[Congressional Record Volume 141, Number 113 (Thursday, July 13, 1995)]
[Senate]
[Pages S9880-S9902]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COMPREHENSIVE REGULATORY REFORM ACT

  The Senate continued with the consideration of the bill. 

[[Page S 9881]]

  Mr. DOLE. Mr. President, we are trying to get some order so Members 
will know precisely what will happen.
  As I understand, Senator Domenici is prepared to offer an amendment, 
and he is prepared to enter into a time agreement. That cannot be done 
until Senator Glenn has an opportunity to look at the amendment. We are 
not certain whether or not there will be a second-degree amendment.
  I am advised that we can now deal with the Lautenberg amendment 
without a second-degree amendment, and it will be 1 hour equally 
divided.
  I ask unanimous consent when Senator Lautenberg offers his amendment, 
No. 1535, that no amendments be in order, that there be 1 hour for 
debate to be equally divided in the usual form, and when the Senate 
votes, the vote occur on or in relation to the Lautenberg amendment.
  Mr. WARNER. Reserving the right to object, I shall not object. Is it 
possible we could set a precise time on the Lautenberg vote?
  Mr. DOLE. That is what we are trying to work out. We will not take up 
the Lautenberg amendment, I assume, for another 20 minutes, so the vote 
will not come until the end of that hour.
  We hope we get an agreement on the Domenici amendment, also on the 
Feingold amendment, and also on an amendment by Senator Pryor.
  We are looking at the Feingold amendment. We did not have a copy of 
Senator Pryor's amendment.
  If we can start getting these agreements, I can advise my colleagues 
when we will have the vote.
  Mr. DASCHLE. Mr. President, reserving the right to object, I guess I 
am not clear.
  The majority leader, then, would not be prepared to set a time for 
the vote on the Lautenberg amendment until we know whether we can 
sequence more amendments and determine from that whether we might be 
able to sequence, then, the votes following consideration of all the 
amendments.
  Mr. DOLE. That is correct. There have been a couple of suggestions 
made. One, that we can sequence four or five amendments and have all 
the votes tomorrow morning.
  We would be here this evening debating the amendments, and those who 
had other plans or just wanted to frankly do something else, that they 
would be free to do that this evening. We would have votes tomorrow 
morning.
  I think that is what we are trying to put together. There are four 
amendments we are aware of. I think the Senator from Texas, Senator 
Hutchison, has an amendment. We are trying to contact her.
  I think fairly soon we will have the Glenn amendment, the big 
amendment, the substitute amendment, which I assume will probably take 
some time to debate on that.
  Mr. KENNEDY. Mr. Leader, I have one on the OSHA provisions, and I 
would be glad to enter into a time limit tomorrow if we are sequencing. 
I would be glad to be in touch with the floor manager staff. We will 
make a copy available.
  Mr. LEVIN. Will the leader yield?
  Mr. DOLE. I am happy to yield to the Senator.
  Mr. LEVIN. There are many amendments that are outstanding. I just am 
wondering whether or not the majority leader was suggesting that there 
was just that limited few amendments that were still outstanding, 
because there are many, many.
  Mr. DOLE. I hope the number is not too large. I know there are a 
number of amendments.
  Mr. PRYOR. If the distinguished majority leader would yield, I have 
an amendment. I think it could possibly even be accepted by both sides. 
I am not certain.
  Even if it has to be debated and voted on, I would agree to 30 
minutes time, 15 minutes equally divided, sometime tomorrow, and no 
second-degree amendments to be offered.
  Mr. DOLE. As I understand, we have a copy of that amendment, and I 
will have Senator Hatch and Senator Roth look at it.
  I would hope that even if we reach some agreements that Members with 
amendments would stay tonight and try to dispose of those amendments. 
They may be acceptable or reaching some agreement, where we could have 
the vote, if not tonight, sometime tomorrow morning.
  I think there is good-faith effort on the part of the leaders to keep 
this bill moving. I think we have gone over a couple of large hurdles 
this afternoon. If we can make some progress this evening, even though 
there might not be any votes after a certain point, we could still stay 
here. The managers are anxious to be here late tonight, to deal with 
amendments.
  Mr. DASCHLE. If the majority leader would yield, would it not be in 
the interest, for the benefit of those who are waiting to offer 
amendments, to at least provide a sequence? We have Senator Domenici 
prepared to go now, and then Senator Lautenberg immediately after that. 
If it would be appropriate then for Senator Feingold and Senator Pryor 
to follow Senator Lautenberg --if we know the sequence perhaps we could 
then----
  Mr. DOLE. I make that request.
  Mr. DOMENICI. Reserving the right to object, what we intend to do is 
to speak for 20 minutes on our side on this Domenici amendment, giving 
your side a chance to look at it.
  We will yield the floor and then permit going to Senator Lautenberg. 
That hour will elapse and then by that time your staff can have looked 
at ours, we will come back to it and finish it--whether it is 10 
minutes, 20 minutes--and then of course you can go to the next one.
  So that is understood as the sequencing for the conclusion of the 
Domenici amendment.
  Mr. DASCHLE. That was my understanding, that we were going to set 
aside the Domenici amendment in order to accommodate the other 
amendments, and come back to the Domenici amendment after we had a 
chance to look at it.
  Mr. DOLE. Following the Pryor amendment, the amendment by Senator 
Hutchison, an amendment on reasonable reliance.
  If I could renew that request, that following the debate by Senator 
Domenici, 20 minutes, we then move to the Lautenberg amendment, and 
after completion of debate on the Lautenberg amendment, be followed by 
debate on the Feingold amendment, to be followed by debate on the Pryor 
amendment, to be followed by debate on the Hutchison amendment.
  Mr. DASCHLE. If the majority leader would yield, I am informed 
Senator Feingold has a second amendment very similar in nature to the 
Pryor amendment that he would be willing to accept a short time 
agreement on, so if we could put that on the list as well, I think that 
could accommodate Senator Feingold.
  Mr. DOLE. And that he would follow the Hutchison amendment; is that 
all right?
  Mr. DASCHLE. That is correct.
  Mr. JOHNSTON. Mr. President, reserving the right to object, were 
there any--did this ask for no second degrees on any of those 
amendments?
  Mr. DOLE. Not at this point. We are trying to get the sequence. If we 
cannot agree on second degrees, that will present a problem. We are at 
least trying to sequence amendments so Senators will know when they may 
be expected to be here to offer their amendments, and obviously we 
would like to have additional amendments if anybody has an amendment. 
The Senator from Massachusetts will do his, I understand, tomorrow?
  Mr. KENNEDY. I would prefer that.
  The PRESIDING OFFICER. Is there objection?
  Mr. DOMENICI. Reserving the right to object, technically you did not 
say upon completion of Lautenberg we would return to Domenici before we 
go to the next amendment, and that should be there.
  Mr. DOLE. I thought I did.
  Mr. DOMENICI. You did not.
  Mr. DOLE. Did not. All right. I guess I could not remember your name.
  Mr. DOMENICI. It is pretty hard.
  Mr. BYRD. Reserving the right to object--I have no intention of 
objecting--may I ask, is it the intention to vote on all these 
amendments this evening? As I understand it, we are only sequencing the 
amendments now. Some of them may be played out on tomorrow?
  Mr. DOLE. That is correct. Some may be accepted, as I understand it. 
Some may need rollcall votes.
  Mr. BYRD. And some might go over to tomorrow.
  Mr. DOLE. Some might go over. I am not quite ready to announce that, 
but I 

[[Page S 9882]]
agree with the Senator from West Virginia, we are going to take them 
up. We can either vote as they come up or we can stack the votes, if 
that is satisfactory.
  Mr. BYRD. Mr. President, I can understand the necessity for stacking 
a few votes, but I would object to stacking a great number of votes.
  What do we mean by a great number?
  Mr. DOLE. Right. I would say two or three--that is a small number.
  Mr. BYRD. Yes. I have no problem with two or three. But I think we 
ought not to stack a great number of amendments.
  Mr. DOLE. If we did, we would check with the Senator from West 
Virginia and provide for a little debate between each.
  Mr. BYRD. That is all right up to, say, three.
  Mr. DOLE. But if we decided to do three this evening and the balance 
tomorrow morning, would that be satisfactory?
  Mr. BYRD. I have no problem with three votes. I hope we will stay 
here and do them. But there are many of us that sacrifice a great deal 
in order that one or two Senators, on this side of the aisle and on 
that side of the aisle, keep an engagement off the Hill. The rest of us 
are pinned down here waiting on action. We sit here for an hour or 2 
hours before we get a vote.
  I am not attempting to get in the majority leader's way or the 
minority leader's way. I am not attempting to force my will on the 
Senate. But I am one Senator who sits here and waits on action that 
does not accommodate me at this hour of the evening, to stack votes, 
hold off votes, or to have a window. There are a lot of other Senators 
here who would rather be home with their spouses than to be sitting 
around waiting on a window to expire so we can get down to business to 
accommodate one or two Senators.
  Mr. DOLE. I understand. I hope this will work to everyone's 
satisfaction. We will keep that in mind.
  Mr. BYRD. I thank the majority leader.
  Mr. NICKLES. Will the majority leader yield?
  Mr. DOLE. I will be happy to yield.
  Mr. NICKLES. For the information of my colleagues, I was the one who 
requested that we stack the vote and maybe several votes for tomorrow 
morning. The reason I was doing that is because a lot of us do have 
families and would like to have dinner with their families. I cannot do 
that tonight because I am involved with some of these amendments, so I 
am not speaking for myself, but I know a lot of colleagues--some of our 
colleagues do not live real close to the Hill, either. They might live 
20 miles away, so they cannot really wait for 2 hours.
  So it is my suggestion that we do as many amendments as possible. 
Maybe some of these amendments--we now have an order for five 
amendments. It may well be that we can accept two or three of these 
amendments without rollcall votes. In all likelihood, the Lautenberg 
amendment will require a vote. I am not sure about the Feingold 
amendment or the Pryor amendment. Maybe we can accept the Pryor 
amendment.
  I would like to see us make as much progress as possible. We have a 
lot of work to do. I also hope the majority leader will say that this 
is not the end of the work tonight.
  I hope we plow ahead, because I know people said they have amendments 
and I know we are running out of days. So I hope the leaders and the 
managers of the bill will be willing to stay in and work through as 
many amendments as possible and stack whatever rollcalls are necessary 
until possibly 9 o'clock tomorrow morning.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. NICKLES. I will be happy to yield.
  Mr. DOLE. Let me respond. I do not disagree with the Senator from 
Oklahoma or anybody else. I think we all have the same objective and 
that is to try to finish the bill. As long as we are moving. What we do 
not want to do is sit around and wait for somebody to come back from 
somewhere, so 80 of us wait for 5 to come back. I have done that 
before, as the Senator from West Virginia has. But I think we have a 
sequence now and we have the people here who will be here and be 
debating these amendments. I think for the next hour and a half, we are 
going to have total debate without, probably, a single quorum call. I 
think that should satisfy everyone.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. DOLE. This is the late night, I might add. Thursday is normally 
the late night. We are going to continue.
  Mr. JOHNSTON. I think we have a good chance of being able to work out 
some of these without a record vote. We have some changes I think we 
can work out with Senator Domenici and then, at least from my 
standpoint, that would probably not require a record vote.
  Senator Pryor's amendment does not sound as though it would require a 
record vote. At least, speaking for myself, it sounds reasonably 
noncontroversial.
  Mr. PRYOR. Fine.
  Mr. JOHNSTON. So you have--that is five. If two of them do not 
require record votes, that is a maximum of three, and we could let our 
colleagues go home and see their dog Billys.
  Mr. DOLE. I think the best thing we can do now is start the debate.
  Mr. GLENN. Will the majority leader yield for a question? As I 
understood this, and so we straighten it out--I checked with the 
Parliamentarian a moment ago. I think there was a little doubt as to 
the order here. As I understood it, it was this: Domenici, 20 minutes; 
Lautenberg; back to Domenici, then at the end of that; then Feingold, 
Pryor, Hutchison, back to Feingold again, and Kennedy tomorrow 
probably; is that correct?
  Mr. DASCHLE. That is correct.
  Mr. DOLE. Unless we can finish this evening. I think we will probably 
be on it tomorrow.
  The PRESIDING OFFICER. Is there objection to the majority leader's 
request? Hearing none, it is so ordered.
  Under the previous order, the Senator from New Mexico is recognized.
  The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, it is my understanding I have 20 minutes 
to be used as I see fit; is that correct?
  The PRESIDING OFFICER. That is correct.


                           Amendment No. 1533

  Mr. DOMENICI. Mr. President, this amendment is made up of two parts. 
The second part is an amendment proposed by the chairman of the Small 
Business Committee, who is present on the floor, Senator Bond. So I 
will try to divide the time rather equally, using 10 minutes and 
yielding 10 to him--maybe a little more on my end, in proportion. There 
are more words in my amendment than his, which probably means I should 
talk a little longer.
  I am glad the Senator finished. I yielded 40 minutes ago, I thought, 
and we would have already been finished with me, but we got a lot of 
work done so I am pleased to have yielded.
  Mr. President, I sent this amendment to the desk in behalf of Senator 
Bingaman, Senator Bond, and myself. I think all of us have had 
experience in our home States, in one way or another, talking to a lot 
of small business people, men and women, sometimes couples, and a lot 
of minority businesses and a lot of women-owned businesses that are 
small and startup.
  Frankly, when it comes to regulations, the most consistent complaint 
is that the regulatory process never involves small business until it 
is all finished and it is too late. They are not around to make 
practical suggestions to seek just some ordinary, common sense in this 
process. Many regulations take a long time from beginning to end. As a 
matter of fact, some take 2 years, Mr. President, 2\1/2\ years.
  What we seek in the first part of this amendment is precisely what 
the small business people have told us, and told this administration, 
that they desperately want. Last year, five agencies, including the 
Small Business Administration, EPA, and OSHA, held a forum on 
regulatory reform. Let me quote what they said:

       . . . the inability of small business owners to comprehend 
     overly complex regulations, and those that are overlapping, 
     inconsistent and redundant.

  They have indicated that:

       The need for agency regulatory officials to understand the 
     nuances of the regulated industry [small businesses, women-
     owned businesses, minority businesses] and the compliance 
     constraints of small business.
       The perceived existence of an adversarial relationship 
     between small business owners and Federal agencies.


[[Page S 9883]]

  All of these were statements made at that forum that this 
administration held with small business for small business.
  So let me read one more time:

       The need for more small business involvement in the 
     regulatory development process, particularly during the 
     analytic, risk assessment and preliminary drafting stages.
  That is what they said was the paramount problem. It is in their own 
report.
  Mr. President, this amendment has a lot of pages to it because, 
whenever you start mentioning Federal agencies and bureaucracies, you 
have to make all kinds of references. Essentially this would create a 
partnership, not an adversarial, not a take-it-to-court, not a 
mandatory situation, but would create panels wherein small business 
would become partners with the agency officials that are doing this 
work. So that before the regulations are finalized, they would have 
some input into what the regulations have to say, whether they are 
consistent, whether they are too confounding, too complicated, where 
they do not make sense. All of that, in my opinion, should be part of a 
well-run executive branch with reference to regulations that OSHA and 
the EPA put out right now.
  I just tried to construct a way to set these panels into existence so 
that they will be ongoing and each State will have small business input 
within their States through this process to get small business input. 
It will be a small number of businesses--just three. There will be a 
group of bureaucrats or agency people who move this along and make sure 
that the input is given and passed on where it should be. If it works 
right, in our sovereign States a few small business people become part 
of an ongoing dialog regarding regulations that, I think, be it utterly 
simple, could have a profound effect on what currently is a very bad 
situation.
  Who has not heard a small business say that, ``Government regulators 
treat us like enemies''? If you have not heard it, you have not been 
among them. If you have not heard them say, ``They do not care what we 
think,'' you have not been among small business people.
  We are trying in a simple way to see if in time we can get those 
kinds of things wiped away from the scene as far as the regulations, 
and that there be more partnership-type exchange between those that 
create the jobs in America, that pay the bills, and those that attempt 
to regulate them and their lives and their businesses sometimes in very 
wasteful and unreasonable ways.
  So, Mr. President, there may be room to change some of the words to 
make it very clear what we intended. We will work with Senator 
Johnston's staff and Senator Glenn's staff. We have already talked at 
length with the chairman of Governmental Affairs, Senator Roth, and his 
staff. They tend to think this is a good amendment and should be 
adopted.
  Mr. President, almost all of the small business owners I talked to--
who are the people who create almost all of the jobs in my State--told 
me just how smothering this explosion in regulations has become.
  Further, almost without exception, these small business owners 
identified the Occupational Safety and Health Administration [OSHA] and 
the Environmental Protection Agency [EPA] as the two Federal agencies 
which promulgate the most unreasonable and burdensome regulations.
  Further, Mr. President, because a great number of new businesses are 
being started by women, some of the most vocal critics of EPA's and 
OSHA's unreasonable regulations are women-owned businesses.
  I believe one of the biggest reasons for these attitudes among 
America's small businessmen and women is that they are just not 
adequately consulted when regulations affecting them are being proposed 
and promulgated.
  I am not alone in this belief.
  Last year five agencies--including the Small Business Administration, 
EPA, and OSHA--held a Small Business Forum on Regulatory Reform.
  Let me quote from the Administration's own report summarizing the 
principal concerns identified at the forum:

       The inability of small business owners to comprehend overly 
     complex regulations and those that are overlapping, 
     inconsistent and redundant.

  These panels will be responsible for providing technical guidance for 
issues impacting small businesses, such as applicability, compliance, 
consistency, redundancy, readability, and any other related concerns 
that may affect them.
  These panels will then provide recommendations to the appropriate 
agency personnel responsible for developing and drafting the relevant 
regulations.
  The panels will be chaired by a senior official of the agency and 
will include staff responsible for development and drafting of the 
regulation, a representative from OIRA, a member of the SBA Advocate 
office, and up to three representatives from small businesses 
especially affected.
  The panel will have a total of 45 days each to meet and develop 
recommendations before a rule is promulgated or before a final rule is 
issued. Forty-five days, in the context of rules that are years in 
development, is not a delay.
  In fact, these agencies know months in advance that they will be 
preparing these regulations. Sometime during this period, the agencies 
can seek these panels' advice.
  This will allow the actual small business owners, or their 
representative associations, to have a voice in the massive regulatory 
process that affects them so much.
  Finally, this amendment will also provide for a survey to be 
conducted on regulations. This idea is analogous to what the private 
sector routinely practices.
  A customer survey, contracted and conducted with a private sector 
firm, will sample a cross-section of the affected small business 
community responsible for complying with the sampled regulation.
  I believe that this panel, working together so all viewpoints are 
represented, will be the crux of reasonable, consistent and 
understandable rulemaking.
  Further, my amendment enjoys the support of the National Federation 
of Independent Business.
  Also, I previously spoke of the Small Business Advocacy Council which 
I set up in my State.
  Mr. President, I believe this amendment will help reduce 
counterproductive, unreasonable Federal regulations at the same time it 
is helping to foster the non-adversarial, cooperative relationships 
that most agree is long overdue between small businesses and Federal 
agencies.


