[Congressional Record Volume 141, Number 111 (Tuesday, July 11, 1995)]
[Senate]
[Pages S9653-S9673]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMPREHENSIVE REGULATORY REFORM ACT
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 343, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 343) to reform the regulatory process and for
other purposes.
The Senate resumed consideration of the bill.
Pending:
Dole amendment No. 1487, in the nature of a substitute.
[[Page S 9654]]
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HEFLIN. 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the quorum call be rescinded.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, will the Senator yield?
Mr. HEFLIN. Yes.
Mr. HATCH. I ask unanimous consent that no amendment be filed until
Senator Dole has an opportunity to get here from the wings.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HEFLIN. Mr. President, I am pleased to support and cosponsor S.
343, the Comprehensive Regulatory Reform Act of 1995. The time has come
for meaningful regulatory reform and for the Congress to exercise its
legitimate legislative function to set statutory standards to guide
Federal agencies with regard to their rulemaking authority.
Since my term as chief justice of the Alabama Supreme Court when I
and others set out to reform Alabama's antiquated judicial system, I
learned that true reform never comes easy. Entrenched bureaucracy and
vested interest groups will fight you every inch of the way, as I know
they are now doing.
President Clinton acknowledged the need for regulatory reform in a
speech on March 16 of this year when he called for common sense in
approaching regulatory reform. He said, and I agree, that ``government
can be as innovative as the best of our private sector businesses. It
can discard volume after volume of rules and, instead, set clear goals
and challenge people to come up wit their own ways to meet them.''
The substitute bill that has emerged is the product of several
hearings before the Judiciary Committee, the Energy Committee, and the
Governmental Affairs Committee. Extensive discussions have occurred
over the last several weeks in an attempt to fashion a consensus bill
which can pass the Senate and will be signed by the President. I
believe our efforts will prove successful because the bill under
consideration is not extreme reform.
It does not contain a supermandate, as the House bill does, which
would overturn Federal laws to protect our environment, protect worker
safety, or guarantee product safety.
The last time the Senate attempted to legislate in this area was 15
years ago when working in a bipartisan manner we passed 94-0 a bill
known as S. 1080. Regretfully, certain interest groups prevailed upon
the House of Representatives to kill our reform efforts.
I was a cosponsor of S. 1080 which was drafted to address
deficiencies in the Federal regulatory system and to improve the
rulemaking process of public notice and comment. The Judiciary
Committee report at that time found that the ``dramatic costs of
regulation suggest that we may be expending our limited resources on
uncertain regulatory remedies for various costs at a significant human
cost by depriving other vital interests of these resources.''
The 1982 report found that annual compliance costs of Federal
regulation, that is, costs which are borne by those who must comply
with regulations, were running ``at more than $100 billion a year.''
The 1995 report from the Judiciary Committee concludes that these costs
are now approximately $542 billion. Congress must act to address this
problem.
rulemaking
I note that the first part of the substitute incorporates many
procedural improvements to section 553 of the Administrative Procedure
Act which defines the rulemaking process. This section substantially
incorporates and updates the provisions of S. 1080.
This section requires public notice of proposed rulemaking in the
Federal Register and expands the amount of information which must be
given by an agency to the public so that it can adequately comment on
the proposal. An exemption is established from this requirement where
such a proposed rule would be ``contrary to an important public
interest or has an insignificant impact.''
There are other provisions which are too numerous to mention, but
this section is strongly supported by many legal scholars and the
American Bar Association.
analysis of agency rules
The second section of the substitute deals with the analysis of
agency rules defining expansively the terms ``costs'' and ``benefits''
to include, not just quantitative considerations, but also qualitative
considerations of what a cost-benefit analysis should contain. This
section also contains a definition of a ``major rule'' which is set at
$50 million, a figure that is arguably too low especially since every
President since Gerald Ford has defined, by Executive order, a major
rule to be $100 million, as does S. 291, the regulatory bill that
reported out of the Governmental Affairs Committee.
An earlier draft of this legislation provided that a major rule could
also be less that $50 million if it were likely to result in
disproportionate costs to a class of persons or businesses within the
regulated sector. This provision would have given relief to many small
businesses who are all too often threatened with being put out of
business due to the costs of implementing a rule. I support an
amendment offered by Senator Nunn which will assure that our Nation's
small businesses will derive the benefits intended by our reform
efforts in this bill. The Nunn amendment would require that a proposed
rule which has been determined to be subject to the Regulatory
Flexibility Act be considered a major rule for the purposes of cost
benefit analysis and periodic review. Agencies frequently propose rules
whose annual economic impact would not rise to the $50 million
threshold set by this bill, but those rules can and do place
significant burdens on small businesses. The Nunn amendment will assure
that cost benefit analysis benefit small businesses.
I might add that the substitute exempts from the definition of
``rule'' those rules which related to future rates, wages, prices,
monetary policy, protection of deposit insurance funds, farm credit
insurance funds, or rate proceedings of the Federal Energy Regulatory
Commission.
Once an agency has determined that a rule is a major rule, the agency
must conduct a cost-benefit analysis to demonstrate that, based on the
rulemaking record as a whole, the benefits justify the costs and that
the rule imposes the least cost of any of the reasonable alternatives
that the agency has the discretion to adopt. Quite simply put, this
means that if a Chevrolet will get you to your goal, pick it and not
the Cadillac model.
agency review and petition
The next section of this substitute requires each agency to publish a
list of existing rules, general statements of policy, or guidances that
have
the force and effect of rules, that the agency deems to be appropriate
for review, and each agency must publish a schedule for systematic
agency review of those rules. The agency schedule shall propose
deadlines for review of each rule and the deadlines will occur not
later than 11 years from the initial schedule established by the
agency. This timeframe, to me, is a reasonable one and should allay
concerns that agencies will be swamped with too much work as a result
of this legislation.
This bill also provides a petition process to allow any interested
person subject to a major rule to petition an agency to conduct a cost-
benefit analysis on an existing rule if it is a major rule and that its
benefits do not justify its costs, nor does the rule impose the least
costs of the reasonable alternatives. A petitioner has a high standard
to meet and will have to spend a great deal of money to conduct its own
cost-benefit analysis to show there is a likelihood that the rule's
benefits do not justify its costs.
I also supported an amendment offered by Senator Abraham which will
be included in this section to ensure that agencies periodically review
the need for rules which have a substantial impact on small businesses.
As section 623 is now written rules will not be subject to review
unless an agency chooses to place them on the review schedule or unless
an interested party successfully petitions to have the rule placed on
the schedule. Thus rules which have a substantial impact on small
businesses might be left off of the review
[[Page S 9655]]
schedule. The Abraham amendment would require agencies to include on
their review schedules any rule designated for review by the Chief
Counsel for Advocacy of the Small Business Administration. This
amendment creates, in effect, a small business counterpart to the
petition process available to larger industries and makes section 623
stronger and fairer for all the regulated community.
I, therefore, support the provisions of section 623 relating to
agency review and the petitioning process. I believe that a reasonable
effort and compromise has been achieved which will not overly burden
our regulatory agencies and at the same time will ensure that current
rules are revised, if necessary, and terminated if they become outdated
or useless.
decisional criteria
Let me turn briefly to the decisional criteria section of this
legislation. In my judgment, it does not go as far as the House bill on
the issue of supermandate. The House bill's provisions require that a
rule's benefits must justify costs and that the rule achieves greater
net benefits or the rule must be rescinded outright. The House bill
thus supersedes, supermandates, and trumps all other previous statutory
criteria. The provisions of this substitute ``supplement any other
decisional criteria otherwise provided by law.'' Despite what the
critics may say, the Senate bill is not a supermandate, nor is it a
wholesale massacre of our Nation's environmental, health, or safety
laws and regulations.
Under this legislation, Federal agencies are directed to conduct
cost-benefit analyses on all major rules they propose to issue. As a
general rule, no final major rule shall be promulgated unless the
agency head finds: First, that the benefits justify the costs; second,
that the rule employs flexible alternatives, and third, that the rule
adopts the ``least cost alternative of the reasonable alternatives that
achieve the objectives of the statute.''
If the underlying statute does not allow the agency to consider
whether a rule's benefits justify its cost, the agency can still issue
the rule--unlike the House bill where the rule is precluded from going
forward--as long as the rule employs flexible alternatives, and adopts
the ``least cost alternative that achieves the objectives of the
statute.''
What is unreasonable about Congress requiring agencies to follow
these standards when a rule's benefits do not justify its costs? This
is what regulatory reform is all about--trying to give the unelected
Federal bureaucrats some guidance in their rulemaking authority.
judicial review
Next, the judicial review provisions of the substitute adequately
address concerns that I have raised, and judicial review is granted to
review final agency actions. Any cost-benefit analysis or risk
assessment shall constitute part of the whole rulemaking record and not
be subject to separate, independent consideration. The provisions in
the substitute provide for effective judicial review of cost-benefit
analyses and risk assessments ``to determine whether the analysis or
assessment conformed to the requirements'' of the bill.
The judicial review provision does not allow judicial nitpicking to
overturn a final rule if an agency fails to follow a procedure required
by this law. However, if the substance of a cost-benefit analysis or
risk assessment is flawed, a court can and should review such a flawed
conclusion as a part of the final agency rulemaking.
miscellaneous
There are other provisions which I will not attempt to address at
length at this time. There is an extensive provision relating to risk
assessment, a section known as regulatory flexibility analysis which
passed the Senate last year, which I supported, to give relief to small
businesses and a provision supported by Senator Grassley known as
congressional review which will give Congress the right to veto agency
rules before they take effect. Perhaps this should be limited to veto
major rules or we may risk being inundated with paperwork. With
congressional staffs shrinking, it may be wise to limit this provision,
or this provision may prove meaningless.
The substitute bill before the Senate is a major step in the right
direction toward meaningful regulatory reform. Congressional action to
give agencies some greater guidance is warranted and long overdue. I
applaud the administration for its recent actions to improve the
situation, but it is not enough for my constituents who must live with
the reality of regulatory overkill on some occasions. I am quite
certain that the entrenched Federal bureaucracy will never approve of
true reform. They want unlimited authority to make rules as they see
fit.
However, I believe the Congress has a responsibility to set some
reasonable standards for the bureaucrats to follow. This historic
regulatory reform bill is the most comprehensive effort since the
Administrative Procedure Act was adopted in 1946.
I began my public career reforming one system, and as I approach the
end of my career, I am pleased to join the reform that is now needed
for the Federal executive branch of the Government.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Coverdell). The clerk will call the roll.
The legislative 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.
Mr. DOLE. Mr. President, what is the pending business?
The PRESIDING OFFICER. The Chair advises the pending business is S.
343.
Amendment No. 1492 to Amendment No. 1487
(Purpose: To address food safety concerns)
Mr. DOLE. Mr. President, I send an amendment to the desk to the
substitute and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 1492 to amendment No. 1487.
On page 25, delete lines 7-15, and insert the following in
lieu thereof:
``(f) Health, Safety, or Food Safety or Emergency Exemption
From Cost-Benefit Analysis.--(1) A major rule may be adopted
and may become effective without prior compliance with this
subchapter if--
``(A) the agency for good cause finds that conducting cost-
benefit analysis is impracticable due to an emergency, or
health or safety threat or a food safety threat (including an
imminent threat from E. coli bacteria) that is likely to
result in significant harm to the public or natural
resources; and''.
Mr. DOLE. Mr. President, I ask for the yeas and nays on the
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Amendment No. 1493 to Amendment No. 1492
(Purpose: To address food safety concerns)
Mr. DOLE. Mr. President, I send a second-degree amendment to the
pending amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 1493 to amendment No. 1492.
Mr. DOLE. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
In lieu of the language proposed to be inserted, insert the
following:
``(f) Health, Safety, or Food Safety or Emergency Exemption
From Cost-Benefit Analysis.--(1) Effective on the day after
the date of enactment, a major rule may be adopted and may
become effective without prior compliance with this
subchapter if--
``(A) the agency for good cause finds that conducting cost-
benefit analysis is impracticable due to an emergency, or
health or safety threat, or a food safety threat (including
an imminent threat from E. coli bacteria) that is likely to
result in significant harm to the public or natural
resources; and''.
Mr. DOLE. Mr. President, the only change is that it becomes effective
1 day after the date of enactment in the second-degree amendment.
As I stated yesterday, opponents of regulatory reform have avoided
the merits and, instead, have engaged in scare tactics.
[[Page S 9656]]
One of the most recent, perhaps most offensive, of the scare tactics
has been the suggestion that regulatory reform means tainted meat,
specifically, further outbreaks of E. coli food poisoning. This is an
insult to the American people.
It is also false. Opponents know that this claim is false, and the
media knows it. Yesterday, I included in my statement and accompanying
fact sheet in the Record two specific provisions already in the bill to
make it obvious that this bill would not hold up meat inspection rules.
One provision allows the implementation of a regulation without first
complying with other requirements of the bill where there is ``an
emergency or health or safety threat.''
That seems pretty clear to me. That is in the bill. It does not get
any clearer than that. It is a sign of either sloppy journalism or
extreme cynicism, and this amendment ought to be named the Ralph Nader-
Margaret Carlson-Bob Herbert amendment. I have listened to these
commentators--who probably never read the bill--and they talk about the
terrible things that can happen and that we are all going to eat
tainted meat. Margaret Carlson said 5,000 people are going to die, and
then she corrected it to 500 before the program ended. It seems that
the media do not worry about the facts if they have a good story. I
hope to send a message to the media--at least those three--and those on
the left who need to read the bill, to read what really happens. The
media have chosen to buy into these distortions in the face of language
that makes clear that we have responsibly taken health and safety
concerns into account.
I do not believe for a moment that opponents are unaware of this
health and safety exemption. But in an effort to ensure that we begin
focusing on issues legitimately in this debate, I am offering an
amendment to make crystal clear that S. 343, the regulatory reform bill
before us, has no effect on efforts to address food safety. Period.
End. That is it.
No one here, Democrat or Republican, wants to interfere with food
safety. I hope we can lay that to rest by having a big vote on this
amendment. The words ``health and safety,'' already part of the bill,
obviously include concerns about food safety. But this amendment adds
the words ``food safety, included an imminent threat from E. coli
bacteria.''
Mr. President, it concerns me that such distortions are being made.
E. coli bacteria and the illnesses that occur as a result of that
bacteria are serious problems for the people of this country. Every
Member of Congress, regardless of party, is concerned. It is not a
partisan issue and should not be a partisan issue. But opponents--I do
not mean the opponents in the legislative body. I think the opponents
have come from outside the bureaucracy and in the media. All these
people who want to protect their little preserves are the ones who are
peddling the false information and trying to scare people. Obviously,
you can scare people if you distort the facts.
Now that I have offered the amendment, opponents will no doubt come
up with more imaginary scenarios. But I am putting them on notice that
we chose the broadest possible phrase. In the event that somebody
missed it, it is, ``emergency and health safety threats.'' We chose it
in the first place for a very good reason. We want to make certain that
every possible response to health and safety threats is exempted from
delay where that is appropriate. Adding a laundry list, as opponents
would have us do, undermines the very public policy goal opponents
pretend they seek. This is so because it raises the possibility that
someone could read this provision to exclude anything not specifically
included. I do not think that is what ought to happen.
That is not our intent. We want the broadest possible language so
that we can take care of all of the situations where health or safety
threats exist.
Mr. President, I certainly urge the adoption of this amendment. It
seems to me, as I have said earlier, based on the misinformation,
flatout distortions, and flatout false statements that I have read in
the media, heard in commentary, heard on television, I offer this
amendment. It should not be necessary to offer this amendment, but, as
I have suggested, it is being offered to make certain that nobody
misunderstands--nobody on this floor, on either side of the aisle.
There is nobody that I know of who does not support food safety.
Mr. President, I want to make an inquiry of the managers momentarily.
In an effort to get a vote on this amendment and make certain this is
the first amendment we will have a vote on, procedurally, I also would
need to amend the bill itself. I am amending the substitute. But if I
can have some assurance that we can have a vote without any further
amendments to the bill on this issue, then I will not proceed to sort
of fill up the tree. I make that inquiry of the Senator from Ohio.
