Congressional Record, Volume 141 Issue 114 (Friday, July 14, 1995)

[Congressional Record Volume 141, Number 114 (Friday, July 14, 1995)]
[Senate]
[Pages S9988-S9995]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

COMPREHENSIVE REGULATORY REFORM ACT

The Senate continued with the consideration of the bill.
Mr. ROTH addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware is recognized.

Amendment No. 1575 to Amendment No. 1487

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

The Senator from Delaware [Mr. Roth] proposes an amendment
numbered 1575 to amendment No. 1487.

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

Add a new section 637 to Subchapter III as follows:

SEC. 637. INTERAGENCY COORDINATION.

``(a) To promote the conduct, application, and practice of
risk assessment in a consistent manner and to identify risk
assessment data and research needs common to more than 1
Federal agency, the Director of the Office of Management and
Budget, in consultation with the Office of Science and
Technology Policy shall--
``(1) periodically survey the manner in which each Federal
agency involved in risk assessment is conducting such risk
assessment to determine the scope and adequacy of risk
assessment practices in use by the Federal Government;
``(2) provide advice and recommendations to the President
and Congress based on the surveys conducted and
determinations made under paragraph (1);
``(3) establish appropriate interagency mechanisms to
promote--
``(A) coordination among Federal agencies conducting risk
assessment with respect to the conduct, application, and
practice of risk assessment; and
``(B) the use of state-of-the-art risk assessment practices
throughout the Federal Government;
``(4) establish appropriate mechanisms between Federal and
State agencies to communicate state-of-the-art risk
assessment practices; and
``(5) periodically convene meetings with State government
representatives and Federal and other leaders to assess the
effectiveness of Federal and State cooperation in the
development and application of risk assessment.
``(b) The President shall appoint National Peer Review
Panels to review every 3 years the risk assessment practices
of each covered agency for programs designed to protect human
health, safety, or the environment. The Panels shall submit a
report to the President and the Congress at least every 3
years containing the results of such review.

Mr. ROTH. Mr. President, my amendment is to promote the use of risk
assessment in a consistent manner across agencies because we believe it
will clearly improve the intent of S. 343 and will further the bill's
intent of improving risk assessment within the Federal Government.
It only makes sense to ensure that the conduct, application, and
practice of risk assessment be done as uniformly as possible across
agencies. A consistent approach will help to minimize unnecessary
bureaucracy, overlap, and duplication, and will lead to a more
efficient and effective process of performing risk assessment.
This amendment is pulled directly from the Glenn substitute, and
shows our effort to continue this process in a truly bipartisan manner.
This amendment would require the Director of OMB, in consultation with
the Office of Science and Technology Policy to survey relevant agency
risk assessment practices to determine the scope and adequacy of risk
assessment practices used by the Federal Government.
The amendment also requires the establishment of interagency
mechanisms to promote coordination among agencies' risk assessment
practices, to promote the use of state-of-the-art risk assessment
practices throughout the Federal Government, and establish mechanisms
to communicate risk assessment practices between Federal and State
agencies, as well as to promote Federal and State cooperation in the
development and application of risk assessment.
In addition, the amendment requires national peer review panels every
3 years to review risk assessment practices across agencies for
programs designed to protect human health, safety, and the environment.
This amendment will ensure that advances in science and technology
are continuously incorporated in Federal risk assessment practices and
ensure coordination of these practices among Federal and State
agencies.
This amendment will, therefore, improve risk assessment practices in
the Federal Government, and will result in a more effective and
efficient risk assessment process--a process that is the foundation of
effective health, safety, and environmental regulations.
Mr. President, I urge adoption of my amendment.
The PRESIDING OFFICER (Mr. Kyl). Is there further debate on the
amendment?
Mr. HATCH. Mr. President, we are prepared to accept the amendment on
this side. We think it is a good amendment. I believe the other side is
prepared to accept it.
Mr. LEVIN. Mr. President, we are not only prepared to accept the
amendment but we are delighted that it is offered. It is language that
actually comes from the Glenn-Chafee substitute. Needless to say, the
more of that substitute that we can incorporate in the pending bill the
happier we are. We are certainly pleased with this amendment.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment of the Senator from Delaware.

[[Page S9989]]

The amendment (No. 1575) was agreed to.
Mr. ROTH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 1581 to Amendment No. 1487

(Purpose: To reform regulatory procedures, and for other purposes)

Mr. LEVIN. Mr. President, I send to the desk now the so-called Glenn-
Chafee substitute. This is on behalf of myself and Senators Glenn,
Chafee, Lieberman, Cohen, Pryor, Kerry, Lautenberg, Daschle, Boxer,
Kohl, Simon, Kennedy, Dodd, Murray, Akaka, Jeffords, Biden, Dorgan,
Baucus, and Kerrey, and I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Glenn, for
himself, Mr. Chafee, Mr. Levin, Mr. Lieberman, Mr. Cohen, Mr.
Pryor, Mr. Kerry, Mr. Lautenberg, Mr. Daschle, Mrs. Boxer,
Mr. Kohl, Mr. Simon, Mr. Kennedy, Mr. Dodd, Mrs. Murray, Mr.
Akaka, Mr. Jeffords, Mr. Biden, Mr. Dorgan, Mr. Baucus, and
Mr. Kerrey, proposes an amendment numbered 1581 to amendment
numbered 1487.

