[Congressional Record Volume 141, Number 37 (Tuesday, February 28, 1995)]
[House]
[Pages H2321-H2345]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              RISK ASSESSMENT AND COST-BENEFIT ACT OF 1995

  The SPEAKER pro tempore. Pursuant to House Resolution 96 and rule 
XXIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the further consideration of the bill, 
H.R. 1022.

                              {time}  1145


                     in the committee of the whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the further consideration of 
the bill (H.R. 1022) to provide regulatory reform and to focus national 
economic resources on the greatest risks to human health, safety, and 
the environment through scientifically objective and unbiased risk 
assessments and through the consideration of costs and benefits in 
major rules, and for other purposes, with Mr. Hastings of Washington in 
the chair. [[Page H2322]] 
  The Clerk read the title of the bill.
  The CHAIRMAN. When the Committee of the Whole rose on Monday, 
February 27, 1995, the amendment offered by the gentleman from Idaho 
[Mr. Crapo] had been disposed of and the bill was open for amendment at 
any point.
  Six hours and fifty-six minutes remain for consideration of 
amendments under the 5-minute rule.
  Are there further amendments to the bill?
                   amendment offered by mr. traficant

  Mr. TRAFICANT. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Traficant: At the end of section 
     106 (page 18, line 25), add after the period the following:

     For the purposes of this section, the term ``non-United 
     States-based entity'' means--
       (1) any foreign government and its agencies;
       (2) the United Nations or any of its subsidiary 
     organizations;
       (3) any other international governmental body or 
     international standards-making organization; or
       (4) any other organization or private entity without a 
     place of business located in the United States or its 
     territories.

  Mr. TRAFICANT (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Ohio?
  There was no objection.
  Mr. TRAFICANT. Mr. Chairman, this is a compromise version of my 
amendment that fits in with the intent of the committee. I agree with 
the Chair that we must identify what in fact a non-United States-based 
entity is. I believe that that definition should be in the bill itself 
as we did with the gentleman from Idaho, Mr. Crapo's, piece of 
legislation.
  So, with that, what I am saying is a non-United States-based entity 
is any foreign nation or government and its agencies, United Nations or 
any of its subsidiary organizations, other international governmental 
bodies or standards-making organizations or any other organization or 
private entity without a place of business located in the United States 
or its territories.
  That, basically, I think, captures the intent of the committee and 
defines the parameters that are safe enough for our country and for the 
world to understand.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. TRAFICANT. I yield to the distinguished gentleman from 
Pennsylvania [Mr. Walker], chairman of the committee.
  Mr. WALKER. I thank the gentleman for yielding.
  Mr. Chairman, the gentleman has in fact provided, I think, a very 
useful clarifying amendment. The amendment does track language that was 
in the report in a manner similar to what the gentleman from Idaho [Mr. 
Crapo] presented last evening on emergencies.
  I think the amendment offered by the gentleman from Ohio [Mr. 
Traficant] is very helpful. I congratulate the gentleman for his vigor 
in pursuing this issue, he pursued it in committee. I think he has come 
up with language which is very helpful, and we are prepared to accept 
the gentleman's amendment.
  Mr. TRAFICANT. I thank the gentleman from Pennsylvania and his staff 
for the assistance we have received on their side of the aisle.
  Mr. BILIRAKIS. Mr. Chairman, will the gentleman yield?
  Mr. TRAFICANT. I yield to the distinguished gentleman from Florida 
[Mr. Bilirakis].
  Mr. BILIRAKIS. I thank the gentleman for yielding to me.
  Mr. Chairman, on behalf of the Committee on Commerce, the amendment 
is accepted. I too want to commend the gentleman from Ohio for his 
wisdom and diligence, really. It takes some diligence sometimes because 
there is no question that we were not able to afford as much time to 
this legislation as we ordinarily would like. Without the gentleman's 
amendment, who knows what the future might bode in terms of the 
definition of what was meant by the intent of the legislators.
  So I commend the gentleman and thank him for his contribution.
  Mr. TRAFICANT. I thank the gentleman, and also the fact his 
discussions on the World Health Organization and some of those other 
bodies makes an awful lot of sense.
  Mr. Chairman, I urge support of the amendment.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Ohio [Mr. Traficant].
  The amendment was agreed to.


                     amendment offered by mr. oxley

  Mr. OXLEY. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Oxley: Page 37, after line 2, 
     insert:
       (b) State, Local, and Tribal Priorities.--In identifying 
     national priorities, the President shall consider priorities 
     developed and submitted by State, local, and tribal 
     governments.
       Page 37, line 12, after ``report'' insert ``and priorities 
     developed and submitted by State, local, and tribal 
     governments.''.

  Mr. OXLEY (during the reading). Mr. Chairman, I ask unanimous consent 
that the amendment be considered as read and printed in the Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Ohio?
  There was no objection.
  Mr. OXLEY. Mr. Chairman, this would merely add to the priority-
setting provision in title VI of the bill to require the President to 
consider public health priorities developed by State and local 
governments.
  The National Governors' Association recommended this amendment to me 
after it reviewed the bill.
  It gets the priority-setting process closer to where the priorities 
really are, at the State and local levels.
  This is noncontroversial amendment that I think improves the bill and 
is supported by the State governments.
  In support of my amendment, I would point out some language that 
exists currently in the bill in section 17, where we talk about 
guidelines in consultation with State and local governments, in section 
109, study participants may include people from State and local 
governments, and then in section 202, no final rule shall be 
promulgated unless the incremental risk reduction would be likely to 
jeopardize the incremental costs incurred by State and local 
governments.
  I think, Mr. Chairman, you can see from the tenor of the language 
already in the bill that the amendment fits very well into the goals of 
the legislation where we take into consideration State and local 
governments.
  As I indicated, the National Governors' Association asked me to offer 
the amendment on their behalf, which I have done.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. OXLEY. I yield to the gentleman from Pennsylvania [Mr. Walker].
  Mr. WALKER. I thank the gentleman for yielding.
  Mr. Chairman, I think the gentleman has offered a very worthwhile 
amendment, it is a good addition to the priority section and will 
ensure Federal officials are not operating in a vacuum.
  Mr. Chairman, I am prepared to accept the amendment.
  Mr. ROEMER. Mr. Chairman, will the gentleman yield?
  Mr. OXLEY. I yield to the gentleman from Indiana [Mr. Roemer].
  Mr. ROEMER. I thank the gentleman for yielding to me
  Mr. Chairman, we have viewed this amendment on our side, and we see 
that it makes some valuable contributions to the legislation, and we 
are happy to accept it. We note the good contributions from my friend, 
the gentleman from Ohio [Mr. Oxley], with the President considering the 
priorities developed at the State and local levels.
  Mr. Chairman, we accept the amendment.
  Mr. OXLEY. I thank the gentleman.
  Mr. CHAIRMAN. The question is on the amendment offered by the 
gentleman from Ohio [Mr. Oxley].
  The amendment was agreed to.
                    amendment offered by mr. roemer

  Mr. ROEMER. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Roemer: Strike section 401 (page 
     34, lines 2 through 19) and insert the following:

     SEC. 401. JUDICIAL REVIEW.

       Nothing in this Act creates any right to judicial or 
     administrative review, nor creates [[Page H2323]] any right 
     or benefit, substantive or procedural, enforceable at law or 
     equity by a party against the United States, its agencies or 
     instrumentalities, its officers or employees, or any other 
     person. If an agency action is subject to judicial or 
     administrative review under any other provision of law, the 
     adequacy of any certification or other document prepared 
     pursuant to this Act, and any alleged failure to comply with 
     this Act, may not be used as grounds for affecting on 
     invalidating such agency action, but statements and 
     information prepared pursuant to this title which are 
     otherwise part of the record may be considered as part of the 
     record for the judicial or administrative review conducted 
     under such other provision of law.
       Strike section 202(b)(2) (page 29, line 24 through page 30, 
     line 6) relating to substantial evidence and strike ``(1) In 
     general.--'' in section 202(b) (page 29, line 18).

  Mr. ROEMER (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Indiana?
  There was no objection.
  Mr. ROEMER. Mr. Chairman, I offer this amendment on behalf of myself 
and the gentleman from New York [Mr. Boehlert] as a bipartisan 
amendment to provide commonsense legal reform.
  I rise as someone who has been a strong supporter of risk assessment, 
somebody who believes that, with diminishing resources at the Federal 
level, that we need to apply those diminished resources, monetary 
resources, in the most commonsense way possible to promote new public 
policies, especially as they relate to the environment and to other 
rulemaking procedures through our Federal agencies.
  We are at a time, Mr. Chairman, where we do not have the ability nor 
the resources to go about throwing money at all kinds of problems, 
whether it be attaining clean air or clean water, and where we have 
attained 95 percent clean air or clean water and then mandating that we 
go ahead and clean up the remaining 2, 3, 4 percent and finding that 
that did not have a substantial risk to the population and that the 
money involved in cleaning that air or water would have been a 
substantial waste of taxpayers' money.
  That simply is what we are trying to so in passing risk assessment 
cost-benefit analysis. It provides some common sense to rulemaking and 
to public policy-making at the Federal level.
  Mr. Chairman, I strongly support this amendment.
  Mr. Chairman, I strongly supported this legislation as a member of 
the majority last year when we had to fight the rules put forward by 
our own party that were considering elevating the EPA, and many of us 
made the argument if you are going to elevate EPA and give them more 
authority and more money, let us make sure they apply risk assessment 
and cost-benefit analysis procedures. We fought against rules proposed 
by our side.
  So I am a very strong supporter of this legislation. However, the 
judicial review section of this bill opens up the legal process to all 
new forms of litigation. Just as we were arguing, Mr. Chairman, that 
because you can regulate does not mean it makes common sense to 
regulate, we apply the same standard with the Roemer-Boehlert amendment 
to legal reform, that because you can sue does not mean you should go 
forward and sue.
  This bill opens up judicial review to a host of new rulemaking 
processes, not just at the end of the
 rulemaking, where we would like to keep it and maintain it, but it 
allows you several bites out of the apple now, not just one bite of 
litigation at the end but several bites during the rulemaking process.

  This will hurt businesses, it will hurt environmental groups, it will 
cost more money, and it runs counter to the very kinds of things we are 
trying to do in this bill by using common sense.
  If we are going to use common sense in rulemaking and limit 
regulations, let us use common sense in legal reform.
  Now, if you love the Superfund bill and you think that makes 
consultants and the lobbyists rich, you are going to love this part of 
judicial review. This could be called the Full Employment Bill for 
Lawyers and Lobbyists, if this provision on judicial review is 
maintained.
  Let me explain in two areas why I think this should be changed and 
would be changed by the Roemer-Boehlert bipartisan amendment.
  First of all, the new standard established under this bill is 
substantial evidence of compliance. Now, I am not a lawyer, but merely 
reading those words in the bill, ``substantial evidence,'' on pages 29 
and 30, shows you have a new threshold and criterion to establish. 
Right now, we have the threshold of it simply being not arbitrary and 
capricious. That is what the court would rule on, not arbitrary and 
capricious.
  Now, when you set this new standard of substantial evidence of 
compliance and open this up throughout the rulemaking process, we have 
the courts then taking over in science, in rulemaking, in regulation, 
delaying this process all throughout the course of litigation.
  The CHAIRMAN. The time of the gentleman from Indiana [Mr. Roemer] has 
expired.
  (By unanimous consent, Mr. Roemer was allowed to proceed for 2 
additional minutes.)
  Mr. ROEMER. This drives up costs, diverts scarce resources that we 
are trying to maintain with the sensible cost-benefit analysis, and it 
builds in hosts of delays that could in fact hurt businesses.
  Let me give you my second example. Not only is there a new higher 
standard that will allow all kinds of litigation, but let us say you 
are a business and you are applying through the Food and Drug 
Administration for a new pharmaceutical patent, and you are 2 years 
ahead of your competitor. Instead of waiting for the Food and Drug 
Administration to promulgate at the end their final rule, which would 
now be under the current law under judicial review, under this bill's 
judicial review, a competitor of that business, a competitor could 
delay the Food and Drug Administration from considering that business's 
application, delay this process, and hurt what was a natural advantage 
established by the private sector in developing that patent; it would 
delay them unfairly, catch up with them through the delay of 2 years 
and really use judicial review in a sense that we do not want to see it 
utilized.
  So, Mr. Chairman, let me conclude by saying this is a bipartisan 
amendment. This received Republican votes in committee. The issue is 
common sense to the real reform process, not just as I have supported 
in the past, common sense on effectiveness and risk assessment; and 
finally, it uses the standard of not arbitrary and capricious, which is 
a much better standard than substantial evidence of compliance which 
this bill would establish.
  Do not create a new cottage industry of lawyers in this town. Please 
support the bipartisan amendment offered by myself and the gentleman 
from New York [Mr. Boehlert].
  Mr. BOEHLERT. Mr. Chairman, I rise in support of the amendment.
  Mr. Chairman, today's debate on judicial review is really a debate 
about Congress abrogating its responsibilities to the courts and, in so 
doing creating what can only be characterized, as my coauthor of this 
amendment has described, a full employment opportunity for lawyers.
  As we did with such litigation nightmares like Superfund, we are 
creating potential for litigation that will choke our Nation's 
courtrooms and cost the American taxpayers and the Federal Government 
millions of dollars.
                              {time}  1200

  The Congressional Budget Office has estimated that the implementation 
of this legislation will cost in the neighborhood of $250 million. By 
keeping the current judicial review language that is found in H.R. 1022 
in place, our society will likely spend far more than this on 
unnecessary litigation. To date billions of dollars have been spent on 
Superfund litigation, more than has actually been spent on cleaning up 
Superfund sites. We do not want to duplicate that.
  If we do not adopt the Roemer-Boehlert amendment, we will end up 
spending more of the taxpayers' dollars and industry's resources on 
litigation than we are spending on doing risk assessments--once again, 
shades of Superfund. And, incidentally, who is going to pick up the 
tab? It is going to be the consumer who will pay the ultimate 
price. [[Page H2324]] 
  Under current law the Administrative Procedures Act provides the 
regulated community with a clear and often-used tool for seeking relief 
from poorly crafted regulations.
  If an agency has overstepped its bounds in writing regulations, this 
Congress through oversight committees and the control of every nickel 
that an agency receives has at its fingertips the ability to ensure 
that agencies promulgate reasonable regulations. But through H.R. 1022 
we are saying that we cannot control, or will not make the effort to 
control, Federal agencies that are disregarding congressional intent. 
We are failing to do our job, so we are going to pass the burden of 
being vigilant on to the courts and the American people. I do not think 
that is the appropriate way to proceed.
  Such an approach will clog Federal courtrooms, costing taxpayers 
millions of dollars and delaying actions on other activities that are 
of real importance to the safety of the American people. H.R. 1022 
would create over 50 new specific procedures that will be reviewable by 
the courts.
  This legislation was introduced to reduce burdens and relieve 
gridlock. We certainly want to reduce burdens and relieve gridlock, but 
the judicial review provisions here fly in the face of these very 
worthy goals.
  The Roemer-Boehlert amendment, while maintaining current judicial 
review procedures for final agency actions, holds that risk assessments 
guidelines under this act are not reviewable. Without this 
clarification, H.R. 1022 can be manipulated by those with a vested 
interest in a particular regulatory proposal to impede the regulatory 
process.
  Regulations, many of which are critical to the health and safety of 
every American, could be delayed for years in a quagmire of endless 
litigation. Judges should be engaged in making legal decisions and 
scientists should be making decisions on issues of science. A vote for 
the Roemer-Boehlert amendment preserves those roles and ensures that 
our courtrooms do not become a forum for regulatory delay.
  The American people want timely, well-reasoned, cost-effective 
decisions on how regulations should be used. Dumping the burden of 
sorting out what regulations should go forward on the courts achieves 
none of these goals.
  The need to prevent H.R. 1022 from generating mountains of frivolous 
litigation is an issue important to Members on both sides of the aisle, 
as evidenced by a ``Dear Colleague'' on this issue sent out by the 
gentleman from Louisiana [Mr. Hayes], myself, and 18 other 
distinguished Members of this body. This was a true bipartisan effort.
  Mr. Chairman, a vote for the Roemer-Boehlert amendment is a vote to 
prevent the costly, unnecessary proliferation of litigation that the 
American people have expressed their unhappiness with.
  Mr. Chairman, let me close by adding something here that I think is 
very important. We are always looking for legitimate case studies, 
examples that we can point to and say, ``This is how it works.'' Let me 
share this with my colleagues.
  Had H.R. 9 been in effect 25 years ago, it would have barred one of 
the most effective environmental health initiatives ever undertaken 
anywhere--the removal of lead from gasoline.
  The CHAIRMAN. The time of the gentleman from New York [Mr. Boehlert] 
has expired.
  (By unanimous consent, Mr. Boehlert was allowed to proceed for 2 
additional minutes.)
  Mr. BOEHLERT. Mr. Chairman, the phaseout of lead is widely accepted 
to have had tremendous benefits for our society, with children's 
average blood levels falling about 75 percent since the phaseout began 
in the mid-1970's. But substantial evidence of the relationship between 
lead and gasoline in our children's blood became available as a result 
of phaseout rules. It did not exist when the regulations were being 
developed. If the regulations had not been imposed, lead levels would 
not have fallen, creating a vicious circle of continued exposure and 
regulatory paralysis. In addition, the manufacturers of leaded gasoline 
additives could have delayed the regulation almost indefinitely by 
arguing that reducing lead exposure from other sources would have been 
more flexible.
  Mr. Chairman, I am a strong supporter of risk assessment and the 
knowledge that it is an idea whose time has come. When we talk about 
billions of dollars being spent across this country for regulation, for 
the implementation of regulations, that is right, we do spend billions 
of dollars to implement regulations to guarantee the safety of our food 
supply, to make sure that the air we breathe is reasonably clear, and 
to make sure the water we drink is reasonably pure. We have had too 
many horror stories out there across America where things go wrong, and 
we do not want things to go wrong when we are dealing with the public's 
health and safety.
  So I think we have a reasonable amendment here on the subject of 
judicial review and I urge my colleagues to give it the very serious 
consideration that it deserves.
  Mr. Chairman, I might point out that in a bipartisan way, Republicans 
and Democrats alike have analyzed this, and there is a growing body of 
us on both sides of the aisle who think this amendment should go 
forward and that it would be a constructive addition to the bill.
  Ms. HARMAN. Mr. Chairman, I move to strike the last word, and I rise 
in support of the Roemer-Boehlert amendment.
  (Ms. HARMAN asked and was given permission to revise and extend her 
remarks.)
  Ms. HARMAN. Mr. Chairman, I am proud to cosponsor this amendment and 
would identify precisely with the comments of my colleague from New 
York, Mr. Boehlert. It feels very good to have a Member from the other 
side reach for some of us here who have been supporting much of the 
program of the contract but who feel that some of it needs some 
correction. In the area of judicial review I feel very strongly a 
correction is needed to this bill, and I would say that many of us who 
support risk assessment would be extremely comforted if this correction 
were made. It would make it much easier for us to support the 
legislation on final passage.
  Mr. Chairman, I have been a lawyer for over 26 years, most of that 
time in private practice, and I know that H.R. 1022's judicial review 
provisions will quickly turn regulatory reform, which we all support, 
into a lawyer's paradise by providing for interim judicial review. And 
that is what we are talking about here, interim judicial review of risk 
assessment and cost-effective analyses. H.R. 1022 will allow any 
individual to cause regulatory gridlock. This is any individual, as I 
say.
  While one of the bill's goals is to improve the science underlying 
risk assessment, it is ironic that ultimately judges, not scientists, 
as the last speaker has pointed out, will become the final arbiters of 
cutting-edge risk-assessment science.
  Some Members argue that H.R. 1022's judicial review provisions are 
necessary to guarantee enforcement of the bill. Mr. Chairman, nothing 
could be further from the truth. We in Congress, a Republican-
controlled Congress, continue to have oversight of Federal regulatory 
agencies. This Member is not ready to abdicate that responsibility.
  While the Roemer-Boehlert amendment would prohibit interim judicial 
challenges, it does nothing to alter the Administrative Procedures Act, 
which provides for judicial review of final agency actions.
  Let me point out that legal review will still be possible at the 
right time in the process, even with the passage of the Roemer-Boehlert 
amendment. Under such review, risk assessment and cost-benefit analyses 
will continue to be part of the record and will, therefore, be subject 
to court scrutiny.
  Mr. Chairman, without the Roemer-Boehlert amendment, H.R. 1022 will 
soon become, as the gentleman from Indiana [Mr. Roemer] has said, the 
``Full Employment for Lawyers and Lobbyists Act,'' and ultimately the 
taxpayers will be left footing the legal bills.
  Mr. Chairman, let us adopt this bipartisan, good-spirited, and very 
sensible course correction to a risk analysis bill that many of us 
would like to support.
  Mr. OXLEY. Mr. Chairman, I rise in opposition to the 
amendment. [[Page H2325]] 
  Mr. Chairman, let me first say that I have great respect for the two 
gentlemen offering the amendment, but I have to say that, based on the 
debate we had last night, this is more of the same. This bill, not the 
amendment but the bill, is about accountability. It is about making the 
regulators accountable to somebody.
  The reason we are here today is because the regulators over these 
last 40 years have been essentially unanswerable to anybody when these 
regulations come pouring out of the Federal Register. So the bill is 
about trying to get some accountability in the process, and I fear, and 
I know, that this amendment basically strips away that accountability 
and allows those regulators to run roughshod over businesses and 
industry in this country that are trying to create jobs and trying to 
create products.
  My friend, the gentleman from Indiana, I think, is in error and 
totally misrepresents or misreads the bill or the provisions in the 
bill when he says that we are going to provide more than one bite of 
the apple.
  Let me refer the gentleman to the language in title IV under Judicial 
Review, the section he seeks to amend. I quote as follows from line 7:
  ``The court with jurisdiction to review final agency action under the 
statute granting the agency authority to act shall have jurisdiction to 
review.* * *'' Then it goes on in line 13 again to talk about final 
agency action, and that indeed is the target here that we are trying to 
emphasize.
  This is really a business-as-usual amendment for the bureaucrats, and 
I am sure that most of the Members have probably gotten some entreaties 
from the bureaucrats asking them to support this amendment.
  By the way, Mr. Chairman, this amendment was offered by the gentleman 
from Illinois [Mr. Rush] in our committee. It was defeated on a 
bipartisan vote.
  I think this amendment, if it were to be adopted, would essentially 
gut this bill. It would make it unenforceable and would provide no 
particular accountability. There is no hammer for some kind of 
regulation unless we have judicial review. Judicial review is really at 
the heart of what we are talking about.
  Mr. ROEMER. Mr. Chairman, will the gentleman yield?
  Mr. OXLEY. I am pleased to yield to my friend, the gentleman from 
Indiana.
  Mr. ROEMER. Mr. Chairman, the gentleman, I think, misrepresents both 
the intent and the effect of this amendment. Certainly if the Roemer-
Boehlert amendment was adopted, judicial review would be alive and 
well. It just is not pervasive through the process.
  What we are saying is that we still have OMB's ability for oversight, 
we have congressional oversight, and we have the Administrative 
Procedures Act. All this is still intact. We just do not want to see 
the expansion of new thresholds put in, and the ability to litigate 
throughout the rulemaking process.
  Mr. OXLEY. Mr. Chairman, if I could take back my time, I guess 
essentially the gentleman says that he is satisfied with the status quo 
and what is going on in terms of what is happening out in the 
regulatory world. This bill is designed to limit and to get some common 
sense back in this regulatory process. If the gentleman would concede 
to me that he is willing to allow the existing regime to take place in 
all those statutes he has mentioned, I would say, fine, let us have an 
argument about that.

