[Congressional Record Volume 141, Number 112 (Wednesday, July 12, 1995)]
[Senate]
[Pages S9739-S9770]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The Senate continued with the consideration of the bill.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I just want to make a few opening 
comments on this bill before the Senate. It is a very important bill. I 
consider it one of the most important bills in the last 60 years. It is 
going to make a difference as to whether or not we are going to be 
regulated to death or whether regulators are going to have to meet 
certain standards and norms of common sense before they overregulate 
us, or should I say before they regulate us properly.
  This bill would force them to have to do what is right. It will also 
force Congress to be a little more specific in its legislation so that 
we do not always have to rely on regulations. It will make the system 
more honest.
  This bill is about common sense, and I think most Americans would 
agree that the Federal Government is out of control in terms of the 
burdens it places on them. A lot of people in this country believe 
that. We know that the 

[[Page S 9740]]
cost of regulations is eating us alive. It is between $6,000 and 
$10,000 per family in this country.
  Now, many of them are essential. We acknowledge that. This bill will 
protect the essential regulations. And that is as it should be. We also 
know that some of these regulations are restrictive of freedom, some of 
them are taking properties away from people, some of them are just 
plain, downright offensive, and some of them are stupid.
  In that regard, let me give my top 10 list of silly regulations--this 
is my fourth top 10 list of silly regulations --just to kind of bring 
home to everybody how utterly ridiculous some of the interpretations of 
regulations and the regulations themselves are in this country.
  No. 10. Fining a man $10,000 because he filled out his tax forms with 
a 10-pitch typewriter instead of a 12-pitch typewriter. That is 
ridiculous. But that is what happened.
  No. 9. Medicare will pay for a pacemaker but will not pay for a 
newer, smaller version of the pacemaker that actually would be less 
expensive because that specific version has not been approved by the 
FDA, even though it has been in clinical trials. It is ridiculous. And 
the old procedure costs a lot more compared to the new one.
  No. 8. Fining a company $5,000 for accidentally placing the answer to 
line 17 on line 18 in an Environmental Protection Agency form. Now, who 
would not be upset with that type of ridiculous assessment by the 
regulators?
  No. 7. Prosecuting a rancher for ``redirecting streams'' when he has 
cleared scrub brush removed from his irrigation ditches. The ditches 
have been in use since the beginning of the century, and they have 
cleaned them all the time. But they prosecuted him for ``redirecting 
the streams.'' Utterly ridiculous.
  No. 6. Spending nearly $3 million to protect the habitat of the 
endangered dusty seaside sparrow and then managing the land poorly, 
thus allowing this sacred bird to become extinct. Spend $3 million, 
wreck the land, and the bird becomes extinct anyway. Ridiculous.
  No. 5. A wrecking company's owner was convicted of a felony and 
sentenced to 3 years in jail. What was his crime? His crime was failing 
to inform bureaucrats that when his company demolished a building, a 
total of one single pound of asbestos was released into the atmosphere. 
Three years in jail. That is more than ridiculous.
  No. 4 on this top 10 list of silly regulations for today: Requiring a 
farmer to suspend all economic activity on 1,000 acres of land because 
one red-cockaded woodpecker was found. I do not know about you, but my 
goodness gracious, it is time to put an end to this type of silly 
regulation.
  No. 3 on the list of the silliest regulations, on our top 10 list for 
today, fining a business $250 for failing to report that no employee 
has been injured in the preceding year.
  No. 2. Withholding approval of a medical waste container for almost a 
year only to determine that the product did not need FDA review. 
Ridiculous.
  Let us look at No. 1 on our list of 10 silly regulations.
  No. 1. The FDA took 7 years to approve a medical device which helped 
premature newborn infants breathe. It then made the company withdraw 
the product from over 250 hospitals because the agency found 
inadequacies in the company's documentation of its manufacturing 
practices. None of this documentation affected the safety of the 
product. Physicians later verified that children who could not get this 
product died.
  Now, unfortunately, because of silly regulations, thousands of people 
are dying in this country, and many, many more people are being 
oppressed and mistreated in this country.
  Mr. President, our Nation is being suffocated under a mountain of 
red-tape. Unnecessary, inefficient, and wasteful regulation stifles 
business, slows the economy, and costs our fellow Americans their jobs. 
It has gotten to the point where the words Americans fear most are, ``I 
am from the Government and I am here to help you.'' Amazingly enough, 
there are still those who attempt to argue that the Federal bureaucracy 
is just fine. They are satisfied with the status quo. We are not.
  Overregulation is often just plain ludicrous. We have had some fun 
describing some of the goofy rules that the Feds think we just have to 
have. But the fact is these regulations are frequently not funny at 
all. They hurt people. They cause deaths--the very people they are 
ostensibly supposed to be helping.
  For example, the Abyssinian Baptist Church in Harlem struggled for 4 
years to get approval for a Head Start program in a newly renovated 
building. Most of the time was spent arguing with the bureaucrats about 
the dimensions of rooms that did not satisfy the guidelines. ``An 
entire generation of Head Starters missed the facility,'' said Kathy 
Phillips from the church. ``The people in Washington want to tell you 
this or that can't be done. I told them, `I know you're talking about 
five pieces of paper, but we're talking about children.''' When 
regulations hurt children, it is time to change the regulations.
  In another case, an OSHA inspector noted that a worker wearing a dust 
mask had a beard, violating a rule that requires a close fit between 
face and mask. The dust was not heavy or of hazardous content, and even 
when used over a beard, the mask filtered out most of what there was. 
But the rule was clear and, like most rules, did not distinguish among 
differing situations. Nor did it matter that the worker was Amish. 
Given a choice between abrogating his religious beliefs or quitting his 
job, this Amish worker quit his job. Thus, in seeking to protect a 
worker, OSHA really cost him his job. Now, that is ridiculous.
  The rigid nature of regulations is evident in the example of Tony 
Benjamin, the father of eight, who after reading about lead poisoning 
made a mistake to look to the Government for help. He had his children 
tested and found the youngest had lead levels almost at the danger 
threshold. He got a lead detection kit and, as is common in old houses, 
found lead beneath the surface of his walls. The State official said 
not to worry because Mr. Benjamin had recently painted over the old 
coat.
  But the child's test results had been filed with the city health 
department. One day, unannounced, the city inspectors arrived and 
stamped the word ``violation'' in red ink on every nick in his paint, 
and after finding 17 nicks, declared his home a health hazard. Mr. 
Benjamin was told to move his family out of their home and strip and 
repaint it in large sections. If he failed to comply immediately, he 
was told, he could be fined over $8,000. Mr. Benjamin could not afford 
to do what the inspectors demanded. Certainly he could not vacate his 
home with his eight children. Where could they go? Meanwhile, the 
youngest child's lead level dropped well below the level considered 
dangerous, but the law still required abatement, clearly without 
exception. When a family can be thrown out of their own home without 
good reason, no one can tell me that this system is working.
  Another situation involves a man who tried to defend himself against 
a grizzly bear. Bears had eaten about $1,200 of the man's sheep in one 
summer. However, the grizzly bear was listed as endangered, and he 
could do nothing. One night he heard bears attacking. And in his 
frustration, he came out of his house with a rifle and shot at the 
bears. Then another bear he had not seen moved to attack him so he shot 
it. The next day he went out to look for the dead bear. Instead he 
found it was very much alive as it started to charge him again. He shot 
it in self-defense, killing it. As a punishment for defending himself 
he was fined $4,000 for ``taking'' the bear which had attacked him.
  Regulations also impose burdensome costs on hard-working people, 
burdens that make survival almost impossible. In one case an auto parts 
storeowner failed to display a sign indicating that his store accepts 
waste motor oil for recycling. For his crime, he faces a $10,000 fine 
and a 1-year prison term. The owner said that the sign was down because 
the windows were being washed. Well, think about it for a minute. You 
own a business. You are up against a fine of 10 grand and a year in 
jail for failing to post a sign for 1 day while you are washing the 
windows. What is wrong with this picture?
  What is happening to us in America? Convicted, violent criminals, 
murderers and rapists are getting out of prison through the revolving 
door in 

[[Page S 9741]]
our justice system, yet a regular guy, who happens to be cleaning his 
window, is treated like a criminal. I say to my colleagues that if we 
allow this kind of distorted societal value system to continue, our 
negligence as holders of the public trust far exceeds anything this 
business owner could be cited for.
  Other times the immense mountain of paperwork buries business alive. 
I spoke earlier about Mr. Dutch Noteboom, age 72. He has owned a small 
meatpacking plant in Springfield, OR, for 33 years. The USDA has one 
full-time inspector on the premises, one full-time inspector, and 
another spends over half of his time there. The level of regulatory 
attention is somewhat surprising since Mr. Noteboom has only four 
employees. But the rules require there be at least one inspector 
wherever livestock is slaughtered.
  Mr. Noteboom said, ``I am swimming in paperwork, but I don't even 
know a tenth of the rules--you should see all these USDA manuals.'' 
Now, do we really need an inspector for every two employees?
  These silly regulations could even stop well-meaning Government 
employees from being able to exercise common sense. In the late 1980's, 
Dr. Michael McGuire, a senior research scientist at UCLA found himself 
in trouble. His lab, which sits on 5 acres, is funded by the Veterans 
Administration. Its lawn needs to be cut. When the lawnmower broke, Dr. 
McGuire decided to go out and buy another one. He filled out no forms 
and got no approvals. During a routine audit, the auditor asked why the 
lawnmower was different. Dr. McGuire told the truth, and thus launched 
an investigation that resulted in several meetings with high-level 
Federal officials. ``I couldn't understand,'' Dr. McGuire notes, ``why 
important agency officials would spend their time this way.'' No 
kidding. I do not understand it either.
  Finally, after months, they rendered their findings. They could find 
no malice, but they determined Dr. McGuire to be ignorant of proper 
procedures. He received an official reprimand and was admonished to 
study VA procedures about the size of an encyclopedia.
  Oh, one more fact about this case. Dr. McGuire bought the lab's 
lawnmower with his own money. Now, can anyone believe that this is a 
useful and productive way to spend taxpayer money--to find fault with 
Dr. McGuire who did it on his own with his own money to help keep the 
lawn cut?
  Well, Mr. President, I want to emphasize that the cost of regulation 
is not limited to a few unfortunate individuals. These examples of 
bureaucratic abuse, of mismanagement add up to a staggering cost for 
all Americans. The Americans for Tax Reform Foundation estimates that 
the average American works until May 5 just to pay their taxes. 
However, when the hidden costs of Government, the regulatory costs, are 
added in, it is not until July 10 that the people even start to earn 
money for themselves.
  So we are working from January 1 to July 10 to even make a dime for 
ourselves. Monday was July 10, Mr. President. Until this week started, 
this very week, every single day that an average American had spent at 
work so far this year has been to pay for their Government. It was only 
this morning that they could expect to keep one penny of what they 
earned. Such a tremendous drain on hard-working Americans cannot be 
justified when the money is being spent on some of these ridiculous 
regulations I have mentioned today. They are just a few of literally 
the thousands and hundreds of thousands of them that are ridiculous and 
do not work.
  This bill will eliminate the wasteful, absurd, and harmful 
regulations while keeping those that truly protect America. Those 
regulations that contribute to the greater good will not be affected by 
this bill. This bill will not summarily overturn environmental laws, 
antidiscrimination laws, or health and safety laws. Such allegations 
are pure hogwash.
  But as we have noted from these few examples, the true worth of many 
rules should seriously be questioned. That is what this bill does. It 
requires the Federal Government to justify the rules and regulations 
they expect us to live by. And, in my book, that is not too much to 
ask. So I urge my colleagues in the Senate to support this legislation. 
And I appreciate being able to just make this short set of 
illustrations as to why this legislation is so important here today.
  Mr. President, I yield the floor.
  Mr. GLENN. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Frist). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, we have had some discussion on both sides 
of the aisle on various issues. The minority leader would like to call 
up his amendment. We were first thinking in terms of setting aside 
these amendments that I have called up on behalf of Senator Roth. But 
the way we will approach it is this way.
  I ask unanimous consent that we withdraw those amendments and that 
the yeas and nays that have been ordered be vitiated.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendments (Nos. 1498, 1499, 1500, and 1501) were withdrawn.
  Mr. HATCH. Mr. President, as I understand it, the parliamentary 
situation is that the bill is now open for amendment?
  The PRESIDING OFFICER. That is correct.
  Mr. HATCH. I yield to the minority leader.


                Amendment No. 1502 to Amendment No. 1487

(Purpose: To protect public health by ensuring timely completion of the 
 U.S. Department of Agriculture's rulemaking on ``Pathogen Reduction: 
Hazard Analysis and Critical Control Point (HACCP) Systems'' (proposed 
           rule, 60 Fed. Reg. 6774, et al., February 3, 1995)

  Mr. DASCHLE. Mr. President, let me thank the distinguished Senator 
from Utah for his cooperation and the accommodation he has shown us in 
accommodating the interests of all concerned here.
  I call up an amendment that is at the desk and ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle] proposes an 
     amendment numbered 1502 to amendment No. 1487.

  Mr. DASCHLE. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 19, line 5, strike out ``or''.
       One page 19, line 7, strike out the period and insert in 
     lieu thereof a semicolon and ``or''.
       On page 19, add after line 7 the following new 
     subparagraph:
       ``(xiii) the rule proposed by the United States Department 
     of Agriculture on February 3, 1995, entitled ``Pathogen 
     Reduction: Hazard Analysis and Critical Control Point (HACCP) 
     Systems'' (proposed rule, 60 Fed. Reg. 6774, et al.).''.

  Mr. DASCHLE. Mr. President, the amendment that we have just offered 
has one specific purpose, and that is to protect the ability of the 
Department of Agriculture to issue its proposed rule requiring science-
based hazard analysis and critical control point, or HACCP, systems in 
meat and poultry inspections. The rule is critical, for it will improve 
the quality of our Nation's food supply and help prevent a repeat of 
the E. coli bacterial contamination. But it is not just E. coli; it is 
salmonella, it is listeria, it is a number of other foodborne illnesses 
that as a result of recent experience has clearly demonstrated the need 
for a new system.
  Last year, 2-year-old Cullen Mack, of my home State of South Dakota, 
fell ill from eating beef contaminated with E. coli bacteria. As a 
result of experiences like Cullen's, I held a number of hearings in the 
Agriculture Committee on the tragic 1993 outbreak of E. coli.
  I held numerous follow-up hearings in which industry, producers and 
consumers all repeatedly called for improving and modernizing the meat 
and poultry inspection systems. Later, the Department of Agriculture 
developed regulations to address recurrences of this problem. The rules 
would modernize the meat inspection process using sensitive scientific 
techniques to detect contamination and prevent spoiled 

[[Page S 9742]]
meat from making its way into our food supply.
  Not only would the public benefit from tough new meat inspection 
rules, but so would farmers and ranchers who raise the livestock and 
rely on the assurances that their products will reach the market in the 
best condition possible. Consumers and agricultural producers should 
not be asked to delay these essential reforms--reforms the entire 
agricultural and consumer community have been calling for for several 
years.
  Unfortunately, this bill, even with the Dole amendment adopted 
yesterday, could lead to unacceptable delays in the issuance and 
implementation of this rule.
  The problem is really very simple, Mr. President. In an attempt to 
reform the regulatory process, the bill overreaches and provides 
numerous opportunities to those who would seek to delay the rule, 
prevent it from being issued, or attempt its repeal. Such a result is, 
frankly, unacceptable and, I believe, would lead to the long-term 
detriment to the American people and American agriculture.
  Yesterday, we debated the Dole amendment, which purported to address 
the problem. Unfortunately, it did little in that regard. It simply 
establishes a 180-day grace period for the regulation, at which point 
the agency must still comply with all of the provisions of the bill. It 
says for 180 days the effects of this legislation will not be addressed 
as it relates to the regulations. But after that, everything the bill 
calls for is every bit as much in effect as it would have been had the 
180-day period not been in existence at all. It delays it for 6 months. 
It does not exempt the rule from the many requirements of the bill. 
And, as a result, that delay is really no fix at all.
  So merely delaying compliance of the burdensome processes of the 
bill, which ultimately must be met anyway, is no solution. Moreover, 
once the rule is promulgated, the petition and judicial review 
processes would still apply. Therefore, the rule will be susceptible to 
the extensive challenges available through the petition processes and 
through litigation. All of this for a rule that has already gone 
through the lengthy rulemaking process, and for a rule that is so 
essential to protecting public health.
  In short, Mr. President, a 180-day delay does not solve the problem.
  In addition to these concerns are those that Secretary Glickman 
outlined in his letter of July 11. In that letter, Secretary Glickman 
voiced strong opposition to S. 343 because it would unnecessarily delay 
USDA's food safety reform, among many other things.
  The letter explains the Secretary's view that the peer review 
requirement in S. 343 will delay USDA's food safety reform by at least 
6 months.
  As I read Secretary Glickman's letter, he is concerned that the bill, 
as amended by the Dole amendment, requires that risk assessments 
underlying both proposed and final regulations be peer reviewed prior 
to becoming final. In other words, before USDA can issue a final 
regulation reforming our meat and poultry inspection systems--a 
regulation that has been in the works now for more than 2 years and is 
based on more than 10 years of science-based reform efforts--the bill 
would require that the rule go through a lengthy review by scientists 
before it could be issued in its final form.
  According to the Secretary, this peer review requirement would 
result, as I said, in a 6-month delay in this essential food safety 
reform.
  My good friend and colleague, Senator Johnston, has stated that he 
believes there are exemptions in the bill to deal with the peer review 
issue. It is my understanding from reviewing the bill and from 
discussing the matter with others that it is unclear whether USDA's E. 
coli rule, the HACCP rule, would fit the exemption and whether it 
would, therefore, avoid the delays associated with the peer review 
process.
  Like any legal ambiguity, this provision invites litigation and 
should be corrected here on the floor before the bill becomes law.
  If it is the intent of the authors of this legislation to exempt the 
E. coli regulation from delay caused by the peer review process--and 
from the other onerous processes in the bill--then they should simply 
vote for my amendment. My amendment would solve all of these problems 
by simply stating that the E. coli recall, the HACCP rule, cannot be 
considered a major rule for the purposes of this bill. It ensures that 
the bill cannot be used to delay this important rule.
  The Department of Agriculture has already gone through a great deal 
to develop this regulation. USDA published the proposed rule in 
February of this year with a 120-day comment period. USDA also extended 
the comment period at the request of a large number of commenters.
  Given this extensive comment period, if USDA suddenly declared an 
emergency exemption to avoid the peer review delay, it would simply be 
opening itself up to certain litigation, and even greater delay.
  I also note that USDA attempted to publish emergency food safety 
regulations a couple of years ago. To provide consumers with 
information on how to avoid food-borne illness from pathogens like E. 
coli and salmonella, USDA issued emergency regulations requiring safe 
handling labels on meat and poultry products. These safe handling 
regulations were issued without notice or comment. USDA was sued and 
lost and had to go through the rulemaking process before the labels 
could even be required. The result, then, of that ``emergency'' 
provision was delay.
  Mr. President, all we are seeking here is some common sense, some 
balance, some way in which to ensure that we can accomplish the goals 
set out in the bill, but to do so with a recognition that there is a 
sensitivity to many of the rules that are currently about to go into 
effect, rules that directly affect the public health and safety of 
millions of Americans, that ought not to be encumbered, that ought not 
to be thwarted in any way, as we go through what we consider to be 
reform in rulemaking overall.
  The Secretary felt so strongly about this issue, Mr. President, that 
he has issued yet a second letter that I would like to read into the 
Record. It was submitted by James Gilliland, general counsel at the 
Department of Agriculture, and was addressed to me. It simply states:

       Dear Senator Daschle: I am writing relative to the 
     amendment Majority Leader Dole offered to S. 343 on the floor 
     of the Senate yesterday. The amendment, which was adopted by 
     a unanimous vote of the Senate, added ``food safety threat'' 
     to the emergency exemption in the cost-benefit analysis 
     subchapter of S. 343.
       I appreciate the Majority Leader's efforts to ensure that 
     the Department of Agriculture's (USDA) efforts to reform the 
     federal meat and poultry inspection system are not delayed by 
     S. 343. However, the amendment does not provide an emergency 
     exemption for the Department's food safety reform proposal 
     and will not alleviate the delay that S. 343, in its current 
     form, would have on the Department's efforts.

  So, Mr. President, here again, we have it from the Secretary of 
Agriculture, from the Department of Agriculture, simply asking us to 
consider the consequences of what this bill could do to a process for 
meat inspection that has been under way, under consideration, proposed 
now for over 24 months. It would stop in its tracks the efforts made by 
two administrations, really, to put all of the science and the new 
knowledge and the processes that we have to make food inspection more 
meaningful and more effective into place. We do not want to do that. I 
do not believe anybody in the Senate wants to encumber the Secretary's 
efforts to ensure that meat safety can be provided to an even greater 
extent than it has been in the past.
  My amendment will ensure that the Secretary has the latitude to 
provide for the culmination of this long effort and in a successful 
way, in a way that we all want. I urge its adoption.
  I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, I appreciate very much what the Senator 
from South Dakota, the very distinguished leader of the Democratic 
Party in this body, has to say about bringing common sense and some 
sensibility to regulation. I do not want to speak just to his 
amendment. But I think the points he is trying to make are the very 
basis for the legislation before us.
  Although I might disagree with his amendment or whether it is needed, 
I want to give an example, as I have been trying to do each of the last 
2 days, of 

[[Page S 9743]]
instances in which regulations have had a very negative impact in my 
State, a very unfair impact on certain individuals--individuals and 
small businesses, people that cannot afford to pay the legal fees to 
fight the harassment they get from Government bureaucrats, or where 
there is a misapplication of regulation, or where there is what I am 
going to mention today, disputes between Government agencies.
  It is one thing to have a very egregious regulation that may be 
justified making an impact negatively upon what an individual might 
want or might not want to do. But it is quite another thing to have one 
Government agency say you can do something and another Government 
agency come along and say you cannot do it, and then not even be able 
to get a resolution to the dispute between the two agencies. And then 
what is even worse--in the case I want to recite for you--is that there 
are four Government agencies that have four different definitions of 
what a wetland is, and then you are negatively impacted.
  Some say you can go ahead and do something, and another Government 
agency comes along and says ``No, we are going to fine you for what you 
did,'' and you cannot make use of your land.
  Then it is really quite perplexing for the farmer who moved ahead on 
the basis of two Government agencies saying he could do something, and 
then after a third and a fourth Government agency said he could not do 
it, one of the first two Government agencies that said he could do it 
changed their mind and said he could not do it.
  Now, when I say we ought to have common sense brought to regulation 
writing and in the enforcement of regulation, the very least that a 
citizen ought to be able to expect out of his Government is to get an 
answer and to get a resolution of a problem, and to get a quick 
resolution of the problem.
  Persons ought to expect in the first place they would not have two 
Government agencies, one saying you could do something and one saying 
you could not do it. Or you would at least think if that is the way it 
is, those two Government agencies ought to get together and say ``Yes, 
you can do it,'' or, ``No, you cannot do it.''
  We have such a morass of regulation and we have so much conflicting 
regulation that we actually have citizens of the United States that 
cannot get a resolution, cannot get agreement among Government 
agencies, and then it is even difficult to get an answer to your 
problem when you spend a lot of money on legal fees and appeals.
  Now, that is the regulatory state on a rampage that is looking out 
for its own interest and not the interest of the citizens that it is 
impacting.
  There is not common sense in a lot of regulation writing, and we, in 
rural America, have found really a lack of common sense when it comes 
to Government regulation of wetlands.
  I want to highlight another case in my State that illustrates this. 
Remember, yesterday, I spoke about the country cooperative elevators 
that are impacted from the air quality standards of EPA, where they 
want to regulate what only occurs about 30 days out of a year as if it 
were happening 365 days, 24 hours a day, and costing these small 
cooperative businesses up to $40,000 to fill out a 280-page form that 
once they get it filled out only 1 percent of the elevators in my State 
are going to be impacted by the regulation in the first place.
  The day before, I spoke about how EPA caused a small business in my 
State--the costs of legal fees and lost business $200,000--to defend 
himself against a criminal charge that was brought by EPA, by a paid 
informant who was a disgruntled former employee, and there was not any 
case there. Misinformation.
  They came on this businessperson, a quiet morning at 9 o'clock in the 
morning, with their shotguns cocked, wearing bulletproof vests, 
sticking the gun in the face of the owner and in the face of the 
accountant, all on misinformation, and costing the business $200,000.
  Now, that is what is wrong with regulation. There are people in this 
body that want Government regulation and they do not care about the 
adverse impacts upon the small businesses of America and the farmers of 
America from adverse regulation.
  This bill before the Senate is to bring common sense to this 
process--nothing more, nothing less.
  In the instance I want to recite this morning, it all started in 
April 1989. A young family purchased a 284-acre farm in Mahaska County, 
IA. I presume from the description of how this problem evolved, this 
was probably not a very expensive farm. It was probably a farm that 
only a young person could afford to purchase. Remember, in my State, 
less than 5 percent of the farmers are under 30 years of age. We lost a 
whole generation of farmers because of the agriculture depression in 
the 1980's. The average age of the farmer in my State is 61 years of 
age.
  Do we want young farmers to start farming? Do we want them to start 
this business where they will produce for the consumer of America the 
cheapest food of any consumer in the world, because we city slickers 
only spend 8 percent of disposable income on food? There is no other 
consumer anywhere in the world that has that cheap of a buy or that 
quality of a buy. Or do we want corporate farming to take over America, 
where there are no young farmers who have the ability to get started?
  We have a harassment by a Government agency here that I am going to 
give an example of that is an impediment to young people getting into 
farming, because this farm was in a state of disrepair. That is why it 
was cheaper for this person to buy.
  The drainage system needed improvement. There was a stand of timber 
occupying part of the land. He wanted to make some improvements once he 
purchased it. He did the right thing. Before messing with Government 
regulation, because we really cannot understand Government regulation, 
go to some friends at the Soil Conservation Service and check with 
them, because for 60 years, the Soil Conservation Service provided 
technical help to the farmer. The farmer considered the employees of 
the Soil Conservation Service to be people that would level with or 
help you.
  Now, of course, these employees of the Soil Conservation Service are 
seen as regulators. Farmers do not want them on their farm. You do not 
go to their office to ask questions any more because some Federal 
regulator is going to come down on you if there is some suspicion that 
you might do something that was wrong. Yet we have reduced dramatically 
the amount of soil erosion in America because of the cooperation 
between the family farmer and the Soil Conservation personnel.
  Even in 1989, this farmer did the right thing, because he does not 
want to do something to his land and have the Government regulator come 
in and say ``You did this and should not have done it.'' So he did the 
right thing and checked with them ahead of time before making the 
necessary improvements to his drainage system and before clearing some 
of the trees. He checked with the Soil Conservation Service. The 
personnel at the SCS authorized his plans.
  Also, the Iowa Department of Natural Resources, the State agency 
which issues farmers flood planning permits, also authorized what he 
wanted to do.
  With the blessing of two Government agencies representing both State 
and Federal governments, this young farmer cleared trees and improved 
the drainage on his new farm.
  However, in just a few months, October 1989, the Army Corps of 
Engineers, a Federal agency, visited the farm. They discovered and 
alleged that a wetland had been filled without a permit. A follow-up 
letter by the Corps directed the farmer to obtain an after-the-fact 
permit or be fined up to $25,000 per day. Mr. President, $25,000 per 
day--that is what the average farmer lives on in Iowa for a whole year.
  A short time later, the Fish and Wildlife Service visited the farm 
and determined that more than 100 acres of wetlands had been impacted. 
Now, of course, this farmer was shocked to discover wetlands on his 
otherwise dry farm, especially since the Soil Conservation Service had 
already approved his actions.
  The farmer agreed to a wetlands delineation by the corps. The corps 
used what is now not used by the corps, a 1989 wetlands manual, and 
according to this manual, you had to have water within 4 feet of the 
ground surface for it to be classified as a wetlands.
 And at no time has there been water at that 

[[Page S 9744]]
level. However, they did find, under another provision of the wetlands 
delineation, the presence of hydric soils, and so they declared 95 
percent of the farm wetland.