(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. LEVIN. Mr. President, we are going to begin the debate on this
substitute today and then continue this on Monday.
This embodies a number of changes that are really significant from
the bill that is before us. They are succinctly set forth in a
statement of administration policy.
Mr. HATCH. Mr. President, will the Senator yield? I know the Senator
is just beginning what really is a very important statement of his
position and others on this bill. But could I ask a special favor of
the Senator? Senator Stevens is here. He just needs to speak for about
4 or 5 minutes. I would rather have him do that.
Mr. LEVIN. I understand Senator Chafee is on the way to the airport.
If the two of them could work out an order, it would be great.
Mr. HATCH. Senator Chafee first, and then Senator Stevens.
Mr. LEVIN. That is fine.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. CHAFEE. Mr. President, I want to thank the Senator from Alaska
very much for permitting me to proceed, and indeed giving me his
podium.
Mr. President, I am pleased to join with Senator Glenn and Senator
Levin and a bipartisan group of cosponsors to put this alternative
before the Senate.
First, I want to say something about the pedigree of this amendment
we are proposing. It is the bill which was reported unanimously by the
Governmental Affairs Committee 15 to nothing. There are other
regulatory reform bills before this body. One was reported from a
committee on a straight party line vote, Republicans voting one way,
the Democrats voting the other. Another was discharged by unanimous
consent when the committee could not agree on a procedure for a markup.
In other words, there is tremendous dissention within the committee.
But this amendment that we are offering is based on the bill that has
the support of all the Republicans, and all of the Democrats on the
Governmental Affairs Committee.
There is another point to be made about the history of this
amendment. Back in 1982, the Senate passed a regulatory reform bill on
a vote of 94 to 0. It is pretty rare that you get a vote like that
around here, 94 to 0. A regulatory reform bill was passed just 15 years
ago.
Many of the issues that were discussed here on the floor over the
past few days were all addressed by that bill; issues such as the role
of cost-benefit analysis, judicial review, and setting agency
priorities. I invite Members to go back and read that bill. They will
find that it has more in common with the amendment that Senator Glenn
and I are presenting than it has in common with the underlying
substitute.
There was no supermandate in 1982. Cost-benefit analysis did not
override other law. There was no prohibition on issuing a rule unless
the agency could demonstrate that the benefits justified the cost.
Cost-benefit studies were required. Yes; just as they are in this
amendment that Senator Glenn and I are presenting. Agencies were asked
to determine whether the benefits of a rule justified the cost. But the
bill that the Senate adopted unanimously in 1982 did not set cost
benefit as the ultimate test that a rule had to pass. That is one of
the problems with the bill that we are amending here today.
On judicial review, the 1982 bill specifically precluded judicial
review of the substance of cost-benefit studies. The agencies were
required to perform them. Yes. They were. But the court challenges to
the methods and the assumptions, or the underlying data, could not be
used to overturn a rule. This is consistent with judicial review in the
provisions we have in the Glenn-Chafee amendment.
Mr. President, the Senate has been down this road before. In 1982 it
unanimously adopted a regulatory reform bill. Members ought to read
that bill. They will find that the Glenn-Chafee amendment is cut from
the same cloth. This year, one committee of the Senate unanimously
reported a regulatory reform bill, and that is the Glenn-Chafee
amendment.
In addition to the cost-benefit and judicial review benefits, there
are other important differences that we will outline in the debate on
Monday. I look forward to a spirited discussion.
I wish to thank the Chair and thank the managers of the bill for
permitting me to proceed.
I thank the Senator from Alaska.
Mr. STEVENS. Mr. President, I thank my good friend. I will take just
a few minutes.
(The remarks of Mr. Stevens pertaining to the submission of S. Con.
Res. 21 are printed in today's Record under ``Submission of Concurrent
and Senate Resolutions.'')
Mr. LEVIN. Mr. President, the substitute which we offer is basically
the same bill as the Roth-Glenn bill, a bipartisan bill, a strong
regulatory reform bill that passed Governmental Affairs unanimously.
Our substitute would fundamentally change the way that Federal
regulatory agencies do business and would achieve meaningful,
responsible regulatory reform.
The Glenn-Chafee substitute would help prevent regulatory agencies
from issuing rules that are not based on good science or common sense
and that impose costs that are not justified by the benefits of the
rule. At the same time, the Glenn-Chafee substitute would not inhibit
or prevent agencies from taking the necessary steps to protect public
health, safety, and the environment.
The Glenn-Chafee substitute strikes a good balance between reducing
the costs and the burdens of Federal regulation while ensuring that
needed public protections and benefits are being provided. It would
produce better informed decisions without bringing the regulatory
process to a standstill or forcing outcomes which are harmful to health
and to safety.
Under the Glenn-Chafee substitute, all Federal agencies would be
required to perform and publish cost-benefit analyses before issuing
major rules. The agencies must compare the costs and benefits of not
only the proposed rule but of reasonable alternatives as well,
including nonregulatory market-based approaches. The agency must
explain whether the expected benefits of the rule justify the costs and
whether the rule will achieve the benefits in a more cost-effective
manner in the alternative. The cost-benefit analysis must be reviewed
by a panel of independent experts and the agency must respond to peer
reviewers' concerns.
Under Glenn-Chafee, the major regulatory agencies would be required
to perform and issue risk assessments before issuing major rules. The
risk assessments must be based on reliable scientific data and must
disclose and explain any assumptions and value judgments. The risk
assessment must be reviewed by a panel of independent experts and the
agency must respond to peer reviewers' concerns.
Under Glenn-Chafee, Federal agencies are required to review all major
regulations and eliminate all unnecessary regulations. If an agency had