                              {time}  1215

  But do not try to essentially gut this particular bill and say we are 
going to rely on the existing statutes, when in fact those existing 
statutes, particularly the regulations that have emanated from them, 
have been a tragedy, have gone far beyond even the necessity for what 
the bill called for, the original bill called for, and in my estimation 
your amendment really does damage the bill.
  Mr. ROEMER. If the gentleman will further yield, just as it would be 
a tragedy, as the gentleman from Ohio knows, to continue to let 
regulations tie up this country in terms of its scarce resources and 
its public policy debate, it is an equal travesty not to use common 
sense to reform the legal aspect here and to allow litigation to 
proliferate and explode.
  That is what the bill will allow to happen. We are trying to prevent 
that. Let us use common sense both in limiting bureaucracy and 
regulation, and in applying common sense to legal reform.
  Mr. OXLEY. Reclaiming my time, Mr. Chairman, I yield to the gentleman 
from Pennsylvania.
  Mr. WALKER. I thank the gentleman for yielding. The gentleman from 
Indiana has referred to common sense. Common sense tells you that using 
OMB for the last 20 years or so has been disastrous.
  The CHAIRMAN. The time of the gentleman from Ohio [Mr. Oxley] has 
expired.
  (By unanimous consent, Mr. Oxley was allowed to proceed for 2 
additional minutes.)
  Mr. OXLEY. Mr. Chairman, I yield to the gentleman from Pennsylvania.
  Mr. WALKER. Common sense will tell you using OMB for the last 20 
years or so has not worked. Congressional oversight over the last 40 
years has not worked. If we want to provide commonsense standards, look 
at what is happening. Common sense tells you the standards that the 
gentleman wants us to rely upon have not worked. We have ended up with 
a regulatory nightmare, and the gentleman wants to preserve that 
nightmare.
  His admonition here just a moment ago is that those are what would be 
available to us if, in fact, his amendment passes. The fact is, even 
some of the standards under present law would not be available to us 
under the gentleman's amendment.
  Mr. OXLEY. Mr. Chairman, reclaiming my time, the gentleman from 
Pennsylvania is absolutely right. This is a status quo amendment. If 
you are happy with the existing status quo as far as regulations are 
concerned, then you want to support this amendment. But let me read the 
language of the Roemer amendment: ``Nothing in this act creates any 
right to judicial or administrative review, nor creates any right or 
benefit, substantive or procedural, enforceable at law or equity by a 
party against the United States, its agencies or instrumentalities, its 
officers or employees, or any other person.''
  Then it goes on to say, ``If any agency action is subject to judicial 
or administrative review under any other provision of law, the adequacy 
of any certification or other document prepared pursuant to this Act, 
and any alleged failure to comply with this Act, may not be used as 
grounds for affecting or invalidating such agency action * * *.''
  It essentially means bureaucrats, keep on turning out those 
regulations, and we do not have any way if this amendment passes to 
have any accountability whatsoever. I think that is a travesty. We 
basically have rejected this argument last night in the Brown 
amendment, and I think that this is essentially part of the Brown 
substitute. It should be rejected just like the Brown substitute was 
last night, and I yield back the balance of my time.
  Mr. MINGE. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, there is really a deep problem with the legislation and 
the provision that we are considering at this point in time, and that 
is a question of judicial review. Historically, in this country the 
courts have vacillated between micromanaging administrative agencies in 
rare circumstances, and adopting an essentially hands-off approach. The 
standards for judicial review of rulemaking has essentially been one 
that grants very substantial deferences to the agency process. This is 
review of rulemaking as opposed to adjudicatory procedures within the 
agency.
  The legislation that we are considering extends the requirements for 
rulemaking to include peer review, to include risk analysis, cost-
benefit analysis. These are very far-reaching extensions. And the 
question that is before the body is if we have such far-reaching 
extensions, what is the role of judicial review in this context? 
Because essentially what we have now are three different documents that 
the court could review. First, it would have the rule itself and 
whatever agency explanation there is for the rule. Second, there would 
be the risk assessment. Third, there would be the peer 
review. [[Page H2326]] 
  Now, assuming that all of these steps, all of these documents are 
necessary as a part of the process, the question is should we take this 
to its logical extreme and have the courts then comparing the rule with 
the risk analysis and with the peer review process, and the courts 
ultimately deciding how should that peer review process and the risk 
analysis be interpreted by the agency in the preparation of the final 
rule.
  I submit that at this point we are taking historic action to begin 
with by extending the risk analysis and the peer review process to all 
agency rulemaking. To take this to the further point of having full and 
complete judicial review of how that risk assessment and peer review 
was conducted and how it was considered by the agency, would in my 
opinion result in the courts' micromanaging the administrative process.
  Now, you may say this is desirable, because we feel the agencies have 
defaulted. I submit that that fails to recognize at least two critical 
considerations. First of all, most of the agency rulemaking that is so 
controversial in this country did not come full-blown from the heads of 
the agencies themselves. Instead, these rules can be traced back to 
acts of Congress which in amazing detail told the agencies what they 
were supposed to do. And if we only would look at what we did in 
Congress, we would better understand why the American public is so 
frustrated with what our administrative agencies have done.
  Second, we fail to recognize that this tool of judicial review can be 
used and abused by every interest group in our society that is unhappy 
with the rule, both to challenge the rule on the merits and to delay 
its implementation. Litigation quite often is an exercise in delay. 
Litigation is quite often used by the loser, who decides that that 
group or he or she cannot win in the political process, so now they 
will resort to the courts.
  Sometimes these group are environmental, consumer, conservation and 
similar groups. Other times they are business groups. And if we provide 
full opportunity for any group that feels aggrieved by a rule to 
relitigate the rulemaking process in court, we are going to find that 
we have hamstrung effective decisionmaking in the executive branch of 
government.
  Now, this may, indeed, be the goal of some Members of this body, but 
I know that in my visits with the business and financial community in 
my district, that they find that a very significant part of the 
rulemaking process is important for the well-being of their industry, 
and they want Government that works and works effectively and is fair, 
but they do not want Government that is ineffective and incompetent.
  So I urge that this amendment be adopted, that we take a go-slow 
approach, and not take this to the opposite extreme where the pendulum 
will simply be returning in the other direction and we will be 
revisiting this only a regular basis.
  Mr. GILCHREST. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. GILCHREST asked and was given permission to revise and extend 
his remarks.)
  Mr. GILCHREST. Mr. Chairman, I rise in support of the amendment. The 
rigid discussion here is about who has the responsibility of 
overzealous regulators and who has defaulted on that responsibility, 
has it been the regulators or has it been Congress? Who has not taken 
the accountable, responsible position to follow the law through the 
regulatory process to see how it has impacted on business, on industry, 
on the private sector, on environmental regulations, on all of these 
things? Who has reneged on their responsibility?
  I would tell you in this room today that it is the Congress that has 
reneged on the responsibility to follow through, to see where the 
regulations have gone too far.
  Who should the regulators be responsible to then? Should they be 
responsible to the courts, or should they be responsible to us, Members 
of Congress? And I would tell you emphatically that the regulators who 
we appoint, who we give responsibility to, who we determine what their 
latitude is, ultimately the responsibility of the regulators is not the 
courts, it is the Congress.
  Mr. Chairman, if there is an irony here in this bill, it is that at 
the same time that the House committees are considering legislation to 
deal with the real problem of excessive litigation in our society, we 
are about to pass a bill which is going to throw final decisions of 
resolving these problems in the courts. The defendant will be the 
Government, and the legal bills will be paid by the taxpayer.
  I am not opposed to efforts to put cost-benefit analysis into the 
regulatory process. I am not opposed to that, and I may very well 
support this bill with some of the modifications, including this. But 
allowing parties to challenge final regulations on the benefit of cost-
benefit is certainly not a step toward more efficient government.
  Opponents of this amendment will argue that judicial review is the 
only way to force the agencies to implement risk assessment. I 
disagree. We, the Congress, through the oversight responsibilities of 
these regulatory agencies, are eminently capable of making the agencies 
do exactly what we want them to do, and it is our ultimate 
responsibility, we, Members of Congress, and not the courts.
  I know the supporters of the bill included the amendment out of fear, 
and this is real fear and this is historical fear, this is the real 
thing, that the agencies would simply ignore the requirements of the 
bill, and I am sure that judicial review language is well-intentioned.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. GILCHREST. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. I just wanted to go back. I do not want the gentleman to 
get too far away from the point he made earlier. Are final agency rules 
available for judicial review now? Under existing law, when final rules 
are made, are they eligible for judicial review at the present time?
  Mr. GILCHREST. The answer is yes, but it has not been done 
sufficiently enough so the idea that we should have judicial review in 
this context for cost-benefit analysis is appropriate.
  Mr. WALKER. If the gentleman will yield further, I am confused. The 
gentleman says we are going to add a whole new wave of litigation. The 
fact is the exact standard in the bill, that final agency regulations 
and rules are in fact subject to judicial review is in fact the law 
right now. If we do not do it in this bill, that backtracks from where 
the law is right now. The gentleman appears to be looking to backtrack.
  Mr. GILCHREST. Mr. Chairman, reclaiming my time, the judicial review 
section of this bill is in my judgment a much more onerous requirement 
that has not been in the law in the past.
  Mr. WALKER. If the gentleman would yield further, could the gentleman 
tell me where this is more onerous than the present law is?
  Mr. GILCHREST. Let me give an example of the practical effect of this 
provision as it now exists and has not existed in the past. This 
provision will provide parties who are opposed to regulatory actions 
with the means to delay or stop them, regardless of whether the agency 
complied with the bill. Anyone opposed to a regulation need merely 
challenge the propriety of the cost-benefit analysis to tie the 
regulation up in court, and every analysis would be subject to 
challenge.
  There are 60 different ways that this challenge can be litigated. 
Just let me read some of the proposed challenges. Does risk assessment 
appropriately address the reasonable range of scientific uncertainties? 
If no single best estimate to risk is given, does risk assessment 
include an appropriate discussion of multiple estimates? If a risk 
assessment includes multiple estimates of risks, are the assumptions, 
inferences, and models associated with such multiple estimates equally 
plausible? There are 60 of these things.
  Mr. Chairman, I would request the Members support the Roemer-Boehlert 
substitute.
  Mr. BILIRAKIS. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in opposition to the amendment. The other side 
has made an awful lot of arguments in support of the amendment, trying 
to defeat the judicial review provisions of the bill. One of the 
arguments that was [[Page H2327]] made was that it takes two bites from 
the apple.
  I would like to read maybe pertinent sentences, if you will, of 
section 401, Judicial Review. ``Compliance or noncompliance by a 
Federal agency with the requirements of this Act shall be reviewable 
pursuant to the statute granting the agency authority to act or, as 
applicable, that statute and the Administrative Procedure Act. The 
court with jurisdiction to review final agency action,'' underlined, 
``final agency action under the statute granting the agency authority 
to act shall have jurisdiction to review, as the same time, the 
agency's compliance with the requirements of this Act. When a 
significant risk assessment document or risk characterization document 
subject to title I is part of the administrative record in a final 
agency action,'' and then it goes on.
                              {time}  1230

  The point of the matter is that if we had underlined final agency 
action, maybe the point would have gotten across. There is not any 
attempt under this legislation to have more than one bite at the apple. 
It is the final agency action that is reviewable and only that.
  I would go further here. It was said by my very close friend, my 
colleague, we came into the Congress together, we are very close 
friends, disagree on this issue, the gentleman from New York [Mr. 
Boehlert], he is my close friend, but anyhow basically he referred to 
the environmental revolution, I suppose, that has taken place over the 
last 20 years and how many of those good things would not have taken 
place were this type of language in effect at that point in time.
  He used the illustration of the lead gasoline ban. In truth, a recent 
article published by the Harvard Center for Risk Analysis shows that 
risk assessment and cost-benefit analysis, the same procedures, the 
same procedures required in our bill were central to the EPA's lead 
gasoline ban.
  I quote,

       EPA chose not to use the traditional methods of regulatory 
     toxicology and instead employed modern methods of risk 
     assessment in phasing out lead in gasoline.
  The point I think is that this is considered to be such a terrible, 
radical way to go. In all of our hearings, in all of our markups, 
throughout all of our days of markups, the other side who opposed this 
legislation basically got up and said, well, we agree with risk 
analysis, with risk assessment, with cost-benefit analysis. The 
gentleman from Maryland just made the same comment. Well, if there is 
an agreement, then what is wrong with this bill?
  I would suggest to Members that it is very possible that if we had 
this legislation in effect at that point in time, that quite a few, if 
not all of the environmental radical revolutions that took place over 
the years probably would have taken place in any case.
  A point that I guess was not made as yet is that the gentleman's 
amendment would remove the substantial evidence test. Under the 
Administrative Procedures Act, final agency action as we know is only 
overturned when it is arbitrary and capricious. Of course, that is, I 
think most everyone would agree, very deferential to the agency because 
of the very high burden for people to bear to prove that an agency is 
acting in an arbitrary and capricious manner.
  Of course. The legislation applies a substantial evidence test, which 
means that an agency must present substantial evidence that it complied 
with the act. I see nothing wrong with that. The bill substitutes a 
substantial evidence test for the arbitrary and capricious test so that 
the agencies must really demonstrate to a court that they are complying 
with the act's cost-benefit requirements.
  Mr. Chairman, for all of those reasons I oppose the amendment.
  Mr. ROEMER. Mr. Chairman, will the gentleman yield?
  Mr. BILIRAKIS. I yield to the gentleman from Indiana.
  Mr. ROEMER. Mr. Chairman, just reading through the report, it 
certainly appears from the report language that such things as risk 
assessment guidelines, are they subject to judicial review under this 
new language?
  Mr. BILIRAKIS. In terms of the final agency action, yes.
  Mr. ROEMER. So that is new, that does expand the scope.
  Mr. DOYLE. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in support of the amendment offered by the 
gentleman from Indiana [Mr. Roemer] cosponsored by the gentleman from 
New York [Mr. Boehlert] and also cosponsored by myself and several 
other of us who serve on the Science Committee.
  This amendment is necessary to ensure that the regulatory process 
does not become an eternal playground for lawyers. In asking agencies 
to use the tool of risk assessment, we are trying to ensure that 
regulation is based on sound science. As currently written, passage of 
this bill will allow any party to litigate agency actions before they 
have even been completed. Judicial review can be used to interfere in 
the scientific process and delay timely consideration of new medicines 
and other products.
  Currently, the courts can review a final agency action on the basis 
of whether the action was arbitrary and capricious. In this law, we are 
requiring agencies to use over 50 new specific procedures in carrying 
out risk assessment and cost-benefit analysis. If an agency's action 
does not meet these new criteria, that error will be considered by the 
courts as part of their review of a final agency action.
  I believe that our Nation needs to use risk assessment and cost-
benefit analysis, but they are relatively new processes which will 
undoubtedly be refined with the passage of time. The inclusion in the 
bill of a National Peer Review Board and Office of Management and 
Budget review of risk assessment and cost-benefit analysis will provide 
adequate guidance and oversight to ensure that these tools are being 
properly utilized. The idea that lawyers and judges are somehow 
equipped to assess the quality of scientific procedures is almost 
humorous.
  Without this amendment, we will permit any party to engage in 
dilatory tactics by going to court to force an agency to provide 
substantial evidence that it is complying with each criteria outlined 
in this bill. If we demand that an agency justify its action before it 
has completed that action, nothing will ever get accomplished. In order 
to move our economy forward with new medicines, chemicals, pesticides, 
and other products, we will have to assign an attorney to every Federal 
bureaucrat because everything we try to do to improve our economic 
well-being and our overall quality of life will be litigated to death 
before the process gets off the ground.
  Under this amendment, judicial review will still exist, but it will 
occur at the end of the process. And as a gentleman from the Republican 
side pointed out during our consideration of this amendment in the 
Science Committee, this is the same arrangement that was agreed on for 
the unfunded mandates legislation. So if you supported the judicial 
review provisions of the unfunded mandates bill, you should be able to 
support this amendment.
  I am not a scientist or a lawyer, but I can assure you that 
litigation is not an essential component of the scientific process. Let 
us keep the lawyers out of the laboratories and judges from gauging the 
quality of science. Let the professionals make scientific and technical 
determinations. Once their action is complete, there will still be 
plenty of opportunity for the lawyers to work their magic. Vote for 
this amendment and stop the insanity.
  Mr. McINTOSH. Mr. Chairman, I move to strike the requisite number of 
words, and I rise in opposition to the amendment.
  Mr. Chairman, I believe that the judicial review provision of this 
bill is one of the key features in protecting the regulated community, 
average Americans, from the threat of over regulations and regulations 
that do not meet the test of good science and cost-benefit analysis.
  The question has been raised about whether we will create a plethora 
of legal actions and increase the problem in the United States of too 
many lawsuits. The key difference here is that what this provision does 
is allow citizens to challenge the Government when they have not 
followed their own law and their own requirements. It is very different 
from a situation where we are creating lawsuits between citizens in the 
private sector. [[Page H2328]] 
  Historically, if we look at two acts that had very broad general 
application, the NEPA Act and the Regulatory Flexibility Act, NEPA 
contained a judicial review provision which allowed members of the 
private sector to require agencies to do an environmental impact 
statement. Now, only when that was established as a matter of law did 
that law become effective. Government agencies had to determine what 
their actions would do to affect the environment. It has become a very 
successful act in terms of requiring Government to be responsive to 
environmental concerns.
  The Regulatory Flexibility Act, however, did not contain a judicial 
review provision and for years now agencies have had routine 
boilerplate that says, yes, we have complied with the regulatory 
flexibility provisions that require us to give small business special 
consideration in reducing regulatory burdens.
  The clear examples that these two show is that without judicial 
enforcement, without allowing citizens to be able to keep a check on 
their government agencies, provisions that they have to live by will be 
ignored at least in their intent, if not in fact.
  So for that reason, I strongly support the judicial review provisions 
in this bill and would urge all of my colleagues to vote against the 
amendment.
  Mr. TAUZIN. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in opposition to the amendment offered by my 
good friend, the gentleman from Indiana [Mr. Roemer], and urge its 
defeat. The amendment and the bill have one thing in common. The 
amendment and the bill refer to the judicial review that is already 
available in the statutes that create the regulatory authority that is 
affected by this bill.
  Currently the law permits judicial review of agency actions across a 
broad span of regulatory authority. That judicial review occurs at the 
final option of the agency. Nothing has changed in this bill in that 
regard.
  There is still a judicial review provided by the current law for 
agency actions at the end when the agency makes a final determination.
  The only difference between this amendment and the bill is where this 
amendment says that in that agency action judicial review no question 
can be raised regarding the adequacy of certification or other 
documents prepared pursuant to this act. And here is the most important 
and relevant part, and any alleged failure to comply with this act may 
not be used as grounds for affecting or invalidating the rule.
  What this amendment says, in effect, is that you can have judicial 
review of the agency's action but the agency's failure to follow this 
law is not grounds in that judicial review for affecting or 
invalidating the rulemaking by the agency. In short, this amendment 
says it is OK for the agency to violate the law, not to follow risk 
assessment and cost-benefit analysis, to ignore the will of this 
Congress, the will of the people of this country expressed in its 
representative body, to ignore it completely and do what they have been 
doing for years and that is never do a proper risk assessment, cost-
benefit analysis.
  What purpose is there in passing such an amendment, if it is not to 
defeat the very purposes of the bill? If an agency never has to answer 
in court for its failure to follow the law in this country, what on 
earth are we here doing passing laws requiring agencies to follow the 
law? If we, in the same law we pass, say it is OK not to follow the 
law, what are we doing here? The bottom line is, if you believe in this 
law, if you believe that agencies ought to do
 relevant and important risk analysis, risk characterizations, and they 
do what all of us hope this Nation will begin to do, consider cost in 
the equation and look for the least-cost alternatives by which we 
regulate our society and in all these important areas, if you really 
believe in that principle, how can you possibly vote for an amendment 
that says in the judicial review of whether or not the statute has been 
followed, it does not matter whether the agency followed the statue, it 
will have no effect upon the judicial interpretation of the rulemaking 
by the agency?