Mr. GLENN. Mr. President, I am glad the majority leader has addressed
the E. coli situation. I would like to check with some of the people
who were interested in this on our side before we proceed with this. It
might even be possible to accept it, I do not know. I would like to
check on it further before I agree to anything at this point.
Mr. DOLE. It may be just a matter of--well, I will go ahead and fill
up the tree and amend the bill in two degrees.
Amendment No. 1494
Mr. DOLE. Mr. President, I send an amendment to the desk ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 1494.
Mr. DOLE. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike the word ``analysis'' in the bill and insert the
following:
``analysis.
``( ) Health, Safety, or Food Safety or Emergency
Exemption From Cost-Benefit Analysis.--(1) A major rule may
be adopted and may become effective without prior compliance
with this subchapter if--
``(A) the agency for good cause finds that conducting cost-
benefit analysis is impracticable due to an emergency, or
health or safety threat, or a food safety threat (including
an imminent threat from E. coli bacteria) that is likely to
result in significant harm to the public or natural
resources.''
Mr. DOLE. Mr. President, I ask for the yeas and nays on the
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Amendment No. 1495 to Amendment No. 1494
Mr. DOLE. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 1495 to amendment No. 1494.
Mr. DOLE. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
In lieu of the language proposed to be inserted, insert the
following:
``analysis.
``( ) Health, Safety, or Food Safety or Emergency
Exemption From Cost-Benefit Analysis.--(1) Effective on the
day after the date of enactment, a major rule may be adopted
and may become effective without prior compliance with this
subchapter if--
``(A) the agency for good cause finds that conducting cost-
benefit analysis is impracticable due to an emergency, or
health or safety threat, or a food safety threat (including
an imminent threat from E. coli bacteria) that is likely to
result in significant harm to the public or natural
resources.''
Mr. DOLE. Mr. President, I think this is a clear-cut issue. My view
is that the amendment is not necessary. But this is an effort to have
the opponents who are really concerned about this bill focus on the
issues rather than trying to frighten the American people, saying that
somehow anybody who is for this bill is out here trying to peddle dirty
meat. That was a charge made over the weekend and in the past few days.
I think probably it is in the interest of everybody who supports
regulatory reform that the amendments be offered. I am the one being
criticized by the media. ``Senator Dole's bill is promoting dirty
meat.'' And some say maybe I am doing it for the
[[Page S 9657]]
meatpackers. Well, I do not know any meatpackers. I do not have any
connection there. In any event, this is just to calm down the hysteria
of some in the media. But they will get hysterical about something
else. They are good on their feet. As soon as this matter is resolved,
they will have some other hysterical notion or a figment of somebody's
imagination, and some statement will be made, or there will be a
ludicrous charge that they will pick up on. There are, unfortunately,
some people in the bureaucracy who believe that the Government should
do everything in America. They do not want any regulatory reform.
They are not one of the American families who are paying an average
of $6,000 a year for regulatory reform. They are not a farmer or
rancher or small businessman or small businesswoman who is trying to
make a living for their family and all they get are more and more and
more regulations from the Federal Government.
I happen to believe that regardless of anybody's party affiliation,
if you are a businessman, a businesswoman, a farmer, rancher, whatever,
you have to believe there are too many regulations and you have to
believe there is some way to protect health and safety as we should,
also, to make certain that there is some way we can review and make
certain that some of these regulations never are implemented, because
they have no benefit, a great deal of cost, and all they do is put a
burden on somebody in America.
Democrat, Republican, somebody out there will pay. That is why we
find this coalition of the left and the media and those in the
bureaucracy and others who are fearful they might lose a job, I guess,
or they might make life easier for the average Americans, who are
vitally opposed to any regulatory reform.
I mentioned to the President this morning, we had a meeting at the
White House, and I apologize to the managers for being late, this was a
bill that I thought had potential to have broad bipartisan support. I
met privately with the President after a regular meeting. I told him
the number of changes we have already made, and we are prepared to look
at other changes that are legitimate, and we are still having ongoing--
as I understand--the Senator from Utah has an ongoing discussion with
Members on the other side.
I will not repeat what the President said. I do not want to repeat
discussions of the President, but I want him to understand, talking
about bipartisanship, and lowering the rhetoric, this is an
opportunity, right here, this bill.
There is no reason this bill does not pass this body by a vote of 75
to 20 or 80 to 20--good, strong, regulatory reform bill. I would hope
that we can continue in the spirit we have started.
I want to commend the Senator from Louisiana, the Senator from Utah,
Senator Hatch, and the Senator from Delaware, Senator Roth, and others,
including the Presiding Officer, who have been working on this on a
daily basis.
My view is if we were to work in a bipartisan way we can complete
action on the bill this week. I am happy to yield the floor to the
Senator from Louisiana.
Mr. JOHNSTON. Mr. President, I want to thank the majority leader for
his comments.
Mr. President, this amendment, in my view, is totally unnecessary,
but if it helps to clarify and reassure, then I will support it. The
provision that it amends was one of those provisions put in at our
behest, and agreed to by the majority leader, in order to take care of
this very situation.
Whether it is cryptosporidium, E. coli bacteria, or Ebola virus--
whatever--the bill already covers that kind of health emergency. The
bill says that you do not have to comply with either cost benefit or
with risk assessment if they find that there is an emergency or health
or safety threat that is likely to result in significant harm to the
public or to natural resources.
Mr. President, it is clear the bill already covers that, and this was
one of those 100-odd amendments that were accepted by the majority
leader at our behest.
I believe it has been a very good bipartisan effort. It is not a
complete and perfect bill yet. We still have some amendments which we
hope will be accepted. There is an ongoing dialog about that.
Mr. President, I am still very hopeful this bill can be passed
overwhelmingly on both sides of the aisle. I hope we can proceed not
with drawing lines in the dirt and lines in the sand and tossing bombs
at one another, but, rather, try to make this bill a more perfect bill,
a better bill.
Believe me, Mr. President, risk assessment and cost-benefit analysis
is needed by the taxpayers who are overburdened in this country today,
and just to try to defeat this bill by phony issues is not the way to
go. We should try to improve it with real amendments.
I believe that the distinguished Senator from Utah, the floor manager
of this bill, and I believe the majority leader, will show cooperation,
because they have so far.
I will vote for this amendment. It is totally unnecessary. The bill
already covers this kind of emergency.
Mr. HATCH. Mr. President, I know the distinguished Senator from Ohio
wants to comment. I will just take a few minutes.
I want to thank the distinguished Senator from Louisiana for his
cogent remarks. He is right. This matter was taken care of in our
negotiations. We have language in this bill that completely resolves
this problem without this amendment.
In the interest of trying to pacify and resolve some of the hysteria
and fear that seems to pervade this body from time to time, and
certainly the outside groups--I have to say, evidently, the media, or
some aspects of the media. I actually have watched the media over the
last number of years, and I think they have been for the most part
responsible, but on this issue they have not been responsible since
this bill has been laid down, or at least those who have been primary
purveyors of what they think this bill stands for.
We have over 100 amendments we have agreed to with the White House
and others on this bill, trying to accommodate and resolve these
problems.
I might add, we have worked very closely with the distinguished
Senator from Louisiana and others in doing so. I want to compliment the
majority leader for his willingness to try and make this bill as
perfect as we possibly can.
One of the amendments we agreed to was described by our distinguished
Senator from Louisiana, that he fought for in our negotiations, that
really solved this problem. I think it is unfortunate we have to
resolve it again and again and again because of hysteria and the use of
fear tactics on the part of the left, really, in this country.
I have to say, certain Members of the media, in my opinion, have
acted irresponsibly. I hope that the media will read this bill, those
who are responsible will read it, and start talking about this bill in
the manner that it deserves.
It is amazing to me the lengths supporters of big government status
quo will go to in opposing the Dole-Johnston regulatory reform bill.
The newest media myth spread at the end of last week is that the bill's
cost-benefits requirement will somehow block the U.S. Department of
Agriculture's meat safety rules for 2 or 3 years. That is pure bunk. It
is apparent opponents of the bill are preying on the fear of the public
and on individuals who have suffered from E. coli bacteria.
What these advocates of fear do not reveal, enforcement of food
safety rules is predominantly done not through rules but through
adjudicatory enforcement and inspection orders against meat processors
and handlers, which are explicitly exempt from S. 343's requirements.
What they did not reveal is that S. 343, in any event, contains a
provision that exempts health, safety, or emergency rules from cost-
benefit analysis when there is a threat to the public.
They also do not reveal S. 343 mandates the promulgation of rules
that are both cost efficient and that are likely to significantly
reduce health, safety, and environmental risks.
They did not reveal that the USDA had already conducted a cost-
benefit analysis and concluded that the benefits of the rule far
outweighed its cost.
Finally, I want to mention the most outrageous statement attacking
the bill in this media campaign of fear was made last Thursday on C-
SPAN. To
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generate fear of S. 343's cost-benefit requirement, a spokesperson for
the lobbying group Public Citizen, contended that cost-benefit analysis
was something the Nazis conducted to compute the worth of prisoners in
concentration camps.
That is highly offensive. Such claims are pure bunk. They are
nonsense. It demonstrates how really desperate the desperate can be.
These people want overregulatory activity because that is where the
power has been. They control the whole U.S. population from this little
beltway called Washington, DC. When we come to this floor and bring
reasonable rules that will change the status quo and cause people to be
able to live within certain norms and restraints and save the
taxpayers' moneys and cause our society to work better, then these
defenders of the status quo, these leftists, start making these
outrageous comments.
The Dole amendment makes crystal clear that S. 343 does not impede
the all-important protection of public health and food safety.
In that regard, let me just take a couple more minutes, because I
think this is a perfectly appropriate place for me to give my daily Top
10 List of Silly Regulations. Let me start with No. 10, a regulation
holding up the residential building project for a wetland, .0006 acres
in size--about the size of a Ping Pong table.
No. 9. Creating an Endangered Species Act recovery plan for a breed
of snail that will only flourish in an ice age or during the ice ages.
No. 8. A regulation making the playing of a musical instrument near a
campfire in a national forest a Federal class B misdemeanor. I mean, my
goodness.
No. 7. Fining a company for not having a comprehensive hazardous
communications program for its employees. Its employees were two part-
time workers. That is our Federal Government in action.
No. 6. Requiring $6 hospital masks instead of $1.50 masks, without
any evidence that the more expensive mask is needed.
No. 5. Requiring such stringent water testing, that local governments
actually had to consider handing out bottled water in order to save
money.
That is our Federal Government in action, at work.
No. 4. Denying a permit to build a pond to raise crawfish because the
habitat provides food and shelter to ``a wide variety of * * * fish * *
* including the red swamp crawfish.''
No. 3. Barring a couple from building their dream house because the
goldencheeked warbler had been found in the canyons adjacent to their
land. Just think about that. This is happening in America.
No. 2. Requiring so much paperwork for a company over 50 employees--8
pounds, by the way, 8 pounds of paperwork--that they purposely do not
hire any more people.
The silliest of all as far as I am concerned, for today's list:
No. 1. A company was fined $34,000 by the EPA for failing to fill out
form ``R'' in spite of the fact that they do not release any toxic
material.
These are the type of things we are trying to correct. These are the
type of things this bill will correct. These are the type of things
that have Americans all over this country upset, and rightly so.
This is why we have worked so hard, the distinguished Senator from
Louisiana and our majority leader and others, to come up with a bill
that really makes sense, that will make a difference, that will help us
all to get rid of some of these silly, ridiculous, costly and really
harmful regulations and interpretations of regulations as well, and to
give the people some power to make the bureaucrats have to think before
they issue regulations and interpretations of those regulations as
well.
At that point, I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Ohio.
Mr. GLENN. Mr. President, I am sorry the majority leader, who
proposed the amendment, has left the floor. I hope he may be listening,
because there is more reason to be concerned about this than he
indicates.
We hear repeatedly, ``This is not needed, it is not needed, it is not
needed.'' Everybody says that. Yet we are still leaving it up to the
agencies to make the decisions. Maybe that is OK. But let me tell you
why we were planning to address E. coli this morning anyway before the
majority leader came back and put in the amendment. There is a track
record here, going back into committee, of Republicans not voting to
take E. coli out of consideration here. We had a regulatory moratorium
bill proposed a few months back that came before the Governmental
Affairs Committee. It would have stopped everything in its tracks. It
was a regulatory moratorium for everything from the last election on--
any rule, any regulation that was in consideration. Even some of those
that had been finalized already and were in effect were cut off.
We had a list of rules in committee that we thought should be
exempted, that should not be subject to that regulatory moratorium.
There was no exemption for health and safety in committee on that. And
what happened? I put in an amendment in committee that would exempt
rules to protect against E. coli. We had parents who lost children come
before the committee and testify as to the horrible death that their
children suffered with E. coli. Their children died. And I put in an
amendment in committee to exempt E. coli from that moratorium. We had a
record rollcall vote and I lost, because the Republicans opposed it. I
lost on that, 7 to 7, one Republican being absent. I lost that vote to
exempt E. coli, with seven Republicans on the other side of the aisle
voting to keep E. coli in, in that regulatory moratorium.
Mr. JOHNSTON. Will the Senator yield?
Mr. GLENN. No, I will not yield at this point.
The PRESIDING OFFICER. The Senator has not yielded.
Mr. GLENN. I will not yield.
We hear it is not needed. We hear that such rules are exempted in
this bill--but it still leaves it up to the agency. What if we have
somebody in the agency who does not want to do this? I am not going to
make too much out of that because, we have to trust the people in the
agencies. But to say that we should have no concern, that nobody on
this floor, nobody in the whole U.S. Senate is against health and
safety rules when we had a vote in committee that prevented rules
addressing E. coli and cryptosporidium, which was another vote, from
being exempted from that moratorium is just not right. There is very,
very good reason why we are concerned about this.
We did not have a single Democratic vote that was against exempting
these important rules, but we did have votes on the Republican side
that prevented that exemption being made in committee. That is the
reason we are concerned about this. This is not something we are making
up. It is not something fictitious. It showed the intent on the other
side, at least in that case, under the regulatory moratorium, of not
being willing to give one inch on this issue.
Not even when we have about 250 deaths a year, and over 20,000 people
made ill by E. coli bacteria every year.
Further, under this bill, there are still problems even if the agency
declares an emergency. An emergency exemption is provided, and I agree
and I know the Senator from Louisiana is going to say that the agency
has the discretion to exempt these rules, and they can. But the bill
now says that within 180 days of putting the rule out, the agency has
to go back and do the cost-benefit analysis and risk assessment. Even
with that kind of an exemption by the agency, I do not know whether
they can do a cost-benefit analysis or whole risk assessment in 180
days. That is very difficult. Sometimes these things take years--2, 3,
or 4 years or more. If they cannot complete the work required what
happens then? And even then, these rules would still be subject to the
petition process. The agencies might have to review the rule again,
which is subject in turn to judicial review, or judicial challenge,
anywhere along the line. So there are still weaknesses and there are
areas where we are still concerned about this.
But I come back to why we are concerned about this. We are not
digging up things. We are not desperate. We are not wild-eyed leftists
over here. We are trying to protect the people of this country from E.
coli in this particular case. I think the majority leader has
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addressed some of the problem with this. Maybe it is sufficient. I do
not know. We will have to talk it over a little bit to see what we want
to do on this.
But there is very, very good reason why I personally had concern
about this. It is heartwrenching to sit in the committee and hear
mothers and fathers come before the committee talking about how they
lost their children to E. coli.
We see statistics. We know that there are estimates that about 4
percent of the meat is tainted. So you had better cook it well. I will
tell you that. Four percent--that means that 1 out of every 25 times
you buy a hamburger, it could be tainted. We want to protect the people
of this country against that kind of meat contamination, if we can. Of
course, we do. We brought this up in committee. We could not get that
exemption through in the committee. It was not exempted from the
moratorium. That is the reason we are concerned about this.
So this is not something fictitious. This is something that we have
already voted on in committee. The Republicans voted solidly on the
other side to not exempt E. coli from that regulatory moratorium that
was proposed at that time. The regulatory moratorium still has not been
completed, because we have not gone to conference with the House yet.
I still have some concern about the processes under this bill, S.
