[Congressional Record Volume 141, Number 112 (Wednesday, July 12, 1995)]
[Senate]
[Pages S9777-S9792]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            RESCISSIONS BILL

  Mr. WELLSTONE. Thank you, Mr. President.
  Mr. President, I was on the floor earlier today trying to just 
present some clarity about the rescissions bill. I will not go over my 
remarks I made earlier, but, Mr. President, the simple point I made was 
that Senator Moseley-Braun and I, Friday and today, always made it 
clear that we had several amendments, altogether four amendments, and 
we agreed to 50 minutes on each amendment, to be in the evening and the 
stacked votes the next day, and equally divided for summary, 50 minutes 
equally divided. That seemed an eminently reasonable proposal, 
especially for a bill where there were changes from what we had done in 
the Senate and wanted a chance to make some changes in this piece of 
legislation.
  That was rejected by the majority leader, Mr. President, which amazed 
me. I mean, to argue that Senators cannot come out and have some 
amendments and some discussion about a peace of legislation so people 
know what is in there, it seems to me to go against the grain of what 
we are about and what representative democracy is about.
  Now I see something put out by the Republican Policy Committee, ``The 
Cost of Delay: The Filibuster * * *.'' So, Mr. President, could I just 
read from the dictionary about what a filibuster is? ``The Cost of 
Delay: The Filibuster * * *.'' Here is the definition of ``filibuster'' 
right out of the dictionary. ``The use of obstructionist tactics such 
as the making of prolonged speeches or the introduction of irrelevant 
material for the purpose of delaying legislative action.''
  Our amendments are hardly irrelevant. They deal exactly with these 
cuts. We wanted to have some offsets. We agreed to a time limit on the 
amendments; less than an hour for each one. And now I see this 
accusation of the filibuster.
  Mr. HATCH. Will the Senator yield on that?
  Mr. WELLSTONE. I would be pleased to, if I could read one more time 
the definition of ``filibuster.'' Maybe my colleague could further 
explain what the filibuster is, although I----
  Mr. HATCH. I would be happy to.
  Mr. WELLSTONE. I cannot think of a better colleague to do that for 
me. One more time before we get into these kinds of accusations and 
this kind of attack politics, ``The Cost of Delay: 

[[Page S 9778]]
The Filibuster * * *.'' ``Filibuster. The use of obstructionist tactics 
such as the making of prolonged speeches or the introduction of 
irrelevant material for the purpose of delaying legislative action; an 
instance of the use of such tactics, especially in the United States 
Senate.''
  Again, when Senators have amendments to a piece of legislation, very 
relevant, and agree to a time limit, and make it very clear that all we 
want is an opportunity to have a debate and discussion so people know 
what the priorities are of this rescission bill and some opportunities 
to improve it as we see it and better represent our constituents, that 
is hardly a filibuster.
  My second point, by the way, Mr. President, is there is no delay on 
our part. The delay is on the part of the majority leader who will not 
accept an eminently reasonable proposal. There is probably not a 
Senator in the U.S. Senate, Democrat or Republican, I say to my 
colleague from Utah, who does not believe that it is important for us, 
especially if we do not block a motion to proceed and especially if we 
have a time agreement, to have an opportunity to improve a piece of 
legislation.
  I would be pleased to yield to the Senator.
  Mr. HATCH. If the Senator would yield, I just enjoyed the Senator's 
remarks. And as someone who has seen filibusters on both sides, it is a 
little more than long, interminable speeches and irrelevant materials 
being brought up. The fact of the matter is that we have now been on 
this E. coli matter for 2 solid days when the original bill took care 
of that problem. Then to resolve it even further, to make it more 
explicit, Senator Dole brought his amendment forth yesterday, and it 
passed and solved it again.
  Now we are talking about exempting all of the HACCP rules, basically 
everything that the Department of Agriculture wants to do. To be honest 
with you, we know that this amendment is an amendment just plain geared 
to try to stop this bill, because if you exempt one agency, then we 
will see 50 people in here arguing to exempt other agencies or other 
agency particulars or other special interests. And we would like to 
just see them all covered.
  Now, the E. coli is taken care of. The meat problems are taken care 
of in this bill. They were taken care of before we got into this 
amendment process. We have been tied in knots for 2 days over this E. 
coli problem that was taken care of in the original bill. We have tried 
to solve the problem for the other side by restating it. We have put 
new language in this bill. And, frankly, there is a belief on the part 
of many--I think some on both sides of the aisle, many--that there is 
delay for delay's sake here.
  Now, whether that is true or not, I am not going to say this early in 
this stage of the bill. But it looks to me like it is starting to smell 
like it is true. And it is no secret that this is a bill that many on 
the other side and some on our side do not want to pass. But the vast 
majority here in the Senate do. And I think it is time to go ahead.
  Now, we do not have a time agreement. I have tried to get a time 
agreement. It has been objected to or at least they have asked me to 
withhold until the amendment of the distinguished Senator from 
Louisiana can be thoroughly examined by the other side.
  Mr. WELLSTONE. Would the Senator yield?
  Mr. HATCH. I might also add that the Senator from Louisiana could 
have modified his amendment at a whim, as it sat on the desk up here 
before we talked about a unanimous consent agreement. And he modified 
it. And in a very innocuous--
  Mr. WELLSTONE. Mr. President, do I have the floor?
  The PRESIDING OFFICER. The Senator from Minnesota has the floor.
  Mr. HATCH. I thought he yielded the floor. I apologize. I thought he 
yielded the floor.
  Mr. WELLSTONE. Mr. President, just so the Senator would--I will let 
the Senator from Ohio respond, but just for a moment, I want the 
Senator from Utah to know, I was actually not referring to this piece 
of legislation at all.
  Mr. HATCH. You were referring to something else?
  Mr. WELLSTONE. That is correct. I just want to make it clear that 
when I see a piece of literature coming out on a rescissions bill 
titled ``The Cost of Delay: The Filibuster * * *,'' I just wanted to 
read for some of my colleagues who make these accusations the 
definition of ``filibuster.'' It seems to me when Senators are going to 
be engaged in these kinds of attacks, we ought to be clear what a 
filibuster is. So, I read the definition of ``filibuster.'' And I will 
do it one more time. Dictionary definition: ``The use of obstructionist 
tactics such as the making of prolonged speeches or the introduction of 
irrelevant material for the purpose of delaying legislative action.''
  Our proposed amendments are not irrelevant. They are directly 
relevant to this bill. We have offsets. We have agreed to amendments. 
We have agreed to time limits on those amendments. That is in no way, 
shape or form a filibuster.
  I do not want to interrupt the flow of discussion about this bill, 
but I must say that if this goes on, I am going to have to come out 
here and start reading definitions of democracy and other such terms 
that are important to the way we conduct our business.
  But, Mr. President, before I yield the floor, let me just make it 
clear one more time. I did this morning, and I want to say it one more 
time. Senator Moseley-Braun and I have been very clear. We were clear 
Friday; we are clear now. The bill comes over, changes are made, 
changes are made late Thursday night, changes that are made that we 
think make this rescissions bill not the bill that was passed out of 
the Senate.
  We think it could use improvement. We think the people in the country 
do not know about some of these changes. We are not at all sure that 
some people's priorities are to cut low-income home energy assistance, 
summer jobs training, job training for dislocated workers, or 
counseling programs for seniors when it comes to consumer protection on 
health policies that they purchase. Therefore, we wanted the 
opportunity and desired the opportunity and made it clear to have some 
discussion. I do not know why my colleagues are afraid of some limited 
discussion about this so people in the country know what is in it. But 
it certainly is not a filibuster. We are ready to proceed as soon as 
there is no longer any delay, and I certainly hope the majority leader 
will be willing to let us go forward.
  I yield the floor.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, let me clarify this. There was an agreement 
worked out between the leaders. Senator Hatch was in the process of 
reading that. There was disagreement with it from Senator Johnston, who 
is a coauthor of S. 343, the Dole-Johnston bill. He wanted to change 
his amendment in some respects in the middle of the unanimous-consent 
request. I wanted to see what the changes were, which I do not think is 
at all unreasonable. If they were innocuous, fine, we would go ahead 
with it. It turned out they are a bit more substantive than I 
anticipated--dates changed, wording changed. So we have had staff 
working on it as fast as we can, checking with people who are more 
familiar with this than some of us.
  So that is what is going on right now. There was no intention to 
delay on our part whatsoever. It is just that in the middle of a 
unanimous-consent which we thought we had agreement on, changes were 
made in what we were about to vote on supposedly at 5 o'clock. I do not 
think it is unreasonable at all to know what it is we are voting on 
when something is being changed. That is the problem.
  They are in the cloakroom right now. I think we are going to have 
agreement on this shortly, but I am not willing to agree to a 
unanimous-consent request until we know what the vote is going to be 
on. We thought it was going to be on the amendment that we debated all 
day. The amendment has changed somewhat. As soon as this is worked out, 
we can set the vote.
  There is no attempt to delay. The change is made not in favor of the 
Glenn-Chafee bill, but one of the coauthors of the Dole-Johnston bill. 
That is the reason we are where we are with this delay.
  Mr. SPECTER addressed the Chair. 

[[Page S 9779]]

  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. I thank the Chair.
  Mr. President, I have been following the debate in an effort to 
understand exactly what the ramifications are of the amendment offered 
by the Senator from South Dakota [Mr. Daschle] and the second-degree 
amendment offered by the Senator from Louisiana [Mr. Johnston].
  The manager of the bill, the Senator from Utah, has discussed the 
matter with me, and in order to try to obtain some clarification, I 
called the Secretary of Agriculture to try to understand the specifics 
as to what is involved here on the inspection of meat and poultry.
  I favor regulatory reform and, in the course of the debate and 
amendments for consideration, I have supported amendments which will 
reform the regulatory process to try to eliminate some of the red tape 
which is now present. But I do believe that when it comes to matters of 
health and safety, we have to be very, very careful about how the 
reform measures impact the regulatory process. Furthermore, the 
regulatory process has to be reasonable so business can proceed without 
undue regulations.
  There is general agreement today that there is excessive governmental 
regulation, and it is not easy to find the appropriate balance. In my 
judgment, it depends upon the specifics.
  The Secretary of Agriculture pointed out to me the problems which 
have been discussed at some length regarding E. coli bacteria and 
salmonella. He said that for some 10 years, there has been an interest 
in the scientific community in moving beyond the traditional touching 
and smelling; that from the E. coli and salmonella, some 4,000 people 
die each year and several hundred thousand are made ill; that the 
proposed rulemaking, which was submitted in January, has brought 
comments from many, many people, thousands of comments, and they are in 
the process of considering those comments.
  The Secretary says there will be appropriate consideration so that 
there will not be an undue regulatory burden. He has received many 
complaints from the small packers who complained, understandably, about 
the cost in the testing, and there have been some complaints that they 
have not had enough of an input in the process. Secretary Glickman says 
that there will not be a final rule until there has been very 
substantial input from small business.
  The second-degree amendment which has been offered by Senator 
Johnston would exempt, as I understand it, the rulemaking process which 
Secretary Glickman is concerned about here but would not stop at a 
later time somebody going back and insisting on the kind of cost 
analysis which might invalidate the rule which the Department of 
Agriculture is considering at the present time.
  A question which is on my mind is whether there should not be some 
input from the Secretary of Agriculture who could make recommendations 
so that we could have legislative language which would protect the 
small packers, the small business people and have some guarantees 
against excessive regulations, but which would not tie the Secretary's 
hands on taking the steps which are necessary to guarantee the safety 
of meat and poultry.
  On this date of the record, it is my view at the moment, and I am 
prepared to listen to further argument, while the amendment by Senator 
Johnston is a significant step forward in exempting the current 
regulatory process at least for the time being, that it is not a 
guarantee that there will not be some revision at a later time which 
would jeopardize the sanitary condition of meat and poultry.
  My colleague from Utah, the distinguished chairman of the Judiciary 
Committee, asked me to review it to try to give him my thinking, 
because there is a vote count going on now. As I see it at the moment, 
I would support the Johnston amendment, but similarly I would support 
the Daschle amendment. I told my colleague from Utah it might be useful 
to have a discussion on the record.
  Mr. HATCH. I appreciate my colleague's candor. Actually, the Dole 
amendment yesterday solved the problem. Johnston solves it even 
further. What apparently the Secretary of Agriculture does not like is 
the petition process provided in this bill.
 I just suggest that if, 5 years from now, science dictates there is a 
need for a change, what is wrong with having the petition process to 
help to effectuate that change? That is what is provided for here.

