June 12, 1974
Page 18948
The PRESIDING OFFICER. The pending question is on whether the contested language shall remain in the bill. There is 20 minutes on the germaneness question, to be equally divided and controlled by the Senator from Hawaii (Mr. FONG) and the Senator from Maine (Mr. MUSKIE), with the vote thereon to occur after the time for debate has expired.
Who yields time?
Mr. ROBERT C. BYRD. Mr. President, I yield myself 1 minute on behalf of the Senator from Arkansas (Mr. McCLELLAN).
I ask unanimous consent that the pending measure remain before the Senate until disposed of or until the close of business today, whichever is the earlier, and that the unfinished business be temporarily laid aside until such time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, what is the pending question?
The PRESIDING OFFICER (Mr. JOHNSTON). The pending question is on whether the contested language is germane to the bill.
Mr. MUSKIE. I thank the Chair. I yield myself 5 minutes.
The PRESIDING OFFICER. The Senator from Maine is recognized for 5 minutes.
Mr. MUSKIE. Mr. President, I shall be brief in my comments. The question was discussed rather thoroughly on Monday. But the issue before us is simply whether we want to allow the regulatory base of the EPA to be undermined.
The issue is whether the Senate weakens enforcement of the Clean Air Act and the Federal Water Pollution Control Act, because what we have before us is legislation on this appropriation bill, the result of which would be to give the OMB and the Federal Energy Administrator the authority to transfer research programs out of EPA into other agencies of their choosing.
This issue came before the Government Operations Committee earlier this year in just that form.
The Government Operations Committee considered the issue comprehensively, resolved it in legislation which is coming to the floor of the Senate this week or next week, and which appropriately divides the research effort between EPA and the new Energy Research and Development Administration so that EPA will retain its regulatory research functions and ERDA will develop appropriate developmental research functions.
This language in the appropriations bill was raised in connection with the same issue and did not have the comprehensive attention that was given it in the Government Operations Committee. So I hope that the Senate will reject it.
The issue has been complicated by the technical question of germaneness, which is left to the Senate without any Senators listening to the technical argument, because so few are in the chamber, so there is no way for me to make this point to the Senate as a whole.
I say to you, Mr. President, that this issue is too important to be decided on such a technicality with only three or four Senators present in the Chamber. In light of the fact that the legislative committee which has jurisdiction over the issue has considered it and resolved and voted to report and to make the report available on the Senate floor within the next 2 weeks, it makes no sense whatsoever to resolve the issue on the basis of the cursory examination given to it by the appropriation subcommittee.
On the technical question of germaneness on this portion of the bill, that is, the appropriation for research to EPA, there is no legislation which has come over to us from the House. If there were, we could not touch it by a point of order. That is the nature of the rule. There is legislative language which has come to us from the House on other portions of the bill. The distinguished Senator from Hawaii argues, therefore, that it is appropriate and germane to the bill to attach legislative language to this portion.
To adopt any such loose definition of germaneness as that is to make us helpless. Where we are now only disarmed, we would be helpless to deal with legislation on an appropriation bill that would come to us from the House.
So on the question of germaneness, it is pointless to discuss it with only three or four Senators in the Chamber. The Senator from Hawaii's case does not stand up. But I want to focus the attention of the Senate on the principal issue. It is an important issue. It is a critical issue. It has to do with the viability of EPA's research program designed to enhance its ability to regulate the activities of polluters in this country. That was the judgment of the Government Operations Committee. That was the judgment of the Subcommittee on Environment Pollution. That was the judgment of everyone except the Appropriations Subcommittee on Environment, which gave this only cursory attention.
Mr. President, if those two judgments are balanced, the decision of the Senate should go with the Senator from Maine.
Mr. President, I have tried to state the issue as briefly and succinctly as I can, and I withhold the remainder of my time.
Mr. FONG. Mr. President, this is a special energy research and development appropriation bill.
The amendment permits EPA to transfer "so much of the funds as it deems appropriate to other Federal agencies for energy research and development activities." Clearly the amendment is germane to the entire thrust of H.R. 14434. That amendment is exactly parallel with two other provisions in the bill; namely, page 8, lines 7 through 11, and on page 10 lines 20 through 23.
Mr. MUSKIE. Mr. President, will the Senator from Hawaii yield for a question, on my time?
Mr. FONG. I yield.
Mr. MUSKIE. Does the Senator feel that there is no way for us to reach that language by a point of order?
Mr. FONG. You can strike it if you wish.
Mr. MUSKIE. But it cannot be reached by a point of order, as your language can.
Mr. FONG. You can strike it if you wish.
Mr. MUSKIE. If you had inserted that House language on the Senate floor in an area in which my legislative jurisdiction committee had jurisdiction, I would be raising that point of order.
Mr. FONG. Mr. President, clearly the amendment is germane to the entire thrust of H.R. 14434, which deals with energy research and development appropriations.
Now, to answer the distinguished Senator from Maine on the principle of the amendment, the prime reason for the present bill is to provide funds to coordinate and speed up the various research and development programs in the energy field.