  Since the farmer thought this conclusion was absurd, he decided to 
appeal to the Soil Conservation Service, another Federal agency, 
because of that agency's long history of working with farmers and 
because they said he could go ahead and make these improvements.
  Now, this is what is really frustrating to the farmer. This time 
around, when he went back to the SCS office, he found that the SCS 
office was more interested in cooperating with the Corps of Engineers 
than they were with the farmer. Even though they originally said that 
he could clear the land and improve the drainage system. This time the 
SCS was not the friend of the farmer. They found his 284-acre farm had 
150 acres of wetlands. This determination was made in the face of 
compelling evidence to the contrary.
  An extensive engineering study on the farm shows that normal flooding 
fails to inundate the farm for the 7 days required under the 1989 
manual--which manual is no longer used. Furthermore, evidence from 23 
monitoring holes showed that the water depth on the farm is normally 4 
to 5 feet and not the 7 days on the surface that you must have under 
that manual to have a wetlands delineation.
  So the farmer used this evidence from this extensive engineering 
study to appeal, then, to the Soil Conservation Service State office. 
Although the regulations required the Soil Conservation Service to 
respond to an appeal request within 15 days, they took more than 150 
days to respond.
  You know, 150 days is a whole cropping season on Iowa farmland--a 
growing season. They cannot even respond in the 15 days. Then you 
wonder why we need a regulatory reform act? It ought to be very obvious 
why we need one.
  Now, surprisingly, when the SCS, the Soil Conservation Service, did 
respond, do you know what they said? They said they did not have enough 
information to make a decision. But the Soil Conservation Service had 
enough evidence to agree with the Corps of Engineers that 150 acres of 
this 284-acre farm had wetlands on it--after, months before, they said 
you can go ahead and make these improvements. They said they did not 
have any information, after both the Corps and the SCS had already made 
determinations of wetlands based on the exact same information.
  Based on this case, it seems to me it is very easy to understand why 
the American public has become cynical about its Government. All people 
want for the high taxes they pay in this country, plus all the money we 
borrow--saddling the next generation of children and grandchildren with 
a big cost--they may not like the Government they get, and they are not 
getting what they are paying for, but they would at least like to see 
their Government work. Instead, what we have is a bureaucracy 
characterized by overlapping jurisdictions, where one official can 
authorize an action that another will condemn you for later.
  There is also a lack of flexibility and common sense in interpreting 
and enforcing regulations. The average citizen can find himself subject 
to the whims of a powerful yet irrational Federal bureaucracy. During 
the last 2 years this young Mahaska County farmer I am referring to 
here has spent his own time and money attending countless numbers of 
meetings, hearings and appeals. His farm has been visited by Government 
officials on 7 different occasions. And he still does not have an 
answer. This all started in 1989 and here it is 1995. He spent 
thousands of dollars defending himself against Federal regulators, and 
the U.S. Government has spend thousands of taxpayers' dollars to 
deprive this farmer of the economic use of his property, yet this case 
remains unresolved.
  The consequences are severe for this young farmer. He was deprived of 
disaster assistance during the floods of 1993, and is not eligible for 
Federal crop insurance. So the Government is depriving this farmer of 
benefits, even though a final resolution of his case has not been 
decided, and apparently this young man, then, is presumed guilty under 
these other Federal programs, until he proves himself innocent.
  This type of overreaching by the bureaucracy must stop. S. 343 will 
force agencies to more carefully promulgate regulations, paying 
attention to the costs and benefits of their actions. Maybe this 
example will help us put in perspective the need for the cost and 
benefit analysis that is in this legislation.
  This Government regulation has tremendous costs for this young farmer 
that I just referred to. There is nothing wrong with a Government 
agency, if it is going to have a Government policy, to make sure that 
the costs of that policy are not greater than the benefits. Or, under 
this legislation, if there is a determination that the cost is still 
greater than the benefit, at least you ought to choose the least costly 
method of accomplishing our goals. So, maybe this will cause these 
agencies to hesitate and contemplate, before they move ahead and 
infringe on the rights of our citizens. Hopefully, S. 343 will force 
these agencies to use more common sense in the future, and avoid 
situations like the one experienced by the young farmer in Mahaska 
County.
  If the Corps of Engineers, if the Fish and Wildlife Service, if the 
Soil Conservation Service, and if the Iowa Department of Natural 
Resources want to show that they are concerned about the impact their 
regulations have, if they want to show the public that Government 
works, if they want to show the public that Government is good, if they 
want to show the public that Government is responsible, if they want to 
show the public that Government is cost effective, if they want to show 
the people that Government is humane, it is very easy to do. Just help 
this young farmer in Mahaska County, IA, to get a resolution to his 
problem.
  Do you know what we think? We think the reason he is not getting his 
appeals decided is because he is right and the Government is wrong and 
they do not want to issue an OK to this guy, that he was deprived of 
something, because it would set a precedent.
  A politician who does not admit he is wrong is destined to a rude 
awakening someday. And regulators that fails to admit they are wrong 
are subject to a rude awakening someday as well.
  I hope that we have an opportunity through this legislation to give 
justice to our young farmers of America and justice to all young 
Americans.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Ohio.
  Mr. GLENN. Mr. President, I rise in support of the amendment offered 
by the minority leader. I have stated several times in the Chamber the 
importance of regulatory reform and the importance of the legislation 
that we are considering here. I know it does not get all the inches in 
the newspaper and all the TV time because it is bland, dry, arcane, all 
the words you can put together to make it uninteresting. Yet I would 
say this. I think this is one of the most important pieces of 
legislation--it affects more Americans directly--than any legislation 
we will take up this year except for probably the appropriations bills.
  The rules and regulations that are put out pursuant to the laws that 
we pass here affect every single man, woman and child, every business, 
every activity that we conduct in this country. I believe very strongly 
in the need for regulatory reform for every person and business in 
America, but it must be done sensibly and it must be done with balance.
  Regulatory reform, to be true reform, should fulfill two principles. 
First, it should provide regulatory relief for businesses, State and 
local governments, and individuals. And, second, it also should provide 
the necessary protections to the safety, health and environment of the 
American people.
  Now, that is the balance.
  S. 343 does not, in my opinion, provide that essential balance of 
regulatory relief and protection of the American people. That is why in 
this specific instance I support the minority leader's amendment on the 
USDA E. coli meat and poultry inspection rule.
  Now, what is the problem? E. coli, what does that mean? Most people 
would not even know what you are talking about. Yet, according to USDA, 
the U.S. Department of Agriculture, Food Safety and Inspection Service, 
3,000 to 7,000 people die each year--not just made ill but 3,000 to 
7,000 people 

[[Page S 9745]]
die each year--from foodborne illnesses like E. coli, and another 3 to 
7 million people get sick every year from such illnesses. Just from the 
E. coli bacteria alone, the estimates are, about 500 people die per 
year, year in, year out, year in, year out--500 fatalities.
  We have had testimony before our Governmental Affairs Committee; we 
have heard the stories of those who have lost loved ones to E. coli. 
Rainer Mueller testified before our committee about his son's death 
from eating an E. coli contaminated hamburger, painful death. It could 
have been prevented if we had better inspection standards in the first 
place.
  Nancy Donley came to Washington to tell the story of her son Ellis 
who also died from eating E. coli contaminated meat. The tragedies are 
real.
  Now, is anyone immune from this? Other figures indicate that about 4 
percent of the ground beef in supermarkets has E. coli bacteria present 
in it--4 percent. Just on an average, that would be 1 out of every 25 
hamburger patties that you pick up or 1 out of every 25 steaks that you 
pick up out of a supermarket has E. coli bacteria.
  Why is the problem then not more severe? Because we cook that meat 
and that kills E. coli. But in the raw state it has E. coli, and if it 
is not cooked enough you can come down with it. This can cause death, 
particularly among children.
  Now, in the State of Washington, we remember the problem out there 
where 3 children died, 500 were sick from contaminated hamburgers from 
just one fast food outlet back a couple of years.
  How do we prevent this? USDA is finally modernizing its inspection 
methods to be able to detect deadly bacteria like E. coli. The new 
proposal is called hazard analysis and critical control point [HACCP]. 
That will be the rule which will bring our Nation's meat and poultry 
inspection system into the 20th century.
  Now, the proposed rule, the public comment period for which just 
closed, was wanted by the meat industry and has wide public support. It 
was pushed for by the meat industry. And the public certainly wants it. 
It will prevent deaths and illnesses, and we should not put this off.
  The minority leader's amendment would exempt this critically 
important rule from the burdensome requirements of this bill. I support 
this amendment in order to show how important rules that are already 
underway will be delayed and can be stopped by the regulatory reform 
bill before us.
  The situation with this rule reminds me of the regulatory moratorium 
that we had before us a short time ago except now we are calling it 
regulatory reform. Rules that are in the pipeline and will be final 
soon must go back to square one. Forget that the Department of 
Agriculture has already done a cost-benefit analysis. It now will be 
subject to all the requirements of S. 343--new rulemaking procedures, 
new decisional criteria, opportunities for lawyer after lawyer after 
lawyer to sue the agency and stop the rule, petitions for the agency to 
review the rule, and so on. Unending legal battles and litigation.
  The potential delays for this rule are real but so also real are the 
additional deaths and sicknesses suffered by Americans who thought they 
were eating safe meat. And, indeed, every American deserves to have the 
meat they eat be safe. And yesterday the majority leader offered an 
amendment which was accepted to specifically include food safety rules 
among those rules covered by the bill's exemption provision. And 
yesterday the point was repeatedly made that there already was included 
in the bill an exemption from analysis requirements of the bill for 
``health, safety or emergency exemption from cost-benefit analysis,'' 
which is the title of that section of the bill, but that is only for a 
180-day period. Then the rule could be subject to judicial challenge if 
the agency had not completed all the analysis, and we would, indeed, be 
back to square one again.
  The problem is that section does not really exempt anything in the 
bill. It only provides for a 180-day grace period after issuance of the 
rule,
 that is, it gives an agency an additional 180 days to comply with all 
the many requirements of this bill and all the legal challenges that 
can go along with that. And that is it. At the end of the 180 days, all 
of the onerous requirements of S. 343 kick in again, no exemption 
there----

  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. GLENN. No. I would rather finish and then answer questions.
  Just new opportunities for challenges, uncertainty, and delay. What 
will happen to the implementation of the rule when it faces these 
prospects? Regardless of the majority leader's amendment, the E. coli 
rule will be caught in the vise of S. 343 and public health will be in 
danger. The minority leader's amendment is a first step in protecting 
the health of the American people, but it certainly is not enough. S. 
343 will catch other important rules, and overall it will make the jobs 
of the agencies to protect health and safety and the environment much 
more difficult.
  S. 343 simply does not fulfill my two principles for regulatory 
reform: Regulatory relief and protection for the American people. That 
is why I, along with Senator Chafee and many others, have introduced S. 
1001, which I believe is a balanced regulatory reform proposal. Our 
bill would not shut down important rules such as USDA's meat and 
poultry inspection rule. Our bill would require cost-benefit analysis 
and risk assessment, but it would not force agencies to choose the 
cheapest, least-cost rule. It would not let the lawyers drag the 
agencies into court over every detail, every step along the way. It 
would not create several petition processes that could be used to tie 
up agency resources in litigation. But it would provide for sensible 
reform and it would allow the agencies to perform their important 
duties.
  Let me add that our bill also would not catch rules that are almost 
final, like the meat and poultry infection rule. Our bill has an 
effective date of 6 months from enactment, which gives the agencies 
time to gear up for the many requirements of this legislation. That 
makes sense. That is what we should be doing here, working toward 
commonsense reform.
  I urge my colleagues to support this amendment. I strongly encourage 
them to take a hard look at our alternative proposal for regulatory 
reform, S. 1001. It makes amendments like this unnecessary. But I urge 
my colleagues to support the amendment put in by the minority leader.
  Mr. JOHNSTON. Will the Senator yield for a question?
  Mr. GLENN. I will be glad to yield for a question.
  The PRESIDING OFFICER. The Senator is yielding for a question.
  Mr. JOHNSTON. Mr. President, I simply wanted to tell the Senator that 
I agree with him that on the 180-day period on the emergency situation, 
the period is too short. We are requesting --I put in a request to the 
other side of the aisle that we extend that 180 days to 1 year.
  I think your suggestion is a good one and an appropriate one, and we 
will deal with that separately. That does not concern this amendment at 
this point.
  Mr. GLENN. I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I strongly support the Daschle amendment. 
Just before making comment on that, I was listening to my good friend 
from Iowa talk about the rules and regulations going back some years 
affecting some of his constituents. I think all of us, during the 
course of this debate, have heard examples of rules and regulations 
that have been untenable and inexcusable. I think we have to be very 
careful even in the course of this debate and discussion because often 
when we go back and review the specific rule, regulation, or 
enforcement action that has been talked about, that has been addressed 
and has been altered and has been changed.
  If you take the examples of OSHA, that performs 100,000 inspections a 
year, and they are 99.9 percent good inspections--sound, reasonable, 
rational--you are still going to have 100 that do not make it. I think 
we understand that. But we have a measure of lives that have been saved 
and the quality of life that has been improved by OSHA, for example, by 
work safety regulation, on the other side. So we will have a chance, as 
we have during the course of this discussion and debate, to consider 
that factor. 

[[Page S 9746]]

  Those regulations that we heard about from the Senator from Iowa, of 
course, were issued in a previous administration. And I think any of us 
who, for example, have watched the difference between the 
administration of OSHA, particularly in the last 2 years under an 
excellent administrator, Joe Dear, can see the dramatic change, that 
the focus and attention has not been on the issuance of paper citations 
and rules and regulations, but really reaching at the core of what OSHA 
is really all about.
  I was amused at the start of this debate when before our committee, 
they were talking about the rules and regulations, and how by and large 
those rules and regulations had accumulated under previous 
administrations. And it has been this administration that has been 
working both to try to reduce the complexity of the rules and 
regulations, simplify the process, and still move ahead in the areas 
about which I am most concerned; that is in the health and safety 
areas--in OSHA, the FDA, and in mine safety.
  For example, the Delaney clause--I will have more to say about that 
later--should be updated, not repealed. And OSHA should be helped, not 
paralyzed, if we want to ensure that we are going to take the best in 
terms of modern science and industrial techniques in order to make our 
workplaces safer for American workers.
  Mr. President, I strongly support the Daschle amendment, which I hope 
will serve two purposes: To keep this bill from blocking an important 
regulation and to illustrate one of the fundamental flaws of S. 343 
that is so extreme and antiregulatory that it will block good and 
essential regulations that Americans want.
  I would like to begin by telling a story about a constituent of mine, 
a 40-year-old woman named Joan Sullivan. Earlier this year, on February 
4, 1995, Joan Sullivan did something almost every American does many 
times a year. She ate a hamburger. She did not know that such a simple 
act would lead her to the edge of death, to weeks of incapacitation, 
pain, and suffering, and to catastrophic medical expenses. Joan 
Sullivan had no idea she was risking her life when she sat down to eat 
that night, but she was. The meat she ate was tainted by a 
microorganism, E. coli, a bacterium that is found with increasing 
frequency in the Nation's meat supply.
  When Joan ate that tainted hamburger she contracted an infection of 
astonishing virulence that came within a hair's breadth of killing her. 
Joan Sullivan was admitted to her local hospital emergency room with 
severe stomach pains, constant diarrhea, and vomiting. When her 
condition worsened, she was transferred to one of America's greatest 
medical institutions, the Massachusetts General Hospital in Boston, 
where her condition was diagnosed as hemolytic uremic syndrome.
  Desperate measures to save her were undertaken. A tube was placed 
into Ms. Sullivan's chest without any anesthetic, according to her 
testimony, and inserted into one of her heart's major blood vessels in 
order to administer a blood-cleansing treatment. After a month in the 
hospital, 20 treatments, and the concentrated efforts of dozens of 
doctors, nurses, and technicians, Joan Sullivan's life was saved. But 
the cost in terms of her suffering and her family's time and anxiety 
and in the dollars spent on her care were enormous. Her medical bills 
alone have totaled approximately $300,000.
  What happened to Joan Sullivan has happened to hundreds of other 
Americans, but many have not been as lucky as she. Many of the victims 
of E. coli poisoning, especially children, do not survive the 
infection. Although 5,000 to 9,000 Americans die every year from 
foodborne diseases, the FDA estimates that another 4 million--4 
million--are made ill at a cost to consumers of about $4 billion a 
year.
  That is why the U.S. Department of Agriculture is preparing a new 
regulation on meat and poultry handling and microbe sampling. The key 
to the proposed rule is the requirement that meatpackers and processors 
carry out microbiological tests once a day to be sure that their 
handling procedures are effective. USDA estimates that the rule, 
including its testing requirements, will save consumers $1 to $4 
billion a year by preventing salmonella, E. coli, and other foodborne 
illnesses.
  This is a rule that is urgently needed and Congress should do 
whatever it can to expedite. But the pending bill could set back the 
USDA's efforts by years, blocking the rule until the agency can jump 
through all of the procedural hoops and red tape associated with the 
bill's extreme risk assessment and cost-benefit analysis, and allowing 
businesses to challenge the rule after its issuance for failure to meet 
those requirements.
  The supporters of this misguided bill keep arguing that they are for 
common sense. Well, common sense tells me that if the USDA has already 
done a risk assessment under the Executive order, and has already done 
a cost-benefit analysis estimating that the benefits will be four times 
greater than the cost, then it would be foolish, wasteful, and 
dangerous to make them go back and do the analysis again.
  How much time and money will the agency waste unnecessarily while 
Congress forces it to comply with this bill's one-size-fits-all 
procedures?
  Is it common sense to demand that the USDA explore the regional 
effects of the rule or whether it has analyzed the extent to which the 
industry can control the problem of E. coli contamination through 
voluntary measures? That is not common sense, that is common nonsense.
  The bill's overly complex and rigid requirements add nothing at all 
to the agency's efforts to control this serious threat to public 
health. The bill's exemption for health and safety threats, as amended, 
clearly excludes rules dealing with E. coli contamination from the 
cost-benefit and risk assessment rules, at least when the rules are 
first promulgated. But it is clear that a meatpacker could still 
petition to force the agency to schedule the rules for the look-back 
review because the bill's analytical requirements have not been 
satisfied in every detail.
  A hostile USDA Secretary in the next administration, by failing to 
complete the review, could effectively repeal the rules, leaving the 
public unprotected again.
  This is a very real worry. There are elements of the meat industry 
and a number of Republicans who are supporting an effort in the U.S. 
House of Representatives to block the USDA's meat handling and sampling 
rule. The majority leader, and others, have been embracing this rule in 
the Senate. But the House Appropriations Committee has voted to send 
the rule into the limbo of negotiated rulemaking from which it may 
never emerge.
  It is important that the Senate speak out in favor of protecting the 
public from E. coli and other meat and poultry diseases, to ensure this 
bill does not jeopardize the public health. We can prevent tragedies 
like Jean Sullivan's from happening, and we have a duty to do so. I 
urge support for the Daschle amendment.
  Mr. President, what we talked about during the period of the last day 
or two has been E. coli, as if this was the only kind of problem. Let 
me mention briefly why the Daschle amendment is so important not just 
with regard to the proposal that has been made by the majority leader 
on the E. coli issue.
  Under the Dole amendment, the food safety rules can be exempt from 
the red-tape and delay in S. 343 only if the agency, for good cause, 
finds that conducting the cost-benefit analysis is impractical due to 
an emergency of health or safety that is likely to result in 
significant harm to the public or natural resources. Industry can 
challenge this finding and block the final rule under the ample 
judicial review authority in section 625.
  So even if you find out that a Secretary is able to move into a 
faster mechanism to try and address E. coli, you still have all the 
other procedures of S. 343 that can reduce protections for the public.
  Under section 622, the agency is required to complete the analysis 
within 180 days of the rule's publication. I understand that that is 
going to at least be addressed in another amendment, but that is only 
really a part of the problem.
  In addition, various meat suppliers and packing houses would be 
empowered to seek a waiver from the rule's requirements under the new 
special interest waiver authority in 629. This section allows industry 
to petition for the so-called alternative method of 

[[Page S 9747]]
compliance. This approach allows the rule to be issued but would 
dramatically undermine its effectiveness.
  Once the rule is issued, industry can petition under the rollback 
authority in the legislation. Industry could seek the weakening of the 
E. coli rule on the basis that it does not meet the rigorous decision 
criteria in 624, and the rule automatically sunsets within 3 years if 
the agency fails to complete the review.
  Once the rule is issued, industry can also file a petition under the 
authority of new revisions to section 553 of the Administrative 
Procedure Act that empower special interests to seek repeal of rules. 
The agency must respond within 18 months. Failure to respond, or a 
denial, could be litigated immediately under the new legislation.
  Mr. President, the problem with S. 343, quite frankly, is we are 
opening up the door for all of the industries in this area. We are 
interested in their interests, we are interested in their productivity 
and their financial security, but make no mistake, all of the rules and 
regulations and the procedures and the look-back procedures are all 
opening up the door for the industries to come in and alter and change 
health and safety procedures, the whole series of add-ons that have 
been spelled out in detail by Senator Glenn and Senator Levin.
  But I want to just point out, Mr. President, that the amendment of 
the Senator from South Dakota makes sense in trying to address real 
protections. The Dole amendment took it part way. The Daschle amendment 
addresses these other measures, which were not closed in the Dole 
amendment, which ought to lend credence to the concern of many 
Americans about what is happening on the floor of the U.S. Senate in 
terms of their health and their security and their well-being.
  Let me mention just a few other of the health regulations endangered 
by this bill. We have not addressed those. We have the E. coli 
amendment. But among other regulations that are in the pipeline are the 
improved quality of mammography standards to ensure better diagnosis 
and early treatment for the millions of women at risk for breast 
cancer.
  The Mammography Quality Act passed virtually unanimously in the 
Senate and the House of Representatives. The reason that it passed 
unanimously is because we found out after long and extensive hearings 
that in too many instances the various machineries that were being used 
to test women were not of sufficient accuracy and the people who were 
using those pieces of equipment had not been adequately trained.
  As a result of extensive hearings and review, we have now required--
Republicans and Democrats--that we are going to have the issuance of 
those standards which are going to give, hopefully, the actual 
scientific results to the people who are going to take the mammography 
examinations. Too many women in our society going through the existing 
system would get a stamp of approval when the training and the 
machinery were not adequate and they would fail to take the other kind 
of preventive steps and endanger their own health.
  It was on that basis that we made these national standards, because 
the women in California should be protected as well as the women in 
Massachusetts. But still we find out that the new standards--and they 
are now being issued--they would be at risk. For what reason? For the 
various reasons that are outlined in this bill. I will take just a 
moment. We have gone through this, and the leaders have gone through 
this in great detail.
  Not only do you have the mammography standards that are going to 
provide lifesaving information for women in terms of breast cancer, but 
you have the Comprehensive Seafood Safety Program. We had extensive 
debate in the last Congress about how we were going to make progress in 
terms of the safety of seafood.
  The consumption of seafood has gone up dramatically in this country, 
and many of the attendant problems we found in terms of meat and 
poultry also affect seafood. I represent a State that has a great 
maritime tradition and is one of the leading States in the country in 
terms of harvesting seafood. The fishermen want this kind of protection 
because it is important in terms of the integrity of the product, and 
the people want that.
  But there are some within the industry, and the record is replete--
not out here but in the hearings that were held in FDA and our own 
Committee on Labor and Human Resources--about the industry group that 
does not want those regulations.
  We spent a lot of time developing that program in terms of safety. 
Make no mistake about it, it may be E. coli today, but soon it will be 
something else related to the safety of seafood products.
 They do not have a special amendment. They do not have a Dole 
amendment. There is nothing out here in terms of mammography for the 
women of this country being proposed to protect them or to protect 
others with regard to seafood safety.