  If on the other hand you believe in this bill, you must defeat this 
amendment, because this amendment literally defeats the bill.
  Mr. ROEMER. Mr. Chairman, will the gentleman yield?
  Mr. TAUZIN. I yield to the gentleman from Indiana.
  Mr. ROEMER. Mr. Chairman, I would just say to the gentleman from 
Louisiana, who I know is a strong supporter of this legislation, what 
the Roemer-Boehlert amendment concentrates on is the final action, the 
substance of what that agency finally promulgates as a rule, not all 
the little piddly procedures that go into making that rule that this 
bill opens up as possible action on judicial review. We are focused on 
the final action and the substance, not the procedure and the 
processes.
  Mr. TAUZIN. Reclaiming my time, the gentleman's amendment does not 
just say do not look at the procedure. The gentleman's amendment says 
that the alleged failure to comply with this act, the alleged failure 
to conduct risk assessment, the alleged failure to do a cost-benefit 
analysis has nothing to do with the court's ability to say that this 
rulemaking is invalid.

                              {time}  1245

  Mr. Chairman, the gentleman's amendment says it does not matter 
whether you did not even follow any procedure, whether you ignore this 
law completely, the rulemaking is still going to be valid because the 
judicial department cannot review the agency's failure to follow this 
act. That is what the gentleman's amendment does.
  If it did only what the gentleman said, I might understand this 
amendment. It goes well beyond that. It says clearly ``any alleged 
failure to comply with this act.'' What does a common, normal reading 
of that mean? It means if you did not follow the act, if you did not do 
risk assessment cost analysis at all, by any procedure, the alleged 
failure to follow this act does not make any difference. Therefore, the 
agency can ignore this law and go on its way, and no judicial review 
will ever happen.
  Mr. Chairman, if we want that effect in this bill, just vote against 
the bill, do not ask us to pass this amendment.
  Mr. BILBRAY. Mr. Chairman, I rise to strike the requisite number of 
words.
  Mr. Chairman, I oppose this amendment. We have an amendment that is 
trying to say that we will not enforce the regulations, or not allow 
the citizens to enforce the process to be able to identify what is true 
risk, what is true benefit. I think one of the concerns I have is that 
if we applied this amendment to every environmental regulation and 
every environmental law in this country, I think both sides of the 
aisle would agree that it would gut the public health protection 
aspects of the laws of this Nation. I think that that is the intent of 
this amendment, is to gut this bill, not to protect it, not to enhance 
it.
  Mr. Chairman, all I have to say is that those who stood in this House 
and spoke about the concerns about the lawyer full employment act, I 
sure hope to see them standing in line to support us as we get into 
tort reform. I think that is a problem. I agree with my colleagues that 
that is a major problem, one we must address, but this is not the 
source of the problem. That is going to be another day, another battle, 
another agenda.
  The source of the problem here is that we need that dose of reality 
in our environmental and public health strategy to make sure we protect 
the public health. What this amendment will do is say that the public 
would not have the right to be able to draw on the facts of the process 
to come to conclusions; that the judicial system would not be able to 
consider the fact that flawed data causes flawed results.
  Mr. Chairman, garbage in, garbage out. If the science that goes into 
making the conclusion is not sound, then the result is not going to be 
sound, and we have to look at the process as we get into it. I think 
the result is absolutely essential. I agree with my colleague that the 
result is what really matters.
  However, to judge the result we have to look at the evidence as it 
was being developed. If we ignore good science in the development of a 
strategy, we are ignoring the public's health and we are ignoring good 
public strategy. Therefore, Mr. Chairman, I ask strongly that 
[[Page H2329]] this amendment either be defeated or we have the guts to 
stand up and say ``This is what we want to do across the board, we want 
to do this with all our environmental regulations, we want to eliminate 
judicial review and deny the public the ability to look at how 
bureaucrats come to these conclusions,'' but do not do it just with 
this bill. Have the guts to do it with all the bills that have been 
passed for the last 40 years through this House, because without that 
then we are picking up this alone.
  Mr. ROEMER. Mr. Chairman, will the gentleman yield?
  Mr. BILBRAY. I yield to the gentleman from Indiana.
  Mr. ROEMER. I just want to say, Mr. Chairman, the gentleman is 
impugning that many of us are saying we want to gut this bill. Much 
before this gentleman entered this body, Members on this side were 
working to pass this legislation last year. We do not intend to gut 
this bill. We have been working hard in a bipartisan way to pass risk 
assessment.
  Second, Mr. Chairman, the gentleman's comments are very interesting 
in that they admit that the gentleman wants evidence from the 
rulemaking process entered into judicial review. That is what we are 
saying should not happen. We are saying, look at the substance in the 
final rule, not all the evidence that goes in through the past 3 or 4 
years in the rulemaking.
  Last, I would just say to the gentleman that we are not eliminating 
judicial review. We still have OMB oversight, we have peer review, 
substantial peer review and sunshine. We have congressional oversight. 
We still have the Administrative Procedures Act.
  All that will make sure that that process works. We are not 
eliminating judicial review.
  Mr. BILBRAY. Reclaiming my time, Mr. Chairman, on
   the items that are being used to make the determination, the 
gentleman is. The trouble is when we eliminate that judicial review of 
the merits of the components to come to the conclusion, we are then 
denying all the facts to be on the table when these things are being 
considered.

  I would just like to say to my colleague, I am not impugning his 
intention. I am pointing out the fault of his strategy when it comes 
down to this, that the fact is that we do have a judicial system that 
is part of the environmental strategies of this country. It has always 
been, right from the beginning.
  Without that review you will then be saying that one group of 
environmental strategy will have judicial muscle throughout the entire 
process and one part from now on will not be allowed to flex that 
muscle, will not have access to that.
  Mr. ROEMER. Mr. Chairman, will the gentleman further yield?
  Mr. BILBRAY. I yield to the gentleman from Indiana.
  Mr. ROEMER. Mr. Chairman, is the gentleman then saying, in terms of 
evidence, did a certain agency read a scientific review article; were 
the laboratories in sufficient cleanliness or shape for this rule to be 
promulgated?
  Are we really trying to open up this kind of minutiae for judicial 
review of the evidence put together in the final rulemaking? We are 
going to see an explosion of litigation.
  The CHAIRMAN. The time of the gentleman from California [Mr. Bilbray] 
has expired.
  (By unanimous consent, Mr. Bilbray was allowed to proceed for 1 
additional minute.)
  Mr. BILBRAY. Mr. Chairman, what we are saying is if and when those 
details are considered, they should be considered to see if that is 
minutiae that would have determined or could determine fact from 
fantasy.
  If the gentleman is scared of judicial review looking at that fact or 
fantasy, then please understand that every other environmental law that 
we have on the books goes through the same process in the courts one 
way or the other. The trouble is it does not look at the cost-
effectiveness, it just looks at how the process was followed going 
towards the execution of the law.
  What has happened now is we are trying to add this reasonable clause 
in, that it is a mandate that Government not only try to do something, 
it tries to do it intelligently. That is all we are asking.
  Mr. OLVER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise to support the Boehlert-Roemer amendment, and to 
assert in the strongest possible terms that this is not an attempt to 
gut the bill. It is not the intent to gut the bill.
  Mr. Chairman, I think this issue is really very simple: Do we want 
more lawyers and more litigation at every state of the creation of 
Federal regulations, or do we want better science involved in our risk 
assessment program.
  I am one of that half a handful of physical scientists among this 
membership, and I can tell the Members that scientists are really not 
meant to be exhibit A in a court battle as to what the precise level is 
at which a given chemical may cause cancer, chemical or any substance 
may cause cancer. Science is not capable of telling what that level is.
  One of the purposes of this bill, I think, is to point out that there 
are uncertainties over what the exact risks of a given substance or 
activity may be. In fact, Dr. Graham, from the Harvard Center for Risk 
Analysis, while he was testifying in favor of this bill, nevertheless 
said, and I quote, ``We are not able to validate or know for sure 
whether or not the prediction of the model in fact proved to be 
correct.''
  Even after the fact, we cannot know the right answer for a given 
cost-benefit analysis.
  Mr. Chairman, with the bill without the amendment offered by the 
gentleman from Indiana [Mr. Roemer] and the gentleman from New York 
[Mr. Boehlert] what we would have, on court battles on cost-benefit 
analysis and risk assessments, and we would have thousands of those 
court battles, both sides are going to be able to find legitimate 
scientists, perhaps armies of them, who are willing to contest the 
validity of a single cost-benefit analysis.
  By encouraging the judicial review of every one of these cost-benefit 
analyses, this bill makes the court the final arbiter of disagreements 
within the scientific community, while the Roemer-Boehlert amendment 
brings a measure of sanity by saying, Yes, the courts will review the 
entire, the final, the whole record, but should not get into the 
minutiae of the scientific debates involved in the risk assessment and 
the cost-benefit analysis.
  Mr. Chairman, I do not believe that this amendment weakens the bill. 
In fact, I would assert it does not weaken the bill. Lawsuits under the 
bill can just as well increase regulation as to decrease it, and 
certainly colleagues from California would know that it was not the EPA 
that decided to impose the Clean Air Act, the Federal implementation 
plan in that State.
  EPA was forced to do so as a result of a review in Federal court by 
environmental organizations, and there are going to be a great many 
public interest groups willing to sue individuals, public interest 
groups willing to sue the Federal Government, to require implementation 
of even stronger regulations.
  What we are going to end up with, Mr. Chairman, is a great deal of 
expenditure of time and money and energy, and to what purpose? Who will 
be better off for spending all of that money on the individual points 
in the final regulation, in the final rule that is being made? 
Certainly not Americans who want to see reasonable cleanups without 
endless wrangling.
  Mr. Chairman, I do not think industry will benefit, since they will 
lack any ability to rely on agency decisions and plans for the impact 
of regulations that are subject to incessant court challenges and court 
reviews.
  I submit, Mr. Chairman, that the only beneficiaries are really going 
to be the lawyers, the lawyers on both sides of these issues, who are 
surely going to be the beneficiaries if we do not adopt the Boehlert-
Roemer amendment.
  Mr. Chairman, let us limit the fun that the lawyers have in this 
process and support the Roemer-Boehlert amendment.
  Mrs. MORELLA. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in support of the Roemer-Boehlert amendment. 
H.R. 1022 contains new, expansive language on court review which was 
actually not in the Committee on Science markup. [[Page H2330]] 
  This language would direct the courts to examine the scientific basis 
of the risk assessment. They would have to follow section 104 and 105, 
which would hold the rules unlawful if they did not do that.
  Mr. Chairman, the courts, I believe, lack the expertise. They are not 
scientific experts. They lack the expertise; they lack the time; they 
lack the interest, also, to do this for hundreds of regulations which 
would come before them.
  Mr. Chairman, in the Committee on Science markup, the gentleman from 
Pennsylvania [Mr. Walker] promoted the sort of one-bite-at-the-apple 
concept, and saying that the Administrative Procedures Act would apply. 
The Roemer-Boehlert amendment I think would make this the case 
explicitly, that only final action is reviewable.
  Therefore, Mr. Chairman, I rise in support of the amendment.
  Mr. WALKER. Mr. Chairman, will the gentlewoman yield?
  Mrs. MORELLA. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. Mr. Chairman, there is no difference in the bill than 
what we did in the committee. We have expanded the language to some 
extent, simply to spell out what we were doing in terms of the 
Administrative Procedures Act, but we are doing exactly what the 
Administrative Procedures Act now requires agencies to do under the 
bill, so I would say to the gentlewoman that I worked very hard to 
protect the Committee on Science's position with regard to judicial 
review.
  I think we have done that. I think the Committee on Commerce and the 
Committee on Science are very much in agreement on this.
  Mr. Chairman, I simply would not want it on the record that what we 
have done here is in any way different from what the Committee on 
Science decided to do. That is not the case.
  Mrs. MORELLA. Mr. Chairman, the gentleman did a great job in 
committee. My understanding is, however, that what we are saying is 
that the Administrative Procedures Act would apply, would be lawful, 
unless there are arbitrary and capricious, unlawful statements that 
occur.
  Right now in the bill the agency would have to prove with substantial 
evidence that the activity was environmentally risky.
  Mr. WALKER. If the gentlewoman will continue to yield, substantial 
evidence is in the Administrative Procedures Act.
  Mrs. MORELLA. Yes, arbitrary and capricious.
  Mr. WALKER. If the gentlewoman will continue to yield, if I 
understand the gentlewoman, Mr. Chairman, what she is objecting to is 
if the agency takes arbitrary and capricious action, she does not 
believe that that should be subject to somebody's review?
  Mrs. MORELLA. Mr. Chairman, that should be subject to review.
  Mr. WALKER. Mr. Chairman, if the gentlewoman will yield further, the 
Roemer amendment prevents that. It says specifically--and I will read, 
``* * * any alleged failure to comply with this Act, may not be used as 
a grounds for affecting or invalidating such agency action''--it does 
not matter how egregious it is.
  The Roemer amendment wipes it out. The Roemer amendment says you 
cannot do it.

                              {time}  1300

  Mr. BOEHLERT. Will the gentlewoman yield?
  Mrs. MORELLA. I believe it relies on the APA. I yield to the 
gentleman from New York, one of the sponsors.
  Mr. BOEHLERT. We have got the Administrative Procedures Act. We know 
that. That is the vehicle to challenge any final rulemaking, and we 
have got the arbitrary and capricious standard. What this would do is 
subject the whole risk assessment process to judicial review, which 
means we would be tied up--talk about the full employment act for 
lawyers, we would be tied up in courts forevermore at a cost of 
millions and millions and millions of dollars for everybody involved. 
That is why we so strongly object to it. I thank the gentlewoman for 
yielding.
  Mrs. MORELLA. Already over $100 million is going to be exhaustively 
peer-reviewed. So we certainly, I think, need the Roemer-Boehlert 
amendment.
  Mr. WALKER. Mr. Chairman, will the gentlewoman yield again?
  Mrs. MORELLA. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. One of the problems is, what we have just heard from 
everybody is they do not want the Administrative Procedures Act to 
apply to this act. They want the Administrative Procedures Act to be 
out there applying to other things, but they do not want the 
Administrative Procedures Act to apply to this act.
  Mrs. MORELLA. The final action.
  Mr. WALKER. The standard we have set is a standard which is exactly 
similar to the Administrative Procedures Act.
  Mr. BOEHLERT. Mr. Chairman, if the gentlewoman will yield further, 
what we want is we want the Administrative Procedures Act to apply to 
the final rule. We want to have a system where a final rule which is 
wacko, which does not make any sense, does not pass the commonsense 
test, we want to have a way to challenge that.
  But we do not want to have a way--all through this risk assessment 
process, if an agency comes up with a rule that makes sense, that 
addresses public health and public concerns, we do not want to be able 
to throw out that rule because somewhere along the process somebody did 
not fill out a form on page 12, line 3, section 2.
  The CHAIRMAN. The time of the gentlewoman from Maryland [Mrs. 
Morella] has expired.
  (At the request of Mr. Walker and by unanimous consent, Mrs. Morella 
was allowed to proceed for 2 additional minutes.)
  Mrs. MORELLA. I continue to yield to the gentleman from Pennsylvania.
  Mr. WALKER. The fact is that the language in the bill says 
substantially comply so that we can deal with the problem, but the 
gentleman seems to be ignoring the language of his own amendment.
  I simply would point out that the language within the Roemer 
amendment says any alleged failure to comply with this act may not be 
used as grounds for affecting or invalidating the agency action.
  You cannot even get to where the gentleman says he wants to be under 
the amendment that you have before us.
  Mr. ROEMER. Mr. Chairman, will the gentlewoman yield?
  Mrs. MORELLA. I yield to the gentleman from Indiana.
  Mr. ROEMER. It has been said over and over and over again, there is 
nothing in the Roemer-Boehlert amendment that would erode the 
Administrative Procedures Act. If that is passed and put into effect 
and we try to mitigate the litigation that is going to simply explode 
as a result of this new expansion under judicial review, there is no 
risk to this doing any kind of threat to the Administrative Procedures 
Act, and you still have the ability of OMB, peer review panels, and a 
host of other sunshine to be shone upon the regulations in the final 
action.
  Mr. CRAPO. Mr. Chairman, I move to strike the requisite number of 
words, and I rise in opposition to the amendment.
  Mr. Chairman, I think it is important that we clear up some of the 
argument that is being made here today, and perhaps we ought to start 
by reading the amendment, itself. I understand the reading of the 
amendment was suspended earlier.
  But if we want to find our whether this amendment eliminates judicial 
review entirely, whether this amendment basically guts the bill, let's 
read the amendment.
  It says, ``Nothing in this act creates any right to judicial or 
administrative review, nor creates any right or benefit, substantive or 
procedural, enforceable at law or equity by a party against the United 
States, its agencies or instrumentalities, its officers or employees, 
or any other person.''
  It goes on to say, ``If an agency action is subject to judicial or 
administrative review under any other provision of law, the adequacy of 
any certification or other document prepared pursuant to this Act and 
any alleged failure to comply with this Act may not be used as grounds 
for affecting or invalidating such agency action.''
  I do not know how you can more clearly state that you are saying we 
are passing this bill but it cannot be [[Page H2331]] enforced, it 
creates no rights for judicial review, and if there does happen to be 
judicial review under some other law, nothing in this act shall give 
anybody any rights for any protection under the very provisions which 
we are putting into effect.
  The fact is that this statute is critical. It is a process that 
America has needed badly to require our administrative agencies to 
review the effectiveness of their conduct. They must assess the risk 
which they are addressing, assess the cost of meeting that risk in 
their regulation, and determine whether the cost is justified by the 
benefit that is intended to be gained.
  If we cannot put that into law and then require that the agencies 
meet that test when they are promulgating regulation, then we are truly 
fooling the American people when we tell them that we are trying to 
somehow bring the agencies under control in the rulemaking process.
  If that is not enough, the amendment goes on to say that it strikes 
the substantial evidence standard in the judicial review that this act 
contains.
  Let's clarify what we are talking about here. If we do not have the 
substantial evidence standard in this legislation, that means that when 
there is judicial review, and, by the way, I will back up a minute.
  It has been argued that we do not want to open up the opportunity for 
the courts to look at the entire administrative record and see what has 
gone on.
  Ladies and gentlemen, that is exactly what happens right now, under 
the administrative review that is given to each rule as it is reviewed 
under the previous statutes that authorized those rules.
  What we are saying is that in final agency action, not at each stage 
but in final agency action, when the rule is already being reviewed, 
when the entire administrative record is already being reviewed, it 
must also be reviewed for purposes of cost-benefit analysis.
  We are going further to say that the standard of review shall be 
substantial evidence. The court must look to see whether the agency 
acting had substantial evidence to document its claim that there was or 
was not a cost-benefit to the rule which it is enforcing.
  What this amendment seeks to do is to make it so the agency can get 
by with whatever it wants if it can simply meet an arbitrary and 
capricious standard.
  That means that all the court has to do is to say that there was a 
little slim piece of evidence in this record that justified what the 
agency wanted to do and so it was not arbitrary or it was not 
capricious, but it does not have to look further to see whether the 
weight of the evidence was on one side or the other.
  There is already going to be the administrative review of these 
agency rules under the Administrative Procedures Act which governs the 
statute which generate the rules themselves. What this statute does is 
say that when that review takes place, then there must be 
administrative review also of the cost-benefit analysis and that cost-
benefit analysis must be justified by substantial evidence in the 
record that is already under review.
  That is eminently reasonable, and all you have to do is read the 
words in this amendment to see that it is clearly a killing amendment. 
It is saying, ``We've got a right here, we are creating a great statute 
that allows us to have cost-benefit analysis, but we don't want any 
agency to have to be forced to follow it, we
 don't want any person in America to have any right created under this 
statute to have the agency follow this legislation, and we want to be 
darned sure that it is not enforceable if anybody goes to court.''