343, that would require that within 180 days a cost-benefit and risk
assessment would have to be done for rules that have been issued under
this exemption. I do not know whether that can be done. But if it is
not done, what would happen then? It would still be subject to
petitions to review the rule all over again, even though everybody can
say E. coli is a danger to the health and safety of the people of this
country. Yet, in committee Republicans voted against exempting that;
voted to not give the protection that the people of this country
deserve.
So I am glad that the majority leader has done what he has done this
morning. We will have to discuss whether we think this goes far enough.
But there is very good reason why we are concerned about this. Our
concerns are not fictitious, not something we are making up, and it is
not something where politics is involved. It is the health and safety
of the people of this country. It is not because of politics, as the
majority leader indicated a little while ago, that we are talking about
E. coli. And an exemption is needed. The vote in committee showed that
we needed legislation in this regard. So we will see whether we think
it is adequate or not.
I yield the floor.
Mr. JOHNSTON addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Louisiana.
Mr. JOHNSTON. Mr. President, the problem with this bill is that the
opponents are not willing to take yes for an answer. I do not know what
happened in committee. I do not know whether the Republicans were
opposed or were not opposed to some particular provision on E. coli
bacteria. But I am telling you.
Mr. ROTH. Will the distinguished Senator yield a moment on that
point?
Mr. JOHNSTON. Yes, for a question.
Mr. ROTH. I wanted to make a statement on what happened in the
committee.
Mr. JOHNSTON. If the Senator will let me make a few comments, I will
yield the floor.
Mr. ROTH. All right.
Mr. JOHNSTON. The point is not what has happened in past history. We
are dealing with what this bill says now here. I and my staff worked
with the majority leader on this very provision to take care of not
only E. coli, not only cryptosporidium, not only Ebola virus, but all
public safety threats so that we exempted from any cost-benefit
analysis or any risk assessment if it is impractical due to an
emergency or health or safety threat that is likely to result in
significant harm to the public or natural resources.
Mr. President, what could be more clear than that? If it is a threat
to public health or safety or likely to result in any significant harm
to the public or natural resources, you do not have to do a cost-
benefit analysis. You do not have to do a risk assessment. That was not
in the original Dole bill. They accepted this amendment. Now they do
not want to take yes for an answer.
Mr. President, we need to get this bill to be really considered for
what it says. I just received a statement of administration policy on
this Comprehensive Regulatory Reform Act which I must tell you, Mr.
President, I find offensive. I think it is disingenuous. I sat in the
room with Sally Katzen who is head of the OIRA. She came up with some
very good suggestions among which was a method--I call it the Katzen
fix--whereby we could combine all of the scheduling of rules to be
considered, of look backs of the petition process to have it all
considered at the same time with that schedule controlled by the
Administrator. We accepted this suggestion completely--Senator Dole and
his staff, and Senator Hatch and others. And now I find that this is
unacceptable and agencies are overwhelmed with petitions and the
lapsing of effective regulations. It is just disingenuous because they
accepted the very proposals which were made.
Let us get serious about this bill, Mr. President. Look. This bill is
not about E. coli bacteria or about cryptosporidium. Those are scare
tactics. That has been taken care of in this bill. There may be a lot
of things to oppose on real grounds. But I think we ought to get real
about it. We ought to be ingenuous about our opposition, those who
propose various provisions. And if there is a real problem with
cryptosporidium or E. coli, why do not you offer the amendment? Let us
see if we can work it out rather than come in on the floor with white-
hot debate and mothers with children who die from various things. We
are just as concerned about that, those of us who want regulatory
reform, as anybody in this Chamber. And we have taken care of it. To
suggest that it is not taken care of is just not ingenuous, Mr.
President.
We need regulatory reform. We need bipartisan regulatory reform. If
there are serious amendments, let us consider them on their merits and
not on the basis of something that is not in this bill.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Delaware.
Mr. ROTH. Mr. President, what the distinguished Senator from
Louisiana has just said is exactly on point. What we are seeking to do
is to make this a cleaner environment for all people. What has happened
too often by scare tactics is that we find actions being taken that are
unnecessary and unwarranted. The Senator is absolutely right. There is
language already in the proposed legislation that will take care of
these emergencies where there is a threat to health and safety. And
there is no way. It is totally impossible to eliminate where all of
those threats are going to arise in the future. That is the reason for
the general language that, where there is an emergency or a problem of
health and safety, an exemption, an exception, is made to the
requirements of the legislation. But the basic purpose of the
legislation is to ensure that we do a better job of regulating, of
eliminating the risks and problems faced by this Nation. It is already
costing every American family something like $6,000 a year. We need to
ensure that those dollars are well spent, that we get the biggest bang
for the buck.
Just let me point out that what exists in this legislation also
existed in the moratorium. The moratorium provided that the President
had the right to exempt health and safety regulations from the
moratorium. That would include various diseases, E. coli or whatever
else might be of emergency nature. The important point was that when
the Republicans voted the way they did they were relying on the general
language. I do not care how many amendments we add. I support the
amendment of the distinguished majority leader. But legally, it is not
necessary.
Would not the Senator from Louisiana agree with that?
Mr. JOHNSTON. Mr. President, I will say in response that really the
majority leader's amendment adds nothing to what is already in the bill
except it says including E. coli. Health including E. coli. A health
threat already included E. coli. It already includes
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cryptosporidium. It also includes the Ebola virus. It already includes
everything that is encompassed in the world health.
So it is totally unnecessary. But if it reassures somebody that now
we are taking care of E. coli, so much the better.
Mr. ROTH. I could not agree more. I personally intend to support the
amendment of the distinguished majority leader. But the important point
is that in this legislation we want to deal with not only the threats
we face today but we face in the future. That is the reason for the
general legislation. Who knows what horrible disease may develop
sometime in the future. That is the purpose of the language in this
legislation.
So I just want to say I agree with what the distinguished Senator
from Louisiana said. It was exactly the same situation when we were
dealing with regarding the moratorium. We had general language to cover
health and safety. We gave the President the authority to exempt it.
There was no need for it. That is the reason many of the Senators voted
as they did.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Connecticut.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I appreciate the fact that the majority leader has
offered this amendment this morning, not just because it clarifies that
the language of the bill was not intended to hold up this rule on
bacteria in meat, which the Centers for Disease Control tells us is a
serious health problem, but because the amendment reminds us why we
have regulation. The amendment reminds us that regulation does not
simply emanate out of a vacuum in which some bureaucrat falls to impose
irrational rules. Regulation comes from laws that we adopt in Congress,
that are signed by the President, that recognize some public problem
that we as the elected representatives of the people have concluded the
people themselves cannot protect themselves from; they cannot handle
that problem on their own.
There are a lot of problems like that in our increasingly
complicated, sophisticated, globalized world. It is not like the old
days where you basically grew what you ate. We are eating a lot of
stuff that comes from halfway around the world. We are breathing air
that contains pollutants that come from thousands of miles away. We are
affected, when we go out on a sunny day in the summer, by rays that are
coming through the hole in the ozone layer that has been created by
chemicals that are being sent up there from all around the globe, and
so on and so forth.
So we have created a series of protections as part of what I would
consider the police power of the State, which is why people form
governments in the first place, which is to protect them, to create
security for them from harms from which they cannot protect themselves.
The inspection of meat, to protect people--and people have died from
bacteria in meat--is part of that apparatus.
So it is after Congress recognizes a problem, creates a law, and the
President signs it, that then, because the law cannot cover every
contingency, the administrators come along and they adopt regulations
to carry out the rule, to apply it to specific cases. And this,
frankly, is where we have gotten into some of the problems that have
generated the bill before us and the substitute that many of us on the
Governmental Affairs Committee supported, S. 291, now adopted almost
completely in the Glenn-Chafee bill.
You would have a hard time, Mr. President--at least I have not found
in this Chamber of 100 Senators representing every State in this
Union--one Member who will say that he or she is not for regulatory
reform. We all have been home and talked to our constituents, small
business people, large business people, individuals who can cite for us
an example where there is just too much regulation, but even more
regulation without common sense.
My friend and colleague from Utah, Senator Hatch, has been providing
what I might call the daytime version of David Letterman's nighttime
list of the 10 best. We have Senator Hatch in the morning, and we have
heard these stories and they are real, and it is why we are all for
regulatory reform. But the reason why some of us are concerned about
the content of the bill before us and why we seriously want to go
through this process and see hopefully if we cannot work together in
the end to get to a position where all of us, or at least most of us,
can support the bill is our fear that inadvertently in responding to
some of the excesses and foolishness of regulation and bureaucracy, we
may impede the accomplishment, the purpose of the underlying public
health and safety laws that I believe the public wants.
Mr. JOHNSTON. Will the Senator yield at that point.
Mr. LIEBERMAN. I would be happy to yield to my friend from Louisiana.
Mr. JOHNSTON. The Senator, my friend from Connecticut, is one of the
best lawyers in this body, and I consider him to be one of the best
lawyers in the country. It is for that reason that I ask him, on page
25 of the bill, it contains language that says:
A major rule may be adopted and may become effective
without prior compliance with this subchapter if the agency,
for good cause, finds that conducting a cost-benefit analysis
is impractical due to an emergency or health or safety threat
that is likely to result in significant harm to the public or
natural resources.
We have the same language over on page 49 that has to do with the
risk assessment. So it covers both cost-benefit analysis and risk
assessment, and the operative language is you do not have to comply
with the chapter if there is a health or safety threat.
Now, would the Senator not agree with me that the phrase ``health or
safety threat'' would encompass any of these problems such as E. coli,
cryptosporidium, Ebola, flu, the common cold? It covers everything
relating to a health or safety threat. Would not the Senator, my
friend, agree with that?
Mr. LIEBERMAN. Mr. President, to respond through the Chair to the
Senator from Louisiana, first, I thank him for his kind words and,
second, it seems to me on the face of it the intention is certainly to
cover those health and safety threats. The question is whether it is
effectively done or comprehensively done, and I would like to work with
the Senator.
Let me just say that the other day we received the paper flying all
over about the Food and Drug Administration comments of the overall
bill, and they say as part of their comments:
The exemption for likely health or safety threats will not
permit the agency to take expeditious action to avert harm.
First, the finding of good cause would be imposed in addition
to the statutory violation finding that the agency currently
is required to make before taking any action, unless the
intent is to override the statutory finding. This requirement
is burdensome and inappropriate. Second--
And this is something that I have been concerned about--
neither ``significant harm'' nor ``likely'' is defined. As a
result, it is unclear how many situations would fall under
this standard. Is the threat of one spontaneous abortion--
The example they use--
or one death a significant harm? Under what circumstances
would the threat be deemed likely? Would the adulterated
product need to be in domestic commerce before the threat was
likely?
The requirement that the harm render the completion of a
detailed risk-benefit analysis impractical adds a further
level of complexity to what should be a straightforward,
expedited determination.
I am not embracing all of these questions as my own, but I think they
are reasonable, and I would like to work with the Senator to make sure
that we do put to rest any of the concerns that are raised in here
about public health and safety, although I must say that I have an
underlying concern about some of the other sections as they affect the
regulatory process even in cases where they are not health and safety.
But let me finally, bottom line, respond. I understand that the
intention here is to cover all of the concerns, the specific cases, of
the bacteria and the rest, and I would like to review the language in
the majority leader's amendment and work with the Senator from
Louisiana to make sure that we do just that.
It seems to me, as I said a few moments ago, I think we all share two
common goals. The Senator from Ohio has outlined these as his test for
whether he will support a regulatory
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reform bill. And to paraphrase and state them simply, we are all for
regulatory reform. We agree there are excesses. There is foolishness.
But in achieving regulatory reform let us make sure that inadvertently
we do not block the accomplishment of the purpose of the legislation
that is underneath the regulations.
Mr. JOHNSTON. Mr. President, if the Senator will further yield, I
appreciate his candor. Let me say that this amendment was put in at my
behest to deal with the problem.
It was our best judgment as to how to deal with what really was, we
thought, a problem with the original language. This was printed up, as
you know, and then we went into negotiations on our side of the aisle.
I personally spent something like 24 hours in direct face-to-face
negotiations with our caucus and our Members and our staff. I did not,
up until today, hear any criticism of this language.
If there is a way better to make it absolutely clear that you can
deal with these imminent threats without any delay, without having to
do anything like cost-benefit or risk assessment, if that is not
absolutely clear--and I believe it is as clear as the noonday Sun on a
cloudless day, I think it just shines through--but if it is not, then
I, for one, will certainly help clear it up. I will solicit the help of
my good friend and good legal advisor from Connecticut in helping to
sharpen that language.
Mr. LIEBERMAN. I thank my colleague from Louisiana. Obviously, I have
respect for him, his judgment, his word, and his good faith. I accept
the challenge to work with him to clarify the intention of the bill
overall with regard to emergency health and safety problems.
I know that the Senator from Ohio has a statement he wishes to make.
I am going to spend a few minutes more and then I will yield the floor.
I do want to say in overall terms, to put in a different context
these two goals that we have, that there is no question that part of
what motivates the bill before us is the broadly held feeling in
America that Government has become too big and too intrusive. But
reflecting only what I hear from my constituents in Connecticut, which
is that, I also hear from them that there are certain things that they
very much want Government to continue to do for them because they know
they cannot do it alone and it cannot be privatized.
I remember somebody once said--it is not my thought--the law exists
in society in relationship to the natural goodness and perfection of
the species; in other words, in Heaven, if you will, there is no law
because everyone does the right thing; in Hell, it is all law because
no one does the right thing; and we on Earth are somewhere in between.
The law expresses our aspirations, our values, our desire for a just
society.
Do we overdo it sometimes? Sure, we do. I have to tell you, when I am
home in Connecticut, I do not find anybody saying to me there is too
much environmental protection. I do not find anybody saying to me there
is too much consumer protection, there is too much food safety
protection, too much protection of toys. Yes, I find some business
people saying to me that some of the ways in which these goals you put
into legislation are being enforced by some of the inspectors, the
bureaucrats are ridiculous. The average business person I talk to says,
``Look, I'm not just a business person, I'm a citizen, I'm a father,
I'm a husband, I'm a grandfather. I have as much interest in clean air
and clean water and safe drinking water and safe food and safe toys as
anybody else.''
I am saying as we go forward, let us remember both sides.
I have two more general points. No. 1 is, I am a member of the
Environment and Public Works Committee. I have spent a lot of time on
that committee. Let me say briefly that I find there is an
extraordinary broad base of support in my State, and I believe
throughout this country, for environmental protection. In fact,
environmental protection is, as the writer Gregg Easterbrook pointed
out in articles and a book recently, probably the single greatest
success story of American Government in the postwar period. It is an
interesting thing to talk about. Again, it is not to say everything has
been done to protect the environment rationally and sensibly. Twenty-
five years ago, the Connecticut River was described by somebody as the
prettiest sewer in America. Today, the river is fishable and swimmable.
That has happened all around America with rivers, lakes, and streams.
The same is true of the air, that was heading rapidly in the
direction of not just smog that is hard to see through, but really
affecting people's health. I am hesitant, after the discussion we had
today about numbers here, but there are fairly credible scientists and
doctors who say still in our country tens of thousands of people die
prematurely--which is to say what it says, they would have lived
somewhat longer were it not for forms of air pollution. This is
particularly true of vulnerable populations.
There is an epidemic of asthma in our country. It has gone up 40
percent in the last 10 years, particularly among children. I have a
child who has asthma. More and more of these kids are vulnerable to
pollutants in the air. We have done a pretty good job of cutting the
number of those pollutants, but still we have a greater amount of work
to be done. I am saying, as we try to make the regulatory process more
rational, more reasonable, let us not pull away from the underlying
goals.
Finally, one of the things that has happened in the environmental
area is a general acceptance of the environmental ethic, as I said a
moment ago, and, I think, a growing partnership between the business
community and individuals and the environmental community. I am fearful
that if cooler heads do not prevail in this particular debate, and
debates are going on about other laws, that that partnership is going
to be broken. It will have a bad effect overall. It is going to lead,
first, to the kind of conflict that does not produce results, does not
clean up the environment, but, second, I am afraid from the point of
view of business, one of whose understandable goals is to seek
consistency of regulation, of law, there is going to be inconsistency,
we are going to swing from extreme to extreme, and that is not good.