[[Page S9990]]
failed to conduct a review within the time required by the schedule, it
would be required to issue a notice of proposed rulemaking to repeal
the rule rather than to have the rule automatically sunset.
Under Glenn-Chafee, Congress would have 45 days before issuance of
any major rule to review the rule and prevent it from taking effect by
passing with expedited procedures a joint resolution of disapproval.
This would put elected representatives in a position to assure that
agency rules are consistent with Congress' intent, a power that I have
fought for since I first ran for the Senate.
Under Glenn-Chafee, agencies would be required to set regulatory
priorities to address the risks that are most serious and can be
addressed in a cost-effective manner. Agencies would be required to
explain and reflect these priorities in their budget requests.
Under Glenn-Chafee, every 2 years the President would be required to
report to Congress the costs and the benefits of all regulatory
programs and recommendations for reform.
Under Glenn-Chafee, the Office of Management and Budget would be
required by law to oversee compliance with the bill, would be required
to review all major rules before issuance, and this would strengthen
Presidential control over regulatory agencies, particularly the
independent agencies.
Now, Mr. President, the substitute which we offer, the Glenn-Chafee
substitute, is a strong and a powerful bill. It is an important reform
measure which, again, just a few months ago had the unanimous,
bipartisan support of Governmental Affairs.
Glenn-Chafee also avoids some problems that are present in the so-
called Dole-Johnston bill. And that is why it represents a balance
between reform, which we need, because we have all seen excessive
regulatory burdens placed on Americans; we need reform, but we also
need clean air and clean water, environmental protection, safe
workplaces, safe food, and the other things which a regulatory process
produces. We have to have both, and we can have both.
There are a number of problems, as I have said, in the Dole-Johnston
bill. These problems are quite succinctly set forth in a document which
has been produced by the OMB with a large number of agencies who are
involved in the regulatory process.
I am going to read briefly from that document and just take a couple
of examples from it and then put the remainder of the document in the
Record.
It is called, from the Executive Office of the President, ``Statement
of Administration Policy'':

This letter is dated, by the way, July 10.

The Administration is particularly concerned that S. 343
could lead to:

And then they list many of the problems with the so-called Dole-
Johnston bill. First:

Unsound Regulatory Decisions. A regulatory reform bill
should promote the development of more sensible regulations.
S. 343, however, could require agencies to issue unsound
regulations. It would force agencies to choose the least
costly regulatory alternative available to them, even if
spending a few more dollars would yield substantially greater
benefits.

I want to stop there and just use an example of what that document is
referring to. The language in the bill requires that the rule adopt the
least-cost alternative of the reasonable alternatives that are
available. That may sound good at first blush. The problem is we do not
always want to buy a Yugo. A Yugo may get you to where you are going,
but it may be that you want airbags or it may be that you have five
kids or it may be that you want other kinds of features that are not
available on a Yugo. That is why Yugos are not selling that well,
because even though it may be classified as a car, it still does not do
what we want to be done, which we need to have done in a cost-efficient
way.
I have a chart behind me which gives an example of what I am
referring to. Let us assume that we pass a statute which says that we
want a certain toxic substance in the air to be reduced to no more than
10 parts per million. That is what our instruction is to the agency. We
decide as a Congress no more than 10 parts per million of a certain
substance. We also authorize the agency, based on a cost-benefit
analysis, waiving the cost of the benefits of going further, that they
can be more restrictive than 10, should that cost-benefit analysis
indicate to them that it makes common sense and it is cost-effective to
do so.
So the agency makes a study, and that study is that for $200 million,
you get to 10; for $400 million, you can get to 7. And from that point
on, the line becomes kind of flat and you are not going to be really
achieving an awful lot more, although you are going to be spending an
awful lot more money.
If you can get to 7 parts per million of a toxic substance, the
agency may decide that you are going to quadruple the number of lives
that you are going to save--not the agency deciding, but it could be a
cost-benefit analysis decides--that for the extra dollars you are going
to have a huge return.
Do we have to go with the cheapest, even though it might be the
statutory requirement? Or could we, for some additional dollars if
there is a huge return, allow the agency to impose the additional
dollars? If the cost-benefit analysis tells us that for a relatively
few percentage points of additional expenditures, we can gain a huge
increase in safety or reduce the loss of human lives by a huge
percentage, are we going to say, ``You can't do that, you have to go
with the cheapest alternative''? Is that what we want to do?
The sponsors of the amendment say there is an escape clause from
that. The sponsors of the amendment say that if nonquantifiable
benefits to health and safety are such that you can make significant
additional gains in health and safety, then you are allowed to go with
something more than the least-cost alternative. You are not limited to
the cheapest. You do not have to buy the Yugo if the nonquantifiable
benefits to health, safety, and the environment make a more costly
alternative that achieves the objectives of the statute appropriately.
The problem with that is what happens if the benefits are
quantifiable, like on this chart? In my hypothesis, these are not
nonquantifiable benefits, these are quantifiable benefits that make it
appropriate to go to a more--or might make it more appropriate--to go
to a more costly alternative that achieves the objectives of the
statute.
Why preclude an agency from using a slightly more expensive
alternative if there is a huge benefit? What is cost-benefit all about,
except to do that, to analyze cost and benefits? Why are we putting
agencies to this requirement, except that we will allow them some
flexibility to use the results of the cost-benefit analysis? And if the
results of that analysis are that for a relatively small increase in
cost we get a relatively large gain, why are we going to say, ``Sorry,
you can't do that unless the benefits are nonquantifiable''?
We have urged the sponsors of this amendment to make the change to
where the benefits are either quantifiable or nonquantifiable. We ought
to allow the cost-benefit analysis to be considered, and where a more
costly approach will give us a significant gain, we ought to do so.
But we have not been successful in getting an agreement to make that
change.
The administration document says that S. 343:

. . . would also prevent agencies responsible for
protecting public health, safety, or the environment from
issuing regulations unless they can demonstrate a
``significant'' reduction in risk . . .
Now, if the cost-benefit analysis that we are requiring, that
everybody, I think, in this Chamber wants to require to be done,
demonstrates that there is a reduction in the risk for almost no cost,
why do we want to put in law that you cannot do that? The reduction has
to be significant before it

