[Congressional Record Volume 141, Number 108 (Thursday, June 29, 1995)]
[Senate]
[Pages S9412-S9414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The PRESIDING OFFICER. The clerk will report the pending business.
  The assistant legislative clerk read as follows:

       A bill (S. 343) to reform the regulatory process, and for 
     other purposes.

  The Senate continued with the consideration of the bill.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. I thank the Chair.
  Mr. President, I ask unanimous consent that Senator Kerry be 
permitted to make some remarks without losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I thank the Senator from Ohio. I just 
wanted to rise for a few moments to say some words about the regulatory 
reform bill, and where we find ourselves now. Then I will make further 
comments at a later time. I thank the distinguished manager for the 
Democrats.
  Mr. President, I think it is fair to say that if you ask most people 
in the United States Senate, ``Do you favor regulatory reform?'' people 
are going to say, ``Yes; I am in favor of regulatory reform.'' We all 
understand that in the course of the last few years, regrettably, there 
have been some excesses that every single American has come to 
understand. And unfortunately, because of the negativity and conflict 
orientation of the press nowadays, the negative aspects of what has 
happened in environmentalism sometimes supersedes people's perceptions 
on the positive side.
  The truth is, in America, there have been remarkable gains over the 
course of the last 25 years in the particulates that we breathe, and in 
the level of our health as a consequence of better air. Today, cities 
can literally be viewed from airplanes, and from outside the city 
where, this one not be the case, a decade ago if you were in Denver or 
Los Angeles given the air pollution levels and smog. There are still 
problems, but the level is so markedly reduced from what it was that we 
tend to forget the benefits.
  If you look all across this country, there are rivers where salmon 
have returned and rivers that you can swim in and fish in. This was not 
the situation a number of years ago. There has been just an incredible 
increase in the quality of life for all Americans and the opportunities 
that are available as a consequence of positive choices we have made 
for the environment.
  On the other side of the ledger, there have been some terrible 
disasters in terms of our efforts to do better. The Superfund Program 
is a classic example of one of those efforts that has not done as well 
as intended. However, the Superfund Program is not really a reflection 
of what we need to do in regulatory reform. Yet it somehow finds its 
way into the bill that is currently on the floor.
  Likewise, with the Toxics Release Inventory, over the years since 
1986, we have reduced over 40 percent the level of toxic releases into 
the atmosphere. And, there again, has been an enormous gain in terms of 
people's knowledge of what is happening in their community. That is 
all--just knowledge. That knowledge has empowered communities to make 
better choices and, in fact, many industries have voluntarily made 
choices based on the fact that they knew a particular community knew 
what was being released into the air. People have benefited. We have 
had an enormous reduction in the level of toxic releases. All by virtue 
of a community right-to-know program that is simply informative. All it 
does is let people know. It does not require a company to do anything. 
It does not take any chemical off the market. It does not prohibit it 
from being sold. It does not levy any fines. There is no administrative 
process except reporting information to the public.
  Yet, in this bill, there is a wholesale discarding of that particular 
process. It does not belong here. It should not be here.
  Similarly, the Delaney clause, which prevents people from being 
exposed to carcinogens in food additives. This is a critical program. 
Most people agree that there have been some problems in its 
administration, and we need to fix it. I agree, we ought to fix it. The 
Labor and Human Resources Committee and others have been working 
diligently on a fix. They are in the process of working within the 
committee with jurisdiction to rework the program. Then along comes 
this approach of just grabbing out of thin air and plunking into this 
bill what is not a fix, but an absolute eradication of the Delaney 
protections. That does not make sense. I do not think Americans have 
come in and said, ``Hey, expose me to a whole new set of carcinogens, 
and it really does not matter what is in my food.'' But that is the 
effect of what is in this legislation.
  Those were the ``special fixes,'' the provisions that do not relate 
to regulatory reform and that should not be in the legislation before 
us.
  In addition, Mr. President, I have some concerns with a number of 
provisions in the bill that actually address regulatory issues. For 
starters, this bill lowers the threshold for the definition of a 
``major'' role in the rulemaking process. When the EPA or another 
agency decides that something is a major rule which then affords it a 
certain set of administrative procedures, the threshold today for a 
major rule is $100 million of annual economic impact. First, you have 
to make a determination that the rule will have an effect of $100 
million of consequence, and then it is treated as a major rule.