  The fact of the matter is that the Daschle amendment exempts the 
Department of Agriculture rules asserting hazard analysis and critical 
control point systems from S. 343. Those are the systems that deal with 
E. coli in meat and poultry. Now, it is not necessary because yesterday 
the Senate, by a large margin, accepted Senator Dole's amendment that 
makes it absolutely clear what was already present in S. 343, that the 
bill contains emergency exemptions from cost-benefit analysis and risk 
assessment requirements of the bill. Consequently, where an emergency 
exists, where food safety from E. coli bacteria exists, S. 343 would 
permit and allow for a prompt promulgation of the HACCP rules.
  Mr. SPECTER. Will the Senator yield for a question?
  Mr. HATCH. First, I will add one other thing. The Johnston amendment 
takes care of the problem without exempting a rule from the bill, which 
is a very bad precedent. If we exempt one rule, everybody will be in 
here with their own special rules. We think all of the agencies should 
have the obligation under this bill to pass reasonable regulations.
  The Johnston amendment makes clear that the proposed rules in the 
pipeline as of April 1, 1995, will not have to redo cost-benefit 
analysis and risk assessment. This applies to the E. coli and food 
safety USDA-proposed rules, as well.
  Now, as I understand it--and I think it is a silly argument--those 
arguments for the Daschle amendment want a complete exemption for the 
Department of Agriculture rules because that would mean there would be 
no costly petition pursuant to section 633 of S. 343, and the petition 
need not be done. I call that silly because the petition process should 
lie for proposed rules prior to April 1, 1995. If it turns out that 
scientific assumptions underlying the bill are erroneous, or the rule 
turns out to be burdensome, why not allow for the petition and the 
agency rule? The rule would still be in effect if the petition is 
filed, so one can argue that safety will not be harmed.
  So we do not think that is essential. We think Johnston covers the 
problem and Dole does. We do not think there should be an exception for 
one aspect of regulation that would open the bill for all kinds of 
arguments that other aspects should be accepted at all. The petition 
process guarantees that we have the best science, and that petition 
process goes on for years.
  Mr. SPECTER. If my colleague will yield for a question, there are a 
number of questions I would like to discuss with the Senator from Utah, 
but I will start with the core question. When you talk about not 
wanting to have an exception because then you would have other 
exceptions, is not the issue of safety and health as it relates to meat 
and poultry a very, very unique circumstance which justifies an 
exception for that very important category? What other categories would 
the Senator from Utah anticipate seeking exemptions? Because if there 
are other categories where an exemption is accorded on a case-by-case 
basis, I think that is something the Senate ought to consider.
  Mr. JOHNSTON. If the Senator would allow me, Mr. President, I will 
answer. The unique circumstance of meat and poultry inspection is not 
unique, but it is an unusual circumstance, in that you have a 
rulemaking that is already mature, that has been out there for a couple 
of years, and they have already done a cost-benefit analysis and it is 
ready to go into operation, I think, later this year or early next 
year. In other words, it is ready to go, and the unusual circumstance 
is that you do not want to have to go back and redo that. And under the 
Johnston amendment, that would be exempted from the provisions of this 
bill, so that the rule can go into effect.
  Now, with respect to future rulemakings, 2 years from now or 5 years 
from now, we are saying this activity, even though it deals with public 
health, ought to have to go through the same scientific evaluation as 
any rules, 

[[Page S 9780]]
because almost all of this bill is concerned either with safety, with 
health, or with the environment. If we are going to exempt this, then 
why not product safety? You know, automobiles kill a lot of people. Why 
not the Clean Air Act? The Clean Air Act kills more people than E. coli 
by factors of hundreds. Hundreds of people die because of asthma, or 
whatever, because of unclean air. There is no problem with emergency 
rules. We have that taken care of, and we have a further amendment, 
even better, to take care of that.
  But the point is, you do not want to exempt future rules from 
scientific evaluation, from risk assessment, and from cost-benefit just 
because they deal with health, because almost everything deals with 
either health, safety, or the environment. We do want to exempt this 
rulemaking, which is ready to go forward and which will protect the 
public. We do not want to delay that.
  The Secretary of Agriculture has a very legitimate concern there. But 
we do not want to come along on a case-by-case basis and exempt 
anything that relates to health or safety or the environment, which is 
important, too, because then you have no bill left.
  Mr. SPECTER. Has there been an effort made to seek any exemption 
beyond this one on the Department of Agriculture?
  Mr. JOHNSTON. As part of the unanimous consent, we had requested that 
there be an agreement that there be no other amendments once we vote on 
the Daschle amendment with respect to health or safety. That was not 
agreed to on this side.
  Frankly, I have been asking around about what is next on that, and I 
have heard, well, there might be one on mammography, there might be one 
on cryptosporidium. Who knows? It is health and it is important, sure; 
everything is important. But under the Johnston amendment, any ongoing 
rulemaking is not going to be stopped. That is going to be allowed to 
go into operation. And if any emergency situation beyond that comes up, 
the bill will allow you to take care of the emergency situation. But if 
you have a new rulemaking, even though it relates to health, or safety, 
or the environment, that ought to pass scientific muster just like 
everything else because, look, great wrongs are committed in the name 
of health. In fact, most of the problems have been committed in the 
name of health.
  Mr. SPECTER. Both ways.
  Mr. JOHNSTON. Both ways. But we are correcting that with the Johnston 
amendment. And then, other than that, we subject all rules to good 
science. That is what this bill is basically about.
  Mr. SPECTER. If I may reply for a moment to what the Senator from 
Louisiana has commented about. I would be interested to see in the 
unanimous consent request if the issue is just limited to the 
Department of Agriculture. That would be very weighing on my mind on 
how I vote on the Daschle amendment.
  I support the Johnston amendment. I think it is a decisive step 
forward. I discussed this earlier today off the floor with the Senator 
from Louisiana. I think it is a step forward. But I want to know what 
other specific situations might rise to the level of the problem of the 
E. coli and the salmonella.
  Is it not true, if I may ask, whether there is not a lookback 
procedure, as the expression is used, even with passage of the Johnston 
amendment, that would open the door to reevaluation of this regulatory 
process that the Secretary of Agriculture is now engaged in?
  Mr. JOHNSTON. What it provides is that a year after the effective 
date, the Secretary or the agency shall list all rules which he or she 
thinks should be reviewed and that he or she thinks cannot pass muster 
under the bill; that is, where the benefits do not justify the costs.
  So that the Secretary himself or herself, if they want to review one 
of these rules, they can. They can do that anyway, today.
  In addition to that, if someone out there feels aggrieved, they can 
file a petition for a review. That is the lookback the Senator is 
talking about. But it is a high threshold.
  They have to show a substantial likelihood that they could not meet 
the test. The basic test is that the benefits justify the cost.
  Mr. SPECTER. To what extent does the Daschle amendment change that?
  Mr. JOHNSTON. It would exempt it from any scientific evaluation as 
provided for in this bill whatever.
  For the future, or lookback or anything else, this would be it. No 
questions asked. It would be business as usual with respect to this 
activity.
  Mr. HATCH. If I could just add to my colleague from Pennsylvania, we 
do not believe anything should be exempt from S. 343, because what S. 
343 requires is that we consistently push for the best science 
available.
  Frankly, the problem the Johnston amendment does deal with is what 
you do with proposed rules before the effective date. The amendment 
would set the date of April 1, 1995, as the cutoff date. Anything 
before that date, including E. coli rules, will not have to redo 
already done risk assessments and cost-benefit analysis--if, in the 
discretion of the head of that agency, they have already done that.
  We do not want to have to do unnecessary, duplicative risk 
assessments and cost-benefit analysis. That is what his amendment does.
  Frankly, safety is not the issue in this matter. Safety is taken care 
of through the Johnston amendment. Money is really the issue. Frankly, 
there is little or no reason for the Daschle amendment, once we have 
the Johnston amendment.
  Mr. SPECTER. I thank my colleagues. I will confer further with the 
Secretary and further study the matter.
  Mr. JOHNSTON. Mr. President, I was going to suggest as a way to 
handle this unanimous consent that I send an amendment to the desk at 
this time, and that the unanimous consent refer to the amendment at the 
desk. I will not do so until Senator Glenn or the representative of the 
minority leader comes out.
  I suggest if we do that, we send a Johnston amendment to the desk, 
have the unanimous consent refer to the Johnston amendment and to the 
Daschle amendment in the way that it is now stated.
  Mr. President, I see Senator Glenn. I was going to suggest I send an 
amendment to the desk, and that the unanimous consent refer, then, to 
the amendment at the desk.
  Mr. GLENN. Reserving the right to object, and I do object right now, 
we are spelling out what the changes are that have been made so we can 
comment on them briefly before we go to the unanimous consent request. 
That is being prepared. It should be ready within 4 or 5 minutes. I 
would rather do that and then send it to the desk.
  Mr. JOHNSTON. The Senator could refer to it in the unanimous-consent.
  Mr. HATCH. I do not see a problem of sending it to the desk.
  Mr. GLENN. Mr. President, I still object until we have a chance to 
look at this.
  Mr. President, I object, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Senator from Louisiana has the floor.
  The Chair, in his capacity as a Senator from the State of Wyoming, 
suggests the absence of a quorum.
  The clerk will call the roll.
  The assistant 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, I ask unanimous consent that Senator 
Johnston be recognized to offer a first-degree amendment, the text of 
which both sides are acquainted with, and a vote occur on the first-
degree amendment with no second-degree amendments in order after 5 
minutes of debate, divided equally between Senators Johnston and Glenn.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. HATCH. I further ask that following the vote on the Johnston 
amendment, Senator Daschle be recognized to offer a first-degree 
amendment, the text of which is the pending Daschle amendment, with no 
second-degree amendments in order, and a vote occur immediately on the 
amendment without any intervening debate or action.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.

[[Page S 9781]]

  Mr. HATCH. Finally, I ask unanimous consent that following the 
disposition of the Daschle amendment, no other amendments regarding the 
USDA HACCP rules proposed on February 3, 1995, be in order during the 
pendency of S. 343.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                Amendment No. 1504 to Amendment No. 1487

    (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 being 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 1504 to 
     amendment No. 1487.

  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:

       On page 50, between lines 15 and 16, insert the following 
     new paragraph:
       ``(4) 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.''
       1. On page 19 strike out lines 11 through 13 and the words 
     ``than 30 days after such date of enactment),''.
       2. On page 20, line 9 strike out the words ``(or, in the 
     case of a notice of proposed rulemaking'' and strike out 
     lines 10 through 12.
       3. On page 43, amend line 11 to read ``agency after the 
     effective date of this subchapter''; strike out lines 12 and 
     13; and strike out ``section 623'' on line 14.
       4. On page 48 amend lines 4 and 5 to read ``effective date 
     of this subchapter, the head of each''.
       5. On page 97 relable subsection (b) as subsection (c) and 
     insert a new subsection (b) as follows:
       ``(b) Any rulemaking pending on July 12, 1995 for which a 
     notice of proposed rulemaking or a proposed rulemake has been 
     published in the Federal register before April 1, 1995 shall 
     not be subject to the provisions of subchapter II or 
     subchapter III of chapter 6 of title 5 U.S. Code except for 
     section 623 (relating to review of rules).''