  Last, there has been the argument made here that this is going to 
generate mounds and mounds of additional litigation across the country. 
Again, this legislation authorizes judicial review only when there is 
final agency action under a rulemaking which is already under way under 
a previous statute.
  That means that there is already going to be agency review under each 
review required by this statute. It is not going to increase 
litigation.
  Mr. WALKER. Mr. Chairman, I move to strike the requisite number of 
words, and I rise in opposition to the amendment.
  Mr. Chairman, this is the ultimate old order amendment. This is an 
attempt to step back to the idea that big government has solutions to 
all of our problems and if we would only listen to big government, big 
government will always tell us the right things to do.
  This is an amendment by people who do not want to see middle-class 
Americans use the law against the Government but are perfectly happy to 
see the Government use the law against middle-class Americans. That is 
exactly the effect of adopting the Roemer amendment.
  You adopt the Roemer amendment, you say the lawyers of the Government 
can go out and pound the middle-class Americans all they want, but 
middle-class Americans are not allowed to in any way use the law to 
protect themselves against Government. I think that is the reverse of 
what we should be doing.
  First of all, let me tell you, anyone who tells you that they are for 
risk assessment and they are for cost-benefit analysis and then 
supports this amendment is trying to make a fool of you. There is no 
way that you can say that you are for risk assessment and you are for 
doing all these things but, ``Oh, by the way, let's not make it 
enforceable.''
  Because the ultimate effect of this amendment is to say, ``Let's not 
have any enforcement of it.''
  To suggest that judicial review is being able to take it to OMB or 
being able to take it to the Congress, that is not judicial review. It 
does not even fit the title. All that says is that you can take it back 
into the political establishment in hopes that the politicians will 
always be too nervous to do anything that is real.
  What we have done here is we have tracked the Administrative 
Procedures Act, we know what the effect of this would be, and we do not 
believe that there is any way here of exploding litigation. That is not 
what we are seeking to do at all. But we do believe that there needs to 
be some kind of assurance that when agencies are doing the procedures 
necessary for risk assessment and cost-benefit analysis, they in fact 
do what they are supposed to do under the law.
  This idea that minor flaws in the process will bring about major 
litigation is just absolutely clearly wrong. The proponents of this 
amendment have not bothered to read what is under the judicial review 
section on page 34 of the bill, because what it says is that the 
documents, if they do not substantially comply, then the fact is that 
there is no judicial review. We have a substantial compliance test 
under the bill.
  This idea that we are going to explode a whole bunch of litigation on 
minor points, it is completely dealt with. No minor discrepancies are 
in fact going to be the cause for litigation.
  I would also go back to pointing out that the legislative language 
that the gentleman from Indiana and the gentleman from New York bring 
us here, maybe it does not do what they intended it to do, but the fact 
is that it is misdrafted and it is a bad amendment.
  Because if in fact they are clear in what they are saying here on the 
floor, their amendment is specifically opposite of that. Their 
amendment is meant, by words, to wipe out any chance whatsoever to have 
even the most egregious procedural flaw nonreviewable.
  The agency can do anything they want. They can
   disobey the law, they can completely set the law aside, they can go 
ahead and do anything they want, and under the language of your 
amendment, what you say is that that cannot be used as a grounds for 
affecting or invalidating such agency action.

  I cannot believe that you are standing up saying you are for risk 
assessment and then offering an amendment that says that you can do all 
these things in an agency and so on, you can violate the law in any way 
you want, and nobody can ask you about it. Nobody can review it. Nobody 
can change it.
  ``Go ahead, bureaucrats. Do your thing. Whatever it is you 
bureaucrats want to do, it's OK with us. It's fine. We love it. Just 
continue to regulate like you've been regulating. Continue 
[[Page H2332]] to pound America the way you've been pounding America. 
Continue to wipe out the small businessmen the way you've been wiping 
out the small businessmen because they shouldn't have any rights under 
this act at all.''
  If that is what you want to do, your language certainly accomplishes 
it.
  I would suggest, also, that the gentleman from New York told us that 
if H.R. 9 had been in effect, we would not be able to do the things 
that we have done in the past such as the Clean Air Act. That is 
specifically refuted by John D. Graham who is director of the Center 
for Risk Analysis at Harvard School of Public Health. He makes a 
statement in this morning's newspaper indicating that both the air bag 
standard for automobiles and the phaseout of lead in gasoline, each of 
which transpired during Republican administrations, involved 
substantial uncertainty yet both were approved after cost-benefit 
analysis.
  The fact is that the standards under this bill would have been used 
in those instances and it would have resulted in regulation.
  Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?
  Mr. WALKER. I yield to the gentleman from New York.
  Mr. BOEHLERT. I would point out that with lead particularly----
  The CHAIRMAN. The time of the gentleman from Pennsylvania [Mr. 
Walker] has expired.
  (At the request of Mr. Boehlert and by unanimous consent, Mr. Walker 
was allowed to proceed for 3 additional minutes.)
  Mr. WALKER. I continue to yield to the gentleman from New York.
  Mr. BOEHLERT. I would suggest that the substantial evidence test 
would not have been passed and that is why we would have had the 
problem today with lead in gasoline, for example.
  The substantial evidence did not come until after we had the test to 
prove the point.
  Mr. WALKER. Substantial compliance is in the legislation we have 
before us.
  Mr. BOEHLERT. The substantial evidence test is, yes, but the 
substantial evidence test was not applicable 25 years ago and had this 
legislation that you are proposing right now been applicable 25 years 
ago, we would not have had that standard.
  Mr. WALKER. We have substantial compliance in the bill that is before 
you. That is exactly my point.
  Under the bill that is before us, we have substantial compliance in 
here which is exactly what the gentleman is suggesting.
  Mr. BOEHLERT. But what I point out to the gentleman is this. That we 
are after the final rule. If the final rule does not pass the 
commonsense test, there is a way to do with it under the Administrative 
Procedures Act.

                              {time}  1315

  What the gentleman is suggesting is all during the risk assessment 
process the lawyers would just line up one behind the other and 
challenge everything that happens during the risk assessment process.
  Mr. WALKER. The gentleman is specifically wrong. If he goes and 
checks he will find out that ours applies to the final agency action. 
That is where our judicial review takes place, is with final agency 
action as well. It does not allow judicial review at each phase along 
the way; it simply says there is review possible on the final agency 
action.
  Read the amendment; read what is the judicial review in the bill.
  Mr. BOEHLERT. That is where we are, and the gentleman makes my point, 
and he makes it in a very glib way, I might add. The fact of the matter 
is the gentleman wants to challenge the risk assessment process every 
step of the way. We are saying we will challenge the final rule if it 
does not make sense, it is not cost-effective, and if it does not 
protect women, infants and children, we will check that.
  Mr. WALKER. The gentleman is specifically wrong. The gentleman is 
absolutely and specifically wrong. There are no challenges all the way 
along the way. Under our amendment it is involved with the final agency 
rule. The final agency rule is what we try to do.
  The gentleman whips out even the ability to even review the final 
agency rule. The gentleman from Indiana is shaking his head. Read your 
amendment, read your amendment. It says in the legislation, failure to 
comply with this Act ``may not be used as grounds for affecting or 
invalidating such agency action.'' That is the final rules the 
gentleman is talking about. You cannot invalidate it even if the agency 
has absolutely disobeyed the rule. The gentleman is knocking out the 
ability to do this thing, so you have totally obliterated the ability 
for judicial review.
  Do not tell us that you have not done it; it is specific to your 
language.
  Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?
  Mr. WALKER. I am happy to yield to the gentleman from New York.
  Mr. BOEHLERT. Mr. Chairman, we are talking about the final rule on 
the risk assessment, not the regulation, which is what we want to 
challenge, the final regulation if it does not pass the common-sense 
test.
  Mr. WALKER. But the gentleman should read his own amendment.
  The CHAIRMAN. The time of the gentleman from Pennsylvania [Mr. 
Walker] has again expired.
  (At the request of Mr. Boehlert and by unanimous consent, Mr. Walker 
was allowed to proceed for 2 additional minutes.)
  Mr. WALKER. Mr. Chairman, let me read to the gentleman his own bill. 
His own amendment says, ``If an agency action is subject to judicial or 
administrative review under any other provision of law, the adequacy of 
any certification or other document prepared pursuant to this Act, and 
any alleged failure to comply with this Act, may not be used as grounds 
for affecting or invalidating such agency action.'' That is exactly the 
opposite of what the gentleman just told us.
  Mr. BOEHLERT. Mr. Chairman, there again we both agree we are reading 
the same thing, but if the gentleman says what I am saying is wrong 
often enough, that does not mean he is right. The fact of the matter is 
we want final review of the regulation, not the risk assessment.
  Mr. WALKER. I am saying to the gentleman from New York I am simply 
reading back his own words to him that he would commit to law.
  Mr. BOEHLERT. I agree 100 percent, the words are exactly as the 
gentleman read them, but his interpretation is wrong.
  Mr. WALKER. My interpretation is not wrong because I will tell the 
gentleman the bottom line is what this would do. The bottom line is 
what this would do is it would assure that we would have even weaker 
laws than we do right now. The fact is because of what the gentleman is 
going to do here he would wipe out the ability that people now have to 
take action. And so, he is invalidating law. What he is saying is with 
regard to this particular compliance law, we simply will not allow the 
public in, that the agencies can have all of the lawyers that they want 
on their side but the public cannot have any lawyers on their side; the 
people cannot bring actions against the Government, but the Government 
can continue to bring action against the people. That is what the 
amendment is all about.
  Mr. CRAPO. Mr. Chairman, will the gentleman yield?
  Mr. WALKER. I yield to the gentleman from Idaho.
  Mr. CRAPO. Mr. Chairman, I think it is important to point out, as the 
chairman has pointed out, that the regulatory action we were talking 
about in this bill occurs only when the final rule has been promulgated 
and the rule is already under review. I read from the judicial review 
portion of this statute. It says, ``The court with jurisdiction to 
review the final agency action under the statute granting the agency 
authority to act.'' That is the authority to issue the rule, ``shall 
have jurisdiction to review, at the same time, the agency's compliance 
with the requirements of this Act.''
  The CHAIRMAN. The time of the gentleman from Pennsylvania [Mr. 
Walker] has again expired.
  Mr. CRAPO. Mr. Chairman, I ask unanimous consent the gentleman from 
Pennsylvania be allowed to proceed for 2 additional minutes.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Idaho?
  Mr. BROWN of California. Mr. Chairman, I object. [[Page H2333]] 
  The CHAIRMAN. Objection is heard by the gentleman from California.
  Mr. BROWN of California. I have been sorely tempted by the 
inaccuracies that have been forthcoming. But I withdraw my objection 
for the time being.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Idaho?
  There was no objection.
  The CHAIRMAN. The gentleman from Pennsylvania is recognized for 2 
additional minutes.
  Mr. CRAPO. Mr. Chairman, if the gentleman will continue to yield, the 
legislation we are debating goes further to say that ``When a 
significant risk assessment document or characterization document 
subject to title I is part of the administrative record in a final 
agency action, in addition to any other matters that the court may 
consider in deciding whether the agency's action was lawful, the court 
shall consider the agency action unlawful if such significant risk 
assessment document or significant risk characterization document does 
not substantially comply with the requirements of this section.''
  The point is when agencies promulgate a rule it does so under 
statutory authority. When it has finalized its statutory authority and 
has promulgated a rule, then and only then does this allow the 
requirements of this statute to be brought in under
 administrative review. It does not allow a piece-by-piece 
administrative review and does not increase litigations by one case 
over what is already the situation in current law.

  Mr. WALKER. The gentleman is absolutely correct.
  Mr. BOEHLERT. Mr. Chairman, will the gentleman from Pennsylvania 
yield?
  Mr. WALKER. I am happy to yield to the gentleman from New York.
  Mr. BOEHLERT. Mr. Chairman, let me stress, I want to add this for 
about the 16th time, the rule is reviewable, but the risk assessment 
process is not. that is what we want to have accomplished as a result 
of what we are doing today.
  Mr. WALKER. But the gentleman is not tracking his own language in 
that. We want in fact the rule and that is what we want to do. But the 
agency cannot, the agency is not allowed under our procedure to totally 
violate all of the procedures. Under what the gentleman is suggesting 
they are allowed to violate all of their procedures and, oh, by the 
way, then you can have a review.
  That is not possible. That makes no sense, and I would suggest to the 
gentleman that that is exactly where his amendment takes us.
  So, I would simply point out that under the Administrative Procedures 
Act this is something which would be backtracked on.
  Mr. BROWN of California. Mr. Chairman, I move to strike the requisite 
number of words.
  Mr. Chairman, I am reminded of an old legal adage which goes 
something like this: If the facts are on your side, you pound on the 
facts; if the law is on your side, you pound on the law; if neither are 
on your side, you pound on the table. And I sense an awful lot of 
pounding on the table going on here.
  I agree with the gentleman from New York [Mr. Boehlert] that the 
gentleman from Pennsylvania [Mr. Walker] is extremely glib in his 
exposition and he is also extremely emphatic and does a lot of pounding 
on the table.
  I would like to call all of my colleagues' attention to an article in 
the Post this morning which describes in great detail some of the 
aspects of this legislation, and the point that it particularly makes 
is that a great deal of the risk assessment, risk characterization, 
cost-benefit analysis is very tenuous in its scientific basis. It is 
difficult and in some cases impossible to characterize risk, to assess 
risk or to make cost-benefit analyses that come anywhere close to the 
mark. You can be a thousand percent off, and one reason that you do not 
want all of these processes, assessment characterization and cost-
benefit analysis subjected to judicial review is exactly that. You can 
tie up the process for ages on something that there is no answer to. 
And it would be extremely undesirable to have that happen.
  It is the intention of this amendment to preclude that kind of an 
effect from happening. It is perfectly okay to review the adequacy of 
these various processes at the time of the final rule, but I call to 
Members' attention the fact that the agency itself has the right to 
waive many of these things when it finds that there is no way of 
achieving it.
  For the court to be able to review the adequacy of something that 
could be and may have already been waived because there is no way to 
achieve it is just a ridiculous waste of time.
  I do not want to belabor this. I think there has been adequate 
attention to it. But I am disturbed at the frequent repetition of 
nonfacts as horror stories.
  I had hand delivered to me on the floor a few minutes ago a letter 
from the Administrator of the EPA which states her concern over some of 
the misstatements made yesterday. I am not going to read it. I will 
include the letter and the examples in the Record.
  In addition to that, I have another half a dozen which I have 
personally investigated, and I attempted yesterday to respond to some 
of the more obvious ones on the floor, but was unable to cover them. I 
have another half dozen, and I will place those in the Record after the 
Administrator's letter outlining the ones that she was concerned about.
  I urge upon all of my colleagues not to pound on the table quite so 
much, and to be a little bit more assured of the facts as we proceed 
with what has otherwise been what I consider to be a very helpful 
debate.
  The material referred to follows:

         United States Environmental Protection Agency,
                                Washington, DC, February 28, 1995.
     Hon. John D. Dingell,
     Hon. George E. Brown Jr.,
     House of Representatives,
     Washington, DC.
       Dear Congressmen Dingell and Brown: I am concerned that 
     during the course of the Floor debate on H.R. 1022, The Risk 
     Assessment and Cost-Benefit Act of 1995, there have been 
     mischaracterizations of policies and actions taken by the 
     Environmental Protection Agency. I am writing in an effort to 
     ensure that the debate before Congress is based on full 
     facts. I will address several of the issues that have been 
     used in this debate.
       First, I would like to point out that I have already 
     changed the way EPA does business. EPA has instituted major 
     reforms in its rulemaking processes and programs. Since 
     coming to EPA, I have worked diligently to instill common 
     sense into the Agency's efforts to protect public health and 
     the environment, by moving beyond one-size-fits-all 
     regulatory approaches. This commitment has been translated to 
     concrete action by our Common Sense Initiative. It addresses 
     comprehensively a new, more cost effective framework for six 
     leading industrial sectors. A further demonstration of this 
     change is our Brownfields effort to turn contaminated urban 
     areas into productive redevelopment sites. The very practical 
     approach that we've taken in resolving implementation issues 
     in the Clean Air Act also demonstrates the new EPA. These 
     administrative solutions we have developed in partnerships 
     with State and local governments for implementing the Clean 
     Air Act show our success.
       I am committed to flexibility and consensus--driven by firm 
     public health protection goals, but flexible means for 
     achieving them. EPA has made major improvements to its 
     science program through directing its research program toward 
     risk reduction and new policies to assure peer review of 
     science used in decision making. And the Clinton 
     Administration has made it clear we would support risk 
     assessment legislation that is fair, effective and 
     affordable.
       Unfortunately the proponents of H.R. 1022 have not only 
     failed to recognize these improvements, but in floor debate 
     have put forth as the rationale for H.R. 1022 a series of 
     examples that purport to represent EPA's decision making 
     processes as severely flawed. In fact, these tales are 
     fraught with misinformation and sometime involve decisions 
     made over a decade ago--many are flatly wrong. Among the 
     numerous misstatements these proponents have made are:
       It was stated that EPA set a drinking water standard at 2-3 
     parts per billion (ppb) of arsenic in drinking water, while 
     shrimp has a level of 30 ppb.
       This is not the standard that EPA set. EPA set a standard 
     for arsenic in drinking water of 50 ppb. And the arsenic in 
     shrimp is not scientifically comparable to that in drinking 
     water. The arsenic in drinking water is toxic--the type in 
     shrimp is not.
       A ``Dear Colleague'' letter stated that someone would need 
     to drink 38 bathtubs of water to experience a risk from 
     atrazine in drinking water.
       This is inaccurate. Even at the standard set by the EPA, 
     drinking just two liters of water per day results in a one in 
     100,000 cancer risk, which is equivalent to a projected 2600 
     additional cancers. Not only are people exposed to atrazine 
     through drinking water, [[Page H2334]] but through ingestion 
     of pesticide residues as well, thereby potentially increasing 
     the risks of exposure. In addition, two other pesticides 
     found on food and in drinking water may cause risks to 
     farmworkers and consumers via the same mechanism, and their 
     risks should be considered collectively.
       It was said on the floor that EPA requires the City of 
     Anchorage, because its wastewater is already so clean, to add 
     fish wastes so that its sewerage can achieve sufficient 
     reductions to meet Clean Water Act requirements.
       This is incorrect. EPA has never required Anchorage to do 
     this. Anchorage already has a lower reduction requirement 
     because it has been granted a waiver from the stricter 
     reduction limits. Anchorage now successfully meets this 
     standard with existing equipment and would be required to add 
     extra capacity only if it faces an increase in population, as 
     would any city. Anchorage chose to accept fish waste at the 
     request of fish processors because it is a more cost 
     effective way to manage these wastes.
       It was alleged that EPA regulates ``white out'' correction 
     fluid and caused extensive record-keeping problems for a 
     small business in California as a result.
       This is wrong. EPA has never regulated ``white out''. The 
     State of California did require warning labels on products 
     that contain certain chemicals through a Proposition.
       Despite these inaccuracies, I am hopeful that the House 
     debate on risk can focus on our common goals. We are working 
     to be strong proponents of quality science and prioritizing 
     government resources toward the most significant public 
     health and environmental problems. Our concern is that this 
     legislation, in its current form, will undermine these 
     laudatory goals by elevating simplistic slogans to unworkable 
     public policy--a policy that will instead freeze science, 
     lead to tremendous regulatory gridlock, impulsively sweep 
     away carefully thought through health and environmental 
     frameworks, and empower the courts to resolve fundamental 
     public policy issues.
       I appreciate your efforts to focus discussions on H.R. 1022 
     on the significant issues this proposal presents.
           Sincerely,
                                                 Carol M. Browner,
     Administrator.
                                                                    ____

               Response to Congressman Walker on Asbestos

       Congressman Walker alleged that children have a 1 in 2 and 
     one half million lifetime cancer risk from asbestos. He 
     further alleged that EPA required removal of asbestos from 
     schools and that it would have made more common sense to 
     allow management in place.
       The Congressman is misinformed: EPA did take a risk based 
     approach to the problem of asbestos in schools.
       Lets look at the history of this rule. EPA's approach to 
     asbestos in schools has evolved with the science:
       As early as 1982 EPA, required removal of friable asbestos, 
     or asbestos that is crumbling and therefore releasing fibers 
     that could be breathed into children's lung where they could 
     cause cancer. The Agency offered other approaches like 
     encapsulation for intact asbestos.
       In 1985 EPA provided updated guidance (the ``purple book'') 
     which placed more emphasis on ``management in place,'' but 
     also recommended removal.
       From 1987-1990 EPA conducted new studies based on a new 
     method (electron microsposy) for monitoring asbestos before, 
     during, and after removal.
       As the science improved, EPA's approach evolved:
       In 1990, based on EPA's studies, EPA released new guidance 
     (``purple book'') which recommended management in place 
     whenever possible and removal only to prevent exposure in 
     building renovation and remodeling (the NESHAP regulation).
       In 1992 EPA completed a study of the asbestos-in-schools 
     bill (AHERA). The vast majority of asbestos actions (85%) 
     involved management in place, not removal.
                                                                    ____

 Response to Allegation from Congress- man Bilirakis on MSWLF Benefits

       I would like to respond to Congressman Bilirakis's 
     allegation that the recent revised criteria for Municipal 
     Solid Waste Landfills cost $19.1 trillion per life saved. 
     This is an unsound manipulation of EPA's analysis, presents 
     an exaggerated and one sided view of the benefits of the 
     regulation, and is a good example of precisely why the use of 
     net benefits in this way is be misleading.
       First, the cost per cancer case avoided was inflated by 
     using economic maneuvering to minimize lives saved in the 
     future by discounting. If you refer to EPA's analysis, you'll 
     see that for one set of landfills (which would provide 
     disposal to our nation for 30 years), EPA estimated that 2 
     cancer cases would be avoided at a present value cost of $5.7 
     trillion.
       Second, and more importantly, Bilirakas's estimate 
     completely disregards other benefits associated with the 
     rule. EPA identified a very important other benefit from the 
     Municipal Landfill regulation: that of avoided permanent 
     contamination of one of our nation's precious natural 
     resources, i.e., groundwater. Even with EPA's conservative 
     cost estimates, which did not include remediation of 
     contaminated groundwater, but simply importing water from 
     another source, EPA estimated that without the regulation, US 
     taxpayers would spend a present value of $270 million to 
     import water to replace groundwater which had been 
     contaminated by one set of landfills.
                                                                    ____

Response to Congressman Longley on Maine Inspection/Maintenance Program

       Rep. Longley asserted that EPA imposed a requirement for 
     motor vehicle inspection and maintenance (I/M) program for 
     Maine without conducting the required scientific studies and 
     in violation of the law.
       EPA in fact violated no laws relating to the imposition of 
     the I/M program in Maine. Maine is a part of the Northeast 
     Ozone Transport Region established by Sec. 184 of the Clean 
     Air Act. Congress determined in Sec. 184 that ozone in the 
     U.S. northeast is a regional, not a local, problem, and that 
     certain measures should be adopted throughout that region 
     regardless of the particular local air quality conditions.
       In particular, the Congress mandated that each metropolitan 
     area with a population greater than 100,000 adopt and 
     implement an enhanced I/M program. As with all other areas in 
     the region, EPA required Maine to adopt enhanced I/M for its 
     larger metropolitan areas.
                                                                    ____


 Response to Congressman Solomon's Allegation that EPA will shut down 
                      the Pulp and Paper Industry

       In debate on the House floor Congressman Solomon alleged 
     that EPA's rule to reduce dioxin emissions from the Pulp and 
     Paper Industry will shut down the industry because of the 
     high cost of complying with the rule.
       This is untrue:
       EPA proposed this rule in 1992. After reviewing the 
     extensive public comments, the EPA is now extensively 
     revising its original approach. The rule now regulates no one 
     because it has not yet been finalized. How can any one say 
     its shutting anyone down? In addition, EPA is listening to 
     the industry and working to resolve these problems before the 
     final rule comes out. I think that's a healthy sign of the 
     way rules should be developed: As the President said last 
     week: Consultation--not confrontation, as the increased 
     judicial review in this bill will cause.
       Just as the comment period envisions, the Agency has since, 
     for well over a year, pursued an extensive and exhaustive 
     process of consultation with all affected stakeholders, 
     including industry and environmentalists to respond to 
     substantial evidence presented to it of the need to change 
     the proposed rule.
       The pulp and paper industry, including the industry's trade 
     association and individual paper companies, have been active 
     and much-listened-to participants in these revisions.
       The proposed pulp and paper Cluster Rule is being 
     specifically revised in response and in recognition of the 
     many concerns, comments and factual data brought to the 
     Agency by numerous participants in this consultation process.
       This process of proposal, public comment and revision in 
     response to important data brought to regulatory agencies by 
     the outside participants is exactly the way the regulatory 
     process is supposed to work. To cite a proposal that is 
     likely to be dramatically different from the final product of 
     this process, as if that proposal was actually being imposed 
     on that regulated community as the final product, is a 
     grossly misleading characterization.
                                                                    ____

   Response to Congressman Bilirakis' Allegation Concerning Alar and 
                                 Apples

       In debate on the House floor, Congressman Bilirakis stated 
     that Alar was never shown to be carcinogenic in either mice 
     or rats, and that only UDMH, a breakdown product had ever 
     been shown to cause cancer. Furthermore, he stated that one 
     would have to drink 19,000 quarts of apple juice daily to be 
     at risk.
       This is mistaken:
       UDMH, a potent carcinogen, is formed from Alar both in the 
     fruit (apples), and when Alar is ingested by people. It is 
     formed in the body, and is carried by the blood stream 
     throughout the body, where it can wreak its toxic effects.
       It is only sensible that such highly toxic breakdown 
     products should be considered when assessing whether or not a 
     chemical can cause cancer in humans. Doing this is well 
     established scientifically, and is recognized as valid by 
     toxicologists, as well as by scientists from many other 
     disciplines.
       In the case of Alar and UDMH, it is not necessary to ingest 
     19,000 quarts of apple juice to increase the risk of cancer, 
     a much smaller amount was calculated to be risky. This is 
     particularly important, because it is young children who 
     often drink large quantities of apple juice, and whose young, 
     growing bodies, may be particularly sensitive.
       Clearly, we do not want ourselves or our children to be 
     exposed to doses of a chemical that have been shown to be 
     overtly toxic and capable of causing cancer. As a result, we 
     use scientifically accepted principles to extrapolate to 
     levels at which risk assessments indicate that the risk is 
     less.
       Finally, it should be pointed out that the economic impact 
     of the Alar crisis was caused not by an EPA regulation or 
     decision, but rather, by a public interest group publishing 
     its concerns about these exposures.
                                                                    ____

                                  [[Page H2335]]
                                  
 Response to Allegation from Congressman Bilirakis on Benefits of Wood 
                               Preserving

       I would like to respond to Congressman Bilirakis's 
     allegation that the wood preserving hazardous waste listing 
     resulted in a cost of $7 trillion per life saved. The 7 
     trillion dollar per statistical life associated with the wood 
     preserving listing is a perfect example the distortion and 
     misinformation that cost benefit analysis can impose on the 
     regulatory development process. EPA's estimates of the cost 
     effectiveness were nowhere near this amount--remember there 
     are many ways to calculate cost/benefit ratios and there is 
     no clear consensus on the proper method.
       What is of greatest concern is that the 7 trillion number 
     ignore noncancer health benefits which could include 
     avoidance of liver disease or birth defects. The 7 trillion 
     also ignore adverse water quality impacts on ecosystems such 
     as wetlands, rivers, and lakes that the agency determined 
     would be severely impacted if wood preserving wastes 
     continued to be uncontrolled.
       What is also of interest is that the Agency in developing 
     this rule was particularly concerned about small business 
     impacts; worked with the SBA; did extensive analysis of the 
     industry; and between proposal and final worked closely with 
     the wood preserving industry and others to carefully tailor 
     the regulation to achieve a sound environmental outcome with 
     minimal economic impact. In fact, most telling of EPAs work 
     in this regard was this rule stands as one of the few rules 
     promulgated under RCRA that the agency was not sued on! Cost 
     benefit outcomes are clearly no measure of and in fact often 
     misstate regulatory quality, environmental outcome, or 
     economic impact.
                                                                    ____

 Response to Rep. Salmon's Comments on Arizona's Automobile Inspection/
                          Maintenance Program

       Claim 1: States have no discretion in implementation of the 
     ``I/M 240'' auto inspection/maintenance program.
       Response: This is not true. States have a great deal of 
     flexibility and discretion in the design of auto inspection/
     maintenance programs.
       Arizona was not required to adopt the high-end I/M 240 
     program but chose to do so.
       Arizona chose I/M 240 because the State found the program 
     extremely cost-effective and preferable to putting tighter 
     controls on factories, and other stationary sources.
       I/M 240 controls pollution at $500/ton, where controls on 
     other sources cost $2000-10,000/ton.
       Claim 2: People had to wait in line 4-5 times as long.
       Response: This problem has gone away. Waiting lines were a 
     problem only during the first week of the program in 
     December. There are no long lines now.
       Claim 3: Program increased costs 4 times.
       Response: The old Arizona program cost consumers $6 per 
     year. The new program costs $24 every 2 years, or $12 per 
     year.
       Bottom line: The new program is more effective, more 
     convenient, less frequent, only $6 more per year, and clearly 
     preferable to putting more expensive controls on other 
     sources.

  Mr. ROEMER. Mr. Chairman, will the gentleman yield?
  Mr. BROWN of California. I yield to the gentleman from Indiana.
  Mr. ROEMER. Mr. Chairman, I would like to say we are all arguing back 
and forth as legislators and attorneys about our interpretation of this 
amendment. The gentleman from Pennsylvania [Mr. Walker] just cited John 
Graham, the director of the Center for Risk Analysis at Harvard School 
of Public Health, and I think he is a good referee. He just cited him 
saying good things about this legislation. Here is what Dr. Graham said 
in the Post this morning: ``I'm not too crazy about this idea of 
opening up all regulations to judicial challenge.''
  Now, that is somebody that the gentleman from Pennsylvania [Mr. 
Walker] cited. That is precisely what we are trying to do with this 
amendment, is not open up all of these things to judicial review, have 
one bite of the apple at the end of the process, just as the 
Administrative Procedures Act does right now. And I think the 
distinguished ranking member for yielding.
  Mr. ROHRABACHER. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to my colleague from Pennsylvania.
  Mr. WALKER. Mr. Chairman, I think that it is interesting to note that 
if we read Dr. Graham's statement, he says he is not too crazy about 
the idea of opening up all regulations to judicial challenge. The fact 
is we are not opening all of it up to judicial challenge. I think what 
he is probably referring to is all of the past regulations and so on. 
We are not doing that, this bill does not do that at all.
  Second, it seems somewhat interesting to me that we now have the 
argument that if we have no knowledge about things we ought to go ahead 
and regulate, but because we have no knowledge we ought not be able to 
do risk analysis and do the cost-benefit analysis; that the lack of 
knowledge should increase our ability to regulate, but should not 
increase our ability to review.
  That strikes me as exactly the opposite of what the public has been 
saying now for some time. They would like us to regulate on the basis 
of knowledge. And to have the argument on the floor that the lack of 
knowledge means that the regulations should go forward is to me the 
inverse of what we ought to be endorsing in the U.S. Congress.
  Mr. ROHRABACHER. Mr. Chairman, we should not lose sight of what this 
is all about. What has happened is that the American people over the 
last 10 years, and over the last 20 years, have seen that enormous 
power has been granted to unelected officials in Washington, DC. What 
we have seen is that Washington, DC, has absorbed and centralized 
enormous powers and it is not in the hands of elected officials, but 
instead in the hands of the bureaucracy, in the hands of people who 
never put themselves before the electorate.
  This is an attempt to try to readdress or to redress that issue, to 
bring some balance back to Washington, DC, to the democratic process, 
to respect the rights of our people who feel that they are being 
basically ordered around, that they are being driven out of business, 
that they are being damaged by the mandates of people who have never 
been elected.
  If a citizen believes that he or she is being hurt or suffering 
damage because an unelected official, someone in an agency has not 
followed the new rule that we are setting down which says they should 
be basing their decisions on good science, there should be peer review 
of the decisions, we should make sure
 that there is a risk assessment and that there is a cost-benefit 
analysis. If an agency is not following those rules, and one of our 
citizens feels that the decision that they have made is hurting them, 
we are just saying they should have redress.

                              {time}  1330

  This is the way citizens have protected their rights throughout our 
country's history. If the Government is not following the law, whether 
it is the bureaucracy or elected officials, our citizens have felt they 
could go to the courts to seek a solution to their problems to prevent 
themselves from being hurt and being damaged by an agency that is not 
following the rules as set down by the Congress. This makes all the 
sense in the world.
  Gutting this from the Republican proposal is a way to basically 
restore the power to the bureaucracy to do whatever they damn well want 
to do because they have got the best motives and the best intentions. 
Well, best of intentions do not cut it. The American people know what 
the best intentions of the bureaucracy are all about. The best of 
intentions of the bureaucracy are to say we have got to rip the 
asbestos out of the walls of our schools to protect our children, and 
find out that tens of billions of dollars have been wasted that should 
have gone to the education of our children instead of having gone and 
been spent by public officials with the best of intentions, directing 
our people to do exactly the opposite thing they should be doing.
  We expect a procedure to be followed. We expect there to be cost-
benefit, risk-benefit analysis. We expect there to be peer review. That 
is what is in the legislation, and we expect that if the unelected 
official, the bureaucracy, is not following the law as we are setting 
it down, the citizens of this country will have a right to appeal that 
through the judicial process. That is what this debate is all about.
  Mr. BOEHLERT. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to the gentleman from New York.
  Mr. BOEHLERT. Mr. Chairman, I want to say to the gentleman you have 
stated, I think very well, some of the same objectives that I share. 
Certainly I want peer review.
  The CHAIRMAN. The time of the gentleman from California [Mr. 
Rohrabacher] has expired.
  (At the request of Mr. Boehlert and by unanimous consent, Mr. 
[[Page H2336]] Rohrabacher was allowed to proceed for 2 additional 
minutes.)
  Mr. BOEHLERT. Mr. Chairman, if the gentleman will yield further, I 
want peer review. I am not sure I would want O.J. sitting on his own 
jury, for example, so we have some questions about that. There are a 
number of questions we have, but in the final analysis, we want what 
you want.
  But I am concerned. I am thinking of offering an amendment requiring 
a cost-benefit analysis on the entire bill, because I do not think 
anyone has the first clue on how much this is going to cost in terms of 
litigation.
  I am wondering if there is anyone, the gentleman or anyone advocating 
passage of this legislation as is, if anyone has an idea how much is 
this going to cost American industry, American families, in terms of 
dollars and cents.
  Mr. ROHRABACHER. Reclaiming my time to answer, we know how many 
hundreds of billions of dollars are being wasted right now. We do know 
in California, because of unreasonable regulation by unelected 
officials, hundreds of homes were burned down because, why, they were 
not permitted to clear the brush away from their homes because it might 
hurt the habitat of a few little birdies, and those birdies, by the 
way, flew away, and their homes were burned as well. We think that that 
type of regulation, we need a cost-benefit analysis of that regulation, 
and if, indeed, that cost-benefit analysis is not given by the agency, 
that the homeowner who might lose his home has a right to appeal this 
to the courts, and the fact is, by the way, in terms of O.J., we do 
expect every citizen in this country to be judged by his peers, and 
that includes maybe having people who are O.J. Simpsons or whoever it 
is, peers, to be able to be part of the decisionmaking process. That is 
what democracy is. That is what our Government has been all about.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. Mr. Chairman, the specter of the cost of this is often 
raised by people who simply do not want to do it. The fact is there is 
just as good a chance that we will, in fact, end up saving money, 
because we will have higher-quality legislation based upon good science 
and based upon a cost-benefit analysis before we do it. So you get 
higher quality regulation, and it costs you a little bit less, it costs 
you less money.
  The CHAIRMAN. The time of the gentleman from California [Mr. 
Rohrabacher] has again expired.
  (By unanimous consent, Mr. Rohrabacher was allowed to proceed for 2 
additional minutes.)
  Mr. GILCHREST. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to my friend, the gentleman from Maryland.
  Mr. GILCHREST. This is an extraordinary period of time where all of 
us are almost to the point of agreeing that regulations have been too 
onerous in the past.
  But the gentleman made a comment about people in California that were 
not able to get the brush away from their homes because of a rat that 
was placed under the Endangered species Act, and I have heard that 
argument before on the floor. It simply is not true. The Fish and 
Wildlife and the State game people worked with the people in the area 
that happened to be the most flammatory, most fire-prone area on the 
face of the Earth. They allowed them to clear the brush up to a point 
even sometimes 1,000 feet away from the house. The point is during that 
fire, a year or so ago, flaming cinders were flying at 80 miles an hour 
more that a mile away, so the argument you had to protect the 
endangered species in lieu of their houses burning down simply is not 
true.
  Mr. ROHRABACHER. Well, if I could just answer that by saying in the 
particular case you are talking about, that may or may not have been 
the case. You may be accurate in that sense.
  We have had lots of brushfires in California, and we are very aware 
of the nonsense that comes down from regulators in the name of 
protecting endangered species, maybe not in that particular case, but I 
will tell you there are numerous cases in the Laguna Beach fire, and I 
am not sure if that is the one you are referring to or not, the people 
who have had their homes burned down believed that a nonsensical 
rulemaking process by unelected officials caused them to lose their 
homes. We think there should be a judicial application of that.
  Mr. GILCHREST. That is the area where they could clear the brush. 
That is what I was referring to.
  Mr. ROHRABACHER. In fact, in Laguna Beach, we feel, the way I read 
it, is they could not.
  Mr. BILBRAY. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to the gentleman from California.
  Mr. BILBRAY. There has been a major problem in trying to clear and 
grub around residential areas. Now, the incidence of wind, homes were 
lost. That may be debatable. But the fact is there has been 
obstructionism to the protection of homes through the firebreaks, and 
the coastal sage shrub, because it has been identified as an endangered 
species habitat, is a major problem.
  Mr. ROHRABACHER. If people are going to lose their homes, they should 
be able to go to court to challenge those people making those 
decisions. That is what this debate is about.
  The CHAIRMAN. The time of the gentleman from California [Mr. 
Rohrabacher] has again expired.
  (At the request of Mr. Boehlert and by unanimous consent, Mr. 
Rohrabacher was allowed to proceed for 2 additional minutes.)
  Mr. BOEHLERT. If the gentleman will yield further, I have great 
regard for the gentleman. We serve on the committee together. We 
oftentimes agree. But it concerns me when we have stories, apocryphal 
stories, that are told. You know, I think President Reagan, and I love 
him dearly, is still searching the country for that welfare queen who 
was driving around in a Cadillac living high on the hog.
  Mr. ROHRABACHER. She was actually living in the bureaucracy.
  Mr. BOEHLERT. The story told is simply not so.
  The General Accounting Office concluded,

       The loss of homes during the California fire was not 
     related, not related to the prohibition of disking in areas 
     inhabited by the Stephens kangaroo rat.