[[Page S9991]]
is allowed. Why are we precluding reductions in risk to health, safety,
and the environment if the cost-benefit analysis, which we, in both
versions of the bill, are requiring to be made indicate that it is
worthwhile doing?
Why preclude reductions in risks to our health, our children's
health, our children's safety, and our environment unless it rises up
to the level of significant if the cost of reduction is minute? I do
not see any logic in insisting on the word ``significant,'' once we
have a cost-benefit analysis requirement. I think that word should be
stricken. We have proposed that it be stricken. In our version, there
is no such limitation.
Mr. President, at this point, I ask unanimous consent that the
remainder of the statement of administration policy which sets forth
many of the problems in the Dole-Johnston bill, be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Statement of Administration Policy

S. 343--Comprehensive Regulatory Reform Act of 1995

The Administration strongly supports the enactment of cost-
benefit analysis and risk assessment legislation that would
improve the regulatory system. S. 343, however, is not such a
bill. Because the cumulative effect of its provisions would
burden the regulatory system with additional paperwork,
unnecessary costs, significant delay, and excessive
litigation, the Secretaries of Labor, Agriculture, Health and
Human Services, Housing and Urban Development,
Transportation, the Treasury, and the Interior, the
Administrator of the Environmental Protection Agency, and the
Director of the Office of Management and Budget would
recommend that the President veto S. 343 in its present form.
The Administration is particularly concerned that S. 343
could lead to:
Unsound Regulatory Decisions. A regulatory reform bill
should promote the development of more sensible regulations.
S. 343, however, could require agencies to issue unsound
regulations. It would force agencies to choose the least
costly regulatory alternative available to them, even if
spending a few more dollars would yield substantially greater
benefits. It would also prevent agencies responsible for
protecting public health, safety, or the environment from
issuing regulations unless they can demonstrate a
``significant'' reduction in risk--even if the benefits from
a small reduction in risk exceed the costs. Both of these
features would hinder, rather than promote, the development
of cost-beneficial, cost-effective regulations. In addition,
S. 343 could be construed to constitute a supermandate that
would override existing statutory requirements
indiscriminately.
Excessive Litigation. While it is appropriate for courts to
review final agency action to determine whether, taken as a
whole, the action meets the requisite standards, S. 343 would
increase opportunities for lawsuits and allow challenges to
agency action that is not yet final. Further, by needlessly
altering numerous features of the Administrative Procedure
Act, S. 343 could engender a substantial number of
lawsuits concerning the meaning of changes to well-
established law.
A Backdoor Regulatory Moratorium. S. 343 would take effect
immediately upon enactment, consequently leading to an
unnecessary and time-consuming disruption of the rulemaking
process. It would require proposed regulations that have
already been through notice and comment, and are based on
cost-benefit analysis, to begin the process all over again
because of an agency's unknowing failure to follow one of the
many new procedures in the bill.
The Unproductive Use of Analytic Resources in Issuing New
Rules. Since the mid-1970s, Presidents of both parties have
selected $100 million as the line of demarcation between that
which warrants full-blown regulatory analysis and that which
does not. Because cost-benefit and risk analyses can be
costly and time-consuming, the Administration believes that
$100 million continues to be the appropriate threshold. S.
343, however, has as its threshold $50 million--a decision
that would require agencies to use their resources
unproductively and that therefore cannot itself withstand
cost-benefit scrutiny.
Agencies Overwhelmed with Petitions and the Lapsing of
Effective Regulations. S. 343 creates numerous, often highly-
convoluted petition processes that, taken together, could
create opportunities for special interests to tie up an
agency in additional paperwork and, in the process, waste
valuable resources. Several of these processes allow agencies
inadequate time to conduct the required analyses and prepare
the required responses to petitions; contain inadequate
standards against which the adequacy of petitions can be
judged; contain inadequate limitations on who may properly
file petitions; and contain inadequate safeguards against an
agency becoming overwhelmed by large numbers of petitions.
These problems are exacerbated by provisions providing for
the sunsetting of regulations according to arbitrary
deadlines, which could cause effective regulations to lapse
without going through the notice and comment process.
Inappropriate Use of Risk Assessment and Peer Review. S.
343's risk assessment and peer review provisions are overly
broad in scope and would introduce unnecessary
delays into the regulatory process. They would
inappropriately subject all health, safety, and
environmental regulations to risk assessment and peer
review, regardless of whether such regulations are
designed to reduce risk or whether a risk assessment and a
peer review would, from a scientific perspective, be
useful or appropriate.
Slowed Environmental Cleanups. S. 343 could needlessly slow
ongoing and planned environmental cleanup activities,
including those at military installations necessary to make
the installations being made available for productive non-
military use. It would also invite attempts to renegotiate
cleanup agreements, thereby hampering enforcement efforts and
increasing public and private transaction costs.
A Less Accountable and Less Transparent Regulatory Process.
Any regulatory reform bill should bring ``sunshine'' to the
regulatory review process. Executive Order No. 12866,
``Regulatory Planning and Review,'' provides both for
centralized Executive branch review of proposed regulations
and for the disclosure of communications concerning pending
rulemakings between persons outside the Executive branch and
centralized reviewers. S. 343, however, contains no such
sunshine provision and could consequently remove
accountability and transparency from the regulatory process.
An Unduly Lengthy Congressional Layover. S. 343 includes a
provision for a congressional layover of 60 days that goes
beyond the provisions of S. 219, which provided for a 45-day
layover. S. 219 passed the Senate by a vote of 100-0, with
Administration support.
Unrealistic, Unmanageable Studies. S. 343 would require a
comprehensive study of and report on all risks to health,
safety, and the environment addressed by all federal
agencies. It would also require the President to produce
annually a highly detailed estimate of and report on the
costs, benefits, and effects of virtually all existing
regulatory programs. Such studies would not only be
unmanageable to conduct and costly to produce, but would
require scientific and economic analytical techniques that go
beyond the state of the art.
Unnecessarily Hindered Enforcement of Regulations and Out
of Court Settlements. S. 343 could create disincentives for
regulated entities to bring potentially conflicting
regulations to the appropriate agencies' attention. It could
also make it unnecessarily difficult for agencies to settle
litigation out of court.
Significant Changes in Substantive Law Without Proper
Consideration. S. 343 goes beyond attempting to reform the
regulatory process by making changes in substantive law--
altering, for example, the Delaney Clause and the Community
Right-to-Know Act. Whether such changes are appropriate
should be decided only after full hearings in the committees
of jurisdiction and full debate on the merits.
The Administration is as concerned with the cumulative
effect of S. 343 as with its particular features. The
Administration remains committed, however, to improving the
regulatory process, both administratively and through
legislation.

