[Congressional Record Volume 141, Number 112 (Wednesday, July 12, 1995)]
[Senate]
[Pages S9775-S9777]
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. COHEN. Mr. President, I would like to offer a few comments this 
afternoon about the need for regulatory reform and then more 
specifically about a substitute amendment that I anticipate will be 
offered, if not today then sometime during the course of the debate on 
this bill.
  At the outset, I would like to make clear that I believe that we need 
to have regulatory reform in this country. We now have what is fairly 
described as a cumbersome regulatory morass. I think it is the result 
of over 40 years of having a very activist Government. The number of 
executive branch and independent regulatory agencies has been steadily 
increasing since the New Deal. This increase in the size of Government 
has been compounded by the fact that Congress passes hundreds of new 
laws every year, while statutes are rarely taken off the books. With 
each new law comes an ever-expanding set of detailed rules and 
regulations. So, while we cannot deny the fact that those faceless 
Federal bureaucrats do compound the problem, we also ought to look 
right here at home in the U.S. Senate and House of Representatives, 
because we, too, have responsibility for this trend of more and more 
laws which require more and more regulations.
  This regulatory burden that Congress has created, I think everyone 
recognizes, is daunting even for the largest 

[[Page S 9776]]
of corporations that can hire a whole spate of attorneys to advise them 
in complying with the regulations that are imposed. But I think the 
burden is clearly overwhelming for most of the small businesses in this 
country that are bombarded with reams of technical legalese and ordered 
to comply with regulations they do not understand. These are the very 
small businesses which happen to be the backbone of this country's 
economy. I think the overwhelming burden they are required to measure 
up to, and many cannot do so, has contributed in large part to the 
disenchantment with Government we are seeing in recent years.
  We have heard a lot about bringing common sense into the regulatory 
process. My colleague from Utah has spoken about this. But I would like 
to point out the fact it was Senator Glenn, of Ohio, whom I recall 
first holding up the book, ``The Death of Common Sense,'' in one of our 
hearings in the Governmental Affairs Committee. We can all quote from 
this book and others, giving anecdotes which lay a foundation for the 
need for change in this country.
  One anecdote from that book discusses an OSHA regulation that 
requires manufacturers to describe the possible harmful effects of a 
hazardous substance on every package or container of the product. In 
1991, OSHA decided that packages of everyday bricks must contain a 
hazardous substance notice because a small amount of silica is released 
when the bricks are sawed in half. But OSHA did not consider the fact 
that bricks are rarely sawed in half, and that when they are only trace 
amounts of silica would be released. Nonetheless, the agency imposed 
this useless paperwork requirement on the Nation's brick manufacturers. 
Clearly, in that case, common sense did not prevail.
  I recently held a field hearing in Maine on Government regulations. I 
heard of another case where Federal regulators appeared to lose their 
common sense. A number of years ago, the Food and Drug Administration, 
the FDA, demanded that McCurdy Fish Co., of Lubec, ME, change its 
production method to protect the public from the threat of botulism. 
The FDA's extensive testing, however, never found any contamination in 
McCurdy's product. In addition, the FDA was applying a safety standard 
for freshwater fish even though McCurdy sold small ocean herring, a 
totally different type of fish. Nonetheless, FDA insisted that this 
small company purchase $75,000 worth of equipment to eliminate a hazard 
that had never arisen in the past and that was unlikely to ever arise 
in the future. Yet, with only $250,000 of annual revenue, McCurdy 
simply could not comply. As a result, it was forced to close its doors 
back in 1991, eliminating 22 jobs in an industry that had been part of 
that small community since the early 1800's.
  Twenty-two jobs may not sound like a lot to many of my colleagues 
here in the Senate, but 22 jobs in a small town like Lubec, on the 
coast of Maine, has a major impact upon the local economy. That is 
another case where common sense did not prevail. It is another case 
where we saw regulations proposed and imposed by the so-called faceless 
bureaucrats which really produced an inequitable result.
  Even though all of us can point to these types of horror stories and 
we can all agree that we need to reform our regulatory system, I think 
there is substantial difference of opinion about what is the correct 
solution.