  Mr. JOHNSTON. Mr. President, I think it is fair to say that the 
Johnston amendment will not be opposed because the Johnston amendment 
is not now a substitute to the Daschle amendment; the Johnston 
amendment is a freestanding amendment which exempts the inspection of 
meat provisions from this subchapter. In other words, it allows that 
rule to go forward without any delay at all. I believe everyone is for 
that.
  The controversial amendment will be the Daschle amendment which will 
follow this because, if and when we adopt the Johnston amendment, it 
will solve the problem of the rulemaking. But what it will do is exempt 
totally the whole area from future rulemaking. If we do that with 
respect to inspection of meat and poultry, then what is next? 
Cryptosporidium, clean water, the Clean Air Act, car seats for kids, 
radioactivity? It sets a precedent to exempt everything from this bill 
and, if health is the standard by which you exempt matters from 
scientific determination, then why do a risk assessment at all because 
almost everything in this bill--almost everything--has to do with 
health, safety, or the environment.
  So, Mr. President, I ask my colleagues to vote for the Johnston 
amendment. I expect that almost everyone will. I urge that they vote 
against the Daschle amendment, as that undermines this whole bill 
because it sets a precedent for taking everything out of risk 
assessment and cost-benefit analysis and scientific determination.
  I reserve the remainder of my time.
  Mr. GLENN. Mr. President, the Johnston amendment, as revised, will 
exempt from the cost-benefit and risk assessment provisions of this 
bill any pending rules proposed before April 1 of this year. However, 
Senator Johnston's amendment does not solve the E. coli problem, since 
it would continue to subject the HHCCP rule to a petition and look-back 
process, as well as judicial review. That is of considerable concern. 
These procedures could expose this important public health rule to 
unnecessary and potentially life-threatening delay.
  In addition, Senator Johnston's amendment would continue to apply the 
requirements of this bill to many rules now in the pipeline which were 
proposed after April 1. Those rules would be subject to all of the 
requirements of the bill--cost-benefit analysis, risk assessment 
petitions, and look-back.
  This amendment would continue to allow the bill to delay rules that 
are currently in the pipeline, such as protections against 
cryptosporidium, unsafe mammography standards, and other important 
rules.
  For that reason, I urge my colleagues to vote no on the Johnston 
amendment and yes on the Daschle amendment, which would clearly permit 
the HHCCP rule, a rule that would protect the public from tainted meat, 
to go forward without change.
  I reserve the remainder of my time.
  Mr. JOHNSTON. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator has 20 seconds.
  Mr. JOHNSTON. Mr. President, I am surprised that Senator Glenn is now 
opposing the Johnston amendment because earlier today he said if the 
Johnston amendment were freestanding, he would support it. It is still 
a good amendment. It takes care of the problem. It prevents any delay 
in any pending rule now, and I urge my colleagues to vote for it.
  Mr. GLENN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 1 minute and 6 seconds.
  Mr. GLENN. Earlier today, I said I might. I wanted to see the 
language. I think it was good that I said that earlier. We have had a 
couple of changes here in the middle of the unanimous-consent request 
that changed the nature of this.
  So I did not make a commitment to vote for this in whatever form it 
might come up. I am for the general principle being proposed, but not 
the way this was developed today.
  So I yield the remainder of my time, and I am ready to go to a vote.
  Mr. JOHNSTON. I ask for the yeas and nays.
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. GLENN. I yield back the remainder of my time.
  The PRESIDING OFFICER. The question is on agreeing to the amendment. 
The yeas and nays have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER (Ms. Snowe). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 69, nays 31, as follows:
                      [Rollcall Vote No. 301 Leg.]

                                YEAS--69

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bingaman
     Bond
     Breaux
     Brown
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Ford
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Packwood
     Pressler
     Pryor
     Robb
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--31

     Akaka
     Biden
     Boxer
     Bradley
     Bryan
     Daschle
     Dodd
     Dorgan
     Feingold
     Feinstein
     Glenn
     Graham
     Inouye
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray 

[[Page S 9782]]

     Pell
     Reid
     Rockefeller
     Sarbanes
     Simon
     Wellstone
  So the amendment (No. 1504) was agreed to.
  Mr. HATCH. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. DOLE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. HATCH. Mr. President, I ask for the yeas and nays on the Daschle 
amendment.
  The PRESIDING OFFICER. Has the amendment been proposed?


                Amendment No. 1505 to Amendment No. 1487

(Purpose: To protect public health by ensuring timely completion of the 
  United States 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, I call up the amendment.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle] proposes an 
     amendment numbered 1505 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, stike out ``or''.
       On 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. HATCH. Madam President, I ask for the yeas and nays on the 
Daschle amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second
  The yeas and nays were ordered.
  Mr. DOLE. Madam President, I will just say, we are not making much 
progress on this bill. We hope to have votes on into the evening. So I 
hope we will have some volunteers ready to offer amendments right after 
this vote.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1505. The yeas and nays have been ordered. The clerk will call the 
roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 49, nays 51, as follows:
                      [Rollcall Vote No. 302 Leg.]

                                YEAS--49

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Bryan
     Bumpers
     Byrd
     Chafee
     Cohen
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Snowe
     Specter
     Thompson
     Wellstone

                                NAYS--51

     Abraham
     Ashcroft
     Bennett
     Bond
     Breaux
     Brown
     Burns
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Helms
     Hutchison
     Inhofe
     Johnston
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Stevens
     Thomas
     Thurmond
     Warner
  So the amendment (No. 1505) was rejected.
  Mr. JOHNSTON. Madam President, I move to reconsider the vote.
  Mr. HATCH. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senate majority 
leader.
  Mr. DOLE. Madam President, I understand--if I could have the 
attention of my colleagues--I understand the Senator from Wisconsin has 
an amendment on which he is willing to accept a time agreement of 30 
minutes. We were going to propose 30 minutes and any second-degree 
amendment be limited to 20 minutes equally divided and must be relevant 
to the first-degree amendment.
  I do not have a copy of the second-degree amendment. There may be one 
or more second-degree amendments. But if we could start off on the 
premise that the Senator from Wisconsin had 30 minutes, maybe by the 
time he finishes, we will have a copy of the second-degree amendment. 
Will that be OK?
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. The Senate minority leader.
  Mr. DASCHLE. Madam President, we would certainly want to accommodate 
some time agreement, but I think in order to accommodate any specific 
time agreement, we would want to see the second-degree amendment. If we 
could do that, just as soon as we see it and have a chance to look at 
it, I think we could lock into a time certain. But I would be reluctant 
to lock into any time until we had a chance to look at it.
  Mr. DOLE. In the meantime, the Senator from Wisconsin will proceed on 
the basis we hope to have a time agreement?
  Mr. DASCHLE. That will be all right.
  Mr. DOLE. So any of my colleagues who would like to eat, I think it 
is safe to say there will be no votes until 8 p.m.
  Mr. JOHNSTON. Madam President, how long did the majority leader wish 
to proceed?
  Mr. DOLE. Hopefully for a while. I understand the Senator from 
Delaware will have an amendment following disposition of the amendment 
of the Senator from Wisconsin. We are not moving too quickly. There are 
still, as I understand it, numerous amendments. We have not had the 
major amendment from the other side, the Glenn amendment.
  So, we will be here for a while yet this evening.
  Mr. JOHNSTON. Madam President, will the Senator yield?
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. We have had some delays on both sides.
  Mr. DOLE. Right.
  Mr. JOHNSTON. We have a number of amendments we are sort of waiting 
to get cleared on the other side having to do with the problem Senator 
Glenn pointed out on 180 days within which to perform a risk 
assessment. We want to extend that to a year. That is something on 
which we are just waiting for an answer. It is a very simple, 
straightforward amendment.
  There is another one having to do with Superfund. Those are really 
big amendments. If we got those adopted, I think it might change the 
sort of mood, our procedure.
  They are not, apparently, ready, so I do not insist on it. But I hope 
we could get a procedure for clearing these amendments on the other 
side as well as on our side.
  Mr. DOLE. Right. I do not know if we have had any cleared on either 
side, but I think we should try to cooperate where we can. As far as I 
know, nothing has been cleared.
  Mr. KERRY. Will the majority leader yield for a moment? Madam 
President, I ask the majority leader. We have a list, a series of sort 
of major items, and then some less major, that have been presented some 
time ago. We did, in the day before we departed for the recess, have a 
negotiating process that at least had just begun. That broke up with 
the notion that at some point we might hear from people whether we 
could get back and see if we could make more progress.
  It is my sense the Senator from Utah has, in good faith, offered to 
sit down. The Senator from Louisiana has. The difficulty is both of 
them have also had a requirement to be on the floor for a significant 
period of time, so it is very hard to try to accomplish what I think 
might be possible, which is to have progress in the negotiating effort.
  I do not know if that means, therefore, it might make sense to have a 
prolonged quorum call in the morning, or maybe come in a little later 
and give us time to get together and see if we could find some 
commonality. But we are still waiting for a response with 

[[Page S 9783]]
some specificity to those things that have been submitted.
  Mr. HATCH. If I could answer the distinguished Senator?
  Mr. DOLE. I will be happy to yield to the Senator from Utah for that 
purpose.
  Mr. HATCH. If I could answer the distinguished Senator, it is my 
understanding that both sides are pretty well aware of what we can 
agree to and what we cannot agree to. But I would be happy to sit down 
in the morning and go over every detail and see what we can do.
  But we have given responses to that. It is my understanding staff has 
been informed of what our positions are.
  Mr. KERRY. Well, Senator----
  Mr. HATCH. If that is not so, I will be happy--I would be happy to 
sit down anyway, because there may be things we can work out.
  Mr. KERRY. It was my understanding, in conversations a few moments 
ago with the Senator from Louisiana, that he thought we had the 
capacity to accommodate a particular concern on the decisional criteria 
which we had some colloquy on yesterday on the floor and some further 
conversation on today.
  Mr. HATCH. Let us sit down and see if we can.
  Mr. KERRY. But we still do not actually have language or an agreement 
to do so, so we are in this sort of nebulous area. I think it would be 
helpful if we could find the time to work through those critical areas. 
At that point, a lot of our people who would like to vote for this bill 
if we can fix these things will have the ability to decide whether we 
are close to that, whether that is a reality or not. I think it would 
help determine what the course will be on this legislation.
  Mr. DOLE. We had a brief discussion last night, I guess before we 
adjourned, with the Senator from Louisiana because the Senator from 
Ohio raised a question last evening about 9 major areas of difference 
and 23 minor areas of difference which consumed--I do not know--25 or 
30 pages of suggestions, or a number of pages.
  I think we are in the process--at least I understand Senator Hatch 
and Senator Johnston may be in the process--of going through those one 
by one trying to get some response to the Senator from Ohio. But that 
does not mean we should not meet and see if we cannot make further 
progress.
  Mr. JOHNSTON. Mr. President, if the leader will yield, I have 
completed that process and given answers for those. But we will be 
happy to meet as well and talk about what the answers are.
  Mr. LEVIN. If the leader will also yield for that, I understand from 
the Senator from Utah that the responses that we now have that we can 
take a look at overnight are also reflecting his own views and the 
views of others on that side of the aisle.
  Is that fair?
  Mr. HATCH. I think that is fair. I think it is correct. Of course, we 
are going to continue this dialog throughout this process. There will 
be an attempt to accommodate folks on both sides of the aisle. We are 
getting down to where we are going to have to battle out some of these 
issues.
  Mr. DOLE. We have, I might add, requests for morning business for 
about an hour and a half in the morning. That might accommodate 
concerns, and give Senators time to sit down and at least go over each 
of the items.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. The minority leader is recognized.
  Mr. DASCHLE. It is my understanding that the Senator from Wisconsin 
will be recognized to offer his amendment.
  The PRESIDING OFFICER. That is correct.
  Mr. KOHL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.


                Amendment No. 1506 to Amendment No. 1487

(Purpose: To protect the public from the dangers of Cryptosporidium and 
     other drinking water hazards by ensuring timely completion of 
 rulemaking to protect the safety of drinking water from microbial and 
                              other risks)

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

       The Senator from Wisconsin [Mr. Kohl], for himself, Mr. 
     Daschle, Mr. Glenn, Mr. Feingold, Mr. Lautenberg, and Mrs. 
     Boxer, proposes an amendment numbered 1506 to amendment 
     numbered 1487.

  Mr. KOHL. Madam 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:
       On page 19, line 5, strike out ``or''.
       On 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) any rule proposed or promulgated by the 
     Environmental Protection Agency that relates to the control 
     of microbial and disinfection byproduct risks to human health 
     in drinking water supplies.''

  Mr. KOHL. Madam President, we have heard the arguments made by 
proponents of S. 343 stating that the emergency exemption section of 
this bill will protect urgent health and safety regulations in the 
pipeline. However, a careful reading of the legislation reveals that 
many essential regulations would not be protected under this section or 
the bill as a whole. My amendment will address a particularly serious 
omission: namely regulations to protect the public from the dangers of 
cryptosporidium and other drinking water hazards.
  Simply, what my amendment does is exempt pending EPA regulations 
regarding cryptosporidium and related waterborne parasites from the 
strictures of this bill.
  Unfortunately, I am all too familiar with the cryptosporidium 
parasite because of the recent outbreak of this waterborne disease in 
my State of Wisconsin. As many may recall, the water supply in 
Milwaukee was contaminated with this parasite in 1993, and 104 people 
died. Let me repeat, 104 people died. And more than 400,000 became 
severely ill as a result of drinking ordinary tap water.
  As we continue this debate, I urge my colleagues to keep in mind, 
this bill is not just about how many forms businesses should be 
required to fill out, this bill is about peoples' lives.
  Over the years, we have come to take for granted the safety of our 
drinking water. We have done much to protect American water consumers 
from devastating waterborne disease and death that plagues so many 
other countries in the world. But we have become complacent about the 
safety of our drinking water--perhaps too complacent.
  In the aftermath of the Milwaukee cryptosporidium outbreak, EPA, 
water utility organizations, local government officials, and public 
interest groups have worked together to agree upon a plan of action. 
All parties agree that the cryptosporidium problem must be addressed. 
And now all parties have agreed on the way to fix this problem. EPA is 
in the process of issuing three regulations to implement this 
agreement, in order to prevent the devastation that crippled Milwaukee 
from occurring again. But S. 343 threatens to stop the process dead in 
its tracks. While that may not be the intention, I believe that that 
will be the outcome.
  In cooperation with the regulated industry and public interest 
groups, EPA is moving forward on three regulations:
  First, the information collection rule, which requires water 
utilities to collect data about the contaminants, like cryptosporidium, 
in their water. Based on the information collected, the next two 
regulations will be finalized.
  Second, the enhanced surface water treatment rule, which, based on 
the information collected, will require new treatment and filtration 
methods to protect against cryptosporidium and related parasites, and
  Third, the disinfectants/disinfection byproducts rule, which will 
propose standards on certain harmful byproducts that
 are created as a result of using chemical disinfectants to treat 
drinking water.