Mr. LEVIN. Mr. President, there are major problems in judicial
review. It appears as though there are as many as 140 additional items
which can be litigated under S. 343 because of some of the language in
it beyond items which can be litigated today.
Now, we want to try to fix this thing. We do not want to make it
worse. We have a regulatory system which needs to be repaired. We do
not want to make it more cumbersome, more confusing, more difficult to
operate under. And one of the difficulties with the bill is that it
opens the door to so many--indeed over 100, probably--areas of
reviewable issues to be litigated. It may be a lawyer's dream, but it
is a business person's nightmare, and I think it is a nightmare for the
country.
So we have significant problems in the judicial review area, which
are also partly set forth in the letter of the administration.
Finally, let me say this: We have worked about a week on this bill. I
think we have made some progress this week, and I commend Senator Hatch
and others. So many have worked on this during this week, and I thank
them for the progress which has been made in the bill.
For instance, in one of the decisional criteria areas, I think we
made progress. We added sunshine last night, so that we now have in the
underlying Dole-Johnston bill requirements that the process, right up
to the OMB, be open, so that when a rule that is going to affect your
business or your life is being reviewed in the White House, there is
notice in the public file that that is where the review is taking

[[Page S9992]]
place. It no longer is in the agency; now it is in the White House. An
awful lot of people are affected by these rules, and the public has a
right to know when it is no longer the agency making the decisions that
affect their lives or pocketbooks; it is now the White House and OMB.
Under the sunshine provision, now incorporated in Dole-Johnston and
which was part of the Glenn-Chafee bill, we are going to have that kind
of sunshine. There have been other improvements in this bill. We have
been working on them one by one. This has been time, I think, usefully
spent. It is a very serious effort which affects the air we breathe and
the water that we drink and commerce and business and everybody's
pocketbook. It affects the safety of our children. It affects almost
everything that we do. The costs can be immense. We have to try to keep
them down. But the losses will be immense to life and safety if we do
this thing wrong.
So we have taken some time. It has been time well spent. I thank my
friend from Utah and all of the others who have been involved in the
last few weeks in trying to work through this process to come up with a
bill, if possible, on which there can be a broad consensus and, if not,
to at least come up with two alternatives which reflect differences
which can be readily understood and voted on profitably by the Members
of the body.
(At the request of Mr. Levin, the following statement was ordered to
be printed in the Record.)
Mr. GLENN. Mr. President, we have talked for many days on the
very real need for regulatory reform. While I recognize the tremendous
value of many rules in protecting public health, safety, and the
environment, I also understand that Federal agencies too often ignore
the costs of regulation on businesses, State, and local governments,
and individuals. Through sensible, balanced reform, we can restore
common sense to government decisions and thereby improve the quality
and reduce the burdens of Federal regulations.
Over the past few weeks, and the past few days, we have worked in
good faith to explain why we think S. 343 as currently drafted is not
the kind of regulatory reform we can support. The majority leader has
offered amendments that have indeed made some improvements in his own
bill. The threshold for a major rule is now $100 million. We have added
in a statement clarifying that the cost-benefit test shall not be
construed to override any statutory requirements, including health,
safety, and environmental regulations. The provision covering
environmental management activities has been dropped.
But these changes alone do not make for balanced regulatory reform.
We are still faced with a bill loaded with petitions that would let
interested parties tie up agencies in knots. We are still faced with a
bill that is a dream for lawyers and special interests. We have stated
all of these and other concerns very clearly to the proponents of S.
343. We have worked in good faith to make this a workable bill. In the
end, we still feel that there are too many problems with the bill
before us. And clearly the proponents of S. 343 also realize the
problems with their bill, as shown by the amendments they have been
offering themselves to improve their own bill. That is why I am
offering the Glenn-Chafee amendment as a substitute for S. 343.
This substitute is based on the bill reported out of the Governmental
Affairs Committee on a bipartisan basis, 15 to 0. Like the Governmental
Affairs bill, the amendment I am offering to S. 343 has bipartisan
support. I am offering the amendment on behalf of myself, Senators
Chafee, Levin, Lieberman, Cohen, Pryor, Kerry, Lautenberg, Daschle,
Boxer, Kohl, Simon, Kennedy, Dodd, Murray, Akaka, Jeffords, Biden,
Dorgan, Baucus, and Kerrey.
I am offering this legislation because I believe the reforms
contained in the Dole-Johnston bill are outweighed by the creation of
new opportunities to stop environmental and health and safety
protections for the American people. It is time to directly compare
these proposals and to ask which proposal better fulfills the dual
tasks of eliminating unnecessary regulatory burdens on business and
individuals while at the same time providing no diminution in the
ability of Government to protect the health, safety, and environment of
the American people.
I believe that our substitute provides the best answer. It is a very
strong reform proposal. It requires cost-benefit analysis, risk
assessment, peer review, congressional review of significant rules, and
review of existing rules. It provides much-needed reform without
paralyzing agencies. Issues--such as how much judicial review is needed
and how we should handle existing rules--are critical in this debate.
Our principles for regulatory reform are the following:
First, cost-benefit and risk assessment requirements should apply to
only major rules, which has been set at $100 million for executive
branch review since President Reagan's time. While S. 343 has increased
its threshold to $100 million, it also contains an amendment that was
accepted on Monday that would include any rules subject to Regulatory
Flexibility analysis as a ``major'' rule. What we have improved on the
one hand by increasing the threshold to $100 million, we have taken
away with the other hand by increasing the number of rules that would
fall under the requirements of this bill by up to 500 rules. It's too
much.
Second, regulatory reform should not become a lawyer's dream, opening
up a multitude of new avenues for judicial review.
Our amendment limits judicial review to determinations of: First,
whether a rule is major; and second, whether a final rule is arbitrary
or capricious, taking into consideration the whole rulemaking file.
Specific procedural requirements for cost-benefit analysis and risk
assessment are not subject to judicial review except as part of the
whole rulemaking file.
S. 343 will lead to a litigation explosion that will swamp the courts
and bog down agencies. It would allow review of steps in risk
assessment and cost-benefit analysis, in addition to the determination
of a major rule and of agency decisions to grant or deny petitions. It
allows interlocutory judicial review for the first time--letting
lawyers sue before the final rulemaking. It alters APA standards in
ways that undermine legal precedent and invite lawsuits. And it seems
to limit agency discretion in ways that will lead inevitably to
challenges in court.
Third, this legislation should focus on regulatory procedures and not
be a vehicle for special interests seeking to alter specific laws
dealing with health, safety, the environment, or other matters.
Our amendment focuses on the fundamentals of regulatory reform and
contains no special interest provisions.
S. 343 provides relief to specific business interests that should not
be considered in the context of regulatory reform. I am referring to
provisions, for example, where the bill restricts the toxic release
inventory [TRI], limits the Delaney Clause. Yesterday, the proponents
of S. 343 voted once again for the special interests and against the
public interest in refusing to protect the TRI.
Fourth, regulatory reform should make Federal agencies more efficient
and effective, not tie up agency resources with additional bureaucratic
processes.
Our amendment requires cost-benefit analysis and risk assessment for
major rules, and requires agencies to review all their major rules by a
time certain.
S. 343 covers a much broader scope of rules and has several
convoluted petition processes for ``interested parties''--for example,
to amend or rescind a major rule, and to review politics or guidance.
These petitions are judicially reviewable and must be granted or denied
by an agency within a specified time frame. The petitions will eat up
agency resources and allow the petitioners, not the agencies, to set
agency priorities.
Fifth, regulatory reform legislation should improve analysis and
allow the agencies to exercise common sense when issuing regulations.
Our amendment requires agencies to explain whether benefits justify
costs and whether the rule will be more cost-effective than
alternatives.
S. 343 has two separate decisional criteria that control agency
decisions--for cost-benefit determinations and for regulatory
flexibility analyses. The reg flex override actually conflicts with the
cost-benefit decisional criteria.