  What about the rule to prevent iron poisoning of children by 
strengthening the packaging requirements for iron supplements? There 
are 10,000 incidents a year affecting children, many of them resulting 
in deaths, as a result of the ingestion of iron supplements. We have 
regulations that are about to be promulgated on the basis that they 
will save scores of children's lives a year. And they will be delayed. 
Another rule will prohibit the use of lead in food cans to protect 
infants and children from exposure to substances that may contribute to 
mental retardation, which is one of the major problems that we have in 
many areas of the country, in urban as well as rural communities. And 
another rule deals with lead in paint, where we have older rural 
communities that have used lead paint in their buildings, and in older 
communities, industrial communities, that not only have it in their 
buildings but also have it the playgrounds in their communities. We 
know the direct correlation between ingestion of lead and mental 
retardation and slow development, particularly of children.
  One of the problems the Government intends to address is that the 
importation of various foods from many different countries around the 
world is still in cans which have a high content of lead. And in trying 
to respond not by limiting the opportunity for the consumer to be able 
to consume those products but to make those cans safer, we have rules 
and regulations to try and deal with those--children are at risk. And 
another rule in the works would regulate the level of diesel emissions 
in the mines, where miners work in the confined spaces. The regulations 
which are about to be issued in those areas, which have been examined 
and have taken review year after year, are about to be sidetracked.
  Mr. President, I could continue--and will later on in this debate--to 
go through various other rules and regulations about to be issued on 
toy safety, because choking on small toys and small parts of toys is 
the leading cause of toy-related deaths. Between January 1980 and July 
1991, 186 children choked to death on balloons, marbles, and small 
parts of toys. More than 3,000 children are treated in hospital 
emergency rooms because they swallow or inhale a small toy.
  Congress enacted the Child Safety Protection Act last year. The law 
requires hazard labeling and bans balls that are small enough to choke 
a young child, and it requires the reporting of choking incidents. The 
Consumer Product Safety Commission has proposed rules to implement the 
reporting requirements and interpret other provisions of that.
  Now, we say we are going to wipe those things out. We have heard the 
daily list of 10 rules and regulations do not make any sense. What are 
you going to tell those parents about toys? Who is going to make the 
rules and regulations? Do you expect the parents to understand blocking 
these rules? There is a need for this kind of review and examination 
and the collection of information.
  So whether you live in Boston, or in Palo Alto, or wherever you live, 
if those parents' kids are going to play with a toy, they are going to 
be protected. But under the rules and regulations, they are going to 
have to do a thorough examination to see whether there is a 
geographical difference, whether there can be voluntary compliance.
  We are talking about small children and they are talking about a 
study for voluntary compliance. Market based 

[[Page S 9748]]
mechanisms. Market based mechanisms for children's toys? We are 
expecting the agency to do a review on that?
  Now, Mr. President, we talk about common sense. What they are 
proposing makes no sense.
  You have baby-walker safety. Baby-walkers account for a high number 
of injuries annually, more than any other nursery product, sending 
approximately 25,000 infants to hospital emergency rooms in 1993 alone. 
Eleven children died in walker-related incidents in the past 5 years. 
In response, the Consumer Product Safety Commission has begun 
rulemaking to address the hazards associated with baby-walkers. Those 
are going to be delayed. How many other children are going to be 
impacted by a failure to be able to get this kind of safety?
  Mr. President, the list goes on. I mentioned the iron toxicity 
prevention. FDA has proposed a rule to prevent the many needless deaths 
and serious injuries that occur when children accidentally ingest too 
much iron by eating too many iron tablets or supplements. Iron toxicity 
is the leading cause of poison deaths in children today. From 1986 
through 1992, over 100,000 children were poisoned. Many suffered 
permanent injury, and at least 33 died. This rule would limit the iron 
potency of vitamins intended for children to require a warning label 
and childproof container.
  What Member of the Senate has heard from a parent saying, ``Look, 
that kind of rule and regulation is outrageous, and that rule and 
regulation that is going to protect my child is just Federal 
bureaucracy. We want you to stop that''? Do you think the parents are 
going to be able to provide that adequate protection?
  I see others of my colleagues on the floor who want to address this 
issue, as well as other issues. These are just examples. You might talk 
about the E. coli regulation. We could have a thousand other 
amendments. That is the trouble with the bill. For each and every one 
of these, you need another amendment to protect it. When you have the 
amendment accepted by the overwhelming majority, people might say we 
have addressed that particular problem. It takes the minority leader, 
Senator Daschle, to get a chance to look through that to try and 
recognize that only half the job has really been done. I daresay that, 
even with the acceptance of those amendments, we are still leaving at 
risk many of the children, the most vulnerable, and the workers, the 
parents, and millions of families all across this country that rely on 
the Government for help in the areas of health and safety, who do not 
have the expertise and ability and scientific information to be able to 
make these judgments in the interest of their family.
  Sure, there have been mistakes. Sure, there have been the issues of 
regulations which are untenable and wrong. But it seems to me, Mr. 
President, that we ought to be concerned about those and consider how 
we can constantly work and try and find ways to work with the private 
sector, the public sector, the agencies to try and make it better, 
rather than have a whole scale alteration and change which is going to 
dramatically--and I say dramatically--put at greater risk the health 
and safety of the American people.
  Mr. LAUTENBERG. Mr. President, I am proud to cosponsor and support 
the Daschle-Bradley amendment even though I am disappointed that it is 
necessary to offer the amendment. But we do need to offer the amendment 
because, once again, our Republican colleagues seem to be more 
responsive to the special interests than the public interest. It is 
unacceptable for this body to put thousands of lives at risk in the 
name of regulatory reform. Yet that, in my view, is what this bill 
does. Let me give you an example.
  An estimated 4,000 people die each year as a result of meat and 
poultry tainted with harmful bacteria. Another 5 million become ill, 
but survive. These numbers are too high. You would think the Federal 
Government would feel an obligation to respond to that problem. This 
bill is a response. But it is the wrong response. It weakens our 
ability to regulate food safety rather than strengthen it.
  In 1995, the sale of unsafe meat and poultry is unacceptable and 
deplorable. It is a scandal that meat today is inspected by the same 
standards first developed in the early 1900's. That is right, today's 
meat inspection process is nearly the same as it was 100 years ago--
inspectors must rely on sight and smell.
  USDA recently proposed rules that would finally bring meat and 
poultry inspection into the 20th century. Scientific testing would be 
used to prevent contaminated food from reaching American consumers.
  These changes would save thousands of lives and prevent millions of 
Americans from suffering the ill effects of this harmful bacteria.
  Death from E. coli poisoning can be excruciatingly painful. Symptoms 
range from diarrhea and vomiting, to extreme headaches, to neurological 
damage. Body functions often shut down one at a time. Blood 
transfusions are necessary. Death is common for children and survivors 
can suffer from the aftereffects of this poisoning for years.
  Last year, I introduced the Katie O'Connell Safe Food Act with 
Senator Bradley. Katie O'Connell was a 23-month-old girl from Kearny, 
NJ, who died as a result of eating a fast-food hamburger infected with 
E. coli bacteria.
  This act sought to prevent future tragedies like that suffered by 
Katie O'Connell and her family. I am pleased that after many years, the 
USDA proposed new standards that would do just this.
  There are thousands of Katie O'Connell's across the Nation whose 
lives could be saved if we had a proper system in place to assure the 
safety of our food.
  We owe it to our children and their families to ensure the safety of 
our food system. But the so-called regulatory reform bill before us 
now, even with the Dole amendment, will delay this long-awaited 
improvement in our meat and poultry inspection system. It will 
encourage challenges to rules which have already taken too long to be 
developed. It will delay USDA's ability to issue regulations which we 
need and most Members of this body want.
  Regulations that are vital to the public health ought to be protected 
from additional delay. That is what the Daschle-Bradley amendment does. 
And that it why I support it.
  Let us use some common sense and pass this amendment in the name of 
protecting the public health and safety.
  Mr. President, let me close by saying that I hope we will have the 
opportunity to examine other amendments that will put the public health 
ahead of the special interests.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.


                Amendment No. 1503 to Amendment No. 1502

    (Purpose: To provide that risk assessments conducted to support 
    proposed rules may be used to support final rules that are not 
      substantially different with respect to the risk addressed)

  Mr. JOHNSTON. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Louisiana [Mr. Johnston], for himself, Mr. 
     Hatch, and Mr. Roth, proposes an amendment numbered 1503 to 
     amendment No. 1502.

  Mr. JOHNSTON. 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 on page 1, lines 5 through 
     9 insert the following:
       ``(10) Notwithstanding section 632, if the agency head 
     determines that--
       (A) a final major rule subject to this subchapter is 
     substantially similar to the proposed major rule with respect 
     to the risk being addressed;
       (B) a risk assessment for the proposed major rule has been 
     carried out in substantial accordance with section 633; and
       (C) a new risk assessment for the final rule is not 
     required in order to respond to comments received during the 
     period for comment on the proposed rule; the head of the 
     agency may publish such determination along with the final 
     rule in lieu of preparing a new risk assessment for the final 
     rule.
       (11) Notwithstanding any provision of the Comprehensive 
     Regulatory Reform Act of 1995 and the amendments made by such 
     Act, including section 9 of such act, any rule for which a 
     notice of proposed rulemaking was 

[[Page S 9749]]
     filed before April 1, 1995 shall not be subject to the provision of 
     this subchapter or subchapter III except for section 623 
     (relating to review of rules).''.

  Mr. JOHNSTON. Mr. President, I invite the attention of my colleagues, 
particularly the Senator from Massachusetts, and the minority leader, 
if he is listening on his squawk box, and others, to this amendment, 
because it fixes the problem.
  The problem, Mr. President, was well pointed out by the Secretary of 
Agriculture in his letter to Senator Daschle. What he said, with 
respect to this ongoing HACCP rulemaking, is that affects the 9,000 
federally inspected slaughter processing plants in this country; that 
they have virtually completed a rulemaking; that that rulemaking has a 
cost-benefit and has a risk assessment that has been peer reviewed, and 
it is ready to go into operation. The Secretary says we should not have 
to go back and do that over again. It would give us a 6-month delay. A 
legitimate problem.
  Now, what this amendment does, Mr. President, is fixes that problem, 
not only with respect to HACCP, but with all other Federal agencies, 
because it says that where there is a final rule, which is 
substantially similar to the proposed rule, where a risk assessment for 
the proposed major rule has been carried out in substantial accordance 
with section 633, and a new risk assessment for the final rule is not 
required in order to respond to comments received during the period for 
comments on the proposed rule, the head of the agency may publish such 
determination along with the final rule in lieu of preparing a new risk 
assessment for the final rule.
  So that, in other words, if you have already done your risk 
assessment, in substantial compliance--not exact compliance--
substantial compliance of section 623, which it is my understanding 
that that risk assessment has been carried out, you are exempt, not 
only for HACCP, not only this agency, but for all agencies.
  Now, if that is not absolutely clear with respect to HACCP, let me 
give the clincher. The next paragraph, notwithstanding any other 
provision, if your notice of proposed rulemaking was filed before April 
1, 1995, you ``shall not be subject to the provisions of this 
subchapter or subchapter 3 except for section 623.''
  What that means is, if you have your notice of proposed rulemaking 
out, prior to April 1, as they did in agriculture, with the HACCP 
rules, you are exempt from everything except the petition process and 
the look-back.
  That means the rule will go into effect as soon as proposed. It will 
stay in effect.
  Now, if anyone wants to petition, what has to be done in order to get 
a petition granted, is to bear the burden of establishing, using the 
words of the statute, ``that there is a substantial likelihood that you 
would not be able to meet the standards of section 624.''
  What are the standards of section 624? That the benefit justifies the 
cost, and that you have used the least-cost reasonable alternative that 
complies with the statute, unless considerations of health, safety, the 
environment, require a more expensive alternative, or unless scientific 
or data uncertainties require a higher standard.
  Mr. President, if you are able to show that, if the petition is 
granted, only then do you do the risk assessment and cost-benefit 
analysis, only then do you have a new rulemaking, and there would be 3 
years, plus an extension of 2 years as provided, a total of 5 years, in 
order to complete that process.
  In the meantime, the rule is in effect.
  Mrs. BOXER. Will the Senator yield for a series of questions?
  Mr. JOHNSTON. I am happy to yield to the Senator.
  Mrs. BOXER. Does this take care of the danger of the E. coli rule 
being repealed by the look-back or sunset provisions? I believe you say 
it would still have to comply with look-back and sunset; is that 
correct?
  Mr. JOHNSTON. What would happen is the rule goes into effect. If you 
feel that that rule--the benefits do not justify the cost, and can show 
a substantial likelihood that that is so, then you could petition. If 
the agency agrees with you, then they would put you on the schedule for 
having a risk assessment and a cost-benefit analysis.
  You do not throw out the rule in the meantime. You simply go through 
the scientific procedures.
  Mrs. BOXER. I understand. In other words, the rule is in danger of 
being repealed by the look-back or the sunset procedures and is not 
exempted from the petition for waivers, according to your explanation--
I would like to ask another question.
  I believe, as I listen to my friend explain this, that the E. coli 
rule would have to comply with section 623 of the Dole bill and it 
seems to me that this in fact substitutes current law with this new 
law.
  Mr. JOHNSTON. That is just not true.
  Mrs. BOXER. I say that my friend admits, in fact, there is a danger 
that the----
  Mr. JOHNSTON. I did not admit that.
  Mrs. BOXER. Excuse me, my friend says, yes, it is subject to the 
look-back procedures.
  Mr. JOHNSTON. But not in danger of being repealed. Those were the 
words of the Senator from California.
  Mrs. BOXER. I have one more question.
  My last question is, Did you work with the minority leader on this? 
Is Senator Daschle in agreement with your substitute amendment?
  Mr. JOHNSTON. What Senator Daschle wants is to specifically exempt 
this rule, the HACCP rule, from any consideration of cost-benefit 
analysis or risk assessment.
  We oppose that because we believe that any rule that is--HACCP will 
go into operation. But if someone can show that HACCP was not properly 
done and that it cannot meet the cost-benefit analysis, that the 
benefits do not justify the cost, then all we say is that you can deem 
the scientific panel, get the best science, and do it right, but the 
rule stays in effect in the meantime.
  There is not a danger of will rules repeal, as if people are not 
going to be protected. There is a likelihood that if they have not done 
it right, they would have to do it right.
  Now, what is wrong with putting science in control, if they have done 
it wrong in the first place? What is wrong with that?
  Mrs. BOXER. Is the Senator asking a question?
  Mr. JOHNSTON. Yes.
  Mrs. BOXER. I say to my friend there is great disagreement over the 
very premise of this bill. Those that oppose it think it goes way too 
far, that the pendulum is going to swing to the side of the special 
interests in this country, to the detriment of the people who rely on 
us to protect the food supply.
  I assume the answer to my question is that Senator Daschle does not 
support your substitute amendment.
  Mr. JOHNSTON. Mr. President, there is no answer to those that say the 
bill goes too far, it protects special interests.
  We are dealing with a technical amendments bill that involves a lot 
of provisions. You cannot answer an argument that says it goes too far 
and it enshrines special interests. It does not. The Senator has not 
shown me where it does. All I am saying is that this rule goes into 
effect.
  By the way, the Senator from California, I believe, is a cosponsor of 
the Glenn substitute. Did the Senator know that the Glenn substitute 
would have the very effect that the Secretary of Agriculture complains 
about?
  Under the Glenn substitute, you would be required to go back and do a 
cost-benefit analysis because it has not been done in accordance with 
what the Glenn substitute says.
  We get this micromanaging of this bill where they ``fly-speck'' our 
bill and look at it and show--find ghosts where none exists, and then 
they propose legislation that has the exact same fault, sometimes worse 
faults.
  But, that is fine.
  Mr. GLENN. Will the Senator yield?
  Mr. JOHNSTON. I am happy to yield to the Senator.
  The PRESIDING OFFICER (Mr. Ashcroft). The Senator from Ohio.
  Mr. GLENN. We are changing that. We realized that was a fault in 
ours, and we are changing that. The other bill, S. 343, has not been 
changed.
  Mr. JOHNSTON. We have changed it right now.
  Mr. GLENN. Not in that regard.
  Mr. JOHNSTON. Mr. President, again, we have this problem on this bill 
that the opponents of the bill will not take yes for an answer. 

[[Page S 9750]]

  Secretary Glickman writes a letter and says, ``We have a problem, 
that we have gone through this extensive rulemaking, we do not want to 
have to do it over again.''
  We say, ``Yes, Secretary Glickman, you have a problem. You should not 
have to do it over again. Not only should you not have to do it over 
again, but nobody in the Federal Government ought to have to do it over 
again.''
  We proposed two fixes. If you started your rule prior to April 1 with 
a notice of proposed rulemaking, you are exempted. Or, if you have 
already done it and it is in substantial accordance with the section, 
you do not have to do it again. On both scores, this proposal for safe 
meat and E. coli, about which I am just as concerned as any member in 
this body--look, to say we are not concerned about health because we 
want scientists to do it right is to turn logic on its head. It is to 
turn the argument 180 degrees around. It is because we want it to be 
done right that we propose this bill. We do not want to have to do it 
over again. We do not want to delay. This amendment fixes the problem.
  Now, the reason we oppose the Daschle amendment is, in effect, what 
Senator Daschle says; citing the same problem, he says, just exempt 
HACCP altogether from these requirements.
  Well, you could come along and say, Well, this rule or that rule 
involves health or safety and it ought to be exempted.
  Mr. President, we are not diminishing safety by this bill. To the 
contrary, we are requiring that the benefits ought to justify the cost, 
a very simple proposition. Why do we propose that? Because, across 
Federal agencies, we have seen terrible examples of waste, ignoring our 
own scientists, not even knowing what regulations cost, dealing with 
risks that do not exist.
  With respect to this clean meat inspection, inspection of poultry 
houses, inspection of slaughterhouses--that regulation is going to go 
into effect under the second-degree amendment. We have fixed the 
problem. I wish the opponents to this measure would at least 
acknowledge that we are fixing the problem and not give us these 
arguments like: Oh, this is a special interest bill. Oh, you want dirty 
meat for your children.
  Mr. President, it is just not true. Let the opponents to this measure 
speak to this measure. Do not speak to something that is irrelevant, 
like whether special interests are being taken care of. This is not a 
special interest. This second-degree amendment is proposed specifically 
because the Secretary of Agriculture said he had a problem, and it 
fixes that problem. If there is another problem, let us deal with that 
in a separate amendment. We have had over a hundred changes accepted to 
this bill already. It is a tight bill. It is a good bill. It is a 
workable bill. And this amendment makes it better and I hope my 
colleagues will accept it.
  Mrs. BOXER addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I hope, in the course of the next half-
hour or so, I can be very specific in my critique of the Dole bill, so 
my friend from Louisiana can see that I am coming at it after a great 
amount of thought.
  I support the Daschle amendment because the Daschle amendment says, 
very simply, in plain English: We are moving ahead with that rule on E. 
coli. The Johnston amendment that he is substituting for the Daschle 
amendment deals with a broader issue. Fine.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mrs. BOXER. If I might complete my thought, then I will be happy to 
yield.
  We believe that the Daschle amendment is necessary so this HACCP rule 
which I refer to as the E. coli rule, that is about to take effect, can 
move forward now and be exempted from the bill. It is as simple as 
that.
  If you want to deal with the issue in a broader way, we can look at 
the Johnston language. But it does not mean that the Daschle language 
is not needed if you are concerned about E. coli and want to see the 
rule move forward unencumbered by language that my friend took about 10 
minutes to explain. It is still confusing. We think the Daschle 
language is clear. Just move forward with the rule, exempt it, and let 
us get a safe meat supply.
  That is why I support the Daschle amendment.
  Mr. JOHNSTON. Now will the Senator yield on that point?
  Mrs. BOXER. I will be glad to.
  Mr. JOHNSTON. Does my friend from California understand my amendment 
allows the E. coli rule to go forward the same as the Daschle amendment 
does?
  Mrs. BOXER. It does not exempt the E. coli rule, in your own words, 
from the waiver provisions----
  Mr. JOHNSTON. Yes, it does.
  Mrs. BOXER. From the sunset provisions, from the look-back 
provisions; and also, from what I gather from my friend's explanation, 
it still has to comply with Section 623 and the spirit of the new law. 
That is what I understood from my friend.
  Mr. JOHNSTON. If I may explain very carefully----
  Mrs. BOXER. Therefore I believe the Daschle amendment is necessary, 
in a simple way, so I can look the people in the eye and say: That rule 
to protect you from E. coli is moving forward, period. And it is not 
going to be repealed because of actions by a special interest lobby 
that forces it to be repealed. I stand by my strong belief that the 
Daschle amendment is necessary.
  Mr. JOHNSTON. Now, does the Senator understand--let us see where we 
agree and disagree.
  Mrs. BOXER. I will be happy to yield.
  Mr. JOHNSTON. Does the Senator understand that under the Johnston 
amendment, the E. coli regulations will go forward; be promulgated 
without delay?
  Mrs. BOXER. As I understand my friend's comments, and I would have to 
have them read back to me to be certain, he said that you have to make 
sure, in your generic description, that the spirit of section 623 was 
complied with.
  Mr. JOHNSTON. No. There are two bases on which this would be, that E. 
coli would go forward. First, that you had substantially complied with 
the risk assessment under section 633.
  Mrs. BOXER. Section 633.
  Mr. JOHNSTON. Or--understand ``or''--or that your notice of proposed 
rulemaking was put out before April 1, 1995. And this was put out 
before April 1, 1995. Therefore, it is exempt from the proposal.
  Are we together on that?
  Mrs. BOXER. It is not exempt from the look-back. It is not exempt 
from the sunset. It is not exempt from the waiver.
  I would say to my friend, if the April date is consistent, it may 
well move forward. I concede that. However I believe some of my 
colleagues have raised questions about the April date.
  Mr. JOHNSTON. So we are in agreement.
  Mrs. BOXER. I do not know the exact date of the rule, but if my 
friend says it, I would agree. I have no reason to think he would not 
be honest on that point.
  Mr. JOHNSTON. Do we also understand that in order to petition to have 
a risk assessment on this, that during all of that time, that the rule 
stays in effect? Are we in agreement on that?
  Mrs. BOXER. Yes. I understand exactly what my friend said. It is 
subject to the look-back, the waiver, and the sunset provisions of the 
law.
  Mr. JOHNSTON. Do you also understand that, as far as the sunset 
provisions, those are only rules that the Secretary himself will pick 
out? In other words, you do not sunset all rules, it is only such rules 
as he picks out for reexamination? And that is only if Secretary 
Glickman says he has to go redo his own work. Does my colleague 
understand that?
  Mrs. BOXER. I understand my friend perfectly. The fact is, Secretary 
Glickman is here today and could be gone tomorrow. We do not legislate 
because Secretary Glickman is a good guy. We legislate for whoever 
happens to be Secretary of Agriculture.
  I am going to take back my time, if I may, because I have a long 
statement on this bill. I have time constraints.
  I know my friend speaks in total good faith but I hope he knows I 
also speak in good faith. I am concerned about E. coli because kids die 
from it and old people die from it. And I want to go to the route that 
will exempt it from this legislation. Legislation that is so 
complicated that two Senators have different ideas about what it means 
any day of the week. That says to me: Court cases. That says to me: 
Lawyers' dreams. Why not go with Senator Daschle's approach? You have a 
problem. You have a rule. Put it into place, exempt it from this bill.
 