  This is not an example of a Federal agency issuing ridiculous 
regulations in a vacuum. Instead, this is an example of the Federal 
Government finally addressing a problem that should have been addressed 
long ago. And it is an example of a cooperative effort with all 
involved parties.
  Given the overwhelming need and support for these regulations, we 
should not be subjecting these regulations to the time consuming and 
extremely complicated labyrinth of S. 343.
  I would like to briefly mention just a few of the problems that S. 
343 poses for the pending cryptosporidium protection regulations. 

[[Page S 9784]]

  First, S. 343 would stop EPA from gathering information on 
cryptosporidium. One of the first things EPA is doing, even before 
setting drinking water standards, is to gather information from water 
utilities to gain a better understanding of the problem. This is a 
common sense approach. The information gathered will help the agency 
and the water utilities gain a better understanding of the nature of 
the cryptosporidium problem and other less-known waterborne parasites. 
The rules cost would make this information collection rule subject to 
the strictures of the bill. But this creates a catch-22: The whole 
purpose of this rule is to gather information to be able to judge the 
costs and benefits of creating new standards to protect against 
waterborne diseases. So it would be impossible to do a cost benefit 
analysis on the effort to gather data. This makes no sense.
  A second problem with S. 343 is that it could stop EPA from issuing 
stronger drinking water rules altogether. Without the information 
collection EPA has proposed, it will be impossible for EPA to conduct a 
full risk assessment as required under S. 343. Further, S. 343 makes it 
nearly impossible for EPA to specify the technology needed to 
adequately treat water to address cryptosporidium. Instead, the bill 
requires use of least cost alternatives, and establishment of vague 
performance goals that make it difficult to protect consumers.
  It is highly unlikely that these regulations would be covered by the 
emergency exemption in the bill. How could the EPA possibly win a court 
challenge--and I am certain there would be a court challenge--on 
whether this rule is responding to an emergency? The information 
collection rule, which starts the whole process, is to determine the 
extent to which there is an emergency. Certainly for those of us who 
have watched the human devastation in Milwaukee, there is no question 
that an emergency exists. And I know that my colleagues from Texas, 
Georgia, Oregon, Nevada, and other States that have had recent 
outbreaks view this as an emergency, as well. But we still must 
determine the extent of the problem nationwide. And that's a time 
consuming process. Can you imagine the opponents saying, ``Well, if 
you're planning to spend 18 months collecting information it can't 
really be an `emergency.' ''
  One final note on the emergency exemption we have been hearing so 
much about. The emergency exemption just delays the cost benefit 
analysis requirement by 180 days. It does not waive the cost benefit 
analysis. Having to do a risk benefit analysis mid stream would disrupt 
the data collection process.
  Madam President, I urge my colleagues to support this amendment to 
protect the drinking water rules which are in the works. More than 45 
million Americans use tap water from systems that have been found to 
have cryptosporidium. Everyone agrees that we have a problem here. And, 
everyone agrees on the solution. My reading of the Dole-Johnston bill 
is that it would certainly delay and even stop this solution. My 
amendment would ensure that does not happen.
  Madam President, S. 343 is intended to streamline the regulatory 
process and bring common sense to government. However, there are times 
when lack of action on the part of the Federal Government does not make 
sense. If we had stricter water treatment standards in place, maybe the 
tragedy in Milwaukee would not have happened.
  I yield the floor.
  The PRESIDING OFFICER (Mr. DeWine). Is there further debate on the 
amendment?
  Mr. FEINGOLD. Mr. President, I rise today in full support of the 
amendment proposed by my colleague from Wisconsin [Mr. Kohl]. I cannot 
express to my colleagues in the Senate the significant urgency with 
which regulations on cryptosporidium, other waterborne parasites, and 
disinfection byproducts, need to move forward. EPA has negotiated a 
series of regulations with the cooperation of water utilities and 
public interest groups to require public water systems to test for 
cryptosporidium and other parasites and issued them as a proposed rule 
package. Using information from these negotiations, the EPA has also 
indicated its intent to prescribe particular treatment and filtration 
techniques to prevent waterborne disease outbreaks. Mr. President, this 
regulatory reform bill should support, not hinder, the results of 
negotiated rulemaking. Bringing the potentially regulated community 
together with the regulatory agency to discuss in a constructive way 
the content and scope of governmental requirements in negotiated 
rulemaking is the type of process that helps to ensure our objectives 
in regulatory reform.
  Lest anyone in this body think that cryptosporidium is either just 
Milwaukee's problem, or an unfortunately vogue parasite brought into 
the limelight 2 years ago, cryptosporidium has been widely detected in 
public water systems, including here in Washington, DC, in 1994. In a 
September 30, 1994, Congressional Record statement, I described the 
contents of a three-part NBC news ``Dateline'' series that ran on 
cryptosporidium. Though the news show time limits prohibited a listing 
of all the cases of concern, the program reported that between 1986 and 
1992, the Centers for Disease Control reported a total of 102 drinking 
water disease outbreaks linked directly or indirectly to microscopic 
parasites, viruses, and bacterium striking 34,155 people in 35 States.
  Concerns with cryptosporidium outbreaks continue. On June 15, 1995, 
the CDC and EPA issued additional guidance for people with weakened 
immune systems, such as people with HIV and AIDS, cancer and transplant 
patients taking immunosuppressive drugs, and people with genetically 
weakened immune systems, to take extra precautions in consuming 
municipal water such as boiling their water or using a cyst-certified 
water filter to protect against cryptosporidium.
  Some 400,000 people, of all States of health, became ill in Milwaukee 
and my colleague from Wisconsin and I have seen firsthand the ongoing 
health problems and the significant institutional response and 
coordination challenges that Milwaukee citizens continue to face, in 
the absence of regulation.
  I also remain concerned about the health risks posed by disinfection 
byproducts, rules that were proposed to control the
 amount of disinfectant byproducts allowed in drinking water at the 
same time that safeguards would be strengthened against disease-causing 
microorganisms such as cryptosporidium. According to the fall 1994 EPA 
Journal, chemicals used to disinfect drinking water, such as chlorine, 
form byproducts that can harm human health. For example, chronic 
exposure to excessive amounts of trihalomethanes, a class of 
byproducts, can cause cancer, liver and kidney damage, heart and 
neurological effects, and effects on fetuses. The proposed rule would 
lower the maximum contaminant level for total trihalomethanes from 100 
micrograms per liter to 80 and address 6 other by-products.

  In conclusion, our efforts to reform the regulatory process should 
not thwart rules that are needed and consensus-based, such as the rules 
on cryptosporidium. The citizens of Milwaukee, and indeed the citizens 
of many other major cities, are asking for the Government to respond to 
this public health concern. I believe exempting these rules from this 
bill is both the responsible public policy course, and the right thing 
to do.
  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 bill clerk proceeded to call the roll.
  Mr. KOHL. 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. KOHL. Mr. President, I would like to insert in the Record 
supporters of the Kohl amendment to exempt microbial and disinfection 
byproduct rules from S. 343. Those organizations are: American Oceans 
Campaign, Clean Water Action, Environmental Working Group, Friends of 
the Earth, National Association of People with AIDS, Natural Resources 
Defense Council, Physicians for Social Responsibility, Sierra Club, and 
U.S. Public Interest Research Group.
  Mr. President, I suggest the absence of a quorum. 

[[Page S 9785]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GLENN. 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. GLENN. Mr. President, let me congratulate the distinguished 
Senator from Wisconsin [Mr. Kohl] for taking the initiative on this 
matter. His constituents were hard hit in Milwaukee not long ago when 
they had some of these problems with cryptosporidium. It resulted in 
around 100 deaths and some 400,000 people ill. So he brings this to our 
attention. He certainly has the personal experience of knowing what 
happened back right where he lives with people he knows.
  For that reason, I fully support the Senator from Wisconsin on this 
amendment to ensure the health and safety of our people. As I stated 
earlier when talking about the E. coli bacteria, this bill, S. 343, 
does not, in my opinion, provide that essential balance of regulatory 
relief and protection of the American people, and there does have to be 
that kind of a balance.
  That is why I supported the minority leader's amendment on the USDA 
E. coli meat and poultry inspection rule. And that is why I support 
this amendment on rules addressing cryptosporidium. The current dangers 
to public health from contaminated drinking water were made clear by 
the outbreak of cryptosporidium in the water supply of Milwaukee, WI. 
As I said a moment ago, it resulted in an estimated 100 deaths and over 
400,000 illnesses. I do not know the population of Milwaukee, but that 
means just about everybody around that area was sick for a while--
400,000 people ill, and some ill enough that around 100 died from 
this--died.
  So the amendment of the Senator from Wisconsin 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.
  I stated earlier the situation with this rule reminds me of the 
regulatory moratorium we had before us not long ago except now we are 
calling it regulatory reform. Rules that are in the pipeline and will 
be final soon must still go back to square one all over again. Even 
with the emergency exemption that the proponents of S. 343 keep 
pointing to, this rule would still be subject to all the petition 
provisions, be subject to all the judicial review opportunities, the 
agency review of rules, and et cetera, all the things that are 
provided.
  Also, the emergency exemption in S. 343 does not really exempt 
anything from the bill. It would be only temporary at best. 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 the 
requirements of the bill and that is it.
  Now, at the end of the 180 days, all of the onerous requirements of 
S. 343 kick in again. No exemption then. Just new opportunities for 
challenges, uncertainty, and delay.
  Now, I guess the people who wrote this assume that 180 days was 
enough to do all the investigating that would have to be done. But some 
of these rules and regulations take years and years to finalize. Yet, 
we are saying, Do this within 180 days or you have to go back and start 
all this all over again. It is just a new opportunity for challenges, 
uncertainty and delay.
  What will happen to the implementation of the rule when it faces 
those prospects? Well, regardless of the Senator from Wisconsin's 
amendment, the cryptosporidium rule will be caught in the vise of S. 
343 and public health will suffer. The potential delays for this rule 
are very real. So there will be the additional deaths and sicknesses. 
They will be very real, too. Those sicknesses and deaths will be to 
those Americans who possibly assume wrongly that their water is safe to 
drink.
  This amendment is certainly a step in the right direction to protect 
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, 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. And I 
repeat for the umpteenth time on the floor, there has to be a balance 
between those two. That is why I, along with Senator Chafee and many 
others, have introduced S. 1001, which we believe is a balanced 
regulatory reform proposal. It is a tough bill. It is not an easy bill. 
But our bill would not shut down these important rules that are already 
in the pipeline.
  So 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.
  Mr. President, I would like to also talk for a moment about problems 
for control of cryptosporidium with the amendment to exempt prior 
proposed rules, the Johnston amendment, so-called, that we just passed.
  Now, the amendment we passed, which I voted against, would raise 
several problems for control of cryptosporidium, even apart from the 
likelihood that the continued application of the section 623 petition 
process would have the effect of nullifying the exemption.
  First, the interim enhanced surface water treatment rule [IESWTR] to 
address waterborne microbial contamination, was proposed on July 29, 
1994. This proposal did not actually contain a specific approach to 
control such contamination, but as an integral part of the negotiated 
agreement with stakeholders, including the drinking water industry, it 
set forth general control options that might be part of a final rule 
and request for other options. This was done because, per the 
agreement, the final rule was to be developed after and based on a 
large effort by the industry to gather scientific information on 
microbial and related drinking water contaminants. By being made very 
general as controls, as agreed, the proposal would expedite the 
regulatory process after the data collection.
  Second, given how little of necessity that the proposed IESWTR told 
about the controls to be required in a final IESWTR, judges may 
conclude it would be irrational to apply the exemption to a proposed 
rule which arguably does not fulfill the normal function of a 
proposal--to describe the initially intended direction of the 
regulatory agency's approach to controls on the particular issue.
  Now, given the general rule of legal interpretation that the 
legislative body not be presumed to have intended an irrational result 
and the concern elsewhere in the bill, and in this amendment, that 
notice in the Johnston amendment--that notice suggests final rules 
should be substantially similar--substantially similar to proposed 
rules, some judges might find this a basis for deciding that Congress 
could not have intended any proposal made before April 1, 1995, to 
include this proposal.
  Further, as the word interim suggests, the regulatory negotiation 
left open the potential that further controls might be needed for 
cryptosporidium, and the IESWTR did not necessarily represent the full 
regulatory response appropriate for cryptosporidium. The concept for 
the interim rule to be promulgated as quickly as reasonably possible 
after the information collection was completed shows the intent of the 
reg neg to put in place--regulatory negotiation--to put in place 
whatever controls were quickly attainable but still solidly science 
based.
  Thereafter, if implementation of the interim-enhanced surface water 
treatment rule left a substantial remaining risk to health from 
cryptosporidium, that risk could be addressed in an enhanced surface 
water treatment rule. Therefore, even if the proposed IESWTR did prove 
to be exempted under this amendment, any later enhanced surface water 
treatment rule clearly would not be exempted. I bring that up because 
it does apply to cryptosporidium and specifically with regard to the 
Johnston amendment that we passed just a short time ago.
  So once again I urge my colleagues to support the amendment by the 
distinguished Senator from Wisconsin. He points out the dangers because 
there were dangers in his State that resulted in around 100 people 
dying and some 