[[Page S9993]]
And the cost-benefit test limits agencies to the cheapest rule, not the
most cost-effective one.
Sixth, there should be sunshine in the regulatory review process.
I am pleased that my colleagues have accepted my amendment to S. 343
to ensure sunshine in the regulatory review process. I am only sorry
that it took so long for the proponents of S. 343 to accept it. We
offered it several times in the negotiations, and they rejected it each
time. At least now, there will be sunshine.
As I have said before, the text of this alternative bill is almost
identical to S. 291, except in three main areas. First, it limits the
definition of major rule to $100 million impact this, there is no
narrative definition, such as ``substantial increase in wages'';
second, we have changed the review of rules in a way that makes more
sense and that does not automatically sunset rules that have not been
reviewed; and, third, it covers only particular programs and agencies
for risk assessment requirements and it makes other technical changes
in line with the National Academy of Science approach to risk
assessment.
In addition, our substitute reflects positive changes that have been
arrived at through negotiations on the underlying bill.
I believe this is a very strong and balanced approach to regulatory
reform. It passes the two tests I believe any regulatory reform
legislation must achieve: First, it will provide regulatory relief for
business, State and local governments, and individuals. And, second, at
the same time, it protects the health, safety and environment of the
American people.
Let me conclude by saying that same progress has been made over the
past few weeks in improving S. 343. But let us not leave the impression
that the bill is close to being acceptable. This is not the case. There
remain substantial issues, which we have communicated on numerous
occasions to the proponents of this bill and on which no agreement has
been forthcoming. These issues are satisfactorily addressed in the
Glenn-Chafee substitute amendment. Accordingly, I urge my colleagues to
vote for this amendment as a substitute to S. 343.
Mr. HATCH. Mr. President, let me spend a few minutes addressing the
merits of S. 343 and the Glenn amendment. Let me say that, in our
opinion, the Glenn amendment is reg lite. It is a somewhat weaker
version of S. 291, which was the compromise bill, and for that reason
voted out of the Governmental Affairs Committee under my close friend,
Bill Roth, my comanager on this bill. As Chairman Roth pointed out, S.
343 is a truly superior vehicle for achieving meaningful and effective
regulatory reform than either S. 291 or the Glenn-Chafee substitute.
S. 343, unlike the Glenn bill, is a product of the collective wisdom
of three committees--Judiciary, Governmental Affairs, and Energy and
Natural Resources--and many Senators, including Senators Johnston,
Heflin, Dole, and others in addition. It has undergone 100 substantive
and technical changes over the last 4 months. We have tried to
cooperate with the White House. Many of the changes have been requested
by them, and we have to say we have been very cooperative in the
process.
I know that just the Judiciary Committee version of S. 343
encompassed helpful changes suggested by the majority and minority
staffs of the committee working as a task force, the administration,
and various representatives of Federal agencies after lengthy meetings
lasting days. These changes are reflected in the final version of S.
343 that is before this body. So, too, are modifications made to the
bill before the July 4 recess, which were the product of fruitful
negotiations among Senators Kerry, Levin, Biden, Johnston, Roth,
Nickles, Murkowski, Bond, Dole, and myself.
S. 343, you see, represents the aggregate acumen of many viewpoints.
It is a workable, balanced, and fair approach to the nettlesome issue
of regulatory reform, and it is far preferable to the Glenn substitute.
Here are just some of the principal reasons why. Both bills contain
various elements that are important for effective regulatory reform. S.
343 contains cost-benefit requirements that have substantial effect as
to which agencies can be held accountable through an effective
decisional requirement section enforced through judicial review.
The Glenn substitute's cost-benefit provision is much weaker, and its
judicial review provision is ambiguous at best. The Glenn substitute
requires ``that the benefits of the rule justify the costs of the
rule.'' And that ``the rule will achieve the rulemaking objectives in a
more cost-effective manner than the alternatives described in the
rulemaking.''
However, unlike the Glenn substitute, S. 343 contains a decisional
criteria section that is far more sophisticated and efficacious. First
of all, the decisional criteria section mandates that no rule shall be
promulgated unless the rule complies with this section. That
requirement will act as a hammer to assure agency compliance with the
standards set forth in the decisional criteria section 624 of S. 343.
Now, some will say that this is overkill, that agencies will abide by
cost-benefit standards without section 624's hammer. Yet, President
Clinton's Executive order on regulations contains a hammerless cost-
benefit analysis requirement which is routinely ignored by agencies and
OMB--very similar to what the Glenn substitute is. According to an
April 1995 study by the Institute for Regulatory Policy, of the 222
major EPA rules issued from April to September 1994, only 6 passed
cost-benefit analysis muster.
The rest were promulgated anyway. In other words, the President's own
Executive order is ignored by OMB and other agencies, and the EPA in
this particular case.