Finally, if we do not get together and be reasonable with one another
and adopt a good regulatory reform bill, it is going to face a
Presidential veto. Then nothing is going to be accomplished. We would
have spent a lot of time, filled the air with a lot of rhetoric, but
ultimately, we are going to be left with a regulatory system that all
of us find inadequate.
So I hope as we go forward that we will keep those thoughts in mind.
I believe that the bill before us still, because of the petition
process in it, which is an invitation to delay, because of some of the
standards that are set, inadvertently puts at risk some of the
accomplishments of the last two or three decades.
I personally prefer S. 291. I prefer it in part because I worked on
it in the Governmental Affairs Committee under the leadership of the
Senator from Delaware and the Senator from Ohio. It came out of our
committee 15 to 0, a bipartisan vote. It is tough regulatory reform. It
requires a determination of whether the benefits justify the costs. It
requires regular review by the agencies of the regulations. It goes on
to create sunshine in the process and to put some common sense into the
regulatory process without jeopardizing the underlying laws.
So I prefer it to the alternative we have before us, but I hope we
can bridge the ground and, most of all, get something done to change
the status quo without jeopardizing the purposes that have engendered
the status quo.
I thank the Chair. I thank my colleagues for their patience, and I
yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER (Mr. Kyl). The Senator from Ohio.
Privilege of the Floor
Mr. GLENN. Mr. President, I ask unanimous consent that Jeneva Craig,
of my staff, be granted the privilege of the floor during consideration
of this legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GLENN. Mr. President, we got off to a rather fast start yesterday
and we did not get to give our opening statements on the general view
of the legislation before us. I would like to do that at this time.
This is a most important matter that comes before us with this
legislation.
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It may well prove to be, as far as impact on the American public, the
most important legislation we pass this year. I am under no illusions
it will get the most attention, but it may be the most important.
Before I launch into my statement, I ask unanimous consent to have
three editorials from the Washington Post, the New York Times, and the
Cleveland Plain Dealer, which discuss the issue of regulatory reform,
printed in the Record following my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. GLENN. Mr. President, regulatory reform is one of the most
important issues before us. Make no mistake, I want regulatory reform.
I think we need regulatory reform. Large businesses want regulatory
relief, so do small businesses, so do individuals. And their general
discontent with regulatory burdens is, in many ways, justified. I
believe that. That is why I want regulatory reform to be the right
balance.
Why do we have to have a lot of regulations? Are bureaucrats just
deciding to write as many regulations as they can think of over in the
agencies? No, that is not the answer. The process is that Congress
passes laws and agencies carry out the intent of these laws through
regulations, through the details that are necessary to make the laws
applicable.
Unfortunately, Congress passes a lot of ill-thought-out laws in
insufficient detail in the first instance, and then we complain
bitterly when the regulation writers in the agencies overstep into
unintended areas. In other words, if we want to look at some of the
culprits in overregulation, let us look at ourselves, let us look in
the mirror.
I repeat that sentence. Congress passes a lot of ill-thought-out laws
in insufficient detail in the first instance, and then we complain
bitterly when the regulation writers in the agencies overstep into
unintended areas.
I believe Congress needs to write laws more clearly and give agencies
more guidance. That way, agencies will not have to guess what our
intent was when they write the regulations that implement the laws.
In other words, Congress should do the work and weigh our actions
more carefully, including the costs and benefits of a law.
We should be doing all of that right here before passing legislation
that will be implemented through regulation.
As we debate how to reform the regulatory process, we need to ask
ourselves two essential questions. First, does the bill before us
provide for reasonable, logical, and appropriate changes to regulatory
procedures that eliminate unnecessary burdens on businesses and on
individuals?
Second, at the same time, does the bill maintain our ability to
protect the environment, health, and safety of all of our people? In
other words, does the legislation strike an appropriate balance? That
is the question.
Those are the two tests this legislation must meet. I believe that if
it can meet those two tests, there will be broad support for this
effort. Any bill that relieves regulatory burdens but threatens the
protections for the American people in health, safety and the
environment should be opposed.
Regulatory reform is very complicated. The idea sounds great, but the
devil is in the details. Cost-benefit analysis, risk assessment,
judicial review, the specific elements of regulatory reform, are
complex--very complex. The parts do not make easy sound bites. But
without making sense of the words, there can be no real reform, let
alone a workable Government.
I am very concerned that in order to keep up with the schedule
established by the other body, the Senate is being rushed to consider a
complex and lengthy proposal whose consequences are not yet fully
understood. Regulatory reform should be arrived at through a process of
deliberation and bipartisan consultation. That is the process we used
in the Governmental Affairs Committee. From our landmark regulatory
reform study clear back in 1977, through legislation and more than a
decade of oversight of OMB and OIRA paperwork and regulatory review,
and now to the consideration of legislative proposals in this Congress,
the Governmental Affairs Committee has approached this issue in an open
and bipartisan manner. That was our mode of operation during my years
as chairman. And this year, under the leadership of the new chairman,
Senator Roth, our committee held four hearings and developed a
unanimous bipartisan regulatory reform bill, and S. 291 was the number
as it came out of committee. Our committee report also reflects this
bipartisan spirit and deliberative process.
Now, I make these points because the proposal, S. 343, that has been
brought to the floor has been developed in a similar open and
deliberative manner. The bill is based on the Judiciary Committee's
reported bill that reflected a divisive committee, a proceeding that
was cut short.
Until recently, negotiations on this bill went on behind closed
doors. During the past several weeks, there have been many attempts to
work together to improve this bill. A number of Members have worked
diligently to explain our differences and what we think needs to be
changed. Before these discussions were completed, S. 343--this bill--
was brought to the floor. It is a bill that we believe continues to
have a great number of problems. The result, from what I can see, is a
bill tailored to special interests. It is a lawyer's dream. It does not
meet the dual goals of protecting health and safety and, at the same
time, having a more effective and more efficient Government.
Yes, we want agencies to have more thoughtful and less burdensome
rules. But we also want agencies to be effective. The American public
does not want the Federal Government to be more inefficient or to have
more public protections delayed or bogged down in redtape and delay and
courtroom argument. That is why Senator Chafee, myself, and several
others offered an alternative bill just before the recess. It is S.
1001, and it is based on that same Governmental Affairs Committee bill,
S. 291, that was reported out with full bipartisan support. The vote
was 15 to 0. There were eight Republicans and seven Democratic votes
out of committee.
S. 1001 provides for tough, but fair, reform. It will require
agencies to do cost-benefit analysis and risk assessments, but it will
not tie up all their resources unnecessarily. It does not provide for
special interest fixes. It does not create a lawyer's dream. It
provides for reasonable, fair, and tough reform. It reflects the work
of the Governmental Affairs Committee on S. 291 and only changes this
bill in three ways.
First, the definition of a major rule is one that has an economic
impact of $100 million. There are no narrative definitions, such as
``significant impact on wages.''
Second, the automatic sunset of rules that are not reviewed has been
changed. If agencies do not review rules within the allotted timeframe,
they must commence a notice of proposed rulemaking to repeal the rule.
In other words, the rule could not just sit there and automatically
become unenforceable. With this approach, there is opportunity for
public comment, and rules will not sunset without adequate opportunity
for review.
Third, we limited the risk assessment requirements to particular
programs and agencies. We also made some technical changes in line with
the National Academy of Sciences' approach to risk assessment. Those
are the three changes to S. 291 that we incorporated when it became S.
1001.
Let us remember what is at stake here. Regulation is important
because rules are needed to implement most laws. There is no way around
it. Public health and safety, environmental protection, equal
opportunity in education and in employment, stability in agriculture
and other sectors of our economy, each area has shown that it needs the
help of legislation and regulation that follows to make it workable.
I would like to talk for a few minutes about a different, but
related, regulatory matter. I mentioned it earlier this morning. That
was regulatory moratorium. We debated that at the end of March. I want
to talk about here, because I believed many of the provisions of S. 343
could have a similar effect in undermining health and safety
protections for the American people, their families and their children.
If there was ever a proposal to make one stop and think about what is
at
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stake, the moratorium would do it. It would have stopped all
regulations dead in their tracks, starting back at last year's election
through the end of this year, no matter what State the regulations were
in, no matter whether they were good or bad regulations. Now,
proponents of the moratorium, like proponents of S. 343, are ready to
subject the people of this country to the slashing of regulations
without due examination of what could happen, without considering what
health and safety protections may be at stake.
We had hearings in committee, and I met with Nancy Donley of Illinois
and Rainer Meuller of California, who both lost children to E. coli-
tainted hamburgers. Both came to Washington intent on looking in the
eyes of politicians who were more willing to tolerate endangering
children than facing up to a responsibility and making a regulatory
process that works. According to USDA's Food Safety and Inspection
Service, 3,000 to 7,000 Americans die of tainted food each year, and 3
to 7 million Americans are sickened by food-borne illness. This is
costing lives and health and millions of dollars.
Can anyone honestly say that we do not need protections and an
effective regulatory process? Further, I heard from airline pilots who
were angry that Congress might sacrifice air safety standards in order
to appear strong not by being proponents of enhancing safety
regulations, but by going too far the other way and delaying and even
slashing safety rules, all in the name of regulatory reform. In other
words, we would reform ourselves into greater danger for every airline
passenger.
I heard from public health experts who are alarmed at the threats to
the safety of drinking water from dangers like cryptosporidium, which
killed 100 people in Milwaukee in 1993, and made 400,000 sick. So the
moratorium would have halted drinking water safety rules until the end
of the year.
But the point of bringing up the moratorium here is not to confuse
the issue, it is to point out that the bill we take up today could well
delay some of these items well beyond the end of the year. It could
delay them significantly beyond that.
Of course, rules, regulations, and regulators are not always right.
There can be different approaches to protecting the public from disease
or injury. That is why reform is important. Regulations do not come
free. Their costs are weighing down the American people. Businesses,
private citizens, universities, and State and local governments all
complain that too many regulations go too far, that they just are not
worth it.
So our job is to find a balance that recognizes both the essential
role of regulations in our society and the social and economic price
paid by an overreliance on regulation. Finding this balance means
evaluating the benefits as well as the burdens of rules and using the
best scientific and economic analyses to do so.
What is the economic impact of regulation? How do we measure that
impact? How do we weigh economic costs and benefits? What are the
societal costs and benefits? Agencies need to do better in each of
these areas, and I believe true regulatory reform can improve agency
analysis and make the Federal rulemaking process work better. But
accomplishing these reforms is easier said than done.
There is wide disagreement in both the economic and scientific
communities about the methodologies and underlying assumptions used in
performing these analyses. In our committee, we heard from witnesses on
every side of these issues. In developing S. 1001, we tried to craft a
workable framework for regulatory decisionmaking. The product of our
committee work was a unanimously supported, tough regulatory reform
bill. With only a few changes--the ones mentioned--Senator Chafee,
myself, and others have proposed this bill, S. 1001, as an alternative
approach to regulatory reform.
It would improve agency decisions, lessen burdens on the American
public, improve the implementation of our laws, and make Government
more efficient and more effective. I intend to offer S. 1001 as a
substitute to S. 343 at the appropriate time. The debate on the
regulatory reform before us will, I believe, reveal many of the
failings of S. 343, and the more practical advantages of the Glenn-
Chafee bill.
Regulatory reform should focus on the following central issues, which
are reflected in S. 1001. I will expand on these principles in more
detail later in my statement:
First, agencies should be required to perform risk assessments and
cost-benefit analysis for all major rules.
Second, cost-benefit analysis should inform agency decision making,
but it should not override other statutory rulemaking criteria.
Third, risk assessment requirements should apply only to major risks
assessments, and these requirements must not be overly prescriptive.
Fourth, agencies should review existing rules, but their review
should not be dictated by special interests.
Fifth, Government accountability requires sunshine in the regulatory
review process.
Sixth, judicial review should be available to ensure that final
agency rules are based on adequate analysis. It should not be a
lawyer's dream, with unending ways for special interests to bog down
agencies in litigation.
Seventh, regulatory reform should not be the fix for every special
interest.
These principles would establish for the first time a Government-wide
comprehensive regulatory reform process. This process will produce
better, less burdensome, and probably fewer regulations. It will also
provide the protections for the public interest that the American
people demand of their Government.
I do not believe S. 343 follows these principles; instead it does
special favors for a special few--and in so doing creates a process
that will delay important decisions, waste taxpayer dollars, enrich
lawyers and lobbyists, undermine protections for health, safety, and
the environment, and further erode public confidence in Government.
I mentioned the seven principles. Let me talk about each of the seven
principles I raised in a little more detail.
Principle 1. Agencies should perform risk assessments and cost-
benefit analysis for all major rules. Most of us would agree that
before an agency puts out a major rule, it should do a cost-benefit
analysis, and if it makes sense, a risk assessment.
Let us start with one of the most fundamental questions in this
debate: What should be considered a major rule? In the Glenn-Chafee
bill and the bill we reported out of the Governmental Affairs Committee
on a bi-partisan, 15-to-0 vote, we decided that a major rule should be
one that has an impact of $100 million. A $100 million threshold has
been the standard under Presidential Executive orders for regulatory
review since President Reagan in the early 1980's. If anything, given
inflation, that threshold should go up, not down, if you think about
it.
S. 343 has a threshold of $50 million; the House bill casts an even
wider net of $25 million. These are just simply too low. Remember--this
bill will cover all Federal agencies--not just the Environmental
Protection Agency or the Food and Drug Administration. All Federal
agencies--Treasury, Commerce, Agriculture, and so on--would have to do
extensive analysis for every single rule that had a $50 million impact.
Or, if the House wins on this, a $25 million impact.
What are we trying to accomplish here? If it is to make the agencies
use these important tools for important, economically significant
rules, I believe we should keep the threshold high. If we demand that
rigorous cost-benefit analysis and risk assessment be required for just
about every rule, we will guarantee that we will use up valuable agency
resources with very little to gain.
One group that testified before the Governmental Affairs Committee
estimated that the House bill would add 2 years to the rulemaking
process and cost agencies a minimum of $700,000 per rule. I had some
figures yesterday that computed how expensive that could be and it gets
up into the hundreds of millions of dollars. Let us remember that we
are cutting the Federal work force and consolidating agency functions.
This bill should not create needless work that has little benefit. What
is the cost-benefit analysis for using $50 million or $25 million? I
believe it is going to cost the agencies a bundle of money and
resources and the benefits are few. Talk about poor cost-benefit
ratios. Let us stick to truly major
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rules and set that threshold at $100 million.
I say let us first see how this works at the $100 million level. If
we see that it works well, I would be in favor of reducing the
threshold at a later date to capture more rules, whether down to $50
million or $25 million. But I want to make sure that what we pass now
works, is fair, and brings relief for the biggest problems. I do not
want to flood the system with so many rules that nothing works, and we
find ourselves back here in 3 or 4 years reforming the regulatory
process once again.
I feel this even more strongly after yesterday's acceptance of an
amendment to include significant rules under the Regulatory Flexibility
Act in the definition of major rule. This will add well over 500 rules
to those having to go through cost-benefit analysis under S. 343. This
is just too much.
Principle 2. Cost-benefit analysis should not override existing
statutes. Another question that we must decide is how cost-benefit
analysis should be used. I believe, and many of my colleagues believe,
that in no way should cost-benefit analysis override existing statutes.
This is the so-called supermandate issue. We all agree that it is a
good idea to make agencies figure out what the costs and benefits of a
rule are before issuing it, and to see whether the benefits justify the
costs.
But let us keep in mind that this tool is far from a hard and fast
analytical science. There are lots of assumptions that go into figuring
out the costs of a rule and the benefits of a rule, and many benefits
and costs are
unquantifiable. That is
certainly no argument for not doing it. I believe it can be a very
useful tool in the decisionmaking process, but it does show that
caution is in order.
Agencies often have to get cost data from the industry it is
intending to regulate. And some industries have been known to overstate
how much it will cost to comply with a regulation. The benefit side
also has lots of difficulties. How much value do we place on a human
life? Does it matter if that human is an old man or a young girl? What
is the value of preserving a plant species? What is the value of
avoiding an injury to a worker? Clearly, agencies should not be forced
to quantify everything. On this point, Senator Dole, Senator Johnston,
Senator Chafee, and I--and in fact, probably all of us--agree. We
should encourage agencies to estimate costs and benefits--both
quantifiable and nonquantifiable--and make totally clear what
assumptions they use to do the analysis. This can help inform their
decisionmaking.