[[Page S 9786]]
400,000 ill. I think knowing that the danger, knowing that that is what 
has already occurred, to say that we should take any chance at all or 
make any requirement for going back and doing new analysis, new risk 
assessment, we know the risk is there. Doing new cost-benefit ratios, 
doing new everything when we know what the danger is, I think would be 
a mistake.
  So I fully support the distinguished Senator from Wisconsin, and I 
would urge my colleagues to support this amendment when we have a vote 
here in a half hour or so. And I hope that it will pass because it is 
something that is needed to protect the health and safety of this 
country so we do not have more outbreaks such as the disastrous one 
that happened in Milwaukee.
  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. KOHL. I ask unanimous consent that the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KOHL. I would like to thank very much my colleague from Ohio for 
the kind words he said about this amendment and, of course, for the 
arguments most importantly that he has presented in support of this 
amendment.
  In the aftermath of the Milwaukee incident, Mr. President, EPA 
negotiated a package of regulations to protect citizens against future 
outbreaks. All interested parties participated in this regulatory 
negotiation, people like water utilities, local officials, public 
interest groups, and others. And now all parties have agreed to these 
regulations. They feel strongly about moving ahead as quickly as 
possible.
  I ask unanimous consent to have printed in the Record the very broad 
list of groups that have participated in the very cooperative, 
commonsense regulatory process.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

   Regulatory Negotiation Committee, Disinfectants and Disinfection 
                    byproducts rule, membership list

       Scott Bernstein, Center for Neighborhood Technology, 
     Chicago, IL; David Bailey, Environmental Defense Fund, 
     Washington, DC; James R. Elder, Director, Office of 
     Groundwater and Drinking Water, U.S. Environmental Protection 
     Agency, Washington, DC; Paul Foran, Illinois Commerce 
     Commission, Danville, IL--representing National Association 
     of Regulated Utilities Commissioners; Joe Glicker, Portland 
     Water Bureau, Portland, OR--representing unfiltered surface 
     water systems; Barker G. Hamill, Chief, Bureau of Safe 
     Drinking Water, Dept. of Environmental Protection and Energy, 
     New Jersey Department of Environmental Protection, Trenton, 
     NJ--representing Association of State Drinking Water 
     Administrators; George Haskew, President, Hackensack Water 
     Company, Harrington Park, NJ--representing American Water 
     Works Association; Robert J. Hirsch, Council Member, City of 
     Myrtle Beach, Myrtle Beach, SC--representing National League 
     of Cities; Donald Jackson, South Central Connecticut Regional 
     Water Authority, Branford, CT--representing Association of 
     Metropolitan Water Agencies; Edward G. Means, Director, Water 
     Quality, Metropolitan Water District of Southern California, 
     Los Angeles, CA--representing National Water Resources 
     Association; Kim Mortensen, Chair, Bureau of Epidemiology and 
     Toxicology, Ohio Department of Health, Columbus, OH--
     representing Association of State and Territorial Health 
     Officials; Erik Olson, Senior Attorney, National Resources 
     Defense Council, Washington, DC; David Ozonoff, School of 
     Public Health, Boston University, Boston, MA--representing 
     Conservation Law Foundation; Scott Rubin, Pennsylvania Office 
     of the Consumer Advocate, Harrisburg, PA--representing 
     National Association of State Utility Consumer Advocates; 
     Margot F. Saunders, National Consumer Law Center, Washington, 
     DC; Ronald Twillman, Manager of Laboratories, St. Louis 
     County Water, St. Louis, MO--representing National 
     Association of Water Companies; Chris Wiant, Director, Tri 
     County Health Department, Englewood, CO--representing 
     National Association of County Health Officials.

  Mr. KOHL. 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. 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, here we go again. This is a very similar 
amendment my dear colleague from Wisconsin has brought up. It is quite 
similar to what we have been debating for the last 2 days.
  Yesterday the adoption of Senator Dole's amendment makes crystal 
clear that S. 343 contains several provisions that deal with health and 
safety emergencies.
  Any rule, including any proposed EPA rule dealing with 
cryptosporidium, is not delayed by the Dole-Johnston bill. The bill 
waives the requirement for notice and comment procedures when 
emergencies occur. I do not know how much more clear we can make it 
than we have made it in this bill.
  The bill waives the cost-benefit requirements when emergencies occur. 
The bill waives the risk assessment requirements when emergencies 
occur. Simply put, S. 343 will not--let me just emphasize that, will 
not--in any way delay the promulgation of a rule when health and safety 
emergencies require quick public action.
  I understand my colleague from Wisconsin--and I know he is very 
sincere and he is literally trying to solve a problem that he thinks 
does exist, but we have solved that problem in the prior language that 
has been put in this bill.
  In any event, rules to protect against cryptosporidium microbes are 
already in place. The public safety is protected today. As we stand on 
the Senate floor, the public safety is protected.
  When EPA enforces a rule, it does so through an adjudicatory order, 
not a rule. This is important. When an inspector or EPA official shuts 
down a water processing plant or water reservoir by an order, they do 
so by an order, not a rule. Such orders, which are not rulemakings, are 
explicitly exempt from S. 343--explicitly exempt from S. 343.
  So nothing will stop the EPA from issuing an order, not a rule, but 
an order shutting down a water plant or a water processing plant if 
they find that plant and that water not to be safe.
  As to the petition process, it is true that a proposed rule, such as 
the cryptosporidium proposed rule, may be subject to S. 343's petition 
process. But this is a good thing.
  Why is it a good thing? Years from now when perhaps new science 
requires a new standard, why should we not put into this bill--which we 
have--a provision that a petition should be granted to require an 
agency to look at the latest scientific data? That is what is involved 
here. We just want all decisions in the future to be made on the best 
available science so that the decisions will be right.
  More important, we put protections in this bill to make sure that the 
rulemaking by the regulatory agencies is done in the highest form and 
in the best sense. If a rule becomes burdensome, why should not the 
rule be reviewed? If we find that there is a scientific change that 
merits reviewing the rule, why should we not use the best science to do 
so? That is what this bill does. It is a commonsense bill. It is pure 
and simple common sense.
  The Dole-Johnston bill protects health and safety. The Dole-Johnston 
bill does not delay the promulgation of emergency rules or even apply 
at all to orders that enforce agency health and safety rules. And that 
is something that has not been brought out in our debates up to now, 
that orders are not covered. Orders can be issued by these agencies 
and, frankly, emergency rules can be obtained where an emergency 
exists. The bill is explicit on it. The bill makes it clear. The bill 
protects the American public, and the bill requires that the best 
science be used through the years in these areas.
  So there is no need for this amendment and, frankly, it is the same 
issue as we had with regard to the E. coli issue. We have solved that 
problem. We have an emergency provision in this bill that will allow 
true emergencies to be taken care of without worrying about risk 
assessment or cost-benefit analysis until afterwards. And in this 
particular case, the EPA can issue an order to correct it, if there was 
a cryptosporidium problem, without any consideration at all and would 
accomplish exactly what the distinguished Senator from Wisconsin would 
like to accomplish.
  So I hope my colleagues will recognize this and realize that we have 
to get serious about passing a bill that 

[[Page S 9787]]
literally makes a lot of sense, makes common sense, invokes the best 
science available, not only today but as science develops into the 
future and, basically, does everything that we really need to have done 
to force the bureaucracy to be more responsible with regard to the 
issuance of rules.
  That is why this bill is so important, because we can get rid of a 
lot of the irresponsibility of the bureaucracies in this society, 
bureaucracies that are eating us all alive and many times without 
justification, while at the same time upholding rules that are truly 
drafted, that work, that make sense, that are in the best interest of 
health and safety and meet the highest scientific standards necessary 
to protect the American public.
  So I hope, as much as I respect my colleague from Wisconsin--and I 
do, and we work together on the Judiciary Committee--I believe that 
this amendment is not needed. I know it is not needed. The bill covers 
these problems, and I hope our colleagues will be willing to vote it 
down.
  I yield the floor.
  Mr. KOHL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I would like to make it clear that I believe 
this is an emergency, and I would like to think my colleague from Utah 
agrees we have an emergency situation here. But we also have to 
understand this is not a situation where there can, under any 
circumstances, be quick action. This is not a situation where there can 
be an immediate order. We understand in order to gather the information 
necessary to promulgate the rules and regulations some amount of time 
necessarily, if unhappily, but necessarily will take place, and that is 
why, first, we have to understand we have to gather information.
  So I say to my colleague from Utah that if he believes that this 
situation is covered in the bill, then let us just make it clear. There 
is no sense getting involved in belaboring the point. Again, if, as my 
colleague from Utah says, this matter is already addressed in the 
bill--I do not believe it is--but if he believes that it is addressed 
in the bill, then there should be no harm in reiterating this point. 
What I am saying is, let us not leave it later on to lawyers to dispute 
and to decide, to argue whether or not the bill covers this particular 
cryptosporidium problem.
  Let us simply make it clear with this amendment that it does insert 
it into the bill in any way in which my colleague from Utah wishes to 
do that, because I think I hear him saying that there is a problem with 
cryptosporidium that needs to be addressed. I think he has said that 
very clearly. He is saying that the bill addresses it.
  What we are saying--and what many people would say--is that the bill 
does not address it. So I do not think it is too much to ask of my 
colleague from Utah to understand that people are terribly concerned 
that S. 343 will not derail the cryptosporidium problem and that we are 
asking for his assurance in the bill that the cryptosporidium problem 
will not be put off the tracks because of the way in which the bill is 
written and because of the way in which lawyers then will be able to 
bring all kinds of arguments against taking action on cryptosporidium.
  So I think that is a reasonable request insofar as our colleague 
agrees that the cryptosporidium problem needs to be addressed and 
should not be set aside by S. 343.
  Mr. HATCH. I believe the cryptosporidium problem is being addressed 
here and under current law. We even make it stronger under this bill. 
But the important thing is that we do not think anything should be 
exempted from this bill, because this bill, by not exempting these 
matters, requires that the best available science, as it evolves into 
the future, be applied to these types of issues.
  If we exempt cryptosporidium, make an exception for it--as the 
minority leader wanted to do with the last amendment on the E. coli and 
meat and poultry inspection problems--then we are not guaranteeing that 
we will apply the best and finest science into the future. We provide 
for emergency relief here. We do provide that orders are not to be 
interfered with. So there is plenty of power in the law right now to 
resolve this problem. This bill will help to do it anyway. The 
emergency provisions, I think, are more than adequate and, I think, 
crystal clear.
  Mr. BIDEN addressed the Chair.
  Mr. KOHL. Mr. President, I yield to my friend from Delaware.
  Mr. BIDEN. Mr. President, I will ask a question of my friend from 
Utah, or a generic question. It seems to me that what is happening here 
on the last amendment and this amendment is that we are allowing 
ourselves to be captives of a rule that we are setting out that makes 
no sense. This generalized notion, when one states it, that there 
should be no exemption sounds like a rule of equity. There should be no 
exemption. But when cryptosporidium--not a thing you take home in your 
lunch pail to feed to your children, not a thing that anyone can find 
any rational basis for thinking it could be beneficial in the food or 
water chain anywhere along the line. To suggest that you cannot take 
something that is of nothing but destructive capacity when ingested by 
human beings and explicitly exempt it from this process that is being 
put in place, seems to me to make one a victim of your own rule--a rule 
that is of no value in and of itself.
  This generalized notion that everything is on the table, everything 
has to be considered, is a little bit like saying that when we do the 
Federal budget, everything is on the table, including whether or not we 
have an army, or everything is on the table, including whether or not 
we continue to have a Constitution. There are certain things that are 
not on the table, and there is no value in anything other than keeping 
them off the table. Other things that are of such clear, damaging 
consequences to the public at large should be taken out of the general 
rule we have here, and we should say flatout, no, flatout cannot--
cannot. There is no tolerance level for certain things.
  I think we are getting caught up, and we are acting like lawyers. I 
am a lawyer, and I do not accuse my friend from Wisconsin of being a 
lawyer. I know he is not. Everybody always says, ``Do not call me a 
lawyer.'' Many of us here are lawyers, and we are sounding like 
lawyers. We are setting up rules. It is almost a tautology that we are 
constructing here. We are penalizing ourselves by making ourselves 
subscribe to a generalized proposition that makes no sense.
  And so I compliment my friend from Wisconsin in insisting that this 
change take place. And I think, to put it on the other side of the 
coin, what the Senator from Utah is saying--what damage is done to this 
legislation by doing what the Senator from Wisconsin wants? If we are 
going to err, does it not make sense to err on the side of seeing to it 
that there is not a repeat of the situation that occurred in the 
Senator's State? Does it not make sense to err on that side? What 
damage are we doing to a specific industry, a specific economic 
interest, a specific company by doing what the Senator wants? And even 
if we were, so what?
  I find this to be getting to be a very tortured discussion. So I hope 
our colleagues--and I know the last thing in the world my colleague 
from Utah would want to happen would be to change the law in such a way 
that we increase the possibility of what the Senator from Wisconsin is 
trying to prevent from happening again. This bill requires the agency 
to conduct all of the analysis required by this bill within 180 days, 
even if there is an emergency.
  I thought an emergency meant an emergency. I do not think the 
American people think that when they talk about emergency, they are 
talking about 180 days. Is that an emergency? How many people could we 
lose in 180 days? How much damage can be done? That is 6 months. We are 
not talking about an emergency where somebody says, I found this out 
today and tomorrow it stops. That is, I think, an unrealistic timeframe 
for conducting risk assessment and peer review and cost-benefit 
analysis, all of which is required.
  Assuming those requirements can be met, the bill then allows 
regulated parties to come in and challenge whether the benefits justify 
the cause, or that the agency adopt the cheapest regulatory 
alternative, or whether any analysis that is conducted has been done 
properly, or any number of other 