                               conclusion

  Mr. President, a second part of this amendment would greatly aid 
small businesses as they deal with these seemingly endless Federal 
regulations.
  For a further explanation of these provisions, I would like to yield 
to my good friend and chairman of the Small Business Committee, Senator 
Bond.
  Let me conclude that the National Federation of Independent 
Businesses wholeheartedly supports this amendment as a bona fide effort 
to get small business involved in a non-advocacy manner but regular and 
ordinary involvement in the preparation of regulations that affect 
them.
  I ask unanimous consent that the letter from the National Federation 
of Independent Businesses be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            National Federation of


                                         Independent Business,

                                    Washington, DC, July 12, 1995.
     Hon. Pete Domenici,
     U.S. Senate, Washington, DC.
       Dear Senator Domenici: On behalf of the more than 600,000 
     members of the National Federation of Independent Business 
     (NFIB), I am writing to express NFIB's support for your 
     legislation, the Small Business Advocacy Act, as an amendment 
     to S. 343, along with Senator Bond.
       Small businesses have long been at a disadvantage in 
     accessing the regulatory process. They simply do not have the 
     time or resources to closely follow the Federal Register and 
     work with agencies to ensure that regulations are not 
     unnecessarily burdensome. This issue is of such importance 
     that it was voted the number three recommendation in the 
     recent White House Conference on Small Business.
       Your legislation provides a mechanism, through its 
     establishment of small business review panels, to ensure that 
     the small business voice is heard as regulations are being 
     developed. As a result, regulators are more likely to achieve 
     their implementation goals at a lower cost and with less 
     burden on small businesses.
       Further, your legislation establishes a small business and 
     agriculture ombudsman 

[[Page S 9884]]
     in federal agencies where small business owners can confidentially 
     report on compliance and enforcement proceedings. The 
     ombudsman can then issue findings and recommendations to 
     improve enforcement activities and ensure that regulations 
     are understandable and reasonable for small businesses.
       NFIB supports your efforts and will work with you to enact 
     your amendment.
           Sincerely,
                                                 Donald A. Danner,
                                                   Vice President.

  Mr. DOMENICI. I yield to my friend, the chairman of the Small 
Business Committee, Senator Bond.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I am pleased to join with my very 
distinguished colleague from New Mexico and the other Senator from New 
Mexico, Senator Bingaman, in offering this amendment. I commend Senator 
Domenici for all of the work that he has been doing on the very 
difficult budget process, and for the great work he has put in this 
early on this year.
  He asked if I would join him to listen to the small business people 
who had come to him in New Mexico and who wanted to share with us in 
Washington the concerns they had about how the Federal Government was 
making it far more difficult for small businesses to thrive and even to 
survive.
  We had an excellent field hearing in Albuquerque, NM, where we 
learned a great deal about the concerns of small businesses about 
excessive regulations and excessive and abusive enforcement tactics by 
Government agencies.
  Here in Washington those might seem like overused phrases. But 
outside the beltway, in the real world, where the men and women of 
small business are trying to earn a living for themselves and their 
families, to create jobs and to improve their communities, they are 
suffering real harm from precisely those excessive regulations and 
excessive and arbitrary enforcement.
  We heard from Ms. Angela Atterbury, owner of a small business in 
Albuquerque, NM. She told us of a small businessman who was a first-
time offender of an OSHA regulation and was fined $8,000; no education 
or explanation, just a fine, which almost put the man out of business. 
She told us of a small pest-control company transporting one to two 
pints of pesticide who must comply with the same regulations as a large 
shipper of chemicals. And a candymaker who cannot legibly print all the 
information required by the FDA on the candy bar wrapper.
  You have to have a separate sheet of paper attached to each candy bar 
to get all the information on it.
  We also heard from Mr. Gregg Anesi, a small businessman from 
Farmington, NM, who testified that too often there is no practical 
recourse for a bad regulation or a bad regulator.
  This is something that we have heard time and time again. Many, many 
small businessmen and women have asked us, ``What do you do if you are 
small business and you cannot afford to hire a hoard of lawyers, and 
you cannot afford to carry on a battle with an agency? You have 
somebody who seems to be overstepping their authority or 
misinterpreting regulations. How do you get out of it?''
  This is really a crushing problem for many small businesses who run 
head on into the Federal Government and feel like they have been hit by 
a truck.
 And many, many more small businessmen who were literally drowning in 
the flood of government regulations.

  The Small Business Committee has held field hearings in several other 
States since that time, and the message from small business owners at 
each of these hearings is strikingly similar. In my own State of 
Missouri, I heard from Mr. Leon Hubbard, the owner of a small 
homebuilding company in Blue Springs, MO. Mr. Hubbard persuasively 
describes the disproportionately burdensome impact on a company like 
his of regulatory paperwork obligations. OSHA requires companies like 
his to have files of Material Safety Data Sheets for all hazardous 
products on a home construction site, in spite of the fact that most 
products carry their own warning labels and despite a 1992 OSHA study 
that indicated less than 1 percent of all construction fatalities 
resulted from chemical exposure.
  We know from other instances where people have been hit by OSHA 
because they did not have a safety material data sheet on a bottle of 
Dove soap, the kind that any of us may use in household cleaning 
activities. This is the length to which some of them have gone.
  He also pointed out the unfairness of OSHA's multiemployer work site 
policy. Arbitrary enforcement of this rule makes builders like himself 
legally responsible for the safety practices of employees of 
independent subcontractors working on the same job site even though he 
might not have any direct authority over the employees. This means that 
one employer could be cited for safety violations of another employer.
  Another piece of very compelling and interesting testimony came from 
Mr. James M. White, senior program director for the Local Initiative 
Support Corp. in Kansas City describe his frustrations with the 
problems created for central city redevelopment by the unpredictable 
enforcement of environmental regulations. Mr. White is a senior program 
director for a national non-profit organization funded by the private 
sector to provide support to community development corporations. He 
testified about his personal involvement in six proposed development 
projects in central Kansas City where the projected development costs 
were escalated to excessive levels by uncertainty over cleanup 
requirements under environmental laws. The defensive and over cautious 
approach taken by lenders and others as a result of inconsistencies and 
uncertainties about potential environmental liabilities dramatically 
increase project costs and reduce redevelopment opportunities. 
Factories and jobs often are driven to locate in distant suburbs rather 
than in the central city where they would be welcomed by thousands of 
job seekers.
  As a result of our hearings, Senator Domenici introduced S. 917, the 
Small Business Advocacy Act--to give small business a greater voice in 
development of regulations of EPA and OSHA--and I introduced S. 942--to 
give small business a greater voice in dealing with the enforcement of 
regulations,
 to give small businesses who feel they are being oppressed either by 
excessive regulations or by the enforcement of them some place they can 
go, some voice where they can be heard.

  The amendment that Senator Domenici, Senator Bingaman, and I have 
proposed draws on both bills to produce what we think is a strong 
amendment for small business.
  The part of the amendment drawn from S. 942 is designed to give small 
businesses a place to voice complaints about excessive, unfair or 
incompetent enforcement of regulations, with the knowledge that their 
voices for once will be heard. The amendment sets up regional small 
business and agricultural ombudsmen through the Small Business 
Administration's offices around the country to give small businesses 
assurance that their confidential complaints and comments will be 
recorded and heard.
  I cannot tell you how many times a small businessperson has come up 
to me and said, ``Man, this inspector from OSHA was really tough on me, 
but I am scared to death because if I complain to his supervisor, I am 
going to get it doubly bad the next time.''
  Well, there ought to be some kind of check, some kind of confidential 
process in which he can place that complaint. And if there are others 
like him who are also being abused by that particular inspector, 
perhaps the ombudsman can do something about it.
  The ombudsman also would coordinate the activities of the volunteer 
Small Business Regulatory Fairness Boards, made up of small business 
people from each region. The board would be able to investigate and 
make recommendations about troublesome patterns of enforcement 
activities. Any small business subject to an inspection or enforcement 
action would have the chance to rate and critique the inspectors or 
lawyers with whom they deal.
  Now, they may not like them all, but you can sure find out, when you 
listen to the people who are subjected to the inspections and the 
regulations, who are the responsible officials and who are the overly 
aggressive and excessively burdensome and overbearing regulators.
  In dealing with small businesses today, too many times an agency 
seems to assume that everyone is a violator of the rules, trying to get 
away 

[[Page S 9885]]
with something. Many agencies do a good job of fulfilling their legal 
mandate while assisting small business, but there are some that seem 
stuck in an enforcement mentality where everyone is presumed guilty 
until proven innocent. That is not our system. That is not the American 
way.
  From your experience and mine, we know that most people want to 
comply with the law if they know what it is. We still need sanctions. 
We still need enforcement for those who willfully refuse to do so. But 
let us not assume that everyone wants to violate the law and wants to 
overlook the requirements for safety, for health and other legitimate 
regulatory purposes.
  I think we ought to let small businesses compare their dealings with 
one agency to dealings with another so that the abusive agencies or 
agents can be weeded out and exposed. Agencies should be vying to see 
which can fulfill their statutory mandate in ways that help and empower 
small business to accomplish their purposes, whether it be safety in 
the workplace or cleanliness of the environment. The agencies ought to 
be helping first the people involved to do the job that they want done 
and to do it properly.
  We need direct feedback, and I think the agencies need direct 
feedback from small business women and men around the country on how 
well regulators are doing their job.
  In my view, the Domenici amendment will for the first time take the 
fight outside the beltway and attack the regulations and the agencies 
where they impact people in their day-to-day lives.
  Now, most of my colleagues in this body have received complaints. If 
you have not heard thousands of those complaints, you must not be 
listening because every day they come to Washington to tell the Members 
of Congress how bad they are being treated. Let us give them a chance 
to get a hearing out in the area where they live to identify at the 
location where it is happening those agencies or representatives of 
agencies who are overstepping their boundaries.
  Mr. President, last month the President told the White House 
conference that he wants Government regulators to stop treating small 
business men and women as criminals and start treating them as partners 
or customers. I commend him for that, and I believe this amendment will 
help to make that goal a reality and bring much needed relief to small 
businesses across the country. I really hope the President will follow 
through on his speech to small business and join with the National 
Federation of Independent Businesses in supporting this amendment.
  I point out, since I am talking about the conference, that this White 
House Conference on Small Business which just completed brought a lot 
of good ideas and a lot of information to Washington, and the No. 3 
priority which the small business delegates put on the agenda was 
dealing with regulation and paperwork. They had a vote of 1,398 who 
said the third priority should be amending the Regulatory Flexibility 
Act, making it applicable to all Federal agencies including IRS and 
DOD, and including the following--and this I note parenthetically, that 
the Dole substitute, this measure under consideration, does just that. 
It strengthens the Regulatory Flexibility Act. It also does the other 
following things set forth in that priority listing:

       A. Require cost-benefit analysis, scientific benefit 
     analysis and risk assessment on all new regulations.
       B. Grant judicial review of regulations, providing courts 
     the ability to stay harmful and costly regulations and 
     requiring agencies to rewrite them.
       C. Require small business representation on policymaking 
     commissions, Federal advisory and other Federal commissions 
     or boards whose recommendations impact small businesses. 
     Input from small business representatives should be required 
     on future legislation, policy development and 
     regulationmaking affecting small business.

  The regulations go on, but I think any of us who travel in our States 
and listen to the small businesspeople will agree that even if you were 
not fortunate enough to attend the conference, these are the concerns 
of small business.
  I believe the Domenici amendment helps this excellent substitute that 
is before us to address those needs.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from New Mexico has 2 minutes.
  Mr. DOMENICI. Mr. President, I ask unanimous consent that Senator 
Cohen of Maine and Senator Abraham of Michigan be added as original 
cosponsors.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. I ask unanimous consent there be printed in the Record 
a letter from Angela Atterbury, of Atterbury & Associates, who is the 
chairperson of my Small Business Advocacy Council, expressing our 
entire New Mexico Advocacy Council support of this amendment.
  There being no objection the letter was ordered to be printed in the 
Record, as follows:

                                     Atterbury & Associates, Inc.,
       For the past two years, the Small Business Advocacy Council 
     has worked to identify solutions to regulatory issues which 
     create unreasonable burdens for small business. Our members, 
     comprised of women and men small business owners, currently 
     are under-represented in the regulatory process. By providing 
     a presence to small business people on a regulatory review 
     panel, Congress would level the playing field toward small 
     business, which often can not absorb the costs or the time 
     required to understand the language of existing regulations.
       This is what small business wants--an opportunity to act in 
     an advisory capacity and work together with agencies. This 
     would help refute what is seen by small business as the 
     agencies' adversarial position toward them. It would provide 
     a much-needed dose of reality by those of us who live our 
     day-to-day lives outside the Beltway to those who live within 
     its confines, in terms of application, readability, costs and 
     other germane issues. The review panel will also give each 
     side a means to communicate and soften the stance many in the 
     small business community hold of the agencies, that is, that 
     their existence is justified only by levying fines to small 
     business.
           Sincerely,

                                             Angela Atterbury,

                                                 President, Chair,
                                  Small Business Advocacy Council.

  Mr. DOMENICI. I was very pleased that my friend from Missouri 
mentioned some of the people in our State who testified before his 
small business hearing, and I might just in my remaining minute for the 
record thank him for mentioning them and refresh his recollection about 
the farmer who brought to the hearing room all of the attire, from 
boots to an orange jacket, to a headpiece where he had to cover his 
face. And it was because of the newest regulatory schemes that we have 
under the protection of Agricultural Workers Act. That may not be its 
formal name.
  What he said was very interesting. I wanted to say this when Senator 
Nickles, the great golfer, was in the Chamber. He said, I believe we 
can prove that every golfer who plays 18 holes of golf on a modern 
grass course gets exposed to more of that which you are trying to 
protect farm workers from than in 1 year on the farm, but farmers' 
aides will be wearing this attire like they were from outer space. He 
said, how would the golfers feel with all of that on them to protect 
their legs which are exposed as they wear shorts out on the golf 
course.
  I think those are some of the things that somehow or another, sooner 
or later we are hopeful the point will get across about common sense, 
and we believe our amendment will add a little bit of potential and 
possibility for that happening.
  Mr. President, I understand Senator Glenn and the staff of 
Governmental Affairs wants more time to look at my amendment. So, I ask 
unanimous consent that whatever the previous order was, that the 
Domenici amendment be set aside and that it follow in sequence for 
tomorrow morning for the first amendment that would come up tomorrow 
morning, whatever that might be.
  Is that satisfactory with Senator Glenn?
  Mr. GLENN. It is satisfactory to me. All we want to do is have a 
chance to look at it. There is some irritation expressed that we were 
even questioning this.
  Mr. DOMENICI. Let me ask that it be set aside temporarily.
  The PRESIDING OFFICER. The amendment has been set aside for the 
consideration of the amendment by the Senator from New Jersey.
  Mr. DOMENICI. I am supposed to be back here to present the rest of my 
amendment. I am not going to do that if it is to no avail. 

[[Page S 9886]]

  Mr. GLENN. We would be happy to comply with all these things. We have 
a number of questions on these. They are legitimate. We will have the 
administration, the Justice Department, look into this tonight to be 
able to give an answer in the morning. We would not be able to give 
approval or accept this this evening. I think it is a good idea to put 
it off until tomorrow. Then the Senator from New Mexico would not have 
to come back tonight.
  The PRESIDING OFFICER. It is the Chair's understanding that the 
Senator from New Mexico controls when his amendment will be called up. 
He can have it set aside in order to hear the presentation by the 
Senator from New Jersey.
  Mr. DOMENICI. Thank you.
  The PRESIDING OFFICER. It will come up when he calls it.
  Mr. GLENN. It is subject to being called up either tonight or 
tomorrow; is that correct?
  The PRESIDING OFFICER. That is correct. We would proceed following 
the Senator from New Jersey.
  The Senator from New Jersey is recognized to proceed.
  Mr. ROTH addressed the Chair.
  The PRESIDING OFFICER. Under the previous order, the Senator from New 
Jersey is recognized.
  Will the Senator from New Jersey yield?
  Mr. ROTH. For the purposes of unanimous consent.
  Mr. LAUTENBERG. I would be pleased to yield without losing my right 
to the floor to the distinguished Senator from Delaware.
  Mr. ROTH. We will withhold. I understand there will be one more 
unanimous consent.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. I thank the Chair.


                Amendment No. 1535 to Amendment No. 1487

   (Purpose: To strike the provisions relating to the toxic release 
                           inventory review)

  Mr. LAUTENBERG. I send an amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. Without objection, the pending Domenici 
amendment is set aside. The clerk will report the Lautenberg amendment.
  The legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg], for himself, 
     Mr. Baucus, Mr. Lieberman, Mr. Kerry, Mr. Bradley, Mrs. 
     Boxer, Mr. Simon, Mr. Kennedy, and Mr. Moynihan, proposes an 
     amendment numbered 1535 to amendment No. 1487.

  Mr. LAUTENBERG. 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 72, strike lines 1 through 15.