[[Page S 9751]]

  If people do not want to vote for that, God bless them, that is their 
option. I respect them. But no manner of questions to this Senator is 
going to change my mind that the most direct way to protect people from 
E. coli is to support the Daschle amendment.
  I want to get into the general subject of this bill. I think that all 
Americans agree there are tremendous benefits that come from our health 
and safety laws. If you look at some of our rivers, where there was no 
sign of life and they have been rejuvenated, it is because of our 
Nation's laws.
  If you look at the quality of air in certain areas where we are 
reaching attainment levels, areas where kids are now born with a 
healthy ability to breathe, a lung capacity that they deserve, it is 
because of the Clean Air Act. I could go on and on and cite case after 
case, of where we have reaped benefits from our health, safety and 
environmental laws.
  I also completely agree that there are instances where Federal 
agencies have ignored the costs of regulation on business and 
individuals. And those people feel they were treated unfairly, and in 
many cases it is true. In other words, I believe that we need to 
readjust the balance. There is no question about that. And that is why 
we need regulatory reform. The point I want to make is, while saying we 
need regulatory reform, I want to underline that we do not need, want, 
and should not pursue, regulatory repeal.
  What the Dole bill will do by coming up with these incredible hurdles 
that agencies have to go through in order to protect health and safety, 
in essence, will be the repealing of our laws. We are making it so 
impossible for them to go into effect that our people could be left 
unprotected.
  The Dole bill is basically a repeal. The Glenn bill cosponsored by 
Republican John Chafee--is regulatory reform. Yes. That is why I have 
my name on that bill. And I am proud to have my name on that bill. You 
are going to see some interesting folks crossing party lines on this.
  We need regulatory reform that provides reasonable, logical and 
appropriate changes in the regulatory process, that will eliminate 
unnecessary burdens on business, State and local government, and 
individuals. But we need regulatory reform that maintains our National 
Government's ability to protect the health and safety of the American 
people.
  Why do I say ``National Government?'' It is because I believe a child 
in California that bites into a hamburger that could be tainted 
deserves as much protection as a child in Mississippi or Pennsylvania 
or New York. All the children of this great country deserve that 
protection. All the people of this great country deserve those national 
standards. If I travel to another State, I do not have to worry about 
ordering a hamburger because that State did not enact good law. I want 
to know there is a national standard, that there is a national 
inspection service.
  I am committed to doing away with regulations that have outlived 
their usefulness, or have created needless redtape or bureaucracy.
  I am equally committed to making sure the American people's basic 
needs are protected--the food they eat, the air they breath, the water 
they drink--because you may have a great job, you may have a great 
future, you may have a wonderful family, and yet, if something like 
this happens--where a family member is killed or maimed or hurt by 
bacteria in meat or bacteria in the water supply, it does not mean 
much, folks.
  I want to share a chart with you. It is interesting because this 
public opinion poll was taken, as I understand it, by one of the 
Republic pollsters, Luntz Research and Strategic Services in March 
1995. I think this is a warning, a warning to those who would just say, 
throw out our regulations.
  ``Which should be Congress' higher priority: cut regulations or do 
more to protect the environment?''
  Twenty-nine percent of the American people, ``cut regulations''; 62 
percent, ``protect the environment.''
  And the pollster goes on to comment, ``This question here is a 
warning. Environmental protection is a higher priority than cutting 
regulations.''
  It is clear. So what does this mean? It means that there cannot be a 
frontal assault by politicians on environmental regulations and food 
and safety regulations because a frontal assault would be so unpopular, 
those people would be booted out of office in 5 minutes.
  So what do they do? They come up with back-door solutions. I think 
the Dole bill is a back-door solution of this kind. Call it regulatory 
reform, hide behind words like ``bureaucrat, overregulation, cost and 
benefit studies,'' and strip protections from the American people. When 
I talk about protection, I mean the most basic protection, the most 
basic rights to safe water, clean air, and so on.
  I want to share with you some of the editorials and stories that have 
been appearing in the newspapers about regulatory reform and the Dole 
bill, the bill we are trying to make better by amending it, the bill 
for which we have a substitute called Glenn-Chafee bill which we think 
is far better.
  USA Today, ``Reforms aimed at health, safety rules are too risky.''
  The San Francisco Chronicle: ``Regulatory Reform or Polluters' 
Revenge?''
  That is how the Chronicle saw it.
  Congressional Quarterly cover story, ``Industry, Politics Intertwined 
in Dole's Regulatory Bill: Its sweeping changes offer the campaigning 
leader a platform and generate a wave of lobbying from affected 
businesses.''
  Maine Sunday Telegram: ``Senate: No `Reform' Trashes Environment.''
  Mesa Tribune: ``Regulatory Reform, Polluters' Loophole.''
  The New York Times talking about this bill: ``The Next Environmental 
Threat.''
  And here is a story from Business Week: ``The GOP's Guerrilla War on 
Green Laws, Newt & Co. Plan a Procedural Overall, Not a Direct 
Attack,'' which is exactly my point.
  You cannot say to the people we are repealing food safety laws, but 
you write a bill that makes it extremely hard for our agencies to 
protect the food supply. In essence, you have repealed those laws. It 
could not be said better than in the Business Week headline.
  How about this? Detroit Free Press: ``Unnatural Reform, GOP Remedies 
Would be Environmental Disaster.''
  So, when I criticize the Dole bill, I think I have a lot of support 
for my position. When I talk about special interests being behind it, 
which my friend from Louisiana got so upset about, I do not think you 
need a degree in political science to know that the pin-striped suits 
are all over this place, by the way, backing off a bill that already 
passed 15 to nothing out of the Government Affairs Committee because 
they see a better chance to get relief.
  That is what hurts. We had a bill passed in a bipartisan way, but all 
of a sudden we are into a whole different situation.
  Make no mistake about it: Laws that protect our clean air and water 
and our food supply are at stake here. It is an attack on the laws and 
regulations that protect us from the medicines we buy every day, the 
toys we give to our children, the cars we drive and the places where we 
work. The consequences of this bill are far-reaching--they will reach 
far into every town in America, into every kitchen in America, because 
when you turn on the water, and you back off of protecting that water 
supply, you are in danger.
  I believe that this Dole bill, in the name of efficiency, in the name 
of cost-benefit analysis, will bring us gridlock and that will assist 
the special interests and the corporate polluters. And I did not come 
here to protect them. I came here to protect the people in my State who 
are going to rely on us for their health and safety.
  The Dole petition and look-back, which we talked a little bit about 
with my friend from Louisiana, and the judicial review provisions will 
allow any well-financed ``bad actor''--what I mean when I say ``bad 
actor'' is a person in the industry who does not have principles. And 
that is certainly not a majority, but there are some.
  I will never forget a very long time ago when I was very young and I 
was just getting into local politics. I went to a meeting on the issue 
of energy policy in America. And discussion on the safety of nuclear 
energy came up. I made a statement that I was worried about the 
disposal of nuclear waste. I felt very strongly that until we knew what 
we were going to do with the nuclear waste, we had better not continue 

[[Page S 9752]]

to build nuclear power plants. This was way back in the 1970's.
  A utility industry person came up to me, drew me aside, and said, 
``You know, young lady''-- or something like that--he said, ``There may 
be a problem. There may be a health problem from nuclear energy waste. 
But no matter what you say, no matter what you do, it will not show up 
for 20 years and no one can prove it was us.''
  I will never forget that. I looked at him. I said, ``When people get 
cancer, they are going to look to the environment. They are going to 
look to what we are doing with that nuclear waste.'' And he said, 
``They will never pin it on us.''
  That is a bad actor. That is a bad actor. Who was I? I was just an 
individual at this conference who was concerned. He would never say 
that to me today. But he said it to me a long time ago.
  So when you think about what we are doing here, you have to think 
about the bad actors. The majority of people are not that way. They 
care about their products. Of course, they do. But when you have a bad 
actor, you have to be sure that that bad actor gets punished. And I 
believe under the Dole bill, with the petitions, with the look-backs, 
with the judicial review provisions, we will allow any well-financed 
bad actor to paralyze an agency, to prevent the agency from developing 
new rules, to prevent them from reviewing old rules, to force a stay on 
enforcement of rules and cause the eventual sunset of rules. To me, it 
is completely unacceptable. I am not casting aspersion at those who 
like those provisions, but to me they will lead to gridlock. You might 
as well just repeal the laws if you are going to make it so hard for 
people to act.
  I also believe the Dole provisions on so-called supplemental decision 
criteria create a supermandate that supersedes current law. Now, 
supporters of this deny it. They insist it is not the intent to 
supersede but merely to supplement the decisional criteria in other 
statutes. However, the bill clearly overrides other statutes including 
our health, safety and environmental laws because the standards in Dole 
would still have to be met even if they were in conflict with current 
law.
  Mr. JOHNSTON. Will the Senator yield?
  Mrs. BOXER. Yes, I will.
  Mr. JOHNSTON. Was the Senator aware of the amendment which was 
accepted yesterday, the one which was cosponsored by Senator Levin, 
which specifically says that the bill does not override the 
requirements of any environmental law?
  Mrs. BOXER. If that amendment passed, I stand corrected, and I am 
very pleased.
  It covers all laws then or just environmental laws?
  Mr. JOHNSTON. All requirements of laws including environmental safety 
and health laws.
  Mrs. BOXER. Very good. Well, that is an improvement, and I am glad 
that it passed. By the way, there will be many other amendments that 
will improve this bill including the Daschle amendment.
  The Dole bill, in my view, goes well beyond sensible reform by 
establishing a goal that is absolutely at odds with our responsibility 
to improve the well-being of all the American people. It says that we 
should protect only those values that can be measured in dollars and 
cents. It is a corporate bean counter's dream. This is my view. Forget 
about saving lives, because you cannot put a dollar figure on a life. 
Forget about getting poison out of our air and water. Forget about 
preventing birth defects, infertility, and cancer. If you cannot put a 
price tag on it, it does not count as a benefit. And that is wrong.
  Mr. JOHNSTON. Will the Senator yield?
  Mrs. BOXER. Yes.
  Mr. JOHNSTON. Is the Senator familiar with provisions of the Dole-
Johnston bill now before the Senate which state that the head of an 
agency can choose a more expensive alternative if nonquantifiable 
benefits to health and safety of the environment make that appropriate 
and in the public interest?
  Mrs. BOXER. I say to my friend, yes, but that is so inadequate for 
what I am talking about and it gets back to my conversation I had with 
the Senator on another issue.
  Mr. JOHNSTON. I thought the Senator just said it was impossible to 
consider nonquantifiable benefits.
  Mrs. BOXER. I said very clearly that in this bill there is no way you 
can put a price tag on those benefits. Now, if you give a bureaucrat a 
chance to assert his or her own opinion, it is better than nothing. But 
in my opinion, it does not meet the test. I think that we should be 
able to consider that and not leave it up to some bureaucrat.
  That is the problem I have with this bill. On E. coli, my friend says 
Dan Glickman will be wonderful. Great. What if it is another 
administration? I think we should legislate and not give up our power 
here. And I think we do that to a great degree.
  Mr. JOHNSTON. How does the Senator suggest that we legislate with 
respect to----
  Mrs. BOXER. I think we could be very clear and talk about it, if we 
could, after I finish my statement, on how I think we can measure and 
quantify these benefits. If my friend is willing, I will definitely 
propose an amendment that would reach to those issues.
  Mr. JOHNSTON. I would invite my colleague to read the language which 
we have put in. It provides that benefits include all quantifiable and 
nonquantifiable benefits. So they are all brought in. I think it is 
really very clear. I invite the Senator to read that.
  Mrs. BOXER. I would invite my friend to read the substitute bill 
because I think on this point it is much stronger when it deals with 
costs and benefits.
  Now, I think Senator Glenn, who is a hero already--in other words, if 
he did nothing more in his life in the public arena, he would go down 
as a hero for what he has done in forging the advancement of space. We 
know that. He is already a hero. He is a hero for what he does here 
also. And as he says, maybe this is boring, but I have to say I do not 
think it is that boring. I do not think it is boring if your kid bites 
into a hamburger and is rushed to the hospital. Not only does it ruin 
your day, but it could ruin your life and he could lose his life.
  I guess I would say to my friend from Louisiana, who is questioning 
my views on this bill, which is his right to do, we have a bill that 
passed out of the committee with a bipartisan vote, and now we are 
facing a bill which, in my opinion, does harm to the health and safety 
rules. So I think Senator Glenn is right in what he does in relation to 
cost-benefit analysis, in relation to judicial review, and in the many 
problems that we have with this bill.
  I wish to talk about another area of the Dole bill that I think my 
friend from Louisiana supports, which is the provision on toxic release 
inventory, which I think would significantly undermine a community's 
right to know who is polluting and what kind of toxics are being 
released into the air. The toxic release inventory is an effective cost 
saving tool. Public scrutiny as a result of the information released 
under the 1986 Emergency Planning and Community Right to Know Act has 
often prompted industry to lower pollution levels without the need for 
new Government regulations. The Glenn-Chafee bill has no such 
provision.
  In this whole area of toxic relief, my God, if we should be 
protecting anything here, it should be a community's right to know if 
someone is coming in and poisoning their neighborhood. Why should that 
be a secret? Why should they not have the information? Information is 
power, and a lot of folks who stand up here, particularly on the other 
side of the aisle, and say States rights, give it all back to the 
States, are going to support this alternative which takes away a 
community's right to know. Information is power.
  I think the Dole bill strips away that knowledge, and I think that is 
wrong.
  I do not think this bill is boring. Oh, yes, the proponents of the 
Dole bill will get you off on little sidebars here, but the whole issue 
is true, as I see it, and I am on the Environment Committee. I served 
in the House, and I know how these bills go. You had a bipartisan bill 
that was fair and just. Was it perfect? Probably not. My friend pointed 
out an area where it was not perfect, and they are fixing it. But it 
really worked to provide this balance the American people deserve--
protection of their water, of their air, of their food supply, of 

[[Page S 9753]]

their very lives, if you will, balanced with sensible regulation.
  Mr. JOHNSTON. Will my colleague yield at that point?
  Mrs. BOXER. I think we have lost it in the Dole bill.
  Yes, I will be happy to yield to my friend.
  Mr. JOHNSTON. We just had a discussion about benefits and how the 
definition of ``benefits'' in the Dole-Johnston bill was insufficient 
and how the Glenn bill was so much better.
  Does my colleague understand that the definition of ``benefit'' in 
the Glenn bill is word for word identical to that which is contained in 
the Dole-Johnston bill, save for one change? At the behest of Democrats 
we added the words ``quantifiable and nonquantifiable 
effects.'' That was Democrats who said, ``We want to be sure it 
includes both quantifiable and nonquantifiable.'' So they added that 
amendment. Does my colleague understand that? Excuse me, we also added 
the word ``health.''
  Mrs. BOXER. It is my understanding they are not alike. If the Senator 
would like, when I finish I can put it side by side where they are not 
exactly alike.
  Mr. JOHNSTON. If the Senator will allow me to come over, I have got 
them both right here.
  Mrs. BOXER. As soon as I finish my prepared remarks I will yield time 
to my friend, and we can go through it. Right now----
  Mr. JOHNSTON. I am looking at it right here.
  Mrs. BOXER. I am working on it. It is my understanding it is 
definitely not the same. I will show it to you in a moment's time. I do 
not want to interrupt the flow of what I am saying. So if my friend 
will wait, I think I will be finished in just a few minutes here. We 
will go through the side by side of both bills on that issue of 
benefits.
  Mr. JOHNSTON. If I am correct, will you acknowledge that?
  Mrs. BOXER. I say to my friend, I have great respect for him. I told 
my friend he is correct a couple times and incorrect a couple times. 
But I will be glad to agree with my friend when I have the writing in 
front of me. I am going to have it for you.
  Now, I think another key aspect of the Dole bill is how it will 
affect our ability to respond quickly to the threats of public health, 
safety and the environment. It is interesting that the majority leader, 
Senator Dole, has responded so quickly to concern about E. coli. Now, 
if I heard my friend right yesterday, he got up and said that the Dole 
bill was not necessary, the Dole amendment was unnecessary. I thought 
that was really interesting. Senator Johnston says to Senator Dole that 
his amendment on E. coli is not necessary. Then I ask, why did Senator 
Dole put it forward? Because it was necessary, because under the 
emergency provisions it did not say ``food safety.''
  And yet my friends were defending the bill as it was. ``Oh, it is 
covered.'' I heard the colloquy that went on between the Senator from 
Delaware and the Senator from Louisiana. ``Oh, the Dole amendment is 
not necessary. The Dole amendment on E. coli is not necessary. We will 
vote for it.''
  Well, I am telling you, I am glad that the majority leader offered 
that E. coli amendment because that opens the door to all of us who 
have other issues we want exempt as well. Critically important 
regulations on cryptosporidium and mammograms that my friend 
from Massachusetts talked about. The Dole bill would delay and possibly 
prevent issuance of these regulations. And although my friend from 
Louisiana said it was not necessary to have the Dole language, he voted 
for it. Well, if it was necessary for E. coli, I say it is necessary 
for cryptosporidium. I say it is necessary for mammograms, and other 
areas.
  Of course, we know that the Daschle amendment even goes further on E. 
coli because it says that rule will be exempted from this bill. And my 
friend from Louisiana stands up and says, we did not need this Daschle 
amendment because under a substitute he is offering the E. coli rule 
can move through. But he admits that the E. coli rule would still be 
subjected to the lookback provisions of the bill, the sunset provisions 
of the bill, and the waiver provisions of the bill.
  So in fact we do need Senator Daschle's amendment. And I hope my 
colleagues will vote it in. Only those rules which represent an 
emergency or health or safety threat that is likely to result in 
significant harm to the public would be exempt under that emergency 
section. There is no definition of the term ``significant'' or 
``likely'' in the bill.
  Now, I say if one child dies as a result of eating contaminated meat, 
does that pose a significant harm to the public? It certainly is 
significant to the child's parents and the others who ate at the same 
restaurant or bought meat at the same grocery store. Now I want to show 
my friends the number of outbreaks just recently of the bacteria E. 
coli. It is enough to make your head spin. It is all across the 
country--North Dakota, Ohio, Nebraska, California, and so on, and so 
on, and so on.
  As a matter of fact, on this next chart I will show you a personal 
case. I am going to talk about it. We want to put personal faces on 
this. We get a lot of talk about section 103 and section 202 and line 4 
and line 6. And does the Senator know this and does the Senator know 
that? This Senator knows one thing. We should vote for the Daschle 
amendment and get that E. coli rule, moving safely on its way not 
subject to lookback and not subject to anything else. Let me tell you 
about this child.
  Jesse Fendorf, Shawnee, KS. Unfortunately, Jesse was almost killed by 
infected meat contaminated by E. coli. To deal with this, Jesse had to 
have many blood transfusions and was on kidney dialysis for 2\1/2\ 
weeks. Today he is still ill. Someday it is likely he is going to need 
a kidney transplant. In the meantime, no one will sell his family any 
insurance. Now, clearly under the Daschle amendment the rule on E. coli 
would be exempted from the nightmare of this bill. It will go on its 
way and it will not be repealed. What if we get someone over there in 
Ag that decides it ought to be repealed? The least we can do for this 
child is pass the Daschle amendment--I will show you a few more faces.
  Here are a few more faces. Alex Donley, Chicago, IL; Katie O'Connell, 
Kearney, NJ; Scott Hinkley, Saranac, MI; Lauren Rudolph. E. coli in 
food kills more than one victim each day. Who is next? Who is next?
  Let me tell you about this case because it happens to be a 
constituent. Six-year-old Lauren Rudolph of Carlsbad, CA, was the first 
person to die on the west coast Jack-In-The-Box case of 1993. She 
suffered three heart attacks and had to be put on life support before 
she died. Her mother, Roni Rudolph, founded STOP, Safe Tables Our 
Priority, a national consumer watch group dedicated to improving our 
Nation's meat and poultry safety.
  I mean, you look at these kids, 1990 to 1992. I am not going to say 
any more about this. Just look at this and vote for the Daschle 
amendment. Do not vote to weaken it. If a woman has her mammogram read 
by someone who is poorly trained in mammography and she dies as a 
result of not getting help, is that significant harm to the public? 
That is what you have to deal with in the Dole bill. There is no 
definition.
  I will tell you right now, if it was a Senator's wife it sure would 
be significant. If a Senator's wife died of cancer because of a faulty 
mammogram, I am sure it would be significant. Well, to me it is 
significant if anyone dies because of a faulty mammogram. And yet in 
this bill we are going to derail these safety regulations.
  We have to ensure that one of the most fundamental needs of any 
society--safe drinking water--is available to all Americans.
  Public health continues to be threatened by contaminated drinking 
water.
  In 1987, 13,000 people became ill in Carrollton, GA, as a result of 
bacterial contamination in their drinking water. In 1990, 243 people 
became ill and 4 died as a result of E. coli bacteria in the drinking 
water in Cabool, MO. In 1992, 15,000 people were sickened by 
contaminated drinking water in Jackson County, OR. And 1 year ago, 
400,000 people in Milwaukee became ill and 104 died as a result of 
drinking the water from their taps which was infected with 
cryptosporidium.
  A recent study completed by the Natural Resources Defense Council 
``You Are What You Drink'' found that from a sampling of fewer than 100 
utilities that responded to their inquiries, over 

[[Page S 9754]]
45 million Americans drank water supplied by systems that found the 
unregulated contaminant cryptosporidium in their 
raw or treated water.
  I am going to show you just a couple more charts and then complete my 
statement because I know my friend is ready to talk. This is a real-
life warning that was distributed by the Environmental Protection 
Agency as guidance for people with severely weakened immune systems in 
terms of our water supply.
  Current EPA drinking water safety standards were not explicitly 
designed to assure the removal or killing of cryptosporidium. Efforts 
are now under way to resolve a number of scientific uncertainties that 
will enable EPA to set specific safety standards for this parasite in 
the future. Cryptosporidium has recently caused several large 
waterborne disease outbreaks of gastrointestinal illness with symptoms 
that include diarrhea, nausea, and/or stomach cramps. People with 
severely weakened immune systems are likely to have more severe and 
more persistent symptoms than healthy individuals. Moreover, 
cryptosporidium has been a contributing cause of death in some 
immunocompromised people.
  People who have cancer, transplant patients, people on 
immunosuppressant drugs, little children, pregnant women--these are the 
most vulnerable.
  This is what is going on in communities across the country, and we 
know people in Milwaukee died of crypto sporidium in the water supply. 
Do we want to derail a rule that will get this killer out of the water 
supply? I am sure every Senator would say, ``Oh, no, not me; I don't 
want to do that.'' But if you support this Dole bill, that is what you 
are doing, because you are going to subject this rule to all kinds of 
analyses and lookbacks, petitions, sunsets, judicial reviews, and all 
the rest of it.
  There was an article in the Wall Street Journal, and the author said, 
``Well, we know how to deal with this problem. Drink bottled water. Go 
to the store and for a few bucks, buy bottled water.''
  Well, that is just swell, in a country like America where we are a 
democracy, we are going to have an environment that is safe for the 
wealthy, for those who can buy that bottled water. That is wonderful, 
is it not? What a society that would be. What an answer that is. That 
is almost as bad as James Watt in the old days under Ronald Reagan 
saying, ``Well, if you don't want to get skin cancer, just wear a hat 
and put sunglasses on, because we're not going to do anything more in 
the environment.''
  That is not what this country is about. This country is about clean 
water and clean air. We are the best. We are the best in the world. So 
let us not vote for a back-door repeal of these laws by making it so 
very difficult to implement them. I do not want to see these anymore. I 
do not want people to be scared that they are going to die from 
drinking water out of the tap. Why would we support a bill that will 
make it more difficult to make the water safe? It just does not make 
sense.
  We have a sound alternative. We have the Glenn-Chafee bill. We can be 
proud to support that. It takes care of our problems.
  So whether it is mammograms, cryptosporidium in the water, E. coli--
we could go on--let us not hurt the American people by supporting a 
bill that makes no sense.
  So I am proud to stand in support of the Daschle amendment on E. 
coli. I am proud to stand in support of the Glenn-Chafee bill, and I am 
proud to stand in opposition to the Dole bill. This may sound like a 
boring debate, but when you strip away the arcane language of these 
bills, the bottom line is the safety and health of the American people.
  Thank you very much, Mr. President. I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. ROTH. Mr. President, an effort has been made to use scare tactics 
to insinuate, to suggest, to expressly assert that those of us who are 
supporting meaningful regulatory reform are somehow trying to prevent 
appropriate action being taken in the case of matters that affect the 
health, the safety of the American people or the environment.
  Time after time, statements have been made that we cannot take action 
to protect the American people from E. coli, admittedly a serious 
problem.
  The reason I say it is scare tactics is the fact that the legislation 
before us very clearly deals with the situation. In fact, the 
legislation proposed, the so-called Dole-Johnston amendment provided, 
that 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 that is 
likely to result in significant harm to the public or natural 
resources.''
  So I think it is important to understand the basic legislation 
anticipated that there could be situations where there were serious 
threats to health and safety, and because of the need for action, an 
exception would be made to the general rule of requiring a cost-benefit 
analysis.
  Let me point out further that that language does not require that it 
be an emergency to fall within this exception, because the language 
specifically provides that there is an exception to the rule requiring 
cost-benefit analysis in the case of, first, an emergency that stands 
on its own feet--just the word ``emergency''--or health, that likewise 
stands on its own feet. So it does not need to be an emergency as long 
as it is a question of health. And the same thing, of course, could be 
said about a safety threat or a food safety threat. So that is point 
No. 1.
  But yesterday action was taken because of concern expressed by the 
Secretary of Agriculture that there was a problem with respect to a 
rule involving E. coli. So because of that concern expressed by the 
Secretary, as well as the many statements that were made in the media, 
the press, the Senate adopted an amendment proposed by the majority 
leader that modified the language of which we just spoke and in which 
it expressly includes an imminent threat from E. coli. The language now 
reads:

       A major rule may be adopted and may become effective 
     without prior compliance with this subchapter if
       (A) the agency for good cause finds conducting a cost-
     benefit analysis is impracticable due to an emergency or 
     health or safety threat or a food safety threat (including--

  This is the new language--

     (including an imminent threat from E. coli bacteria) that is 
     likely to result in significant harm to the public or natural 
     resources. . . .