  In the bill that is on the floor, the sponsors lower that threshold 
to just $50 million. The $100 million threshold was set in 1975 by 
President Ford.
  That 1975 value is worth just $35 million. It is not very hard to get 
to a $35 million current value in terms of rulemaking impact. If you 
lower that by half, to an $18 million impact, any lawyer worth his salt 
can come in and achieve that; particularly since the definition in this 
bill allows you to take indirect costs into account, you can very 
rapidly get to a $50 million consequence.
  What is the impact of that? Here is a bill that talks about being 
regulatory reform yet will open up a whole expanse of new rules subject 
to major rulemaking procedures which makes it then subject to court 
review.
  Currently, EPA spends $120 million per year to conduct risk 
assessment and cost-benefit analysis for major rules at the $100 
million level. EPA estimates that it will need an increase of 191 
percent to 458 percent to keep up with the increased workload. Nowadays 
the EPA handles approximately 10 rules per year that qualify as major 
rules. Under the $50 million threshold, we are going to go to 75 major 
rules per year just for rule at the $50 million threshold. In addition, 
in this bill before us, S. 343, the Superfund is lowered even further 
to a threshold of just $10 million which will cause a minimum of an 
additional 650 rules that need this new complex administrative 
procedure. Every one of us knows that no one is going to come down here 
and say ``add personnel to EPA, appoint more judges, give us the people 
to achieve this and make this work.''
  So what you have here is not just an effort to have a legitimate 
reform of a system that I acknowledge needs reform. What you have is a 
totally calculated capacity to create gridlock within the system so the 
rules cannot be made and many of the rules on the books get eliminated.
  Now, there are a host of other problems with S. 343. There is a 
problem with the effective date. The effective date of this bill is 
upon enactment. The implication of this term will require going back to 
scratch and being over to develop any rules that are in the entire 
Federal Government system on that date, whatever that day may be. The 
impact may well be enormous from meat inspection regulations to 
drinking water protections and other things that would literally stop 
in midstream as a consequence.
  I do not think that is the intention of the authors. However, that 
will be the effect. These are the types of problems of which colleagues 
must be aware. This legislation currently leaves open to question a 
number of concerns such as this.
  Another very significant area is judicial review and the petition 
process developed in this bill. The bill before us 

[[Page S 9413]]
has at least seven different tiers to its petition process. Unless it 
has been changed to reflect negotiations we have been having in the 
last few days, that opens up a Pandora's box of judicial review. You 
are going to have the capacity to go on for year after year after year 
with lawyers expending huge sums of money; this process will transform 
the whole regulatory process into the hands of somebody who has money 
rather than an evenhanded administrative process that seeks to balance 
the needs of the country.
  Mr. President, I want to emphasize I want to have a legislative 
reform bill. I think we must. I also want to emphasize that it is 
appropriate to have cost-benefit analysis and risk assessment. We 
should be making some determination of the benefits and the costs but 
we should not do it in a way that is so rigid that we literally deny 
ourselves the ability to include certain benefits to the country; even 
if an option is not the least cost alternative it may be something we 
want to do and we should not take away the discretion or the capacity 
of somebody to make that decision on the appropriate standards.
  Let me give an example from the air quality standards in the Clean 
Air Act. For 25 years it has been understood that the Federal 
Government would base its national ambient air quality standards not on 
a cost-benefit test, but on health protection standards--and I might 
add that even after 25 years of hard work over 100 million Americans 
still live in areas where these standards are not met. If this bill 
becomes law, I believe that it will be virtually impossible for EPA to 
base its standards on health protection, and it will begin an endless 
court process that will serve to set back.
  Under this bill, for example, if there is an existing statute that 
has a standard to achieve, for health reasons and other reasons, so 
many parts per million in air emissions and it is determined that 
number is a minimum standard, a floor level of protection, but that the 
agency has the discretion to go to a higher level in the statute 
because we want to get to at least a minimum standard knowing there is 
a minimum health benefit for getting to that minimum standard; and this 
minimum standards costs $10 million to achieve and it is the least cost 
alternative. Now, for $11 million, you may be able to get exponentially 
further in terms of public benefits, but it is not the least cost, the 
agency will not be able to go to the higher standard of benefit even if 
you want to spend the additional resources to get the vastly greater 
level of benefits.