  Mr. LAUTENBERG. Mr. President, this amendment would delete a 
provision currently in the bill that is unrelated to regulatory reform 
and would greatly weaken a critical environmental law generally known 
as the community right-to-know law, or the Toxics Release Inventory, 
commonly called TRI.
  Mr. President, I was the original sponsor of the right-to-know law. I 
am proud that it has proved to be one of the most effective 
environmental laws on the books. The right-to-know law has no 
prescriptive requirements. It does not force anyone to do anything 
except release information. It is a simple sunshine statute.
  Mr. President, I would strongly oppose the emasculation of the right-
to-know law no matter what the vehicle. But this clearly is not the 
proper way to consider such a huge change in the major environmental 
law. The right-to-know provision in this bill has been subject to 
hearings or scrutiny in the Environment and Public Works Committee. And 
the substance of the proposal goes well beyond the changes proposed for 
other types of regulations.
  Mr. President, as I said, my amendment proposes to delete a section 
of the proposed legislation that reduces the effectiveness of the 
right-to-know law, commonly called TRI, Toxics Release Inventory. Most 
of us who have been here for a while have worked on legislation that 
sometimes turns out to be less effective than we had hoped. The right-
to-know law, on the other hand, has proven to be even more effective 
than we expected. It has also proved to be less obtrusive to business 
than other environmental laws that are on the books.
  Now, most environmental regulations operate by command and control. 
They require companies to take specific actions, such as lowering 
emissions, sometimes by a specific date, sometimes by a specific 
technology. Some environmental laws require industry to develop 
technology that does not yet exist. And these types of prescriptive 
regulations are probably the major reason that industry has been 
pushing for this so-called reform legislation.
  But the right-to-know legislation is quite different. The Toxics 
Release Inventory imposes no regulatory control. It requires no 
permitting. It sets no standards. It requires no registration, labeling 
or reduction in emissions. It does not even require monitoring by a 
Federal agency. All it requires are estimates of the amount of toxic 
chemicals that facilities release into our environment. And this 
information is very helpful to local officials, to fire and emergency 
personnel and to those who live near the plants. Despite the lack of 
specific requirements, the right-to-know law has probably led to more 
voluntary pollution prevention efforts and more environmental cleanup 
than any other law. The right-to-know law requires companies to list 
the amount of certain chemicals that leave their facilities through 
air, through water, or shipment to land disposal facilities.
  Currently, 652 chemicals are required to be disclosed. Each has well-
established adverse health effects or is carcinogenic or toxic.
  Now, under the law, in deciding which chemicals to include on this 
list, EPA is not required to do a full risk assessment. On the other 
hand, the law does not restrict companies from releasing these 
chemicals. All that is required--and I make this point over and over 
again--is disclosure. The right-to-know law has proven effective 
primarily because it has influenced the voluntary behavior of 
corporations. First, many companies have voluntarily reduced the 
emissions of harmful chemicals in order to avoid negative publicity. By 
requiring companies to tell the public the truth about the chemicals 
they are emitting, the law has created a strong incentive for industry 
to reduce emissions even though, again, they are not required to do so 
by law.
  Beyond creating the possibility of adverse publicity, the right-to-
know law has worked by encouraging businesses to reduce waste for the 
sake of their own bottom line. Company after company has discovered the 
material they were putting out through the stacks or pouring into the 
water could be recovered and reused. One company in New Jersey cut its 
emissions by 90 percent once they looked at the value of the materials 
they were simply throwing away. And when we look at what some of the 
companies say, it is rather illuminating. This quote from Ciba-Geigy, a 
very important pharmaceutical manufacturer, in 1993 in the 
environmental report that said:

       The initial demand for environmental reporting came from 
     the public. But in responding, we have discovered that the 
     information is extremely useful to our own management. We 
     have learned about our successes, our inadequacies and the 
     gaps in our knowledge. It's a good example of the way in 
     which external pressures ultimately prove of benefit to the 
     environment and to industry.

  Mr. President, lots of these materials are very expensive. And when 
they are wasted, they have a negative effect on the company's bottom 
line. Yet before the right-to-know law was enacted, perhaps 
surprisingly many companies simply did not appreciate the extent to 
which chemicals were being wasted by emitting them into the environment 
rather than using them in their product manufacturing. The right-to-
know law has given many corporations the information they need to 
reduce this waste. As a result, many have redesigned their 
manufacturing processes, begun recycling chemicals, and taken other 
steps to reduce waste.
  This chart helps to demonstrate the impact of the Toxics Release 
Inventory. In 1988, 4.8 billion pounds of toxic material were sent into 
the waste--air, land, or water. In 1992, 4 years later, we had a 
dramatic reduction, down to 3.2 billion pounds, and in 1993, 2.8 
billion pounds, a reduction of 2 billion pounds of toxic material being 
emitted into the waste stream in a period of only 5 years. 

[[Page S 9887]]

  Now, what is going to happen if the present bill goes into effect as 
is, turns into law? Then the right to know--nothing will be the 
predominant rule. Mr. President, not only is it unfair, costly, 
wasteful, but it will give the companies a chance to relax rules that 
proved beneficial for them and nonbeneficial for the health and well-
being of the residents or those who work in the area.
  Let me repeat, emissions have been reduced by 42 percent or, as I 
said earlier, 2 billion pounds in dangerous chemical emissions. Yet, 
all of this is at risk if the provision included in the bill is enacted 
into law.
  Do we really want to change the right to know into knowing nothing? I 
hope not. Should not our citizens be aware of the risks that they and 
their families undergo?
  The chemical industry has acknowledged the value of the right-to-know 
law. We can look at the testimony by the Association of Chemical 
manufacturers. They say:

       The chemical industry can work within the requirements of 
     title III to achieve two important objectives: Improving 
     local emergency planning and informing the public about 
     chemical operations.
       These objectives are vital to the long-term success and 
     competitiveness of the chemical industry. Facility managers 
     must take the initiative and work directly with local 
     government and communities to make this law work.

  Or someone representing DuPont, Mr. Vernon Rice, said:

       The beauty in the TRI is that a company can decide for 
     itself how it will achieve reductions and can deploy the most 
     cost-effective methods to do so. The law and the regulations 
     that follow provide the incentive that industry then is 
     provided with discretion on how to make the reductions.

  I might add, Mr. President, industry also can decide not to make any 
reductions at all.
  The bill before us would undermine the right-to-know law by changing 
the rules for designating those chemicals that must be disclosed. It 
makes it easier to take chemicals off the list and harder to put them 
on.
  Under the new test, EPA would have to know about emissions and 
exposure levels at plants throughout the country to determine their 
likely impact. But because the TRI information on that chemical would 
not exist, EPA would not have enough information to meet the new test. 
This new standard puts the cart before the horse. This would completely 
defeat the purpose, intent, and the positive successes of the TRI 
program.
  The TRI list is not perfect and perhaps some chemicals should be 
removed. Yet, present law has a proven system to consider petitions to 
remove chemicals from the list. Seventeen chemicals have been taken off 
the list through the petition process.
  I urge my colleagues in the strongest possible terms to reject this 
special interest legislation. It is a paternalistic proposal that would 
have the Congress tell the American communities that they do not have 
the right to know about chemicals that could have a fundamental 
negative impact on their lives. It is a proposal that says to community 
officials that you need not have a right to know about chemicals that 
can cause serious harm to your constituents. It is a proposal that says 
to parents, you may be concerned about how toxic chemicals will affect 
your children, but it is more important that industry should have the 
right to withhold that information about chemicals that they are 
emitting into the atmosphere, into the water, and into the land.
  This is bad special interest legislation, Mr. President. The section 
on the right to know is an exception from the $100 million threshold in 
the rest of the bill. It has no place in this legislation, and I urge 
my colleagues to support my amendment to delete it.
  Mr. President, I believe that we have an hour equally divided, 
according to the unanimous consent agreement; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. LAUTENBERG. How much time does my side have?
  The PRESIDING OFFICER. The Senator has 16 minutes 40 seconds 
remaining.
  Mr. BRADLEY, Mr. President, I rise in support of the amendment to 
remove the Toxic Release Inventory provisions from the regulatory 
reform bill. On June 28, 1995, I wrote to the majority leader 
suggesting that this section and the provisions affecting Superfund be 
removed from S. 343. I said at that time that I was troubled by the 
bill's inclusion of special provisions affecting the effectiveness of 
the toxic release inventory, TRI, also known as the Community Right-To-
Know Act.
  The Community Right-To-Know Act, which builds on programs pioneered 
by my home State of New Jersey, is considered a complete success by 
almost all those who have analyzed its performance. In fact, it is 
precisely the kind of alternative to conventional command-and-control 
regulation which the drafters of S. 343 say they endorse. It requires 
full community disclosure for a list of chemicals which may prove 
hazardous to human health or the environment, especially in case of 
accidents.
  In response to required TRI disclosures, and without the need for 
restrictive regulations, companies have voluntarily reduced their use 
and emissions of chemicals on the TRI list. This form of pollution 
prevention has actually saved companies money, caused them to retool 
their operations for greater efficiency and gained them good will in 
their communities.
  And using TRI information, nearby communities have taken the 
precautions they need to protect themselves in the event of an 
emergency.
  Unfortunately, the bill would require EPA to replace its current 
hazard-based listing process for the addition of new chemicals under 
TRI with an unworkable, risk-based process which would result in the 
addition of few, if any new chemicals to the TRI list. The bill would 
also require EPA to remove chemicals from the TRI list if the Agency 
could not make a showing that a particular chemical was acutely toxic 
to areas beyond a facility's boundaries. Obviously, this kind of 
restriction on TRI's effectiveness would result in serious emergency 
response problems. Even worse, the blll's restrictive language would 
eliminate coverage for chemicals which cause chronic health hazards, 
reproductive effects or environmental damage. The result--elimination 
of about 90 percent of the chemicals on the TRI list.
  The bill would also require the Agency to prove that listed TRI 
chemicals cause harm when they are released to the environment before 
requiring companies to report their pollution under TRI. But since TRI 
is a full-disclosure statute and not a regulatory one, this standard is 
irrelevant. The purpose of TRI is to let a plant's workers and nearby 
community know what is going on at facilities which are their employers 
and neighbors.
  Even with TRI, there are still problems with insuring that a 
community receives the information it needs for coping with chemical 
emergencies and discovering bad actor companies. A recent accident in 
Lodi, NJ points out the need for an expansion of TRI which puts 
chemical information into a user-friendly form. At the time of the 
accident the community found it lacked the data it felt it needed.
  I will soon introduce legislation to require centralized information 
collection and distribution of all the information available on a plant 
or group of plants, including state data, violation and accident 
history. While all this information is available now, you have to be 
Sherlock Holmes to ferret it out.
  Mr. President, restricting and usefulness of TRI makes no sense. It 
is a low-cost, nonregulatory way of improving the environment that 
other programs should be copying. And it is exactly the kind of 
protection that communities like Lodi need.
  Mr. LAUTENBERG. Mr. President, I ask if the people in opposition have 
comments that they would like to make at this juncture, or if there are 
any of those people who are cosponsors of my amendment who are here who 
would like to add their thoughts. We have cosponsors who are indicated 
on the legislation, a significant number of them. If they would like to 
make any comments, this is the time they are going to have to do it, 
because the clock is ticking and I hate to see the time wasted.
  Unless anyone wants to speak, Mr. President, I will suggest the 
absence of a quorum.
  Mr. JOHNSTON. Will the Senator withhold?
  Mr. LAUTENBERG. I will. 

[[Page S 9888]]

  Mr. JOHNSTON. Mr. President, will the Senator yield me 10 minutes?
  Mr. ROTH. I will be happy to yield 10 minutes. But first, I want to 
make three unanimous-consent requests.
  The PRESIDING OFFICER. The Senator from Delaware.


                      Unanimous-Consent Agreements

  Mr. ROTH. Mr. President, I ask unanimous consent that when Senator 
Feingold offers his amendment regarding equal access, that no 
amendments be in order, or in order to the language proposed to be 
stricken; that there be 30 minutes for debate to be equally divided in 
the usual form; and that when the Senate votes, the vote occur on or in 
relation to the Feingold amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. Mr. President, I ask unanimous consent that when Senator 
Feingold offers his amendment regarding peer review, that no amendments 
be in order, or in order to the language proposed to be stricken; that 
there be 15 minutes for debate to be equally divided in the usual form; 
and that when the Senate votes, the vote occur on or in relation to the 
Feingold amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. Finally, Mr. President, I ask unanimous consent that when 
Senator Pryor offers his amendment regarding private contractors, that 
no amendments be in order, or in order to the language proposed to be 
stricken; that there be 30 minutes for debate to be equally divided in 
the usual form; and that when the Senate votes, the vote occur on or in 
relation to the Pryor amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROTH. Mr. President, I yield 10 minutes to my distinguished 
colleague, the Senator from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, I rise in opposition to the amendment of 
the Senator from New Jersey. The language now in the Dole-Johnston 
substitute, I believe, is well tailored, calculated to achieve that 
result which all of us want, which is notice to the public of a toxic 
chemical which, under any reasonable scenario, can be expected to do 
some harm.
  The problem is under the present statute, a chemical can be or, 
indeed, must be listed by the Administrator of EPA if it is known to 
cause serious chronic health effects. There are a lot of other 
provisions, but let me reread that: If it is known to cause serious or 
chronic health effects.
  That phrase is so broad and so all encompassing as to encompass 
ordinary table salt, ordinary table salt which, if taken in sufficient 
quantities or, indeed, if ingested regularly in slightly too much 
degree can and does cause high blood pressure, and it can kill you if 
you take too much salt. Indeed, people out on boats in the ocean have 
ingested too much sea water and have died because of that.
  I am not suggesting here that the Administrator of EPA is getting 
ready to list ordinary table salt as one of the chemicals. That is not 
the point. The point is that the phrase, as used in the present law, is 
so broad that it does not just look at the reasonable possibility of 
harm to an individual.
  Rather, it looks at the chemical in an absolute way, without 
requiring that you consider whether there is any possible danger to the 
public from the way the chemical is used.
  So what we have done, Mr. President, is added a few words to this so 
that when the Administrator makes a determination under this paragraph, 
it shall be based on generally accepted scientific principles, or 
laboratory tests, or appropriately designed and conducted 
epidemiological or other population studies.
  That is in the present law. We have added this: ``And on the rule of 
reason, including a consideration of the applicability of such evidence 
to levels of the chemical in the environment that may result from 
reasonably anticipated releases available to the Administrator.''
  So, in effect, we are saying do not just look at whether ordinary 
table salt can cause you to be sick, or can cause high blood pressure, 
or can poison you if you take too much of it; rather, look at ordinary 
table salt, or whatever these other chemicals are, and determine 
whether using, as we say, the rule of reason, including a consideration 
of the applicability of such evidence, to the levels of the chemical in 
the environment that may result from reasonably anticipated releases.
  All we are asking, Mr. President, is that you use common sense, and 
that you do not just say because a chemical may be potentially harmful 
if ingested in ways that are unlikely--not only unlikely, virtually 
impossible--but rather use, Mr. Administrator, the rule of reason. I 
cannot think of a more reasonable amendment than to tell the 
Administrator to use the rule of reason. Does this gut the toxics 
release inventory? Of course not. It simply brings a little common 
sense.
  Now, the amendment goes further. It says that ``any person may 
petition the Administrator to add or delete a chemical, and that the 
Administrator shall grant any petition that establishes substantial 
evidence that the criteria in subparagraph (a) either are or are not 
met.''
  That is the language we added. In other words, you can get a chemical 
put on. If you are, say, an environmentalist and you want to add a 
chemical, you can petition to get it added if you meet that standard, 
or you can get the chemical deleted if you meet that standard. That is 
all the language does, Mr. President.
  Now, you say, well, why would anybody want it to be off the list? 
Well, first of all, Mr. President, it is not just a question of having 
these chemicals listed, it is a burdensome and expensive system of 
having to report. A chemical manufacturer sells these chemicals across 
the country, and it might be a very benign chemical in the way that it 
is used. But each one of his vendees would have to report, and on down 
the line--I forget the amount that you have to have--it is 10,000 
pounds, which for an industry is not very much. You would have to 
report that, even though there is no real possibility that the chemical 
is ever going to get out.
  Now, Mr. President, I do not think that we have to worry about 
language that asks the Administrator to use the rule of reason in 
determining whether to put a toxic chemical on the list. I honestly 
think that any Administrator knows how to interpret those words.
  Now, why was it necessary to put these on? Well, because in one day 
this last year the Administrator listed another 280 chemicals on the 
toxics release inventory, and the EPA felt that it had no authority, it 
had no discretion to determine whether there was any danger posed to 
the public by these chemicals, whether there was any possibility of 
harm. They felt that under this language, they had to list all 280 
chemicals. Maybe the neighbors are upset and they say, oh, my gosh, you 
have all these terrible chemicals there that can cause all these 
terrible things --perhaps most of them or perhaps almost all. I do not 
know about the individual chemicals, Mr. President. But I am told by 
some people in the EPA--who will not be quoted, I can tell you that--
that some of these chemicals are really no problem, should never have 
been on the list, but there was not the discretion in the Administrator 
to apply the rule of common sense and reasonableness.
  Mr. President, this is not some big industry grab to force these 
chemicals on people across the country without warning, this is an 
attempt to apply the rule of reason to a very complicated thing.
  Look, if the Administrator goes back, and somebody complains about 
this, the Administrator could say it is a toxic chemical, I think it is 
possible that it might get out, and believe me that ought to be on the 
list if it is possible the chemical will get out and cause harm. The 
Administrator has all the authority under this language that he or she 
would ever need to put that chemical on the list.
  But, on the other hand, if it is no conceivable danger whatsoever, if 
you have a table salt kind of chemical, it should not be on the list 
and the Administrator ought to have the discretion to use the rule of 
reason and relieve people of these reporting requirements and relieve 
the community of the unnecessary fear in which a benign chemical might 
present.
  That is all the language does, Mr. President. It is not gutting the 
toxics release inventory. It is not, in any way, harming the health of 
people.
  Why should it be on this bill? Because it is a question of risk, and 
this 

[[Page S 9889]]
gives to the Administrator the judgment to apply real risk analysis in 
order to put chemicals on the list or take them off.
  I yield the floor.
  Mr. ROTH. Mr. President, I yield the distinguished Senator from 
Oklahoma 5 minutes.
  Mr. NICKLES. Mr. President, I wish to compliment my colleague, 
Senator Johnston from Louisiana, for his statement. I hope my 
colleagues heard his statement, and I hope they will vote against the 
amendment of my friend and colleague, Senator Lautenberg.
  I think the language we have in the bill is good language. I 
understand the amendment of the Senator from New Jersey would strike 
that language. I want to make it perfectly clear that the language in 
the bill dealing with toxics release inventory review does not gut the 
statute of toxics release inventory--the TRI, as we have heard. What it 
does is introduce an element of common sense.
  The Senator from Louisiana said, yes, if you have any type of 
chemical listed, it can be listed no matter how minimal that release 
might be. Even if there is no threat whatsoever under existing 
interpretation by EPA and others, they can list that chemical and set 
about a couple things. One, there is an enormous amount of paperwork 
and an enormous expense that consumers will pay for. Consumers are 
farmers, in many cases, or they might be somebody that may be making 
drugs for pharmaceutical companies, which, of course, increases the 
medical costs and so on.
 Every day people have to pay the cost.

