[Congressional Record Volume 141, Number 110 (Monday, July 10, 1995)]
[Senate]
[Pages S9628-S9637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                  COMPREHENSIVE REGULATORY REFORM ACT

  The Senate continued with the consideration of the bill.


                           Amendment No. 1491

  Mr. GLENN. Mr. President, the pending legislation before us is an 
amendment by the Senator from Georgia, is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. GLENN. I particularly dislike having to oppose my good friend 
from Georgia, Senator Nunn. We worked together in the Governmental 
Affairs Committee on our bipartisan regulatory reform bill. We both 
supported the bill. I certainly have the very highest regard for him. 
He has always been a tireless champion of the interests of small 
business men and women in our country, and I certainly applaud him for 
that effort.
  But I believe that while this amendment is very well-intentioned, I 
think there are two serious problems. I do not believe the amendment 
should be accepted. First, it revises the Regulatory Flexibility Act in 
a number of ways that I think do not fit with workable regulatory 
reform.
  First, the amendment would require cost-benefit analysis of all reg 
flex rules. That is, rules that have a significant economic impact on a 
substantial number of small entities. This would be small businesses, 
local governments, and the like. Including these rules in the cost-
benefit analysis process would increase the number of rules that have 
to go through that analysis by over 500 rules. That is not a figure 
grabbed out of thin air; that is the administration's estimate. It is 
based on actual Federal Register entries over the last year.
  Now, OMB has estimated that if this passed this way, there could 
possibly be as many as 600 to 800 rules and regulations that would fall 
under this provision. That would raise the number of investigations and 
rulemaking procedures to something like three times our present number.
  Now, agencies are going to be hard pressed with the budget cuts they 
are facing now just to do the analysis required if we just pass the 
Glenn-Chafee bill with its $100 million threshold. S. 343, which is 
before us now, would lower the threshold to an unreasonable $50 
million. This amendment that we are considering now by the Senators 
from Georgia would have the potential of adding somewhere between 500 
to the current rate, or up to as many as 800 more rules to that list. 
That just overloads the circuits.
  To make the point even further, one estimate before our committee by 
one of the people testifying earlier this year was that each full-blown 
rule investigation costs somewhere around $700,000. If you take the 500 
to 800 potential on this, that means we would be spending on 
investigations somewhere between $350 million for the 500 
investigations, up to a potential of $560 million for the 800 
investigations.
  Let us say that is a pessimistic view of how much it costs, that 
$700,000. Even if you cut it in half, it means it is somewhere around 
$175 million up to, say, $270 or $280 million to do this increased 
number of investigations. So I say that agencies are going to be very 
hard pressed with these budget cuts to make it.
  The second major problem with the amendment is the way it expands reg 
flex judicial review. The Glenn-Chafee bill is basically the bill 
brought out of committee earlier and is designated as S. 1001. As 
opposed to S. 1001, this amendment would allow judicial review of final 
rule reg flex analysis. As opposed to that, this amendment permits 
judicial review of proposed rule reg flex decisions.
  Now, this expands enormously the number of judicial challenges that 
can be made, and it further overturns a principle that has been long 
held that court review should wait until an agency makes its final 
rulemaking decision and then challenge the whole process, whatever it 
is, and not permit judicial review challenges all along the way, which 
means that the persistent challenger can keep something bogged down in 
court for years and years. It can literally bog down the whole process, 
this number of new rulemaking procedures that would have to be 
reviewed.
  So allowing judicial review of preliminary decisions about whether a 
rule is even subject to reg flex, which this would do, will bog down 
agencies and use more tax dollars unnecessarily and be a full 
employment bill for lawyers, basically. I do not think that should be 
the objective of this legislation.
  Mr. President, further, I must admit that I do not understand exactly 
how this whole thing would work. It would increase the complexity, as I 
see it, and it would create more judicial review, to be added to our 
expense in a substantial way.
  Let me say that the Regulatory Flexibility Act was passed by Congress 
as a way to ensure that agencies would evaluate the impact of proposed 
regulations on small businesses and other small entities such as local 
governments. The act was also intended to ensure that agencies consider 
less burdensome and more flexible alternatives for these small 
entities.
  I have supported the reg flex act from its inception when passed here 
a number of years ago. But the legislation before us and the amendment 
we are considering now would fundamentally change the Regulatory 
Flexibility Act by making its considerations the controlling factor, 
the controlling decisional criteria, for the very promulgation of a 
rule. I do not think that is the way we ought to be going. We should 
ensure that the Federal Government is more sensitive to the needs of 
small business. I certainly agree with that. That is why the Glenn-
Chafee bill, S. 1001, provides for judicial review of final reg flex 
decisions, and the whole process can be challenged at that one time. It 
does not permit judicial challenge at each step along the way, which 
means multiple judicial review, and additional ways of stalling what 
may be very good legislation.
  Now, both bills also do provide--whether it is S. 343 or S. 1001, 
they both provide for congressional veto. In other words, a rule or 
regulation being put out by an agency can be challenged and brought 
back to the Congress and lay here under one bill for 60 days or 45 days 
for challenge here on the floor. That applies to small business 
provisions or any other provision.
  So it seems to me that we have provided adequate protection, quite 
apart from the amendment as proposed by the Senators from Georgia.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ROTH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. Mr. President, I want to take a moment to talk about the 
small business amendment to S. 343 offered by Senator Nunn and Senator 
Coverdell.
  This amendment would, of course, modify the definition of ``major 
rule'' to include rules that have a significant impact on small 
business and small governments as provided in the Regulatory 
Flexibility Act.
  This would have the effect of requiring all reg-flex rules to be 
subject to cost benefit analysis and the decisional criteria, as well 
as to be subject to the petition process for reviewing rules.
  Mr. President, as I have said before, I am deeply concerned about the 
impact 