  Under this bill, you will not be able to go to the higher standard of 
benefit because it is not the least cost alternative--even though that 
higher standard of benefit may give you other benefits of 
hospitalization reduction, long-term care reduction, quality of health, 
a whole number of important benefits, just because it is not the least 
cost for the purposes of the underlying statute's minimum gain you 
cannot do it.
  Now, Mr. President, in keeping with what I said to the Senator from 
Ohio, I am not going to go on, and I am not going to go through a 
complete analysis of the bill at this time. But I think it is 
absolutely essential that we approach this bill with a sober intention 
to legislate, not just to walk in lockstep to make happen what has come 
here in a very hasty process.
  The Environment Committee was bypassed. The chairman of the 
Environment Committee, a Republican, has signed on to an alternative 
version of this bill with Senator Glenn, and he will talk about that. 
The Judiciary Committee never got a chance to consider but a handful of 
amendments before the bill was forced out on a procedural maneuver. 
Senators wanted to, but they were never heard or given a chance to 
consider a vast number of amendments in committee.
  On the other hand, the Governmental Affairs Committee sent a bill out 
by a vote of 15 to nothing, yet that bill has been ignored. And it is 
essentially that bill with a couple of minor changes that the Senator 
from Ohio and the Senator from Rhode Island will introduce, and I am 
glad to be a cosponsor of that, Mr. President.
  This bill has far-reaching implications for the health and safety and 
well-being of the United States of America. This bill should not become 
a grab bag, a greed effort by a lot of people who never wanted the EPA, 
who never wanted the Clean Air Act, never wanted the Clean Water Act, 
never wanted the Safe Drinking Water Act, never wanted the national 
parks program, never wanted any of these efforts in the first place. 
And we should not allow them under the guise of regulatory reform to 
undo 25 years of progress and effort, notwithstanding I emphasize a 
genuine need to have regulatory reform and to change the way we have 
been doing business in this city.
  So I am prepared to embrace a very legitimate effort to get there. I 
joined with a number of my colleagues to meet with the Senator from 
Louisiana, Senator Johnston, Senator Hatch, and others and we thought 
we were making some progress. I think we did make some progress. It is 
my hope that over the course of the next week we can continue that 
effort and hopefully work out the kinks in this bill in order to come 
up with a very significant vote in the Senate for regulatory reform.
  I wish to thank my colleague, Senator Glenn, very much for his 
gracious forbearance here, and I particularly thank him for his 
leadership on this effort. He is the person who has been working for 
years to come up with a reasonable alternative on this, and I am glad 
to be working with him on it.
  Mr. GLENN. I thank my colleague from Massachusetts for his comments. 
I have noted his efforts for this legislation. He has worked tirelessly 
for the last couple of weeks almost in trying to work something out on 
this, and we are glad to have him with us on this. In fact, we hope to 
have the whole Senate working with us.
  Mr. ROTH. Some of my colleagues have questioned why I support the 
Dole-Johnston compromise when the bill I originally wrote received 
unanimous support in the Committee on Governmental Affairs. The bill I 
introduced in January, S. 291, the Regulatory Reform Act of 1995, was--
in my opinion--a good proposal for regulatory reform. I am pleased that 
it received unanimous support from all 15 members of the Governmental 
Affairs Committee. But S. 291 was itself a compromise. It was, in my 
view, a good bill, but not a perfect bill.
  The Dole-Johnston substitute improves upon S. 291 in some key 
respects, especially the use of a stronger cost-benefit test. I 
believe, to the extent practical, the benefits of a regulation should 
justify its costs. The pending amendment is the product of the three 
committees that proposed regulatory reform legislation, and many other 
Senators. It likewise may not be perfect from everyone's point of view, 
but it is a strong effort to make Government more efficient and 
effective.
  When you review the key provisions of S. 291, you can see they are 
reflected in the Dole-Johnston amendment. These provisions include:
  Cost-benefit analysis: The benefits of a regulation must justify its 
costs, unless prohibited by the underlying law authorizing the rule.
  Market-based mechanisms and performance standards: Flexible, goal-
oriented approach are favored over rigid command-and-control 
regulation.
  Review of existing rules: Old rules on the books must be reviewed to 
reform or eliminate outdated or irrational regulations.
  Risk assessment: Agencies must use sound science to measure and 
quantify risks to the environment, health, or safety.
  Comparative risk analysis: Agencies must set priorities to achieve 
the greatest overall risk reduction at the least cost.