  Senator Johnston also mentioned something else. He said these notices 
of release, if there is no real threat to public harm or public health 
and safety, people have a lot of unnecessary fears because of 
unnecessary notifications.
  What this language does, and I will read it from the bill, 
``including consideration of the applicability of such evidence to 
levels of the chemical in the environment that may result from 
reasonably anticipated releases.'' Reasonably anticipated releases.
  In other words, not through the environment that we talked about 
sometime last year during the clean air debate. If somebody was outside 
the plant gate for 70 years, 24 hours a day, in the prevailing wind, 
maybe they might one out of a million chance have obtained a disease.
  This says use common sense. That is what this language is about.
  Also, it mentioned that if somebody wants to either be put on the 
list or taken off the list, they must have substantial evidence to do 
so. It is a higher threshold. They have to have substantial evidence to 
be able to get a chemical off the list, or substantial evidence to put 
the chemical on the list. Again, common sense.
  I think that the language we have in the bill is well crafted. It is 
not radical. It is not extreme. It says we should use common sense. We 
can save a lot of paperwork, a lot of red tape, and we can eliminate 
unnecessary fears that some people have as a result of overzealous 
interpretation of the TRI statute.
  I compliment my colleague from Louisiana and also the Senator from 
Utah, Senator Hatch, and Senator Roth for this section.
  I urge my colleagues to vote no on the Lautenberg amendment. I yield 
the floor.
  Mr. LAUTENBERG. Mr. President, I listened with interest to my 
colleague's review of what this amendment is about within the bill as 
it is structured.
  The one thing I have not heard is anyone deny this success ratio. 
From 1988 until the present day we have reduced toxics being emitted 
into the air, the water, and on the land by 42 percent--2 billion 
pounds in a period of 5 years, 2 billion pounds less of toxic material 
hanging around our kids, hanging around our families, hanging around 
our school yards. Gone.
  And it does not mean diddly, as we say, in terms of the company's 
responsibility. We are not arresting anybody. We are not fining 
anybody. What we are saying is that they simply have to report. It is 
sunshine. Let the public know what it is that they ought to be 
concerned about, in the event of a particular emission.
  It is great for fire departments. In one city in New Jersey, we had a 
fireman's protective gear melt off his body because of the chemical 
mixture. At least if they know this information, emergency response 
people can prepare the materials necessary to fight a particular 
release, explosion, or fire. What we are doing now is we are saying, 
Okay, the public really does not have a right to know this kind of 
thing.
  All of these materials that are released are toxic, Mr. President. 
They do not get out there willy-nilly. This is not an administrator's 
dream of torture.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. LAUTENBERG. Very briefly for a question.
  Mr. JOHNSTON. Just on the point that the Senator said that EPA is not 
arresting anybody.
  According to ``Inside EPA,'' the weekly report for June 30, 1995, 
they do say that 3 priority sectors for determining enforcement actions 
were chosen because of noncompliance histories, toxics release 
inventory releases, and trans-regional impacts.
  In other words, TRI releases are one of the bases on which they bring 
enforcement actions. Would the Senator agree with that?
  Mr. LAUTENBERG. Say it again, please.
  Mr. JOHNSTON. That one of the bases on which EPA brings enforcement 
actions is TRI releases.
  Mr. LAUTENBERG. Yes.
  Mr. JOHNSTON. So that it does have something to do with enforcement?
  Mr. LAUTENBERG. There is a requirement that they have to file this 
information.
  Mr. JOHNSTON. I mean on enforcement, where they send the 
investigators out. In other words, if you have TRI releases, they 
enforce the rules.
  Mr. LAUTENBERG. If there is an accident that endangers the public 
health, yes, someone will look at it.
  I would love to respond to my friend from Louisiana, but we are using 
my time and he is in opposition, so I do not want to give him my time 
to oppose this brilliant amendment.
  The Senator from Massachusetts has asked for some time. He has worked 
very hard on these issues and I would be delighted to yield as much 
time as he needs, not to exceed 10 minutes.
  Mr. KERRY. Mr. President, I think I will not need 10 minutes.
  I would like to respond, if I can, to the comments of the Senator 
from Louisiana and to the whole concept of what is really at stake in 
revamping the Right-to-Know law and its Toxics Release Inventory (TRI).
  First of all, we should remember that TRI is the Emergency Planning 
and Community Right-to-Know Act of Title III of Superfund. This program 
does not have the same breadth of regulatory reform we are reaching for 
in the bill before us. The fact is that this is a nonregulatory 
sunshine law and should be considered separately by the Senate 
Environment and Public Works Committee.
  In fact, Senator Smith on the Republican side has been doing a very 
good job of leading the effort to revamp the Superfund program and as 
Title III of that act this issue could be appropriately considered at 
that time. To date, however, there have been no hearings on this whole 
question of exactly what the impact of revamping the right-to-know law 
would be. In fact, there has not been a hearing on TRI in the Senate 
since 1991.
  Yesterday, I attended a press conference outside this chamber where 
members of the firefighter unions of the United States, representing 
several hundred thousand firefighters, said, ``Don't do this. Do not 
change the TRI structure today and thereby put firemen at risk.''
  What the TRI structure does today is allows fire departments all 
across this country to be able to plan for what kind of fire they may 
be going into. Because of the TRI, communities have computerized 
knowledge of precisely what chemicals exist in certain companies, in 
certain buildings. When the fire department gets an alarm, they simply 
punch the computer and the data comes up on the computer screen 
immediately so that firemen have the ability to be able to don masks, 
maybe don protective gear, call in additional help, take special 
measures to secure the area, evacuate personnel. All of that knowledge 
comes about because of a simple concept called Right-to-Know. 

[[Page S 9890]]

  The TRI is not a regulation that does away with chemicals. It does 
not require companies to spend a whole lot of money to comply with 
regulations. It simply makes information available to businesses, to 
communities, and to citizens. That information allows citizens to then 
decide whether they think they are at risk and gives companies the 
information they need to help them reduce their wastes before they are 
created. It is the best tool to promote pollution prevention that we 
have in effect today.
  What is interesting about this, Mr. President, is that just by 
requiring companies to tell Americans what they are emitting into the 
air or land or water--solely by the requirement to let people know--
companies themselves have made important decisions about reducing 
wastes. So they have voluntarily removed 42 percent since its reception 
in 1988--two billion pounds--of the chemical emissions of this Nation.
  That is a remarkable success story, Mr. President. It does not come 
about because we in the Congress have created a whole convoluted 
regulatory structure where companies are required to reduced their use 
of chemicals. All that is required is companies that use large volumes 
of toxic chemicals tell Americans what they are putting into the 
environment.
  More than 2 billion pounds of emissions have been prevented as a 
consequence of that. That is a success story.
  It is really interesting to see the chart from the Senator from New 
Jersey over there that shows the comments of individual sectors of the 
industry. The chemical industry itself has found it useful.
  In point of fact, the former chairman of the Environment Committee, 
Senator Baucus, has yet to have one chemical company coming to them and 
saying, ``Get rid of TRI.'' It was not an issue in early regulatory 
reform bills or in the past two Congresses Superfund debates. It has 
just been snatched out of the air because clearly a few people decided 
they thought this got in their way.
  Mr. President, turning to the standard that the Senator from Oklahoma 
talked about, what the language in this bill currently does is, in 
effect, it applies a 180-day requirement for this risk assessment to 
take place. If it does not take place, the chemicals come off. So you 
already have a sword of Damocles hanging over the process. Because if 
the Administrator does not want to do it, or if they do not have the 
resources to do it, you may wind up taking out of here an automatic 
capacity to have a decision. But more important, the language says, 
``on the rule of reason, including a consideration of the applicability 
of such evidence to levels of the chemical in the environment that may 
result from reasonably anticipated releases.''
  ``Reasonably anticipated releases'' is the information we get from 
the TRI. So what they are doing is creating a standard that makes a 
judgment as to whether or not you are going to be able to put something 
on the TRI list using information that you have to have from the TRI 
list in the first place. And since you do not have it from the TRI 
list, you cannot make the judgment that is required here. That is 
called the proverbial Catch-22. It is a way of tying everybody up in a 
process that, in effect, kills the TRI concept.
  They can stand here and say, ``Oh, no, no, no, no; all we are going 
to do is have a little risk assessment,'' but the language of the risk 
assessment itself depends on reasonably anticipated releases being able 
to be determined. And unless you know what the company is emitting, 
there is no way to know what the reasonably anticipated release is 
going to be.
  So I respectfully submit this is one of those places where, again, 
the words are so important, and where an awful lot hangs in the 
balance.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. KERRY. I will be happy--I do not want to yield on my time, but I 
will yield on my colleague's time for a question.
  Mr. JOHNSTON. Will the Senator from Delaware yield me 1 minute to ask 
a question?
  Mr. ROTH. I yield 1 minute.
  Mr. JOHNSTON. The Senator read, appropriately, the language which was 
added, which was, ``on the rule of reason,'' et cetera.
  But the first paragraph in the present law is still there. That is, 
``A determination under this paragraph shall be based on generally 
accepted scientific principles, or laboratory tests, or appropriately 
designed and conducted epidemiological''----
  Mr. KERRY. Epidemiological.
  Mr. JOHNSTON. ``Or other population studies, and/or the rule of 
reason, including consideration of the applicability of said evidence 
that may result from reasonably anticipated releases.''
  So all we are giving him is that additionally he may consider 
additional evidence, including the amount that may be released.
  Will the Senator agree that is a correct statement?
  Mr. KERRY. Let me say to my friend, I understand his reading of it, 
but it still begs the question here. Because the standard of 
``including,'' which is the most important way to prove what may be the 
harm to a community, is still not available.
  Second, and this is far more important, let me say to my friend from 
Louisiana, what is critical here is why go through all of these 
incredible hoops when in fact nothing negative is required of the 
company unless it uses more than 10,000 pounds and produces more than 
25,000 pounds? You are talking about big producers and big users here.
  All that is required of these big, 10,000-pound users, 25,000-pound 
producers, is that they tell people in the community what it is they 
put into the air or water or land. It is irrelevant whether there is a 
risk or not in terms of the concept of sunshine and right-to-know.
  What, in effect, the Senator from Louisiana and others are setting up 
here--whether it is wittingly, purposefully, or not--is a new series of 
hoops which, under the cumulative impact of this bill will allow a 
series of legal steps to be taken that will prevent people in a 
community from even knowing what one of these big producer companies is 
putting into the air.
  Mr. JOHNSTON. Mr. President, is the Senator saying----
  Mr. KERRY. Again, I do not want to yield on my time. I reserve my 
time.
  Mr. JOHNSTON. Do I still have any of that minute?
  The PRESIDING OFFICER. The Senator has used his minute. Will the 
Senator from Delaware yield him an additional minute?
  Mr. ROTH. I will yield 1 minute.
  The PRESIDING OFFICER. The Senator yields an additional minute.
  Mr. JOHNSTON. I will not use that at this point.
  Mr. KERRY. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 4 minutes.
  Mr. KERRY. I will just use a moment.
  Mr. President, the real issue here is very, very simple. The Senator 
from Louisiana is trying to explain how the test that they have set up 
is reasonable. The issue is whether or not there ought to be a test set 
up for a company that uses 10,000 pounds or more of a chemical or a 
company that produces 25,000 pounds or more. The issue is, should that 
company automatically tell people in the community what it puts into 
the air? It is very simple. And, by coming along with this notion we 
are going to go through all of this regulatory process with risk 
assessments and so forth, we are actually applying a series of 
standards and hoops to jump through that have no relevancy to the 
purpose of letting people know.
  They are creating a risk-based standard for something that does not 
have to be risk-based but is simply informational. And, on the basis of 
that, there are certain chemicals that may be, actually, under their 
standard, taken off the Toxics Release Inventory which, in fact, have a 
negative effect on people, but they do not fall under their standard 
because of the level of toxicity.
  So I say again, this is a very simple issue. This is a question of 
when Americans are living in a community where a company uses 10,000 
pounds of a specific chemical or produces 25,000 pounds, whether that 
company ought to tell the fellow citizens who live in that community 
and who work in the plant, what it is that is being emitted. And by 
virtue of the law, we have taken 2 billion pounds of that kind of 
chemical out of the environment, away from people, and made life safer. 


[[Page S 9891]]

  If they turn this clock back, we will make life more hazardous. And 
there is no rationale for saying Americans should not know what 
chemicals are going into the local environment.
  I yield the time to the Senator from New Jersey.
  The PRESIDING OFFICER (Mr. KEMPTHORNE). The Senator from New Jersey.
  Mr. ROTH. Will the Senator yield so I can make a further unanimous-
consent request?
  Mr. LAUTENBERG. Yes. I do not want to continue to use my time.
  Mr. ROTH. Without using the time of the Senator from New Jersey.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. ROTH. Mr. President, I ask unanimous consent that the 13 minutes 
that remain in opposition to the Lautenberg amendment be reserved for 
Senator Lott and 5 minutes reserved for Senator Lautenberg.
  Mr. LAUTENBERG. If I might ask, Mr. President, how much time do I 
have left on my side?
  The PRESIDING OFFICER. The Senator from New Jersey has 1 minute 3 
seconds.
  Is there objection to the unanimous-consent request? Without 
objection, it is so ordered.
  Mr. ROTH. Mr. President, I further ask unanimous consent that 
following the conclusion of the debate on the time agreements already 
entered for this evening, the Senate proceed to vote in sequence, with 
the first vote being the standard 15-minute vote and any remaining 
stacked votes be 10 minutes in length.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. ROTH. Finally, for the information of all Senators, there could 
be as many as four rollcall votes beginning as early as 8:30 this 
evening. Therefore, Senators should be on notice of these upcoming 
votes.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Wisconsin is now recognized.


                Amendment No. 1536 to Amendment No. 1487

  (Purpose: To amend the provisions of titles 5 and 28, United States 
 Code, relating to equal access to justice, award of reasonable costs 
  and fees, hourly rates for attorney fees, administrative settlement 
                    offers, and for other purposes)

  Mr. FEINGOLD. 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 Wisconsin [Mr. Feingold] proposes an 
     amendment numbered 1536 to amendment No. 1487.

  Mr. FEINGOLD. 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:

       At the appropriate place in the substituting amendment, add 
     the following new section:

     SEC.   . EQUAL ACCESS TO JUSTICE REFORM.

       (a) Short Title.--This section may be cited as the ``Equal 
     Access to Justice Reform Amendments of 1995''.
       (b) Award of Costs and Fees.--
       (1) Administrative proceedings.--Section 504(a)(2) of title 
     5, United States Code, is amended by inserting after ``(2)'' 
     the following: ``At any time after the commencement of an 
     adversary adjudication covered by this section, the 
     adjudicative officer may ask a party to declare whether such 
     party intends to seek an award of fees and expenses against 
     the agency should it prevail.''.
       (2) Judicial proceedings.--Section 2412(d)(1)(B) of title 
     28, United States Code, is amended by inserting after ``(B)'' 
     the following: ``At any time after the commencement of an 
     adversary adjudication covered by this section, the court may 
     ask a party to declare whether such party intends to seek an 
     award of fees and expenses against the agency should it 
     prevail.''.
       (c) Hourly Rate for Attorney Fees.--
       (1) Administrative proceedings.--Section 504(b)(1)(A)(ii) 
     of title 5, United States Code, is amended by striking out 
     all beginning with ``$75 per hour'' and inserting in lieu 
     thereof ``$125 per hour unless the agency determines by 
     regulation that an increase in the cost-of-living based on 
     the date of final disposition justifies a higher fee.);''.
       (2) Judicial proceedings.--Section 2412(d)(2)(A)(ii) of 
     title 28, United States Code, is amended by striking out all 
     beginning with ``$75 per hour'' and inserting in lieu thereof 
     ``$125 per hour unless the court determines that an increase 
     in the cost-of-living based on the date of final disposition 
     justifies a higher fee.);''.
       (d) Payment From Agency Appropriations.--
       (1) Administrative proceedings.--Section 504(d) of title 5, 
     United States Code, is amended by adding at the end thereof 
     the following: ``Fees and expenses awarded under this 
     subsection may not be paid from the claims and judgments 
     account of the Treasury from funds appropriated pursuant to 
     section 1304 of title 31.''.
       (2) Judicial proceedings.--Section 2412(d)(4) of title 28, 
     United States Code, is amended by adding at the end thereof 
     the following: ``Fees and expenses awarded under this 
     subsection may not be paid from the claims and judgments 
     account of the Treasury from funds appropriated pursuant to 
     section 1304 of title 31.''.
       (e) Offers of Settlement.--
       (1) Administrative proceedings.--Section 504 of title 5, 
     United States Code, is amended--
       (A) by redesignating subsections (e) and (f) as subsections 
     (f) and (g), respectively; and
       (B) by inserting after subsection (d) the following new 
     subsection:
       ``(e)(1) At any time after the filing of an application for 
     fees and other expenses under this section, an agency from 
     which a fee award is sought may serve upon the applicant an 
     offer of settlement of the claims made in the application. If 
     within 10 days after service of the offer the applicant 
     serves written notice that the offer is accepted, either 
     party may then file the offer and notice of acceptance 
     together with proof of service thereof.
       ``(2) An offer not accepted shall be deemed withdrawn. The 
     fact that an offer is made but not accepted shall not 
     preclude a subsequent offer. If any award of fees and 
     expenses for the merits of the proceeding finally obtained by 
     the applicant is not more favorable than the offer, the 
     applicant shall not be entitled to receive an award for 
     attorneys' fees or other expenses incurred in relation to the 
     application for fees and expenses after the date of the 
     offer.''.
       (2) Judicial proceedings.--Section 2412 of title 28, United 
     States Code, is amended--
       (A) by redesignating subsections (e) and (f) as subsections 
     (f) and (g), respectively; and
       (B) by inserting after subsection (d) the following new 
     subsection:
       ``(e)(1) At any time after the filing of an application for 
     fees and other expenses under this section, an agency
      of the United States from which a fee award is sought may 
     serve upon the applicant an offer of settlement of the 
     claims made in the application. If within 10 days after 
     service of the offer the applicant serves written notice 
     that the offer is accepted, either party may then file the 
     offer and notice of acceptance together with proof of 
     service thereof.
       ``(2) An offer not accepted shall be deemed withdrawn. The 
     fact that an offer is made but not accepted shall not 
     preclude a subsequent offer. If any award of fees and 
     expenses for the merits of the proceeding finally obtained by 
     the applicant is not more favorable than the offer, the 
     applicant shall not be entitled to receive an award for 
     attorneys' fees or other expenses incurred in relation to the 
     application for fees and expenses after the date of the 
     offer.''.
       (f) Elimination of Substantial Justification Standard.--
       (1) Administrative proceedings.--Section 504 of title 5, 
     United States Code, is amended--
       (A) in subsection (a)(1) by striking out all beginning with 
     ``, unless the adjudicative officer'' through ``expenses are 
     sought''; and
       (B) in subsection (a)(2) by striking out ``The party shall 
     also allege that the position of the agency was not 
     substantially justified.''.
       (2) Judicial proceedings.--Section 2412 (d) of title 28, 
     United States Code, is amended--
       (A) in paragraph (1)(A) by striking out ``, unless the 
     court finds that the position of the United States was 
     substantially justified or that special circumstances make an 
     award unjust'';
       (B) in paragraph (1)(B) by striking out ``The party shall 
     also allege that the position of the United States was not 
     substantially justified. Whether or not the position of the 
     United States was substantially justified shall be determined 
     on the basis of the record (including the record with respect 
     to the action or failure to act by the agency upon which the 
     civil action is based) which is made in the civil action for 
     which fees and other expenses are sought.''; and
       (C) in paragraph (3) by striking out ``, unless the court 
     finds that during such adversary adjudication the position of 
     the United States was substantially justified, or that 
     special circumstances make an award unjust''.
       (g) Reports to Congress.--
       (1) Administrative proceedings.--No later than 180 days 
     after the date of the enactment of this Act, the 
     Administrative Conference of the United States shall submit a 
     report to the Congress--
       (A) providing an analysis of the variations in the 
     frequency of fee awards paid by specific Federal agencies 
     under the provisions of section 504 of title 5, United States 
     Code; and
       (B) including recommendations for extending the application 
     of such sections to other Federal agencies and administrative 
     proceedings.
       (2) Judicial proceedings.--No later than 180 days after the 
     date of the enactment of this Act, the Department of Justice 
     shall submit a report to the Congress--
       (A) providing an analysis of the variations in the 
     frequency of fee awards paid by specific Federal districts 
     under the provisions of 