  I can go on at great length, and it is more than we would care to 
hear about on that story.
  Mr. ROHRABACHER. The gentleman is talking about one fire at one time. 
We in California know there are lots of fires, and many of them have 
been attributed because people cannot clear the brush.
  Mr. BOEHLERT. I understand. It is very clever to sort of give a 
story. Everybody thinks we are just heartless if you are for the 
Roemer-Boehlert amendment, that you are against women, infants, and 
children and everything under the Sun. It simply is not so. We are for 
the American people. What we are trying to prevent is endless 
litigation.
  We want the ability to challenge rules that do not pass the 
commonsense test. But we do not want to challenge the process. Some 
bureaucrat screws up on a bad day and go in and challenge the whole 
rule simply because something happens during the risk-assessment 
process, that we do not find acceptable, and that is what we are 
saying.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. ROHRABACHER. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. There is nothing in the legislation as it is that says if 
some bureaucrat has a bad day that it is going to foul up the whole 
process, because again, if you read, unless there is substantial 
compliance and so on, that the requirements of section 104-105, it just 
does not apply.
  Mr. ROHRABACHER. The bureaucracy, basically there is a feeling out in 
America, that the bureaucracy people whom they do not elect are making 
decisions that in the end may impact on whether they will be able to 
feed their families, whether they can live in their home safely or not, 
and if we determine today, and that is what we are talking about, 
today, that they should be able to appeal to a court if those unelected 
officials are not doing their job as is laid out by elected officials.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Indiana [Mr. Roemer]. [[Page H2337]] 
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             recorded vote

  Mr. ROEMER. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 192, 
noes 231, not voting 11, as follows:

                             [Roll No. 177]

                               AYES--192

     Abercrombie
     Ackerman
     Baldacci
     Barcia
     Barrett (WI)
     Becerra
     Beilenson
     Bentsen
     Bereuter
     Berman
     Bishop
     Blute
     Boehlert
     Bonior
     Borski
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Cardin
     Castle
     Clay
     Clayton
     Clement
     Clyburn
     Coleman
     Collins (IL)
     Collins (MI)
     Conyers
     Costello
     Coyne
     Danner
     Davis
     de la Garza
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Doyle
     Durbin
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Flake
     Foglietta
     Ford
     Frank (MA)
     Frost
     Furse
     Gejdenson
     Gephardt
     Gibbons
     Gilchrest
     Gilman
     Gordon
     Green
     Gutierrez
     Hall (OH)
     Hall (TX)
     Harman
     Hastings (FL)
     Hayes
     Hefner
     Hilliard
     Hinchey
     Holden
     Hoyer
     Jackson-Lee
     Jefferson
     Johnson (CT)
     Johnson (SD)
     Johnson, E. B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     Klink
     Klug
     LaFalce
     Lantos
     Leach
     Levin
     Lewis (GA)
     Lincoln
     Lofgren
     Lowey
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy
     McDermott
     McHale
     McKinney
     McNulty
     Meehan
     Meek
     Menendez
     Mfume
     Mineta
     Minge
     Mink
     Moakley
     Mollohan
     Moran
     Morella
     Murtha
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Orton
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Payne (VA)
     Pelosi
     Peterson (FL)
     Peterson (MN)
     Pomeroy
     Porter
     Poshard
     Rahall
     Ramstad
     Rangel
     Reed
     Reynolds
     Richardson
     Rivers
     Roemer
     Rose
     Roukema
     Roybal-Allard
     Sabo
     Sanders
     Sawyer
     Saxton
     Schroeder
     Schumer
     Scott
     Serrano
     Shays
     Skaggs
     Slaughter
     Spratt
     Stark
     Stokes
     Studds
     Stupak
     Tanner
     Taylor (MS)
     Thompson
     Thornton
     Thurman
     Torkildsen
     Torres
     Torricelli
     Towns
     Traficant
     Tucker
     Vento
     Visclosky
     Volkmer
     Waters
     Watt (NC)
     Waxman
     Weldon (PA)
     Williams
     Wise
     Woolsey
     Wyden
     Wynn
     Yates

                               NOES--231

     Allard
     Andrews
     Archer
     Armey
     Bachus
     Baesler
     Baker (CA)
     Baker (LA)
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bevill
     Bilbray
     Bilirakis
     Bliley
     Boehner
     Bonilla
     Bono
     Brewster
     Browder
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Chabot
     Chambliss
     Chapman
     Christensen
     Chrysler
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Condit
     Cooley
     Cox
     Cramer
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Dornan
     Dreier
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gillmor
     Goodlatte
     Goodling
     Goss
     Greenwood
     Gunderson
     Gutknecht
     Hamilton
     Hancock
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Horn
     Hostettler
     Houghton
     Hutchinson
     Hyde
     Inglis
     Istook
     Jacobs
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King
     Kingston
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Laughlin
     Lazio
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     Livingston
     LoBiondo
     Longley
     Lucas
     Manzullo
     Martini
     McCollum
     McCrery
     McDade
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Molinari
     Montgomery
     Moorhead
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     Oxley
     Packard
     Parker
     Paxon
     Petri
     Pickett
     Pombo
     Portman
     Pryce
     Quillen
     Quinn
     Radanovich
     Regula
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roth
     Royce
     Salmon
     Sanford
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Talent
     Tate
     Tauzin
     Taylor (NC)
     Tejeda
     Thomas
     Thornberry
     Tiahrt
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weller
     White
     Whitfield
     Wicker
     Wilson
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--11

     Chenoweth
     Duncan
     Gonzalez
     Graham
     Hunter
     Lipinski
     Miller (CA)
     Rush
     Smith (WA)
     Velazquez
     Ward

                              {time}  1357

  The Clerk announced the following pairs:
  On this vote:

       Mr. Rush for, with Mrs. Chenoweth against.
       Mr. Ward for, Mrs. Smith of Washington against.

  Mr. LEWIS of California changed his vote from ``aye'' to ``no.''
  Mr. SKAGGS changed his vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  The CHAIRMAN. Are there further amendments?


               amendment offered by mr. smith of michigan

  Mr. SMITH of Michigan. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Smith of Michigan: Page 5, after 
     line 18, insert the following new section:

     SEC. 5. AVAILABILITY OF INFORMATION AMONG FEDERAL AGENCIES

       Covered Federal agencies shall make existing databases and 
     information developed under this Act available to other 
     Federal agencies, subject to applicable confidentiality 
     requirements, for the purpose of meeting the requirements of 
     this Act. Within 15 months after the date of enactment of 
     this Act, the President shall issue guidelines for Federal 
     agencies to comply with this section.

                              {time}  1400

  Mr. SMITH of Michigan. Mr. Chairman, the amendment before this body 
is simply an amendment calling on the different agencies that might be 
working on associated risk assessment to share that information and for 
the President to develop the guidelines on the basis for which they 
share that information.
  I would just like to mention that, as a former Michigan OSHA 
commissioner, 1 of 9 commissioners, I was tremendously frustrated as a 
member of that commission on having the direction to sit around a table 
and develop all of the things we could think of to make the workplace 
safer.
  Let me just say that risk assessment has been supported by both sides 
of this aisle, Democrats and Republicans, for several years. I am 
delighted it is coming to a culmination. I am offering an amendment to 
bring the best available information for risk assessments and cost-
benefit analysis to the decisionmakers.
  A quick look though at the Federal Government directory reveals that 
there are dozens of Federal offices whose purpose is to collect 
statistics, and data, and information, and the Members here may think 
that Federal agencies already share information, but I have found that 
this is not the case. Recently negotiations between the U.S. Department 
of Agriculture and the EPA were fruitless, and the individual 
Administrators were unwilling to share that information, and it ended 
up having to go to the Secretaries to demand the kind of relationship 
where one agency would share basic database information with another 
agency, and in that particular case it was on pesticides, and we ended 
up showing the information that USDA had ended up showing EPA that the 
risks were much lower than they assumed. It seems to me this gets to 
the heart of H.R. 1022's objective of common sense regulation.
  Mr. Chairman, I hope this body will support this amendment.
  Mr. BROWN of California. Mr. Chairman, will the gentleman yield?
  Mr. SMITH of Michigan. I yield to the gentleman from California.
  Mr. BROWN of California. Mr. Chairman, I want to commend the 
gentleman for his excellent amendment. I can assure him from long 
experience there is a breakdown in data sharing quite frequently 
amongst the agencies. This should help correct it, and on our side we 
would be glad to see it.
[[Page H2338]]

  Mr. SMITH of Michigan. Mr. Chairman, I thank the gentleman from 
California.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. SMITH of Michigan. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. Mr. Chairman, the gentleman from Michigan [Mr. Smith] has 
identified what is a very relevant problem, has corrected it, I think, 
with the wording of his amendment, and we are pleased to accept the 
amendment as well.
  Mr. SMITH of Michigan. Mr. Chairman, I thank the gentleman.
  I have quite a bit of experience in the need for regulatory reform.
  As a former Michigan OSHA commissioner, I cannot begin to explain the 
frustration I had being a member of the OSHA who were continually asked 
to think of additional safety measures.
  The group was asked to develop recommendations not based on safety 
needs--but on a continuous volume of safety regulations.
  I fully support H.R. 1022's efforts to bring realistic risk and 
economic information into regulatory decisions.
  In addition, I am offering an amendment to bring the best available 
information for risk assessments and cost-benefit analyses to the 
decisionmakers. A quick look at the Federal Government Directory 
reveals that there are dozens of Federal offices whose purpose is to 
collect statistics, data, and information.
  You may think that Federal agencies already share information but I 
have found that this is not the case.
  Recently negotiations were needed just to get USDA and EPA to share 
agricultural data. This data was needed to refine risk assessments--to 
show that pesticide use was actually much lower than EPA had assumed. 
How can we expect better regulation if agencies refuse to share 
taxpayer funded research?
  This gets to the heart of H.R. 1022's objective of commonsense 
regulation.
  This amendment takes into account that some information is 
confidential for business and security reasons. But if we are to be 
assured good regulation, we must have the Federal agencies share 
crucial information.
  H.R. 1022 requires agencies to consider all of the pertinent 
information for commonsense regulation--my amendment makes sure they 
get that information.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Michigan [Mr. Smith].
  The amendment was agreed to.
                    amendment offered by mr. markey

  Mr. MARKEY. Mr. Chairman, I offer an amendment. The Clerk read as 
follows:

       Amendment offered by Mr. Markey: Page 31, strike line 23 
     and all that follows down through line 5 on page 32 (all of 
     section 301(a)(3)) and insert:
       (3) shall exclude peer reviewers who are associated with 
     entities that may have a financial or other interest in the 
     outcome unless such interest is disclosed to the agency and 
     the agency has determined that such interest will not 
     reasonably be expected to create a bias in favor of obtaining 
     an outcome that is consistent with such interest.

  Mr. MARKEY. Mr. Chairman, this is a quite simple amendment, and it 
goes towards the objective of curing what is a very glaring error which 
has been built in.
  Mr. Chairman, the problem with this legislation is that it, 
unbelievably, allows for the corporate insiders, the lobbyists, the 
scientists, of companies that are, in fact, with financial interest in 
the regulation which is being considered, to be able to sit on the peer 
review group which is going to be evaluating that risk, that regulation 
which will be put on the books.
  Here is the language from H.R. 1022 that we are considering out here 
on the floor today. Here is what it says. It says that peer review 
panels, quote, shall not exclude peer reviewers merely because they 
represent entities that may have a potential interest in the outcome, 
provided that interest is fully disclosed to the agency.
  Well, what that means, my colleagues, is that the Gucci-clad 
lobbyists that are surrounding this building right now wondering how 
the legislation is going to turn out will have the capacity to actually 
serve on the peer review panels. So, after they get done sitting in our 
committees, listening to and lobbying on the legislation itself, they 
are then able to put themselves on the peer review panel and ultimately 
insert their views into the record, and, if they are unsuccessful, to 
then turn over to their own corporate lawyers their dissents that can 
be used as the basis for an appeal in the courts if they are unhappy 
with the regulations.
  Mr. DOGGETT. Mr. Chairman, will the gentleman yield?
  Mr. MARKEY. I yield to the gentleman from Texas.
  Mr. DOGGETT. Mr. Chairman, I ask the gentleman, ``Do you think that's 
why they call this the job creation and wage enhancement act? Is this a 
full employment act for lobbyists to serve on peer review committees in 
those rare times when we're not meeting?''
  Mr. MARKEY. There is absolutely no question that right now law firms 
all across this country are looking at new real estate space to hire 
the new junior attorneys who are going to have to come on board in 
order to begin the process of appealing each and every part of this 
process and for their service on the peer review panels for every 
regulation which is going to be put on the books.
  Now let us take this example. Let us look at the example of a nuclear 
power plant that is very concerned that a new regulation might go on 
the books which will ensure that all cracked or rotting pipes in 
nuclear power plants are, in fact, replaced so that the pipes do not 
break, and the water is lost, and the nuclear core is exposed without 
proper water.
  Now under this regulation the nuclear industry will be able to put 
their own doctor, Dr. Pangloss in fact; Dr. Pangloss will be placed on 
the panel, and Dr. Pangloss of course always wears his rose-colored 
glasses when he is looking at regulatory changes that could impact on 
the nuclear industry. Well, Dr. Pangloss would, in the words of 
Voltaire, say, ``Well, all is for the best in that this is the best of 
all possible worlds. There is nothing wrong with our
 industry, and therefore no new regulations need to be placed upon the 
nuclear industry.''

  Now, Mr. Chairman, all of his fellow Dr. Panglosses on the panel, all 
the other nuclear scientists on the panel, will agree, of course, with 
Dr. Pangloss.
  Now should the regulators proceed with the adoption of the regulation 
notwithstanding the objection of Dr. Pangloss and all of the other 
nuclear scientists who have been present on this panel, notwithstanding 
their obvious conflict of interest? The nuclear industry lawyers who 
are hired can then sue the agency using the Panglossian dissent as 
exhibit A in their lawsuits saying that the regulation should be 
invalidated.
  Now this conflict of interest is so obvious and at such odds with the 
whole history of peer review panels in the history of our country that 
it should be removed.
  The entire process here has other problems as well. It excludes 
automatically an industry lobbyist if, in fact, there is only one 
company that is being reviewed for a regulatory change. That would be 
such an obvious conflict of interest. However, the lobbyists and the 
scientists for its competitors can serve on the peer review panel, so 
if the regulation is put in place, and it may hurt the competitors or 
it may help the competitors if this one company is now restrained, they 
serve on the----
  The CHAIRMAN. The time of the gentleman from Massachusetts [Mr. 
Markey] has expired.
  (By unanimous consent, Mr. Markey was allowed to proceed for 2 
additional minutes.)
  Mr. MARKEY. Now although a single company with a hundred percent 
cannot put a hundred percent interest in that particular regulation, 
cannot have its lobbyist serve on the panel, what if there are two 
companies and one company happens to be 90 percent of the entire 
industry, and one other company 10 percent? In that instance, the 
industry lobbyists and scientists for that company with 90 percent 
control can put their own lobbyist on the peer review group as this 
scientific evaluation is going on. Absolutely unnecessary and in fact 
something which is going to compromise the integrity of any evaluation 
that is going to be made.
  Now let us think about, as we move down the line as well, why we 
should not do it. Quite simply because on the books right now there is 
a law. There is a law. It is 18 U.S.C. 208 which includes penalty of 2 
years, or imprisonment, or a $10,000 fine if, in fact, peer reviewers 
[[Page H2339]] who participate personally and substantially in 
Government decisions have a conflict of interest unless that conflict 
is explicitly waived by the agency.
  That is the law today. It has served our country very well. We do not 
want these peer review panels to be packed with the very people who 
have a financial conflict of interest.
  Mr. DOGGETT. Mr. Chairman, will the gentleman yield?
  Mr. MARKEY. I yield to the gentleman from Texas.
  Mr. DOGGETT. I ask, Do you mean to tell me that you can get 2 years 
of hard time right now for doing what this piece of legislation now 
authorizes and approves as a conflict of interest, a conflict of 
interest that, I gather from your remarks, is mandated by this statute?
  Mr. MARKEY. Right now under the law any person who has this kind of a 
conflict is absolutely prohibited, and if they try to get around it 
without getting an exemption, then they do face the penalty of 2 years 
in jail or a $10,000 fine, and I think that changing that kind of a law 
that has protected our country quite well from conflict of interest is 
something that we should very seriously deliberate on before the vote 
this afternoon.