Of the 510 regulatory actions published during this period, 465 were
not even reviewed by OMB, and of the 45 rules that were reviewed, not
one was returned to the agency having failed the obligatory cost-
benefit analysis test.
They call this regulatory reform? That is what we would get with the
Glenn substitute.
Moreover, section 624 not only requires, like the Glenn substitute,
``the benefits of the rule justify the costs of the rule;'' but unlike
Glenn, it also requires that the rule must achieve the ``least cost
alternative,'' of any of the reasonable alternatives facing the agency.
Or if the ``public interest'' requires it, the lowest cost alternative,
taking into consideration scientific or economic uncertainty or
unquantifiable benefits.
This does two things. First, it assures that the least burdensome
rule will be promulgated; Second, that agencies are not straight
jacketed when facing scientific or economic uncertainties, or benefits
that cannot be quantified into promulgating a rule based on an option
that is only the least costly in the short term.
In the latter situation, agencies may explicitly take these factors
into account when considering the least cost alternative when
promulgating the rule.
What about the effect on existing law? Section 624 of S. 343 provides
that its cost-benefit decisional criteria supplement the decisional
criteria for rulemaking applicable under the statute, granting the
rulemaking authority, except when such an underlying statute requires
that a rule to protect health, safety, or the environment should be
promulgated, and the agency cannot apply the standard in the text of
the statute, satisfy the cost-benefit criteria.
In such a case, under S. 343, the agency taking action may promulgate
the rule but must choose the regulatory alternative meeting the
requirements of the underlying statute that imposes the lowest cost.
In this way, agencies are given great latitude in promulgating cost
effective rules. Thus, S. 343 strongly supplements existing law but
does not embody a supermandate. This was made absolutely clear in a
bipartisan amendment adopted just a few days ago.
In contrast, the Glenn amendment only requires agencies to justify
costs in those situations where such requirement is not expressly or
implicitly ``inconsistent with the underlying statute.'' This allows
agencies to select any costly or burdensome option allowable under the
underlying statute.
What about judicial review? Could not it be argued that the Glenn
bill's judicial review provision assures that agencies will comply with
that bill's albeit weak cost-benefit analysis requirement?

[[Page S9994]]