[[Page S 9892]]
     section 2412 of title 28, United States Code; and
       (B) including recommendations for extending the application 
     of such sections to other Federal judicial proceedings.
       (h) Effective Date.--The provisions of this section and the 
     amendments made by this Act shall take effect 30 days after 
     the date of the enactment of this Act and shall apply only to 
     an administrative complaint filed with a Federal agency or a 
     civil action filed in a United States court on or after such 
     date.

  Mr. FEINGOLD. Mr. President, I rise today to offer an amendment to 
the regulatory reform bill legislation that will improve equal access 
to justice under what is known as the Equal Access to Justice Act.
  I think the thrust of this bill, the thrust of regulatory reform, is 
to rethink the relationship between Government and business and to make 
our system of regulation both more effective and less burdensome, and, 
in some cases, I think we have to stay the hand of Government when we 
believe it reaches too deeply into the daily affairs of the American 
people.
  As many of us have said on this floor, I think these are goals that 
everyone supports, even though sometimes we may differ on the way to 
actually achieve them.
  The Equal Access to Justice Act is one effective means for achieving 
a measure of reform and should be part of our plans to reduce the level 
of unnecessary Government intrusion in our lives. The Equal Access to 
Justice Act as it now exists was enacted in 1980, with the idea that 
small businesses and individuals who have to get into the ring with the 
Federal Government over enforcement of regulations should be able to 
recover their legal fees and certain other expenses if they end up 
winning the case.
  They are tied in this litigation with Government and one party has to 
win and one party has to lose. And if it is the Government that loses, 
especially after they have brought the case, I think the Government 
should bear the burden of the attorney's fees and not the small 
business and not the individual. It is one of a number of fee-shifting 
statutes in Federal law.
  I am as proud to say that much of the work on the original equal 
access law was done by the former Congressman from my home district, 
the Second Congressional District of Wisconsin, Representative Robert 
Kastenmeier when he served on the House Judiciary Committee. I offered 
the same kind of bill, and got it passed in the State Legislature in 
Wisconsin. That is now the law, and has been since 1985, and it is the 
State Equal Access to Justice Act which has been very helpful to 
businesses and individuals who have been sued by the State government 
or some of its agencies.
  The Equal Access to Justice Act gives prevailing parties in certain 
kinds of litigation against the Federal Government the right to seek 
reimbursement of attorney's fees and other costs of litigation from the 
Government. The intent of the law has always been to make taking on the 
Federal Government in court somewhat less intimidating although it is 
always going to be somewhat intimidating.
  To that end, the act is specifically targeted at assisting 
individuals and businesses who do not have ready access to the kinds of 
resources available to the Federal Government when it goes to court. 
Under the current law, the law gives this kind of option--or 
protection--to a person whose net worth does not exceed $2 million or a 
business that does not have net worth greater than $7 million, or which 
does not employ more than 500 people. And there are a couple of other 
minor exceptions.
  There was another motive for the bill, and that was to help restrain 
the regulatory hand of the Federal Government when it was going to 
trial. The authors of the bill believe that if the agency faced the 
prospect of not only having decisions nullified but also having to 
actually pay the attorney's fees of the entity or individual they went 
after, maybe the agency would think twice before it started the lawsuit 
or the administrative action in the first place.
  I cannot say for sure in the past 10 or 15 years that this second 
goal has been reached. However, the Equal Access to Justice law has 
proved to be a bargain based upon the estimates that we have seen. 
Originally the estimates were that the Equal Access to Justice law 
would cost about $68 million a year. But according to the 
Administrative Office of U.S. Courts, annual fee reimbursements have 
totaled from the Federal Government only about $5 to $7 million between 
1988 and 1992. This is despite the fact that litigants are actually 
more successful in terms of the active percentage of wins than was 
originally anticipated.
  A study done on this examined 629 Federal District and Appellate 
Court decisions involving EAJA fee award claims during the 1980's. The 
professors who did the study pointed out that the Congressional Budget 
Office in making its estimates had assumed that parties seeking fee 
reimbursement under the act would actually be successful in about 25 
percent of the claims filed against the Federal Government.
  However, the professors found that they even had a higher level of 
success, 36 percent and were able to win fees in those cases.
  Yes. Mr. President, some may well claim that EAJA has had a scant 
effect on controlling overreaching regulation. But I believe it is 
clear that it is another arrow in the quiver of the individual citizen 
or a small business owner when they have to tangle with the Federal 
Government in court or in an administrative proceedings.
  The EAJA generally has served its function well. The purpose of my 
amendment this evening is that the act over the course of several years 
has come to the point where it needs some updating to speed up the 
process of awarding attorney's fees to prevailing parties and thereby 
lower the cost of litigation to taxpayers.
  Mr. President, briefly, this amendment has three major elements.
  First, my bill raises the current cap on attorney's fees in these 
kinds of situations under the act from the current limitation of $75 to 
$125 per hour. That would bring the rate somewhat in line with the real 
world.
  My bill retains the cost-of-living increase as a possible element in 
determining an attorney's fee award but it strikes the current language 
that permits further increasing an award on the basis of a special 
factor defined by example in the statute as ``the limited availability 
of qualified attorneys or agents for the proceedings involved.''
  Mr. President, I believe these improvements will actually make suits 
against the Government more attractive to attorneys and appropriate 
cases, which in turn should create a larger pool of attorneys available 
to private litigants to try to handle these cases. Therefore, we should 
see less need for this special factor language, and I think it will 
help simplify the process.
  In addition, my bill makes the method of computing cost-of-living 
increases to fee awards more specific. And I could detail on that, if 
anybody wishes.
  But I will move on to say that the second major change my amendment 
makes in the current law is to eliminate the language that allows the 
Government to escape paying attorney's fees, even if the Government has 
lost in court, if the Government can successfully argue that it had a 
substantial justification for its action.
  Mr. President, I am not generally a supporter of the loser pays 
concept. But I believe that if a small business owner or an individual 
American wins in court--not against another private litigant but 
against the Federal Government--and, if the law provides for the 
Government to reimburse you for your expenses, then the Government 
should ante up. I think we should have in effect a loser pays provision 
when the Federal Government sues a private party and the private party 
ends up winning the case.
  I realize some people are concerned that eliminating this provision 
will open the floodgates of our Treasury. But let me refer to a study 
that by Professor Krent which indicates that this is not the case. He 
indicates that fee awards in the cases we have had during this act were 
denied in only a small number of cases on the basis of successful 
substantial justification argument. Apparently that is because this 
technique of the Government to try to avoid paying fees in these cases 
in court is routinely raised by Government attorneys as a way to sort 
of block the private litigant from getting their attorney's fees even 
though they 

[[Page S 9893]]
have prevailed in the underlying case against the Government.
  So this extra way out for the Government really allows the creation 
of another issue at least to more litigation over whether or not there 
was a substantial justification for the lawsuit to be brought in the 
first place, even though the Government lost.
  The professor suggests that there may even be some cost savings 
offset any increase in awards due to the elimination of the substantial 
justification defense. He admits it is impossible to make an exact 
determination of the expense of litigating this issue in case after 
case. But he believes, based on the evidence of 1 year--between 1989 
and 1990--that whatever is saved by raising the substantial 
justification defense is not enough to justify the cost of litigating 
the issue. That is one reason why Professor Krent believes that this 
extra way out for the Government, in his words, ``probably creates a 
perverse incentive to litigate'' on the part of Government attorneys.
  My amendment specifically addresses the issue of cost by making it 
plain that there is to be no new direct spending to cover these fee 
awards. The amendment also makes it clear that agencies who are 
required to pay fee awards have to look to their own budgets. They 
cannot go to the Federal Claims and Judgment Accounts to find the 
necessary sums. That is in keeping with the original intent of the 
bill. That intent again is to make an agency think twice before it 
creates regulations and before initiating certain enforcement actions 
pursuant to them. I cannot think of anything more consistent with the 
overall purposes of legislation before us than that.
  The third major change in any amendment sets up a settlement process 
to give the parties a method of resolving the fee issue without 
resorting to further litigation. It creates an opportunity for the 
Government, similar to the process in Rule 68 of the Federal Rules of 
Civil Procedure, to make an offer of settlement up to 10 days prior to 
the hearing on the fee claim. If that offer is rejected and the party 
applying for fees later wins a smaller award, there is a negative 
consequence to the party that did not accept the offer of settlement. 
That party is not entitled to receive fees or other expenses that are 
incurred after date of the offer.
  My amendment does not specifically expand the reach of the EAJA. But 
it does require the review of the act and looks ahead to possible 
future expansion.
  We asked both the Justice Department and the Administrative 
Conference to review various aspects of where the law could be 
expanded.
  My amendment also requires the Administrative Office of the U.S. 
Courts to submit a report within 180 days as it does for the Justice 
Department.
  The U.S. Supreme Court in a 1991 decision, Ardestani versus INS, held 
that EAJA fees are available only in cases where hearings are required 
by law to conform to the procedural provisions of section 554 of the 
Administrative Procedures Act.
  However, Congress had already created a statutory exception. In 1986, 
Congress extended the coverage of the EAJA to include the Program Fraud 
Civil Remedies Act.
  I think it is reasonable to investigate whether certain agency 
proceedings such as deportation cases that are nearly identical to 
proceedings covered by 554 should also be covered by the EAJA.
  Mr. President, let me just conclude my comments at this point by 
indicating that recently a friend of mine I had not seen since high 
school just came to visit me in my office here and did not come, 
apparently, for any reason other than to visit.
  But during the course of our visit, he told me a story about what had 
happened to him recently that made him quite down about pursuing the 
business he is in. He told me that his agency declined to fight a case 
against the Department of Education, a case their attorneys believed 
was winnable, because the board of directors of his group did not 
believe it was worth paying large litigation costs over a claim worth 
about $32,000 even if the agency had a good case.
  The Department of Education, he told me, had reviewed his 
rehabilitation center, which provided job training and placement 
services for mentally and physically handicapped people, in 1992. The 
Department's reviewer found 10 problem areas, which were later actually 
whittled down, Mr. President, to just one item. All the Government had 
left in their case, after they went through this process, was saying 
that my friend's group had inadequate time sheets.
  For this and this alone, the Department wanted the center to pay a 
reimbursement of about $115,000. That was later negotiated down to 
$32,000. My friend told me that had he known about the EAJA law, he 
would have pressed the directors to fight, and because he did not know 
about it, he just gave up.
  A few weeks ago, the White House Conference on Small Business 
discussed this issue. Mr. Carl Schmieder, a Phoenix, AZ, businessman 
and deputy chairman of the Arizona delegation to the small business 
conference, helped spearhead a resolution endorsing the type of changes 
I am talking about for the EAJA. He said the array of resources 
available to the Government in litigation can be overwhelming to a 
small business owner, and he called the amendment that we are offering 
here tonight a tremendous step forward.
  Mr. Schmieder's resolution attracted a lot of support among the 
delegates to the conference. Although it did not appear on the shortest 
list of recommendations that came out of the conference, when the 
delegates drew up a list of priorities, these kinds of changes were 
ranked in the top 20 percent of all issues considered.
  I think individuals and small business owners deserve all the help we 
can give them, and before I close, let me acknowledge the work of the 
Administrative Conference of the United States which has been very 
helpful by conducting research into this issue, making many of these 
recommendations and providing valuable assistance in preparing the 
amendment.
  We all know unnecessary or overburdening Government regulations can 
be an obstacle to doing business. The Equal Access to Justice Act was 
conceived to overcome that obstacle, and we in this update that this 
amendment provides allow the act to work better than it has in the 
past.
  I thank the Chair and reserve the remainder of my time.
  The PRESIDING OFFICER. Does the Senator from Delaware oppose the 
amendment?
  Mr. ROTH. We have no request at this time for anyone to speak in 
opposition.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin has 1 minute 
remaining.
  The Senator from Montana.


                           Amendment No. 1535

  Mr. BAUCUS. Mr. President, I would like to speak in favor of the TRI 
amendment offered by Senator Lautenberg. I might inquire of the Chair 
how much time is remaining on that amendment, and I might inquire of 
the Senator from Delaware, if he is not going to use his time, perhaps 
I could use some of his time on the TRI amendment.
  Mr. ROTH. We are actually checking to see whether there is anyone who 
wants to speak in opposition.
  Mr. BAUCUS. Mr. President, how much time is remaining for those 
speakers who wish to speak in favor of the Lautenberg amendment?
  The PRESIDING OFFICER. The Senator from New Jersey, based on the 
unanimous consent agreement, controls 5 minutes.
  Mr. BAUCUS. And how much time has he utilized?
  The PRESIDING OFFICER. There is still 5 minutes remaining.
  Mr. ROTH. I will yield 3 minutes to the Senator.
  Mr. BAUCUS. I thank the Senator very much.
  The PRESIDING OFFICER. The Senator from Delaware has yielded 3 
minutes from the time he controls?
  Mr. ROTH. That is correct.
  Mr. BAUCUS. Mr. President, I might also consume, say, 1 minute of the 
time controlled by Senator Lautenberg, a total of 4.
  The PRESIDING OFFICER. Is there objection to that request? Without 
objection, it is so ordered. The Senator from Montana is recognized.
  Mr. BAUCUS. I thank the Chair. 

[[Page S 9894]]

  Mr. President, I am rising to strongly support the amendment offered 
by the Senator from New Jersey [Mr. Lautenberg] who wants to strike the 
so-called TRI provisions from the bill. Under the TRI provisions, the 
toxics release inventory reporting provisions, currently today in the 
law, when a major chemical company emits toxic chemicals into the air 
or water which could cause acute, chronic, adverse health effects to 
the environment, that company just has to state to the public the 
amount of toxic chemicals that is released up into the environment.
  It does not say to the company you have to put on a scrubber; it does 
not say to the company you have to clean it up; it does not say to the 
company you have to do anything to stop what you are emitting, just 
that you have to disclose to Americans, disclose to the public the 
amount that is being emitted. That is all it is.
  I might say, Mr. President, that the consequences of this provision 
in the law enacted not too many years ago have been very beneficial. 
First, to the public so the public knows what is being emitted, and 
they can take whatever action they may want to take.
  It has also been beneficial to the companies. The Chemical 
Manufacturers Association has said, as a consequence of this act alone, 
there has been a 50 percent reduction in chemicals emitted by their 
members. Some major chemical manufacturing companies have said it has 
helped them because they did not know how much they were emitting in 
the past. This law requires them to disclose what they are emitting. 
Now they know and they are able to change their manufacturing process 
to emit less and to also make their processes much more efficient. It 
has helped them.
  It makes no sense, Mr. President, in this bill before us today, a 
regulatory reform bill designed to reform regulations and just make 
sure that regulations are considered more easily and more efficiently, 
to enact a substantive provision to delete the toxics release inventory 
law. That is a substantive provision. This is a regulatory reform bill.
  I might add there have been no hearings on this provision, none. In 
fact, this provision was not even in any bill. It was just suddenly 
jammed in in the Chamber. It has had no consideration. Just as we 
deleted, a couple of hours ago, another substantive provision regarding 
the Superfund, it makes eminent sense that we should also here tonight 
delete this substantive provision, the toxics release inventory 
provision, a provision which is very beneficial to Americans.
  Essentially, this provision that is now before us, I must say, 
disrupts the basic concept of right to know which simply says, OK, 
folks, you have a right to know what is emitted. That's all. It does 
not in any way tell companies to control what is being emitted.
  Mr. President, for those reasons we should adopt the Lautenberg 
amendment to delete this substantive provision.
  It is also very ironic; here we are today considering the regulatory 
reform bill to make the regulatory process more efficient with more 
information, with risk assessment and cost-benefit analysis. If the 
Lautenberg amendment does not pass, we are saying less information is 
better. We are saying that the public does not have a right to know 
what toxic chemicals are being released. It makes no sense.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BAUCUS. Mr. President, if the Senator will yield 1 more minute. I 
have used 1 minute of the Senator's time.
  Mr. LAUTENBERG. Certainly. I will be happy to yield another minute to 
my friend from Montana.
  Mr. BAUCUS. Mr. President, again, just to say what this amendment 
does, currently a chemical is listed if it has acute, or chronic health 
or environmental effects. The bill before us says, in addition to 
knowing the toxic effects of the chemical, you have to show how much of 
the chemical is actually being released and if that release will result 
in harmful effects. And you have to show this before it is listed on 
the TRI. It is a catch-22. It cannot be done.
  Second, Mr. President, the standard by which a chemical would be 
listed, that is required to be listed or not, is so vague no one can 
explain what the standard is. I have read this standard many, many 
times, over and over again. I do not know what it says. It is a 
lawyer's paradise. This provision is going to be tremendously 
litigated. And I just again urge Senators to pass the Lautenberg 
amendment, which deletes a substantive provision which the public very 
much desires as the right to know which chemicals are being emitted 
into the atmosphere.
  And I thank the Senator.
  The PRESIDING OFFICER. The Senator's time is expired.
  Mr. LAUTENBERG. Mr. President, it is my understanding that the 
Senator from Mississippi was going to be here at--was that 8?
  The PRESIDING OFFICER. In response to the Senator from New Jersey, no 
time had been set. We do have 1 minute remaining under the control of 
the Senator from Wisconsin.
  Mr. LAUTENBERG. I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware----
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. DOLE. I wonder if we could go into a quorum call, if we are 
waiting for Senator Lott. Is that it?
  Mr. ROTH. And Senator Hatch.
  Mr. DOLE. Maybe the Senator from Wisconsin could use some of his time 
while we are waiting on that.
  Mr. FEINGOLD. It is my understanding this side still has 10 minutes.
  The PRESIDING OFFICER. The Senator from Delaware has 11 minutes, 35 
seconds.
  Mr. FEINGOLD. I only have 1 minute remaining. If there is going to be 
any opposition, I would like to reserve that for a response.
  Mr. DOLE. 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. PRYOR addressed the Chair.
  The PRESIDING OFFICER (Mr. DeWine). The Senator from Arkansas is 
recognized.
  Mr. PRYOR. Mr. President, in order to move things along here, I am 
going to make this suggestion that we lay the pending amendment aside. 
And I assume that is the amendment just offered by the Senator from 
Wisconsin, and that I be allowed to, in the sequencing order, present 
my amendment; and upon completion of my amendment, we will return to 
the amendment offered by the Senator from Wisconsin and proceed from 
there. I think that might expedite our time.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.