  Reform of the Regulatory Flexibility Act: The Regulatory Flexibility 
Act is strengthened to make agencies more sensitive to the impact of 
regulations on small businesses and small governments.
  Congressional review of rules: Rules will not become effective until 
they are reviewed by Congress. Congress can veto irrational or 
ineffective regulations.
  Regulatory accounting: The Government must compile the total costs 
and benefits of major rules.
  Most important, the Dole-Johnston amendment, like S. 291, has limited 
judicial review so agency rules will not be invalidated for minor 
procedural missteps. But the Dole-Johnston amendment also improves upon 
S. 291 by having a more focused cost-benefit 

[[Page S 9414]]
test. Regulators must directly set regulatory standards so that the 
benefits of a rule justify its costs, unless prohibited by the law 
authorizing the rule. Of course, neither S. 291 or the Dole-Johnston 
amendment contains a supermandate that overrides the substantive goals 
of any regulatory program.
  The three provisions that lie at the heart of any good regulatory 
reform proposal are: First, decisional criteria, such as the cost-
benefit test; second, judicial review; and third, review of existing 
rules. The Dole-Johnston amendment is better on the first provision and 
equal on the second, as I have previously suggested. On the third 
provision, review of existing rules, it is also better since the 
provision in S. 291 has significant administrative difficulties.
  S. 291 said that every major rule on the books had to be reviewed by 
the appropriate agency within 10 years, plus a possible 5-year 
extension, or terminate. The basic problem with that approach is what 
constitutes ``a rule.'' Most rules are amendments to existing programs 
which upon becoming effective merge into the text of the program. What 
you have on the books are programs which have been molded by a whole 
series of prior rules. So how can one mandate that the rules must be 
reviewed? On which page of the Code of Federal Regulations does a rule 
begin and end? What grouping of concepts constitutes a rule? A major 
rule? When 10 years has elapsed, what exactly has terminated?
  S. 291 meant well, but it was silent on such questions. The Dole-
Johnston amendment, in contrast, provides a clearer alternative: the 
agency establishes a schedule of the rules to be reviewed. This list is 
published for all to see. Only rules on that list are subject to 
termination under the legislation.
  In turn for its workability, however, a vulnerability arises. Suppose 
the agency list is underinclusive, then what? The Dole-Johnston 
amendment allows petitioners to request inclusion and, if denied, sue 
the agency. However, the burden that a petitioner must meet in court is 
purposefully high, lest any agency be overwhelmed by such petitions.
  The Dole-Johnston provision is a balanced, workable, and fair 
resolution of the thorny issue of how agencies are to review existing 
rules. It is the product of fruitful negotiations with Senators Kerry, 
Levin, Biden, Johnston, Hatch, Nickles, Murkowski, Bond, and myself.
  In short, the Dole-Johnston amendment is the newer, better product--
representing the cumulative wisdom of months of negotiations on 
different options in three committees. When we voted to report S. 291 
from the Committee on Governmental Affairs last March, that version may 
well have been the best text available. But it no longer is.
  From the day I introduced S. 291 it has been my objective to produce 
the best possible bill--one that achieves real reform, that passes both 
Houses, and that is signed into law. From that day I have found myself 
as the Senator in the middle, serving as a bridge between various 
opposing viewpoints. I believe that I have been able to achieve 
significant progress by bringing opposing sides closer together. The 
policy gap on this legislation has closed and is closing.
  Today Senator Dole will lay down the Dole-Johnston amendment that 
represents the current state of progress. Some on the other side of the 
aisle have introduced a slightly modified version of S. 291. I am 
somewhat alarmed that this is being done after substantial progress has 
been made in talks with Senators representing all colors of the 
political spectrum. I hope that their action does not indicate that 
their position is hardening on this legislation.
  S. 291 was a good bill. But the Dole-Johnston amendment is an 
improvement, thanks in part to suggestions made by those who seek to 
rally around a modification of S. 291.
  Mr. GLENN. Mr. President, Senator Dole has made his proposals here. I 
know he wants to make some remarks in a moment.
  Without losing my right to the floor, I ask unanimous consent to 
yield the floor to Senator Dole, and then Senator Kassebaum has remarks 
on a different subject.
  The PRESIDING OFFICER (Mr. Bennett). Without objection, it is so 
ordered.

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