[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the quorum call be rescinded.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 

[[Page S 9658]]
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 

[[Page S 9659]]
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 

[[Page S 9660]]
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 

[[Page S 9661]]
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. 

[[Page S 9662]]
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 

[[Page S 9663]]
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 

[[Page S 9664]]
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 

[[Page S 9665]]
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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