                Amendment No. 1537 to Amendment No. 1487

  (Purpose: To prevent conflicts of interest of persons entering into 
 contracts relating to cost-benefit analyses and risk assessments, and 
                          for other purposes)

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

       The Senator from Arkansas [Mr. Pryor] for himself and Mr. 
     Feingold, proposes an amendment numbered 1537 to amendment 
     No. 1487.

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

       At the appropriate place in the substitute amendment, 
     insert the following new section:

     SEC.   . CONFLICT OF INTEREST RELATING TO COST-BENEFIT 
                   ANALYSES AND RISK ASSESSMENTS.

       (a) Information Bearing on Possible Conflict of Interest.--
       (1) Definition.--For purposes of this section, the term 
     ``contract'' means any contract, agreement, or other 
     arrangement, whether by competitive bid or negotiation, 
     entered into with a Federal Agency for any cost-benefit 
     analysis or risk assessment under subchapter II or III of 
     chapter 6 of title 5, United States Code (as added by section 
     4(a) of this Act).
       (2) In general.--This section shall not apply to the 
     provision of section 633(g), when an agency proposes to enter 
     into a contract with a person or entity, such person shall 
     provide to the agency before entering into such contract all 
     relevant information, as 

[[Page S 9895]]
     determined by the agency, bearing on whether that person has a possible 
     conflict of interest with respect to being able to render 
     impartial, technically sound, or objective assistance or 
     advice in light of other activities or relationships with 
     other persons.
       (3) Subcontractor information.--A person entering into a 
     contract shall ensure, in accordance with regulations 
     prescribed by the head of the agency, compliance with this 
     section by any subcontractor (other than a supply 
     subcontractor) of such person in the case of any subcontract 
     of more than $10,000.
       (b) Required Finding That No Conflict of Interest Exists or 
     That Conflicts Have Been Avoided; Mitigation of Conflict When 
     Conflict Is Unavoidable.--
       (1) In general.--Subject to paragraph (2), the head of an 
     agency shall not enter into any contract unless the agency 
     head finds, after evaluating all information provided under 
     subsection (a) and any other information otherwise made 
     available that--
       (A) it is unlikely that a conflict of interest would exist; 
     or
       (B) such conflict has been avoided after appropriate 
     conditions have been included in such contract.
       (2) Exception.--If the head of an agency determines that a 
     conflict of interest exists and that such conflict of 
     interest cannot be avoided by including appropriate 
     conditions in the contract, the agency head may enter into 
     such contract if the agency head--
       (A) determines that it is in the best interests of the 
     United States to enter into the contract; and
       (B) includes appropriate conditions in such contract to 
     mitigate such conflict.
       (c) Rules and Regulations.--No later than 240 days after 
     the date of the enactment of this Act, the Federal 
     Acquisition Review Council shall publish rules for the 
     implementation of this section, in accordance with section 
     553 of title 5, United States Code, without regard to 
     subsection (a) of such section.

  Mr. PRYOR. Mr. President, I have only a very few moments. This is a 
very simple amendment that I am offering tonight. This basically is an 
amendment concerning Federal agencies which use private contractors to 
perform cost-benefit analyses and risk assessments.
  Mr. President, one of my main concerns about the bill that we are 
considering is that it is going to place additional burdens upon the 
Federal agencies during a period of downsizing of the number of Federal 
employees. Should S. 343 become law, the respective agencies throughout 
the Federal Government are going to have to reorder their priorities to 
allow them to devote a large portion of their resources to cost-benefit 
analysis, risk assessment, and regulation review. As the Government 
continues to downsize in the future, Mr. President, the Federal 
agencies are going to increasingly turn to private contractors to carry 
out the tasks of government.
  As my colleagues know, I have long been concerned with the use of 
private contractors in the Federal Government. During my years in the 
Senate, I have sought to shed light on the increasing role of private 
contractors and the possible conflict of interest involved with their 
use.
  This is no new issue. In 1980, for example, the General Accounting 
Office examined 156 contracts for regulatory analysis alone and found 
that 101 of these 156 contracts had a conflict of interest situation. 
Because S. 343 will likely increase the use of private contractors to 
conduct regulatory analysis for the Federal Government, I believe that 
this conflict of interest problem cannot and should not be ignored.
  Mr. President, to illustrate the potential for conflict of interest, 
one need only look at the promotional materials published by a few of 
the private contractors who have contracts with the Federal Government. 
For example, Mr. President, one of these contractors is a firm known as 
P.R.C. In 1990 the P.R.C. company, a consulting company, had four 
contracts worth $220 million with the Environmental Protection Agency.
  Here is their promotional material. This material proclaims to the 
possible user of their services, and I quote, ``Under contract to the 
United States EPA, P.R.C. has conducted hundreds of regulatory 
compliance inspections giving us indepth experience with what 
regulators are looking for.''
  How then, Mr. President, can this particular company be a company 
that states that they have no bias and that they have no conflict of 
interest?
  Here is another company, Mr. President. This particular company is 
another major contractor with the Environmental Protection Agency. In 
1990-1991, they had 13 contracts worth over $100 million with the 
Environmental Protection Agency. They boast to potential users of their 
services, in their very beautiful brochure--this is called The Weston 
Managers Design Consulting Company--I quote, ``In daily practice, the 
Weston philosophy has encouraged us to develop and maintain an 
objective, professional posture relative to public issues so that we 
can represent either''--and I quote--``the regulated or the 
regulator.'' So that we can represent either the regulated or the 
regulator.
  How fair, how objective and how free from conflicts of interest, Mr. 
President, can a firm be when it is working both sides of the street?
  Here is another firm, Mr. President, who has millions of dollars of 
contracts with the Federal Government today, the ICF Co. Their brochure 
is entitled: ``Environment and Energy.''
  They list their clients. For example, some of ICF's clients are: 
Ashland Chemical; Cedar Chemical; Chemical Waste Management; Chevron; 
Dow Chemical, SCA Chemical Services; Union Carbide; and Vertec.
  Now they also list the Government agencies that they work for: the 
Department of Commerce; the Department of Defense; the Department of 
Energy; and, yes, Mr. President, the Environmental Protection Agency.
  My amendment says that if granting one of these contracts to a 
company doing business with the Government creates a conflict of 
interest, then the agency head has the opportunity to publish notice of 
the conflict in the Federal Register. This can make us aware that the 
contract has the potential of a conflict, could be printed in the 
Federal Register and give us fair and just warning of the potential 
that might exist for a contract.
  It would require agencies to gather certain information from its 
contractors that will allow agencies to determine if a conflict of 
interest actually exists. It would not, Mr. President, prohibit the 
agency, under certain circumstances, from hiring a contractor, even if 
a conflict of interest was found.
  My amendment simply sheds sunlight on the process by ensuring that 
the agency has considered possible conflicts so that the public is 
assured that potential conflicts of interest are not subverting public 
policy due to hidden bias in the regulatory analyses process.
  Mr. President, I want to thank the distinguished Senator from 
Wisconsin for being an original cosponsor of this amendment that is now 
before the Senate.
  I reserve the remainder of my time, and I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Delaware has 15 minutes.
  Mr. ROTH. Mr. President, I yield 1 minute to my distinguished 
colleague.
  Mr. GLENN. I thank my friend from Delaware. I just want to speak in 
behalf of Senator Pryor. I just want to say, there is no one on the 
Governmental Affairs Committee who has done more work and stuck with 
the idea of looking into outside contracting, making sure it was not 
excessive, cutting down the number of contracts where we go out and pay 
for very expensive contracts that we should be doing in Government 
itself. He has been following this subject for a number of years and 
bird-dogging that. He deserves a lot of credit for it, and I think the 
amendment he is bringing up this evening is an example of making sure 
that when we do contract out, that it is done legitimately and without 
conflict of interest and without any taint. It is that kind of thing 
that happens too often in Government which gives Government a bad name.
  He has been determined for many years to root this out. I want to 
compliment him for it, and I am glad to be supporting his amendment.
  I thank my friend from Delaware.
  Mr. ROTH. Mr. President, I have to say to my distinguished friend 
from Ohio, he stole the words out of my mouth. I was going to also 
comment on the excellence and the persistence with which the 
distinguished Senator from Arkansas has pursued the problem of conflict 
of interest.
  I would like to ask my distinguished friend one question. In S. 343, 
in connection with peer review, it is provided that in peer review, 
that

       shall not exclude any person with substantial and relevant 
     expertise as a participant on the basis that such a person 
     has a potential interest in the outcome if such interest 

[[Page S 9896]]
     is fully disclosed to the agency and the agency includes such 
     disclosure as part of the record, unless the result of the 
     review would have a direct and predictable effect on a 
     substantial financial interest of such person.

  It is my understanding that your amendment has no effect or impact on 
that section; is that correct?
  Mr. PRYOR. Mr. President, let me respond to my friend from Delaware 
by stating, in the original draft of the amendment, we did not 
specifically exclude peer review. However, in the latest draft, which 
is pending before the Senate, we now have a sentence that states:

       This section shall not apply to provisions of section 
     633(g) . . .

  And I believe that is the peer review section. So peer review is not 
in any way involved in this proposal that I am submitting. I thank the 
Senator for asking that clarifying question.
  Mr. ROTH. That was my understanding, and I appreciate the answer.
  I am prepared to accept the amendment, and I yield back the remainder 
of my time.
  Mr. GLENN. I will be happy to accept on our side also.
  Mr. PRYOR. Mr. President, if I may say just a word in thanks to the 
Senator from Ohio and the Senator from Delaware, two extremely capable 
Senators that I have had the privilege of working with in the Senate, 
more specifically in the Governmental Affairs Committee, for a lot of 
years. I want to thank them for their endorsement, their kind words, 
patience and perseverance and for them accepting this amendment, 
endorsing it. I will always be grateful.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Is all time yielded back?
  Mr. ROTH. I yield back the remainder of my time.
  Mr. PRYOR. I yield back all time.
  The PRESIDING OFFICER. All time has been yielded back. The question 
is on agreeing to the amendment No. 1537.
  So the amendment (No. 1537) was agreed to.
  Mr. ROTH. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Texas was to offer the next amendment. The Senator from Texas is 
apparently not here. Therefore, under the previous order, the Senator 
from Wisconsin is now recognized to offer his second amendment. The 
Senator from Wisconsin.


                Amendment No. 1538 to Amendment No. 1487

    (Purpose: To provide that an agency may include any person with 
  substantial and relevant expertise to participate on a peer review 
                                 panel)

  Mr. FEINGOLD. 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 Wisconsin [Mr. Feingold] for himself and 
     Mr. Pryor, proposes an amendment numbered 1538 to amendment 
     No. 1487.

  Mr. FEINGOLD. 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 57, strike out line 18 through line 25 and insert 
     in lieu thereof the following:
       ``(B) may exclude any person with substantial and relevant 
     expertise as a participant on the basis that such person has 
     a potential financial interest in the outcome, or may include 
     such person if such interest is fully disclosed to the 
     agency, and the agency includes such disclosure as part of 
     the record, unless the result of the review would have a 
     direct and predictable effect on a substantial financial 
     interest of such person:

  Mr. FEINGOLD. Mr. President, there are many principles I can support 
in the Dole-Johnston legislation, but I do have a serious concern about 
part of the peer review proposal. It is not one of the larger issues at 
work here, but it is one I feel could have a great deal of impact on 
the integrity and credibility of the Federal regulatory process.
  Section 633 of the Dole-Johnston legislation includes a provision 
that requires the Federal agencies to develop a systematic program for 
balanced, independent and external peer review that is to be utilized 
to review the scientific risk assessments performed under the 
requirements of the legislation.
  I understand that several Senators have serious concerns about the 
larger issue of peer review and how it is treated in this legislation. 
There may be a broader amendment offered on that later, though. But the 
concern of this particular amendment has to do with the few lines 
contained in the peer review section of the bill that will put new 
guidelines and requirements on Federal agencies as they go about 
determining who will serve and who will not serve on these peer review 
panels.
  It is my understanding that, periodically, a Federal agency is faced 
with a situation where an individual has been selected as a possible 
peer reviewer and later it is learned that the individual may stand to 
benefit financially, depending on the outcome of that particular peer 
review.
  For example, the person might be a scientist under the employment of 
a company or industry that has a considerable financial interest that 
is dependent on the outcome of the review. That is a conflict of 
interest, and the type that I understand is not all that uncommon of an 
occurrence in our regulatory process. It is kind of important to 
understand how current law operates with respect to these kinds of 
situations.
  Mr. President, under current law, the agencies have the discretion to 
determine if someone with a direct conflict of interest should be able 
to serve on a peer review. As I said, this is permitted sometimes 
because there are instances where it may be appropriate and necessary 
to allow individuals with conflicts of interest to serve on a 
particular peer review panel.
  However, the Dole-Johnston legislation would go further. It would 
actually usurp the discretion currently enjoyed by the agencies and 
expressly state that an agency cannot actually disqualify someone 
merely because they may stand to benefit financially from the outcome 
of the review. This language is on page 57 of the bill.
  There are three effects of this section. The first effect--the one I 
am trying to amend--is that an agency will no longer have the 
discretion to determine on their own whether an individual with a 
conflict of interest should or should not be permitted to serve on the 
panel. The second effect is that should an individual have a conflict 
of interest, the individual must be permitted to serve on the peer 
review panel so long as the conflict of interest is disclosed and is 
made part of the record. The result of this is, I believe, at least an 
improvement that you are going to have the disclosure.
  I credit the folks that put this together in that regard. But there 
is an area where I think the agencies should have discretion. The 
bottom line is that if someone has a conflict of interest and is 
serving on a panel, that should be part of the record.
  But there is a further effect. The third effect of the Dole-Johnston 
language is that the only instance where an agency could exclude an 
individual with a conflict of interest is in the very narrow situation 
where the result of the review would have a direct and predictable 
effect on a substantial financial interest of such person.
  Now, what is a direct and predictable effect? That is a good 
question. Under current law, agency officials would be permitted to 
take a close look at this case and determine if there was enough cause 
placed on the ties of the individual and the industry being regulated 
to perhaps exclude the individual from the peer review panel. But under 
this legislation, as it now stands, the only instance in which an 
agency could exclude such an individual is to establish that the 
individual would predictably and directly benefit from the outcome of 
the peer review panel.
  The fact is that not all financial benefits are predictable and/or 
direct. The amendment I am now offering will change the Dole-Johnston 
language on this issue so that agencies will be allowed to continue to 
employ peer reviewers with a conflict of interest, at their own 
discretion, provided that the conflict of interest is disclosed and 
made part of the record.
  So the agencies would continue to be allowed to determine on their 
own when it is appropriate or not to allow someone with a conflict of 
interest to serve on a review panel. However, 

[[Page S 9897]]
should the agency decide to allow such an individual to serve on a 
review panel, my amendment would make it mandatory for the conflict of 
interest to be disclosed and be made a part of the record.
  Finally, my amendment makes clear that there is just one circumstance 
in which the agencies will have no discretion as to who can be included 
or excluded from serving, and that in the situation I mentioned before, 
where a potential peer reviewer will directly and predictably benefit 
from the outcome of the review. In that case, the agency has to exclude 
the person. I am afraid that the Dole-Johnston bill, as currently 
written, will undermine the part of the regulatory process that is 
responsible for ensuring that risk assessments are performed in an 
objective and impartial manner.
  My amendment is strongly supported by the Clinton administration.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 1 minute 53 seconds.
  Mr. FEINGOLD. In short, let me say that my amendment preserves what 
works in current law and combines it with the progressive disclosure 
requirements of the Dole-Johnston bill. This will ensure that we have a 
review process that is fair, equitable and free from any unnecessary 
influence from the industries and entities that are the subject of the 
regulation.
  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Delaware has 7\1/2\ minutes.
  Mr. ROTH. We have just received the language of the distinguished 
Senator's amendment. I would like to address some questions to the 
Senator from Wisconsin. As I understand, you are striking out the 
words, ``shall not exclude'' and inserting in lieu thereof, ``shall 
permit the agency to include.''
  Now, it is my understanding that your amendment would allow an agency 
to include an individual on a peer review panel that may have an 
interest in the outcome of the review, is that correct?
  Mr. FEINGOLD. Mr. President, if I may respond, the version that we 
have submitted is different than the one the Senator has before him. 
The language we have submitted indicates the following:

       The agency may exclude any person with substantial and 
     relevant expertise as a participant on the basis that such 
     person has a potential financial interest in the outcome, or 
     may include. . .