But this is where we differ: Should the result of a cost-benefit
analysis trump all other criteria for deciding whether or not an agency
should go forward with a rule? The way S. 343 is written right now,
that is what would happen, and I do not think that makes sense.
First, in passing legislation, we, in Congress, have said to
agencies, ``Go issue a regulation, based on what we've said in the
statute''--whether it be ``an adequate margin of safety'' or whatever.
The agency should not have the power to say, ``Well, we can't justify
the costs given the benefits of this rule, and therefore, we are not
going to issue this rule.'' This would basically be handing our
congressional responsibility over to the agencies, based on a less-
than-perfect tool of cost-benefit analysis.
I heartily believe that agencies should tell us if they really do not
think a rule's benefits justify its costs. But then the rule should
come back to us in Congress to figure out what to do. This will also
help to inform us in Congress about a law that should be changed. For
these reasons, I strongly support--and my colleague Senator Levin has
been a strong leader on this issue--a congressional review or the right
to veto rules through an expedited review process. This makes a lot
more sense than having a supermandate,'' which
would make cost-benefit analysis override an existing statute. Remember
that the congressional review of rules passed the Senate 100 to 0. It
makes sense to do business this way.
Let me give an example of how hard it is to figure out costs.
Everyone acknowledges that it can be very difficult to quantify
benefits, but most assume that cost numbers are easier to estimate
accurately. But let us consider the example from the Occupational
Safety and Health Administration [OSHA] of the cotton dust standard.
Several hundred thousand textile industry workers developed brown
lung--a crippling and sometimes deadly respiratory disease--from
exposure to cotton dust before OSHA issued protective regulations in
1978. That year, there were an estimated 40,000 cases, amounting to 20
percent of the industry work force. By 1985, the rate had dropped to 1
percent.
The initial estimates in 1974 for industry to comply with a stricter
standard was nearly $2 billion. By 1978, OSHA estimated the same costs
to industry to be just under $1 billion. So the estimate fell by 50
percent by the time the standard was issued. When the actual costs of
compliance were reported in 1982, they were four times lower than the
$1 billion estimate. It is likely that if OSHA had to use a cost-
benefit analysis to figure out whether to put out this standard in
1978, not having the knowledge that they did in 1982, they would not
have done it, even though it is clear to me that the great success of
this rule certainly justifies its costs.
Let us be clear on this point: Cost-benefit analysis should not
override existing statutory rulemaking criteria. Proponents of S. 343
say that this bill does not have a supermandate. It has been repeated
over and over that this bill does not have the supermandate. Many of us
disagree. Language to clarify this was offered during negotiations on
this bill, but it was rejected. We still do not have clarifying
language on this point. If there was no supermandate lurking here, why
was the clarifying language rejected? So the more I hear that this is
not a problem, but that the language cannot be clarified, the more I
have to wonder.
Another problem that many of my colleagues have discussed at length
with the supporters of this bill is the issue of least cost. Right now,
this bill requires two major determinations before a rule can be
issued: One, that the benefits justify the costs; and, two, that the
rule adopts the least-cost alternative. Let us think hard about these
words ``least cost.'' Do we always want the agencies to do the cheapest
alternative? What if an alternative that costs just $2 extra saves 200
more lives? Do we say pick the cheapest, and do not look at benefits of
the alternatives before you?
That is what this bill does. We should give the agencies some leeway
to use common sense. They should be able to choose the most cost-
effective approach, looking not just at costs but also at the benefits.
Here, we would be requiring them to pick the cheapest alternative,
which may not always be the most cost effective.
In talking about this economic analysis, let me say a quick word
about trying to reduce the costs of regulation on industry. In our
efforts to reform the regulatory process, we should encourage agencies
to take a hard look at market-based incentives to achieve regulatory
goals. Many have shown that we can achieve our environmental goals, for
example, at a lower cost than we do now by using market-based
mechanisms. These alternatives allow industries more flexibility in how
they meet a standard. For example, rather than telling every factory,
new or old, that they must purchase the same equipment to fix a
problem, we would give them flexibility, reducing their compliance
costs while reducing the same amount of pollution overall.
I agree with the part of S. 343, Senator Dole's bill, in which we are
requiring agencies to consider market-based mechanisms. We have a
similar provision in the Glenn-Chafee bill, S. 1001.
Principle 3. Risk assessment requirements must not be overly
proscriptive and should apply only to major risk assessments. Risk
assessment requirements are an important part of regulatory reform
because many of the rules we want to address in this legislation relate
to health, safety, or the environment.
Risk assessment can help us better understand what the risks are to
the public or the environment, which in turn lets us figure out how
best to lower those risks.
Scientists, agencies, and others have testified that it is essential
that we do
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not make these requirements too prescriptive. Risk assessment is an
evolving science. The last thing Congress should be doing under
regulatory reform is freezing this science by laying out in
excruciating detail how an agency must do a risk assessment.
I believe that both S. 1001, as well as this bill, do try to strike a
good balance. I must commend Senator Johnston for his leadership in the
area of risk assessment. He has done a lot of work on that. S. 1001
outlines smart risk assessment principles that are in line with
recommendations of the National Academy of Sciences.
There are still a few problems in S. 343, however, when it comes to
the specific risk assessment requirements. For example, what is
exempted from these requirements and what is not? This bill states that
an agency does not have to do a risk assessment for a rule ``that
authorizes the introduction into commerce * * * of a product.''
I ask my colleagues, what if an agency determines that a product is
unsafe and should be removed from commerce? Under this bill, the agency
would have to do a full-blown risk assessment, complete with extensive
peer review, before it could take a product off the market. If you want
to put something on the market, no sweat. If you want to take something
off the market, it is not so easy. And it will take time, a lot of
time.
I do not think this makes sense. Public health and safety can be
harmed by dangerous products on the market. All we have to do is
remember back to the thalidomide situation, for example, of a few years
ago, when talking about taking products off the market. We do not want
to make it more difficult.
Another problem is that the peer review requirements are exempted
from the Federal Advisory Committee Act. Let me state first that peer
review of major risk assessments I think is absolutely essential.
Scientific experts should evaluate the information put together by the
agencies, and a good peer review process will ensure high-quality
assessments. But how is the peer review going to be run? The way S. 343
is written now, no peer review would have to comply with FACA. FACA was
set up to ensure sunshine, accountability, public input, public
access--in fact, fairness to all parties involved in such Advisory
Committee processes.
FACA was put in to guarantee a balance of views on peer reviews, and
yet FACA would not apply to the requirements for peer review under this
act.
The Federal Government currently uses many peer review groups, most
in the fields of health, science, and technology. These are all subject
to FACA.
The proponents of S. 343, who now want to exempt these panels from
FACA, were strong advocates of having FACA apply to the health care
review panels just last August, less than a year ago. For example, the
majority leader stated, quite properly in my view, that ``There is no
reason why these boards should be granted the power to meet in secrecy.
Indeed, there is every reason why they must meet in public.''
Senator Grassley, on the same subject, stated, ``I ask my colleagues
to adopt the amendment to make FACA apply, because we ought to be doing
everything in the sunshine. If we do, the mold will not grow there.''
I agree completely with both of those statements. I do not see why
the peer review panels under S. 343 should be any different.
Another issue about peer reviews: Do we really need to require peer
review panels for every risk assessment for every environmental cleanup
project? S. 343 applies risk assessment and cost-benefit requirements
to all Superfund and Department of Energy cleanups that cost more than
$10 million.
Aside from the fact that I do not believe we should deal with
Superfund in a regulatory reform bill, I am very concerned about the
resources that agencies would have to use to comply with this bill.
There are hundreds of DOE sites and close to 1,000 Superfund sites that
would be affected by these requirements. I do not think it makes sense
to require such extensive peer review requirements for each one of
these risk assessments. How will the agencies ever be able to find so
many panels, for instance, that are truly balanced? How much will this
cost the Government? What would we gain from it? Where is the cost-
benefit analysis of this approach? I think we should delete the peer
review requirement for environmental cleanups.
Finally, the position of those supporting the Glenn-Chafee bill is
that the procedural requirements of these assessments should be, of
course, open to peer review, but they should not be reviewed by the
court. The courts are not the appropriate place to determine whether
particular assumptions or toxicological data in a risk assessment are
appropriate. The way the judicial review section is written, this is
indeed a major concern. I will address that issue just a bit later.
Principle 4. Agencies should review existing rules, but that review
should not be dictated by special interests. Regulatory reform is not
just about improving new rules and developing new techniques for
addressing new problems. Regulatory reform must also address the great
body of existing rules that currently govern so many activities in
business, in State and local governments, and which affect so many of
us as individuals.
For regulatory reform to be effective, it must look back and review
existing regulations to eliminate outdated, duplicative, or unnecessary
rules, and to reform and streamline others. This review is required
most simply because over time, many decisions become outdated. Review
is also needed because of the rising cumulative burden of existing
rules on businesses and individuals. For this reason, agencies should
take a hard look at major rules that they believe deserve review. Of
course, this process should be open for public comment so that those
who are interested in particular rules can make their concerns known to
the agencies. But this review should not be dictated by special
interests.
While I think a retrospective look at rules is essential, I do not
believe in a process that would allow anyone subject to a rule to
petition an agency to review a rule, which then requires stringent
action by the agency to respond to that petition. That could just
gridlock agencies and put special interests and the courts, not the
agencies, the executive branch, or the Congress, in charge of the
review.
The latest draft of S. 343 uses a petition process to put rules on a
schedule for review. If the agency grants the petition, it has to
review the rule in 3 years. That is a very short timeframe for such
matters. If it fails to review the rule in that time, the rule
automatically sunsets, it becomes unenforceable. This process, it seems
to me, puts the petitioner in the driver's seat, not the agencies or
the Congress who passed the law in the first place.
Mr. JOHNSTON. Mr. President, will the Senator yield on that point?
Mr. GLENN. No, I want to complete my statement. Then I will yield the
floor at that point.
It also creates a process that is more prone to killing regulations
than creating a thoughtful review of regulations. In addition to the
peer review petitions, S. 343 has many other petitions for any
interested party to challenge an agency on any rule, not just the major
rule. These are yet more examples of the lawyer's-dream approach taken
under this bill. Under S. 343, someone could petition for issuance,
amendment, or repeal of any rule; or, amendment or repeal of an
interpretive rule or general statement of policy or guidance; and,
interpretation of the meaning of a rule, interpretative rule, general
statement of policy, or guidance.
And just to add to the confusion, S. 343 also has a separate section,
section 629, for a petition for alternative compliance. Any person
subject to a major rule could petition an agency to modify or waive the
specific requirements of a major rule and to allow the person to
demonstrate compliance through alternative means not permitted by the
rule.
In addition, S. 343 adds another petition process in section 634 so
that interested persons may petition an agency to conduct a scientific
review of a risk assessment.
Each agency decision on every one of these petitions, except the
petition for alternative compliance, is judicially reviewable. It could
be challenged in the courts. What a dream for the lawyers. All of these
petitions and reviews add up to one of the worst parts of this bill. I
think it is a formula for true
[[Page S 9666]]
gridlock. Agencies will have to spend enormous resources responding to
each and every petition, and then they can be dragged to court if they
turn down a petition. This does not come close to being real regulatory
reform. This is regulatory and judicial gridlock. This is a way to keep
the agencies from doing their jobs and to keep lawyers happy and
extremely prosperous. This bill would make all the rhetoric about tort
reform a big joke except that in this case judicial gridlock means that
the health and safety of the American people could be jeopardized.
Principle 5. Government accountability requires sunshine in the
regulatory review process. Agencies must work to involve all interested
parties in the regulatory process, from soliciting comments to
disseminating drafts to ensuring broad participation in peer review.
Accountability also requires public disclosure of regulatory review
documents, including related communications from persons outside the
Government. There can be no public confidence in Government when some
can use back doors to decisionmakers. S. 1001 requires reasonable
disclosure consistent with recommendations of the Administrative
Conference of the United States.
Over the past 25 years, the most notable regulatory reform
accomplishment has been development of centralized Executive oversight
of agency rulemaking. This effort, while not truly reforming the
regulatory process, has had a substantial impact on the Federal
regulatory process. It led to the development of agency regulatory
analysis capabilities and better coordination among agencies, though
the record is quite uneven across agencies.
The development of centralized regulatory review has also led to more
consistent policy direction and priority setting from the Office of the
President, though the record here is uneven as well, due largely to
partisan controversy about Presidential use of that power to affect
agency decisions. Many times over the past 15 years many of us have
been in the Chamber debating the use of OMB regulatory review.
Much of the controversy that has dogged centralized regulatory review
since it was formalized in 1981 by President Reagan in Executive Order
No. 12291 revolves around public confidence in the integrity of the
regulatory process. The issue has come to be known as the regulatory
sunshine issue. And while the Governmental Affairs Committee has in the
past been divided about how much sunshine is needed and at what stages
in the process, the committee has always agreed on the need for
sunshine and public confidence in the regulatory process.
S. 343 has no sunshine provisions. It is not like the Glenn-Chafee
bill, S. 1001. S. 343 has no sunshine provisions for regulatory review,
and I believe that is a fundamental flaw that needs to be addressed.
Principle 6. Judicial review should be allowed for the final
rulemaking, not for each step along the way. Regulatory reform should
not become a lawyer's dream, with unending ways for special interests
to bog down agencies in litigation. We firmly believe in a court's role
in determining whether a rule is arbitrary and capricious. S. 1001
authorizes judicial review of the determinations of whether a rule is
major and therefore subject to the requirements of the legislation.
Also, it allows judicial review of the whole rulemaking record, which
would include any cost-benefit and any risk assessment documents. We
should not, however, provide unnecessary new avenues for technical or
procedural challenges that can be used solely as impediments by
affected parties to stop a rule. Courts should not, for example, be
asked to review the sufficiency of an agency's preliminary cost-benefit
analysis or the use of particular units of measurement for costs and
benefits. While courts have a vital role, they should not become the
arbiters of the adequacy of highly technical cost-benefit analyses or
risk assessments independent of the rule itself.
I believe, the way the bill is currently drafted, that lawyers and
the courts will get into the details of a risk assessment or cost-
benefit analysis. I think that is a mistake. From what I understand,
there has been a great deal of discussion about this issue, and I
believe many of us want the same result. The question is how to get
there from here. Leaving the language as ambiguous as it is now is not
acceptable.
Principle 7. Regulatory reform should not be the fix for special
interests in every program. Many parts of S. 343 are very different
from the bill we reported out from the Governmental Affairs Committee
on a bipartisan basis and the alternative bill we introduced before the
recess. In the bill before us, S. 343, several provisions are aimed at
benefiting special interests or stalling particular programs. Frankly,
they have no place in a regulatory reform bill that should attempt to
set a fair process, fair and equal to all.
First, let me say that I sympathize with those who would like to fix
particular problems. I know of examples where regulations go too far
and where agencies go too far. As testimony before our committee
showed, 80 percent of the rules are required by Congress. It is not
just the regulatory process that needs fixing. We in Congress are also
responsible for a lot of these problems. Let us focus on making the
regulatory process better as a whole and not a fix for special
interests.
Let me give some examples.
This bill tries to delay Superfund cleanups. It rewrites the Delaney
clause, shuts down the EPA toxic release inventory, provides
enforcement relief for companies, and so on.
Now, I agree that some of these are legitimate problems that deserve
our attention, but this is not the place. The regulatory reform bill
should address regulatory issues, not be a Christmas tree for lobbyists
to hang solutions to whatever problems they may have. Let us look at
some of these provisions a little more carefully.
First, delays and higher costs for environmental cleanups. Every
Superfund and Department of Energy cleanup that costs more than $10
million would have to go through a risk assessment and cost-benefit
analysis. This is not just for activities that will be starting up, not
just for new projects. It covers cleanups that are already under way.
EPA and DOE will have to stop any progress they are making to go back
and do additional costly analyses. This is guaranteed to slow the pace
of cleanup even further, something we have all been concerned about for
a long time. EPA estimates that 600 to 1,000 Superfund cleanups spread
across every State in the Union would be caught in this requirement.