[[Page S 9788]]
issues that can be litigated under this bill. The rule could be tied up 
in litigation. The parties could seek injunctions to prevent it from 
going into effect, based on the cumbersome requirements of the bill. 
And once the rule went into effect, industry could also petition to 
seek a repeal of the rule, or seek interpretation of the rule, or seek 
a waiver or an alternative method of compliance. If denied, they could 
then litigate these issues again in court.
  This bill already recognizes that some types of rules should be 
exempted from the requirements. For example, the bill already exempts 
rules affecting the banking industry--deposit insurance funds, the farm 
credit insurance fund. It exempts rules relating to financial 
responsibility of brokers, dealers of futures, commission merchants, 
and safeguarding investor security. It exempts anything relating to the 
introduction of a product into the market. Some of these exemptions 
could well be sensible on precautions, given the complex, cumbersome, 
expensive process required by this legislation. But certainly a rule 
affecting, in this case, cryptosporidium, or in the case of the last 
amendment, meat inspection and safety, is at least as important as to 
whether or not those exemptions which I just mentioned, including the 
banking industry and financial transactions, should be exempt.
  So we do have in this legislation, in essence, what the Senator from 
Wisconsin is seeking.
  But guess what it is for? It is not for public health and safety. It 
is for what my Republican friends seem most concerned about, and they 
should be concerned, I agree with their concern. But it seems they are 
concerned about property. Property. Not people--property.
  Banking industry, deposit insurance, farm credit insurance. We exempt 
that, why not exempt things that kill people? I am not arguing we 
should not exempt what they exempted.
  What I do not understand is the generalized statement made that 
everything is on the table. It is not all on the table. The rules 
affecting banking are not on the table the same way as the rest. 
Deposit insurance funds are not on the table the same as everything 
else.
  It is kind of funny. It reminds me--I have been here a long time. I 
remember when there was a move for the neutron bomb back in the 1970's 
when Carter was President. The virtue of the neutron bomb was that it 
killed only people and does not destroy property. That was a really 
great benefit of the neutron bomb.
  We are going to make it very, very difficult under the version my 
Republican friends are offering, to be able to protect the public on 
matters relating to things like cryptosporidium or E. coli and many 
other things, but not difficult to protect the public interest when it 
comes to Federal deposit insurance.
  Now, I think we should do what we have done as it relates to these 
economic interests, but what I do not understand is why is the thing 
the Senator is talking about, which literally, if not handled well, 
causes death, human life is lost, why is it not treated the same way?
  I suggest to my friend from Wisconsin, keep at it. Do not buy on--
which I know he does not--to the argument that everything is on the 
table. Everything is not on the table. Everything is not being treated 
the same way. Things affecting public health and safety are put in one 
category because business has interest in those things. Things that 
affect business in terms of potentially being exposed financially are 
exempted from this cumbersome process.
  Do not let them kid you, Senator. These folks understand what they 
are doing. They understand what they are doing. They are making it 
easier to make a mistake when it comes to public health and safety and 
making it, as they should, difficult to make a regulatory mistake when 
it comes to financial transactions.
  I do not think that is what the American people want. I think if you 
gave them a choice, would they take a risk on a Federal bureaucrat 
overstepping his or her bounds when it came to clean water, or take a 
risk at overstepping their bounds when it came to financial 
institutions, what do you think they would pick? I think they would 
say, ``I would run the risk of having an overzealous person take care 
of my water, an overzealous person taking care of my meat, an 
overzealous person taking care of the air I breathe.''
  I know the Senator from Wisconsin. We have worked together too long. 
If anybody abhors bureaucracy, it is the man from Wisconsin. The 
Senator is the most no-nonsense businessman I have ever come across.
  That is why the Senator has been such a successful businessman as 
well as such as successful Senator. The Senator is one of the few 
people on the floor of this Senate who knows how cumbersome bureaucracy 
can be, who is frustrated by it as a businessman, and worked his way 
through it to become an incredibly successful businessman, is on the 
floor here saying, hey, wait a minute, we are going too far here.
  I hope the public understands what this is about because it is so 
complicated. We can get so caught up in this. What does peer review 
mean? What does it mean when we are talking about all of these various 
aspects of the bill?
  It comes down to simple things. From my standpoint, when it comes to 
cryptosporidium, which I can hardly pronounce but I know full well what 
the consequences of its ingestion, I am not as worried about some 
feckless bureaucrat out there exercising unreasonable power. I do not 
like bureaucrats exercising unreasonable power. But I want to say this 
is the place I least worry about it, least worry about it.
  Let me say, I would rather have some obnoxious bureaucrat making sure 
there is no E. coli in the hamburger my kid eats at McDonald's than I 
would worry about a bureaucrat overstepping their bounds in terms of 
telling banks what they can and cannot do.
  Is it not funny how this debate goes when it comes to money, when it 
comes to dollars? We do not want to fool around too much. When it comes 
to human life, when it comes to public health and public safety, well, 
then, we know how the bureaucrats are.
  This is not a defense of bureaucrats. I am a cosponsor of the Glenn 
bill. I want to remind everyone when the Glenn bill came out in another 
form--same substance but under another title several months ago--the 
environmentalists were against it.
  The Senator from Wisconsin and the Senator from Delaware are not up 
here being purists. We realize that bureaucracy gets in the way of 
business. We realize bureaucracy increases costs unnecessarily for 
consumers. We realize that Washington does not know all the answers, 
have all the answers.
  That is what the Glenn bill does. But this goes too far. It goes too 
far. As I said, I think I will go back to my home State, I will not 
speak for the Senator's State or any other State in the Nation, even 
presumptuous for me to speak of my own State, although I think I 
understand it as well as anyone.
  I have listened as hard as anyone over the last 25 years I have been 
in office. I make a bet. Ask them whether or not they are worried about 
whether or not someone is being overzealous and protecting their water, 
someone is being overzealous and protecting contaminants in the meat, 
or feces in the meat that they ingest, and whether that is something 
they really think the Senate should be worried about right now, and my 
guess is they are going to say ``You know, Senator, I don't think you 
are doing enough to make sure my water is clean. I don't think you are 
doing enough to make sure that the meat, the fish and the poultry I 
ingest lacks contaminants. I don't think you are doing enough to make 
sure that the environment and the air I breathe and the water I swim in 
and the beaches I bathe on are clean.''
  ``I do think you are right, Senator, that worrying about pink 
flamingos and spotted owls and endangered species can be taken to a 
ridiculous extreme. Senator, when it comes to the water my kid drinks, 
when it comes to the hamburger my kid eats, when it comes to the beach 
my kid swims on, I do not think you are doing enough.''
  Is that not the essence of what this debate is about? Which side can 
we err on? I think the Senator from Wisconsin is erring on the right 
side. I would suggest that this notion that everything is on the table, 
treated the same way, is not accurate. 

[[Page S 9789]]

  I yield the floor.
  Mr. KOHL. I thank the Senator from Delaware. I could not agree more 
with his comments. He is talking very clearly about the things that 
affect human health and safety, the things that the American people 
have repeatedly insisted that they care about, are concerned about, and 
do not want to see any mistakes made concerning their human health and 
safety.
  What happened in Milwaukee, which has happened to a lesser extent in 
other communities, but what happened in Milwaukee, we lost 104 people 
because the water developed a parasite that was not protected.
  What the EPA now is doing, I want to say again, the EPA is now in the 
process, along with water utilities and other concerned interest 
groups, without anybody disputing the process that is unfolding, the 
EPA is in the process of collecting information which will result, 
finally, in setting up rules and regulations regarding the treatment of 
drinking water.
  Now, I would challenge any Senator, the Senator from Utah or any 
other Senator, to come to Milwaukee and tell the people that in this 
regulatory reform bill the Milwaukee situation and the EPA process 
which is now unfolding is or is not absolutely protected.
  I think if we would have to tell them that we think it is protected 
but we cannot absolutely guarantee that the process that is unfolding 
is protective, I do not think that any public official could stand up 
in Milwaukee and make the case and satisfy people in Milwaukee that he 
or she was doing his job.
  We had the outbreak. We lost 104 people. And 400,000 people got sick. 
There is a process of unfolding to see it does not happen again,
 not only in Milwaukee but all across the country. What we are simply 
asking is that this process be guaranteed to unfold, and that there not 
be any chance that S. 343 could impede that happening. It seems to me, 
I suggest to my colleague from Utah, that is a reasonable request to 
make, and a reasonable assurance to ask for, as we move ahead with S. 
343.