[[Page S 9629]]
of the regulatory burden on small business. Indeed, that is exactly why 
I support the amendment offered by Senator Abraham earlier today.
  The Nunn amendment in its present form does raise some serious 
problems. I had hoped we could use an approach for this amendment 
similar to the Abraham amendment. So far, we have not been able to 
reach that agreement.
  While I believe strongly in the need for regulatory reform, it must 
be reform that is workable. I fear that, as drafted, this amendment 
could place too heavy a burden on the agencies, which are already 
pressed by the many other provisions of S. 343.
  This amendment does not distinguish clearly between costly rules 
which deserve detailed analysis, and smaller rules which should not be 
subject to time-consuming and expensive analysis.
  I hope that we can work together to address the concerns about the 
workability of this amendment, concerns shared by many of my 
colleagues. I would welcome the opportunity to use some of the good 
ideas in the Abraham amendment, such as giving OIRA greater 
responsibility in selecting rules for analysis, or to pursue other 
suggestions offered by my colleagues.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COVERDELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COVERDELL. Mr. President, there has been an assertion that this 
would unleash a flood of regulatory burden on the agencies. I want to 
make the point again that quite the reverse would be the case. There 
has been a regulatory flood on the small businesses of America.
  As I said in my opening statement, if I want to pick where I want 
that burden to be, it ought to be on the Government side, and not on 
the backs of all these small companies with 4 or less employees, or 50 
or less employees, which is almost all the companies in America except 
for 6 percent.
  Last year, 116 rules were swept up by the net of the Regulatory 
Flexibility Act, the act that is already in place.
  Now, this idea that we would have 800, I think, is an unfounded 
assertion. If this had been in effect last year, it would have swept up 
116, just as it did last year. Because there is a judicial review, 
there could be changes that would add some. I think it is most 
difficult to assert that we will have 500 or 1,000 new rules that would 
require action under this amendment.
  Assuming, again, that there is more burden, it ought to be on the 
back of the Government and not on the back of the small business. We 
should be trying to protect the small businesses, not the regulators. 
That is where our concern is properly fixed--helping small businesses 
to generate new companies, new jobs, and expand.
  Now, I would just like to take a moment, Mr. President, and review 
what is already required under the act which Congress has already 
passed, the Regulatory Flexibility Act of 1980. We have had any number 
of statements here asserting that we all support that.
  Whenever an agency is required to publish a notice of proposed 
rulemaking for any proposed rule, the agency shall prepare and make 
available for public comment an initial regulatory flexibility 
analysis.
  What does that include? Each initial regulatory flexibility analysis 
required under this act shall contain a description of the reasons why 
action by the agencies is being considered; a succinct statement of the 
objectives of and legal basis for the proposed rules; a description of, 
and where feasible, an estimate, of the number of small entities to 
which the proposed rule will apply; a description of the projected 
recording, recordkeeping, and other compliance requirements of the 
proposed rule, including an estimate of the classes of small entities 
which will be subject to the requirement and the type of professional 
skills necessary for preparation of the report or record; an 
identification to the extent practicable of all relevant Federal rules 
which may duplicate, overlap, or conflict with the proposed rule.
  Each initial regulatory flexibility analysis shall also contain a 
description of any significant alternatives to the proposed rule which 
accomplish the stated objectives of political statutes and which 
minimize any significant economic impact of the proposed rule on small 
entities.
  It goes on. Mr. President, that is what the Regulatory Flexibility 
Act required in 1980. I do not know how to do this without having a 
cost estimate. All we are saying in the amendment is that it should 
include a financial impact on small business--a financial impact on 
small business. And that there is an enforcement proceeding to ensure 
that is done--the judicial review.
  I would be hard pressed, Mr. President, having fulfilled the act that 
already has been in effect for 14 years, I do not know how to do this 
as a former businessman and not understand economic consequences.
  In other words, the argument I am making, Mr. President, is that the 
work is virtually done under the existing law. We are simply saying, 
Mr. President, that the Government is going to have to do and certify 
what we all intended all of small business to think we were doing when 
we passed this act.
  Several points, Mr. President. First, I think the assertion of the 
increased burden is without sufficient evidence. The evidence we have 
would suggest a modest increase.
  Second, Mr. President, the act that is already required of the 
agencies requires virtually all that is necessary already. If we spent 
the money to do all this work, why not have the fundamental question 
before the country and the American people: What is the cost going to 
be?
  The average small businessman today is spending $5,500 per employee; 
the average American family is spending $6,000 a year because of the 
surge of regulation. We ought to know what the impact of these 
regulations would be.
  Last, Mr. President, the point I would like to make is that we ought 
to be in the business of being more concerned about the small business 
person who has such limited resources and their ability to deal with 
one regulation after another after another than with worrying about 
what the regulatory overload will be on the people who are making all 
these regulatory reviews.
  Mr. President, maybe a side effect would be that the agency will be 
more careful in determining whether or not it needs to propose a new 
regulation. That is another way we could affect what the ultimate cost 
is of the review of the regulation. They might start thinking, for a 
change, do we need it? And my guess is that this amendment, in fact the 
overall underpinnings of the bill itself, will suggest that the 
Government needs to be a little more thoughtful about imposing yet 
another requirement, another burden, and another form on that little 
company of two or three people, all over America, who have so little 
ability to respond or know, even, what the new regs require.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, we all want and hope and believe in a 
significant and a meaningful regulatory reform. No one wants rules that 
do not make sense or are not cost effective. No one wants, or should 
want, regulatory requirements that exceed real needs. We want 
Government to be smart, efficient, reasonable and practical.
  There are plenty of regulatory horror stories, some of which are 
accurate, some of which are not. There is more than enough evidence, 
though, for us to be convinced of the fact that the regulatory process 
needs fixing. It has needed fixing for some period of time.
  We have been in the process of reforming it for years. Back in the 
late 1970's, when the Governmental Affairs Committee conducted a 
lengthy set of hearings and issued a multivolume report on the 
regulatory process, the findings in those hearings led directly to the 
Senate passage, in 1981, of Senate bill 1080, the number was at that 
time, by a unanimous vote, 94 to nothing.
  S. 1080 looked similar in many ways to the legislation which we are 
considering this week. It had many of the same elements, including 
cost-benefit analysis of major rules, a procedure for reviewing 
existing rules, legislative review, and Presidential oversight. 

[[Page S 9630]]