  This legislation was adopted by a unanimous vote, and Senators, both 
Republicans and Democrats, made it very clear that it was not an 
attempt in any way to prevent or threaten the issuance of a rule 
affecting E. coli.
  Subsequently, there were concerns expressed again by the Secretary of 
Agriculture that the legislation unanimously adopted yesterday did not 
cover two situations that he saw as being burdensome or troublesome.
  One was that under the amendment yesterday, it did not exempt his 
being required to take or make a risk assessment under subchapter 3 of 
the legislation, and that as part of the risk assessment, it would 
become necessary to have a peer review. Such peer review, the assertion 
was made, might delay the issuance of the rule by as much as 6 months.
  So, once again, we are here on the floor seeking to allay this 
concern. And that is, of course, the purpose of the Johnston-Hatch-Roth 
amendment.
  Under the Johnston-Hatch-Roth amendment, two steps are taken. It is 
specifically provided that a new risk assessment for the final rule 
need not be made if the final rule is substantially similar to the 
proposed rule. In other words, when you propose a major rule, there has 
to be a risk assessment made. And so if the situation is such that the 
final rule is very similar to the proposed rule, under this 
legislation, it would not be necessary for a new risk assessment to be 
made.
  So that takes care of the problem. In fact, I point out to my 
distinguished colleagues that this legislation or this proposal, this 
amendment, very substantially modifies the burden on agencies because 
this modification not only applies to E. coli, but is a general rule, 
so that any time in the future when the 

[[Page S 9755]]
final rule, the final major rule, is substantially like the proposed 
rule, a new risk assessment would not have to be made for the reasons I 
have already mentioned.
  The amendment, of course, goes further and provides that 
notwithstanding any provision of the Comprehensive Regulatory Reform 
Act of 1995 and the amendments made by such act, including section 9 of 
such act, any rule for which a notice of proposed rulemaking was filed 
before April 1, 1995, shall not be subject to the provisions of this 
subchapter or subchapter 3, except for section 623 relating to review 
of rules.
  As I understand it, the proposed notice of proposed rulemaking in the 
case of E. coli was back in February, so the fact that this paragraph 
exempts any rulemaking where the notice of proposed rulemaking was 
filed before that date, again, ensures that action can be taken in the 
case of E. coli.
  So I congratulate the Senator from Louisiana for his authorship of 
this legislation and I think, once again, we have addressed the 
problems that have been raised. I suspect that tomorrow, we will have 
some new problem because of the efforts on the part of some to use 
scare tactics.
  Mr. President, I am concerned that the pending regulatory reform 
legislation, S. 343, has been poorly understood and mischaracterized at 
times. This legislation, the product of bipartisan compromise, the work 
of four committee chairmen, including myself, is vitally important to 
restoring some common sense in the regulatory process.
  Simply put, the Dole-Johnston compromise would require regulators to 
issue regulations whose benefits justify their costs, unless existing 
statutory instructions prevent that.
  This legislation will lead to a more efficient, a more effective 
regulatory process. But a number of recent statements misconstrue this 
legislation. I have, of course, just been addressing the 
misinterpretations, the scare tactics that have been used in the case 
of E. coli, which is a good example of the recent statements that have 
been made that are misconstruing this most important piece of 
legislation.
  Let me take a few minutes to address some of these myths. First, S. 
343 would not roll back environmental standards and does not--and I 
underscore the word ``not''--contain a supermandate. Section 624 of S. 
343 contains the cost-benefit decisional criteria. Section 624 clearly 
states that the cost-benefit requirements shall supplement and not 
supersede another existing statutory instruction.
  Section 624 merely requires regulators to pick a regulation whose 
benefits justify its costs, unless the statute authorizing the rule 
does not allow such an option. This is, in my judgment, just plain 
common sense.
  Now, S. 343 also gives fair and equal treatment to environmental 
considerations and nonquantifiable benefits. The definition of benefits 
in section 621(2) clearly shows that in determining whether the 
benefits of a rule justify its cost, an agency should consider 
environmental, social, and health benefits. The agency also does not 
have to quantify all costs and benefits. Nonquantifiable factors count, 
too. S. 343 merely calls for a reasoned decision from the agency as to 
whether the benefits of a rule justify its cost, considering all 
relevant costs and benefits.
  I might just point out the importance of the word ``justify.'' It 
does not mean that benefits have to outweigh costs. The word 
``justify'' is much less strict than that.
  Now, to deal with emergencies where an agency must issue regulations 
quickly to respond to immediate threats to human health, safety, or the 
environment, S. 343 contains emergency exemption from risk assessment 
and cost-benefit requirements in sections 632(c)(1)(A) and 622(f).
  S. 343 will not roll back environmental standards. S. 343 will not 
cause undue litigation and will not clog the courts with lawsuits. S. 
343 has limited judicial review.
  In fact, it does not allow the normal level of judicial review that 
applies to laws as a matter of due course under section 706 of the 
Administrative Procedures Act.
  Section 625 of S. 343 provides that an agency's failure to comply 
with S. 343 may only be reviewed by a court in the context of the whole 
rulemaking record under the very, very, deferential ``arbitrary and 
capricious'' standard.
  A court cannot overturn a rule because an agency fails to comply with 
some unimportant procedure in doing a risk assessment or cost-benefit 
analysis. In other words, a court cannot nit-pick an agency for minor 
procedural missteps in doing the required analysis.
  Only if an agency's failure to comply with S. 343 is so glaring as to 
render the rule arbitrary and capricious can a court overturn a rule.
  Three, the process for reviewing old regulations under S. 343 will 
not overload the agencies or clog up the courts with litigation. 
Section 623 of S. 343 is designed to allow for the reform or 
elimination of inefficient, outdated, or ineffective rules already on 
the books. Again, this is a commonsense solution.
  We should look at the old rules that do not make sense and try to 
reform them. Leave the other rules alone.
  Section 623 allows each agency to choose any rule it thinks should be 
reviewed and place them on a review schedule. The agencies have up to 
11 years to review these rules and decide whether they should be 
continued, reformed, or terminated.
  In addition, a petitioner can request that the agency review any 
overlooked major rules within the first 3 years of the schedule. But to 
limit the number of petitions, S. 343 requires any petitioner to meet a 
very high burden of proof. That is, that there is a substantial 
likelihood that the rule should not meet the cost-benefit test in 
section 624 of the legislation.
  This is a heavy burden of proof that will require substantial 
supporting documentation. But if a petitioner cares enough about a 
poorly written rule to prove that the benefits do not justify its cost, 
or that it otherwise fails the cost-benefit decisional criteria, why 
should we not review that rule?
  Mr. President, section 623 is a fair, workable, and sensible solution 
to the thorny issue of reviewing existing rules.
  In sum, Mr. President, when we look closely at how S. 343 would work, 
we can see it would achieve its intended goal--a more efficient and 
effective regulatory system. It will give us more bang for the buck, 
allowing Americans to achieve greater benefits at less cost. S. 343 
will benefit everyone while providing needed protection for the 
environment, health, and safety. S. 343 will provide smarter 
regulation. I yield the floor.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER (Mr. Faircloth). The Senator from Wisconsin.
  Mr. FEINGOLD. I would like to begin, Mr. President, by stating my 
support for the consideration of appropriate regulatory reform 
legislation in the U.S. Senate.
  I do believe our regulatory process is in need of repair. I would 
like to compliment the majority leader and the Senator from Louisiana 
for trying to craft a bill that will reform a regulatory process that, 
no doubt, has and will continue to serve an important purpose, but has 
too often infuriated and frustrated a growing number of Americans.
  Mr. President, I have held over 175 town meetings in my home State of 
Wisconsin during the past 2\1/2\ years. Many times I have had 
constituents stand up at the meetings and express their tremendous 
frustration and anger with the regulatory process that, too often, 
really, is impractical and impersonal and needlessly burdensome and, of 
course, many times, costly.
  The regulatory process affects just about every American one way or 
another. It may be the factory owner who is trying to comply with a 
Federal workplace safety regulation. It might be a young couple 
shopping for a car safety seat for their child. Or it may be the 
millions of Americans who sit down every April and have the pleasure of 
trying to decipher the Rube Goldberg guidelines and rules known as our 
Federal Tax Code.
  It is clearly in all of our interests to make sure we have a 
regulatory structure that is effective, efficient, and sensible.
  Mr. President, though this does not mean that we should entirely 
dismantle the regulatory process--that is not a solution, because the 
regulatory process serves as a protective watchdog over the health and 
safety of every person in this Nation. It is responsible for 

[[Page S 9756]]
helping to ensure that we have cleaner air, cleaner water, and safer 
products.
  I am constantly reminded of the need for regulatory reform by 
constituents who approach me with their concerns with the process. 
Unfortunately, I am also occasionally reminded by other kinds of 
incidents, Mr. President, incidents in my home State that illustrate 
just how important appropriate Government regulation really is.
  Mr. President, it was just 2 years ago, in 1993, when an outbreak of 
cryptosporidium in the Milwaukee municipal water supply left 104 people 
dead and over 400,000 people seriously ill. Over 100 people, Mr. 
President, died from a single incidence of a water supply that became 
contaminated. That was a tragic reminder of how just one little crack 
in the regulatory process can have devastating consequences for a huge 
community that until then had never experienced any problems of any 
proportion of that kind.
  Mr. President, that is why I am equally concerned about the impact of 
this legislation on future regulations. I am particularly concerned 
about the Government's ability to protect our drinking water, as it is 
clear that cryptosporidium, considered Milwaukee's problem in 1993, is 
now the country's problem.
  On June 16, 1995, the Washington Post reported that cryptosporidium 
is now commonly found in lakes, rivers, and reservoirs all across this 
country. The Centers for Disease Control has warned that drinking tap 
water could be fatal to Americans with weakened immune systems, which 
the center estimates could number as many as 6 million Americans.
  The city of Milwaukee itself now notifies at-risk populations of 
detections of cryptosporidium in municipal water, contacting hospitals, 
AIDS care facilities, institutions that service the metropolitan area's 
elderly, informing all those with fragile immune systems, so they may 
be able to protect themselves.
  The city of Milwaukee is engaged in a multitier approach to 
investigating whether cryptosporidium is present in the drinking water: 
Testing occurs at the facility for the parasite, particulates, and 
turbidity of the water are used as indicators, and the city has 
established a network to monitor disease outbreaks that suggest 
individuals have been exposed to cryptosporidium.
  However, it is not only those with fragile immune systems that 
experience health problems when exposed to cryptosporidium. As I said, 
over 400,000 people of all states of health became ill in Milwaukee 
itself. That is a very significant percentage of the population. And 
over 100 died following the city's cryptosporidium outbreak in April 
1993. So I have observed firsthand the lingering health problems 
Milwaukee citizens continue to face.
  Solutions to the problem of cryptosporidium will have to address 
nonpoint sources of pollution, and both the new $50 million threshold 
contained in the original draft of this legislation or the $100 
million, and the assumptions that are made about risk characterization 
may impair our abilities to address this problem and sufficiently 
protect our water supply.
  It is problems such as this that illustrate the consequences--
sometimes fatal consequences--that are in store for the American people 
if a stranglehold is applied to the regulatory process.
  We should also remember that there are scores of other regulations 
that go through without controversy and should not be caught in a big 
net that would require needless scientific evaluation and analysis that 
would impede their promulgation.
  Indeed, sometimes Government regulations can be deregulatory in 
nature, such as those regulations that would clarify and simplify the 
Federal Tax Code, or regulations that might be associated with Federal 
legislation to reduce paperwork burdens for small businesses. That is 
the direction of many of our regulations today.
  Last year, the Federal Election Commission promulgated a regulation 
that prohibits Members of Congress from converting campaign 
contributions into their own personal rainy day slush funds. That is a 
good regulation and the sort that should not be impeded by unnecessary 
cost-benefit analyses and risk assessments.
  The Department of Veterans Affairs will soon be issuing guidelines 
for determining eligibility for certain benefits for veterans of the 
Gulf war who have experienced symptoms of the mysterious illness known 
as the Persian Gulf syndrome. Again, this is a regulation that I do not 
think anyone would want to be slowed by new process requirements.
  The Consumer Product Safety Commission has thankfully kept thousands 
of dangerous toys off the market that could be harmful to children. The 
Department of Agriculture is considering long overdue regulations to 
improve and modernize the Federal meat inspection system.
  I think such changes are crucial if we are to improve the level of 
protection provided to the American people from bacterial food-borne
 diseases that can in the worst cases result in death for our most 
vulnerable population.

  There are clearly a large number of regulations that need to be 
implemented and should be implemented in a relatively quick and 
efficient manner. Such regulations are critical for protecting the 
health and safety of this Nation.
  As others have correctly pointed out, this issue has a tradition of 
being handled in a bipartisan fashion in the U.S. Senate. In 1982, the 
Senate approved S. 1080, the Leahy-Laxalt legislation by a 94 to zero 
margin.
  Then, just 3 months ago, the Government Affairs approved a bill by a 
margin of 15 to zero that the senior Senator from Maine, Senator Cohen, 
referred to as a restoration of common sense.
  Unfortunately, the bill that was considered by the committee I serve 
on, the Judiciary Committee, was much more than any sort of reform 
bill. I had the feeling it was not a reform bill--it was a dismantling 
bill. A dismantling of our regulatory framework. It is not the sort of 
bill that I believe the American people would support if they knew all 
the details.
  I am pleased that some of the excessive provisions of that 
legislation have been dropped and are not a part of the latest Dole-
Johnston package. Unfortunately, the Dole-Johnston proposal, as I 
understand how it currently stands, does contain several provisions 
that I believe could hamstring the ability of Government agencies to 
adequately protect the health and safety of the American people. I know 
the Senator from Louisiana has strong feelings about this, but let me 
just mention a couple of my concerns. I will certainly listen to any 
responses he has, as the days goes on.
  I think the issue of judicial review and how it has been addressed in 
different proposals best illustrates the difference between how you can 
improve the regulatory process and how you can paralyze the regulatory 
process.
  Let me say at the outset that I support the ability of a person 
subject to a government regulation to ask a court to review the 
rulemaking record and determine if an agency has followed the proper 
procedures for issuing a regulation. I have always supported the 
concept of expanding an individual's access to our judicial system.
  What I do not support is allowing a well-financed business interest 
with a legion of attorneys to file continuous lawsuits to paralyze an 
agency and prevent that agency from issuing a rule that will benefit 
the consumers, working people, children, and families of this country.
  I find it interesting that just a couple of months ago this body 
found itself in a frenzy to clamp down on the supposed litigation 
explosion in product liability cases. So when we are talking about 
defective products that a manufacturer knowingly markets, those on the 
other side want to limit an injured consumer's access to the judicial 
system.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. FEINGOLD. I will be happy to yield.
  Mr. JOHNSTON. I am glad my friend from Wisconsin raised the question 
of judicial review because, indeed, in the original Judiciary Committee 
bill, I believe it did open up areas to litigation on procedural 
matters on the question of compliance with the risk assessment 
protocol. And I think it did have the possibility of tying things up in 
court.
  But the present Dole-Johnston bill provides that compliance with risk 
assessment and cost-benefit may be considered by the court, and I am 
quoting 

[[Page S 9757]]
now, ``solely for the purpose of determining whether the final agency 
action''--that is the rule itself--``is arbitrary and capricious or an 
abuse of discretion.'' The key words here are ``solely for the purpose 
of determining whether the final agency action is arbitrary and 
capricious or an abuse of discretion.''
  The final agency action is appealable anyway, under the present law. 
This simply makes the risk assessment protocol part of the record which 
may be considered only in connection with the final agency action.
  Mr. FEINGOLD. I thank the Senator from Louisiana. I know he truly has 
made a good-faith effort to improve these provisions.
  I ask unanimous consent to have printed in the Record at this point a 
letter from the U.S. Department of Justice to the majority leader, 
dated July 11, 1995, from Mr. John Schmidt.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         U.S. Department of Justice, Office of the Associate 
           Attorney General,
                                    Washington, DC, July 11, 1995.
     Hon. Robert Dole,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Senator Dole: This letter provides the views of the 
     Department of Justice on the judicial review provisions of 
     the substitute amendment to S. 343, the Comprehensive 
     Regulatory Reform Act of 1995.
       As the agency with responsibility for representing the 
     United States and its various agencies in the courts, the 
     Department is obviously concerned whenever proposed 
     legislation has the potential to result in a large number of 
     new cases being introduced into the court system or in an 
     expansion of issues required to be litigated in cases which 
     are filed. Any proposal that covers nearly 100 pages of 
     legislative text and imposes significant new requirements on 
     every agency in the federal government, as S. 343 does, is 
     bound to increase substantially the volume of federal 
     litigation, and the complexity of cases which are litigated, 
     unless judicial review of agency compliance is carefully 
     delineated and controlled. Unfortunately, the numerous 
     judicial review provisions contained in S. 343 provide a host 
     of new opportunities for challenges to agency actions by 
     regulated entities and other participants in the regulatory 
     process. Because these provisions would increase the volume 
     and complexity of federal litigation arising out of the 
     regulatory process, adding burdens which are inconsistent 
     with the fundamental goals of this legislation, the 
     Department opposes the adoption of the Dole-Johnston-Hatch 
     bill.
       There are at least eight different provisions contained in 
     the substitute amendment that provide separate statutory 
     grounds for judicial review and which, in total, provide for 
     the courts to review a wide range of decisions made by the 
     agencies in the process of promulgating rules. The provisions 
     are: section 625, establishing review of cost/benefit 
     analyses and risk assessments as well as major rule 
     determinations; section 5, amending 5 U.S.C. Sec. 706, 
     establishing new standards under the Administrative Procedure 
     Act for review; section 4(b), amending 5 U.S.C. Sec. Sec. 604 
     and 611, establishing greater judicial review under the
      Regulatory Flexibility Act; section 3, amending 5 U.S.C. 
     553(m); section 623(e), establishing judicial review of 
     compliance with agency regulatory review rules; section 
     623(g), establishing the right to petition the courts to 
     extend the review period for a rule; section 623(h), 
     providing that an agency decision not to modify a major 
     rule is a final agency action and thus subject to judicial 
     review; and section 623(j), providing that an agency 
     decision to continue or repeal a major rule is a final 
     agency action and thus subject to review. How these 
     various provisions relate to each other provides an 
     additional layer of complexity that will undoubtedly be 
     raised in the courts as well.
       There are three provisions that are particularly 
     troublesome:


          review of cost/benefit analyses and risk assessments

       Section 625 provides for judicial review of an agency's 
     compliance with S. 343's subchapters on cost/benefit and risk 
     analyses. The language in the substitute appears to be a 
     significant improvement over that contained in the bill 
     reported by the Judiciary Committee; however, it will 
     continue to allow litigation over complex procedural 
     requirements to be filed on every major rule.
       There remain two basic problems which create the potential 
     for litigation under section 625. First, section 625 provides 
     that ``failure to comply with [the rules pertaining to cost/
     benefit and risk analyses] may be considered by the court 
     solely for the purpose of determining whether the final 
     agency action is arbitrary and capricious or an abuse of 
     discretion.'' When this section is read in conjunction with 
     the extraordinarily detailed and prescriptive requirements 
     for risk assessments and cost/benefit analyses contained 
     elsewhere in the bill, it is clear that the alleged failure 
     to comply with any of those requirements will be the subject 
     of litigation. Petitioners will surely argue that failure to 
     comply with the extensive procedural requirements is itself 
     arbitrary and capricious.
       This concern is compounded by the second problem. The 
     decisional criteria in section 624 generally prohibit 
     promulgation of a rule unless the agency head finds that it 
     adopts the least cost alternative of the alternatives meeting 
     the applicable criteria in section 624(b) or (c). Thus, the 
     agency's choice is limited to a single alternative, not a 
     range of
      reasonable alternatives. And while the bill dictates this 
     choice, it fails to acknowledge that the tools of risk 
     assessment or cost-benefit analysis inevitably produce 
     estimates which are subject to dispute between reasonable 
     people. Given the premise that only a single outcome is 
     legally permissible, any of the underlying estimates may 
     be outcome determinative. Thus, the combination of strict 
     decisional criteria and judicial review creates a 
     situation in which non-compliance with any of the many 
     procedural steps mandated by the legislation could well be 
     challenged as constituting an abuse of discretion.
       Another issue that should be noted is the provision in 
     625(e) permitting interlocutory review of agency 
     determinations that a rule is not a major rule. By allowing 
     interlocutory challenges, the bill will potentially allow 
     entities to frustrate the regulatory process with piecemeal 
     litigation.
       The Department strongly recommends language for section 625 
     similar to that in Sec. 626 of the Glenn/Chafee alternative 
     that would limit judicial review to whether a rule has been 
     properly classified as a major rule and to whether a risk 
     assessment or cost-benefit analysis has been conducted. Only 
     with this type of provision for narrowly-circumscribed 
     judicial review can we avoid the risk of embroiling every new 
     rule in a complex new layer of litigation and judicial 
     decisionmaking--thereby undermining the goal of simplifying 
     and improving the regulatory process which is the fundamental 
     objective of this legislation.


                        APA Standards of Review

       Section 5 of the Dole-Johnston-Hatch substitute would amend 
     5 U.S.C. Sec. 706 to alter the Administrative Procedure Act 
     standards of judicial review. In particular, it would amend 
     section 706(a)(2)(F) in a manner that could be read to 
     replace the current ``arbitrary and capricious'' standard of 
     review of agency finding of fact in informal rulemaking with 
     a new requirement that there be ``substantial support in the 
     rulemaking file, viewed as a whole, for the asserted or 
     necessary factual basis.'' The practical effect of this 
     change is unclear. However, we are concerned that it would 
     make the informal rulemaking process slower and more 
     burdensome, and increase the amount and complexity of 
     litigation over agency rules, without significantly improving 
     the quality of the rules. Furthermore, it simply is not 
     necessary to amend these provisions of the APA in order to 
     meet the goals of this legislation, i.e. to ensure
      the best available science is brought to the regulatory 
     process and to ensure that regulatory agencies consider 
     the costs and benefits of rules before they are imposed.


             review of regulatory flexibility requirements

       The Administration supports reasonable judicial review of 
     compliance with regulatory flexibility requirements. However, 
     section 4(b) of the substitute substantially rewrites the 
     Regulatory Flexibility Act to impose a supermandate which 
     will foster endless and needless litigation over whether a 
     rule ``minimizes significant economic impact on small 
     entities to the maximum extent possible.'' That provision, 
     combined with the new standards for judicial review contained 
     in section 4(b), will encourage even more litigation and open 
     many rules to attack. We are particularly concerned that this 
     provision also allows interlocutory challenges to proposed 
     rules. In addition, the provision would expand review to 
     situations in which the agency neither certified the rule nor 
     prepared a preliminary or final analysis. This would arguably 
     extend judicial review beyond the Regulatory Flexibility Act 
     to general matters concerning compliance with the notice and 
     public procedure requirements of the APA, for which judicial 
     review already exists. Further, the one year period for 
     seeking judicial review is too long and invites entities to 
     layer challenges to regulations instead of bringing all such 
     challenges by the time otherwise required for APA review.
       We are also concerned by the provision which mandates that 
     a rule be stayed if the agency has not completely complied, 
     within 90 days, with a court order to prepare a regulatory 
     flexibility analysis or take other corrective action. This 
     would apply even to technical errors, to failure to comply 
     with the deadline by just one day, and to situations where 
     ninety days would simply be insufficient time to comply. This 
     is inconsistent with APA practice which lodges discretion in 
     the judiciary to determine whether a stay of a rule or, in 
     the alternative, an extension of time to comply, would be 
     appropriate under the particular circumstances.
       For the reasons set forth above, the Department strongly 
     opposes adoption of the Dole-Johnston-Hatch bill.
       The Office of Management and Budget has advised that there 
     is no objection to the submission of this letter from the 
     standpoint of the Administration's program.
           Sincerely,
                                                  John R. Schmidt.

  Mr. FEINGOLD. Mr. President, that does certainly acknowledge--in 
fact, I will read the language--the fact that 

[[Page S 9758]]
there is improvement but there are still complexities involved. The 
letter states, in part, on page 2, that:

       Section 625 provides for judicial review of an agency's 
     compliance with S. 343's subchapters on cost/benefit and risk 
     analyses. The language in the substitute appears to be a 
     significant improvement over that contained in the bill 
     reported by the Judiciary Committee; however, it will 
     continue to allow litigation over complex procedural 
     requirements to be filed on every major rule.

  So, Mr. President, I recognize the Senator from Louisiana is 
attempting to address this. I have not finally concluded that he has 
not addressed it completely. But the Department of Justice still 
believes the complexity involved here, I think it is fair to say, could 
invite a great deal of litigation and, I fear, give quite an advantage 
to the large interests that are more likely to have the attorneys and 
the wherewithal to fight these battles and jam up the regulatory 
process.
  Mr. GLENN. Will the Senator yield?
  Mr. FEINGOLD. I am happy to yield to the Senator from Ohio.
  Mr. GLENN. I want to be certain I understood, the Senator asked that 
the letter be printed in the Record; is that correct?
  Mr. FEINGOLD. I did ask unanimous consent it be printed in the 
Record.
  Mr. GLENN. I think that is good, because a moment ago the Senator 
from Louisiana was talking about how the judicial review requirements 
have been cut back, yet this letter from the Justice Department points 
out eight separate areas for judicial review, and lists them very 
specifically. They also list the areas that give them particular 
concern: Review of cost-benefit analysis and risk assessments, the APA 
standards of review, and the review of regulatory flexibility 
requirements.
  I know this is a lengthy letter. They give it in detail. But to those 
who think we are not increasing judicial challenges with S. 343, I 
think they should read this.
  This is a letter dated July 11 to the majority leader. It spells out 
in great detail the specific provisions in S. 343 that will result in 
unnecessary judicial review. That is the opinion of Department of 
Justice.
  I am glad the Senator is putting that in the Record.
  Mr. FEINGOLD. I thank the Senator from Ohio.
  I recognize that the Senator from Louisiana made a real effort to 
improve this process. I think he made a fair comment earlier today. It 
is not a sufficient response to his effort to simply say this bill goes 
too far. You have to be able to point out where it may go too far. I 
agree with the Senator from Ohio. Perhaps the guidance of the 
Department of Justice identifies those areas of continuing concern that 
we have to address before we make a final judgment about whether this 
bill is in the right shape to be the vehicle for regulatory reform that 
we all wish.
  Let me continue. I have noticed in the 104th Congress the tremendous 
desire in this body when it came to product liability to limit 
litigation, to unclog the courts. That was the real focus of that bill. 
That was the justification frankly for something I thought took away 
the rights of a lot of people to potentially sue for damages and get 
their fair return and being made whole after they have been hurt by a 
product.
  I notice that those who support changing our habeas corpus laws 
believe that a prisoner awaiting execution should be given one shot and 
one shot only at having his case reviewed by a high court. So 
apparently when we are ready to take a person's life away--and in too 
many cases an innocent person's life--the other side wants to again 
limit access to courts.
  But when corporate America and well-financed business interests are 
involved, those on the other side--I want to be cautious here--suddenly 
want to enable those interests to file lawsuit after lawsuit after 
lawsuit.
  There is something wrong here. Do we try to unclog the courts or not?
  When you take a close look at some of the judicial review proposals 
that are out there, you begin to wonder what the litigation departments 
of the Federal agencies are going to begin to look like should any of 
these proposals become law.
  How many attorneys are the agencies going to have to hire as they 
find themselves becoming more familiar with a courtroom than they are 
with their own offices? How many attorneys and other staff are the 
agencies going to have to hire to deal with the mountain of petitions 
that will pour into the agencies should the wrong bill be passed?
  We do not know the exact answers to these questions. But considering 
the tremendous effort that the Clinton administration has made to 
shrink the size of Government--the smallest it has been since the 
Kennedy administration--considering the tremendous gains made by the 
Vice President's reinventing Government effort and considering the 
legislation passed last year that will reduce the size of the Federal 
work force by 250,000 employees, I think we should be extremely careful 
not to pass legislation that will nullify the progress that has been 
made on cutting back on the size of the Government.
  I do not want to make these Federal agencies bigger than they need to 
be. I do not want to have to vote on larger appropriation bills each 
year to finance new Government bureaucrats and all of these procedural 
requirements and scientific analyses they must complete to meet the 
requirements of this bill.
 And to get the work of the Government done. I do not think that is 
what the American people had in mind when they hear words such as 
``reform'' and ``efficiency.''