Mr. MUSKIE. Mr. President, will the Senator from Hawaii yield for another question?
Mr. FONG. I have only 10 minutes
Mr. MUSKIE (continuing). That will be on my time – on my time.
Mr. FONG. All right, I yield.
Mr MUSKIE. Is that not the purpose of the ERDA bill which has been reported by the Government Operations Committee and which has been before the Government Operations Committee for weeks and which will be sent to the floor of the Senate? Is that not the bill which sets the policy? Is that not the bill which creates the agency? You do not do that in appropriations but you do that in legislation. That is what we are doing. I am urging the Senate to set the policy in that bill.
Mr. FONG. The ERDA bill has not yet been passed. The question of policy has already been set, which I will come to.
The bill is an urgent bill. We must move ahead as fast as we can in developing an overall energy policy and energy program. Research is a crucial element in our national energy program. The Environmental Protection Agency requested the subject language in the pending appropriation bill.
Although the agency was allowed a considerable increase in funding in 1975 as compared with its budget in 1974, the budget estimate contained no provision for increased personnel. We have no assurance that there will be any increase in personnel. Even if additional personnel are forthcoming, in order to obtain the greatest benefit from the funds appropriated, the agency should have some flexibility and be given the option to utilize the expertise and services of other agencies and to allow those agencies to contract with private contractors.
EPA also needs to cooperate and coordinate its activities with other Federal agencies.
In connection with the principle of transferring funds from EPA to other agencies, that is already in the law. EPA presently has authority to transfer funds to other Federal departments and agencies. I refer Senators to title 31 of the U.S. Code, section 686. That is the authority for EPA to transfer the funds to any agency.
This authority is for in-house research by the Federal departments and agencies receiving transfers of R. & D. funds from EPA.
In other words, EPA could transfer this money to any agency, and that agency would have to use it for in-house research purposes.
What EPA wants now is authority for this money received by the transferee agency to be contracted out by the transferee agency to private contractors. That is the only reason why we have these words in the bill.
The only authority EPA now lacks is authority to transfer funds to other departments and agencies for those departments and agencies to use in contracting out R. & D. projects to outside, non-Federal organizations. It is this pass-through authority EPA seeks by its May 15 letter to the chairman of the Senate Appropriations Subcommittee, the Senator from Wyoming (Mr. McGEE). EPA has requested this language.
The transfer authority is permissive, not mandatory. If EPA has any doubts that the agency to which it transfers funds would use the funds for research not in accord with the goals of the Clean Air Act, EPA would not need to transfer such funds.
EPA will retain as much control over the use of the research and development funds it transfers under the authority recommended in H.R. 14434 as it now has under the existing authority to transfer.
One point has been developed during the course of this debate which I would like to clarify. That is the charge that the inclusion of this language is an attempt to gut the Clean Air Act and the clean air programs. I want to assure my colleagues, as forcefully as I am able, that this is not the case.
The Appropriations Subcommittee, on which I am privileged to serve as ranking minority member, and the full Appropriations Committee have both strongly and consistently supported the Clean Air Act as well as most other environmental programs.
We have consistently added funds in excess of the administration budget estimates for these programs.
In our hearings this year on a bill for fiscal 1975, the Senator from Maine presented a detailed and forceful statement in support of additional funding on various environmental programs, including clean air.
While I am not in a position to advise what action the subcommittee will take on these suggested amendments, I know that they will be carefully considered when we meet to mark up the bills within the next couple of weeks.
I repeat what I have said earlier, that this language was included in this bill at the specific request of the Environmental Protection Agency. The agency requested it and it has written a letter, which I have not yet received. That letter is forthcoming. They said they will send it to my office. That letter will say that they want these words in the bill.
Mr. President, I have every confidence that the EPA Administrator, Mr. Russell Train, a man whose credentials in the field of environmental protection are impeccable, will, if given this language in the bill, do his very utmost to see that every nickel spent for research, whether by his agency, by other Federal agencies, or by private contractors receiving EPA transferred funds from those departments or agencies, will be for research projects that are designed to help our Nation meet the objectives of the Clean Air Act and the Federal Water Pollution Control Act.
We must face the fact that EPA simply cannot do all the necessary research in the field of environmental controls as in-house research. It must, of necessity, deal with other Federal agencies who have expertise which EPA does not have.
I am confident that Mr. Train will exert his utmost effort to make sure that any EPA funds used in research by other agencies or used by those agencies to award contracts to organizations in the private sector, will be in accord with EPA's environmental goals.
Mr. President, I should like to read the letter from Mr. Train, which I have just received:
DEAR SENATOR FONG: In response to conversations between your staff and EPA staff concerning the Energy R&D Appropriations Bill H.R. 14434 currently under debate in the Senate, I wish to emphasize that I strongly believe that EPA needs legislative authority which would permit other agencies to contract from funds transferred by EPA to carry out needed research activities.