  S. 1080 did not make it into law because the coalition supporting it 
did not hold together once the bill got to the House. It was tough 
reform, and if it had been in place for the last 15 years we would not 
be here today with the legislation before us. We would undoubtedly have 
had a lot fewer horror stories and a lot more thoughtful regulation 
over the past decade and a half.
  So we are here to try again, and I am all for it. We spent several 
months in the Governmental Affairs Committee earlier this year 
considering a bill introduced by Senators Roth and Glenn which, with a 
few amendments, we reported to the full Senate for its consideration. 
Many of us think it is a solid bill. It was passed by a unanimous, 
bipartisan vote of 15 to nothing. It has cost-benefit analysis, risk 
assessment, legislative review, and a procedure for the review of 
existing rules. It is tough but balanced. It is a bill that makes 
sense.
  The bill is tough, the Governmental Affairs bill, which is basically 
now the Glenn-Chafee bill. It is tough because it would require by law 
that every major rule be subject to a cost-benefit analysis. It would 
require that each agency assess whether the benefits of the rule that 
it is proposing or promulgating justify the costs of implementing it. 
It requires that agencies select the most cost effective rules among 
the various alternatives.
  These two elements are key controls to rational rulemaking. The 
Governmental Affairs approach, now embodied in Glenn-Chafee, is tough 
because, by statute, it resolves once and for all the role of the 
President in overseeing the regulatory process. The bill gives the 
President the authority to oversee the cost-benefit analysis and the 
risk assessment requirements, and recognizes the unique contribution 
that a President, above all of the agencies, can make to rational 
rulemaking. It also gives Congress the right and the practical 
capability to stop a rule before it takes effect.
  The Glenn-Chafee approach is tough because it allows for judicial 
review of an agency's determination as to whether or not a rule meets 
the $100 million economic impact test and because a rule can be 
remanded to an agency for the failure of the agency to do the cost-
benefit analysis or risk assessment. It is tough because it requires 
existing major rules to be subject to repeal should the agency fail to 
review them in 10 years, according to the schedule and the requirements 
of the legislation.
  The bill was reported out of Governmental Affairs, as I mentioned, by 
a unanimous bipartisan vote. It is a balanced bill, and this is the 
balanced half of it. It is balanced because it recognizes that many 
benefits are not quantifiable and that decisions about benefits and 
costs are, by necessity, not an exact science but require, often, the 
exercise of judgment. It is a balanced alternative because it would 
require that, to the extent the President exercises his oversight 
authority over the rulemaking process, that authority must be conducted 
in the public eye and with public accountability.
  It is a very important part of the Glenn-Chafee bill that we have 
some sunshine on the rulemaking process right up to and including the 
office of the President and the OMB. It took us years to get to that 
point. President Bush promulgated an Executive order--President Clinton 
has promulgated a similar Executive order--that called for sunshine 
when rules are kicked upstairs to the White House for their 
consideration before final promulgation. This bill, this alternative 
which is called Glenn-Chafee, in a very significant step incorporates, 
or would incorporate into law, the basic elements of the Executive 
orders of Presidents Bush and Clinton.
  The Glenn-Chafee bill is balanced because it does not subject all 
rules to congressional review, just the major rules. It is balanced 
because it uses information as a tool for assessing agency performance 
and makes that information available to everyone to judge and to 
challenge. It is practical because it does not overwhelm the rulemaking 
process by requiring cost-benefit analysis and risk assessment for less 
than major rules. It is balanced because, while requiring an analysis 
and certification by the agency as to whether the benefits of the rule 
justify the costs, it does not override the underlying statutory scheme 
upon which a rule is based.
  I believe the amendment before us, to address the specific amendment 
on the floor, goes too far. It would provide for the interlocutory 
judicial review at an early stage in a proceeding in a way which could 
swamp both the regulatory process and the courts. What we are trying to 
do is reform this system and not swamp it and not make it worse. We 
all, again--hopefully all of us--want to reform this system, the cost-
benefit analysis, with the kind of risk assessment which is essentially 
in both bills.
  But what we must avoid doing is swamping either the regulatory system 
so that it becomes totally unworkable, or delaying it through 
interlocutory court proceedings, which will, in effect, make the 
regulatory system unworkable.
  I do not think any of us want that. We want a system which is 
commonsensical and does not impose costs and burdens on this society 
where the benefits are inadequate. But surely there is a role for 
rules. There is a role for the rollback of rules, for the review of 
existing rules, and we have to make sure, both in terms of new rules 
and review of existing rules, that we have a process which can function 
in a practical way.
  The amendment before us would add this interlocutory appeal from an 
agency determination that a rule will not have a significant impact on 
a small entity and, therefore, it does not require regulatory 
flexibility analysis.
  One of the problems with having that interlocutory appeal is that it 
then opens up the court process to two appeals on the same rule. You 
have a rule up front to a court for an interlocutory appeal if an 
agency does not do a regulatory flexibility analysis. That then can go 
to the court of appeals. That then can be appealed to the court of 
appeals. That then can be appealed to the Supreme Court just on the 
question of whether or not the agency erred in failing to do a 
regulatory flexibility analysis. But that does not end it because there 
is still an appeal at the end on the subject of regulatory flexibility 
analysis. This time, however, on the question of whether or not, 
assuming the regulatory flexibility analysis was done, it was done 
correctly.
  So the amendment before us has really two problems. One is that it 
will significantly increase the load on courts and the delays in the 
regulatory process. It does it unnecessarily because in the bill itself 
there is judicial review of a decision by an agency not to conduct a 
regulatory flexibility analysis. But it is done at the correct time, 
which is at the end of the process, and it is done at a time when both 
aspects of regulatory flexibility can be decided by a court at the same 
time: One, if there was a failure on the part of the agency to conduct 
the regulatory flexibility analysis, was that failure error; and, 
second, if there was a regulatory flexibility analysis, whether or not 
the analysis was correctly done. That is the more practical way to do 
it. That is the way to avoid both swamping courts in judicial review 
prematurely, and that is the way if we can avoid having two judicial 
reviews in effect of regulatory flexibility analysis relative to the 
same rule.
  The amendment also is going to create a problem in that it is going 
to probably double the number of rules. We can debate how many more 
rules there are going to be subject to this elaborate cost-benefit 
analysis requirement if we adopt this amendment. But the best estimate 
that we can make is that it would at least double the number of rules 
that will be subject to that cost-benefit analysis. It is costly. It is 
something which delays the process. It is obviously necessary when it 
comes to major recalls. I think all of us agree on that. Both bills 
contain that. The question is whether or not, given the downsizing of 
Government, we can effectively then load onto agencies these kinds of 
burdens to increase so dramatically the requirement relative to cost-
benefit analysis.
  So for both those reasons, I hope that we would either defeat or 
modify the amendment before us because to put it in the middle of the 
rulemaking, to put this interlocutory review in the middle of the 
rulemaking process, will use the court systems unnecessarily. It will 
use them prematurely. And it will end up overloading both systems. That 


[[Page S 9631]]
would be harmful for people who are participants in the regulatory 
process, whether they are favoring a regulation or opposing it.
  Again, I emphasize, this can work both ways. There are many 
businesses that want to review existing rules. We want the reviews to 
go in a practical and a smooth way, too. There are many businesses 
which need new rules. For instance, the bottled water business has been 
waiting for a rule for years to try to put some restrictions on the 
representations of the type of water that is being sold as bottled 
water, as spring water, for instance. It is the business which is 
waiting for the rule. It is the business which is trying to stop the 
false representations relative to bottled water.
  So this is not always the kind of outside groups versus business. 
This is frequently business that needs rules to be changed or added or 
amended. We have to make sure that this rulemaking process works in a 
practical and a functional way.
  So, for that reason, I hope that the pending amendment will be 
defeated or modified.
  I yield the floor.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, the Senator from Michigan referred to 
the interlocutory appeal, and, in fact, the Nunn-Coverdell amendment 
has been criticized because it allows two appeals, both an 
interlocutory appeal to be taken within 60 days of the notice of the 
proposed rulemaking and a later appeal.
  Mr. President, I have just been discussing with the Senator from 
Georgia a modification of that amendment to make sure that the final 
appeal relates only to those classes of appeals which would not 
otherwise be subject to appeal under section 706 of the Administrative 
Procedure Act or under section 625 of this act, which are, in effect, 
final agency actions, so that both the appeal and the remedy, the final 
appeal under this bill, would be a very limited and narrow one. But I 
will describe that amendment when it comes up.
  Mr. LEVIN. I wonder if the Senator will yield just on that point for 
a question.
  Mr. JOHNSTON. Yes.
  Mr. LEVIN. Is the amendment going to be modified so as to prevent an 
appeal on how a regulatory flexibility analysis has been conducted if 
there were an interlocutory appeal on the question of whether a 
regulatory flexibility analysis should be done? Will the modified 
amendment be precluding an appeal on how that regulatory flexibility 
analysis has been conducted at the end of the rulemaking process? 
Because that would be taking away from small business something that it 
now has, for instance, with small units of government. I do not know if 
that is the intent. I think it should be clear. But the double appeal 
point that I was making, I think, is slightly different from the double 
appeal point which has been made previously, which is that the 
interlocutory appeal that is provided here goes to the question of 
whether or not there should be a regulatory flexibility analysis, and 
that presumably there still would be an appeal at end of the process on 
the question of how that analysis had been conducted, assuming one is 
ordered. So that is still a double appeal.
  Mr. JOHNSTON. The question is an appropriate one. The first appeal in 
the interlocutory appeal process would be on the question of major 
rules, whether it meets the $50 million threshold, whether it is a 
matter that involves the environment, health, and safety, or whether it 
has a significant impact on a substantial number of small businesses 
and, therefore, requires the regulatory flexibility. That appeal would 
be taken within 60 days and putting the notice in the Federal Register. 
The idea here is that you foreclose further appeals after that 60 days. 
Now there is in addition to that in the present Nunn-Coverdell 
amendment a more limited petition for review which allows you to get 
into the quality of the regulatory flexibility analysis.
  What we are saying is if it is subject to an appeal under section 706 
of the Administrative Procedure Act, or under section 625 of this act, 
then the quality of that regulatory flexibility analysis insofar as it 
relates to the question of whether the final agency action was 
arbitrary, capricious or an abuse of discretion, they would have in 
that appeal the right to test the regulatory flexibility analysis at 
that point.
  For those which were not subject to that, they would have the ability 
to appeal in any court in the Nation that has jurisdiction and to ask 
for what would be an order to go back and do the reg-flex analysis.
  Mr. LEVIN. Is that at the end of the process? Is there an appeal open 
at the end of the process to order a reg-flex analysis if there were no 
interlocutory appeal that had been asked?
  Mr. JOHNSTON. Yes.
  Mr. LEVIN. So you have a choice as to whether to take an 
interlocutory appeal on that issue or to make that part of the final 
appeal; is that correct?
  Mr. JOHNSTON. You have a choice. If you wait until the final appeal, 
it would be a more limited choice because the only remedy provided 
there is for the court, in effect, to order the reg-flex analysis, and 
if that then would call for a modification in the rule, then the rule 
would then be modified, but there would be, for example, no stay of the 
rule because of the inadequacies of the reg-flex.
  Mr. LEVIN. It was my question--I am unclear--is it the intent of the 
modified amendment that there could be either an interlocutory appeal 
on the question of whether or not a reg-flex analysis has to be made or 
that issue could be raised for the first time at the end of the 
rulemaking process, either one would be allowed?
  Mr. JOHNSTON. No; the question of whether this is a rule which has a 
substantial, significant effect on a substantial number of small 
businesses, which is the trigger for the reg-flex, it is the intent 
here--and this language has not been drawn--it is the intent here that 
that test be only once.
  Mr. LEVIN. And that it must be made on interlocutory appeal?
  Mr. JOHNSTON. That is correct. That is the intent. It is a little 
difficult to give precise answers since the actual language has not 
been drawn. That is the intent. But as to the quality of that, you can 
test that only later after the reg-flex attempt.
  Mr. LEVIN. I thank my friend from Louisiana for his answers, and I 
then would withhold any further comment until after we see the language 
on it. I wonder if the Senator will yield for one additional question.
  Mr. JOHNSTON. Surely.
  Mr. LEVIN. Is the intent that the rulemaking process be stayed during 
the interlocutory appeal on reg-flex?
  Mr. JOHNSTON. No, not at all. That is the whole idea.
  Mr. LEVIN. Is that clear in the language of the amendment?
  Mr. JOHNSTON. We believe so, but if it needs to be further clarified, 
it can be. The idea here is that you want to have this determination 
made early enough in the process so that you can remedy the defects in 
the rule while the rule is still going on and not have to wait until it 
is all over with, because some of these rules take 2 or 3 years. And if 
you do not find out until, say, your final appeal is 6 or 9 months 
after the final rule, then you have to stay the rule and go back and do 
it all over again.
  Mr. LEVIN. Of course, that is what judicial review is all about. 
There is presumably an incentive to do the process right. That is why 
there is judicial review at the end. And you do not wipe out judicial 
review at the end in any event. You still allow judicial review in many 
ways, so it is not as though you are doing a whole bunch of things up 
front and thereby precluding the review at the end.
  Mr. JOHNSTON. No, but you would preclude a review, for example, on 
whether this is a major rule, whether it has $50 million, if that is 
the trigger, or $100 million, which I hope we can get an amendment in 
to make it $100 million. That question would be reviewed, would be 
finally reviewed on the interlocutory basis.
  Does the Senator understand what I am saying?
  Mr. LEVIN. Is it the intent of the sponsors of this bill, and the 
Senator indicates the sponsors of this amendment, to preclude judicial 
review at the end of anything which can be raised by interlocutory 
appeal at the beginning?
  Mr. JOHNSTON. Will the Senator reask the question.
  