  I am also concerned about the several provisions in this bill that 
seem to have little to do with the notion of reforming the regulatory 
process.
  In fact, S. 343, the Comprehensive Regulatory Reform Act of 1995, as 
introduced by the majority leader on February 2, was just 32 pages 
long. That bill contained what many believe are the key ingredients of 
a strong regulatory reform bill. It contained requirements for cost-
benefit analyses, it contained requirements to perform risk 
assessments.
  It had judicial review and it had a mechanism for those who are being 
regulated to petition an agency to review an existing regulation.
  Interestingly enough, the underlying legislation we are considering 
today has bloated to nearly 100 pages. It still has cost-benefit 
analyses, risk assessment, judicial review, a petition process and many 
other provisions originally a part of S. 343 as it was first 
introduced. But a host of new provisions, many of which have little or 
nothing to do with reforming the regulatory process, have been thrown 
into this pot luck legislation that has tripled in length since 
originally introduced.
  One example is the effective repeal of the Delaney clause in this 
legislation. The Delaney clause, as many observers agree, is no longer 
consistent with modern scientific methods of detecting residues of 
pesticides, fungicides and insecticides on processed foods.
  The zero-risk standard prevents use of chemicals that have been used 
for many years simply because new technology allows us to more easily 
detect minute levels of residues.
  It provides for an inconsistent standard for EPA to set tolerances 
for pesticide residues in processed foods versus raw foods.
  The current law does not provide for consideration of actual 
consumption patterns of various foods nor does it take into account the 
dietary intakes of different segments of our population.
  And it only addresses cancer risk, rather than other potential health 
effects of food additives. These are problems that should be addressed.
  However, despite these problems with the Delaney clause, a stand 
alone repeal of the provision--as included in the Dole-Johnston 
legislation--will do nothing to improve the safety of our food supply 
and simply does not belong in legislation intended to address the 
inadequacies of the existing regulatory process.
  The fact is that there are incredibly complex and important issues 
that should be considered as a package of pesticide reform legislation 
in the appropriate committees.
  When I served on the Agriculture Committee, I had a change to hear 
very compelling testimony on the types of ranges of issues that should 
be included.
  For example, farmers fear that more and more of their crop protection 
chemicals will be taken without adequate alternatives. This issue needs 
to be addressed. But repealing Delaney only allows some chemicals to 
remain on the market--it does nothing to address the environmental side 
of the 

[[Page S 9759]]
equation that farmers are faced with on a regular basis.
  Farmers also want to know that so-called minor use pesticides will 
continue to be available--they want reregistration to be made less 
burdensome and yet consumers want to be assured that those chemicals 
are safe despite potentially expedited registration processes. 
Repealing Delaney does not address this so-called ``minor use'' issue.
  Consumers also want to know that the way in which we set tolerances 
for chemicals used in food production takes into account the needs of 
our most vulnerable populations infants and children.
  This is what we heard so much about in the Agriculture Committee. A 
lot of studies and flies are based on adult males, not necessarily on 
the tolerances that children can absorb of certain pesticides and 
substances. Again, repealing Delaney does not address that issue.
  Consumers want to know that all health risks have been addressed in 
the process of setting tolerances for chemicals, reproductive and 
developmental impacts as well as carcinogenic risks. Repealing Delaney 
does not solve that problem.
  The bottom line, Mr. President, is that there is a lot of work that 
needs to be done with respect to the regulation of chemicals used in 
food production and processing by the EPA and the FDA. But that sort of 
reform needs to be done as part of a comprehensive package that 
addresses the issues of importance to manufacturers, food processors, 
farmers and consumers.
  It should not be inserted as a phantom paragraph in a hundred-page 
bill that seeks to reform the process by which regulations are issued.
  In closing, I want to reiterate my sincere and spirited support for 
reforming the regulatory process that is currently in place. I do not 
believe that the current system is acceptable--the need for reform is 
clear and imperative.
  I think what we need is to rededicate ourselves to finding that 
proper balance between needed health, safety and environmental 
safeguards, and granting greater relief to those who are being 
regulated by rules that have little or no rational basis.
  I hope that as this bill is considered now and in the coming days, 
that Members from both sides of the aisle can get together, roll up our 
sleeves and find an alternative
 that really does achieve the balance that I think we can support.

  I thank the Chair, and I yield the floor.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Ohio.
  Mr. GLENN. Mr. President, I wish to specifically address the Johnston 
substitute for the Daschle amendment that was proposed earlier today.
  Let me say in starting out that I agree with Senator Johnston's 
intent. I wish there was some other way to do this. I wish that what he 
is proposing was a freestanding amendment; I could probably vote for 
it. I do not want to commit to that at this point, but it would make it 
much more palatable if it was put in in the form of a freestanding 
amendment instead of trying to replace Senator Daschle's amendment.
  I agree with Senator Johnston completely that we want to cut down on 
a repeat of expensive procedures, and that is what he attempts to do 
with this amendment.
  I also understand his concern that he put this in to replace the 
Daschle proposal because he is afraid that, if the Daschle proposal 
passes with specific reference to food pathogens such as E. coli, 
salmonella, and so on, and this passes, it opens the door to a lot of 
other rules--cryptosporidium and a lot of other proposals. There is 
almost no end to the number of things that could be brought up as 
exceptions to S. 343, so I appreciate that.
  At the same time, having said that, I disagree with replacing the 
Daschle amendment and disagree specifically with the proposal by my 
colleague from Louisiana, Senator Johnston, for the following reasons.
  The first involves risk. The Department of Agriculture informs us 
that whether or not they have to do a second risk assessment at the 
final rule stage, they will not in any event be able to say that the 
risk assessment that they have already done, which the Senator from 
Louisiana refers to, complies with the requirements of S. 343 as it 
would be amended by the Dole-Johnston substitute. They would have to go 
back and comply with S. 343, such things as least-cost analysis, new 
procedures for cost-benefit analysis, and every one of these steps is 
subject to judicial challenge along the way. So it changes things 
dramatically.
  The Department of Agriculture says they could not just use the old 
information that they already have developed because there are now new 
requirements in S. 343, so it just would not work. This part of Senator 
Johnston's second-degree amendment does nothing to protect the issuance 
of USDA's meat inspection rule. It just would not do it. So that is the 
first point.
  The second point. Moving the effective date to April 1 for new 
proposed rules is certainly an improvement from an across-the-board, 
immediate effective date. I agree with that. Unfortunately, I do not 
believe it is enough. The requirements of this bill cannot be met 
within a few weeks or even a few months because the new rulemaking 
procedures, new least-cost rule criteria, preparing for a new level of 
judicial review, these all require months and months and months of new 
extra work.
  So this new proposed effective date will let already-issued proposed 
rules through the process without delay. It will, however, effectively 
stop all other new rules that are in the pipeline. Agencies will have 
to go back and start over with their proposals.
  Now, this is not right. And it will delay a large number of health 
and safety rules and just waste agency resources.
  Now, lest we think this is just my opinion and I am making this up, 
let me give a few examples that have come to us so far. This is not a 
complete listing by any means, but by setting April 1, which the 
Johnston proposal does now, we then cut out such things as some of the 
mammography regulations; we cut out some with regard to flammability 
standards for upholstered furniture; we cut out some regulations with 
regard to cables and lead wires that particularly protect children. 
These are just three examples here of rules that would not go into 
effect, would not be exempted by the April 1 deadline.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. GLENN. Yes.
  Mr. JOHNSTON. Is the Senator requesting that I withdraw the second-
degree amendment and vote up or down on the Daschle amendment?
  Mr. GLENN. No. I said that I was sorry that the Senator's amendment 
was not proposed as a completely separate amendment, that we should let 
the Daschle amendment go and have a vote of its own, and that I might 
even be able to support the Senator's proposal. I favor the general 
proposal of trying to cut out unnecessary paperwork, unnecessary risk 
analysis, unnecessary cost-benefit analysis, to cut those out and to 
prevent duplicate paperwork. Now, I would have to go through and read 
your amendment to be specific.
  Mr. JOHNSTON. Would the Senator rather go ahead and vote on Daschle 
right now and propose it as a separate amendment?
  Mr. GLENN. I would have preferred that. I said that earlier this 
morning in our private conversation. What I objected to specifically 
was cutting Daschle out for what he proposed. This substitute for 
Daschle is not a second-degree amendment. It substitutes for Daschle.
  Mr. JOHNSTON. Mr. President, if the Senator will further yield, I am 
inclined at this point to pull down the amendment. Frankly, it is 
likely that there will be another second-degree amendment which will 
not include the April 1 cutoff date. I am now advised that the April 1 
cutoff date, even though agreed to by some on the other side of the 
aisle, has not been cleared, so in any event it would not pass. I think 
that is very unfortunate because I think it was a complete fix for this 
rule as well as other rules.
  But if my colleague from Ohio wants it withdrawn and my colleagues on 
the other side of the aisle want it withdrawn, it is not going to pass 
anyway, 

[[Page S 9760]]
so if that is what I am being asked to do--I want to be sure that if I 
do this now, that is what everybody wants to do.
  The Senator from Ohio would like that done?
  Mr. GLENN. I have made my comments about it earlier. I am not 
advising the Senator what to do. I had my objections this morning that 
your amendment did away with Daschle. That has been my concern all the 
way through this, because I think his amendment is good. I think it 
corrects the inadequacy of the amendment that we passed yesterday.
  I support the Daschle amendment for all the reasons I stated earlier 
in the Chamber today. If the Senator wants a vote on his amendment, we 
can have a vote on his amendment. I think there are some problems with 
it that I was about to go into in more detail. If he wishes to withdraw 
his amendment, then we could proceed with Daschle.
  Mr. President, while the other conversations are going on, I will 
proceed with some of these examples of what would happen if we set the 
1 April date that is proposed in the Johnston amendment.
  Here is one on mammography that would not fit under the exemption; it 
would be held up; it would be delayed. Let me read this.
  The Mammography Quality Standards Act--MQSA, as it is called--of 1992 
requires the establishment of quality standards for mammography 
clinics, covering quality of films produced, training for clinic 
personnel, recordkeeping, and equipment. MQSA resulted from concerns 
about the quality of mammography services that women rely upon for 
early detection of breast cancer. FDA is planning to publish proposed 
regulations to implement the MQSA. The potential magnitude of these 
regulations is substantial. Improving the quality of mammography 
translates directly into early detection of breast cancer, and earlier 
detection of breast cancer increases the likelihood of successful 
treatment and survival.
  An interim rule in this regard was published December 21, 1993, and 
publication of the proposed regulations is planned for October 1995. 
Under the Johnston amendment, the Johnston replacement for the Daschle 
amendment, this is well after the 1 April deadline so this would not be 
exempted. They would have to go back then and redo all of their 
previous analyses under the new guidelines, the new directions given in 
S. 343--unnecessary delays, and all the work that has been done 
already, unnecessarily so.
  Let me bring up another one that is different: Flammability standard 
for upholstered furniture. The Commission is in the process of 
developing a proposed flammability standard for upholstered furniture. 
The purpose of the standard is to reduce the deaths and injuries that 
result from fire incidents involving upholstered furniture started by 
small open flames--matches, candles, lighters, so on.
  The beneficiary of the rule: The potential victims of house fires 
would benefit from this rule. In 1992, there were an estimated 80 
deaths, 490 injuries, $48.3 million worth of property damage associated 
with open-flame ignition of upholstered furniture. A substantial 
portion of these are believed to be related to small flame sources.
  The impact of S. 343 would keep the Commission from doing the work 
necessary to develop this standard until after the moratorium period. 
The delay could result in additional fire-related injuries and deaths 
that could have been avoided.
  Now the date: The Commission issued an advance notice of proposed 
rulemaking on June 15, 1994, and is working toward a proposed rule. 
When that would be put out would obviously be after the April 1 
deadline.
  Let me give another example: cables and lead wires. The Food and Drug 
Administration 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 cannot be plugged directly into a power 
source or electrical outlet.
  The agency has received several reports of death and injury resulting 
from misuse of these devices, including one death and two cases of 
serious electrical burns when unsupervised children plugged cables from 
a home apnea monitor into outlets; one death in a hospital when 
electrocardiogram cables were plugged into an infusion pump power cord; 
and a death when a neonatal monitor's lead wires were plugged into a 
power cord for another device.
  Advance notice of proposed rulemaking was issued on May 19, 1994. The 
proposed rule was published June 21, 1995, comments to be received by 
September 8, 1995. Obviously, that would not go into effect. It would 
not be permitted to go into effect without all the additional analyses 
provided in S. 343.
  Mr. President, if we are going to have a reasonable effective date, I 
think we should do what we have in the Glenn-Chafee bill. We should put 
the effective date out 6 months beyond passage of the legislation to 
allow agencies some reasonable time to put into place the new 
requirements to administer the legislation.
  The amendment proposed may let the meat inspection rule through; too 
many others will still be stopped, including these I just mentioned.
  Another example. There are also some other problems with S. 343. 
There is a general problem illustrated by the debate today and 
yesterday. The amendments offered yesterday, and Senator Johnston's 
second-degree amendment this morning, show without a doubt that the 
proponents of S. 343--and I think they know it--have a less than 
satisfactory bill. They know it is a bad bill. I think it goes too far, 
and I think they also know it goes too far, because each time we get 
close to raising issues or offering amendments, as happened yesterday, 
they leap up to modify their own bill to avoid the inevitable 
conclusion on the floor that their bill is flawed.
  I think the bill they brought to the floor would harm public health 
and safety. They may not be willing to admit that, but I think they 
know it is true nevertheless, and the examples I gave this morning of 
what would happen to the change to it that is proposed by the Johnston 
amendment, which replaces the proposal made by Senator Daschle earlier 
today, would go further in that direction, as I see it.
  Mr. President, I want to point out one other thing. We talk about 
these amendments and rules and regulations and what would be required 
of the agencies to comply with the requirements of this bill.
  Let me start off by saying that in committee, we had testimony that 
the estimate is that for each major rule and regulation that is put out 
under the version of regulatory reform that passed the House, it would 
cost somewhere around $700,000 to put the rule out. That was questioned 
by some people when I brought that out on the floor yesterday, and we 
discussed it in private back here. But let me give an example.
  The Clean Water Act was passed back in 1972. There was an amendment 
to it later in 1972. There was another amendment to the Clean Water Act 
in 1977, and another one in 1987. It has been 8 years from 1987 to the 
present time. Just one regulation put out pursuant to that Clean Water 
Act, and I do not have a listing of how many regs were put out overall. 
But one regulation, that pertaining to effluent limitation guidelines 
and standards for metal products and machinery put out under that act, 
has taken 8 years to do.
  This thick document that I hold before you is just the index for it. 
It just went into effect April 1995. That is just the index. I wish we 
had time to go through all these pages. These are single-spaced pages, 
one after the other, all the requirements.
  This is just the development document for how they were going to go 
about it. This is pursuant to laws that we passed. If we want to see 
who is at fault for a lot of this, look in the mirror.
  This is just a development document for the proposed effluent 
guidelines and standards for the metal products and machinery phase I 
point source category. That is just one regulation.
  Do you know how much shelf space is taken up with that one 
regulation, that one single regulation put out pursuant to what we 
passed here in the Clean Water Act? I stepped off the width of this 
Chamber a while ago, and it comes out to somewhere around 112 to 115 
feet of pacing here. That one regulation has shelf space of 123 feet 
just for the documents involved with one regulation. 

[[Page S 9761]]
Yet, we passed yesterday afternoon a new requirement in this bill that 
would open it up for hundreds and hundreds of new regulations that 
would have to meet the requirements of S. 343.
  Now, sometimes I do not think we know what we are doing around here. 
In other words, just the shelf space for this regulation would be about 
10 feet longer than from that wall to this wall in the Senate Chamber. 
I know anybody that happens to be watching this discussion on TV does 
not have an idea of what this dimension is here. But it is about 45 
paces across here to get that kind of distance, taking about a yard per 
pace. That is one regulation we are talking about, under the Clean 
Water Act.
  I do not know how many regulations are required. I think there are 
probably several hundred. I do not know the exact number, but I am sure 
there are at least several hundred under the Clean Water Act that we 
passed right here. Can they cut back on that and can they get by with 
60 feet of shelf space? I do not know. I know that what we are going to 
require with this legislation whole new requirements, a whole new cost-
benefit analysis, whole new risk assessment, least cost analysis--that 
means agencies have to develop a number of additional options to see 
which one is least costly. You cannot make more judgment and say we go 
with the one we think is most likely to be successful and exercise some 
commonsense judgment. Now we are going to have to develop several 
options under each one of these things, and we will probably double 
that space across the Chamber that would be needed to hold all these 
analyses.
  That is just an example of what we are requiring here with some of 
this legislation. At the same time, we are talking about cutting down 
the agencies, cutting back on their budget, cutting people, getting 
people out of Government. Through our actions here, we are loading on 
additional requirements that are almost unbelievable. Can you imagine 
one regulation that requires 123 feet of shelf space and requires 
documents like I held up here just for the index?
  That is just one under the Clean Water Act of 1972. And the 
subsequent amendments, and the final amendment that requires this was 
put out 8 years ago, and the final rule is coming out in 1995.
  So, Mr. President, I am very concerned about where we go with this. I 
think we take a much more logical approach with S. 1001, the Glenn-
Chafee bill. We would not leave out certain things, such as I mentioned 
here on mammography; flammability regulations, which protect families 
in homes; on the cables and lead wires; medical machinery, and so on. 
Those would all be left out in S. 1001. They would have to go back and 
go through this whole process over again if we passed the amendment 
submitted by the Senator from Louisiana to S. 343.
  So, for all these reasons I have just given, I oppose this. I hope we 
can have, but I do not know whether the Senator from Louisiana still 
wants, a vote on his amendment. He talked about possibly withdrawing it 
so we can get on with a vote on the Daschle amendment.
  Mr. President, I ask unanimous consent that an article from the July 
17, 1995 Business Week be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                     Are Regs Bleeding the Economy?

       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.).
       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 of the U.S. 
     foundry supply and equipment industry, making the regulation 
     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 economical way to meet the standard,'' 
     explains Alex Knauer, 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. Smoke-stack 
     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 

[[Page S 9762]]
     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-
     sulfer 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. GLENN. I yield the floor.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER (Mr. Kempthorne). The Senator from Washington 
is recognized.
  Mrs. MURRAY. Mr. President, I will speak on the floor later on the 
entire regulatory reform bill and its affect on the American public.
  I rise today to speak specifically to the Daschle amendment because 
it affects me personally and I feel very strongly about it. The 
underlying Daschle amendment on the floor for debate right now takes us 
a step closer to protecting a particularly vulnerable segment of our 
population--our children--from the most American of foods, the 
hamburger.
  The Center for Disease Control estimates that thousands of people 
become ill each year due to E. coli-contaminated meat. In fact, one of 
the first tough issues I had to deal with upon my election to the U.S. 
Senate was visiting young children in hospitals in my hometown of 
Seattle and in Tacoma who had innocently eaten Jack in the Box 
hamburgers and then found themselves in critical condition after being 
infected by E. coli. Three of those children died in that outbreak. All 
I could do was stand there and assure those families that I would try 
to do all I could to make sure that this would not happen to any other 
child in our State or in this country.
  Since that outbreak in the Pacific Northwest, this country has 
suffered 50 outbreaks of E. coli in 23 other States. E. coli repeatedly 
appears in ground beef that has been inspected under current meat 
inspection methods.
  But help is finally on the way. This past January, USDA proposed a 
new meat inspection system that requires modern food handling 
techniques, safe storage, and scientific testing at slaughter houses 
and meatpacking plants. I think we all know that such a revised 
regulatory system is long overdue. But I am afraid that even with the 
amendment adopted yesterday by this body, this meat inspection 
regulation will be delayed because its opponents may--and very likely 
will--petition and subject this rule to the cumbersome review required 
by this bill. And any delay in this vital regulation's implementation 
will allow more children to become ill. Consequently, this Congress 
could become responsible for the illness and perhaps the death of 
thousands of children in this country.
  I do not pretend to be an expert on the intricacies of this 
regulatory reform bill. I do know, however, that I have given my word 
to families who have lost children due to our current regulatory 
system's failure. I promised them I would work to protect children from 
lethal food products. So I strongly support the Daschle amendment 
ensuring the most expeditious implementation possible of E. coli 
regulations.
  Mr. President, I intend to keep my word to the families who lost 
children in my State, who ate hamburgers that were tainted by E. coli. 
I intend to do it by voting for other amendments to S. 343 that will 
ensure that the Government works efficiently and cost effectively and 
that it will encourage general protection of human health and our 
environment.
  We have to remember that it is our responsibility as the Nation's 
leaders to have commonsense protections in place and to ensure that 
those are there for all of our constituents. So I urge all of my 
colleagues to vote for the Daschle amendment.
  I yield the floor.
  Mr. KERRY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KERRY. Mr. President, I thank the distinguished Chair.
  Mr. President, I have listened with some interest, as I am sure other 
people have, while the distinguished Senator from Utah has come to the 
floor with a list of egregious regulatory excesses, which I think he 
has called his top 10 list of silly regulations. And as one listens to 
those silly regulations, it is pretty easy to sit back and say, hey, 
that is pretty silly. Why is my Government doing silly things like 
that? It builds up resentment to regulations, and people say, wow, that 
is what this bill is all about. This bill will get rid of those silly 
regulations.
  Now, the Senator from North Dakota is going to be here at some point 
in time, and he is going to discuss a few of the silly designations 
from the Senator from Utah. I would like to take on a couple, if I can, 
and I would like to try to substitute reality for the quick hit, easy 
perception. I begin that, Mr. President, by saying, as a number of us 
have said on this side of the aisle for a number of days, there are 
excesses in our regulatory process. And nobody in this Chamber denies 
that, and nobody in this Chamber is going to deny the need to have 
regulatory reform. There are stupid things that happen, and when we 
find them, we ought to get rid of them.
  But what disturbs me, Mr. President, is to see an opportunity taken 
to label as sort of the top 10 silly items, items which when you look 
at them are not actually so silly after all or do not even fit or 
belong in that kind of category.
  Now, I would like to go through a couple of those and set the record 
straight and factually look at some of the supposedly silly 
regulations, and perhaps my colleague from Utah would be willing to 
look at the real language and acknowledge that there may be a rationale 
there that has not been properly characterized in his top 10 silly 
list.
  I am reading from the Congressional Record of June 28 when the 
Senator from Utah talked about the Head Start Program. He pointed to a 
church in Harlem, the Abyssinian Baptist Church, that struggled ``for 4 
years to get approval for a Head Start program in a newly renovated 
building. Most of those 4 long years was spent arguing with Federal 
bureaucrats concerning the dimensions of the rooms.''
  Mr. President, that is the Senator's rhetoric. Here is the reality: 
According to the New York City Agency for Child Development, there are 
not any Federal ordinances or regulations that apply to that building 
or to the rooms. None. Zero. In fact, it was local regulations--not 
Federal regulations--with which they were dealing and which were 
responsible for the delays.
  According to Richard Gonzalez, the Assistant Deputy Commissioner 
responsible for running Head Start, ``The Federal Government did 
nothing to hold up this project.'' Yes, it took 4 years for the program 
to become operational, but the 4 years were not spent arguing about the 
dimensions of the rooms, they were spent finding sponsorship for the 
program; obtaining a lease agreement between the church, the owner of 
the property, and the city of New York; and completing the license 
process with the various city agencies.
  So we have rhetoric and we have reality. This is the reality, Mr. 
President. I submit that that greatly changes the perspective of the 
way in which we ought to approach this debate.
  On the same day, June 28, the Senator from Utah cited the use of 
Braille on drive-through cash machines. Now, that is pretty silly on 
its face, is it not? It is nice to come to the floor of the Senate and 
make fun of the notion that Braille is required on anything to 

[[Page S 9763]]
do with a drive-through machine because, obviously, blind people are 
not driving.
  That is basically the thrust of the comments that were made on the 
floor. It sounds absurd and the rhetoric can make it pretty laughable, 
and people can get angry at regulations.
  But what is the reality, Mr. President? The reality is that the 
banking industry itself recognized the need for these machines for 
passengers and for walk-up users. There are plenty of places in America 
where you have just one machine at a facility and you have a walk-up/
drive-in teller, and people walk to the teller machine, just as they 
drive up to it.
  In point of fact, because many blind people or visually impaired 
people do not want to be required to give up their privacy, they may be 
riding in a car and the car drives them to the automatic teller machine 
[ATM]. But they do not want to give their personal identification 
number to a stranger, so they get out of the car and they walk up and 
they use the ATM machine.
  What happened here on the floor is almost insulting to those who are 
visually impaired, who have won the right which the banking industry 
has suggested is necessary.
  In discussing the regulation, this is what the American Banking 
Association said:

       It is entirely conceivable and not unexpected that a 
     passenger may exit the automobile to use the drive-up ATM, 
     and this passenger may be an individual who is visually 
     impaired.