As you know, the Economy Act of 1932, as amended (31 USC 686), specifically prohibits contracting with private industries or institutions by an agency which is the recipient of transferred funds. The Economy Act recognizes that in some cases contracting under these circumstances would be legitimate, but specific legislation would be required to allow such contracting. EPA's request to the Committee of May 15, 1974, is consistent with that procedure.
A decision has not been made as to specific amounts that would be included in passthrough to other agencies. The language that is requested is needed and is essential to assure balanced energy R&D efforts.
Although we are still discussing specific projects with other Federal agencies, I am enclosing a list of projects which would be logical candidates for transfer, if the requested authority were enacted. If the Congress acts favorably on our request, we will keep you and the Committee informed of our use of this authority.
Again, let me reiterate my strong belief that failure to provide EPA clear authority to allow transferred funds to be used for contract purposes would seriously hamper our overall energy R&D efforts, particularly as this research is necessary to support our Clean Air Act efforts.
Sincerely,
RUSSELL E. TRAIN.
Mr. President, the distinguished Senator from Maine has made a mountain out of a molehill. EPA now has this authority to transfer funds to any agency it desires in the Federal Government. The only thing that EPA's transferred funds cannot be used for by the transferee agency is for contracts with private contractors. This is the only issue involved.
The only new thing that is in this bill is the authority to the transferee agency to contract with private contractors. The transferee now has the right to receive the money; EPA now has the right and the authority to transfer the money. It can transfer funds to any Federal authority to which the EPA administrator feels he would like to transfer the money.
The only thing is, if he transfers it without the authority proposed in the pending bill, that transferee authority cannot make a contract with a private contractor.
If the EPA administrator has the right to transfer funds to another Federal authority, why should not that Federal authority be allowed to contract with a private contractor? This is the gist of what we are discussing. So I say the distinguished Senator from Maine is making a mountain out of a molehill in fighting this part of the appropriation bill.
Mr. ROBERT C. BYRD. Mr. President, I ask for the yeas and nays on the question.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, how much time have I remaining?
The PRESIDING OFFICER. The Senator has 4 minutes remaining.
Mr. MUSKIE. Mr. President, let me make these points. First, there has been a concerted effort by OMB to transfer all research funds out of EPA to ERDA. That is not a mountain out of a molehill. That issue was discussed in the Committee on Government operations and it was resolved to protect EPA's legitimate interests and ERDA's legitimate interests.
The request for this authority, strangely, was never submitted to the Committee on Government Operations while we were considering this broad issue. It was offered only after the effort lost in the Committee on Government Operations. Only then was this end run tried to do in the Appropriations Subcommittee what OMB did not succeed in doing in OMB. Why, I ask?
Next, I have been in touch with EPA to find out what plans they have for using this authority. They could not give me a single project.
Next point. The language in this bill is much broader than the justification that the Senator offers from EPA. This language is broad enough to accomplish what OMB tried to do in the Committee on Government Operations and did not succeed. This language is broad enough to transfer all research money out of EPA to whatever agency OMB picks.
For 10 years I have had to deal with EPA and those who seek to undermine EPA and its predecessors. We stay in touch with the Agency and we like to think we know what is going on and the forces that are moving.
With all respect to the Appropriations Subcommittee, they have had responsibility in this field for 3 years, and only with respect to appropriations. They have no legislative background in this field and they know I have been making efforts in the last few years to work with them with respect to legislative policy. Yet they bring this end run to the floor of the Senate in order to cut off a decision that we carefully, thoughtfully, and comprehensively made in the Committee on Government Operations over the last few weeks. This is not a mountain out of a molehill. It is a very big mountain, as big as those in the islands of Hawaii. The Senator from Hawaii sees those mountains, but he fails to see this one, not because his motives are bad but because he does not see the forces moving here that have been very visible from my perspective.
The issue is, Do we take this step to undermine the research programs of EPA which are essential to the protection of the Clean Air Act? That is as simple as I can state it.
Mr. FONG. Mr. President, have I time remaining?
The PRESIDING OFFICER. All time has expired.
The Chair, under Senate rule XVI, now submits to the Senate the question raised by the Senator from Hawaii (Mr. FONG), namely, Is the amendment germane or relevant to the subject matter of the House-passed bill?
Mr. McCLELLAN. Mr. President, a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
Mr. McCLELLAN. Mr. President, as I understand the issue as it will be submitted to the Senate, an affirmative vote would be a vote to uphold the germaneness of the language in the bill.
The PRESIDING OFFICER. That is correct.
Mr. McCLELLAN. A "no" vote would be to reject it as not germane.
The PRESIDING OFFICER. That is correct.
The yeas and nays resulted – yeas 40, nays 50, as follows:
[Roll call vote tally omitted]
The PRESIDING OFFICER. On this vote there are 40 yeas, 50 nays. The Senate having voted that the amendment is non-germane, the Chair now rules that the amendment is legislation; therefore, the point of order raised by the Senator from Maine is sustained, and the amendment is out of order.
The bill is open to further amendment.