[[Page S 9632]]

  Mr. LEVIN. Is it the intention of the sponsor of the bill pending 
here, of the Dole-Johnston bill, and is it the Senator's understanding 
that it is the intention of the makers of this amendment, that the 
interlocutory appeal which is provided is the exclusive remedy to raise 
the issues that can be raised by interlocutory appeal and that if 
anyone fails to raise an issue, which could be raised by interlocutory 
appeal, by interlocutory appeal, it cannot then be raised at the end of 
the rulemaking process?
  Mr. JOHNSTON. That is correct. And I hope our language will properly 
reflect that.
  Mr. President, let me be a little more clear if not only for the 
purpose of this small business amendment, the reg-flex amendment, but 
also for the purpose of the whole bill. The reason for having the 
interlocutory appeal is that the question can be put at rest early in 
the process.
  If, for example, an agency determines that the rule is likely to have 
an impact of less than $50 million a year, then it would not be a major 
rule, would not require the cost-benefit analysis, or the risk 
assessment. They would make that determination early on, file that in 
the record, and any party, any interested party, would then have 60 
days from the time of that determination to make this interlocutory 
appeal on the question of whether it was a major rule because of the 
amount of dollars, whether it was a rule that affects health, safety, 
the environment, which in turn requires the risk assessment, or in this 
case whether it has a significant effect upon a substantial number of 
small businesses.
  The idea is that if that appeal is not made within 60 days, that you 
are foreclosed from raising that later on in the process.
  Keep in mind that if an appeal is made within the 60 days on the 
basis that they failed to make it into a major rule, that the agency 
itself could make a determination, could in effect moot the appeal by 
going back and doing the cost-benefit analysis and the risk assessment.
  What we find under the present law in areas like NEPA, National 
Environmental Policy Act, agencies tend to err on the side of 
conservative in doing an environmental impact statement, which is much 
more involved than the environmental impact assessment. They will do 
the statement rather than the assessment many times because they do not 
want all their work to be thrown out X years later at the end of the 
process.
  The result is that it frequently requires tremendous amounts of 
additional expense in doing that which the law would not otherwise 
require. And the reason for the interlocutory appeal is to be able to 
get that question determined up front and early so that the results of 
the whole system will not be thrown out.
  The concern with the Nunn amendment, even as amended, when amended, 
is that it is likely to cause an agency overload or much more than the 
agencies are able to do.
  The amount of personnel that the agencies have, the amount of moneys 
that the agencies have in order to perform these risk assessments is, 
of course, limited. Now, how many additional rules would this require 
the agencies to do? We do not know. OMB tells us that it could be 
hundreds of additional rules that would be caught under this 
definition.
 It could have the effect of doubling, tripling, or even a fivefold 
increase in the amount of work that they have to do.

  I hope, Mr. President, that if this amendment is adopted and becomes 
part of this law that that is not the result. However, I think that it 
is going to require continued analysis as this matter moves along. It 
is not my purpose, frankly, to vote for this amendment, although we are 
not making, or at least I am not making, a major challenge to this 
amendment, given the assurances of the Senators from Georgia that we 
will be able to continue to work on it to avoid the question of agency 
overload.
  However, until we have dealt with a more assuring way with this 
question of agency overload, I will not be able to vote for this 
amendment.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I believe this amendment to S. 343 is of 
paramount importance. S. 343, as written now, will unquestionably 
benefit small businesses by requiring Federal bureaucrats to only 
promulgate regulations that are cost-effective and based on good 
science. But adoption of the Nunn-Coverdell amendment will guarantee 
that small businesses, which represent the vast majority of employers 
and employees in this Nation, thus encompassing most Americans, will 
further benefit from regulatory reform by assuring that all regulations 
that are currently subject to the Regulatory Flexibility Act of 1980, 
termed the ``reg flex act,'' will also be subject to S. 343's cost-
benefit analysis provision and periodic congressional review.
  Small businesses create most of the jobs in America. This is 
demonstrated by the fact that from 1980 to 1990, small businesses with 
fewer than 20 employees created 4.1 million net new jobs. Compare that 
with big business. Large businesses with more than 500 employees lost 
over 500,000 net jobs over the same time period.
  According to the Small Business Administration, small business bears 
a disproportionate share of regulatory burdens. In fact, SBA, the Small 
Business Administration, estimates that the burden of regulations on 
small business is three times greater than that for large businesses. 
It is clear that to assure small businesses will continue to act as 
America's locomotive for job creation, Congress has to lift the 
regulatory burden from small family businesses.
  The Nunn-Coverdell amendment will accomplish this through several 
mechanisms. First, the definition of ``major rule.'' S. 343 is amended 
to include rules that have a significant economic impact on a 
substantial number of small businesses, virtually the same definition 
that triggers the reg flex act. The determination of a rule as a major 
rule subjects the rule to S. 343's cost-benefit analysis. This will 
assure that rules affecting small businesses will be cost-effective and 
less burdensome.
  This designation of rules having a substantial impact on small 
businesses as a major rule subject to cost-benefit analysis is 
necessary to close a loophole in this bill. The $50 million threshold 
amount for a major rule may be too high for many small businesses. For 
instance, a regulatory impact of less than that amount may have a 
devastating effect on a small business or a sector of the economy that 
may not yet represent a significant burden on a Fortune 500 company. 
The Nunn-Coverdell amendment would resolve this problem by requiring 
that all rules that have a significant impact on small businesses be 
classified as a major rule under S. 343.
  A legitimate question is just how many regulations does this 
amendment encompass? How many new major rules will be subject to cost-
benefit analysis under S. 343? In other words, what is the impact of 
this amendment to Federal agencies' resources and personnel? And the 
answer is, not that much. The reg flex act requires that regulatory 
burdens be reduced for those regulations that have a ``significant 
impact on a substantial number of small entities.''
  Small entities include small businesses as well as both small 
governments and charities, entities that shoulder a disproportionate 
share of the cost of regulation. Last year under the reg flex act just 
127 regulations qualified for that act's special treatment. The Nunn-
Coverdell amendment, as I understand it, would encompass only that part 
of the 127 regulations that affect small business and even 127 is not a 
great or burdensome amount.
  The other mechanisms of this amendment that assure protection of 
small businesses involve modifications of the reg flex act. The most 
important establishes a requirement for agencies to conduct a cost-
benefit analysis before rules are promulgated under the reg flex act. 
Furthermore, the determination by an agency that a rule will not have a 
significant impact on small businesses is made judicially review-able. 
I believe that these changes will buttress our economy by reducing the 
burdens imposed on our small businesses by regulations.
  So I urge my colleagues to support the Nunn-Coverdell amendment. I 
think it is a good amendment. I think 