  The PRESIDING OFFICER (Mr. Brown). The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, we have reached a point where I really 
appreciate my colleague. I know they have had a particular problem. I 
know he is trying to solve it, as he always does. He is a sincere, 
dedicated Senator, and I appreciate it personally. And he is a friend.
  But the point that I am making is that in this bill it is crystal 
clear that the regulators have every right to treat any cryptosporidium 
situation as an emergency and to pass the necessary rule or obtain the 
necessary orders to stop it. There is no reason to add anything else to 
this bill with regard to cryptosporidium.
  The real point here is that there is nothing in the Dole-Johnston 
bill that delays, harms, impedes or hinders the promulgation of rules 
that protect health and safety of the American people--nothing. In 
fact, there is everything in this bill that would lead one to--and the 
bureaucracy--to meet the highest scientific standards of the time, not 
just of today, but as we go into the future.
  These are some of the real reasons why this bill is so important and 
why we cannot exempt anything from the coverage of this bill that might 
be subject to regulation. The reason is because the bill's main 
emphasis is on using the highest form of science in order to resolve 
this. When you exempt something, you do not have to do that.
  We have been putting up with really almost 40 years, now, since 1958, 
with the Delaney clause. The Delaney clause was enacted at a time when 
we only could determine scientifically parts per thousand--parts per 
million at the very most--in 1958. Today, because of the scientific 
advancements that we have had, and because of the scientific 
attainments that we have attained over these last 40 years, we can now 
ascertain through science parts per quintillion.
  What that means is, parts per quintillion is like having a 
teaspoonful of water as part of all of the Great Lakes system. Yet we 
have this stupid, idiotic Delaney clause that requires zero risk with 
regards to anything that might be carcinogenic. And we have 
grandfathered foods that are carcinogenic because they have long been 
used, and we have barred foods that are not, where there is just a 
negligible risk, or no risk, really, of getting cancer from eating 
these foods. The fact of the matter is, that is what is wrong when you 
try to exempt something from what really are good, scientifically based 
legislative bits of language.
  This bill will take care of cryptosporidium. The current law will, 
but this bill even does more. Because nobody is going to have any delay 
in any emergency where the bureaucracy would act anyway. Because they 
would not have to go through a risk assessment or a cost-benefit 
analysis in an emergency, pre-issuing the rule or order or whatever it 
may be. They would have to do the cost-benefit analysis and risk 
assessment afterwards. But they could act immediately on any emergency 
situation. Any cryptosporidium problem would be resolved.
  But more important, because we will not exempt cryptosporidium, the 
best possible science will be applied through the upcoming years; 
unlike the Delaney clause, where the worst possible science generally 
is applied, and where we, like I say, we do not know where we are. And 
where the rule is used to keep out substances and foods that really 
have no carcinogenic effect, where there is very negligible or very 
minimal--de minimis risk of harm to any human being--where we keep 
those off the marketplace. We have seen that time after time.
  What we want to do, and what we are trying to do in this bill, is 
have the very best science we possibly can. We like the rule of common 
sense. We have no doubt that, if there is a threat to health and safety 
of the American population, and it becomes an emergency, that our 
regulators will immediately attack those problems. But they will attack 
them by having thought through this bill, and it is requisite that they 
do it in the right way and that they do it in a non-onerous way. They 
will not have to go through a risk assessment or a cost-benefit 
analysis before they act, in the case of true emergencies. Anybody who 
does not understand that does not understand the bill. There is 
absolutely no reason, absolutely no reason for us to make exemptions 
for, really, anything of this nature in the bill.
  By the way, Senator Kohl has mentioned that EPA has negotiated an 
information-gathering rule dealing with cryptosporidium data, scheduled 
to be released next December. The argument just made that S. 343 will 
delay or impede the information-gathering rule is simply not true. The 
information-gathering rule is not covered by the cost-benefit and risk 
requirement provisions of the bill, of this bill. Research is not 
covered by the bill's requirements. So that needs to be made clear.
  Just to make the point one more time, we do not want to exempt 
anything from this bill because we have confidence that our regulators 
are going to go after anything that threatens the health or safety of 
American citizens. I have no doubt about that. I do not think anybody 
else does either. We have provided specific language in this bill that, 
if there is a true emergency, they do not have to go through any delay 
at all. They can handle that emergency immediately. And we also provide 
in this bill, once the emergency is handled, that well into the future 
the very finest science is going to have to be applied in these 
instances.
  Frankly, to go beyond that and to exempt something where we might 
wind up with another Delaney clause--I admit, people could say that is 
a stretch, but it is not. We do that all the time in this country. I 
think it is a real mistake. If you really want to solve the problem of 
cryptosporidium, then do it with the bill's language, where we provide 
for emergency relief by those who are concerned about these type of 
problems as they arise. And since cryptosporidium is something that 
everybody is concerned about, I cannot imagine any bureaucrat not being 
willing to solve the health and safety aspects of that particular 
problem.
  We are prepared to go to a vote. I am prepared to move to table.
  Mr. BIDEN. Mr. President, if the Senator will withhold the tabling 
motion, I would like to make several brief comments.
  Mr. HATCH. I will be happy to withhold. I would like to move on. 

[[Page S 9790]]

  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. BIDEN. Mr. President, I will try to decode this in what I 
understand to be, to use the phrase we all use here, basic old common 
sense.
  What the Senator from Wisconsin is saying is: Hey, look, if a 
bureaucrat oversteps his bounds and comes up with some preposterous 
ruling relating to pesticides or parasites in the water, and says that 
one--I did not even know the figure the Senator used, but one 
teaspoon--whatever the measurement was that would equal one teaspoon 
relative to the entire Great Lakes--and says you cannot put that in the 
water, that amount,
 if this is that ridiculous, there is emergency relief for the company 
which is doing that. It is called the Congress. That is the emergency 
relief. Come to Congress and say, ``That stupid bureaucrat just passed 
this rule saying you cannot have more than 1 part per hundred trillion 
of such and such in the water. We can pass a law. We can say no. It can 
be 5 million parts per trillion.'' That is the emergency relief I think 
we should have. But what is the emergency relief that he is suggesting 
for us, if in fact what is being done to the water system is damaging? 
It is this cumbersome procedure even under an emergency which is 
declared that takes months to occur.

  So I think common sense dictates to me if a manufacturer--that is 
what we are talking about, a business, an economic interest--is in fact 
damaged because some silly bureaucrat comes up with a rule that makes 
it impossible for them to conduct business and does no harm to the 
water system, there is recourse, emergency recourse--the U.S. Congress.
  What is the emergency recourse for the constituent in Wisconsin if in 
fact a pesticide is being put in the water that is causing serious 
damage? It takes time under this rule. The Senator says nothing is 
exempt. First of all, anything, any rule that does not affect $100 
million worth of something is exempt from this process, this cost-
benefit analysis, this risk assessment laid out in this thick piece of 
legislation in both the Glenn bill and the Hatch bill we are talking 
about. So that is one exemption.
  There is a second exemption, a series of exemptions. If you turn to 
page 16 of the text of the bill, it says it does ``not include''--
meaning that the cost-benefit analysis is not required for the 
following things: A rule that involves the internal revenue laws of the 
United States.
  So what it says here is even if the IRS comes up with a stupid rule 
where a cost far outweighs the benefits, it is not reviewable under 
this law. Even if the rule of an agency that impedes an international 
trade agreement, and if in the implementation of it the cost far 
outweighs the benefit, it is not subject to this legislation. The list 
goes on. Just pick another one.
  A rule or agency action that authorizes the introduction into 
commerce or recognizes a marketable status of a product. You would have 
the most damaging darned product in the world where the cost would far 
outweigh the benefit, and it is not reviewable.
  So this idea that there is something sacrosanct here about not 
exempting anything, what the Senator is asking for is this incredible 
exception where his amendment would be the only thing out there. There 
are a raft of actions that mindless bureaucrats can take that are not 
subject to the cost-benefit analysis and risk assessment required in 
this bill.
  Why? Why? Why should we somehow now impose a rule of legerdemain here 
in the Senate saying, ``Senator, what you are asking for is an 
exemption. You are asking for something to be treated differently than 
the rest of the bill. And we just cannot do that. It will open up the 
floodgates here.'' No one said that. But that is implicit.
  I would say to the Senator there are lot of things that are not 
subject to a cost-benefit analysis that mindless bureaucrats can 
undertake. I might add I do not think most bureaucrats are mindless. 
But let us pick that mindless bureaucrat.
  In law school we always talked about a ``reasonable man.'' No one 
could always find a reasonable man. But we always talked about the 
reasonable man. We have the mindless bureaucrat wandering the halls of 
Congress and the floor of this body. He or she is the person we are all 
after. Well, if we find that mindless bureaucrat and he or she is 
mindlessly engaged in regulations relating to the Internal Revenue 
Code, we say, ``You may continue to be mindless. This does not apply to 
you.'' If they are talking mindlessly interfering with a rule, 
interfering with the introduction of a product into commerce, you say, 
``You can continue to be mindless.''
  The list goes on for two pages:
       ``(iv) a rule exempt from notice and public procedure under 
     section 553(a);
       ``(v) a rule or agency action relating to the public debt;
       ``(vi) a rule required to be promulgated at least annually 
     pursuant to statute, or that provides relief, in whole or in 
     part, from a statutory prohibition, other than a rule 
     promulgated pursuant to subtitle C of title II of the Solid 
     Waste Disposal Act (42 U.S.C. 6921 et seq.);
       ``(vii) a rule of particular applicability that approves or 
     prescribes the future rates, wages, prices, services, 
     corporate or financial structures, reorganizations, mergers, 
     acquisitions, accounting practices, or disclosures bearing on 
     any of the foregoing;
       ``(viii) a rule relating to monetary policy or to the 
     safety or soundness of federally insured depository 
     institutions or any affiliate of such an institution. . . .''

  It goes on and on:

       ``(xi) a rule or order relating to the financial 
     responsibility of brokers and dealers or futures commission 
     merchants, the safeguarding of investor securities and funds 
     or commodity future or options customer securities and funds, 
     the clearance and settlement of securities, futures, or 
     options transactions, or the suspension of trading under the 
     Securities Exchange Act of 1934.
       ``(xii) a rule that involves the international trade laws 
     of the United States.''

  They are all exceptions. There is not a cost-benefit analysis 
required for those; no requirement to do anything like any of this 
legislation we are about to pass. We can do that. Why cannot we do it 
for cryptosporidium or E. coli? What is the problem? Because there is 
emergency relief for an aggrieved party, if a mindless bureaucrat sets 
out a rule that has no relationship to science, and it is called the 
Congress. It can change the law. The bureaucrats can only make laws we 
authorize them to make.
  Why provide this kind of hurdle for an agency attempting to protect 
the water supply of the Nation? Why provide this hurdle to catch the 
occasional overzealous bureaucrat overreaching and damaging the 
property owner, or damaging a business interest? Why not provide it 
with the 535 Members of the Congress?
  If there is one side I would err on, I would err on the side of the 
Congress. But there are already significant portions of our commerce in 
this Nation that are legitimately and reasonably exempted from any 
cost-benefit analysis including any rule that does not have the impact 
of $100 million.
  I yield the floor.
  Mr. KOHL. Mr. President, I will take a minute to summarize again what 
my amendment is all about.
  We have a problem of cryptosporidium in this country. We had an 
outbreak in Milwaukee, and we lost 104 people, leaving 400,000 people 
seriously ill. We had outbreaks in a dozen other communities in the 
country. I will not enumerate all of those communities. But San 
Antonio, Jackson County, OR, Las Vegas, and we had something here in 
Washington, DC, recently. There is no question about the need to 
promulgate rules and regulations.
  As I said, the involved water utilities--and other interest groups--
all of them have agreed that we must set in motion the process we have 
to collect information and then promulgate rules to protect our water 
supply in this country from another outbreak of cryptosporidium.
 No disagreement. And that process is now under way.

  Now, people who have looked at S. 343, lawyers and other people--I am 
not a lawyer--have assured me that there is a real danger that under S. 
343 as it is written the EPA process that is underway will be 
sidetracked, may very well be sidetracked. Some believe that it will. 
Some believe that it may be.
  What we are asking for in S. 343 is assurance that the process now 
underway and agreed to by EPA and water utilities and other interest 
groups will not be sidetracked. That is all this amendment says. Let us 
see to it that the process is not sidetracked.
  So I ask my colleagues to consider that simple consideration when 
they 

[[Page S 9791]]
decide how to vote on whether or not to table this amendment which, as 
I understand, is going to be asked for by the opposition.
  I yield the floor.
  The PRESIDING OFFICER. Is there other debate on the Kohl amendment? 
If not, the question is on agreeing to the amendment of the Senator 
from Wisconsin.
  All those in favor of the amendment--the Senator from Utah is 
recognized.
  Mr. KOHL. I ask for the yeas and nays.
  Mr. HATCH. Mr. President, I move to table the amendment, and I ask 
for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have been requested. Is 
there a sufficient second? There appears to be a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table the amendment. The yeas and nays have been ordered. The clerk 
will call the roll.
  The legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from North Carolina [Mr. Helms] 
is necessarily absent.
  Mr. FORD. I announce that the Senator from Hawaii [Mr. Inouye] is 
necessarily absent.
  The result was announced--yeas 50, nays 48, as follows:

                      [Rollcall Vote No. 303 Leg.]