  First of all, I do not think we can accomplish reform in a one-shot 
proposition. It cannot be accomplished on one piece of legislation; it 
cannot be accomplished overnight. As impatient as we might be to remove 
these excessive layers of regulation that have been accumulating over 
the past 40 years, we cannot succumb to the temptation to look for a 
quick fix that is going to cause many more problems than it hopes to 
resolve. Real regulatory reform requires Congress to review each and 
every piece of Federal legislation, to repeal the laws that are no 
longer working or serving a useful purpose, and fix those that are 
unnecessarily causing an undue burden on our economy.
  Mr. President, I am prepared to do that. That is what needs to be 
done. We should not try to pass some sort of regulatory reformation 
here that is going to deal on a procedural level with what needs to be 
focused on in terms of substantive issues.
  The bill before the Senate seeks regulatory reform through procedural 
reform rather than substantive changes in the law, and it focuses on 
reforming the process for implementing and reviewing these Federal 
regulations. The Governmental Affairs Committee, on which I sit, has 
been struggling with this issue for decades. Some 20 years ago the 
committee first issued a comprehensive report, concluding that the 
regulatory system was too costly and the process for developing the 
regulations too often ignored the costs that those regulations imposed 
on the economy. And the problems have only worsened since that time. 
The annual cost of Federal regulation was recently estimated to be 
approximately $560 billion for 1992 and projected to reach the 
staggering level of $660 billion by the year 2000.
  The remedy for this ill is twofold. First, Congress has to stop 
passing laws without considering the huge costs we are imposing on the 
economy in comparison to the benefits that are going to be derived.
 Second, after Congress does pass a law, the executive branch agencies 
need to make every effort to interpret and enforce the laws in the 
least costly manner possible.

  I believe that S. 291, which is the bill that was unanimously 
reported out of the Governmental Affairs Committee this past March, 
represented a balanced approach toward reforming the regulatory 
process. A version of that bill is going to be introduced as a 
substitute by Senator Glenn and Senator Chafee later on during the 
course of the debate on this measure. It requires the agencies to 
perform cost-benefit analysis and risk assessment for major rules. It 
authorizes sufficiently rigorous judicial review to ensure that the 
agencies take this responsibility very seriously. And it mandates that 
agencies review their existing regulations of cost effectiveness.
  I believe this approach is clearly superior to the one that we are 
currently considering.
  These provisions, combined with the congressional review process 
already passed by the Senate, would represent a marked improvement in 
our current regulatory system. I am a cosponsor of the Glenn-Chafee 
substitute and hope it gains the support of my colleagues.
  The Glenn-Chafee substitute is also commendable because it does not 
alter substantive statutes that are currently in effect and does not 
delegated to unelected Federal judges the authority to second-guess 
Congress' judgments about the costs and benefits of public policies.
  I frankly do not believe it is appropriate to attempt to alter 
carefully crafted legislation, some of which has enjoyed the support of 
Congresses over the years, through a statute which is designed to 
improve Federal rulemaking. If we do not like the Clean Water Act, if 
we do not like the Clean Air Act, if we do not like the Superfund Act, 
we ought to change them. But what we are doing is calling upon the 
regulators to change the substantive law that we have the 
responsibility to modify and to change if we are dissatisfied with it.
  I also believe it is inappropriate for a Congress which is concerned 
about litigation, about lawyers, about judges, about judicial activism, 
to suddenly hand them our laws and say, ``Here, you take care of this. 
You decide whether the agencies have exceeded their mandate. You decide 
whether or not their cost-benefit analysis was correct or inaccurate. 
You decide whether or not the least possible cost is involved here, as 
opposed to another regulatory alternative.''
  I do not believe that judges are well-equipped to evaluate whether 
the social and economic benefits of a policy justify its costs. The 
balancing of costs and benefits is essentially a political judgment, 
not a legal one. If a law passed by Congress requires agencies to 
implement inefficient regulations, then the responsibility for 
reversing those regulations rests with Congress. The Glenn-Chafee 
alternative accomplishes this by requiring the agencies to notify 
Congress when a regulation fails a cost-benefit test and by giving 
Congress the power to void any such regulation through expedited 
procedures. 

[[Page S 9777]]

  Mr. President, I think, for a Congress which is concerned about too 
much litigation taking place in this country, this bill is really 
inviting more litigation, and more lawyers and judges to now start 
interpreting what is taking place in the agencies, rather than the 
Congress measuring up to its own responsibility.