[[Page S 9633]]
it helps the bill. I think it closes a loophole. I think it protects 
small businesses. I think that it makes the regulatory forces in this 
country be more responsible and, above all, it amounts to common sense. 
To me, that is what this bill is all about--common sense. I think it 
would be well for us to support this amendment.
  I yield the floor.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER (Mr. Grams). The Senator from Michigan.
  Mr. LEVIN. Mr. President, the Senator from Louisiana and I previously 
had a colloquy, and I very much welcome the language that he is going 
to be preparing to clarify a critical point, but it seems to me that 
the more that point is clarified, the less of a favor we are doing for 
small business in this amendment. Let me explain why.
  In talking with the Senator from Louisiana, and just talking with the 
senior Senator from Georgia, it is quite clear that the intent of this 
amendment is that an issue which can be raised on an interlocutory 
appeal must be raised at that time or else it is precluded from being 
raised at the end of the rulemaking process.
  The problem with that is that an awful lot is learned about the 
impacts of rules during the comment period. That is one of the reasons 
for the comment period. To preclude a small business from taking 
advantage of what is learned during the comment period so it can argue 
on an appeal at the end of the rulemaking process that this rule has a 
significant impact on small business or on small units of local 
government, it seems to me, is doing a disfavor, a disservice to these 
smaller units.
  So while that clarification I think is important in terms of 
congressional intent and it is important in order to avoid two appeals 
on the same subject, the better road to go here is to have the appeal 
at the end of the process, as it is in the way the bill is written now, 
where you can use the comment period to gain evidence as to why a 
regulatory flexibility analysis is essential. To preclude a small unit, 
be it business or small unit of government, from taking advantage of 
that comment period to make a case as to why a regulatory flexibility 
analysis is necessary, it seems to me, is not the way we should be 
going in terms of trying to help both small businesses and small units 
of government.
  So while I think the clarification is important, again, so we all 
understand what the intent is and while it is important in order to 
avoid two appeals on the same subject, the conclusion that is reached 
has the appeal at the wrong point. The appeal should be there. It is 
new. It is important to small business that there be an appeal on this 
issue and the small units of government. But the right place for that 
appeal to come is at the end of this process where they can then use 
the record which has been gained during the comment period to make the 
argument that there should have been a regulatory flexibility analysis 
and that failure to do so was an error which requires the rule to be 
remanded and to be done right.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. NUNN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 1491, As Modified

  Mr. NUNN. Mr. President, I send a modification to the desk.
  The PRESIDING OFFICER. The Senator has that right.
  The amendment is so modified.
  The amendment, as modified, is as follows:

       On page 14, line 10, strike out ``or''.
       On page 14, line 16, add ``or'' after the semicolon.
       On page 14, insert between lines 16 and 17 the following 
     new subparagraph:
       ``(C) any rule or set of closely related rules, not 
     determined to be a major rule pursuant to subparagraph (A) or 
     (B), that the agency proposing the rule determines will have 
     a significant economic impact on a substantial number of 
     small businesses, pursuant to subchapter I shall be deemed to 
     be a major rule for the purposes of subchapter II;
       On page 39, line 22, strike out ``and''.
       On page 39, line 24, strike out the period and insert in 
     lieu thereof a semicolon and ``and''.
       On page 39, add after line 24 the following new 
     subparagraph:
       ``(C) an agency certification that a rule will not have a 
     significant economic impact on a substantial number of small 
     entities pursuant to section 605(b).
       On page 40, line 5, insert ``and section 611'' after 
     ``subsection''.
       On page 68, strike out all beginning with line 9 through 
     line 11 and insert in lieu thereof the following:
       ``(A) include in the final regulatory flexibility analysis 
     a determination, with the accompanying factual findings 
     supporting such determination, of why the criteria in 
     paragraph (2) were not satisfied; and
       On page 72, insert between lines 14 and 15 the following 
     new subsection:
       (e) Amendments to the Regulatory Flexibility Act.--
       (1) Technical and clarifying amendments.--Section 612 of 
     title 5, United States Code, is amended--
       (A) in subsection (a) by striking ``the Committees on the 
     Judiciary of the Senate and the House of Representatives, the 
     Select Committee on Small Business of the Senate, and the 
     Committee on Small Business of the House of Representatives'' 
     and inserting ``the Committees on the Judiciary and Small 
     Business of the Senate and House of Representatives''; and
       (B) in subsection (b) by striking ``his views with respect 
     to the effect of the rule on small entities'' and inserting 
     ``views on the rule and its effects on small entities''.
       On page 72, line 15, strike out ``(e)'' and insert in lieu 
     thereof ``(f)''.