The Department of Energy estimates that about 300 cleanups would be
affected. Does this make any sense? I would prefer to spend the
taxpayers' money on cleanup rather than repetitious, redundant studies
and more lawsuits.
To make matters even worse, these cleanups have to go through the
hoops of the decisional criteria, yet another supermandate in this
bill. For each $10 million cleanup, agencies would have to prove that
the benefits of the activity justify the costs, the activity employs
flexible alternatives, and the activity adopts the least cost
alternative.
Now, I and many others here recognize the need for Superfund reform,
and we worked hard on that last Congress. That is where this provision
belongs, under Superfund reform, not regulatory reform. If we are going
to fix the problem, let us fix it right. Adding new burdens and hurdles
is certainly not the right approach.
Second, gutting of the toxics release inventory, the TRI. The TRI is
intended to provide the public with information about chemicals being
released into their local environment. This bill would fundamentally
change the way the TRI works and would swamp the agency. In reforming
the regulatory process, we are trying to encourage agencies to use
flexible approaches to regulation and make the agencies more efficient.
The TRI currently provides information to the public and encourages the
voluntary reduction of toxic emissions through whatever means a company
chooses to use. This program has not only provided maximum flexibility
to companies, but it has also resulted in significant reductions in
emissions. Since 1988, companies have reported a decrease in emissions
of listed chemicals of more than 2 billion pounds a year. In this bill,
we would change the standard for removing chemicals from the list. We
would force EPA to perform thousands of site-specific risk assessments
in a very short time. This sounds less like regulatory reform and more
like make-work for
[[Page S 9667]]
the agency. If Congress wants to change the standard in TRI, we should
do it in the context of Emergency Planning and Community Right-to-Know
Act legislation. This provision has no place being in this bill.
Third, repeal of the Delaney clause. You will get no argument from me
that it is time to change the Delaney clause. It should have been done
a long time ago. But this regulatory reform bill does not fix it. I
believe this is just one more case of a very important and substantive
area that should be dealt with outside the context of regulatory
reform.
In conclusion, I want regulatory reform, but S. 343 does not provide
balanced regulatory reform. Its overall impact will be to swamp the
agencies to the point of ineffectiveness, provide lots of jobs for lots
of lawyers, and to make some companies very happy.
I would like to work hard with everyone here, all my colleagues, to
make a good, fair and truly balanced regulatory reform bill.
So I hope we can address many of the issues I have raised today. I
urge everyone to take a hard look at the regulatory reform approaches
in the Dole-Johnston and the Glenn-Chafee bills and then ask
yourselves: Are we relieving regulatory burden on industries and
individuals? Are we protecting the environment and health and safety of
the American people?
We must work together in a true bipartisan spirit to meet these two
essential goals of regulatory reform. Together we can truly improve how
our Government works.
Mr. President, I asked consent earlier for insertions into the
Record. I will ask for one more. We have a letter that was addressed to
both leaders, the majority and minority side, from the Department of
Agriculture. I think it is worth including in the Record also. I ask
unanimous consent that that letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Department of Agriculture,
Office of the Secretary,
Washington, DC, July 11, 1995.
Hon. Robert Dole,
Majority Leader, U.S. Senate, Washington, DC.
Dear Bob: I am writing in regard to the effect that S. 343
would have on the efforts of the Department of Agriculture
(USDA) to improve the meat and poultry inspection system and
the safety of the nation's supply of food. The Food Safety
and Inspection Service (FSIS) published a proposed rule to
significantly reform the federal inspection system by
requiring the adoption of science-based Hazard Analysis and
Critical Control Point (HACCP) procedures. S. 343 would
needlessly delay USDA's efforts to reform the meat and
poultry inspection system.
Foodborne pathogens in meat and poultry products, such as
E. coli, Salmonella and Listeria are believed to cost the
nation billions of dollars from lost productivity, medical
costs, and death. The virulent E. coli bacteria alone is
estimated to cause 20,000 illnesses and 500 deaths annually.
Young children and the elderly are particularly vulnerable to
foodborne pathogens and therefore at greatest risk.
On February 3, 1995, USDA proposed reform of the federal
meat and poultry inspection system to incorporate science
into its inspection system. USDA's proposal would require the
use of scientific testing and systematic measures to directly
target and reduce harmful bacteria. The goal is simple: to
improve food safety and to reduce the risk of foodborne
illness from consumption of meat and poultry products.
Under the proposal, the Nation's 9,000 federally inspected
slaughter and processing plants would be required to adopt
science-based HACCP procedures. Targets would be set for
reducing the incidence of contamination of raw meat and
poultry with harmful bacteria. Meat and poultry plants would
be required to test raw products for pathogens, and to take
corrective action, if necessary, to meet food safety targets.
S. 343 would significantly delay this essential reform by
requiring USDA to establish a peer review panel which
satisfies the criteria in S. 343, submit a cost-benefit
analysis and risk assessment (analyses) to the panel, and
convene the panel to review the analyses. The panel would
then be required to prepare and submit a report to FSIS
detailing the scientific and technical merit of data and
methods used for the risk assessment, including any minority
views. FSIS would have to respond in writing to all
significant comments made in the report. The report and the
FSIS response would become part of the rulemaking record and
would be subject to judicial review provisions of S. 343.
These procedures would significantly delay the essential
reform effort by a minimum of six months.
While peer review can be a useful tool to improve the
rulemaking analyses, the potential benefits from a peer
review of the HACCP reform proposal does not justify delaying
reform of this system--a reform that is supported by all
interests. Similar review has been already been occurring.
The scientific foundation of the HACCP proposal, in short,
will have been the subject of extensive review and comment as
part of the rulemaking process.
First, FSIS published the preliminary regulatory impact
analysis (PRIA) in the Federal Register for comment with the
proposed HACCP rule. The PRIA contained a preliminary cost-
benefit analysis and risk assessment which explained the
assumptions regarding the risks and costs of foodborne
illness to the public, the costs of the proposed rule to the
regulated community, and the range of benefits in terms of
reduced foodborne illness that the proposed HACCP rule would
achieve. Before publishing any final regulation, FSIS will
revise and finalize this cost-benefit analysis based on the
comments received. Second, peer review of the HACCP proposal
is unnecessary since FSIS has held at least 11 public
meetings to discuss and obtain comments on all aspects of the
reform proposal. Three of those meetings were two-day
conferences which addressed various scientific and technical
issues raised by the rulemaking. Third, the National Advisory
Committee for Microbiological Criteria in Foods, which
provides impartial, scientific review of agency actions
relative to food safety, also reviewed the HACCP proposal and
submitted comments. All comments received in connection with
these public meetings have been placed in the rulemaking
record.
S. 343 simply adds another level of review which in this
case would result in an unnecessary delay of essential food
safety reform. For this and other reasons, I would recommend
that the President veto S. 343 if enacted in its present
form.
The Office of Management and Budget advises that there is
no objection to the presentation of this report to the
Congress.
Sincerely,
Dan Glickman,
Secretary.
Mr. GLENN. Mr. President, I quote some from that Record, in closing,
to show how some of these things can work. They address E. coli,
salmonella, and some other things we addressed earlier on the floor
today.
In this letter from the Secretary of Agriculture, he points out some
of the difficulties. He says:
I am writing in regard to the effect that S. 343 would have
on the efforts of the Department of Agriculture to improve
the meat and poultry inspection system and the safety of the
Nation's supply of food. The Food Safety and Inspection
Service published a proposed rule to significantly reform the
Federal inspection system by requiring the adoption of
science-based Hazard Analysis and Critical Control Point
procedures. S. 343 would needlessly delay USDA's efforts to
reform the meat and poultry inspection system.
Foodborne pathogens in meat and poultry products, such as
E. coli, Salmonella and Listeria, are believed to cost the
Nation billions of dollars from lost productivity, medical
costs, and death. The virulent E. coli bacteria alone is
estimated to cause 20,000 illnesses and 500 deaths annually.
Young children and the elderly are particularly vulnerable to
foodborne pathogens and therefore at greatest risk.
On February 3, 1995, USDA proposed reform of the Federal
meat and poultry inspection system to incorporate science
into its inspection system. USDA's proposal would require the
use of scientific testing and systematic measures to directly
target and reduce harmful bacteria. The goal is simple: To
improve food safety and reduce the risk of foodborne illness
from consumption of meat and poultry products.
Under the proposal, the Nation's 9,000 federally inspected
slaughter and processing plants would be required to adopt
science-based HACCP procedures. Targets would be set for
reducing the incidence of contamination of raw meat and
poultry with harmful bacteria. Meat and poultry plants would
be required to test raw products for pathogens, and to take
corrective action, if necessary, to meet food safety targets.
S. 343 would significantly delay this essential reform by
requiring USDA to establish a peer review panel which
satisfies the criteria in S. 343, submit a cost-benefit
analysis and risk assessment analyses to the panel, and
convene the panel to review the analyses. The panel would
then be required to prepare and submit a report to FSIS
detailing the scientific and technical merit of data and
methods used for the risk assessment, including any minority
views. FSIS would have to respond in writing to all
significant comments made in this report. The report and the
FSIS response would become part of the rulemaking record and
would be subject to judicial review provisions of S. 343.
These procedures would significantly delay the essential
reform effort by a minimum of 6 months.
While peer review can be a useful tool to improve the
rulemaking analyses, the potential benefits from a peer
review of the HACCP reform proposal does not justify delaying
reform of this system--a reform that is supported by all
interests. Similar review has already been occurring. The
scientific foundation of the HACCP proposal, in short, would
have been the subject of extensive review and comment as part
of the rulemaking process.
[[Page S 9668]]
First, FSIS published the preliminary regulatory impact
analysis in the Federal Register for comment with the
proposed HACCP rule. The NPRM contained a preliminary cost-
benefit analysis and risk assessment which explained the
assumptions regarding the risks and costs of foodborne
illness to the public, the costs of the proposed rule to the
regulated community, and the range of benefits in terms of
reduced foodborne illness that the proposed HACCP rule would
achieve. Before publishing any final regulation, FSIS will
revise and finalize this cost-benefit analysis based on the
comments received. Second, peer review of the HACCP proposal
is unnecessary since FSIS has held at least 11 public
meetings to discuss and obtain comments on all aspect of the
reform proposal. Three of those meetings were two-day
conferences which addressed various scientific and technical
issues raised by the rulemaking. Third, the National Advisory
Committee for Microbiological Criteria in Foods, which
provides impartial, scientific review of agency actions
relative to food safety, also reviewed the HACCP proposal and
submitted comments. All comments received in connection with
these public meetings have been placed in the rulemaking
record.
S. 343 simply adds another level of review which in this
case would result in an unnecessary delay of essential food
safety reform. For this and other reasons, I would recommend
that the President veto S. 343 if enacted in its present
form.
The Office of Management and Budget advises that there is
no objection to the presentation of this report to the
Congress.
Mr. President, I know that is a lengthy statement this morning. But I
wanted to get my views in. We did not have opening statements
yesterday. I think I have laid out today the major differences between
S. 343, the bill before us now, and S. 1001. S. 1001 is based on the
bill that came out of the Governmental Affairs Committee on a 15-0
unanimous vote, except for the three changes I mentioned, which are
improvements to the bill.
Mr. JOHNSTON. Will the Senator yield for a question?
Mr. GLENN. I hope people will look very carefully at these
differences and, at the appropriate time, we may want to recommend or
may submit as a substitute S. 1001. I yield the floor.
Exhibit 1
[From the Washington Post, July 6, 1995]
Regulating Regulation
The Senate is about to embark on a major debate over
regulatory reform. The fundamental issue is how much weight
to give to costs in measuring the costs and benefits of
regulation. The principal bill is sponsored by Majority
Leader Bob Dole. Its backers say, we think with cause, that
in the last 25 to 30 years particularly, too many federal
regulations of too many kinds have been issued without
sufficient regard to cost. That's partly because these costs
don't show up in any budget. The politicians can impose them,
and for all practical political purposes, they disappear.
The legislation seeks to impose greater discipline by
requiring more use of both risk assessment and cost-benefit
analysis, the first to lay out more clearly the risks that
each rule is meant to abate, the second to compare the
expected benefits and costs of compliance. It would then
require a finding that the benefits are somehow commensurate
with the costs.
All that's to the good; the only problem is that regulatory
matters are rarely that tidy. Among much else, they often
involve a great deal of scientific guesswork, and the
benefits--of a cleaner lake, for example--often can't be
quantified. The questions are further complicated when the
winners and losers aren't the same people. Whether or not to
issue a particular rule will always be in part a value
judgment. The cost of compliance should be a larger factor in
reaching such judgments than it has often been in the past;
it should not be the only factor. That's the policy zone that
this bill seeks to define.
It isn't easy. The bill now forbids an agency to issue a
major rule without a finding that the benefits ``justify''
the costs. Some deregulatory advocates think that's too weak
a word and want the bill to read ``outweigh'' instead. The
bill says that, in requiring the weighing of benefits against
costs, the intent is not to ``supersede'' but to
``supplement'' the ``decisional critera'' in other statutes.
Environmentalists and the administration say that's a word
game and that the bill would still override the other
statutes--clean air, clean water and all the rest--because
the supplementary standard would still have to be met. The
bill suggests in one place that courts could toss out agency
actions only if arbitrary or capricous--the current
standard--but elsewhere says the agency actions would also
have to be supported by ``substantial evidence,'' a higher
standard.
Our own sense is that regulating regulation may turn out to
be as hard as regulating anything else, which suggests that
there's a limit to what can likely be constructively
accomplished by this bill. To require as clear a statement as
possible of the risks to which a rule is addressed (how
serious are they? how sure can we be?) as well as the likely
costs and benefits of compliance (and of rival approaches) is
absolutely the right thing to do. To insist that an agency
demonstrate that a rule is sensible policy--plainly, that's
right as well.
The question is, demonstrate where and to whom? The bill is
set up to be enforced through litigation. The courts would
become the arbiters of whether benefits had been shown to
``justify'' costs--but the courts are the wrong place to make
such judgments. There's a better idea in a rival bill; when a
major rule is issued, sent it first to Congress, which would
have, say, 45 days in which to veto it or let it take effect.
It's Congress, after all, that passed the laws that gave rise
to the regulations. Since these are essentially political
judgments anyway, let Congress also be the one, on the
strength of all the studies this bill would require, to bless
or block the results. That's the right way to do it.
____
[From the New York Times, July 7, 1995]
Overkill in Revising Regulation
Senator Bob Dole's bill to reform regulatory procedures
would erect needless obstacles to adopting Federal health,
safety and environmental rules. Its excessive provisions
invite filibuster by angry Democrats and a Presidential veto.
The majority leader could exercise better leadership by
joining forces with John Glenn, Democrat of Ohio, whose
alternative bill would bring common sense to Federal rules,
not extinguish them.
Both Mr. Dole and Mr. Glenn start off right by requiring
Federal agencies to weigh benefits against costs to weed out
regulations that do more harm than good. The calculations are
necessarily inexact, especially where non-quantifiable
benefits, like the value of clean air over the Grand Canyon,
are involved. But forcing agencies to explain the pros and
cons of rules and justify their wisdom gives the public vital
information.
The problem with the Dole bill, co-sponsored by Senator J.
Bennett Johnston, Democrat of Louisiana, is that its complex
language would not fulfill promises made by the sponsors. Mr.
Dole says his bill would not override existing health and
safety laws that explicitly forbid balancing benefits against
costs nor invite judicial challenge of the minute procedures
by which agencies conduct their analyses. But the actual
words and likely impact of the bill provide no decisive
protections.
The bill builds in elaborate petition rights by which
regulated industries can force review of existing
regulations. That will allow the affected industries to tie
up regulations in court and bury agencies in costly
administrative reviews. The bill also establishes seemingly
contradictory standards. In some sections it tells agencies
to pick rules that generate large benefits relative to their
costs, but in other places it favors rules that simply
minimize cost.