  So the agency is allowed the option of either including or excluding 
a person who has a conflict of interest in the version we sent up to 
the desk.
  Mr. ROTH. We apparently do not have a copy of that version of the 
amendment.
  Mr. President, I regret to say that we just received this modified 
language, and we have not had an opportunity to study this matter to 
determine exactly what its implications may be. So if it is all right 
with the leader, I think maybe we ought to set this aside for a moment 
so that we will have the opportunity to review the language and then 
proceed.
  Instead of that, Mr. President, I suggest the absence of a quorum, 
and I ask unanimous consent that the time not be counted against either 
side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. JOHNSTON. 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. JOHNSTON. Mr. President, while we are waiting, I have two 
amendments here that have been cleared. One is proposed by Mr. Baucus 
and myself.
  It would change ``shall'' to ``may'' in that provision of the bill 
that states that the authorizing committee may submit to the 
Appropriations Committee changes in the schedule, and that the 
Appropriations Committee then--now it reads ``shall propose those 
amendments to the Senate.'' And we want to change that ``shall'' to 
``may.''
  Mr. ROTH. Mr. President, parliamentary inquiry. Can the distinguished 
Senator from Louisiana say what he is proposing at this time?
  Mr. JOHNSTON. I have not proposed it yet. I am proposing an amendment 
that I thought had been cleared on all sides. It changes--
  Mr. ROTH. I have not seen it, and we are looking at another amendment 
at this time.
  Mr. JOHNSTON. I thought it had been cleared.
  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. 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.
  Mr. ROTH. Mr. President, let me point out that there is absolutely no 
intention in S. 343 to undermine the integrity of the peer review 
process.
  While I think the concerns of Senator Feingold are unwarranted, I 
believe that we are willing to accept the amendment.
  As I understand the amendment, the Senator is first saying that we 
may exclude any person with substantial and relevant expertise as a 
participant, on the basis that such a person has a potential financial 
interest in the outcome. But the Senator is also providing that such 
person may be included if his interest is fully disclosed to the agency 
and the agency includes such disclosure as part of the record.
  So, as I understand it, the Senator is trying to be more evenhanded 
on the matter. Is that correct?
  Mr. FEINGOLD. Mr. President, that is correct.
  I want to be fair and make it clear, there is only one exception to 
that. That would require that the agency not be allowed to let the 
person stay on in the case where the result would have a direct, 
predictable effect. So a more extreme case, there is no discretion, but 
we restore the discretion in the more common conflict-of-interest case. 
That provision is in the Dole-Johnston provision.
  Mr. GLENN. Mr. President, as I understand it, this would add some 
judgment to it. This would let the agency have leeway in determining a 
balance, and keep the expertise.
  I believe that is the intent. I am happy to accept it on our side.
  Mr. FEINGOLD. I thank the Senator.
  Mr. ROTH. Mr. President, I am willing to accept the amendment and 
yield back the remainder of my time.
  Mr. FEINGOLD. I thank the Senator from Delaware, and I yield the 
floor.
  The PRESIDING OFFICER. The question is on agreeing to the amendment 
No. 1538.
  The amendment (No. 1538) was agreed to.
  Mr. GLENN. I move to reconsider the vote by which the amendment was 
agreed to.
  Mr. HATCH. I move to table the motion.
  The motion to lay on the table was agreed to.


                           Amendment No. 1536

  The PRESIDING OFFICER. There are 8 minutes remaining on the debate on 
Amendment 1536.
  The PRESIDING OFFICER. The Senator from Wisconsin has 1 minute 
remaining.
  Mr. FEINGOLD. Mr. President, I yield back my remaining time.
  Mr. HATCH. Mr. President, I would like to be clear that we have 
accepted Senator Feingold's amendment on the Equal Access to Justice 
Act with reluctance. This is a controversial matter and I still have 
many concerns. However, as a show of good faith and willingness to work 
with the distinguished Senator from Wisconsin in the future, we have 
allowed his amendment to pass without comment at this time.
  The PRESIDING OFFICER. The question is on agreeing to the amendment 
No. 1536.
  The amendment (No. 1536) was agreed to.
  Mr. ROTH. I move to reconsider the vote by which the amendment was 
agreed to.
  Mr. GLENN. Mr. President, I move to table the motion.
  The motion to lay on the table was agreed to.


                           Amendment No. 1535

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
No. 1535. Sixteen minutes remain on the debate.
  Mr. DOLE. Mr. President, as I understand it, we had four amendments. 
We have accepted the two Feingold amendments and the Pryor amendment, 

[[Page S 9898]]
which leaves the Lautenberg amendment.
  Mr. President, I understand the Senator from Mississippi, Senator 
Lott, will be here momentarily. He has 13 minutes. The Senator from New 
Jersey has 3 minutes. If he is not here momentarily, we will yield back 
his time. Then I will move to table the Lautenberg amendment.
  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. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Mississippi has 7 minutes remaining. The Senator 
from New Jersey has 3 minutes remaining.
  Mr. FORD. Mr. President, may we have order, please?
  The PRESIDING OFFICER. The Senator will suspend.
  The Senator from Mississippi.
  Mr. LOTT. Mr. President, after that 10 minutes, then we would be 
prepared to go to a vote on the pending Lautenberg amendment; is that 
correct?
  The PRESIDING OFFICER. After all time is expired.
  If the Senator will suspend, Members who are conversing in the aisle 
will take their conversations to the cloakroom.
  The Senator from Mississippi.
  Mr. LOTT. Mr. President, I will be heard tonight in this brief time 
we have remaining against the Lautenberg amendment. I understand, after 
the remarks have been made in the next 8 minutes, there will be a 
motion to table this amendment.
  The Lautenberg amendment would strike the provision in the 
legislation to reform the current petition process regarding adding or 
deleting chemicals on the Toxic Release Inventory referred to as TRI. 
The TRI is a list of chemicals emitted by industrial facilities.
  Mr. LAUTENBERG. Mr. President, can we have order, please? It is hard 
to hear the Senator from Mississippi.
  The PRESIDING OFFICER. The Senator will suspend.
  The Senator from Mississippi.
  Mr. LOTT. The TRI is a list of chemicals emitted by industrial 
facilities as required by the Emergency Planning and Community Right to 
Know Act of 1986. The current TRI language in S. 343, which was worked 
out with the distinguished Senator from Louisiana, does not add a new 
petition process.
  The language merely strengthens the current TRI language to require 
that the Administrator of the EPA ``shall grant any petition that 
establishes substantial evidence that the criteria already in the TRI 
law either are or are not met.''
  As we have gone through this process in the last few days, we have 
continued, in my opinion, to make changes that are not strengthening 
the bill. I am not questioning anybody's motives or characterizing the 
amendments. There has continued to be a process that I think is not 
strengthening this legislation.
  I want to urge my colleagues here tonight to defeat this amendment. 
What we are talking about here is sound science. That is all we are 
trying to do with their TRI provision. To make this process to involve 
reasonable, sound science, a responsible threshold should be used as 
the standard upon which TRI informs and protects the public.
  Having said that, what will this toxics release inventory provision 
in the bill not do? I want to emphasize that.
  The language in the bill has several important, positive features. 
But it will not automatically remove any chemical currently listed. It 
will not remove any of the existing criteria for listing. It will not 
prevent further listings of chemicals. It will not repeal the Community 
Right-to-Know Act. It will not require a new and costly risk 
assessment. It will not require a lengthy elaborate cost-benefit 
analysis.
  There is a long list of things that this will not do. It will not 
undermine this law.
  It will require that EPA prove the chemical is a genuine risk before 
it is listed. The provision will not affect the basic integrity of this 
program.
  In fact, I would assert that it enhances the credibility of the TRI 
listing by only identifying carcinogens that based on reasonable and 
expected exposure scenarios will present genuine risk to Americans.
  I, along with my colleagues who have worked on this, feel that TRI is 
an important and useful statute and should be preserved.
  The change though is focused and directed at only one aspect of the 
statute. There are three types of listings within this TRI.
  The first deals with really nasty chemicals; the second concerns 
carcinogens; and a third deals with chemicals causing environmental 
problems.
  Nothing is proposed to change listing or delisting standards for the 
really nasty chemicals, the bad chemicals, we all agree should be 
identified and listed.
  However, a new criteria is combined with the existing standard for 
listing in the two remaining categories.
  A factor which concerns possible exposure by the public in dosages 
which are hazardous will be added to existing criteria.
  This improves a TRI listing by providing the public with accurate and 
more complete information while avoiding unnecessarily alarming the 
public.
  If a chemical is not toxic in any scientific sense, why grossly 
mislead the public and divert resources to this nonrisk?
  This, in my opinion, is a regulatory abuse, the kind of thing we have 
been talking about and debating back and forth all week.
  I believe the American public has a right to complete and accurate 
information. They should not be given incomplete or politicized 
misinformation.
  Those who want to remove this provision, in my opinion, are not 
enhancing the protection offered. In fact, while it is not their 
intent, it may actually lead to misleading information.
  When Congress passed the Right-to-Know Act in 1986, it did not 
envision that EPA would only consider wild scenarios. But after nearly 
a decade of considering just these type of scenarios, it has come time 
I think for Congress to deal with some of the actions that EPA has been 
taking. And there is one area where we really need it. Let me read what 
EPA itself has said in its own words. It says there is--

       . . . some confusion about roles and the relationship of 
     emissions inventory, hazard assessment, exposure assessment 
     and risk assessment in the development of the TRI listings 
     and subsequent uses of the TRI data . . . sometimes 
     misinterpreted to imply that they are direct measurements of 
     exposure and risk.

  This came from EPA's own Science Advisory Board in a letter to Carol 
Browner just 5 months ago.
  I believe Americans will benefit by a more accurate and valid TRI 
listing. However, there are those who want to perpetuate a process 
which misleads as to the risks that are involved and ignoring 
scientific common sense.
  I firmly believe that the additional standard will make TRI more 
accountable, and I urge that the amendment to delete this language in 
the bill be defeated.
  I yield the floor, Mr. President.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. LOTT. I yield whatever time I might have for a question.
  Mr. JOHNSTON. Mr. President, I was going to say under the present law 
the EPA interprets its statute, or feels it must interpret their 
statute, in such a way as to have no discretion if there is a chemical 
which is known to cause chronic health effects. Ordinary table solvent, 
mentioned earlier, can cause chronic health effects, hypertension, 
poison, et cetera. They have not listed that chemical solvent. But they 
feel that they have no discretion if it causes that, and they have to 
list those kind of chemicals.
  All we want to do is put ``the rule of reason'' in interpreting those 
rules. Is that is correct?
  Mr. LOTT. That is correct. I thank the Senator.
  Mr. LAUTENBERG. Mr. President, I want to point out one thing before 
we respond directly.
  The PRESIDING OFFICER. Will Members standing and talking carry their 
conversations to the cloakroom?
  Mr. LAUTENBERG. I thank you, Mr. President. It is the end of a long 
day. People are restless. But we have an important matter to settle 
here. 

[[Page S 9899]]

  The fact of the matter is that this has been a very successful 
program. We have reduced in 5 years 40 percent of the toxic materials 
emitted. We have go from 4.8 billion pounds a year down to 2.8 billion 
pounds a year, a reduction of 2 billion pounds being released into the 
atmosphere, the water, the land, whatever waste stream the company 
chooses.
  Why is it necessary to change it? Mr. President, it is obvious to me. 
It is necessary to change it to accommodate someone who does not like 
the chemical that is listed there. We are not talking about chewing gum 
here. We are talking about chemicals that now are listed as chronic. 
These chemicals can cause cancer, teratogenic defects, serious or 
irreversible reproductive dysfunctions, neurological disorders, 
heritable genetic mutations, and other chronic health effects.
  What the Senator from Mississippi wants to do is say unless two-
thirds of this list--that is the reality--meet the acute test that none 
of those conditions that I just mentioned should permit those materials 
to be listed.
  These are toxics that are listed here. I would submit to you that it 
would be a pity to say to the American public that we are taking away 
the sunshine. We ask you now to accept the ``right to know''--not go 
from the ``right to know'' to the ``right to know nothing.'' It is a 
law that has very little demand. All they have to do--the manufacturer, 
the transports--is list the chemicals that you emit into the air, list 
the chemicals that you emit into the water; list the toxics that you 
store in wasteland fills.
  Mr. President, there is very little here that has a negative effect. 
We have reduced the amount of exposure that our people have to suffer. 
The thing works well. To leave it there now when this is not a matter 
of regulation--this is a matter of governance. I think it would be a 
mistake honestly to continue to leave the language in there that would 
eliminate a program that has been very, very successful. If we are 
going to eliminate it, it ought to be through the process of hearings 
and committees and the legislative process instead of sweeping it all 
under the pretense that we are making regulation and making life easier 
for our citizens.
  As a matter of fact, it makes life considerably more hazardous.
  I yield the floor, Mr. President, and hope that my colleagues will 
not agree to tabling this amendment.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. All time has expired.
  The majority leader.
  Mr. DOLE. I move to table the amendment, and I ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. DOLE. Mr. President, let me indicate to my colleagues this will 
be the only vote tonight because we were able to take three of the 
amendments, the Pryor amendment, and two Feingold amendments we were 
able to work out and accept. So there will just be this one vote.
  As I understand, Senator Hutchison may be prepared to offer her 
amendment, at least the debate tonight on her amendment. Is that 
correct?
  Mrs. HUTCHISON. We are almost there. Maybe after the vote.
  Mr. DOLE. That is a possibility. So we would like, if we could do 
that tonight, to finish the debate on the Hutchison amendment, and then 
we would have a vote on that tomorrow morning. But we would have that 
vote at the same time we have a vote on the Glenn amendment, which will 
be around 11 a.m.
  Mr. JOHNSTON. At 11:15.
  Mr. DOLE. Whatever. If all time is used. I do not think we need 2 
hours for sunshine.
  In any event, I just advise Members this is the last vote tonight.
  There will be votes tomorrow throughout the day, and I would tell my 
colleagues the first vote will probably be around 10:45, 11:00, 11:15 
in the morning.
  The PRESIDING OFFICER. The question is on agreeing to table the 
Amendment No. 1535. The yeas and nays have been ordered. The clerk will 
call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from New Mexico [Mr. Bingaman] 
and the Senator from Nebraska [Mr. Kerrey] are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 50, nays 48, as follows:

                      [Rollcall Vote No. 306 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
     Heflin
     Helms
     Hutchison
     Inhofe
     Johnston
     Kempthorne
     Kyl
     Lott
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Santorum
     Shelby
     Simpson
     Smith
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--48

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

                             NOT VOTING--2

     Bingaman
     Kerrey
       
  So the motion to table the amendment (No. 1535) was agreed to.
  Mr. DOLE. Mr. President, I move to reconsider the vote by which the 
motion was agreed to, and I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. GLENN. 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. 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 the 
distinguished Senator from Texas be permitted to offer her amendment, 
lay it down, and it will become the pending business when we come back 
in tomorrow. Tonight we will set it aside for the Glenn amendment.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                Amendment No. 1539 to Amendment No. 1487

(Purpose: To protect against the unfair imposition of civil or criminal 
             penalties for the alleged violation of rules)

  Mrs. HUTCHISON. 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 Texas [Mrs. Hutchison], for herself, Mr. 
     Heflin, Mr. Hatch, Mr. Nickles, Mr. Craig, and Mr. Lott, 
     proposes an amendment numbered 1539 to amendment No. 1487.

  Mrs. HUTCHISON. 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:

       Insert at the appropriate place:
     ``SEC. 709. AGENCY INTERPRETATIONS IN CIVIL AND CRIMINAL 
                   ACTIONS.

       ``(a) No civil or criminal penalty shall be imposed by a 
     court, and no civil administrative penalty shall be imposed 
     by an agency, for the violation of a rule--
       ``(1) if the court or agency, as appropriate, finds that 
     the rule failed to give the defendant fair warning of the 
     conduct that the rule prohibits or requires; or
       ``(A) reasonably in good faith determined, based upon the 
     language of the rule published in the Federal Register, that 
     the defendant was in compliance with, exempt from, or 
     otherwise not subject to, the requirements of the rule; or
       ``(B) engaged in the conduct alleged to violate the rule in 
     reliance upon a written statement issued by an appropriate 
     agency official, or by an appropriate official of a State 
     authority to which had been delegated responsibility for 
     implementing or ensuring compliance with the rule, stating 
     that the action complied with, or that the defendant was 
     exempt from, or otherwise not subject to, the requirements of 
     the rule.

[[Page S 9900]]

       ``(b) In an action brought to impose a civil or criminal 
     penalty for the violation of a rule, the court, or an agency, 
     as appropriate, shall not give deference to any 
     interpretation of such rule relied on by an agency in the 
     action that had not been timely published in the Federal 
     Register or communicated to the defendant by the method 
     described in paragraph (a)(2)(B) in a timely manner by the 
     agency, or by a state official described in paragraph 
     (a)(2)(B), prior to the commencement of the alleged 
     violation.
       ``(c) Except as provided in subsection (d), no agency shall 
     bring any judicial or administrative action to impose a civil 
     or criminal penalty based upon--
       ``(1) an interpretation of a statute, rule, guidance, 
     agency statement of policy, or license requirement or 
     condition, or
       ``(2) a written determination of fact made by an 
     appropriate agency official, or state official as described 
     in paragraph (a)(2)(B), after disclosure of the material 
     facts at the time and appropriate review,

     if such interpretation or determination is materially 
     different from a prior interpretation or determination made 
     by the agency or the state official described in (a)(2)(B), 
     and if such person, having taken into account all information 
     that was reasonably available at the time of the original 
     interpretation or determination, reasonably relied in good 
     faith upon the prior interpretation or determination.
       ``(d) Nothing in this section shall be construed to 
     preclude an agency:
       ``(1) from revising a rule or changing its interpretation 
     of a rule in accordance with sections 552 and 553 of this 
     title, and, subject to the provisions of this section, 
     prospectively enforcing the requirements of such rule as 
     revised or reinterpreted and imposing or seeking a civil or 
     criminal penalty for any subsequent violation of such rule as 
     revised or reinterpreted.
       ``(2) from making a new determination of fact, and based 
     upon such determination, prospectively applying a particular 
     legal requirement;
       ``(e) This section shall apply to any action for which a 
     final unappealable judicial order has not been issued prior 
     to the effective date.