  Mr. LEVIN. Mr. President, I wonder if I could ask the sponsors of the 
amendment the following question, since we have not had a chance to 
look at the modification.
  Mr. GLENN. Mr. President, I know this has been the subject of debate 
on the floor--not publicly but among different Members. I wonder if we 
can have a brief explanation. We only have a few minutes before the 
vote.
  Mr. LEVIN. Mr. President, it is my intention to ask the senior 
Senator from Georgia this question. Is it the intent of the 
modification to make it clear that there is only one appeal that is 
permitted on the issues which can be raised by interlocutory appeal and 
that one appeal is the interlocutory appeal? Is that, as previously 
stated by the Senator from Louisiana, the purpose and effect of the 
modification sent to the desk?
  Mr. NUNN. If I could say to my friend, there are two parts of this 
modification. One is to make it clear that risk assessment is not 
required under this amendment, only cost-benefit analysis. We talked 
about that earlier this afternoon. There was an omission from the 
draft.
  The modification relates to judicial review. You made the point that 
small businesses might need two bites at the apple. The way the 
amendment reads, there would be two bites at the apple. We intend to 
change that at a later point during the debate on this bill.
  Mr. LEVIN. Is it the intent to modify it so there is only one bite at 
the apple?
  Mr. NUNN. This whole issue of judicial review will require more work. 
As the Senator knows, it is complicated, and for me, is not fixed at 
this point. We are going to have to work on it more.
  Mr. LEVIN. Is it the intent later on to require or to provide only 
one bite at the apple later on?
  Mr. NUNN. That is my present intent. I am always persuaded by my 
friend's arguments, so we may have to think more on that.
  Mr. LEVIN. Is it the intent that that one bite be the interlocutory 
appeal? Is that the present intent?
  Mr. NUNN. I would like to work with the Senators on that.
  Mr. GLENN. Would the Senator consider, rather than having a vote now, 
waiting until it is modified and wait until later?
  Mr. NUNN. I believe we ought to go ahead and vote. This judicial 
review issue has to be addressed on the overall bill. So we are going 
to have to work on this issue more, within the overall bill. I would 
like to vote on this amendment.
  Mr. LEVIN. I am wondering if the first part of the amendment could be 
voted on.
  Mr. NUNN. There is no way to divide it at this point.
  Mr. LEVIN. It is a rather unusual thing we are doing. We are adopting 
an amendment which we are saying later on we know needs to be modified, 
and it is the intent of the makers to modify it. I would think it would 
be better to modify it before we vote.

[[Page S 9634]]

  Mr. GLENN. Or you are going to get people locked in on this vote.
  Mr. NUNN. I do not think this is going to be the issue on which 
people are voting. I hope I am not the first Senator to say on the 
floor that an amendment is not perfect. It will require further work. 
This will require further work on that limited point.
  This is not the central point of the amendment. The central point is 
to have the small business community not be full beneficiaries of these 
very important changes to regulatory review process.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Explanation of Absence

  Mr. DOLE. Mr. President, the senior Senator from New Hampshire [Mr. 
Smith] is necessarily absent from the Senate and is holding an 
important meeting on Superfund reform in his home State. He has asked 
me to announce that had he been present for the votes we are just about 
to take, he would have voted in favor of both the Abraham and the Nunn-
Coverdell amendments.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                       Vote on Amendment No. 1490

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
of the Senator from Michigan. On this question, the yeas and nays have 
been ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. I announce that the Senator from Missouri [Mr. Bond], the 
Senator from Oklahoma [Mr. Inhofe], the Senator from Vermont [Mr. 
Jeffords], and the Senator from New Hampshire [Mr. Smith] are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 96, nays 0, as follows:

                      [Rollcall Vote No. 297 Leg.]

                                YEAS--96

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inouye
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Nunn
     Packwood
     Pell
     Pressler
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Shelby
     Simon
     Simpson
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wellstone

                             NOT VOTING--4

     Bond
     Inhofe
     Jeffords
     Smith
  So the amendment (No. 1490) was agreed to.
  Mr. GRAMM. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. COVERDELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Vote on Amendment No. 1491, as modified

  The PRESIDING OFFICER. The question is now on amendment No. 1491, as 
modified, offered by the Senator from Georgia [Mr. Nunn].
  Mr. COVERDELL. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the amendment 
of the Senator from Georgia, as modified. On this question, the yeas 
and nays have been ordered, and the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Missouri [Mr. Bond], the 
Senator from Oklahoma [Mr. Inhofe], the Senator from Vermont [Mr. 
Jeffords], and the Senator from New Hampshire [Mr. Smith] are 
necessarily absent.
  The PRESIDING OFFICER (Mr. Burns). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 60, nays 36, as follows:

                      [Rollcall Vote No. 298 Leg.]

                                YEAS--60

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bingaman
     Brown
     Burns
     Campbell
     Coats
     Cochran
     Conrad
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feingold
     Feinstein
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Kassebaum
     Kempthorne
     Kerrey
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Packwood
     Pressler
     Robb
     Rockefeller
     Santorum
     Shelby
     Simpson
     Snowe
     Specter
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--36

     Akaka
     Biden
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Chafee
     Cohen
     Daschle
     Dodd
     Ford
     Glenn
     Harkin
     Inouye
     Johnston
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Pell
     Pryor
     Reid
     Roth
     Sarbanes
     Simon
     Stevens
     Wellstone

                             NOT VOTING--4

     Bond
     Inhofe
     Jeffords
     Smith
  So, the amendment (No. 1491), as modified, was agreed to.
  Mr. HATCH. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. COVERDELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  (At the request of Mr. Dole, the following statement was ordered to 
be printed in the Record.)
  S0634


                         explanation of absence

 Mr. BOND. I regret that I was unavoidably absent for the votes 
today. I was away from Washington to participate in a court-ordered 
appearance. If I had been present, I would have supported both the 
Abraham and the Nunn-Coverdell amendments.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, after more than a decade, it is about 
time that we are starting to work on regulatory reform. We have a very 
good bill going through the House of Representatives. Hopefully, we 
will be able to get just as good a bill through the U.S. Senate. I am 
glad that we are able to do this under the leadership of our majority 
leader, Senator Dole, because this is a historic comprehensive 
regulatory reform. This bill, S. 343, is a response to the informal 
rulemaking that has exploded in the last 50 years that was not 
contemplated in the original Administrative Procedure Act which passed 
in 1946.
  S. 343 involves a number of major regulatory reforms. These include 
cost-benefit analysis, risk assessment, petition reopener, judicial 
review, congressional review, peer review, and improvements to the 
Regulatory Flexibility Act.
  S. 343 is the latest product of a long-term evolutionary process. The 
foundation for S. 343 comes from the 97th Congress in the form, which 
we passed at 

