agency to employ expert consultants ..... and OSHA might have possessed that power even without express statutory authority .....'' Id. at 1217.

   The Court found no problems with OSHA's contracting for the services of experts and consultants in the rulemaking process. Id. In fact, the Court stated that ``we generally see no reason to force agencies to hire enormous regular staffs versed in all conceivable technological issues, rather than use their appropriations to hire specific consultants for specific problems.'' Id.

   In fact, the Court praised agencies' use of experts and consultants as proof that the agencies have taken their statutory missions seriously. Id.

   3. OSHA's Use of Expert Witnesses and Consultants is Authorized by the Federal Acquisition Regulations.

   The Federal Acquisition Regulation (``FAR''), Office of Management and Budget Circular No. A-76 and the Federal Activities Inventory Reform Act also authorize agencies to contract for certain functions, including:

   ``Services that involve or relate to analysis, feasibility studies, and strategy options to be used by agency personnel in developing policy;

   ``Services which involve or relate to development of regulations; and

   ``Contractors providing legal advice and interpretation of regulations and statutes to federal officials.''

   OFFP Policy Letter 92-1, Appendix B numbers 3, 4, and 18; see FAR sec. 7.503(d)(4).

   4. Experts on OSHA's Rulemaking Processes Recognize OSHA's Use of Expert Witnesses and Consultants in Rulemakings.

   It is traditional practice for OSHA to hire expert witnesses to testify at its rulemaking hearings. Both of the principal treatises on OSHA law, OSHA, History, Law and Policy, by Benjamin W. Mintz, and Occupational Safety and Health Law, edited by Stephen A. Bokat and Horace A. Thompson III for the American Bar Association, refer to this practice, which goes back at least to 1980, when OSHA arranged for 46 well-known experts to testify on behalf of OSHA's Carcinogens Policy.

   ABA's ``Guide to Federal Agency Rulemaking'' addresses the use of expert witnesses in OSHA rulemakings, and describes the use of consultants as ``summarizing and evaluating data in the record, and helping draft portions of the final rule and its rationale.'' (Page 243)

   5. The General Accounting Office Reviewed OSHA's Use of Expert Witnesses and Contractors in an Earlier Rulemaking.

   In 1989, at the request of a House Subcommittee, GAO examined OSHA's use of contractors and expert witnesses and found that OSHA had used ``over 35 expert witnesses'' in the years 1986-1988, paying them generally ``$10,000 or less,'' and using them to testify during OSHA public hearings on proposed standards and rules. The report said OSHA used its contractors to assist in developing final rules and that they contributed to 36 different rules over three years.

   6. OSHA has Historically Used Experts to Testify at Public Hearings About Parts of Proposed Rules Which Fall Within Their Areas of Expertise.

   Among the other OSHA hearings at which experts have been used by are: Lead (1980); Hazard Communications (1983); Ethylene Oxide (1984); a revised asbestos standard (1986); Benzene (1987); and Methylene Chloride (1977).

   The number of OSHA experts has varied from as few as one in the Excavation in Construction standard to 46 experts in the Carcinogens Policy hearing. Twenty-eight experts will have testified on OSHA's behalf at the conclusion of the ergonomics hearings.

   7. Other Federal Agencies Use Expert Witnesses and Consultants in Ways Similar to OSHA.

   EPA, FDA, and DOT make extensive use of consultants in their rulemaking activities, though they do not have hybrid hearings like OSHA's, in which OSHA permits the public to cross-examine their witnesses. EPA's use of consultants has been challenged and upheld by the courts, BASF Wyandotte v. Costle, 598 F2d 637 (1st Cir 1979); Weyerhauser v. Costle, 590 F3d 1011 (DC Cir 1978). In the BASF Wyndotte case, the Court found no fault in EPA's use of a private contractor which ``invested 16,500 man hours'' in a rule making process.

   OSHA's rulemaking process is more open than other agencies because the public can cross examine OSHA's expert witnesses in public hearings. Most other agencies engage experts to submit written testimony on a rule, but these experts do not participate in public hearings and are not available for cross examination as OSHA's expert witnesses are.

   8. OSHA's Use of Expert Witnesses and Consultants Was Disclosed to the Public and Was Clearly Known to Parties Who Cross-Examined OSHA's Experts at Public Hearings.

   All of OSHA's expert witnesses appeared on a witness list provided by OSHA under the heading ``OSHA Witnesses.''

   It is clear that the parties who cross-examined OSHA's experts in the ergonomics hearings were aware that OSHA's experts were paid consultants.

   When Mr. Sparlin questioned OSHA expert Mr. Oxenburgh, he referenced the ``Expert Witness Contract for Dr. Maurice Oxenburgh.'' (pp. 2637-39).

   When Ms. Holmes of Jones, Day, Reavis and Pogue made a statement regarding her ability to cross-examine OSHA's panel of experts, she referred to OSHA's ``obviously having commissioned written testimony from all these individuals.'' (p. 1440).

   In questioning Dr. Beale, one of OSHA's attorneys, Ann Rosenthal, clarified for the public record that Dr. Beale was hired as an economist, not as an enforcement expert. (p. 2524). Dr. Beale's own written testimony stated that his ``clients in this regulatory work have included OSHA, MSHA, EPA, SBA, the FAA, the Department of Energy, and the IRS.'' (Ex. 37-22).

   All of this material is part of the public docket and is available on OSHA's webpage.

   9. OSHA's Expert Witnesses Have No Financial Conflict of Interest in the Outcome of the Ergonomics Rulemaking.

   Conflict of interest laws and regulations apply only to employees of the federal government. In some instances, agencies hire

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