  The American Foundation for the Blind brought to my attention that 
despite what appears to be an obvious conclusion, blind or visually 
impaired people do use drive-up ATM machines. They may take a cab to 
the bank. They may ask a friend or a relative to drive them. But bank 
transactions are very personal and they clearly want to contain their 
pin number to themselves, so they say many times drive-up ATM machines 
are the only ones available after regular banking hours.
  Now, the regulation that applies to this, Mr. President, only 
requires one machine of several available to have the Braille. If that 
machine is indoors, that satisfies the requirement. So there is no 
requirement that a machine that is drive-up must have the Braille. The 
only requirement is that one machine be available to the visually 
impaired. Is that a silly requirement? Not quite as silly as the 
Senator seemed to want to make it out to be.
  Another example of rhetoric versus reality: The Senator from Utah 
said that Government regulations on the sale of cabbage total almost 
30,000 words.
  Mr. President, I ask unanimous consent that the Government 
regulations on cabbage be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Agricultural Marketing Service, USDA


                                general

     Sec. 51.4120. General.

       (a) The accompanying grades for cabbage are intended to 
     facilitate transactions between growers and processors who 
     may wish to use a purchasing system based upon the quality of 
     cabbage delivered. These grades are an out-growth of the 
     widely accepted principle that price should be directly 
     proportional to quality. The grower who delivers high quality 
     cabbage deserves a premium price because such cabbage enables 
     the processor to pack a better quality proudct.
       (b) In the application of these standards it is assumed 
     that in most instances sellers will not sort their cabbage 
     into separate lots of U.S. No. 1 and U.S. No. 2 grades before 
     delivery to the buyer, and that the buyer will pay a certain 
     price for the percentage of each in the lot as determined by 
     inspection. Upon delivery, the inspector will simply sort 
     representative samples taken from each lot, and determine the 
     percentage of each grade. Final settlement would then be made 
     by applying the percentage of each grade to the total weight 
     of the lot, and then applying the contract prices established 
     for each grade. Under such a procedure, there is no need for 
     tolerances.
       (c) It will be noted, however, that the standards provide 
     tolerances but these apply only when a grower or shipper has 
     actually sorted his cabbage into separate lots of U.S. No. 1 
     and U.S. No. 2 grades before delivery to the buyer.


                                 grades

     Sec. 51.4121. U.S. No. 1.

       ``U.S. No. 1'' consists of heads of cabbage which are firm, 
     and well trimmed; which are free from soft rot, seedstems, 
     and from damage caused by bursting, discoloration, freezing, 
     disease, birds, insects, mechanical or other means. Unless 
     otherwise specified, the weight of each head of cabbage shall 
     be not less than 3 pounds. (See Sec. 51.4124.)

     Sec. 51.4122. U.S. No. 2.

       ``U.S. No. 2'' consists of heads of cabbage which are not 
     soft; which are fairly well trimmed, free from soft rot, 
     seedstems, and from serious damage
      caused by bursting, discoloration, freezing, disease, birds, 
     insects, mechanical or other means. Unless otherwise 
     specified, the weight of each head shall be not less than 
     2 pounds. (See Sec. 51.4124.)


                                 culls

     Sec. 51.4123  Culls.

       ``Culls'' are heads of cabbage which do not meet the 
     requirements of either of the foregoing grades.


                               tolerances

     Sec. 51.424  Tolerances.

       (a) For the purpose of determining compliance with one of 
     the foregoing grades the following tolerances, by weight, are 
     provided in order to allow for variations incident to proper 
     grading and handling:
       (1) For defects. Ten percent for cabbage in any lot which 
     fails to meet the requirements of the grade, including 
     therein not more than 3 percent for cabbage which is affected 
     by soft rot and including in this latter amount not more than 
     1 percent for cabbage which is seriously damaged by soft rot.
       (2) For size. Ten percent for cabbage in any lot which 
     fails to meet the specified minimum size.
       (b) In the application of these standards to determine the 
     percentages of cabbage in any lot which meet the requirements 
     of the respective grades no tolerances apply.


                              definitions

     Sec. 51.4125  Well trimmed.

       Well trimmed means that the head shall be free from loose 
     leaves and the stems shall be not longer than one-half inch. 
     Loose leaves shall be considered those leaves which do not 
     closely enfold the head. Heads of cabbage which show evidence 
     of having been well trimmed in the field shall be considered 
     as meeting the trimming requirements although they may have 
     some leaves which have become loose in the process of 
     ordinary handling.

     Sec. 51.4126  Seedstems.

       Seedstems means those heads which have seed stalks showing 
     or in which the formation of seed stalks has plainly begun.

     Sec. 51.4127  Damage.

       Damage means any defect, or any combination of defects, 
     which materially detracts from the processing quality of the 
     cabbage, or which cannot be removed in the ordinary process 
     of trimming without a loss of more than 5 percent, by weight, 
     in excess of that which would occur if the head of cabbage 
     were perfect.

     Sec. 51.4128  Soft.

       Soft means loosely formed or lacking compactness.

     Sec. 51.4129  Serious damage.

       Serious damage means any defect, or any combination of 
     defects, which seriously detracts from the processing quality 
     of the cabbage, or which cannot be removed in the ordinary 
     process of trimming without a loss of more than 15 percent, 
     by weight, in excess of that which would occur if the head of 
     cabbage were perfect.

  Mr. KERRY. The Government regulations on cabbage, Mr. President, are 
1,808 words--only 208 words more than it took the Senator from Utah on 
June 28 to describe the problems with the 30,000 words and other silly 
regulations that do not exist.
  The truth is, according to the San Diego Union-Tribune:

       That cabbage quote has been kicking around for years. . . 
     It cropped up as a Reader's Digest filler years ago. That is 
     where Ronald Reagan admitted finding it . . . and the thing 
     has obtained a life of its own.

  I ask the Senator from Utah if he has actually read the regulations, 
the 30,000 words, because here are 1,800 words, and what these 1,800 
words do, Mr. President, is establish a capacity for the Federal 
Government to guarantee that those who grow cabbage get the highest 
price possible for the best cabbage by defining what will be the Grade 
No. 1 of cabbage and defining subsequently what is Grade No. 2 of 
cabbage.
  Farmers all across this country have appreciated and applauded the 
fact that a very precise definition of that standard exists, so that 
high-quality cabbage can command an appropriate price.
  I would suggest, Mr. President, that this really frames the debate 
here, in a sense. There is a rush to try to characterize very 
legitimate regulations as somehow excessive or unwanted when, in fact, 
if we stop and take a look at them, there are a number of examples of 
how these regulations assist people and make a difference to the lives 
of Americans.
  I repeat, there are some silly regulations. Every Member knows that. 
We ought to be engaged in a process here that allows Members to 
legislate in a 

[[Page S 9764]]
way that tries to get rid of those that are legitimately silly but also 
allows us to improve this bill and to eliminate provisions which seeks 
to do things that I do not think any American wants to do.
  Let me give an example, Mr. President. There is a provision in this 
bill that weakens the toxics release inventory [TRI]. The TRI program 
originated in 1986. This important sunshine law is the most successful 
voluntary environmental program Congress has ever enacted. Yet all that 
the toxics release inventory requires is a right-to-know. Because of 
TRI, emissions from facilities have decreased 42 percent nationwide 
since 1988; a reduction of 2 billion pounds.
  If you are a citizen living in your community, and you have a large 
chemical plant or a small chemical plant or some business entity, and 
it is discharging toxins into the environment, the current law does not 
require them to stop discharging; the current law does not require them 
to stop using chemicals. It does not require them to stop producing 
chemicals. It does not require them to stop selling chemicals. This 
sunshine law does not require anyone to reduce their use of chemicals 
in any way; TRI only requires that companies that use over 10,000 
pounds or produce over 25,000 pounds--a significant amount--of 
chemicals report the discharges from that usage on the TRI for everyone 
to see. It just requires them to tell the people in the community what 
they are emitting.
  I just came from a press conference where the head of the 
Firefighters Union, representing 200,000 firefighters in America, said 
if you get rid of this, you will cost firefighters lives and the lives 
of the citizens who they are trying to save. Fire departments need to 
be able to plan, to know what kind of fire they are fighting in a 
particular community. Under today's law, if you have a fire in a 
community, because of the toxics release inventory, they just punch up 
the information on the computer, and they can look at the business 
where they are going to fight the fire. They see precisely the kind of 
chemicals that are contained at that facility, and they know whether 
they need gas masks, whether they need full chemical enclosures, 
whether to expect an explosion, whether to evacuate. They know a whole 
series of things in the public interest, Mr. President.
  Since 1988, when the first reporting information was available, we 
have reduced the chemical emissions in this country by 42 percent 
voluntarily.
  Some 2 billion pounds of chemicals have been taken out of the 
exposure stream to American citizens. We did not require it. There is 
no law that made it happen. But, because these companies were required 
to tell people what they were emitting, they began to better understand 
themselves what the consequences were and they began to make some 
different judgments; judgments about how best to prevent pollution, how 
to better use and conserve their raw materials in order to waste less; 
how to make their processes more efficient and by so doing save money.
  There is no rationale, there is no scientific argument, there is no 
acceptable health standard argument, there is no environmental argument 
for coming in here in the Dole-Johnston bill and just throwing this out 
and creating a new risk-based standard that will require the 280 
chemicals that were put on the list in November 1994 to suddenly be 
available for review again, and for many of them to jump over a whole 
series of tougher hurdles as to whether or not they will ever get back 
on the list.
  So I hope my colleagues will take a hard, hard look at the reality of 
some of the provisions in this bill. I repeat, I would like to vote for 
a regulatory reform bill. I know the Senator from Ohio would. We 
appreciate the opportunity to be able to legislate and make changes 
that could improve this bill so we can do so. I am prepared to accept a 
cost-benefit evaluation and risk assessment standard in the analysis. I 
think that is fair. I think it is important.
  But we should not make it a standard which somehow precludes the 
capacity of the rulemakers to make some rules, and of people to 
continue programs of good common sense.
  Another example of what this bill is, it essentially eliminates the 
Delaney clause. The Delaney clause protects our citizens from being 
exposed to carcinogens in their food. The Dole-Johnston bill does not 
come in and suggest a responsible fix. It does not come in and suggest 
we can improve this in a thoughtful way that protects the health of 
children while reforming the Food, Drug and Cosmetic Act. This bill 
legislates changes preferred by one set of special interests and I hope 
the U.S. Senate does not embrace this provision.
  So, my hope is that we are going to keep our eye on the ball here, as 
we listen to people denigrate--easily denigrate--regulations. I hope 
that our approach to reform will be done with accuracy and reflect the 
reality of the benefits that accrue to Americans because many of these 
efforts will be used to guarantee standards by which products will be 
sold and Americans will live.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. JOHNSTON. Mr. President, we had hoped to set aside the underlying 
Daschle amendment, which would set aside with it the Johnston 
substitute amendment. But I understand the minority leader wishes to go 
ahead with his amendment, so I regret to say the state of play is this.
  I proposed a second-degree amendment which I believe totally and 
completely solves the problem and I have said to my colleagues, Why do 
you not take ``yes'' for an answer? My colleagues on this side of the 
aisle do not seem to want that ``yes'' for an answer. In the meantime, 
the proposal that I had, which I thought was suitable on the Republican 
side of the aisle, apparently has some major problems there. And we 
cannot bring the bill down at this point.
  So I suggest we go ahead and vote on the Johnston amendment, which I 
guess will be voted down by Republicans because it goes too far. It 
will be voted down by Democrats because it does not go far enough. But 
I will vote for it because it solves the problem and I think that is 
what we want here.
  In any event, I think we ought to go ahead and vote and get on with 
the business so we can deal with some other amendments. Apparently the 
successful ability to deal with this amendment is eluding us as we 
speak.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. GLENN. Mr. President, I think the decision expressed by Senator 
Johnston to go ahead is one I concur with. I think we have had enough 
debate on this, all parts of this--the Daschle proposal and the 
substitute Johnston amendment. We have gone through all of these issues 
this morning. There have been a number of people who have come to the 
floor and debated this.
  I think we are ready for a vote. And I checked with Senator Daschle 
and he does prefer to have a vote on his. So we will just go ahead and 
vote through on both of them and see where we go.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. ROTH. Mr. President, I make a point of order a quorum is not 
present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DASCHLE. 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. DASCHLE. Mr. President, we have had a good debate now over the 
last several hours on this issue. I think there are probably four 
points that need to be made.
  First of all, we all recognize that the legislation we passed 
yesterday--the Dole amendment--really does not go far enough in 
addressing the concern that many of us have raised, that simply 
delaying the implementation of the language for 180 days does not cut 
it. The Secretary has stated that. I think by and large most of our 
colleagues now have come to that conclusion.
  Point No. 2: The passive process is one that has moved to a point 
where implementation is necessary. We do not want to encumber the 
Secretary of Agriculture in attempting to address a very serious 
concern having to do with meat inspection. We want the freest hand to 
enable him to do all that he 

[[Page S 9765]]
ought to be able to do, given all of the time that has already been 
invested in this issue, to do so in a way that is meaningful, in a way 
that ought to be accomplished as a result of the tremendous work done 
by the Department of Agriculture now in two administrations to reach 
the point that we are today.
  Point No. 3: There is a realization that the current language will 
encumber the Secretary's effort unless something happens, unless we 
address through an amendment his ability to deal with all of the 
complexities of the passive system and to recognize that progress has 
been made, and that, indeed, we ought to give him the opportunity to do 
so regardless of what happens on this bill.
  No. 4: In my view, the only way to do it, the only way to do it 
cleanly and without any equivocation, the only way to ensure that we 
can do it without legal misinterpretation, without the regulation being 
subjected to a good deal of litigation at some point in the future, is 
to pass the Daschle amendment, simply to exempt passive completely from 
the bill.
  Were we to do that, the Secretary would have the ability to move 
ahead to do all that he needs to do to ensure that this rule can be 
promulgated now in a reasonable period of time. We can do so without 
any fear of litigation or bureaucratic complexity. We can do so with 
the knowledge that the work that they have invested, all of the effort 
put forth now over at least the last 24 months, will not be for naught, 
that we will actually accomplish what we all know we must do--protect 
food safety, give the Department of Agriculture the tools that they 
need to get the job done, ensure that this particular rule which has 
come as far as it has can be promulgated without the fear at some point 
in the future of a new challenge, a new complexity that would encumber 
the Secretary's opportunity to ensure that this rule is promulgated at 
some point in the future.
  So, Mr. President, for all of those reasons, it just seems to me that 
as well intended as the effort of the distinguished Senator from 
Louisiana is, I am very concerned that at some point in the future the 
Department of Agriculture could be intimidated once again, could be 
encumbered in a number of different ways that were certainly not 
intended by the Senator from Louisiana or anybody else who indeed wants 
to resolve this problem. The best way to do it is to defeat the 
Johnston amendment, pass the Daschle amendment, and then move on to a 
number of other amendments that have been pending. There are a number 
of other Senators that have expressed to the Senator from Ohio an 
interest in coming to the floor and offering their amendments.
  We want to expedite consideration of this legislation. I think the 
best way to ensure that we get on to some of these other amendments is 
to finally dispose of the Johnston amendment, pass the Daschle 
amendment, and move on to these other proposals.
  We are ready to go. We do not want to prolong this debate any longer 
than it has to be, and certainly the best way to ensure that we do not 
prolong it is to dispose of it and to move on.
  There has been some talk I know of yet another second-degree on the 
Daschle amendment. I hope that we can avoid that. I think after the 
good debate that we have had we deserve an up-or-down vote. We have 
acted in good faith. We have not in any way attempted to obfuscate the 
issue or prolong the debate any longer than necessary. I think it has 
been an enlightened and educational effort.
  So I think now having done all that we have in the last 5 hours, it 
is imperative that we simply finish this and move on to other issues. 
Let us do that. Let us have a vote on Johnston. Let us have a vote on 
Daschle. Let us get on with the other amendments that are ready to go. 
That is the way I think we can ultimately finish this bill. The sooner 
we get on with it, the better.
  With that, I yield the floor.
  Mr. JOHNSTON. Mr. President, let me be clear. The Johnston amendment 
fixes the problem of passive. It simply fixes it. Reasonable minds can 
disagree about many things about this bill. There is no problem with 
passive going forward.
  What the Johnston amendment says is that if you have already done a 
cost-benefit analysis and the rule has not changed, you do not have to 
redo it. And if you have promulgated your notice of proposed rulemaking 
prior to April 1 of this year, then you are exempted from cost-benefit 
or from risk assessment--very simple, very clear, very clear-cut. It 
fixes this problem.
  We have had a lot of debate here about whether some woman who went to 
the Jack-in-the-Box and ate some hamburgers and died, and all of this 
is going to kill her.
  Mr. President, it fixes the problem. Now, unfortunately, the 
amendment which was put forth on my behalf and with Senators Hatch and 
Roth and had a majority of support for a while, now, after having hung 
out there for a few hours, my friends on the other side of the aisle 
have changed their minds, apparently some of them at least, with 
respect to the April 1 date. They are concerned that now there will be 
this flood of regulations which will be exempt from cost-benefit and 
risk assessment.
  It is very unfortunate, Mr. President, that both sides could not 
stick together; that on our side of the aisle we could not recognize 
the fix which this is, and that the other side could not stick with 
what we thought was a deal. I fear what happens now is this whole 
bipartisan effort begins to come apart piece by piece--Democrats put 
forth a substitute and get 30-something votes, and the Republicans put 
forth their bill and it gets filibustered, and there we go.
  We have to be able to come together, Mr. President, if we are going 
to pass this difficult legislation. We have to be able to come together 
in some sort of reasonable middle ground that solves the problem and 
stick to a deal. This is complicated enough. I found myself accepting 
amendments from our side of the aisle, and then come back and be met 
from our side of the aisle with that amendment which we accepted on 
their behalf as being a fault of the legislation. That has happened not 
once but several times.
  We had a fix proposed from the other side of the aisle, and now they 
thought about it and that is not good enough.
  That is not going to pass this bill. This is a very important bill. 
We have people strung out all over the philosophical spectrum on this 
bill, and when we start putting forth amendments and then withdrawing 
them, I fear the whole thing is going to come apart.
  Mr. President, as I speak, there is still hope, and so I will yield 
the floor at this point and hope we can pull this amendment back 
together and the coalition for reasonable regulatory reform will 
reform.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I see both the distinguished leaders in the 
Chamber.
  Mr. DOLE. Will the Senator yield to me?
  Mr. LEAHY. Mr. President, I ask if I might be able to yield without 
losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOLE. I think both leaders are trying to determine how we can get 
to a vote. The Senator from South Dakota had an agreement where we 
would by consent vote on the Johnston amendment, followed by a vote on 
the Daschle amendment if Johnston was defeated; otherwise, it would be 
as amended, I assume.
  I am not able to get that agreement, but I would be prepared to vote 
on the Johnston amendment at this time.
  The PRESIDING OFFICER. The Senator from Vermont still retains the 
floor.
  Mr. LEAHY. Mr. President, I yield further, if I could do so without 
losing my right to the floor. I do not intend to hold the floor very 
long.
  Mr. DASCHLE. Mr. President, if the Senator will yield for me to 
respond, I have no objection to having a vote on the Johnston 
amendment, but at some point I think it would be fair to say that we 
would like to have an up-or-down vote on the Daschle amendment. I do 
not know if others may have second-degree or substitute amendments that 
they wish to offer to this one. Obviously, that is anyone's right. But 
I think at some point it would be helpful if we could get a time 
certain for an up-or-down vote so we could move on to other amendments. 


[[Page S 9766]]

  I know the distinguished majority leader has urged us to try to move 
this process along. In that interest, I think we have a few other 
amendments that could be offered maybe even with some time limits. So 
to accommodate everyone it would be helpful if we could get a time 
certain for a final vote on this one and move on to other amendments.
  Mr. DOLE. If the Senator from Vermont will yield to me to respond to 
the Democratic leader, I understand the suggestion. I think the Senator 
from South Dakota probably knows that if the Johnston amendment is 
accepted--I guess I could say first, would there be any objection to 
just accepting the Johnston amendment?
  Mr. DASCHLE. Accepting the Johnston amendment? We would be opposed to 
accepting the Johnston amendment. We want a rollcall on that.
  Mr. DOLE. Right. So if it were adopted, then we could vote 
immediately then on the Daschle amendment, as modified. But if it were 
defeated, there would be probably another second-degree amendment. I 
think that is the only protection we would like to keep. There would be 
another second-degree amendment to the Daschle amendment which might be 
something that the Senator from South Dakota could agree with, maybe 
not. I am not certain.
  Mr. DASCHLE. If the Senator from Vermont will yield again, let me 
just say we have been working in good faith on both sides to try to 
resolve this issue, and I especially commend the two managers for their 
efforts in trying to accommodate everyone. I do not understand, 
frankly, why it would not be in everyone's best interests just to have, 
even accept a tabling motion if that were the only option. But this 
process of second-degreeing all the amendments being offered precludes 
really an opportunity to have a vote on an issue that is quite simple.
  So I understand and again accept the right of any Senator to offer 
second-degrees, but we would hope on this one, given the debate we have 
had, given the fact that we have had a good debate yesterday on the 
Dole amendment--the Senator was protected with second-degrees on that 
one--we could simply resolve this matter and go on to other amendments. 
I hope we would not have to have a second-degree on this one, too.
  Mr. DOLE. I just want to be certain the Senator understands there 
could be a second-degree amendment.
  Mr. DASCHLE. I understand that.
  Mr. DOLE. I would not want to mislead the Senator. But could we then 
proceed, after the Senator from New Jersey and the Senator from new 
Vermont finish their statements, to vote on the Johnston amendment?
  Mr. DASCHLE. My point is that we could agree to that if we could also 
agree at some point to have an up-or-down vote on the Daschle 
amendment.
  Mr. DOLE. If the Johnston amendment is accepted, then the question is 
moot, of course,
  Mr. DASCHLE. That is correct.
  Mr. DOLE. So it would be hard to make an agreement until after we 
dispose of the Johnston amendment.
  Mr. DASCHLE. If the Johnston amendment were not to pass, it would 
seem to me then the pending issue would be the Daschle amendment. And 
if that circumstance were to present itself, it would be helpful I 
think if we could then have an agreement that that would be the next 
vote followed without any intervening debate, we would go right to that 
vote and resolve this issue. If we could do that, I think we would be 
prepared to go to the vote on the Johnston amendment.
  Mr. DOLE. I would have to check with other Members on this side 
before I could make that agreement. So maybe while they are debating, 
we can make some determination.
  The PRESIDING OFFICER. The Senator from Vermont still retains the 
floor.
  Mr. LEAHY. Mr. President, I do. And I will speak only briefly, as I 
know the leaders of this legislation want to go forward.
  Mr. President, we have many, many issues on this bill, as we know, 
many issues now and many to come. But we have one issue that we ought 
to understand, and that is, will our food here in the United States 
continue to be the safest in the world, which I believe it now is. I 
believe it now is the safest in the world and it should continue that 
way. I believe this is important to every American. It is not an issue 
of whether you are a Democrat or a Republican. You want to have safe 
food. It is important certainly to every parent as it is to me as a 
parent because we know that children are uniquely vulnerable to 
contaminated food. Many times the things that might just cause an adult 
to get sick can cause a child to die.
  Safe food is important to our farmers and ranchers. It is how they 
make their livelihood. They have to assume the consumers have 
confidence that the food they raise will be the safest in the world. 
Our consumers need to have confidence in the safety of the meat they 
buy or we can all understand how quickly they will stop buying that 
meat.
  In Vermont, meat is the real food that real people eat. It is not 
just some abstract question. In the United States, half of all farm 
revenues come from livestock production. Ranchers and farmers cannot 
afford to have their incomes hit by another food scare. Beef prices, 
believe me, are low enough already. They will sink through the floor if 
we have another scare, and that is why I am here.
  In the last 10 years, we have been pushing the Agriculture Act to 
protect the safety of our food supplies. As the past chairman of the 
Senate Agriculture Committee I tried to pass legislation to reform our 
food safety laws. Indeed, the legislation I proposed are very similar 
to the Department's proposed food safety rules.
  If you look at the meat inspection laws we have now, they were put in 
place after the Upton Sinclair book ``The Jungle'' that warned the 
public of a threat to their food supply. That was decades and decades 
ago.
  Again, American people assume they walk into the grocery stores and 
buy meat that is safe. We have built a whole industry. Our ranchers, 
our livestock, people, farmers, all assume this is in there, this sense 
of safety. Those who own the stores and distribute them, our 
restaurants, fast food outlets, have to go on the assumption they are 
passing out safe food, and the American people assume that. And now we 
know that we can do much better and that we should allow the American 
people to have what is much better.
  It is not an academic issue because, in spite of the best efforts of 
thousands of meat inspectors, there have been serious outbreaks of 
foodborne disease. In 1986, an outbreak caused by the E. coli pathogen 
killed two elderly women, sickened 37 persons in Washington State. 
Twenty-seven of them had eaten at the Taco Time restaurant in Walla 
Walla, WA. Two years ago another outbreak occurred in a Jack in the Box 
Restaurant. This foodborne illness outbreak, which began January 17, 
1993, made over 300 persons ill, resulting in the death of three 
children. At least one child, a 4-year-old girl, had a stroke caused by 
hemolytic uremic syndrome caused by the outbreak.
  Now, these are serious matters. My full statement will put out a 
number of things on it. But it is why I support the underlying 
amendment. I want to make sure that people have safe food, that our 
farmers and ranchers, producers, and distributors are protected. That 
is why I support the Daschle amendment. I think the second-degree 
amendment, with all due respect to my friend from Louisiana, I believe 
that this really creates only a figleaf. It just says that any risk 
assessment previously done will continue to be valid.
  That does not solve our problem. It does not solve the problem of the 
people who have suffered from E. coli. It completely eliminates the 
Daschle amendment. The Daschle amendment, instead, says let us get rid 
of the roadblocks and protect the American people. We ought, as 
Senators, to be prepared to support the Daschle amendment. That is not 
Republican and Democrat. That is saying we want safe food that we buy 
and safe food our children eat and we want safe food sold. And we want 
to be able to tell ranchers and livestock owners and farmers that if 
you put your food in the chain, it is going to be protected and safe.
  Now, I think that otherwise you are going to be voting on an effort 
to stop the real protection of the American people. I believe that the 
amendment we are soon to vote on means more delay and more sickness. We 
still have to have another cost-benefit analysis. There still will have 
to be a new peer 