[[Page S 9635]]
that time 94 to 0, of S. 1080. S. 1080 was the culmination of over 20 
years of work in the Senate to reform the regulatory process. 
Unfortunately, that year, in the 97th Congress, the House leadership, 
then under the control of the Democratic Party, did not believe that 
regulatory reform was needed, because they believed in the regulatory 
state. So the House leadership neglected to follow through on that 
bill, and the bill was never considered by the other body.
  Regulatory relief was a major issue in the congressional elections 
this year. It was part of our Contract With America. S. 343 is part of 
the fulfillment of the mandate that voters gave to the new leadership 
in Congress to bring about more effective and less costly rules and 
regulations.
  As chairman of the Judiciary Subcommittee on Administrative Oversight 
and the Courts, I began the Judiciary Committee's efforts in what has 
become an extensive legislative process. Beginning last February, my 
subcommittee held hearings over 2 days and then held a markup where I 
offered a substitute, which was adopted and reported to the full 
committee.
  Chairman Hatch then held another hearing before the full committee to 
consider the issue in even more detail. After a number of delays to 
accommodate the Democratic side of the aisle, the committee held 3 days 
of markup over a period of 3 weeks, and so the committee finally 
reported the bill last April 26.
  Since that time, Members and staff have worked extensively with those 
who had questions or problems with the bill, even including the White 
House. We received, in fact, a number of very positive suggestions. And 
because they were positive, meant to be helpful, and it showed 
cooperation by the other side, including the administration, many of 
these were included in the bill.
  S. 343 deals with two overall topics directly relevant to regulatory 
reform. The first major topic is regulatory analysis, including cost-
benefit determinations for new and existing major rules or regulations 
of the Federal Government and, where relevant, Mr. President, risk 
assessment criteria and procedures.
  The second major topic involves changes to the Administrative 
Procedure Act and other Federal statutes which contain equivalent 
provisions. These changes are in the procedures that the agencies are 
required to follow in rulemaking and also in the standards of judicial 
review and appeals of agency action.
  Through these provisions, Congress will give Federal agencies new 
substantive and procedural guidelines on how the agencies are to use 
the legislative powers which Congress has given them through other 
statutes to regulate. The ultimate objective in our legislation is for 
better Federal rules and regulations, and by better rules, we mean, 
very broadly speaking, rules that are to do social and economic good, 
where the benefit outweighs the harm.
  A second objective is to make the rulemaking process more rational 
and more open and to give persons who are the intended beneficiaries of 
the rule and those who are more likely to bear its costs greater 
opportunity to participate in the agency's proceedings. No one should 
reject the proposition that people who are to be affected by the 
regulations ought to have a part in the process of the agency's 
consideration of those, and also, once that process is over, through 
judicial review, to have a means of assuring that agencies, in effect, 
obey the law. S. 343 does that.
  These changes were designed then to supplement and to strengthen the 
regulatory analysis requirements of S. 1080, which is the core of the 
regulatory analysis that is in this new bill before us.
  I view the overall primary focus of this bill to be accountability. 
The essence of Government is accountability. The essence of lawmaking 
is accountability. The public holds us accountable through the regular 
election process. The regulatory scheme of things in the administrative 
branch of Government is somewhat removed from citizen participation, 
and the extent to which it is, I believe people who are regulators and 
people who make the regulations and rules tend to be less accountable.
  This bill, not as perfectly as is done through the election process 
affecting those of us in Congress, intends to bring accountability to 
the process of the regulation and rulemaking of the faceless 
bureaucrat. This means agency accountability to the people as well as 
to Congress who has delegated its authority to the agencies. It also 
means congressional accountability to the people because we are 
ultimately responsible for the laws that we pass. We should not punt to 
the agencies and to the courts to make very important determinations 
that ought to be made right here. Unfortunately, there will be those 
who will try to misrepresent our intentions by arguing that this bill 
will be used to gut our Nation's health, safety, and environmental 
laws.
  This argument, of course, is a sham, because there is not one among 
us who does not want to do everything that we reasonably can to protect 
the lives of our people and who recognize the need for sound and 
effective regulations. We all breathe the air, eat the food, and drink 
the water.
  We all want our children and grandchildren to be as safe as possible. 
To suggest otherwise, as some in this body are doing, and particularly 
as the media likes to popularize, is just downright shameful. We are 
concerned about the lives of people. This does not compromise that 
principle whatsoever. What it means to do is that regulation and 
rulemaking be accountable; that people take into consideration 
alternatives; that there is not one way to do something, and that there 
ought to be a relationship between cost and benefit, and there ought to 
be a scientific basis for regulation. The fact is that many rules and 
regulations have become too rigid and costly. These rules themselves 
could actually threaten our Nation's limited resources, as well as 
public support for the necessary rules.
  At a later time in this debate I am going to go into more specific 
detail about how ridiculous and onerous many regulations have become.
  Mr. President, Majority Leader Dole is to be commended for taking the 
initiative on this legislation and following through on what the 
American people want and expect. He is the leader of our party. Our 
party had a mandate in the election to do that, and he is carrying that 
out in the responsibility that he has. The efforts that are being made 
in the debating of this bill, in the consideration of this bill, is to 
make sure that our performance in office is commensurate with the 
rhetoric of the campaign. I think this bill is about as close as you 
can get to having that be a possibility.
  As others have said, we have to find ways to do things smarter and 
cheaper. As the committee report points out, we have become hostage to 
the unregulated regulatory process. S. 343 will help us out of this 
quagmire by requiring sound, effective, fair, reasonable regulation 
that will do the job the people intend that they do.
  We have all heard today very real stories of agencies gone mad. Well, 
I want to relate one story here today where bureaucrats got out of 
control. This story, and many others we will be hearing about, will 
underscore the need for commonsense reform. This story happens in my 
State. S. 343 is about reasonableness and responsibility. The American 
people are inspired by reasonable decisions. When the Government acts 
in the best interest of the majority of its citizens, the American 
people are encouraged by the Government's responsible actions.
  S. 343 is a responsible action which is in the best interest of the 
majority of Americans. One of the main problems this bill addresses is 
unreasonable regulations and overzealous regulators.
  This problem is clearly evident when it comes to agencies like the 
Environmental Protection Agency. The EPA was instituted and developed 
to promote policy advancing a clean environment at reasonable costs 
with fair and rational oversight. Fair and rational oversight, though, 
has not been exhibited recently by the EPA. Presently, the EPA exhibits 
arrogance and overzealous behavior while enforcing the agency's 
adversarial relationship with small business and farmers.
  Innocent citizens are easy prey for presumptuous EPA bureaucrats. I 
know this to be true because, as I have 