Mr. Glenn's bill fixes many of these missteps. It would
allow industry to challenge only arbitrary or capricious
rules, and not procedural miscues. It would cut
administrative burdens by limiting cost-benefit analysis to
major rules. Mr. Glenn would protect against overzealous
rule-making by subjecting new rules to review by outside
experts and giving Congress 45 days to review major rules
before they go into effect. That puts Congress, rather than
the courts, in charge.
There is no problem with the existing regulatory system
that warrants Mr. Dole's radical approach. Why not start with
the Glenn bill, and do more later if necessary?
____
[From the Plain Dealer, July 9, 1995]
Reason and Regulation
Sen. John Glenn, a longtime aficionado of dry but important
issues, is not about to change his image with his latest
mission; a bid to temper legislation that would weaken the
federal government's power to impose regulations.
But however unglamorous his latest crusade may be, there is
no question that Glenn is making a critical contribution on
an issue that is far more consequential than it sounds. At
stake is the federal government's ability to protect
Americans from all sorts of health, safety and environmental
dangers.
Glenn, the ranking Democrat on the Governmental Affairs
Committee, is leading the challenge to a sweeping regulatory-
reform bill pending on the Senate floor.
The bill, offered by Majority Leader Bob Dole, would slow
down the regulatory process by subjecting a broad range of
regulations to cumbersome risk-assessment and cost-benefit
studies. It also would make it easier for industries to fight
regulations with lawsuits and petitions. The Dole bill, which
already has been moderated a bit to draw some Democratic
support, is generally similar to legislation already passed
by the House.
Glenn, however, hopes to moderate the Senate bill further.
Though he embraces Dole's overarching goal of reducing
unnecessary government regulation, as well as some of Dole's
prescriptions, he is wisely warning that the Dole bill poses
a new bureaucratic risk: that the government will become
entangled in even more paperwork from a flurry of new
litigation, cost-benefit analyses, and risk-assessment
studies.
Glenn is proposing a more reasonable alternative--a
bipartisan regulatory-reform bill almost identical to one
approved earlier this year by the Government Affairs
Committee. Glenn's bill contains numerous provisions designed
to streamline the federal regulatory process, but it takes a
less drastic
[[Page S 9669]]
approach than Dole's. Glenn's bill, for example, would require risk-
assessment and cost-benefit studies of regulations expected
to have an economic impact exceeding $100 million; Dole's
bill would apply to rules with an impact of $50 million.
When the Senate returns this week from its holiday recess,
negotiations are likely to resume over a possible compromise
between the Glenn and Dole versions. Glenn should hang tough
as long as possible, knowing that any compromise he endorses
is likely to win Senate approval and then be watered down
further in negotiations with the House.
The rules of regulating may not be most politicians' idea
of an exciting cause. But it is well worth Glenn's time and
effort.
Mr. GRASSLEY addressed the Chair.
Mr. JOHNSTON. Mr. President, will the Senator yield for a question?
The PRESIDING OFFICER (Mr. Ashcroft). The Senator from Iowa.
Mr. JOHNSTON. Will the Senator from Ohio yield for a question?
Mr. GLENN. I yield the floor.
Mr. JOHNSTON. He will not yield for a question?
Mr. GLENN. I yield the floor.
Mr. JOHNSTON. He yields the floor or yields for a question?
Mr. GLENN. Yield for a question.
Mr. JOHNSTON. I thank the Senator from Ohio. Mr. President, the
Senator from Ohio just read a copy of a letter from Secretary of
Agriculture Dan Glickman to Democratic leader Tom Daschle dated July 11
which he read in full which recommended veto because the Dole-Johnston
bill added another level of procedure, which would be the peer review
of these matters in food safety.
I am looking at the Glenn substitute, particularly pages 27, 35, 36,
and 37, and I see a peer review situation of exactly the sort that
Secretary Glickman describes. I ask the Senator from Ohio, am I not
correct, does he not include the same kind of peer review and, indeed,
that includes on page 27 review of the Food Safety and Inspection
Service for peer review?
Mr. GLENN. I think what the Secretary is complaining about is the
effective date on this. Ours would not have the same time of
effectiveness as S. 343.
In addition, as the Senator from Louisiana will note, one of the
major differences he had with S. 343 is making the record subject to
judicial review provisions which could delay things in a major way, as
he says at the top of the second page of his letter. I might add, the
letter was not just to the minority leader, it was to both the majority
and minority leaders.
Mr. JOHNSTON. Do I misread this when he says in the last paragraph on
the first page that ``S. 343 would significantly delay this essential
reform by requiring USDA to establish a peer review panel which
satisfies the criteria in S. 343, submit a cost-benefit analysis and
risk assessment [analyses] to the panel, and convene the panel to
review the analyses''? He is not talking about appeal or effective
date, he is talking about peer review, is he not?
Mr. GLENN. He is talking about peer review and subjecting it to
judicial review.
Mr. JOHNSTON. I invite my friend from Ohio to go back and read the
letter. He may be also complaining about judicial review provisions.
Did the Senator have any judicial review in his proposal?
Mr. GLENN. Of the final rule. Of the final rule only. In S. 1001, we
do not permit judicial review at each step along the way, as is
provided in S. 343. That is what I mentioned several times this
morning. That is just a lawyer's dream, as I see it, because they can
challenge at any point along the way virtually where we provide for a
final rule.
You can take the whole rulemaking process, and once it is ready to
become finalized, to become a rule, then it can be challenged in court.
Then you can have judicial review.
Mr. JOHNSTON. Is the Senator aware that S. 343 does not allow
judicial review at every step along the way? It simply allows an
interlocutory review for three limited questions. First, whether it is
a major rule; that is, whether its impact will be $50 million--and I
hope we can change that to $100 million--but the size of the rule.
Second, whether it is a matter affecting health, safety or the
environment, which would require a risk assessment. Third, whether it
would require the reg-flex for small business. And that limited appeal
would have to be made in 60 days. That is not to give a lawyer's dream;
that is to give certainty, so that you do not, at the end of the
process, have to go back and do the peer review and the risk assessment
if you were incorrect about the size of the impact of the rule. Now,
that is not what he is complaining about here, that interlocutory
appeal. That is a separate thing. Would the Senator not agree with me
that I have correctly stated what S. 343 states, and if I have not
stated it correctly, would he correct me on how I have misstated it?
Mr. GLENN. Well----
Mr. SIMON. Parliamentary inquiry, Mr. President.
The PRESIDING OFFICER. The Senator from Iowa has the floor.
Mr. SIMON. That was my question: Who has the floor?
The PRESIDING OFFICER. The Senator from Ohio yielded the floor. The
chair recognized the Senator from Iowa, who yielded for this colloquy.
Mr. GLENN. Repeat your question.
Mr. JOHNSTON. The Senator says that the Secretary of Agriculture
objects because there is an interlocutory appeal provided in S. 343.
Having recognized that both bills, the Glenn substitute and S. 343,
provide for an appeal from the final agency action. So what the Senator
from Ohio says is that the Secretary of Agriculture is objecting
because of an interlocutory appeal. My question to him is, would he not
agree with me that that interlocutory appeal--that is, an appeal taken
within the first 60 days after the publication in the Federal Register
of the question of whether or not it is a major rule, whether or not it
pertains to health, safety, or the environment, or whether or not it
affects small business requiring the reg-flex--that must be published
in the Federal Register and appeal taken on that limited question
within the first 60 days. Does the Senator agree with me that that is
not what----
Mr. GLENN. Well, what I will have to do, I answer my colleague, I
would have to get a clarification from the Secretary as to exactly what
he meant in some of this. There can be two interpretations of it, as
there can be different interpretations as to whether judicial review is
required each step along the way. That is not certain at this point. I
think there are different interpretations of that. I believe that is
one of the areas in which we had trouble getting language clarified,
was it not?
Mr. JOHNSTON. I think the Glenn bill is ambiguous on that question. I
do not believe S. 343 is in its present form. We will debate that at a
separate time. I am simply saying that the Glenn bill is subject to the
same thing on peer review that he says the Secretary of Agriculture
says S. 343 has. Only ours is more flexible with respect to peer review
than his because we allow for informal peer review, and the Glenn bill
does not.
Mr. GLENN. S. 343 would take effect sooner and would affect these
rules more, where our effective date is later.
Mr. JOHNSTON. Now, if I may ask the Senator this. The Senator said
that under S. 343 rules automatically sunset. Now, two questions:
First, is he not aware that in S. 343 we now provide--this has been
added since it originally started--that any interested party may
petition the court of appeals for D.C. to get an extension of up to 2
years upon a showing that the rule is likely to terminate, that the
agency needs additional time, that terminating the rule would be in the
public interest, and that the agency has not expeditiously completed
its review. You cannot only get an extension of 2 years, but you can
get such court orders as are appropriate, such as to complete the
rulemaking, or commence the rulemaking, or advance the schedule,
whatever court orders are necessary; and is he aware of that, and in
light of that, would he not say that a sunset is not automatic under S.
343 but is subject to that extension?
Mr. GLENN. What happens at the end of 2 years? Two years is not much
in this rulemaking thing, as he is aware. Sometimes it takes 3 or 4
years to get a rule put into effect. Two years is not a long period of
time.
Mr. JOHNSTON. After the 3 years, 5 years.
Mr. GLENN. At the end of that time it would sunset, is that correct?
Mr. JOHNSTON. At the end of the 5-year period, it would sunset. Keep
in mind that it did not get on the schedule and that the person at the
agency
[[Page S 9670]]
was in charge of the schedule, and so he or she could advance the rule
as quickly as he could. Would the Senator say that 5 years is not a
sufficient time?
Mr. GLENN. It took 5 years to get put into place.
Mr. SIMON. Point of order, Mr. President.
The PRESIDING OFFICER. The Senator from Iowa has the floor. Does he
yield for an inquiry?
Mr. JOHNSTON. Will the Senator from Iowa yield for another question?
Mr. GRASSLEY. I will yield. But is it going to come to a close soon?
Mr. JOHNSTON. Yes.
Mr. GRASSLEY. I ask unanimous consent to extend the time to recess
until 12:45.
Mr. GLENN. Reserving the right to object.
Mr. GRASSLEY. Why do I not take the floor then. I thought this was a
good exchange.
Mr. JOHNSTON. If I could ask one more question.
Mr. GLENN. I could not agree to doing that. That is done by the
leadership.
Mr. JOHNSTON. One more question. Did the bill which the Senator has
touted that came out of committee by, I think, a unanimous vote, not
provide for a sunset of all bills with no extension at the end of 10
years on the sunset provisions. Did that bill not so provide?
Mr. GLENN. We have changed that in the Glenn-Chafee bill.
Mr. JOHNSTON. With a 5-year extension.
Mr. GLENN. We changed the sunset and review provision.
Mr. JOHNSTON. The bill you voted for in committee.
Mr. GLENN. We no longer have a sunset in this. The bill came out in
committee and we changed that later on.
Mr. JOHNSTON. The bill out of committee did have the sunset and did
not have any ability to get court orders to order the agency to take
action.
Mr. GLENN. No, it came out with a 10-year limit, with a Presidential
right to extension. If the agency did not review it, it would sunset.
We now realize that was wrong because somebody could delay it over in
an agency and sunset a bill by not doing anything. So we took that out.
S. 1001 does not have that in there.
Mr. JOHNSTON. I thank the Senator from Iowa for yielding.
Mr. GRASSLEY. The Senator from Louisiana has been so involved in this
legislation, so I thought it was very important that I give him time to
have that communication with the Senator from Ohio, because I think
there is a lot of misperception about this legislation. I think what
the Senator from Louisiana just had to say in the way of asking
questions helped clear up some of the misperceptions about this
legislation.
Also, the Dole amendment is before us. I want to speak on the Dole
amendment, because there are a lot of misperceptions about the
legislation.
I support the Dole amendment on E. coli and other food borne
pathogens. I would like to be able to argue that the amendment is
necessary to protect the public health from threats to food safety.
But I think we have to be honest with each other. The regulatory
reform act of 1995--that is the title of the bill before us--will not
in any way jeopardize the safety of this country's food supply. So then
why the Dole amendment?
The Dole amendment is necessary due to fear mongering and scare
tactics used by opponents of regulatory reform in this town. They are
doing this in an attempt to kill this legislation, S. 343, which has
been caught up in the politics and misinformation over the proposed
meat inspection regulations.
We have all seen television commercials, and we have seen the
political cartoons characterizing Republicans, in particular, as
supporting ``dirty meat.'' It makes it sound like we are rolling back
meat inspection requirements. This is demagoguery, Mr. President, at
its worst. There is not a Member of this Chamber that would put the
health of this Nation's children at risk, or anybody of any age at
risk.
Yet, the administration and the opponents of this bill would have you
believe that the proposed meat inspection regulation would somehow be
delayed or even eliminated altogether by this bill. That is simply not
the case.
This bill already allows agencies to avoid conducting cost-benefit
analyses and risk assessment when a regulation is necessary to avoid an
``emergency or health safety threat.'' And the words ``emergency or
health safety threat'' are from the legislation. Furthermore, even if
this exemption were not in the bill, the proposed regulation on meat
inspection has already passed cost-benefit scrutiny by both USDA and
OMB.
So a regulation that they fear is in jeopardy has already gone
through this process to satisfy this legislation. The administration
and opponents of regulatory reform somehow seem to want it both ways.
On the one hand, they argue that if this bill is passed, there will be
a serious and imminent threat to the Nation's food supply.
If this argument is correct, the exemption in this bill allows for
the implementation of the meat inspection regulation without conducting
cost-benefit analysis and risk assessment. But, on the other hand, they
argue that if the exemption does not apply, the meat inspection
regulation will be held up because it would not pass muster under this
bill.
That is not true. Because, apparently, the regulation has already
passed the cost-benefit analysis that is required. So even though I do
not believe this amendment is necessary, I think it does help clarify
the meaning of the bill. Most important, it is going to stop opponents
from demagoging on this issue and for this reason I fully support it.
But I think what is at issue here is this. The regulators and
organizations in this town who support massive big Government
regulation--and of course Members of this body who are supportive of
that concept as well--see their power to stretch the meaning of
legislation to an extreme, to do what is in their mind everything the
law will allow, just stretch the intent of Congress as much as you
can--they see this legislation as impeding their power. They do not
like that. It is this power in this town versus, then, the power of the
people at the grassroots who want to make sure that public health and
safety is protected. We all want that to happen. But we want to make
sure that it is done in a reasonable way--not from emotion but from
reason.
The regulators' mindset is to look at scientific data differently
than the way scientists look at scientific data. This legislation is
going to make sure that risk assessment and regulation generally has a
scientific basis. It is a way of taking emotion out of so much of the
debate that comes with regulation.
There have been many instances in which regulatory agencies have
issued regulations and then they would put together panels of
scientists, most from academia, to come in and look at the science
behind the regulations that are issued. There are instances in which
the scientific panels would say that the science is not good; where the
panels would not back the science of the regulatory agency that was
behind the regulation writing. Panels of scientists would say to the
agency, ``Go back to the drawing board. Start over again.'' The
politics of the agency or the politics of this town gets in the way of
good regulation writing because of the regulators' mindset to not view
scientific data the same way that scientists would.
The attitude in this town is to have just enough science as a
rationale for your regulation. The attitude in this town is that we do
not want science to disprove anything. Regulatory agencies do not want
science to disprove anything. What they basically want is just enough
data to support a regulatory decision already made, a political
decision already made.
So what this legislation does is put in process a procedure by which
scientific evidence is going to carry a greater weight. Most important,
though, there is going to be judicial review and congressional review
of the decisionmaking process so regulators, who are told to use sound
science, will have to use sound science. Or, if they do not, there are
going to be other people looking over their shoulders.
This legislation is going to make the regulatory process more
intellectually honest. It is going to eliminate those instances in
which the politics of this town or the politics of a regulatory agency
say which regulations they are going to write, and then scientists
[[Page S 9671]]
come in and say sound science does not back up the regulation, so go
back to the drawing board. There should not be any more need to go back
to the drawing board unless a court would say that they should, or the
Congress would say that they should, through the process of review.
It is very important that we have a sound scientific basis for
regulation. But it is more important that the regulation writers are
held accountable, by having somebody look over their shoulder. This
legislation is very rational, a very rational approach to regulation
writing. This legislation is badly needed to make sure that regulation
is within the least costly approach to give us the most benefit.