While both S. 343 and the Glenn bill basically only allow for APA,
the Administrative Procedure Act ``arbitrary and capricious'' review of
the rule, and not independent review of the cost-benefit analysis and a
risk assessment.
The Glenn judicial review section contains a provision that could be
construed to prohibit a court from considering a faulty cost-benefit
analysis or risk assessment in determining if a rule passes arbitrary
and capricious muster.
That provision states ``If an analysis or assessment has been
performed, the court shall not review to determine whether the analysis
or assessment conforms to the particular requirements of this
chapter.''
This literally means that a poorly or sloppily done cost-benefit
analysis or risk assessment could avoid judicial scrutiny even if
material to the outcome of the rule, because the Glenn requirements for
analysis and assessments are not reviewable.
A significant reform contained in S. 343, missing in the Glenn bill,
is the petition process. While critics of S. 343 contend that the
bill's petition processes are too many and overlapping, I believe that
the bill's petition provisions are workable, not at all burdensome, and
empower that part of the American public effected by existing
burdensome regulation, to challenge rules that have not been subject to
S. 343's cost-benefit analysis and risk assessment requirements.
For instance, in section 623, the requirement for agency review of
existing rules, the petition provision allows for either placing a rule
on the agency's schedule for review, or in effect to accelerate agency
review of rules already on the agency scheduled for review.
The petitioner has a significant burden to justify that the requested
relief is necessary. I might add that this provision was a product of
negotiations among Senators Kerry, Levin, Biden, Johnston, Roth,
Nickles, Murkowski, Bond, Dole, and myself.
One other provision that I want to mention is section 629, which
allows for the petitioner to seek alternative means to comply with the
requirements of the rule. This allows for needed flexibility and will
save industry untold amounts of money in having to comply with
sometimes irrational requirements, without weakening the protections
for health, safety, or the environment.
In this way, agencies are given great latitude in promulgating cost-
effective rules. In this way, agencies are given great latitude that
they need to have.
Moreover, the following provisions of S. 343 are much better than
their counterpart provisions in Senator Glenn's, the risk assessment
provisions. S. 343 applies its risk assessment and risk
characterization principles to all agency major rules. The Glenn
amendment limits the applicability of risk assessment and risk
characterization principles to major rules promulgated by certain
listed agencies, contains no decisional requirements for risk
assessments.
Definition of cost of benefits. S. 343 makes absolutely clear that
the definition of cost of benefits includes nonquantifiable factors
such as health, safety, social, and environmental concerns.
This is extremely important because not all benefits are
quantifiable. You may not be able to place numbers on good health or
the beauty of a national park, for instance. The Glenn bill, on the
other hand, does not make this clear. When a cost-benefit analysis is
done under Glenn, these benefits may be undervalued.
Emergency provisions. The Dole-Johnston bill contains exemptions for
imposition of the notice and comments, cost-benefit analysis and risk
assessment requirements. When an emergency arises or a threat to public
health and safety arises, these provisions will allow for a rule that
addresses these concerns to promptly go into effect. There is no delay.
The Glenn substitute, on the other hand, only contains one exemption
for risk assessments.
Is this not ironic? The supporters of the Glenn measure complained
endlessly how S. 343 would prevent the agencies from protecting the
public for E. coli bacteria present in bad meat, or cryptosporidium in
drinking water, and have screamed that rules addressing these problems
be exempt from S. 343. Of course, S. 343's emergency provisions
adequately deal with these problems. But Glenn does not.
Where are the equivalent provisions in Glenn? Does Glenn exempt these
types of rules from cost-benefit analysis? No.
I find it almost disingenuous, the arguments that were made by many
on the other side, about how they were trying to protect the health of
the public from E. coli and from cryptosporidium, when their own bill
did not even provide a means to do so, and our bill does, and has from
the beginning.
All of that rhetoric that was used was what we call bull corn in
Utah. This bill takes care of it. It is apparent, Mr. President, that
the Dole-Johnston measure is a superior vehicle for regulatory reform.
I also want to say that I am one who does not spend a lot of time
finding fault with the media, although I have from time to time.
Naturally all of us have done that, as Senators. But I have to say that
there have been some major media presentations this week that have been
so scurrilous they do not belong in regular journalism.

One of our networks has put out two of the most scurrilous,
indefensible, factually lacking segments that have maligned my
colleague, Senator Dole, in an unjustifiable way that I consider to be
despicable.
Talking about despicability, the July 6 Public Citizen news
conference in Washington, DC--we are used to the Ralph Nader gang being
out of line and using poor judgment and using bludgeoning tactics, and
misrepresenting, and not telling the truth, and using the Ethics
Committee to malign people. But even they, as low as they stoop all the
time, have stooped to one of the lowest points in the history of
legislation when, at a news conference, Joan Claybrook said that cost-
benefit analysis was akin to what the Nazis did to prisoners in
concentration camps during World War II.
Both parties ought to be outraged at this type of irresponsibility.
This group of people has been given much too much consideration by the
press through the years.
Joan Claybrook said at that conference:

Recently, in the New York Times, there was a very
interesting letter to the editor commenting on this issue of
cost and benefit analysis. And it is taken from a table of
profits per prisoner that the SS (Nazi Storm Troopers)
created in concentration camps, trying to decide whether or
not the holding of the prisoners, the use of prisoners, the
renting out of the prisoners, and the killing of the
prisoners, was cost beneficial to the SS.

Joan Claybrook went on to say:

That is what I think of cost-benefit analysis, because you
never can have the benefits fully developed in terms of the
impact on human life, the trauma and the enjoyment of life.

Maybe it was a mistake. I like Miss Claybrook and I know she is very
sincere, albeit radical. And I like her personally. But that type of
language just does not belong in this debate.
Unfortunately, some of us have been putting up with this for years
from this group of people. I just cannot allow it to stand. It has been
a matter of, I think, just total bad taste and really a matter of great
irritation to anybody who is a fair-thinking person.
With that, I will reserve the remainder of my remarks until we get
into this debate on Monday. But it is clear that we have, still, with
all the work we have done--and I want to compliment my friend from
Michigan, and certainly Senator Glenn, on the other side of this issue,
and Senator Kerry has worked on it, Senator Baucus has worked on this
matter, and others--I want to compliment them for trying to see that we
can get together and have a bill that everybody can support.
Unfortunately, I do not think we are going to be able to do that, but
we have come a long way in trying to accommodate the other side on this
bill.
I have worked very long and hard to do that, as have others. I hope
we can continue that spirit of bipartisanship up through--hopefully we
will have final passage of this bill on Tuesday. And hopefully we will
vote sometime, on the substitute, on Monday or early Tuesday. But I
have to say I want to compliment the intelligence of my colleagues on
the other side of this issue. They know what they are talking about.
Even though we differ on some

[[Page S9995]]
of these points, I have to say it has been very interesting working
with them and I appreciate the good faith that they have put forth.
Mr. President, I would like to change the subject if I can. Hopefully
that will end the debate. As soon as we can, I would like to wrap up
and let everybody go for the day.
I understand Senator Murkowski will be coming over. I assure the
other side we are not going to talk any more on this, unless Senator
Murkowski is. I do not know. But if he is, it will only be another
statement or so.

____________________