[[Page S 9767]]
review panel and a number of new issues litigated. It becomes a 
lawyer's dream. I think we ought to stand up for safety and approve the 
amendment from the Senator from South Dakota, Senator Daschle.
  Mr. BRADLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. BRADLEY. Mr. President, I would like to share with the Senate the 
story of a young woman named Katie O'Connell. She was 2 years old and 
she died from eating hamburger at a fast food restaurant. Unknown to 
anyone, her meal was contaminated with E. coli, the deadly pathogen 
that really is the subject of this amendment. Sadly, the meat that 
Katie ate had been declared safe by inspectors from the U.S. Department 
of Agriculture. Katie died from a disease that should have been 
detected through our Federal meat inspection system. Katie is no longer 
alive because that system failed her and her family and has failed 
thousands of others across this country.
  Diseases caused by foodborne illnesses often strike those who are 
most vulnerable in our society, our children. Last summer health 
officials in my home State of New Jersey, where Katie lived, found 
another outbreak of the disease that killed Katie just a short time 
before. One family, the McCormicks in Newton, NJ, had two of their 
children, ages 2 and 3, hospitalized. Their lives were endangered 
because they, too, ate meat that was declared safe by Federal 
inspectors at the Department of Agriculture.
  These cases are far from isolated, unfortunately. The Centers for 
Disease Control estimates that there are over 9,000 people who die and 
another 6.5 million people who get sick every year from foodborne 
illnesses.
  The USDA regulations proposed last February as an effort to meet this 
crisis would require daily testing for salmonella at meat and poultry 
processing plants across America. Additionally, each of the Nation's 
6,000 slaughterhouses and processing plants would have to develop 
operating plans designed to minimize possible sources of contamination; 
in other words, to design systems to avoid contamination in advance 
instead of fighting it after it breaks out.
  Mr. President, I think this proposal offered by the Department of 
Agriculture represents a significant improvement over the current 
system, which has remained in place remarkably unchanged for over 90 
years, since reforms were put in place in the wake of, as the Senator 
from Vermont says, Upton Sinclair's great book, ``The Jungle.''
  Ironically, a cost-benefit analysis was done of these proposed rules. 
And what did the cost-benefit analysis show? Well, the costs would be 
$250 million per year, lowering to $200 million after the first 3 
years. And the benefits from these regulations would be at least $1 
billion per year. In other words, almost a 5-to-1 ratio in terms of 
benefit over cost. That does not even really count the other fact here, 
Mr. President, that the Department of Agriculture used a relatively low 
number of $1 million, for the value of each human life. Contrast these 
cost with the savings to consumers of $1 to $3.7 billion per year 
attributable to lost wages and medical costs for sickness caused by 
foodborne disease that would be paid out without this rule.
  Mr. President, what would be the cost to consumers if every penny of 
this system's cost were passed along? If every penny of the cost of 
these proposed regulations were passed along to consumers, the cost 
would be two-tenths of 1 cent per pound. That is right, two-tenths of 1 
cent per pound. So a consumer would have to buy 5 pounds of hamburger 
before incurring any cost at all. Surely, the typical American family 
would be more than willing to pay this modest price to make sure that 
when they buy meat or go down to the fast food franchise and buy a 
cheeseburger for their child, that it will be safe meat.
  Mr. President, I know some of my colleagues will say, ``Why eliminate 
these regulations? Why exempt these regulations from the coverage of 
this regulatory reform bill?''
  Why single out this particular issue? Well, I think there is an 
answer to that. It is pretty simple. I do not want any more children to 
die. According to the USDA, the summer months are the prime time for 
foodborne diseases. In fact, last month alone, there were at least four 
more disease outbreaks. How many more will have to die before we take 
action, before we allow the regulations that have been proposed to go 
into effect and to assure families across this country that their 
children are not going to eat contaminated meat at a fast food 
franchise?
  Mr. President, the National Academy of Sciences recommended that the 
USDA use this new kind of system that was proposed last February. They 
recommended it first 10 years ago. Yet, these proposed regulations have 
been the subject of countless hearings, roundtable meetings with 
industry and consumers, and on and on.
  At one point, the industry even claimed that the E. coli organism was 
not technically an adulterant under the food safety law, clearly an 
attempt to deny the agency the ability to regulate E. coli. Mr. 
President, do we really need to waste years, lives and money redoing 
all the old analyses and creating new ones in an effort to stall or 
even defeat these regulations?
  Senator Dole's amendment that he offered yesterday modified the bill 
slightly regarding the effects of S. 343 on E. coli regulations. 
Senator Johnston's second-degree amendment to the Daschle amendment 
would modify it further, but unfortunately not enough to ensure that 
the regulations would not be caught up in a revolving door of petitions 
and sunset provisions which could plunge the regulations into a swamp 
of uncertainty and litigation. The resulting delay would cause even 
more cases of sickness and death, and the delay is unnecessary.
  I am very concerned that these regulations are already a target of 
Members in the other body who would try to delay them further through 
appropriations riders and other techniques. Instead of delay, I urge my 
colleagues to stop interfering with these regulations. They are exactly 
the kinds of regulations that we claim to want. We have them. They are 
here. They are cost-effective. They deal with a serious problem, and 
they have been subjected to close scrutiny by a wide variety of 
interests.
  So, Mr. President, I urge that we reject the amendment by the Senator 
from Louisiana and adopt the amendment offered by the distinguished 
Senator from South Dakota and take a giant step toward protecting our 
families from outbreaks of E. coli on our next visit to a fast food 
franchise to buy a cheeseburger for our son or daughter.
  I yield the floor.
  Mr. CRAIG addressed the Chair.
  The PRESIDING OFFICER. The senior Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, I might ask in the next few moments if the 
Senator from New Jersey will remain and we can visit about this issue 
only briefly because I express the same kind of urgency and the concern 
that the Senator has just expressed as it relates to a new inspection 
food safety process that the U.S. Department of Agriculture has begun 
to put in place, known as HACCP.
  Let me also suggest that it was the meat industry of this country 
that brought this process and concept to USDA and suggest that this be 
the process that come forward. Why has it not come since 1906 until 
today? Why have we not been able to change the process? Everybody 
skirts the issue, but nobody talks about it. Has the industry wanted to 
change? Not always. The Senator is right. Guess who else has not wanted 
to change? The thousands of unionized meat inspectors who did not want 
to lose their jobs, even though--it is very important this be said in 
the totality of the discussion--even though it might have meant a safer 
product coming to the market.
  In my State of Idaho and in the President's State of Idaho where the 
beef industry is critically important, 2 years ago something else 
happened. A child, not unlike the child that the Senator from New 
Jersey spoke of, went to a fast food restaurant to buy a hamburger and 
became critically ill. She did not die, but she was near death. It was 
the result of having ingested an E. coli bacterial-contaminated meat 
patty. We are all concerned about that.
  But the fundamental question is simply: Does what we are doing here 
today or what we did yesterday stop the process that is currently under 
way in the 

[[Page S 9768]]
U.S. Department of Agriculture? The answer is no.
  But there is another side to this story that is very important to 
discuss, beyond the politics and the rhetoric and the headlines that we 
have seen over the last 2 weeks that even the Senator from New Jersey 
would probably argue are not all fact.
  When they argue that S. 343 will poison the food chain of America, 
that is not only not fact--and that is what they argued--that is a 
fabrication. Here is the reason it is, here is why the Senate ought to 
know this before they vote on the Daschle amendment.
  Is it possible in the producing and the processing of food through to 
the consumer, be it the restaurant or the home dinner table, to produce 
a zero-risk food? The answer is, absolutely it is not possible to do. 
Even though America has the safest food in the world, and even though 
in the last couple of months in consumer reports from Europe, American 
meat products are preferred 5 to 1 over any other meat product of the 
world, and the answer is, because it is the safest in the world; the 
answer is, it is not zero-proof safe. Why? Because it is not possible 
to create a zero-safe environment.
  Why? Because the Centers for Disease Control in a survey started in 
1973 and concluded in 1989, in analyzing the pathogenic-borne food 
illnesses and deaths, answered the question this way: 97 percent of all 
deaths occur because of the way the food was prepared for the table, 
not the way it was processed in the plant.
  It is fundamentally important for this Senate to know and for us to 
understand that the Daschle amendment changes not one iota of that 
equation. It is false rhetoric on the floor of the Senate to argue that 
somehow this will make meat safer. It is already 99.9 percent safe, and 
that is as safe as we can get it, and the institution of HACCP by USDA 
is an effort to make it 100 percent.
  But we must face reality, and there are two very prevalent realities 
out there: One, we have to expect the preparer of the food to have a 
responsibility, and we cannot exempt them from that.
  Second, something else is happening in America today. As we all 
become busier people--and we have--the bottom line is we cannot 
regulate a perfect world. We have to expect the consumer to have a 
responsibility in the preparation. So does S. 343 change the 
temperature of the grill in the fast food restaurant? It does not. It 
has absolutely nothing to do with it.
  Here is the problem, though, with what we want to do to create the 
flexibility. Does the Daschle amendment create lookback so that if 
HACCP is not working well, we can adjust it? It does not. Do we want to 
lock in a process that is already one put upon the other, the other one 
being the old one that is not working anymore, because this 
administration has tried to bind all two together and you cannot do 
that and get a product that creates an efficiency in the market. No, it 
does not. In fact, it may lock us into an imperfect process that we are 
trying to institute to be a better one.
  I hope, as someone from a State that is a major producer of meat 
products and from a State that is a major consumer of meat products and 
someone who worked with Mike Espy from day one to create a better 
process,
 that we deny the Daschle amendment because we do not want to lock in 
the forming of a process that may, to date, be imperfect. And staff 
tells me--and I believe they are accurate--that this may do just that. 
It may deny us the opportunity to adjust and change in our pursuit of 
the perfect, because the Senator from New Jersey knows, as I have seen 
him nod his head, we cannot get to the perfect because perfect is 
impossible; we can only create the best. Then we must say to the 
consumer of America that you, too, have a responsibility, whether it is 
the chef of a local fast food restaurant, or whoever, to make sure that 
the center of that hamburger patty has reached the temperature that 
might kill bacteria if it is present, and to say to the preparer in the 
family home that you, too, have a responsibility because 97 percent of 
the E. coli deaths in America occur because of the latter and not the 
former.

  Mr. GLENN. Will the Senator yield?
  Mr. BRADLEY. Well, I think he wanted to engage me in a colloquy for a 
question, the answer to which is yes.
  Mr. CRAIG. Thank you.
  (Mr. GRAMS assumed the chair.)
  Mr. BRADLEY. I would like to respond briefly, if I could. I think the 
Senator makes a number of very good points. There is no question that 
many of the illnesses with regard to meat come about because the meat 
is not cooked properly, not cooked well done. Many of us like our meat 
raw, red. If you do, you increase your chances of E. coli pathogens.
  Mr. CRAIG. Only reconstituted meat. Not the steak, but the hamburger.
  Mr. BRADLEY. My point is that, after Katie died, I remember giving 
all kinds of speeches, urging that people insist that all hamburgers be 
well done, be cooked fully, urging owners of fast food franchises to 
take that as a responsibility. Some responded, some did not. So let me 
agree with the Senator on that point.
  As to the real reason that has prevented the new regulations from 
going into effect over many years, well if it was the union, in that 
case I am against the union. I don't know the reason. I am for the 
consumer. Let us get the thing done.
  Mr. CRAIG. Let me regain my time to say this. From the day that this 
administration began to work on this process of food inspection, there 
is no reason to accuse anybody. Everybody worked as quickly as they 
could to bring the new process on line. My only argument there is, why 
did it take us from the year 1906 to today to improve a process that we 
knew 30 years ago ought to be improved?
  My point is simply this, relating to the Daschle amendment: The 
process we are putting in place is not yet complete. The administration 
knows that. So let us not lock ourselves once again in time and place. 
Let us be able to look back and make sure that it works, that it is an 
integrated, evolving process to make a safer meat product than, in my 
opinion, what the Daschle amendment does free standing, because it 
happens to fit the political debate of the day. That is not right.
  Mr. GLENN. If the Senator will yield for 1 minute, the Daschle 
amendment----
  Mr. BRADLEY. Mr. President, who has the floor?
  The PRESIDING OFFICER. The Senator from Idaho has the floor.
  Mr. GLENN. When did it get off the Senator from New Jersey?
  Mr. CRAIG. I regained my time. But I will yield to the Senator from 
Ohio.
  Mr. GLENN. The Daschle amendment permits USDA to go ahead, without 
going back and going through the hoops and the new things that would 
delay the regulations being put out that would be required under S. 
343. That is what he does.
  Recent surveys have shown that about 4 percent of the ground beef in 
supermarkets is tainted with E. coli. I do not know what else. That is 
1 out of 25 hamburgers, if you want to put it on a percentage basis.
  Mr. CRAIG. That is why they should be cooked thoroughly.
  Mr. GLENN. Contamination of meat and poultry products sickens 5 
million Americans a year and kills 3,500 to 4,000 people every year.
  Mr. CRAIG. But 97 percent is as a result of preparation at the home, 
not at the factory.
  Mr. GLENN. Maybe some are. If we prevent deaths with this 
legislation, what is wrong with going ahead where we know there is a 
clear and present danger?
  Mr. CRAIG. That is not the issue.
  Mr. GLENN. That is what Daschle does, whether you think so or not.
  Mr. CRAIG. That is what Dole did yesterday.
  Mr. GLENN. No, that is not what Dole did yesterday. You have not been 
listening to the debate on the floor.
  Mr. CRAIG. I was here for 3 hours yesterday.
  Mr. GLENN. And we went through some of that this morning.
  Mr. CRAIG. Mr. President, let me at this point yield the floor. My 
concern is, of course, is the Daschle amendment creating the 
flexibility to allow the HACCP process for food inspection to go 
forward and to be changed and adjusted, as we do for the sake of a 
better product and program.
  I yield the floor.
  
[[Page S 9769]]

  Mr. BRADLEY. Mr. President, I will not be long, but I would like to 
continue what I was saying before in response to the statements made by 
the distinguished Senator from Idaho.
  I am all for cooking the meat. Let us cook the meat. But before the 
meat is cooked, 1 out of 25 hamburgers has E. coli bacteria in it. That 
is not produced by the person who is preparing it. That exists because 
it has not been caught earlier; 1 out of 25. So if the distinguished 
Senator is so concerned about the health of our children--and I believe 
he is, and I believe the industry is, if for no other reason than self-
interest--then we need a new system of inspection, a system that will 
increase our chances of detecting E. coli before it reaches the 
unsuccessful preparation process.
  So all the Daschle amendment says is, exempt E. coli from the 
potential of further delays, further petitions, further litigation, and 
a much longer time before it will ever be in place to capture and 
prevent the E. coli from being passed on to consumers.
  Mr. JOHNSTON. Will my friend yield?
  Mr. BRADLEY. No, I will not yield. And so all the Daschle amendment 
says is exempt E. coli regulations from this bill. If the distinguished 
Senator does not want E. coli to be in the meat of children in this 
country, in 1 in 25 hamburgers before preparation, then he should 
exempt it. Now, I believe that he does not, and I know that he has 
worked faithfully and diligently with the Department of Agriculture in 
an attempt to get an agreement among all parties. He is, in a very real 
sense, somebody who likes to build consensus. And I believe that what 
we have in the new amendments, as he said, is a much better job--a much 
better job--than current law. The Senator would admit that.
  Is the regulation regime projected to be perfect? No. Is it much 
better than the current situation? Yes. All we are saying is, allow it 
to be put in place and do not make the very, very best the enemy of the 
very, very good, with the hope that at some distant moment, we will 
have the perfect set of regulations. Or 15 years from now, when we get 
to that point, there will have been 9,000 more people every year dying 
and more kids like Katie O'Connell dying.
  Put it in place now, and revisit it later. That is what the Daschle 
amendment says by exempting E. coli from this regulatory reform bill.
  Mr. JOHNSTON. Will the Senator now yield?
  Mr. BRADLEY. I yield the floor.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. JOHNSTON. I am disappointed that my colleague would not yield for 
a question, because I wanted to ask him, did he not admit that the 
Johnston amendment allows this E. coli regulation to go forward? It 
does, and he has left the incorrect impression that the Johnston 
amendment somehow stops this regulation, and it does not.
  Let us be candid, Mr. President, about our representations out here. 
Let us not give the impression that the Johnston amendment somehow is 
going to allow this hamburger to be tainted and go forward because it 
stops the E. coli regulation.
  It does not. It solves the problem. It is clear that it does. There 
is no argument that it solves the problem.
  Mr. President, I hope my colleagues understand that.
  Mr. HATCH. Mr. President, I think we have debated this long enough. I 
think we have gone on and on here. Frankly, these are important 
considerations. We need to move on, on this bill.
  I think Senator Daschle's amendment goes way too far. Exempting the 
Department of Agriculture's HACCP rule in its entirety is unnecessary.
  The distinguished Senator from Louisiana is absolutely correct in the 
way he has characterized his amendment. Frankly, there is no reason to 
go to that extent.
  There would be arguments--do we not exempt everything else, too, 
which is, of course, one of the ploys of those who want to defeat this 
bill. Sooner or later if we want to do something about overregulatory 
conduct in this society, we will have to pass this bill.
  I commend the distinguished Senator from Louisiana for his ingenuity 
in coming up with this amendment. I support Senator Johnston's 
approach. It leaves it to the agency head's discretion to determine 
whether a new risk assessment is necessary for final rules, where one 
has already been conducted for proposed rules.
  This solves the problems for all rules. When an agency has done a 
risk assessment for a proposed rule before the effective day of this 
act, if the risk assessment has been properly done, why would we want 
to force them to do it over again? It just makes sense--again, 
commonsense approach to commonsense problems.
  The Johnston amendment solves the problem, and it does it in a 
reasonable way without sharing any preference to industry, any group of 
people, any particular agency. It allows this bill to work to try and 
resolve the overregulatory aspects of our society.
  As for the effective date provision, I think the April date is fair 
and will significantly prevent extra costs to the agencies which have 
already performed good cost-benefit analysis--and risk assessments, I 
should add--for proposed rules. Not to have them redo them, over again, 
just to comply with certain procedural requirements. It makes sense. It 
just makes sense.
  The Daschle amendment is totally unnecessary. Any emergency situation 
is already exempted under S. 343. We take care of it. The language is 
clear. If a rule needs to be promulgated quickly to protect health, 
safety, and the environment, S. 343 allows prompt promulgation of those 
rules.
  Concern that S. 343 will not allow rules to protect against E. coli 
bacteria to go forward is nothing but sheer hype.
  The Johnston amendment allows for the proposed rules in the 
guidelines, in the pipeline, where money has been spent on studies, 
risk assessment, or cost-benefit analysis, not to have to go through 
these analyses again. It just makes sense.
  Thus, the E. coli and food safety regulations will go forward under 
the Johnston amendment.
  I hope our colleagues will support the Johnston amendment, because I 
believe that it is a reasonable approach to try and resolve these 
problems.
  It is no secret that there are some who do not like the Johnston 
amendment, also. For some reason, there are some people who want to go 
back 50 years, if they could, and revoke everything.
  Well, I want to go forward and start doing what we have to do to get 
this overregulatory burden off our backs in this country so this 
country can compete and be more competitive with the rest of the world, 
so that we can have our citizens treated more decently, so that the 
costs are not eating Americans alive, so that people do not die because 
of the overregulatory aspects of our society, which is happening today, 
and so that we have some reasonable, decent, honorable way of trying to 
get regulation and overregulation under control.
  I think we need to go to a vote on this. I am prepared to go to a 
vote on the Johnston amendment, and we will see where we go from there.
  If the Johnston amendment passes, it ends this issue as far as I am 
concerned. If it does not pass, we will have to look at it at that 
point.
  I have to say that I do not think the Johnston amendment solves every 
problem. There are some legitimate concerns on our side that people 
have. Legislation cannot always be perfect--just like food safety 
cannot be zero risk. We have to do the best we can under the 
circumstances. This is the best we can do under the circumstances.
  I commend the distinguished Senator from Louisiana for being willing 
to try and resolve this issue. I think his amendment does resolve it, 
at least on the issue of E. coli and other meat and poultry matters.
  Frankly, if all agencies, in the sense of the agency head's 
discretion, so they did not have to do unnecessary, duplicative efforts 
on risk assessment and cost-benefit analysis--it makes sense. I think 
anybody with brains has to consider it makes sense, and I hope we vote 
this amendment up and get on with the rest of the amendments on this 
bill. I yield the floor.
  Mr. BRADLEY. Mr. President, I would like to make sure that the record 
is absolutely clear in this debate.
  I heard my distinguished colleague from Louisiana take umbrage at my 

[[Page S 9770]]
  characterization of his amendment. I would like the Record to state 
that, yes, indeed, he allows the E. coli regulation to be placed into 
effect. He exempts any regulation promulgated before April 1, and the 
Record should show that; that it is the other amendment, the underlying 
amendment, that has the biggest problem.
  I think the distinguished Senator from Louisiana offers an amendment 
that is a vast improvement over the amendment offered by the 
distinguished Senator from Kansas--a vast improvement. I salute him for 
offering this amendment and moving the Senate forward.
  However, unfortunately, it is not enough. It is not as much as I 
think we need. It allows endless petitions. It allows sunsets to be 
placed on the regulation.
  I believe we should simply exempt E. coli and let the Department of 
Agriculture do what they are going to do, without any kind of back-door 
or unforeseen event, and strengthen this regulation, to protect the 
food and meat for people in this country. I yield the floor.
  Mr. GLENN. Mr. President, I, too, want to get on with the vote on 
this. I will be very brief and take just a couple of minutes.
  In summary and in response to the Senator from Utah, the manager on 
the other side, I, too, wish that we had a separate vote on this 
Johnston amendment. We might be able to vote for it, but not if it 
replaces Senator Daschle's amendment.
  The Department of Agriculture informed us whether they have to do a 
second risk assessment in the final rule stage, they are not going to 
be able to say that they are already doing risk assessment, complies 
with the requirements of S. 343, as it would be amended by the Dole-
Johnston substitute. In other words, they would have to go back to 
least-cost, new procedures--all subject to judicial challenge and so 
on.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. GLENN. I am happy to yield to the Senator.
  Mr. JOHNSTON. The Senator recognizes that since the notice of 
proposed regulation was put out prior to April 1, 1995, that it would 
be exempt totally from risk assessment and cost-benefit, under that 
part of the amendment as well as the other part, am I correct?
  Mr. GLENN. Yes.
  Mr. President, this brings up the second point. That is, moving the 
effective date to April 1 for new proposed rules. While it may be an 
improvement from an across-the-board immediate effective date, 
unfortunately I do not think that goes far enough.
  This bill cannot be met within a few weeks or even a few months.
  The new rulemaking procedures, the new least-cost, all the rest of 
these things that go into this thing are something that is going to 
take some time to do.
  April 1, as an example, setting that as the cutoff time, means that 
regulations on mammography would be cut off. Regulations on the 
educational title I, help for the disadvantaged, where they are 
planning to implement those regulations this fall, in school this 
fall--those would be cut out.
  Mr. JOHNSTON. Mr. President, will the Senator yield on that point?
  Mr. GLENN. Yes.
  Mr. JOHNSTON. Under the Johnston amendment, each one of those rules, 
having had a notice of proposed rulemaking prior to April 1, is exempt 
from this bill.
  Mr. GLENN. I believe on all these the notice of proposed rulemaking 
was April 1.
  Mr. JOHNSTON. On mammography? If the notice of proposed rulemaking 
was after April 1, how is it scheduled to go into operation right away? 
Most of these rulemakings, the Senator told me, take a long time.
  Mr. GLENN. An interim rule was published on mammography on December 
21, 1993, and publication of proposed regulations is planned for 
October 1995.
  Mr. JOHNSTON. The April 1 date, under the Johnston amendment, is a 
notice of proposed rulemaking. So this notice has been out for years.
  Mr. GLENN. Publication of proposed regulations is planned for 
October, 1995.
  Mr. JOHNSTON. I know, but when was the notice of proposed rulemaking? 
That has been in operation--that has been out there for years.
  Mr. GLENN. I do not have a particular date on that. It was my 
understanding, and the people that administer this have interpreted the 
Senator's proposal, his amendment, as cutting them off.
  Mr. JOHNSTON. Mr. President, did the Senator not just tell me the 
notice of proposed rulemaking was 1993 or something?
  Mr. GLENN. No, I said publication of the proposed regulations was 
planned for 1995.
  Mr. JOHNSTON. You gave me a date in 1993 there?
  Mr. GLENN. That was an interim rule published in 1993.
  Mr. JOHNSTON. There had to be a notice of proposed rulemaking prior 
to the interim rule.
  Mr. GLENN. I am told these are covered at different dates. I would 
have to go back and correct this. But the people administering this 
have looked at what the Senator is proposing and they say it would cut 
them off.
  Mr. JOHNSTON. Mr. President, I tell my dear friend, that cannot be. 
It just cannot be.
  Mr. GLENN. Mr. President, I will go on with this and then I propose 
we get on with the vote on this as soon as we can.
  I was talking about the Elementary and Secondary Education Act. That 
would be held up because the dates on that--the final rule is coming 
out by July 1, 1995. That would be knocked out. The flammability 
standards for upholstered furniture would be knocked out. Cable lead 
wires used on medical equipment--that has caused considerable problems. 
There is a new rule coming out that would be held up.
  This April 1 deadline, whether we argue about proposed rulemaking or 
specific dates, a couple of things that came to our attention this 
morning would be held up.
  Mr. President, with that 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. EXON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Thompson). Without objection, it is so 
ordered.
  Mr. EXON. Mr. President, I ask unanimous consent that I be allowed to 
proceed as in morning business for no longer than 6 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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