  Mrs. HUTCHISON. Mr. President, I offer this amendment on behalf of 
Senators Heflin, Hatch, Nickles, Craig, and Lott, as well as myself. It 
is the Hutchison-Heflin amendment.
  Mr. President, this is an amendment that we will debate tomorrow. It 
is an amendment that is going to try to put into the Administrative 
Procedure Act parameters that would not allow an agency to 
retroactively penalize a business that does not have reasonable notice 
of a regulation. So I think it is going to be an important amendment. I 
think we will have good bipartisan support for it.
  I ask unanimous consent that we lay it aside.
  Mr. GLENN. Reserving the right to object, and I will not object. In 
the original version of this that we asked the Department of Justice to 
check out they had objections, and the only reason we cannot debate it 
tonight is there have been substantial changes made to the original, as 
I understand it. We are asking Justice to give us an overnight read on 
those so we can bring it up tomorrow and see if the changes made were 
adequate, or whether we have to try and debate some change in that. 
That is the reason it will be put over until tomorrow. We are glad to 
accommodate the Senator from Texas on this.
  Mrs. HUTCHISON. Yes. Mr. President, the Senator from Ohio is correct 
that there were objections. I think a number of those have been taken 
care of. I hope that by tomorrow, perhaps, we can have a short debate 
or even have an acceptance of the amendment. I feel that we have 
addressed many of the concerns in that letter. So we can take it up 
tomorrow and go from there.
  Mr. HATCH. Mr. President, I ask unanimous consent that the amendment 
be temporarily set aside so we can address the Glenn amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I want to announce to all Members of our 
body that we are going to dispose of the Glenn amendment tonight.
  Therefore, we could have votes before 11 tomorrow, I have been 
informed by the leader.
  All Members should be aware we could have a vote or more.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. HATCH. I am happy to yield to the Senator.
  Mr. JOHNSTON. Repeat that please.
  Mr. HATCH. Because we are going to accept the Glenn amendment 
tonight, and the Hutchison amendment is laid down, Members should 
become aware that we could have votes before 11 tomorrow.
  Mr. JOHNSTON. Mr. President, I have a longstanding doctor's 
appointment at 9 o'clock, and could be here by 10:30. Could the Senator 
help me on this? I can be here around 10:30. My guess is it would be 
hard to have a vote before 11, anyway.
  Mr. JOHNSTON. The only amendment I know that might be ripe for a vote 
is possibly Hutchison.
  Senator Glenn has 45 minutes in morning business.
  Mr. HATCH. We will certainly try and accommodate the Senator. I 
cannot make that promise. We will do our best.


                Amendment No. 1540 to Amendment No. 1487

(Purpose: To ensure public accountability in the regulatory process by 
      establishing ``sunshine'' procedures for regulatory review)

  Mr. GLENN. On behalf of myself and Senator Levin, 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 Ohio [Mr. Glenn] for himself and Mr. 
     Levin, proposes an amendment numbered 1540 to amendment No. 
     1487.

  Mr. GLENN. I ask unanimous consent further reading be dispensed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:
       On page 66, after line 15, insert--
     Sec. 643. Public disclosure of information

       ``(a) OMB Responsibility.--The Director or other designated 
     officer to whom authority is delegated under section 642, in 
     carrying out the provisions of section 641, shall establish 
     procedures (covering all employees of the Director or other 
     designated officer) to provide public and agency access to 
     information concerning regulatory review actions, including--
       ``(1) disclosure to the public on an ongoing basis of 
     information regarding the status of regulatory actions 
     undergoing review;
       ``(2) disclosure to the public, no later than publication 
     of, or other substantive notice to the public concerning a 
     regulatory action, of--
       ``(A) all written communications, regardless of form or 
     format, including drafts of all proposals and associated 
     analyses, between the Director or other designated officer 
     and the regulatory agency;
       ``(B) all written communications, regardless of form or 
     format, between the Director or other designated officer and 
     any person not employed by the executive branch of the 
     Federal Government relating to the substance of a regulatory 
     action;
       ``(C) a record of all oral communications relating to the 
     substance of a regulatory action between the Director or 
     other designated officer and any person not employed by the 
     executive branch of the Federal Government; and
       ``(D) a written explanation of any review action and the 
     date of such action; and
       ``(3) disclosure to the regulatory agency, on a timely 
     basis, of--
       ``(A) all written communications between the Director or 
     other designated officer and any person who is not employed 
     by the executive branch of the Federal Government;
       ``(B) a record of all oral communications, and an 
     invitation to participate in meetings, relating to the 
     substance of a regulatory action between the Director or 
     other designated officer and any person not employed by the 
     executive branch of the Federal Government; and
       ``(C) a written explanation of any review action taken 
     concerning an agency regulatory action.
       ``(b) Agency Responsibility.--The head of each agency 
     shall--
       ``(1) disclose to the public the identification of any 
     regulatory action undergoing review under this section and 
     the date upon which such action was submitted for such 
     review; and
       ``(2) describe in any applicable rulemaking notice the 
     results of any review under this section, including an 
     explanation of any significant changes made to the regulatory 
     action as a consequence of the review.''.
       On page 66, line 16, strike ``643'' and insert in lieu 
     thereof ``644''.
       On page 67, line 1, strike ``644'' and insert in lieu 
     thereof ``645''.

  Mr. GLENN. Mr. President, we have supported regulatory review in 
terms of cost-benefit analysis and OMB review of agency rules. During 
the 1980's, we had a lot of controversy about OMB interference with 
agency decisions, special access by lobbyists, and finally about 
secrecy in the Council on Competitiveness.
  We, throughout all of this on the Governmental Affairs Committee, 
stood for open sunshine, nothing that was going to stop OMB review, and 
we wanted to introduce fairness.
  The sunshine language in the Glenn-Chafee bill is consistent with the 
Clinton administration Executive order, 

[[Page S 9901]]
consistent with recommendations of the administrative conference of the 
U.S., also very similar to the OMB public disclosure procedures that 
Carl Levin, one of the cosponsors of this, negotiated with the Bush 
administration back in 1986.
  We have a long history on this. We introduced sunshine legislation in 
several Congresses.
  This year's language is a streamlined version of those bills, less 
strict, avoids criticism--like detailed logging requirements and early 
pre-rulemaking release of internal documents. Those requirements are 
not in this language.
  But the provisions have two basic parts. First, OMB responsibilities, 
they must disclose to the public information about the status of rules 
under review. We need this to enforce the review time limits.
  Two, OMB must release regulatory review documents and comments to 
agencies as they come in, and to the public; once a rule is proposed, 
agency and OMB analysis and other regular review documents are included 
and documents of people outside of government, records of 
conversations, meetings, review decisions.
  The second part involves the responsibilities of the rulemaking 
agency. Each agency must keep a publication of rules under review at 
OMB. This matches the OMB lists and is needed to enforce the review 
time limits.
  These requirements work. The Clinton administration abides by almost 
identical procedures now, and given past problems and requirements, the 
new regulatory reform bill, we should start with an open process.
  I urge adoption of the amendment. It is my understanding that the 
other side has agreed to accept this amendment.
  I am certain that Senator Levin, my cosponsor on this, who has done 
as much work in this area through the years as anybody in the Congress, 
and I am sure he has some remarks to make.
  I am glad to yield the floor.
  Mr. LEVIN. Mr. President, first let me thank my friend, the Senator 
from Ohio, for his tremendous leadership on this issue. He has kept at 
the forefront, and as a result we will adopt this very important 
amendment on openness tonight.
  This issue began back in 1981 when President Reagan issued Executive 
order 12291, requiring review by the OMB, of all significant rules--
proposed and final.
  I favored Presidential oversight because I like accountability in the 
rulemaking process. But that process was being done behind closed 
doors. We could not even tell the public or find out if or when a rule 
was being reviewed by OMB. Only insiders with the right phone numbers 
on their rolodex knew what was going on.
  We had hearing after hearing, document requests, battles in the press 
and on the Senate floor, over the critical issue of making the OMB 
review process subject to the same public disclosure requirements that 
we impose on rulemaking agencies.
  It finally took a threat to shut down the dollars for OIRA, the 
Office of Information and Regulatory Affairs, the office in the OMB 
which conducts the review.
  Now what we finally got was a policy from OIRA in 1986 from this 
administrator Wendy Gramm in the form of the so-called Gramm memo. That 
opened the door a bit, an important bit, and put written comments in a 
record of meetings in a public rulemaking file.
  We still did not get the public's right-to-know if and when a rule 
was at OMB for review. But it was at that time, a big step forward.
  The Clinton administration has issued a new Executive order in 1993 
that provided an excellent process for making the OMB review process 
open to the public.
  This bill, the bill now that is before the Senate for consideration, 
provides statutory authority for the President to review rules. It does 
not, however, provide for any of the openness requirements that we now 
have in the Executive order and for which we have worked so hard.
  This amendment offered by the Senator from Ohio puts those disclosure 
requirements in law. It is an important amendment. There are also, 
these requirements in the Glenn-Chafee substitute, as there were in the 
Roth bill as reported unanimously by the Governmental Affairs 
Committee.
  Again, I want to thank the Senator from Ohio for his stalwart 
leadership on this openness issue.
  Mr. JOHNSTON. Mr. President, I wonder if the Senator from Ohio would 
answer a couple of questions.
  On page 2 of his amendment, on subsection (C) it states that there 
must be a record of all oral communications relating to the substance 
of a regulatory action between the director or other designated officer 
and any person not employed by the executive branch of the Federal 
Government, and then it also in subparagraph 3 on the same page talks 
about disclosure to the regulatory agency on a timely basis of a record 
of all communications, et cetera.
  Now, my question is, does a record of all oral communications mean 
like a log of calls with a subject matter; or does that mean like a 
transcript or a summary of the substance of everything that is said?
  Mr. GLENN. No, not a transcript. This would be rather, who called, 
and the general subject of the conversation.
  Mr. JOHNSTON. Like I called you about this amendment. To satisfy that 
record, you would say the date; call from Johnston; subject is sunshine 
amendment. Would that satisfy?
  Mr. GLENN. Yes.
  Mr. JOHNSTON. So, the Senator does not mean by a ``record,'' either a 
transcript or a summary, but name, date, time, subject matter.
  Mr. GLENN. General subject, that is correct.
  Mr. JOHNSTON. I thank the Senator.
  Mr. GLENN.
   Mr. President, the amendment I am offering is required to provide 
sunshine during regulatory review. This amendment is needed to maintain 
public accountability and trust in government.

  While not a central part of the regulatory reform legislation, the 
bill's Executive oversight provisions ensure that compliance with the 
many requirements of the bill will be monitored and enforced through 
OMB regulatory review. This power must be exercised in the light of 
day.
  We have had a lot of experience with OMB regulatory review over the 
last 15 years. While I think that that review is needed to ensure good 
cost-benefit analysis by the agencies, it should not be used for 
undisclosed lobbying, pressure, and delay. Unfortunately, it has been 
used for those things. We need to put sunshine procedures into law so 
that it will not happen again.
  Let me review how we got to this point.
  A key component of the regulatory process under the Administrative 
Procedure Act [APA] is the requirement that agencies must work to 
involve interested parties in the development of rulemaking decisions.
  Agencies must give the public notice of its proposals, solicit 
comments on them, and consider those comments in making final 
rulemaking decisions. This public participation has always been key to 
protecting the integrity of government agency decisions. It has also 
been key to creating the agency record that is reviewed by a court upon 
a challenge to an agency's final rule decision.
  These APA public participation principles were largely sufficient for 
many years. Over the last 20 years, however, the development of 
centralized regulatory review has created a new layer of 
decisionmaking, whereby agency regulatory proposals could be reviewed 
and changed before being published for public notice and comment.
  This regulatory review process, which was created by Presidential 
Executive order, has been the driving force for cost-benefit analysis 
in agency rulemaking. I have always supported that purpose. In fact, it 
is the potential good that OMB has shown can be provided by cost-
benefit analysis and risk assessment that brings us to debate the 
present legislation. We are building on OMB's regulatory review 
experience in an effort to place these requirements in law for all 
agencies. I support that purpose. And I am glad that OMB has been here 
over the years helping to develop the principles of cost-benefit 
analysis and risk assessment.
  Unfortunately, the OMB regulatory review experience has not been 
without its problems. In addition to regulatory analysis, the OMB 
process is useful for simply coordinating policies among the 

[[Page S 9902]]
various agencies and ensuring consistency with Presidential priorities. 
While this, too, is a valid purpose, it proved a useful avenue for 
secret lobbying, political pressure on agencies, and delays of agency 
decisions. This is not what regulatory review should be about.
  Congressional hearings over the last 10 years or more have 
highlighted complaints about OMB's role in regulations relating to 
infant formula, lead, ethylene oxide, drinking water, underground 
storage of toxic chemicals, grain dust, and more. Several court 
decisions have also focused on some of these cases.
  The former OMB Director, Richard Darman, even testified before the 
Governmental Affairs Committee in 1989 that ``OMB had abused the 
process by using delay as a substantive tool'' to control agency 
decisions.
  In 1991, our committee had many of the same complaints with regard to 
the Council on Competitiveness, which was chaired by Vice President 
Quayle, and was supervising the OMB regulatory review process. There 
were a lot of charges about secret lobbying a lot of refusals to 
disclose who was meeting with Council representatives on current 
regulatory proposals.
  I do not believe the solution to these closed processes is to outlaw 
them. Regulatory review is useful and should not be curtailed. But it 
should be more open. With openness the process can go forward and the 
American people can be confident in knowing that no secret dealings are 
going on behind closed doors.
  Through the years of our oversight in the Governmental Affairs 
Committee, there has been considerable disagreement in the committee 
about how much sunshine is needed and at what stages in the process. 
The committee has, however, always agreed on the need for sunshine and 
public confidence in the regulatory process. In the consideration of S. 
291, Senator Roth's regulatory reform bill that was supported 
unanimously by Democrats and Republican in our committee, we arrived at 
a set of requirements that were acceptable to all. They were reduced in 
scope from earlier proposals I have made. They are consistent with 
recommendations of the Administrative Conference of the United States 
and provisions in current regulatory review order (E.O. 12866). These 
provisions include openness procedures instituted by OMB in 1986.
  In other words, while some past proposals have been criticized as too 
intrusive into the prerogatives of the Chief Executive, the sunshine 
provisions in S. 291 work without raising past concerns. There were no 
complaints in committee about intrusion into executive privilege. Past 
criticisms about forcing early disclosure of information during 
regulatory review was resolved by putting off disclosure until after 
the completion of regulatory review. Earlier complaints about undue 
administrative burden, such as detailed logging requirements, were also 
addressed by matching requirements to those currently employed by OMB.
  The Glenn/Chafee bill, S. 1001, contains the exact sunshine 
provisions of S. 291. The amendment I offer today is almost identical 
to that language--it is only modified in order to fit into the 
structure of S. 343. Without this amendment, S. 343 has no public 
protections during regulatory review. I believe that is a fundamental 
flaw that needs to be addressed. I believe that our bipartisan 
Governmental Affairs sunshine provisions provide the needed solution.
  The amendment has two sets of requirements--one for OMB, and one set 
for the rulemaking agencies.
  First, OMB must disclose to the public information about the status 
of rules undergoing review. This means that the public should be able 
to learn from OMB what agency regulatory actions are under review. As a 
practical matter, this would entail the production of a single monthly 
listing of proposed rules under review--as OMB currently prepares 
pursuant to E.O. 12866. In this way, the legislation would merely 
create a statutory right to information now provided under Presidential 
Executive order.
  Second, the public must have access, no later than the date of 
publication of the proposed or final rule, to: (A) Written 
communications exchanged between OMB and the rulemaking agency. These 
would include draft rules and related analyses; (B) Written 
communications between OMB and non-governmental parties relating to the 
substance of a rule; (C) A record of oral communications between OMB 
and non-governmental parties relating to the substance of a rule--as 
in, who called, when, and on what subject; and (D) A written 
explanation of any review action and the date of such action.
  Each one of these requirements is currently the practice of OMB. 
Again, we expect that these requirements will entail the continuation 
of the current OMB practice of maintaining regulatory review files in a 
public reading room.
  Third, as a counterpart to public disclosure, OMB is required to send 
relevant information to the rulemaking agency to ensure the compilation 
of a full and accurate rulemaking record. OMB must send to the agency: 
(A) Written communications between OMB and non-governmental parties; 
(B) A description of oral communications, and an invitation to 
participate in meetings, relating to the substance of a regulatory 
action between the reviewer and any person not employed by the 
executive branch of the Federal Government; and (C) A written 
explanation of any review action.
  The second part of the amendment requires agencies to: First, give 
public notice about rules undergoing regulatory review; and second, 
describe regulatory review decisions in the relevant rulemaking 
notices.
  With these procedures, we should be able to put behind us much of the 
rancor and criticism that dogged OMB regulatory review during the past 
15 years. The Clinton administration has taken an important step in 
applying these procedures in its Executive order. The time is now for 
Congress also to close the book on this issue. We are taking a 
significant step forward in moving regulatory reform legislation and in 
order to be successful, it must be accompanied by sunshine.
  Mr. HATCH. Mr. President, we do have some concerns about this 
amendment on this side. We have some constitutional concerns and some 
others.
  We are willing to accept this amendment tonight on the basis that we 
continue to work with our distinguished colleague and friend from Ohio 
and others, and we are trying to accommodate over here. So we are 
prepared to accept the amendment if the Senator will urge it.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, I urge adoption of the amendment.
  THE PRESIDING OFFICER. If there be no further debate, the question is 
on agreeing to the amendment.
  The amendment (No. 1540) was agreed to.
  Mr. GLENN. Mr. 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. JOHNSTON. Mr. President, I wonder if the Senator will yield? May 
I ask my colleague if we have cleared the Heflin amendment yet? Senator 
Heflin wanted to make Section 706 of the APA applicable to appeals from 
the court of claims.
  Mr. HATCH. It is my understanding it has not been cleared yet but it 
is being worked on.


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