                              {time}  1415

  Mr. OXLEY. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in opposition of the amendment. We had a long 
debate about this provision and this amendment in the committee. It was 
defeated handily on a bipartisan vote. This is nothing else but a 
smokescreen, a red herring. Essentially it says, if the Markey 
amendment were to be adopted, then if you know anything at all about 
the subject matter at hand, then you cannot be on the peer review 
panel. You are essentially eliminated because you know something. It 
kinds of reminds me, Mr. Chairman, of the First Lady's Health Care Task 
Force, where to be qualified you did not know anything about health 
care or be a participant in any of the health care delivery systems.
  I would suggest to my friend from Massachusetts that the language of 
the bill is very clear on peer review. Let me read it to my friend. 
Peer review panels ``shall be broadly representative and balanced and 
to the extent relevant and appropriate, may include representatives of 
State, local, and tribal governments, small businesses, other 
representatives of industry, universities, agriculture, labor, 
consumers, conservation organizations, or other public interest groups 
and organizations.''
  That is a pretty broad category that is included.
  Now, we had testimony from a Professor Lave from Carnegie Mellon who 
has served on numerous peer review panels. I asked the professor 
directly during the testimony exactly what happens to those folks who 
would be perceived as using that information to their own benefit or 
their company's benefit, and Professor Lave said ``We simply beat the H 
out of them.''
  The point is that we, that the people who testified, virtually every 
individual who testified told our committee that the peer review 
process under this bill makes common sense, it allows people who know 
what they are talking about to participate in this, and that in fact 
this is the most appropriate way to get the broadest possible input 
into the peer review process.
  Mr. ROTH. Mr. Chairman, will the gentleman yield?
  Mr. OXLEY. I yield to the gentleman from Wisconsin.
  Mr. ROTH. Mr. Chairman, I thank the gentleman for yielding.
  Mr. Chairman, this is a terrible amendment. You can consider it a 
good amendment only if you want to keep the thinking we have kept for 
the last 40 years. That is precisely the cycle that we want to break.
  No, God forbid that we have somebody on the review boards that knows 
what they are doing. Our good friend from Massachusetts mentioned the 
power plants. Well, who do we want sitting on the review board? Do we 
want somebody sitting on the review board that knows nothing about the 
power plants, or do we want somebody there that knows what they are 
doing and what they are talking about? Certainly the people in Congress 
do not know enough or they would not have been passing these laws for 
the last 40 years.
  I just walked over to the dictionary and what is a peer? It is a 
person who is equal to another in ability, qualifications, age, 
background and social status. That is what Webster's has to say about 
it. And that is what this language is saying.
  But the reason I want to take this time, and I am delighted you yield 
me this time, is because I am
 really concerned about what these regulations are doing to the people 
you and I are representing. OSHA has come out with a rule, I could not 
believe this at our last town hall meeting on Saturday, has come out 
now with a rule, if you are building a little three bedroom ranch, like 
you have in your place in Ohio, or Wisconsin or Massachusetts, in order 
to put on shingles or put on roof boards, you have to encase this house 
now with a net. That costs thousands of dollars and additional time.

  When you put on shingles, you have to have mountain climbing 
equipment. I mean, you talk about common sense? And who has to pay for 
it? The poor guy that is working in the mills that has to pay the 
mortgage, he has to pay additional thousands of dollars so the 
regulators in Washington can live high off the hog. No. The time for 
this legislation is long past.
  Listen to in this. In the last 2 years, the current administration 
has put out 125,000 pages of additional regulation. That is staggering. 
Who is paying for that? The people you are representing.
  Now, the prestigious industrial counsel said more than 1,000 
businesses and their tens of thousands of hard-working employees, have 
estimated that our Nation's regulations bill now amounts to $600 
billion a year. Let me repeat that. The regulations that the people in 
this Congress, the majority, have put on the people of this country, is 
$600 billion each year. That comes out to $2,000 for every man, woman, 
and child in America.
  If you want to give the people a tax break, or give the people a 
break, give them a break with these regulations. Take a look at what 
OSHA is doing to your people, the people that you are representing. 
Take a look at what these regulations are doing to our economy.
  The CHAIRMAN. The time of the gentleman from Ohio [Mr. Oxley] has 
expired.
  (By unanimous consent, Mr. Oxley was allowed to proceed for 2 
additional minutes.)
  Mr. OXLEY. Mr. Chairman, let me simply point out there is no 
difference between serving on a peer review panel and having expert 
witnesses in court. We have expert witnesses in court day after day in 
this country. Many of them are paid for their services, but they 
provide expert testimony. They are not going to foul the process by the 
fact they become expert witnesses.
  We have to understand in the peer review process, Mr. Chairman, that 
is what experts are for, to give their best information. Nothing is 
withheld from the public. They understand that they have to reveal 
their employment and whatever particular ax they may have to grind.
  But that I think is a cynical attempt on the part of the sponsors of 
the amendment to basically say anybody who has any interest in the 
issue is somehow going to take advantage of that and take advantage of 
the system. That is just an entirely unrealistic viewpoint of what this 
peer review process is all about.
  Mr. Chairman, I yield back the balance of my time.
  Mr. DINGELL. Mr. Chairman, I move to strike the requisite number of 
words, and I rise in support of the amendment.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Chairman, I cannot believe that my Republican 
colleagues do not understand the language of the bill, and I cannot 
believe that they do not understand the language of the amendment. The 
language of the amendment corrects an obvious error in the bill. The 
bill provides that peer reviewers may not be excluded simply because 
they represent entities that have a potential interest in the outcome. 
That is really what is at question here. Is peer review going to be 
[[Page H2340]] conducted by people who have an interest in the outcome?
  Then it goes on to say, ``provided the interest is fully disclosed 
and, in the case of a regulatory decision affecting a single entity, no 
peer reviewer representing such entity may be included in the panel.''
  What is the practical result of this language on the question of 
whether or not PCB's should be regulated in a special way, or whether 
clean air emissions, or water pollutants, or a particular kind of 
contaminant should be permitted in the food or drugs that are sold in 
this country, or whether a question involving safety in the workplace 
should be dealt with because of the presence of a particular pollutant 
or a particularly hazardous
 practice? In those instances, if it affected the entire industry, the 
entire panel, the entire panel of peer reviewers could be composed of 
people who had a financial interest, if only they had disclosed what 
that particular interest was.

  Now, I ask my colleagues, do you want to have peer review conducted 
by people who have an interest in the outcome? I think not. The 
amendment offered by the gentleman from Massachusetts [Mr. Markey] says 
that peer reviewers shall be excluded if they are associated with 
entities that have a financial or other interest in the outcome, unless 
such interest is disclosed to the agency and the agency has made a 
determination that such interests will not reasonably be expected to 
create a bias in favor of obtaining an outcome that is consistent with 
the special interest that is held by that peer reviewer.
  That is something which permits us to obtain the necessary expertise 
of people who know something on the subject, if they have an interest. 
But it also provides a very careful screen through which rascals may 
not proceed, and in which we can have a reasonable assurance that the 
protections which are here for the people in peer review of important 
scientific and technical questions will be done in such a way as to 
assure that the result will not be tainted with the determination or an 
inclination on the part of the reviewer to secure on behalf of himself 
and the special interests which he serves a result favorable to that 
particular interest.
  Without this amendment, the entirety of the panel may be composed of 
people who have a financial interest in the matter. I will repeat that, 
because I saw somebody nodding a no. Without this amendment, the entire 
panel may be composed of people who have a particular interest in the 
result.
  I think for this Congress to pass legislation which would sanctify 
such a consequence is a great shame. Shame on us, shame on the country. 
And the consequences of peer reviews which is tainted in this evil way 
will not only jeopardize the faith of the people in this body, but will 
justifiably jeopardize the faith of the American people in the peer 
review system we are authorizing under this legislation which we 
consider today.
  I urge my colleagues to consider not only the consequences of this 
legislation as it is written here, but the consequences of a tainted 
peer review conducted under the provisions of the bill without the 
protection of the amendment offered by the gentleman from Massachusetts 
[Mr. Markey].
  I would urge my colleagues to think about what can happen to the 
American people. And while they are thinking on that particular matter, 
I would urge them to reflect on what this means to them in the future 
when some opponent gets up at election time and says, ``Why was it that 
you supported a proposal in the Congress which permitted special 
interest peer reviews to override the Food and Drug Administration or 
the Environmental Protection Agency or OSHA or any other agency charged 
with protection of the public interest? And why was it, why was it, 
that you permitted a peer review panel to be set up which could be 
composed entirely of special interest representatives?'' Think on it, 
my colleagues, and vote wisely.
  Mr. BARTON of Texas. Mr. Chairman, I move to strike the requisite 
number of words, and I rise in opposition to the amendment.
  (Mr. BARTON asked and was given permission to revise and extend his 
remarks.)
  Mr. BARTON of Texas. Mr. Chairman, I am on the two committees that 
have reported this legislation to the floor, and I think we need to 
make a few basic points. No. 1, I do not even think the gentleman from 
Massachusetts [Mr. Markey], the author of this amendment, is opposing 
the peer review, because he lets the first two subparagraphs stand. He 
is substituting subparagraph (3), and I want to read the paragraph that 
he is substituting for. It says, in the bill, ``shall not exclude peer 
reviewers with substantial and relevant expertise merely because they 
represent entities that may have a potential interest in the outcome, 
provided that the interest is fully disclosed to the agency and in the 
case of a regulatory decision affecting a single entity, no peer 
reviewer representing such entity may be included on the panel.''
  Well, we are trying to do, I think, in the bill what the gentleman 
from Massachusetts [Mr. Markey] is attempting to do, but we do say that 
they are not automatically excluded given, No. 1, that they fully 
disclose what their interest is, and, No. 2, if it is a decision that 
only affects their interest, affects their entity, then they are not 
going to be on the panel at all.
  Now, the gentleman from Massachusetts says we shall exclude. We say 
shall not automatically. The gentleman from Massachusetts [Mr. Markey] 
says they shall be excluded unless they disclose their interest, and 
the agency reasonably determines they are not going to create a bias in 
favor of obtaining an outcome.
  Well, we both want to disclose. We just change the burden of proof to 
say they are not automatically going to be excluded unless the decision 
directly affects the entity they represent, in which case they would be 
excluded.
  Well, as I read the amendment of the gentleman from Massachusetts 
[Mr. Markey], that exclusion does not stand. If I read it correctly, 
they could actually even impact a decision that directly affects them 
if the agency says it is OK.
  In some ways what we have in the bill is stronger, except for the 
fact that we say the burden of proof is not in the beginning 
automatically to exclude them. In your burden of proof, they are 
automatically excluded.
  Mr. MARKEY. Mr. Chairman, will the gentleman yield?
  Mr. BARTON of Texas. I yield to the gentleman from Massachusetts.
  Mr. MARKEY. Mr. Chairman, is the gentleman referring to the language 
at the end of the subsection (3) that deals with single entities that 
are excluded from having peer reviewers represent them?
  Mr. BARTON of Texas. Yes. No peer reviewer representing such entity 
may be included on the panel if the decision affects that single entity 
that they represent.
                              {time}  1430

  Mr. MARKEY. Do not forget, in that language itself, we do not exclude 
the competitors to the entity, which could have, which could have a 
financial interest in the outcome as well. So although we have excluded 
the company that might have the most direct financial interest, we have 
not excluded their competitors from stacking the panel with their own 
scientists. They should not be allowed to participate either, if there 
is bias.
  The point of this provision is that there is an obvious bias if you 
are the only company affected. The truth is, it is additional bias 
amongst other companies if their competitor would not have this----
  Mr. BARTON of Texas. Mr. Chairman, my comment was directly on the 
specific entity, the specific entity. And under the language in the 
bill, if that entity, if they represented a specific entity, they are 
automatically excluded. Under the gentleman's language, they are not.
  Mr. MARKEY. Mr. Chairman, if the gentleman will continue to yield, I 
would be more than willing to accept the gentleman's language to 
exclude any single entity. I would be more than willing to accept that 
language.
  Mr. BARTON of Texas. I am rising in opposition to the gentleman's 
amendment. I support the provision that is in the bill. I am just 
trying to point out that we have got, I believe, that the bill as 
stands has the protections that the gentleman is trying to attempt, 
because we require full disclosure.
[[Page H2341]]

  Mr. MARKEY. Again, the point here is that there is a palpable 
conflict of interest when you are the only company that is going to be 
directly affected by the regulation. But the truth is, there is built-
in bias for companies when there are three or four or five that are 
going to be affected by the regulation.
  Here we basically say that they cannot, ``shall not'' be excluded.
  Mr. BARTON of Texas. Automatically.
  Mr. MARKEY. You are building in a mandate that they not be excluded 
merely because their lobbyist happens to be someone that has an 
interest in the outcome. We are saying that that is not a high enough 
standard that can be established in order to protect the public health 
and safety.
  Mr. BARTON of Texas. Reclaiming my time, Mr. Chairman, I thank the 
gentleman for his comments. The point is, we do not feel they should 
automatically be excluded.
  The CHAIRMAN. The time of the gentleman from Texas [Mr. Barton] has 
expired.
  (By unanimous consent, Mr. Barton of Texas was allowed to proceed for 
1 additional minute.)
  Mr. BARTON of Texas. Mr. Chairman, we do not automatically exclude 
people because they happen to represent an interest that has an 
interest in the pending rule or regulation and the peer review. We 
understand that there are many of these rules and regulations that are 
so technically complex that we have to have experts. As long as we 
fully disclose and guarantee that if the regulation specifically 
affects a single entity they are not going on the panel, for example, 
given the fact that in subparagraphs 1 and 2 we are providing for a 
broad range of peer review, that it is not just this one individual, 
that we think the bill as is should stand. We get the outcome the 
gentleman from Massachusetts is attempting to obtain, but we do not put 
the burden of proof on the peer reviewer.
  Mr. DOGGETT. Mr. Chairman, I move to strike the requisite number of 
words, and I rise in support of the Markey amendment.
  This reduces the danger of conflict of interest that is inherent in 
this bill. The concept of peer review, of having a jury of one's peers, 
in this case scientific peers, to review the work and ensure we have 
good science is a very good concept. But what we have here is not true 
peer review but, as the gentleman from Massachusetts has pointed out, 
phony peer review. Because we are going to ensure that lobbyists, when 
they finish their work in this great Capital, can go out and sign up 
for the peer review committee.
  I know the gentleman from Massachusetts had some further words on 
that subject.
  Mr. MARKEY. Mr. Chairman, will the gentleman yield?
  Mr. DOGGETT. I yield to the gentleman from Massachusetts.
  Mr. MARKEY. Mr. Chairman, for those who are listening right now, 
think about it in these terms: for every regulation that is placed upon 
the books or has been placed upon the books by any of these agencies, 
there are 25 experts in America on the subject who could potentially 
qualify for the peer review group. Twenty of them have no conflict of 
interest; five of them have a conflict of interest.
  The history of this country has been that the agency selects amongst 
the 20 that have no conflict of interest so that the public can be sure 
that the health and safety regulation has in fact been analyzed by 
people who are not going to financially benefit.
  Under the amendment which I have proffered, if in fact the company 
that has a conflict of interest has a Nobel laureate with a de minimis 
stake in the company, then they could make an exception saying there is 
no bias for that Nobel laureate. But throughout the history of our 
country, every time there is a regulation put on the books, they always 
select from the 20 with no conflict of interest. We have a lot of 
experts in America on a lot of subjects.
  The misimpression being left by the authors of the legislation is 
that in fact there will be no experts that will be allowed to 
participate. Just the opposite is the case. We will have just as many 
experts as we have ever had, but we will ensure that, as we have in the 
past, they will not have a financial conflict of interest. In that way 
the public can be sure of the outcome.
  I think that the misrepresentation that goes on with regard to the 
amendment and these horrific examples of regulations that have been 
placed upon the books, assume that they would not be placed upon the 
books if, in fact, the lobbyist for the company that was going to be 
affected by the regulation could serve on the peer review group. In 
fact, as we know, if that had been the case throughout the history of 
our country, we would have had no regulations to protect the health and 
safety of this country because the drug companies and the chemical 
companies and the nuclear industry and every other industry would have 
packed every one of these peer review groups.
  Let us not, for God's sake, leave any misimpression for anyone who is 
listening that there are not plenty of independent experts available to 
serve on every single panel that would ever be constructed by every 
single agency. Let us not for a second again think that if in fact the 
Markey amendment is accepted that the first thing that they would 
decide is that a single company would, and the only company that could 
be affected by a particular regulation, of course, would be in a clear 
conflict of interest and bias, if their scientists and their lobbyists 
sat on the panel. So to a certain extent the gentleman's amendment, 
while clarifying, is redundant in terms of what is already offered as a 
real protection inside of the Markey amendment.
  This is a conflict of interest, clear and simple, loaded with 
potential for lawsuits from here to eternity, if, in fact, the Markey 
amendment is not adopted.
  Mr. ROTH. Mr. Chairman, will the gentleman yield?
  Mr. DOGGETT. I yield to the gentleman from Wisconsin.
  Mr. ROTH. Mr. Chairman, I thank the gentleman for yielding. Here is 
the question.
  This conflict of interest, when the regulator is paid for partially 
by fines that he levies, is that not a conflict of interest?
  Mr. DOGGETT. I thought the best example on conflict of interest was 
the last one the gentleman had with the silly regulation about covering 
the net over the house, because there are a lot of Members here on both 
sides of aisles that are concerned about eliminating silly regulations.
  But under the bill as you propose it, OSHA has to have somebody from 
the net manufacturer on the peer review committee to decide whether it 
is reasonable to put a net over the house. That is what the gentleman 
from Massachusetts [Mr. Markey] is trying to prevent.
  Mr. MARKEY. Mr. Chairman, will the gentleman yield?
  Mr. DOGGETT. I yield to the gentleman from Massachusetts.
  Mr. MARKEY. The example which the gentleman uses is absolutely 
ridiculous. When a regulator fines a company for polluting, the money 
does not go back to the regulator. The money goes back to the Federal 
Treasury. When a lobbyist is on a peer review panel, proposing that a 
regulation pass, he gets rich if that regulation is blocked.
  The CHAIRMAN. The time of the gentleman from Texas [Mr. Doggett] has 
again expired.
  (At the request of Mr. Barton of Texas and by unanimous consent, Mr. 
Doggett was allowed to proceed for 2 additional minutes.)
  Mr. BARTON of Texas. Mr. Chairman, will the gentleman yield?
  Mr. DOGGETT. I yield to the gentleman from Texas.
  Mr. BARTON of Texas. In the gentleman's earlier comment, he said that 
the bill is going to create phony review panels or at least has the 
potential to create phony review panels. I would ask if the gentleman 
has read subparagraph 1 where it says, panels consisting of experts 
shall be broadly representative and balanced, and then it goes on to 
say, represent State, local, tribal governments, small business, other 
representatives of industry.
  Do you not believe that that paragraph which remains intact under the 
Markey amendment is going to ensure that there is a true review panel?
  Mr. DOGGETT. Certainly that paragraph, which was read by the 
distinguished chair of the committee last night in suggesting that I 
had misrepresented what this legislation does, [[Page H2342]] which I 
certainly had not, is the kind of general claim for a lack of bias in 
these panels. But we cannot just read that one section. We have to move 
down to the next section, and that is where we tell each one of these 
agencies that they cannot keep a lobbyist off of these peer review 
committees. They have to put them on. It is not a may or a maybe. It is 
a shall not. It is a commandment to every one of these regulatory 
agencies that they cannot keep off these panels lobbyists.
  As the distinguished former chair of the Committee on Commerce 
indicated, while there may have to be balance, there is nothing in this 
legislation that prevents an agency from having every single member on 
the panel being someone who has a financial interest. They may have 
somebody who is a consumer, but they may still have a financial 
interest in this.
  Mr. MARKEY. Mr. Chairman, will the gentleman yield?
  Mr. DOGGETT. I yield to the gentleman from Massachusetts.
  Mr. MARKEY. They do have a balance requirement in the law. It has to 
be a balanced panel. But the balance, for example, for a nuclear 
regulation could be they have a nuclear manufacturer. They have a 
nuclear chemist. They have a nuclear waste disposal company. They have 
a nuclear, nuclear, nuclear. They all have conflicts of interest, but 
it is balanced in its conflicts although they all are against the 
public health and safety.
  Mr. BARTON of Texas. Mr. Chairman, if the gentleman will continue to 
yield, they also have State government, local government, small 
business.
  The CHAIRMAN. The time of the gentleman from Texas [Mr. Doggett] has 
again expired.
  (By unanimous consent, Mr. Doggett was allowed to proceed for 1 
additional minute.)
  Mr. DOGGETT. Mr. Chairman, this is like saying we are going to have a 
jury of our peers for the O.J. trial, and we will have a fair cross 
section of peers for that, but we are also going to let the lawyers for 
one side or the other serve on the jury panel. What we want is good 
science, not good advocacy.
  I could not disagree more with the gentleman earlier who said, well, 
we have got all these paid experts in court going back and forth. It 
will not be any different than that.
  That is the problem. In too many of these cases, you get whatever 
degree of expertise you pay for. We are not interested in paid science. 
We are not interested in advocacy. We are interested in balance and in 
keeping those who have an axe to grind off of these peer review 
committees. That is what the amendment of the gentleman from 
Massachusetts is designed to accomplish and why I rise in support of 
his amendment.
  Mr. WALKER. Mr. Chairman, I move to strike the requisite number of 
words, and I rise in opposition to the amendment.
  Mr. Chairman, I think we ought to be clear about what we are doing 
here. Some Members just have not bothered to read the language in the 
bill. It requires an independent and external peer review. 
``Independent'' means that there does have to be some degree of work to 
make certain that the people are independent. Then it also says that 
they shall provide, it does not make it voluntary, ``they shall provide 
for the creation of peer review panels consisting of experts,'' not 
Gucci shoe lobbyists, but experts and shall be broadly representative 
and balanced. So much of what we have heard here today just does not 
bear to the language that we begin with when we set forth the section.
  Why did we go down and put a section in that says we shall not 
exclude peer reviewers with substantial and relevant expertise? In 
large part because the testimony before our committee anyhow was 
somewhat different from the way the gentleman from Massachusetts 
portrays it.
  The fact is we are creating a system now where we are likely to be 
looking at things that involve a good deal of technical expertise, that 
involve a good deal of technical knowledge. We may, in fact, be writing 
regulation that at some point, for instance, affects an ecosystem such 
as the Chesapeake Bay. We might want to have the premier experts on the 
Chesapeake Bay as part of a peer review panel. That premier expert 
might be someone who works for the University of Maryland that might 
have a direct interest in the outcome of something with regard to the 
Chesapeake Bay but under the gentleman's amendment would be excluded 
from the panel.
  And so the fact is that what we are doing is assuring, under the 
gentleman's amendment, that the dumber you are about the issue, the 
more likely you are to be able to participate in the peer review.
  I am not certain that that is what we want to set up. I think what we 
want to set up is exactly what we do in the bill to assure that those 
people who have some knowledge about the issue are, in fact, involved 
in the peer review.
  The gentleman from Texas suggests that this is somewhat analogous to 
a jury. It is not a jury. These are people who are reviewing technical 
data. They do not determine the outcome. They simply review the 
technical data to find out whether or not it was honestly arrived at.
  It seems to me that that is where we want to have some people who are 
very knowledgeable about the subjects. And yet what there is an attempt 
to do here is to take knowledgeable people out of the process.
  I understand why the gentleman from Michigan [Mr. Dingell] and the 
gentleman from Massachusetts [Mr. Markey] and the gentleman from Texas 
[Mr. Doggett] and so on come up with this kinds of language. They are 
opposed to this bill. They do not like it. They do not want this bill. 
They are going to vote against it. They will do everything possible to 
destroy it.