This legislation is simply common sense, and that is what we do not
have enough of in this town--maybe even in the laws we write, but most
important in the regulations. That is why Senator Dole's amendment is
very important, to take some of the emotion out of this debate. It is
very important that we get some of this legislation passed, this
regulatory reform bill passed, so we take some of the emotion out of
the whole process of regulation writing in this town.
Mr. President, I have a request from the leader to read a unanimous-
consent request.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the recess at 12:30 be delayed for up to 15 minutes in order to
allow for a statement by Senator Simon.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GLENN. Reserving the right to object.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Illinois is recognized.
Mr. SIMON. Mr. President, I thank my colleague from Iowa for making
the unanimous-consent request.
What we need in this field is some balance. There is no question we
have overregulation. Anyone, in any field--I do not care whether it is
education, medicine, what the field is--recognizes we have
overregulation. But the bill that came out of the committee headed by
Senator Roth and Senator Glenn, being the ranking member, that came out
15 to nothing--that strikes me as having that balance. Let us just take
a look at a few examples.
Iron poison--between 1990 and 1993, 28 children under the age of 6
died from iron poisoning after taking adult iron-containing products.
Overdoses of iron tablets by children can result in intestinal
bleeding, shock, coma, seizures, or possibly death. Iron is now a
leading cause of poisoning deaths for children under the age of 6.
The FDA has proposed warning labels. This bill might well delay what
could come, and would permit judicial review that clearly could cause
delay.
Let me give another example.
When it was proposed that we have safety belts in our cars, the
automobile industry was not enthusiastic about that, as many of us here
will recall. Here is Henry Ford II, in response to this proposal, in
1966.
Many of the temporary standards are unreasonable, arbitrary
and technically unreasonable. If we cannot meet them when
they are published, we'll have to close down.
This was seatbelts. They were going to have to close down American
automobile manufacturing because of seatbelts.
We voted for seatbelts and, lo and behold, it has not hurt American
manufacturing. As a matter of fact, the Japanese were there ahead of us
and we are saving thousands of lives every year.
Here is Lee Iacocca, and I am ordinarily a Lee Iacocca fan. He was
then vice president of Ford Motor Co., in a meeting with President
Richard Nixon, April 27, 1971:
. . . the shoulder harness, the head rests are complete
wastes of money. You can see that safety has really killed
all of our business. We're not only frustrated, but we've
reached the despair point.
Now, all of a sudden it sells cars. Now they are bragging about the
very things that they opposed: Airbags. I can remember, in 1990, the
fall of 1990, right after the election I wanted to buy an American car.
The only American car that had airbags on the passenger side was a
Lincoln--meaning no disrespect, I am not the Lincoln type. I am a Ford,
Chevrolet, or Plymouth. I could not buy an American car that had
airbags on the passenger side. I finally bought a Chevrolet that had
them on the driver's side, not on the passenger side. Now they are
bragging about the very things they opposed.
If this law were not in effect, would we have moved ahead on
seatbelts and airbags?
I think the answer is clearly we would not have.
Let us take a look at a few other things. Lead solder out of food
cans. These are examples from the FDA. Final rules published June 27,
1995; effective date to stop manufacturing cans with lead solder is
December 27, 1995. What is going to happen if this law comes into
effect? I do not know. Requiring quality standards for mammography
tests, publication of proposed regulations are planned for October
1995. You have people who are not providing quality tests for women.
What happens if this goes into effect? Cables and lead wires in
hospitals have caused the deaths of a number of people. FDA has
proposed a regulation to require that cables which connect patients to
a variety of monitoring and diagnostic devices be designed so that the
cables could not be plugged directly into a power source or electric
outlet. Proposed rules were published June 12, 1995. What happens?
Take another example, Mr. President. I had a press conference with
two little boys with asthma. Asthma is the leading illness of all U.S.
children. A young boy named Kyle Damitz spoke at this press conference.
He and his brother both spoke. Here is what Kyle Damitz had to say.
Hi, my name is Kyle Damitz.
I am 6 years old.
I go to Farnsworth school.
I have asthma.
I love to play sports.
In the summer when the air is dirty, I can't go outside. I
can't breathe in the dirty air.
And my mom makes me come inside.
This is not fair to me and my brothers and everyone with
asthma.
We need to tell the president, to make new laws. So that
all the kids with asthma can play outside all the time.
How do you do a cost-benefit analysis on kids playing outside who
have asthma? I think you have to recognize the cost-benefit test simply
is not a workable test.
Mr. JOHNSTON. Mr. President, will the Senator yield on that point?
Mr. SIMON. Let me finish, and then I will be happy to yield to my
colleague from Louisiana.
The State of Illinois tried a cost-benefit criteria in terms of its
water and air pollution and found it just was not workable.
Jacob Dumelle, the chairman of the Pollution Control Board from 1973
to 1988 commented about why the Illinois Pollution Control Board had
banned the mandatory economic impact analysis. This is a quote from
him:
Cost-benefit analyses are expensive, hard to do. In the
end, you try to put a dollar value on human lives.
You just cannot do that effectively. The cost-benefit test just does
not make sense.
Let me quote, and I ask unanimous consent, Mr. President, that an
article of July 17 from Business Week be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Business Week, July 17, 1995]
Are Regs Bleeding the Economy?
maybe not--in fact, they sometimes boost competitiveness
(By John Carey, with Mary Beth Regan)
To the Republican Congress, regulations are like a red cape
waved in front of a raging bull. ``Our regulatory process is
out of control,'' says House Science Committee Chairman
Robert S. Walker (R-Pa.). He and other GOP leaders charge
that nonsensical federal rules cripple the economy, kill
jobs, and sap innovation. That's often true: Companies must
spend enormous sums making toxic-waste sites' soil clean
enough to eat or extracting tiny pockets of asbestos from
behind thick walls.
That's why GOP lawmakers on Capitol Hill want to impose a
seemingly simple test. In a House bill passed earlier this
year and a Senate measure scheduled for a floor vote in July,
legislators demand that no major regulation be issued unless
bureaucrats can show that the benefits justify the costs.
``The regulatory state imposes $500 billion of burdensome
costs on the economy each year, and it is simply common sense
to call for some consideration of costs when regulations are
issued,'' says Senate Majority Leader Bob Dole (R-Kan.).
[[Page S 9672]]
That sounds eminently reasonable. But there's a serious
flaw, according to most experts in cost-benefit calculations.
``The lesson from doing this kind of analysis is that it's
hard to get it right,'' explains economist Dale Hattis of
Clark University. It's so hard, in fact, that estimates of
costs and benefits may vary by factors of a hundred or even a
thousand. That's enough to make the same regulation appear to
be a tremendous bargain in one study and a grievous burden in
the next. ``If lawmakers think cost-benefit analysis will
give the right answers, they are deluding themselves,'' says
Dr. Philip J. Landrigan, chairman of the community medicine
department at Mount Sinai Medical Center in New York.
There's a greater problem: The results from these analyses
typically make regulations look far more menacing than they
are in practice. Costs figured when a regulation is issued
``almost without exception are a profound overestimate of the
final costs,'' says Nicholas A. Ashford, a technology policy
expert at Massachusetts Institute of Technology. For one
thing, there's a tendency by the affected industry to
exaggerate the regulatory hardship, thereby overstating the
costs.
More important, Ashford and others say, flexibly written
regulations can stimulate companies to find efficient
solutions. Even critics of federal regulation, such as Murray
L. Weidenbaum of Washington University, point to this effect.
``If it really comes out of your profits, you will rack your
brains to reduce the cost,'' he explains. That's why many
experts say the $500 billion cost of regulation, bandied
about by Dole and others, is way too high.
Take foundries that use resins as binders in mold-making.
When the Occupational Safety & Health Administration issued a
new standard for worker exposure to the toxic chemical
formaldehyde in 1987, costs to the industry were pegged at
$10 million per year. The assumption was that factories would
have to install ventilation systems to waft away the
offending fumes, says MIT economist Robert Stone, who studied
the regulation's impact for a forthcoming report of the
congressional Office of Technology Assessment (OTA).
bottom lines
Instead, foundry suppliers modified the resins, slashing
the amount of formaldehyde. In the end, ``the costs were
negligible for most firms,'' says Stone. What's more, the
changes boosted the global competitiveness boosted the global
competitiveness of the U.S. foundry supply and equipment
industry, making the regulations a large net plus, he argues.
While federal rules that improve bottom lines are rare,
regulatory costs turn out to be far lower than estimated in
case after case (table). In 1990, the price tag for reducing
emissions of sulfur dioxide--the cause of acid rain--was
pegged at $1,000 per ton by utilities, the Environmental
Protection Agency, and Congress. Yet today the cost is $140
per ton, judging from the open-market price for the
alternative, the right to emit a ton of the gas. Robert J.
McWhorter, senior vice-president for generation and
transmission at Ohio Edison Co., says the expense could rise
to $250 when the next round of controls kicks in, ``but no
one expects to get to $1,000.'' The reason: Low-sulfur coal
got cheaper, enabling utilities to avoid costly scrubbers for
dirty coal.
Likewise, meeting 1975 worker-exposure standards for vinyl
chloride, a major ingredient of plastics, ``was nothing like
the catastrophe the industry predicted,'' says Clark
University's Hattis. He found in a study he did while at MIT
that companies developed technology that boosted productivity
while lowering worker exposure.
Of course, it's possible to find examples of underestimated
regulatory costs. And even critics of the GOP regulatory
reform bills aren't suggesting that cost-benefit analysis is
worthless. ``We should use it as a tool'' to get a general
sense of a rule's range of possible effects, says Joan
Claybrook, president of the Ralph Nader-founded group Public
Citizen. But she and other critics strongly oppose the
Republican scheme to kill all regs that can't be justified by
a cost-benefit exercise. As a litmus test for regulation,
``the uncertainties are too broad to make it terribly
useful,'' says Harvard University environmental-health
professor Joel Schwartz.
What is useful is moving away from a command-and-control
approach to regulation. There's widespread agreement among
companies and academic experts that bureaucrats should not
specify what technology companies must install. It's far
better simply to set a goal, then give industry enough time
to come up with clever solutions. ``We need the freedom to
choose the most economic way to meet the standard,'' explains
Alex Krauer, chairman of Ciba-Geigy Ltd. Krauer, for example,
points to new, cleaner, processes for producing chemicals
that end up being far cheaper than installing expensive
control technology at the end of the effluent pipe.
dumb things
But when goals are being set for industry, the proposed
cost-benefit analysis approach could have a perverse effect.
That's because agencies are rarely able to foresee the low-
pollution processes industries may concoct. Smokestack
scrubbers are a good example. The bean-counters will use the
known price of expensive scrubbers in their analyses. Their
cost-benefit calculations will then argue for less stringent
standards. And those won't help spark cheaper technology. The
result can be the worst of both worlds: costlier regulation
without significant pollution reductions. ``It's a vicious
circle,'' explains Stone. ``If you predict that the costs are
high, then you stimulate less of the innovation that can
bring costs down.''
There's no doubt reform is needed. ``Frankly, we have a lot
of dumb environmental regulations,'' says Harvard's Schwartz.
But he puts much of the blame on Congress for ordering
agencies to do dumb things. Now, Congress is tackling an
enormously complex issue without fully understanding the
ramifications. Schwartz and other critics worry. Overreliance
on cost-benefit analysis could make things worse for
business, workers, and the environment.
regulation isn't always a costly burden
Many regulations cost much less than expected because
industry finds cheap ways to comply with them.
cotton dust
1978 regulations aimed at reducing brown lung disease
helped speed up modernization and automation and boost
productivity in the textile industry, making the cost of
meeting the standard far less than predicted.
vinyl chloride
Reducing worker exposure to this carcinogen was predicted
to put a big chunk of the U.S. plastics industry out of
business. But automated technology cut exposures and boosted
productivity at a much lower cost.
acid rain
Efficiencies in coal mining and shipping cut prices of low-
sulfur coal, reducing the need to clean up dirty coal with
costly scrubbers. So utilities spend just $140 per ton to
remove sulfur dioxide, vs. the predicted $1,000.
Mr. SIMON. Mr. President, that article is about this legislation.
Listen to the last sentence of this article. This is not from some
wild-eyed radical liberal publication. This is from Business Week.
Overreliance on cost-benefit analysis could make things
worse for business, workers, and the environment.
I think we ought to be going back to the bill by our colleague from
Delaware, Senator Roth. I think that has balance. I think this bill
does not have balance. This bill is going to end up in endless
litigation. I know my colleague from Louisiana is sincere, as is the
majority leader. But I think it is moving in the wrong direction.
I am pleased to yield to my colleague from Louisiana for a question.
Mr. JOHNSTON. I ask my friend, would he not agree that benefits to
health, safety, or the environment are by their nature nonquantifiable;
human life, health, clean air?
Mr. SIMON. They are not. That is why I think we have to be very, very
careful in this area.
If I may regain my time just for a minute, when you talk, for
example, in an area that the Senator from Louisiana knows much about,
and the Presiding Officer does, and I do, and that is flood control,
then when you talk about cost-benefit, it is very easy. When you talk
about something like asthma, then you are talking about something where
it becomes very, very difficult.
Mr. JOHNSTON. Is the Senator aware that at my behest, we put in
language in the bill contained on page 36 that says if scientific,
technical, or economic uncertainties or nonquantifiable benefits to
health, safety, or the environment identified by the agency in the
rulemaking record make a more costly alternative that achieves the
objectives of the statute, appropriately and in the public interest,
that that more costly alternative may be accepted because of the
nonquantifiable benefits to health, safety, and the environment, or
because of the uncertainty of science and data?
Is the Senator aware that that amendment was added to this bill since
that Business Week article was written?
Mr. SIMON. Let me just add, there is no question that the Senator
from Louisiana has improved the bill before us.
Mr. JOHNSTON. Does that not cover the exact things the Senator from
Illinois was talking about, the boy with the asthma, the kid with the
lead?
Mr. SIMON. I think the answer is what is quantifiable and what is
nonquantifiable is going to become a matter of jurisdiction of the
courts under this legislation. I think we are going to have endless
litigation.
Mr. JOHNSTON. Under the definition of benefits, we have already
included the quantifiable benefits. That is put into your cost-benefit
ratio. This says that this is a little extra that you are able to add.
If you are not able to quantify the value of life, which by its nature
is nonquantifiable, or the value of
[[Page S 9673]]
clean air, then you can add that on and have a more costly alternative.
That is exactly and precisely to deal with the problem that my friend
from Illinois so eloquently described, which is the kid with asthma,
the people with safety belts, and all that. It is nonquantifiable. It
is human life. You do not put a dollar value on human life or on the
value of clean air.
I urge my colleagues to go back and read on page 36 those words. I
think it covers this like a hand in a glove.
Mr. LEVIN. Will the Senator from Illinois yield on that exact same
point?
Mr. SIMON. I am pleased to yield to my colleague from Michigan.
Mr. LEVIN. I hope also all of us will read that language which was
referred to by the Senator from Louisiana. But what it does not cover
are areas where we cannot quantify the benefits, such as how many fewer
asthma attacks will result? That is quantifiable, let us assume for a
moment. The value of avoiding it may not be quantifiable. But the fact
that we could avoid a certain number of asthma attacks, or deaths in
many cases, is very quantifiable.
We sought from the Senator from Louisiana and others language which
would say that where you can quantify a reduction in deaths or asthma
attacks, we should then not be forced to use the least costly approach.
We may want to reduce more asthma attacks and save more lives with a
slightly more expensive approach. We were unable to get that language.
So, yes. It is very important that all of us understand the point
that is made by the Senator from Louisiana. But it does not solve the
problem which has been raised by the Senator from Illinois.
Mr. SIMON. Mr. President, I think the dialog we have just had
suggests that my point is valid, that we are going to end up with the
courts deciding what is quantifiable and what is not quantifiable. I
think we should move slowly in this area. I have been in Government a
few years now, Mr. President. I was first elected to the State
legislature when I was 25. I am now 66. I have found generally that
when we take solid, careful steps, we are much better off than when we
do these sweeping things.
I think what we have before us now is well intentioned, but too
sweeping, in answer. The pendulum will go from one cycle to the other.
Mr. President, I yield the floor.
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