                                YEAS--50

     Abraham
     Ashcroft
     Bennett
     Bond
     Breaux
     Brown
     Burns
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Hutchison
     Inhofe
     Johnston
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--48

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Bryan
     Bumpers
     Byrd
     Chafee
     Cohen
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Heflin
     Hollings
     Jeffords
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Snowe
     Specter
     Wellstone

                             NOT VOTING--2

     Helms
     Inouye
       
  So the motion to table the amendment (No. 1506) was agreed to.
  Mr. JOHNSTON. Mr. President, I move to reconsider the vote by which 
the motion was agreed to.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DOLE. Mr. President, I am going to propound a unanimous consent 
request. I am going to ask consent that the Senator from Delaware be 
recognized next to offer an amendment concerning risk-based priorities; 
that there be 30 minutes for debate to be equally divided in the usual 
form; that any second-degree amendment be limited to 15 minutes to be 
equally divided and must be relevant to the first-degree. I do not know 
if any second-degree amendments are going to come from that side or 
not. Since it will not come from this side, maybe it will not be 
necessary that they be seen ahead of time.
  Mr. GLENN. Mr. President, reserving the right to object. I know the 
majority leader wants to speed this along, and I agree with that. We 
have been moving along pretty well. But I think without knowing what 
amendments might even be put forward and how serious they might be, I 
would not want to agree on time limits unless we had the amendments in 
advance and could look at them and decide how important they are. I 
will have to object.
  Mr. DOLE. As I understand, the amendment of the Senator from Delaware 
is available.
  Mr. ROTH. I ask the distinguished Senator from Ohio whether it might 
not be possible on my amendment, which has been cosponsored by Senator 
Biden, that we might not reach a time agreement on that.
  Mr. GLENN. I thought the unanimous consent request was on all the--
  Mr. DOLE. Thirty minutes on the Roth amendment equally divided and 
then any second-degree amendment 15 minutes.
  Mr. ROTH. Can we agree there will be no second-degree amendments on 
this amendment?
  Mr. GLENN. On this particular amendment, I probably would accept the 
amendment. I think there would be objection on our side to accepting 
the amendment.
  Mr. JOHNSTON. Mr. President, we want to accommodate the Senator from 
Delaware. The problem is it takes the National Academy of Sciences out 
of the picture at least in part, and it is highly controversial, as I 
understand it, with the National Academy of Sciences. I confess, I have 
been working on these other amendments and have not had the time. It is 
not one of the most important issues, and we do want to try to work 
with the Senator from Delaware. I wish we had a little time to try to 
focus on it, because we want to try to find a way to accommodate.
  Mr. ROTH. We will just lay it down tonight.
  Mr. JOHNSTON. That would be good.
  Mr. GLENN. We can lay it down tonight and discuss the time limit 
tomorrow. I would not want to agree to a time limit tonight.
  Mr. DOLE. I understand. The Senator from Ohio is not prepared to 
consent to any agreement. I do not quarrel with that. The amendment 
will be laid down tonight, and then maybe tomorrow we can work out a 
time agreement.
  There will be no more votes this evening, unless someone wants to 
have another vote; no more votes.
  Tomorrow morning, there will be, as I understand it, a meeting with 
Senator Kerry, Senator Levin, Senator Johnston, Senator Glenn, Senator 
Hatch, Senator Roth and others.
  Mr. DOLE. 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. ROTH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 1507 to Amendment No. 1487

(Purpose: To strengthen the agency prioritization and comparative risk 
                      analysis section of S. 343)

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

       The Senator from Delaware [Mr. Roth], for himself and Mr. 
     Biden, proposes an amendment numbered 1507 to Amendment No. 
     1487.

  Mr. ROTH. 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:

       Delete all of section 635 (page 61, line 1 through page 64, 
     line 14 and add in its place the following new section 635:

     SEC. 635. RISK-BASED PRIORITIES.

       (a) Purpose.--The purposes of this section are to--
       (1) encourage Federal agencies engaged in regulating risks 
     to human health, safety, and the environment to achieve the 
     greatest risk reduction at the least cost practical;
       (2) promote the coordination of policies and programs to 
     reduce risks to human health, safety, and the environment; 
     and
       (3) promote open communication among Federal agencies, the 
     public, the President, and Congress regarding environmental, 
     health, and safety risks, and the prevention and management 
     of those risks.
       (b) Definitions.--For the purpose of this section:
       (1) Comparative risk analysis.--The term ``comparative risk 
     analysis'' means a process to systematically estimate, 
     compare, and rank the size and severity of risks to provide a 
     common basis for evaluating strategies for reducing or 
     preventing those risks.
       (2) Covered agency.--The term ``covered agency'' means each 
     of the following:
       (A) The Environmental Protection Agency.
       (B) The Department of Labor.
       (C) The Department of Transportation.
       (D) The Food and Drug Administration.
       (E) The Department of Energy.
       (F) The Department of the Interior.
       (G) The Department of Agriculture.
       (H) The Consumer Product Safety Commission.
       (I) The National Oceanic and Atmospheric Administration.
       (J) The United States Army Corps of Engineers.

[[Page S 9792]]

       (K) The Nuclear Regulatory Commission.
       (3) Effect.--The term ``effect'' means a deleterious change 
     in the condition of--
       (A) a human or other living thing (including death, cancer, 
     or other chronic illness, decreased reproductive capacity, or 
     disfigurement); or
       (B) an inanimate thing important to human welfare 
     (including destruction, degeneration, the loss of intended 
     function, and increased costs for maintenance).
       (4) Irreversibility.--The term ``irreversi- 
     bility'' means the extent to which a return to conditions 
     before the occurrence of an effect are either very slow or 
     will never occur.
       (5) Likelihood.--The term ``likelihood'' means the 
     estimated probability that an effect will occur.
       (6) Magnitude.--The term ``magnitude'' means the number of 
     individuals or the quantity of ecological resources or other 
     resources that contribute to human welfare that are affected 
     by exposure to a stressor.
       (7) Seriousness.--The term ``seriousness'' means the 
     intensity of effect, the likelihood, the irreversibility, and 
     the magnitude.
       (c) Department and Agency Program Goals.--
       (1) Setting priorities.--In exercising authority under 
     applicable laws protecting human health, safety, or the 
     environment, the head of each covered agency should set 
     priorities and use the resources available under those laws 
     to address those risks to human health, safety, and the 
     environment that--
       (A) the covered agency determines to be the most serious; 
     and
       (B) can be addressed in a cost-effective manner, with the 
     goal of achieving the greatest overall net reduction in risks 
     with the public and private sector resources expended.
       (2) Determining the most serious risks.--In identifying the 
     greatest risks under paragraph (1) of this subsection, each 
     covered agency shall consider, at a minimum--
       (A) the likelihood, irreversibility, and severity of the 
     effect; and
       (B) the number and classes of individuals potentially 
     affected, and shall explicitly take into account the results 
     of the comparative risk analysis conducted under subsection 
     (d) of this section.
       (3) OMB review.--The covered agency's determinations of the 
     most serious risks for purposes of setting priorities shall 
     be reviewed and approved by the Director of the Office of 
     Management and Budget before submission of the covered 
     agency's annual budget requests to Congress.
       (4) Incorporating risk-based priorities into budget and 
     planning.--The head of each covered agency shall incorporate 
     the priorities identified under paragraph (1) into the agency 
     budget, strategic, planning, regulatory agenda, enforcement, 
     and research activities. When submitting its budget request 
     to Congress and when announcing its regulatory agenda in the 
     Federal Register, each covered agency shall identify the 
     risks that the covered agency head has determined are the 
     most serious and can be addressed in a cost-effective manner 
     under paragraph (1), the basis for that determination, and 
     explicitly identify how the covered agency's requested budget 
     and regulatory agenda reflect those priorities.
       (5) Effective date.--This subsection shall take effect 12 
     months after the date of enactment of this Act.
       (d) Comparative Risk Analysis.--
       (1) Requirement.--(A)(i) No later than 6 months after the 
     effective date of this Act, the Director of the Office of 
     Management and Budget shall enter into appropriate 
     arrangements with an accredited scientific body--
       (I) to conduct a study of the methodologies for using 
     comparative risk to rank dissimilar human health, safety, and 
     environmental risks; and
       (II) to conduct a comparative risk analysis.
       (ii) The comparative risk analysis shall compare and rank, 
     to the extent feasible, human health, safety, and 
     environmental risks potentially regulated across the spectrum 
     of programs administered by all covered agencies.
       (B) The Director shall consult with the Office of Science 
     and Technology Policy regarding the scope of the study and 
     the conduct of the comparative risk analysis.
       (2) Criteria.--In arranging for the comparative risk 
     analysis referred to in paragraph (1) of this subsection, the 
     Director shall ensure that--
       (A) the scope and specificity of the analysis are 
     sufficient to provide the President and agency heads guidance 
     is allocating resources across agencies and among programs in 
     agencies to achieve the greatest degree of risk prevention 
     and reduction for the public and private resources expended;
       (B) the analysis is conducted through an open process, by 
     individuals with relevant expertise, including toxicologists, 
     biologists, engineers and experts in medicine, industrial 
     hygiene and environmental effects;
       (C) the analysis is conducted, to the extent feasible, 
     consistent with the risk assessment and risk characterization 
     principles in section 633 of this title;
       (D) the methodologies and principal scientific 
     determinations made in the analysis are subjected to 
     independent and external peer review consistent with section 
     633(g), and the conclusions of the peer review are made 
     publicly available as part of the final report required under 
     subsection (e);
       (E) there is an opportunity for public comment on the 
     results before making them final; and
       (F) the result are presented in a manner that distinguishes 
     between the scientific conclusions and any policy or value 
     judgments embodied in the comparisons.
       (3) Completion and review.--No later than 3 years after the 
     effective date of this Act, the comparative risk analysis 
     required under paragraph (1) shall be completed. The 
     comparative risk analysis shall be reviewed and revised at 
     least every 5 years thereafter for a minimum of 15 years 
     following the release of the first analysis. The Director 
     shall arrange for such review and revision with an accredited 
     scientific body in the same manner as provided under 
     paragraphs (1) and (2).
       (4) Study.--The study of methodologies provided under 
     paragraph (1) shall be conducted as part of the first 
     comparative risk analysis and shall be completed no later 
     than 180 days after the completion of that analysis. The goal 
     of the study shall be to develop and rigorously test methods 
     of comparative risk analysis. The study shall have sufficient 
     scope and breadth to test approaches for improving 
     comparative risk analysis and its use in setting priorities 
     for human health, safety, and environmental risk prevention 
     and reduction.
       (5) Technical guidance.--No later than 180 days after the 
     effective date of this Act, the Director, in collaboration 
     with other heads of covered agencies, shall enter into a 
     contract with the National Research Council to provide 
     technical guidance to agencies on approaches to using 
     comparative risk analysis in setting human health, safety, 
     and environmental priorities to assist agencies in complying 
     with subsection (c) of this section.
       (e) Reports and Recommendations to Congress and the 
     President.--No later than 24 months after the effective date 
     of this Act, each covered agency shall submit a report to 
     Congress and the President--
       (1) detailing how the agency has complied with subsection 
     (c) and describing the reasons for any departure from the 
     requirement to establish priorities to achieve the greatest 
     overall net reduction in risk;
       (2) recommending--
       (A) modification, repeal, or enactment of laws to reform, 
     eliminate, or enhance programs or mandates relating to human 
     health, safety, or the environment; and
       (B) modification or elimination of statutorily or 
     judicially mandated deadlines,

     that would assist the covered agency to set priorities in 
     activities to address the risks to human health, safety, or 
     the environment in a manner consistent with the requirements 
     of subsection (c)(1);
       (3) evaluating the categories of policy and value judgments 
     used in risk assessment, risk characterization, or cost-
     benefit analysis; and
       (4) discussing risk assessment research and training needs, 
     and the agency's strategy and schedule for meeting those 
     needs.
       (f) Savings Provision and Judicial Review.--
       (1) In general.--Nothing in this section shall be construed 
     to modify any statutory standard or requirement designed to 
     protect human health, safety, or the environment.
       (2) Judicial review.--Compliance or non-compliance by an 
     agency with the provisions of this section shall not be 
     subject to judicial review.
       (3) Agency analysis.--Any analysis prepared under this 
     section shall not be subject to judicial consideration 
     separate or apart from the requirement, rule, program, or law 
     to which it relates. When an action for judicial review of a 
     covered agency action is instituted, any analysis for, or 
     relating to, the action shall constitute part of the whole 
     record of agency action for the purpose of judicial review of 
     the action and shall, to the extent relevant, be considered 
     by a court in determining the legality of the covered agency 
     action.

  Mr. ROTH. Mr. President, as I understand it, the intent is that I 
only lay down the amendment at the present time.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  Mr. ROTH. Mr. President, 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. DeWINE. 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. DeWINE. Mr. President, I ask unanimous consent that I be allowed 
to proceed as in morning business.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

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