[[Page S 9636]]
said, I have a constituent who has personal scars from unjustified 
hardships resulting from brash EPA officials.
  This example happened outside a little town in the northwest corner 
of my State of Iowa. The name of that community is Akron, IA. It was 
business as usual that day at the Higman Gravel Company. Harold Higman, 
the owner, was outside topping off his pickup truck at the gas pump on 
his property. Mavis Hansen, a trusted employee of 20 years, was inside 
the office tending to the books, as she regularly did. Every other 
employee was working at their normal business responsibilities that 
early morning at 9 o'clock. You might say the morning routine had just 
begun.
  Suddenly, in a violent breech of the morning's routine, nearly a 
dozen unmarked cars roared onto the yard of the premise of that gravel 
business. They screeched to a halt in cadence. Forty agents poured from 
the cars and surrounded Mr. Higman, cocking their guns in unison.
  One agent, who was clad in a bulletproof vest, leveled his shotgun at 
Higman. The agent pumped the gun once to load it. As Mr. Higman, the 
owner, gulped and his knees quivered, the agent fumbled for his badge, 
and as Mr. Higman groped for words and he voiced a demand for an 
explanation, the agent responded with a ``shut up'' right in Mr. 
Higman's face.
  Meanwhile, another agent stormed the office. There he found the 
trusted employee of 20 years, the accountant, Mavis Hansen, at her desk 
tending to the books, as you would expect her to be doing at 9 o'clock 
in the morning. The agent stormed in with his gun and yelled ``freeze'' 
with his gun cocked and left it aimed right at Mavis Hansen's head.
  Poor Mavis Hansen sat frozen with shock, fear, and bewilderment. Now, 
Mr. President, to this very day, she still has nightmares and bouts of 
nervousness due to what happened that horrible day.
  Obviously, there must have been a reason for 40 agents to appear, 
shoving their shotguns down the throats of the owner and the bookkeeper 
of this gravel business in the small town of Akron in northwest Iowa. 
You might wonder, was it some kind of a drug operation? Was there a 
cache of weapons? None of those, Mr. President. What the agents were 
looking for were two so-called toxic chemicals that were allegedly 
stored at the Higman Gravel Co. grounds, supposedly buried in barrels.
  Now, this is what they had been told. They had been told this, Mr. 
President, by a paid informant. But it turns out that this paid 
informant was also a disgruntled former employee of the Higman Gravel 
Co. He had given the EPA a bum lead, and after 15 months of misery and 
ordeal, a jury in a criminal case finally decided that Higman was 
innocent. Mr. Higman and others were acquitted of charges stating that 
he had knowingly stored illegal toxic chemicals on his property.
  That decision and the 15 months of litigation cost Mr. Higman 
$200,000 in legal fees, lost business, and what is even more important 
in my State, Mr. President, it gave this very responsible business 
person a damaged reputation.
  It also cost the bookkeeper, Ms. Hansen--the woman that had the 
shotgun leveled at her as she was at her desk doing her books--two 
months leave of absence due to a nervous disorder, which still persists 
to this day.
  Mr. President, the moral of this story must be prefaced with a 
poignant question: How in the world does the EPA justify such 
outrageous behavior?
  It is the regulatory state gone out of control. They acted, as I have 
said, on rumor and innuendo. When the rumors did not pan out, they 
pressed ahead anyway, costing innocent citizens financial and 
psychological fortunes.
  I will not go through all of the details in this case, Mr. President. 
But I think it behooves us as a society to take a broad view of this 
case and see what lessons can be learned.
  To begin with, the EPA used a force of 40 men comprised of Federal 
and local agents. They used a force equipped to attack a mountain when 
it was only a molehill.
  Second, the EPA's advanced scouting of the situation was disgraceful. 
They charged ahead with full force, though uninformed about the facts. 
They did not look before they leaped.
  All too often, Mr. President, I hear of such overzealous and heavy-
handed enforcement of our Nation's environmental laws. Yet, there is 
rarely accountability. This situation cannot continue. A presumption of 
guilt is formed. It is a foreign concept in our land. It should be a 
foreign practice as well.
  The purpose of the EPA is certainly commendable. The purpose is to 
protect the Nation from environmental pollutants and toxins. The EPA is 
suppose to work to make our water clean and our air pure, and there is 
no one who would argue with those worthwhile goals. But the heavy-
handed tactics are inconsistent with EPA's worthy objectives. In fact, 
such policy erodes whatever moral authority the EPA may hope to have to 
detect and deter pollution and polluters. Their image in the public's 
eye will only suffer and the public's confidence in the EPA's fairness 
will be shaken.
  We certainly hope, Mr. President, that this reform will cause the EPA 
to reconsider its we-versus-they mentality, with respect to American 
small business. This bill will not overturn existing environmental law. 
The Comprehensive Regulatory Reform Act will require the EPA to 
reexamine existing rules and force them into revisions, but only, let 
me emphasize, where regulations are based on bad science or where a 
less costly alternative exists that achieves the statutory 
requirements. Small businesses certainly share the goal of a clean 
environment at reasonable costs, with a fair and rational oversight by 
the U.S. Government. Most, if not all, businesses want to comply with 
environmental laws and regulations.
  Mr. President, it is my hope that this reform will change the EPA 
policy to promote a worthy social objective that fosters reconciliation 
and cooperation. This reform will help eliminate the heavy-handed 
tactics and threats against innocent citizens like Mr. Higman and Ms. 
Hansen. Through this reform the EPA could once again return to its 
original purpose of promoting policy which advances a clean environment 
through fair and rational oversight.
  Mr. DASCHLE. Mr. President, I want to use this time to remark briefly 
on the pending measure, which will be the subject of a vigorous debate 
over the next several days, and the focus of our work today and in the 
days to follow.
  The primary subject of this debate is the bill that was reported by 
the Judiciary Committee in a very controversial markup which was later 
modified through negotiations with Senator Johnston and other 
colleagues.
  I am grateful for the attention that Members have given the bill 
since it was reported by the Judiciary Committee, for I believe, over 
time, real improvements have already been made.
  Nevertheless, throughout these negotiations, these clear differences 
have emerged among those who advocated changes in the way Federal 
agencies issue regulations. It has become apparent that a new, more 
reasonable and judicious approach is needed if we are to enact 
responsible, regulatory reform, without causing gridlock in the Federal 
agencies.
  There remain a number of problems with S. 343 which argue against 
adoption in its current form. First, its passage will likely result in 
a more convoluted, bureaucratic, and confusing system that practically 
invites manipulation and litigation by the best lawyers money can buy. 
It would allow, and even encourage, appeals and litigation throughout 
the regulatory development process.
  The multifaceted petition process will create massive burdens on 
Federal agencies at a time when we are attempting to cut budgets and 
limit the size of Government.
  The bill's $50 million threshold will drag hundreds of additional 
rules into this process, further burdening agencies. It also forces 
Federal agencies to choose the cheapest option, even if other 
alternatives are more cost effective and therefore more economical.
  In sum, it would impose costs on Federal agencies that cannot be met 
under current budget constraints. The Office of Management and Budget 
estimates that S. 343 would cost Federal agencies an additional $1.3 
billion and 4,500 full time employees each year simply to implement all 
its provisions. The Federal Government simply does not have 

[[Page S 9637]]
the resources to absorb those requirements. Nor should it.
  In addition to overburdening Federal agencies, S. 343, as currently 
written, would roll back some of the most important laws that protect 
our environment, our health, and our safety.
  For the first time in my lifetime, we are contemplating a 
comprehensive retreat from the progress achieved in reducing air 
pollution, in cleaning up our rivers and lakes, in taking steps to 
ensure that the food we eat and the water we drink is safe and clean. 
In the past, this effort has been embraced by leaders Republican and 
Democratic. Whether it was President Nixon, Ford, Carter, Reagan, Bush, 
or President Clinton, this Nation has realized great benefits from an 
extraordinary bipartisan commitment on these matters.
  Mr. President, last year 2-year-old Cullen Mack of my home State of 
South Dakota fell ill from eating beef contaminated with the E. coli 
bacteria. As a result of experiences like Cullen's, I held a number of 
hearings in the Agriculture Committee and the Department of Agriculture 
developed regulations which would help prevent recurrences of this 
problem. The rules would modernize the meat inspection process, using 
sensitive scientific techniques to detect contamination and prevent 
spoiled meat from making its way into our food supply.
  This much-awaited rule will be held up by this bill. It will be 
delayed and perhaps even stopped. That is unacceptable and represents 
one of the problems with this bill in its current form.
  In its attempt to reform the regulatory process, the bill 
overreaches--I believe, to the long-term detriment to the American 
people, including businesses. In South Dakota as in many other States, 
not only will the public benefit from tough new meat inspection rules, 
but so will the farmers and ranchers who raise the livestock and who 
benefit from the assurance that their products will reach the market in 
the best condition possible. The Senate should not support a process 
that would compromise that objective.
  I want to make clear that I'm not suggesting that somehow the 
proponents of S. 343 are advocating the degradation of our environment, 
or have set out to contaminate our drinking water, or that they are 
unconcerned with a child's potential exposure to toxins. But passage of 
this bill will make those results more likely. And that is not a result 
that I can endorse.
  I know that some of my colleagues will be taking the floor to make 
that case in detail, and to offer amendments which will attempt to 
ameliorate the most harmful provisions of the bill. And I know that 
some of my democratic colleagues have signed onto S. 343.
  I also want to make it clear that there is a better alternative and 
that a number of amendments will be offered which will improve the bill 
and which I hope all Members will give their serious consideration.
  The comprehensive alternative will produce commonsense reform without 
wholesale harm. I am hopeful that after some healthy debate on this 
matter, and in light of the amendment process that will begin today, my 
colleagues can be persuaded to support our amendments and the 
alternative developed by Senators Glenn and Chafee, should it be 
offered. That is the best, most defensible path to regulatory reform, 
because it does not sacrifice the environmental, health, and safety 
standards that American families have a right to expect and demand from 
their Government.
  Mr. President, I can state with some confidence that no Member of 
this body will argue for a regulatory status quo. No Member of this 
body believes that every Federal rule is sacred. No Member will defend 
every law we've passed as perfect in its real-world application. There 
are too many regulations in general, and, in particular, too many that 
make no sense.
  It is my strong hope that during this debate, we can come to 
agreement on a bipartisan regulatory reform bill that achieves serious, 
meaningful change, but does so recognizing the budgetary realities 
facing the Federal Government, recognizing the desire to prevent 
unnecessary and expensive litigation, and recognizing the fundamental 
importance of ensuring that Federal agencies should be able to issue 
those commonsense regulations which protect public health and safety, 
the environment, and other matters that most of us agree should be the 
subject of responsible Federal oversight.
  Mr. President, I yield the floor.
  

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