                              {time}  1445

  One of the things they are attempting to do here is destroy it by 
assuring that it becomes unworkable, and it becomes unworkable when in 
fact what you have is the dumbness test for peer review, rather than 
the smartness test.
  Mr. DOGGETT. Will the gentleman yield, Mr. Chairman?
  Mr. WALKER. The gentleman interrupts me in the middle of my speech, 
but I am happy to yield to the gentleman from Texas.
  Mr. DOGGETT. Mr. Chairman, I thank the gentleman for yielding.
  Mr. Chairman, will the gentleman do us the courtesy by just taking 
away that argument completely by excluding lobbyists from these peer 
review panels?
  Mr. WALKER. I would say to the gentleman that I am perfectly willing 
to exclude lobbyists, but we did exclude them when we said we had to 
have experts as a part of it.
  This idea of lobbyists is in fact a term being thrown around by 
gentlemen who want to play to public sentiments, and so on.
  Mr. DOGGETT. Mr. Chairman, I agree, we have a little expertise among 
the lobbyists, but some of them are scientists, and some do come here 
on bills like this and offer their testimony.
  Mr. WALKER. Some of the ones who are true scientific experts might 
actually be someone we would want to have review.
  Mr. DOGGETT. So the gentleman wants them on these peer review panels?
  Mr. WALKER. As far as I am concerned, we can exclude lobbyists. I 
want to have experts.
  Neither the amendment of the gentleman from Massachusetts [Mr. 
Markey] nor what is in the bill is anything but permissive. Both permit 
people to participate.
  It is just that with the gentleman from Massachusetts, what they want 
is an insider game to be played where only the agency gets to choose, 
the agency gets the choice here, and what they are going to do is pick 
the people who like the agency bias.
  The gentleman from Massachusetts [Mr. Markey] wants to make certain 
if this law goes into effect what we get is exactly the same kind of 
regulations we have always gotten, those kinds of regulations that the 
agency wanted in the first place, where they set out to do something 
good and end up doing something harmful because they did not get 
broadly relevant expertise in the review.
  We want to change that. We want to go to a new order solution that 
changes things in a way that makes some degree of sense. Most of all in 
this, Mr. [[Page H2343]] Chairman, what we are trying to do is to make 
certain that where we get down to those narrow activities that involve 
some real technical expertise, that we can in fact bring people onto 
panels who are truly knowledgeable about those subjects.
  I would be happy to narrow the focus of the language in the bill in a 
way that gets to that subject matter.
  The CHAIRMAN. The time of the gentleman from Pennsylvania [Mr. 
Walker] has expired.
  (By unanimous consent, Mr. Walker was allowed to proceed for 1 
additional minute.)
  Mr. WALKER. Mr. Chairman, If in fact what we need to do is just make 
certain that there is language to assure that the only time this 
applies is if there are no other experts available, I am perfectly 
willing to modify the language in the bill to do that.
  However, with the gentleman's amendment, what we do is we exclude 
people who might have relevant expertise to bring to a highly technical 
subject, and do it in a way that I do not think makes any sense.
  Mr. Chairman, I would hope this amendment would be rejected. Dumbness 
should not be the standard for peer review, it ought to be a smartness 
test.
  Mr. MARKEY. Mr. Chairman, I move to strike the requisite number of 
words.
  The CHAIRMAN. Without objection, the gentleman is recognized for 5 
minutes.
  There was no objection.
  Mr. MARKEY. Mr. Chairman, I do not want to prolong the debate, except 
to, here at its conclusion, make a simple point, once again. We do not 
want any of these agencies to exclude experts. We do not want anyone 
who can contribute to an evaluation of any of these scientific 
questions to not be able to serve on any of these peer review panels.
  The issue is bias. If in fact the scientist, the lawyer, the lobbyist 
who is being offered as an expert has a bias on that issue, we are 
arguing that they should not serve on that peer review panel unless the 
agency determines that there is a significant contribution that can be 
made, and the bias is incidental.
  Mr. BLILEY. Mr. Chairman, will the gentleman yield?
  Mr. MARKEY. I am glad to yield to the gentleman from Virginia.
  Mr. BLILEY. Mr. Chairman, I am glad to hear the gentleman make the 
statement. I wish we could have had his support in the last Congress, 
when EPA was doing its risk assessment on secondary smoke and there was 
a gentleman on our risk review panel that I pointed out from California 
who was a leading antismoking crusader, but I did not hear anything 
from the gentleman.
  I thank him for yielding to me.
  Mr. MARKEY. Mr. Chairman, if I may reclaim my time, I think it is 
noteworthy that in our language we make it clear that it is not just 
financial, but other interests in the outcome, which would qualify as 
bias. We would want the agencies to look at other interests as well 
that may not be financial.
  That is why I deliberately included those words after the full 
committee markup when that subject was raised, because I agree with the 
gentleman, where there is bias, regardless of whether there is a 
financial interest, there should be an ability to remove those people 
from the panel.
  However, that is the whole point. It does not really make any 
difference whether you are going to get rich because the regulation is 
coming out your way, or your whole career is obviously so tainted by a 
pattern of behavior that that person should be excluded as well.
  Mr. Chairman, I understand that there are some people who want 
industry lobbyists to serve on the panel, who want a biased position to 
be represented as part of these hearings. That is what the bill allows.
  The amendment bans that. It puts up a wall, and if Members want, I 
will add in the extra language which I have which keeps out bias other 
than financial, so that the gentleman can legitimately object when in 
fact there are those who have other interests.
  Mr. ROTH. Mr. Chairman, will the gentleman yield?
  Mr. MARKEY. I yield to the gentleman from Wisconsin.
  Mr. ROTH. Mr. Chairman, before we talked about OSHA, and this is 
important because it is something relevant that is happening in our 
society today. When OSHA pays its staff, when OSHA pays its bills, does 
that not come out of the fines they impose? The answer is yes. OSHA is 
hiring new people. OSHA is out there levying fines.
  Mr. MARKEY. Mr. Chairman, if I may reclaim my time, let us not 
confuse whether or not other people are hired at agencies with the 
issue of whether or not the person gets personally enriched by a 
decision which is made. No Federal employee can profit, by law, from 
any decision which they make. There is absolutely a total prohibition 
against that.
  I do not think it is proper to equate that situation with a Federal 
regulator with the lobbyists' interests which a chemical, a tobacco, a 
drug, or a toy manufacturing concern would have with the promulgation 
of a regulation and personal enrichment of the individual.
  Mr. ROTH. If the gentleman will continue to yield, Mr. Chairman, I 
think the gentleman is being a little too disingenuous. I think it is 
relevant. If OSHA hires additional people, they have to levy additional 
fines.
  Just the last couple of weeks ago when OSHA put out their latest 
regulation, they promulgated the rule on day 1 at 7 o'clock in the 
morning, and at 8 o'clock they were imposing fines. There was no 
publication that this is a new rule.
  I say that there is a conflict of interest in these industries, in 
these agencies.
  Mr. MARKEY. Mr. Chairman, if I may reclaim my time one final moment, 
the point is if there is a lobbyist, if there is a scientist, we will 
not even call them lobbyists, we will just say employees of the 
company, if they have stock options in the company that personally 
enrich them if a regulation does not go on the books, let us not kid 
ourselves, there is a tremendous bias with regard to how the individual 
will view that regulation going forward.
  If a Federal regulator passes a regulation, he does not personally or 
she does not personally find any monetary remuneration because of the 
passage of that regulation or defeat of that regulation. One might say 
they have a professional stake, no question about it, but they do not 
have a financial concern, and that is really the whole heart of this 
debate.
  I urge anyone listening, if they do not believe people should have a 
financial stake, please vote for the Markey amendment. It still allows 
for every other expert in every field to serve on the peer review 
panels.
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. MARKEY. I am glad to yield to the gentleman from Pennsylvania.
  Mr. WALKER. Mr. Chairman, I think I heard the gentleman say a little 
while ago that he is sensitive about the concern.
  The CHAIRMAN. The time of the gentleman from Massachusetts [Mr. 
Markey] has expired.
  (At the request of Mr. Walker and by unanimous consent, Mr. Markey 
was allowed to proceed for 2 additional minutes.)
  Mr. WALKER. Mr. Chairman, will the gentleman yield?
  Mr. MARKEY. I yield to the gentleman from Pennsylvania.
  Mr. WALKER. Mr. Chairman, the gentleman has indicated that he is 
sensitive to the concern that there might be areas where you have a 
particular expert that serves and there could be some modest conflict 
of interest or something, and that is what he tried to correct in his 
amendment.
  I think maybe he is even, from what he said, sensitive to the fact of 
what we heard in the committee, that there are in fact people who might 
have expertise in very, very narrow technical areas that would have to 
be included in these peer reviews if the peer review is going to be 
done in a good sense.
  Mr. Chairman, let me ask the gentleman, as I said, I am willing to 
narrow the scope of the amendment. What if we put language up front in 
the amendment that said ``Unless there are available peer reviewers 
with the equivalent or superior expertise and experience and no 
potential interest in the outcome, they shall not exclude peer 
reviewers.'' [[Page H2344]] 
  In other words, the only way that the provisions in the bill would 
apply is if there were absolutely no other kinds of peer reviewers with 
the kind of expertise that is needed in order to make these judgments; 
then we would have language that would say where there would be no 
potential interest in the outcome.
  Let me ask the gentleman, is that something that the gentleman would 
be willing to accept to solve the committee's problem, as well as his?
  Mr. MARKEY. Mr. Chairman, if I may reclaim my time, the amendment 
which I have offered already provides that flexibility to the Federal 
agency. It allows for the agency to make a determination that the 
interest would not be reasonably expected to create a bias, and 
therefore, to allow that expert to testify.
  Mr. WALKER. The problem with the gentleman's amendment, Mr. Chairman, 
if he will continue to yield, is that it presupposes that these people 
are bad people and should not be brought in.
  What we are suggesting is that maybe there is a need for some 
language that would suggest that if there are other kinds of peer 
reviewers available that have no interest, the agency ought to look to 
those people, but if there was nobody else, the agency should have the 
discretion.
  I wonder if the gentleman would go along with that.
  The CHAIRMAN. The time of the gentleman from Massachusetts [Mr. 
Markey] has expired.
  (At the request of Mr. Walker and by unanimous consent, Mr. Markey 
was allowed to proceed for 1 additional minute.)
  Mr. MARKEY. Mr. Chairman, again, I think the gentleman is heading in 
the right direction, but it is not enough, and it is already covered by 
the language which I have in my amendment. We make it a ban, but a ban 
which can be waived by the agency if they need the experts.
  By the way, that is how every Federal agency today now operates. We 
are not changing anything, we are not adding anything new here. There 
are peer review groups today, there have been for 50 years, and they 
have always used experts. They will continue to use experts.
  The only change we are debating here today is whether or not people 
with financial conflicts of interest should be able to serve on the 
panel. That is the only thing in the debate.
  Historically, they have always had the latitude of waiving, if they 
want to, under the U.S.C. 208 that allows for the Federal agency to let 
those people in if they needed them, so the law is already there to do 
it. I do not know why we are changing it at all.
  Again, to avoid the conflict of interest, and again, if I may in 
conclusion just say to the gentleman from Pennsylvania [Mr. Walker], it 
is not with the intention of killing this legislation that we are 
offering the amendments. It is just the opposite, it is to improve it 
before it does become the law of the land.
  Mr. BILBRAY. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in opposition to the amendment. I understand the 
concern of my friend, the gentleman from Massachusetts [Mr. Markey], 
that there may be a major problem here.
  However, let me just sort of quote a representative of the 
Environmental Defense Fund, who stated at testimony before the 
Committee on Commerce, ``I think in principle there are probably very 
few exclusions that I would make, as long as members of peer review 
panels are experts in their area and there is an appropriate balance.''
  I wish to say to my friend, the gentleman from Massachusetts, that I 
have seen different peer review processes work. It is essential to get 
everybody who has expertise to be included in the process, and not to 
exclude them.
  I think what the gentleman fears with regard to conflicts, the 
conflicts come from many directions. I would not feel it would be 
appropriate that just because somebody happens to be employed by the 
Lung Association and actively involved in that process, that they 
should somehow be treated as if they are tainted and unacceptable to 
the review process.
  In fact, Mr. Chairman, as long as we understand that there is an 
agenda, and where they come from, it is a major contribution, because 
in reality we want those who may come from different spectrums to be at 
the table to build the consensus.
  There may be those that are scared of what may be termed the extremes 
finding consensus. I think we should not only not fear it, we should 
embrace the fact that consensus is what we want to find on these 
issues, and that is where we can.
  Mr. MARKEY. Mr. Chairman, will the gentleman yield?
  Mr. BILBRAY. I yield to the gentleman from Massachusetts.
  Mr. MARKEY. Mr. Chairman, again, we are not excluding the companies 
that are affected. They can still participate legally by commenting 
upon the regulation, by meeting with the regulators, by participating 
in any number of ways.
  What we are talking about here is, as the gentleman from Texas calls 
it, the jury over here on the peer review panel. Except for that one 
part of the process, they are allowed to fully participate in making 
their case and in ensuring that all the evidence and information is 
before the agency.
  Mr. BILBRAY. Mr. Chairman, reclaiming my time, the fact is, as the 
gentleman said, except for participating in that process, they can 
participate in the rest of the process. The gentleman and I know this 
is the core of being able to be proactive rather than reactive.
  I do not care if you are a representative of the industry or a 
representative of an environmental group, to be involved in the initial 
process is absolutely essential for not only your agenda, be it one way 
or the other, but for the process itself and the finished product.
                              {time}  1500

  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Massachusetts [Mr. Markey].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             recorded vote

  Mr. MARKEY. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The CHAIRMAN. This will be a 17-minute vote.
  The vote was taken by electronic device, and there were--ayes 177, 
noes 247, not voting 10, as follows:

                             [Roll No. 178]

                               AYES--177

     Abercrombie
     Ackerman
     Andrews
     Baesler
     Baldacci
     Barcia
     Barrett (WI)
     Becerra
     Beilenson
     Bentsen
     Berman
     Bevill
     Bishop
     Boehlert
     Bonior
     Borski
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Cardin
     Chapman
     Clay
     Clayton
     Clyburn
     Coleman
     Collins (IL)
     Collins (MI)
     Conyers
     Costello
     Coyne
     Danner
     de la Garza
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Doyle
     Durbin
     Edwards
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Flake
     Foglietta
     Ford
     Frank (MA)
     Franks (NJ)
     Frost
     Furse
     Gejdenson
     Gephardt
     Gibbons
     Gordon
     Green
     Hall (OH)
     Hall (TX)
     Hamilton
     Hastings (FL)
     Hefner
     Hilliard
     Hinchey
     Holden
     Hoyer
     Jackson-Lee
     Jacobs
     Jefferson
     Johnson (SD)
     Johnson, E. B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     Klink
     LaFalce
     LaTourette
     Levin
     Lewis (GA)
     Lincoln
     Lofgren
     Lowey
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy
     McDermott
     McHale
     McKinney
     McNulty
     Meehan
     Menendez
     Mfume
     Mineta
     Minge
     Mink
     Moakley
     Mollohan
     Montgomery
     Morella
     Murtha
     Nadler
     Neal
     Ney
     Oberstar
     Obey
     Olver
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Pomeroy
     Poshard
     Rahall
     Rangel
     Reed
     Reynolds
     Richardson
     Rivers
     Roemer
     Rose
     Roybal-Allard
     Sabo
     Sanders
     Sawyer
     Schroeder
     Schumer
     Scott
     Serrano
     Shays
     Skaggs
     Slaughter
     Stark
     Stokes
     Studds
     Stupak
     Tanner
     Taylor (MS)
     Tejeda
     Thompson
     Thornton
     Torres
     Torricelli
     Towns
     Traficant
     Tucker
     Velazquez
     Vento
     Visclosky
     Volkmer
     Waters
     Watt (NC)
     Waxman
     Williams
     Wise
     Woolsey
     Wyden
     Wynn
     Yates
     [[Page H2345]]
     
                               NOES--247

     Allard
     Archer
     Armey
     Bachus
     Baker (CA)
     Baker (LA)
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehner
     Bonilla
     Bono
     Brewster
     Browder
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Clement
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Condit
     Cooley
     Cox
     Cramer
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Davis
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Dooley
     Doolittle
     Dornan
     Dreier
     Duncan
     Dunn
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Frelinghuysen
     Frisa
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Gilman
     Goodlatte
     Goodling
     Goss
     Graham
     Greenwood
     Gunderson
     Gutknecht
     Hancock
     Hansen
     Harman
     Hastert
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Horn
     Hostettler
     Houghton
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     Laughlin
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     Livingston
     LoBiondo
     Longley
     Lucas
     Manzullo
     Martini
     McCollum
     McCrery
     McDade
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Molinari
     Moorhead
     Moran
     Myers
     Myrick
     Nethercutt
     Neumann
     Norwood
     Nussle
     Ortiz
     Orton
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Peterson (FL)
     Peterson (MN)
     Petri
     Pickett
     Pombo
     Porter
     Portman
     Pryce
     Quillen
     Quinn
     Radanovich
     Ramstad
     Regula
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roth
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shuster
     Sisisky
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Spratt
     Stearns
     Stenholm
     Stockman
     Stump
     Talent
     Tate
     Tauzin
     Taylor (NC)
     Thomas
     Thornberry
     Thurman
     Tiahrt
     Torkildsen
     Upton
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wilson
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--10

     Gonzalez
     Gutierrez
     Hunter
     Lantos
     Lipinski
     Meek
     Miller (CA)
     Rush
     Vucanovich
     Ward

                              {time}  1517

  The Clerk announced the following pairs:
  On this vote:

       Mr. Rush for, with Mrs. Vucanovich against.

  Mr. BAESLER changed his vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  

                          ____________________