  So I think that the pending bill before us certainly can be improved 
upon. If the goal of regulatory reform is to make Government work 
better, we should not be overloading the Government with so many 
analytical requirements that it does not work at all. We cannot on the 
one hand bog agencies down with analytical requirements and expose them 
to additional litigation, and at the same time demand that they be able 
to meet the public's demand for prompt action.
  One thing is for sure. We know this. If another bacteria infects the 
city water system, the public is going to want to know, ``Where is the 
EPA?'' If workers are trapped in a factory fire, the public is going to 
want to know, ``Where was OSHA at the time to prevent this incident 
from taking place?'' If there is an outbreak of contaminated meat, 
people will look to the Department of Agriculture for answers. The 
public wants smaller and less intrusive Government. It also expects the 
Government to perform a core set of functions promptly and effectively.
  So these are the issues that are of concern to me: The effect of the 
bill on existing law, the role of the courts, and the cumulative burden 
on the agencies.
  I believe the Glenn-Chafee substitute is superior to the bill we are 
considering. I do not know if it will gain a majority. But I hope it 
receives sufficient support to force some needed changes to S. 343.
  Over the past week of debate, progress has been made on a number of 
fronts and some improvements have been made to the bill. The Johnston 
amendment raising the threshold for major rules from $50 to $100 
million was a step in the right direction.
  I would like to see the process of negotiation and compromise 
continue so a regulatory reform bill passes the Senate by a substantial 
margin and a bill emerges from conference that will be signed into law 
by the President. A truly bipartisan regulatory reform bill that could 
be enthusiastically supported by both parties would go a long way to 
restoring some of the confidence in our government that unfortunately 
has eroded over the past years.
  I see both of the authors of the bill on the floor. I want to commend 
them for being open to making changes. I think some real progress has 
been made during the last several days to improve the legislation now 
pending.
  I am hopeful that we will see even more changes to make sure that a 
strong bipartisan group of Senators supports the legislation.
  For that reason, I would like to urge very strong consideration of 
the Glenn-Chafee substitute when it is proposed.
  Mr. GLENN. Mr. President, I want to respond briefly to the remarks by 
the senior Senator from Maine because on our committee, the 
Governmental Affairs Committee, he has been one of the stalwarts on the 
Republican side in working on these matters of regulatory reform, and 
he deserves a lot of credit for that.
  I particularly appreciate his remarks. He is a cosponsor of the 
Glenn-Chafee approach to this whole matter of regulatory reform. We 
worked with him through the years. And I know how devoted he is to 
bringing some reform in this particular area.
  So I appreciate his remarks very, very much.
  I yield the floor.
  Mr. HATCH. Mr. President, I ask unanimous consent that amendments 
numbered 1502 and 1503 be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendments (Nos. 1502 and 1503) were withdrawn.
  Mr. HATCH. Mr. President, I ask unanimous consent that Senator 
Johnston be recognized to offer a first-degree amendment, the text of 
which is the pending Johnston amendment, and that a vote occur on the 
first-degree amendment with no second-degree amendments in order.
  Mr. JOHNSTON. Mr. President, will the Senator withhold that? It is a 
similar text but since it strikes in a different part of the bill, it 
will not be an identical text to that now pending.
  Mr. HATCH. With that understanding.
  Mr. GLENN. Mr. President, reserving the right to object, it was our 
opinion that we knew exactly what we were going to vote on at 5 
o'clock. Now I do understand that is liable to be changed?
  Mr. JOHNSTON. Under the rules, in order to accomplish what we wanted 
to accomplish, we had to amend a different page and section of the 
bill. The guts of this would be identical with a couple of really 
stylistic changes. The way it would read is: Any rulemaking pending on 
July 12, 1995, for which a notice of proposed rulemaking or a proposed 
rulemaking has been published in the Federal Register before April 1, 
1995--et cetera.
  Mr. GLENN. Mr. President, I would like to see it first so we can 
consider it with staff and look at it. We will put in a quorum call. I 
do not know what this does to our 5 o'clock time that was planned. I 
think we can probably resolve it between now and 5 o'clock. If we do, I 
will have no objection.
  Mr. HATCH. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WELLSTONE. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER (Mr. Thomas). Without objection it is so 
ordered.
  Mr. WELLSTONE. Thank you, Mr. President.
  I ask unanimous consent that I be able to speak for 5 minutes as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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